 |
formado por un único campo de gules en que aparecen tres leones pasantes y
contorneados de oro, lampasados y armados o uñados de azur.
|
The
general expectation of so numerous and respectable an audience, the novelty,
and (I may add) the importance of the duty required from this chair, must
unavoidably be productive of great diffidence and apprehensions in him who has
the honor to be placed in it. He must be sensible how much will depend upon his
conduct in the infancy of a study which is now first adopted by public
academical authority; which has generally been reputed (however unjustly) of a
dry and unfruitful nature; and of which the theoretical elementary parts have
hitherto received a very moderate share of cultivation. He can not but reflect
that, if either his plan of instruction be crude and injudicious, or the
execution of it lame and superficial, it will cast a damp upon the farther
progress of this most useful and most rational branch of learning; and may
defeat for a time the [*4] public-spirited design of our wise and munificent
benefactor. And this he must more especially dread, when he feels by experience
how unequal his abilities are (unassisted by preceding examples) to complete,
in the manner he could wish, so extensive and arduous a task; since he freely
confesses, that his former more private attempts have fallen very short of his
own ideas of perfection. And yet the candor he has already experienced, and
this last transcendent mark of regard, his present nomination by the free and
unanimous suffrage of a great and learned university, (an honor to be ever
remembered with the deepest and most affectionate gratitude,) these testimonies
of your public judgment must entirely supersede his own, and forbid him to
believe himself totally insufficient for the labor at least of this employment.
One thing he will venture to hope for, and it certainly shall be his constant
aim, by diligence and attention to atone for his other defects; esteeming, that
the best return, which he can possibly make for your favorable opinion of his
capacity, will be his unwearied endeavors in some little degree to deserve it.
The
science thus committed to his charge, to be cultivated, methodized, and
explained in a course of academical lectures, is that of the laws and
constitution of our own country: a species of knowledge, in which the gentlemen
of England have been more remarkably deficient than those of all Europe
besides. In most of the nations on the continent, where the civil or imperial
law under different modifications is closely interwoven with the municipal laws
of the land, no gentleman, or at least no scholar, thinks his education is
completed, till he has attended a course or two of lectures, both upon the
institutes of Justinian and the local constitutions of his native soil, under
the very eminent professors that abound in their several universities. And in
the northern parts of our own island, where also the municipal laws are
frequently connected with the civil, it is difficult to meet with a person of
liberal education, who is destitute of a competent knowledge in that science,
which is to be the guardian of his natural rights and the rule of his civil
conduct.
[*5]
Nor have the imperial laws been totally neglected even in the English nation. A
general acquaintance with their decisions has ever been deservedly considered
as no small accomplishment of a gentleman; and a fashion has prevailed, especially
of late, to transport the growing hopes of this island to foreign universities,
in Switzerland, Germany, and Holland; which, though infinitely inferior to our
own in every other consideration, have been looked upon as better nurseries of
the civil, or (which is nearly the same) of their own municipal law. In the
mean time it has been the peculiar lot of our admirable system of laws, to be
neglected, and even unknown, by all but one practical profession, though built
upon the soundest foundations, and approved by the experience of ages.
Far
be it from me to derogate from the study of the civil law, considered (apart
from any binding authority) as a collection of written reason. No man is more
thoroughly persuaded of the general excellence of its rules, and the usual
equity of its decisions, nor is better convinced of its use as well as ornament
to the scholar, the divine, the statesman, and even the common lawyer. But we
must not carry our veneration so far as to sacrifice our Alfred and Edward to
the manes of Theodosius and Justinian; we must not prefer the edict of the
praetor, or the rescript of the Roman emperor, to our own immemorial customs or
the sanctions of an English parliament; unless we can also prefer the despotic
monarchy of Rome and Byzantium, for whose meridians the former were calculated,
to the free constitution of Britain, which the latter are adapted to
perpetuate.
Without detracting therefore from
the real merit which abounds in the imperial law, I hope I may have leave to
assert, that if an Englishman must be ignorant of either the one or the other,
he had better be a stranger to the Roman than the English institutions. For I
think it an undeniable position, that a competent knowledge of the laws of that
society [*6] in which we live, is the proper accomplishment of every gentleman
and scholar; an highly useful, I had almost said essential, part of liberal and
polite education. And in this I am warranted by the example of ancient Rome;
where, as Cicero inform us,1 the very boys were obliged to learn
the twelve tables by heart as a carmen necessarium, or indispensable lesson, to imprint
on their tender minds an early knowledge of the laws and constitution of their
country.
But
as the long and universal neglect of this study, with us in England, seems in
some degree to call in question the truth of this evident position, it shall
therefore be the business of this introductory discourse, in the first place to
demonstrate the utility of some general acquaintance with the municipal law of
the land, by pointing out its particular uses in all considerable situations of
life. Some conjectures will then be offered with regard to the causes of
neglecting this useful study; to which will be subjoined a few reflections on
the peculiar propriety of reviving it in our own universities.
