pursue truth through any the most intricate deduction; if he has enlarged his conceptions of nature and art, by a view of the several branches of genuine experimental philosophy; if he has impressed on his mind the sound maxims of the law of nature, the best and most authentic foundation of human laws; if, lastly, he has contemplated those maxims reduced to a practical system in the laws of imperial Rome; if he has done this, or any material part of it, a student thus qualified may enter upon the study of the law with incredible advantage and reputation. If, indeed, during the acquisition of these accomplishments, he can afford himself leisure at the university, to lay the foundation of his future labours in a solid scientifical method, without thirsting too early to attend that practice which it would be impossible he should rightly comprehend, he will afterwards proceed with the greater ease, and will unfold the most intricate points with an intuitive sagacity and clearness. Hints for the With reference to the mode of pursuing legal studies, a few study of the law. remarks - 1st, general, 2ndly, practical, in their nature, are subjoined. First may be urged upon the student the supreme importance of method (y) in studying our law. Before him * should be stretched, as it were, a [*23] map indicating the shape of the country to be explored, its connexions. and boundaries, its greater divisions and principal cities; it is not indeed for the student to describe minutely its subordinate limits, or to fix the longitude and latitude of every inconsiderable hamlet in it. His attention should be engaged, like that of the students mentioned by Fortescue (2) "in tracing out the originals, and, as it were, the elements of the law." For if, as Justinian(a) has observed, the tender understanding of the student be loaded at the first with a multitude and variety of matter, it will either occasion him to desert his studies, or will carry him heavily through them, with much labour, delay, and despondence. These originals should be traced to their fountains, as well as our distance will permit; to the customs of the Britons and Germans, as recorded by Cæsar and Tacitus; to the codes of the northern continental nations, or to those of our own Saxon princes; to the rules of the Roman law, either left here in the days of Papinian, or imported by Vacarius and his followers: but above all to that *inexhaustible reservoir of legal antiquities and learning, the feudal law, or, as Spelman (b) has entitled it, the law of nations in our western orb. These primary rules and fundamental principles should be weighed and compared with the precepts of the law of nature and of nations, and when possible (3) In the introduction to the Encyclopædia Metropolitana, by Mr. Coleridge, that philosophical writer inquires what amongst educated men at once distinguishes him of superior mind? Not always the weight or novelty of his remarks; not always the interest of the facts which he communicates, or the peculiarity of his words and phrases; but "the true cause of the impression made upon us is that his mind is methodical." Throughout what he says is manifest some leading and definite idea, is manifest distinctness of mental vision, a power of foreseeing at the beginning of every sentence how it is to end, and how all its parts may be brought out in the best and most orderly succession. These are suggestive words, which should impress themselves on the mind of every VOL. I.—3 [*24] one who would aspire to excellence as an advocate, or who would aim at achieving reputation on the bench or in our national council-chamber. (2) Ante, p. 20. (a) Incipientibus nobis exponere jura populi Romani, ita videntur tradi posse commo dissime, si primo levi ac simplici viâ singula tradantur; alioqui, si statim ab initio rudem adhuc et infirmum animum studiosi multitudine ac varietate rerum oneravimus, duorum alterum, aut desertorem studiorum efficiemus, aut cum magno labore, sæpe etiam cum diffidentiá (quæ plerumque juvenes avertit), serius ad id perducemus, ad quod, leviore viá ductus, sine magno labore, et sine ullâ diffidentiá maturius perduci potuisset. Inst. 1. 1. 2. (b) of parliaments, 57. with the practice of other countries; should be explained by reasons, illustrated by examples, and confirmed by undoubted authorities; their history should be deduced, their changes and revolutions observed; and it should be shewn how far they are connected with, or have at any time been affected by, the civil transactions of the kingdom. To one who thus addresses himself to legal studies, who searches for correct and wholesome law at the sources whence it may be drawn, certain difficulties calculated much to retard, if not wholly to arrest his progress, may present themselves. Law is a technical science, so that in developing and applying it, technical words and phrases are employed, with the full significance of which familiarity must gradually be acquired by reading law treatises and reported cases, by the study of pleading, and by observing the practice of our courts(c). The desirableness of studying decided cases will appear from a remark of Best, C. J. (d), that "the judgments of the Courts of Westminster Hall are the only authority that we have for by far the greatest part of the law of England,” i. e., of the customary or unwritten law. The decision of a court must be regarded as the answer solemnly given by it to a question raised between parties, either on the pleadings, or in such manner, and by such *peculiar process as [*25] may be allowed, and it may consequently well be that the prodigious series of decisions noted up by the reporters really does constitute or authenticate by far the greater portion of our unwritten law. These cases range over and apply themselves to an almost infinite variety of subjects, and it is interesting to