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[Transcriber's Note: Sir William Blackstone's _Commentaries on the
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number of archaic spellings (including "goaler" for "gaoler" and
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beginning of each line of a quotation has also been modernized to
quotation marks only at the beginning and end of the quotation.]
COMMENTARIES
ON THE
LAWS
OF
ENGLAND.
BOOK THE FIRST.
BY
WILLIAM BLACKSTONE, ESQ.
VINERIAN PROFESSOR OF LAW,
AND
SOLICITOR GENERAL TO HER MAJESTY.
OXFORD,
PRINTED AT THE CLARENDON PRESS.
M. DCC. LXV.
TO
THE QUEEN'S MOST EXCELLENT MAJESTY,
THE FOLLOWING VIEW
OF THE LAWS AND CONSTITUTION
OF ENGLAND,
THE IMPROVEMENT AND PROTECTION OF WHICH
HAVE DISTINGUISHED THE REIGN
OF HER MAJESTY'S ROYAL CONSORT,
IS,
WITH ALL GRATITUDE AND HUMILITY,
MOST RESPECTFULLY INSCRIBED
BY HER DUTIFUL
AND MOST OBEDIENT
SERVANT,
WILLIAM BLACKSTONE.
PREFACE.
_THE following sheets contain the substance of a course of lectures on
the laws of England, which were read by the author in the university
of OXFORD. His original plan took it's rise in the year 1753: and,
notwithstanding the novelty of such an attempt in this age and
country, and the prejudices usually conceived against any innovations
in the established mode of education, he had the satisfaction to find
(and he acknowleges it with a mixture of pride and gratitude) that his
endeavours were encouraged and patronized by those, both in the
university and out of it, whose good opinion and esteem he was
principally desirous to obtain._
_THE death of Mr VINER in 1756, and his ample benefaction to the
university for promoting the study of the law, produced about two
years afterwards a regular and public establishment of what the author
had privately undertaken. The knowlege of our laws and constitution
was adopted as a liberal science by general academical authority;
competent endowments were decreed for the support of a lecturer, and
the perpetual encouragement of students; and the compiler of the
ensuing commentaries had the honour to be elected the first Vinerian
professor._
_IN this situation he was led, both by duty and inclination, to
investigate the elements of the law, and the grounds of our civil
polity, with greater assiduity and attention than many have thought it
necessary to do. And yet all, who of late years have attended the
public administration of justice, must be sensible that a masterly
acquaintance with the general spirit of laws and the principles of
universal jurisprudence, combined with an accurate knowlege of our own
municipal constitutions, their original, reason, and history, hath
given a beauty and energy to many modern judicial decisions, with
which our ancestors were wholly unacquainted. If, in the pursuit of
these inquiries, the author hath been able to rectify any errors which
either himself or others may have heretofore imbibed, his pains will
be sufficiently answered: and, if in some points he is still mistaken,
the candid and judicious reader will make due allowances for the
difficulties of a search so new, so extensive, and so laborious._
_THE labour indeed of these researches, and of a regular attention to
his duty, for a series of so many years, he hath found inconsistent
with his health, as well as his other avocations: and hath therefore
desired the university's permission to retire from his office, after
the conclusion of the annual course in which he is at present engaged.
But the hints, which he had collected for the use of his pupils,
having been thought by some of his more experienced friends not wholly
unworthy of the public eye, it is therefore with the less reluctance
that he now commits them to the press: though probably the little
degree of reputation, which their author may have acquired by the
candor of an audience (a test widely different from that of a
deliberate perusal) would have been better consulted by a total
suppression of his lectures;----had that been a matter intirely within
his power._
_FOR the truth is, that the present publication is as much the effect
of necessity, as it is of choice. The notes which were taken by his
hearers, have by some of them (too partial in his favour) been thought
worth revising and transcribing; and these transcripts have been
frequently lent to others. Hence copies have been multiplied, in their
nature imperfect, if not erroneous; some of which have fallen into
mercenary hands, and become the object of clandestine sale. Having
therefore so much reason to apprehend a surreptitious impression, he
chose rather to submit his own errors to the world, than to seem
answerable for those of other men. And, with this apology, he commits
himself to the indulgence of the public._
ERRATA.
_Page 138, line 15_: _for_ no _read_ an
_Page 147, (notes) col. 2._ _after_ 1 Sid. 1. _add_ See Stat. 13 Car.
