WHILE things were in this situation, the clergy, finding it impossible
to root out the municipal law, began to withdraw themselves by degrees
from the temporal courts; and to that end, very early in the reign of
king Henry the third, episcopal constitutions were published[i],
forbidding all ecclesiastics to appear as advocates _in foro
saeculari_; nor did they long continue to act as judges there, nor
caring to take the oath of office which was then found necessary to be
administred, that they should in all things determine according to the
law and custom of this realm[k]; though they still kept possession of
the high office of chancellor, an office then of little juridical
power; and afterwards, as it's business increased by degrees, they
modelled the process of the court at their own discretion.
[Footnote i: Spelman. _Concil. A.D._ 1217. Wilkins, _vol._ 1. _p._
574, 599.]
[Footnote k: Selden. _in Fletam._ 9. 3.]
BUT wherever they retired, and wherever their authority extended, they
carried with them the same zeal to introduce the rules of the civil,
in exclusion of the municipal law. This appears in a particular manner
from the spiritual courts of all denominations, from the chancellor's
courts in both our universities, and from the high court of chancery
before-mentioned; in all of which the proceedings are to this day in a
course much conformed to the civil law: for which no tolerable reason
can be assigned, unless that these courts were all under the immediate
direction of the popish ecclesiastics, among whom it was a point of
religion to exclude the municipal law; pope Innocent the fourth
having[l] forbidden the very reading of it by the clergy, because it's
decisions were not founded on the imperial constitutions, but merely
on the customs of the laity. And if it be considered, that our
universities began about that period to receive their present form of
scholastic discipline; that they were then, and continued to be till
the time of the reformation, entirely under the influence of the
popish clergy; (sir John Mason the first protestant, being also the
first lay, chancellor of Oxford) this will lead us to perceive the
reason, why the study of the Roman laws was in those days of
bigotry[m] pursued with such alacrity in these seats of learning; and
why the common law was entirely despised, and esteemed little better
than heretical.
[Footnote l: M. Paris _ad A.D._ 1254.]
[Footnote m: There cannot be a stronger instance of the absurd and
superstitious veneration that was paid to these laws, than that the
most learned writers of the times thought they could not form a
perfect character, even of the blessed virgin, without making her a
civilian and a canonist. Which Albertus Magnus, the renowned dominican
doctor of the thirteenth century, thus proves in his _Summa de
laudibus christiferae virginis (divinum magis quam humanum opus)_
_qu._ 23. §. 5. "_Item quod jura civilia, & leges, & decreta scivit in
summo, probatur hoc modo: sapientia advocati manifestatur in tribus;
unum, quod obtineat omnia contra judicem justum & sapientem; secundo,
quod contra adversarium astutum & sagacem; tertio, quod in causa
desperata: sed beatissima virgo, contra judicem sapientissimum,
Dominum; contra adversarium callidissimum, dyabolum; in causa nostra
desperata; sententiam optatam obtinuit._" To which an eminent
franciscan, two centuries afterwards, Bernardinus de Busti (_Mariale_,
_part._ 4. _serm._ 9.) very gravely subjoins this note. "_Nec videtur
incongruum mulieres habere peritiam juris. Legitur enim de uxore
Joannis Andreae glossatoris, quod tantam peritiam in utroque jure
habuit, ut publice in scholis legere ausa sit._"]
AND, since the reformation, many causes have conspired to prevent it's
becoming a part of academical education. As, first, long usage and
established custom; which, as in every thing else, so especially in
the forms of scholastic exercise, have justly great weight and
authority. Secondly, the real intrinsic merit of the civil law,
considered upon the footing of reason and not of obligation, which was
well known to the instructors of our youth; and their total ignorance
of the merit of the common law, though it's equal at least, and
perhaps an improvement on the other. But the principal reason of all,
that has hindered the introduction of this branch of learning, is,
that the study of the common law, being banished from hence in the
times of popery, has fallen into a quite different chanel, and has
hitherto been wholly cultivated in another place. But as this long
usage and established custom, of ignorance in the laws of the land,
begin now to be thought unreasonable; and as by this means the merit
of those laws will probably be more generally known; we may hope that
the method of studying them will soon revert to it's antient course,
and the foundations at least of that science will be laid in the two
universities; without being exclusively confined to the chanel which
it fell into at the times I have been just describing.
FOR, being then entirely abandoned by the clergy, a few stragglers
excepted, the study and practice of it devolved of course into the
hands of laymen; who entertained upon their parts a most hearty
aversion to the civil law[n], and made no scruple to profess their
contempt, nay even their ignorance[o] of it, in the most public
manner. But still, as the ballance of learning was greatly on the side
of the clergy, and as the common law was no longer _taught_, as
formerly, in any part of the kingdom, it must have been subjected to
many inconveniences, and perhaps would have been gradually lost and
overrun by the civil, (a suspicion well justified from the frequent
transcripts of Justinian to be met with in Bracton and Fleta) had it
not been for a peculiar incident, which happened at a very critical
time, and contributed greatly to it's support.