And, first, to demonstrate the
utility of some acquaintance with the laws of the land, let us only reflect a
moment on the singular frame and polity of that land, which is governed by this
system of laws. A land, perhaps the only one in the universe, in which
political or civil liberty is the very end and scope of the constitution.2 This liberty, rightly understood
consists in the power of doing whatever the laws permit;3 which is only to be effected by a
general conformity of all orders and degrees to those equitable rules of
action, by which the meanest individual is protected from the insults and
oppression of the greatest. As therefore every subject is interested in the
preservation of the laws, it is incumbent upon every man to be acquainted with
those at least with which he is immediately concerned; lest he incur the censure,
as well as inconvenience, of living in society without knowing the obligations
which it lays him under. And thus much may suffice for per- [*7] sons of
inferior condition, who have neither time nor capacity to enlarge their views
beyond that contracted sphere in which they are appointed to move. But those on
whom nature and fortune have bestowed more abilities and greater leisure,
cannot be so easily excused. These advantages are given them, not for the
benefit of themselves only, but also of the public; and yet they cannot, in any
scene of life, discharge properly their duty either to the public or
themselves, without some degree of knowledge in the laws. To evince this the
more clearly, it may not be amiss to descend to a few particulars.
Let us therefore begin with our
gentlemen of independent estates and fortune, the most useful as well as
considerable body of men in the nation; whom even to suppose ignorant in this
branch of learning is treated by Mr. Locke4 as a strange absurdity. It is their
landed property, with its long and voluminous train of descents and
conveyances, settlements, entails and encumbrances, that forms the most
intricate and most extensive object of legal knowledge. The thorough
comprehension of these, in all their minute distinctions, is perhaps too
laborious a task for any but a lawyer by profession; yet still the
understanding of a few leading principles, relating to estates and
conveyancing, may form some check and guard upon a gentleman’s inferior agents,
and preserve him at least from very gross and notorious imposition.
Again,
the policy of all laws has made some forms necessary in the wording of last
wills and testaments, and more with regard to their attestation. An ignorance
in these must always be of dangerous consequence, to such as by choice or
necessity compile their own testaments without any technical assistance. Those
who have attended the courts of justice are the best witnesses of the confusion
and distresses that are hereby occasioned in families; and of the difficulties
that arise in discerning the true meaning of the testator, or sometimes in
discovering any meaning at all; so that in the end his estate [*8] may often be
vested quite contrary to these his enigmatical intentions, because perhaps he
has omitted one or two formal words, which are necessary to ascertain the sense
with indisputable legal precision, or has executed his will in the presence of
fewer witnesses than the law requires.
But
to proceed from private concerns to those of a more public consideration. All
gentlemen of fortune are, in consequence of their property, liable to be called
upon to establish the rights, to estimate the injuries, to weigh the
accusations, and sometimes to dispose of the lives of their fellow-subjects, by
serving upon juries. In this situation they have frequently a right to decide,
and that upon their oaths, questions of nice importance, in the solution of
which some legal skill is requisite; especially where the law and the fact, as
it often happens, are intimately blended together. And the general incapacity,
even of our best juries, to do this with any tolerable propriety, has greatly
debased their authority; and has unavoidably thrown more power into the hands
of the judges, to direct, control, and even reverse their verdicts, than
perhaps the constitution intended:
But
it is not as a juror only that the English gentleman is called upon to
determine questions of right, and distribute justice to his fellow-subjects; it
is principally with this order of men that the commission of the peace is
filled. And here a very ample field is opened for a gentleman to exert his
talents, by maintaining good order in his neighborhood; by punishing the
dissolute and idle; by protecting the peaceable and industrious; and above all,
by healing petty differences and preventing vexatious prosecutions. But in
order to attain these desirable ends, it is necessary that the magistrate should
understand his business; and have not only the will, but the power also, (under
which must be included the knowledge) of administering legal anti effectual
justice. Else, when he has mistaken his authority, through passion through
ignorance, or absurdity, he will be the object of [*9] contempt from his
inferiors, and of censure from those to whom he is accountable for his conduct.
Yet
farther; most gentlemen of considerable property, at some period or other in
their lives, are ambitious of representing their country in parliament: and
those, who are ambitious of receiving so high a trust, would also do well to
remember its nature and importance. They are not thus honorably distinguished
from the rest of their fellow-subjects, merely that they may privilege their
persons, their estates, or their domestics; that they may list under party
banners; may grant or with-hold supplies; may vote with or vote against a
popular or unpopular administration; but upon considerations far more
interesting and important. They are the guardians of the English constitution;
the makers, repealers, and interpreters of the English laws; delegated to
watch, to check, and to avert every dangerous innovation, to propose, to adopt,
and to cherish any solid and well-weighed improvement; bound by every tie of
nature, of honor, and of religion, to transmit that constitution and those laws
to their posterity, amended if possible, at least without any derogation. And
how unbecoming must it appear in a member of the legislature to vote for a new
law, who is utterly ignorant of the old! What kind of interpretation can he be
enabled to give, who is a stranger to the text upon which he comments!
Indeed it is perfectly amazing,
that there should be no other state of life, no other occupation, art, or
science, in which some method of instruction is not looked upon as requisite,
except only the science of legislation, the noblest and most difficult of any.
Apprenticeships are held necessary to almost every art, commercial or
mechanical: a long course of reading and study must form the divine, the
physician, and the practical professors of the laws: but every man of superior
fortune clinks himself born a legislator. Yet Tully was of a different opinion;
“it is necessary,” says he,5 “for a senator to be thoroughly
acquainted with the constitution; and this, (he declares,) is a knowledge of
the most extensive nature; a matter of science, of diligence, of reflection;
without which no senator can possibly be fit for his office.”
