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 pomeria of university learning, and adopt a new tribe of citizens within these philosophical walls, we interest a very numerous and [ 31 ] very powerful profession in the preservation of our rights and re

venues.

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,(i) 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 warmly recommended, of dropping all liberal education, as of no use to students in the law: and placing them, in its 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 [ 32 ] 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 its fa vour: not considering that there are some geniuses, formed to overcome all disadvantages, and that from such particular instances no general rules

iSir Henry Spelman, in the preface to his glossary, has given us a very lively picture of his own distress upon this occasion. "Emisit me mater Londinum, juris nostri capessendi gratia; cujus cum vestibulum sa lutassem,reperissemque linguam peregrinam, dialectum barbarum, methodum inconsinnum, wołem non ingen tem solum sed perpetuis humeris sustinendum, excidit mihi (fateor) animus, &c.

VOL. I.

3

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: (k)—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 attornies 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 (m) is the utmost his knowledge will arrive at: he must never aspire to form, and seldom expect to comprehend any arguments drawn & priori, from the spirit of the laws, and the natural foundations of justice.

Nor is this all; for (as few persons of birth or fortune, or even of [33] scholastic education, will submit to the drudgery of servitude, and

the manual labour of copying the trash of an office), should this infatuation prevail to any considerable degree, we must rarely expect to see a gentleman of distinction or learning at the bar. And what the consequence may be, to have the interpretation and enforcement of the laws (which include the entire disposal of our properties, liberties, and lives) fall wholly into the hands of obscure or illiterate men, is matter of very public concern.

The inconveniences here pointed out can never be effectually prevented, but by making academical education a previous step to the profession of the common law, and at the same time making the rudiments of the law

k 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. 1 See Kennet's Life of Somner, p. 67.

m Ff. 40. 9. 12.

(6) The learning, which of late years has distinguished the bar, leaves little reason to appre hend that such will speedily be the degraded state of the laws of England. Our author's labours and example have contributed in no inconsiderable degree to rescue the profession from the reproaches of Lord Bolingbroke, whose sentiments upon the education of a barrister, correspond so fully with those of the learned judge, that they deserve to be annexed to this elegant dissertation on the study of the law.

"I might instance (says he) in other professions, the obligation men lie under of applying to certain parts of history; and I can hardly forbear doing it in that of the law, in its nature the noblest and most beneficial to mankind, in its abuse and debasement the most sordid and the most pernicious. A lawyer now is nothing more, I speak of ninety-nine in a hundred at least, to use Some of Tully's words, nisi leguleius quidem cautus, et acutus præco actionum cantor formularum, auceps syllabarum. But there have been lawyers that were orators, philosophers, histo rians: there have been Bacons and Clarendons. There will be none such any more, till in some better age, true ambition, or the love of fame, prevails over avarice; and till men find leisure and encouragement to prepare themselves for the exercise of this profession, by climbing up to the vantage ground, so my Lord Bacon calls it, of science, instead of grovelling all their lives below, in a mean but gainful application to all the little arts of chicane. Till this happen, the profession of the law will scarce deserve to be ranked among the learned professions; and whenever it hap. pens, one of the vantage grounds to which men must climb is metaphysical, and the other, historical knowledge.

“They must pry into the secret recesses of the human heart, and become well acquainted with the whole moral world, that they may discover the abstract reason of all laws; and they must trace the laws of particular states, especially of their own, from the first rough sketches to the more perfect draughts; from the first causes or occasions that produced them, through all the efots, good and bad, that they produced." (Stud. of Hist. p. 353. quarto edition.) Christian.

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 [ 34 ] 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 was 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 economy, and are applicable to particulars only: I reason upon more general topics. And therefore to the qualities of the head, which I have just enumerated, I cannot but add those of the heart; affectionate loyalty to the king, a zeal for liberty and the constitution, a sense of real honour, and well-grounded principles of religion; as necessary to form a truly valuable English lawyer, a Hyde, a Hale, or a Talbot. And, whatever the ignorance of some, or unkindness of others, may have heretofore untruly suggested, experience will warrant us to affirm, that these endowments of loyalty and public spirit, of honour and religion, are no where to be found in more high perfection than in the two universities of this kingdom. Before I conclude, it may perhaps be expected, that I lay before you a short and general account of the method I propose to follow, in endeavouring to execute the trust you have been pleased to repose in my hands. And in these solemn lectures, which are ordained to be read at the entrance of every term, (more perhaps to do public honour to this laudable institution, than for the private instruction of individuals), (n) I presume it will best answer the intent of our benefactor and the expectation of this learned body, if I attempt to illustrate at times such detached titles of the law, as are the most easy to be understood and most capable of historical or critical ornament. But in reading the complete course, which is annually consigned to my care, a more regular method will be necessary; and, till a better is proposed, I shall take the liberty to follow [35] the same that I have already submitted to the public..(o). To fill up and finish that outline with propriety and correctness, and to render the

n See Lowth's Oratio Crewiana, p. 365.