[Footnote n: Fortesc. _de laud. LL._ _c._ 25.]
[Footnote o: This remarkably appeared in the case of the abbot of
Torun, _M._ 22 _E._ 3. 24. who had caused a certain prior to be
summoned to answer at Avignon for erecting an oratory _contra
inhibitionem novi operis_; by which words Mr Selden, (_in Flet._ 8.
5.) very justly understands to be meant the title _de novi operis
nuntiatione_ both in the civil and canon laws, (_Ff._ 39. 1. _C._ 8.
11. and _Decretal._ not _Extrav._ 5. 32.) whereby the erection of any
new buildings in prejudice of more antient ones was prohibited. But
Skipwith the king's serjeant, and afterwards chief baron of the
exchequer, declares them to be flat nonsense; "_in ceux parolx_,
contra inhibitionem novi operis, _ny ad pas entendment_:" and justice
Schardelow mends the matter but little by informing him, that they
signify a restitution _in their law_; for which reason he very sagely
resolves to pay no sort of regard to them. "_Ceo n'est que un
restitution en lour ley, pur que a ceo n'avomus regard, &c._"]
THE incident I mean was the fixing the court of common pleas, the
grand tribunal for disputes of property, to be held in one certain
spot; that the seat of ordinary justice might be permanent and
notorious to all the nation. Formerly that, in conjunction with all
the other superior courts, was held before the king's capital
justiciary of England, in the _aula regis_, or such of his palaces
wherein his royal person resided; and removed with his houshold from
one end of the kingdom to the other. This was found to occasion great
inconvenience to the suitors; to remedy which it was made an article
of the great charter of liberties, both that of king John and king
Henry the third[p], that "common pleas should no longer follow the
king's court, but be held in some certain place:" in consequence of
which they have ever since been held (a few necessary removals in
times of the plague excepted) in the palace of Westminster only. This
brought together the professors of the municipal law, who before were
dispersed about the kingdom, and formed them into an aggregate body;
whereby a society was established of persons, who (as Spelman[q]
observes) addicting themselves wholly to the study of the laws of the
land, and no longer considering it as a mere subordinate science for
the amusement of leisure hours, soon raised those laws to that pitch
of perfection, which they suddenly attained under the auspices of our
English Justinian, king Edward the first.
[Footnote p: _c._ 11.]
[Footnote q: _Glossar._ 334.]
IN consequence of this lucky assemblage, they naturally fell into a
kind of collegiate order, and, being excluded from Oxford and
Cambridge, found it necessary to establish a new university of their
own. This they did by purchasing at various times certain houses (now
called the inns of court and of chancery) between the city of
Westminster, the place of holding the king's courts, and the city of
London; for advantage of ready access to the one, and plenty of
provisions in the other[r]. Here exercises were performed, lectures
read, and degrees were at length conferred in the common law, as at
other universities in the canon and civil. The degrees were those of
barristers (first stiled apprentices[s] from _apprendre_, to learn)
who answered to our bachelors; as the state and degree of a
serjeant[t], _servientis ad legem_, did to that of doctor.
[Footnote r: Fortesc. _c._ 48.]
[Footnote s: Apprentices or Barristers seem to have been first
appointed by an ordinance of king Edward the first in parliament, in
the 20th year of his reign. (Spelm. _Gloss._ 37. Dugdale. _Orig.
jurid._ 55.)]
[Footnote t: The first mention I have met with in our lawbooks of
serjeants or countors, is in the statute of Westm. 1. 3 Edw. I. c. 29.
and in Horn's Mirror, _c._ 1. §. 10. _c._ 2. §. 5. _c._ 3. §. 1. in
the same reign. But M. Paris in his life of John II, abbot of St.
Alban's, which he wrote in 1255, 39 Hen. III. speaks of advocates at
the common law, or countors (_quos banci narratores vulgariter
appellamus_) as of an order of men well known. And we have an example
of the antiquity of the coif in the same author's history of England,
_A.D._ 1259. in the case of one William de Bussy; who, being called to
account for his great knavery and malpractices, claimed the benefit of
his orders or clergy, which till then remained an entire secret; and
to that end _voluit ligamenta coifae suae solvere, ut palam monstraret
se tonsuram habere clericalem; sed non est permissus.----Satelles vero
eum arripiens, non per coifae ligamina sed per guttur eum
apprehendens, traxit ad carcerem_. And hence sir H. Spelman
conjectures, (_Glossar._ 335.) that coifs were introduced to hide the
tonsure of such renegade clerks, as were still tempted to remain in
the secular courts in the quality of advocates or judges,
notwithstanding their prohibition by canon.]
