AUTHOR'S PREFACE. THE following sheets contain the substance of a course of lectures on the Laws of England, which were read by the author in the university of OXFORD. His original plan took its rise in the year 1753; and, notwithstanding the novelty of such an attempt in this age and country, and the prejudices usually conceived against any innovations in the established mode of education, he had the satisfaction to find, and he acknowledges it with a mixture of pride and gratitude, that his endeavours were encouraged and patronised by those, both in the university and out of it, whose good opinion and esteem he was principally desirous to obtain. The death of Mr. VINER in 1756, and his ample benefaction to the university for promoting the study of the law, produced about two years afterwards a regular and public establishment of what the author had privately undertaken. The knowledge of our laws and constitution was adopted as a liberal science by general academical authority; competent endowments were decreed for the support of a lecturer, and the perpetual encouragement of students; and the compiler of the ensuing Commentaries had the honor to be elected the first Vinerian professor. In this situation he was led, both by duty and inclination, to investigate the elements of the law, and the grounds of our civil polity, with greater assiduity and attention than many have thought it necessary to do. And yet all, who of late years have attended the public administration of justice, must be sensible that a masterly acquaintance with the general spirit of laws and principles of universal jurisprudence, combined with an accurate knowledge of our own municipal constitutions, their original, reason, and history, hath given a beauty and energy to many modern judicial decisions, with which our ancestors were wholly unacquainted. If, in the pursuit of these inquiries, the author hath been able to rectify any errors which either himself or others may have heretofore imbibed, his pains will be sufficiently answered: and if in some points he is still mistaken, the candid and judicious reader will make due allowances for the difficulties of a search so new, so extensive, and so laborious. Nov 2 1765. POSTSCRIPT. NOTWITHSTANDING the diffidence expressed in the foregoing Preface, no sooner was the work completed, but many of its positions were vehemently attacked by zealots of all (even opposite) denominations, religious as well as civil; by some with a greater, by others with a less degree of acrimony. To such of these animadverters as have fallen within the author's notice (for he doubts not but some have escaped it), he owes at least this obligation: that they have occasioned him from time to time to revise his work. in respect to the particulars objected to; to retract or expunge from it what appeared to be really erroneous; to amend or supply it when inaccurate or defective; to illustrate and explain it when obscure. But, where he thought the objections ill-founded, he hath left and shall leave the book to defend itself: being fully of opinion, that, if his principles be false and his doctrines unwarrantable, no apology from himself can make them right; if founded in truth and rectitude, no censure from others can make them wrong. CONTENTS OF THIS VOLUME. II. Of Real Property; and first, of Corporeal Hereditaments,. XII. Of Estates in Severalty, Joint-tenancy, Coparcenary and Common, 179 the inns of court and of chancery,.. the present curriculum of legal instruction, law schools in the United States,. the law should be studied in the universities, natural law, the rule of human action prescribed by the Creator, and discoverable the divine or revealed law, also the law of nature imparted by God himself,. the law of nations regulates the conduct and mutual relations of independent states municipal or civil law the rule of civil conduct prescribed by the supreme power of a state, commanding what is right and prohibiting what is wrong,. the rule prescribed should be for the future,..... the three forms of government, democracy, aristocracy and monarchy,.. in all governments there is an absolute supreme power to which the right of in these kingdoms this power vested in king, lords and commons, the balance of powers in the constitution and the necessity of preserving it,. the English and American constitutions compared,.... the American legislatures not sovereign, but exercising a trust, THE NATURE OF LAWS IN GENERAL (continued). legislative power cannot be delegated,..... 1. declaratory, which defines the rights to be observed and the wrongs to be 2. directory, which commands that the right be observed and the wrong 3. remedial, which points out the method of recovering rights and redress- 4. vindicatory, which prescribes the penalty for public wrongs and breaches natural rights and duties derive no additional strength from human laws,... interpretation of laws should not be by law maker,. should inquire after intention of legislator,... 1. his words to be understood in their usual meaning,. 2. their meaning may be learned from the context,.. 3. they must be understood as having regard to the subject-matter, 4. the interpretation must be reasonable,..... 5. the reason and spirit of the law must be considered,.. from this arises what we call equity, which is the correction of that wherein the law by reason of its universality is deficient......... 61 includes, 1. general customs, 2. particular customs, 3. particular laws, 68n sanction of laws is vindicatory rather than remuneratory,...... 56 these embrace the Roman or civil law,. and the canon law,..... the courts which receive these are the ecclesiastical, military, admiralty and statutes either general or special, public or private,.... the written law includes statutes, acts or edicts of parliament,. a general or public statute is a universal rule and judicially taken notice of,.. 85 |