II. c. 7.
_Page 224, line 14_: _after_ sit _add_ at
_Page 376, line 6_: _for_ predial _read_ rectorial
CONTENTS.
INTRODUCTION.
SECT. I.
_On the_ STUDY _of the_ LAW. Page 3.
SECT. II.
_Of the_ NATURE _of_ LAWS _in general_. 38.
SECT. III.
_Of the_ LAWS _of_ ENGLAND. 63.
SECT. IV.
_Of the_ COUNTRIES _subject to the_ LAWS _of_ ENGLAND. 93.
BOOK I.
_Of the_ RIGHTS _of_ PERSONS.
CHAP. I.
_Of the absolute_ RIGHTS _of_ INDIVIDUALS. 117.
CHAP. II.
_Of the_ PARLIAMENT. 142.
CHAP. III.
_Of the_ KING, _and his_ TITLE. 183.
CHAP. IV.
_Of the_ KING'S _royal_ FAMILY. 212.
CHAP. V.
_Of the_ COUNCILS _belonging to the_ KING. 220.
CHAP. VI.
_Of the_ KING'S DUTIES. 226.
CHAP. VII.
_Of the_ KING'S PREROGATIVE. 230.
CHAP. VIII.
_Of the_ KING'S REVENUE. 271.
CHAP. IX.
_Of subordinate_ MAGISTRATES. 327.
CHAP. X.
_Of the_ PEOPLE, _whether_ ALIENS, DENIZENS, _or_ NATIVES. 354.
CHAP. XI.
_Of the_ CLERGY. 364.
CHAP. XII.
_Of the_ CIVIL STATE. 384.
CHAP. XIII.
_Of the_ MILITARY _and_ MARITIME STATES. 395.
CHAP. XIV.
_Of_ MASTER _and_ SERVANT. 410.
CHAP. XV.
_Of_ HUSBAND _and_ WIFE. 421.
CHAP. XVI.
_Of_ PARENT _and_ CHILD. 434.
CHAP. XVII.
_Of_ GUARDIAN _and_ WARD. 448.
CHAP. XVIII.
_Of_ CORPORATIONS. 455.
COMMENTARIES
ON THE
LAWS OF ENGLAND.
INTRODUCTION.
SECTION THE FIRST.
ON THE STUDY OF THE LAW.[A]
[Footnote A: Read in Oxford at the opening of the Vinerian lectures;
25 Oct. 1758.]
MR VICE-CHANCELLOR, AND GENTLEMEN OF THE UNIVERSITY,
THE general expectation of so numerous and respectable an audience,
the novelty, and (I may add) the importance of the duty required from
this chair, must unavoidably be productive of great diffidence and
apprehensions in him who has the honour to be placed in it. He must be
sensible how much will depend upon his conduct in the infancy of a
study, which is now first adopted by public academical authority;
which has generally been reputed (however unjustly) of a dry and
unfruitful nature; and of which the theoretical, elementary parts have
hitherto received a very moderate share of cultivation. He cannot but
reflect that, if either his plan of instruction be crude and
injudicious, or the execution of it lame and superficial, it will cast
a damp upon the farther progress of this most useful and most rational
branch of learning; and may defeat for a time the public-spirited
design of our wise and munificent benefactor. And this he must more
especially dread, when he feels by experience how unequal his
abilities are (unassisted by preceding examples) to complete, in the
manner he could wish, so extensive and arduous a task; since he freely
confesses, that his former more private attempts have fallen very
short of his own ideas of perfection. And yet the candour he has
already experienced, and this last transcendent mark of regard, his
present nomination by the free and unanimous suffrage of a great and
learned university, (an honour to be ever remembered with the deepest
and most affectionate gratitude) these testimonies of your public
judgment must entirely supersede his own, and forbid him to believe
himself totally insufficient for the labour at least of this
employment. One thing he will venture to hope for, and it certainly
shall be his constant aim, by diligence and attention to atone for his
other defects; esteeming, that the best return, which he can possibly
make for your favourable opinion of his capacity, will be his
unwearied endeavours in some little degree to deserve it.
