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 patronized 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 benefactions 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.

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.

iv

A MEMOIR

OF

SIR WILLIAM BLACKSTONE,

BY THE AMERICAN EDITOR.

THE ambition of posthumous fame is very general, if not universal, among mankind. It is one of the strong arguments for our immortality, that we stretch out our desires beyond the brief span of our present existence and live in the future. A sad and dreary thought would it be to a man,—that of dying. unwept by any one, unhonoured by any survivor, and entirely forgotten as soon as removed from sight. If not an actor upon the more prominent theatre of the world's history, within some narrower circle of society—his neighbourhood, his friends, his family, or at least his descendants—every one looks anxiously forward, in the hope that his memory will be respectfully cherished, his faults and foibles overlooked and excused, his virtues adorned in their fairest and loveliest colours. Whether, in that spirit-land where our immortal natures still live after their earthly tabernacles have crumbled to their original clay, they have any knowledge of or interest in the affairs of the world which they have left behind, we do not know: it has not been revealed to us. From that bourne no traveller has returned. The faculties and powers of the soul,-especially memory,-the strong affections of the heart, all belonging to and constituting an inseparable part of its spiritual nature, as well as its unwearying activity even while the body reposes in soundest slumber, render it, to say the least, a reasonable conjecture that, though engaged in moral and intellectual employments and enjoyments much nobler and purer than earth's, they are still spectators-interested, curious spectators—in the works of God's providence which relate to his moral creation. The common superstitions of the people in all ages and countries, which may be regarded either as the tradition of an original revelation or the result of a stronglyimpressed innate sentiment, are not without weight on such a question. Such superstitions have intertwined themselves with the earliest poetry: they form a part of the legends of childhood: in spite of ourselves, we are all, more or less, believers in the communion of spirits. The man who has entirely cast off this prejudice or superstition, if we please to term it so, has lost one restraint which has been known to exert its salutary influence when even the sense of higher accountability has been disregarded. We may well fancy, then,

a power in departed spirits of watching and tracing the influences of their own lives, writings, or actions upon those who have come after them. If these influences have been for human virtue and happiness, the wider and more extended the purer must be the pleasure afforded; if they are otherwise, they must be the source of bitter, unavailing, and never-ending regrets. Such considerations may well excite us to the practice of virtuous actions, to the cultivation of noble and generous sympathies and emotions: a part of their appropriate reward may be the observation hereafter of their widening circles as they spread with their influences for good the name we have borne, down to the remotest generation.

The fame of a lawyer, however much he may live in the public eye, and however large may seem the space he occupies in the public consideration, is in general a very narrow and circumscribed one. He is prominently useful in his own day and generation and among his contemporaries. He supports and defends the accused and oppressed; he maintains the cause of the poor and friendless; he succours those that are ready to perish; he counsels the ignorant, he guides and saves those who are wandering and out of the way, and, when "he has run his course and sleeps in blessings," his bones "have a tomb of orphans' tears wept on them." How much untold good is done by an honest, wise, and generous man, in the full practice of this profession, which even those to whom he has consecrated his time and thoughts without the hope of adequate compensation never appreciate! How often, contrary to his own interest, does he succeed in calming the surges of passion, and leading the bitter partisan to measures of peace and compromise! How often does his beneficence possess that best and purest characteristic of the heavenly grace, that his right hand knoweth not what his left hand doeth! Yet-beyond the circle of his own profession, the student of which may occasionally meet with a few brief evidences of his learning and industry in print on the pages of some dusty report-book, and pause to spell his name and wonder who he was-posterity will scarcely ever hear of him, and his severest efforts and brightest intellectual achievements will sink forever in the night of oblivion. The important case of Taylor on the demise of Atkyns vs. Hurde was argued before Lord Mansfield and the court of King's Bench about one hundred years ago. The title to a large estate was at issue; knotty and difficult points of old lawlearning were required to be discussed, and they were discussed with exhausting research and ability. It is not to be doubted that the counsel engaged were the most eminent at the English bar. We have a further assurance from the character of some of them. Mr. Pratt, afterwards Lord Camden, a name. forever associated with English liberty, as the dauntless opponent of general warrants, and the champion of American colonial rights upon the floor of Parliament, Mr. Yorke, son of Lord-Chancellor Hardwicke, the Hon. Charles Yorke, afterwards Lord-Chancellor, are named as of counsel for plaintiff. With them were Mr. Caldecot, the compiler of the Settlement Cases. Opposed to these men, there were for the defendant the names of Mr. Knowles, Mr. Perrot, and Mr. Sergeant Prime. Pratt and Yorke having occupied high poli

tical and judicial positions, their lives have been written, their characters have been portrayed and will be preserved. Who were these others deemed worthy to enter the lists and measure lances with them in this important intellectual contest? Where is their memorial, even among the members of that profession of which, while they lived, they were the pride and ornament?

