inns of court with a view to pursue the profession, will find it
expedient (whenever it is practicable) to lay the previous foundations
of this, as well as every other science, in one of our learned
universities. We may appeal to the experience of every sensible
lawyer, whether any thing can be more hazardous or discouraging than
the usual entrance on the study of the law. A raw and unexperienced
youth, in the most dangerous season of life, is transpanted
[Transcriber's Note: transplanted] on a sudden into the midst of
allurements to pleasure, without any restraint or check but what his
own prudence can suggest; with no public direction in what course to
pursue his enquiries; no private assistance to remove the distresses
and difficulties, which will always embarass a beginner. In this
situation he is expected to sequester himself from the world, and by a
tedious lonely process to extract the theory of law from a mass of
undigested learning; or else by an assiduous attendance on the courts
to pick up theory and practice together, sufficient to qualify him for
the ordinary run of business. How little therefore is it to be
wondered at, that we hear of so frequent miscarriages; that so many
gentlemen of bright imaginations grow weary of so unpromising a
search[l], and addict themselves wholly to amusements, or other less
innocent pursuits; and that so many persons of moderate capacity
confuse themselves at first setting out, and continue ever dark and
puzzled during the remainder of their lives!
[Footnote l: Sir Henry Spelman, in the preface to his glossary, gives
us a very lively picture of his own distress upon this occasion.
"_Emisit me mater Londinum, juris nostri capessendi gratia; cujus cum
vestibulum salutassem, reperissemque linguam peregrinam, dialectum
barbaram, methodum inconcinnam, molem non ingentem solum sed perpetuis
humeris sustinendam, excidit mihi (fateor) animus, &c._"]
THE evident want of some assistance in the rudiments of legal
knowlege, has given birth to a practice, which, if ever it had grown
to be general, must have proved of extremely pernicious consequence:
I mean the custom, by some so very warmly recommended, to drop all
liberal education, as of no use to lawyers; and to place them, in it's
stead, as [Transcriber's Note: at] the desk of some skilful attorney;
in order to initiate them early in all the depths of practice, and
render them more dextrous in the mechanical part of business. A few
instances of particular persons, (men of excellent learning, and
unblemished integrity) who, in spight of this method of education,
have shone in the foremost ranks of the bar, have afforded some kind
of sanction to this illiberal path to the profession, and biassed many
parents, of shortsighted judgment, in it's favour: not considering,
that there are some geniuses, formed to overcome all disadvantages,
and that from such particular instances no general rules can be
formed; nor observing, that those very persons have frequently
recommended by the most forcible of all examples, the disposal of
their own offspring, a very different foundation of legal studies, a
regular academical education. Perhaps too, in return, I could now
direct their eyes to our principal seats of justice, and suggest a few
hints, in favour of university learning[m]:--but in these all who hear
me, I know, have already prevented me.
[Footnote m: The four highest offices in the law were at that time
filled by gentlemen, two of whom had been fellows of All Souls
college; another, student of Christ-Church; and the fourth a fellow of
Trinity college, Cambridge.]
MAKING therefore due allowance for one or two shining exceptions,
experience may teach us to foretell that a lawyer thus educated to the
bar, in subservience to attorneys and solicitors[n], will find he has
begun at the wrong end. If practice be the whole he is taught,
practice must also be the whole he will ever know: if he be
uninstructed in the elements and first principles upon which the rule
of practice is founded, the least variation from established
precedents will totally distract and bewilder him: _ita lex scripta
est_[o] is the utmost his knowlege will arrive at; he must never
aspire to form, and seldom expect to comprehend, any arguments drawn
_a priori_, from the spirit of the laws and the natural foundations of
justice.
[Footnote n: See Kennet's life of Somner. p. 67.]
[Footnote o: _Ff._ 40. 9. 12.]
NOR is this all; for (as few persons of birth, or fortune, or even of
scholastic education, will submit to the drudgery of servitude and the
manual labour of copying the trash of an office) should this
infatuation prevail to any considerable degree, we must rarely expect
to see a gentleman of distinction or learning at the bar. And what the
consequence may be, to have the interpretation and enforcement of the
laws (which include the entire disposal of our properties, liberties,
and lives) fall wholly into the hands of obscure or illiterate men, is
matter of very public concern.