THE crown seems to have soon taken under it's protection this infant
seminary of common law; and, the more effectually to foster and
cherish it, king Henry the third in the nineteenth year of his reign
issued out an order directed to the mayor and sheriffs of London,
commanding that no regent of any law schools _within_ that city should
for the future teach law therein[u]. The word, law, or _leges_, being
a general term, may create some doubt at this distance of time whether
the teaching of the civil law, or the common, or both, is hereby
restrained. But in either case it tends to the same end. If the civil
law only is prohibited, (which is Mr Selden's[w] opinion) it is then a
retaliation upon the clergy, who had excluded the common law from
_their_ seats of learning. If the municipal law be also included in
the restriction, (as sir Edward Coke[x] understands it, and which the
words seem to import) then the intention is evidently this; by
preventing private teachers within the walls of the city, to collect
all the common lawyers into the one public university, which was newly
instituted in the suburbs.
[Footnote u: _Ne aliquis scholas regens de legibus in eadem civitate
de caetero ibidem leges doceat._]
[Footnote w: _in Flet._ 8. 2.]
[Footnote x: 2 Inst. proem.]
IN this juridical university (for such it is insisted to have been by
Fortescue[y] and sir Edward Coke[z]) there are two sorts of collegiate
houses; one called inns of chancery, in which the younger students of
the law were usually placed, "learning and studying, says
Fortescue[a], the originals and as it were the elements of the law;
who, profiting therein, as they grow to ripeness so are they admitted
into the greater inns of the same study, called the inns of court."
And in these inns of both kinds, he goes on to tell us, the knights
and barons, with other grandees and noblemen of the realm, did use to
place their children, though they did not desire to have them
thoroughly learned in the law, or to get their living by it's
practice: and that in his time there were about two thousand students
at these several inns, all of whom he informs us were _filii
nobilium_, or gentlemen born.
[Footnote y: _c._ 49.]
[Footnote z: 3 Rep. pref.]
[Footnote a: _ibid._]
HENCE it is evident, that (though under the influence of the monks our
universities neglected this study, yet) in the time of Henry the sixth
it was thought highly necessary and was the universal practice, for
the young nobility and gentry to be instructed in the originals and
elements of the laws. But by degres [Transcriber's Note: degrees] this
custom has fallen into disuse; so that in the reign of queen Elizabeth
sir Edward Coke[b] does not reckon above a thousand students, and the
number at present is very considerably less. Which seems principally
owing to these reasons: first, because the inns of chancery being now
almost totally filled by the inferior branch of the profession, they
are neither commodious nor proper for the resort of gentlemen of any
rank or figure; so that there are now very rarely any young students
entered at the inns of chancery: secondly, because in the inns of
court all sorts of regimen and academical superintendance, either with
regard to morals or studies, are found impracticable and therefore
entirely neglected: lastly, because persons of birth and fortune,
after having finished their usual courses at the universities, have
seldom leisure or resolution sufficient to enter upon a new scheme of
study at a new place of instruction. Wherefore few gentlemen now
resort to the inns of court, but such for whom the knowlege of
practice is absolutely necessary; such, I mean, as are intended for
the profession: the rest of our gentry, (not to say our nobility also)
having usually retired to their estates, or visited foreign kingdoms,
or entered upon public life, without any instruction in the laws of
the land; and indeed with hardly any opportunity of gaining
instruction, unless it can be afforded them in these seats of
learning.
[Footnote b: _ibid._]
AND that these are the proper places, for affording assistances of
this kind to gentlemen of all stations and degrees, cannot (I think)
with any colour of reason be denied. For not one of the objections,
which are made to the inns of court and chancery, and which I have
just enumerated, will hold with regard to the universities. Gentlemen
may here associate with gentlemen of their own rank and degree. Nor
are their conduct and studies left entirely to their own discretion;
but regulated by a discipline so wise and exact, yet so liberal, so
sensible and manly, that their conformity to it's rules (which does at
present so much honour to our youth) is not more the effect of
constraint, than of their own inclinations and choice. Neither need
they apprehend too long an avocation hereby from their private
concerns and amusements, or (what is a more noble object) the service
of their friends and their country. This study will go hand in hand
with their other pursuits: it will obstruct none of them; it will
ornament and assist them all.
BUT if, upon the whole, there are any still wedded to monastic
prejudice, that can entertain a doubt how far this study is properly
and regularly _academical_, such persons I am afraid either have not
considered the constitution and design of an university, or else think
very meanly of it. It must be a deplorable narrowness of mind, that
would confine these seats of instruction to the limited views of one
or two learned professions. To the praise of this age be it spoken, a
more open and generous way of thinking begins now universally to
prevail. The attainment of liberal and genteel accomplishments, though
not of the intellectual sort, has been thought by our wisest and most
affectionate patrons[c], and very lately by the whole university[d],
no small improvement of our antient plan of education; and therefore I
may safely affirm that nothing (how _unusual_ soever) is, under due
regulations, improper to be _taught_ in this place, which is proper
for a gentleman to _learn_. But that a science, which distinguishes
the criterions of right and wrong; which teaches to establish the one,
and prevent, punish, or redress the other; which employs in it's
theory the noblest faculties of the soul, and exerts in it's practice
the cardinal virtues of the heart; a science, which is universal in
it's use and extent, accommodated to each individual, yet
comprehending the whole community; that a science like this should
have ever been deemed unnecessary to be studied in an university, is
matter of astonishment and concern. Surely, if it were not before an
object of academical knowlege, it was high time to make it one; and to
those who can doubt the propriety of it's reception among us (if any
such there be) we may return an answer in their own way; that ethics
are confessedly a branch of academical learning, and Aristotle
_himself has said_, speaking of the laws of his own country, that
jurisprudence or the knowlege of those laws is the principal and
most[e] perfect branch of ethics.
