LAWS OF ENGLAND.
BOOK THE FIRST.
PART THE FIRST.
USED IN THE NOTES AND APPENDICES TO THIS EDITION.
C. U. S. Constitution of the United States.
L. U. S. Laws of the United States.
A. C. U. S. or Amendts. C. U. S. Amendments to the Constitution of the
C. V. Constitution of Virginia.
B. R. or B. R. V. Bill of Rights, of Virginia.
V. L. or L. V. Laws of Virginia.
Sess. Acts. Sessions Acts, of Congress, or of the General Assembly of
Purvis. Compilation of the Laws of Virginia, by Purvis, or Pervis.
L. V. Edi. 1733. 1753. 1769. 1785. 1794. The several Editions of the
Laws of Virginia, published by authority, in those years, respectively.
N. B. The references to the laws of the United States correspond with
the Chapters, as numbered in the Acts of the several Sessions, which have been
distributed according to Law. The Acts of 2. Cong. 2. Sess. in Swift's Edition
are numbered differently: there is a variance of 44 Chapters in the numbering
of the Acts of that Session; but, any Act of that Session referred to in this
Edition, may be readily found by adding 44 to the number of the Chapter in that
STUDY, NATURE, AND EXTENT,
LAWS OF ENGLAND.
SECTION THE FIRST.
ON THE STUDY OF THE
MR. VICE-CHANCELLOR, AND GENTLEMEN OF THE UNIVERSITY,
THE general expectation of so numerous and
respectable an audience, the novelty, and (I may add) the importance of the
duty required from this chair, must unavoidably be productive of great
diffidence and apprehensions in him who has the honour to be placed in it. He
must be sensible how much will depend upon his conduct in the infancy of a
study which is now first adopted by public academical authority; which has
generally been reputed (however unjustly) of a dry and unfruitful nature; and
of which the theoretical elementary parts have hitherto received a very
moderate share of cultivation. He cannot but reflect that, if either his plan
of instruction be crude and injudicious, or the execution of it lame and
superficial, it will cast a damp upon the farther progress of this most useful
and most rational branch of learning; and may defeat for a time the
public-spirited design of our wise and munificent benefactor. And this he must
more especially dread, when he feels by experience how unequal his abilities
are (unassisted by preceding examples) to complete, in the manner he could
wish, so extensive and arduous a task; since he freely confesses, that his
former more private attempts have fallen very short of his own ideas of
perfection. And yet the candour he has already experienced, and this last
transcendent mark of regard, his present nomination by the free and unanimous
suffrage of a great and learned university, (an honour to be ever remembered
with the deepest and most affectionate gratitude,) these testimonies of your
public judgment must entirely supersede his own, and forbid him to believe
himself totally insufficient for the labour at least of this employment. One
thing he will venture to hope for, and it certainly shall be his constant aim,
by diligence and attention to atone for his other defects; esteeming, that the
best return, which he can possibly make for your favourable opinion of his
capacity, will be his unwearied endeavours in some little degree to deserve
The science thus committed to his charge, to be cultivated, methodized,
and explained in a course of academical lectures, is that of the laws and
constitution of our own country: a species of knowledge, in which the gentlemen
of England have been more remarkably deficient than those of all Europe
besides. In most of the nations on the continent, where the civil or imperial
law under different modifications is closely interwoven with the municipal laws
of the land, no gentleman, or at least no scholar, thinks his education is
completed, till he has attended a course or two of lectures, both upon the
institutes of Justinian and the local constitutions of his native soil, under
the very eminent professors that abound in their several universities. And in
the northern parts of our own island, where also the municipal laws are
frequently connected with the civil, it is difficult to meet with a person of
liberal education, who is destitute of a competent knowledge in that science,
which is to be the guardian of his natural rights and the rule of his civil
Nor have the imperial laws been totally neglected even in the English
nation. A general acquaintance with their decisions has ever been deservedly
considered as no small accomplishment of a gentleman; and a fashion has
prevailed, especially of late, to transport the growing hopes of this island to
foreign universities, in Switzerland, Germany, and Holland; which, though
infinitely inferior to our own in every other consideration, have been looked
upon as better nurseries of the civil, or (which is nearly the same) of their
own municipal law. In the mean time it has been the peculiar lot of our
admirable system of laws, to be neglected, and even unknown, by all but one
practical profession, though built upon the soundest foundations, and approved
by the experience of ages.
Far be it from me to derogate from the study of the civil law,
considered (apart from any binding authority) as a collection of written
reason. No man is more thoroughly persuaded Of the general excellence of it's
rules, and the usual equity of it's decisions, nor is better convinced of it's
use as well as ornament to the scholar, the divine, the statesman, and even the
common lawyer. But we must not carry our veneration so far as to sacrifice our
Alfred and Edward to the manes of Theodosius and Justinian; we must not prefer
the edict of the praetor, or the rescript of the Roman emperor, to our own
immemorial customs or the sanctions of an English parliament; unless we can
also prefer the despotic monarchy of Rome and Byzantium, for whose meridians
the former were calculated, to the free constitution of Britain, which the
latter are adapted to perpetuate.
