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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.
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, [*15 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 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 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 Dedicatio corporis juris civilis. Edit. 1663.
(k) Hale Hist. C. L. c. 2. Selden in Fletam. 5 Rep. Caudrey'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.
5 The Rota, or Ruota Romana, is the highest papal court of appeal. It has a collegiate constitution, and consists of twelve prelates. Íts jurisdiction extends over all Christendom; and it decides not only spiritual controversies, but questions concerning eccle siastical 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(1) she appoints, that one of the three questions to be annually discussed at the ací 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, (b) 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. m) Doctor legum mox a doctoratu dabit operam legibus Anglis, ut non sit imperitus carum legum quas habet sua patria, et differentias exteri patrüque juris noscat. Stat Eliz. R. C. 14. Corell, 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 between them and the Emperor. It expired in 1506.SHARSWOOD.
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) 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 ourasioned their successors to be denominated clerks to this day
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 con. queror 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
[*18 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 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
(1) Cæsar de Bello Gal. 6, 12.
Circ. A.D. 1130. De Gest. Reg. l. 4.
w LL. Wisigoth. 2, 1, 9. Dugdale, Orig. Jurid. c. 8.
(5) Capitular. Hludov. Pii. 4, 102. Les juges sont sages personnes et autentiques,sicome (y) Selden in Fletam. 5, 5. les archeresques, evesques, les chanoines des églises cathe (2) Domat's Treatise of Law, c. 13 9. Epistol. Innocent drauls, et les autres personnes qui ont dignitez in saincte IV, in M. Paris ad A.D. 1254. oglise ; les abbes, les prieurs conventault, et les gouverneurs (@) A.D. 1138. des eglises, &c. Grand Crustumier, ch. 9.
b) Gervas. Dorobern. Act. Pontif. Cantuar. col. 1665.
6 The common account of this matter is that this copy of the Pandects was transcribeci 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. 1110.-Colquhoun's Summary, vol. i. p. 67.-SHARSWOOD.
Norman innovations, continued wedded to the use of the common law.
King Stephen immediately *published a proclamation,(C) forbidding the study of the laws, then newly imported from Italy, which was treated by the munks(d) as a piece of impiety; and, though it might prevent the introduction of the civil law process into our courts of justice, yet did not hinder the clergy from reading and teaching it in their own schools and monasteries.
From this time the nation seems to have been divided into two parties, the bishops and clergy, many of them foreigners, who applied themselves wholly to the study of the civil and canon laws, which now came to be inseparably interwoven with each other, and the nobility and laity, who adhered with equai pertinacity to the old common law; both of them reciprocally jealous of what they were unacquainted with, and neither of them, perhaps, allowing the opposite system that real merit which is abundantly to be found in each. This appears, on the one hand, from the spleen with which the monastic writers() speak of our municipal laws upon all occasions; and, on the other, from the firm temper which the nobility shewed at the famous parliament of Merton, when the prelates endeavoured to procure an act to declare all bastards legitimate in case the parents intermarried at any time afterwards; alleging this only reason, because holy church (that is, the canon law) declared such children legitimate; but "all the earls and barons (says the parliament roll)(f) with one voice an swered, that they would not change the laws of England, which had hitherto been used and approved." And we find the same jealousy prevailing above a century afterwards,(9) when the nobility declared, with a kind of prophetic spirit, “ that the realm of England hath never been unto this hour, neither by
the consent of our lord the king, and the lords of parliament, shall it
ever be *ruled or governed by the civil law.”(h). Ånd of this temper between the clergy and laity many more instances might be given.
While things were in this situation, the clergy, finding it impossible to root out the municipal law, began to withdraw themselves by degrees from the temporal courts; and to that end, very early in the reign of King Henry the Third,
(c) Rog. Bacon citat. per Selden, in Flelam. 7, 6, in For barones una voce responderunt, quod nolunt leges Angliæ tesc. c. 33, and 8 Rep. Pref.
mutare, quæ hucusque usitatæ sunt et approbatæ. Joan Sarisburiens. Polycrat. 8, 22.
(0) 11 Ric. II. Idem, ibid. 5, 16. Polydor. Virgil. Hist. 1.9.
(1) Selden, Jan. Anglor, l. 2. & 43, in Fortesc. c. 33. (5) Stat. Merton. 20. Hen. III. C. 9. Et omines comites et
'Mr. F. Hargrave, in his notes to the first volume of Blackstone, has here presented an interesting history of the contests which have existed since this event between the clergy and the common lawyers. He shows that prior to the Reformation the latter kept the ecclesiastics within proper bounds,—that they were prominent actors in the events of the Reformation. Subsequently, if we are to believe Whitelocke's speech to the House of Commons in 1649, (Parl. Hist. iii. 1341,) the lawyers bore no mean part in the field of battle on the side of the Parliament. “The gown,” says he,“ does not abate a man's courage or his wisdom, or make him less capable of using a sword. You all know this to be true by the great services performed by Lieutenant-General Jones, and Commissary Ireton, and many of the members and other lawyers, who, putting off their gowns when you required it, have served you stoutly and successfully as soldiers, and undergone great dangers and hardships.” He remarks, also, that in the Westminster Assembly, Hale, Maynard, Wilde, Selden, Whitelocke, St. John, and other lawyers, successfully resisted the attempts of the Presbyterians to clothe themselves with the jus divinum, which had just been stripped from the deposed hierarchy.
