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to have few written laws, and no boundaries to mark the jurisdiction between the senate and the people? Among the number who speak in this manner is the great Montesquieu, who asserts that every nation is free in proportion to the number of its written laws, and seems to hint at a despotic and arbitrary conduct in the present king of Prussia, who has abridged the laws of his country into a very short compass.
As Tacitus and Montesquieu happen to differ in sentiment upon a subject of so much importance (for the Roman expressly asserts that the state is generally vicious in proportion to the number of its laws), it will not be amiss to examine it a little more minutely, and see whether a state which, like England, is burdened with a multiplicity of written laws; or which, like Switzerland, Geneva, and some other republics, is governed by custom and the determination of the judge, is best.
And to prove the superiority of custom to written law, we shall at least find history conspiring. Custom, or the traditional observance of the practice of their forefathers, was what directed the Romans as well in their public as private determinations. Custom was appealed to in pronouncing sentence against a criminal, where part of the formulary was more majorum. So Sallust speaking of the expulsion of Tarquin, says, mutato more, and not lege mutato; and Virgil, pacisque imponere morem. So that, in those times of the empire in which the people retained their liberty, they were governed by custom; when they sunk into oppression and tyranny, they were restrained by new laws, and the laws of tradition abolished.
As getting the ancients on our side is half a victory, it will not be amiss to fortify the argument with an observation of Chrysostom's; « That the enslaved are the fittest to be governed by laws, and free men by custom.» Custom partakes of the nature of parental injunction; it is kept by the people themselves, and observed with a willing obedience. The observance of it must therefore be a mark of freedom; and, coming originally to a state from the reverenced founders of its liberty, will be an encouragement and assistance to it in the defence of that blessing: but a conquered people, a nation of slaves, must pretend to none of this freedom, or these happy distinctions; having by degeneracy lost all right to their brave forefathers' free institutions, their masters will in a policy take the forfeiture; and the fixing a conquest must be done by giving laws, which may every moment serve to remind the people enslaved of their conquerors; nothing being more dangerous than to trust a late subdued people with old customs, that presently upbraid their degeneracy, and provoke them to revolt.
The wisdom of the Roman republic in their veneration for custom, and backwardness to introduce a new law, was perhaps the cause of their long continuance, and of the virtues of which they have set the world so many examples. But to show in what that wisdom consists, it may be proper to observe, that the benefit of new written laws is merely confined to the consequences of their observance; but customary laws, keeping up a veneration for the founders, engage men in the imitation of their virtues as well as policy. To this may be ascribed the religious regard the Romans paid to their forefathers' memory, and their adhering for so many ages to the practice of the same virtues, which nothing contributed more to efface than the introduction of a voluminous body of new laws over the neck of venerable custom.
The simplicity, conciseness, and antiquity of custom,
give an air of majesty and immutability that inspires awe and veneration; but new laws are too apt to be voluminous, perplexed, and indeterminate, whence must necessarily arise neglect, contempt, and ignorance.
As every human institution is subject to gross imperfections, so laws -must necessarily be liable to the same inconveniencies, and their defects soon discovered. Thus, through the weakness of one part, all the rest are liable to be brought into contempt. But such weaknesses in a custom, for obvious reasons, evade an examination; besides, a friendly prejudice always stands up in their favour.
But let us suppose a new law to be perfectly equitable and necessary; yet, if the procurers of it have betrayed a conduct that confesses by-ends and private motives, the disgust to the circumstances disposes us, unreasonably indeed, to an irreverence of the law itself; but we are indulgently blind to the most visible imperfections of an old custom. Though we perceive the defects ourselves, yet we remain persuaded, that our wise forefathers had good reason for what they did; and though such motives no longer continue, the benefit will still go along with the observance, though we do not know how. It is thus the Roman lawyers speak: Non omnium, que a majoribus constituta sunt, ratio reddi protest, et ideo rationes eorum que constituuntur inquiri non oportet, alioquin multa ex his quce certa sunt subvertuntur.
Those laws which preserve to themselves the greatest love and observance, must needs be best; but custom; as it executes itself, must be necessarily superiour to written laws in this respect, which are to be executed by another. Thus, nothing can be more certain, than that numerous written laws are a sign of a degenerate community, and are frequently not the consequences of vicious morals in a state, but the causes.
Hence we see how much greater benefit it would be to the state, rather to abridge than increase its laws. We every day find them increasing; acts and reports, which may be termed the acts of judges, are every day becoming more voluminous, and loading the subject with new penalties.
Laws ever increase in number and severity, until they at length are strained so tight as to break themselves. Such was the case of the latter empire, whose laws were at length become so strict, that the barbarous invaders did not bring servitude but liberty.
OF THE PRIDE AND LUXURY OF THE MIDDLING
CLASS OF PEOPLE.
Of all the follies and absurdities under which this great metropolis labours, there is not one, I believe, that at present appears in a more glaring and ridiculous light, than the pride and luxury of the middling class of people. Their eager desire of being seen in a sphere far above their capacities and circumstances, is daily, nay hourly, instanced, by the prodigious numbers of mechanics who flock to the races, gaming-tables, brothels, and all public diversions this fashionable town affords.
You shall see a grocer, or a tallow-chandler, sneak from behind the counter, clap on a laced coat and a bag, fly to the E O table, throw away fifty pieces with some sharping man of quality; while his industrious wife is selling a pennyworth of sugar, or a pound of candles, to support her fashionable spouse in his extravagances.
I was led into this reflection by an odd adventure which happened to me the other day at Epsom races, whither I went, not through any desire, I do assure you, of laying bets or winning thousands, but at the earnest request of a friend, who had long indulged the curiosity of seeing the sport, very natural for an Englishman. When we had arrived at the course, and had taken several turns to observe the different objects that made up this whimsical group, a figure suddenly darted by us, mounted and dressed in all the elegance of those polite gentry who come to. show you they have a little money, and, rather than pay their just debts at home, generously come abroad to bestow it on gamblers and pickpockets. As I had not an opportunity of viewing his face till his return, I gently walked after him, and met him as he came back, when, to my no small surprise, I beheld in this gay Narcissus the visage of Jack Varnish, a humble vender of prints. Disgusted at the sight, I pulled my friend by the sleeve, pressed him to return home, telling him all the
that I was so enraged at the fellow's impudence that I was resolved never to lay out another penny with him.
And now, pray sir, let me beg of you to give this a place in your paper, that Mr Varnish may understand he mistakes the thing quite, if he imagines horse-racing recommendable in a tradesman; and that he who is revelling every night in the arms of a common strumpet (though blessed with an indulgent wife), when he ought to be minding his business, will never thrive in this world. He will find himself soon mistaken, his finances decrease, his friends shun him, customers fall off, and himself thrown into a gaol. I would earnestly recommend this adage to every mechanic in London, « Keep your shop, and your shop will keep you.» A strict observance of these words