Without detracting therefore from the real merit which abounds in the
imperial law, I hope I may have leave to assert, that if an Englishman must be
ignorant of either the one or the other, he had better be a stranger to the
Roman than the English institutions. For I think it an undeniable position,
that a competent knowledge of the laws of that society in which we live, is the
proper accomplishment of every gentleman and scholar; an highly useful, I had
almost said essential, part of liberal and polite education. And in this I am
warranted by the example of ancient Rome; where, as Cicero inform[s]
us, the very boys were obliged to learn the twelve tables by
heart as a carmen necessarium, or indispensable lesson, to imprint on
their tender minds an early knowledge of the laws and constitution of their
But as the long and universal neglect of this study, with us in England,
seems in some degree to call in question the truth of this evident position, it
shall therefore be the business of this introductory discourse, in the first
place to demonstrate the utility of some general acquaintance with the
municipal law of the land, by pointing out it's particular uses in all
considerable situations of life. Some conjectures will then be offered with
regard to the causes of neglecting this useful study; to which will be
subjoined a few reflections on the peculiar propriety of reviving it in our own
And, first, to demonstrate the utility of some acquaintance with the
laws of the land, let us only reflect a moment on the singular frame and polity
of that land, which is governed by this system of laws. A land, perhaps the
only one in the universe, in which political or civil liberty is the very end
and scope of the constitution. This liberty, rightly understood
consists in the power of doing whatever the laws permit; which is
only to be effected by a general conformity of all orders and degrees to those
equitable rules of action, by which the meanest individual is protected from
the insults and oppression of the greatest, As therefore every subject is
interested in the preservation of the laws, it is incumbent upon every man to
be acquainted with those at least with which he is immediately concerned; lest
he incur the censure, as well as inconvenience, of living in society without
knowing the obligations which it lays him under. And thus much may suffice for
persons of inferior condition, who have neither time nor capacity to enlarge
their views beyond that contracted sphere in which they are appointed to move.
But those on whom nature and fortune have bestowed more abilities and greater
leisure, cannot be so easily excused; These advantages are given them, not for
the benefit of themselves only, but also of the public; and yet they cannot, in
any scene of life, discharge properly their duty either to the public or
themselves, without some degree of knowledge in the laws. To evince this the
more clearly, it may not be amiss to descend to a few particulars.
Let us therefore begin with our gentlemen of independent estates and
fortune, the most useful as well as considerable body of men in the nation;
whom even to suppose ignorant in this branch of learning is treated by Mr.
Locke as a strange absurdity. It is their landed property, with
it's long and voluminous train of descents and conveyances, settlements,
entails and incumbrances, that forms the most intricate and most extensive
object of legal knowledge. The thorough comprehension of these, in all their
minute distinctions, is perhaps too laborious a task for any but a lawyer by
profession; yet still the understanding of a few leading principles, relating
to estates and conveyancing, may form some check and guard upon a gentleman's
inferior agents, and preserve him at least from very gross and notorious
Again, the policy of all laws has made some forms necessary in the
wording of last wills and testaments, and more with regard to their
attestation. An ignorance in these must always be of dangerous consequence, to
such as by choice or necessity compile their own testaments without any
technical assistance. Those who have attended the courts of justice are the
best witnesses of the confusion and distresses that are hereby occasioned in
families; and of the difficulties that arise in discerning the true meaning of
the testator, or sometimes in discovering any meaning at all; so that in the
end his estate may often be vested quite contrary to these his enigmatical
intentions, because perhaps he has omitted one or two formal words, which are
necessary to ascertain the sense with indisputable legal precision, or has
executed his will in the presence of fewer witnesses than the law requires.
But to proceed from private concerns to those of a more public
consideration. All gentlemen of fortune are, in consequence of their property,
liable to be called upon to establish the rights, to estimate the injuries, to
weigh the accusations, and sometimes to dispose of the lives of their
fellow-subjects, by serving upon juries. In this situation they have frequently
a right to decide, and that upon their oaths, questions of nice importance, in
the solution of which some legal skill is requisite; especially where the law
and the fact, as it often happens, are intimately blended together. And the
general incapacity, even of our best juries, to do this with any tolerable
propriety, has greatly debased their authority; and has unavoidably thrown more
power into the hands of the judges, to direct, control, and even reverse their
verdicts, than perhaps the constitution intended.
But it is not as a juror only that the English gentleman is called upon
to determine questions of right, and distribute justice to his fellow-subjects;
it is principally with this order of men that the commission of the peace is
filled. And here a very ample field is opened for a gentleman to exert his
talents, by maintaining good order in his neighbourhood; by punishing the
dissolute and idle; by protecting the peaceable and industrious; and above all,
by healing petty differences and preventing vexatious prosecutions. But in
order to attain these desirable ends, it is necessary that the magistrate
should understand his business; and have not only the will, but the power also,
(under which must be included the knowledge) of administering legal and
effectual justice. Else, when he has mistaken his authority, through passion,
through ignorance, or absurdity, he will be the object of contempt from his
inferiors, and of censure from those to whom he is accountable for his
Yet farther; most gentlemen of considerable property, at some period or
other in their lives, are ambitious of representing their country in
parliament: and those, who are ambitious of receiving so high a trust, would
also do well to remember it's nature and importance. They are not thus
honourably distinguished from the rest of their fellow-subjects, merely that
they may privilege their persons, their estates, or their domestics; that they
may list under party banners; may grant or with-hold supplies; may vote with or
vote against a popular or unpopular administration; but upon considerations far
more interesting and important. They are the guardians of the English
constitution; the makers, repealers, and interpreters of the English laws;
delegated to watch, to check, and to avert every dangerous innovation, to
propose, to adopt, and to cherish any solid and well-weighed improvement; bound
by eveconstitutionture, of honour, and of religion, to transmit that
constitution and those laws to their posterity, amended if possible, at least
without any derogation. And how unbecoming must it appear in a member of the
legislature to vote for a new law, who is utterly ignorant of the old I what
kind of interpretation can he be enabled to give, who is a stranger to the text
upon which he comments!
