with Notes of Reference (1803)St. George Tucker On The Study of The Law*
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* Read in Oxford, at the opening of the Vinerian lectures: 25 Oct. 1758.
1. De Legg. 2. 23.
2. Montesq. Esp. L. l. 11. C. 5.
3. Facultas ejus, quod cuique facere libet, nisi quid vi, aut jure, prohibetur. Inst. 1. 3. 1.
4. Education, §. 187.
5. De Legg. 3.18. Est senatori necessarium nosse rempublicam; idque late patet: - genus hoc omne scientiae, diligentiae, memoriae est; sine quo paratus esse senator nullo pacto potest.
6. 2 Rep. pref.
7. Ff 1.2.2.§. 43. Turpe esse patricio, et nobili, et causus oranti, jus in quo versaretur ignorare.
8. Brut. 41.
9. Dedicatio corporis juris civilis. Edit. 1663.
10. Hale Hist. C. L. c. 2. Selden in Fletam. 5 Rep. Caudrey's case. 2Inst. 599.
11. Tit. VII. Sect. a. §. 2.
12. Doctor legum mox a doctoratu dabit operam legibus Angliae, ut non sit imperitus earum legum quas habet sua patria, et differentias exteri patriique juris noscat. Stat. Eliz. R C. 14. Cowel. Institut. in proemio.
13. c. 47.
14. c. 48.
15. in Fletam. 7.7.
16. Caesar de bello Gal 6.12.
17. de gest. reg. l. 4.
18. Dugdale Orig. jurid. c. 8.
19. Les juges sont sages personnes et autentiques - sicome les archevesques, evesques, les chanoines des eglises cathedraulx, et les autres personnes qui ont dignitez in saincte eglise; les abbez, les prieurs conventaulx, et les gouverneurs des eglises, &c. Grand Coustumier, ch. 9.
20. circ. A D. 1130.
21. LL. Wisigoth. 2. 1, 9.
22. Capitular. Hlubov. Pli. 4. 102.
23. Selden in Fletam. 5.5,
24. Domat's treatise of law, c. 13.§. 9. Epistol. Innocent. IV. in M. Paris ed. A. D. 1254.
25. A. D. 1138.
26. Gervas. Dorobern. Act. Pontif Gartuar. cd. 1665.
27. Reg. Bacon citat. per Selden in Fletam. 76. in Fortesc. c. 33. & 8 Rep. Pref.
28. Joan. Sarisburiens. Polycrat. 8. 22.
29. Idem, ibid. 5.16 Polydor, Virgil. Hist. l. 9.
30. Stat. Merton. 20 Hen. III. e. 9. Et omnes comites et barones una voce responderunt, quod nolunt leges Angliae mutare, quae hucusque usitatae sunt et approbatae.
31. 11 Ric. 11.
32. Selden. Jan. Anglor. l. 2. §. 4.3. in Fortese. c. 33.
33. Spelman. Council. A. D. 1217. Wilkins, vol. 1. p. 574. 599
34. Selden in Fletam. 9. 3.
35. M. Paris ad A. D. 1254.
36. There cannot be a stranger 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 Magnsus, the renowned dominican doctor of the thirteenth century, thus proves in his Summa de laudibus Christiferae Virginis (divinum magis quam humanum opus) . "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 justum et sapientem; secundo, quod contra adversarium astutum et sagacem; tertio, quod in causa desperata : sed beatissima virgo, contra judicem sapientissimum, Dominum; contra adversarium callidissimum, diabolum; 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."
37. Fortesc. de laud. LL. C. 25.
38. This remarkably appeared in the case of the abbot of Torun. M. 22. Edw. 111.24. who had caused a certain prior to be summoned to answer at Avignon for erecting an oratory contra inhibitiomem novi operis; by which words Mr. Selden, (in Flet. 8. 5.) very justly understands to be meant the title de novi operis numtiatione 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 afterwards 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 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."
39. p c. 11.
40. Glossar. 334.
41. Fortesc. c. 48.
42. 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. Glos. 37. Dugdale, Orig. jurid. 55.)
43. The first mention which I have met with in our lawbooks of sergeants or countors, is in the statute of Westm. 1.3 Edw. I. c. 29. and in Horn's Mirror, e l. § .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. 111. 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 ease 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 eum arripiens, non per coifae ligamina sed per guttur eum apprehendens, 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.
44. Ne aliquis scholas regens de legibus in eadem civitate de caetero ibidem leges doceat.
45. in Flet. 8. 2.
46. 2 Inst. proem.
47. c. 49.
48. 3 Rep. pref.
49. 3 Rep pref .
50. Ibid.
51. 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."
52. 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 manage in the university.
53. Teleia malista azeih, oti thV teleiaV areihV czhsiV esi. Ethic ad. Nichmach. l.5. c. 3.
54. See the preface to the eighteenth volume of his abridgment.
55. Mr. Viner is enrolled among the public benefactor of the university by decree of convocation.
56. 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 Magdalane, Dr. Halley 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 1756. The professor was elected on the 20th of 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 abridgment, will probably be sufficient hereafter to found another fellowship and scholarship, or three more scholarships as shall be thought most expedient.
57. The statutes are in substance as follows:
- 1. 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 m the English language, consisting of sixty lectures at the least; to be read during the university term time, with such proper internals 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 auditor's such gratuity as shall be settled from time to rime 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 be unmarried, and at least a master of arts or 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 found 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 hound 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 often 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.
59. 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 vestibulum salutassem, reperissemque linguam peregrinam, dialectum barbaram, methodum inconcinnam, molem non ingentem solemn sed perpetuis humeris sustinendam, excidit mihi (fateor) animus, &c."
60. 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.
61. See Kennet's Life of Somner, p 67.
62. Ff. 40. 9. 12.
63. See Lowth's Oratio Crewiana, p. 365.
64. The analysis of the laws of England, first published, A. D. 1759, and exhibiting the order and principal division of the ensuing COMMENTARIES; which were originally submitted to the university in a private course of lectures, A, D. 1753.
65. Incipientibus nobis exponere jura populi Romani, ita videntur tradi posse commodissime, si primo levi ac simplici via singula tradantur; alioqui, si statim ab initio rudem adhuc et infirmum animum studiosi multitudine 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. l. 1. 2.
66. Of parliaments. 57.
67. Dr. TayIors pref. to Elem. of civil law.
68. De laud. Leg. C. 8,