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.Footnote 2 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.Footnote 3 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.Footnote 4 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.
THE LIFE AND CAREER OF SAMUEL HALLIFAX
Samuel Hallifax was born in Mansfield, Nottinghamshire, on 8 or 18 January 1733. He was the eldest son of Robert Hallifax, an apothecary, and Hannah, daughter of Samuel Jebb, a maltster.Footnote 5 Educated at Mansfield School, he entered Jesus College, Cambridge, as a sizar (receiving college aid in return for often menial services) in 1749, matriculated in 1750 and proceeded BA in 1754 and MA in 1757.Footnote 6 He was third wrangler in mathematics in the Tripos lists and Senior Chancellor's Medallist in 1754, and Members’ Prizeman in 1756. Hallifax was a fellow of Jesus from 1756 to 1760, holding the offices of praelector, dean, tutor, steward and rental bursar. He was ordained deacon by Matthias Mawson, Bishop of Ely, in 1755, and priest in 1757.Footnote 7
Hallifax resigned his fellowship at Jesus College to migrate to Trinity Hall, where he was admitted as fellow on 3 April 1760, serving as the college tutor, but vacated his fellowship in 1775 and continued at the college as a fellow commoner until 1781. He took the degree of LLD on 22 February 1764.Footnote 8 The following year he was presented to the rectory of Cheddington, Buckinghamshire, which he held till 1777, but continued to reside at Cambridge; in 1767 he applied without success to be chaplain to the Archbishop of Canterbury. While also serving as deputy to William Ridlington, Regius Professor of Civil Law, in 1768 he was appointed as Sir Thomas Adams’ Professor of Arabic and Lord Almoner's Reader of Arabic – the two offices were sinecures. He then resigned both and served from 1770 to 1782 as the Regius Professor of Civil Law. Over that decade, he became, in turns Master of Faculties at Doctors’ Commons (1770); royal chaplain (1774); DD by royal mandate (1775); married, to Catherine Cooke, daughter of the Dean of Ely and Provost of King's College, Cambridge (1775); and rector of Warsop, Nottinghamshire (1778), where he made the parish choir famous. But he failed in his bid for the mastership of St Catharine's College, Cambridge (1779).
His life at Trinity Hall was, in his own words, ‘a very desirable one’, though ‘[I] suffered greatly in my Health & Spirits on account of the variety of business I am burthened with at College’.Footnote 9 In 1771, he wanted to become Archdeacon of Lincoln, because
I wish much to have an honourable dismission from the burden of taking Pupils, and to reside in the University, with full leisure to attend on the duties of my professorship, and to finish the plan of Lectures I have not yet been able to complete.Footnote 10
These lectures, on the civil law, would become his Analysis. That same year, there was a petition that students of the universities not intending to take holy orders need not subscribe to the Thirty-Nine Articles of Religion. The proposal was well supported in Cambridge, but Hallifax was opposed and preached against it before the university.Footnote 11 Within college, in 1772 as tutor he disciplined a Unitarian undergraduate, Samuel Heywood (1753–1828), later a judge in Wales, who refused to attend college chapel.Footnote 12 The college records indicate that he was indeed fully engaged in his duties;Footnote 13 for instance, in 1766 he helped resolve a dispute between the college butler and the cook about providing coals for the kitchen fire: ‘It appears that by the Ancient Table of Fees that the Butler in consideration of his allowance from detriments is to find the coal’ – ten and a half bushels per week – and ‘It is ordered by the Fellows that the Butler shall continue to provide the same in the manner directed by that Table.’Footnote 14
Hallifax was not immune from criticism. Robert Hole describes him as ‘an ambitious man, eager for preferment in university and church, with powerful friends and patrons’; and ‘When in 1764 Ridlington sought the mastership of Trinity Hall and the high steward of the university, the duke of Newcastle, supported another candidate, Dr Wynne, Hallifax wrote a series of sycophantic letters trying to avoid upsetting either.’Footnote 15 In 1768, he alienated his cousin John Jebb, whom he beat to the chair in Arabic (which Hallifax had coveted for some years), and they clashed in 1772 over subscription to the Thirty-Nine Articles (Jebb was for abolition, and there followed angry correspondence in the press) and in 1774 over annual university examinations.Footnote 16 One student who attended his civil law lectures described Hallifax as ‘a mild, courteous little man … not only of no force, but even languid’, but another complained: ‘He reads his lectures from manuscript, but with such rapidity that it is impossible to take down notes.’Footnote 17 In similar vein, while Hallifax adopted a preaching style with the ‘tone and manner of delivery’ of the popular preacher Samuel Ogden (1716–1778), he ‘did not succeed in attracting so numerous a congregation’ as Ogden.Footnote 18
