of the learned profeffions. The clergy in particular, befides the common obligations they are under in proportion to their rank and fortune, have alfo abundant reafon, confidered [14] merely as clergymen, to be acquainted with many branches of the law, which are almoft peculiar and appropriated to themselves alone. Such are the laws relating to advowfons, inftitutions, 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 ftatutes. To understand these aright, to difcern what is warranted or enjoined, and what is forbidden by law, demands a fort of legal apprehenfion; which is no otherwise to be acquired, than by use and a familiar acquaintance with legal writers. 1 FOR the gentlemen of the faculty of phyfic, I must frankown that I fee no special reason, why they in particular fhould 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 profeffion, beyond others, has remarkably deserved. They will give me leave however to fuggeft, 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 laft wills and teftaments, at leaft fo far as relates to the formal part of their execution. Bur those gentlemen who intend to profefs the civil and ecclefiaftical laws, in the fpiritual and maritime courts of this kingdom, are of all men (next to common lawyers) the most indispensably obliged to apply themfelves feriously to the study of our municipal laws. For the civil and canon laws, confidered with refpect 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 thefe foreign laws, on account of fome pecu liar 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. In which we are not fingular in our notions: for even in Hol- [ 15 ] land, where the imperial law is much cultivated and its de cifions pretty generally followed, we are informed by Van Leeuwen, that " it receives its force from cuftom 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 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 thofe of our English courts where in 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 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 of Juftinian or Gregory, or is conformable to the decrees of the Rota or imperial chamber. For which reafon it becomes highly neceffary for every civilian and canonift, that would act with safety as a judge, or with prudence and reputation as an advocate, to know in what cafes and how far the English laws have given fanction to the Roman; in what points the latter are rejected; and where they are both fo intermixed and blended together as to form certain fupplemental parts of the common law of England, distinguished by the titles of the king's maritime, the king's military, and the king's eccle♦ Dedicatio corporis juris civilis. Edit. Fletam. 5 Rep. Caudrey's cafe. 2 Ink. 1663. $99. Hale Hift. C. L. c. z. Selden in fiaftical [ 16 ] INTROD. fiaftical law. The propriety of which inquiry the university of Oxford has for more than a century fo thoroughly feen, that in her ftatutes' fhe appoints, that one of the three queftions to be annually difcuffed at the act by the jurist-inceptors fhall relate to the common law; fubjoining this reason, "quia juris civilis ftudiofos decet haud imperitos effe juris muni"cipalis, et differentias exteri patriique juris notas habere." And the ftatutes m of the univerfity of Cambridge fpeak ex. prefsly to the fame effect. FROM the general use and neceffity of fome acquaintance with the common law, the inference were extremely easy with regard to the propriety of the prefent inftitution, in a place to which gentlemen of all ranks and degrees refort, as the fountain of all ufeful knowledge. But how it has come to pafs that a design of this fort has never before taken place in the univerfity, and the reafon why the study of our laws has in general fallen into difufe, I fhall previously proceed to inquire. n SIR John Fortescue, in his panegyric on the laws of England, (which was written in the reign of Henry the fixth) puts 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 fo good, “fo fruitful, and fo commodious, are not taught in the uni"versities, as the civil and canon laws are ?" In answer to which he gives what feems, with due deference be it spoken, a very jejune and unfatisfactory reafon; being in short, that "C as the proceedings at common law were in his time car"ried on in three different tongues, the English, the Latin, " and the French, that fcience must be neceffarily taught "in thofe three feveral languages; but that in the univerfi"ties all sciences were taught in the Latin tongue only;" and therefore he concludes, " that they could not be conve "niently taught or studied in our univerfities." But without attempting to examine seriously the validity of this reafon, (the very fhadow of which by the wifdom of your late constitutions is entirely taken away,) we perhaps may find out a better, or at least a more plaufible account, why the study of the municipal laws has been banished from these feats of science, than what the learned chancellor thought it prudent to give to his royal pupil. THAT antient collection of unwritten raaxims and cuf- [ 17 ] toms, which is called the common law, however compounded or from whatever fountains derived, had fubfifted imme→ morially in this kingdom; and, though somewhat altered and impaired by the violence of the times, had in great measure weathered the rude fhock of the Norman conqueft. This had endeared it to the people in general, as well because it's decisions were univerfally known, as because it was found to be excellently adapted to the genius of the English nation. In the knowlege of this law confifted great part of the learning of thofe dark ages; it was then taught, fays Mr. Selden P, in the monafteries, in the univerfities, and in the families of the principal nobility. The clergy in particular, as they then engroffed almost every other branch of learning, fo (like their predeceffors the British Druids ) they were peculiarly remarkable for their proficiency in the study of the law. Nullus clericus nifi caufidicus, is the character given of them foon after the conqueft by William of Malmsbury. The judges therefore were ufually created out of the facred order, as was likewise the case among the Normans'; and all the inferior offices were fupplied by the lower clergy, which has occafioned their fucceffors to be denominated clerks to this day. X W BUT the common law of England, being not committed to writing, but only handed down by tradition, ufe, and experience, was not fo heartily relifhed by the foreign clergy; who came over hither in fhoals during the reign of the conqueror and his two fons, and were utter ftrangers to our conftitution as well as our language. And an accident, which foon after happened, had nearly completed it's ruin. A copy of Juftinian's pandects, being newly" difcovered at [18] Amalfi, foon brought the civil law into vogue all over the weft of Europe, where before it was quite laid afide w and in a manner forgotten; though fome traces of it's authority remained in Italy and the eaftern provinces of the empire. 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 feveral univerfities abroad, particularly that of Bologna; where exercises were performed, lectures read, and degrees conferred in this faculty, as in other branches of fcience: and many nations on the continent, juft then beginning to recover from the convulfions confequent upon the overthrow of the Roman empire, and fettling by degrees into peaceable forms of government, adopted the civil law, (being the beft written fyftem then extant,) as the bafis of their feveral constitutions; blending and interweaving it among their own feodal cuftoms, in fome 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 fee of Canterbury, and extremely addicted to this new study, brought over with him in his retinue many learned proficients therein; and among the rest Roger firnamed Vacarius, whom he placed in the university of Oxford, to teach it to the people of this country. But it did circ. A. D. 1130. w LL. Wifigoth. z. 1. 9. x Capitular. Hludov. Pii. 4. 102. Epiftol. Innocent. IV. in M. Paris ad a A. D. 1138. b Gervaf. Dorobern. At, Pontif. Cantuar. cel. 1665. |