The many conflicts and judicial doubts which have arisen to be encountered, have necessarily increased the size of the volume beyond what would otherwise have been required. In dealing with such questions, I have not always followed the path of argument which has been pursued by either side to the controversy; indeed it has happened that in most of these cases, the truth has seemed to me to lie in a somewhat untrodden way. I hope this will not be regarded as impairing the usefulness of the work; it could not have been avoided consistently with the general plan; and if I have succeeded in elucidating any questions of difficulty, it has been in consequence of this method. Truth, alone and unadorned, with no shadow of contiguous error upon its visage, is usually recognized alike by all men; and the principal reason why differences arise, is because it has never thus been distinctly and accurately seen. I have had frequent occasion to dissent from views of learned judges, some of whom are living, and others are departed. The dead, if they read human books, have become too wise to be sensitive respecting such things. To the living I desire to say, here for all, that while I have not in every instance used the necessary circumlocution to express so much, I have always felt deeply the delicacy of this part of my task; and have exercised the right of criticism, not from a conviction that I possessed superior abilities, or from a confidence that I have invariably arrived at just conclusions; but because such a course was a necessary part of the only useful plan which could b be adopted, and because, having read and reflected upon all the reported cases, which considerable diligence in searching has brought to my knowledge, I have stood in a position of peculiar advantage for judging, over one who had seen only a part of them. And I have endeavored, whenever consistent with the proper limits of the discussion, to present the opposite view to my own; especially to cite, in every instance, the conflicting authorities. Indeed to refer to all the cases, rather than a selection of them, has been the method pursued throughout, subject, however, to obvious exceptions. Still, I have not unfrequently been obliged to draw from the general result of my reading; and in some instances have, no doubt, stated conclusions which would not have been arrived at on a perusal of the authorities only which are mentioned in the notes. In like manner, since the several parts of a subject derive light from the combined whole, those who consult these pages for specific points may sometimes withhold their assent from propositions to which they would yield on an examination of the entire volume. It is needless to apprise the reader that errors and omissions will be discovered in this work; though I have spared no ordinary pains to render them as few as possible. My belief is, that they are not so numerous as materially to impair its usefulness. If in this I am mistaken; or if the undertaking shall fail to meet the favor sought for it; there still remains for me the pleasing reflection that I have done what I could to serve an enlightened and therefore indulgent and liberal profession, to whose candor the result of these labors is respectfully committed. Finally, I would express my acknowledgments to various gentlemen for important suggestions; and particularly to my friend the Hon. SAMUEL E. SEWALL, to whose accomplished legal attainments and ripe scholarship these pages are also indebted for specific emendations, proposed while the sheets were passing through the press. BOSTON, Nov. 1, 1852. |