A man who is no judge of law may be a good judge of poetry, or eloquence, or of the merits of a painting.
Christianity is part of the law of England.
Lord-Chancellor Eldon: 2 Swanston, 527.
A fixed rule may give rise to occasional deviations from justice; but these amount to nothing more than the price which every member of the community may be called upon to pay for the advantage of an enlightened code. No laws can be framed sufficiently comprehensive to embrace the infinite varieties of human action, and the labours of the lawgiver must be confined to the development of those principles which constitute the support and security of society. He views man with reference to the general good, and that alone. He legislates for man in general,-not for particular cases.
Lord-Chancellor Erskine: Speech in the House of Lords on the Banbury Peerage Case.
I was bred, in my early youth, in two professions [Navy and Army], the characteristic of which is honour. But, after the experience of very many years, I can say with truth, that they cannot stand higher for honour than the profession of the law. Amidst unexampled temptations, which, through human frailty, have produced their victims, the great bulk of the members of it are sound; and the cause is obvious: there is something so beautiful and exalted in the faithful administration of justice, and departure from it is so odious and disgusting, that a perpetual monitor is raised up in the mind against the accesses of corruption. The same protection ought also to apply to us, the highest of the Judges.
Lord-Chancellor Erskine: Speech in the House of Lords, Trial of Queen Caroline, 1820.
Laws were made to restrain and punish the wicked: the wise and good do not need them as a guide, but only as a shield against rapine and oppression: they can live civilly and orderly though there were no law in the world.
To go to law is for two persons to kindle a fire at their own cost to warm others, and singe themselves to cinders; and because they cannot agree as to what is truth and equity, they will both agree to unplume themselves, that others may be decorated with their feathers.
I knew a very wise man that believed that if a man were permitted to make all the ballads, he need not care who should make the laws, of a nation.
Fletcher of Saltoun.
By the original law of nations, war and extirpation were the punishment of injury. Humanizing by degrees, it admitted slavery instead of death: a further step was the exchange of prisoners instead of slavery.
“My lawyer tells me,” returned he, “that I have Salkeld and Ventris strong in my favour, and that there are no less than fifteen cases in point.” -“I understand,” said I, “those are two of your judges who have already declared their opinion.” -“Pardon me,” replied my friend, “Salkeld and Ventris are lawyers who some hundred years ago gave their opinions on cases similar to mine; these opinions which make for me my lawyer is to cite, and those opinions which look another way are cited by the lawyer employed by my antagonist: as I observed, I have Salkeld and Ventris for me, he has Coke and Hale for him, and he that has most opinions is most likely to carry his cause.” -“But where is the necessity”cried I, “of prolonging a suit by citing the opinions and reports of others, since the same good sense which determined lawyers in former ages may serve to guide your judges at this day? They at that time gave their opinions only from the light of reason: your judges have the same light at present to direct them, let me even add a greater, as in former ages there were many prejudices from which the present is happily free. If arguing from authorities be exploded from every other branch of Learning , why should it be particularly adhered to in this? I plainly foresee how such a method of investigation must embarrass every suit, and even perplex the student: ceremonies will be multiplied, formalities must increase, and more time will thus be spent in Learning the arts of litigation than in the discovery of right.”
Oliver Goldsmith: Citizen of the World, Letter XCVIII.
The English laws punish vice; the Chinese laws do more-they reward virtue.
We must remember that laws were not made for their own sakes, but for the sake of those who were to be guided by them; and though it is true that they are and ought to be sacred, yet if they be or are become unuseful for their end, they must either be amended, if it may be, or new laws be substituted, and the old repealed, so it be done regularly, deliberately, and so far forth only as the exigence or convenience justly demands it; and in this respect the saying is true, Salus populi suprema lex esto. He that thinks a state can be exactly steered by the same laws in every kind as it was two or three hundred years ago, may as well imagine that the clothes that fitted him when a child should serve him when he was grown a man. The matter changeth, the custom, the contracts, the commerce, the dispositions, educations, and tempers of man and societies, change in a long tract of time, and so must their laws in some measure be changed, or they will not be useful for their state and condition; and, besides all this, time is the wisest thing under heaven. These very laws which at first seemed the wisest constitution under heaven, have some flaws and defects discovered in them by time. As manufactures, mercantile arts, architecture, and building, and philosophy itself, secure new advantages and discoveries by time and experience, so much more do laws which concern the manners and customs of men.
