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which the welfare and subsistence of whole families may depend! where the chance of his judging right or wrong, is barely equal; and where, if he chances to judge wrong, he does an injury of the most alarming nature, an injury without possibility of redress!

Yet, vast as this trust is, it can no where be so properly reposed, as in the noble hands where our excellent constitution has placed it: and therefore placed it, because, from the independence of their fortune and the dignity of their station, they are presumed to employ that leisure which is the consequence of both, in attaining a more extensive knowledge of the laws than persons of inferior rank and because the founders of our polity relied upon that delicacy of sentiment, so peculiar to noble birth; which, as on one hand it will prevent either interest or affection from interfering in questions of right; so on the other it will bind a peer in honour, an obligation which the law esteems equal to another's oath, to be master of those points upon which it is his birthright to decide.3

:

The Roman pandects will furnish us with a piece of history not inapplicable to our present purpose. Servius Sulpicius, a gentleman of the patrician order, and a celebrated orator, had occasion to take the opinion of Quintus Mutius Scævola, the then oracle of the Roman law; but, for want of some knowledge in that science, could not so much as understand even the technical terms, which his friend was obliged to make use of. Upon which, Mutius Scævola could not forbear to upbraid him with this memorable reproof, (g) "that it was a shame for a patrician, a nobleman, and an "orator of causes, to be ignorant of that law in which he was so peculiar"ly concerned." This reproach made so deep an impression on Sulpicius, that he immediately applied himself to the study of the law; wherein he arrived to that proficiency, that he left behind him about an hun- [ 13 ] dred and fourscore volumes of his own compiling upon the subject; and became, in the opinion of Cicero, (h) a much more complete lawyer than even Mutius Scævola himself.

I would not be thought to recommend to our English nobility and gentry to become as great lawyers as Sulpicius; though he, together with this character, sustained likewise that of an excellent orator, a firm patriot, and a wise indefatigable senator: but the inference which arises from the story is this, that ignorance of the laws of the land hath ever been esteemed dishonourable in those who are entrusted by their country to maintain, to administer, and to amend them.

But surely there is but little occasion to enforce this argument any farther to persons of rank and distinction, if we of this place may be allowed to form a general judgment from those who are under our inspection: happy that while we lay down the rule, we can also produce the example. You

EFA. 1.2.2. § 43. Turpe esse patricio, et nobili, et causas oranti, jus in quo versaretur ignorari.

Brut.

(3) As a peer of parliament, when that body is sitting judicially, a nobleman's pledge of honour is considered equal to another's oath. The ordinary courts of common law know no distinction of this kind; there, wherever an ordinary subject must swear to speak the truth, a peer must equally be sworn. In courts of equity, peers, peeresses, and lords of parliament, answer on their honour only; though persons of inferior degree are required, in like case, to answer on oath, 1 Jacob and Walker's Reports, 524. And the first step to obtain an answer from a peer, &c. is, after the bill is filed, to petition the lord chancellor for his letter missive, which requests the defendant to appear and answer; which if he disregards, he may then be served with a subpoena, in the same manner as any other person. Newland, Cha. prac. 9. Mitford's Pleading, 30. 1 Harrison, Cha. prac. 201. Chitty.

will therefore permit your professor to indulge both a public and private satisfaction, by bearing this open testimony; that, in the infancy of these studies among us, they were favoured with the most diligent attendance, and pursued with the most unwearied application, by those of the noblest birth and most ample patrimony: some of whom are still the ornaments of this seat of learning; and others at a greater distance continue doing honour to its institutions, by comparing our polity and laws with those of other kingdoms abroad, or exerting their senatorial abilities in the councils of the nation at home.