[Footnote c: Lord chancellor Clarendon, in his dialogue of education,
among his tracts, p. 325. appears to have been very solicitous, that
it might be made "a part of the ornament of our learned academies to
teach the qualities of riding, dancing, and fencing, at those hours
when more serious exercises should be intermitted."]
[Footnote d: By accepting in full convocation the remainder of lord
Clarendon's history from his noble descendants, on condition to apply
the profits arising from it's publication to the establishment of a
_manage_ in the university.]
[Footnote e: [Greek: Teleia malista arete, hoti tes teleias aretes
chresis esti.] _Ethic. ad Nicomach._ _l._ 5. _c._ 3.]
FROM a thorough conviction of this truth, our munificent benefactor Mr
VINER, having employed above half a century in amassing materials for
new modelling and rendering more commodious the rude study of the laws
of the land, consigned both the plan and execution of these his
public-spirited designs to the wisdom of his parent university.
Resolving to dedicate his learned labours "to the benefit of posterity
and the perpetual service of his country[f]," he was sensible he could
not perform his resolutions in a better and more effectual manner,
than by extending to the youth of this place those assistances, of
which he so well remembered and so heartily regretted the want. And
the sense, which the university has entertained of this ample and most
useful benefaction, must appear beyond a doubt from their gratitude in
receiving it with all possible marks of esteem[g]; from their alacrity
and unexampled dispatch in carrying it into execution[h]; and, above
all, from the laws and constitutions by which they have effectually
guarded it from the neglect and abuse to which such institutions are
liable[i]. We have seen an universal emulation, who best should
understand, or most faithfully pursue, the designs of our generous
patron: and with pleasure we recollect, that those who are most
distinguished by their quality, their fortune, their station, their
learning, or their experience, have appeared the most zealous to
promote the success of Mr Viner's establishment.
[Footnote f: See the preface to the eighteenth volume of his
abridgment.]
[Footnote g: Mr Viner is enrolled among the public benefactors of the
university by decree of convocation.]
[Footnote h: Mr Viner died June 5, 1756. His effects were collected
and settled, near a volume of his work printed, almost the whole
disposed of, and the accounts made up, in a year and a half from his
decease, by the very diligent and worthy administrators with the will
annexed, (Dr West and Dr Good of Magdalene, Dr Whalley of Oriel, Mr
Buckler of All Souls, and Mr Betts of University college) to whom that
care was consigned by the university. Another half year was employed
in considering and settling a plan of the proposed institution, and in
framing the statutes thereupon, which were finally confirmed by
convocation on the 3d of July, 1758. The professor was elected on
the 20th of October following, and two scholars on the succeeding
day. And, lastly, it was agreed at the annual audit in 1761, to
establish a fellowship; and a fellow was accordingly elected in
January following.--The residue of this fund, arising from the sale of
Mr Viner's abridgment, will probably be sufficient hereafter to found
another fellowship and scholarship, or three more scholarships, as
shall be thought most expedient.]
[Footnote i: The statutes are in substance as follows:
1. THAT the accounts of this benefaction be separately kept, and
annually audited by the delegates of accounts and professor, and
afterwards reported to convocation.
2. THAT a professorship of the laws of England be established, with a
salary of two hundred pounds _per annum_; the professor to be elected
by convocation, and to be at the time of his election at least a
master of arts or bachelor of civil law in the university of Oxford,
of ten years standing from his matriculation; and also a barrister at
law of four years standing at the bar.
3. THAT such professor (by himself, or by deputy to be previously
approved by convocation) do read one solemn public lecture on the laws
of England, and in the English language, in every academical term, at
certain stated times previous to the commencement of the common law
term; or forfeit twenty pounds for every omission to Mr Viner's
general fund: and also (by himself, or by deputy to be approved, if
occasional, by the vice-chancellor and proctors; or, if permanent,
both the cause and the deputy to be annually approved by convocation)
do yearly read one complete course of lectures on the laws of England,
and in the English language, consisting of sixty lectures at the
least, to be read during the university term time, with such proper
intervals that not more than four lectures may fall within any single
week: that the professor do give a month's notice of the time when the
course is to begin, and do read _gratis_ to the scholars of Mr Viner's
foundation; but may demand of other auditors such gratuity as shall be
settled from time to time by decree of convocation: and that, for
every of the said sixty lectures omitted, the professor, on complaint
made to the vice-chancellor within the year, do forfeit forty
shillings to Mr Viner's general fund; the proof of having performed
his duty to lie upon the said professor.
