benefit of the several individuals of which it was composed, in order
that, supported by the united strength of the whole community, each
person might have that security in his life, his liberty, his property,
which, unassisted in a state of nature, he could not of himself attain
unto; and that, instructed by the joint counsels and wisdom of the whole
body, he might so direct his actions, as to promote the public welfare,
with which his own safety and interest are necessarily connected; it
follows, that, in such a state, every man must, even for his own sake, in
many things, sacrifice his private judgment, and his natural liberty of
action, to the will of that community to which he belongs; which will,
acting uniformly for the same purposes, cannot fail of producing a number
of fixed rules and regulations, to serve as directions to the subjects,
in such cases as are common, and frequently occur.
Accordingly, we find, there never was a state or nation, even but one
degree removed from barbarity, that subsisted without some general
customs, at least, which supplied the place of positive laws, by which
the conduct of the several members of the society was to be governed,
and for the breach of which they were liable to punishment; and in such
a submission the very essence of political freedom consists. For, as M.
Montesquieu very justly observes, the liberty of man in a social state,
different from that in a state of nature, consisteth not in a power of
acting, in all things, according to his own judgment, but in acting
according thereto, in subservience to the will of the public, in being
free to do all things the law prohibits not, and to omit all things the
law doth not enjoin[36].
Hence, in all such infant states, the greatest respect is paid, and
the highest influence allowed to those, who, either by their age and
experience, or, by their application and labour, have arrived at a
proficiency in the knowledge of the customs and practices prevailing in
their own and neighbouring nations: _Qui mores hominum multorum vidit et
urbes_, is the great eulogium of the most accomplished hero of the heroic
ages.
It must be allowed, indeed, that, in societies so small that their
members are, in general, contented with little more than the bare
necessaries of nature, a few rules will be sufficient; and every man of
a tolerable capacity will, with a reasonable degree of observation, be,
in some measure, qualified to be his own lawyer. But when it shall happen
that arts are not only introduced, but become common among any people,
when the comforts and conveniencies of life are, in the public opinion,
esteemed necessaries; when the industry of some, and the negligence of
others, have produced a remarkable inequality in the goods of fortune;
when riches hath brought forth her offspring, insolence and oppression,
and when envy and avarice inflame the breasts of the indigent, it will
be absolutely necessary to lay a continual restraint on such violent
passions, ready at every instant to destroy the peace of society, and
to tear it into pieces, and, for that purpose, to form a great number
of regulations, to curb those who have created to themselves imaginary
wants, and who no longer regulate their conduct by the plain dictates of
rude and simple nature. And as the condition of such a nation must be
perpetually changing, as new arts and gratifications will be continually
invented, as the increase of commerce will every day open a prospect of
more various acquisitions, and insensibly introduce a general change
of manners in the people; and, above all, as the wits of men, checked
in their darling pursuits, will ever be at work to discover methods of
eluding those laws which they dare not openly infringe, there must ensue
a constant alteration and variation of the rules already in being, and a
continual addition of new ones to answer new and unforeseen emergencies.
The laws, therefore, of a nation so circumstanced, must increase to such
a number, and consist of so great a variety of particulars, as to render
it impossible for the generality of the subjects to be masters of them,
and will oblige them to resort to those whose easy circumstances and
leisure have enabled them thoroughly to comprehend and understand them;
and among such a people there must be _lawyers_, although, perhaps,
not formed into a distinct and separate profession, or known by that
appellation.
Great, undoubtedly, are the inconveniencies which attend a multiplicity
of laws, and very hard it seems, that all men should be obliged to obey
a rule, which it is confessed the majority are incapable of perfectly
knowing; but such is the natural and necessary course of things. If men
will not be contented to live in a state next to absolute barbarity, if
they will enjoy the conveniencies as well as the necessaries of life, if
they will be secured against the oppression and fraud of their fellow
subjects, as well as against the violence of strangers, they must submit
to and abide by the consequences. And so sensible of this necessity was
the great Spartan legislator, that when he resolved his state should
admit of no addition to, or alteration of his regulations, he wisely
stopped up the sources from which new laws spring. Commerce, and its
instrument, money, were prohibited; all arts, except those absolutely
necessary, were interdicted, and the people, by constantly living and
eating in public, were not only accustomed, but necessitated to content
themselves with what simple nature requires. By these means (and by
these only, or by others similar to these, could it be accomplished)
Lycurgus gave a firmness and stability to his republic, which continued
for several hundred years, until conquest introduced wealth, and its
necessary attendants, which soon eat out the vitals of that singular
constitution[37].