THE science thus committed to his charge, to be cultivated,
methodized, and explained in a course of academical lectures, is that
of the laws and constitution of our own country: a species of
knowlege, in which the gentlemen of England have been more remarkably
deficient than those of all Europe besides. In most of the nations on
the continent, where the civil or imperial law under different
modifications is closely interwoven with the municipal laws of the
land, no gentleman, or at least no scholar, thinks his education is
completed, till he has attended a course or two of lectures, both upon
the institutes of Justinian and the local constitutions of his native
soil, under the very eminent professors that abound in their several
universities. And in the northern parts of our own island, where also
the municipal laws are frequently connected with the civil, it is
difficult to meet with a person of liberal education, who is destitute
of a competent knowlege in that science, which is to be the guardian
of his natural rights and the rule of his civil conduct.
NOR have the imperial laws been totally neglected even in the English
nation. A general acquaintance with their decisions has ever been
deservedly considered as no small accomplishment of a gentleman; and a
fashion has prevailed, especially of late, to transport the growing
hopes of this island to foreign universities, in Switzerland, Germany,
and Holland; which, though infinitely inferior to our own in every
other consideration, have been looked upon as better nurseries of the
civil, or (which is nearly the same) of their own municipal law. In
the mean time it has been the peculiar lot of our admirable system of
laws, to be neglected, and even unknown, by all but one practical
profession; though built upon the soundest foundations, and approved
by the experience of ages.
FAR be it from me to derogate from the study of the civil law,
considered (apart from any binding authority) as a collection of
written reason. No man is more thoroughly persuaded of the general
excellence of it's rules, and the usual equity of it's decisions; nor
is better convinced of it's use as well as ornament to the scholar,
the divine, the statesman, and even the common lawyer. But we must not
carry our veneration so far as to sacrifice our Alfred and Edward to
the manes of Theodosius and Justinian: we must 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 Rome and Byzantium, for
whose meridians the former were calculated, to the free constitution
of Britain, which the latter are adapted to perpetuate.
WITHOUT detracting therefore from the real merit which abounds in the
imperial law, I hope I may have leave to assert, that if an Englishman
must be ignorant of either the one or the other, he had better be a
stranger to the Roman than the English institutions. For I think it an
undeniable position, that a competent knowlege of the laws of that
society, in which we live, is the proper accomplishment of every
gentleman and scholar; an highly useful, I had almost said essential,
part of liberal and polite education. And in this I am warranted by
the example of antient Rome; where, as Cicero informs us[a], the very
boys were obliged to learn the twelve tables by heart, as a _carmen
necessarium_ or indispensable lesson, to imprint on their tender minds
an early knowlege of the laws and constitutions of their country.
[Footnote a: _De Legg._ 2. 23.]
BUT as the long and universal neglect of this study, with us in
England, seems in some degree to call in question the truth of this
evident position, it shall therefore be the business of this
introductory discourse, in the first place to demonstrate the utility
of some general acquaintance with the municipal law of the land, by
pointing out its particular uses in all considerable situations of
life. Some conjectures will then be offered with regard to the causes
of neglecting this useful study: to which will be subjoined a few
reflexions on the peculiar propriety of reviving it in our own
universities.
AND, first, to demonstrate the utility of some acquaintance with the
laws of the land, let us only reflect a moment on the singular frame
and polity of that land, which is governed by this system of laws. A
land, perhaps the only one in the universe, in which political or
civil liberty is the very end and scope of the constitution[b]. This
liberty, rightly understood, consists in the power of doing whatever
the laws permit[c]; which is only to be effected by a general
conformity of all orders and degrees to those equitable rules of
action, by which the meanest individual is protected from the insults
and oppression of the greatest. As therefore every subject is
interested in the preservation of the laws, it is incumbent upon every
man to be acquainted with those at least, with which he is immediately
concerned; lest he incur the censure, as well as inconvenience, of
living in society without knowing the obligations which it lays him
under. And thus much may suffice for persons of inferior condition,
who have neither time nor capacity to enlarge their views beyond that
contracted sphere in which they are appointed to move. But those, on
whom nature and fortune have bestowed more abilities and greater
leisure, cannot be so easily excused. These advantages are given them,
not for the benefit of themselves only, but also of the public: and
yet they cannot, in any scene of life, discharge properly their duty
either to the public or themselves, without some degree of knowlege in
the laws. To evince this the more clearly, it may not be amiss to
descend to a few particulars.
[Footnote b: Montesq. _Esp. L._ _l._ 11. _c._ 5.]
[Footnote c: _Facultas ejus, quod cuique facere libet, nisi quid vi,
aut jure prohibetur._ _Inst._ 1. 3. 1.]
