" juris municipalis, et differentias exteri patriique juris notas "habere." And the ftatutes of the university of Came bridge speak exprefsly to the fame effect. FROM the general ufe and neceffity of fome acquaintance with the common law, the inference were extremely easy with regard to the propriety of the prefent inftitution, in a place to which gentlemen of all ranks and degrees refort, as the fountain of all useful knowlege. But how it has come to pass that a defign of this fort has never before taken place in the univerfity, and the reason why the study of our laws has in general fallen into difufe, I fhall previously proceed to inquire. SIR John Fortefcue, in his panegyric on the laws of England, (which was written in the reign of Henry the fixth,) puts a very obvious queftion in the mouth of the young prince, whom he is exhorting to apply himself to that branch of learning; "why the laws of England, being fo good, fo fruitful, and so commodious, are not taught in the univer"fities, as the civil and canon laws are?" In anfwer to which he gives what seems, with due deference be it spoken, a very jejune and unfatisfactory reafon; being in short, that "as the "proceedings at common law were in his time carried on in "three different tongues, the English, the Latin, and the "French, that fcience must be neceffarily taught in those three "feveral languages; but that in the univerfities all sciences "were taught in the Latin tongue only;" and therefore he concludes, “that they could not be conveniently taught or "ftudied in our univerfities." But without attempting to examine seriously the validity of this reafon, (the very fhadow of which by the wisdom of your late conftitutions is entirely taken away,) we perhaps may find out a better, or at least a more plaufible, account, why the ftudy of the municipal laws has been banished from thefe feats of fcience, than what the learned chancellor thought it prudent to give to his royal pupil. m Doctor legum mox a doktoratu dabit operam legibus Angliæ, ut non fit imperitus carum legum quas babet fua patria, et dif ferentias exteri patriique juris nofcat. Stat. THAT THAT antient collection of unwritten maxims and customs, which is called the common law, however compounded or from whatever fountains derived, had fubfifted immemorially in this kingdom; and, though fomewhat altered and impaired by the violence of the times, had in great meafure weathered the rude shock of the Norman conqueft. This had endeared it to the people in general, as well because it's decifions were univerfally known, as because it was found to be excellently adapted to the genius of the English nation. In the knowlege of this law confifted great part of the learning of thofe dark ages; it was then taught, fays Mr. Selden, in the monafteries, in the univerfities, and in the families of the principal nobility. The clergy in particular, as they then engroffed almost every other branch of learning, fo (like their predeceffors the British Druids9) they were peculiarly remarkable for their proficiency in the study of the law. Nullus clericus nifi caufidicus, is the character given of them foon after the conqueft by William of Malmsbury'. The judges therefore were ufually created out of the facred orders, as was likewife the cafe among the Normans; and all the inferior offices. were fupplied by the lower clergy, which has occafioned their fucceffors 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 fo heartily relished by the foreign clergy; who came over hither in fhoals during the reign of the conqueror and his two fons, and were utter ftrangers to our conftitution as well as our language. And an accident, which foon after happened, had nearly completed it's ruin. A copy of Juftinian's pandects, being newly discovered at Amalfi, foon brought the civil law into vogue all over the weft of Europe, where before it was quite laid afide and in a manner forgotten; though fome traces of it's authority remained in Italy 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 their canon law from this original. The ftudy of it was introduced into feveral universities abroad, particularly that of Bologna; where exercises were performed, lectures read, and degrees conferred in this faculty, as in other branches of fcience: and many nations on the continent, juft then beginning to recover from the convulfions confequent upon the overthrow of the Roman empire, and settling by degrees into peaceable forms of government, adopted the civil law, (being the beft written fyftem then extant) as the bafis of their seve→ ral conftitutions; blending and interweaving it among their own feodal customs, in fome 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 fee of Canterbury, and extremely addicted to this new study, brought over with him in his retinue many learned proficients therein; and among the reft Roger firnamed 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 fame 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 eager nefs and zeal, yet the laity, who were more interested to preferve the old conftitution, and had already feverely felt the effect of many Norman innovations, continued wedded to the ufe of the common law. King Stephen immediately pub LL. Wifigetb. 2. 1. 9. x Capitular. Hludov. Pli. 4. 102. y Selden in Fletam. 5. 5. z Domat's treatife of law, c. 13. §. 9. Epifiol. Innocent. IV. in Mx Paris ad A. D. 1254. a A. D. 1138. b Gervaf. Dorobern. A. Pontif.Cantuer. col. 1665. d lished a proclamation, forbidding the study of the laws, then newly imported from Italy; which was treated by the monks as a piece of impiety, and, though it might prevent the introduction of the civil law procefs into our courts of justice, yet did not hinder the clergy from reading and teaching it in their own schools and monafteries. FROM this time the nation feems to have been divided into two parties; the bifhops and clergy, many of them foreigners, who applied themselves wholly to the study of the civil and canon laws, which now came to be infeparably 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 oppofite fyftem that real merit which is abundantly to be found in each. This appears, on the one hand, from the fpleen with which the monaftic writers fpeak of our municipal laws upon all occafions; and, on the other, from the firm temper which the nobility fhewed at the famous parliament of Merton: when the prefates endeavoured to procure an act, to declare all baftards legitimate in cafe the parents intermarried at any time afterwards; alleging this only reafon, because holy church (that is, the canon law) declared fuch children. legitimate: but "all the earls and barons (fays the parlia"ment roll) with one voice answered, that they would not "change the laws of England, which had hitherto been used " and approved." And we find the fame jealoufy prevailing above a century afterwards, when the nobility declared with a kind of prophetic fpirit, "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 fhall it ever be, e Rog. Bacon citat. per Selden in Fletam. 7.6. in Fortefc. c. 33. & 8 Rep. Pref. 4 Joan. Sarifburiens. Polycrat. S. 22. * Idem, ibid. 5. 16. Polydor. Virgil. Hit. 1. 9. B 2 f Stat. Merton. 20 Hen. III. c. 9. Et omnes comites et barones una voce refponderunt, quod nolunt leges Angliae mutare, quae hucufque ufitatae funt et approbatae. 8 11 Ric. II. "ruled 1 "ruled or governed by the civil law." And of this temper between the clergy and laity many more inftances might be given. WHILE things were in this fituation, the clergy, finding it impoffible 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, epifcopal conftitutions were published', forbidding all ecclefiaftics to appear as advocates in foro faeculari: nor did they long continue to act as judges there, not caring to take the oath of office which was then found neceffary to be adminiftered, that they should in all things determine according to the law and cuftom of this realm; though they still kept poffeffion of the high office of chancellor, an office then of little juridical power; and afterwards, as it's business increafed 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 fame zeal to introduce the rules of the civil, in exclufion of the municipal law. This appears in a particular manner from the fpiritual courts of all denominations, from the chancellor's courts in both our univerfities, and from the high court of chancery beforementioned; in all of which the proceedings are to this day in a courfe much conformed to the civil law: for which no tolerable reafon can be affigned, unless that these courts were all under the immediate direction of the popish ecclefiaftics, among whom it was a point of religion to exclude the municipal law; pope Innocent the fourth having forbidden the very reading of it by the clergy, because it's decifions were not founded on the imperial conftitutions, but merely on the cuftoms of the laity. And if it be confidered, that our universities began about that period to receive their present form of fcholaftic difcipline; that they were then, and continued to h Selden. Jan. Angler. 1. 2. §. 43. kins, vol. 1. p. 574. 599. in Forte c. c. 33. 1 Spelman. Concil. A. D. 1217. Wil k Selden in Fletam. 9. 3. be |