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, con[14] sidered 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 pecu

liar 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 [15] Holland, where the imperial law is much cultivated and its decisions pretty generally followed, we are informed by Van Leeuweni, 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 eccle

i Dedicatio corporis juris civilis. Edit. 1663. k Hale Hist, C. L. c. 2. Selden in Fletam.

5 Rep. Caudrey's case. 2 Inst. 599.

siastical 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 [16] reason, 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.

66

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 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"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 his time car"ried 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 universi"ties all sciences were taught in the Latin tongue only;" and therefore he concludes, "that they could not be conve

1 Tit. VII. sec. 2. sec. 2.

m Doctor legum mox a doctoratu dabit operam legibus Angliae, ut non sit imperitus earum legum quas habet sua patria, et diffe

rentias exteri patriique juris noscat. Stat. Eliz. R. c. 14. Cowel. Institut. in proemio, o c. 46.

n c. 47.

"niently 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 [17] 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 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 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 9) 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'. The judges therefore were usually created out of the sacred orders, as was likewise the case among the Normans; and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated clerks to this day.

p In Fletam. 7. 7.

q Cæsar de bello Gal. 6, 12,

r de gest. reg. 1. 4.

s Dugdale Orig. jurid. c. 8.

t Les juges sont sages personnes et autenti. ques,-sicome les archevesques, evesques, les

chanoines des eglises cathedraulx,et les autres personnes qui ont dignitez in sainete eglise; les abbez, les prieurs conventaulx, et les gouverneurs des eglises, etc. Grand Cous. tumier, c. 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 its ruin. A copy of Justinian's pandects, being newly discovered at [18] Amalfi, soon brought the civil law into vogue all over the west of Europe, where before it was quite laid aside and in a manner forgotten; though some traces of its authority remained in Italy and the eastern provinces of the empirey. This now became in a particular manner the favourite of the popish clergy, who borrowed the method and many of the maxims of the 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 govern ment, 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 Canterburya, and extremely addicted to this new study, brought over with him in his retinue many learned proficients therein; and among the rest Roger sir

u circ. A, D. 1130.

w LL. Wisigoth. 2. 1. 9.

x Capitula. Hiudov. Pii. 4. 102. y Selden in Fletam. 5. 5.

z Domat's treatise of law. c. 13. sec. 9. Epistol. Innocent. IV. in M. Paris ad A. D.

1254.

a A. D. 1138.