The law of Moses, likewise, was invariable, and admitted of no additions
or alterations; and as, from the peculiar circumstances of the country,
and its situation, there was no danger of an accumulation of wealth from
foreign commerce, so were the domestic regulations inimitably calculated
to prevent a great inequality of circumstances, and to oblige the nation
in general to a plain and simple life. All usury among the Israelites
was prohibited, the lands were alienable no longer than to the year of
jubilee, at which time they returned free to the original proprietor or
his heirs; and, by the invariable rules of descent, and the continual
dividing of estates among all the males in equal degree, every man was
proprietor of some small patrimony, and consequently obliged to live in
a frugal and laborious manner[38]. Athens, on the contrary, the most
commercial and the richest city of Greece, abounded, above all others,
in a multiplicity of laws, and those, for the causes already mentioned,
perpetually varying and changing. Rome, while it continued a mere
military state, was contented with a few, and those such as were short
and plain; but when, by the conquest of Carthage, of Greece, and of Asia,
floods of wealth were poured into Italy, the necessary consequences soon
followed. New laws were continually made, which, being as continually
eluded, of course gave birth to others. Every new conquest brought an
accession of riches, and became a source of farther regulations: until,
at length, they swelled to such a magnitude, as to become, in the time
of Justinian, an intolerable burthen: For, to say nothing of the laws
themselves, the _senatus consulta_, the _plebiscita_, the _edictum
perpetuum_, and the constitutions of the emperors, which were very
voluminous, the bare commentaries of the lawyers of authority amounted to
three thousand volumes.
If we look around the nations that now inhabit Europe, we shall find that
the same causes have constantly, every where, produced the same effect.
How few, how short, how plain, and simple, were the antient laws of the
Saxons, the Franks, the Burgundians, the Goths, and the Lombards, while
each of them continued a plain and simple people[39]. As they increased
in arts and wealth, as their kingdoms grew more powerful, either from
internal peace and commerce, or by the melting of different sovereignties
into one, we might see the laws gradually increase in number and in
length; this arose from the necessity their legislators were under,
from the different circumstances of the times and people, to enter into
details of which their ruder ancestors had no conception: and this
augmentation hath ever been in proportion to the wealth and power of the
people that was obliged to admit it; as might easily appear by fixing on
any one period, and by comparing the laws of those nations where arts and
trade were fully established, with those of others where they had not yet
got so firm a footing.
Within these last two hundred and fifty years, the inhabitants of Europe
in general, particularly those that have any considerable share in
universal commerce, seem to have been seized with an epidemical madness
of making new laws; insomuch that there is scarce a state whose laws,
since the year 1500, are not equal, if not superior, in number and bulk,
to those made in many preceding ages: an effect owing, partly to the
decay of the old military system, and to the necessity every government
was under, to have recourse to new methods for its support, when that
failed; but principally to the discoveries of America, and of the passage
to the East Indies; which, by the peaceful arts of industry and trade,
have poured into modern Europe an accession of treasure, equal to what
was amassed in Italy by conquest and rapine under the Roman empire. As
Britain, during this interval, shared more largely than any other country
in this vast increase of wealth, it is not surprising that her later laws
have been numerous and voluminous in proportion.
But there is another cause peculiar to these nations, which hath not a
little contributed to the same end, namely, that happy constitution, and
that liberty in which we so justly glory. A constitution which lodges
the supreme, the legislative power in three different hands, each of
which (if considered apart) hath an interest separate and distinct
from the other two, must require a variety of wise regulations, so to
ascertain their respective rights and privileges, and so to poise and
balance them, as to put it out of the power of any one to overtop the
others. A constitution that admits the people, by representation, to
so considerable a share of power, must have many laws to determine the
manner of elections, and the qualifications both of electors and elected.
A constitution that makes the preservation of political freedom its
great object, and that aims to defend the life, liberty, and property of
the meanest individual, not only against others of their own rank, but
even against the executive power of the society itself, must have many
extraordinary fences, and barriers, to protect the weak from the mighty.
Such a constitution must, more particularly than others, restrain its
judges, the dispensers of justice, who are, at the appointment of the
crown, to follow the strict letter of the positive laws; lest, under the
pretence of explaining and extending them, the most valuable privileges
of the people might be betrayed, or rendered illusory. And this very
restraint, so necessary in such a form of government, will eternally (as
new cases arise, which, not being in the contemplation of the legislature
at the time, were not comprehended in the words of the old provisions)
occasion the framing of new ones.
The state and condition of these kingdoms are such, therefore, as
necessarily require a great number of laws; and heavy as the burden of
them may seem, it should be borne with chearfulness, by all who esteem
the conveniencies of life, and the perfection of arts, more than a rude
and simple state of nature; who think wealth more eligible than poverty,
and power than weakness; or lastly, who prefer our excellent form of
government, and its mild administration, to the despotic tyrannies of
Asia, or the more moderately absolute monarchies of Europe.
