LECTURE II.

The plan of the present undertaking—The particulars in which it differs from that adopted by Mr Blackstone—The different situations of the Universities of Oxford and Dublin—The chief obstructions which occur to the student of the English laws—The methods which may be employed to remove them—The law of things more proper to introduce a system of jurisprudence than the law of persons—The law of things, or of real property in England, has its source in the feudal customs—The necessity of a general acquaintance with the principles of the feudal polity—The method in which it is proposed to treat of it.

Having, in the preceding lecture, shewn the necessity of a proper method being pointed out for the study of the laws of these kingdoms, from the utility, as well as multiplicity of them; and having explained from whence that multiplicity arises, and that it is inseparable from the happy situation we are placed in; and having acknowledged the great advantage the students of Oxford have received from Mr. Blackstone’s lectures, it will doubtless be thought necessary, that something should be said by way of illustration of the plan proposed to be followed here, and in justification of its departure from the excellent one which that gentleman has given us in his analysis. The method of instruction intended to be pursued in this place is not proposed as more perfect, or absolutely better in itself, but as one that appears more adapted to the circumstances of our students; and as it will be allowed, that his course of lectures, in the manner they proceed, hath some great advantages as to the finishing a lawyer, which cannot be attained, and therefore should not be attempted here, it will be particularly the duty of your professor to compensate for those, by guarding against some inconveniencies, which the extensiveness of his plan must of necessity subject young beginners to. I shall, therefore, proceed briefly to compare the situation of the two universities, in hopes, by that consideration, in some measure to vindicate the several particulars wherein I have chosen to vary from his scheme. The attendance on the courts of Westminster-Hall, when once a gentleman hath read and digested enough to listen with understanding to what he there hears, hath, for a succession of ages, been allowed to be, and it must be owned is, the most effectual means of accomplishing a lawyer, and fitting him for practice. In this respect Oxford, in her proximity to Westminster, hath certainly an advantage, as to her law students of above two years standing, who may at that time be supposed capable of improvement by the arguments in the courts of law; as she is thereby rendered capable of conjoining those two excellent methods of instruction. Mr. Blackstone was fully sensible of this happy circumstance, and, accordingly, his scheme is adapted to it. All the lectures there are appointed at times that fall in the law vacations, and the course is general and diffusive, not calculated merely for attendants of the first and second years, but adapted also to those of a more advanced standing, and consequently, in a manner equally copious, or very nearly so, illustrates every one of the several branches of the English law. But this method, however excellent in itself, and most eligible where gentlemen can have an opportunity of attending the professor for several successive years, must, on the other hand, be allowed to labour under some inconveniencies, especially as to those who are yet novices, which, as it should be the particular care of the professor here to obviate, it cannot be improper briefly to point out.

As the lectures of the English professor are all read in the law vacations, and in all of them, except the long one, when few young gentlemen of fortune stay in the universities, the shortness of these vacations necessarily occasions these lectures to follow each other in a very quick succession; and, accordingly, we find that five are delivered in every week. It is impossible, therefore, that the students at first should keep any manner of pace with their professor in their private reading, without which the ablest performances in the way of prelections will be of little utility. Many things in the succeeding ones must be rendered very difficult, if not absolutely unintelligible, for want of a due time for mastering and digesting those that preceded; and another unhappy consequence of this quick succession is, that the most useful and effectual method of instruction to beginners, at their entrance upon any science, namely, a continued examination of the progress they have made, is hereby entirely precluded, and rendered impracticable. The great advantage of that method need not be enlarged upon in this place, as every gentleman who hears me must be already fully satisfied of it from his own experience.

