Monday, June 30, 2008

Blackstone, ss 02

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
oracle of the Roman law; but for want of some knowlege 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[g], "that it was a shame for a patrician, a nobleman,
and an orator of causes, to be ignorant of that law in
which he 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 to that proficiency, that he left behind him about a hundred and fourscore
volumes of his own compiling upon the subject; and became, in
the opinion of Cicero[h], 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, 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 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 also produce the example. You will therefore permit your
professor to indulge both a public and private satisfaction, by
bearing this open testimony; that in the infancy of these studies
among us, they were favoured with the most diligent attendance,
and pursued with the most unwearied application, by those of the
noblest birth and most ample patrimony: some of whom are still
the ornaments of this seat of learning; and others at a greater
distance continue doing honour to it's institutions, by comparing
our polity and laws with those of other kingdoms abroad, or exerting
their senatorial abilities in the councils of the nation at

Nor will some degree of legal knowlege be found in 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 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 knowlege; 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 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 authority being
wholly founded upon that permission and adoption. In which we
are not singular in our notions; for even in Holland, where the
imperial law is much cultivated and it's decisions pretty generally
followed, we are informed by Van Leeuwen[i], that, "it receives
it's 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
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 pontificial. 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[k]: 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. The propriety of which enquiry the university of
Oxford has for more than a century so thoroughly seen, that in
her statutes[l] 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 reason, "quia juris civilis studiosos
decet haud imperitos esse juris municipalis, & differentias ex-
teri patriique juris notas habere." And the statutes[m] of the university
of Cambridge speak expressly to the same effect.

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 knowlege. 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 enquire.

Sir John Fortescue, in his panegyric on the laws of England,
(which was written in the reign of Henry the sixth) puts[n] 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 universities, as the civil and canon
laws are?" In answer to which he gives[o] 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 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 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 antient collection of unwritten maxims and 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 it's decisions 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 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[q]) 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[r]. The judges
therefore were usually created out of the sacred order[s], as was
likewise the case among the Normans[t]; and all the inferior offices
were supplied by the lower clergy, which has occasioned their
successors 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 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 it's ruin. A copy of Justinian's pandects, being
newly[u] discovered at Amalfi, soon brought the civil law into

vogue all over the west of Europe, where before it was quite
laid aside[w] and in a manner forgotten; though some traces of it's
authority remained in Italy[x] and the eastern provinces of the empire[y].
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 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
government, 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[z].

Nor was it long before the prevailing mode of the times
reached England. For Theobald, a Norman abbot, being elected
to the see of Canterbury[a], and extremely addicted to this new
study, brought over with him in his retinue many learned proficients
therein; and among the rest Roger sirnamed Vacarius,
whom he placed in the university of Oxford[b], to teach it to the
people of this country. But it did not meet with the same easy
reception in England, where a mild and rational system of laws
had been long established, as it did upon the continent; and,
though the monkish clergy (devoted to the will of a foreign primate)
received it with eagerness and zeal, yet the laity who were
more interested to preserve the old constitution, and had already
severely felt the effect of many Norman innovations, continued
wedded to the use of the common law. King Stephen immediately published a proclamation[c], forbidding the study of the
laws, then newly imported from Italy; which was treated by the
monks[d] as a piece of impiety, and, though it might prevent the
introduction of the civil law process into our courts of justice,
yet did not hinder the clergy from reading and teaching it in
their own schools and monasteries.

From this time the nation seems to have been divided into
two parties; the bishops and clergy, many of them foreigners,
who applied themselves wholly to the study of the civil and canon
laws, which now came to be inseparably interwoven with
each other; and the nobility and laity, who adhered with equal
pertinacity to the old common law; both of them reciprocally
jealous of what they were unacquainted with, and neither of
them perhaps allowing the opposite system that real merit which
is abundantly to be found in each. This appears on the one
hand from the spleen with which the monastic writers[e] speak of
our municipal laws upon all occasions; and, on the other, from
the firm temper which the nobility shewed at the famous parliament
of Merton; when the prelates endeavoured to procure an
act, to declare all bastards legitimate in case the parents intermarried
at any time afterwards; alleging this only reason, because
holy church (that is, the canon law) declared such children legitimate:
but "all the earls and barons[**"] (says the parliament roll[f])
[**"]with one voice answered, that they would not change the laws
of England, which had hitherto been used and approved."
And we find the same jealousy prevailing above a century afterwards[g],
when the nobility declared with a kind of prophetic
spirit, "that the realm of England hath never been unto this
hour, neither by the consent of our lord the king and the lords
of parliament shall it ever be, ruled or governed by the civil
law[h]." And of this temper between the clergy and laity many
more instances might be given.