LET us therefore begin with our gentlemen of independent estates and
fortune, the most useful as well as considerable body of men in the
nation; whom even to suppose ignorant in this branch of learning is
treated by Mr Locke[d] as a strange absurdity. It is their landed
property, with it's long and voluminous train of descents and
conveyances, settlements, entails, and incumbrances, that forms the
most intricate and most extensive object of legal knowlege. The
thorough comprehension of these, in all their minute distinctions, is
perhaps too laborious a task for any but a lawyer by profession: yet
still the understanding of a few leading principles, relating to
estates and conveyancing, may form some check and guard upon a
gentleman's inferior agents, and preserve him at least from very gross
and notorious imposition.
[Footnote d: Education. Sec. 187.]
AGAIN, the policy of all laws has made some forms necessary in the
wording of last wills and testaments, and more with regard to their
attestation. An ignorance in these must always be of dangerous
consequence, to such as by choice or necessity compile their own
testaments without any technical assistance. Those who have attended
the courts of justice are the best witnesses of the confusion and
distresses that are hereby occasioned in families; and of the
difficulties that arise in discerning the true meaning of the
testator, or sometimes in discovering any meaning at all: so that in
the end his estate may often be vested quite contrary to these his
enigmatical intentions, because perhaps he has omitted one or two
formal words, which are necessary to ascertain the sense with
indisputable legal precision, or has executed his will in the presence
of fewer witnesses than the law requires.
BUT to proceed from private concerns to those of a more public
consideration. All gentlemen of fortune are, in consequence of their
property, liable to be called upon to establish the rights, to
estimate the injuries, to weigh the accusations, and sometimes to
dispose of the lives of their fellow-subjects, by serving upon juries.
In this situation they are frequently to decide, and that upon their
oaths, questions of nice importance, in the solution of which some
legal skill is requisite; especially where the law and the fact, as it
often happens, are intimately blended together. And the general
incapacity, even of our best juries, to do this with any tolerable
propriety has greatly debased their authority; and has unavoidably
thrown more power into the hands of the judges, to direct, control,
and even reverse their verdicts, than perhaps the constitution
intended.
BUT it is not as a juror only that the English gentleman is called
upon to determine questions of right, and distribute justice to his
fellow-subjects: it is principally with this order of men that the
commission of the peace is filled. And here a very ample field is
opened for a gentleman to exert his talents, by maintaining good order
in his neighbourhood; by punishing the dissolute and idle; by
protecting the peaceable and industrious; and, above all, by healing
petty differences and preventing vexatious prosecutions. But, in order
to attain these desirable ends, it is necessary that the magistrate
should understand his business; and have not only the will, but the
power also, (under which must be included the knowlege) of
administring legal and effectual justice. Else, when he has mistaken
his authority, through passion, through ignorance, or absurdity, he
will be the object of contempt from his inferiors, and of censure
from those to whom he is accountable for his conduct.
YET farther; most gentlemen of considerable property, at some period
or other in their lives, are ambitious of representing their country
in parliament: and those, who are ambitious of receiving so high a
trust, would also do well to remember it's nature and importance. They
are not thus honourably distinguished from the rest of their
fellow-subjects, merely that they may privilege their persons, their
estates, or their domestics; that they may list under party banners;
may grant or with-hold supplies; may vote with or vote against a
popular or unpopular administration; but upon considerations far more
interesting and important. They are the guardians of the English
constitution; the makers, repealers, and interpreters of the English
laws; delegated to watch, to check, and to avert every dangerous
innovation, to propose, to adopt, and to cherish any solid and
well-weighed improvement; bound by every tie of nature, of honour, and
of religion, to transmit that constitution and those laws to their
posterity, amended if possible, at least without any derogation. And
how unbecoming must it appear in a member of the legislature to vote
for a new law, who is utterly ignorant of the old! what kind of
interpretation can he be enabled to give, who is a stranger to the
text upon which he comments!
INDEED it is really amazing, that there should be no other state of
life, no other occupation, art, or science, in which some method of
instruction is not looked upon as requisite, except only the science
of legislation, the noblest and most difficult of any. Apprenticeships
are held necessary to almost every art, commercial or mechanical: a
long course of reading and study must form the divine, the physician,
and the practical professor of the laws: but every man of superior
fortune thinks himself _born_ a legislator. Yet Tully was of a
different opinion: "It is necessary, says he[e], for a senator to be
thoroughly acquainted with the constitution; and this, he declares, is
a knowlege of the most extensive nature; a matter of science, of
diligence, of reflexion; without which no senator can possibly be fit
for his office."
