« ПредыдущаяПродолжить »
imagine that they can comprehend the most im(portant of all sciences by intuition, and that they possess more refined and exalted ideas of law and justice than those who are daily concerned in the adıninistration of them; for it has been a common custom of late to ridicule the authority of our Profession, and to pronounce that whatever we presume to suggest is nothing but special pleading and OldBailey practice*. .
. But those who are firm in their principles, and
steady * Far be it from me to treat such important departments of the Law of England with disrespect. When forms are essential to the administration of justice, the distinction between form and substance is idle and superfluous. Forms are the scales, without which justice could not equally be distributed: if these were disregarded, uncertainty and confusion would be inevitable. But when forms cease to answer the ends proposed, they ought to be altered by Parliament: our judges cannot legislate.
With regard to the Old Bailey, though I have never had occasion to attend there professionally, yet I can declare that I have never heard that any thing was attempted by the Gentlemen of the Profession who practise there, which the severest of the Judges would decline, if he were at the bar, and the case required it. And as a learned Recorder and his Majesty's Judges preside upon the bench, and the prisoners are tried by respectable juries from the city of London according to the Law of England, one may fairly conclude that justice is administered there with as much purity as in any Court under "heaven.
steady to their purpose, will never sacrifice the liberty of their country to the popularity of the day, or cut the Law of England, like a birth-day suit, to the fashion of the times.
We must bear patiently to be taunted with our inferiority in every debate, in which from our profession it is expected we should excel. We have not the choice which Dr. Johnson, in his younger years, was eager to adopt :—“When I was a boy," says he, “I used always to chuse the wrong side of a debate; because most ingenious things, that is to say, most new things, could be said upon it.”
An Orator, who is not confined by the rules and authorities of Law, can find a thousand entertaining arguments to support what he has advanced ; and by appealing to the passions and good sense of his audience, he is sure to conciliate the favour and gain the applause of the vulgar and undiscerning.
But the Lawyer must rely entirely upon his case. and bis authority; which though it sometimes may be absurd and perquam durum, yet will adınit of one argument sufficiently convincing with men of sense, that it is the lex scripta, or the law of the land. Of late we have forgotten those venerable records, which my Lord Coke says it cheers one to
think of, and which are the noble declarations of the rights of Englishmen.
But let us ever remember, that in the first of our written laws we find,
Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur de libero lenemento suo, vel libertatilus, vel liberis consuetudinibus suis, aut ullagetur, aut exulet aut aliquo modo destrualur, nec super eum ilimus, nec super eum mittemus, nisi per LEGALE JUDICIUM PARIUM SUORUM, VEL PER LEGEM TERRÆ.—Magna Charta.
Who that has the spirit of an Englishman can read this without involuntarily pressing his hand upon his heart, and imprecating the vengeance of Heaven upon the violators of it. Notwithstanding the coarseness of the language, how poor and feeble is the verliage of the modern declarations of Rights, compared with this first Great Charter of the liberties of Englishmen. But it has been discovered, that our ancestors have been guilty of a gross error ; and what they thought they had transmitted to us as a treasure, is in fact an incuinbrance and a nuisance. For how can the Lex Terræ be consistent with reason, justice, or liberty, which would put an end to a trial that had continued three years, or which would confine the prose
cution of that trial to the narrow rules of evidence observed in the inferior courts. Those who are unwilling to admit that the House of Lords upon the present occasion should be tied down to laws and rules, seem to have an illustrious instance for their argument, —
-“ I beseech you Wrest once the laws to your authority! To do a great right, do a little wrong."
But Shakspeare, that great master of nature(and the best Governments are most conformable to nature*, or to the particular circumstances under which men are placed by nature)—will always be found to make his best and wisest characters express the truest and justest sentiments of law, liberty, and government, He firmly and boldly
answers, * It is not my intention to make any insinuation in favour of that contemptible expression “ The Rights of Man,' which, in my humble opinion, is disgraceful to the theory and philosophy of an enlightened people. It leaves a convenient ambiguity to sedition, to interpret it either the rights of a savage or a civilized man; and in one sense at the least it is equally subversive of the best Governments, as the worst.-When men flock together, government is as necessary and as natural to the state of man, as raiment and habitations.
This note stood thus in the first edition. I have not changed my opinion upon the subject; but the Reader will soon see it largely explained and illustrated in a work I have now in the press. com
answers, and in the character too of a Lawyer-
Can alter a decree established.
Will rush into the State :-it cannot be.” One of the great sources of liberty is the certainty of the Law; in which the subject can repose with confidence and security, as he foresees the certain consequences of all his actions.
It is the peculiar characteristic of the English Government to abhor discretion ; which is equally slavery, whether it be pronounced by one, or the majority of 700. A power to dispense with law is alike dangerous and detestable, whether it be vested in the King, or any other part of the Government less than the supreme power of the State. collected in the King, Lords, and Cominons.
No sentiment has yet been uttered in or before the National Assembly of France more worthy of a great and a free people than this, viz. Let the track of the Law be pursued, though it should lead over burning ploughshares*.
* A declaration made before the National Assembly by the citizen soldiers of Sainte Opportune, Oct. 7, 1791.
Since that time to the present year 1820, this is the only sentence which I have seen worth importing from France.