university,
an audience, the novelty, and (I may
add) the importance of the duty required from this
chair, must unavoidably be productive of great diffidence
and apprehensions in him who has the honour
to be placed in it. He must be sensible how much will depend
upon his conduct in the infancy of a study, which is now
first adopted by public academical authority; which has generally
been reputed (however unjustly) of a dry and unfruitful nature;
and of which the theoretical, elementary parts have hitherto received
a very moderate share of cultivation. He cannot but reflect
that, if either his plan of instruction be crude and injudicious,
or the execution of it lame and superficial, it will cast a
damp upon the farther progress of this most useful and most rational
branch of learning; and may defeat for a time the public-*
spirited design of our wise and munificent benefactor. And this
he must more especially dread, when he feels by experience how
unequal his abilities are (unassisted by preceding examples) to
complete, in the manner he could wish, so extensive and arduous
a task; since he freely confesses, that his former more private
attempts have fallen very short of his own ideas of perfection.
And yet the candour he has already experienced, and this last
transcendent mark of regard, his present nomination by the free
and unanimous suffrage of a great and learned university, (an
honour to be ever remembered with the deepest and most affectionate
gratitude) these testimonies of your public judgment must
entirely supersede his own, and forbid him to believe himself totally
insufficient for the labour at least of this employment. One
thing he will venture to hope for, and it certainly shall be his
constant aim, by diligence and attention to atone for his other
defects; esteeming, that the best return, which he can possibly
make for your favourable opinion of his capacity, will be his
unwearied endeavours in some little degree to deserve it.
methodized, and explained in a course of academical lectures, is
that of the laws and constitution of our own country: a species
of knowlege, in which the gentlemen of England have been
more remarkably deficient than those of all Europe besides. In
most of the nations on the continent, where the civil or imperial
law under different modifications is closely interwoven with the
municipal laws of the land, no gentleman, or at least no scholar,
thinks his education is completed, till he has attended a course or
two of lectures, both upon the institutes of Justinian and the
local constitutions of his native soil, under the very eminent professors
that abound in their several universities. And in the northern
parts of our own island, where also the municipal laws are
frequently connected with the civil, it is difficult to meet with a
person of liberal education, who is destitute of a competent
knowlege in that science, which is to be the guardian of his
natural rights and the rule of his civil conduct.
the English nation. A general acquaintance with their decisions
has ever been deservedly considered as no small accomplishment
of a gentleman; and a fashion has prevailed, especially of late,
to transport the growing hopes of this island to foreign universities,
in Switzerland, Germany, and Holland; which, though
infinitely inferior to our own in every other consideration, have
been looked upon as better nurseries of the civil, or (which is
nearly the same) of their own municipal law. In the mean time
it has been the peculiar lot of our admirable system of laws, to
be neglected, and even unknown, by all but one practical profession;
though built upon the soundest foundations, and approved
by the experience of ages.
law, considered (apart from any binding authority) as a collection
of written reason. No man is more thoroughly persuaded of the
general excellence of it's rules, and the usual equity of it's decisions;
nor is better convinced of it's use as well as ornament to
the scholar, the divine, the statesman, and even the common
lawyer. But we must not carry our veneration so far as to sacrifice
our Alfred and Edward to the manes of Theodosius and Justinian:
we must not prefer the edict of the praetor, or the rescript
of the Roman emperor, to our own immemorial customs,
or the sanctions of an English parliament; unless we can also
prefer the despotic monarchy of Rome and Byzantium, for whose
meridians the former were calculated, to the free constitution of
Britain, which the latter are adapted to perpetuate.
abounds in the imperial law, I hope I may have leave to assert,
that if an Englishman must be ignorant of either the one or the
other, he had better be a stranger to the Roman than the English
institutions. For I think it an undeniable position, that a competent
knowlege of the laws of that society, in which we live,
is the proper accomplishment of every gentleman and scholar;
an highly useful, I had almost said essential, part of liberal and
polite education. And in this I am warranted by the example of
antient Rome; where, as Cicero informs us[a], the very boys were
obliged to learn the twelve tables by heart, as a carmen necessarium
or indispensable lesson, to imprint on their tender minds an early
knowlege of the laws and constitutions of their country.
in England, seems in some degree to call in question the truth of
this evident position, it shall therefore be the business of this introductory
discourse, in the first place to demonstrate the utility of
some general acquaintance with the municipal law of the land,
by pointing out its particular uses in all considerable situations of
life. Some conjectures will then be offered with regard to the
causes of neglecting this useful study: to which will be subjoined
a few reflexions on the peculiar propriety of reviving it in our
own universities.
