In regard to the Law of England in particular,it is here that he gives an account of the division of it into its two branches (branches,however,that are no ways distinct in the purport of them,when once established,but only in respect of the source from whence their establishment took its rise)the Statute or Written law,as it is called,and the Common or Unwritten:an account of what are called General Customs,or institutions in force throughout the whole empire,or at least the whole nation;of what are called Particular Customs,institutions of local extent established in particular districts;and of such adopted institutions of a general extent,as are parcel of what are called the Civil and the Canon laws;all three in the character of so many branches of what is called the Common Law:in fine,a general account of Equity,that capricious and incomprehensible mistress of our fortunes,whose features neither our Author,nor perhaps any one is well able to delineate;of Equity,who having in the beginning been a rib of Law,but since in some dark age plucked from her side,when sleeping,by the hands not so much of God as of enterprizing Judges,now lords it over her parent sister:
All this,I say,together with an account of the different districts of the empire over which different portions of the Law prevail,or over which the Law has different degrees of force,composes that part of our Author's work which he has styled the INTRODUCTION.His eloquent `Discourse on the study of the Law',with which,as being a discourse of the rhetorical kind rather than of the didactic,I proposed not to intermeddle,prefaces the whole.
It would have been in vain to have thought of travelling over the whole of so vast a work.My design,therefore,was to take such a portion of it,as might afford a fair and adequate specimen of the character and complexion ofthe whole.For this purpose the part here marked out would,I thought,abundantly suffice.This,however narrow in extent,was the most conspicuous,the most characteristic part of our Author's work,and that which was most his own.The rest was little more than compilation.Pursuing my examination thus far,I should pursue it,I thought,as far as was necessary for my purpose:and I had little stomach to pursue a task at once so laborious and so invidious any farther.If Hercules,according to the old proverb,is to be known ex pede :much more thought I,is he to be known ex capite.
In these views it was that I proceeded as far as the middle of the definition of the Law municipal .It was there I found,not without surprize,the digression which makes the subject of the present Essay.This threw me at first into no small perplexity.To give no account of it at all;to pass wholly sub silentio ,so large,and in itself so material a part of the work I was examining,would seem strange:at the same time I saw no possibility of entering into an examination of a passage so anomalous,without cutting in pieces the thread of the discourse.Under this doubt I determined at any rate,for the present,to pass it by;the rather as I could not perceive any connexion that it had with any thing that came before or after.I did so;and continuing my examination of the definition from which it digressed,I travelled on to the end of the Introduction.
It then became necessary to come to some definitive resolution concerning this excentric part of it:and the result was,that being loth to leave the enterprize I had begun in this respect,imperfect,I sat down to give what I intended should be a very slight and general survey of it.The farther,however,I proceeded in examining it,the more confused and unsatisfactory it appeared to me:and the greater difficulty I found in knowing what to make of it,the more words it cost me,I found,to say so.In this way,and by these means it was that the present Essay grew to the bulk in which the Reader sees it.When it was nearly completed,it occurred to me,that as the digression itself which I was examining was perfectly distinct from,and unconnected with the text from which it starts,so was,or so at least might be,the critique on that digression,from the critique on the text.
The former was by much too large to be engrafted into the latter:and since if it accompanied it at all,it could only be in the shape of an Appendix,there seemed no reason why the same publication should include them both.
To the former,therefore,as being the least,I determined to give that finish which I was able,and which I thought was necessary:and to publish it in this detached manner,as the first,if not the only part of a work,the principal and remaining part of which may possibly see the light some time or other,under some such title as that of `A COMMENT on the COMMENTARIES'
In the mean time that I may stand more fully justified,or excused at least,in an enterprize to most perhaps so extraordinary,and to many doubtless so unacceptable,it may be of use to endeavour to state with some degree of precision,the grounds of that war which,for the interests of true science,and of liberal improvement,I think myself bound to wage against this work.I shall therefore proceed to mark out and distinguish those points of view in which it seems principally reprehensible,not forgetting those in which it seems still entitled to our approbation and applause.