[Footnote e: _De Legg._ 3. 18. _Est senatori necessarium nosse
rempublicam; idque late patet:--genus hoc omne scientiae, diligentiae,
memoriae est; sine quo paratus esse senator nullo pacto potest._]
THE mischiefs that have arisen to the public from inconsiderate
alterations in our laws, are too obvious to be called in question; and
how far they have been owing to the defective education of our
senators, is a point well worthy the public attention. The common law
of England has fared like other venerable edifices of antiquity, which
rash and unexperienced workmen have ventured to new-dress and refine,
with all the rage of modern improvement. Hence frequently it's
symmetry has been destroyed, it's proportions distorted, and it's
majestic simplicity exchanged for specious embellishments and
fantastic novelties. For, to say the truth, almost all the perplexed
questions, almost all the niceties, intricacies, and delays (which
have sometimes disgraced the English, as well as other, courts of
justice) owe their original not to the common law itself, but to
innovations that have been made in it by acts of parliament;
"overladen (as sir Edward Coke expresses it[f]) with provisoes and
additions, and many times on a sudden penned or corrected by men of
none or very little judgment in law." This great and well-experienced
judge declares, that in all his time he never knew two questions made
upon rights merely depending upon the common law; and warmly laments
the confusion introduced by ill-judging and unlearned legislators.
"But if, he subjoins, acts of parliament were after the old fashion
penned, by such only as perfectly knew what the common law was before
the making of any act of parliament concerning that matter, as also
how far forth former statutes had provided remedy for former
mischiefs, and defects discovered by experience; then should very few
questions in law arise, and the learned should not so often and so
much perplex their heads to make atonement and peace, by construction
of law, between insensible and disagreeing words, sentences, and
provisoes, as they now do." And if this inconvenience was so heavily
felt in the reign of queen Elizabeth, you may judge how the evil is
increased in later times, when the statute book is swelled to ten
times a larger bulk; unless it should be found, that the penners of
our modern statutes have proportionably better informed themselves in
the knowlege of the common law.
[Footnote f: 2 Rep. Pref.]
WHAT is said of our gentlemen in general, and the propriety of their
application to the study of the laws of their country, will hold
equally strong or still stronger with regard to the nobility of this
realm, except only in the article of serving upon juries. But, instead
of this, they have several peculiar provinces of far greater
consequence and concern; being not only by birth hereditary
counsellors of the crown, and judges upon their honour of the lives of
their brother-peers, but also arbiters of the property of all their
fellow-subjects, and that in the last resort. In this their judicial
capacity they are bound to decide the nicest and most critical points
of the law; to examine and correct such errors as have escaped the
most experienced sages of the profession, the lord keeper and the
judges of the courts at Westminster. Their sentence is final,
decisive, irrevocable: no appeal, no correction, not even a review can
be had: and to their determination, whatever it be, the inferior
courts of justice must conform; otherwise the rule of property would
no longer be uniform and steady.
SHOULD a judge in the most subordinate jurisdiction be deficient in
the knowlege of the law, it would reflect infinite contempt upon
himself and disgrace upon those who employ him. And yet the
consequence 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 serious and affecting is the case of a
superior judge, if without any skill in the laws he will boldly
venture to decide a question, upon which the welfare and subsistence
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
possibility of redress!
YET, vast as this trust is, it can no where be so properly reposed as
in the noble hands where our excellent constitution has placed it: and
therefore placed it, because, from the independence of their fortune
and the dignity of their station, they are presumed to employ that
leisure which is the consequence of both, in attaining a more
extensive knowlege of the laws than persons of inferior rank: and
because the founders of our polity relied upon that delicacy of
sentiment, so peculiar to noble birth; which, as on the one hand it
will prevent either interest or affection from interfering in
questions of right, so on the other it will bind a peer in honour, an
obligation which the law esteems equal to another's oath, to be master
of those points upon which it is his birthright to decide.
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.
[Footnote g: _Ff._ 1. 2. 2. Sec. 43. _Turpe esse patricio, & nobili, &
causas oranti, jus in quo versaretur ignorare._]
[Footnote h: _Brut._ 41.]
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 home.
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
exteri patriique juris notas habere_." And the statutes[m] of the
university of Cambridge speak expressly to the same effect.