4. THAT every professor do continue in his office during life, unless
in case of such misbehaviour as shall amount to bannition by the
university statutes; or unless he deserts the profession of the law by
betaking himself to another profession; or unless, after one
admonition by the vice-chancellor and proctors for notorious neglect,
he is guilty of another flagrant omission: in any of which cases he be
deprived by the vice-chancellor, with consent of the house of
convocation.
5. THAT such a number of fellowships with a stipend of fifty pounds
_per annum_, and scholarships with a stipend of thirty pounds be
established, as the convocation shall from time to time ordain,
according to the state of Mr Viner's revenues.
6. THAT every fellow be elected by convocation, and at the time of
election be unmarried, and at least a master of arts or bachelor of
civil law, and a member of some college or hall in the university of
Oxford; the scholars of this foundation or such as have been scholars
(if qualified and approved of by convocation) to have the preference:
that, if not a barrister when chosen, he be called to the bar within
one year after his election; but do reside in the university two
months in every year, or in case of non-residence do forfeit the
stipend of that year to Mr Viner's general fund.
7. THAT every scholar be elected by convocation, and at the time of
election be unmarried, and a member of some college or hall in the
university of Oxford, who shall have been matriculated twenty four
calendar months at the least: that he do take the degree of bachelor
of civil law with all convenient speed; (either proceeding in arts or
otherwise) and previous to his taking the same, between the second and
eighth year from his matriculation, be bound to attend two courses of
the professor's lectures, to be certified under the professor's hand;
and within one year after taking the same be called to the bar: that
he do annually reside six months till he is of four years standing,
and four months from that time till he is master of arts or bachelor
of civil law; after which he be bound to reside two months in every
year; or, in case of non-residence, do forfeit the stipend of that
year to Mr Viner's general fund.
8. THAT the scholarships do become void in case of non-attendance on
the professor, or not taking the degree of bachelor of civil law,
being duly admonished so to do by the vice-chancellor and proctors:
and that both fellowships and scholarships do expire at the end of ten
years after each respective election; and become void in case of gross
misbehaviour, non-residence for two years together, marriage, not
being called to the bar within the time before limited, (being duly
admonished so to be by the vice-chancellor and proctors) or deserting
the profession of the law by following any other profession: and that
in any of these cases the vice-chancellor, with consent of
convocation, do declare the place actually void.
9. THAT in case of any vacancy of the professorship, fellowships, or
scholarships, the profits of the current year be ratably divided
between the predecessor or his representatives, and the successor; and
that a new election be had within one month afterwards, unless by that
means the time of election shall fall within any vacation, in which
case it be deferred to the first week in the next full term. And that
before any convocation shall be held for such election, or for any
other matter relating to Mr Viner's benefaction, ten days public
notice be given to each college and hall of the convocation, and the
cause of convoking it.]
THE advantages that might result to the science of the law itself,
when a little more attended to in these seats of knowlege, perhaps
would be very considerable. The leisure and abilities of the learned
in these retirements might either suggest expedients, or execute those
dictated by wiser heads[k], for improving it's method, retrenching
it's superfluities, and reconciling the little contrarieties, which
the practice of many centuries will necessarily create in any human
system: a task, which those who are deeply employed in business, and
the more active scenes of the profession, can hardly condescend to
engage in. And as to the interest, or (which is the same) the
reputation of the universities themselves, I may venture to pronounce,
that if ever this study should arrive to any tolerable perfection
either here or at Cambridge, the nobility and gentry of this kingdom
would not shorten their residence upon this account, nor perhaps
entertain a worse opinion of the benefits of academical education.
Neither should it be considered as a matter of light importance, that
while we thus extend the _pomoeria_ of university learning, and adopt
a new tribe of citizens within these philosophical walls, we interest
a very numerous and very powerful profession in the preservation of
our rights and revenues.
[Footnote k: See lord Bacon's proposals and offer of a digest.]
FOR I think it is past dispute that those gentlemen, who resort to the
inns of court with a view to pursue the profession, will find it
expedient (whenever it is practicable) to lay the previous foundations
of this, as well as every other science, in one of our learned
universities. We may appeal to the experience of every sensible
lawyer, whether any thing can be more hazardous or discouraging than
the usual entrance on the study of the law. A raw and unexperienced
youth, in the most dangerous season of life, is transpanted
[Transcriber's Note: transplanted] on a sudden into the midst of
allurements to pleasure, without any restraint or check but what his
own prudence can suggest; with no public direction in what course to
pursue his enquiries; no private assistance to remove the distresses
and difficulties, which will always embarass a beginner. In this
situation he is expected to sequester himself from the world, and by a
tedious lonely process to extract the theory of law from a mass of
undigested learning; or else by an assiduous attendance on the courts
to pick up theory and practice together, sufficient to qualify him for
the ordinary run of business. How little therefore is it to be
wondered at, that we hear of so frequent miscarriages; that so many
gentlemen of bright imaginations grow weary of so unpromising a
search[l], and addict themselves wholly to amusements, or other less
innocent pursuits; and that so many persons of moderate capacity
confuse themselves at first setting out, and continue ever dark and
puzzled during the remainder of their lives!
