Wonderful, in particular, is that influence which is gained over young minds, by the man who on account of whatever claſs of merit is eſteemed in the character of a preceptor. Thoſe who have de- rived, or fancy themſelves to have derived know- ledge from what he knows, or appears to know, will naturally be for judging as he judges: for reaſoning as he reaſons; for approving as he approves; for condemning as he condemns. On theſe accounts it 1s, that when the general complexion of a work is unſound, it may be of uſe to point an attack againſt the whole of it without diſtinction, although ſuch parts of it as are noxious as well as unſound be only ſcattered here and there.
On theſe conſiderations then it may be of uſe to ſhew, that the work before us, in ſpite of the merits which recommend it ſo powerfully to the imagination FRAEFACE, imagination and to the ear, has no better title-on one account than on another, to that influence which, were it to paſs unnoticed, it might continue to exerciſe over the judgement.
The Introduction is the part to which, for reafons that have been already ſtated, it was always my in- tention to confine myſelf. It is but a part even of this Introduction that is the ſubject of the preſent Eſſay. What determined me to begin with this ſmall part of it is, the facility I found in ſeparating it from every thing that precedes or follows it. This is what will be- more particularly ſpoken to in another place [i]. It is not that this part is among thoſe which XXV Our Author: why attacked in the Charac- ter of an Expaſitor.
ſeemed moſt open to animadverſion. It is not that ſtronger traces are exhibited in this part than in another of that ſpirit in our Author which ſeems ſo hoſtile to Reformation, and to that Liberty which is Reformation's harbinger.
It is not here that he tramples on the right of priyate judgment, that baſis of every thing that an Engliſhman holds dear [&. It is not here, in particular, that he inſults our underſtandings with nul:] See the enſuing Introduction. [4] See note [4] gatory Reprehen- ſible paſſages from the work at large, fo i j * i. F gatory reaſons; ſtands forth the profeſſed champion 4 4 CH AI Bi ou art A Reprehen- 5 N ſible paſſages of religious intolerance; or openly ſets his face from the againſt civil reformation. work at large.
It is not here, for example, he would perſuade a | us, that a trader who occupies a booth at a fair is a fool for his pains; and on that account no fit object of the Law's protection [I]. | It is not here that he gives the preſence of onman at the making of a Law, as a reaſon why ten thouſand others that are to obey it, need know nothing of the matter [m], It [* Burglary *,” ſays our Author, ** cannot be * committed in a tent or a booth erected in a market « fair; though the owner may lodge therein: /or the % Law regards thus higbly nothing but permanent edi- * «& fices; a houſe, or church; the wall, or gate of a „ town; and it is the fol;y of the owner to lodge in ſo de fragile a tenement.” To ſave himſelf from this . | charge of folly, it is not altogether clear which of two . things the trader ought to do: quit his buſineſs and Þ not go to the fair at all: or leave his goods without 5 any body to take care of them.
1 [u] Speaking of an Act of Parliament. There « needs, ” he ſays, no formal promulgation to give e it the force of a Law, as was neceſſary by the Civil * Law with regard to the Emperor's Edicts: becaiy/ <4 FRAEVFACHE It is not here, that after telling us, in expreſs terms, there muſt be an “ actual breaking” to make burglary, he tells us, in the ſame breath, and in terms equally expreſs, where burglary may be without actual breaking; and this becauſe ** the Law « will not ſuffer itſelf to be trifled with [n].“ It « every man in England is, ix judgment of Law, party « to the making of an AQ of Parliament, being pre- « ſent thereat by his repreſentatives.” This, for ought I know, may be good judgment of Law; becauſe any thing may be called judgment of Law, that comes from a Lawyer who has got a name: it ſeems, however, not much like any thing that can be called judgment of common ſenſe. This notable piece of aftutia was origi- nally, I believe, judgment of Lord Coke: it from thence became judgment of our Author: and may have been judgment of more Lawyers than I know of before and ſince. What grieves me is, to find many men of the beſt affections to a cauſe which needs no ſophiſtry, bewildered and bewildering others with the like jargon, | [z] His words are“, There muſt be an actual breaking, ** not a mere legal clauſum fregit (by leaping over inviſible ideal boundaries, which may conſtitute a civil treſpaſs) but a /ub/antial and forcible irrup- tion,” In the next ſentence but two he goes on, and fays,—*< But to come down a chimney 7s held a burg- “ lartous entry; for that is as much cloſed as the na- * ture xxvii Reprehen- ſible paſſages from the work at large.
