Page images



Neglected in England. In most continental countries, a gentleman's education is deemed incomplete, unless he has attended a course of lectures upon the institutes of the emperor Justinian and the local constitutions of his native soil. This is in marked contrast with the ignorance of our own gentlemen of the laws and constitution of England.

Civil Law Studied. Some Englishmen attend foreign universities in Switzerland, Germany and Holland, and study to some extent the civil law, while neglecting the examination of the admirable system of English law, which is virtually unknown, except to members of the legal profession, though built upon the soundest foundations, and approved by the experience of ages. Englishmen should not carry their veneration of the civil law so far, as to sacrifice our Alfred and Edward to the names of Theodosius and Justinian. We should not prefer the edict of the praetor, or the rescript of the Roman emperor to our own immemorial customs, or the sanctions of an English parliament, unless we can also prefer the despotic monarchy of ancient Rome and Byzantium to the free constitution of Britain.

Requisite for Liberal Education. A competent knowledge of the laws of one's country is the proper accomplishment of every gentleman and scholar, and is almost an essential part of a liberal education. In the days of Cicero, the boys at Rome were obliged to learn the twelve tables by heart, and thus acquire an early knowledge of the laws and constitution of their country.

Utility of its Study. We shall demonstrate the utility of some acquaintance with the municipal law of the land, by specifying its particular uses in all prominent situations in life.

Civil Liberty. Notice the singular frame and polity of the land governed by this system of laws, a land, in which polit

1 Delivered before the students of Oxford University, in 1758, by Sir William Blackstone, Vinerian professor.

[ocr errors][ocr errors][ocr errors][merged small][merged small]
[ocr errors]

ical and civil liberty are the very end and scope of the constitution. This liberty consists in doing whatever the laws permit, effected by a general conformity to those equitable rules of action, by which the humblest individual is protected from the oppression of the greatest.

Leading Principles of Law. Every man should be conversant with such laws as immediately concern him, in order to know the obligations imposed upon him. Persons of ability and leisure are inexcusable for being ignorant of the law. A man possessing landed property, with all its long train of descents and conveyances, settlements, entails and encumbrances, should certainly understand a few leading principles, the knowledge of which may preserve him from the practice of gross imposition upon him by his agents.

Drafting of Wills. So as to the language, form and attestation of wills, an ignorance thereof might prore most serious, where choice or necessity resulted in a party's drawing his own testament. Much litigation often results from the absence of certain formal expressions, or the existence of enigmatical sentences, rendering the intent of the testator obscure.

Capacity of Jurors. All men of property are liable to be drawn as jurors, to establish the rights, estimate the injuries, weigh the accusations and occasionally to dispose of the lives of others. In this capacity, questions of nice importance come before them, the solution of which requires some legal skill, especially where law and fact are blended. The general incapacity of juries has unavoidably thrown more power into the hands of the judges to direct, control and even reverse their verdicts, than the constitution intended.

Magistrates. Many gentlemen of fortune are called upon to act as magistrates, and determine questions of right, as well as to distribute justice. Such officials should not only have the will and power, but also the knowledge requisite to administer the law.

House of Commons. Our country gentlemen of position often enter parliament. By virtue of their office, they become the guardians of the constitution, the makers, repealers and interpreters of the English laws, delegated to watch, to check, and to avert every dangerous innovation. It is their province to propose and adopt solid improvements, and to transmit to posterity the constitution and laws, amended if necessary, but with




out derogation. How unbecoming for a legislator to vote for a new law, when utterly ignorant of the old one! It would appear, that every man of fortune thinks himself a legislator, and that the course of reading requisite in the learned professions is unnecessary in his case. Inconsiderate alterations in our laws have occasioned great mischief, and were probably due to the defective legal education of our legislators. Almost all the perplexing questions, the niceties, intricacies and delays, which have disgraced the courts of justice, owe their origin not to the common law itself, but to innovations that have been made by acts of parliament.

House of Lords. This class is composed of the hereditary counsellors of the crown, and judges upon their honor of the lives of their brother peers; and they are also arbitrers of the property of their fellow subjects, as a tribunal of last resort. In their judicial capacity they decide the nicest and most critical points of the law, and examine and correct errors, that have escaped the attention of the sages of the profession. Their sentence is final, decisive, irrevocable; no appeal, no correction, not even a review can be had, and to their determination all inferior courts must conform. As their power is great, so is their responsibility. If they judge wrongly, they do an alarming injury, which is without possible redress.

