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Published online by Cambridge University Press: 31 December 2019
Trinity Hall, Cambridge was founded in 1350 by William Bateman, Bishop of Norwich, for the study of canon law and civil law, as provided in its statutes. It later developed a direct connection with Doctors’ Commons in London, the College of Advocates practising in the church and admiralty courts. In the period 1512–1856, of the 462 admitted as advocates, 85 were from the Hall, including 15 masters and 45 fellows. From 1558 to 1857, the Hall had 9 out of about 25 Deans of Arches: two under Elizabeth, three at the end of the seventeenth century, three in the eighteenth century and one in the nineteenth. It has also provided more than 24 diocesan chancellors. As a result, within Cambridge University, Trinity Hall became the ‘nursery for civilians’, and the usual home for the Regius Professor of Civil Law. Among the first 12 of these (1540–1666), the Hall had 5. From 1666 to 1873, all of the next 12 holders were Trinity Hall by origin or adoption. Uniquely, all four of those holding this chair from 1757 to 1847 were clergy. These included Samuel Hallifax, Regius Professor of Civil Law 1770–1782. What follows deals with the life and career of Hallifax; his legal treatise An Analysis of the Roman Civil Law Compared with the Laws of England (with particular reference to its treatment of ecclesiastical law), its use and later editions; and the part played by it in a development which saw Trinity Hall become the centre for the new Civil Law classes (1816–1857), the forerunner of the modern Cambridge Law Tripos.
I thank the Master and Fellows of Trinity Hall, Cambridge, for visiting scholar rights for the Easter term 2019 to research for this study, and for invaluable assistance from Jenni Lecky-Thompson, Librarian, Sophie Pittock, Deputy Librarian, and Alexandra Browne, College Archivist and Records Manager.
2 Henry Harvey, Master of Trinity Hall (1557–1585) nurtured the link; it would include aid for building to accommodate the Court of Arches, Archbishop's Prerogative Court and London Consistory Court.
3 Crawley, C, Trinity Hall: the history of a Cambridge College, second edition enlarged by Storey, G (Cambridge, 1992), pp 70–89Google Scholar. The chair was founded in 1540.
4 The clerics were: William Ridlngton (1757–1770), Samuel Hallifax (1770–1782), Joseph Jowett (1782–1813) and James W Geldart (1814–1847). They were followed by Henry Maine (1847–1854), Master 1877.
5 Samuel's younger brother was Robert, physician to George, Prince of Wales, later George IV.
6 R Hole, ‘Hallifax, Samuel’, Oxford Dictionary of National Biography, 23 September 2004, <https://doi.org/10.1093/ref:odnb/12016>, accessed 10 October 2019.
7 Gray, A and Brittain, F, A History of Jesus College Cambridge (revised edition, Cambridge, 1979), p 114Google Scholar; see also pp 119–137 for the Unitarians at Jesus and controversies associated with them.
8 Trinity Hall, Archives, Admissions Register, THAC/1/2/1: it seems that he vacated his fellowship on 14 October 1775 and was a Fellow Commoner from 28 October 1775 until 14 September 1781.
9 S Hallifax, letter to C Yorke, 1767, British Library (BL), Add MS 35638, fol 131v.
10 S Hallifax, letter to 2nd Earl of Hardwicke, 1771, BL, Add MS 35610, fol 12v.
11 S Hallifax, Three Sermons Preached before the University on the Attempt to Abolish Subscription to the Thirty-nine Articles of Religion (1772, two editions).
12 Malden, H, Trinity Hall (London, 1902), pp 199, 205, 206Google Scholar.
13 Trinity Hall, Archives, Administrative Records, Letters of Scrutinies, THAR/1/2/2: eg pp 54–58.
14 Trinity Hall, Archives, Governing Body Records, Book of Orders, THGB/1/5/1: p 89, 22 December 1766. See also p 88, 3 January 1766: he is party to an order that no member may use the college linen in his chamber; p 92, 2 January 1770: an order concerning the college seal. To confirm that he resigned his fellowship in 1775, see p 94, 6 January 1776: fellows’ residence – Hallifax is not listed here or thereafter.