THE inconveniences here pointed out can never be effectually
prevented, but by making academical education a previous step to the
profession of the common law, and at the same time making the
rudiments of the law a part of academical education. For sciences are
of a sociable disposition, and flourish best in the neighbourhood of
each other: nor is there any branch of learning, but may be helped and
improved by assistances drawn from other arts. If therefore the
student in our laws hath formed both his sentiments and style, by
perusal and imitation of the purest classical writers, among whom the
historians and orators will best deserve his regard; if he can reason
with precision, and separate argument from fallacy, by the clear
simple rules of pure unsophisticated logic; if he can fix his
attention, and steadily pursue truth through any the most intricate
deduction, by the use of mathematical demonstrations; if he has
enlarged his conceptions of nature and art, by a view of the several
branches of genuine, experimental, philosophy; if he has impressed on
his mind the sound maxims of the law of nature, the best and most
authentic foundation of human laws; if, lastly, he has contemplated
those maxims reduced to a practical system in the laws of imperial
Rome; if he has done this or any part of it, (though all may be easily
done under as able instructors as ever graced any seats of learning) a
student thus qualified may enter upon the study of the law with
incredible advantage and reputation. And if, at the conclusion, or
during the acquisition of these accomplishments, he will afford
himself here a year or two's farther leisure, to lay the foundation of
his future labours in a solid scientifical method, without thirsting
too early to attend that practice which it is impossible he should
rightly comprehend, he will afterwards proceed with the greatest ease,
and will unfold the most intricate points with an intuitive rapidity
and clearness.
I SHALL not insist upon such motives as might be drawn from principles
of oeconomy, and are applicable to particulars only: I reason upon
more general topics. And therefore to the qualities of the head, which
I have just enumerated, I cannot but add those of the heart;
affectionate loyalty to the king, a zeal for liberty and the
constitution, a sense of real honour, and well grounded principles of
religion; as necessary to form a truly valuable English lawyer, a
Hyde, a Hale, or a Talbot. And, whatever the ignorance of some, or
unkindness of others, may have heretofore untruly suggested,
experience will warrant us to affirm, that these endowments of loyalty
and public spirit, of honour and religion, are no where to be found in
more high perfection than in the two universities of this kingdom.
BEFORE I conclude, it may perhaps be expected, that I lay before you a
short and general account of the method I propose to follow, in
endeavouring to execute the trust you have been pleased to repose in
my hands. And in these solemn lectures, which are ordained to be read
at the entrance of every term, (more perhaps to do public honour to
this laudable institution, than for the private instruction of
individuals[p]) I presume it will best answer the intent of our
benefactor and the expectation of this learned body, if I attempt to
illustrate at times such detached titles of the law, as are the most
easy to be understood, and most capable of historical or critical
ornament. But in reading the complete course, which is annually
consigned to my care, a more regular method will be necessary; and,
till a better is proposed, I shall take the liberty to follow the
same that I have already submitted to the public[q]. To fill up and
finish that outline with propriety and correctness, and to render the
whole intelligible to the uninformed minds of beginners, (whom we are
too apt to suppose acquainted with terms and ideas, which they never
had opportunity to learn) this must be my ardent endeavour, though by
no means my promise to accomplish. You will permit me however very
briefly to describe, rather what I conceive an academical expounder of
the laws should do, than what I have ever known to be done.
[Footnote p: See Lowth's _Oratio Crewiana_, p. 365.]
[Footnote q: The Analysis of the laws of England, first published,
_A.D._ 1756, and exhibiting the order and principal divisions of the
ensuing COMMENTARIES; which were originally submitted to the
university in a private course of lectures, _A.D._ 1753.]
