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same race of freemen, and originally possessed of similar free institutions, fallen under the withering influence of despotism-a despotism so baneful in its effects upon their spirit, and their intelligence, that even in this day when we hear so much said of the “ march of the human mind,” recent events shew that although they feel the oppression and writhe under its grasp, they have neither the power to atchieve their freedom; nor, having by any means acquired it, the virtue to preserve, or even the capacity of enjoying it.
And this suggests another advantage of laws founded upon custom. The very idea of a custom necessarily supposes freedom of choice; and this was peculiarly the case with our Saxon progenitors, whose bold and free spirits would submit to no restrictions but such as were imposed by universal consent for the public good. And the end and object of such restrictions was not to aggrandize the power of their superiors, but to preserve to each, even the meanest individual, the greatest possible liberty, and security of person and property; giving to their chief no more power than was necessary for the general welfare. Very different from those, were the Roman laws which gave all power to the head of the state, and taught the subjects to consider such protection and immunities as they enjoyed, as flowing from his grace and favor; he being of right the sole author and interpreter of the law.
It would be impertinent to enlarge upon the different results which might be expected to proceed from such opposite principles, since we have the sure testimony of experience to instruct us. Are severe laws required by the executive here, to meet a temporary emergency? They must be submitted to the consideration of an assembly of freemen enjoying the utmost liberty of speech, and, if passed, they must be carried against the best exertions of a powerful, active, and zealous opposition; and, having passed through this ordeal, they are submitted to, as we submit to a rough medicine;-being convinced of its necessity, we take it, though, perhaps, with a few wry faces. And, as the convalescent thinks it his first business to turn out the doctor, so do we not rest satisfied, the occasion being past, until the restrictions that have been imposed are removed, and our freedom is recovered. In other countries, however, where the principles of the Roman laws have been established, all ordinances and regulations, good and bad, must be smilingly received as from the “paternal heart” of their prince, and the best qualities of a good citizen there, are, a supple back, a prudent tongue, and an inexpressive countenance, --inexpressive at least of every thing like dissatisfaction. Nothing can be established into a custom which is not
received with good-will; nay, customs can hardly originate except in a sense of mutual advantage, and laws thug founded, carry with them internal evidence of liberty.
The third advantage of laws founded upon immemorial usage, which I shall mention, and which, indeed, suggested to me the idea of this Essay, is this, that as they originated in a rude and inartificial state of society, they are, for the most part, simple rules of action, resting upon plain maxims of right, upon such first principles as unavoidably force themselves upon the common sense of mankind, as soon as they are sufficiently advanced towards civilization, to feel the necessity of being subjected to restrictions, in order to enjoy quiet possession of their goods, security of person, and liberty of action. I say, these first principles force themselves upon the common sense of men in a simple state of society, though it afterwards becomes a matter of science to trace them through the mazes of art, and the infinite variety of combinations and oppositions of interests, which a more advanced state of civilization and refinement present.
The recorded decisions and judgments of ages teach us the just application of these simple rules of action, and afford us precedents analogous to almost every possible case that can arise, it being a maxim that no judgment shall have the authority of a precedent which is contrary to reason or morality; and when new questions present themselves, to which no former judgment is applicable, the original law or custom, and the principles upon which it is founded, supply a test or standard to guide to a correct decision.
When the Divine Author of our religion came into the world, the greater part of mankind were not only sunk in gross superstition, but their morals were corrupt, and the very principles of their laws corruption; and even the Jews, although observant of the letter, had entirely perverted the spirit of those laws which had been communicated to them by God himself. It was a part of our Saviour's mission to correct these evils, and this he effected; at least, he laid the sure foundation of a cure, not by promulgating a new code, professing to reach the details of common life, but simply by reproclaiming the two great commandments, " Thou shalt love the Lord thy God with all thy heart, and all thy mind, and thy neighbour as thyself;" and he illustrated these commandments by various parables, which at once displayed their principles, and taught their application to the ordinary occurrences of life. A purer morality was thus established, which has worked out better systems of law.
