fons of inferiour rank: And because the founders of our

polity relied upon that delicacy of fentiment, fo pecu

liar to noble birth; which, as on the one hand it will prevent either intereft or affection from interfering in queftions of right, fo on the other it will bind a peer in honour, an obligation which the law efteems equal to another's oath, to be mafter of those points upon which it is his birthright to decide.

The Roman pande&ts will furnish us with a piece of hiftory not unapplicable to our prefent purpose. Servius Sulpicius, a gentleman of the patrician order, and a celebrated orator, had occafion to take the opinion_of Quintus Mutius Scaevola, the then oracle of the Ro man law; but, for want of fome 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 Scaevola could not forbear to upbraid him with this memorable reproofs, "that it

was a fhame for a patrician, a nobleman, and an or❝ator of causes, to be ignorant of that law in which "he was fo peculiarly concerned." This reproach made fo deep an impreffion on Sulpicius, that he imme. diately applied himself to the ftudy of the law; wherein he arrived to that proficiency, that he left behind him about an hundred and fourscore volumes of his own compiling upon the fubject; and became, in the opinion of Cicero, a much more complete lawyer than even Mutius Scaevola himself.

I would not be thought to recommend to our Englifh nobility and gentry, to become as great lawyers as Sulpicius; though he, together with this character, fuftained likewife that of an excellent orator, a firm patriot, and a wife indefatigable fenator: But the infer ence which arises from the ftory is this, that ignorance of the laws of the land hath ever been efteemed dishonourable in those who are entrusted by their country to maintain, to adminifter, and to amend them.

But furely there is little occafion to enforce this argument any farther to perfons of rank and diftinction,

if

g Ff. 1. 2. 2. §. 43. Turpe effe patricio, et nobili, et caufas oranti, jus in quo verfaretur ignorare. h Brut. 41.

if we of this place may be allowed to form a general judgment from thofe who are under our inspection: Happy, that while we lay down the rule, we can also produce the example. You will therefore permit your profeffor to indulge both a publick and private fatisfaction, by bearing this open teftimony; that, in the infancy of thefe ftudies among us, they were favoured with the moft diligent attendance, and purfued with the most unwearied application, by those of the nobleft birth and most ample patrimony; fome of whom are ftill the ornaments of this feat of learning; and others at a greater distance continue doing honour to its inftitutions, by comparing our polity and laws with thofe of other kingdoms abroad, or exerting their fenatorial abilities in the councils of the nation at home.

Nor will fome degree of legal knowledge be found in the leaft fuperfluous to perfons of inferiour rank; efpecially thofe of the learned profeffions. The clergy in particular, befides the common obligations they are under in proportion to their rank and fortune, have alfo abundant reason, confidered merely as clergymen, to be acquainted with many branches of the law, which are almoft peculiar and appropriated to themselves alone. Such are the laws relating to advow fons, inftitutions, and inductions; to fimony, and fimoniacal contracts; to uniformity, refidence, and pluralities; to tithes and other ecclefiaftical dues; to marriages (more efpecially of late) and to a variety of other subjects, which are configned to the care of their order by the provisions of particular ftatutes. To understand thefe aright, to dif cern what is warranted or enjoined, and what is forbidden by law, demands a fort of legal apprehenfion; which is no otherwife to be acquired than by ufe, and a familiar acquaintance with legal writers.

For the gentlemen of the faculty of phyfick, I must frankly own that I fee no fpecial reafon, why they in particular fhould apply themfelves to the ftudy of the law; unless in common with other gentlemen, and to complete the character of general and extenfive knowledge; a character which their profeffion, beyond others, has remarkably deferved. They will give me leave however to fuggeft, and that not ludicrously, that it might frequently

frequently be of use to families upon fudden emergencies, if the phyfician were acquainted with the doctrine of laft wills and teftaments, as leaft fo far as relates to the formal part of their execution.