Indeed it is perfectly amazing, that there should be no other state of
life, no other occupation, art, or science, in which some method of instruction
is not looked upon as requisite, except only the science of legislation, the
noblest and most difficult of any. Apprenticeships are held necessary to almost
every art, commmercial or mechanical: a long course of reading and study must
form the divine, the physician, and the practical professors of the laws: but
every man of superior fortune thinks himself born a legislator. Yet
Tully was of a different opinion; it is necessary, says he, for a
senator to be thoroughly acquainted with the constitution; and this, (he
declares,) is a knowledge of the most extensive nature; a matter of science, of
diligence, of reflexion; without which no senator can possibly be fit for his
The mischiefs that have arisen to the public from inconsiderate
alterations in our laws, are too obvious to be called in question; and how far
they have been owing to the defective education of our senators, is a point
well worthy the public attention. The common law of England has fared like
other venerable edifices of antiquity, which rash and unexperienced workmen
have ventured to new-dress and refine, with all the rage of modern improvement.
Hence frequently it's symmetry has been destroyed, it's proportions destorted,
and it's majestic simplicity exchanged for specious embellishments and
fantastic novelties. For, to say the truth, almost all the perplexed questions,
almost all the niceties, intricacies, and delays, (which have sometimes
disgraced the English, as well as other courts of justice) owe their original
not to the common law itself, but to innovations that have been made in it by
acts of parliament; "overladen (as sir Edward Coke expresses it)
with provisoes and additions, and many times on a sudden penned or corrected by
men of none or very little judgment in law." This great and well experienced
judge declares, that in all his time he never knew two questions made upon
rights merely depending upon the common law; and warmly laments the confusion
introduced by ill-judging and unlearned legislators. "But if," he subjoins,
"acts of parliament were after the old fashion penned, by such only as
perfectly knew what the common law was before the making of any act of
parliament concerning that matter, as also how far forth former statutes had
provided remedy for former mischiefs, and defects discovered by experience;
then should very few questions in law arise, and the learned should not so
often and so much perplex their heads to make atonement and peace, by
construction of law, between insensible and disagreeing words, sentences, and
provisoes, as they now do." And if this inconvenience was so heavily felt in
the reign of queen Elizabeth, you may judge how the evil is increased in later
times, when the statute book is swelled to ten times a larger bulk: unless it
should be found, that the penners of our modern statutes have proportionably
better informed themselves in the knowledge of the common law.
What is said of our gentlemen in general, and the propriety of their
application to the study of the laws of their country, will hold equally strong
or still stronger with regard to the nobility of this realm, except only in the
article of serving upon juries. But, instead of this, they have several
peculiar provinces of far greater consequence and concern; being not only by
birth hereditary counsellors of the crown, and judges upon their honour of the
lives of their brother peers, but also arbiters of the property of all their
fellow-subjects, and that in the last resort. In this their judicial capacity
they are bound to decide the nicest and most critical points of the law: to
examine and correct such errors as have escaped the most experienced sages of
the profession, the lord keeper and the judges of the courts at Westminster.
Their sentence is final, decisive, irrevocable: no appeal, no correction, not
even a review, can be had: and to their determination, whatever it be, the
inferior courts of justice must conform; otherwise the rule of property would
no longer be uniform and steady.
Should a judge in the most subordinate jurisdiction be deficient in the
knowledge of the law, it would reflect infinite contempt upon himself, and
disgrace upon those who employ him. And yet the consequence of his ignorance is
comparatively very trifling and small: his judgment may be examined, and his
errors rectified, by other courts. But how much more serious and affecting is
the case of a superior judge, if without any skill in the laws he will boldly
venture to decide a question, upon which the welfare and subsistence of whole
families may depend! where the chance of his judging right, or wrong, is barely
equal; and where, if he chances to judge wrong, he does an injury of the most
alarming nature, an injury without possibility of redress!
Yet, vast as this trust is, it can no where be so properly reposed, as
in the noble hands where our excellent constitution has placed it: and
therefore placed it, because, from the independence of their fortune and the
dignity of their station, they are presumed to employ that leisure which is the
consequence of both, in attaining a more extensive knowledge of the laws than
persons of inferior rank: and because the founders of our polity relied upon
that delicacy of sentiment, so peculiar to noble birth; which, as on the one
hand it will prevent either interest or affection from interfering in questions
of right, so on the other it will bind a peer in honour, an obligation which
the law esteems equal to another's oath, to be master of those points upon
which it is his birthright to decide.
The Roman pandects will furnish us with a piece of history not
unapplicable to our present purpose. Servius Sulpicius, a gentleman of the
patrician order, and a celebrated orator, had occasion to take the opinion of
Quintus Mutius Scaevola, the then oracle of the Roman law; but, for want of
some knowledge in that science, could not so much as understand even the
technical terms, which his friend was obliged to make Use of. Upon which Mutius
Scaevola could not forbear to upbraid him with this memorable
reproofs, "that it was a shame for a patrician, a nobleman, and
an orator of causes, to be ignorant of that law in which he was so peculiarly
concerned." This reproach made so deep an impression on Sulpicius, that he
immediately applied himself to the study of the law; wherein he arrived to that
proficiency, that he left behind him about an hundred and fourscore volumes of
his own compiling upon the subject; and became, in the opinion of
Cicero, a much more complete lawyer than even Mutius Scaevola
I would not be thought to recommend to our English nobility and gentry,
to become as great lawyers as Sulpicius; though he, together with this
character, sustained likewise that of an excellent orator, a firm patriot, and
a wise indefatigable senator; but the inference which arises from the story is
this, that ignorance of the laws of the land hath ever been esteemed
dishonourable in those, who are entrusted by their country to maintain, to
administer, and to amend them.
