Imágenes de páginas
PDF
EPUB

any law schools within that city should, for the future, teach law therein. (u) The word law, or leges, being a general term, may create some doubt at this distance of time, whether the teaching of the civil law, or the common or both, is hereby restrained. But in either case it tends to the same end. If the civil law only is prohibited, (which is Mr. Selden's (w) opinion,) it is then a retaliation upon the clergy, who had excluded the common law from their seats of learning. If the municipal law be also included in the restriction, (as Sir Edward Coke (x) understands it, and which the words seem to import, (then the intention is evidently this: by preventing private teachers within the walls of the city, to collect all the common lawyers into the one public university, which was newly instituted in the suburbs.

*In this juridical universitity (for such it is insisted to have been by For

[*25] tescue(y) and Sir Edward Coke) (2) there are two sorts of collegiate houses; one called inns of chancery, in which the younger students of the law were usually placed, "learning and studying (says Fortescue,) (a) the originals, and, as it were, the elements of the law; who profiting therein, as they 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 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 sufficient [*26] 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

(u) Ne aliquis scholas regens de legibus in eadem civitate de cætero ibidem leges doceat. (x) 2 Inst. proem. (y) C. 49. (z) 3 Rep. pref.

(w) In Flet. 8. 2. (b) 3 Rep. pref.

(a) C. 49.

examination. The general rule is that applicants must pass a satisfactory examination; either in open court or before a committee of practitioners appointed by the court. To the federal courts, attorneys and counsellors of the highest courts of the several states are admitted on motion, without further evidence of fitness.

As to the comparative advantages of pursuing the study of the law in the law school and in the office of the practicing lawyer, Mr. Bishop expresses his views in his First Book of the Law, chap. 17.

Not the least among the valuable results of the law schools has been the publication, by some of the eminent jurists who have been professors therein, of the lectures delivered by them upon leading subjects. The commentaries of Blackstone and Kent and Story, the lectures of Austin on the Province of Jurisprudence, and the treatises on the Conflict of Laws, by Justice Story, on Domestic Relations, by Judge Reeve, on Pleading, by Judge Gould, on Evidence, by Mr. Greenleaf, on Contracts, by Mr. Parsons, and on Real Property, by Mr. Washburn, will at once occur to the reader.

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 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 [*27] 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 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 science, like this should ever have been deemed unnecessary to be studied in a 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 ethics. (e)

From a thorough conviction of this truth, our munificent benefactor, Mr. Viner, having employed above half a century in amassing materials for newmodelling 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 [*28] labours "to the benefit of posterity 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 bene(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 serions exercises should be intermitted." (d) By accepting in full convocation the remainder of Lord Clarendon's history from his noble descend. ants on condition to apply the profits arising from its publication to the establishment of a manage in the university. (e) Τελεια μαλιζα αρετη, ετι της τέλειας αρετης χομασις εζι. Εthic. ad Nicomach. l. 5. c. 3. (f) See the Preface to the 18th volume of his abridgment.

faction must appear beyond a doubt from their gratitude, in receiving it with all possible marks of esteem; (g) from their alacrity and unexampled dispatch in carrying it into execution; (h) and above all, from the laws and constitutions by which they have effectually guarded it from the neglect and abuse to which such institutions are liable. (i) We have seen an universal emulation who best should understand, or most faithfully pursue, the designs of our generous patron: and with pleasure we recollect, that those who are most distinguished *by [*30] their quality, their fortune, their station, their learning, or their experi

ence, have appeared, the most zealous to promote the success of Mr. Viner's establishment,

(g) Mr. Viner is enrolled among the public benefactors of the university by decree of convocation. (4) Mr. Viner died June 5, 1756. His effects were collected and settled, near a volume of his work printed, almost the whole disposed of, and, the accounts made up, in a year and a half from his decease, by the very diligent and worthy administrators, with the will annexed, (Dr. West and Dr. Good, of Magdalene; Dr. Whaley, 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, 1753. The professor was elected on the 20th 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 abridgement, will probably be sufficient hereafter to found another fellowship and scholarship, or three more scholarships, as shall be thought most expedient.

(1) The statutes are in substance as follows:

I. That the accounts of this benefaction be separately kept, and annually audited by the delegates of accounts and professor, and afterwards reported to convocation,

2. That a professorship of the laws of England be established, with a salary of two hundred pounds per annum; the professor to be elected by convocation, and to be at the time of his election at least a master of arts or bachelor of civil law in the University of Oxford, of ten years standing from his matriculation; and also a barrister at law of four years standing at the bar.