” * > — 3. NCA: as ts Eo oor xxviii Reprehen- ſible paſſages from the work at large.
RL FATE.
It is not here, that after relating the Laws by which peaceable Chriſtians are made puniſhable for worſhipping God according to their conſciences, he pronounces with equal peremptorineſs and compla- — * ture of things will permit. So alſo to knock at a door, and upon opening it to ruſh in, with a felo- „ nious intent; or under pretence of taking lodgings, * to fall upon the landlord and rob him-; or to pro- „ cure a conſtable to gain admittance, in order to « ſearch for traitors, and then to bind the conſtable * and rob the houſe; all theſe entries have been ad- «6 juaged burglaricus, though there was no actual break- & ing: for the Law will not ſuffer itſelf to be trifled * with by fuch evaſions.”...Can it be more egre- giouſly trifled with than by ſuch reaſons?
I muſt own I have been ready to grow out of con- ceit with theſe uſeful little particles, for, becauſe, /ince, and others of that fraternity, from ſeeing the drudgery they are continually put to in theſe Commentaries. The appearance of any of them is a ſort of warning to me to prepare for ſome tautology, or ſome abſurdity: for the ſame thing diſhed up over again in the ſhape of a reaſon for itſelf: or for a reaſon which, if a diſtinct one, is of the ſame ſtamp as thoſe we have juſt ſeen, Other inſtances of the like hard treatment given to theſe poor particles will come under obſervation in the body of this eſſav. As to reaſons of the fiſſt-men- tioned claſs, of them one might pick out enough to fill a little volume.
cency; NSN = 1 E cency, that every thing, yes, ** every thing is as it « ſhould be [o].“ It is not here, that he commands us to believe, and that on pain of nn all pretenſions to either [9] In what I have now gad, ” fays he“, © I would *© not be underſtood to derogate ſrom the e of the e national Church, or to favour a looſe latitude of pro- « pagating any crude undigeſted ſentiments in reli- e gious matters. Of propagating, I ſay; for the bare en- * tertaining them, without an endeavour to diffuſe them, « ſeems hardly cognizable by any human authority. I « only mean to illuſtrate the excellence of our preſent eſtabliſhment, by looking back to former times. Every thing is now as it ſhould be: unleſs, perhaps, that hereſy ought to be more ſtrictly defined, and no proſecution permitted, even in the Eccleſiaſtical Courts, till the tenets in queſtion are by proper au- thority previouſly declared to be heretical, Under theſe reſtrictions it ſeems necęſſary for the ſupport of the national religion,” (the national religion being ſuch, we are to underſtand, as would not be able to ſupport itſelf were any one at liberty to make ob- jections to it) * that the officers of the Church ſhould have power to cenſure heretics, but not to extermi- «© nate or deſtroy them.“ Upon looking into a later edition (the fifth) [ find this paſſage has undergone a modification. After xxix Reprehen- ſible paſſages from the work at large.
© Every thing is now as it ſhould be, is added, with © 6 re/ved "F * MELT: 2 en. 8 * vt py k — 2 A 1 Pp Nw, 1 .
NS ee i a EO OO RITES e XXX — either“ ſenſe or probity,” that the ſyſtem of our Reprehen 5; fible paſſages juriſprudence is, in the whole and every part of it, from the. EF work at large, the very quinteſſence of perfection {p].
Ic — & reſpedt to the ſpiritual cognizance, and ſpiritual puniſh- & ment of hereſy.” After ** the officers of the Church „% ſhould have power to cenſure heretics,” is added, Ju „not to harraſs them with temporal penalties, much l:/5 1g „ exterminate or deſtroy them.
How far the miſchievouſneſs of the original text has been cured by this amendment, may be ſeen from Dr. Furneaux, Lett, II. p. 30, 2d edit.
[J. 1 Comm. 140. I would not be altogether po- fitive, how far it was he meant this perſuaſion ſhould extend itſelf in point of time: whether to thoſe inſti- tutions only that happened to be in force at the indi- vidual inſtant of his writing: or whether to ſuch op- polite inſtitutions alſo as, within any given diſtance of time from that inſtant, either had been in force, or were abour to be.