But surely there is little occasion to enforce this argument any farther
to persons of rank and distinction, if we of this place may be allowed to form
a general judgment from those who are under our inspection; happy, that while
we lay down the rule, we can also produce the example. You will therefore
permit your professor to indulge both a public and private satisfaction, by
bearing this open testimony; that in the infancy of these studies among us,
they were favoured with the most diligent attendance, and pursued with the most
unwearied application, by those of the noblest birth and most ample patrimony;
some of whom are still the ornaments of this seat of learning; and others at a
greater distance continue doing honour to it's institutions, by comparing our
polity and laws with those of other kingdoms abroad, or exerting their
senatorial abilities in the councils of the nation at home.
Nor will some degree of legal knowledge be found in the least
superfluous to persons of inferior rank; especially those of the learned
professions. The clergy in particular, besides the common obligations they are
under in proportion to their rank and fortune, have also abundant reason,
considered merely as clergymen, to be acquainted with many branches of the law,
which are almost peculiar and appropriated to themselves alone. Such are the
laws relating to advowsons, institutions, and inductions; to simony, and
simoniacal contracts; to uniformity, residence, and pluralities; to tithes and
other ecclesiastical dues; to marriages (more especially of late) and to a
variety of other subjects, which are consigned to the care of their order by
the provisions of particular statutes. To understand these aright, to discern
what is warranted or enjoined, and what is forbidden by law, demands a sort of
legal apprehension; which is no otherwise to be acquired, than by use and a
familiar acquaintance with legal writers.
For the gentlemen of the faculty of physic, I must frankly own that I
see no special reason, why they in particular should apply themselves to the
study of the law; unless in common with other gentlemen, and to complete the
character of general and extensive knowledge; a character which their
profession, beyond others, has remarkably deserved. They will give me leave
however to suggest, and that not ludicrously, that it might frequently be of
use to families upon sudden emergencies, if the physician were acquainted with
the doctrine of last wills and testaments, at least so far as relates to the
formal part of their execution.
But those gentlemen who intend to profess the civil and ecclesiastical
laws, in the spiritual and maritime courts of this kingdom, are of all men
(next to common lawyers) the most indispensably obliged to apply themselves
seriously to the study of our municipal laws. For the civil and canon laws,
considered with respect to any intrinsic obligation, have no force or authority
in this kingdom: they are no more binding in England than our laws are binding
at Rome. But as far as these foreign laws on account of some peculiar
propriety, have in some particular cases, and in some particular courts, been
introduced and allowed by our laws, so far they oblige, and no farther; their
authority being wholly founded upon that permission and adoption. In which we
are not singular in our notions: for even in Holland, where the imperial law is
much cultivated and it's decisions pretty generally followed, we are informed
by Van Leeuwen, that "it receives it's force from custom and the
consent of the people, either tacitly or expressly given: for otherwise, he
adds, we should no more be bound by this law, than by that of the Almains, the
Franks, the Saxons, the Goths, the Vandals, and other of the antient nations."
Wherefore, in all points in which the different systems depart from each other,
the law of the land takes place of the law of Rome, whether ancient or modem,
imperial or pontifical. And, in those of our English courts wherein a reception
has been allowed to the civil and canon laws, if either they exceed the bounds
of that reception, by extending themselves to other matters than are permitted
to them; or if such courts proceed according to the decisions of those laws, in
cases wherein it is controlled by the law of the land the common law in either
instance both may, and frequently does prohibit and annul their
proceedings: and it will not be a sufficient excuse for them to
tell the king's courts at Westminster, that their practice is warranted by the
laws of Justinian or Gregory, or is conformable to the degrees of the Rota or
imperial chamber. For which reason it becomes highly necessary for every
civilian and canonist, that would act with safety as a judge, or with prudence
and reputation as an advocate, to know in what cases and how far the English
laws have given sanction to the Roman; in what points the latter are rejected;
and where they are both so intermixed and blended together as to form certain
supplemental parts of the common law of England distinguished by the titles of
the king's maritime, the king's military, and the king's ecclesiastical law.
The propriety of which inquiry the university of Oxford has for more than a
century so thoroughly seen, that in her statutes she appoints,
that one of the three questions to be annually discussed at the act by the
jurist-inceptors shall relate to the common law; subjoining this reason,
"quia juris civilis studiosos decet haud imperitos esse juris municipalis,
et differentias exteri patriique juris notas habere." And the
statutes of the university of Cambridge speak expressly to the
From the general use and necessity of some acquaintance with the common
law, the inference were extremely easy with regard to the propriety of the
present institution, in a place to which gentlemen of all ranks and degrees
resort, as the fountain of all useful knowledge. But how it has come to pass
that a design of this sort has never before taken place in the university, and
the reason why the study of our laws has in general fallen into disuse, I shall
previously proceed to enquire.
Sir John Fortescue, in his panegyric on the laws of England (which was
written in the reign of Henry the sixth) puts a very obvious
question in the mouth of the young prince, whom he is exhorting to apply
himself to that branch of learning: "why the laws of England, being so good, so
fruitful, and so commodious, are not taught in the universities, as the civil
and canon laws are?" In answer to which he gives what seems,
with due deference be it spoken, a very jejune and unsatisfactory reason; being
in short, that "as the proceedings at common law were in his time carried on in
three different tongues, the English, the Latin, and the French, that science
must be necessarily taught in those three several languages; but that in the
universities, all sciences were taught in the Latin tongue only;" and therefore
he concludes, "that they could not be conveniently taught or studied in our
universities." But without attempting to examine seriously the validity of this
reason, (the very shadow of which by the wisdom of your late constitutions is
entirely taken away,) we perhaps may find out a better, or at least a more
plausible, account, why the study of the municipal laws has been banished from
these seats of science, than what the learned chancellor thought it prudent to
give to his royal pupil.
