nue 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; (k) though they still kept possession of the high office of chancellor; an office then of little juridical power; and afterwards, as its 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 (7) the very reading of it by the clergy, because its 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 re[21] ceive 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 (1) 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 its 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 its 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

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 christiferæ virginis (divinum magis quam humanum opus) qu. 23. § 5 "Item quod jura civilia, et legis, et decreta sievit in summo, probatur hoc modo; sapientia advocati manifestatur in tribus; unum, quod obtinent omnia contra judicem justum et sapientem; secunda, quod contra adversarium et 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 Andrea glossatoris, quod tantam peritiam in utroque jure habuit, ut publice in scholis legere ausa sit.

as an advocate into the spiritual courts, and was rejected because he had been in deacon's orders. The court of King's Bench refused an application for a mandamus, 8 East Rep. 213. But it must not thereby be inferred, that no one who has been in holy orders can be admitted to practice in the temporal courts. The degree of barrister, is conferred at the will of the inn of court to which the candidate belongs, and no such ground of exclusion has been insisted on.

Chitty.

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 [22] the method of studying them will soon revert to its ancient 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, (n) 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 inconveniences, and perhaps would have been gradually lost and over-run 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 its 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 [ 23 ] 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, (p) that "common pleas should no longer follow the king's court, but be held "in some certain place:" in consequence of which they have ever since been held a few necessary removals in times of the plague excepted) in the palace of Westminster only. This brought together the professors of the municipal law, who before were dispersed about the kingdom, and formed them into an aggregate body; whereby a society was established of persons, who, (as Spelman (4) 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

n Fortesc. de laud LL. c. 25.

o This remarkably appeared in the case of the abbot of Torum, 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 auntiatione 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 ancient ones, was prohibited. But Skipwith, the king's serjeant, and afterwards chief baron of the exchequer, declares them to be flat nonsense: “in ceux parole, 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 leur ley, pur que a ceo n'avemus regard, &c."

? Glossar, 334.

and of chancery) between the city of Westminster, the place of holding the king's courts, and the city of London; for advantage of ready access to the one, and plenty of provisions in the other. (r) Here exercises were performed, lectures read, and degrees were at length confer

red in the common law, as at other universities in the canon [24] and civil. The degrees were those of barristers (first styled apprentices (s) from apprendre, to learn) who answered to our bachelors as the state and degree of a serjeant, (t) servientis ad legem, did to that of doctor.

The crown seems to have soon taken under its protection this infant seminary of common law; and the more effectually to foster and cherish it, king Henry the Third, in the ninteenth year of his reign, issued out an order directed to the mayor and sheriffs of London, commanding that no regent of any law schools within that city should for the future teach law therein. (u) The word, law, or leges, being a general term, may create some doubt at this distance of time whether the teaching of the civil law, or the common, or both, is hereby restrained. But in either case it tends to the same end. If the civil law only is prohibited, (which is Mr. Selden's (w) opinion) it is then a retaliation upon the clergy, who had excluded the common law from their seats of learning. If the municipal law be also excluded in the restriction (as sir Edward Coke (x) understands it, and which the words seem to import), then the intention is evidently this; by preventing private teachers within 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 [25] Fortescue (y) and sir Edward Coke) (z) there are two sorts of collegiate houses; one called inns of chancery, in which the younger students of the law were usually placed, "learning and studying," says Fortescue, (4) the originals, and as it were, the elements of the law; "who, profitting 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 its practice: and that in his time there were about two thousand students at these several inns, all of whom, he informs us, were filii nobilium, or gentlemen born.

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

r Fortesc.c. 43.

s Apprentices or barristers seem to have been first appointed by an ordinance of king Edward the First in parliament, in the 20th year of his reign. (Spelm Gloss. 37. Dugdale, Orig. Jurid. 55.)

The first mention which I have met with in our law books of serjeants or countors, is in the statute of Westm. 1.3 Ed. I. c. 29. and in Horn's Mirror, e 1. § 10. c. 2. § 5. c 3 § 1. in the same reign. But M. Paris, in his Life of John II. abbot of St. Albans, which be wrote in 1255, 30 Hen. III. speaks of advocates at the common law, or countors (quos banci narratores vulgariter appellamus), as of an order of men well known. And we have an example of the antiquity of the coif in the same author's history of England, A. D. 1259, in the case of one William de Bussy, who being called to account for his great knavery and malpractices, claimed the benefit of his orders or clergy, which till then remained an entire secret; and to that end voluit ligamenta coifae suae solvere ut palam monstraret se tonsuram habere clericalem ; sed non est permissus.Satelles vero cum arripiens, non per coifae ligamina sed per guttur eum apprehendens, traxit ad carcerem. And bence 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 eadem civitate de caetero ibidem leges doceat.

w in Flet. 8. 2.

x 2 Inst. proëm.

y c. 49.

a c. 49.

z 3 Rep. pref.

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 (b) does not reckon above a thousand students, and the number at present is very considerably less. Which seems principally owing to these reasons: first, because the inns of chancery being now almost totally filled by the inferior branch of the profession, 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 superintendence, 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 [ 26 ] 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 learning.

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 its 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 for 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 li-[ 27 ] beral and genteel accomplishments, though not of the intellectual sort, has been thought by our wisest and most affectionate patrons, (c) and very lately by the whole university, (d) no small improvement of our ancient

b3 Rep. pref.

e Lord chancellor Clarendon, in his dialogue of education, among his tracts. p. 325. appears to have been very solicitous, that it might be made "a part of the ornament of our learned academies to teach the qualities of riding, dancing, and fencing, at those hours when more serious exercises should be intermitted."

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 manege in the uni

versity.

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 its theory the noblest faculties of the soul, and exerts in its practice the cardinal virtues of the heart: a science, which is universal in its use and extent, accommodated to each individual, yet comprehending the whole community; that a scien e 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 of 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 ethics. (e)

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 [ 28 ] his public-spirited designs to the wisdom of his parent university.

Resolving to dedicate his learned labours "to the benefit of poste"rity and the perpetual service of his country," (f) 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 ; (g) 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, [ 30 ] 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 the 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, (h) for improving its method, retrenching its superfluities, and • Τέλεια μάλιστα αρετη, ότι της τέλειας αρετης χρήσις εστι Ethic. ad Nicomach. l. 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. He died June 5th. 1756.

h See lord Bacon's proposals and effer of a digest.

(5) A similar benefit has been conferred on the university of Cambridge, by sir George Downing, who, in the year 1717, devised all his estates in the counties of Cambridge, Bedford, and Suffolk, in default of issue of certain specified relations, to trustees for the purpose of founding a college in the university of Cambridge, under the name of Downing College.

In 1764, the last of the relations having died, the devised estates were claimed by the university, and after upwards of thirty years litigation, the right was acknowledged and confirmed under the great seal on the 22d of September, 1800.

Chilly.