The mischiefs that have arisen to
the public from inconsiderate alterations in our laws, are too obvious to be
called in question; and how far they have been owing to the defective education
of our senators, is a point well worthy the public attention. The common law of
England has fared like other venerable edifices of antiquity, which rash and
inexperienced workmen have ventured to new-dress and refine, with all the rage
of modern improvement. Hence frequently its symmetry has been destroyed, its
proportions distorted, and its majestic simplicity exchanged for specious
embellishments and fantastic novelties. For, to say the truth, almost all the
perplexed questions, almost all the niceties, intricacies, and delays, (which
have sometimes disgraced the English, as well as other courts of justice) owe
their original not to the common law itself, but to innovations that have been
made in it by acts of parliament; “overladen” (as sir Edward Coke expresses it6)
“with provisos and additions, and many times on a sudden penned or corrected by
men of none or very little judgment in law.” This great and well experienced
judge declares, that in all his time he never knew two questions made upon
rights merely depending upon the common law; and warmly laments the confusion
introduced by ill-judging and unlearned legislators. “But if,” he subjoins,
“acts of parliament were after the old fashion penned, by such only as
perfectly knew what the common law was before the making of any act of
parliament concerning that matter, as also how far forth former statutes had
provided remedy for former mischiefs, and defects discovered by experience;
then should very few questions in law arise, and the learned should not so
often and so much perplex their heads to make atonement and peace, by
construction of law, between insensible and disagreeing words, sentences, and
provisos, as they now do.” And if this inconvenience was so heavily felt in the
reign of queen Elizabeth, you may judge how the evil is increased in later
times, when the statute book is swelled to ten times a larger bulk: unless it
should be found, that the penners of our modern statutes have proportionally
better informed themselves in the knowledge of the common law.
What
is said of our gentlemen in general, and the propriety of their application to
the study of the laws of their country, will hold equally strong or still
stronger with regard to the nobility of this realm, except only in the article
of serving upon juries. But, instead of this, they have several peculiar
provinces of far greater consequence and concern; being not only by birth
hereditary counselors of the crown, and judges upon their honor of the lives of
their brother peers, but also arbiters of the property of all their
fellow-subjects, and that in the last resort. In this their judicial capacity
they are hound to decide the nicest and most critical points of the law: to
examine and correct such errors as have escaped the most experienced sages of
the profession, the lord keeper and the judges of the courts at Westminster.
Their sentence is final, decisive, irrevocable: no appeal, no correction, not
even a review, can be had: and to their determination, whatever it be, the
inferior courts of justice must conform; otherwise the rule of property would
no longer be uniform and steady.
Should
a judge in the most subordinate jurisdiction be deficient in the knowledge of
the law, it would reflect infinite contempt upon himself, and disgrace upon
those who employ him. And yet the consequence of his ignorance is comparatively
very trifling and small: his judgment may be examined, and his errors
rectified, by other courts. But how much more serious and affecting is the case
of a superior judge, if without any skill in the laws he will boldly venture to
decide a question, upon which the welfare and subsistence of whole families may
depend! where the chance of his judging right, or wrong, is barely equal; and
where, if he chances to judge wrong, he does an injury of the most alarming
nature, an injury without possibility of redress!
Yet,
vast as this trust is, it can no where be so properly reposed, as in the noble
hands where our excellent constitution has placed it: and therefore placed it,
because, from the independence of their fortune and the dignity of their
station, they are presumed to employ that leisure which is the consequence of
both, in attaining a more extensive knowledge of the laws than persons of
inferior rank: and because the founders of our polity relied upon that delicacy
of sentiment, so peculiar to noble birth; which, as on the one hand it will
prevent either interest or affection from interfering in questions of right, so
on the other it will bind a peer in honor, an obligation which the law esteems
equal to another’s oath, to be master of those points upon which it is his
birthright to decide.
The Roman pandects will furnish
us with a piece of history not inapplicable to our present purpose. Servius
Sulpicius, a gentleman of the patrician order, and a celebrated orator, had
occasion to take the opinion of Quintus Mutius Scaevola, the then oracle of the
Roman law; but, for want of some knowledge in that science, could not so much
as understand even the technical terms, which his friend was obliged to make
use of. Upon which Mutius Scaevola could not forbear to upbraid him with this
memorable reproof,7 “that it was a shame for a patrician,
a nobleman and an orator of causes, to be ignorant of that law in which he was
so peculiarly concerned.” This reproach made so deep an impression on
Sulpicius, that he immediately applied himself to the study of the law; wherein
he arrived to that proficiency, that he left behind him about an hundred and
fourscore volumes of his own compiling upon the subject; and became, in the opinion
of Cicero,8 a much more complete lawyer than even
Mutius Scaevola himself.
I
would not be thought to recommend to our English nobility and gentry, to become
as great lawyers as Sulpicius; though he, together with this character,
sustained likewise that of an excellent orator, a firm patriot and a wise
indefatigable senator; but the inference which arises from the story is this,
that ignorance of the laws of the land has ever been esteemed dishonorable in
those, who are entrusted by their country to maintain, to administer, and to
amend them.
But
surely there is little occasion to enforce this argument any farther to persons
of rank and distinction, if we of this place may be allowed to form a general
judgment from those who are under our inspection; happy, that while we lay down
the rule, we can also produce the example. You will therefore permit your
professor to indulge both a public and private satisfaction, by bearing this
open testimony; that in the infancy of these studies among us, they were
favored with the most diligent attendance, and pursued with the most unwearied
application, by those of the noblest birth and most ample patrimony; some of
whom are still the ornaments of this seat of learning; and others at a greater
distance continue doing honor to its institutions, by comparing our polity and
laws with those of other kingdoms abroad, or exerting their senatorial
abilities in the councils of the nation at home.
