Chapter 2

[Footnote f: 2 Rep. Pref.]

WHAT is said of our gentlemen in general, and the propriety of their application 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 brother-peers, 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 knowlege 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!

YET, vast as this trust is, it can no where 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 knowlege 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 birthright to decide.

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 oracle of the Roman law; but for want of some knowlege 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[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 impression on Sulpicius, that he immediately applied himself to the study of the law; wherein he arrived to that proficiency, that he left behind him about a 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 Scaevola himself.

[Footnote g: _Ff._ 1. 2. 2. §. 43. _Turpe esse patricio, & nobili, & causas oranti, jus in quo versaretur ignorare._]

[Footnote h: _Brut._ 41.]

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 knowlege 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 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 knowlege; 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 and it's decisions pretty generally followed, we are informed by Van Leeuwen[i], 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 pontificial. 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 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 enquiry the university of Oxford has for more than a century so thoroughly seen, that in her statutes[l] 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 municipalis, & differentias exteri patriique juris notas habere_." And the statutes[m] of the university of Cambridge speak expressly to the same effect.

[Footnote i: _Dedicatio corporis juris civilis._ _Edit._ 1663.]

[Footnote k: Hale. Hist. C.L. c. 2. Selden _in Fletam_. 5 Rep. Caudrey's Case. 2 Inst. 599.]

[Footnote l: _Tit. VII. Sect._ 2. §. 2.]

[Footnote m: _Doctor legum mox a doctoratu dabit operam legibus Angliae, ut non sit imperitus earum legum quas habet sua patria, et differentias exteri patriique juris noscat._ _Stat._ Eliz. _R._ _c._ 14. Cowel. _Institut. in proëmio._]

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 knowlege. 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 enquire.

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[o] 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.

[Footnote n: _c._ 47.]

[Footnote o: _c._ 48.]

THAT antient collection of unwritten maxims and customs, which is 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 it's decisions were universally known, as because it was found to be excellently adapted to the genius of the English nation. In the knowlege 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 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 therefore 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.

[Footnote p: _in Fletam._ 7. 7.]

[Footnote q: Caesar _de bello Gal._ 6. 12.]

[Footnote r: _de gest. reg._ _l._ 4.]

[Footnote s: Dugdale _Orig. jurid._ _c._ 8.]

[Footnote t: _Les juges sont sages personnes & autentiques,--sicome les archevesques, evesques, les chanoines les eglises cathedraulx, & les autres personnes qui ont dignitez in saincte eglise; les abbez, les prieurs conventaulx, & les gouverneurs des eglises, &c._ _Grand Coustumier_, _ch._ 9.]

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 it's 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 it's 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[z].

[Footnote u: _circ. A.D._ 1130.]

[Footnote w: _LL. Wisigoth._ 2. 1. 9.]

[Footnote x: _Capitular. Hludov. Pii._ 4. 102.]

[Footnote y: Selden _in Fletam._ 5. 5.]

[Footnote z: Domat's treatise of laws. c. 13. §. 9. _Epistol. Innocent. IV. in M. Paris. ad A.D._ 1254.]

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 sirnamed 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 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 monks[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.

[Footnote a: _A.D._ 1138.]

[Footnote b: Gervas. Dorobern. _Act. Pontif. Cantuar. col._ 1665.]

[Footnote c: Rog. Bacon. _citat. per_ Selden. _in Fletam._ 7. 6. _in Fortesc._ _c._ 33. & 8 Rep. Pref.]

[Footnote d: Joan. Sarisburiens. _Polycrat._ 8. 22.]

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 equal 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[e] 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 answered, 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[g], 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]." And of this temper between the clergy and laity many more instances might be given.

[Footnote e: _Idem, ibid._ 5. 16. Polydor. Vergil. _Hist._ _l._ 9.]

[Footnote f: _Stat. Merton._ 20 _Hen. III._ _c._ 9. _Et omnes comites & barones una voce responderunt, quod nolunt leges Angliae mutare, quae hucusque usitatae sunt & approbatae._]

[Footnote g: 11 Ric. II.]

[Footnote h: Selden. _Jan. Anglor._ _l._ 2. §. 43. _in Fortesc._ _c._ 33.]

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, episcopal constitutions were published[i], forbidding all ecclesiastics to appear as advocates _in foro saeculari_; nor did they long continue to act as judges there, nor caring to take the oath of office which was then found necessary to be administred, 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 it's business increased by degrees, they modelled the process of the court at their own discretion.

[Footnote i: Spelman. _Concil. A.D._ 1217. Wilkins, _vol._ 1. _p._ 574, 599.]

[Footnote k: Selden. _in Fletam._ 9. 3.]

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 immediate direction of the popish ecclesiastics, among whom it was a point of religion to exclude the municipal law; pope Innocent the fourth having[l] forbidden the very reading of it by the clergy, because it's 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 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.

[Footnote l: M. Paris _ad A.D._ 1254.]

[Footnote m: There cannot be a stronger instance of the absurd and superstitious veneration that was paid to these laws, than that the most learned writers of the times thought they could not form a perfect character, even of the blessed virgin, without making her a civilian and a canonist. Which Albertus Magnus, the renowned dominican doctor of the thirteenth century, thus proves in his _Summa de laudibus christiferae virginis (divinum magis quam humanum opus)_ _qu._ 23. §. 5. "_Item quod jura civilia, & leges, & decreta scivit in summo, probatur hoc modo: sapientia advocati manifestatur in tribus; unum, quod obtineat omnia contra judicem justum & sapientem; secundo, quod contra adversarium astutum & sagacem; tertio, quod in causa desperata: sed beatissima virgo, contra judicem sapientissimum, Dominum; contra adversarium callidissimum, dyabolum; in causa nostra desperata; sententiam optatam obtinuit._" To which an eminent franciscan, two centuries afterwards, Bernardinus de Busti (_Mariale_, _part._ 4. _serm._ 9.) very gravely subjoins this note. "_Nec videtur incongruum mulieres habere peritiam juris. Legitur enim de uxore Joannis Andreae glossatoris, quod tantam peritiam in utroque jure habuit, ut publice in scholis legere ausa sit._"]