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 /#»/z or probity would wiſh eto ſee them flackened, 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 fe!- 4c low citizens.“ R = es OS If; * 8 88 e N EE EUN HG OY _ Re 3 3 = Wh _ 3 = r 8 ae * a r ä k INN LENA e e IS RRV £ FL FACE It is not here that he aſſures us in point of fact, that there never has been an alteration made in the Law that men have not afterwards found reaſon to regret [9].
Py It xxxi — Reprehen- ſible paſſages from the work at large.
If the Reader would know what theſe rights and liberties are, I aniwer him out of the ſame page, they are thoſe, © in oppoſition to one or other of which « every ſpecies of ccmpulſive tyranny and oppreſſion „ muſt act, having no other object upon which it can «;/bly be employed.” The liberty, for example, of worſhipping God without being obliged to declare a belief in the XXXIX Articles, 1s a liberty that no &« god man,” —“ no man of ſenſe or probity, would [2] 1 Comm. 70. If no reaſon can be found for an nſtitution, we are to /uppo/e 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 7s 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 Fazly contradictory to reaſon, and then the Law will pre/ame it to be well founded. And it hath been an antient obſerva- „tion in the Laws of England,” (he might with as LS «c Lag « good ground have added—ard in all other Laws) «© That whenever a ſtanding rule of Law, of which © the reaſon, perhaps, could not be remembered or diſ- ' Cerned, hath been [wwantonly] broke in upon by e ſtatutes or new reſolutions, the wiſdom of the rule « hath * ui) XXX11 . Reprehen- - BU: 1 fible paſſages Cl from the # work at large. F 4 fa. 14 1 . It is not here that he turns the Law into a Caftle, 7 « hath in the end appeared from the inconvenienciey % 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 ten- dency and probable effect of the whole paſſage, the way is, I take it, to conſider it as if no ſuch claule were there. Nor let this ſeem ſtrange. Taking the qualifi- cation into the account, the ſentiment would make no impreſſion on the mind at all: if it makes any, the qualification is dropped, aud 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 © avantenly” 18, in purſuance of our Author's ſtanding policy, put in by way of ſalvo. Viib it the ſentiment is as much as comes to nothing. Without it, it would be extrara- gant, Yer in this extravagant form it is, probably, if in any, that it paſſes upon the Reader, The pleaſant part of the contrivance is, the men- tioning of Szatates”” and © Reſolutions?” (Reſolutions to wit, that is Deciſions, of Courts of Juſtice) in the fame 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 Ke/clution indeed, a new Re- ſolution, to break in upon a /andirg rule, is a practice that in good truth i big with miſchief, But this mil- 2 WACO ON bo - {Po enam 5 hc ; rhe Derne e n * N N e oe PE Wh SF IT NN op ES OT 3 R e. n e EY ry VFC e nenn EFT N chief A ä R a Caſtle, for the purpoſe of oppoſing every idea of „ fundamental“ — n chief on what does it depend? Upon the rule's being a -2a/onable one? By no means: but upon it's being a landing, an eltabliſked one. Reaſonable or not reaſon- able, is what makes comparatively but a trifling dif- ference. | A new reſolution made in the teeth of an old-eftabliſhed rule is miſchievous—on what account? In that it puts men's expectations univerſally to a fault, and ſhakes whatever confidence they may have in the ability of any rules of Law, reaſonable or not rea- ſonable: that ſtability on which every thing that is va- luable 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 hm 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 /a is not wanted: a new reſo- e lution can never be acknowledged to be contrary to a ſtanding rule,” but it muſt on that very account be acknowledged to be avarntorn.” Let ſuch a reſolution be made, and © inconveniencies” in abundance will ſure enough enſue: and then will appear—what? 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 par- ticular Statutes may be conceived that would thwart c the xxxiii Reprehen- 5 ſible paſſages from the work at large.
4 1 1 A * WY xxxiv ”” OE REEL Reprehen- fible paſſages i from the i work at large.
It 1 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, 3 | cannot, unleſs it be imply a declaratory one, be made in any caſe, but it muſt break in upon ſome ſtanding ih rule of Law. With regard to a Statute then to tell us q that a © wanton ”? one has produced “ inconvenienr * cies,” what is it but to tell us that a thing that has 1 | been miſchievous has produced miſchief?
