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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 in that science which is to be the guardian of his natural rights and the rule of his civil conduct. *5]
*Nor have the imperial laws been totally neglected even in the English
nation. A general acquaintance with their decisions has ever been deseryedly 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 it. finitely inferior to our own in every other consideration, have been looked upou 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, io the free constitution of Britain, which the latter are adapted to perpetuate.
Without detracting, therefore, from the real merits which abound 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 knowledge 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 Í 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 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 coustitution.(bThis liberty, rightly understood, consists in the power of doing
(a) De Legg. 2, 23.
() Montesq. Esp. L. 1. 11, c. 5.
? In the Great Law enacted by the first General Assembly of Pennsylvania, convened at Chester or Upland, Dec. 4, 1882, containing sixty-one chapters, was one requiring the laws to be taught in the schools of the province and territories.—Gordon's Hist. of Penna., 7. 71; Hazard's Annals, 634.-SvarsWOOD.
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. r 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 ho 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 knowledge in the 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 rnost 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 at least from very gross and notorious imposition.
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 at all; so that in the end his estate *may often
[*8 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,
Facultas ejus, quod cuique facere libet, nisi quid vi, aut jure prohibetur. Inst. 1. 3. 1.
(d) Education, Sec. 187.
2 This definition has been much criticized. “Consistently with this, a negro slave on a sugar-estate is free: he may do whatever the laws permit him to do.”—Coleridge. If we read what follows as part of the definition, it evidently contemplates just and equal laws,equitable rules of action. Civil liberty is the power of doing whatsoever we will, except when restrained by just and equal laws. Political liberty is that condition in which a man's civil liberty is fully secured. Mr. Justice Coleridge cites, as preferable to the text, the following definition from Locke:-“Freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power vested in it; a liberty to follow my own will in all things, when the rule prescribes not, and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man.”— On Government, b. xi. c. 4. Mr. Locke's definition confounds civil with political liberty, which ought always to be carefully distinguished in discussione upon this subject.-SHARSWOOD.
questions of nice importance, in the solution of which some legal skill is requ. site; especially where the law and the fact, as it often happens, are intimatels 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 un. avoidably 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 authority, through passion, through ignorance, or ab
surdity, he will be the object of * contempt from his inferiors, and of censure from those to 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 im portant. 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 posterity, amended if possible, at least without any deregation. 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 *10 ]
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 knowledge of the most extensive nature; a matter of science, of diligence, of reflection; without 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 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 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
(•) De Legg. 3. 18. Est senatori necessarium nosse rempub memoriæ est; sine quo juratus esse senator nullo pacto pa kicam; idque late patet -genus hoc omne scientix, diligentiæ
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 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 brotherpeers, 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 crrors 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
[*12 venture to decide à question upon which the welfare and subsistence of wholo 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.
Yet, vast as this trust is, it can nowhere be so properly reposed 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 knowledge 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 it 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 birth-right to decide.3
(1) 2 Rep. pref.
* This assertion, that the law esteems the word of honour of a peer as an obligation equal to another's oath, is not accurate. In the courts of common law, when a nobleman is examined as a witness, he must be sworn to speak the truth, just as a commoner must
The Roman pandects will furnish us with a piece of history not unapplicable to our present purpose. Servius Sulpicius, a gentleman of the patrician order, and a celebrated orator, had occasion to take the opinion of Quintus Mutius Scævola, the then oracle of the Roman law; but, for want of some knowiedge in that science, could not so much as understand even the technical terms, which his friend was obliged to make use of. Upon which Mutius Scævola could not forbear to upbraid him with this memorable reproof,(9)“ that it was a shame for a patrician, a nobleman, and an orator of causes, to be ignorant of that law in which he was so peculiarly concerned.” This reproach made so deep an impression on Sulpicius, that he immediately applied himself to the study of the *13]
law, wherein he arrived to that *proficiency, that he left behind him about
an hundred and fourscore volumes of his own compiling upon the subject; and became, in the opinion of Cicero,(h) a much more complete lawyer than even Mutius Scævola himself.
I would not be thought to recommend to our English nobility and gentry to become as great lawyers as Sulpicius; though he, together with this character, sustained likewise that of an excellent orator, a firm patriot, and a wise, indefatigable senator; but the inference which arises from the story is this, that igna rance of the laws of the land hath ever been esteemed dishonourable in those who are intrusted by their country to maintain, to administer, and to amend them.
But surely there is little occasion to enforce this argument any farther to per. sons of rank and distinction, if we of this place may be allowed to form a general judgment from those who are under our inspection : happy that while we lay down the rule, we can also produce the example. You will therefore permit your professor to indulge both a public and private satisfaction by bearing this open testimony, that, in the infancy of these studies among us, they were favoured with the most diligent attendance, and pursued with the most unwearied application, by those of the noblest birth and most ample patrimony, some of whom are still the ornaments of this seat of learning, and others, at a greater distance, continue doing honour to its institutions, by comparing our polity and laws with those of other kingdoms abroad, or exerting their senatorial abilities in the councils of the nation at home.
Nor will some degree of legal knowledge be found in the least superfluous to persons of inferior rank, especially those of the learned professions. The clergy in particular, besides the common obligations they are under in proportion to *14]
their rank and fortune, have also abundant reason, considered *merely as
clergymen, to be acquainted with many branches of the law, which are almost peculiar and appropriated to themselves alone. Such are the laws relating to advowsons, institutions, and inductions; to simony and simoniacal contracts; to uniformity, residence, and pluralities; to tithes and other ecclesiastical dues; to marriages, (more especially of late, and to a variety of other subjects, which are consigned to the care of their order by the provisions of particular statutes. To
But, in courts of equity, peers and peeresses are privileged to put in their answers on their honour only, when others are required to be sworn. And so the members of the House of Peers, when sitting judicially upon the trial of impeachments, are upon their pledge of honour only.
It may be remarked also, as qualifying what is said of the jurisdiction of the House of Peers as the highest court of errors and appeals, that this part of their business is transacted by the Lord Chancellor, and those members, who are lawyers by profession and have filled judicial stations. The lay peers, who attend the sessions, abstain from voting in such cases. Baron Parke was recently raised to the peerage, with the title of Lord Wensleydale, for the avowed purpose of strengthening the legal staff in that body. He was first created a baron for life; but, much dissatisfaction having been expressed at such a precedent, as of a dangerous nature in its tendency to increase the influence of the crown, À patent was issued to him entailing the dignity to him and his heirs male.-SHARSWOOD.