15 Hole, ‘Hallifax, Samuel’.
16 Newspaper letters on the matter of subscription, signed ‘Erasmus’, were thought to be by Hallifax; Ann Jebb attacked him with letters in the London Chronicle (1772–1774), signed ‘Priscilla’, with such wit and sarcasm that he is said to have called on Wilkie, the publisher, not to print her again.
17 The first student was Egerton Brydges (who later became an MP): see Brydges, E, The Autobiography, 2 vols (London, 1834), vol I, p 59Google Scholar; the other was Philip Yorke: see BL, Add MS 35377, fol 131r.
18 Gunning, Henry, Reminiscences, 2 vols (London, 1854), vol I, p 240Google Scholar. Hallifax published the sermons of Ogden.
19 Hallifax, S, Sermon Preached before the Hon. House of Commons (Cambridge, 1769), pp 11–12Google Scholar.
20 Twelve Sermons on the Prophecies Concerning the Christian Church, Warburtonian Lectures delivered at Lincoln's Inn, 1776, pp 334, 363–364.
21 Milner, John, Bishop of Castabala, in The End of Religious Controversy (fifth edition, London, 1824), p 77Google Scholar. In turn, Parr, Samuel, , inA Letter to Dr Milner (London, 1825)Google Scholar, defended Hallifax's protestant credentials.
22 Beloe, W, The Sexagenarian, 2 vols (London, 1817), vol I, p 60Google Scholar.
23 Hallifax, S, Saint Paul's Doctrine of Justification by Faith Explained in Three Discourses before the University of Cambridge (Cambridge, 1760; second edition 1762)Google Scholar; Hallifax, S, Sermons in Two Volumes by Samuel Ogden. To Which is Prefixed an Account of the Author's Life (London, 1780; reissued 1786, 1788 and 1805)Google Scholar. Hallifax followed Ogden at the Round Church, Cambridge, and contributed to the university collections of poems printed in 1760 and 1763.
24 For his correspondence with the Duke of Newcastle, with Charles Yorke, and with the 2nd Earl of Hardwicke (held at the British Library), see Hole, ‘Hallifax, Samuel’.
25 Hole, ‘Hallifax, Samuel’. Milner (see n. 21): he ‘probably’ died a Catholic; cf. British Critic, April 1825, 365.
26 I used the first edition at Queens’ College, Cambridge, Old Library, classmark P.283. Analysis (1779), Preface, p xxiii: ‘In the second Edition … I prefixed to each Chapter a list of the Books, by consulting which the several propositions may be explained. In this third Edition many corrections with some additions are interspersed [to] contribute to the greater perfection of the whole’ (19 January 1779).
27 The copy consulted is at Trinity Hall Library, classmark D*IV.42, a gift that Charles Avery Moore made to the library in February 1840. Of two other works bound in the volume, one is Schomberg, A, An Historical and Chronological View of Roman Law, with Notes and Illustrations (Oxford, 1785)Google Scholar.
28 There follows: ‘The Third Edition, Cambridge, Printed by J. Archdeacon Printer to the University; and sold by T. & J. Merrill, in Cambridge; B. White, T. Cadell, and J. Wilkie, in London’, 1779. The 1774 edition used ‘compared’ rather than ‘a comparison … occasionally, made’ with English law.
29 He offers the duke's ‘candid but judging eye these proofs of my diligence … in the discharge of an office, which I am proud to owe to Your Grace's goodness’ (1 November 1774; and Analysis, Preface, p xxiii).
30 Analysis (1779), Preface, pp i–ii; the Institutes are ‘confirmed by the authority of an Imperial Sanction’, but Blackstone's Commentaries, ‘excellent though they are, are still but the work of a private man, and without the stamp of public authority’. This preface (i–xxiii) largely mirrors that in the first edition.
