[draw 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 (b), forbidding all ecclesiastics to appear as advocates in foro sæculari. 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 (c): though they still kept possession of the high office of chancellor,] and the court of chancery attached to it, a court then of little juridical power; [and afterwards, as its 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 (d) 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; and that they were then, and continued to be till the time of the Reformation, entirely under the influence of the popish clergy; this will lead us to perceive the reason why the study of (b) Wilkins, Concil. vol. i. p. 574, 599. (c) Selden in Fletam, 9, 3. [the Roman laws was in those days of bigotry (e) pursued with such alacrity in these seats of learning; and why the common law was entirely despised, and esteemed little better than heretical. And after the Reformation, many causes conspired to prevent its becoming a part of academical education: as, first, long usage and established custom, which, as in everything 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 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, fell into a quite different channel, and was wholly cultivated in another place. 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 (e) 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 Christiferæ Virginis (divinum magis quam humanum opus), qu. 23, § 5. "Item quod jura civilia, et leges, et decreta scivit in summo, probatur hoc modo: sapientia advocati manifestatur in tribus; unum, quod obtineat omnia contra judicem justum et sapientem; secundo, [their parts a most hearty aversion to the civil law (ƒ), and made no scruple to profess their contempt, nay, even their ignorance (g) of it, in the most public manner. But still, as the balance 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, (a 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 referred to 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 chief justiciary of 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 that of King Henry the third (h), that, "Common Pleas (f) Fortesc. de Laud. LL. c. 25. (g) This remarkably appeared in the case of the Abbot of Torum, M. 22 Edw. III. 24, who 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 laws, (Ff. 39, 1, C. 8, 11, and Decretal. 5, 32,) whereby the erection of any new buildings in prejudice of more antient ones was prohibited. But Skipwith, the king's serjeant, [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 established of persons, who (as Spelman observes) addicted themselves wholly to the study of the laws of the land (i); and, no longer considering it as a mere subordinate science for the amusement of leisure hours, soon raised those laws to that pitch of perfection, which they suddenly attained under the auspices of our English Justinian, King Edward the first. In consequence of this lucky assemblage, they naturally fell into a kind of collegiate order, and, being excluded from Oxford and Cambridge, found it necessary to establish a new university of their own. This they did by purchasing at various times certain houses (now called the inns of court and of chancery) between the city of Westminster, the place of holding the king's courts, and the city of London; for advantage of ready access to the one, and plenty of provisions in the other (k). Here exercises were performed, lectures read, and degrees were at length conferred in the common law, as at other universities in the canon and civil (1). The degrees were those of barristers, first styled apprentices (m), from apprendre, to learn, who answered to the bachelors of the universities; and those of serjeants (n), servientes ad legem, who answered to the doctors of the universities. (i) Glossar. 334. (k) Fortesc. c. 48. (1) Degrees were once conferred at Cambridge and Oxford, both in the civil and canon law, but are not now conferred in the canon law at either of those universities. Black. Com. by Christian, vol. 1, p. 392 (note). VOL. I. (m) Apprentices or barristers seem to have been first appointed by an ordinance of King Edward the first, in parliament, in the 20th year of his reign. (Spelm. Gloss. 37; Dugdale, Orig. Jurid. 55.) (n) The first mention perhaps in our law books of serjeants, eo nomine, is in the statute of Westm. I. C [The crown seems to have soon taken under its protection this infant seminary of common law; and, the more effectually to foster and cherish it, King Henry the third, in the nineteenth year of his reign, issued out an order, directed to the Mayor and Sheriffs of London, commanding that no regent of any law schools within that city should, for the future, teach law therein (o). The word law, or leges, being a general term, may create some doubt, at this distance of time, whether the teaching of the civil law, or the common, or both, is hereby restrained. But in either case, it tends to the same end. If the civil law only is prohibited,—which is Mr. Selden's opinion (p),—it is then a retaliation upon the clergy, who had excluded the common law from their seats of learning. If the municipal law be also included in the restriction, (as Sir Edward Coke understands it, and which the words seem to import,) then the intention is evidently this,-by preventing private teachers within the walls of the city, to collect all the common lawyers into the one public university which was newly instituted in the suburbs (q). In this juridical university (for such it is insisted to 3 Edw. I. c. 29, and in Horne's Mirror, c. 1, s. 10, c. 2, s. 5, c. 3, s. 1, in the same reign. But M. Paris, in his life of John II. Abbot of St. Alban's, which he wrote A.D. 1255, (39 Hen. III.,) speaks of advocates at the common law, or "countors," (quos banci narratores vulgariter appellamus,) as of an order of men well known. And we have an example of the antiquity of the coif in the same author's history of England, A.D. 1259, in the case of one William de Bussy; who, being called to account for his great knavery and malpractices, claimed the benefit of his orders or clergy, which till then remained an entire secret; and to that end "voluit ligamenta coifæ suæ solvere, ut palam monstraret se tonsuram habere clericalem; sed non est permissus. Satelles vero eum arripiens, non per coifa ligamina sed per guttur eum apprehendens, traxit ad carcerem." And hence Sir H. Spelman conjectures (Glossar. 335), that coifs were introduced to hide the tonsure of such renegade clerks, as were still tempted to remain in the secular courts in the quality of advocates or judges, notwithstanding their prohibition by canon. (o)" Ne aliquis scholas regens de legibus in eadem civitate, de cætero ibidem leges doceat." (p) In Flet. 8, 2. (q) See 2 Inst. proëm. |