Besides official and political position, which must frequently give character and fame to the lawyer, there are some other exceptions,-of those who hand down their names within the bounds of their profession by contributing valuable works to its legal literature. The legal writings of Lord Coke have contributed more than his office and influence to this result. Hale, Foster, Gilbert, and others may be placed in the same category. But that they have largely paid that debt which, according to Lord Bacon, every man owes to his profession, how soon would the names of Fearne, Hargrave, Butler, Preston, Powell, Stephen, and Williams have to be classed with those of Knowles, Perrot, and Prime!

There is one English legal writer whose fortune in this respect is peculiar. He produced an elementary work,-written with so much system and accuracy, and in style and language so pure and elegant, that it not only at once assumed and has ever since maintained the place of First Institute of legal education to all who make the common law of England their special study, but became a book of instruction and interest to scholars and gentlemen of all pursuits,which has been for that reason translated into many other tongues. That lawyer was Sir William Blackstone. An American author has in like manner illustrated his name by a work which both here and abroad will forever stand alongside and share the enviable fame of that of the illustrious English commentator. It is unnecessary to name James Kent.

The father of Sir William Blackstone was Charles Blackstone, a citizen and silkman of London, whose family was from the West of England. He was born on the 10th July, 1723: his father had died before; and he lost his mother at the early age of eleven.

By the early loss of both parents, William and his two brothers Charles and Henry were thrown upon the care of their maternal uncles. Charles and Henry were educated at Winchester, under the care of Dr. Bigg, who was warden of that school. Both of them took orders in the Church. The care and education of William fell to the lot of another uncle,-Mr. Thomas Bigg, an eminent surgeon of London..

In 1730, William, then about seven years old, was put to school at the Charter-House, and in 1735 was, by the nomination of Sir Robert Walpole, through the influence of another member of his mother's family, admitted as a scholar upon its foundation. He is said to have been a studious and exemplary boy and to have gained the favour of his masters. At the age of fifteen he was at the head of the school, and was thought sufficiently advanced to be removed to the university; and he was accordingly entered a commoner at Pembroke College, in Oxford, on the 30th of November, 1736. He was allowed to remain at school until after the 12th of December, the anniversary com

memoration of the foundation of the Charter-House, in order that he might deliver the customary oration in honour of Richard Sutton,-by which he gained much applause.

After having been three years prosecuting his studies at this illustrious seat of learning, on the 20th November, 1741, being then eighteen, he entered himself a member of the Middle Temple and commenced the study of the law. He was called to the bar as soon as the probationary period of five years had expired,―viz., on the 28th November, 1746.

In the early periods of English jurisprudence, the Inns of Court were resorted to by large numbers of young gentlemen, not merely to acquire a profession, but to complete a liberal education by the study of the laws of their country. In the time of Fortescue, who wrote in the reign of Henry VI., there are said to have been about eighteen hundred or two thousand students in the Inns of Court and Chancery. The number was still very considerable in the time of Ben Jonson, who has left on record his estimate of their influence and character in the dedication of his comedy of Every Man out of his Humour, which he inscribed "To the noblest nurseries of humanity and liberty in the kingdom, the Inns of Court." To characterize a law-school as the nursery of sound learning and civil liberty is indeed a highly-wrought eulogium of the legal profession,-a praise, however, which its history shows to have been well deserved. In the Inns of Chancery the younger students of the law were usually placed, "learning and studying," says Fortescue, "the originals, and as it were the elements, of the law; who profiting therein, as they grew to ripeness, so were they admitted into the greater inns of the same study, called the Inns of Court."

The word "Inns" was anciently used to denote town-houses, in which the nobility and gentry resided when they were in attendance at court; and it is frequently employed by the old poets to denote a spacious and elegant mansion. The Inns of Court were in old French termed hostells. In the court-records in Latin they are called hospitia; while diversoria is the name applied to public lodging-houses, which are now commonly known as inns. The buildings originally purchased for the purposes of these legal societies, having been at the time private residences, still retained in their new use the ancient names by which they were designated. The Middle and Inner Temples were formerly dwellings of the Knights Templars; Lincoln's and Gray's Inn anciently belonged to the Earls of Lincoln and Gray. So the names of the several Inns of Chancery are taken from the names of their original proprietors, except New Inn, Staple Inn, which belonged to the Merchants of the Staple, and Lion Inn, which was a common tavern, with the sign of the lion.

There can be no doubt that there was originally provided in these schools some system of instruction for the students. Competent persons, termed readers, were appointed to deliver public lectures. Such men as More, Coke, and Holt were chosen as readers. They fell into disuse, however; and before the time of Blackstone the student at the Inns was left to his own discretion, and was even called to the bar, after a set time, without any examination as to