Sir Matthew Hale: Hargrave’s Law Tracts.
Sir Matthew Hale.
All before Richard I. is before time of memory; and what is since is, in a legal sense, within the time of memory.
Sir Matthew Hale.
All the laws of this kingdom have some monuments or memorials thereof in writing, yet all of them have not their original in writing; for some of those laws have obtained their force by immemorial usage or custom.
Sir Matthew Hale.
According to a juridical account and legal signification, time within memory, by the statute of Westminster, was settled in the beginning of the reign of King Richard the First.
Sir Matthew Hale.
When the wisest counsel of men have with the greatest prudence made laws, yet frequent emergencies happen which they did not foresee, and therefore they are put upon repeals and supplements of such their laws; but Almighty God, by one ample foresight, foresaw all events, and could therefore fit laws proportionate to the things he made.
Sir Matthew Hale.
Jurors are not bound to believe two witnesses, if the probability of the fact does reasonably encounter them.
Sir Matthew Hale.
He who considers what it is that constitutes the force of penal laws will find it is their agreement with the moral feelings which nature has implanted in the breast. When the actions they punish are such, and only such, as the tribunal of conscience has already condemned, they are the constant object of respect and reverence. They enforce and corroborate the principles of moral order by publishing its decisions and executing its sanctions. They present to the view of mankind an august image of a moral administration,-a representation in miniature of the eternal justice which presides in the dispensations of the Almighty.
Robert Hall: Fragment, On Toleration.
It is impossible to enact ignorance by law, or to repeal by legislative authority the dictates of reason and the light of science.
Robert Hall: Modern Infidelity.
Laws will not be obeyed, harmony in society cannot be maintained, without virtue; virtue cannot subsist without religion.
Robert Hall: Fragment, On Village Preaching.
Human laws may debase Christianity, but can never improve it; and being able to add nothing to its evidence, they can add nothing to its force.
Robert Hall: Apology for the Freedom of the Press, Sect. V.
Of Blackstone’s Commentaries it would be presumptuous in us to attempt an eulogium, after Sir William Jones has pronounced it to be the most beautiful outline that was ever given of any science. Nothing can exceed the luminous arrangement, the vast comprehension, and, we may venture to add from the best authorities, the legal accuracy of this wonderful performance, which in style and composition is distinguished by an unaffected grace, a majestic simplicity, which can only be eclipsed by the splendour of its higher qualities.
Robert Hall: Review of Custance on the Constitution.
Ethics is the science of the laws which govern our actions as moral agents.
Sir William Hamilton.
Arguments from inconveniences certainly deserve the greatest attention, and, where the weight of other reasoning is nearly on an equipoise, ought to turn the scale. But if Rule of law is clear and explicit, it is in vain to insist upon inconveniences; nor can it be true that nothing which is inconvenient is lawful; for that supposes in those who make laws a perfection which the most exalted human wisdom is incapable of attaining, and would be an invincible argument against ever changing the law.
Francis Hargrave: Co. Lit., 66.
Of law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world. All things in heaven and earth do her homage,-the very least as feeling her care, the greatest as not exempted from her power: both angels and men and creatures, of what condition soever, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy.
Richard Hooker: Ecclesiastical Polity.
That which doth assign unto each thing the kind, that which doth moderate the force and power, that which doth appoint the form and measure of working, the same we term a law.
The subject or matter of laws in general is thus far forth constant, which matter is that for the ordering whereof laws were instituted.
General laws are like general rules in physic: according whereunto, as no wise man will desire himself to be cured, if there be joined with his disease some special accident; in regard whereof, that whereby others (in the same infirmity but without the like accident) recover health would be to him either hurtful, or at the least unprofitable.
Richard Hooker: Eccles. Pol., b. v. § 9.
God hath delivered a law as sharp as the two-edged sword, piercing the very closest and most unsearchable corners of the heart, which the law of nature can hardly, human laws by no means, possibly reach unto.
