There are two characters,one or other of which every man who finds any thing to say on the subject of Law,may be said to take upon him;that of the Expositor ,and that of the Censor .To the province of the Expositor it belongs to explain to us what,as he supposes,the Law is:to that of the Censor,to observe to us what he thinks it ought to be.The former,therefore,is principally occupied in stating,or in enquiring after facts:(3)the latter,in discussing reasons.The Expositor ,keeping within his sphere,has no concern with any other faculties of the mind than the apprehension,the memory,and the judgment:the latter,in virtue of those sentiments of pleasure or displeasure which he finds occasion to annex to the objects under his review,holds some intercourse with the affections.That which is Law,is,in different countries,widely different:while that which ought to be,is in all countries to a great degree the same.The Expositor,therefore,is always the citizen of this or that particular country:the Censor is,or ought to be the citizen of the world.To the Expositor it belongs to shew what the Legislator and his underworkman the Judge have done already:to the Censor it belongs to suggest what the Legislator ought to do in future.To the Censor,in short,it belongs to teach that science,which when by change of hands converted into an art,the LEGISLATOR practises.
Let us now return to our Author.Of these two perfectly distinguishable functions,the latter alone is that which it fell necessarily within his province to discharge.His professed object was to explain to us what the Laws of England were.`Ita lex scripta est ',was the only motto which he stood engaged to keep in view.The work of censure (for to this word,in default of any other,I find it necessary to give a neutral sense)the work of censure,as it may be styled,or,in a certain sense,of criticism,was to him but a parergona work of supererogation:a work,indeed,which,if aptly executed,could not but be of great ornament to the principal one,and of great instruction as well as entertainment to the Reader,but from which our Author,as well as those that had gone before him on the same line,might,without being chargeable with any deficiency,have stood excused:a work which,when superadded to the principal,would lay the Author under additional obligations,and impose on him new duties:which,notwithstanding whatever else it might differ in from the principal one,agrees with it in this,that it ought to be executed with impartiality,or not at all.