PREFACE

то

THE FIRST AND THIRD VOLUMES,

THAT an extended analysis and casual observations upon the Law of England, such being the true character of the Commentaries, would demand frequent revision, must be obvious; and that the results of such revision must have led to the striking out of some subjects and titles which had required comment or illustration, and the substituting and supplying others of recent origin, must be equally plain. But it being purposed, that, in the present, as in former editions, the text of the author should stand unaltered, the notes of a mere editor would be expected to advert to such matter found in the text as bad ceased to be law, and to notice what of new law had occurred since the publication of the later editions of the work.

Some of the different modes of usefully editing this work may be mentioned. Thus, one editor might generally, but drily, notice the alterations and additions fundamentally made in the law, whether by statute or by decision; another might not stop here, but go into extensive details, marking the different shades by which one decision shall be distinguishable from another, and thus call upon the general reader, as well as upon the student, to bestow a minute and laborious attention upon a work, which its author does not appear to have contemplated to be necessary to enable its readers to comprehend the outline of the legal institutions of his country.

But it has been thought by the editor of the first and third volumes, that an edition, with notes, little departing from the view exhibited in the Commentaries, and which notes, upon due occasion, might be found somewhat more detailed, not only with reference to the law, but also to the principle of the particular position apparent in the text, would not be ill received: and to prepare such an edition has been at once his aim and his wish.

That it will be well received, he cannot, whilst he writes this, know, for he recollects that he has written notes, wherein opinions not always in unison with those generally adopted, are advanced. But, whilst it was his object not to incumber, he was aware that he ought to illustrate the text wherever it should appear to him to be useful or necessary; yet, if neither to have copied the current indexes and digests, nor to have extended annotation by transcribing the pages of practical writers upon every title of the law found in the Commentaries, be the fault of this edition of the volumes mentioned, he is content to bear whatever of obloquy it may be thought he has incurred: but he could not prevail upon himself to believe that an edition which of itself would comprise a body of English jurisprudence with all its heads, sections, sub-sections, and ramifications, theoretical and practical, would be the edition which the public might demand to be published, or, when published, read,

The editor has written what he hopes will not be unproductive of mental and professional benefit; and, having adverted to what he has not done, he may be permitted to refer to the notes and to the index for what he has. Thence it will be perceived that he has enlarged upon many points, and discussed some others, which he has deemed not only incidental to the various subject matter, moral, political, and even economical, treated in the Commentaries, but in a great degree calculated to further the

purposes for the accomplishment of which they were originally designed.

THOMAS LEE. Inner Temple Lane,

Sept. 4, 1829.

vii.

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 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.