But this university is circumstanced in a very different manner. The necessity our students are under of repairing to Westminster, to finish their studies, before they are called to the bar, and their incapacity to reap any benefit from the courts of law while they reside here, render it impossible, as well as unnecessary, to conjoin those two methods of instruction before-mentioned, as is done at Oxford; and, by confining the professor to pupils of two years standing or little more, make it highly improper for him to enter minutely into those parts of the law his audience have not yet had time to apply to. His great object, therefore, should be so to frame his lectures, as to be most useful to youth at the beginning, to be particular and copious in the elementary parts, in order to lay a sure foundation, and to smooth and make plain the difficulties which at first will every where occur. And as, for these reasons, a general and equally diffusive course is a method improper for him to pursue, it should be his especial care to avoid, or remedy the inconveniencies with which such an one is necessarily attended.

It is a well known truth, that the entrance on any study, however easy and agreeable such study might be after some progress made in it, is at the beginning very irksome, and attended with many perplexities; principally arising from the use of new terms, whose significations are yet unknown. But the laws of all nations, and those of England above all others, abound in such novel words, and old ones used in an uncommon sense, more than any other science, and therefore must be attended with difficulties in proportion. And although many of its terms occur frequently in common conversation, and may, consequently, be supposed already understood, this is rather a disadvantage than otherwise; for in common discourse they are used in so vague and undetermined a meaning, and so far from strict precision and propriety, that it is no wonder so many persons exclaim at the absurdity of its maxims; which, though frequently in their mouths, they do not really understand. Young gentlemen, then, have not only many new words to acquire the signification of, but they must likewise unlearn the import of many others they are already acquainted with, and affix to those familiar terms new and precise ideas, a task, as Mr. Locke observes, of no small difficulty, and that requires not only the strictest attention, but constant care and frequent repetition. Another great difficulty the study of the law of England labours under, peculiar to itself, is that want of method, so obvious to be observed, and so often complained of in its writers of authority, insomuch, that almost all of them, and lord Coke particularly, are too apt to puzzle and bewilder young beginners; whereas other laws, the civil, the canon, the feudal, have books of approved authority, (and none other but such should be put into the students hands,) calculated purposely for the instruction of novices; wherein the general outlines of the whole law are laid down, the several parts of it properly distributed, its terms explained, and the most common of its rules and maxims, with the reasons of them, delivered and inculcated. It is not to be admired then that Sir Henry Spelman so pathetically describes his distress at his first entrance upon this study. Emisit me mater Londinum, juris nostri capessendi gratia, cujus cum vestibulum salutassem, reperissemque linguam peregrinam, dialectum barbaram, methodum inconcinnam, molem non ingentem solum, sed perpetuis humeris sustinendam, excidit mihi fateor animus [41].

These then are the obstructions to be removed, and the difficulties to be obviated, by a professor who considers it his business to lead by the hand young gentlemen, yet strangers to the study; and for this purpose he should exert his utmost care and attention, not to overburthen the memories, or to distract the attention of his audience with too great variety at first, but to feed them with knowledge as he finds them capable, and to give them time, by reading and meditation, to become masters of what they have already acquired, and by frequent examinations to satisfy himself they thoroughly comprehend and retain the substance of his past lectures. The utility of this last method, by which the students will be laid under a necessity of reading in private, as to them, will be readily allowed; but taken in another view will be of no less assistance to the professor himself, in framing the prelections he is to read. He will not only be encouraged to proceed with more alacrity, when he daily observes the success of his endeavours, but also, by the trial, be convinced of any defects or errors in his plan that before escaped his observation, and will be warned thereby to amend them; and he will by this means be particularly and perpetually cautioned against the great and too common mistake of tutors, namely, their imagining that such explications as are easy and familiar to them, will be equally obvious to unexperienced youth. But an examination will demonstrably shew him where his illustrations have been defective or obscure, and will oblige him to accommodate his lectures to the capacity and progress of his hearers. The next variation in the present plan from that of Mr Blackstone, to be taken notice of, is the proposal of beginning with the law of things, not with the law of persons, as he hath done. It must be allowed impossible thoroughly to understand the law of things, without some previous knowledge of that of persons; but it is equally impossible to be master of the law of persons, without an acquaintance with that of things. Since, therefore, we must begin with one of them, perhaps it will be sufficient to observe, that such knowledge of the names and relations of persons, as is generally acquired by observation, before a person arrives at an age fit for engaging in this study, will enable him tolerably to understand the law of things; and that whatever more is necessary, and hath not been attained by this means, may be easily supplied as the student goes on. And, that I may not be thought to lean too much on my own opinion in this particular, I shall quote the famous Sir Matthew Hale to the same purpose; who, in his Analysis, introduces the law of things in the following manner: “Having done with the rights of persons, I now come to the rights of things; and, though, according to the usual method of civilians, and of our ancient common law tractates, this comes in the second place, and after the jura personarum, and therefore I have herein pursued the same course; yet that must not be the method of a young student of the common law, but he must begin his study here, at the jura rerum; for the former part contains matter proper for the study of one that is well acquainted with those jura rerum [42].” And, agreeably hereto, the wisdom of ages hath declared Littleton’s Tenures, which contains the common law of England, as far as it concerns real property, that is, lands or interests derived out of and flowing from them, to be the book most proper for students to begin with, in their study of the law of these nations.