31 Ibid, pp iv–vi. Hallifax acknowledges Blackstone for the comparison and ‘some help’ from Notes of ‘Dr. [George] Harris’ (1722–1796) in his edition and English translation of the Institutes (1756).
32 Analysis (1779), Preface, p vii, citing ‘History of Charles VI. by Dr. Robertson, Vol I, sect. I, art. vi’.
33 ‘It was probably for such reasons as these, that the Civil Law was made one of the three professions we are supposed to follow, in both our English Universities.’
34 Analysis (1779), Preface, pp viii–xxi.
35 Ibid, p xviii. Hallifax cites Richard Hurd (1720–1808, Bishop of Worcester from 1781), On the Constitution of the English Government (c 1759): in it ‘the fate and fortunes of the Civil Law in England are delineated at large, with the usual elegance of this most learned Author’ (p xix). For their use of Roman law, he also cites Glanvil, Bracton, Fleta, Britton and Wood (for the last of whom, see below).
36 Analysis (1779), Preface, pp xx–xxi.
37 Ibid, pp 1–3. The same contents are found in the first and second editions. There is also an appendix, with extracts from the statutes of the University of Cambridge, and an index.
38 See above (n 26) for how these developed across the three editions.
39 See Helmholz, R, The Profession of the Ecclesiastical Lawyers: an historical introduction (Cambridge, 2019)CrossRefGoogle Scholar, ‘Arthur Duck’, pp 145–150.
40 Elements of the Civil Law (1755) was reprinted in 1756, 1769 and 1772 and reached a fourth edition in 1828. The abridged version, Summary of the Roman Law, was published in 1773.
41 Analysis (1779), pp 2–3: ‘The Decree has three parts; namely (1) Distinctions. (2) Causes. (3) a Treatise concerning consecration’. The Decretals are ‘Gregory's Decretals in Five Books. (2) the sixth Decretal. (3) the Clementine Constitutions. The Extravagants … were added as Novel Constitutions to the rest.’
42 Ibid, pp 3–4.
43 Ibid, p 5: ‘The Laws of England’ consist of ‘The Written or Statute Law’ and ‘The Unwritten or Common Law’; and ‘Equity is the correction of the Written Law, when, on account of its generality, it is too rigid or defective’. See also p 4: ‘Justice is a disposition of mind to render to everyone his Right’; ‘Law is a rule of action, prescribed by authority’; and ‘All law is Natural or Instituted’.
44 Eg marriage: see ibid, pp 12–13: ‘Rules’ on consanguinity are in ‘Civil and Canon and English Law’; and impediments to marriage are under English law ‘canonical and civil’: the former make ‘a Marriage voidable, by Sentence of Separation … the latter make a marriage ab initio void’.
45 Ibid, pp 115–118 (III.X): these ‘Courts of Ecclesiastical Jurisdiction are, none of them, courts of record’. Moreover, ‘The separation of the ecclesiastical from the temporal courts was nowhere known, till after the Emperors became Christian; nor in England, till after the Norman Conquest’ (p 116).
46 He lists, among others, heresy (subject to ‘Ecclesiastical Correction only’), adultery and incest (ibid, pp 130–134).
47 Namely monition, penance and excommunication (greater and less). Those for clergy are sequestration of the profits of a church, suspension, deprivation and degradation (ibid, p 119): University Courts may ‘inflict Ecclesiastical Censures, or such as are appointed by the Statutes, for Offences … merely Temporal’.
48 Ibid, p 118: ‘Appeals in causes ecclesiastical, which formerly, from the reign of Stephen to that of Henry VIII, lay to the Pope or See of Rome, are now (by 24 and 25 Hen. VIII) directed to be in this form, and not otherwise: From the Archdeacon or his Official, to the Bishop or Diocesan: from the Bishop, his Chancellor or Commissary, to the Archbishop of the Province: from the Court of Arches, Court of Peculiars, and the Prerogative Court, to the King in Chancery, or the Court of Delegates.’
