[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 (g): and it will not be a sufficient excuse for them to tell the queen'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 maritime, the military, and the ecclesiastical law.] The general use and necessity of some acquaintance with the common law being thus apparent, it may naturally be supposed that some provision would antiently have been made for this, as for other branches of education, in the universities of Cambridge and Oxford. The reverse, however, is the fact-the study of the common law having until recent times been wholly neglected in those venerable seats of learning, and having been cultivated from the earliest period in a different region. How this has come to pass will appear from the following retrospect. [Sir John Fortescue, in his panegyric on the laws of England, which was written in the reign of Henry the sixth,) puts (h) a very obvious question in the mouth of the young prince, whom is he exhorting to apply himself to that branch of learning: "Why the laws of England, (g) Hale, Hist. C. L. c. 2; Selden in Fletam; 5 Rep. Caudrey's case; 2 Inst. 599. [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 (i) 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 dif"ferent 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 effect of 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 was so long banished from these seats of science, than what the learned chancellor thought it prudent to give to his royal pupil. 66 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 its 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 (k), 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 pecu (i) C. 48. (k) In Fletam, 7, 7. (1) Cæsar de Bello Gal. 6, 12. [liarly 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 (m). The judges therefore were usually created out of the sacred order (n), as was likewise the case among the Normans (o); 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 it was nearly brought to ruin by the new impulse given in the 12th century to the study of Justinian's system of law, and its consequent reception over all the west of Europe, where before it had possessed, in general, no authority, and had fallen almost into oblivion (p). [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 conti (m) De Gest. Reg. 1. 4. (n) Dugdale, Orig. Jurid. c. 8. (o) "Les juges sont sages personnes et autentiques,-sicomme les archevesques, evesques, les chanoines des eglises cathedraulx, et les aultres personnes qui ont dignitez en saincte eglise; les abbez, les prieurs conventuaulx, et les gouverneurs des eglises, &c."Grand Coustumier, ch. 9. (p) Hallam's Middle Ages, 3d vol. p. 513; 1 Bla. Com. 18; 1 Reeves, Hist. Eng. Law, p. 66. It has been said (and the opinion is adopted by Blackstone) that this revival was owing to the accidental discovery of a copy of the Pandects at the capture of Amalfi by the Pisans, about the year 1130. But there appears to be no sufficient evidence that any such discovery took place. Vide Hallam, ubi sup. ; et Histoire du Droit Romain au Moyen-Age, par M. De Savigny, ch. xviii. s. 35, et sequ., ch. xxii. ss. 164, 167. [nent, 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,] that is, the compilations of Justinian, [(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 (q). 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 (r), and extremely addicted to this new study, brought over with him in his retinue many learned proficients therein; and, among the rest, Roger, surnamed Vacarius, whom he placed in the university of Oxford (s), 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 of the laws, then newly imported from Italy, which was treated by the monks (u) 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. (9) Domat's Treatise of Law, c. 13, § 9; Epistol. Innocent. IV. in M. Paris, A.D. 1254. (r) A.D. 1138. (s) Gervas. Dorobern. Act. Pontif. Cantuar. Col. 1665. (t) Rog. Bacon, citat. per Selden in Fletam, 7, 6; in Fortesc. c. 33; and 8 Rep. Pref. (u) 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 law, and that of the Roman church (or canon law), [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 (x) 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) (y) "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 (z), 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 (a)." 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 with (x) Joan. Sarisburiens. Polycrat. 5, 16; Polydor. Virgil, Hist. 1. 9. (y) Stat. Merton, 20 Hen. 3, c. 9. "Et omnes comites et barones una voce responderunt, quod nolunt leges An glia mutare, quæ hucusque usitate sunt et approbatæ." (z) 11 Rich. 2. (a) Selden, Jan. Anglor. 1. 2, § 43; in Fortesc. c. 33. |