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In his notice of universal justice, in the Advancement of Learning, he says: "For the more public part of government, which is laws, I think good to note only one deficience; which is, that all those that have written of laws have written either as philosophers or lawyers, and none as statesmen. As for the philosophers, they make imaginary laws for imaginary commonwealths, and their discourses are as the stars, which give little light, because they are so high. For the lawyers, they write according to the states where they live; what is received law, and not what ought to be law; for the wisdom of a law-maker is one, and of a lawyer is another. For there are in nature certain fountains of justice, whence all civil laws are derived but as streams; and, like as waters do take tinctures and tastes from the soils through which they run, so do civil laws vary according to the regions and governments where they are planted, though they proceed from the same fountains. Again, the wisdom of a lawmaker consisteth not only in a platform of justice, but in the application thereof; taking into consideration by what means laws may be made certain, and what are the causes and remedies of the doubtfulness and incertainty of law; by what means law may be made apt and easy to be executed, and what are the impediments and remedies in the execution of laws; what influence laws touching private right of meum and tuum have into the public state, and how they may be made apt and agreeable; how laws are to be penned and delivered, whether in texts or in acts, brief or large, with preambles or without; how they are to be pruned and reformed from time to time, and what is the best means to keep them from being too vast in volumes, or too full of multiplicity and crossness; how they are to be expounded, when upon causes emergent, and judicially discussed; and when upon responses and conferences touching general points or questions; how they are to be pressed, rigorously or tenderly; how they are to be mitigated by equity and good conscience, and whether discretion and strict law are to be mingled in the same courts, or kept apart in several courts. Again, how the practice, profession, and erudition of law is to be censured and governed; and many other points touching the administration, and, as I may term it, animation of laws. Upon which I insist the less, because I propose, if God give me leave, having begun a work of this nature in aphorisms, to propound it hereafter, noting it in the meantime for deficient." Vol. ii. p. 296. The reasons why men of learning are supposed not to be good reformers, may be collected from the objections by politicians to the advancement of learning, who think that the discourses of the philosopher are like the stars which give little light, because they are so high. The politician says learning doth mar and pervert men's dispositions for matter of government and policy, in making them too curious and irresolute by variety of reading, or too peremptory or positive by strictness of rules and axioms, or too immoderate and overweening by reason of the greatness of examples, or too incompatible and differing from the times, by reason of the dissimilitude of examples. Vol. ii. p. 14.

Although Lord Bacon in these observations sanctions the common but erroneous opinion that philosophers are utopian; that they are so ignorant of human nature, as, by hasty generalization, to suppose that all men are immediately capable of the same perfection, he does not so suppose in another part of the Advancement of Learning, when speaking of the objections to learning from the manners of learned men. See vol. ii. page 15.

If Lord Bacon is right in supposing that, in his time lawyers were not the best improvers, it may be well deserving consideration, whether the supposition is not increased in the present times. Lord Bacon, when enumerating the objections by politicians to the advancement of learning, says, "that the advancement of learning has a tendency to divert men of intellect from active life." His words are, "it doth divert men's travels from action and business, and bringeth them to a love of leisure and privateness; and that it doth bring into states a relaxation of discipline, whilst every man is more ready to argue, than to obey and execute." (a) If this is true, it will, perhaps, follow, that as society advances in knowledge, the bar will not abound with men of the greatest

(a) Vol. ii. p. 14.

attainment. The pleasures of intellect being greater than the pleasures of ambition or of wealth. Cicero says: "Sed quid ego hæc, quæ cupio deponere, et toto animo atque omni cura piλoσopełv? Sic, inquam, in animo est; vellem ab initio." To the same effect Mr. Burke says, Indeed, my lord, I greatly deceive myself, if, in this hard season, I would give a peck of refuse wheat for all that is called fame and honour in the world. This is the appetite but of a few." So says Mr. Burke; but, as knowledge advances, it may, unfortunately for activity in government, be the appetite of many; and if so, the common ranks of life will not be filled with the ablest men. William Wordsworth, Robert Southey, Mr. Robert Smith, Sir James Mackintosh, and Sir William Grant, are instances now before me of eminent men who have lately shrunk from their laborious occupations; and when the present mass of law is considered; when it is remembered that since the year 1800 there have been thirty volumes of statutes, and perhaps one hundred volumes of reports, the professional prospects to men who know the shortness and value of life, will not in our times be considered attractive by men of the greatest attainment.

