Chapter 2- Law
§8. Inns of Court
“If thou rulest well, thou must rule for God, and to do that, thou must be ruled by him. Those who will not be governed by God will be ruled by tyrants.” 159
The Inns of Court in London were, in those pre-Revolutionary War days, the seat of English legal education for the colonies.160
Inns of Court- The name given to the colleges of the English professors and students of the common law. (2) The four principal Inns of Court are the Inner Temple and Middle Temple, (formerly belonging to the Knight’s Templars) Lincoln’s In, and Gray’s Inn, (anciently belonging to the earls of Lincoln and Gray.) The other inns are the two Sergeants’ Inns. The Inns of Chancery were probably so called because they were once inhabited by such clerks, as chiefly studied the forming of writs, which regularly belonged to the curators, who are officers of chancery. These are Thavie’s Inn, Clifford’s Inn, Staple’s Inn, Lion’s Inn, Furnival’s Inn and Barnard’s Inn. Before being called to the bar, it is necessary to be admitted to one of the Inns of Court.161
Inns of Court - These are certain private unincorporated associations, in the nature of collegiate houses, located in London, and invested with the exclusive privilege of calling men to the bar; that is, conferring the rank or degree of a barrister. They were founded probably about the beginning of the fourteenth century. The principal
inns of court are the Inner Temple, Middle Temple, Lincoln's Inn, and Gray's Inn. (The two former originally belonged to the Knights Templar; the two latter to the earls of Lincoln and Gray respectively.) These bodies now have a "common council of legal education," for giving lectures and holding examinations. The inns of chancery, distinguishable from the foregoing, but generally classed with them under the general name, are the buildings known as "Clifford's Inn," "Clement's Inn," "New Inn," "Staples' Inn," and "Barnard's Inn." They were formerly a sort of collegiate houses in which law students learned the elements of law before being admitted into the inns of court, but they have long ceased to occupy that position. The Inns of Court (governed by officers called "Benches") hold the exclusive privilege of conferring the degree of barrister-at- law which is required to practice as an advocate or counsel in the superior courts.162
A legal education at the Inns did not necessarily make a man a Tory; quite the contrary, the constitutionalism of Sir Edward Coke was enshrined there, and of him Thomas Jefferson once wrote, “In the selection of our Law Professor, we must be rigorously attentive to his political principles. You will recollect that before the Revolution, Coke Littleton was the universal elementary book of law students, and a sounder Whig never wrote, nor of profounder learning in the orthodox doctrines of the British constitution, or in what were called British liberties”.163
With the constitutionalism in which the Whigs echoed from Coke’s teachings from nearly a century before the American Revolution, also came the pride of the codified “toryism” of Sir William Blackstone and the mix of constitutional liberties and rigorous governmental regulations. The decay of Sir Edward Coke’s constitutional principles in the American legal discipline through Sir William Blackstone and other forms of cultural fashion in the decades following the Revolution was also well noted by Thomas Jefferson.
“You remember also that our lawyers were then all Whigs. But when his [Sir Edward Coke’s] black-letter text, and uncouth, but cunning learning got out of fashion, and the honeyed Mansfieldism of Blackstone became the students' hornbook, from that moment, that profession (the nursery of our Congress) began to slide into toryism, and nearly all the young brood of lawyers now are of that hue. They suppose themselves, indeed, to be Whigs, because they no longer know what Whigism or republicanism means. It is in our seminary that that vestal flame is to be kept alive; it is thence to spread anew over our own and the sister States.” 164
The lawyers trained in the Inns of Court gained fame within the halls of the Continental Congress as well. John Dickinson was one of the early intellectual leaders of resistance to British oppression. Dubbed the “Penman of the Revolution,” he had a profound impact on the colonists when he authored the Declaration of Rights and Grievances (1765) of the “Stamp Act” for the Continental Congress, as well as the Letters from a Farmer in Pennsylvania (1767-1768), which condemned British oppression in the years leading up to the American Revolution. Peyton Randolph of Virginia was President of the First Continental Congress. John Blair of Virginia was afterward an Associate Justice of the United States Supreme Court. John Rutledge of South Carolina was Chief Justice of the United States in 1795. Judge William Henry Drayton of South Carolina was an Inns man who was fired from his royal judgeship for writing a constitutional defense of the American position, restored to the bench when the royal government collapsed and a new state constitution was written in March, 1776.165
Edward Coke, who lived from 1552 until 1634, was a “fundamental common law” advocate. He argued that the common law and the constitution measured the king’s prerogative, and as Chief Justice he had looked King James I in the eye and told him so.166
“A consequence of this prerogative is the legal ubiquity of the king. His majesty in the eye of the law is always present in all his courts, though he cannot personally distribute justice.”167
“His judges are the mirror by which the king’s image is reflected.”168
“If then it be true that the sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State, it may be useful to compare these sovereignties with those in Europe, that we may thence be enabled to judge whether all the prerogatives which are allowed to the latter are so essential to the former. There is reason to suspect that some of the difficulties which embarrass the present question arise from inattention to differences which subsist between them.
