excepted, the study and practice of it devolved of course into the
hands of laymen; who entertained upon their parts a most hearty
aversion to the civil law[n], and made no scruple to profess their
contempt, nay even their ignorance[o] of it, in the most public
manner. But still, as the ballance of learning was greatly on the side
of the clergy, and as the common law was no longer _taught_, as
formerly, in any part of the kingdom, it must have been subjected to
many inconveniences, and perhaps would have been gradually lost and
overrun by the civil, (a suspicion well justified from the frequent
transcripts of Justinian to be met with in Bracton and Fleta) had it
not been for a peculiar incident, which happened at a very critical
time, and contributed greatly to it's support.
[Footnote n: Fortesc. _de laud. LL._ _c._ 25.]
[Footnote o: This remarkably appeared in the case of the abbot of
Torun, _M._ 22 _E._ 3. 24. who had caused a certain prior to be
summoned to answer at Avignon for erecting an oratory _contra
inhibitionem novi operis_; by which words Mr Selden, (_in Flet._ 8.
5.) very justly understands to be meant the title _de novi operis
nuntiatione_ both in the civil and canon laws, (_Ff._ 39. 1. _C._ 8.
11. and _Decretal._ not _Extrav._ 5. 32.) whereby the erection of any
new buildings in prejudice of more antient ones was prohibited. But
Skipwith the king's serjeant, and afterwards chief baron of the
exchequer, declares them to be flat nonsense; "_in ceux parolx_,
contra inhibitionem novi operis, _ny ad pas entendment_:" and justice
Schardelow mends the matter but little by informing him, that they
signify a restitution _in their law_; for which reason he very sagely
resolves to pay no sort of regard to them. "_Ceo n'est que un
restitution en lour ley, pur que a ceo n'avomus regard, &c._"]
THE incident I mean was the fixing the court of common pleas, the
grand tribunal for disputes of property, to be held in one certain
spot; that the seat of ordinary justice might be permanent and
notorious to all the nation. Formerly that, in conjunction with all
the other superior courts, was held before the king's capital
justiciary of England, in the _aula regis_, or such of his palaces
wherein his royal person resided; and removed with his houshold from
one end of the kingdom to the other. This was found to occasion great
inconvenience to the suitors; to remedy which it was made an article
of the great charter of liberties, both that of king John and king
Henry the third[p], that "common pleas should no longer follow the
king's court, but be held in some certain place:" in consequence of
which they have ever since been held (a few necessary removals in
times of the plague excepted) in the palace of Westminster only. This
brought together the professors of the municipal law, who before were
dispersed about the kingdom, and formed them into an aggregate body;
whereby a society was established of persons, who (as Spelman[q]
observes) addicting themselves wholly to the study of the laws of the
land, and no longer considering it as a mere subordinate science for
the amusement of leisure hours, soon raised those laws to that pitch
of perfection, which they suddenly attained under the auspices of our
English Justinian, king Edward the first.
[Footnote p: _c._ 11.]
[Footnote q: _Glossar._ 334.]
IN consequence of this lucky assemblage, they naturally fell into a
kind of collegiate order, and, being excluded from Oxford and
Cambridge, found it necessary to establish a new university of their
own. This they did by purchasing at various times certain houses (now
called the inns of court and of chancery) between the city of
Westminster, the place of holding the king's courts, and the city of
London; for advantage of ready access to the one, and plenty of
provisions in the other[r]. Here exercises were performed, lectures
read, and degrees were at length conferred in the common law, as at
other universities in the canon and civil. The degrees were those of
barristers (first stiled apprentices[s] from _apprendre_, to learn)
who answered to our bachelors; as the state and degree of a
serjeant[t], _servientis ad legem_, did to that of doctor.
[Footnote r: Fortesc. _c._ 48.]
[Footnote s: Apprentices or Barristers seem to have been first
appointed by an ordinance of king Edward the first in parliament, in
the 20th year of his reign. (Spelm. _Gloss._ 37. Dugdale. _Orig.
jurid._ 55.)]
