His words are as follows:`All these rights and liberties it is our birthright to enjoy entire;unless where the Laws of our country have laid them under necessary restraints.Restraints in themselves so gentle and moderate,as will appear upon further enquiry,that no man of sense or probity would wish to see them slackened.For all of us have it in our choice to do every thing that a good man would desire to do;and are restrained from nothing,but what would be pernicious either to ourselves or our fellow citizens.'
If the Reader would know what these rights and liberties are,I answer him out of the same page,they are those,`in opposition to one or other of which every species of compulsive tyranny and oppression must act,having no other object upon which it can possibly be employed.'The liberty,for example,of worshipping God without being obliged to declare a belief in the XXXIX Articles,is a liberty that no `good man,''no man of sense or probity,'`would wish'for.'
13.I Comm.70.If no reason can be found for an institution,we are to suppose one:and it is upon the strength of this supposed one we are to cry it up as reasonable;It is thus that the Law is justified of her children.
The words are'Not that the particular reason of every rule in the Law can,at this distance of time,be always precisely assigned;but it is sufficient that there be nothing in the rule flatly contradictory to reason,and then the Law will presume it to be well founded.And it hath been an ancient observation in the Laws of England,'(he might with as good ground have addedand in all other Laws)`That whenever a standing rule of Law,of which the reason,perhaps,could not be remembered or discerned,hath been [wantonly]broke in upon by statutes or new resolutions,the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.'
When a sentiment is expressed,and whether from caution,or from confusion of ideas,a clause is put in by way of qualifying it that turns it into nothing,in this case if we would form a fair estimate of the tendency and probable effect of the whole passage,the way is,I take it,to consider it as if no such clause were there.Nor let this seem strange.Taking the qualification into the account,the sentiment would make no impression on the mind stall:if it makes any,the qualification is dropped,and the mind is affected in the same manner nearly as it would be were the sentiment to stand unqualified.
This,I think,we may conclude to be the case with the passage above mentioned.The word `wantonly'is,in pursuance of our Author's standing policy,put in by way of salvo.With it the sentiment is as much as comes to nothing.Without it,it would be extravagant.Yet in this extravagant form it is,probably,if in any,that it passes upon the Reader.
The pleasant part of the contrivance is,the mentioning of `Statutes'and `Resolutions'(Resolutions to wit,that is Decisions,of Courts of Justice)in the same breath;as if whether it were by the one of them or the other that a rule of Law was broke in upon,made no difference.By a Resolution indeed,a new Resolution,to break in upon a standing rule,is a practice that in good truth is big with mischief.But this mischief on what does it depend?Upon the rule's being a reasonable one?By no means:
but upon its being a standing,an established one.Reasonable or not reasonable,is what makes comparatively but a trifling difference.
A new resolution made in the teeth of an old established rule is mischievouson what account?In that it puts men's expectations universally to a fault,and shakes whatever confidence they may have in the stability of any rules of Law,reasonable or not reasonable:that stability on which every thing that is valuable to a man depends.Beneficial be it in ever so high a degree to the party in whose favour it is made,the benefit it is of to him can never be so great as to outweigh the mischief it is of to the community at large.Make the best of it,it is general evil for the sake of partial good.It is what Lord Bacon calls setting the whole house on fire,in order to roast one man's eggs.
Here then the salvo is not wanted:a `new resolution can never be acknowledged to be contrary to a standing rule,'but it must on that very account be acknowledged to be wanton.'Let such a resolution be made,and `inconveniences'in abundance will sure enough ensue:and then will appearwhat?not by any means `the wisdom of the rule,'but,what is a very different thing,the folly of breaking in upon it.
It were almost superfluous to remark,that nothing of all this applies in general to a statute:though particular Statutes may be conceived that would thwart the course of expectation,and by that means produce mischief in the same way in which it is produced by irregular resolutions.A new statute,it is manifest,cannot,unless it be simply a declaratory one,be made in any case,but it must break in upon some standing rule of Law.
With regard to a Statute then to tell us that a `wanton'one has produced `inconveniences,'what is it but to tell us that a thing that has been mischievous has produced mischief?
Of this temper are the arguments of all those doating politicians,who,when out of humour with a particular innovation without being able to tell why,set themselves to declaim against all innovation,because it is innovation.
It is the nature of owls to hate the light:and it is the nature of those politicians who are wise by rote,to detest every thing that forces them either to find (what,perhaps,is impossible)reasons for a favourite persuasion,or (what is not endurable)to discard it.
14.III Comm.268,at the end of Ch.XVII,which concludes with three pages against Reformation.Our Author had better,perhaps,on this occasion,have kept clear of allegories:he should have considered whether they might not be retorted on him with severe retaliation.