Other Learned Professions. The clergy in particular should have a knowledge of the law. There are branches of the law in which they have a peculiar interest, and with which they should familiarize themselves by acquaintance with some learned writers. Possibly it may not be essential for physicians to study law, except in their pursuit of general knowledge, or as to the formal execution of wills.1

Civil and Canon Laws. The civil and canon laws, considered with respect to any intrinsic obligation, have no force or authority in England. They have no more binding effect here than our laws have elsewhere. But as far as these foreign laws have in some particular cases, and in some particular courts, been recognized by our laws, so far their weight goes and no further. In all points in which the different systems depart from

1 Since Blackstone's time, medical jurisprudence has become an important branch of law, and the testimony of medical experts is frequently given in courts of justice.

[ocr errors]

each other, the law of the land takes precedence of the law of Rome, whether ancient or modern, imperial or pontifical. Hence every judge should 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 so intermixed and blended, as to form certain supplemental parts of the common law of England, distinguished by the titles of the king's maritime, military and ecclesiastical laws.

The Common Law. Its History. The ancient collection of unwritten maxims and customs called the common law, had subsisted immemorially in this kingdom, and though somewhat impaired by the violence of the times, had in great measure weathered the rude shock of the Norman conquest. The people were attached to it, because its decisions were universally known, and were excellently adapted to the genius of the English nation. In the knowledge of this law consisted much of the learning of the dark ages. It was then taught in the monasteries, in the universities, and in the families of the principal nobility. The clergy of that day, like their predecessors, the British druids, were proficient in the study of the law. Among the Normans, the judges were usually created out of the sacred order, and all the inferior offices were supplied by the lower clergy, whence their successors to this day are termed clerks.

Norman Clergy. The common law, not being committed to writing, but only handed down by tradition, use and experience, was not relished by the foreign clergy, who had crowded here in the reign of William the Conqueror and his two sons, and were utter strangers to our constitution and our language. An accident nearly completed its ruin.

Study of Civil Law Revived. A copy of Justinian's pandects being newly discovered at Amalfi, Italy, in 1135 A. D., soon brought the civil law into vogue over the west of Europe, where before it had become obsolete, and in a manner forgotten. This now became the favorite of the 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, especially at Bologna; and many nations recovering from the convulsions consequent upon the overthrow of the Roman empire, adopted the civil law as the basis of their several constitutions, blending it with their own feudal customs.





Introduction in England. Theobald, a Norman abbot, elected to the see of Canterbury, and extremely addicted to the new study, brought over with him many proficients therein, among them Roger, surnamed Vacarius, whom he placed in the Oxford University to teach it to the people. But it was not well received in England, where a mild system of laws had long been established, and though the clergy adopted it with eagerness, yet the laity, who were more interested in preserving the old constitution, continued wedded to the use of the common law. King Stephen issued a proclamation, forbidding the study of the civil law, which order the clergy treated as a piece of impiety, and ignored, by teaching that law in their schools.

Antagonism and Parties. From this time, the nation was divided into two parties. On the one side was the clergy, mainly foreigners, who studied only the civil and canon laws, which now became interwoven; on the other, the nobility and laity, who adhered with equal pertinacity to the old common law. Much jealousy and ill-feeling ensued.

Withdrawal of the Clergy. The clergy, unable to extirpate the municipal law, withdrew themselves by degrees from the temporal courts, and in the reign of Henry III were forbidden by their episcopal constitutions to appear as advocates. Nor did they long continue to act as judges, objecting to the oath of office, that they should in all things determine according to the law and custom of the realm, though they still retained the high office of chancellor, an office then of little judicial power. As its business increased, they modelled the process of the court at their discretion.

Opposition to Common Law. Wherever they retired, the clergy carried with them the same zeal to introduce the rules of the civil, in exclusion of the municipal law. This appears from the spiritual courts, from the chancellor's courts in both the universities, and from the high court of chancery; in all which the proceedings are to this day much conformed to the civil law. The probable reason for this, is that these courts were all under the direction of the ecclesiastics, among whom it was a point of religion to exclude the municipal law, Innocent IV having forbidden the very reading of it by the clergy, because its decisions were not founded upon the imperial constitutions, but on the customs of the laity. In those days, the Roman laws

« PreviousContinue »