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 birthright to decide.

which the

siness of

of lords is

now conducted.

Such at any rate, according to Blackstone, is the theory Mode in of the constitution. It is however, necessary to observe, judical bu that it is not now the practice of the whole body of the the house house to attend to its judicial business. This is usually transacted entirely by the lord chancellor, speakers, or other peers, who have at one time filled judicial situations. The important duty of presiding over the judicial business of the house has even been entrusted to a learned person, not one of its members. The attendance of three other lay peers during these sessions of the house, is a matter of form settled by rotation. The appellate jurisdiction of the house of lords must however be admitted to be in an unsettled and unsatisfactory state, and thus fully illustrates the justice of the foregoing strictures, and calls for alteration.

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", "that it was a shame for a patrician, a nobleman, and an orator of causes, to be ignorant of that law in which he

66

For example, Sir W. Alexander, C. B., Sir John Leach, M. R.,were appointed Deputy Speakers of the House of Lords, in the years 1826 and 1827.

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

"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 [ 13 ] to that proficiency, that he left behind him about an hundred and fourscore volumes of his own compiling upon the subject; and became, in the opinion of Cicero1, a much more complete lawyer than even Mutius Scaevola himself.

Legal knowledge also

clergy.

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 remember the number of persons of noble origin who have become famous for their legal knowledge: happy, that while we lay down the rule, we can also produce the example. Although the profession of the law has constantly received new blood and vigour from those who have fought their way up even from the lowest rank of the community, yet it should not be forgotten that its study has been also pursued with the most unwearied application, and the most distinguished success, by those of the noblest birth and of ample patrimony: some of whom are still the ornaments of the profession; and others in their different spheres continue to do honour to its institutions, by assisting the administration of justice in their neighbourhoods, or exerting their senatorial abilities in the councils of the nation at home.

Nor will some degree of legal knowledge be found in the useful to 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 [14] merely as clergymen, to be acquainted with many branches of the law, which are almost peculiar and appropriated to

i Brut. 41.

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: although this has been much simplified by the recent act for their commutation; 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.

culty.

For the gentlemen of the faculty of physic, I must frankly To the faown 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, and it may be observed, that in all cases where the sanity of a testator may be doubted, they are the most satisfactory witnesses to the will.

But those gentlemen who intend to profess the civil and To civilians. 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 authourity being wholly founded upon

J 6 & 7 Wm. 4, c. 71.

that permission and adoption. In which we are not singu[15]lar in our notions: for even in Holland, where the imperial

[ 16 ]

k

law is much cultivated and its decisions pretty generally followed, we are informed by Van Leeuwen, 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: 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.

From the general use and necessity of some acquaintance with the common law, the inference were extremely easy with regard to the propriety of some institutions, for promoting its study in places which gentlemen of all ranks and degrees resort, as the fountain of all useful knowledge. But how it

Dedicatio corporis juris civilis.

Edit. 1663.

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

Fletam. 5 Rep. Caudrey's case. 2

Inst. 599.

study of the

law has de

has come to pass that a design of this sort has never until How the lately taken place in the universities, and the reason why the common study of our laws has in general fallen into disuse, I shall clined. previously proceed to inquire.

Sir John Fortescue, in his panegyric on the laws of England, (which was written in the reign of Henry VI.) puts m 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 uni

66

66

versities, 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 hist "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 uni "versities." But without attempting to examine seriously the validity of this reason, (the very shadow of which by the wisdom of the 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.

formerly

our univer.

by the

That ancient collection of unwritten maxims and customs, [ 17 ] which is called the common law, however compounded or The comfrom whatever fountains derived, had subsisted immemorially mon law in this kingdom; and, though somewhat altered and impaired taught in by the violence of the times, had in great measure weathered sities, and the rude shock of the Norman conquest. This had endeared clergy. 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, in the

m c. 47.

n c. 48.

in Fletam. 7.7.