As in Scripture a number of laws, particular and positive, being in force, may not by any law of man be violated, we are, in making laws, to have thereunto an especial eye.
The Jews, who had laws so particularly determining in all affairs what to do, were notwithstanding continually inured with causes exorbitant, and such as their laws had not provided for.
Laws, as all other things human, are many times full of imperfection; and that which supposed behoveful unto men proveth oftentimes most pernicious.
There is not any positive law of men, whether general or particular, received by formal express consent, as in councils, or by secret approbation, but the same may be taken away, if occasion serves.
Laws have been made upon special occasions; which occasions ceasing, laws of that kind do abrogate themselves.
When we abrogate a law as being ill made, the whole cause for which it was made still remaining, do we not herein revoke our very own deed, and upbraid ourselves with folly, yea, all that were makers of it with oversight and error?
Unto laws that men make for the benefit of men, it hath seemed always needful to add rewards which may more allure unto good than any hardness deterreth from it, and punishments which may more deter from evil than any sweetness thereto allureth.
The wisest are always the readiest to acknowledge that soundly to judge of a law is the weightiest thing which any man can take upon him.
A law there is among the Grecians, whereof Pittacus is author: that he which being overcome with drink did then strike any man should suffer punishment double as much as if he had done the same being sober.
The day is still within the memory of many, when men on trial for their lives were not permitted to defend themselves by counsel, and this deprivation was made in the name of fairness, “because,” saith Coke, “that the testimony and proof of the crime ought to be so clear and manifest that there can be no defence of it.” If we travel back still farther, we come to a time when no prisoner was entitled to a copy of the indictment against him, of the panel, or of any of the proceedings.
Household Words, 1856.
Again, not only were men accused of felonies refused the right to look at the indictments framed against them, but, until the twelfth year of the reign of George the Second, the indictments themselves, with the pleas, verdicts, judgments, and so forth, were all uttered in an unknown tongue, and written in a law-hand with ambiguous abbreviations; some of which it was allowable to interpret in more ways than one. And in this language-which was neither Latin, French, nor English, but a compound of all three-in this language rather than in his innocence lay the accused man’s best chance of acquittal.
To expect the prisoner to plead not guilty being guilty, and to say that he does not therein add one more untruth to his offences because it is not falsehood you ask of him but only a legal form, is, in truth, the reverse of a solemn and true opening of a most true and solemn trial. Upon the holding up of the hand, Lord Bacon tells a story of a Welshman who, when the judge told him to hold up his hand, believed that his lordship was about to tell his fortune.
There were some niceties connected with the judicial treatment of the law of Escheat, or Confiscation, which led even to a necessity for bringing torture into common use. If prisoners liable to confiscation of their goods were mutes, that is to say, refused to plead, there could be no attainder, and, consequently, no escheat. For this reason, in Sir Matthew Hale’s time it was the constant practice at Newgate to tie together with whipcord the two thumbs of any refractory person, and the whipcord with the aid of a parson soon produced the desired effect. If more were required, recourse was had to the peine forte et dure, the more horrible form of torture.
When a traitor was condemned to be hung, drawn, and quartered, that sentence was commonly preceded by the order that he should be carried on a hurdle to the place of execution. This hurdle was a merciful invention of the monks. The original sentence had been that the object of a royal vengeance should be dragged at the tail of a horse over the stones and through the mud; and so brought, already bruised and bleeding, to his death.
There used to be-as, we suppose, there are still-a great many delicacies in the laws having reference to homicide and burglary; but in Sir Matthew Hale’s time, the knotty question of what was passable Latin for burglarious and burglar in the framing of indictments was THE delicacy of the season. More offenders escaped by the writing of burgariter, or burgenter, for burglariter, than by proof of innocence; but, although these errors were common and fatal flaws in an indictment, it was ruled that burglariter was good Latin enough to serve the purposes of law.
