❝ 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 confufion introduced by ill-judging and unlearned legiflators. "But " if,” he subjoins, "acts of parliament were after the old "fashion penned, by fuch only as perfectly knew what the "common law was before the making of any act of parlia"ment concerning that matter, as alfo how far forth former "statutes had provided remedy for former mifchiefs, and "defects difcovered by experience; then fhould very few "questions in law arife, and the learned fhould not so often [1] "and so much perplex their heads to make atonement and

peace, by conftruction of law, between infenfible and dif"agreeing words, fentences, and provifoes, as they now do." And if this inconvenience was fo heavily felt in the reign of queen Elizabeth, you may judge how the evil is increased in later times, when the ftatute book is fwelled to ten times a larger bulk; unless it fhould be found, that the penners of our modern statutes have proportionably better informed themselves in the knowledge of the common law.

WHAT is faid of our gentlemen in general, and the propriety of their application to the ftudy of the laws of their country, will hold equally ftrong or ftill ftronger with regard to the nobility of this realm, except only in the article of ferving upon juries. But, inftead of this, they have feveral peculiar provinces of far greater confequence and concern; being not only by birth hereditary counfellors of the crown, and judges upon their honour of the lives of their brotherpeers, but also arbiters of the property of all their fellowsubjects, and that in the last refort. In this their judicial capacity they are bound to decide the nicest and most critical points of the law: to examine and correct fuch errors as have efcaped the most experienced fages of the profeffion, the lord keeper and the judges of the courts at Westminster. Their fentence is final, decifive, irrevocable; no appeal, no correction,

[ 12 ]

correction, not even a review can be had; and to their determination, whatever it be, the inferior courts of juftice must conform; otherwife the rule of property would no longer be uniform and fteady.

SHOULD a judge in the most fubordinate jurisdiction be deficient in the knowledge of the law, it would reflect infinite contempt upon himself, and difgrace upon those who employ him. And yet the confequence 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 cafe of a superior judge, if without any kill in the laws he will boldly venture to decide a question upon which the welfare and fubfiftence 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 molt alarming nature, an injury without poffibility of redress.

YET, vaft as this truft is, it can no where be fo properly repofed, as in the noble hands where our excellent conftitution has placed it: and therefore placed it, because, from the independence of their fortune and the dignity of their ftation, they are prefumed to employ that leifure which is the confequence of both, in attaining a more extenfive knowledge of the laws than perfons of inferior rank; and because the founders of our polity relied upon that delicacy of fentiment, fo peculiar 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 master of those points upon which it is his birth-right to decide.

THE Roman pandects 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,

orator, had occafion to take the opinion of Quintus Mutius Scaevola, the then oracle of the Roman law; but, for want of fome knowledge in that fcience, could not fo 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 reproof ”, “that "it was a fhame 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 impreffion on Sulpicius, that he immediately applied himself to the study of the law; wherein he arrived to that pro- [ 13 ] ficiency, 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 English 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 senator: but the inference which arises from the ftory is this, that ignorance of the laws of the land hath ever been. esteemed dishonourable in thofe, 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 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 profeffor to indulge both a public and private fatisfaction, by bearing this open testimony; that, in the infancy of these studies among us, they were favoured with the most diligent attendance, and purfued with the most unwearied application, by those of the

Ff.1. 2. 2. § 43. Turpe effe patricio, et nobili, et caufa: oranti, jus in que verfaretur ignorare.

h Brut. 41. 10

nobleft

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 least superfluous to perfons of inferior rank: especially those of the learned profeffions. The clergy, in particular, besides the common obligations they are under in proportion to their rank and fortune, have alfo abundant reason, confidered [14] 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 fimony, and fimoniacal contracts; to uniformity, refidence, and pluralities; to tithes, and other ecclefiaftical dues; to marriages, (more especially of late,) and to a variety of other fubjects, which are configned to the care of their order by the provifions of particular statutes. To understand these aright, to discern 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 physic, I must frankly own that I fee no special reason, why they in particular fhould apply themselves to the ftudy of the law; unless in common with other gentlemen, and to complete the character of general and extensive knowledge; a character which their profeffion, beyond others, has remarkably deferved. They will give me leave, however, to suggest, and that not ludicrously, that it might frequently be of use to families upon fudden emergencies, if the phyfician were acquainted with the doctrine of last wills and testaments, at least fo far as relates to the formal part of their execution.

BUT

In

BUT those gentlemen who intend to profess the civil and ecclefiaftical laws, in the fpiritual and maritime courts of this kingdom, are of all men (next to common lawyers) the most indifpenfibly obliged to apply themselves seriously to the study of our municipal laws. For the civil and canon laws, confidered with respect to any intrinfic 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 peliar propriety, have in fome particular cafes, and in fome particular courts, been introduced and allowed by our laws, fo far they oblige, and no farther; their authority being wholly founded upon that permiffion and adoption. which we are not fingular in our notions: for even in Hol- [ 15 ] land, where the imperial law is much cultivated and its decifions pretty generally followed, we are informed by Van Leeuwen 1, that "it receives its force from custom and the "confent of the people either tacitly or exprefsly 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 fyftems depart from each other, the law of the land takes place of the law of Rome, whether antient 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 ex ceed the bounds of that reception, by extending themselves 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: and it will not be a fufficient excufe for them to tell the king's courts at Westminster, that their practice is warranted by the laws

Dedicatio corporis juris civilis. Edit. 1663

* Hale Hift. C. L. c. 2. Selden in Fletam. 5 Rep. Caudrey's cafe. 2 Inft.

599.

of