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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. 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; then should very few questions in [ 11 ] 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.


What is said of our gentlemen in general, and the propriety to the nobilof their application to the study of the laws of their country, will hold equally strong, or still stronger, with regard 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 counselors of the crown, and judges

(3) "Many noblemen," says the oracle of the common law (8 Rep., Pref.), "have been excellently learned in the laws of England, as, taking for example of many, Ranulph de Meschines, the great and worthy Earl of Chester, the third and last of that family, who, having great knowledge and understanding in the laws of this land, compiled a book of the same, as a witness of his skill therein." Of this nobleman, Matthew Paris (p. 362) and Holinshed (vol. 2, p. 364) report (as the effect of his legal learning), that when one tenth of all the movables in this country had been demanded by the nuncio of Gregory IX., to enable that pope to carry on the war against the Emperor Frederic; and when "in the Parliament called to consider the pope's demand at Westminster, on the second Sundaie after Easter, in the year 1229, the king by his silence was adjudged to consent thereto, and the bishops, abbots, priors, and other ecclesiastical persons (not without great grudging and murmuring), at length, for fear of excommunication by the nuncio, had also consented, and Stephen Se

grave, one of the king's counsill, by
compact (as was thought) with the
nuncio, wrought so in the matter that
the said tenths were finallie granted,
and when the nuncio had begun to
gather the same, and that by a verie
straight and hard valuation, whereby
the land was filled with bitter cursings,
though in secret, by those which wish-
ed such unreasonable exactors might
never see good ende of the use of that
monie-the Earle of Chester onlie stood
manfullie against the paiment of those
tenths, insomuch that he wold not suffer
his lands to be brought under bondage,
neither wold he permit the religious
men and priests that held of his fee to
pay the same, although the rest of En-
gland, Wales, Ireland, and Scotland were
compelled to be contributorie thereto."
The fearless stand which this "invictus
causidicus," as Ranulph is styled in the
Chronicle, made against this payment
of tribute to a foreign potentate, was
soon followed by various acts of Par-
liament, forbidding submission to this
"horrible mischief and damnable cus-
tom."-(Vide infra, p. 284.)

upon their honor 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 of 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 in⚫ferior courts of justice must conform; otherwise the rule of property would no longer be uniform and steady.

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 se[12]rious and affecting is the case of a superior judge, if without any skill in the laws he will boldly 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 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 honor, 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.

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

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

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 him about [ 13 ] a hundred and fourscore volumes of his own compiling upon the subject; and became, in the opinion of Cicero, a much more complete lawyer than even Mutius Scævola himself.


I would not be thought to recommend to our English no- to the genbility 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 dishonorable in those who are intrusted by their country to maintain, to administer, and to amend them.

But surely there is little occasion to enforce this argument any further 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 favored 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 honor 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 to the clerleast superfluous to persons of inferior rank; especially those y 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 reason, considered merely as clergymen, to be acquainted with many branches of the [ 14 ] 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 to physi

h Brut., 41.


and to civilians and ec

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 clesiastical laws, in the spiritual and maritime courts of this lawyers. 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 further; their authority being wholly founded upon that [15] 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, 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 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: 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.

i Dedicatio corporis juris civilis. Fletam., 5 Rep., Caudrey's case, 2 Inst., Edit. 1663. 599.

Hale, Hist. C. L., c. 2. Selden in

(4) Vide infra, p. 79, 84, and vol. 3, p. 101.

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! 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 [ 16 ] this reason, "quia juris civilis studiosos decet haud imperitos esse juris municipalis, et differentias exteri patriique juris notas habere." And the statutes 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 inferences were expressly 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.

of the neg.



Sir John Fortescue, in his panegyric on the laws of England II. Causes (which was written in the reign of Henry the Sixth), puts a off the very obvious question in the mouth of the young prince, whom study of the 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 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 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 sci

1 Tit. VII., Sect. 2, § 2.

Doctor legum mox a doctoratu dabit operam legibus Angliæ, ut non sit imperitus aerum legum quas habet sua

patria, et differentias exteri patriique
juris noscat.-Stat. Eliz., R., c. 14.
Cowl, Institut. in proëmio.

a c. 47.

• c. 48.

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