Of this temper are the arguments of all thoſe doat- ing politicians, who, when out of humour with a particular innovation without being able to tell why, ſet 5 themſelves to declaim againſt all innovation, becauſe it 1 is innovation. It is the nature of owls to hate the 15 light: and it is the nature of thoſe politicians who are 14 wiſe by rote, to deteſt every thing that forces them Ki either to find (what, perhaps, is impoſſible) reaſons for 1 a favourite perſuaſion, or (What is not endurable) to diſcard it. | [r] 3 Comm. 268, at the end of Ch. XVII. which e *Þ oncludes with three pages againſt Reformation. Our Author had better, perhaps, on this occaſion, have — — cog E kept clear of allegories: he ſhould have conſidered RR, _ whether they might not be retorted on him with ferere — etaliation. He ſhould have conſidered, that it 1s not eaũer to in to turn the Law into a Caſtle, than it is to the imaginations of impoveriſhed ſuitors to people it with Harpies. He ſhould have thought cf the den 5 of 4 * Fre xxxv It is not here that he turns with ſcorn upon K thoſe beneficent Legiſlators, whoſe care it has been ſible paſſages f from the work at large.
to pluck the maſk of Myſtery from the face © Juriſprudence [s]. | It — of Cacus, to whoſe enfeebled optics, to whoſe habits of dark and ſecret rapine, nothing was ſo hateful, nothing ſo dangerous, as the light of day.
[s] 3 Comm. 322. It is from the deciſions of Courts of Juſtice that thoſe rules of Law are framed, on the knowledge of which depend the life, the for- tune, the liberty of every man in the nation. Of — N.
theſe deciſions the Records are, according to our Au- thor [1. Comm. 71.] the moſt authentic hiſtories, Theſe Records were, till within theſe five-and-forty years, in Law-Latin: a language which, upon a high > e K computation, about one man in a thouſand uſed to fancy himſelf to underſtand. In this Law-Latin it is that our Author is ſatisfied they ſhould have been con- - tinued, becauſe the pyramids of Egypt have ſtood longer than the temples of Palmyra. He obſerves to us, that the Latin language could not expreſs itſelf on the ſubject without borrowing a multitude of words from our own: which is to help convince us that of the two the former 1s the fitteſt to be employed. He gives us to underſtand that, taking it altogether, there could be no room to complain of it, ſeeing it was not more unintelligible than the jargon of the ſchoolmen, 3 ſome paſſages of which he inſtances; and then he goes on, © This technical Latin continued in uſe from „the time of its firſt introduction till the ſubver- C 2 *« fjon . — If here *, as every where, he is eager to hold *: Reprehen- '# fible paſſages | the 1 from the * V. infra, Ch. III. Par. VII. p · 103.
0 | work at large.
F „ fion of our antient conſtitution under Cromwell; 1 „ when, among many other innovations on the body of the Law, ſome for the better and ſome for the worſe, | | % the language of our Records was altered and turned \F „ into Engliſh, But at the Reſtoration of King « Charles, this zowe/ty was no longer countenanced i | te the practiſers finding it very difficult to expreſs them- . « ſelves ſo conciſely or ſignificantly in any other lan- «© guage but the Latin. And thus it continued with- j % out any ſenſible inconvenience: till about the year 3 % 1730, when it was again thought proper that the ir % Proceedings at Law ſhould be done into Englith, and 1 it was accordingly ſo ordered by ſtatute 4 Geo, 11, * This was done (continues our Author) in order iÞ * that the common people might have knowledge and 'k; © underſtanding of what was alledged or done for. and 15 „ gagainſt them in the proceſs and pleadings, the I judgment and entries in a cauſe. Which purpoſe | Þ * know not how well it has anſwered; but am aft f. $3 «« /uſpeft that the people are now, after many 'year * experience, altogether as ignorant in matters of law © as before.“ | 1 In this ſcornful paſſage the words zowvelty—done into 1 Engliſh— apt to /u/pet—altogether as ignorant—ſut- x ficiently ſpeak the affeftion of the mind that dictated "KI | 1 it. It is thus that our Author chuckles over the ſup- * poſed defeat of the Legiſlature with a fond exultation 13 6 | which 5 re * cup of flattery to high —_— he has flopt xxxvii Reprebhen- ſhort, ſible paſſages from the work at large.
which all his diſcretion could not Pony him to ſuppreſs.
The caſe is this. A large portion of the body of the Law was, by the bigotry or the artifice of Lawyers, locked up in an illegible character, and in a foreign tongue. The ſtatute he mentions obliged them to give up their hieroglyphicks, and to reſtore the native language to its rights, This was doing much; but it was not doing every thing. Fiction, tautology, technicality, circuity, irregularity, inconſiſtency remain. But above all the peſtilential breath of Fiction poiſons the ſenſe of every inſtrument it comes near.
