Historical Law-Tracts. Henry Home, Lord Kames

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       PREFACE

      The history of man is a delightful subject. A rational enquirer is no less entertained than instructed, in tracing the progress of manners, of laws, of arts, from their birth to their present maturity. Events and subordinate incidents are, in each of these, linked together, and connected in a regular chain of causes and effects. Law in particular, becomes then only a rational study, when it is traced historically, from its first rudiments among savages, through successive changes, to its highest improvements in a civilized society. And yet the study is seldom conducted in that manner. Law, like geography, is taught as if it were a collection of facts merely: the memory is employed to the full, rarely the judgment. This method, were it not rendered familiar by custom, would appear strange and unaccountable. <iv> With respect to the political constitution of Britain, how imperfect must the knowledge be of that man who confines his reading to the present times? If he follow the same method in studying its laws, have we reason to hope that his knowledge of them will be more perfect?

      Such neglect of the history of law, is the more strange, that in place of a dry, intricate, and crabbed science, law treated historically becomes an entertaining study; entertaining not only to those whose profession it is, but to every person who hath any thirst for knowledge. With the generality of men, it is true, the history of law makes not so great a figure, as the history of wars and conquests. Singular events, which by the prevalence of chance or fortune excite wonder, are much relished by the vulgar. But readers of solid judgment find more entertainment, in studying the constitution of a state, its government, its laws, the manners of its <v> people; where reason is exercised in discovering causes and tracing effects through a long train of dependencies.

      The history of law, in common with other histories, enjoys the privilege of gratifying curiosity. It enjoys beside several peculiar privileges. The feudal

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      customs ought to be the study of every man who proposes to reap instruction from the history of modern European nations: because among these nations, public transactions, no less than private property, were some centuries ago regulated by the feudal system. Sovereigns formerly were many of them connected by the relation of superior and vassal. The King of England, for example, held of the French King many fair provinces. The King of Scotland, in the same manner, held many lands of the English King. The controversies among these princes were generally feudal; and without a thorough knowledge of the feudal system, one must be ever at a loss <vi> in forming any accurate notion of such controversies, or in applying to them the standard of right and wrong.

      The feudal system is connected with the municipal law of this island, still more than with the law of nations. It formerly made the chief part of our municipal law, and in Scotland to this day makes some part. In England, indeed, it is reduced to a shadow. Yet, without excepting even England, much of our present practice is evidently derived from it. This consideration must recommend the feudal system, to every man of taste who is desirous to acquire the true spirit of law.

      But the history of law is not confined to the feudal system. It comprehends particulars without end, of which one additional instance shall at present suffice. A statute, or any regulation, if we confine ourselves to the words, is seldom so perspicuous as to prevent errors, perhaps gross <vii> ones. In order to form a just notion of any statute, and to discover its spirit and intendment; we ought to be well informed how the law stood at the time, what defect was meant to be supplied, or what improvement made. These particulars require historical knowledge; and therefore, with respect to statute-law at least, such knowledge appears indispensable.

      In the foregoing respects, I have often amused myself with a fanciful resemblance of law to the river Nile. When we enter upon the municipal law of any country in its present state, we resemble a traveller, who, crossing the Delta, loses his way among the numberless branches of the Egyptian river. But when we begin at the source and follow the current of law, it is in that course no less easy than agreeable; and all its relations and dependencies are traced with no greater difficulty, than are the many streams into which that magni-<viii>ficent river is divided before it is lost in the sea.

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      An author, in whose voluminous СКАЧАТЬ