high office of chancellor; an office then of little juridical power; and afterward, as its business increased by degrees, they modeled the process of the court at their own discretion. law despis But wherever they retired, and wherever their authority ex- The common tended, they carried with them the same zeal to introduce the ed by the rules of the civil, in exclusion of the municipal law. This ap- clergy, pears 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 forbidden1 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 receive their present form of scholastic discipline; that they were then, and continued to be till the time of the [ 21 ] 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 bigotrym pursued with such alacrity in these seats of learning, and why the common law was entirely despised, and esteemed little better than heretical. couraged in And, since the Reformation, many causes have conspired to and not enprevent its becoming a part of academical education. As, the universifirst, long usage and established custom; which, as in every ties. 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 1 M. Paris, A.D. 1254. There can not 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 leges, et decreta scivit in summo, probatur hoc modo; sapientia advocati manifestatur in tribus; unum, quod obtineat omnia contra judicem jus- 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 [221 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 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. The Court of Pleas fixed 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 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 be[23] fore 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 n Fortesc. de Laud. LL., c. 23. • 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 ancient ones was prohibited. But Skipwith, the king's sergeant, and afterward 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 leur ley, par que a ceo n'avomus regard," &c. 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 Spelmana 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. tion of the In consequence of this lucky assemblage, they naturally fell The instite into a kind of collegiate order; and, being excluded from Ox- Inns of ford and Cambridge, found it necessary to establish a new uni- Court. versity 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 [ 24 ] sergeant,t servientis ad legem, did to that of doctor." • 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 I have met with in our law books of sergeants 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. Alban's, which he wrote in 1255, 39 Hen. III., speaks of advocates (7) In Dug., 340, Lord Mansfield dale's Origines Juridiciales, and Hersaid, "The original institution of the bert's Antiquities of the Inns of Court Inns of Court no where precisely ap- and Chancery, contain all the antiquapears; but it is certain that they are rian and historical information respectnot corporations, and have no charter ing their original foundation, governfrom the crown. They are voluntary ment, ceremonies, and customs. ocieties, which ages have submitted goeren, nalogous to that of here of learning." Dug (8) In Mr. Sergeant Manning's erudite treatise on the degree of sergeant. 1 [ 25 ] 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 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 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 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 y and Sir Edward Coke2) 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 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. at-law (Serviens ad Legem) is collected Ne aliquis scholas regens de legibus in eadem civitate de cætero ibidem leges doceat. w In Flet., 8, 2. 2 3 Rep., pref. a c. 49. B. & C., 855, the same court also refused a mandamus, and the judges also refused to interfere, as visitors, to compel the admission of a student; but with respect to the call to the bar, Mr. Justice Littledale said, "A member who has been suffered to incur expense with a view to his being called to the bar, thereby acquires an inchoate right to be called, and if the benchers refuse to call him, they ought to assign a reason for so doing; and if there be no reason, or an insufficient one, then the member, who has acquired such an inchoate right, is entitled to have that right perfected." In 5 A. & E., 17, a mandamus to the principal and ancients of Barnard's Inn, to admit an attorney into that society, was refused, it not appearing that the Court of Queen's Bench had the requisite authority over that inn. 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 the several inns, all of whom, he informs us, were filii nobilium, or gentlemen born. 9 and gentry Inns Court. Hence it is evident that (though under the influence of the The nobility monks our universities neglected this study, yet) in the time of formerly Henry the Sixth it was thought highly necessary, and it was studied at the universal practice, for the young nobility and gentry to be tens of 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 Cokeb 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 public life, without any instruction in the laws of the land, and, indeed, with hardly any opportunity of gaining b 3 Rep., pref. (9) Gray's Inn, Lincoln's Inn, the ed to the Middle Temple, have long Inner Temple, and Middle Temple are ceased to exist as law societies. Adthe only societies the members whereof mission to the Inns of Chancery has are called to the bar. The Inns of long been immaterial as regards a call Chancery are Barnard's Inn, Staple's to the bar. Sergeants' Inn is, and oth Inn, Thavies's Inn, Clement's Inn, Clif- er places were, appropriated to serford's Inn, Lyon's Inn, and New Inn. geants-at-law. The first two belong to Gray's Inn, the next to Lincoln's Inn, the next three to the Inner Temple, and the last to the Middle Temple. Furnival's Inn, which formerly belonged to Lincoln's Inn, and the Strand Inn, which formerly belong (10) Nevertheless, the benchers claim, and have occasionally exercised, the pow er to disbar members after they are called to the degree of barrister-at-law. |