The conſequence is, that the Law, and eſpecially that part of it which comes under the topic of Pro- cedure, fill wants much of being generally intelligible. The fault then of the Legiſlature 1s their not having done 5 Irhs TI o N WG N * 5, Lan nts * r EOS PI N e + Aly Thats Pons enough, His quarrel with them is for having done any thing at all. In doing what they did, they ſet, up a light, which, obſcured by many remaining clouds, i ſtill but too apt to prove an ignis fatuus: our 2 inſtead of calling for thoſe clouds to be removed, depre- cates all light, and pleads for total darknefs.
Not content with repreſenting the alteration as uſe- leſs, he would perſuade us to look upon it as miſ- chierous. He ſpeaks of © inconveniences.” What theſe inconveniences are it is pleaſant to obſerve, In the firſt place, many young practiſers, ſpoilt by the indulgence of being permitted to carry on their buſi- 2 neſs v BY. ey AR] 8 Ls Rs 8 1 MLT SER FS P36. hel n © e * — — 2 — 11.: 8 > NS. ed SSSI Dr fu Age nr ER vor 8 2.
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— XXXVIII Reprehenble paſſages from the work at large, is not. If it 7s, why mention it as an evil? If it is ſtanding our Author's unwillingneſs to believe it, is, V.
ſhort, however, in this place, of idolatry J It — nnn..._ neſs in their mother-tongue, know not how to read 3 Record upon the old plan. Many Clerks and At. % rornies,”” ſays our Author, * are hardly able to * read, much leſs to underſtand a Record of ſo modern « a date as the reign of George the Firſt.”
What the mighty evil 1s here, that is to outweigh the miſchief of almoſt univerſal ignorance, is not al. together clear: Whether it is, that certain Lawyers, in a caſe that happens very rarely, may be obliged to get aſſiſtance: or that the buſineſs in ſuch a caſe may paſs from thoſe who do t underſtand it to thoſe who do.
In the next place, he obſerves to us, „it has much e enhanced the expence of all legal proceedings: for « fince the practiſers are confined (for the ſake of the « ſtamp- duties, which are thereby conſiderably en- * creaſed) to write only a ſtated number of words in a „ ſheet; and as the Engliſh language, through the * multitude of its particles, is much more verboſe than e the Latin; it follows, that the number of ſheets * muſt be very much augmented by the change.”
I would fain perſuade myſelf, were it poſſible, that this unhappy ſophiſm could have paſſed upon the in- vendor. The ſum actually levied on the public on that ſcore is, upon the whole, either a proper ſum or it #c:, what more obvious remedy than to ſet the duties lower? | After all, what ſeems to be the real evil, notwiththat P F | ag XXX1X — It is not then, I ſay, this part, it is nat even any —_ part of that Introduction, to which alone I have fible paſſages from the work at large.
any thoughts of extending my examination, that is the — that by means of this alteration, men at large are in a ſomewhat better way of knowing what their Lawyers are about: and that a diſintereſted and enterprizing Legiſlator, ſhould happily ſuch an one ariſe, would now with ſomewhat leſs difficulty be able to ſee before him.
[e] In the Seventh Chapter of the Firſt Book, The King has “ attributes; he poſleſſes © ubiquityt;*? he is all- perfect and 3 1.
Theſe childiſh paradoxes, begotten upon ſervility by falſe wit, are not more adverie to manly ſentiment, than to accurate apprehenſion. Far from contributing to place the inſtitutions they are applied to in any clear point of view, they ſerve but to dazzle and confound, by giving to Reality the air of Fable, It is true, they are not altogether of our Author's invention: it is he, however, that has revived them, and that with im- provements and additions.
One might be apt to ſuppoſe they were no more than ſo many tranſient flaſhes of ornament: it is quite other- wiſe, He dwells upon them in ſober ſadneſs. The attribute of y6zquity,” in particular, he lays hold of, and makes it the baſis of a chain of reaſoning. He ſpins it out into conſequences: he makes one thing * follow” from it, and another thing be fo and ſo T 1 Comm. Ch. VIE, p. 234, 8585 242, Fir Edition, 11 Comm, Ch, VII. p. 260, Firſt Edition, C 4 © for bs 3 * -$ .