49 Formerly, the judge could compel parties to answer on oath ex officio to any matter objected against them. As this was abolished by 13 Car II c 12, no-one is now obliged to purge himself or herself on oath of any crime.
50 Witnesses are examined in private to the libel of the plaintiff and to interrogatories proposed by the defendant. Unwilling witnesses may be brought in by a citation – a ‘compulsory’ – but those who live at a distance may be examined where they live by a commission. Instruments can be public or private.
51 The term to propound all things and the term to conclude are peculiar to plenary causes; in summary causes, instead of them the term required is called the ‘term to hear sentence of the first assignation’.
52 Analysis (1779), pp 121ff (III.XI and XII). Sometimes a cause is removed from an inferior to a superior court and proceedings in the lower court are suspended till ‘the reasons of such removal are heard’. There are various forms of removal: by provocation, post litis ingressum, recusation or appeal.
53 Ibid, Preface, pp xx–xxi: that is, ‘the doctrine of one of Justinian's Novels’.
54 Ibid, p 32; Burrow's Reports, vol I, p 414.
55 Analysis (1779), p 30: ‘Nullum Tempus occurrit Regi vel Ecclesiae; and the Statute of Limitations (21 James I and 9 George III) by which that Maxim has been abolished, in the case of the Crown, explained’.
56 Ibid, p 12.
57 Ibid, pp 17 (conscience), 61 (equity) and 85 (natural law, for which see also pp 4–5).
58 Ibid, p 19–20.
59 Ibid, p 101.
60 Ibid, p 42: ‘No such action as the Querela subsists in England; what most resembled it, was the writ called breve de rationabili parte bonum, which the wife or children of a … testator had against executors’, to recover goods; ‘But the custom of reserving a reasonable part for widows and children, though still in force in the city of London, has, in other places, been abolished by Act of Parliament’.
61 Ibid, p 32: ‘A testament, in the Roman law, is the legal declaration of a man's intentions, which he wills to be performed upon the event of his death, with the direct appointment of an heir. In England, the disposal of real property by a last will is called a devise; and the word testament, strictly speaking, is limited to the disposal of chattels or personal property, with the appointment of an executor.’
62 Ibid, p 14: ‘Bastards, by the laws of England, are such children, as are born out of lawful wedlock: Nor will the Subsequent Marriage of the parents Legitimate such Children, as it would by the Civil and Canon Laws.’
63 Ibid, p 15: ‘In Germany there is a sort of adoption, called Unio seu Parificatio prolium; by which children by former marriages of Husband and Wife are made equal to one another [as] to Succession.’
64 Ibid, p 33:‘The power of devising lands subsisted in England before the Conquest, and till about the reign of Henry II when it, generally, ceased, in consequence of the feudal tenures: the doctrine of uses revived this power; and the Statute of Uses (27 Henry VIII) again, accidentally, checked it: this occasioned the Statute of Wills (32 & 34 Hen. VIII) which expressly conferred the right of devising, but with some restrictions with regard to lands held by knight's service; the alterations of tenures in the reign of Charles II abolished these restrictions; and the power of devising was then made to extend to the whole of a man's landed property … By the common law of England, a man could only bequeath one third of his personal estate by testament; the other two thirds being reserved for his wife and children; whose shares were called their reasonable part; but by modern statutes, a man may now bequeath the whole of his chattels, as freely as he can devise the whole of his landed property.’
65 Ibid, Preface, p xxiii, emphasis in original.
66 Malden, Trinity Hall, pp 60, 207, 228. When Jowett planted the garden outside the south-east corner of front court, the following lines circulated college: ‘Little Dr. Jowett a little garden made … If you would know the little mind of Jowett, This little garden doth a little show it’. Jowett had the shrubs removed and the corner gravelled, stimulating this verse: ‘But when this little garden had made a little talk, Little Dr. Jowett made a little gravel walk’ (p 210). A garden still exists there.