[Footnote l: Sir Henry Spelman, in the preface to his glossary, gives
us a very lively picture of his own distress upon this occasion.
"_Emisit me mater Londinum, juris nostri capessendi gratia; cujus cum
vestibulum salutassem, reperissemque linguam peregrinam, dialectum
barbaram, methodum inconcinnam, molem non ingentem solum sed perpetuis
humeris sustinendam, excidit mihi (fateor) animus, &c._"]
THE evident want of some assistance in the rudiments of legal
knowlege, has given birth to a practice, which, if ever it had grown
to be general, must have proved of extremely pernicious consequence:
I mean the custom, by some so very warmly recommended, to drop all
liberal education, as of no use to lawyers; and to place them, in it's
stead, as [Transcriber's Note: at] the desk of some skilful attorney;
in order to initiate them early in all the depths of practice, and
render them more dextrous in the mechanical part of business. A few
instances of particular persons, (men of excellent learning, and
unblemished integrity) who, in spight of this method of education,
have shone in the foremost ranks of the bar, have afforded some kind
of sanction to this illiberal path to the profession, and biassed many
parents, of shortsighted judgment, in it's favour: not considering,
that there are some geniuses, formed to overcome all disadvantages,
and that from such particular instances no general rules can be
formed; nor observing, that those very persons have frequently
recommended by the most forcible of all examples, the disposal of
their own offspring, a very different foundation of legal studies, a
regular academical education. Perhaps too, in return, I could now
direct their eyes to our principal seats of justice, and suggest a few
hints, in favour of university learning[m]:--but in these all who hear
me, I know, have already prevented me.
[Footnote m: The four highest offices in the law were at that time
filled by gentlemen, two of whom had been fellows of All Souls
college; another, student of Christ-Church; and the fourth a fellow of
Trinity college, Cambridge.]
MAKING therefore due allowance for one or two shining exceptions,
experience may teach us to foretell that a lawyer thus educated to the
bar, in subservience to attorneys and solicitors[n], will find he has
begun at the wrong end. If practice be the whole he is taught,
practice must also be the whole he will ever know: if he be
uninstructed in the elements and first principles upon which the rule
of practice is founded, the least variation from established
precedents will totally distract and bewilder him: _ita lex scripta
est_[o] is the utmost his knowlege will arrive at; he must never
aspire to form, and seldom expect to comprehend, any arguments drawn
_a priori_, from the spirit of the laws and the natural foundations of
justice.
[Footnote n: See Kennet's life of Somner. p. 67.]
[Footnote o: _Ff._ 40. 9. 12.]
NOR is this all; for (as few persons of birth, or fortune, or even of
scholastic education, will submit to the drudgery of servitude and the
manual labour of copying the trash of an office) should this
infatuation prevail to any considerable degree, we must rarely expect
to see a gentleman of distinction or learning at the bar. And what the
consequence may be, to have the interpretation and enforcement of the
laws (which include the entire disposal of our properties, liberties,
and lives) fall wholly into the hands of obscure or illiterate men, is
matter of very public concern.
THE inconveniences here pointed out can never be effectually
prevented, but by making academical education a previous step to the
profession of the common law, and at the same time making the
rudiments of the law a part of academical education. For sciences are
of a sociable disposition, and flourish best in the neighbourhood of
each other: nor is there any branch of learning, but may be helped and
improved by assistances drawn from other arts. If therefore the
student in our laws hath formed both his sentiments and style, by
perusal and imitation of the purest classical writers, among whom the
historians and orators will best deserve his regard; if he can reason
with precision, and separate argument from fallacy, by the clear
simple rules of pure unsophisticated logic; if he can fix his
attention, and steadily pursue truth through any the most intricate
deduction, by the use of mathematical demonstrations; if he has
enlarged his conceptions of nature and art, by a view of the several
branches of genuine, experimental, philosophy; if he has impressed on
his mind the sound maxims of the law of nature, the best and most
authentic foundation of human laws; if, lastly, he has contemplated
those maxims reduced to a practical system in the laws of imperial
Rome; if he has done this or any part of it, (though all may be easily
done under as able instructors as ever graced any seats of learning) a
student thus qualified may enter upon the study of the law with
incredible advantage and reputation. And if, at the conclusion, or
during the acquisition of these accomplishments, he will afford
himself here a year or two's farther leisure, to lay the foundation of
his future labours in a solid scientifical method, without thirsting
too early to attend that practice which it is impossible he should
rightly comprehend, he will afterwards proceed with the greatest ease,
and will unfold the most intricate points with an intuitive rapidity
and clearness.
