THAT ancient 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 knowledge 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 1) 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'. The judges therefore were usually created out of the sacred orders, as was likewise the case among the Normans; 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 its ruin. A copy of Justinian's pandects, being newly discovered at Amalfi, soon brought the civil law into vogue all over the west of Europe, where before it was quite laid aside and in a manner forgotten; though some traces of it's authority remained in Italy * u W draulx, et les autres personnes qui ont w LL. Wisigoth. 2.1.9. [ 18 ] and the eastern provinces of the empire. This now became in a particular manner the favourite of the popish clergy, who borrowed the method and many of the maxims of the 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 2. 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, 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 [19] proclamation, forbidding the study of the laws, then newly imported from Italy; which was treated by the monks as a piece of impiety, and although 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 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) with one voice answered, that they would not change "the laws of England, which had hitherto been used and 66 e approved." And we find the same jealousy prevailing above a century afterwards, when the nobility declared with a kind of prophetic spirit, “that the realm of England hath 66 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 "." And of this temper [ 20 ] 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, epis e Joan. Sarisburiens. Polycrat. 5.16. mutare, quae hucusque usitatae sunt et Polydor. Virgil. Hist. 1. 9. f Stat. Merton. 20 Hen. III. c. 9. Et omnes comites et barones una voce responderunt, quod nolunt leges Angliae approbatae. 8 11 Ric. II. * Selden. Jan. Angier. 1 2. $ 43. in Fortesc. c. 33. 2 copal constitutions were published', forbidding all ecclesiastics to appear as advocates in foro saeculari: nor did they long continue to act as judges there, not caring to take the oath of office which was then found necessary to be administered, that they should in all things determine according to the law and custom of this realm; 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 forbidden 1 the very reading of it by the clergy, because its 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 [21] 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 i Spelman. Concil. A. D. 1217. Wilkins, vol. 1. p. 574. 599. k Selden ad Fletam. 9. 3. i M. Paris ad A. D. 1254. 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 thir teenth century, thus proves in his Summa de laudibus christiferae virginis (divinum magis quam humanum opus) qu. 23. § 5. "Item quod jura civilia, & leges, & de66 creta scivit in summo, probatur hoc " modo; sapientia advocati manifestatur "in tribus; unum, quod obtineat omnia 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 its 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 channel, and has hitherto been wholly cultivated in another place. But as the long usage and established custom of ignorance of the laws of the land, begin now to be thought unreasonable; and as by these means the merit of those laws will probably be more generally known; we may hope that [22] the method of studying them will soon revert to its antient course, and the foundations at least of that science will be laid in the two universities; without being exclusively confined to the channel which it fell into at the times I have just been 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 ", and made no scruple to profess their contempt, nay even their ignorance ર contra judicem justum & sapientem; "secundo, quod contra adversarium "astutum & sagacem; tertio, quod in "causa desperata: sed beatissima virgo, "contra judicem sapientissimum, Domi nardinus de Busti, (Mariale, part 4. uxore Joannis Andreae glossatoris,quod num; contra adversarium callidissi- "tantam peritiam in utroque jure habuit, тит, diabolum ; in causa nostra "ut publice in scholis legere ausa sit.” "desperata; sententiam optatam obtin Fortesc. de laud. LL. c. 23. "nuit." To which an eminent fran- • This remarkably appeared in the ciscan, two centuries afterwards, Ber- case of the abbot of Torum, M. 22. |