Bishop Purnet, indeed, seems to have thought that antipathy to the national church is an inseparable characteristic of the lawyers. In his account of the contests between the French bishops and the parliament of Paris, in the beginning of the seventeenth century, is the following passage:-“ It has been everywhere observed that no host of men have made head against those things which have been called rights of the church, with more zeal and indignation than lawyers and secular courts. This ecclesiastics inpute to their enmity to the church and their envy at her prosperity; lawyers, on the other hand, pretend that their studies carry them further than other men into the discovery of those cheats and late inventions by which the world has been imposed on in former ages.”—(Rights of Princes, ch. 8.)-SHARSWOOD.
episcopal constitutions were published, forbidding all ecclesiastics to appear as advocates in foro sæculari : nor did they long continue to act as judges there, not caring to take the oath of office which was then found necessary to be ad ministered, that they should in all things determine according to the law and custom of this realm,(k) though they still kept possession of the high office of chancellor, an office then of little juridical power; and afterwards, as its busiLess increased by degrees, they modelled the process of the court at their own liscretion.
But wherever they retired, and wherever their authority extended, they carried with them the same zeal to introduce the rules of the civil, in exclusion of the municipal law. This appears in a particular manner from the spiritual courts of all denominations, from the chancellor's courts in both our universities, and from the high court of chancery before mentioned; in all of which the proceedings are to this day in a course much conformed to the civil law : for which no tolerable reason can be assigned, unless that these courts were all under the im. mediate direction of the popish ecclesiastics, among whom it was a point of religion to exclude the municipal law; Pope Innocent the Fourth having forbidden(1) the very reading of it by the clergy, because its decisions were not founded on the imperial constitutions, but merely on the customs of the laity. And if it be considered, that our universities began about that period to receive their present form of scholastic discipline; that they were then, and continued to *be till the time of the Reformation, entirely under the influence of the
[ *21 popish clergy; (Sir John Mason the first Protestant, being also the first lay, Chancellor of Oxford ;) this will lead us to perceive the reason, why the study of the Roman laws was in those days of bigotry(m) pursued with such alacrity, in these seats of learning; and why the common law was entirely despised, and esteemed little better than heretical.
And, since the Reformation, many causes have conspired to prevent its becoming a part of academical education. As, first, long usage and established custom; which, as in every thing else, so especially in the forms of scholastic exercise, have justly great weight and authority. Secondly, the real intrinsic merit of the civil law, considered upon the footing of reason and not of obligation, which was well known to the instructors of our youth; and their total ignorance of the merit of the common law, though its equal at least, and perhaps an improvement on the other. But the principal reason of all, that has hindered the introduction of this branch of learning, is, that the study of the common law being banished from hence in the times of popery, has fallen into a quite different channel, and has hitherto been wholly cultivated in another place. But, as the long usage and established custom of ignorance of the laws of the land, begin now to be thought unreasonable; and as by these means the merit of those *laws will probably be more generally known; we may hope that the method of studying them will soon revert to its antient
[*22 course, and the foundations at least of that science will be laid in the two universities; without being exclusively confined to the channel which it fell into at the times I have just been describing.
For, being then entirely abandoned by the clergy, a few stragglers excepted, the study and practice of it devolved of course into the hands of laymen: who entertained upon their parts a most hearty aversion to the civil law,(n) and made no scruple to profess their contempt, nay even their ignorance() of it in (Spelman, Concu. A.D. 1217. Wilkins, vol. 1 p. 574, 599. astutum et sagacem; tertio, quod in causa desperata : sed Selden, in Fletam, 9, 3.
beatissima virgo, contra judicem sapientissimum, Dominum; M. Paris, A.D. 1254.
contra adversarium callidissimum diabolum; in causa nos *) There cannot be a stronger instance of the absurd tra desperata ; sententiam optatam obtinuit." To which an and snperstitious veneration that was paid to these laws, eminent Franciscan, two centuries afterwards, Bernardinus than that the most learned writers of the times thought de Busti, (Mariale, part 4, serm. 9,) very gravely subjoins they could not form a perfect character, even of the blessed this note : " Nec videtur incongruum mulieres habere perivirgin, without making her a civilian and a canonist; which tiam juris. Legitur enim de uzore Joannis Andrese glassaAlbertus Magugs, the renowned Dominican doctor of the toris, quod tantam peritiam in utroque jure habuit, ut pub thirteenth century, thus proves in his Summa de laudibus lice in scholis legere ausa süt.” Christiferæ virginis (divinum magis quam humanum opus) qu. B 25. “ İlem quod jurı civilia, et leges, et decreta scivit (0) This remarkably appeared in the case of the Abbot of in summo, probatur hoc modo: sapientia advocati mani Torum, M. 22 Edw. III. 24, who had caused a certain prior festatur in trinus ; unum, quod obtincat omnia contra ju to be summoned to answer at Avignon for erecting an licem justum d sapientem ; secundo, quod contra adversarium oratory contra inhibitionem novi operis : by which wordi
(n) Fortesc. de Laud. L. L. c. 23.