notice how from time to time the drift of decisions has changed in accordance with the change of system, with the advance of civilisation — with social progress. The earlier volumes of our reports, including the series of Year Books (e), contain for the most part decisions throwing light upon the feudal tenures upon real actions - upon direct torts to land, to chattels, to the person. In these volumes are also to be met with some curious cases upon pleading. To the Year Books and earlier reports, however, we might vainly look for authorities concerning mercantile transactions, or (save only where torts simple in their nature are involved) concerning chattel property. For some centuries, indeed, after the Conquest, personalty was little cared for, and those engaged in mercantile pursuits were little regarded or protected by the law; it was not, as observed by a learned writer (f), till the reign of Henry VII. that the advantages arising from our insular position and internal resources began to be developed or brought into active operation. In Magna Carta, doubtless, as ratified by Henry III., are contained divers provisions, having direct reference to the law merchant, and evidently designed to benefit and encourage trade; provisions for insuring uniformity in the measures used for the sale of various commodities throughout the realm, and for guaranteeing to foreign merchants safe conduct in this country. Nevertheless we might vainly search our earliest legal chronicles for precedents respecting mercantile transactions. Toward the close, however, of the 15th century, personal property was gradually [ *26] *attracting to itself consideration, and, owing to the increase of trade and (c) From the conquest till the reign of Edward III. oral forensic pleadings were conducted in Norman-French; and the practice obtained until a very much later period (temp. George II., A. D. 1730) of enrolling the proceedings of our courts in Latin. From the French and Latin languages, accordingly, (d) Fletcher v. Lord Sondes, 3 Bing. 588. manufactures, was becoming more and more a subject of discussion in our courts, so that lawyers were compelled to bestow upon it some share of their attention, which seems before to have been wholly engrossed by the learning of real property (g). From A. D. 1500, until the time when Lord Mansfield presided over the King's Bench (h), many and not unimportant reported cases are to be found touching the law of contracts. It is, however, to the great judge just named that we must look for an exposition of the doctrines of our law merchant, and assuredly without definite rules governing this department of our law, the law of contracts itself could not be said to have far advanced towards its maturity. During Lord Mansfield's long judicial career, our reports evidence the rapidly increasing estimation in which commerce and commercial dealings were held amongst us. There are to be found enunciated principles, often founded on considerations of mercantile convenience, which have since been repeatedly recognised as sound. And although the body of our Lex Mercatoria has been immensely added to since Lord Mansfield's time, as well by legislative enactments as by the recorded judgments of our courts, the hand which laid the foundations of this vast structure was his alone, and his the genius which designed and amplified its outlines. It would be easy to show that during the last three-quarters of a century the character of our reported cases has materially changed, that their character is still changing. And hence the branch of study recommended is to a great degree relieved of monotony, and, if carried out on a judicious and comprehensive plan, will give no little insight into the manners and customs of our ancestors, as well as into the history of our country, for some of the remarkable features of that history are to be found depicted in the reports as they are depicted in the Statute Book. *2ndly. The plan of these commentaries forbids an elaborate enquiry [27] respecting the course of study proper for a practitioner of law(); a few remarks, however, as to the reading of reported cases may not be deemed superfluous. Obviously the difference is great between so reading cases as to apprehend merely the isolated points decided in them, and so reading cases as to extract out of them principles, and to acquire that peculiar power of analysing facts, and that peculiar mode of thought which to the accomplished lawyer are habitual. The faculty of generalising is indeed of difficult attainment. To generalise from decided cases we must understand correctly the ground of each of the decisions before us, and we must ever keep in mind this golden dictum(): The reason and spirit of cases make law-not the letter of partic ular precedents"—so that a knowledge of principles and cases may, and ought to be, simultaneously acquired. Principles are evidenced and illustrated by cases. Cases which may at first sight appear discordant, become harmonious and reconcilable with one another by reference to established principles (7). (g) Reeves. Hist. Eng. L. III. 369. (h) A. D. 1757-1788. (2) An entire course of reading and training for the bar has been admirably set forth by Mr. Warren, Q. C., in his introduction to Law Studies. (k) Per Lord Mansfield, Fisher v.Prince, 3 Burr. 1364. (1) In Jones v. Randall, Cowp. 39, the question raised being whether a particular contract was against law and void upon the face of it, Lord Mansfield remarked as follows:-"It is admitted that the contract is against no positive law; it is admitted that there is no case to be found which says it is illegal; but it is argued, and rightly, that, notwithstanding it is not prohibited by any positive law, nor adjudged illegal by any precedents, yet it may be decided to be so upon principles; and the law of England would be a strange