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.