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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 [*19] common law. King Stephen immediately *published a proclamation (c), forbidding the study of the laws, then newly imported from Italy (12), which was treated by the monks (d) 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.
Two parties; bishops and clergy, who studied the
civil law; and
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 nobility and laity, who adhered with equal pertinacity to the old laity who adhered to the common law; both of them reciprocally jealous of what common law. they were unacquainted with, and neither of them, perhaps, allowing the opposite system that real merit which is
abundantly to be found in each (13). This appears, on the one hand, from the spleen with which the monastic
writers (e) speak of our municipal laws upon all occasions; Their mutual and, on the other, from the firm temper which the nobility jealousy. 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 Declaration of church (that is, the canon law,) declared such children le- the nobility. gitimate; but "all the earls and barons (says the parliament roll) (ƒ) with one voice answered, that they would not change the laws of England, which had hitherto been used and approved" (14). And we find the same jealousy prevailing above a century afterwards (g), 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 [*20]. law"(h). And of this temper between the clergy and laity many more instances might be given.
While things were in this situation, the clergy, finding Clergy
(e) Idem, ibid 5. 16. Polydor. Vir glia mutare, quæ hucusque usitata gil. Hist. l. 9.
(f) Stat. Merton. 20 Hen.III.c.9. Et omnes comites et barones una voce responderunt, quod nolunt leges An
(13) 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 deservedly 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 reconoiled with
sunt et approbatæ.
(g) 11 Ric. 11.
(h) Selden, Jan. Anglor, l. 2. § 43. in Fortesc. c. 33.
the judicium parium vel lex terræ.
(14) See note 12, pa. 20, ante. This
withdraw from it impossible to root out the municipal law, began to withthe temporal
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 (i), forbidding all ecclesiastics to appear as advocates in foro sœculari: 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 (k), though they still kept possession of the high office of But kept pos- chancellor, an office then of little juridical power; and session of the afterwards, as its business increased by degrees, they chancellorship. modelled the process of the court at their own discretion.
Reason why the study of the civil law is pur
sued with ala
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 (7) 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 Mason the first Protestant, being also the first lay, Chancellor of Oxford;)
(i) Spelman, Concil. A. D. 1217. Wilkins, vol. 1. p. 574. 599.
(k) Selden, in Fletam. 9. 3.
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 learning; and why the And the comcommon law was entirely despised, and esteemed little mon law debetter than heretical (15).
not taught at
And, since the reformation, many causes have con- Why, since the spired to prevent its becoming a part of academical edu- Reformation, cation. As, first, long usage and established custom; the universities. which, as in every thing else, so especially in the forms of
(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 thirteenth century, thus proves in his Summa de laudibus
(15) The civil law is repugnant to institutions founded upon a government independent of power emanating from one or from a few. It is the responsibility, virtual or actual, of legislature, which best ensures the origin and permanency of wholesome laws; for wherefore the goodness of laws, if those who enact may annul them at pleasure with impunity? Temp. Car. I. 1639, Laud, Archbishop of Canterbury, rashly attempted to obtain the supremacy of the canon law. The courts at Westminster had found it necessary to restrain its usurpations, by the granting of frequent prohibitions. presented to his Majesty "Considerations for the Better Settling of the Church Government." And one of these, the 10th, is, "That some course be taken that the judges may not send 1
christifera 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, quod contra adversarium astutum et sagacem; tertio, quod in causa desperata: sed beatissima virgo, contra judicem sapientissimum, Domi.
so many prohibitions." Subsequently, in the same year, the judges were, upon the complaint of Dr. Martin, called before the king, but they persisted in stoutly justifying their proceedings in those cases to be according to law. At the present period, very little debateable land lies between the two jurisdictions. Over the person there is little power, over the property none; standing covered with a white sheet in the church for an hour, is nearly the amount of the personal penances the court Christian inflicts; and even for this purpose the vestry is substituted for the chancel. The undergoing this sentence in the church could no longer awe-strike; and it is now more wisely thought, that the narrow bounds of the vestry may well bound the expiation.
rit of the civil
2. The real me- scholastic exercise, have justly great weight and autholaw, although rity. Secondly, the real intrinsic merit of the civil law, common law an considered upon the footing of reason and not of obligaimprovement.
tion, 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 imPrincipal rea provement 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 The study of the different channel, and has hitherto been wholly cultivated from the univer. 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 [*22] 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.
Devolved into lay hands.
For, being then entirely abandoned by the clergy, a few stragglers excepted, the study and practice of it devolved
num; contra adversarium callidissi- perate, obtains the desired adjudi-
cation. To which an eminent fran-