Taking it then for granted at present, that the law of real property is the fittest introduction, it will be necessary, as it is confessed to be the most important, the most extensive, and, in consequence, the most difficult part, to lay the foundation deep and sure, and to derive its rules from what is now universally allowed to be its source, the feudal customs. This, indeed, hath been denied by Lord Coke, and others of his age; who thought it would depreciate the excellence of the laws of their country, to admit they were derived from any other nation. But if those gentlemen had read over but once the two books of the feudal law with tolerable attention, they must have received conviction, that one of the laws was certainly derived from the other; and which of them was so would easily appear, by comparing the law of England after the conquest, with that which prevailed in the Saxon times, and was not strictly feudal, exclusive of the testimony of the old historians.

But, perhaps, for this purpose, it may be thought sufficient to explain and deduce these rules from the feudal ones, as they occur occasionally in the books of the common law; which is the method, that, in conformity to the rest of his plan, the Oxford professor has adopted, and that the reading through a course of that law, even the shortest, will be attended with an unprofitable delay, and detain the students too long from their principal object. The answer to this objection is short, and, if well founded, perfectly satisfactory. It is, that the real reason of proposing a system of the feudal law to be gone through, was to save time. The method is so much better, and clearer, and, by necessary consequence, so much easier to be comprehended, and retained, that the delay will be abundantly compensated, and one third at least of Littleton will be understood, and known by the students, before they open his book. For the maxims of the common law, as they lie dispersed in our books, often without reasons, and often with false or frivolous ones, appear disjointed and unconnected, and as so many separate and independent axioms; and in this light very many of them must appear unaccountable, at least, if not absurd; whereas, in truth, they are almost every one of them deducible, by a train of necessary consequences, from a few plain and simple rules, that were absolutely necessary to the being and preservation of such kind of constitutions as the feudal kingdoms were. The knowledge of which few, timely obtained, will obviate the necessity of frequent and laboured illustrations, as often as these maxims occur in our law, will reconcile many seeming contradictions, and will shew that many distinctions, which at first view appear to be without a difference, are founded in just and evident reason: to say nothing of the improvement the mind will attain by exercise, in following such a train of deductions, and the great help to the memory, by acquiring a perfect knowledge of the true grounds of those various rules, and of their mutual connection with and dependence on each other. Ignoratis causis rerum, ut res ipsas ignoretis, necesse est, is a maxim frequently in our lawyers mouths; and Littleton and Coke continually exhort the student to explore the grounds and reasons of the law, as the only safe foundations to build on, and deny that any man, without being perfectly acquainted with them, can merit the honourable appellation of a lawyer.

