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 knowledge of that science, which is to be the guardian of his natu[5]ral rights and the rule of his civil conduct.

Nor have the imperial laws been totally neglected even in 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.

Far be it from me to derogate from the study of the civil law, considered apart from any binding authority as a collection of written reason. No man is more thoroughly persuaded of the general excellence of its rules, and the usual equity of its decisions, nor is better convinced of its 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 prætor, 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. Without detracting, therefore, from the real merit which 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 unde

niable position, that a competent knowledge of the laws of that [6] society in which we live, is the proper accomplishment of every

gentleman and scholar; a highly useful, I had almost said essential, part of liberal and polite education. And in this I am warranted by the example of ancient 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 knowledge of the laws and constitution of their country.

But as the long and universal neglect of this study with us 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 De Legg, 2:23:

a few reflections on the peculiar propriety of reviving it in our own universities.

And, first, to demonstrate the utility of some acquaintance 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)1 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 [7] 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 knowledge of the b Montesq. Esp. L. l. 11. c. 5.

c Facultas ejus, quod cuique facere libet, nisi quid vi, aut jure probibetur. Inst. 1.3. 1.

(1) This definition of liberty has been justly disapproved of. The difficulty of framing a defi nition of liberty is manifest from the number of eminent writers who have attempted it, and the few who have succeeded. The learned commentator has inserted several in the course of his work; but the most defective is that in the text. It gives no adequate idea of the nature of civil liberty, and may be taken alike to explain either the despotism of Turkey, or the free constitution of England. Where the will of the ruler is the law, the power of doing every thing which he permits is as absolute, as "the power of doing whatever the laws permit," in any other state. Neither the mode nor the object of legislation is embraced in the above definition, the latter of which qualities is indispensable to a clear exposition of civil liberty. Abstractedly, the ideas of liberty and control are incompatible; and hence the perplexity. But civil liberty is a compound idea, made up of an admixture of so much artificial restraint (and no more) with the natural freedom of man, as is essential to the preservation of the utmost amount of the latter, equally among all the members of the community. Thus, every one surrenders a portion of his natural liberty, by which a power is created for his protection in the enjoyment of what remains, which else would be defenceless, and exposed to perpetual outrage. See p. 125, post.

This view of the subject may serve to illustrate the following definitions of liberty, which are much more accurate than that which has induced these observations.

"Moral, or natural liberty, is the right which nature gives to all mankind, of disposing of their persons and property after the manner they judge most consonant to their happiness, on condition of their acting within the limits of the law of nature, and that they do not any way abuse it, to the prejudice of other men." Burlamaqui, ch. 3. s. 15.

"Civil liberty is the not being restrained by any law, but what conduces in a greater degree to the public welfare " Paley's Moral Philosophy, b. 6. ch. 5.

"Civil, or legal liberty, consists in a freedom from all restraints, except such as established law imposes for the good of the community, to which the partial good of each individual is obliged to give place." A Sermon by the Archbishop of York, 19.

"Civil liberty is the impartial administration of equal and expedient laws." Christian's note to Blackst. Commentaries, p. 127.

It may be farther observed, that civil liberty is most likely to be attained and preserved, by that community, all the members whereof systematically participate in the functions of legislation, and the form of whose government provides for the stability of the laws, their due administration, and the ready means of enforcing the responsibility of the executive. It cannot be denied, that the constitution of this kingdom contains these qualities in an eminent degree; and the lofty station which England has acquired among civilized nations, is the best exposition of the blessings of civil and political liberty. See p. 126. post. n. 4. Chitty

laws. To evince this the more clearly, it may not be amiss to descend to a few particulars.

Let us, therefore, begin with our gentlemen of independent 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 its long and voluminous train of descents and conveyances, settlements, entails, and incumbrances, that forms the most intricate and most extensive object-of legal knowledge. 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 from very gross and notorious impositions.

Again, the policy of all laws has made some forms necessary 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 [ 8 ] 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.

But to proceed from private concerns to those of a more 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 have frequently a right 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.

But it is not as a juror only that the English gentleman is 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 knowledge) of administering legal and effectual justice. Else, when he has mistaken his aushority, through passion, through ignorance, or absurdity, he will be the ob

d Locke on Education, & 187.

ject of contempt from his inferiors, and of censure from those to [ 9 ] whom he is accountable for his conduct.

Yet, farther; most gentlemen of considerable property, at 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 its 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 withhold 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!

Indeed, it is perfectly amazing that there should be no other 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 necesary," says he, (e)" for a senator to be thoroughly acquainted with the con- [ 10 ] "stitution; and this" he declares, "is a knowledge of the most "extensive nature; a matter of science, of diligence, of reflection; with"out which no senator can possibly be fit for his office."

The mischiefs that have arisen to the public from inconsiderate 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

e De Legg. 3. 18. Est senatori necessarium nosse rempublicam ; idque late patet :-genus hos omne scienTM tia, diligentiæ, memoria est: sine quo paratus esse senator nullo pacto potest.

(2) Instances are not wanting, in our own times, of the abuse to which the power intrusted to magistrates is liable, in the hands of impatient or ignorant men; and although they are responsible for wilful abuse of their office, yet, the presumption being that they have acted right, the censures of the court ate sometimes fruitlessly invoked, even when the alleged oppression and injustice is undoubted. It should be remembered, that the proof of magisterial culpability will not, of itself, entitle a party to redress; it must be clearly shewn, that the imputed offence has arisen from corrupt or improper motives, before judicial correction can be applied (1 T R. 653 2 T. R. 196. 305. 2 Burn, 719 722. 1162. 1 Bla. Řep 422. 2 Strange, 1182. 3 B. & A. 432. 1 Dowl. & R. 486.); for, if it turns out that the magistrate has "erred in ignorance and not in cunning," the penalty frequently falls upon the complainant, in the shape of the costs of the whole proceedings. It is highly important, therefore, that the magistracy should be well qualified for the discharge of their functions; and, as no man can be compelled to take the office, the justice, or sound policy of the maxim, which holds even their gross errors venial, may be questioned. It is plainly at variance with the principle, that he who voluntarily undertakes a duty which he cannot fulfil, ought to bear the consequences of his folly or inability, and compensate the injury he has occasioned. And yet, by a recent act (43 Geo. III. c. 141.), it is provided, that in actions against justices for apprehending any party wrongfully, under a conviction afterwards quashed, the plaintiff (besides any penalty levied) shall recover only 2d. damages, unless malice and want of probable cause be expressly alleged and proved. 12 East, 71. 16 East, 21. Chitty.

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 its symmetry has been destroyed, its proportions distorted, and its majestic simplicity changed 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 ex"presses it (f) with provisions 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 [ 11 ]" 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 knowledge of the common law.

What is said of our gentlemen in general, and the propriety 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.

Should a judge in the most subordinate jurisdiction be deficient in the knowledge 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 [12] skill in the laws he will boldly venture to decide a question upon 12 Rep. pref.