From what hath been already observed, the difficulties attending this
study in these kingdoms will readily appear; but these, instead of
discouraging, should animate every gentleman, and inspire him with
resolution to surmount them; when he considers them as inseparable from
the happy situation in which we are placed, and that the character of an
upright and skilful lawyer is one of the most glorious, because one of
the most useful to mankind; that he is a support and defence of the weak,
the protector of the injured, the guardian of the lives and properties of
his fellow citizens, the vindicator of public wrongs, the common servant
both of prince and people, and, in these countries, the faithful guardian
of those liberties in which we pride ourselves, and which the bounteous
Creator bestowed originally on all the sons of Adam, and would have
continued to them, had they continued worthy of the blessing.
From hence, likewise, abundantly appears the necessity of proper methods
being pointed out for the study of the laws, and of proper assistance
being given to the youth intended for this profession. This was always
allowed, and for this purpose were the inns of court originally founded;
and it must be owned, that in ancient times, they, in a great measure,
answered the end. Their exercises, in those days, were not mere matters
of form, but real tests of the student’s proficiency. Their readers laid
down, in their lectures, the principles of particular parts of the law,
explained the difficulties, and reconciled the seeming contradictions,
though, at the same time, it must be owned, too many of them exerted
themselves in displaying their own skill and depth of knowledge in the
profession, rather than in removing the obstructions, and smoothing
the ruggedness which are so apt to discourage beginners, and which
all beginners must meet in this untrodden path, without a guide. But,
since the time that these aids have been there laid aside, and that, in
the midst of so great and so rich a city, any degree of restraint or
academical discipline, to keep the students constantly attentive to the
business they are engaged in, hath been found impracticable, it has been
the wish of every considering person, that the elements of this science
should be taught in some more eligible place, where the students may at
once have the benefit of a proper method of instruction, and by proper
regulations be obliged to improve themselves in a study so important both
to them and the public.
That the universities, the seats of all other branches of learning, are
the places most fit for this purpose, hath been so fully proved by Mr
Blackstone, in his preliminary lecture, not long since reprinted in this
kingdom, that it will be much more proper and decent for me to refer
gentlemen to that excellent performance, than to weaken his arguments,
by repeating, in other words, what he has demonstrated, with such force
of reason, and elegance of expression. I shall only add to what he hath
observed, that every other nation of Europe hath admitted the profession
of their municipal laws into their universities, and that the same hath
been the opinion and practice of almost every age and country, as far
back as the lights of history extend. Were not the laws of Egypt, as well
as their religion, physick, history, and sciences, taught in the colleges
of their priests? It is allowed by all, that the principal employment in
the schools of the prophets was the study of the law of Moses; and, to
come to more modern times, the very first universities that were ever
founded by royal authority, were the works of Roman emperors, and erected
merely for this profession. The famous academies of Rome for the west,
and of Berytus for the east, furnished that extensive empire with a
constant succession of excellent lawyers, whose names, and the fragments
of whose works were held in the highest honour, until the inundation
of barbarians from the north of Europe, and the prevailing arms of the
Saracens in the east extinguished the Roman government in those parts.
But that of Constantinople, founded soon after the translation of the
seat of empire thither, had a more happy destiny, flourished with
distinguished reputation to these later ages, and perished not, but
with the empire itself, when that city was taken by the Turks. Nay, so
sensible were the Arabs themselves, who destroyed the Roman academy of
Berytus, of the utility of such institutions, that, for their own law,
they erected others of the same nature in Bagdad[40].
Another powerful reason for laying the foundation of this branch of
learning in these seats of literature, arises from the great utility, or
rather, indeed, necessity, that all gentlemen bred in them are under, of
gaining a general idea, at least, of the principles and practice of the
law of their country. How advantageous this would be to every rank of
gentlemen, whether legislators, magistrates, divines, or jurymen; and to
all, in short, who have any property, to preserve, or transmit, or who
have wishes or desires to acquire any, may be seen at large, illustrated
by Mr Blackstone in the same performance. And indeed, if, before the
attempt, there could be any doubts of the propriety of beginning this
study in an university, the extraordinary success of his lectures in
Oxford, and the high reputation he hath so justly acquired thereby, leave
no room for entertaining such at present. For though much of both must
be attributed to the singular abilities of that gentleman, yet it must
be allowed that the most skilful gardener cannot make a tree flourish in
a soil unnatural to its growth. With the deepest gratitude, therefore,
should the members of this university acknowledge the munificence, and
the wisdom of our present most gracious Sovereign, who established the
present foundation for the benefit of the youth of this kingdom.