Hallifax was a high churchman who defended Anglican orthodoxy. In one sermon preached in 1769 before the House of Commons, he denounced those seventeenth-century English dissenters who ‘rejected all rites and ceremonies’ and sought ‘the abolition of order and subscription in the church’.Footnote 19 His Lincoln's Inn lectures (1776) argued that ‘the Apostasy of Papal Rome is … foretold in the sacred oracles’, and that ‘the Papal usurpations were carried to their utmost length, and true religion was obscured and well-nigh lost amidst the prevailing interests of vice and superstition’.Footnote 20 Such views were later to attract criticism of Hallifax by a Roman Catholic bishop.Footnote 21
On 27 October 1781, Hallifax was consecrated Bishop of Gloucester. As bishop, he was involved in distributing sums left by George III for the relief of debtors and the poor following a royal visit to Gloucestershire in 1788, and he reported on the process to the king subsequently. On 15 March 1789, George III wrote to Pitt the Younger requesting that Hallifax be informed of his nomination to the see of St Asaph; the nomination was formally made on 20 March, and he was elected on 4 April 1789. It was during his episcopal ministry that he was able to spend some time on theology. Indeed, William Beloe (1756–1817) described him as ‘an admirable scholar’ and ‘a very considerable man, of great abilities and profound learning’.Footnote 22 Hallifax much admired Joseph Butler (1692–1752): in 1786 he reprinted Butler's 1751 charge to the clergy of Durham and in the preface defended ‘the Importance of External Religion’, and he edited Butler's Analogy of Religion (1736), which he published in 1788. His other works include a study of St Paul on justification by faith (1760) and an edition of the sermons of Samuel Ogden (1780).Footnote 23 Many of his letters also survive.Footnote 24
Hallifax died at his home at Dartmouth Street, Westminster, on 4 March 1790. He was survived by his widow, one son and six daughters. There were rumours that he died a Roman Catholic. He was buried alongside a son (who died in 1782 after a scalding accident in a brewery) in the chancel of Warsop church, five miles from Mansfield.Footnote 25 A portrait of him, robed and bewigged (1770–1780), hangs at Trinity Hall.
SAMUEL HALLIFAX AND HIS ANALYSIS OF THE ROMAN CIVIL LAW
The first edition of the Hallifax Analysis appeared in 1774, the second in 1775 and the third in 1779; after his death, there were two further editions: the fourth in 1795 and a ‘new edition’ in 1836. A key difference between the first, second and third editions lies in the sources cited: the first does not list his sources, the second lists some and the third has a much-revised list prefixed to each chapter.Footnote 26 This section focuses on the third edition, the last he produced and the most polished of the three.Footnote 27 The work provides the ‘heads’ for Hallifax's lectures, in the form of succinct, digestible and substantiated propositions of law. Its title, in full, is An Analysis of the Roman Civil Law; in which a comparison is, occasionally, made between the Roman Laws and those of England: being the heads of a Course of Lectures publickly read in the University of Cambridge.Footnote 28 It is dedicated to Augustus Fitzroy, Duke of Grafton, Chancellor of Cambridge University, and it states: ‘my lectures have been honoured by persons of the highest rank and fortunes in the University’, whom he also thanks.Footnote 29
Hallifax opens confidently by stating how the civil law is worthy of study: ‘It is no small recommendation of the Roman Civil Law, as it was reformed in the sixth century after Christ by the Eastern Emperor Justinian, that the general principles of it are delivered systematically.’ While in the Digest, Code and Novels a ‘methodical distribution is not always strictly regarded’, with the Institutes, designed ‘to teach the rudiments of law’, the
elements of Jurisprudence are disposed in a didactic form, its chief and leading objects are explained in a regular series, and the whole arranged in such a way as neither to oppress the student with a multitude and variety of matter, nor yet to leave him destitute of any necessary helps to facilitate his progress in legal knowledge.