I SHALL not insist upon such motives as might be drawn from principles
of oeconomy, and are applicable to particulars only: I reason upon
more general topics. And therefore to the qualities of the head, which
I have just enumerated, I cannot but add those of the heart;
affectionate loyalty to the king, a zeal for liberty and the
constitution, a sense of real honour, and well grounded principles of
religion; as necessary to form a truly valuable English lawyer, a
Hyde, a Hale, or a Talbot. And, whatever the ignorance of some, or
unkindness of others, may have heretofore untruly suggested,
experience will warrant us to affirm, that these endowments of loyalty
and public spirit, of honour and religion, are no where to be found in
more high perfection than in the two universities of this kingdom.
BEFORE I conclude, it may perhaps be expected, that I lay before you a
short and general account of the method I propose to follow, in
endeavouring to execute the trust you have been pleased to repose in
my hands. And in these solemn lectures, which are ordained to be read
at the entrance of every term, (more perhaps to do public honour to
this laudable institution, than for the private instruction of
individuals[p]) I presume it will best answer the intent of our
benefactor and the expectation of this learned body, if I attempt to
illustrate at times such detached titles of the law, as are the most
easy to be understood, and most capable of historical or critical
ornament. But in reading the complete course, which is annually
consigned to my care, a more regular method will be necessary; and,
till a better is proposed, I shall take the liberty to follow the
same that I have already submitted to the public[q]. To fill up and
finish that outline with propriety and correctness, and to render the
whole intelligible to the uninformed minds of beginners, (whom we are
too apt to suppose acquainted with terms and ideas, which they never
had opportunity to learn) this must be my ardent endeavour, though by
no means my promise to accomplish. You will permit me however very
briefly to describe, rather what I conceive an academical expounder of
the laws should do, than what I have ever known to be done.
[Footnote p: See Lowth's _Oratio Crewiana_, p. 365.]
[Footnote q: The Analysis of the laws of England, first published,
_A.D._ 1756, and exhibiting the order and principal divisions of the
ensuing COMMENTARIES; which were originally submitted to the
university in a private course of lectures, _A.D._ 1753.]
HE should consider his course as a general map of the law, marking out
the shape of the country, it's connexions and boundaries, it's greater
divisions and principal cities: it is not his business to describe
minutely the subordinate limits, or to fix the longitude and latitude
of every inconsiderable hamlet. His attention should be engaged, like
that of the readers in Fortescue's inns of chancery, "in tracing out
the originals and as it were the elements of the law." For if, as
Justinian[r] has observed, the tender understanding of the student be
loaded at the first with a multitude and variety of matter, it will
either occasion him to desert his studies, or will carry him heavily
through them, with much labour, delay, and despondence. These
originals should be traced to their fountains, as well as our distance
will permit; to the customs of the Britons and Germans, as recorded by
Caesar and Tacitus; to the codes of the northern nations on the
continent, and more especially to those of our own Saxon princes; to
the rules of the Roman law, either left here in the days of Papinian,
or imported by Vacarius and his followers; but, above all, to that
inexhaustible reservoir of legal antiquities and learning, the feodal
law, or, as Spelman[s] has entitled it, the law of nations in our
western orb. These primary rules and fundamental principles should be
weighed and compared with the precepts of the law of nature, and the
practice of other countries; should be explained by reasons,
illustrated by examples, and confirmed by undoubted authorities; their
history should be deduced, their changes and revolutions observed, and
it should be shewn how far they are connected with, or have at any
time been affected by, the civil transactions of the kingdom.
[Footnote r: _Incipientibus nobis exponere jura populi Romani, ita
videntur tradi posse commodissime, si primo levi ac simplici via
singula tradantur: Alioqui, si statim ab initio rudem adhuc & infirmum
animum studiosi multitudine ac varietate rerum oneravimus, duorum
alterum, aut desertorem studiorum efficiemus, aut cum magno labore,
saepe etiam cum diffidentia (quae plerumque juvenes avertit) serius ad
id perducemus, ad quod leviore via ductus, sine magno labore & sine
ulla diffidentia maturius perduci potuisset._ _Inst._ 1. 1. 2.]
[Footnote s: Of Parliaments. 57.]
