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changes which the law has undergone, up to the date of this preface, have all been noticed at the proper places for mentioning them. Such measures as are only under discussion whilst this work is going through the press, will be shortly adverted to. Many more alterations in our old laws must be made, to adapt them to existing institutions. These latter being established, it would be vain to cling to, and impossible long to retain, remnants of a polity which never can be made to agree with our new constitution.
The most distasteful part of the Editor's task has been the necessity of animadverting upon one of his recent precursors : no doubt, every man who publishes, voluntarily sets his work up as a mark for criticism to aim at, -the notes to the three first of the volumes offer a wide butt,- it is a sport, however, which the present writer would have declined, entirely, could he have done so consistently with, what he conceived to be, a due performance of his undertaking; and he has suppressed nine tenths of the censures actually prepared for the press.
Those notes of an earlier editor-Mr. Christian- which have been retained, are marked by subjoining to them the two first letters of that learned writer's name.
Lincoln's Inn, 15th March, 1836.
P. S. Since the above preface was sent to the printer, in March last, the expectations intimated in the notes to Vol. 1, p. 12, and Vol. 3, p. 56, that an improved tribunal of ultimate appeal would be established during the present year, have been disappointed.
The question being still open, it may not be impertinent to submit the following suggestions; some of which have been advocated by Lord Brougham, others by Sir Edward Sugden, and for the remainder the present writer is answerable.
By the statute of 11 Geo. 4 & 1 Will. 4, c. 70, s. 8, an excellent Court of Appeal, as to all English cases of common law, exists in the Exchequer Chamber; and its jurisdiction might be advantageously extended to Irish appeals. If a new judicial officer is added to the Court of Chancery, and if the Equity department of the Court of Exchequer were rendered perfectly efficient, by enabling the Chief Baron to give it his daily attention, as his sole business, an equally good Court of Appeal in Equity, embracing Irish appeals, could be formed; and if the occasional absence of some of the judges from the peculiar business of their own courts were found to create an inconvenient arrear of business, the expense of a second additional judge in equity would not be grudged by the country. The judgments given in those Courts might safely be made final, and all intermediate appeals excluded. If the Lord Chancellor, who is at present the only real representative of the House of Lords in matters of appeal, presided in both these Courts, the point of honor would be saved to their Lordships' House, and the esprit du corps of the legal profession would not be wounded. Scotch appeals would remain to be provided for; and as English lawyers (including English judges, with reverence be it said,) generally have but an imperfect acquaintance with the Roman law, which is the basis of Scottish jurisprudence, a better Court of Appeal for Scotland could be formed in Edinburgh than at Westminster.
There would be no complicated intricacy in the mechanism of this plan; it would at least have simplicity to recommend it, and, it is believed, it would prove efficacious.
The comprehensive system of Lord Langdale, it is feared, the public mind is not, at present, sufficiently enlarged to embrace; it is not capable of soaring to the lofty heights of his lordship’s philosophy; but he will doubtless recollect that such changes as his clear vision contemplates never are, and perhaps never ought to be, admitted, until they have been perseveringly pressed upon attention, again and again, and the arguments on which they rest have become familiar to ordinary understandings. The process for effecting this is tiresome; but without it the desired end cannot be obtained: let us hope Lord Langdale will not weary in a good cause. A minister of justice, with functions somewhat analogous to those of the French minister of that department, but greatly modified, to make them harmonise with our freer constitution, might work an immense improvement both in our legislative and judicial proceedings.
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 honour 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.
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.