[Footnote t: The first mention I have met with in our lawbooks of
serjeants or countors, is in the statute of Westm. 1. 3 Edw. I. c. 29.
and in Horn's Mirror, _c._ 1. Sec. 10. _c._ 2. Sec. 5. _c._ 3. Sec. 1. in
the same reign. But M. Paris in his life of John II, abbot of St.
Alban's, which he wrote in 1255, 39 Hen. III. speaks of advocates at
the common law, or countors (_quos banci narratores vulgariter
appellamus_) as of an order of men well known. And we have an example
of the antiquity of the coif in the same author's history of England,
_A.D._ 1259. in the case of one William de Bussy; who, being called to
account for his great knavery and malpractices, claimed the benefit of
his orders or clergy, which till then remained an entire secret; and
to that end _voluit ligamenta coifae suae solvere, ut palam monstraret
se tonsuram habere clericalem; sed non est permissus.----Satelles vero
eum arripiens, non per coifae ligamina sed per guttur eum
apprehendens, traxit ad carcerem_. And hence sir H. Spelman
conjectures, (_Glossar._ 335.) that coifs were introduced to hide the
tonsure of such renegade clerks, as were still tempted to remain in
the secular courts in the quality of advocates or judges,
notwithstanding their prohibition by canon.]
THE crown seems to have soon taken under it's protection this infant
seminary of common law; and, the more effectually to foster and
cherish it, king Henry the third in the nineteenth year of his reign
issued out an order directed to the mayor and sheriffs of London,
commanding that no regent of any law schools _within_ that city should
for the future teach law therein[u]. The word, law, or _leges_, being
a general term, may create some doubt at this distance of time whether
the teaching of the civil law, or the common, or both, is hereby
restrained. But in either case it tends to the same end. If the civil
law only is prohibited, (which is Mr Selden's[w] opinion) it is then a
retaliation upon the clergy, who had excluded the common law from
_their_ seats of learning. If the municipal law be also included in
the restriction, (as sir Edward Coke[x] understands it, and which the
words seem to import) then the intention is evidently this; by
preventing private teachers within the walls of the city, to collect
all the common lawyers into the one public university, which was newly
instituted in the suburbs.
[Footnote u: _Ne aliquis scholas regens de legibus in eadem civitate
de caetero ibidem leges doceat._]
[Footnote w: _in Flet._ 8. 2.]
[Footnote x: 2 Inst. proem.]
IN this juridical university (for such it is insisted to have been by
Fortescue[y] and sir Edward Coke[z]) there are two sorts of collegiate
houses; one called inns of chancery, in which the younger students of
the law were usually placed, "learning and studying, says
Fortescue[a], the originals and as it were the elements of the law;
who, profiting therein, as they grow to ripeness so are they admitted
into the greater inns of the same study, called the inns of court."
And in these inns of both kinds, he goes on to tell us, the knights
and barons, with other grandees and noblemen of the realm, did use to
place their children, though they did not desire to have them
thoroughly learned in the law, or to get their living by it's
practice: and that in his time there were about two thousand students
at these several inns, all of whom he informs us were _filii
nobilium_, or gentlemen born.
[Footnote y: _c._ 49.]
[Footnote z: 3 Rep. pref.]