The Institutes ‘were divided so as to contain the elements of all legal science’ and so they are ‘the business of [this] Analysis to unfold’, its ‘main design’.Footnote 30
A ‘subsidiary’ aim, ‘perhaps … the most useful [and] interesting’, is ‘the Comparison’ of Roman and English law: ‘Something of this sort was undertaken’ by Dr Cowell, Cambridge Professor of Civil Law, in Institutiones Juris Anglicani (1605), ‘expressly composed and digested after the method’ of the Institutes. In comparing them, Hallifax seeks to do three things: ‘to point out any remarkable agreement or disagreement between the two’; ‘to shew in how many instances the English law is plainly built on and borrowed from the Roman’; and, evaluatively, ‘to teach the younger part of my hearers how much that limited authority, delegated by our laws to the first magistrate of a free people, is to be preferred to the uncontrollable power, usurped and exercised by a lawless despot’ – in order for them to have a ‘just idea’ of the ‘superiority of our constitution to that of Imperial Rome’.Footnote 31 Moreover, as to church law, he writes: ‘In a few cases I have remarked what seemed worthy of notice in the Roman Canon Law: some parts of which are very necessary to be adverted to by an English lawyer’; also:
it may be observed with truth of that whole system [of Roman canon law], that however censurable it may be, when considered as calculated to support an unbounded supremacy in the Pope and Clergy, yet in another view, as a collection of rules and principles respecting the administration of justice, and the rights and properties of individuals, it merits no small share of praise; and … certainly contributed to introduce more just and liberal ideas than had yet obtained of the nature of government, and the peace and order of society.Footnote 32
Hallifax then commends study of the civil law to five constituencies. For the scholar, as ‘a science’, it sets out the ‘principles of justice and equity’, the ‘boundaries of right and wrong’ and ‘the rules by which our own conduct must be regulated’; the civil law ‘is founded on human nature and applies to all the affairs of human life’. For the academic, its study will ‘furnish the minds of youth with universal … notions’ as ‘to Natural and Positive, to Written and Unwritten Law’ and form ‘a bridge between’ classical education at school and ‘the laws of [the] country’.Footnote 33 For divines, its study is valuable because of allusions to it in the New Testament, particularly the Epistles of St Paul, ‘which are full of quotations from the Civil Law’, and it qualifies a divine ‘to understand with accuracy the original records of his faith, to support the dignity of his character as a Spiritual Judge, and to defend and secure the possession of his legal dues’. For statesmen, it is important because international relations and disputes are governed by ‘common standards’, which ‘by the consent of all’ civil law provides, such as in the matter of ‘the rights and privileges of Ambassadors, the interpretation of Leagues and Treaties, [and] the incidents of War and Peace’.Footnote 34
Last come the lawyers: ‘our Lawyers should not scruple to adopt the rules and reasonings of it, not only occasionally in the course of their pleadings, but more deliberately in their gravest and most serious compositions’.Footnote 35 This is so because the civil law, ‘to this day, obtains, under different restrictions, in the Courts of Bishops’ and in the military, Admiralty, and university courts, ‘in all which it has been received either by the consent of Parliament, and so is become a part of the Statute or Written law; or by immemorial usage and custom, and thus constitutes an inferior branch of the Common or Unwritten law’. Indeed:
Every one therefore, who would excel in his profession … as a Civilian or a Common Lawyer, ought to acquaint himself with … these courts; in order to know exactly when they confine themselves within their proper limit; and when in case of encroachment, they are liable to be restrained by Prohibition.Footnote 36
