Page images

thus educated to the bar, in subservience to attorneys 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° 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. [33] Nor is this all; for (as few persons of birth, or for

tune, or even of 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 gentieman 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 (5).

n See Kennet's Lite of Somner, p. 67.

o Ft. 40. 9. 12.

(5) The learning, which of late years has distinguished the bar, leaves little reason to apprehend that such will speedily be the de. graded state of the laws of England. Our author's labours and exam. ple have contributed in no inconsiderable degree to rescue the profession from the reproaches of Lord Boling broke, 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' 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 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

formularum, auceps syllabarum. But there have been lawyers that were orators, philosophers, historians : 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 excercise of this profession, by climbing up to the vantage ground, so my Lord Bacon calls it, of science, instead of groveling 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 happens, 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 effects, good and bad, that they produced.” (Stud. of Hist. p. 353, quarto edition.) VOL. I.


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 easiiy 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. [34] And if, at the conclusion, or during the acquisition of

these accomplishments, he will afford himself here a year or two's farther leisure, to lay the foundation of his future labours in a solid scientifical method without thirst. ing too early to attend that practice which it is impossible he shouid 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 individualsp,) 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 the same [35] that I have already submitted to the publico. To fill up and finish that outline with propriety and correctness, and to render the 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 means 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 were the elements of the law.” For if, as Justinian" has observed, the tender understanding of the student be loaded at the first with a multitude and variety of inatter, 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

p See Lowth's Oratio Crewiana, p. 365. tradantur: alioqui, si statim ab initio rudem

q The analysis of the laws of England, first adhuc et insirmum animum studiosi multitu. published A. D. 1756, and exhibiting the order dine ac varietate rerum oneravimus, duorum and principal divisions of the ensuing Com- alterum, aut desertorem studiorum efficieinus, mentaries; which were originally submitted aut cum magno labore, saepe etiam cum diffito the university in a private course of lec dentia (quae plerumque juvenes avertit) srius tures, A. D. 1753.

ad id perducemus, ad quod, leviore via ductus, r Inripientibus nobis exponere jura populi sine magno labore, et sine ulla diffidentia Romanı, ita videntur tradi posse commodis- maturius perduci potuisset. Inst. I. 1. 2.. sime, si prima levi ac simplici via singula

the days of Papinian, or imported by Vacarius and [36] his followers; but above all, to that inexhaustible

reservoir of legal antiquities and learning, the feodal law, or, as Spelmans 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 writert has observed upon a similar occasion, the learner “ will be con“ siderably disappointed, if he looks for entertainment with“out 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 subtle distinctions incident to landed pro» Of Parliaments, 57.

t Du. Taylor's pref. to Elem. of civil law

« PreviousContinue »