Sivut kuvina

Edward Coke expresses it) (ƒ) with provisoes and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law." This great and well-experienced judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law; and warmly laments the confusion introduced by ill-judging and unlearned legislators (6.) "But if," he subjoins, "acts of parliament were after the old fashion penned, by such only as perfectly knew what the common law was before the making of any act of parliament concerning that matter, as also how far forth former statutes had provided remedy for former mischiefs, and defects discovered by experience; [*11 ] then should very few questions in law arise, *and the learned should not so often and so much perplex their heads to make atonement and peace, by construction of law, between insensible and disagreeing words, sentences, and provisoes, as they now do." And if this inconvenience was so heavily felt in the reign of Queen Elizabeth, you may judge how the evil is increased in later times, when the statute book is swelled to ten times a larger bulk, unless it should be found that the penners of our modern statutes have proportionably better informed themselves in the knowledge of the common law.

(f) 2 Rep. pref.

(6) The common law of England is hourly yielding many of its rules and details to present convenience. Time must either obliterate or modify institutions no longer compatible with newly acquired wants or knowledge. Legislators may correct legislators, and such is their use; but antiquity consecrates some sorts of state knowledge, which, in its turn, canonizes antiquity. It is for legislation ever to be busied

about temporary fitness, and, instead of its activity being open to reprehension, its supineness is matter not more of the public regret than of public injury. Much of the common law of England was suited to a barbarous people, and, had not statutes modified or abrogated much of the ancient law from time to time, England would have remained barbarous.

What is said of our gentlemen in general, and the pro- Propriety of the study on the priety of their application to the study of the laws of their part of the Nocountry, will hold equally strong or still stronger with rebility. gard to the nobility of this realm, except only in the article of serving upon juries. But, instead of this, they have several peculiar provinces of far greater consequence and concern; being not only by birth hereditary counsellors of the crown, and judges upon their honour of the lives of their brother-peers, but also arbiters of the property of all their fellow-subjects, and that in the last resort. In this their judicial capacity they are bound to decide the nicest and most critical points of the law to examine and correct such errors as have escaped the most experienced sages of the profession, the lord keeper, and the judges of the courts at Westminster. Their sentence is final, decisive, irrevocable; no appeal, no correction, not even a review can be had: and to their determination, whatever it be, the inferior courts of justice must conform; otherwise the rule of property would no longer be uniform and steady (7).

Should a judge in the most subordinate jurisdiction be deficient in the knowledge of the law, it would reflect infinite contempt upon himself, and disgrace upon those who employ him. And yet the consequence of his ignorance is comparatively very trifling and small: his judgment may be examined, and his errors rectified, by other courts. But how much more serious and affecting is the case of a superior judge, *if without any skill in the laws he will boldly [*12 ] venture to decide a question upon which the welfare and subsistence of whole families may depend! where the chance of his judging right, or wrong, is barely equal ; and

(7) Yet the adjudication in this august house is generally practically just. The courts below are bound to administer the law as they find it, or as they feel they must interpret it. But in the house of peers, the whole question may be discussed, and the law

either wisely made to yield to expedi-
ency and justice, or pronounced to be
consistent with both. True it may be,
that, in the last resort, the nobility
are the arbiters of the property of all
their fellow subjects, yet it is notorious
that, as a body, they are nominally so.

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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 the 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 birth-right to decide (8).

The Roman pandects will furnish us with a piece of history not unapplicable 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

(g) Ff. 1. 2. 2. § 43. Turpe esse in quo versaretur ignorare. patricio, et nobili, et causas oranti, jus

(8) Few, if any, instances occur where the august house, as a body, have met to decide, much less to hear, the arguments upon a question merely legal. Their wisdom is shewn in this instance by their forbearance. A just technical adjudication of civil

rights is as alien from most of their lordship's habits, individually, as it is from their acquired knowledge; and it is not gratuitously that it may be assumed, that law can only be, as indeed it only is, dispensed by lawyers.

nobleman, and an orator of causes, to be ignorant of that law in which he was so peculiarly 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 [*13 ] him about an hundred and four-score 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.

the story.

I would not be thought to recommend to our English Inference from 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 little occasion to enforce this ment 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 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

(h) Brut. 41.

Wherefore little occasion to en

force the propriety of legal study.

ferior persons

The study by in- least superfluous to persons of inferior rank, especially not superfluous. those of the learned professions. The clergy in particular, Useful to the besides the common obligations they are under in proporclergy. tion to their rank and fortune, have also abundant reason, [*14] considered *merely as clergymen, to be acquainted with many 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 under- stand 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.

To the faculty of physic.

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 (9).

But those gentlemen who intend to profess the civil and ecclesiastical laws, in the spiritual and maritime courts of

(9) At the period when the Commentaries were published, forensic medicine had not been publicly recognized as a new or necessary branch of legal study; nor had the converse been at all acknowledged, namely, the

propriety of medical men being somewhat informed as to what the law may require shall be proved or adjudged upon their testimony. The elaborate works of Dr. Paris and of Dr. Smith, and of others treating forensic medi

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