[Footnote i: _Dedicatio corporis juris civilis._ _Edit._ 1663.]
[Footnote k: Hale. Hist. C.L. c. 2. Selden _in Fletam_. 5 Rep.
Caudrey's Case. 2 Inst. 599.]
[Footnote l: _Tit. VII. Sect._ 2. Sec. 2.]
[Footnote m: _Doctor legum mox a doctoratu dabit operam legibus
Angliae, ut non sit imperitus earum legum quas habet sua patria, et
differentias exteri patriique juris noscat._ _Stat._ Eliz. _R._ _c._
14. Cowel. _Institut. in proemio._]
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.
[Footnote n: _c._ 47.]
[Footnote o: _c._ 48.]
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.
[Footnote p: _in Fletam._ 7. 7.]
[Footnote q: Caesar _de bello Gal._ 6. 12.]
[Footnote r: _de gest. reg._ _l._ 4.]
[Footnote s: Dugdale _Orig. jurid._ _c._ 8.]
[Footnote t: _Les juges sont sages personnes & autentiques,--sicome
les archevesques, evesques, les chanoines les eglises cathedraulx, &
les autres personnes qui ont dignitez in saincte eglise; les abbez,
les prieurs conventaulx, & les gouverneurs des eglises, &c._ _Grand
Coustumier_, _ch._ 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 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].
[Footnote u: _circ. A.D._ 1130.]
[Footnote w: _LL. Wisigoth._ 2. 1. 9.]
[Footnote x: _Capitular. Hludov. Pii._ 4. 102.]
[Footnote y: Selden _in Fletam._ 5. 5.]
[Footnote z: Domat's treatise of laws. c. 13. Sec. 9. _Epistol.
Innocent. IV. in M. Paris. ad A.D._ 1254.]
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.
[Footnote a: _A.D._ 1138.]
[Footnote b: Gervas. Dorobern. _Act. Pontif. Cantuar. col._ 1665.]
[Footnote c: Rog. Bacon. _citat. per_ Selden. _in Fletam._ 7. 6. _in
Fortesc._ _c._ 33. & 8 Rep. Pref.]
[Footnote d: Joan. Sarisburiens. _Polycrat._ 8. 22.]
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.
[Footnote e: _Idem, ibid._ 5. 16. Polydor. Vergil. _Hist._ _l._ 9.]
[Footnote f: _Stat. Merton._ 20 _Hen. III._ _c._ 9. _Et omnes comites
& barones una voce responderunt, quod nolunt leges Angliae mutare,
quae hucusque usitatae sunt & approbatae._]
[Footnote g: 11 Ric. II.]
[Footnote h: Selden. _Jan. Anglor._ _l._ 2. Sec. 43. _in Fortesc._ _c._
33.]
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.
[Footnote i: Spelman. _Concil. A.D._ 1217. Wilkins, _vol._ 1. _p._
574, 599.]
[Footnote k: Selden. _in Fletam._ 9. 3.]
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.
[Footnote l: M. Paris _ad A.D._ 1254.]
[Footnote m: There cannot be a stronger instance of the absurd and
superstitious veneration that was paid to these laws, than that the
most learned writers of the times thought they could not form a
perfect character, even of the blessed virgin, without making her a
civilian and a canonist. Which Albertus Magnus, the renowned dominican
doctor of the thirteenth century, thus proves in his _Summa de
laudibus christiferae virginis (divinum magis quam humanum opus)_
_qu._ 23. Sec. 5. "_Item quod jura civilia, & leges, & decreta scivit in
summo, probatur hoc modo: sapientia advocati manifestatur in tribus;
unum, quod obtineat omnia contra judicem justum & sapientem; secundo,
quod contra adversarium astutum & sagacem; tertio, quod in causa
desperata: sed beatissima virgo, contra judicem sapientissimum,
Dominum; contra adversarium callidissimum, dyabolum; in causa nostra
desperata; sententiam optatam obtinuit._" To which an eminent
franciscan, two centuries afterwards, Bernardinus de Busti (_Mariale_,
_part._ 4. _serm._ 9.) very gravely subjoins this note. "_Nec videtur
incongruum mulieres habere peritiam juris. Legitur enim de uxore
Joannis Andreae glossatoris, quod tantam peritiam in utroque jure
habuit, ut publice in scholis legere ausa sit._"]
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.