But there is another, and, for gentlemen of rank and fortune particularly, a more important consideration, that renders a general acquaintance with the principles of the feudal law very proper at all times, but at present eminently so; namely, the necessity of knowing these, for the understanding the nature of those Gothic forms of government, which, until these last three hundred years, prevailed universally through Europe, and whence the present constitution, with several corrections and improvements indeed, in which these islands are now so happy, is undoubtedly derived. From hence only shall we be able to determine whether the monarchy of England, as is pretended, was originally and rightfully an absolute royalty, controuled and checked by the virtue of the prince alone, and whether the privileges of the subjects, which we are so proud of, were usurpations on the royal authority, the fruits of prosperous rebellion, or at best the concessions of gracious princes to a dutiful people, and revocable by them or their successors, whenever, in their opinion, their vassals should become undeserving; principles that were industriously, and, to the misfortune of a deluded royal family, too successfully propagated during the last century, and that, of late, have been revived and defended, with no less zeal, than seeming plausibility. Every man, indeed, of candour and humanity, will look with tenderness on the errors of princes, unhappily educated in mistaken notions, and make due allowances for the weight which arguments urged with great apparent force of reason, concurring with the lust of power, so natural to the human breast, will certainly have on such minds; but, surely, this indulgence may be carried too far, and will be allowed so to be, if, for their justification, it shall appear, upon examination, that the history of past ages has been partially delivered down, and perverted; and that to the vain and unprofitable grandeur of the prince, the happiness of millions, and their posterity, hath been attempted to be offered up in sacrifice. The question is of a matter of fact; for on the decision of the fact, how the constitution of England antiently stood, the question of the right solely depends. And surely it is the duty of every gentleman to inform himself, on the best grounds, whether those great men, who, for a succession of ages, exposed their lives in the field, or exerted their eloquence and wisdom in the senate, for the purpose of preserving, and perpetuating these privileges, deserved the honourable name of patriots, or the detestable appellation of rebels; whether the grievances our glorious deliverer came to redress were real or imaginary; or, if real, were such as our fathers were in conscience bound to submit to; and whether we can with justice give to the family that now fills our throne with such lustre and dignity, that title which they have always esteemed as their highest honour, of being the lords of freemen, and the assertors of the liberties of mankind.

As the book[43] which it is intended the young gentlemen shall read for the purpose of acquiring a general idea of the feudal law, is composed in a systematical method, it is proposed that these lectures shall proceed in an historical one, in order to shew the original reasons of those customs, and to point out from what small beginnings, and by what particular steps and gradations the mighty fabrick rose. By this means the additions to, and the alterations of the law will be seen in a clearer light, when we are acquainted with the nature of the regulations already in being; and by knowing the circumstances of the times, can at once perceive the wisdom and necessity of such additions and alterations. And it is hard to imagine a study more improving, more agreeable, or better adapted to a liberal mind, than to learn how, from a mere military system, formed and created by the necessities of a barbarous people, for the preservation of their conquests, a more extensive and generous model of government, better adapted to the natural liberties of mankind, took place; how, by degrees, as the danger from the vanquished subsided, the feudal policy opened her arms, and gradually received the most eminent of the conquered nation to make one people with their conquerors; how arts and commerce, at first contemptible to a fierce and savage people, in time gained credit to their professors, and an admittance for them into the privileges of the society; and how, at length, with respect to the lowest class of people, which still continued in servitude, its rigour insensibly abated; until, in the end, the chains of vassalage fell off of themselves, and left the meanest individual, in point of security, on an equal footing with the greatest.

Thus much has been thought necessary to observe, in order to shew the reasons of proposing a course of the feudal laws, as an introduction to the English; to which may be added, that this method hath received the approbation of many good judges, and hath, in experience, been found not only useful for the end proposed, as it is the constant practice in Scotland, whose laws, except in the manner of administering justice, differ little from ours, and hath been also used in England with good success; but, at the same time entertaining, and improving in other respects.

As we are to begin, therefore, with this law, the observations on the remaining parts of the plan may be, for the present, deferred; I shall, in my next lecture, begin to deduce the origin of this law, and of its rules, from the customs of the German nations, before they invaded the Roman empire.