o The analysis of the laws of England, first published A. D. 1756, and exhibiting the order and principal divisions of the ensuing COMMENTARIES; which were originally submitted to the university in a pri vate course of lectures, A. D. 1753.

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 mean: 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, its connexions and boundaries, its greater divisions and principal cities it is not his business to describe minutely the subordinate limits, or to fix the longitude and latitude of every inconsiderable hamlet. His attention should be engaged, like that of the readers in Fortescue's inns of chancery, "in tracing out the originals, and, as it 66 were, the elements of the law." For if, as Justinian (p) 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 Cæsar 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 [36] imported by Vacarius and his followers; but above all, to that in

estimable reservoir iof legal antiquities and learning, the feodal law, or, as Spelman (9) 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 (r) has observed upon a similar occasion, the learner will be considera"bly disappointed, if he looks for entertainment without the expense 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 is not equally necessary to be exerted by every student upon every occasion. Some branches of the law, as the formal process of civil suits, and the subtile distinctions incident to landed property, which are the most difficult to be thoroughly understood, are the least worth the pains of understanding, except to such gentlemen as intend to pursue the profession. To others I may venture to apply, with a slight alteration, the words of sir John Fortescue, (8) when first his royal pupil determines to engage in this study. "It will not

p Incipientibus nobis exponere jura populi Romani, ita videntur tradi posse commodissime, si primo levi ac simplici via singula tradantur; alioquí, si statim ab initio rudem adhuc et infirmum animum studiosi multitu dine 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.

q Of parliaments, 57.

r Dr. Taylor's pref. to Elem. of Civil Law. s De laud. Leg. c. S.

"be necessary for a gentleman, as such, to examine with a close applica❝tion 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 [ 37 ] "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 improvements."

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 reflections can now be 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 country. 7

(7) It will be observed, that in this chapter, the learned commentator has principally endeavoured to enforce the importance of the study of the law, without attempting to describe the means by which the knowledge of it may be attained. It is difficult to supply this desideratum in a note, but the editor feels that in presenting a general and concise outline of study, he may perform an acceptable service, and enhance the practical utility of this first work on the science of English Jurisprudence.

Assuming that the student has received a competent general education, and which should be more comprehensive and complete than is deemed essential to the candidate in most of the learn ed professions, the first point to determine is, to what department of the law he will devote himself: he must be prepared for a sedulous application of the greatest part of his time to the study of that branch; for the law is a jealous science, and requires the most undivided attention. Each of the departments is sufficiently copious and extensive to employ the whole time and energies of its peculiar disciples; and therefore it has been wisely recommended, that the student should not bestow more attention upon the arcana of the other departments than may conduce to the perfec tion of his knowledge in his own.

It has been a disputed point, whether it is desirable that a young man who is destined for the bar, should employ any part of his time in an attorney's office. Admitting the propriety and inportance of adopting the most expeditious mode of acquiring the mere practical knowledge of the profession, it must be conceded that an attorney's office affords peculiar advantages. The increasing respectability of that class of practitioners, obviates many of the objections which were formerly urged against such a plan; and as offices may now be readily found, where neither the principles nor the manners of a gentleman would be endangered, there is no reason why a year's attendance in an eminent solicitor's office should not be given at the close of the course of study, after the student has fully been informed of the nature of rights and wrongs, and their appropriate remedies; but it would be a waste of time to attempt to learn the practical mode of conducting a suit before the more substantial points have been well understood."

The most splendid powers of intellect will scarcely dispense with the necessity for entering in the first instance into a barrister's, conveyancer's, or special pleader's chambers, according as the student may have made his choice, if he would sufficiently qualify himself for his profession. Two or three years, sedulously devoted to the acquisition of practical knowledge, and the various