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PREFACE - James Wilson, Collected Works of James Wilson, vol. 1 
Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 1.
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The Introduction, Collector’s Foreword, Collector’s Acknowledgments, Annotations, Bibliographical Essay are the copyright of Liberty Fund 2007. The Bibliographical Glossary in volume 2 is reprinted by permission of the copyright holders the President and Fellows of Harvard College 1967.
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The incomplete state of the lectures on law, notwithstanding the lapse of several years between the time at which those now published were delivered and the death of the Author, is a circumstance of which the publick will naturally inquire the cause. The circumstance itself is certainly much to be lamented; but its cause presents a subject of still deeper regret.
The law professorship, in the college of Philadelphia, was established in the year 1790; and the Author was appointed the first professor. The extent of his plan of lectures rendered it impossible for him to go through his whole subject in one season: three courses were necessary for the purpose. The first course, which was delivered in the winter of 1790–91, consisted of those lectures contained in what the Editor has entitled the first part. The second course, which was, in a great measure, delivered in the following winter, would have consisted of the remaining two parts now published. In April, 1792, the college of Philadelphia and the university of Pennsylvania were, by an act of assembly, united into one seminary, under the latter title. A law professorship was erected in the new seminary, and the Author again appointed to fill the chair; but no lectures were delivered after the union. The preceding course had been interrupted and was not completed. The causes of these circumstances are not within the Editor’s knowledge. He knows, however, that, though the delivery of the lectures was discontinued, the Author designed to complete his plan for publication. From this design his attention was drawn by another object of more importance, in which he was engaged.
In March, 1791, the house of representatives in the general assembly of Pennsylvania, resolved to appoint a person to revise and digest the laws of the commonwealth; to ascertain and determine how far any British statutes extended to it; and to prepare bills, containing such alterations, additions, and improvements as the code of laws, and the principles and forms of the constitution then lately adopted might require. The Author was unanimously appointed for that purpose. The nature of the plan which he formed in consequence of this resolution, will appear from the following letter on the subject, delivered to the speaker of the house of representatives on 24th August, 1791.
While I am employed in executing the trust committed to me by the house of representatives, it is, I conceive, my duty, from time to time, to inform them, through you, of the steps which I have taken, and of those which I mean to take, in order to accomplish the great end which is in contemplation.
From the records deposited in the rolls office, I have taken an account of all the laws made in Pennsylvania from its first settlement till the beginning of the last session of the legislature. They are in number one thousand seven hundred and two. Their titles I have entered into a book, in the order, usually chronological, in which they are recorded. On some of them, especially those of an early date, I have made and minuted remarks: and have left ample room for more, in the course of my further investigations. I have also reduced their several subjects into an alphabetical order by entering them regularly in a common place book. This process required time, and care, and a degree of minute drudgery; but it was absolutely requisite to the correct execution of the design. How can I make a digest of the laws, without having all the laws upon each head in my view? This view can in the first instance be obtained only by ranging them in an exact common place.
But something more must still be done. To rank, in a correct edition, the several laws according to their seniority or to the order of the alphabet would, by no means, be correspondent to the enlarged plan signified by the resolutions of the house. It is obvious, and it was certainly expected, that, under each head, the different regulations, however dispersed, at present, among numerous laws, should, in the digest, be collected in a natural series, and reduced to a just form. This I deem an indispensable part of my business.
But the performance of this indispensable part gives rise to a new question. In what order should the methodised collections be arranged?
A chronological order would, from the nature of those collections, be impracticable: an alphabetical order would be unnatural and unsatisfactory. The order of legitimate system is the only one, which remains. This order, therefore, is necessarily brought into my contemplation. My contemplation of it has been attended with the just degree of diffidence and solicitude. To form the mass of our laws into a body compacted and well proportioned, is a task of no common magnitude. Arduous as it is, the enlarged views of the house of representatives stimulate me to attempt it. In such an attempt it will not be dishonourable—even to fail.
Of this system, I have begun to sketch the rough outlines. In finishing them, and in filling them up, I mean to avail myself of all the assistance, which can possibly be derived from every example set before me. But, at the same time, I mean to pay implicit deference to none.
The acts of the legislature of Pennsylvania, though very numerous, compose but a small proportion of her laws. The common law is a part, and, by far, the most important part of her system of jurisprudence. Statute regulations are intended only for those cases, comparatively few, in which the common law is defective, or to which it is inapplicable: to that law, those regulations are properly to be considered as a supplement. A knowledge of that law should, for this reason, precede, or, at least, accompany the study of those regulations.