It will be sufficient to observe briefly that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the Prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing with a subject, either in a court of justice or elsewhere. That system contemplates him as being the fountain of honor and authority, and from his grace and grant derives all franchises, immunities and privileges; it is easy to perceive that such a sovereign could not be amenable to a court of justice, or subjected to judicial controul and actual constraint.”
“It was of necessity, therefore, that suability became incompatible with such sovereignty. Besides, the Prince having all the Executive powers, the judgment of the courts would, in fact, be only monitory, not mandatory to him, and a capacity to be advised is a distinct thing from a capacity to be sued. The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the Prince and the subject. No such ideas obtain here; at the Revolution, the sovereignty devolved on the people, and they are truly the sovereigns of the country, but they are sovereigns without subjects ... and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.”
“From the differences existing between feudal sovereignties and governments founded on compacts, it necessarily follows that their respective prerogatives must differ. Sovereignty is the right to govern; a nation or State sovereign is the person or persons in whom that resides. In Europe, the sovereignty is generally ascribed to the Prince; here, it rests with the people; there, the sovereign actually administers the government; here, never in a single instance; our Governors are the agents of the people, and, at most, stand in the same relation to their sovereign in which regents in Europe stand to their sovereigns. Their Princes have personal powers, dignities, and preeminences; our rulers have none but official; nor do they partake in the sovereignty otherwise, or in any other capacity, than as private citizens.”169
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159 William Penn, From a letter to Peter the Great, Tsar of Russia (circa 1698); as quoted in Can These Bones Live (2008), by David P., Pett, p. 117
160 Marquette Law Review – The Colonial Bar and the American Revolution by Robert F. Boden (1976) Vol. 60, No.1, pg. 3
161 A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; With References to the Civil and Other systems of Foreign Law, to which is added Kelhams Dictionary of the Norman and Old French Language by John Bouvier (1856); pg. 639
162 Blacks’ Law Dictionary, 5th Edition, pg. 709 (1979)
163 Letter to James Madison from Thomas Jefferson, Monticello (February 17, 1826)
164 Letter to James Madison from Thomas Jefferson, Monticello (February 17, 1826)
165 5 AMERICAN ARCHIVE: A Documentary History of the English Colonies in North America 1026 (P. Force ed., ser. 4, 1844)
166 The incident occurred on November 13, 1608, and is discussed at length in C. D. Bowen, THE LION AND THE THRONE 291 et seq. (1957). The controversy was a complex one, involving ultimately the question of whether the king was above or under the law. James became enraged to hear that he was under the law and called it treason to hold that doctrine. To this the Lord Chief Justice replied, “that Bracton [the great 13th century judge and ‘father of the common law’] saith, Quod Rex non debet esse sub homine, sed sub Deo et Lege – that the King should not be under man, but under God and the Laws.” He was nearly commited to the Tower for this restatement of orthodox British constitutional law dating to the time of Magna Carta. Id., at 305. Two years later, in the Case of Proclamations, 12 Coke 74, 77 Eng. Rep. 1352 (1610), he had a chance to rule that the king had no power to make laws except with the concurrence of Parliament. James swallowed the bitter pill.
167 Fortescue c. 8, 2Inst.186
168 1 Blackstone’s Commentaries, 270, Chapter 7, section 379
169 Chisholm v. Georgia (US) 2 Dall 419, 454, 1 L Ed 440, 455 @SLL (1793), p. 2 U.S. 471 - 472