I will rather pass on to my friends, the High Priests of the Mysteries, whose business it is to frame the laws of which I am an humble expositor. On the members of the legislature of this happy country I look advisedly as my best friends. Their persevering ingenuity-only to be acquired by the most diligent study of precedent-in burying all simple facts designed for the public guidance, beneath a dense medley of verbiage, tautology, reiteration, and verbal mysticism, that puts the legal acumen of the most consummate rogue (as myself, for example) to a severe test to disentangle one single thread of any practical utility from the mass; their constant passing of Acts to amend Acts of which nobody (save themselves and the Queen’s printer) has been aware of the existence; their incessant passing of other Acts to repeal other Acts still, until it requires the most gimblet-eyed clairvoyance to discover which are Acts in force and which not-these kindnesses place them in the first rank of our (the rogues’) benefactors.
If it was said in the indictment of the act of a man who had slain another, “murdredavit” instead of “murdravit,” or of a felonious act, that it was done “feloniter,” when it should have been said “felonice,” the indictment was quashed, and the criminal set free. In Queen Elizabeth’s time one John Webster, a brutal murderer, was acquitted because the letter h was omitted in the Latin word for arm. The indictment had “sinistro bracio” instead of “sinistro brachio;” and another man was liberated because it was judged material that u was put instead of a in the Latin for the phrase “otherwise called.” It was “A. B. alius dictus A. C. butcher;” when the law ruled it to be essential to write “A. B. alias dictus A. C. butcher.” These niceties were in the highest degree arbitrary. Gross blunders were sometimes held to be within the bounds of legal language; and whether right or wrong, the terms of the indictment, except for any flaws they might contain, mattered not much to the accused.
The idle subtleties that have been spent by Criminal lawyers upon the subject of theft could scarcely be seen to more advantage than in the consideration of that element in thieving which consists in carrying the stolen thing away; or, as the books called it, the asportavit. Thus, it was held that if a prisoner removed a package from the head to the tail of a wagon, the asportavit was complete; but if he moved it only by lifting it up where it lay, and standing it on end, for the purpose of ripping it open, the asportavit was not complete, because every part of the package was not shown to be moved. The central point of it might be exactly where it was before. This was understood by the poet who declared the asportavit to be complete as against him when “the Knave of Hearts he stole some tarts, and-took them quite away.”
A fair trial! However great may be the defects of English law, certain it is that we have attained at last to a complete respect for the liberty of the subject, in the administration of justice as regards felonies and capital crimes. There is a great deal to be amended in the dealing with lesser offences at our petty and quarter sessions; but, in our more solemn courts of criminal justice, no honest man’s liberty or life is endangered. It was not so in Scotland, neither was it altogether so in England, sixty years ago.
Tyrannical deeds were done in criminal courts in the years seventeen hundred and ninety-three and four, which prompted the late Lord Cockburn to write an impression, the general acceptance of which is singularly illustrated by one of the events of the day in which his Memorials are published,-namely, “that the existence of circumstances, such as the supposed clearness and greatness of their guilt, tending to prejudice prisoners on their trials, gives them a stronger claim than usual on that sacred judicial mildness, which, far more than any of the law’s terrors, procures respect for authority, and without which courts, let them punish as they may, only alienate and provoke.”
Let us go back to Bacon’s time, and hear what, on the prompting of that wise man, James the First said to his parliament: “There be in the Common law divers contrary reports and precedents; and this corruption doth likewise concern the statutes and acts of parliament, in respect that there are divers cross and cuffing statutes, and some so penned as they may be taken in divers, yea contrary senses; and therefore would I wish both those statutes and reports, as well in the parliament as common law, to be at once maturely reviewed and reconciled; and that not only all contrarieties should be scraped out of our books, but even that such penal statutes as were made but for the use of the time which do not agree with the condition of this our time, ought likewise to be left out of our books. And this reformation might, methinks, be made a worthy work, and well deserves a parliament to be sat of purpose for doing it.” 127
To this day we are still asking for this mature revision and reconciliation; while we add heap to heap confusedly, and mingle living laws with dead. There are on the books ten thousand dead statutes for England alone, relating to subjects as vain as the carrying of coals to Newcastle. “The living die in the arms of the dead,” said Bacon; and we are at this day only echoing his warning.
Household Words, March, 1856.
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