HE should consider his course as a general map of the law, marking out
the shape of the country, it's connexions and boundaries, it's greater
divisions and principal cities: it is not his business to describe
minutely the subordinate limits, or to fix the longitude and latitude
of every inconsiderable hamlet. His attention should be engaged, like
that of the readers in Fortescue's inns of chancery, "in tracing out
the originals and as it were the elements of the law." For if, as
Justinian[r] has observed, the tender understanding of the student be
loaded at the first with a multitude and variety of matter, it will
either occasion him to desert his studies, or will carry him heavily
through them, with much labour, delay, and despondence. These
originals should be traced to their fountains, as well as our distance
will permit; to the customs of the Britons and Germans, as recorded by
Caesar and Tacitus; to the codes of the northern nations on the
continent, and more especially to those of our own Saxon princes; to
the rules of the Roman law, either left here in the days of Papinian,
or imported by Vacarius and his followers; but, above all, to that
inexhaustible reservoir of legal antiquities and learning, the feodal
law, or, as Spelman[s] has entitled it, the law of nations in our
western orb. These primary rules and fundamental principles should be
weighed and compared with the precepts of the law of nature, and the
practice of other countries; should be explained by reasons,
illustrated by examples, and confirmed by undoubted authorities; their
history should be deduced, their changes and revolutions observed, and
it should be shewn how far they are connected with, or have at any
time been affected by, the civil transactions of the kingdom.
[Footnote r: _Incipientibus nobis exponere jura populi Romani, ita
videntur tradi posse commodissime, si primo levi ac simplici via
singula tradantur: Alioqui, si statim ab initio rudem adhuc & infirmum
animum studiosi multitudine ac varietate rerum oneravimus, duorum
alterum, aut desertorem studiorum efficiemus, aut cum magno labore,
saepe etiam cum diffidentia (quae plerumque juvenes avertit) serius ad
id perducemus, ad quod leviore via ductus, sine magno labore & sine
ulla diffidentia maturius perduci potuisset._ _Inst._ 1. 1. 2.]
[Footnote s: Of Parliaments. 57.]
A PLAN of this nature, if executed with care and ability, cannot fail
of administring a most useful and rational entertainment to students
of all ranks and professions; and yet it must be confessed that the
study of the laws is not merely a matter of amusement: for as a very
judicious writer[t] has observed upon a similar occasion, the learner
"will be considerably disappointed if he looks for entertainment
without the expence of attention." An attention, however, not greater
than is usually bestowed in mastering the rudiments of other sciences,
or sometimes in pursuing a favorite recreation or exercise. And this
attention is not equally necessary to be exerted by every student upon
every occasion. Some branches of the law, as the formal process of
civil suits, and the subtile distinctions incident to landed property,
which are the most difficult to be thoroughly understood, are the
least worth the pains of understanding, except to such gentlemen as
intend to pursue the profession. To others I may venture to apply,
with a slight alteration, the words of sir John Fortescue[u], when
first his royal pupil determines to engage in this study. "It will not
be necessary for a gentleman, as such, to examine with a close
application the critical niceties of the law. It will fully be
sufficient, and he may well enough be denominated a lawyer, if under
the instruction of a master he traces up the principles and grounds of
the law, even to their original elements. Therefore in a very short
period, and with very little labour, he may be sufficiently informed
in the laws of his country, if he will but apply his mind in good
earnest to receive and apprehend them. For, though such knowlege as is
necessary for a judge is hardly to be acquired by the lucubrations of
twenty years, yet with a genius of tolerable perspicacity, that
knowlege which is fit for a person of birth or condition may be
learned in a single year, without neglecting his other improvements."
[Footnote t: Dr Taylor's preface to Elem. of civil law.]
[Footnote u: _Tibi, princeps, necesse non erit mysteria legis Angliae
longo disciplinatu rimare. Sufficiet tibi,--_et fatis _denominari
legista mereberis, si legum principia & causas, usque ad elementa,
discipuli more indagaveris.--Quare tu, princeps serenissime, parvo
tempore, parva industria, sufficienter eris in legibus regni Angliae
eruditus, dummodo ad ejus apprehensionem tu conferas animum
tuum.--Nosco namque ingenii tui perspicacitatem, quo audacter
pronuntio quod in legibus illis (licet earum peritia, qualis judicibus
necessaria est, vix viginti annorum lucubrationibus acquiratur) tu
doctrinam principi congruam in anno uno sufficienter nancisceris; nec
interim militarem disciplinam, ad quam tam ardenter anhelas, negliges;
sed ea, recreationis loco, etiam anno illo tu ad libitum perfrueris._
_c._ 8.]
