ON THE Laws of England IN FOUR BOOKS BY SIR WILLIAM BLACKSTONE, Knight One of the Justices of His Majesty's Court of Common Pleas WITH NOTES SELECTED FROM THE EDITIONS OF ARCHBOLD, CHRISTIAN, COLE- NOTES AND REFERENCES TO ALL TEXT BOOKS AND DECISIONS WHEREIN THE COMMENTARIES HAVE BEEN CITED, AND ALL STATUTES BY WILLIAM DRAPER LEWIS, PH. D. Dean of the Department of Law of the University of Pennsylvania BOOK I PHILADELPHIA REES WELSH & COMPANY Entered according to Act of Congress, in the year 1897, By REES WELSH & COMPANY, in the Office of the Librarian of Congress, at Washington, D. C. 199509 EDITOR'S PREFACE. Many editions of Blackstone's Commentaries have been published, both in this country and in England, since the death of the learned author. My apology for adding another to the list is my desire to accomplish in the notes certain things not heretofore attempted, and also my belief that the time has come when accumulated experience makes it possible to select what is best from the mass of notes left by my predecessors. The material used in the preparation of this edition may be divided into four classes. First, the published results of modern research into the history of our law, such as the works of Maine, of Pollock and Maitland, and of Vinogradoff. Second, the statutes in England and the United States which modify the statements made in the text. Third, the notes of my predecessors. Fourth, the cases decided and the text-books published since Blackstone's day which have referred to him as authority. In using the notes of other editors, I have followed the example set of publishing the name of the editor in connection with his note. The unsigned notes are my own. The fourth class of my material is, in my judgment, by far the most important. All reports and text-books published since Blackstone's day were carefully searched for references to his work. The abundance of material thus collected on almost every topic treated by the commentator rendered it unnecessary, except in rare instances, to look elsewhere in the books for cases illustrating the text. Nor was I compelled to turn to text-books which do not cite the learned author's work. The references in the unsigned notes, therefore, will be found to be, in the great majority of instances, references to cases or text-books which have cited as authority the very page, or even sentence, of Blackstone to which the note is appended. Therefore it might almost be said that many of the notes or annotations have been written by the Courts of England and of the United States. By making copious extracts from the notes of former editors, I have tried not only to preserve the learning which has accumulated around Blackstone's work, but to give the student of legal development a picture of the best thoughts suggested by the statements in the text taken at successive periods since the publication of the first edition. Carrying out this idea in notes, I have attempted to reflect the thought of the last part of the nineteenth century rather than to present my own opinions. In this connection, it is proper to state that I have retained some of the notes of prior editors on statutes since repealed. This has been done wherever necessary to the proper understanding of the statute law as it exists to-day. By citing thousands of cases and hundreds of text-books, I have sought to make the Commentaries, with the arrangement and text of which all lawyers are familiar, a mine of references to which one can readily turn when in search of information upon a given point of law. In my own notes the dates of the cases have been added to the citations. Where there is more than one edition of a text-book, the number of the edition referred to in the notes is given. Besides the ordinary table of cases, there is also published in connection with the Fourth Book a table of text-books cited, and abbreviations used. I hope that law students, even those familiar with Latin, will find useful the translations of phrases not in English, whether in the text or notes. These translations I have placed in brackets. The value of Barron Field's Analysis is conceded by all, and I therefore make no apology for printing it. I have added to the First Book a few thoughts on the study of the law. The Index to the four books refers to the top or star ★ paging, and covers the notes as well as the text. The number of the Book should always be noted by the reader when the pages of the Commentaries are referred to, as each Book is paged with consecutive Arabic numerals thus, I, 2, 3, 4, etc. It gives me pleasure to acknowledge the very valuable assistance in reading and revising the proofs which I have received from Albert L. Moise, Esq., of the Bar of South Carolina. W. D. L. UNIVERSITY OF PENNSYLVANIA, DEPARTMENT OF LAW, January 1, 1897. THE STUDY OF THE LAW. An opinion as to the proper method of studying a subject must depend, in large measure, upon our conception of the nature of the subject. Law is no exception to this rule. If we regard the law as a system of rules for regulating human action, based on logical distinctions and derived from welldefined principles of right and wrong, we are almost certain to regard the study of the law as consisting of a logical analysis and arrangement of those principles. On the other hand, if we regard our law as essentially empirical in its character,-a child, not of logic but of the race's conceptions of public policy-we shall be equally certain to look upon the study of law as a branch of the study of civilization and its history. He who reads the records of actual issues decided between man and man, will find that the courts, in determining these issues, have from time to time declared the existence of certain well-defined rules of action in almost every field of human conduct, and that, as new cases have arisen, the courts have applied, extended and modified these rules. Learned lawyers, by examining the cases, have extracted from them the principles upon which the courts appear to have acted. Placing these principles in a logical sequence, they have produced our legal text-books. The value of these books to the lawyer is very great. They are, in the first place, a source from which he can easily obtain references to the decided cases. In the best text-books he will find able discussions of legal principles. These discussions often throw light on much that he might not have had the time, or perhaps the ability, to discover, if he had been left to work upon the reports unaided. But when we approach the study of the law as a science, or attempt to investigate any legal question, it must not be forgotten that the law is found in the cases, not in the text-books. It has been and is developed-not primarily by the text-book writers, but by the application to new cases of principles extracted from earlier cases. The law, in this view, is the result of the application of what was felt to be the proper rule in actual cases arising before the courts and it has not been worked out, expounded or limited by logic alone. The consequence is that the mere ability to state a principle of law, or all the principles of law, if it were possible (as it is not) to conceive of a definite sum of such principles, does not make a lawyer. A man might have this knowledge and yet have no mastery of the law. He might even add to a knowledge of the principles the ability to dissect and analyze them from the logician's point of view, or from some a priori standard of ethics, and still he would not in any sense be a lawyer. He must grasp something more than a principle; he must know how a principle has grown, he must have put himself in the position of the judge who decided the case when the problem was first presented as related to the concrete facts of the |