But thofe gentlemen who intend to profess the civil and ecclefiaftical laws, in the spiritual and maritime courts of this kingdom, are of all men (next to common lawyers) the most indifpenfably obliged to apply themfelves feriously to the ftudy of our municipal laws. For the civil and canon laws, confidered with respect to any intrinfick 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 for

eign laws, on account of fome peculiar propriety, have in fome particular cafes, and in fome particular courts, been introduced and allowed by our laws, so far they oblige, and no farther; their authority being wholly founded upon that permiffion and adoption, in which we are not fingular in our notions: For even in Holland, where the imperial law is much cultivated and its decifions pretty generally followed, we are informed by Van Leeuwen, that it receives its force from custom and "the confent of the people, either tacitly or expressly "given: For otherwife, 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 oth"er of the ancient nations." Wherefore, in all points in which the different fyftems 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 themfelves to other matters than are permitted to them; or if fuch courts proceed according to the decifions of those laws, in cafes wherein it is controlled by the law of the land, the common law in either inftance both may, and frequently does, prohibit and annul their proceedings k : And

i Dedicatio corporis juris civilis. Edit. 1663.

k Hale Hilt. C. L. c, 2. Selden in Fletam. 5 Rep. Caudrey's cafe. 2 Inft. 599.

And it will not be a sufficient excuse for them to tell the king's courts at Westminster, that their practice is war ranted by the laws of Juftinian 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 advo cate, to know in what cafes and how far the English laws have given sanction to the Roman ; in what points the latter are rejected; and where they are both "fo intermixed and blended together as to form certain fupplemental parts of the common law of England, diftinguifhed by the titles of the king's maritime, the king's military, and the king's ecclefiaftical law. The propriety of which inquiry the univerfity of Oxford has for more than a century fo thoroughly feen, that in her ftatutes fhe appoints, that one of the three questions to be annually difcuffed at the act by the jurift inceptors fhall relate to the common law : Subjoining this reason, "quia juris civilis ftudiofos decet haud imperitos effe juris "municipalis, et differentias exteri patriique juris notas "habere." And the ftatutes of the university of Cambridge fpeak exprefsly to the fame effect.

From the general use and neceffity of fome acquaintance with the common law, the inference were extremely eafy with regard to the propriety of the prefent institution, in a place to which gentlemen of all ranks and degrees refort, as the fountain of all ufeful knowledge. But how it has come to pass that a defign of this fort has never before taken place in the univerfity, and the reason why the study of our laws has in general fallen into difufe, I fhall previously proceed to inquire.

Sir John Fortefcue, in his panegyrick on the laws of England (which was written in the reign of Henry the fixth) puts" a very obvious question in the mouth of the young prince, whom he is exhorting to apply himfelf to that branch of learning ; " why the laws of Eng"land,

1 Tit. VII. Sect. 2. §. 2.

m Doctor legum mox a doƐturatu dabit operam legibus Angliæ, ut non fit imperitus earum legum quas babet fua patria, et differentias exteri patriique juris nofcat. Stat. Eliz. R. c. 14. Cowel. Inftitut. in proëmia.

n C. 47.

"land, being fo good, fo fruitful, and fo commodious, "are not taught in the univerfities, as the civil and "canon laws are ?" In answer to which he gives what feems, with due deference be it spoken, a very jejune and unfatisfactory reafon; being in fhort, 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 neceffarily " taught in those three feveral languages; but that in "the univerfities all sciences were taught in the Latin "tongue only ;" and therefore he concludes, “that "they could not be conveniently taught or ftudied in "our univerfities." But without attempting to examine seriously the validity of this reason (the very fhadow of which by the wisdom of your late conftitutionsis entirely taken away) we perhaps may find out a better, or at least a more plaufible account, why the study of the municipal laws has been banished from these feats of science, than what the learned chancellor thought it prudent to give to his royal pupil.

That ancient collection of unwritten maxims and cuftoms, which is called the common law, however compounded, or from whatever fountains derived, had fubfifted immemorially in this kingdom; and, though fomewhat altered and impaired by the violence of the times, had in great measure weathered the rude shock of the Norman conqueft. This had endeared it to the people in general, as well because its decifions were univerfally known, as because it was found to be excellently adapted to the genius of the English nation. In the knowledge of this law confifted great part of the learning of thofe dark ages; it was then taught, fays Mr. Selden?, in the monafteries, in the univerfities, and in the families of the principal nobility. The clergy in particular, as they then engroffed almoft every other branch of learning, fo (like their predeceffors the British Druids ¶) they were peculiarly remarkable for their proficiency in the study of the law. Nullus clericus nifi caufidicus, is the character given of them foon after the conquest by William