Nor
will some degree of legal knowledge be found in the least superfluous to
persons of inferior rank; especially those of the learned professions. The
clergy in particular, besides the common obligations they are under in proportion
to their rank and fortune, have also abundant reason, considered merely as
clergymen, to be acquainted with many branches of the law, which are almost
peculiar and appropriated to themselves alone. Such are the laws relating to
advowsons, institutions, and inductions; to simony, and simoniacal contracts;
to uniformity, residence, and pluralities; to tithes and other ecclesiastical
clues; to marriages (more especially of late) and to a variety of other
subjects, which are consigned to the care of their order by the provisions of
particular statutes. To understand these aright, to discern what is warranted
or enjoined, and what is forbidden by law, demands a sort of legal
apprehension; which is no otherwise to be acquired, than by use and a familiar
acquaintance with legal writers.
For
the gentlemen of the faculty of physic, I must frankly own that I see no
special reason, why they in particular should apply themselves to the study of
the law; unless in common with other gentlemen, and to complete the character
of general and extensive knowledge; a character which their profession, beyond
others, has remarkably deserved. They will give me leave however to suggest,
and that not ludicrously, that it might frequently be of use to families upon
sudden emergencies, if the physician were acquainted with the doctrine of last
wills and testaments, at least so far as relates to the formal part of their
execution.
But those gentlemen who intend to
profess the civil and ecclesiastical laws, in the spiritual and maritime courts
of this kingdom, are of all men (next to common lawyers) the most indispensably
obliged to apply themselves seriously to the study of our municipal laws. For
the civil and canon laws, considered with respect to any intrinsic obligation,
have no force or authority in this kingdom: they are no more binding in England
than our laws are binding at Rome. But as far as these foreign laws on account of
some peculiar propriety, have in some particular cases, and in some particular
courts, been introduced and allowed by our laws, so far they oblige, and no
farther; their authority being wholly founded upon that permission and
adoption. In which we are not singular in our notions: for even in Holland,
where the imperial law is much cultivated and its decisions pretty generally
followed, we are informed by Van Leeuwen,9 that “it receives its force from
custom and the consent of the people, tacitly or expressly given: for
otherwise, he adds, we should no more be bound by this law, than by that of the
Almains, the Franks, the Saxons, the Goths, the Vandals, and other of the
ancient nations.” Wherefore, in all points in which the different systems
depart from each other, the law of the land takes place of the law of Rome,
whether ancient or modern, imperial or pontifical. And, in those of our English
courts wherein a reception has been allowed to the civil and canon laws, if
either they exceed the bounds of that reception, by extending themselves to
other matters than are permitted to them; or if such courts proceed according
to the decisions of those laws, in cases wherein it is controlled by the law of
the land the common law in either instance both may, and frequently does
prohibit and annul their proceedings:10 and it will not be a sufficient excuse
for them to tell the king’s Courts at Westminster, that their practice is
warranted by the laws of Justinian or Gregory, or is conformable to the degrees
of the Rota or imperial chamber, For which reason it becomes highly necessary
for every civilian and canonist, that would act with safety as a judge, or with
prudence and reputation as an advocate, to know in what cases and how far the
English laws have given sanction to the Roman; in what points the latter are
rejected;
and where
they are both so intermixed and blended together as to form certain supplemental parts of the common
law
of England distinguished by the titles of the king’s maritime, the king’s military, and the king’s ecclesiastical law. The propriety of which inquiry the university of Oxford has for more than a century so thoroughly seen, that in her statutes11 she appoints, that one of the three questions to be annually discussed at the act by the jurist-inceptors shall relate to the common law; subjoining this reason, “Quia juris civilis studiosos decet haud imperitos esse juris municipalis, et differentias exteri patriique juris notas habere.” [“For students of civil law should not be ignorant of the municipal law nor of the remarkable differences between their own laws and those of foreign nations.”] And the statutes12 of the university of Cambridge speak expressly to the same effect.
and where
they are both so intermixed and blended together as to form certain supplemental parts of the common
law
of England distinguished by the titles of the king’s maritime, the king’s military, and the king’s ecclesiastical law. The propriety of which inquiry the university of Oxford has for more than a century so thoroughly seen, that in her statutes11 she appoints, that one of the three questions to be annually discussed at the act by the jurist-inceptors shall relate to the common law; subjoining this reason, “Quia juris civilis studiosos decet haud imperitos esse juris municipalis, et differentias exteri patriique juris notas habere.” [“For students of civil law should not be ignorant of the municipal law nor of the remarkable differences between their own laws and those of foreign nations.”] And the statutes12 of the university of Cambridge speak expressly to the same effect.
From
the general use and necessity of some acquaintance with the common law, the
inference were extremely easy with regard to the propriety of the present
institution, in a place to which gentlemen of all ranks and degrees resort, as
the fountain of all useful knowledge. But how it has come to pass that a design
of this sort has never before taken place in the university, and the reason why
the study of our laws has in general fallen into disuse, I shall previously
proceed to inquire.