67 Analysis (1795), p xxiv; ‘AN’ appears at the end of the preface in all four editions. Jowett is again expressly named at p xxviii of the preface to the 1836 edition.
68 Ibid, pp 1 and 7. See Helmholz, Profession of the Ecclesiastical Lawyers, p 181, ‘Thomas Bever’.
69 Trinity Hall Library, classmark P.*4.44. The title page styles Hallifax as ‘Late Lord Bishop of St. Asaph and Formerly the King's Professor of Civil Law’.
70 See Berger, S, The Dictionary of the Book: a glossary for book collectors, booksellers, librarians and others (London, 2016), p 30Google Scholar, ‘Blank(s)’.
71 The handwritten names ‘Harris’, ‘Prendergast’, ‘J.P. Whalley 1831’ and ‘Reginald Brown 1867’ appear inside the cover. Work is needed to identify these and on whether they are possible candidates.
72 Crawley, Trinity Hall, p 82; and Baker, J, Monuments of Endlesse Labours: English canonists and their work, 1300–1900 (London, 1998)Google Scholar, p 123 n 18 and p 127.
73 Alexandra Browne, College Archivist at Trinity Hall, and I concentrated on the capitals ‘J’, ‘H’, ‘G’ and ‘W’ in the 1795 edition notes and the signatures of Jowett, Haggard and Geldart in the college's Book of Orders. In an email of 4 July 2019, she states: ‘I think it's too hard to make a firm guess based on how little sample writing we have … If you had to guess … I'd say Haggard is the most likely of the three.’
74 Notes on Analysis (1795), III.X–XI, refer to 53 Geo 3 c 127 (1813); notes on I.II read: ‘Laws properly so called, then are commands. Laws which are not commands, are improperly so called the first by: 1. the divine laws i.e. those set by God … 2. by positive laws which form the true matter of jurisprudence (aust. vii)’, taken from Austin, John, Province of Jurisprudence Determined (London, 1832), p viiGoogle Scholar.
75 Notes on Analysis (1795), III.X.12.
76 These include: 4 Hen VII c 13; 3 & 4 Ed 6 c 11; 1 & 2 Phil & Mary c 8; 18 Eliz c 7; 4 Geo I c 11 and c 23; 53 Geo 3 c 127.
77 Note on Analysis (1795), I.I.5: the Canons Ecclesiastical 1603 bind the laity, as ‘Decided by Lord Hardwick in the case of Middleton & Croft – but not “proprio vigore” because not confirmed by parliament: but merely as declaratory or explanatory of the old law’; note on II.VI.32: Hide v Hide (Hyde v Hyde) and Sharpe v Sharpe (marriage); note on II.VI.71: Christopher v Christopher (revoking wills) – no citations are given.
78 Notes on Analysis (1795), I.I.1.
79 Notes on Analysis (1795), I.I.4: ‘the whole of the canon law’ (papal and native) was to be revised.
80 Notes on Analysis (1795), III.XIII.34.
81 Notes on Analysis (1795), I.II.13: ‘Responsa … amount to what we call Precedents. To them we owe probably the splendid title “regulis iuris”’.
82 Notes on Analysis (1795), II.VI. 17.
83 Notes on Analysis (1795), I.X (corporations) and III.X–XI (separation of courts, church courts, fees, offences).
84 Cambridge: Printed at the Pitt Press, by John Smith, Printer to the University, for Thomas Stevenson, Cambridge and John William Parker, London, 1836.