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o 5 LS TIE oe - — a * 1 Reprehen- ſible paſſages from the work at large.
the principal ſeat of that poiſon, againſt which it was the purpoſe of this attempt to give an antidote, The ſubje& handled in this part of the work is ſuch, as admits not of much to be ſaid in the perſon of the Cenſor. Employed, as we have ſeen, in ſettling matters of a preliminary nature—in drawing out- * — 9 « for the ſame reaſen:“ and he uſes emphatic terms, as if for fear he ſhould not be thought to be in earneſt. 4% From the ubiquity,” ſays our Author [1 Comm, p. 260] © it follows, that the King can never be non. „ ſuit; for a nonſuit is the deſertion of the ſuit or & action by the non-appearance of the plaintiff in % Court.“ ——“ For the ſame reaſon alſo the King « js not ſaid to appear by his Attorney, as other men % do; for he always appears in contemplation of Law © in his own proper perſon.”
This is the caſe ſo ſoon as you come to this laſt ſen- tence of the paragraph. For ſo long as you are at the Jaſt but two, it is the regal office, and a0 the royal «« perſon, that is always preſent.” All this is ſo drily and fo ſtrictly true, that it ſerves as the ground work of a metaphor that is brought in to embelliſh and en- liven it. The King, we lee, 16, that is to ſay is 0, preſent in Court, T he King's Judges are preſent too. So far is plain downright truth. Theſe Judges, then, ſpeaking metaphorically, are ſo many looking-plaſſes, which have this ſingular property, that when a man looks at them, inſtead of ſeeing his own face in them, he ſees the King's. His Judges,” ſays our Author, “ are the mirror by which the King's image is re- & flected,” | | lines, N lines, it is not in this part that there was occaſion to enter into the details of any particular inſtitu- tion. If I choſe the Introduction then in preference to any other part, it was on account of its affording the faireſt ſpecimen of the whole, and not on ac- count of its affording the greateſt ſcope for cenſure.
Let us reverſe the tablet. While with this free- dom I expoſe our Author's ill deſerts, let me not be backward in acknowledging and paying homage to his various merits: a juſtice due, not to him alone, but to that Public, which now for ſo many years has been dealing out to him (it cannot be ſup- poſed altogether without title) ſo large a meaſure of its applauſe.
Correct, elegant, unembarraſſed, ornamented, the /tzle is ſuch, as could ſcarce fail to recommend a work ſtill more vitious in point of matter to the multitude of readers. He it is, in ſhort, who, firſt of all inſtitutional writers, has taught Juriſprudence to ſpeak the language of the Scholar and the Gentleman: put a poliſh upon that rugged ſcience: cleanſed her from 3 the duſt and cobwebs of the office: and if he has not enriched her with that preciſion that is drawn only from the ſterling treaſury of the ſciences, has decked her out, however, to advantage, from the toilette of claſſic erudition: enlivened her with me- c taphors „6 — Reprehen- ſible paſſages from the work at large.
Its merits.
r es 1 Fr 22 —— we Fs 3 "Oy, of 23 - 4 RAE oo IE. Do Y % A bao . wee = pare YES Its merits.
L — taphors and alluſions: and ſent her abroad in ſome meaſure to inſtruct, and in ſtill greater meaſure to entertain, the moſt miſcellaneous and even the moſt faſtidious ſocieties. | The merit to which, as much perhaps as to any, the work ſtands indebted for its reputation, is the en- chanting harmony of its numbers: a kind of merit that of itſelf is ſufficient to give a certain degree of celebrity to a work devoid of every other. So much is man governed by the ear.
The function of the Expoſitor may be conceived to divide itſelf into two branches: that of hi/try, and that of ſimple demon/tration. The buſineſs of hiſtory is to repreſent the Law in the ſtate it has been in, in paſt periods of its exiſtence: the buſi- neſs of ſimple demonſtration in the ſenſe in which I will take leave to uſe the word, is to repreſent the Law in the ſtate it zs in for the time being [v].
Again, Again, [v] The word demonſtration may here ſeem, at firſt ſight, to be out of place. It will be eaſily perceived that the ſenſe here put upon it is not the ſame with that in which it is employed by Logicians and Mathe- maticians, In our own language, indeed, it 1s not very familiar in any other ſenſe than theirs: but on the Continent it is currently employed in many other ſciences.