[Footnote a: _ibid._]
HENCE it is evident, that (though under the influence of the monks our
universities neglected this study, yet) in the time of Henry the sixth
it was thought highly necessary and was the universal practice, for
the young nobility and gentry to be instructed in the originals and
elements of the laws. But by degres [Transcriber's Note: degrees] this
custom has fallen into disuse; so that in the reign of queen Elizabeth
sir Edward Coke[b] does not reckon above a thousand students, and the
number at present is very considerably less. Which seems principally
owing to these reasons: first, because the inns of chancery being now
almost totally filled by the inferior branch of the profession, they
are neither commodious nor proper for the resort of gentlemen of any
rank or figure; so that there are now very rarely any young students
entered at the inns of chancery: secondly, because in the inns of
court all sorts of regimen and academical superintendance, either with
regard to morals or studies, are found impracticable and therefore
entirely neglected: lastly, because persons of birth and fortune,
after having finished their usual courses at the universities, have
seldom leisure or resolution sufficient to enter upon a new scheme of
study at a new place of instruction. Wherefore few gentlemen now
resort to the inns of court, but such for whom the knowlege of
practice is absolutely necessary; such, I mean, as are intended for
the profession: the rest of our gentry, (not to say our nobility also)
having usually retired to their estates, or visited foreign kingdoms,
or entered upon public life, without any instruction in the laws of
the land; and indeed with hardly any opportunity of gaining
instruction, unless it can be afforded them in these seats of
learning.
[Footnote b: _ibid._]
AND that these are the proper places, for affording assistances of
this kind to gentlemen of all stations and degrees, cannot (I think)
with any colour of reason be denied. For not one of the objections,
which are made to the inns of court and chancery, and which I have
just enumerated, will hold with regard to the universities. Gentlemen
may here associate with gentlemen of their own rank and degree. Nor
are their conduct and studies left entirely to their own discretion;
but regulated by a discipline so wise and exact, yet so liberal, so
sensible and manly, that their conformity to it's rules (which does at
present so much honour to our youth) is not more the effect of
constraint, than of their own inclinations and choice. Neither need
they apprehend too long an avocation hereby from their private
concerns and amusements, or (what is a more noble object) the service
of their friends and their country. This study will go hand in hand
with their other pursuits: it will obstruct none of them; it will
ornament and assist them all.
BUT if, upon the whole, there are any still wedded to monastic
prejudice, that can entertain a doubt how far this study is properly
and regularly _academical_, such persons I am afraid either have not
considered the constitution and design of an university, or else think
very meanly of it. It must be a deplorable narrowness of mind, that
would confine these seats of instruction to the limited views of one
or two learned professions. To the praise of this age be it spoken, a
more open and generous way of thinking begins now universally to
prevail. The attainment of liberal and genteel accomplishments, though
not of the intellectual sort, has been thought by our wisest and most
affectionate patrons[c], and very lately by the whole university[d],
no small improvement of our antient plan of education; and therefore I
may safely affirm that nothing (how _unusual_ soever) is, under due
regulations, improper to be _taught_ in this place, which is proper
for a gentleman to _learn_. But that a science, which distinguishes
the criterions of right and wrong; which teaches to establish the one,
and prevent, punish, or redress the other; which employs in it's
theory the noblest faculties of the soul, and exerts in it's practice
the cardinal virtues of the heart; a science, which is universal in
it's use and extent, accommodated to each individual, yet
comprehending the whole community; that a science like this should
have ever been deemed unnecessary to be studied in an university, is
matter of astonishment and concern. Surely, if it were not before an
object of academical knowlege, it was high time to make it one; and to
those who can doubt the propriety of it's reception among us (if any
such there be) we may return an answer in their own way; that ethics
are confessedly a branch of academical learning, and Aristotle
_himself has said_, speaking of the laws of his own country, that
jurisprudence or the knowlege of those laws is the principal and
most[e] perfect branch of ethics.
[Footnote c: Lord chancellor Clarendon, in his dialogue of education,
among his tracts, p. 325. appears to have been very solicitous, that
it might be made "a part of the ornament of our learned academies to
teach the qualities of riding, dancing, and fencing, at those hours
when more serious exercises should be intermitted."]
[Footnote d: By accepting in full convocation the remainder of lord
Clarendon's history from his noble descendants, on condition to apply
the profits arising from it's publication to the establishment of a
_manage_ in the university.]
[Footnote e: [Greek: Teleia malista arete, hoti tes teleias aretes
chresis esti.] _Ethic. ad Nicomach._ _l._ 5. _c._ 3.]