85 Crawley, Trinity Hall, pp 85–86.
86 Trinity Hall, classmark P*IV.44; inside the cover we read: ‘the Hall Library from the Editor’.
87 Analysis (1836), ‘Advertisement to the Present Edition … J.W.G. 17 May 1836’: ‘adding … various authors for … reference, I have made a selection of those only which are required to put the student in full possession of the subjects of the Lectures. Many others I might have added, but I am unwilling to discourage the student by an array of books which he may not have time and opportunity to peruse. It has ever been my object to support the honour and dignity of my Faculty, and in promoting the study of the Civil Law, I trust that I am contributing to the interest and reputation of the University.’
88 See Helmholz, Profession of the Ecclesiastical Lawyers, p 194, ‘Arthur Browne’.
89 Analysis (1836), I.I (Savigny); III.X (Browne); II.VI (Toller); II.XIV (Jones and Fonblanque); III.XI (Law, a translation of Oughton et al).
90 Eg ibid, II.XXIII.7: 7 and 8 Geo IV c 27 and c 29 (robbery); III.II.13: 5 and 6 Will IV c 59 (damage); III.XII.25: 30 Geo III c 48; and 54 Geo III c 146 (treason); III.XII: 2 and 3 Will IV cc 75, 81 and 123; 9 Geo IV c 31 (homicide, forgery, etc); III.IX.51: ‘Writs of attaint are abolished by 6 George IV. c. 50’; III.XII.15: 56 Geo III c 138 (pillory and perjury).
91 Eg ibid, I.VI: 5 and 6 Will IV c 54 (marriage); II.IX: 3 and 4 Will IV c 106 (inheritance); II.X.22: 24 Hen VIII c 12, 25 Hen VIII c 19, and 2 and 3 Will IV c 92 (appeals).
92 Ibid, III.X.17: note to ‘3 Haggard's Eccl. Rep. p. 161’ (on causes before the church courts).
93 Compare eg Analysis (1795), III.XI.5: ‘Every citation is returnable at a certain place and day. Such return may be made 1. personally, by oath of the party, who has executed the same. 2 by certificate’ with the 1836 edition: ‘Every citation or decree is returnable at a certain place and day. Such return is made, by certificate of the apparitor or other party serving the citation, verified by his affidavit. A decree is a citation, but more formal in its character. A decree with intimation instructs the party cited with the course to be adopted in default of appearance’; and II.X.22: the 1795 order of appeals reference to the Court of Delegates is replaced in the 1836 edition with the King in Council.
94 See eg Analysis, II.VI.77: the 1795 copy notes on succession refer to customs ‘of the Province of York’ as does the 1836 edition; III.VI.6: the 1795 copy notes on devising copyhold cite 55 Geo III c 192, while the 1836 edition states that the ‘disposition of copyhold estates is regulated by 55 Geo. III. c. 192’.
95 Crawley, Trinity Hall, pp 70–89.
96 Malden, Trinity Hall, ch 12, ‘The last days of the old Civil Law Faculty’, pp 228ff: in 1768, two years before Hallifax assumed the civil law chair, the Senate decided that no-one was to be admitted LLB without a certificate of attendance at the professor's lectures in three terms. There was a five-guinea fee for the first course, which lasted a year. Subsequent attendance was free and optional. The professor published the results after nine terms and successful candidates could call themselves SCL or students of civil law; bishops accepted this as an equivalent to a degree before ordination. After five years, an SCL who resided was made an ‘LLB of the College’ but those who proceeded to LLB had to complete an Act (like an old disputation), at which their thesis was examined.
97 N Jones, ‘Geldart, James William’, Oxford Dictionary of National Biography, 23 September 2004, <https://doi.org/10.1093/ref:odnb/10506>, accessed 11 October 2019. Geldart married Mary Rachel Desborough 1836 and was buried in Kirk Deighton churchyard on 19 February 1876.
98 For example, Hallifax was not cited in the ‘List of authorities’ in Phillimore, R, Ecclesiastical Law (second edition, London, 1895), vol I, pp xxiii–xxivGoogle Scholar.