laws. this kingdom, are of all men (next to common lawyers) the To those intendmost indispensably obliged to apply themselves seriously the civil and ecing to profess to the study of our municipal laws. For the civil and clesiastical 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 upon that permission and adoption. In which we are not singular in our notions: for even in Holland, where the imperial law is [*14] 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 antient nations." Wherefore, in all points in which the different 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 (i) Dedicatio corporis juris civilis. Edit. 1663. cine at length, sufficiently show that the faculty of physic may not unusefully apply themselves to the study of the law applicable to cases of death by apparently doubtful or suspicious means; to cases of unsound mind; or posing power in a last illness might be 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 or 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 juristinceptors shall relate to the common law; subjoining this reason, "quia juris civilis studiosos decet haud imperitos [ 16*] esse *juris municipalis, et differentias exteri patriique juris notas habere" (10). And the statutes (m) of the university of Cambridge speak expressly to the same effect (11). (k) Hale Hist. C. L. c. 2. Selden (1) Tit. VII. Sect. 2. § 2. (10) "Because it is becoming students in civil law not to be ignorant of the municipal law; and that they should be apprized of the signal differences existing between the law of foreign nations and that of their own country." (11) These passages may have Cowel. Institut. in proëmio.—[A doctor of laws will, after that degree shall have been conferred upon him, study the laws of England, in order that he may neither be ignorant of the laws by which his own country is governed; nor in what respect they differ from those of foreign nations.] influenced, if not guided, many learned civilians in the views taken by them of questions peculiar to their own courts and, in every judgment pronounced by Lord Stowel, the lights of the common law, when in any degree incidental to the particular case, are the institution inferred from From the general use and necessity of some acquaint- The propriety of ance with the common law, the inference were extremely of the lecture easy with regard to the propriety of the present institution, the use and nein a place to which gentlemen of all ranks and degrees cessity of acresort, as the fountain of all useful knowledge. But how quaintance with it has come to pass that a design of this sort has never law. 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. the common mon law not Sir John For Sir John Fortescue, in his panegyric on the laws of Wherefore comEngland, (which was written in the reign of Henry the taught in the Sixth,) puts (n) a very obvious question in the mouth of universities. the young prince, whom he is exhorting. to apply himself tescue's reason to that branch of learning: "why the laws of England, unsatisfactory. 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 (o) 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 The examine seriously the validity of this reason, (the very shadow of which, by the wisdom of your late constitutions, is entirely taken 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 commen. tator's reason? [*17 ] Once taught in the monaste ries, universi ties, and in no 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 fountains derived, had subsisted immemorially in this kingdom; and, though somewhat altered and impaired by the violence of the times, had in 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 universally 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) (q), 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 Malmsbury. (r) And therefore The judges therefore were usually created out of the sacred usually created judges. order (s), as was likewise the case among the Normans; (1) and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated clerks to this day. ble families. The clergy pro ficient in the study, The foreign clergy averse from the English common law. 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 (p) In Fletam. 7. 7. (q) Cæsar de bello Gal. 6. 12. les prieurs conventaula, et les gouverneurs des eglises, &c. Grand Coustumier, ch. 9. [The judges are grave persons of known rank; as archbishops, bishops, canons of cathedrals, and other dignified ecclesiastics; abbots, conventual priors, and elders of churches.] 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 dects become clergy, its ruin. A copy of Justinian's pandects, being newly (u) 3.99. discovered at Amalfi, *soon brought the civil law into vogue [*18 ] all over the west of Europe, where before it was quite laid The newly disaside (w), and in a manner forgotten, though some traces of covered Panits authority remained in Italy (x) and the eastern provinces of the empire. (y) This now became in a particular the favourite of the popish manner the favourite of the popish clergy, who borrowed the method and many of the maxims of their 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 foedal 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 And taught at reached England. For Theobald, a Norman abbot, being elected to the see of Canterbury (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 (u) Circ. A. D. 1130. (w) LL. Wisigoth. 2. 1. 9. (x) Capitular. Hludov. Pii. 4. 102. (y) Selden in Fletam. 5. 5. 9. Epistol. Innocent IV. in M. Paris ad A. D. 1254. (a) A. D. 1138. (b) Gervas. Dorobern. Act. Pontif. (*) Domat's Treatise of Law, c. 13. Cantuar. col. 1665. Oxford. |