That antient collection of unwritten maxims and customs, which is called
the common law, however compounded or from whatever fountains derived, had
subsisted immemorially in this kingdom; and, though somewhat altered and
impaired by the violence of the times, had in great measure weathered the rude
shock of the Norman conquest. This had endeared it to the people in general, as
well because it's decisions were universally known, as because it was found to
be excellently adapted to the genius of the English nation. In the knowledge of
this law consisted great part of the learning of those dark ages; it was then
taught, says Mr. Selden, in the monasteries; in the
universities, and in the families of the principal nobility. The clergy in
particular, as they then engrossed almost every other branch of learning, so
(like their predecessors the British Druids) they were
peculiarly remarkable for their proficiency in the study of the law. Nullus
clericus nisi causidicus, is the character given of them soon after the
conquest by William of Malmsbury. The judges therefore were
usually created out of the sacred order, as was likewise the
case among the Normans; and all the inferior offices were
supplied by the lower clergy, which has occasioned their successors to be
denominated clerks to this day.
But the common law of England, being not committed to writing; but only
handed down by tradition, use, and experience, was not so heartily relished by
the foreign clergy; who came over hither in shoals during the reign of the
conqueror and his two sons, and were utter strangers to our constitution as
well as our language. And an accident, which soon after happened, had nearly
completed it's ruin. A copy of Justinian's pandects, being newly
discovered at Amalfi, soon brought the civil law into vogue all over the west
of Europe, where before it was quite laid aside and in a manner
forgotten; though some traces of it's authority remained in
Italy and the eastern provinces of the empire.
This now became in a particular manner the favourite of the popish clergy, who
borrowed the method and many of the maxims of their canon law from this
original. The study of it was introduced into several universities abroad,
particularly that of Bologna; where exercises were performed, lectures read,
and degrees conferred in this faculty, as in other branches of science: and
many nations on the continent, just then beginning to recover from the
convulsions consequent upon the overthrow of the Roman empire, and settling by
degrees into peaceable forms of government, adopted the civil law, (being the
best written system then extant) as the basis of their several constitutions;
blending and interweaving it among their own feodal customs, in some places
with a more extensive, in others a more confined authority.
Nor was it long before the prevailing mode of the times reached England.
For Theobald, a Norman abbot, being elected to the see of
Canterbury, and extremely addicted to this new study, brought
over with him in his retinue many learned proficients therein; and among the
rest Roger sirnamed Vacarius, whom he placed in the university of
Oxford, to teach it to the people of this country. But it did
not meet with the same easy reception in England, where a mild and rational
system of laws had been established, as it did upon the continent; and, though
the monkish clergy (devoted to the will of a foreign primate) received it with
eagerness and zeal, yet the laity, who were more interested to preserve the old
constitution, and had already severely felt the effect of many Norman
innovations, continued wedded to the use of the common law. King Stephen
immediately published a proclamation, forbidding the study of
the laws, then newly imported from Italy; which was treated by the
monks as a piece of impiety, and, though it might prevent the
introduction of the civil law process into our courts of justice, yet did not
hinder the clergy from reading and teaching it in their own schools and
From this time the nation seems to have been divided into two parties;
the bishops and clergy, many of them foreigners, who applied themselves wholly
to the study of the civil and canon law, which now came to be inseparably
interwoven with each other; and the nobility and laity, who adhered with equal
pertinacity to the old common law: both of them reciprocally jealous of what
they were unacquainted with, and neither of them perhaps allowing the opposite
system that real merit which is abundantly to be found in each. This appears,
on the one hand, from the spleen with which the monastic writers
speak of our municipal laws upon all occasions; and, on the other, from the
firm temper which the nobility shewed at the famous parliament of Merton: when
the prelates endeavoured to procure an act, to declare all bastards legitimate
in case the parents intermarried at any time afterwards; alleging this only
reason, because holy-church (that is, the canon law) declared such children
legitimate: but "all the earls and barons (says the parliament
roll) with one voice answered, that they would not change the
laws of England, which had hitherto been used and approved." And we find the
same jealousy prevailing above a century afterwards, when the
nobility declared with a kind of prophetic spirit, "that the realm of England
hath never been unto this hour, neither by the consent of our lord the king and
the lords of parliament shall it ever be, ruled or governed by the civil
law." And of this temper between the clergy and laity many more
instances might be given.
While things were in this situation, the clergy, finding it impossible
to root out the municipal law, began to withdraw themselves by degrees from the
temporal courts: and to that end, very early in the reign of king Henry the
third, episcopal constitutions were published, forbidding all
ecclesiastics to appear as advocates in foro saeculari: nor did they
long continue to act as judges there, not caring to take the oath of office
which was then found necessary to be administered, that they should in all
things determine according to the law and custom of this realm;
though they still kept possession of the high office of chancellor, an office
then of little juridical power; and afterwards, as it's business increased by
degrees, they modelled the process of the court at their own discretion.
But wherever they retired and wherever their authority extended, they
carried with them the same zeal to introduce the rules of the civil, in
exclusion of the municipal law. This appears in a particular manner from the
spiritual courts of all denominations, from the chancellor's courts in both our
universities, and from the high court of chancery before mentioned; in all of
which the proceedings are to this day in a course much conformed to the civil
law: for which no tolerable reason can be assigned, unless that these courts
were all under the immediate direction of the popish ecclesiastics, among whom
it was a point of religion to exclude the municipal law; pope Innocent the
fourth having forbidden the very reading of it by the clergy
because it's decisions were not founded on the imperial constitutions, but
merely on the customs of the laity. And if it be considered, that our
universities began about that period to receive their present form of
scholastic discipline; that they were then, and continued to be till the time
of the reformation, entirely under the influence of the popish clergy; (sir
John Mason the first protestant, being also the first lay, chancellor of
Oxford) this will lead us to perceive the reason, why the study of the Roman
laws was in those days of bigotry pursued with such alacrity in
these seats of learning; and why the common law was entirely despised, and
esteemed little better than heretical.