TO the few therefore (the very few, I am persuaded,) that entertain
such unworthy notions of an university, as to suppose it intended for
mere dissipation of thought; to such as mean only to while away the
aukward interval from childhood to twenty one, between the restraints
of the school and the licentiousness of politer life, in a calm middle
state of mental and of moral inactivity; to these Mr Viner gives no
invitation to an entertainment which they never can relish. But to the
long and illustrious train of noble and ingenuous youth, who are not
more distinguished among us by their birth and possessions, than by
the regularity of their conduct and their thirst after useful
knowlege, to these our benefactor has consecrated the fruits of a long
and laborious life, worn out in the duties of his calling; and will
joyfully reflect (if such reflexions can be now the employment of his
thoughts) that he could not more effectually have benefited posterity,
or contributed to the service of the public, than by founding an
institution which may instruct the rising generation in the wisdom of
our civil polity, and inform them with a desire to be still better
acquainted with the laws and constitution of their country.
SECTION THE SECOND.
OF THE NATURE OF LAWS IN GENERAL.
LAW, in it's most general and comprehensive sense, signifies a rule of
action; and is applied indiscriminately to all kinds of action,
whether animate, or inanimate, rational or irrational. Thus we say,
the laws of motion, of gravitation, of optics, or mechanics, as well
as the laws of nature and of nations. And it is that rule of action,
which is prescribed by some superior, and which the inferior is bound
to obey.
THUS when the supreme being formed the universe, and created matter
out of nothing, he impressed certain principles upon that matter, from
which it can never depart, and without which it would cease to be.
When he put that matter into motion, he established certain laws of
motion, to which all moveable bodies must conform. And, to descend
from the greatest operations to the smallest, when a workman forms a
clock, or other piece of mechanism, he establishes at his own pleasure
certain arbitrary laws for it's direction; as that the hand shall
describe a given space in a given time; to which law as long as the
work conforms, so long it continues in perfection, and answers the end
of it's formation.
IF we farther advance, from mere inactive matter to vegetable and
animal life, we shall find them still governed by laws; more numerous
indeed, but equally fixed and invariable. The whole progres of plants,
from the seed to the root, and from thence to the seed again;--the
method of animal nutrition, digestion, secretion, and all other
branches of vital oeconomy;--are not left to chance, or the will of
the creature itself, but are performed in a wondrous involuntary
manner, and guided by unerring rules laid down by the great creator.
THIS then is the general signification of law, a rule of action
dictated by some superior being; and in those creatures that have
neither the power to think, nor to will, such laws must be invariably
obeyed, so long as the creature itself subsists, for it's existence
depends on that obedience. But laws, in their more confined sense, and
in which it is our present business to consider them, denote the
rules, not of action in general, but of _human_ action or conduct:
that is, the precepts by which man, the noblest of all sublunary
beings, a creature endowed with both reason and freewill, is commanded
to make use of those faculties in the general regulation of his
behaviour.
MAN, considered as a creature, must necessarily be subject to the laws
of his creator, for he is entirely a dependent being. A being,
independent of any other, has no rule to pursue, but such as he
prescribes to himself; but a state of dependance will inevitably
oblige the inferior to take the will of him, on whom he depends, as
the rule of his conduct: not indeed in every particular, but in all
those points wherein his dependance consists. This principle therefore
has more or less extent and effect, in proportion as the superiority
of the one and the dependance of the other is greater or less,
absolute or limited. And consequently as man depends absolutely upon
his maker for every thing, it is necessary that he should in all
points conform to his maker's will.
THIS will of his maker is called the law of nature. For as God, when
he created matter, and endued it with a principle of mobility,
established certain rules for the perpetual direction of that motion;
so, when he created man, and endued him with freewill to conduct
himself in all parts of life, he laid down certain immutable laws of
human nature, whereby that freewill is in some degree regulated and
restrained, and gave him also the faculty of reason to discover the
purport of those laws.