Nor will some degree of legal knowledge be found in the least superfluous to persons of inferior rank; especially those of the learned professions. The clergy in particular, besides the common obligations they are

under in proportion to their rank and fortune, have also abundant [14] reason, considered merely as clergymen, to be acquainted with ma

ny branches of the law, which are almost peculiar and appropriated to themselves alone. Such are the laws relating to advowsons, institutions, and inductions; to simony, and simoniacal contracts; to uniformity, residence, and pluralities; to tithes and other ecclesiastical dues ; to marriages (more especially of late), and to a variety of other subjects, which are consigned to the care of their order by the provisions of particular statutes. To understand these aright, to discern what is warranted or enjoined, and what is forbidden by law, demands a sort of legal apprehension; which is no otherwise to be acquired, than by use, and a familiar acquaintance with legal writers.

For the gentlemen of the faculty of physic, I must frankly own that I see no special reason, why they in particular should apply themselves to the study of the law; unless in common with other gentlemen, and to complete the character of general and extensive knowledge; a character which their profession, beyond others, has remarkably deserved. They will give me leave, however, to suggest, and that not ludicrously, that it might frequently be of use to families, upon sudden emergencies, if the physician were acquainted with the doctrine of last wills and testaments, at least so far as relates to the formal part of their execution.

But those gentlemen who intend to profess the civil and ecclesiastical laws, in the spiritual and maritime courts of this kingdom, are of all men (next to common lawyers) the most indispensably obliged to apply themselves seriously to the study of our municipal laws. For the civil and canon laws, considered with respect to any intrinsic obligation, have no force or authority in this kingdom; they are no more binding in England than our laws are binding at Rome. But as far as these foreign laws, on account of some peculiar propriety, have in some particular cases, and in some particular courts, been introduced and allowed by our laws, so far

they oblige, and no farther; their authority being wholly founded [15] upon that permission and adoption. In which we are not singular

in our notions; for, even in Holland, where the imperial law is much cultivated, and its decisions pretty generally followed, we are informed by Van Leeuwen, (i) that " it receives its force from custom, and the "consent of the people, either tacitly or expressly given for otherwise," he adds, "we should no more be bound by this law, than by that of the "Almains, the Franks, the Saxons, the Goths, the Vandals, and other of "the ancient nations." Wherefore, in all points in which the different

i Dedicatio corporis juris civilis. Edit. 1663.

systems depart from each other, the law of the land takes place of the law of Rome, whether ancient or modern, imperial or pontifical. And, in those of our English courts, wherein a reception has been allowed to the civil and canon laws, if either they exceed the bounds of that reception, by extending themselves to other matters than are permitted to them; or if such courts proceed according to the decisions of those laws, in cases wherein it is controlled by the law of the land, the common law in either instance, both may, and frequently does, prohibit and annul their proceedings (k) and it will not be a sufficient excuse for them to tell the king's courts at Westminster, that their practice is warranted by the laws of Justinian or Gregory, or is conformable to the decrees of the Rota, of imperial chamber. For which reason it becomes highly necessary for every civilian and canonist, that would act with safety as a judge, or with prudence and reputation as an advocate, to know in what cases and how far the English laws have given sanction to the Roman; in what points the latter are rejected; and where they are both so intermixed and blended together as to form certain supplemental parts of the common law of England, distinguished by the titles of the king's maritime, the king's military, and the king's ecclesiastical law. The propriety of which inquiry the university of Oxford has for more than a century so thoroughly seen, that in her statutes (1) she appoints, that one of the three questions to be annually discussed at the act, by the jurist-inceptors, shall relate to the common law; subjoining this reason, "quia juris civilis studiosos decet "haud imperitos esse juris municipalis, et differentias exteri patrii- [16] "que juris notas habere." And the statutes (m) of the university of Cambridge speak expressly to the same effect.

From the general use and necessity of some acquaintance with the common law, the inference was extremely easy with regard to the propriety of the present institution, in a place to which gentlemen of all ranks and degrees resort, as the fountain of all useful knowledge. But how it has come to pass that a design of this sort has never before taken place in the university, and the reason why the study of our laws has, in general, fallen into disuse, I shall previously proceed to inquire.