A PLAN of this nature, if executed with care and ability, cannot fail
of administring a most useful and rational entertainment to students
of all ranks and professions; and yet it must be confessed that the
study of the laws is not merely a matter of amusement: for as a very
judicious writer[t] has observed upon a similar occasion, the learner
"will be considerably disappointed if he looks for entertainment
without the expence of attention." An attention, however, not greater
than is usually bestowed in mastering the rudiments of other sciences,
or sometimes in pursuing a favorite recreation or exercise. And this
attention is not equally necessary to be exerted by every student upon
every occasion. Some branches of the law, as the formal process of
civil suits, and the subtile distinctions incident to landed property,
which are the most difficult to be thoroughly understood, are the
least worth the pains of understanding, except to such gentlemen as
intend to pursue the profession. To others I may venture to apply,
with a slight alteration, the words of sir John Fortescue[u], when
first his royal pupil determines to engage in this study. "It will not
be necessary for a gentleman, as such, to examine with a close
application the critical niceties of the law. It will fully be
sufficient, and he may well enough be denominated a lawyer, if under
the instruction of a master he traces up the principles and grounds of
the law, even to their original elements. Therefore in a very short
period, and with very little labour, he may be sufficiently informed
in the laws of his country, if he will but apply his mind in good
earnest to receive and apprehend them. For, though such knowlege as is
necessary for a judge is hardly to be acquired by the lucubrations of
twenty years, yet with a genius of tolerable perspicacity, that
knowlege which is fit for a person of birth or condition may be
learned in a single year, without neglecting his other improvements."
[Footnote t: Dr Taylor's preface to Elem. of civil law.]
[Footnote u: _Tibi, princeps, necesse non erit mysteria legis Angliae
longo disciplinatu rimare. Sufficiet tibi,--_et fatis _denominari
legista mereberis, si legum principia & causas, usque ad elementa,
discipuli more indagaveris.--Quare tu, princeps serenissime, parvo
tempore, parva industria, sufficienter eris in legibus regni Angliae
eruditus, dummodo ad ejus apprehensionem tu conferas animum
tuum.--Nosco namque ingenii tui perspicacitatem, quo audacter
pronuntio quod in legibus illis (licet earum peritia, qualis judicibus
necessaria est, vix viginti annorum lucubrationibus acquiratur) tu
doctrinam principi congruam in anno uno sufficienter nancisceris; nec
interim militarem disciplinam, ad quam tam ardenter anhelas, negliges;
sed ea, recreationis loco, etiam anno illo tu ad libitum perfrueris._
_c._ 8.]
TO the few therefore (the very few, I am persuaded,) that entertain
such unworthy notions of an university, as to suppose it intended for
mere dissipation of thought; to such as mean only to while away the
aukward interval from childhood to twenty one, between the restraints
of the school and the licentiousness of politer life, in a calm middle
state of mental and of moral inactivity; to these Mr Viner gives no
invitation to an entertainment which they never can relish. But to the
long and illustrious train of noble and ingenuous youth, who are not
more distinguished among us by their birth and possessions, than by
the regularity of their conduct and their thirst after useful
knowlege, to these our benefactor has consecrated the fruits of a long
and laborious life, worn out in the duties of his calling; and will
joyfully reflect (if such reflexions can be now the employment of his
thoughts) that he could not more effectually have benefited posterity,
or contributed to the service of the public, than by founding an
institution which may instruct the rising generation in the wisdom of
our civil polity, and inform them with a desire to be still better
acquainted with the laws and constitution of their country.
SECTION THE SECOND.
OF THE NATURE OF LAWS IN GENERAL.
LAW, in it's most general and comprehensive sense, signifies a rule of
action; and is applied indiscriminately to all kinds of action,
whether animate, or inanimate, rational or irrational. Thus we say,
the laws of motion, of gravitation, of optics, or mechanics, as well
as the laws of nature and of nations. And it is that rule of action,
which is prescribed by some superior, and which the inferior is bound
to obey.
THUS when the supreme being formed the universe, and created matter
out of nothing, he impressed certain principles upon that matter, from
which it can never depart, and without which it would cease to be.
When he put that matter into motion, he established certain laws of
motion, to which all moveable bodies must conform. And, to descend
from the greatest operations to the smallest, when a workman forms a
clock, or other piece of mechanism, he establishes at his own pleasure
certain arbitrary laws for it's direction; as that the hand shall
describe a given space in a given time; to which law as long as the
work conforms, so long it continues in perfection, and answers the end
of it's formation.
IF we farther advance, from mere inactive matter to vegetable and
animal life, we shall find them still governed by laws; more numerous
indeed, but equally fixed and invariable. The whole progres of plants,
from the seed to the root, and from thence to the seed again;--the
method of animal nutrition, digestion, secretion, and all other
branches of vital oeconomy;--are not left to chance, or the will of
the creature itself, but are performed in a wondrous involuntary
manner, and guided by unerring rules laid down by the great creator.
THIS then is the general signification of law, a rule of action
dictated by some superior being; and in those creatures that have
neither the power to think, nor to will, such laws must be invariably
obeyed, so long as the creature itself subsists, for it's existence
depends on that obedience. But laws, in their more confined sense, and
in which it is our present business to consider them, denote the
rules, not of action in general, but of _human_ action or conduct:
that is, the precepts by which man, the noblest of all sublunary
beings, a creature endowed with both reason and freewill, is commanded
to make use of those faculties in the general regulation of his behaviour. |
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