FOR, being then entirely abandoned by the clergy, a few stragglers

excepted, the study and practice of it devolved of course into the

hands of laymen; who entertained upon their parts a most hearty

aversion to the civil law[n], and made no scruple to profess their

contempt, nay even their ignorance[o] of it, in the most public

manner. But still, as the ballance of learning was greatly on the side

of the clergy, and as the common law was no longer _taught_, as

formerly, in any part of the kingdom, it must have been subjected to

many inconveniences, and perhaps would have been gradually lost and

overrun by the civil, (a suspicion well justified from the frequent

transcripts of Justinian to be met with in Bracton and Fleta) had it

not been for a peculiar incident, which happened at a very critical

time, and contributed greatly to it's support.

[Footnote n: Fortesc. _de laud. LL._ _c._ 25.]

[Footnote o: This remarkably appeared in the case of the abbot of

Torun, _M._ 22 _E._ 3. 24. who had caused a certain prior to be

summoned to answer at Avignon for erecting an oratory _contra

inhibitionem novi operis_; by which words Mr Selden, (_in Flet._ 8.

5.) very justly understands to be meant the title _de novi operis

nuntiatione_ both in the civil and canon laws, (_Ff._ 39. 1. _C._ 8.

11. and _Decretal._ not _Extrav._ 5. 32.) whereby the erection of any

new buildings in prejudice of more antient ones was prohibited. But

Skipwith the king's serjeant, and afterwards chief baron of the

exchequer, declares them to be flat nonsense; "_in ceux parolx_,

contra inhibitionem novi operis, _ny ad pas entendment_:" and justice

Schardelow mends the matter but little by informing him, that they

signify a restitution _in their law_; for which reason he very sagely

resolves to pay no sort of regard to them. "_Ceo n'est que un

restitution en lour ley, pur que a ceo n'avomus regard, &c._"]

THE incident I mean was the fixing the court of common pleas, the

grand tribunal for disputes of property, to be held in one certain

spot; that the seat of ordinary justice might be permanent and

notorious to all the nation. Formerly that, in conjunction with all

the other superior courts, was held before the king's capital

justiciary of England, in the _aula regis_, or such of his palaces

wherein his royal person resided; and removed with his houshold from

one end of the kingdom to the other. This was found to occasion great

inconvenience to the suitors; to remedy which it was made an article

of the great charter of liberties, both that of king John and king

Henry the third[p], that "common pleas should no longer follow the

king's court, but be held in some certain place:" in consequence of

which they have ever since been held (a few necessary removals in

times of the plague excepted) in the palace of Westminster only. This

brought together the professors of the municipal law, who before were

dispersed about the kingdom, and formed them into an aggregate body;

whereby a society was established of persons, who (as Spelman[q]

observes) addicting themselves wholly to the study of the laws of the

land, and no longer considering it as a mere subordinate science for

the amusement of leisure hours, soon raised those laws to that pitch

of perfection, which they suddenly attained under the auspices of our

English Justinian, king Edward the first.

[Footnote p: _c._ 11.]

[Footnote q: _Glossar._ 334.]

IN consequence of this lucky assemblage, they naturally fell into a

kind of collegiate order, and, being excluded from Oxford and

Cambridge, found it necessary to establish a new university of their

own. This they did by purchasing at various times certain houses (now

called the inns of court and of chancery) between the city of

Westminster, the place of holding the king's courts, and the city of

London; for advantage of ready access to the one, and plenty of

provisions in the other[r]. Here exercises were performed, lectures

read, and degrees were at length conferred in the common law, as at

other universities in the canon and civil. The degrees were those of

barristers (first stiled apprentices[s] from _apprendre_, to learn)

who answered to our bachelors; as the state and degree of a

serjeant[t], _servientis ad legem_, did to that of doctor.

[Footnote r: Fortesc. _c._ 48.]

[Footnote s: Apprentices or Barristers seem to have been first

appointed by an ordinance of king Edward the first in parliament, in

the 20th year of his reign. (Spelm. _Gloss._ 37. Dugdale. _Orig.

jurid._ 55.)]

[Footnote t: The first mention I have met with in our lawbooks of

serjeants or countors, is in the statute of Westm. 1. 3 Edw. I. c. 29.

and in Horn's Mirror, _c._ 1. 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.]

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