Sir John Fortescue, in his panegyric on the laws of England (which was written in the reign of Henry the Sixth), puts a very (n) obvious question in the mouth of the young prince, whom he is exhorting to apply himself to that branch of learning; "why the laws of England, being so "good, so fruitful, and so commodious, are not taught in the universities, "as the civil and canon laws are ?" In answer to which he gives (0) what seems, with due deference be it spoken, a very jejune and unsatisfactory reason; being, in short, that "as the proceedings at common law "were in his time carried on in three different tongues, the English, the "Latin, and the French, that science must be necessarily taught in those "three several languages; but that in the universities, all sciences were "taught in the Latin tongue only ;" and therefore he concludes, "that they "could not be conveniently taught or studied in our universities." But without attempting to examine seriously the validity of this reason (the very shadow of which, by the wisdom of our late constitutions, is entirely taken

k Hale Hist. C. L. c. 2. m Doctor legum mox a doctoratu dabit operam legibus Anglia. ut non sit imperitus earum legum quas ha bet sua patria, et differentias exteri patriique juris noscat. Stat. Eliz. R. c. 14. Cowel. Institut. proëmio.

Selden in Fletam. 5 Rep. Caudroy's case. 2 Inst. 599.
I Tit. VII. Sect. 2. § 2.

n c. 47.

O c. 48.

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away), we perhaps may find out a better, or at least a more plausible account, why the study of the municipal laws has been banished from these seats of science, than what the learned chancellor thought it prudent to give to his royal pupil.

That ancient collection of unwritten maxims and customs, which is called the common law, however compounded or from whatever [17] fountains derived, had subsisted immemorially in this kingdom;

and, though somewhat altered and impaired by the violence of the times, had in a great measure weathered the rude shock of the Norman conquest. This had endeared it to the people in general, as well because its decisions were unviversally known, as because it was found to be excellently adapted to the genius of the English nation. In the knowledge of this law consisted great part of the learning of those dark ages; it was then taught, says Mr. Selden, (p) in the monasteries, in the universities, and in the families of the principal nobility. The clergy in particular, as they then engrossed almost every other branch of learning, so (like their predecessors the British Druids) (9) they were peculiarly remarkable for their proficiency in the study of the law. Nullus clericus nisi causidicus, is the character given of them soon after the conquest by William of Malmesbury. (r) The judges therefore were usually created out of the sacred order, (s) as was likewise the case among the Normans; (†) and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated clerks to this day.

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But the common law of England, being not committed to writing, but only handed down by tradition, use, and experience, was not so heartily relished by the foreign clergy; who came over hither in shoals during the reign of the conqueror and his two sons, and were utter strangers to our constitution as well as our language. And an accident, which soon after happened, had nearly completed its ruin. A copy of Justinian's pandects,

being newly (u) discovered at Amalsi, soon brought the civil law into [18] vogue all over the west of Europe, where before it was quite laid

aside, (w) and in a manner forgotten; though some traces of its authority remained in Italy (x) and the eastern provinces of the empire. (y) This now became in a particular manner the favourite of the popish clergy, who borrowed the method and many of the maxims of the canon law from this original. The study of it was introduced into several universities abroad, particularly that of Bologna; where exercises were performed, lectures read, and degrees conferred in this faculty, as in other branches of science and many nations on the continent, just then beginning to recover from the convulsions consequent upon the overthrow of the Roman empire, and settling by degrees into peaceable forms of government, adopted the civil law (being the best written system then extant), as the basis of their several constitutions; blending and interweaving it among their own feodal customs, in some places with a more extensive, in others a more confined authority. (z)

Nor was it long before the prevailing mode of the times reached England. For Theobald, a Norman abbot, being elected to the see of Can

p in Fletam. 7. 7.

r De gest. reg. l. 4.