“To know what the common law was before the making of any statute,” says my Lord Coke, in his familiar but expressive manner, “is the very lock and key to set open the windows of the statute.”a To lay the statute laws before one who knows nothing of the common law, amounts, frequently, to much the same thing as laying every third or fourth line of a deed before one who has never seen the residue of it. It would, therefore, be highly eligible, that, under each head of the statute law, the common law, relating to it, should be introduced and explained. This would be a useful commentary on the text of the statute law, and would, at the same time, form a body of the common law reduced into a just and regular system.
With such a commentary, the digest which I shall have the honour of reporting to the house will be accompanied. The constitution of the United States and that of Pennsylvania, compose the supreme law of the land: they contain and they suggest many of the fundamental principles of jurisprudence, and must have a governing and an extensive influence over almost every other part of our legal system. They should, therefore, be explained and understood in the clearest and most distinct manner, and they should be pursued through their numerous and important, though remote and widely ramified effects. Hence it is proper, that they also should be attended with a commentary. These commentaries will not, however, form a part of my report: they must stand or fall by their own merit or insignificance.
Another question, of very considerable importance, has occurred to me: the result of my reflections upon it, I beg leave to lay before the house.
In what manner should the digest of the laws of Pennsylvania be composed? Should it imitate the style of the British acts of parliament and those statutes, which have been framed upon their model—or should it be written in the usual forms of composition?
To professional gentlemen it is well known, that, in England, all bills were anciently drawn in the form of petitions; that these petitions, with the king’s answer, were entered upon the parliament rolls; and that, at the end of each parliament, they were reduced into statutes by the judges. Hence the form, “may it please your majesty, that it may be enacted” and “be it enacted, &c.” This form, like many others, has been continued in England long after the reason of it has ceased. This form, like many others, has been introduced into the colonies, and, among the rest, into Pennsylvania, where the reason of it never existed. Thus almost every sentence in our acts of assembly begins with a “be it enacted.”
This form, though without foundation in Pennsylvania, is not, however, without its inconveniences. To introduce every sentence under the government of a verb, gives a stiffness—to introduce every sentence under the government of the same verb, gives a monotony as well as stiffness, to the composition. To avoid the frequent reiteration of those blemishes, the sentences are lengthened. By being lengthened, they are crowded with multifarious, sometimes with heterogeneous and disjointed, circumstances and materials. Hence the obscure, and confused, and embarrassed periods of a mile, with which the statute books are loaded and disgraced.
But simplicity and plainness and precision should mark the texture of a law. It claims the obedience—it should be level to the understanding of all.
By the first assembly of Pennsylvania an act was made “for teaching the laws in the schools.”b This noble regulation is countenanced by the authority and example of the most enlightened nations and men. Ciceroc informs us, that when he was a boy, the laws of the twelve tables were learned “ut necessarium carmen,”1 as a piece of composition at once necessary and entertaining. The celebrated legislator of the Cretans used all the precautions, which human prudence could suggest, to inspire the youth with the greatest respect and attachment to the maxims and customs of the state. This was what Plato2 found most admirable in the laws of Minos.
If youth should be educated in the knowledge and love of the laws: it follows, that the laws should be proper objects of their attachment, and proper subjects of their study. Can this be said concerning a statute book drawn up in the usual style and form? Would any one select such a composition to form the taste of his son, or to inspire him with a relish for literary accomplishments? It has been remarked, with truth as well as wit, that one of the most irksome penalties, which could be inflicted by an act of parliament, would be, to compel the culprit to read the statutes at large from the beginning to the end.
But the knowledge of the laws, useful to youth, is incumbent on those of riper years.
From the manner, in which other law books, as well as statute laws, are usually written, it may be supposed that law is, in its nature, unsusceptible of the same simplicity and clearness as the other sciences. It is high time that law should be rescued from this injurious imputation. Like the other sciences, it should now enjoy the advantages of light, which have resulted from the resurrection of letters; for, like the other sciences, it has suffered extremely from the thick veil of mystery spread over it in the dark and scholastick ages.
Both the divinity and law of those times, says Sir William Blackstone,d were frittered into logical distinctions, and drawn out into metaphysical subtilties, with a skill most amazingly artificial. Law in particular, which (being intended for universal reception) ought to be a plain rule of action, became a science of the greatest intricacy; especially when blended with the new and oppressive refinements ingrafted upon feodal property: which refinements were, from time to time, gradually introduced by the Norman practitioners, with a view to supersede (as they did in a great measure) the more homely, but the more free and intelligible, maxims of distributive justice among the Saxons.