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Lord Bacon attempts to answer this objection; whether satisfactorily or not is another question. He says: "And that learning should take up too much time or leisure: I answer; the most active or busy man, that hath been or can be, bath, no question, many vacant times of leisure, while he expecteth the tides and returns of business (except he be either tedious and of no dispatch, or lightly and unworthily ambitious to meddle in things that may be better done by others) and then the question is but, how those spaces and times of leisure shall be filled and spent; whether in pleasures or in studies; as was well answered by Demosthenes to his adversary Eschines, that was a man given to pleasure, and told him that his orations did smell of the lamp: Indeed,' said Demosthenes, there is a great difference between the things that you and I do by lamp-light.' So as no man need doubt that learning will expulse business; but rather it will keep and defend the possession of the mind against idleness and pleasure, which otherwise at unawares may enter, to the prejudice of both." (a)

No man knew better, none perhaps so well, as Lord Bacon, that intellectual pleasures are the most exquisite pleasures which an intellectual being is capable of enjoying. He expresses this in various parts of his works. "God hath made all things beautiful or decent in the true return of their seasons; also he hath placed the world in man's heart: yet cannot man find out the work which God worketh from the beginning to the end, declaring, not obscurely, that God hath framed the mind of man as a mirror or glass, capable of the image of the universal world, and joyful to receive the impression thereof, as the eye joyeth to receive light, and not only delighted in beholding the variety of things, and vicissitudes of times, but raised how to find out and discover the ordinances and decrees which throughout all these changes are infallibly observed." (b)

This being the case, what prospect is there that men of the greatest attainments will delve in law's laborious mine."

Mr. C. Butler, in his Essay on the Life of Chancellor de l'Hôpital, says, "When a magistrate, after the sittings of the court, returned to his family, he had little temptation to stir again from home. His library was necessarily his sole resource; his books his only company. To this austere and retired life, we owe the Chancellor de l'Hôpital, the President de Thou, Pasquier, Loisel, the Pithous, and many other ornaments of the magistracy." I am afraid this is not now to be expected in England.

Proper use of Lawyers in legal Improvement. Although lawyers are not perhaps the best improvers of laws, their use in expressing intended improvements cannot be doubted. "If the lawyer, instead of abounding with knowledge, might be described as he was described two thousand years since, 'leguleius quidam cautus, et acutus praeco actionum, cantor formularum, auceps syllabarum,' these very properties would be made subservient to the common good in modelling the laws which wisdom suggests."

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The duties of a lawyer, with respect to improvement of the law, may, possibly, be thus stated, after the manner of Fuller:

1. Having shared the fruits he endeavours to strengthen the root and foundation of the science of law.

2. He resists injudicious attempts to alter the law.

Knowing that zeal is more frequent than wisdom, that the meanest trade is not attempted without an apprenticeship, but every man thinks himself qualified by intuition for the hardest of all trades, that of government, he is ever ready to resist crude proposals for amendment. His maxim is, To innovate is not to reform."

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Lord Bacon, zealous as he was for all improvement; believing, as he did, in the omnipotence of knowledge, that "the spirit of man is as the lamp of God, wherewith he searcheth the inwardness of all secrets ;" and branding the idolaters of old times as a scandal to the new-says, It is good not to try experiments in states, except the necessity be urgent, or the utility evident: and well to beware that it be the reformation that draweth on the change, and not desire of change that pretendeth the reformation that novelty, though it be not rejected, yet be always suspected and, as the Scripture saith, that we make a stand upon the ancient way, and then look about us, and discover what is the straight and right way and so to walk in it.'"

3. He does not resist improvement of the law.

Tenacity in retaining opinion, common to us all, is one of Lord Bacon's Idols of the Tribe,' and attachment by professional men to professional knowledge, is an idol of the den common to all professions. "I hate the steam boat," said an old Greenwich pensioner; "it is contrary to nature." Our advocate, therefore, is on his guard against this idolatry: he remembers that the lawyers, and particularly St. Paul, were the most violent opposers of christianity, and that the civilians, upon being taunted by the common lawyers with the cruelty of the rack, answered "non ex sævitia sed ex bonitate talia faciunt homines.' Nor does he forget the lawyer in the Utopia, who, when the Archbishop of Canterbury, venerable for his age and learning, said, " Upon these reasons it is that I think putting thieves to death is not lawful," the counsellor answered, "That it could never take place in England without endangering the whole nation. As he said this, he shook his head, made some grimaces, and held his peace.