FROM a thorough conviction of this truth, our munificent benefactor Mr
VINER, having employed above half a century in amassing materials for
new modelling and rendering more commodious the rude study of the laws
of the land, consigned both the plan and execution of these his
public-spirited designs to the wisdom of his parent university.
Resolving to dedicate his learned labours "to the benefit of posterity
and the perpetual service of his country[f]," he was sensible he could
not perform his resolutions in a better and more effectual manner,
than by extending to the youth of this place those assistances, of
which he so well remembered and so heartily regretted the want. And
the sense, which the university has entertained of this ample and most
useful benefaction, must appear beyond a doubt from their gratitude in
receiving it with all possible marks of esteem[g]; from their alacrity
and unexampled dispatch in carrying it into execution[h]; and, above
all, from the laws and constitutions by which they have effectually
guarded it from the neglect and abuse to which such institutions are
liable[i]. We have seen an universal emulation, who best should
understand, or most faithfully pursue, the designs of our generous
patron: and with pleasure we recollect, that those who are most
distinguished by their quality, their fortune, their station, their
learning, or their experience, have appeared the most zealous to
promote the success of Mr Viner's establishment.
[Footnote f: See the preface to the eighteenth volume of his
abridgment.]
[Footnote g: Mr Viner is enrolled among the public benefactors of the
university by decree of convocation.]
[Footnote h: Mr Viner died June 5, 1756. His effects were collected
and settled, near a volume of his work printed, almost the whole
disposed of, and the accounts made up, in a year and a half from his
decease, by the very diligent and worthy administrators with the will
annexed, (Dr West and Dr Good of Magdalene, Dr Whalley of Oriel, Mr
Buckler of All Souls, and Mr Betts of University college) to whom that
care was consigned by the university. Another half year was employed
in considering and settling a plan of the proposed institution, and in
framing the statutes thereupon, which were finally confirmed by
convocation on the 3d of July, 1758. The professor was elected on
the 20th of October following, and two scholars on the succeeding
day. And, lastly, it was agreed at the annual audit in 1761, to
establish a fellowship; and a fellow was accordingly elected in
January following.--The residue of this fund, arising from the sale of
Mr Viner's abridgment, will probably be sufficient hereafter to found
another fellowship and scholarship, or three more scholarships, as
shall be thought most expedient.]
[Footnote i: The statutes are in substance as follows:
1. THAT the accounts of this benefaction be separately kept, and
annually audited by the delegates of accounts and professor, and
afterwards reported to convocation.
2. THAT a professorship of the laws of England be established, with a
salary of two hundred pounds _per annum_; the professor to be elected
by convocation, and to be at the time of his election at least a
master of arts or bachelor of civil law in the university of Oxford,
of ten years standing from his matriculation; and also a barrister at
law of four years standing at the bar.
3. THAT such professor (by himself, or by deputy to be previously
approved by convocation) do read one solemn public lecture on the laws
of England, and in the English language, in every academical term, at
certain stated times previous to the commencement of the common law
term; or forfeit twenty pounds for every omission to Mr Viner's
general fund: and also (by himself, or by deputy to be approved, if
occasional, by the vice-chancellor and proctors; or, if permanent,
both the cause and the deputy to be annually approved by convocation)
do yearly read one complete course of lectures on the laws of England,
and in the English language, consisting of sixty lectures at the
least, to be read during the university term time, with such proper
intervals that not more than four lectures may fall within any single
week: that the professor do give a month's notice of the time when the
course is to begin, and do read _gratis_ to the scholars of Mr Viner's
foundation; but may demand of other auditors such gratuity as shall be
settled from time to time by decree of convocation: and that, for
every of the said sixty lectures omitted, the professor, on complaint
made to the vice-chancellor within the year, do forfeit forty
shillings to Mr Viner's general fund; the proof of having performed
his duty to lie upon the said professor.