3. That such professor (by himself, or by deputy to be previously approved by convocation) do read one solemn public lecture on the laws of England, and in the English language in every academical term, at certain stated times previous to the commencement of the common law term; or forfeit twenty pounds for every omission to Mr. Viner's general fund; and also (by himself, or by deputy to be approved, if occasional, by the vice-chancellor and proctors; or, if permanent, both the cause and the deputy to be annually approved by convocation,) do yearly read one complete course of lectures on the laws of England, and in the English language, consisting of sixty lectures at the least, to be read during the university term time, with such proper intervals that not more than four lectures may fall within any single week; that the professor do give a month's notice of the time when the course is to begin, and do read, gratis to the scholars of Mr. Viner's foundation; but may demand of other auditors such gratuity as shall be settled from time to time by decree of convocation, and that for every of the said sixty lectures omitted, the professor on complaint made to the vice-chancellor within the year, do forfeit forty shillings to Mr. Viner's general fund, the proof of having performed his duty to lie upon the said professor,

4. That every professor do continue in his office during life, unless in case of such misbehavior as shall amount to bannition by the university statutes, or unless he deserts the profession of the law by betaking himself to another profession; or unless, after one admonition by the vice-chancellor and proctors for notorious neglect, he is guilty of another flagrant omission; in any of which cases he be deprived by the vice-chancellor, with consent of the house of convocation.

5. That such a number of fellowships, with a stipend of fifty pounds per annum, and scholarships with a stipend of thirty pounds, be established, as the convocation shall from time to time ordain, according to the state of Mr. Viner's revenues.

6. That every fellow be elected by convocation, and at the time of election he unmarried, and at least a master of arts or a bachelor of civil law, and a member of some college or hall in the university of Oxford; the scholars of this foundation, or such as have been scholars, (if qualified and approved of by convocation,) to have the preference: that if not a barrister when chosen, he be called to the bar within one year after his election; but do reside in the university two months in every year, or, in case of non-residence, do forfeit the stipend of that year to Mr. Viner's general fund.

7. That every scholar be elected by convocation, and, at the time of election be unmarried, and a member of some college or hall in the university of Oxford who shall have been matriculated twenty-four calendar months at the least; that he do take the degree of bachelor of civil law with all convenient speed (either proceeding in arts or otherwise); and previous to his taking the same, between the second and eighth year from his matriculation, be bound to attend two courses of the professor's lectures, to be certified under the professor's hand; and within one year after taking the same 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 misbehavior, non residence for two years together, marriage, not being called to the bar within the time before limited (being duly admonished so to be by the vice-chancellor and proctors,) or deserting the profession of the law by following any other profession; and that in any of these cases the vice-chancellor, with consent of convocation do declare the place actually void.

9. That in case of any vacancy of the professorship, fellowships or scholarships, the profits of the current year be ratably divided between the predecessor, or his representatives, and the successor; and that a new election be had within one month afterwards, unless by that means the time of election shall fall within any vacation in which case it be deferred to the first week in the next full term. And that before any convocation shall be held for such election, or for any other matter relating to Mr. Viner's benefaction, ten days public notice be given to each college and hall of the convocation, and the cause of convoking it. (1)

(1). It must not be supposed that instruction in the law is entirely wanting in the other great English university. There are two professors of law at Cambridge, one of whom lectures upon Roman law, and its influence upon modern systems, and especially upon international law, and the other upon English law and English constitutional history. Three law degrees are conferred; those of B. L., M. L., and LL. D. For the first and last there are examinations; the second is conferred without examination, three years after the first.

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, (k) for improving its method, retrenching its 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 pomeria of university learning, and adopt a new tribe of citizens within these philosophical walls, we interest a very *numerous and very powerful pro- [*31] fession 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 [*32] 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 dextrous 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 shortsighted judgment, in its 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

(k) See Lord Bacon's proposals and offer of a digest.

(1) Sir 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 restibulum salutassem, reperissemque linguam peregrinam. dialectum barbarum, methodum inconcinnam molem non ingentem solum sed perpetuis humeris sustinendam, excidit mihi (fateor) animus, &c.”

VOL. I-3

17

favour of university learning: (m) 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. (n) will find that 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 (9) 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 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 rhe 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 thorugh 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 authentie 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 [*34] acquisition of these accomplishments, he will afford himself here a year or two's further 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 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 Ĥyde,

(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.(7) (n) See Kennet's Life of Somner, p. 67. (0) Ff. 40. 9. 12.

(7) [The two first were, Lord Northington and Lord Chief Justice Willes; the third, Lord Mansfield; and the fourth, Sir Thomas Sewell, Master of the Rolls.]

« AnteriorContinuar »