q Cæsar, de bello Gal. 6. 12. s Dugdale, Orig, jurid. c. 8. t Les juges sont sages personnes et autentiques,-sicome les archevesques, evesques, les chanoines des eglises cathedraula, et les autres personnes qui ont dignitez in saincte eglises; les abbéz, les prieurs conventaulx, et les gouverneurs des eglises, &c. Grand Coustumier, ch. 9. u Cive. A D. 1130. w LL. Wisigoth. 2. 1. 9. x Capitular. Hludov. Pii. 4. 102. y Selden in Fletam. 5. 5. 7. Pomat's freatise of law, c. 18. § 9. Epitsol. Innocent IV. in M. Paris ad A. D. 126+

terbury, (a) and extremely addicted to this new study, brought over with him in his retinue many learned proficients therein; and among the rest Roger, sirnamed Vacarius, whom he placed in the university of Oxford, (b) to teach it to the people of this country. But it did not meet with the same easy reception in England, where a mild and rational system of laws had been long established, as it did upon the continent; and though the monkish clergy (devoted to the will of a foreign primate) received it with eagerness and zeal, yet the laity, who were more interested to preserve the old constitution, and had already severely felt the effect of many Norman innovations, continued wedded to the use of the common law. King Stephen immediately published a proclamation, (c) forbidding the [ 19 ] study of the laws, then newly imported from Italy; which was treated by the monks (d) as a piece of impiety, and though it might prevent the introduction of the civil law process into our courts of justice, yet did not hinder the clergy from reading and teaching it in their own schools and monasteries.

From this time the nation seems to have been divided into two parties; the bishops and clergy, many of them foreigners, who applied themselves wholly to the study of the civil and canon laws, which now came to be inseparably interwoven with each other; and the nobility and laity, who adhered with equal pertinacity to the old common law both of them reciprocally jealous of what they were unacquainted with, and neither of them perhaps allowed the opposite system that real merit which is abundantly to be found in each. This appears, on one hand, from the spleen with which the monastic writers (e) speak of our municipal laws upon all occasions; and on the other, from the firm temper which the nobility shewed at the famous parliament of Merton: when the prelates endeavoured to procure an act, to declare all bastards legitimate in case the parents intermarried at any time afterwards; alleging this only reason, because holy church (that is, the canon law) declared such children legitimate: but "all "the earls and barons (says the parliament roll) (f) with one voice answer"ed, that they would not change the laws of England, which had hitherto "been used and approved." And we find the same jealousy prevailing above a century afterwards, (g) when the nobility declared with a kind of prophetic spirit, "that the realm of England had never been unto this "hour, neither by the consent of our lord the king and the lords of "parliament shall it ever be, ruled or governed by the civil law." (h) [ 20 ] And of this temper between the clergy and laity many more instances might be given.

While things were in this situation, the clergy, finding it impossible to root out the municipal law, began to withdraw themselves by degrees from the temporal courts; and to that end, very early in the reign of king Henry the Third, episcopal constitutions were publshed, (i) forbidding all ecclesiastics to appear as advocates in foro sæculari: nor did they long conti

a A. D. 1138.

b Gervas. Dorobern. Act. Pontif. 22. Cantuar. col. 1665. c Rog. Bacon, citat. per Selden in Fletam. 7. 6. in Fortesc. c. 33. & 8 Rep. Pref.

d Joan. Sarisburiens Polycrat. 8. 22.

e Joan. Sarisburiens. Polycrat. 5. 16. Polydor. Virg. Hist. 1. 9.

f Stat. Merton. 20. Hen. III. c. 9. Et omnes comites et barones una voce responderunt, quod nolunt leges Angliæ mutare, quæ hucusque usitatæ sunt et approbata.

g 11 Ric. II.

h Selden. Jan. Anglor. l. 2. § 43. in Fortesc. c. 33.

iSpelman. Concil. A. D. 1217.

Wilkins, vol. 1. p. 574. 599.

(4) The interdict of the canon law against clerical candidates entering the legal profession, has been recognised and enforced in a recent instance, wherein the party applied for admission

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