Commentaries on the Laws of England Part 2

[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 munic.i.p.al law be also included in the restriction, (as sir Edward c.o.ke[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 inst.i.tuted 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 c.o.ke[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 n.o.blemen 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 n.o.bilium_, 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 n.o.bility 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 c.o.ke[b] does not reckon above a thousand students, and the number at present is very considerably less. Which seems princ.i.p.ally 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 n.o.bility 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 a.s.sistances 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 a.s.sociate 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 amus.e.m.e.nts, or (what is a more n.o.ble 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 a.s.sist 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 const.i.tution 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 n.o.blest 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 princ.i.p.al 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 n.o.ble 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 ama.s.sing 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 a.s.sistances, 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 grat.i.tude 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 const.i.tutions by which they have effectually guarded it from the neglect and abuse to which such inst.i.tutions 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 inst.i.tution, 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 fellows.h.i.+p; 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 fellows.h.i.+p and scholars.h.i.+p, or three more scholars.h.i.+ps, 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 professors.h.i.+p 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 s.h.i.+llings 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 fellows.h.i.+ps with a stipend of fifty pounds _per annum_, and scholars.h.i.+ps 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 scholars.h.i.+ps 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 fellows.h.i.+ps and scholars.h.i.+ps 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 professors.h.i.+p, fellows.h.i.+ps, or scholars.h.i.+ps, 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 p.r.o.nounce, that if ever this study should arrive to any tolerable perfection either here or at Cambridge, the n.o.bility 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 a.s.sistance to remove the distresses and difficulties, which will always embara.s.s 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 ma.s.s of undigested learning; or else by an a.s.siduous 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 amus.e.m.e.nts, 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 c.u.m vestibulum saluta.s.sem, 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 a.s.sistance 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 bia.s.sed 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 princ.i.p.al 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 s.h.i.+ning 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 a.s.sistances 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 cla.s.sical 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 const.i.tution, 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 inst.i.tution, 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 ill.u.s.trate at times such detached t.i.tles 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 a.n.a.lysis of the laws of England, first published, _A.D._ 1756, and exhibiting the order and princ.i.p.al 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 princ.i.p.al cities: it is not his business to describe minutely the subordinate limits, or to fix the longitude and lat.i.tude 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 mult.i.tude 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 ent.i.tled 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, ill.u.s.trated 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 n.o.bis 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 mult.i.tudine ac varietate rerum oneravimus, duorum alterum, aut desertorem studiorum efficiemus, aut c.u.m magno labore, saepe etiam c.u.m diffidentia (quae plerumque juvenes avert.i.t) serius ad id perducemus, ad quod leviore via ductus, sine magno labore & sine ulla diffidentia maturius perduci potuisset._ _Inst._ 1. 1. 2.]