with the laws of the land, let us only reflect a moment on the
singular frame and polity of that land, which is governed by this
system of laws. A land, perhaps the only one in the universe,
in which political or civil liberty is the very end and scope of the
constitution[b]. This liberty, rightly understood, consists in the
power of doing whatever the laws permit[c]; which is only to be
effected by a general conformity of all orders and degrees to those
equitable rules of action, by which the meanest individual is protected
from the insults and oppression of the greatest. As therefore
every subject is interested in the preservation of the laws, it
is incumbent upon every man to be acquainted with those at least,
with which he is immediately concerned; lest he incur the censure,
as well as inconvenience, of living in society without knowing
the obligations which it lays him under. And thus much
may suffice for persons of inferior condition, who have neither
time nor capacity to enlarge their views beyond that contracted
sphere in which they are appointed to move. But those, on whom
nature and fortune have bestowed more abilities and greater leisure,
cannot be so easily excused. These advantages are given
them, not for the benefit of themselves only, but also of the public:
and yet they cannot, in any scene of life, discharge properly
their duty either to the public or themselves, without some degree
of knowlege in the laws. To evince this the more clearly,
it may not be amiss to descend to a few particulars.
estates and fortune, the most useful as well as considerable body
of men in the nation; whom even to suppose ignorant in this
branch of learning is treated by Mr Locke[d] as a strange absurdity.
It is their landed property, with it's long and voluminous
train of descents and conveyances, settlements, entails, and incumbrances,
that forms the most intricate and most extensive object
of legal knowlege. The thorough comprehension of these,
in all their minute distinctions, is perhaps too laborious a task
for any but a lawyer by profession: yet still the understanding of
a few leading principles, relating to estates and conveyancing,
may form some check and guard upon a gentleman's inferior
agents, and preserve him at least from very gross and notorious
imposition.
in the wording of last wills and testaments, and more with
regard to their attestation. An ignorance in these must always be
of dangerous consequence, to such as by choice or necessity compile
their own testaments without any technical assistance. Those
who have attended the courts of justice are the best witnesses of
the confusion and distresses that are hereby occasioned in families;
and of the difficulties that arise in discerning the true meaning
of the testator, or sometimes in discovering any meaning at all:
so that in the end his estate may often be vested quite contrary to
these his enigmatical intentions, because perhaps he has omitted
one or two formal words, which are necessary to ascertain the
sense with indisputable legal precision, or has executed his will
in the presence of fewer witnesses than the law requires.
public consideration. All gentlemen of fortune are, in consequence
of their property, liable to be called upon to establish the
rights, to estimate the injuries, to weigh the accusations, and
sometimes to dispose of the lives of their fellow-subjects, by
serving upon juries. In this situation they are frequently to decide,
and that upon their oaths, questions of nice importance,
in the solution of which some legal skill is requisite; especially
where the law and the fact, as it often happens, are intimately
blended together. And the general incapacity, even of our best
juries, to do this with any tolerable propriety has greatly debased
their authority; and has unavoidably thrown more power into
the hands of the judges, to direct, control, and even reverse
their verdicts, than perhaps the constitution intended.
called upon to determine questions of right, and distribute justice
to his fellow-subjects: it is principally with this order of men
that the commission of the peace is filled. And here a very ample
field is opened for a gentleman to exert his talents, by maintaining
good order in his neighbourhood; by punishing the dissolute
and idle; by protecting the peaceable and industrious; and,
above all, by healing petty differences and preventing vexatious
prosecutions. But, in order to attain these desirable ends, it is
necessary that the magistrate should understand his business; and
have not only the will, but the power also, (under which must
be included the knowlege) of administering legal and effectual
justice. Else, when he has mistaken his authority, through passion,
through ignorance, or absurdity, he will be the object of
contempt from his inferiors, and of censure from those to whom
he is accountable for his conduct.
some period or other in their lives, are ambitious of representing
their country in parliament: and those, who are ambitious of
receiving so high a trust, would also do well to remember it's
nature and importance. They are not thus honourably distinguished
from the rest of their fellow-subjects, merely that they
may privilege their persons, their estates, or their domestics;
that they may list under party banners; may grant or with-hold
supplies; may vote with or vote against a popular or unpopular
administration; but upon considerations far more interesting and
important. They are the guardians of the English constitution;
the makers, repealers, and interpreters of the English laws;
delegated to watch, to check, and to avert every dangerous innovation,
to propose, to adopt, and to cherish any solid and well-weighed
improvement; bound by every tie of nature, of honour,
and of religion, to transmit that constitution and those laws to
their posterity, amended if possible, at least without any derogation.
