courts of justice,) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament, "overladen (as Sir 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. "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 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. [ *11 What is said of our gentlemen in general, and the propriety of their applica tion 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 counsellors of the crown, and judges upon their honour of the lives of their brotherpeers, 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. 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 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. [ *12 Yet, vast as this trust is, it can nowhere 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." (1) 2 Rep. pref 'This assertion, that the law esteems the word of honour of a peer as an obligation equal to another's oath, is not accurate. In the courts of common law, when a nobleman is examined as a witness, he must be sworn to speak the truth. just as a commoner must 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 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 im pression on Sulpicius, that he immediately applied himself to the study of the *13] law, wherein he arrived to that *proficiency, that he left behind him about an hundred 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 intrusted by their country to maintain, to administer, and to amend them. But surely there is 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 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 *14] their rank and fortune, have also abundant reason, 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 (8) Ff. 1. 2. 2. 3 43. Turpe esse patricio, et nobili, et causas (A) Brut. 41. pranti, jus in quo versaretur ignorare. But, in courts of equity, peers and peeresses are privileged to put in their answers on their honour only, when others are required to be sworn. And so the members of the House of Peers, when sitting judicially upon the trial of impeachments, are upon their pledge of honour only. It may be remarked also, as qualifying what is said of the jurisdiction of the House of Peers as the highest court of errors and appeals, that this part of their business is transacted by the Lord Chancellor, and those members, who are lawyers by profession and have filled judicial stations. The lay peers, who attend the sessions, abstain from voting in such cases. Baron Parke was recently raised to the peerage, with the title of Lord Wensleydale, for the avowed purpose of strengthening the legal staff in that body. He was first created a baron for life; but, much dissatisfaction having been expressed at such a precedent, as of a dangerous nature in its tendency to increase the influence of the crown, patent was issued to him entailing the dignity to him and his heirs male.-SHARSWOOD. 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.' [*15 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 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() 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:(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 con formable 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 (1) Dedicatio corporis juris civilis. Edit. 1663. (*) Hale Hist. C. L. c. 2. Selden in Fletam. 5 Rep. Cau drey's case. 2 Inst. 599. 'It ought, perhaps, to be added in this place, that, as medical men are frequently required to testify as experts in courts of justice, it is quite important that they should possess at least a knowledge of the general principles of the law which apply to those classes of cases in which they are most liable to be called upon. Such are mental capacity to make contracts, wills, and do other legal acts, or to incur liability for crimes, the causes of death, the period of gestation, and other similar questions. The subject of Medical Jurisprudence, or, as it is perhaps more properly termed, Forensic Medicine, has of late years much attracted the attention of the medical profession, and many works have been prepared and published. One of the latest and best is "Wharton and Stille's Medical Jurisprudence," an American work which appears to exhaust all the topics which belong to this title, a title both in law and medicine, which thus links together these two honourable professions.—SHARSWOOD. The ROTA, or RUOTA ROMANA, is the highest papal court of appeal. It has a collegiate constitution, and consists of twelve prelates. Its jurisdiction extends over all Christendom; and it decides not only spiritual controversies, but questions concerning eccleBiastical benefices. The name is said to be derived from the circumstance that the floor of their hall is overlaid with marble slabs in the form of wheels. Others, however, attri 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() sho 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, *16] "quia juris civilis studiosos decet haud imperitos esse *juris municipalis, et differentias exteri patriique 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 were 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(n) a very 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 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 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 *17] 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 (Tit. VII. Sect. 2 2 2. () Doctor legum mox a doctoratu dabit operam legibus Angliæ, ut non sit imperitus earum legum quas habet sua patria, et differentias exteri patriique juris noscat. Stat Eliz. R. C. 14. Cowell, Institut. in proemio. (*) C. 47. bute the name to the fact that in ancient Rome a round public building stood upon the place where this tribunal was first established. The IMPERIAL CHAMBER was a court of the German Empire, instituted by the Emperor Maximilian I. in 1495. It had concurrent jurisdiction with the Aulic Council, and was intended, among other things, to adjust the disputes between the different members of the German Empire, and betw en them and the Emperor. It expired in 1506. HARSWOOD, the British Draids), (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) The judges there fore were usually created out of the sacred order,(s) as was likewise the case among the Normans;(t) and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated clerks to this day [*18 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 Amalfi, *soon brought the civil law into 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 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 feodal customs, in some places with a more extensive, in others a more confined authority.(2) Nor was it long before the prevailing mode of the times 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, surnamed 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 The common account of this matter is that this copy of the Pandects was transcribed at Constantinople, in the seventh century, by a Greek scribe. It was discovered at Amalfi, A.D. 1135, by the Pisans, who took that city. Their ally, Lothaire II., granted them the copy in recompense of their services. On Pisa being taken by the Florentines, A.D. 1406, it was transported to Florence, rebound in purple, placed in a rich casket in the ancient palace of the republic as a sacred relic, and shown to the curious by the monks or magistrates uncovered. It is supposed that all editions of the Pandects trace their origin to this copy. M. Savigny contests the whole of this account, and, after examination of the historical evidence produced in its favour, pronounces it unsatisfactory, (Hist. Droit Rom., vol. ii. c. 15.) Mr. Hallam also gives reasons for doubting it, (Middle Ages, vol. ii. p. 520.) The Florentine manuscript is undoubtedly the oldest in existence; but it appears to be the better opinion that many others were copied from still older ones. They were quoted by John of Chartres, who died A.D. 1117, by Theobald, Archbishop of Canterbury, and by Vacarius, the first professor of civil law in England, in A.D. 1149.—Colquhoun's Summary, vol. i. p. 67.-SWARSWOOD. |