In his systematisation of the Analysis, Hallifax follows the pattern of Roman civil law in terms of his treatment of subject matter, with three books: persons, things and actions. This did not change across the three editions. Book 1, ‘of the rights of persons’, has 10 chapters: the ‘Roman Civil and Canon Laws, and their Authority in England’; law in general and the divisions of civil law and English law; persons in general; citizens and strangers; fathers; marriage; legitimation; adoption; guardianship; and corporations. Book 2, on ‘the rights of things’, has 26 chapters, including: property in general; modes of acquisition; incorporeal things; capacity to acquire property; the modes of succession (for example by testament); trusts; obligations (contracts and their various forms); and obligation ex delicto, arising from offences (such as theft). Book 3, on ‘actions’, has 13 chapters, covering: actions in general; contract actions; persons who may be sued; methods to restrain the temerity of litigants; the office of judge; private judgments in civil suits; English courts in which the civil law may be used; ecclesiastical court processes; and public judgments in criminal cases.Footnote 37
Hallifax uses a range of sources.Footnote 38 As well as his frequent references to the Institutes, Digest, Code and Novels themselves, and other primary sources of Roman law, for the civil law he relies on the work of Johann Gottlieb Heineccius (1681–1741), a German jurist and from 1718 professor of jurisprudence at Halle, and Samuel Joachim Hoppe (a Pole, Hoppius, 1684–1754); he also sometimes cites Grotius. For English authorities on civil law, he turns to De Usu et Autoritate Juris Civilis Romanorum (1653) of Arthur Duck (1580–1648), diocesan chancellor of Bath and Wells;Footnote 39A New Institute of the Imperial or Civil Law (1704) by Thomas Wood (1661–1722); the Elements of the Civil Law (1755) of John Taylor (1704–1766), a cleric who was admitted to Doctors’ Commons in 1742, tutored at St John's College, Cambridge (his alma mater), in the 1750s, and later became diocesan chancellor at Lincoln;Footnote 40 and Institutes of Natural Law (1754–1756) by Thomas Rutherforth (1712–1771), who from 1745 was the Regius Professor of Divinity at Cambridge. For English law in general, Hallifax relies primarily on the Commentaries of William Blackstone, and occasionally on the Lectures on the Laws of England (published posthumously 1772) of the Irish lawyer Francis Stoughton Sullivan (1715–1766), and, for criminal law, on Principles of Penal Law (1771) by William Eden (1744–1814). Alongside his use of English statutes and case law, a use which tells us much about his juridical method, for English church law, as well as Cowell (see above) he makes use of A System of English Ecclesiastical Law (1730) by Richard Grey (1696–1771), the Ordo Judiciorum (1728, reprinted 1738) of Thomas Oughton (b 1660) and, above all and most often, Ecclesiastical Law (1763) by Richard Burn (1709–1785). It is to his treatment of canon law and ecclesiastical law that we now turn.
ECCLESIASTICAL AND CANON LAW
Hallifax's list of the historic sources of ‘Ecclesiastical or Canon Law’ comprises: the Decretum of Gratian, Decretals, and Extravagants of John XXII and later popes – and he has an elaborate footnote on the ‘method of quoting the Roman Canon Law’.Footnote 41 In turn:
The Canon Law of England comprehends, besides the collections of the Roman Pontiffs, Legatine and Provincial Constitutions and, so far as it was received here before the statute of 25 Henry VIII. c. 19 [Submission of the Clergy Act 1533] and is not repugnant to the Common Law, the Statute Law, and the Law concerning the King's Prerogative is acknowledged to be in force by the authority of Parliament.