As were the divinity and the law, such likewise was the philosophy of the schools during many ages of darkness and barbarism. It was fruitful of words, but barren of works, and admirably contrived for drawing a veil over human ignorance, and putting a stop to the progress of knowledge.e But at last the light began to dawn. It has dawned, however, much slower upon the law, than upon religion and philosophy. “The laws,” says the celebrated Beccaria,f “are always several ages behind the actual improvement of the nation which they govern.” If this observation is true, and I believe it to be true, with regard to law in general; it is peculiarly true, and its truth is of peculiar importance, with regard to criminal law in particular. It is the observation of Sir William Blackstone, that, in every country of Europe, the criminal is more rude and imperfect than the civil law. Unfortunate it is that this should be the case. For on the excellence of the criminal law the liberty and happiness of the citizens chiefly depend.
We are told by Montesquieu, that the knowledge, with regard to the surest rules, observed in criminal judgments, is more interesting to mankind than any other thing in the universe. We are told by him further, that liberty can be founded only on the practice of this knowledge. But how can this knowledge be acquired—how can it become the foundation of practice, if the laws, and particularly the criminal laws, are written in a manner in which they cannot be clearly known or understood.
Deeply penetrated with the truth and the force of these remarks, which are supported by the most respectable authorities, I shall not justly incur the censure of innovation, if I express my opinion, that the law should be written in the same manner, which we use when we write on other subjects, or other sciences. This manner has been already adopted, with success, in the Constitution of the United States, and in that of Pennsylvania.
As, however, the observations, which I have made and quoted, bear particularly upon the criminal code; I propose to make, in that code, the first experiment of their justness and efficacy.
The criminal law, though the most important, is by far the least voluminous part of the system; and it can be easily formed into a separate report. This I mean to do. By doing so, I shall have a fair opportunity of exhibiting a specimen of the manner and the merits both of my plan and of its execution.
To the Speaker of the House of Representatives.
In the execution of this plan, the Author made very considerable progress. It had been undertaken, however, under the authority of only one of the houses of the assembly, without the sanction of the other; and, in the course of its execution, it was found, that the want of legislative sanction, and of a provision for making pecuniary compensation to persons necessarily employed as assistants in a work of so much labour and importance, joined with the difficulty of obtaining many useful and necessary books connected with the subject of the work, had retarded its progress, and thrown considerable impediments in the way of its completion. An attempt was made to remove these obstacles; and a bill was passed for that purpose by the house of representatives; but it was unfortunately negatived by the senate. The design of framing a digest under the authority of the legislature was, of course, relinquished. But the Author still contemplated the execution of a similar design, as a private work; supported only by his own name; and it occupied, for a long time, his assiduous attention. He had, in a great degree, prepared the materials; but did not live to arrange them, and compose the contemplated digest.
From these causes, the lectures continued in the state, in which they now appear. The Editor has not thought himself at liberty to make any alterations in the language of the Author: the lecturing style is, therefore, retained. He has, however, been obliged to adopt a division not, perhaps, strictly in unison with that style, but the only one which was in his power—that into parts and chapters, according to the subjects. They were never divided by the Author into distinct lectures; as, according to his mode of delivering them, they were frequently attended with recapitulations, and often embraced parts of his observations on different subjects.
Of the other parts of the contents of these volumes, the tracts on the legislative authority of parliament over the colonies, and on the Bank of North America, were before published; as were also the speech in convention on 26th November, 1787, and the oration on 4th July, 1788. These, with the other speeches now published, appear to have been selected for publication by the Author himself. His charges to grand juries in the federal courts, the Editor has not thought it proper to insert; because, as they related generally to the history, powers, and duties of juries, the contents of them are to be found in the lectures. One, however, he has selected and inserted, because it contains a concise and handsome view of the criminal law of the United States, nearly as it stands at present, and many important observations not to be found in the other works.
Of the value and merit of these volumes, the Editor will say nothing. He leaves that subject to the judgment of those who can estimate them with greater impartiality. In some parts, perhaps, they want that degree of polish, which the farther attention and corrections of the Author might have bestowed on them; and repetitions, which sometimes occur, and which, in lectures delivered, are not only excusable but proper, would probably not have been met with, had they been corrected by himself for the press. On the whole, however, the Editor trusts, that they will not be thought unworthy, either in style or sentiment, of the reputation of their Author.
[a. ]3. Ins. 308.
[b. ]R. O. book. A. p. 22.
[c. ]De leg. 1. 2. c. 23.
[1. ]That essential song.
[2. ]Plato (428–348 bc), a student of Socrates and a teacher of Aristotle, was an important Greek philosopher.
[d. ]Bl. Com. 410. 2. Id. 58.
[e. ]Reid. Ess. Int. 127.
[f. ]C. 29.