And how unbecoming must it appear in a member
of the legislature to vote for a new law, who is utterly ignorant
of the old! what kind of interpretation can he be enabled
to give, who is a stranger to the text upon which he
comments!
state of life, no other occupation, art, or science, in which some
method of instruction is not looked upon as requisite, except only
the science of legislation, the noblest and most difficult of any.
Apprenticeships are held necessary to almost every art, commercial
or mechanical: a long course of reading and study must
form the divine, the physician, and the practical professor of the
laws: but every man of superior fortune thinks himself born a
legislator. Yet Tully was of a different opinion: "It is necessary,[** "] says he[e], [** "]for a senator to be thoroughly acquainted with
the constitution; and this, he declares, is a knowlege of the
most extensive nature; a matter of science, of diligence, of
reflexion; without which no senator can possibly be fit for his
office."
alterations in our laws, are too obvious to be called in question;
and how far they have been owing to the defective education
of our senators, is a point well worthy the public attention.
The common law of England has fared like other venerable edifices
of antiquity, which rash and unexperienced workmen have
ventured to new-dress and refine, with all the rage of modern improvement.
Hence frequently it's symmetry has been destroyed,
it's proportions distorted, and it's majestic simplicity exchanged
for specious embellishments and fantastic novelties. For, to say
the truth, almost all the perplexed questions, almost all the niceties,
intricacies, and delays (which have sometimes disgraced the
English, as well as other, courts of justice) owe their original
not to the common law itself, but to innovations that have been
made in it by acts of parliament; "overladen[** "] (as sir Edward
Coke expresses it[f]) [** "]with provisoes and additions, and many
times on a sudden penned or corrected by men of none or very
little judgment in law." This great and well-experienced judge
declares, that in all his time he never knew two questions made
upon rights merely depending upon the common law; and
warmly laments the confusion introduced by ill-judging and unlearned
legislators. "But if,[** "] he subjoins, [** "]acts of parliament were
after the old fashion penned, by such only as perfectly knew
what the common law was before the making of any act of
parliament concerning that matter, as also how far forth former
statutes had provided remedy for former mischiefs, and
defects discovered by experience; then should very few questions in law arise, and the learned should not so often and so
much perplex their heads to make atonement and peace, by
construction of law, between insensible and disagreeing words,
sentences, and provisoes, as they now do." And if this inconvenience
was so heavily felt in the reign of queen Elizabeth, you
may judge how the evil is increased in later times, when the
statute book is swelled to ten times a larger bulk; unless it should
be found, that the penners of our modern statutes have proportionably
better informed themselves in the knowlege of the common
law.
of their application to the study of the laws of their country,
will hold equally strong or still stronger with regard to the nobility
of this realm, except only in the article of serving upon juries.
But, instead of this, they have several peculiar provinces
of far greater consequence and concern; being not only by birth
hereditary counsellors of the crown, and judges upon their honour
of the lives of their brother-peers, but also arbiters of the
property of all their fellow-subjects, and that in the last resort.
In this their judicial capacity they are bound to decide the nicest
and most critical points of the law; to examine and correct such
errors as have escaped the most experienced sages of the profession,
the lord keeper and the judges of the courts at Westminster.
Their sentence is final, decisive, irrevocable: no appeal, no correction,
not even a review can be had: and to their determination,
whatever it be, the inferior courts of justice must conform;
otherwise the rule of property would no longer be uniform and
steady.
in the knowlege of the law, it would reflect infinite contempt
upon himself and disgrace upon those who employ him.
And yet the consequence of his ignorance is comparatively very
trifling and small: his judgment may be examined, and his errors
rectified, by other courts. But how much more serious and
affecting is the case of a superior judge, if without any skill in
the laws he will boldly venture to decide a question, upon which
the welfare and subsistence of whole families may depend! where
the chance of his judging right, or wrong, is barely equal; and
where, if he chances to judge wrong, he does an injury of the
most alarming nature, an injury without possibility of redress!
as in the noble hands where our excellent constitution has
placed it: and therefore placed it, because, from the independence
of their fortune and the dignity of their station, they are
presumed to employ that leisure which is the consequence of
both, in attaining a more extensive knowlege of the laws than
persons of inferior rank: and because the founders of our polity
relied upon that delicacy of sentiment, so peculiar to noble birth;
which, as on the one hand it will prevent either interest or affection
from interfering in questions of right, so on the other it
will bind a peer in honour, an obligation which the law esteems
equal to another's oath, to be master of those points upon which
it is his birthright to decide.