Also: ‘The Canons made in England in 1603, and never confirmed in Parliament, so far as they are agreeable to the ancient Canon Law, bind the Laity; so far as they contain new regulations, are binding on the Clergy only.’Footnote 42 Thus, ‘The Ecclesiastical Law of England is composed of the Civil, Canon, Common and Statute Law.’Footnote 43 He uses these sources to state succinctly a wide range of areas of ecclesiastical law.Footnote 44
Hallifax's treatment of the ‘Courts Christian, or Ecclesiastical Courts’ is very detailed. These comprise ‘courts of voluntary’ and ‘courts of contentious jurisdiction’. Of the former, ‘the chief is the Faculty Court, belonging to the Archbishop of Canterbury’; its judge is the Master or Commissary of Faculties. Those of contentious jurisdiction are the Court of the Archdeacon, whose judge (if the archdeacon does not sit) is the Official; the Consistory Court of the diocesan bishop, whose judge is the bishop's chancellor or commissary; the Court of Arches, ‘belonging to the Archbishop’ and presided over by the Dean of Arches; the Court of Peculiars, with jurisdiction over all parishes in Canterbury Province subject to the Metropolitan only; the Prerogative Court, to try testamentary causes, where the deceased has left bona notabilia in two different dioceses (under the Judge of the Prerogative); and the Court of Delegates – the sentence of this ‘great Court of Appeal in all Ecclesiastical Causes’ is definitive, but it may be revised, with the leave of the Crown, by a Commission of Review.Footnote 45
Next Hallifax sets out their jurisdiction and causes cognisable in them: (1) ‘beneficial causes’ relating to benefices (patronage, institution, spoliation, dilapidations, non-payment of ecclesiastical dues, and tithes); (2) matrimonial (jactitation of marriage, contract of marriage, and espousals (removed by 26 Geo II), restitution of conjugal rights, and divorces); (3) testamentary (probate of wills, granting of administrations, and subtraction of legacies); and (4) criminal causes,Footnote 46 in which proceedings are pro salute animae et reformatione morum (‘for the salvation of the soul and reformation of morals’). He notes that ‘punishment of crimes of ecclesiastical cognizance belongs, of common right, to the bishops, and their vicars general in spirituals; and, by Concessions or Prescription, to archdeacons … to both whom is committed for this … the power of visitation’, and he sets out ‘ecclesiastical punishments, common to clergy and laity’,Footnote 47 and the arrangements among the courts for appeals.Footnote 48
Hallifax then deals with ‘the course of proceeding in the ecclesiastical courts’ and the ‘causes of office’, which run in the name of the judge, and ‘causes of instance’, which are brought ‘at the solicitation of some party’. He describes each stage in the process, namely citation (summoning the defendant to appear); libel (or charge) in instance causes (and ‘articles’ in office causes); contestation of suit (the general answer of the defendant to the libel); personal answer of the defendant (by way of either denial or extenuation of the charge before the plaintiff makes proof of the libel by witnesses);Footnote 49 assignment of a term probatory (a time appointed by the judge in which the plaintiff must prove so much of the libel as the defendant has not confessed in his personal answers); proofs (from witnesses or instruments);Footnote 50 defensive allegation (what is opposed by the defendant in writing to the charge followed by the personal answer of the plaintiff, a term probatory and publication of witnesses); term to propound all things (the time appointed for both parties to exhibit all the acts and instruments which make for their respective causes); term to conclude (the time at which both parties are understood to renounce all further exhibits and allegations);Footnote 51 informations (arguments of the advocates on both sides after pleadings and proofs are concluded); the sentence (either interlocutory or definitive); execution; and, if appropriate, appeal.Footnote 52