Sir John Fortescue, in his
panegyric on the laws of England (which was written in the reign of Henry the
sixth) puts13 a very obvious question in the mouth
of the young prince, whom he is exhorting to apply himself to that branch of
learning: “why the laws of England, being so good, so fruitful, and so
commodious, are not taught in the universities, as the civil and cannon laws
are?” In answer to which he gives14 what seems, with due deference be it
spoken, a very jejune and unsatisfactory reason; being in short, that “as the
proceedings at common law were in his time carried on in three different
tongues, the English, the Latin, and the French, that science must be
necessarily taught in those three several languages; but that in the
universities, all sciences were taught in the Latin tongue only;” and therefore
he concludes, “that they could not be conveniently taught or studied in our
universities.” But without attempting to examine seriously the validity of this
reason, (the very shadow of which by the wisdom of your late constitutions is
entirely taken away,) we perhaps may find out a better, or at least a more
plausible, account, why the study of the municipal laws has been banished from
these seats of science, than what the learned chancellor thought it prudent to
give to his royal pupil.
That ancient collection of
unwritten maxims and customs, which is called the common law, however
compounded or from whatever fountains derived, had subsisted immemorially in
this kingdom; and, though somewhat altered and impaired by the violence of the
times, had in great measure weathered the rude shock of the Norman conquest.
This had endeared it to the people in general, as well because its decisions
were universally known, as because it was found to be excellently adapted to
the genius of the English nation. In the knowledge of this law consisted great
part of the learning of those dark ages; it was then taught says Mr. Selden,15 in the monasteries; in the
universities, and in the families of the principal nobility. The clergy in
particular, as they then engrossed almost every other branch of learning, so
(like their predecessors the British Druids16)
they were peculiarly remarkable for their proficiency in the study of the law. Nullus clericus nisi causidicus [No clergyman who is not a lawyer
also], is the character given of them soon after the conquest by William of
Malmsbury.17 The judges therefore were usually
created out of the sacred order,18 as was likewise the case among the
Normans;19 and all the inferior offices were
supplied by the lower clergy, which has occasioned their successors to be
denominated clerks to this day.
But the common law of England,
being not committed to writing; but only handed down by tradition, use, and
experience, was not so heartily relished by the foreign clergy; who came over
hither in shoals during the reign of the conqueror and his two sons, and were
utter strangers to our constitution as well as our language. And an accident,
which soon after happened, had nearly completed its ruin. A copy of Justinian’s
pandects, being newly20 discovered at Amalfi, soon brought the
civil law into vogue all over the west of Europe, where before it was quite
laid aside21 and in a manner forgotten; though some
traces of its authority remained in Italy22 and the eastern provinces of the
empire.23 This now became in a particular manner
the favorite of the popish clergy, who borrowed the method and many of the
maxims of their canon law from this original. The study of it was introduced
into several universities abroad, particularly that of Bologna; where exercises
were performed, lectures read, and degrees conferred in this faculty, as in
other branches of science: and many nations on the continent, just then
beginning to recover from the convulsions consequent upon the overthrow of the
Roman empire, and settling by degrees into peaceable forms of government,
adopted the civil law, (being the best written system then extant) as the basis
of their several constitutions; blending and interweaving it among their own
feudal customs, in some places with a more extensive, in others a more confined
authority.24
Nor was it long before the
prevailing mode of the times reached England. For Theobald, a Norman abbot,
being elected to the see of Canterbury,25 and extremely addicted to this new
study, brought over with him in his retinue many learned proficients therein;
and among the rest Roger surnamed Vacarius, whom he placed in the university of
Oxford,26 to teach it to the people of this
country. But it did not meet with the same easy reception in England, where a
mild and rational system of laws had been established, as it did upon the
continent; and, though the monkish clergy (devoted to the will of a foreign
primate) received it with eagerness and zeal, yet the laity, who were more
interested to preserve the old constitution, and had already severely felt the
effect of many Norman innovations, continued wedded to the use of the common
law. King Stephen immediately published a proclamation,27 forbidding the study of the laws, then
newly imported from Italy; which was treated by the monks28 as a piece of impiety, and, though it
might prevent the introduction of the civil law process into our courts of
justice, yet did not hinder the clergy from reading and teaching it in their
own schools and monasteries.
From this time the nation seems
to have been divided into two parties; the bishops and clergy, many of them
foreigners, who applied themselves wholly to the study of the civil and canon
law, which now came to be inseparably interwoven with each other; and the
nobility and laity, who adhered with equal pertinacity to the old common law:
both of them reciprocally jealous of what they were unacquainted with, and
neither of them perhaps allowing the opposite system that real merit which is
abundantly to be found in each. This appears, on the one hand, from the spleen
with which the monastic writers29 speak of our municipal laws upon all
occasions; and, on the other, from the firm temper which the nobility showed at
the famous parliament of Merton: when the prelates endeavored to procure an
act, to declare all bastards legitimate in case the parents intermarried at any
time afterwards; alleging this only reason, because holy church (that is, the
canon law) declared such children legitimate: but “all the earls and barons (says
the parliament roll30)
with one voice answered, that they would not change the laws of England, which
had hitherto been used and approved.” And we find the same jealousy prevailing
above a century afterwards,31 when the nobility declared with a kind
of prophetic spirit, “that the realm of England has never been unto this hour,
neither by the consent of our lord the king and the lords of parliament shall
it ever be, ruled or governed by the civil law.”32 And of this temper between the clergy
and laity many more instances might be given.
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,33 forbidding all ecclesiastics to appear
as advocates in foro saeculari [in
the secular court]: nor did they long continue to act as judges there, not
caring to take the oath of office which was then found necessary to be
administered, that they should in all things determine according to the law and
custom of this realm;34 though they still kept possession of
the high office of chancellor, an office then of little juridical power; and
afterwards, as its business increased by degrees, they modeled the process of
the court at their own discretion.
