ON THE STUDY 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 its symmetry has been destroyed, its proportions distorted, and its 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 (f) 2 Rep. pref. when the industry of some, and the negligence of others, have produced a remarkable inequality in the goods of fortune; when wealth hath brought forth her offspring, insolence and oppression; and when envy and avarice inflame the breasts of the indigent; it will be absolutely necessary to lay a continual restraint on such violent passions, ready at every instant to destroy the peace of society; and, for that purpose, to form a great number of regulations, to curb those who have created to themselves imaginary wants, and who no longer regulate their conduct by the plain dictates of simple nature. And as the condition of such a nation must be perpetually changing; as new arts and gratifications will be continually invented; as the increase of commerce will every day open a prospect of more various acquisitions, and insensibly introduce a general change of manners in the people; and, above all, as the wits of men, checked in their darling pursuits, will ever be at work to discover methods of eluding those laws which they dare not openly infringe; there must ensue a constant alteration and variation of the rules already in being, and a continual addition of new ones, to answer new and unforeseen contingencies." (See post, Vol. 3, p. 327, to the like effect). A love of needless change, for the mere sake of changing, is always silly, and may be wicked; but an indiscriminating opposition to all innovation, is neither more wise, nor, in the generality of instances, more honest. 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 (17), unless it should be found that the penners of our modern statutes have proportionably better informed themselves in the knowledge of the common law. 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 (18). Their sentence is (17) Blackstone prepared his Commentaries towards the close of the reign of Geo. 2. The statutes passed in the reign of Geo. 3 form thrice as unwieldy a bulk as the published enactments of all our preceding sovereigns, from the date of Magna Charta. (18) That the whole body of nobility should attain the very high qualifications necessary for the perfect fulfilment of such duties as those described in the text, it would be unreasonable to expect. An approximation even to such skill can only be the reward of long and severe study; but, if the peers, generally, have hitherto shrunk from such [ *11 ] Necessity of this of the nobility. study on the part [ 12 ] 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 knowledge 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 (19): 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 knowledge 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, only to administer the actual law, ac- (19) The practice, though not the theory, of our constitution, reposes this trust, virtually, in the Lord Chancellor. (See the last note). There is reason to expect, that, during the present session (1836) a bill will be brought into the House of Lords for the establishment of a very different tribunal of ultimate appeal: the existing one is by had occasion to take the opinion of Quintus Mutius Scævola, the then oracle of the Roman law; but, for want of some knowledge 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 Scævola 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 [ 13 ] behind him about an 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 Scævola 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 (g) Ff. 1. 2. 2. § 43. Turpe esse in quo versaretur ignorare (20). patricio, et nobili, et causas oranti, jus no means satisfactory; and though it (h) Brut. 41. ti" are not quite applicable to a British Its utility to the clergy. [ *14 ] To physicians. ample patrimony, some of whom are still the ornaments of this seat of learning, and others, at a greater distance, continue doing honour to its 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 knowledge 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 (21), 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 (22), unless in com (21) It seems probable that the knowledge of these subjects, requisite for the clergy, will be reduced within narrower limits. (22) The evidence of medical men has, frequently and properly, a very great influence upon the decisions both of courts of common law and of our ecclesiastical courts; and is most essential in assisting the judgment of the Lord Chancellor, when exercising his specially delegated jurisdiction in matters of lunacy. It cannot be esteemed of slight importance, therefore, that physicians should have a knowledge of legal doctrines as to those subjects which, collectively, have obtained, as they well deserved, a separate head amongst the titles of the law: forensic medicine, or the application of medical science to certain branches of jurisprudence, is now recognised as an interesting and important study, and has been pursued, with success, by more than one eminent practitioner of physic. The execution of the statute of 2 & 3 Gul. 4, c. 107, for regulating the care and treatment of insane persons, is intrusted (subject to the superintendence of the Lord Chancellor, and, in certain cases, of His Majesty's principal Secretary of State for the Home Department) to commissioners, of whom two-thirds, at least, must be physicians. And two out of the three visitors, appointed by the Lord Chancellor, under the statute of 3 & 4 |