Hallifax uses various juristic techniques in his exposition of church law. Five may be presented here, themselves often the stock in trade of eighteenth-century ecclesiastical lawyers. First, ‘where our own laws are silent, or not sufficiently express, the Courts in England’, in such matters as intestacy, ‘are chiefly guided’ by civil law doctrine.Footnote 53 Second, as well as statutes (see above for examples), he cites judicial precedents. For example, devises of real estate in England must be in writing, signed, and witnessed by three persons; a legacy to any of the witnesses is void but the will itself in other respects is good. However, creditors are credible witnesses, though the real estate be charged with payment of debts; he cites the judgment of the Court of King's Bench in Windham v Chetwynd (1757), ‘delivered by Lord Mansfield, where the regulations of the English and Roman laws concerning testaments in general, and the credibility of witnesses in particular, are explained at large, with an erudition and accuracy, peculiar to that Great Lawyer’.Footnote 54 Third, he uses various juridical formulae. For example, there is the ‘maxim of the common law of England’ that time never runs against the Crown or Church;Footnote 55 and the ‘General Rule’ that ‘All such as are Real Parents and Children to each other, or in the place of Parents and Children, are forbidden to marry together’.Footnote 56 He also invokes moral ideas such as conscience, equity and natural law. For instance, he examines ‘whether, in the case of a will defective in form, the heir at law would be bound in conscience to restore the inheritance to the testamentary heir’; whether ‘Equity and Good Faith were more considered than the bare words’ of a contract; and whether, in ‘infringement of a man's rights, the Law of Nature and of each particular Society entitles the injured man to Redress’ by means of ‘actions, in a Court of Justice’, being ‘the legal demand of a man's right, or the means, which the law puts into the hands of [a man] pursuing and recovering those rights … of which he is unjustly deprived’.Footnote 57
Around the comparative element of his Analysis, Hallifax finds many similarities and differences between Roman and English law. A typical example is his discussion of corporations. In both laws corporations may ‘make laws for their own government … provided they were not contrary to the law of the land’, but in Rome such laws are called ‘Statutes’ and in England ‘By-laws’. In both traditions ‘the act of the major part [of the corporation] was esteemed the act of all’; in Roman law this consists of two-thirds of the whole, but in England, ‘the act of any Majority is esteemed the act of the whole body, notwithstanding the Private Statutes of any Corporation to the contrary’.Footnote 58 And sometimes Hallifax finds that English law ‘partakes of the nature’ of Roman law: either, as with Roman interdicts and English injunctions,Footnote 59 they ‘resemble’ each other;Footnote 60 or they have different names for the same juridical reality.Footnote 61 But sometimes they cannot be reconciled.Footnote 62 He only occasionally uses rules beyond the Roman or English law.Footnote 63 Finally, many of his discussions are historical, in which he explains changes both to Roman and to English ecclesiastical law, such as with regard to testamentary law.Footnote 64
At the close of the preface in all three editions produced in his lifetime, Hallifax offers the reader a most enigmatic perspective on his time working on his Analysis:
I have no intentions, at present, to obtrude myself on the public by any further attempts to illustrate the Civil law: The plan which I had formed on my first entrance on this subject, is at length completed: it now remains, that I return to those more serious and important studies, to which I had originally devoted myself and ministry, and from which (for I know not what should hinder me from confessing it) I should never have diverted, but from profession rather than inclination.Footnote 65
He could not have anticipated this, but others took a rather different view of its worth.
THE USE MADE OF THE HALLIFAX ANALYSIS
While Hallifax's lectures, the Analysis, his own three editions of it and, later, the end of his tenure of the Regius Chair of Civil Law completed his work in academic law, these endeavours did not exhaust his contribution to law at Cambridge. Two further editions of his Analysis appeared. What follows briefly traces their story.