P R Again, to the head of demonſtration belong the ſeyeral buſineſſes of arrangement, narration, and con- jecture. Matter of narration it may be called, where the Law is ſuppoſed to be explicit, clear, and ſettled: matter of conjecture or interpretation, where it is obſcure, ſilent, or unſteady. It is mat- ter of arrangement to 4iſtribute the ſeveral real or ſuppoſed inſtitutions into different maſſes, for the purpoſe of a general ſurvey; to determine the order in which thoſe maſles ſhall be brought to view; and to find for each of them a name.
The buſineſſes of narration and interpretation are converſant chiefly about particular inſtitutions. Into the details of particular inſtitutions it has not been my purpoſe to deſcend. On theſe topics, then, I may ſay, in the language of procedure, non ſum infor- matus. Viewing the work in this light, I have no- thing to add to or to except againſt the public voice.
_ Hiſtory is a branch of inſtruction which our Au- thor, though not rigidly neceſſary to his deſign, called in, not without judgment, to caſt light and ſciences. The French, for example, have their de- nonſtrateurs de botanique, d anatomie, de phyſique experi- mentale, &c, J uſe it out of neceſſity; not knowing of III.
Its merits.
— any other that will ſuit the purpoſe. 42. e; ornament 8 "AR ACS 1 . r —— — Bei er IT par Tp mg ern rr oof VE 4 —. * oat} > one —. ̃¶ U-ñz᷑̃7ẽm p ̃²— nt ee er. er PE ̃ ö.. Etro ore rey or rn nt SA. car — — TIT — od” f Ee — — 1 i} C } .
ornament on the dull work of ſimple demonſtration: this part he has executed with an elegance which ſtrikes every one: with what fidelity, having not very particularly examined, I will not take upon me to pronounce.
Among the moſt difficult and the moſt important of the functions of the demon/trator is the buſineſs of arrangement. In this our Author has been thought, and not, I conceive, without juſtice, to excel]; at leaft in compariſon of any thing in that way that has hitherto appeared. Tis to him we owe ſuch an arrangement of the elements of Juriſprudence, as wants little, perhaps, of being the beſt that a technical nomenclature will admit of. A technical nomenclature, ſo long as it is admitted to mark out | and denominate the principal heads, ſtands an in- vincible obſtacle to every other than a technical ar- rangement. For to denomimate in general terms, what is it but to arrange? and to arrange under heads, what is it but to denominate upon a large ſcale? A technical arrangement, governed then in this manner, by a technical nomenclature, can never be otherwiſe than confuſed and unſatisfactory. The reaſon will be ſufficiently apparent, when we under- ſtand what ſort of an arrangement that muſt be which can be properly termed a natural one.
That FRE FACE That arrangement of the materials of any ſcience may, I take it, be termed a natural one, which takes ſuch properties to characterize them by, as men in general are, by the common conſtitution of man's nature, diſpoſed to attend to: ſuch, in other words, as naturally, that is readily, engage, and firmly fix the attention of any one to whom they are pointed out, The materials, or elements here in queſtion, are ſuch actions as are the objects of what we call Laws or Inſtitutions.
Now then, with reſpect to actions in general, there is no property in them that is calculated ſo readily to engage, and ſo firmly to fix the attention of an obſerver, as the fendency they may have to, or divergency (if one may ſo ſay) from, that which may be ſtyled the common end of all of them. The end 1 mean is Happineſs [w]: and this tendency in any act is what we ſtyle its utility: as this divergency is that * * [o] Let this be taken for a truth upon the au- thority of Ariftotle- I mean by thoſe, who like the authority of Ariſtotle better than that of their own ex- perience, IIa 7:yvn, ſays that philoſopher, xa 4s pelodo;* opates Is mpatis Te Nas Rfodipedts, ayalov Tivo epierfat,d ito narws α,œuͥ˙ν,E Tayaloy, c Favre wWitTal. Atte Is Tis gaiiera Twy (underſtand Toro) TEAQN,—Arift. Eth, ad Nic. L. I. c. 1.
to .
U „ e - Lites 4 KY oa SC ONT = Ta xlv — Idea of a za- tural Ar- range ment.
Fe.
to which we give the name of miſchievouſneſs, With reſpe&t then to ſuch actions in particular as are among the objects of the Law, to point out to a man the utility of them or the miſchievouſneſs, is the only way to make him ſee clearly that property of them which every man is in ſearch of; the only way, in ſhort, to give him ſatisfaction.