And, since the reformation, many causes have conspired to prevent it's
becoming a part of academical education. As, first, long usage and established
custom; which, as in every thing else, so especially in the forms of scholastic
exercise, have justly great weight and authority. Secondly, the real intrinsic
merit of the civil law, considered upon the footing of reason and not of
obligation, which was well known to the instructors of our youth and their
total ignorance of the merit of the common law, though it's equal at least, and
perhaps an improvement on the other. But the principal reason of all, that has
hindered the introduction of this branch of learning, is, that the study of the
common law, being banished from hence in the times of popery, has fallen into a
quite different channel, and has hitherto been wholly cultivated in another
place. But as the long usage and established custom, of ignorance of the laws
of the land, begin now to be thought unreasonable; and as by these means the
merit of those laws will probably be more generally known; we may hope that the
method of studying them will soon revert to it's antient course, and the
foundations at least of that science will be laid in the two universities;
without being exclusively confined to the channel which it fell into at the
times I have just been describing.
For, being then entirely abandoned by the clergy, a few stragglers
excepted, the study and practice of it devolved of course into the hands of
laymen: who entertained upon their parts a most hearty aversion to the civil
law, and made no scruple to profess their contempt, nay even
their ignorance of it, in the most public manner. But still, as
the balance of learning was greatly on the side of the clergy, and as the
common law was no longer taught, as formerly, in any part of the
kingdom, it must have been subjected to many inconveniencies, 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.
The incident which I mean was the fixing the court of common pleas, the
grand tribunal for disputes of property, to be held in one certain spot; that
the seat of ordinary justice might be permanent and notorious to all the
nation. Formerly that, in conjunction with all the other superior courts, was
held before the king's capital justiciary of England, in the aula regis,
or such of his palaces wherein his royal person resided; and removed with his
household from one end of the kingdom to the other. This was found to occasion
great inconvenience to the suitors; to remedy which it was made an article of
the great charter of liberties, both that of king John and king Henry the
third, 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 observes) addicting themselves wholly to the study of
the laws of the land, and no longer considering it as a mere subordinate
science for the amusement of leisure hours, soon raised those laws to that
pitch of perfection, which they suddenly attained under the auspices of our
English Justinian, king Edward the first.
In consequence of this lucky assemblage, they naturally fell into a kind
of collegiate order, and, being excluded from Oxford and Cambridge, found it
necessary to establish a new university of their own. This they did by
purchasing at various times certain houses (now called the inns of court and of
chancery) between the city of Westminster, the place of holding the king's
courts, and the city of London; for advantage of ready access to the one, and
plenty of provisions in the other. 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 from apprendre, to
learn) who answered to our bachelors: as the state and degree of a
serjeant,servientis ad legem, did to that of doctor.
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. 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 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 understands it, and which the words seem to import) then
the intention is evidently this; by preventing private teachers within the
walls of the city, to collect all the common lawyers into the one public
university, which was newly instituted in the suburbs.
In this juridical university (for such it is insisted to have been by
Fortescue and sir Edward Coke) 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, the originals and as it were the elements of the law;
who profiting therein, as they grew to ripeness so were they admitted into the
greater inns of the same study, called the inns of court." And in these inns of
both kinds, he goes on to tell us, the knights and barons, with other grandees
and noblemen of the realm, did use to place their children, though they did not
desire to have them thoroughly learned in the law, or to get their living by
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
Hence it is evident, that (though under the influence of the monks our
universities neglected this study, yet) in the time of Henry the sixth it was
thought highly necessary and was the universal practice, for the young nobility
and gentry to be instructed in the originals and elements of the laws. But by
degrees this custom has fallen into disuse; so that in the reign of queen
Elizabeth sir Edward Coke does not reckon above a thousand
students, and the number at present is very considerably less. Which seems
principally owing to these reasons; first, because the inns of chancery, being
now almost totally filled by the inferior branch of the profession, are neither
commodious nor proper for the resort of gentlemen of any rank or figure; so
that there are very rarely any young students entered at the inns of chancery;
secondly, because in the inns of court all sorts of regimen and academical
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 knowledge of practice is
absolutely necessary; such I mean as are intended for the profession: the rest
of our gentry, (not to say our nobility also) having usually retired to their
estates, or visited foreign kingdoms, or entered upon public life, without any
instruction in the laws of the land, and indeed with hardly any opportunity of
gaining instruction, unless it can be afforded them in these seats of
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 now enumerated, will hold with
regard to the universities. Gentlemen may here associate with gentlemen of
their own rank and degree. Nor are their conduct and studies left entirely to
their own discretion; but regulated by a discipline so wise and exact, yet so
liberal, so sensible and manly, that their conformity to 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, and very
lately by the whole university, 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 ever have been deemed unnecessary to
be studied in an university, is matter of astonishment and concern. Surely, if
it were not before an object of academical knowledge, it was high time to make
it one; and to those who can doubt the propriety of its reception among us (if
any such there be) we may return an answer in their own way; that ethics are
confessedly a branch of academical learning, and Aristotle himself has
said, speaking of the laws of his own country, that jurisprudence or the
knowledge of those laws is the principal and most perfect branch of
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," he was sensible he could not perform his resolution in
a better and more effectual manner, than by extending to the youth of this
place those 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;
from their alacrity and unexampled dispatch in carrying
it into execution; 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. We have seen an
universal emulation, who best should understand, or most faithfully pursue, the
designs of our generous patron: and with pleasure we recollect, that those who
are most distinguished by their quality, their fortune, their station, their
learning, or their experience, have appeared the most zealous to promote the
success of Mr. Viner's establishment.