Much in the same way, I think, do laws operate which are handed down by tradition from times of high antiquity; their
authority and binding force are founded, not in the precise terms of the law, as is the case with written laws, but in the reason of the rule of action established, in the consideration of the end to be obtained, of the evil to be guarded against, or the good to be secured. But it is impossible that modern statutes can participate in any such advantage ; they must necessarily be framed to resist the ingenuity of the lawless, and those whose particular interests they may oppose ; and so various and opposite are the interests arising from the numerous combinations and involutions of society, in its present condition; that it is impossible to legislate without running counter to the interests and inclinations of some. Statutes are therefore unavoidably clogged with provisoes, exceptions, and clauses, difficult to reconcile with each other, not to mention such faults and inaccuracies as arise from inadvertence, haste, inattention, or ignorance. And we must, as I have already hinted, necessarily be bound in a great degree by the exact language and terms of the statute. Notwithstanding the liberal mode of interpreting acts of parliament, prescribed by our Common Law, it is not at all unusual to hear our judges say, when pressed as to the severe operation of a particular law: “it is not our office to make laws, but to see them administered.” I cannot shew the inferiority, in this point of view, of statutes or written law, to the common or unwritten law, in stronger, and certainly not in so elegant language, as it has been described by the learned author whom I have before introduced to you. Justice Blackstone says, “The Common Law of England has fared like other venerable edifices of antiquity, which rash and inexperienced 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 provisoes and additions, and many times on a sudden penned, or corrected by men of very little judgment in law. This great and well experienced judge (Sir Edward Coke) declares, that, in all his time, he never knew two questions made upon rights merely depending upon the Common Law, and warınly laments the confusion introduced by ill-judging and unlearned legislators.'
If a constitution of laws founded upon ancient customs be
contrasted with new written codes, however wisely on abstract principles they may be constructed, it is obvious, if I am at all right in the principles I have laid down, that the former must exclusively possess great and inestimable advantages. Nothing but time, age, and experience, can either accommodate such new laws to the genius and habits of the people, or conciliate the people to their operation. Even after the good have been brought to acknowledge the superiority of the new principles, it will be long before they can be weaned from old habits and prepossessions, which affect the minuter occurrences in the every-day business of life; and it will be still more difficult to gain the allegiance of the ill-disposed, who profited by the vices and defects of the old laws, and who must be more restrained by the new, if the new are good for any thing, for how else can they be beneficial.
With regard to the operations of courts of justice, nothing can compensate for the loss of that veneration which antiquity alone can give to them, and to the laws they have to administer. Without it, no confidence is placed in their decisions, and the consequences are, endless appeals; the losing party being ever willing to hope he may be able successfully to contest before another tribunal, a judgment not sanctioned by established precedent; and to reverse a new decision. Thus, while new systems promise the benefits of cheap law, and judgment without delay, they unavoidably deceive in both respects, from the numerous appeals they occasion, and must allow, if justice be not denied; whilst it may
be expected that the uncertainty that must exist as to what is, and what is not law, until practice has familiarized men to their operation, will occasion a great increase in the number of questions to be submitted to judicial decision.
I venture then to assert that laws, founded upon ancient customs, handed down by tradition from an early stage of society, and preserved in the records of their application and practice, possess, inherently and necessarily, great and important advantages, in which modern written codes of law cannot, in any degree, participate; and that in the highest sense it may be said of the Common Law of England, that it is agreeable to the genius and habits of the people, that it is at once the support and preserver of our liberties, and a standing evidence, not to be gainsayed, that freedom is out birthright, and has ever been maintained by our ancestors. In the course of its long and venerable career, a store of human wisdom has been accumulated, and preserved in the records of our courts of justice and reports; sufficient to afford just grounds for decision, on almost every possible question, that can become the object of jurispruderice; or,
should new cases arise, as indeed must ever be expected from the endless changes in human action, it still supplies sound principles to guide, and a correct standard whereby to prove our judgment.
I have said that the Common Law of England is the support and preserver of our liberties; they have been many times and variously assailed, by the despotism of the prince, the power of the nobles, and the licentiousness of the people; they have often been for a time obscured and depressed, but eventually they have survived the struggle and prevailed, and they will prevail as long as the equal principles of the Common Law shall be preserved to instruct, and implant in the minds of all orders of men just notions of their several rights, and of their relative duties to each other. Abuses may creep into the practice of our courts and their subordinate offices; the magnificent fabric may be defaced by the accumulation of statutes, but let not the consideration of such defects lead us to undervalue the usefulness and beauty of the main building. Venerate then our excellent constitution, the admiration and envy of the civilized world,-cling to it with affection.
It is a frequent remark that we are apt to slight the good in possession, and it is therefore useful sometimes to consider an i reflect upon its value, lest we should grow indifferent, and carelessly drop it from our hands. And if upon this occasion, I have kindled into activity in the breast of any one the love of his country, or suggested to another a new motive of affection for it, or to another, pointed out a valuable course of reading and enquiry, which he has hitherto overlooked, I shall have satisfied the highest expectation I had built upon this effort, which I desire may be received, as, in the humblest sense of the term, an Essay.
WOULD THE UNIVERSAL DISSEMINATION OF LITERATURE
BE INJURIOUS TO SOCIETY?
It was singular, in a society expressly established to exercise literary talent, that it should be asked-Whether Literature could be too widely disseminated for the interests of Society? Institutions like the present were peculiarly well adapted to excite a love of learning, and a taste for the exalted pursuits of thinking beings; but, if the diffusion of literature were not of illimitable benefit, the encouragement of these societs