But if the importance of this institution to the public be considered,
together with the difficulties attending the just execution of it, when
these difficulties are enhanced by the novelty of the attempt, when the
public attention is engaged by that very novelty, and when the future
success of the foundation, may, perhaps, in some measure, depend on the
opinion conceived of it at the beginning; he must, indeed, be possessed
of a very overweaning opinion of his own abilities, who can undertake so
arduous a task, without feeling strong apprehensions at the first setting
out. All the return the person thought worthy by this learned body to
fill this chair can make them for so high an honour, and so important
a trust, is to assure them, that the utmost care, and the greatest
exertion of what knowledge and abilities he possesseth, shall be employed
to answer the ends proposed, and to justify, as far as in him lies, the
choice they have made. And if the young gentlemen for whose benefit these
lectures are designed, possessed with a just notion of the great utility
to themselves, and their country, of the study they are engaged in, will
exert that industry, for the honour of their mother university, which
hath made her so long famous for other branches of learning; he doubteth
not but his weak endeavours at the first essay, will not only merit
indulgence, but in the end be crowned with considerable success. On their
assiduity, as well as upon his skill, must the success of the undertaking
depend.
In the next lecture the grounds and reasons of the plan proposed, as most
proper for the commencing this study in this university, shall be laid
open, in hopes that the students will proceed with the more alacrity, if
they can be once convinced they are set in the right track, and that, by
the professor’s laying before the public the inducements he had to prefer
this before any other, he may acquire information from the skilful of
its errors and imperfections, and, consequently, alter it, so as most
effectually to answer the useful ends of the institution.
LECTURE II.
_The plan of the present undertaking—The particulars in which
it differs from that adopted by Mr Blackstone—The different
situations of the Universities of Oxford and Dublin—The chief
obstructions which occur to the student of the English laws—The
methods which may be employed to remove them—The law of_ things
_more proper to introduce a system of jurisprudence than the
law of_ persons—_The law of_ things, _or of real property in
England, has its source in the feudal customs—The necessity
of a general acquaintance with the principles of the feudal
polity—The method in which it is proposed to treat of it._
Having, in the preceding lecture, shewn the necessity of a proper method
being pointed out for the study of the laws of these kingdoms, from the
utility, as well as multiplicity of them; and having explained from
whence that multiplicity arises, and that it is inseparable from the
happy situation we are placed in; and having acknowledged the great
advantage the students of Oxford have received from Mr. Blackstone’s
lectures, it will doubtless be thought necessary, that something should
be said by way of illustration of the plan proposed to be followed here,
and in justification of its departure from the excellent one which
that gentleman has given us in his analysis. The method of instruction
intended to be pursued in this place is not proposed as more perfect, or
absolutely better in itself, but as one that appears more adapted to the
circumstances of our students; and as it will be allowed, that his course
of lectures, in the manner they proceed, hath some great advantages as to
the finishing a lawyer, which cannot be attained, and therefore should
not be attempted here, it will be particularly the duty of your professor
to compensate for those, by guarding against some inconveniencies, which
the extensiveness of his plan must of necessity subject young beginners
to. I shall, therefore, proceed briefly to compare the situation of the
two universities, in hopes, by that consideration, in some measure to
vindicate the several particulars wherein I have chosen to vary from his
scheme. The attendance on the courts of Westminster-Hall, when once a
gentleman hath read and digested enough to listen with understanding to
what he there hears, hath, for a succession of ages, been allowed to
be, and it must be owned is, the most effectual means of accomplishing
a lawyer, and fitting him for practice. In this respect Oxford, in
her proximity to Westminster, hath certainly an advantage, as to her
law students of above two years standing, who may at that time be
supposed capable of improvement by the arguments in the courts of law;
as she is thereby rendered capable of conjoining those two excellent
methods of instruction. Mr. Blackstone was fully sensible of this happy
circumstance, and, accordingly, his scheme is adapted to it. All the
lectures there are appointed at times that fall in the law vacations, and
the course is general and diffusive, not calculated merely for attendants
of the first and second years, but adapted also to those of a more
advanced standing, and consequently, in a manner equally copious, or very
nearly so, illustrates every one of the several branches of the English
law. But this method, however excellent in itself, and most eligible
where gentlemen can have an opportunity of attending the professor for
several successive years, must, on the other hand, be allowed to labour
under some inconveniencies, especially as to those who are yet novices,
which, as it should be the particular care of the professor here to
obviate, it cannot be improper briefly to point out.