The advantages that might result to the science of the law itself, when
a little more attended to in these seats of knowledge, perhaps, would be very
considerable. The leisure and abilities of the learned in these retirements
might either suggest expedients, or execute those dictated by wiser
heads, 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.
For I think it past dispute that those gentlemen, who resort to the inns
of court with a view to pursue the profession, will find it expedient (whenever
it is practicable) to lay the previous foundations of this, as well as every
other science, in one of our learned universities. We may appeal to the
experience of every sensible lawyer, whether 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 transplanted on a
sudden into the midst of allurements to pleasure, without any restraint or
check but what his own prudence can suggest; with no public direction in what
course to pursue his inquiries; no private assistance to remove the distresses
and difficulties which will always embarrass a beginner. In this situation he
is expected to sequester himself from the world, and by a tedious lonely
process to extract the theory of law from a mass of undigested learning; or
else by an assiduous attendance on the courts to pick up theory and practice
together, sufficient to qualify him for the ordinary run of business. How
little therefore is it to be wondered at, that we hear of so frequent
miscarriages; that so many gentlemen of bright imaginations grow weary of so
unpromising a search, and addict themselves wholly to
amusements, or other less innocent pursuits; and that so many persons of
moderate capacity confuse themselves at first setting out, and continue ever
dark and puzzled during the remainder of their lives.
The evident want of some assistance in the rudiments of legal knowledge
has given birth to a practice, which, if ever it had grown to be general, must
have proved of extremely pernicious consequence. I mean the custom by some so
very warmly recommended, of dropping all liberal education, as of no use to
students in the law: and placing them, in it's stead, at the desk of some
skilful attorney; in order to initiate them early in all the depths of
practice, and render them more dexterous in the mechanical part of business. A
few instances of particular persons, (men of excellent learning, and
unblemished integrity,) who, in spite of this method of education, have shone
in the foremost ranks of the bar, have afforded some kind of sanction to this
illiberal path to the profession, and biassed many parents, of short-sighted
judgment, in it's favour: not consider-
ing, 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: .... but
in these all who hear me, I know, have already prevented me.
Making therefore due allowance for one or two shining exceptions,
experience may teach us to foretell that a lawyer thus educated to the bar, in
subservience to attorneys and solicitors, 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 is the utmost his knowledge 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
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
their interpretation and enforcement of the laws (which include the entire
disposal of our properties, liberties, and lives) fall wholly into the hands of
obscure or illiterate men, is 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, 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) 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 tides 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. 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.
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 Fortes-cue's inns of chancery, "in tracing out the originals, and as
it were the elements of the law." For if, as Justinian 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
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.
A plan of this nature, if executed with care and ability, cannot fail of
administering a most useful and rational entertainment to students of all ranks
and professions; and yet it must be confessed that the study of the laws is not
merely a matter of amusement; for, as a very judicious writer
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 favourite recreation or
exercise. And this attention not equally necessary to be exerted by every
student upon every occasion. Some branches of the law, as the formal process of
civil suits, and the 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, 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 knowledge as is necessary for a judge is hardly to be
acquired by the lucubrations of twenty years, yet, with a genius of tolerable
perspicacity, that knowledge which is fit for a person of birth or condition
may be learned in a single year, without neglecting his other
To the few therefore (the very few I am persuaded) that entertain such
unworthy notions of an university, as to suppose it intended for mere
dissipation of thought; to such as mean only to while away the awkward interval
from childhood to twenty-one, between the restraints of the school and the
licentiousness of politer life, in a calm middle state of mental and of moral
inactivity; to these Mr. Viner gives no invitation to an entertainment which
they never can relish. But to the long and illustrious train of noble and
ingenuous youth, who are not more distinguished among us by their birth and
possessions, than by the regularity of their conduct and their thirst after
useful knowledge, to these our benefactor has consecrated the fruits of a long
and laborious life, worn out in the duties of his calling; and will joyfully
reflect (if such 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 inspire them with a
desire to be still better acquainted with the laws and constitution of their
 Read in Oxford, at the opening of the Vinerian lectures: 25 Oct.
 a De Legg. 2. 23.
 b Montesq Esp. L. 1.11. c. 5.
 c Facultas ejus, quod cuique facere, libet, nisi quid vi, aut
jure prohibetur. Inst. 1.3 1.
 d Education, §. 187.
 e De Legg. 3.18. Est senatori necessarium nosse
rempublicam; idque late patet: ... genus hoc omne scientiae, diligentiae,
memoriae est, sine quo paratus esse senator millo pacto potest.
 f 2 Rep. pref.
 g Ff 1. 2. 2. §. 43. Turpe esse patricio, et nobili,
et causas oranti, jus in quo versaretur ignorare.
 h Brut. 41.
 i Dedicatio corporis juris civilis. Edit. 1663.
 k Hale Hist. C.L c 2 Selden in Fletam. 5 Rep. Caudrey's
case. 2 Inst. 599.
 l Tit. VII. Sect. 2. §. 2.
 m Doctor legum mox a doctoratu dabit operam legibus Angliae, ut
non sit imperitus carum legum quas habet sua patria, et differentias exteri
patriique juris noscat Stat, Eliz. R c. 14. Cowel. Institut. in
 n c. 47.
 o c. 48.
 p in Fletam. 7.7.
 q Caesar de bello Gal. 6.12.
 r de gest. reg. I. 4.
 s Dugdale Orig. jurid. c. 8.
 t Les juges sont sages personnel et autentiques.... sicome les
archevesques, evesques les chanoines des eglises cathedraulx, et les autres
personnes qui ont dignitez in saincte eglise; les abbez, les prieurs
conventaulx, et les gouverneurs des eglises, &c. Grand Coustumier,
 u circ. A. D. 1130.
 w LL. Wisigoth. 2. 1, 9.
 x Capitular. Hludov. Pli. 4. 102.
 y Selden in Fletam. 5. 5.
 z Domat's treatise of law, c. 13. §. 9. Epistol. Innocent.