science indeed if it were decided upon precedents only. Precedents serve to illustrate principles, and to give them a fixed certainty. But the law of England, which is exclusive of positive law enacted by statute, depends upon principles." Two plans have been suggested-the one by the illustrious Lord Bacon--the other by an eminent modern author(m)-whereby familiarity with decided cases [*28] may *without much difficulty be got. In Lord Bacon's mind the idea of associating cases with principles predominated, and in his Treatise on the Maxims of our Law, a mode of effecting this association is developed. In the preface to that treatise, he tells us that "there be two contrary faults and extremities in the debating and sifting out of the law, which may be best noted in two several manner of arguments. Some argue upon general grounds, and come not near the point in question; others without laying any foundation of a ground or difference do loosely put cases-which, though they go near the point yet, being put so scattered, prove not, but rather serve to make the law appear more doubtful than to make it more plain." That is to say-principles without cases are too vague and general to serve unerringly as guides, and cases without principles lead but to perplexity and doubt. A different plan adopted by modern writers has been this: to select out of the reports leading cases which bear upon some branch or department of the law, and of which each involves, and is usually cited to establish, a point or principle of real practical importance. And in order that the consequences flowing from each decision may be understood, and its authority may most easily be estimated, notes are appended to the principal cases, containing references to subsequent decisions, and elucidating difficulties. Thus, whilst mainly and primarily directing attention to cases, the writers alluded to take such opportunities as offer of expounding principles, whereas Lord Bacon presents first the principle, and then illustrates and qualifies it by apt examples. By either method above suggested, much facility is afforded for acquiring familiarity with the landmarks of our law-for acquiring, not merely a knowledge of cases, but knowledge likewise in regard to their comparative weight, authenticity, and importance. It is satisfactory to reflect that when once the foundation of such knowledge has properly been laid, its *superstructure may with increasing facility [*29] be reared. Nor can time spent in learning the rudiments of law be said to have been idly and unprofitably spent. For, even should the idea of practising in our law courts afterwards be relinquished, an admirable mental training will thus have been gone through-conducing to a logical precision of thought to accuracy of language, and to vigour of the reasoning faculty. And besides these indirect advantages which flow from legal studies, a knowledge of law is for itself, on grounds already stated (n), to be desired. "There is no jewel," says sir E. Coke(o), "in the world comparable to learning; no learning so excellent, both for prince and subject, as knowledge of laws; and no knowledge of any laws (I speak of human) so necessary for all estates, and for all causes concerning goods, lands, or life, as the common laws of England." (m) The late Mr. J. W. Smith. (n) Ante, pp. 2-9. (0) 2 Rep. pref. *SECTION II. THE NATURE OF LAWS IN GENERAL. [*30] LAW, in its most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational (a). Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. Law is a rule of action which is prescribed by some superior, and which the inferior is bound to obey. Signification of "Law." Thus, when the Supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes, at his own pleasure, certain arbitrary laws for its direction; as that the hand shall describe a given space in a given time; to which law as long as the work conforms, so long it continues in perfection, and answers the end of its formation. If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws; more numerous indeed, but equally *fixed and invariable. The whole progress of plants, from the [*31] seed to the root, and from thence to the seed again ;-the method of animal nutrition, digestion, secretion, and all other branches of vital economy;— are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great Creator. This then is the general signification of law, a rule of action dictated by some superior being; and in those creatures that have neither the power to think nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience. But laws, in their more confined sense (in which it is our present business to consider them), denote the rules, not of action in general, but of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behaviour.(5) (a) The word "law" may apply to "anything laid down or imposed, either by God or nature, by a people binding themselves, or by a prince governing a people." Richardson Dict. ad verb. (5) "This, perhaps, is the only sense in which the word law can be strictly used; for, in all cases where it is not applied to human conduct, it may be considered as a metaphor, and in every instance a more appropriate term may be found. When it is used to express the operations of the Deity or Creator, it comprehends ideas very different from those which are included in its signification when it is applied to man, or his other creatures. The volitions of the Almighty are his laws; he had only to will, ows yeveσow kaɩ eyEVETL. When we apply the word law to motion, matter, or the works of nature or of art, we shall find, in every case, that, with equal propriety and perspicuity, we might have used the words quality, property, or peculiarity. We say that it is a law of motion that a body put in motion in vacuo must forever go forward, in a straight line, with the same velocity; that |