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 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 [22] the method of studying them will soon revert to its 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 " contra judicem justum & sapientem; "secundo, quod contra adversarium "astutum & sagacem; tertio, quod in "causa desperata: sed beatissima virgo, "contra judicem sapientissimum, Domi"num; contra adversarium callidissi nardinus de Busti, (Mariale, part 4. serm. 9.) very gravely subjoins this note: "Nec videtur incongruum mulieres ha"bere peritiam juris. Legitur enim de 66 uxore Joannis Andreae glossatoris,quod tantam peritiam in utroque jure habuit, mum, diabolum ; in causa nostra "ut publice in scholis legere ausa sit." "desperata; sententiam optatam obtin Fortesc. de laud. LL. c. 23. "nuit." To which an eminent fran- • This remarkably appeared in the ciscan, two centuries afterwards, Ber- case of the abbot of Torum, M. 22. [23] 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 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 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 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 styled 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 its protection this infant seminary of common law; and the more effec r 9 Glossar. 334. Fortesc. c. 48. 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, 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. Albans, which he wrote in 1255, 39 Hen. IIL, 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 C sus. anthor's history of England, A.D. [24] [ 25 ] or tually to foster and cherish it, king Henry the third, in the 66 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 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' 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 [26] 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 : |