IV. in M. Paris ad A. D. 1254.
 a A. D. 1138.
 b Gervas. Dorobern. Act. Pontif. Cantuar. col. 1665.
 c Rog. Bacon citat. per Selden in Fletam. 7 6. in
Fortesc. c. 33. & 8 Rep. Pref.
 d Joan. Sarisburiens. Polycrat. 8. 22.
 e Idem, ibid. 5.16 Polydor. Virgil. Hist. I. 9.
 f Stat. Merton. 20 Hen. III. c. 9. Et omnes
comites et barones una voce responderunt, quod nolunt leges Angliae mutare,
quae bucusque usitatae sunt et approbatae.
 g 11 Ric. II.
 h Selden. Jan. Anglor. I. 2. §. 43. in Fortesc.
 i Spelman. Concil. A. D. 1217. Wilkins, vol. 1.
p. 574. 599.
 k Selden in Fletam. 9. 3.
 l M. Paris ad A. D. 1254.
 m There cannot be a stronger instance of the absurd and
superstitious veneration that was paid to these laws, than that the most
learned writers of the times thought they could not form a perfect character,
even of the blessed virgin, without making her a civilian and a canonist. Which
Albertus Magnus, the renowned dominican doctor of the thirteenth century, thus
proves in his Summa de laudibus christiferae virginis (divinum magis quam
humanum opus) qu. 23. §. 5. "Item quod jura civilia, &
leges, & decreta scivit in summo, probatur hoc modo: sapientia
advocati manifestatur in tribus; unum, quod obtineat omnia contra judicem
justum & sapientem; secundo, quod contra advertarium astutum
& sagacem; tertio, quod in causa desperata: sed beatissima virgo, contra
judicem sapientissimum, Dominum, contra adversarium callidissimum, dyabolum, in
causa nostra desperata; sententiam optatam, obtinuit." To which an eminent
franciscan, two centuries afterwards, Bernardinus de Busti (Mariale,
part. 4. serm. 9.) very gravely subjoins this note. "Nec videtur
incongruum mulieres habere peritiam juris. Legitur enim de uxore Joannis Andi
eae glossatoris, quod tantam peritiam in utroque jure habuit, ut publice in
scholis legere ausa sit."
 n Fortesc. de laud. LL. c. 25.
 o This remarkably appeared in the case of the abbot of Torun.
M. 22. Edw. III. 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, par que a ceo n'avomus regard, &c."
 p c. 11.
 q Glossar. 334.
 r Fortesc. c 48.
 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. Glos. 37. Dugdale, Orig. jurid. 55.)
 t The first mention which 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 mal-practices, 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 nan est permissus ........ Satelles vero eum
arripiens, non per coifea ligamina sed per gutter mm appre hendens, 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.
 u Ne aliquis scholas regens de legibus in cadem civitate de
caetero ibidem, leges doceat.
 w in Flet. 8. 2.
 x 2 Inst. proem.
 y c. 49.
 z. 3 Rep pref.
 a 3 Rep pref.
 b Ibid.
 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
 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 its publication to the establishment of a manage in
 e Teleia maliVa arete, oti teV teleiaV areteV
Ethic. ad Nicomach. I. 5. c. 3.
 f See the preface to the eighteenth volume of his abridgment.
 g Mr. Viner is enrolled among the public benefactors of the
university by decree of convocation.
 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 Magdalane, 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.
 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 auditor's such gratuity as shall be settled from time to
time by decree of convocation; and that, for ever) of the said sixty lectures
omitted, the professor on complaint made to the vice-chancellor within the
year, do forfeit tony 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 eases 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
7. THAT every scholar be elected by convocation,
and at the time of election be unmarried, and a member of some college or hall
in the university of Oxford, who shall have been matriculated twenty-four
calendar months at the least: that he do take the degree of bachelor of civil
law with all convenient speed: (either proceeding in arts or otherwise) and
previous to his taking the same, between the second and eighth year from his
matriculation, be found to attend two courses of the professor's lectures, to
be certified under the professor's hand; and within one year after taking the
same to be called to the bar: that he do annually reside six months till he is
of four years standing, and four months from that time till he is master of
arts or bachelor of civil law: after which he be 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
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.
 k See lord Bacon's proposals and offer of a digest.
 l Sir Henry Spelman, in the preface to his glossary, has given us a
very lively picture of nib 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."
 m The four highest judicial offices were at that time filled by
gentlemen, two of whom had been fellows of All Souls college; another, student
of Christ church; and the fourth a fellow of Trinity college, Cambridge.
 n See Kennet's Life of Somner, p. 67.
 o Ff. 40. 9.12.
 p See Lowth's Oratio Crewiana, p. 365.
 q The analysis of the laws of England, first published, A.
D. 1759, and exhibiting the order and principal division of the ensuing
COMMENTARIES; which were originally submitted to the
university in a private course of lectures, A. D. 1753.
 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 et infirmum animum, studiosi
multitudine ac varietate rerum oneravimus, duorum alterum, aut desertorem
studiorum efficiemus, aut cum magno labore, saepe etiam cum diffidentia (quae
plerumque juvenes avertit) serius ad id perducemus, ad quod, leviore via
ductus, sine magno labore, et sine ulla diffidentia maturius perduci potuisset.
Inst. 1. 1. 2.
 s Of parliaments. 57.
 t Dr. Taylor's pref. to Elem. of civil law.
 u De laud. Leg. c. 8.