There are two characters,one or other of which every man who finds any thing to say on the subject of Law,may be said to take upon him;that of the Expositor ,and that of the Censor .To the province of the Expositor it belongs to explain to us what,as he supposes,the Law is:to that of the Censor,to observe to us what he thinks it ought to be.The former,therefore,is principally occupied in stating,or in enquiring after facts:(3)the latter,in discussing reasons.The Expositor ,keeping within his sphere,has no concern with any other faculties of the mind than the apprehension,the memory,and the judgment:the latter,in virtue of those sentiments of pleasure or displeasure which he finds occasion to annex to the objects under his review,holds some intercourse with the affections.That which is Law,is,in different countries,widely different:while that which ought to be,is in all countries to a great degree the same.The Expositor,therefore,is always the citizen of this or that particular country:the Censor is,or ought to be the citizen of the world.To the Expositor it belongs to shew what the Legislator and his underworkman the Judge have done already:to the Censor it belongs to suggest what the Legislator ought to do in future.To the Censor,in short,it belongs to teach that science,which when by change of hands converted into an art,the LEGISLATOR practises.
Let us now return to our Author.Of these two perfectly distinguishable functions,the latter alone is that which it fell necessarily within his province to discharge.His professed object was to explain to us what the Laws of England were.`Ita lex scripta est ',was the only motto which he stood engaged to keep in view.The work of censure (for to this word,in default of any other,I find it necessary to give a neutral sense)the work of censure,as it may be styled,or,in a certain sense,of criticism,was to him but a parergona work of supererogation:a work,indeed,which,if aptly executed,could not but be of great ornament to the principal one,and of great instruction as well as entertainment to the Reader,but from which our Author,as well as those that had gone before him on the same line,might,without being chargeable with any deficiency,have stood excused:a work which,when superadded to the principal,would lay the Author under additional obligations,and impose on him new duties:which,notwithstanding whatever else it might differ in from the principal one,agrees with it in this,that it ought to be executed with impartiality,or not at all.
If,on the one hand,a hasty and undiscriminating condemner of what is established may expose himself to contempt;on the other hand,a bigotted or corrupt defender of the works of power,becomes guilty,in a manner,of the abuses which he supports:the more so if,by oblique glances and sophistical glosses,he studies to guard from reproach,or recommend to favour,what he knows not how,and dares not attempt,to justify.To a man who contents himself with simply stating an institution as he thinks it is,no share,it is plain,can justly be attributed (nor would any one think of attributing to him any share)of whatever reproach,any more than of whatever applause the institu tion may be thought to merit.But if not content with this humbler function,he takes upon him to give reasons in behalf of it,reasons whether made or found by him,it is far otherwise.
Every false and sophistical reason that he contributes to circulate,he himself is chargeable with:nor ought he to be holden guiltless even of such as,in a work where fact not reason is the question,he delivers as from other writers without censure.By officiously adopting them he makes them his own,though delivered under the names of the respective Authors:
not much less than if delivered under his own.For the very idea of a reason betokens approbation:so that to deliver a remark under that character,and that without censure,is to adopt it.A man will scarcely,therefore,without some note of disapprobation,be the instrument of introducing,in the guise of a reason,an argument which he does not really wish to see approved.Some method or other he will take to wash his hands of it:
some method or other he will take to let men see that what he means to be understood to do,is merely to report the judgment of another,not to pass one of his own.Upon that other then he will lay the blame;at least he will take care to repel it from himself.If he omits to do this,the most favourable cause that can be assigned to the omission is indifference:
indifference to the public welfarethat indifference which is itself a crime.
It is wonderful how forward some have been to look upon it as a kind of presumption and ingratitude,and rebellion,and cruelty,and I know not what besides,not to allege only,nor to own,but to suffer any one so much as to imagine,that an old-established law could in any respect be a fit object of condemnation.Whether it has been a kind of personification,that has been the cause of this,as if the law were a living creature,or whether it has been the mechanical veneration for antiquity,or what other delusion of the fancy,I shall not here enquire.For my part,I know not for what good reason it is that the merit of justifying a law when right should have been thought greater,than that of censuring it when wrong.Under a government of Laws,what is the motto of a good citizen?
To obey punctually;to censure freely.
Thus much is certain;that a system that is never to be censured,will never be improved:that if nothing is ever to be found fault with,nothing will ever be mended:and that a resolution to justify every thing at any rate,and to disapprove of nothing,is a resolution which,pursued in future,must stand as an effectual bar to all the additional happiness we can ever hope for;pursued hitherto would have robbed us of that share of happiness which we enjoy already.