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 forbidden35 the very reading of it by the clergy
because its 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 bigotry36 pursued with such alacrity in these
seats of learning; and why the common law was entirely despised, and esteemed
little better than heretical.
And,
since the reformation many causes have conspired to prevent its becoming a part
of academical education. As, first, long usage and established custom; which,
as in everything 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 its 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 channel, and has hitherto been wholly cultivated in another place.
But as the long usage and established custom, of ignorance of the laws of the
land, begin now to be thought unreasonable; and as by these 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 its ancient course, and the foundations at
least of that science will be laid in the two universities; without being
exclusively confined to the channel which it fell into at the times I have just
been 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,37 and made no scruple to profess their
contempt, nay even their ignorance38 of it, in the most public manner. But
still, as the balance of learning was greatly on the side of the clergy, and as
the common law was no longer taught, & 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 within Bracton and Fleta)
had it not been for a peculiar incident, which happened at a very critical
time, and contributed greatly to its support.
The incident which 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 [King’s
court], or such of his palaces wherein his royal person resided; and removed
with his household 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,39 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 Spelman40 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.
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.41 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 styled apprentices42 from apprendre, to learn) who answered
to our bachelors: as the state and degree of a sergeant,43 servientis ad legem [a sergeant at law], did to that of
doctor.
The crown seems to have soon
taken under its 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.44 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’s45 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 Coke46 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.
In this juridical university (for
such it is insisted to have been by Fortescue47 and sir Edward Coke48)
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,49 “the originals and as it were-the
elements of the law; who profiting therein, as they grew to ripeness so were
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 its 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.”
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 degrees this custom has fallen into
disuse; so that in the reign of queen Elizabeth sir Edward Coke50 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, are neither
commodious nor proper for the resort of gentlemen of any rank or figure; so
that there are very rarely any young students entered at the inns of chancery;
secondly, because in the inns of court all sorts of regimen and academical
superintendence, 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 knowledge 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.
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 color 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 now 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 its rules (which does at present
so much honor 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,51 and very lately by the whole
university,52 no small improvement of our ancient
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 its theory the noblest faculties
of the soul, and exerts in its practice the cardinal virtues of the heart; a science,
which is universal in its use and extent accommodated to each individual, yet,
comprehend the whole community; that a science like this should ever have 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 knowledge,
it was high time to make it one; and to those who can doubt the propriety of
its 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 knowledge of those laws is the principal and most perfect
branch of ethics.53
From a thorough conviction of
this truth, our munificent benefactor Mr. Viner, having employed above half a
century in amassing materials for new-modeling 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 labors “to the benefit of posterity and the
perpetual service of his Country,”54 he was sensible he could not perform
his resolution in a better and more effectual manner, than by extending to the
youth of this place those assistance, 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;55 from their alacrity and unexampled
dispatch in carrying it into execution;56 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.57 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.
The advantages that might result
to the science of the law itself, when a little more attended to in these seats
of knowledge, 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,58 for improving its method, retrenching
its 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 [bounds] 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.
For I think it 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
anything can be more hazardous or discouraging than the usual entrance on the
study of the law. A raw and inexperienced youth, in the most dangerous season
of life, is 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 inquiries; no private assistance
to remove the distresses and difficulties which will always embarrass 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,59 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.
The evident want of some
assistance in the rudiments of legal knowledge 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,
of dropping all liberal education, as of no use to students in the law: and
placing them, in its stead, at the desk of some skillful attorney; in order to
initiate them early in all the depths of practice, and render them more
dexterous in the mechanical part of business. A few instances of particular
persons, (men of excellent learning, and unblemished integrity,) who, in spite
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
biased many parents, of short-sighted judgment in its favor: 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 favor of university learning:60 . . . but in these all who hear me, I
know, have already prevented me.
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,61 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 est62 [so the law is written] is the utmost
his knowledge will arrive at; he must never aspire to form, and seldom expect
to comprehend, any arguments drawn a priori [beforehand],
from the spirit of the laws and the natural foundations of justice.
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 labor 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 their
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 a 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
neighborhood of each other: nor is there any branch of learning, but may be
helped and improved by assistance drawn from other arts. If therefore the
student in our laws has 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 maybe 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 labors in a solid
scientific 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
economy, 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 honor, 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,
unkindness of others, may have heretofore untruly suggested, experience will
warrant us to affirm, that these endowments of loyalty and public spirit, of
honor 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 endeavoring 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 honor to this
laudable institution, than for the private instruction of individuals63)
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.64 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 endeavor, 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.
He should consider his course as
a general map of the law, marking out the shape of the country, its connections
and boundaries, its greater divisions and principalities: 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 Justinian65 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 labor, 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, shove all, to
that inexhaustible reservoir of legal antiquities and learning, the feudal law,
or, as Spelman66 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 shown how far they are
connected with, or have at anytime been affected by, the civil transactions of
the kingdom.
A plan of this nature, if executed
with care and ability, cannot fail of administering 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 writer67 has observed upon a similar occasion,
the learner “will be considerably disappointed if he looks for entertainment
without the expense 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 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 subtle 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,68 when first his royal pupil determines
to engage in this study. “It will not be necessary for a gentleman as such, to
examine with 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 labor, he may be sufficiently informed in the laws of his county,
if he will but apply his mind in good earnest to receive and apprehend them.