CONSIDERING the creator only as a being of infinite _power_, he was
able unquestionably to have prescribed whatever laws he pleased to his
creature, man, however unjust or severe. But as he is also a being of
infinite _wisdom_, he has laid down only such laws as were founded in
those relations of justice, that existed in the nature of things
antecedent to any positive precept. These are the eternal, immutable
laws of good and evil, to which the creator himself in all his
dispensations conforms; and which he has enabled human reason to
discover, so far as they are necessary for the conduct of human
actions. Such among others are these principles: that we should live
honestly, should hurt nobody, and should render to every one it's due;
to which three general precepts Justinian[a] has reduced the whole
doctrine of law.
[Footnote a: _Juris praecepta sunt haec, honeste vivere, alterum non
laedere, suum cuique tribuere._ _Inst._ 1. 1. 3.]
BUT if the discovery of these first principles of the law of nature
depended only upon the due exertion of right reason, and could not
otherwise be attained than by a chain of metaphysical disquisitions,
mankind would have wanted some inducement to have quickened their
inquiries, and the greater part of the world would have rested content
in mental indolence, and ignorance it's inseparable companion. As
therefore the creator is a being, not only of infinite _power_, and
_wisdom_, but also of infinite _goodness_, he has been pleased so to
contrive the constitution and frame of humanity, that we should want
no other prompter to enquire after and pursue the rule of right, but
only our own self-love, that universal principle of action. For he has
so intimately connected, so inseparably interwoven the laws of eternal
justice with the happiness of each individual, that the latter cannot
be attained but by observing the former; and, if the former be
punctually obeyed, it cannot but induce the latter. In consequence of
which mutual connection of justice and human felicity, he has not
perplexed the law of nature with a multitude of abstracted rules and
precepts, referring merely to the fitness or unfitness of things, as
some have vainly surmised; but has graciously reduced the rule of
obedience to this one paternal precept, "that man should pursue his
own happiness." This is the foundation of what we call ethics, or
natural law. For the several articles into which it is branched in our
systems, amount to no more than demonstrating, that this or that
action tends to man's real happiness, and therefore very justly
concluding that the performance of it is a part of the law of nature;
or, on the other hand, that this or that action is destructive of
man's real happiness, and therefore that the law of nature forbids it.
THIS law of nature, being co-eval with mankind and dictated by God
himself, is of course superior in obligation to any other. It is
binding over all the globe, in all countries, and at all times: no
human laws are of any validity, if contrary to this; and such of them
as are valid derive all their force, and all their authority,
mediately or immediately, from this original.
BUT in order to apply this to the particular exigencies of each
individual, it is still necessary to have recourse to reason; whose
office it is to discover, as was before observed, what the law of
nature directs in every circumstance of life; by considering, what
method will tend the most effectually to our own substantial
happiness. And if our reason were always, as in our first ancestor
before his transgression, clear and perfect, unruffled by passions,
unclouded by prejudice, unimpaired by disease or intemperance, the
task would be pleasant and easy; we should need no other guide but
this. But every man now finds the contrary in his own experience; that
his reason is corrupt, and his understanding full of ignorance and
error.
THIS has given manifold occasion for the benign interposition of
divine providence; which, in companion to the frailty, the
imperfection, and the blindness of human reason, hath been pleased,
at sundry times and in divers manners, to discover and enforce it's
laws by an immediate and direct revelation. The doctrines thus
delivered we call the revealed or divine law, and they are to be found
only in the holy scriptures. These precepts, when revealed, are found
upon comparison to be really a part of the original law of nature, as
they tend in all their consequences to man's felicity. But we are not
from thence to conclude that the knowlege of these truths was
attainable by reason, in it's present corrupted state; since we find
that, until they were revealed, they were hid from the wisdom of ages.
As then the moral precepts of this law are indeed of the same original
with those of the law of nature, so their intrinsic obligation is of
equal strength and perpetuity. Yet undoubtedly the revealed law is
(humanly speaking) of infinitely more authority than what we generally
call the natural law. Because one is the law of nature, expressly
declared so to be by God himself; the other is only what, by the
assistance of human reason, we imagine to be that law. If we could be
as certain of the latter as we are of the former, both would have an
equal authority; but, till then, they can never be put in any
competition together.