More espe cially to

of independ

as owners

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.

d

Let us therefore begin with our gentlemen of independent gentlemen estates and fortune, the most useful as well as considerable ent fortune body of men in the nation; whom even to suppose ignorant of property. in this branch of learning is treated by Mr. Locke 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 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 [8] at all: so that in the end his estate may often be vested quite contrary to these his enigmatical intentions, because

Education, §. 187.

1 Vict. c. 26.

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.

As serving

on Juries.

of the peace.

But it is not as a juror only that the English gentleman As justices 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 absurdity, he will be the object of contempt from his inferiors, and of censure from those to whom he is accountable for his conduct.

[ 9 ]

bers of Par

Yet farther; most gentlemen of considerable property, And as memat some period or other in their lives, are ambitious of re- liament.

presenting 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; 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! Besides, the duties of a member of the house of commons are frequently judicial as well as legislative, and the absence of some knowledge of the law has of late been the cause of much deserved reproach to this branch of the legislature.

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 professors of the laws: but every man of superior fortune thinks himself born a legis[10] lator. Yet Tully was of a different opinion; "it is necessary," says he, "for a senator to be thoroughly acquainted "with the constitution: and this, he declares, is a know

66

e

De Legg, 3, 18. Est senatori necessarium nosse rempublicam; idque late patet:-genus hoc omne scientiae,

diligentiae, menoriae est; sine quo paratus esse senator nullo pacto potest.

66

ledge of the most extensive nature; a matter of science, "of diligence, of reflexion: without which no senator can "possibly be fit for his office."

arising from

legislation.

The mischiefs that have arisen to the public from incon- Mischiefs siderate alterations in our laws, are too obvious to be called ignorant in question; and how far they have been owing to the defective education of our senators, is a point well worthy of 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 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) with pro"visoes 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 par"liament 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 [ 11 ] "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,

f 2 Rep. Pref.

Former remarks appli

nobility.

you may judge how the evil is increased in later times, when the statute book is swelled to twenty 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 procable to the priety 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.

The duties the realm.

Should a judge in the most subordinate jurisdiction be of peers of deficient in the knowledge of the law, it would reflect infinite contempt upon himself, and disgrace upon those who employ them. 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 su[ 12 ]perior 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!

Yet, vast as this trust is, it can no where be so properly reposed, as in the noble hands where our excellent consti tution has placed it: and therefore placed it, because, from