named 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 proclamation, forbidding the study [19] of the laws, then newly imported from Italy; which was treated by the monksd 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 monastries. 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 (2). b Gervas. Dorobern. Act. Pontif. Cantuar. col. 1665. c Rog. Bacon. citat. per Selden in Fletam. 7. 6. in Fortesc. c. 33. and 8 Rep. Pref. d Joan. Sarisburiens. Polycrat. 8. 22. (2) Though the civil law, in matters of contract and the general commerce of life, may be founded in principles of natural and universal justice, yet the arbitrary and despotic maxims, which recommended it as a favourite to the pope and the Romish clergy, rendered it deserv. edly odious to the people of England. Quod principi placuit legis habet vigorem, (Inst. 1. 2. 6.) the magna charta of the civil law, could never be reconciled with the judicium parium vel lex terræ, This appears, on the one hand, from the spleen with which the monastic writerse 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 "rollf) 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, 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 (6 our lord the king and the lords of parliament shall it [20] "ever be, ruled or governed by the civil lawh." 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 published1, forbidding all eccle-siastics to appear as advocates in foro caeculari: 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 realmk; though they still kept possession of the high office of chancellor, an office then of little juridical power; and afterwards as its business e Jaan Sarisburiens. Polycrat. 5. 16. Poly-. dor. Virgil. Hist. 1. 9. f Stat. Morton. 20 Hen. III. c. 9. Et omnes conites et barones una voce responderunt, quod nolunt leges Angliae mutare, quae hucusque usitatae sunt et approbatae. g 11 Ric. II. h Selden. Jan. Anglor. 1. 2. scc. 43. in For tesc. c. 33. i Spelman. Concil. A. D. 1217. Wilkins, vol. 1. p. 574. 500. k Selden. in Fletam. 9. 3. 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 forbidden1 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 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 [21] 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 learn 1 M. Paris ad A. D. 1254. in 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 civi lian 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. sec. 5. "Item "quod jura civilia, et leges, et decreta scivit in summo, probatur hoc modo; sapientia "advocati manifestatur in tribus; unum, quod ing; 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 its 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 [22] the merit of those laws will probably be more generally known; we may hope that the method of studying them will soon revert to its ancient 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 "Andreae glossatoris, quod tantam peritiam "in utroque jure habuit, ut publice in scholis "legere ausa sit." n Fortesc. de laud. LL. c. 25. o This remarkably appeared in the case of the abbot of Torun, M. 22. Edw. III. 24. whe had caused a certain prior to be summoned to answer at Avignon for erecting an oratory contra inhibitionem novi operis; by which words Mr. Selden, (in Flet. 8. 5.) very justly understands to be meant the title de novi operis nuntiatione both in the civil and canon But still as the balance of it, in the most public manner. 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, (as suspicion well justified from the frequent transcripts 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 its support. THE incident which I mean was the fixing the court of common pleas, the grand tribunal for disputes of property, to be held in one certain spot; that the seat of ordinary justice might be permanent and notorious to all the nation. Formerly that, in conjunction with all the other superior courts, was held before the king's capital justiciary of [23] England, in the aula regis, or such of his palaces wherein his royal person resided; and removed with his household from one end of the kingdom to the other. This was found to occasion great inconvenience to the suitors; to remedy which it was made an article of the great charter of liberties, both that of king John and king Henry the third P, that "com66 mon pleas should no longer follow the king's court, but be "held in some certain place:" in consequence of which they have ever since been held (a few necessary removals in times of the plague excepted) in the palace of Westminster only. This brought together the professors of the municipal law, who before were dispersed about the kingdom, and formed them into an aggregate body; whereby a society was esta laws, (Ff. 39. 1. C. 8. 11. and Decretal. not Extrav. 5. 32.) whereby the erection of any new buildings in prejudice of more ancient ones was prohibited. But Skipwith the king's serjeant, and afterwards chief baron of the Exchequer, declares them to be flat nonsense: “in ceux parolx, contra inhibitionem novi operis, ny ad pas entendment:" and justice Schardelow mends the matter but little by informing him, that they signify a restitution in their law: for which reason he very sagely resolves to pay no sort of regard to them, "Ceo n'est que un restitution en leur ley, pur "que a ceo n'avomus regard, &c." p c. 11. |