"common law was before the making of any act of parlia "ment concerning that matter, as alfo how far forth former "statutes had provided remedy for former mifchiefs, and "defects difcovered by experience; then fhould very few queftions in law arife, and the learned fhould not fo often [11] "and fo much perplex their heads to make atonement and peace, by conftruction of law, between infenfible and dif"agreeing words, fentences, and provifoes, as they now do.” And if this inconvenience was fo heavily felt in the reign of queen Elizabeth, you may judge how the evil is increafed in later times, when the ftatute book is fwelled to ten times a larger bulk; unless it should be found, that the penners of our modern ftatutes have proportionably better informed themselves in the knowledge of the common law.

WHAT is faid of our gentlemen in general, and the propriety of their application to the study of the laws of their country, will hold equally ftrong or ftill ftronger with regard to the nobility of this realm, except only in the article of ferving upon juries. But, inftead of this, they have several peculiar provinces of far greater confequence and concern; being not only by birth hereditary counsellors of the crown, and judges upon their honour of the lives of their brotherpeers, but also arbiters of the property of all their fellowfubjects, and that in the laft refort. In this their judicial capacity they are bound to decide the nicest and most critical points of the law: to examine and correct fuch errors as have escaped the most experienced fages of the profession, the lord keeper and the judges of the courts at Westminster. Their fentence is final, decifive, irrevocable; no appeal, no correction, not even a review can be had: and to their determination, whatever it be, the inferior courts of juftice must conform; otherwife the rule of property would no longer be uniform and steady.

SHOULD a judge in the moft fubordinate jurifdiction be deficient in the knowledge of the law, it would reflect infinite contempt upon himself, and difgrace upon thofe who employ

I

employ him. And yet the confequence 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 ferious and affecting is the cafe of a fupe[12] rior judge, if without any fkill in the laws he will boldly venture to decide a question upon which the welfare and fubfiftence 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 poflibility of redress.

YET, vaft as this truft is, it can no where be fo properly repofed, as in the noble hands where our excellent conftitution has placed it: and therefore placed it, becaufe, from the independence of their fortune and the dignity of their ftation, they are prefumed to employ that leifure which is the confequence of both, in attaining a more extenfive knowledge of the laws than perfons of inferior rank; and because the founders of our polity relied upon that delicacy of fentiment, fo peculiar to noble birth; which, as on the one hand it will prevent either intereft or affection from interfering in queftions of right, fo on the other it will bind a peer in honour, an obligation which the law efteems equal to another's oath, to be master of those points upon which it is his birth-right to decide.

THE Roman pandects will furnish us with a piece of hiftory not unapplicable to our prefent purpose. Servius Sulpicius, a gentleman of the patrician order, and a celebrated orator, had occafion to take the opinion of Quintus Mutius Scaevola, the then oracle of the Roman law; but, for want of fome knowledge in that fcience, could not fo 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 fhame for a patrician, a nobleman, and an orator

Ff. 1. 2. 2. § 43. Turpe elle patricio, et nobili, et caufas oranti, jus in quo verfaretur ignorare.

"of

"of caufes, to be ignorant of that law in which he was fo "peculiarly concerned." This reproach made fo deep an impreffion on Sulpicius, that he immediately applied himself to the study of the law; wherein he arrived to that profi- [ 13 ] ciency, that he left behind him about an hundred and fourscore volumes of his own compiling upon the fubject; and became, in the opinion of Cicero, 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, fuftained likewife that of an excellent orator, a firm patriot, and a wife indefatigable fenator: but the inference which arifes from the story is this, that ignorance of the laws of the land hath ever been efteemed difhonourable in thofe, who are entrusted by their country to maintain, to adminifter, and to amend them.

BUT furely there is little occafion to enforce this argument any farther to perfons of rank and diftinction, if we of this place may be allowed to form a general judgment from those who are under our infpection: happy that while we lay down the rule, we can alfo produce the example. You will therefore permit your profeffor to indulge both a public and private fatisfaction, by bearing this open teftimony; that, in the infancy of thefe ftudies among us, they were favoured with the most diligent attendance, and pursued with the most unwearied application, by thofe of the no-left birth and most ample patrimony: fome of whom are still the ornaments of this feat of learning; and others at a greater diftance continue doing honour to its inftitutions, by comparing our polity and laws with thofe of other kingdoms abroad, or exerting their fenatorial abilities in the councils of the nation at home.

NOR will fome degree of legal knowledge be found in the kaft fuperfluous to perfons of inferior rank: especially those

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 reason, 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 discern 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 familar acquaintance with legal writers.

FOR the gentlemen of the faculty of phyfic, I must frankly own that I fee no fpecial reafon, 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 ufe 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.

BUT thofe 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 moft indifpenfably obliged to apply themselves feriously to the ftudy 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 decifions 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 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 fuch courts proceed according to the decifions of thofe 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 Englifh 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 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

› Dedicatio corporis juris civilis. Edit. Fletam. 5 Rep. Caudrey's cafe. 2 Inft. 1663. 599.

Hale Hift. C. L. c. 2. Selden in

faftical