For, though such knowledge 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 knowledge which is fit for a person of birth or condition
may be learned in a single year, without neglecting his other improvements.”
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 awkward 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 knowledge, 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
reflections can be now the employment of his thoughts) that he could not more
effectually have benefitted 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 inspire them with a desire to
be still better acquainted with the laws and constitution of their country.
NOTES
* Read in Oxford, at the opening of the Vinerian lectures: 25 Oct. 1758.
1. De Legg. 2. 23.
2. Montesq. Esp. L. l.
3. Facultas ejus, quod cuique facere libet, nisi quid vi, aut jure, prohibetur. [Its essence is the power of doing whatsoever we please, unless where authority or law forbids.] Inst. 1. 3. 1.
4. Education, §. 187.
5. De Legg. 3.18. Est senatori necessarium nosse rempublicam; idque late patet: – genus hoc omne scientiae, diligentiae, memoriae est; sine quo paratus esse senator nullo pacto potest. [It is necessary for a senator to be thoroughly acquainted with the constitution; and this is a knowledge of the most extensive nature; a matter of science, of diligence, of reflection; without which no senator can possibly be fit for his office.] 6. 2 Rep. pref.
7. Ff 1.2.2.§. 43. Turpe esse patricio, et nobili, et causus oranti, jus in quo versaretur ignorare. [It was a shame for a patrician, a nobleman, and an orator of causes, to be ignorant of that law in which he was so peculiarly concerned.] 8. Brut. 41.
9. Dedicatio corporis juris civilis. [Dedication to the body of civil law.] Edit. 1663.
10. Hale Hist. C. L. c. 2. Selden in Fletam. 5 Rep. Caudrey’s case. 2Inst. 599.
11. Tit. VII. Sect. a. §. 2.
12. Doctor legum mox a doctoratu dabit operam legibus Angliae, ut non sit imperitus earum legum quas habet sua patria, et differentias exteri patriique juris noscat. [A doctor of laws, having taken his degree, should study the laws of England, that he be not unskilled in those of his own country, nor be ignorant of the essential differences between them and foreign laws.] Stat. Eliz. R C. 14. Cowel. Institut. in proemio.
13. c. 47.
14. c. 48.
15. in Fletam. 7.7.
16. Caesar de bello Gal 6.12.
17. de gest. reg. l. 4.
18. Dugdale Orig. jurid. c. 8.
19. Les juges sont sages personnes et autentiques – sicome les archevesques, evesques, les chanoines des eglises cathedraulx, et les autres personnes qui ont dignitez in saincte eglise; les abbez, les prieurs conventaulx, et les gouverneurs des eglises, &c. [The judges are persons of wisdom and authority – such as archbishops, bishops, canons of cathedral churches, and other dignitaries of holy church, the abbeys, priors of convents and church governors, etc.] Grand Coustumier, ch. 9.
20. circ. A D. 1130.
21. LL. Wisigoth. 2. 1, 9.
22. Capitular. Hlubov. Pli. 4. 102.
23. Selden in Fletam. 5.5,
24. Domat’s treatise of law, c. 13.§. 9. Epistol. Innocent. IV. in M. Paris ed. A. D. 1254.
25. A. D. 1138.
26. Gervas. Dorobern. Act. Pontif Gartuar. cd. 1665.
27. Reg. Bacon citat. per Selden in Fletam.
28. Joan. Sarisburiens. Polycrat. 8. 22.
29. Idem, ibid. 5.16 Polydor, Virgil. Hist. l. 9.
30. Stat. Merton. 20 Hen. III. e. 9. Et omnes comites et barones una voce responderunt, quod nolunt leges Angliae mutare, quae hucusque usitatae sunt et approbatae. [All the earls and barons with one voice answered, that they would not change the laws of England, which had hitherto been used and approved.] 31. 11 Ric. 11.
32. Selden. Jan. Anglor. l. 2. §. 4.3. in Fortese. c. 33.
33. Spelman. Council. A. D. 1217. Wilkins, vol. 1. p. 574. 599
34. Selden in Fletam. 9. 3.
35. M. Paris ad A. D. 1254.
36. There cannot be a stranger 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 Magnsus, the renowned dominican doctor of the thirteenth century, thus proves in his Summa de laudibus Christiferae Virginis (divinum magis quam humanum opus) [Perfections of the Christ-bearing Virgin (a work more divine than human)]. “Item quod jura civilia, et leges, et decreta scivit in summo, probatur hoc modo; sapientia advocati manifestatur in tribus; unum quod obtineat omnia contra judicem justum et sapientem; secundo, quod contra adversarium astutum et sagacem; tertio, quod in causa desperata : sed beatissima virgo, contra judicem sapientissimum, Dominum; contra adversarium callidissimum, diabolum; in causa nostra desperata; sententiam optatam obtinuit.” [“Likewise that she had a perfect knowledge of civil rights, laws, and decrees is thus proved: the wisdom of an advocate is manifested in three things first, that he have a prevailing influence before a wise and just judge; secondly, against a subtle and sagacious adversary; and thirdly, in a desperate cause: The most blessed Virgin obtained the desired judgment from the most wise judge, the Lord against our most cunning enemy, the devil in our desperate cause.”] 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 Andrea glossatoris, quod tantam peritiam in utroque jure habuit, ut publice in scholis legere ausa sit.” [“Nor does a knowledge of the law seem inconsistent with the female character. For we read that the wife of John Andrew the Lexicographer, was so skilled both in the common and municipal law, that she ventured to deliver lectures on both publicly in the schools.”] 37. Fortesc. de laud. LL. C. 25.
