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English colonies; and, except so far as it has been abrogated or modified by our local legislation, it remains to this very hour the guide, the instructer, the protector, and the ornament of every state within this republic, whose territory lies within our boundaries by the treaty of peace of 1783. May it ever continue to flourish here; for it is the law of liberty, and the watchful and inflexible guardian of private property and public rights.

It is of this common law, in its largest extent, that the Law Institution in this university proposes to expound the doctrines and diversities; and thus to furnish the means of a better juridical education to those, who are destined for the profession, as well as to those, who, as scholars and gentlemen, desire to learn its general principles.

Nor let any scholar or gentleman imagine, that the study is little worthy his attention, unless he is to engage in it for professional objects. I do not exaggerate its value, when I express the deliberate opinion, that there is not, within the compass of human attainment, any science, which has so direct a tendency as this, to strengthen the understanding, to enlarge its powers, to sharpen its sagacity, and to form habits of nice and accurate discrimination. Sir James Mackintosh, an elegant scholar, as well as a very competent judge, has said,*" that more understanding has perhaps been in this manner exerted to fix the rules of life, than in any other science; and it is certainly the most honorable occupation of the

* Introductory Discourse on the Study of the Law of Nature and Nations. p. 62, (3d edition.)

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understanding, because it is the most immediately subservient to general safety and comfort." If this were a question dependent upon mere authority, perhaps testimony more unexceptionable to the general scholar might be drawn from other sources. Dr. Johnson, with his accustomed vigor of expression has stated, that "law is the science, in which the greatest powers of the understanding are applied to the greatest number of facts." And Mr. Burke, himself an orator and statesman of the most enlarged research, has not hesitated to declare, that it is "one of the first and noblest of human sciences; a science, which does more to quicken and invigorate the understanding, than all other kinds of learning put together." *

But there is little need to appeal to the testimonies of the living or the dead upon such a topic. Whoever will take the trouble to reflect upon the vast variety of subjects, with which it is conversant, and the almost infinite diversity of human transactions, to which it applies; whoever will consider, how much astuteness and ingenuity are required to unravel or guard against the contrivances of fraud, and the indiscretions of folly, the caprices of the wise and the errors of the rash, the mistakes of pride, the confidence of ignorance, and the sallies of enterprise, will be at no loss to understand, that there will be ample employment for the highest faculties. If he will but add to the account, that law is a science, which must be gradually formed by the successive efforts of many minds in many ages; that its rudiments sink deep

*Speech on American Taxation, 1774.

into remote antiquity, and branch wider and wider with every new generation; that it seeks to measure the future by approximations to certainty derived solely from the experience of the past; that it must for ever be in a state of progress, or change, to adapt itself to the exigencies and changes of society; that even when the old foundations remain firm, the shifting channels of business must often leave their wonted beds deserted, and require new and broader substructions to accommodate and support new interests.* If, I say, he will but add these things to the account, it will soon become matter of surprise, that even the mightiest efforts of genius can keep pace with such incessant demands; and that the powers of reasoning, tasked and subtilized, as they must be, to an immeasurable extent, should not be absolutely overwhelmed in the attempt to administer justice.

From its nature and objects the common law, above all others, employs a most severe and scrutinizing logic. In some of its branches it is compelled to deal with metaphysical subtilties and abstractions, belonging to the depths of intellectual philosophy. From this cause it has sometimes been in danger of being enslaved by scholastic refinements, by the jargon of the old dialectics, and the sophisms of overcurious minds. It narrowly escaped shipwreck in the hands of the schoolmen of the middle ages; and for a while was almost swallowed up in the quick

* See Lord Hale's noble Discourse on the Amendment of the Law, ch. 3.

sands of the feudal system. If it had not been, that it necessarily dealt with substances instead of shadows, with men's business, and rights, and inheritances, and not with entities and notions, it would have shared the fate, or justified the satire, upon metaphysical inquiries, that those, who attempted to sound its depths,

"In that unfathomable gulph were drown'd."

But common sense has at all times powerfully counteracted the tendency to undue speculation in the common law, and silently brought back its votaries to that, which is the end of all true logic, the just application of principles to the actual concerns of human life. One cannot but smile in the present times at some of the reasoning and some of the fictions, which spread themselves, here and there, in small veins in the system. We are gravely told, for instance, by Bracton, in which he is followed by Lord Coke, that the true reason why by the common law a father cannot inherit real estate by descent from his son, is, that inheritances are heavy, and descend, as it were, by the laws of gravitation, and cannot reascend.* We are again told, that, when the title to an estate is suspended upon future contingencies, in the mean time the inheritance is in abeyance, that is, (as we are taught by the accompanying explanations,) the inheritance is in gremio legis, or in nubibus, in the bosom of the law, or in

"Descendit itaque jus, quasi ponderosum quid cadens deorsum rectâ lineâ, vel transversali, et nunquam reascendit eâ viâ quâ descendit." Bracton, lib. 2. ch. 29; Co. Litt. 11; 2 Bl. Com. 212.

the clouds, which seems to mend the matter exceedingly in point of plainness. And, again, when an estate is conveyed to trustees to serve existing uses, and future contingent uses also, we are told, that though a seisin is necessary to feed them, and it be now exhausted, yet happily for us, there remains a possibility of seisin, a scintilla juris, which kindles at the very moment the new uses spring into being, and by its vital power executes at once the possession of the estate to those uses, by some sort of legal legerdemain.* Shakspeare has immortalized by his genius the report of a case in that book of painful learning, Plowden's Commentaries, † in which Lady Margaret Hales, by the suicide of her husband, lost an estate by forfeiture to the crown, which she held jointly with him. One of the learned judges upon that occasion, in order to establish the legal conclusion, that the party killed himself in his lifetime, reasoned in this manner: "The felony is attributed to the act, which act is always done by a living man, and in his lifetime; for Sir James Hales was dead, and how came he to his death? It may be answered, By drowning. And who drowned him? Sir James Hales. And when did he drown him? In his lifetime. So that Sir James Hales, being alive, caused Sir James Hales to die; and the act of the living man was the death of the dead man. And then for this offence it is reasonable to punish the living man, who committed the offence, and not the dead

* Chudleigh's case (1 Co. Rep. 120) contains some curious reasoning on this subject.

+ Plowden's Com. 258, 262.

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