Hallifax was succeeded by Joseph Jowett (1751–1813) as Professor of Civil Law (1782–1813), a cleric and a fellow and tutor at Trinity Hall – where he planted a garden, and in 1783 composed the chimes for the university church of Great St Mary, Cambridge (adapted as the ‘Westminster Chimes’ for Big Ben in 1859); Jowett was also rector of Wethersfield, Essex (1795–1813).Footnote 66 It might be that the Analysis was used by Jowett for his own lectures and/or students. It was certainly during his tenure that, in 1795, a fourth edition was issued. Jowett was not the editor, but he did help: the editor, whose name does not appear in the volume, refers to him at the end of the preface:
The Editor of this fourth Edition acknowledges his obligations to the Professor of Civil Law for some additional references prefixed to several of the Chapters, for some corrections of the text, and for a few notes which are distinguished from the notes of the Author by … the Italic character.Footnote 67
The additions include History of the Legal Polity of the Roman State and of the Rise, Progress and Extent of the Roman Laws (1766) by Thomas Bever (1725–1791), and Francis Hargrave's An Argument in the Case of James Sommersett, a Negro (1772), a landmark decision of Lord Mansfield on the lengthy road to the abolition of slavery.Footnote 68
The copy consulted for this article is at Trinity Hall.Footnote 69 The copy itself was printed with blank pages between each printed leaf, a common practice to enable a reader to write notes on the blanks.Footnote 70 What is remarkable about this copy is that the blanks carry more than 90,000 words of handwritten notes (perhaps preparation for a new edition). The notes seem to be by the same hand, but a specialist study could establish this. Their author and date are not given.Footnote 71 A comparison was therefore made of the handwriting of three possible candidates with that in the notes: Joseph Jowett; John Haggard (1794–1856), fellow at Trinity Hall 1815–1820, advocate, ecclesiastical law reporter and diocesan chancellor of Lincoln from 1836;Footnote 72 and James William Geldart, also a fellow at the Hall, the successor to Jowett as civil law professor and (see below) the 1836 editor of Analysis. While the handwriting samples for comparison are limited, and the notes were not obviously incorporated by Geldart in his own edition, the ‘most likely’ of the three is Haggard.Footnote 73 The notes themselves refer to a statute of 1813 (thereby discounting Jowett) and a passage in ‘aust’, probably John Austin, whose work on positive law is dated 1832.Footnote 74 Intriguingly, the notes also state ‘See note Geld. Anal’, which could refer to the later edition by Geldart, which would date them after 1836.Footnote 75
The handwritten notes are worthy of a study in themselves, especially in the treatment of ecclesiastical law. Short of this, five points may be made. First, there are copious references to statutesFootnote 76 and some to judicial decisions, including the celebrated case of Middleton v Croft (1736) on the binding effect of the Canons Ecclesiastical 1603.Footnote 77 Second, developing the theme that ‘Eccl[esiastical] or Canon Law is almost coeval with Christianity’, there are notes on the history of papal canon law from the apostles through Gratian to the later mediaeval popes.Footnote 78 Third, the notes contain much material on the history of English ecclesiastical law at and beyond the Reformation, including the Reformatio legum ecclesiasticarum, Footnote 79 and a long discussion of the history of the law related to benefit of clergy.Footnote 80 Fourth, as well as some praise for the regulae iuris of the classical canon law,Footnote 81 there are substantial notes on ‘whether the moral law (or the law of conscience) or statute should take precedence’ in relation to inheritance under a defective will; they also address how far ‘a man's manifested intentions are to be viewed as actions’, on which ‘much may be said, but little decided: for so few cases occur, which resemble each other that no rule can be drawn from the precedents which would meet the particular circumstances of all’.Footnote 82 Lastly, there are lengthy notes on such matters as ecclesiastical corporations, the historical separation of spiritual from temporal courts, ecclesiastical jurisdiction, church fees and religious offences.Footnote 83
The fifth edition of the Analysis of 1836 was ‘A New Edition with Alterations and Additions being the Heads of a Course of Lectures publicly read at the University of Cambridge by James William Geldart, LLD. The King's Professor of the Civil Law’.Footnote 84 It was published ‘for the use of candidates in his Civil Law Classes’.Footnote 85 The copy used for this study is that at Trinity Hall, given by Geldart,Footnote 86 who writes:
In publishing a new edition of the Analysis of the Civil Law, I deem it right to declare that I have accustomed myself much to admire the arrangement and execution of Dr Hallifax's work. The reader is therefore requested to observe that the alterations and additions which have now been introduced are chiefly such as circumstances seemed to require. My design has not been so much to enlarge the text as to present it in such a form as would render my Lectures more useful and instructive, rather than more elaborate.Footnote 87