4. He is aware that lawyers are not the best improvers of law.

During a debate in the House of Lords June 13, 1827, Lord Tenterden is reported to have said that it was fortunate that the subject (the amendment of the laws) had been taken up by a gentleman of an enlarged mind (Mr. Peel) who had not been bred to the law, for those who were, were rendered dull by habit, to many of its defects. And Lord Bacon says, "Qui de legibus scripserunt, omnes, vel tanquam philosophi, vel tanquam jurisconsulti, argumentum illud tractaverunt. Atque philosophi proponunt multa, dictu pulchra, sed ab usu remota. Jurisconsulti autem, suæ quisque patriæ legum, vel etiam Romanarum, aut Pontificiarum, placitis obnoxii et addicti, judicio sincero non utuntur, sed tanquam e vinculis sermocinantur. Certe cognitio ista ad viros civiles proprie spectat; qui optime norunt, quid ferat societas humana, quid salus populi, quid æquitas naturalis, quid gentium mores, quid rerumpublicarum formæ diversæ : ideoque possint de legibus, ex principiis et præceptis, tam æquitatis naturalis, quam politices, decernere."

5. He resists erroneous modes of altering bad law.

Lawyers have a tendency, instead of inquiring whether the principle of a law is right, to alter upon the assumption that the principle is well founded.

In 1809 Sir Samuel Romilly proposed to alter the law in bankruptcy, by which a creditor has an arbitrary power to withhold his consent to the allowance of the certificate, by enabling the debtor, after the lapse of two years, provided there was a large majority in number and value of creditors who had signed the certificate, to call upon his creditor to shew cause why the certificate should not be allowed. Sir Samuel thought, that the principle of the law was erroneous; that it had a tendency to prevent a full disclosure of the estate, from the fear of

irritating creditors by exposure: and to prevent the obtaining possession of the estate after disclosure, by rendering the witness incompetent: and that it had a tendency to produce bribery and perjury; that, even if a creditor ought to have a reasonable time to gratify his injured feelings, the time ought to be limited; and he thought that the law, giving this power to an irritated individual, would be perverted by some of the many bad passions, which ought not to interfere in the administration of justice, such as resentment; love of power; the hope of bribery, against which the legislature had vainly attempted to guard; the hope of concealment; the hope to prevent the bankrupt's receiving any allowance; the hope to prevent his being a witness; or the fear of competition in trade: and he stated this to be the law in Holland, where commercial legislation is well understood. The bill passed the House of Commons: it was rejected in the Lords, upon a proposal by Lord Eldon, (who was then Chancellor,) that the requisite number and value of signatures should be reduced from four-fifths to three-fifths.

About the same time Sir Samuel proposed that the law by which the stealing to the amount of five shillings privately in a shop was punishable by death, should be altered, as it was founded on an erroneous principle. It was suggested that the punishment ought not to be diminished, but the amount of the goods stolen increased.

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In various of the acts for the relief of insolvent debtors, which passed to mitigate the severe operation of arbitrary imprisonment for debt, the reason assigned in the preamble was, that the gaol was too full. The following is a specimen 6 Geo. III. c. 70. Whereas, notwithstanding the great prejudice and detriment which occasional acts of insolvency may produce to trade and credit, it may be expedient, in the present condition of the prisons and gaols in this kingdom, that some of the prisoners who are now confined should be set at liberty; be it, &c.

In May 1827, it was proposed to parliament to alter the law for arrest on mesne process to the sum of 20l. Our advocate therefore resists such attempts, which, instead of meeting, perpetuate the evil, which

"Keep the word of promise to our ear,
And break it to our hope."

6. He assists in the improvement of the law.

While he dwells in doubt, and is in a strait between the ancient error and infant truth, he endeavours to improve himself, but after patient and successful travail after truth, he diffuses the knowledge which he has obtained. Having in the beginning consulted Argus with his hundred eyes, he now trusts to Briareus with his hundred hands.

