proficiency, that he left behind him about an hundred and fourfcore volumes of his own compiling upon the subject; 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 likewise that of an excellent orator, a firm patriot, and a wife indefatigable fenator: but the inference which arifes from the ftory 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 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 inspection: 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 these studies among us, they were favoured with the most diligent attendance, and pursued with the moft unwearied application, by those of the noblest 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 it's inftitutions, by comparing our polity and laws with those of other kingdoms abroad, or exerting their fenatorial abilities in the councils of the nation at home.

NOR will fome degree of legal knowlege be found in the leaft fuperfluous to perfons of inferior rank: especially those of the learned profeffions. The clergy in particular, besides ¦ the common obligations they are under in proportion to their rank and fortune, have alfo abundant reafon, confidered

merely as clergymen, to be acquainted with many branches of the law, which are almoft peculiar and appropriated to themfelves 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 efpecially of late) and to a variety of other fubjects, which are configned 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 fort of legal apprehenfion; which is no otherwife to be acquired, than by use and a familiar acquaintance with legal writers.

FOR the gentlemen of the faculty of phyfic, 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 profeffion, beyond others, has remarkably deferved. 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 physician were acquainted with the doctrine of laft wills and teftaments, at least so far as relates to the formal part of their execution.

BUT thofe gentlemen who intend to profess 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 themselves seriously 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 these foreign laws, on account of some peculiar propriety, have in fome particular cases, and in some 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

13

notions:

:

notions: for even in Holland, where the imperial law is much cultivated and it's decifions pretty generally followed, we are informed by Van Leeuwen', that "it receives it's force from "custom and the confent of the people, either tacitly or expressly given for otherwife, 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 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 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 i 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 Justinian or Gregory, or is conformable to the decrees of the Rota or imperial chamber. For which reason it becomes highly neceffary for every civilian and canonist, that would act with fafety 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 so 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 ecclefiaftical law. The propriety of which inquiry the univerfity of Oxford has for more than a century fo thoroughly feen, that in her statutes1 she appoints, that one of the three questions to be annually difcuffed at the act by the jurist-inceptors fhall relate to the common law; subjoining this reafon, "quia juris civilis ftudiofos decet haud imperitos effe i Dedicatio corporis juris civilis. Edit. Fitam. 5 Rep. Caudrey's cafe. 2 Inst. 1663. 599.

Tit. VII. Sect. 2. §. 2.

"juris municipalis, et differentias exteri patriique juris notas "habere." And the ftatutes of the univerfity of Cambridge speak exprefsly to the fame effect.

FROM the general use and neceffity of fome acquaintance with the common law, the inference were extremely eafy with regard to the propriety of the present institution, in a place to which gentlemen of all ranks and degrees refort, as the fountain of all useful knowlege. But how it has come to pass that a defign of this fort has never before taken place in the univerfity, and the reason why the ftudy 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 so good, fo "fruitful, and so commodious, are not taught in the univer"fities, 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 fhort, 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 "feveral languages; but that in the univerfities all sciences "were taught in the Latin tongue only;" and therefore he concludes, "that they could not be conveniently taught or "studied in our univerfities." But without attempting to examine seriously the validity of this reason, (the very shadow of which by the wisdom of your late conftitutions 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 thefe feats of science, than what the learned chancellor thought it prudent to give to his royal pupil.

m Doctor legum mox a doɛtoratu dabit operam legibus Angliæ, ut non fit imperitus carum legum quas babet sua patria, et dif

ferentias exteri patriique juris nofcat. Stat. Eliz.R.c. 14. Cowel. Inftitut. in proëmio. • c. 48.

n c.47.

THAT

THAT antient collection of unwritten maxims and customs, which is called the common law, however compounded or from whatever fountains derived, had subfifted 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 conqueft. This had endeared it to the people in general, as well because it's decifions 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 confifted great part of the learning of those dark ages; it was then taught, fays Mr. Selden, in the monafteries, in the universities, and in the families of the principal nobility. The clergy in particular, as they then engroffed almost every other branch of learning, so (like their predeceffors the British Druids 1) 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 usually created out of the sacred orders, as was likewise the cafe among the Normans; and all the inferior offices were supplied by the lower clergy, which has occafioned their fucceffors to be denominated clerks to this day.

BUT the common law of England, being not committed to writing, but only handed down by tradition, use, and experience, was not fo heartily relished by the foreign clergy; who came over hither in shoals 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 pan dects, being newly" discovered at Amalfi,