The systematisation remains the same but, unlike the 1795 edition, the new one has numbered footnotes. Geldart added more sources to the lists prefixed to each chapter. They include: History of Roman Law in the Middle Ages (1815–1831) by the German jurist Friedrich Karl von Savigny (1779–1861); A Compendious View of the Civil Law and of the Law of the Admiralty (1797) by the Irish jurist Arthur Browne (d. 1805);Footnote 88The Law of Executors and Administrators (1800) by Sir Samuel Toller (d. 1821), a barrister of Lincoln's Inn; An Essay on the Law of Bailments (1781) by the Anglo-Welsh philologist and judge Sir William Jones (1746–1794); an edition (probably that of 1820) of Henry Ballow's Treatise on Equity (1793) by John Fonblanque (1759–1837), a barrister of Middle Temple and an MP; and Forms of Ecclesiastical Law (1831) by James Thomas Law (1790–1876), the diocesan chancellor of Lichfield and Coventry from 1821.Footnote 89 The number of references to statutes has also increased,Footnote 90 including on ecclesiastical law;Footnote 91 there is a footnote to John Haggard's ecclesiastical reports;Footnote 92 and there are, needless to say, changes by way of revisions, additions and subtractions.Footnote 93
As seen above, Geldart does not seem to have been the author of the notes in the copy of the 1795 edition at Trinity Hall, on the basis of a non-specialist study of the handwriting, perhaps too because of the reference in the notes to ‘Geld. Anal’, and because there is no obvious or extensive incorporation of those notes in his 1836 edition. However, some material in the notes does appear in the 1836 edition. This may not suggest that Geldart used the notes; he might simply have obtained the material elsewhere – or else it could be that the author of the notes used the Geldart 1836 edition without consistent attribution.Footnote 94
Hallifax's Analysis was to play a role in the reform of legal education at Cambridge under Geldart. Born in 1785 at Wetherby, Yorkshire, the son of a cleric, Geldart entered Trinity Hall in 1800 (migrating from Trinity College), took the LLB in 1806 and became a fellow of St Catharine's College. He was ordained priest in 1809, when he returned to the Hall as fellow and tutor, taking the LLD in 1813 and serving as Regius Professor of Civil Law (1814–1847). During his tenure, he sought to reform the degree of LLB at Cambridge, which had become ‘the refuge of the lazy and the dullard’,Footnote 95 until modest reforms in 1768.Footnote 96 Further reform, to introduce written examinations, failed in the university Senate in 1811, but from 1815 Geldart required on his own authority that LLB candidates pass written examinations (which, crucially, were based on his own lectures – themselves based on the Hallifax Analysis, which he was to revise), before performing a statutory viva. His successors continued these written examinations and the results, which were known as the Civil Law Classes, were published annually until replaced in 1858 by the new ‘Law Tripos’ under regulations of the university.Footnote 97
CONCLUSION
Hallifax is unusual in that he was one of only four clerics who were Regius Professors of Civil Law at Cambridge – and the only one who became a bishop. All found a home at the nursery of the civilians, Trinity Hall. His Analysis provides the heads of a course of his own lectures. It is presented in the form of succinct propositions. The work gives a summary of ecclesiastical law, places the study of canon law firmly within the civilian tradition and recognises the value of the inherited papal canon law. It is, however, predominantly descriptive – it offers no critical evaluation of church law. Its comparison of the civil law and the laws of England is not novel, but it is more accessible than that of Cowell in the seventeenth century – and Hallifax makes every effort not to place the civil law in opposition to the common law, seeing them as reconcilable. The three editions which he produced in his lifetime changed little except for the lists of his sources prefixed to each chapter. The fourth edition of 1795 was produced after his death by an anonymous editor and the copy consulted at Trinity Hall has extensive handwritten notes which clearly indicate how the work was valued; further study is needed to explore their authorship and date.
The value of the Analysis continued into the next century and was recognised by Geldart, the last clerical holder of the Regius Professorship of Civil Law at Cambridge. Geldart used it as the basis for his own lectures, which, along with his 1836 edition, were an integral part of the legal reforms he introduced to the Cambridge LLB, leading to the introduction of the Law Tripos, which survives today. However, Hallifax's Analysis was considerably less of a specialist work on church law than that of others of his generation, notably Richard Burn, whom he cites; as such it was neglected by later ecclesiastical lawyers.Footnote 98 Hallifax himself admits that his work on law was not as important as his ordained ministry: he studied law, taught it and wrote about it as a matter of ‘profession’, not ‘inclination’. This dynamic still challenges the Church today in its image of and approach to church law.