4. THAT every professor do continue in his office during life, unless
in case of such misbehaviour as shall amount to bannition by the
university statutes; or unless he deserts the profession of the law by
betaking himself to another profession; or unless, after one
admonition by the vice-chancellor and proctors for notorious neglect,
he is guilty of another flagrant omission: in any of which cases he be
deprived by the vice-chancellor, with consent of the house of
convocation.
5. THAT such a number of fellowships with a stipend of fifty pounds
_per annum_, and scholarships with a stipend of thirty pounds be
established, as the convocation shall from time to time ordain,
according to the state of Mr Viner's revenues.
6. THAT every fellow be elected by convocation, and at the time of
election be unmarried, and at least a master of arts or bachelor of
civil law, and a member of some college or hall in the university of
Oxford; the scholars of this foundation or such as have been scholars
(if qualified and approved of by convocation) to have the preference:
that, if not a barrister when chosen, he be called to the bar within
one year after his election; but do reside in the university two
months in every year, or in case of non-residence do forfeit the
stipend of that year to Mr Viner's general fund.
7. THAT every scholar be elected by convocation, and at the time of
election be unmarried, and a member of some college or hall in the
university of Oxford, who shall have been matriculated twenty four
calendar months at the least: that he do take the degree of bachelor
of civil law with all convenient speed; (either proceeding in arts or
otherwise) and previous to his taking the same, between the second and
eighth year from his matriculation, be bound to attend two courses of
the professor's lectures, to be certified under the professor's hand;
and within one year after taking the same be called to the bar: that
he do annually reside six months till he is of four years standing,
and four months from that time till he is master of arts or bachelor
of civil law; after which he be bound to reside two months in every
year; or, in case of non-residence, do forfeit the stipend of that
year to Mr Viner's general fund.
8. THAT the scholarships do become void in case of non-attendance on
the professor, or not taking the degree of bachelor of civil law,
being duly admonished so to do by the vice-chancellor and proctors:
and that both fellowships and scholarships do expire at the end of ten
years after each respective election; and become void in case of gross
misbehaviour, non-residence for two years together, marriage, not
being called to the bar within the time before limited, (being duly
admonished so to be by the vice-chancellor and proctors) or deserting
the profession of the law by following any other profession: and that
in any of these cases the vice-chancellor, with consent of
convocation, do declare the place actually void.
9. THAT in case of any vacancy of the professorship, fellowships, or
scholarships, the profits of the current year be ratably divided
between the predecessor or his representatives, and the successor; and
that a new election be had within one month afterwards, unless by that
means the time of election shall fall within any vacation, in which
case it be deferred to the first week in the next full term. And that
before any convocation shall be held for such election, or for any
other matter relating to Mr Viner's benefaction, ten days public
notice be given to each college and hall of the convocation, and the
cause of convoking it.]
THE advantages that might result to the science of the law itself,
when a little more attended to in these seats of knowlege, perhaps
would be very considerable. The leisure and abilities of the learned
in these retirements might either suggest expedients, or execute those
dictated by wiser heads[k], for improving it's method, retrenching
it's superfluities, and reconciling the little contrarieties, which
the practice of many centuries will necessarily create in any human
system: a task, which those who are deeply employed in business, and
the more active scenes of the profession, can hardly condescend to
engage in. And as to the interest, or (which is the same) the
reputation of the universities themselves, I may venture to pronounce,
that if ever this study should arrive to any tolerable perfection
either here or at Cambridge, the nobility and gentry of this kingdom
would not shorten their residence upon this account, nor perhaps
entertain a worse opinion of the benefits of academical education.
Neither should it be considered as a matter of light importance, that
while we thus extend the _pomoeria_ of university learning, and adopt
a new tribe of citizens within these philosophical walls, we interest
a very numerous and very powerful profession in the preservation of
our rights and revenues.
[Footnote k: See lord Bacon's proposals and offer of a digest.]