tution 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-righ to decide. (2)

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 Scaevola, 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 Scaevola could not forbear to upbraid him with this memorable reproof 3, "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

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

(2) It was not upon any such refined reasoning as that stated in the text, that the peers have become in our constitution the court of last appeal, see Vol. III. p. 57. At the same time it is probable that the great trust can be no where so properly reposed; it is not that the lords are presumed by the constitution to be better acquainted with the law than the judges, whose decisions they are called upon to review; on the contrary, the constitution makes the judges their dignified attendants for the purpose of informing them in the law. But when questions have been thoroughly discussed before tribunals, in which the best talents, longest experience, and soundest knowledge are supposed to preside, it is felt that for settling them definitively, authority is wanted more than new light. In a difficult case the lords usually pronounce the judgment which the twelve judges have dictated to them; yet every one must be sensible that that judgment so pronounced is far more weighty as the decree of that august tribunal, than it would be as the decision of twelve judges affirming or over-ruling a previous judgment of other judges.

"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 profici- [13] ency, that he left behind him about an hundred and fourscore

h

volumes of his own compiling upon the subject; and became, in the opinion of Cicero 1, 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, 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 entrusted 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 it's 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 their

[14]

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 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

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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 it's 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 antient 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 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 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. 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 this reason, "quia "juris civilis studiosos decet haud imperitos esse juris munici- [16] palis, et differentias exteri patriique juris notas habere."

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i Dedicatio corporis juris civilis. Edit. 1663.

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

Fletam. 5 Rep. Caudrey's case. 2 Inst.

599.

Tit. VII. Sect. 2. § 2.

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 inference was 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.

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SIR John Fortescue, in his panegyric on the laws of England, (which was written in the reign of Henry the sixth,) puts" a very obvious question into 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 univer"sities, 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 science, than what the learned chancellor thought it prudent to give to his royal pupil.