7. He is not deterred from assisting in the improvement of the law by the fear of worldly injury.

Neither in general conduct nor in particular emergencies, are his plans subservient to considerations of rewards, estate, or title: these are not to have precedence in his thoughts, to govern his actions, but to follow in the train of his duty. In the conclusion of Sir Samuel Romilly's speech in the House of Commons, on the 26th May, 1810, he says, "It is a common, and may be a convenient mode of proceeding, to prevent the progress of improvement, by endeavouring to excite the odium with which all attempts to reform are attended. Upon such expedients it is scarcely necessary for me to say, that I have calculated. If I had consulted only my own immediate interests, my time might have been more profitably employed in the profession in which I am engaged. If I had listened to the dictates of prudence, if I had been alarmed by such prejudices, I could easily have discovered that the hope to amend law is not the disposition most favourable for preferment. I am not unacquainted with the best road to Attorney-Generalships and Chancellorships; but in that path which my sense of duty dictates to be right, I shall proceed; and from this no misunderstanding, no misrepresentation shall deter me.'

8. He is not deterred from endeavouring to improve the law by the censure ever attendant upon attempts to reform.

He knows that the multitude will cry out for Barabbas, and that ignorance has an antipathy to intellect.

"'Tis a rich man's pride, there having ever been

More than a feud, a strange antipathy

Between us and true gentry."

He knows this, but proceeds, secure of his own approbation, and the sympathy of the virtuous and intelligent.

10. If the principle of the law is erroneous, he endeavours to extirpate it, with its attendant injustice and litigation.

If the principles of the laws against usury or witchcraft or widows burning themselves are erroneous, he endeavours to procure their repeal. In these cases he remembers the maxim of Sir Edward Coke, "Si quid moves a principio moveas; errores ad principia referre est refellere." He remembers the old maxim, "He who in the cure of politic or of natural disorders shall rest himself contented with second causes, without setting forth in diligent travel to search for the original source of evil, doth resemble the slothful husbandman, who moweth down the heads of noisome weeds, when he should carefully pull up the roots; and the work shall ever be to do again."

11. If the principle is right, he endeavours to modify it, according to times and circumstances.

If the principle of the laws against usury is well founded, he varies the rate of interest; or in witchcraft he mitigates the severity of the punishment. In these cases he remembers the admonition of Sir Matthew Hale, "We must do herein, as a wise builder doth with an house that hath some inconveniences, or is under some decays. Possibly here or there a door or a window may be altered, or a partition made; but as long as the foundations or principles of the house be sound, they must not be tampered with. The inconveniences in the law are of such a nature, as may be easily remedied without unsettling the frame itself; and such amendments, though they seem small and inconsiderable, will render the whole fabric much more safe and useful."

12. If he is advanced to any office of authority, he uses his power to improve the law.

Sir Francis Bacon was no sooner appointed attorney-general than he dedicated to the king his proposals for compiling and amending the laws of England. "Your majesty," he says, "of your favour having made me privy counsellor, and continuing me in the place of your attorney-general, I take it to be my duty, not only to speed your commandments and the business of my place, but to meditate and to excogitate of myself, wherein I may best, by my travels, derive your virtues to the good of your people, and return their thanks and increase of love to you again. And after I had thought of many things, I could find, in my judgment, none more proper for your majesty as a master, nor for me as a workman, than the reducing and recompiling of the laws of England." And having traced the exertions of different legislators from Moses to Augustus, he says, “Cæsar, si ab eo quæreretur, quid egisset in togâ; leges se respondisset multas et præclaras tulisse;" and his nephew Augustus did tread the same steps, but with deeper print, because of his long reign in peace; whereof one of the poets of his time saith,

"Pace data terris, animum ad civilia vertit

Jura suum; legesque tulit justissimus auctor."

So too, Sir Samuel Romilly was no sooner promoted to the office of Solicitor General, than he submitted to parliament his proposals for the improvement of the Bankrupt Law and the Criminal Law. "Long," he says, "has Europe been a scene of carnage and desolation. A brighter prospect has now opened before us.

"Peace hath her victories

Not less renowned than war."

This note is written in December 1832, when legal reform, having triumphed over the obstacles by which it has for two centuries been resisted, is now nobly

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