While things were in this situation, the clergy, finding it
impossible to root out the municipal law, began to withdraw
themselves by degrees from the temporal courts; and to that end,
very early in the reign of king Henry the third, episcopal constitutions
were published[i], forbidding all ecclesiastics to appear as
advocates in foro saeculari; nor did they long continue to act as
judges there, nor caring to take the oath of office which was
then found necessary to be administred, that they should in all
things determine according to the law and custom of this realm[k];
though they still kept possession of the high office of chancellor,
an office then of little juridical power; and afterwards, as it's
business increased by degrees, they modelled the process of the
court at their own discretion.

But wherever they retired, and wherever their authority extended,
they carried with them the same zeal to introduce the
rules of the civil, in exclusion of the municipal law. This appears
in a particular manner from the spiritual courts of all denominations,
from the chancellor's courts in both our universities,
and from the high court of chancery before-mentioned; in all of
which the proceedings are to this day in a course much conformed
to the civil law: for which no tolerable reason can be assigned,
unless that these courts were all under the immediate direction of
the popish ecclesiastics, among whom it was a point of religion
to exclude the municipal law; pope Innocent the fourth having[l]
forbidden the very reading of it by the clergy, because it's decisions
were not founded on the imperial constitutions, but merely
on the customs of the laity. And if it be considered, that our
universities began about that period to receive their present form
of scholastic discipline; that they were then, and continued to
be till the time of the reformation, entirely under the influence
of the popish clergy; (sir John Mason the first protestant, being
also the first lay, chancellor of Oxford) this will lead us to perceive
the reason, why the study of the Roman laws was in those
days of bigotry[m] pursued with such alacrity in these seats of learning;
and why the common law was entirely despised, and esteemed
little better than heretical.

And, since the reformation, many causes have conspired to
prevent it's becoming a part of academical education. As, first,
long usage and established custom; which, as in every thing else,
so especially in the forms of scholastic exercise, have justly great
weight and authority. Secondly, the real intrinsic merit of the
civil law, considered upon the footing of reason and not of obligation,
which was well known to the instructors of our youth;
and their total ignorance of the merit of the common law, though
it's equal at least, and perhaps an improvement on the other.
But the principal reason of all, that has hindered the introduction
of this branch of learning, is, that the study of the common
law, being banished from hence in the times of popery, has
fallen into a quite different chanel, and has hitherto been wholly
cultivated in another place. But as this long usage and established
custom, of ignorance in the laws of the land, begin now to be
thought unreasonable; and as by this means the merit of those
laws will probably be more generally known; we may hope that
the method of studying them will soon revert to it's antient course,
and the foundations at least of that science will be laid in the
two universities; without being exclusively confined to the chanel
which it fell into at the times I have been just describing.

For, being then entirely abandoned by the clergy, a few
stragglers excepted, the study and practice of it devolved of
course into the hands of laymen; who entertained upon their
parts a most hearty aversion to the civil law[n], and made no
scruple to profess their contempt, nay even their ignorance[o] of
it, in the most public manner. But still, as the ballance of learning
was greatly on the side of the clergy, and as the common
law was no longer taught, as formerly, in any part of the kingdom,
it must have been subjected to many inconveniences, and
perhaps would have been gradually lost and overrun by the civil,
(a suspicion well justified from the frequent transcipts of Justinian
to be met with in Bracton and Fleta) had it not been for a
peculiar incident, which happened at a very critical time, and
contributed greatly to it's support.