38. This remarkably appeared in the case of the abbot of Torun. M. 22. Edw. 111.24. who had caused a certain prior to be summoned to answer at Avignon for erecting an oratory contra inhibitiomem novi operis [contrary to the prohibition of a new work]; by which words Mr. Selden, (in Flet. 8. 5.) very justly understands to be meant the title de novi operis numtiatione [concerning the denunciation of a new work] both in the civil and canon laws, (Ff. 39.
40. Glossar. 334.
41. Fortesc. c. 48.
42. 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. Glos. 37. Dugdale, Orig. jurid. 55.)
43. The first mention which I have met with in our lawbooks of sergeants or countors, is in the statute of Westm. 1.3 Edw. I. c. 29. and in Horn’s Mirror, e l. § .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. 111. speaks of advocates at the common law, or countors, (quos banci narratores vulgariter appellamus) [whom we commonly call bench reporters] 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.
44. Ne aliquis scholas regens de legibus in eadem civitate de caetero ibidem leges doceat. [No regent of any law schools within that city should for the future teach law therein.] 45. in Flet. 8. 2.
46. 2 Inst. proem.
47. c. 49.
48. 3 Rep. pref.
49. 3 Rep pref .
50. Ibid.
51. 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.”
52. By accepting in full convocation the remainder of lord Clarendon’s history from his noble descendants, on condition to apply the profits arising from its publication to the establishment of a manage in the university.
53. Teleia malista azeih, oti thV teleiaV areihV czhsiV esi. [Jurisprudence or the knowledge of laws is the principal and most perfect branch of ethics.] Ethic ad. Nichmach. l.5. c. 3.
54. See the preface to the eighteenth volume of his abridgment.
55. Mr. Viner is enrolled among the public benefactor of the university by decree of convocation.
56. 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 Magdalane, Dr. Halley 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 1756. 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.
57. 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 m the English language, consisting of sixty lectures at
the least; to be read during the university term time, with such proper
internals 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 auditor’s such gratuity as shall be settled from time to rime
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 misbehavior 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 found 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 to 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 hound 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 often years after
each respective election; and become void in case of gross misbehavior,
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.
58. See lord Bacon’s
proposals and offer of a digest.
59. Sir Henry Spelman, in the preface to his glossary, has given 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 solemn sed perpetuis humeris sustinendam, excidit mihi (fateor) animus, &c.” [“My mother sent me to London to commence the study of the law; but when, having paid my respects to the vestibule of this branch of learning I was met by a foreign language, a barbarous dialect, an uncouth style, and a mass not only vast but always to be endured, I confess my courage failed me.”] 60. The four highest judicial offices 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.
61. See Kennet’s Life of Somner, p 67.
62. Ff. 40. 9. 12.
63. See Lowth’s Oratio Crewiana, p. 365.
64. The analysis of the laws of England, first published, A. D. 1759, and exhibiting the order and principal division of the ensuing COMMENTARIES; which were originally submitted to the university in a private course of lectures, A, D. 1753.
65. 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 et 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, et sine ulla diffidentia maturius perduci potuisset. [To us about to expound the laws of the Romans, it seems that it may be done more advantageously if first delivered separately and in an easy and simple manner; otherwise, if in the very beginning we burden the mind of the student as yet unexercised and weak, with a multitude and diversity of things, we either cause him to relinquish his studies altogether, or bring him much later, with great labor, and often with great diffidence (which very frequently deters young men) to that point, to which, conducted by a more easy method, he might have been brought earlier, with little trouble, and with sufficient confidence.] Inst. l. 1. 2.
66. Of parliaments. 57.
67. Dr. TayIors pref. to Elem. of civil law.
68. De laud. Leg. C. 8,
59. Sir Henry Spelman, in the preface to his glossary, has given 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 solemn sed perpetuis humeris sustinendam, excidit mihi (fateor) animus, &c.” [“My mother sent me to London to commence the study of the law; but when, having paid my respects to the vestibule of this branch of learning I was met by a foreign language, a barbarous dialect, an uncouth style, and a mass not only vast but always to be endured, I confess my courage failed me.”] 60. The four highest judicial offices 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.
61. See Kennet’s Life of Somner, p 67.
62. Ff. 40. 9. 12.
63. See Lowth’s Oratio Crewiana, p. 365.
64. The analysis of the laws of England, first published, A. D. 1759, and exhibiting the order and principal division of the ensuing COMMENTARIES; which were originally submitted to the university in a private course of lectures, A, D. 1753.
65. 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 et 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, et sine ulla diffidentia maturius perduci potuisset. [To us about to expound the laws of the Romans, it seems that it may be done more advantageously if first delivered separately and in an easy and simple manner; otherwise, if in the very beginning we burden the mind of the student as yet unexercised and weak, with a multitude and diversity of things, we either cause him to relinquish his studies altogether, or bring him much later, with great labor, and often with great diffidence (which very frequently deters young men) to that point, to which, conducted by a more easy method, he might have been brought earlier, with little trouble, and with sufficient confidence.] Inst. l. 1. 2.
66. Of parliaments. 57.
67. Dr. TayIors pref. to Elem. of civil law.
68. De laud. Leg. C. 8,
No hay comentarios:
Publicar un comentario