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ence, than what the learned chancellor thought it prudent to give to his royal pupil.

That ancient 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, 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) they were peculiarly 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 Malmesbury. The judges, therefore, were usually created out of the sacred order,s as was likewise the case among the Normans ;t 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 foreign cler- 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 an accident which soon after happened had nearly completed its ruin. A copy of Justinian's Pandects, being newlyu discovered at Amalsi, soon brought the civil law into vogue all over the west of Europe, where [18] before it was quite laid aside,w and in a manner forgotten, though some traces of its authority remained in Italy and the eastern provinces of the empire. This now became in a particular manner the favorite 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

P In Fletam., 7, 7.

9 Cæsar, De Bello Gal., 6, 13.
De gest. reg., 1, 4.

Dugdale, Orig. jurid., c. 8.
Les juges sont sages personnes et
autentiques, sicome les archevesques,
evesques, les chanoines des eglises ca-
thedraulx, et les autres personnes qui


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(5) Mr. Hallam has shown some reasons for doubting this statement.—(Mid Ages, Harper's ed., p. 520, col. 2.)

were performed, lectures read, and degrees conferred in this faculty, as in other branches of science; and many nations on the Continent, 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 (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.z

Nor was it long before the prevailing mode of the times who prefer reached England. For Theobald, a Norman abbot, being re red the civil elected to the see of Canterbury, 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,b 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

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,c[ 19 ] forbidding the study 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 monasteries.


From this time the nation seems to have been divided into and endeav ored to intwo parties: the bishops and clergy, many of them foreigners, troduce it who applied themselves wholly to the study of the civil and into this 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. 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 showed at the famous Parliament of Merton, when the prelates endeavored to procure an act to declare all bastards legitimate

Domat's Treatise of Law, c. 13, § 9. Epistol. Innocent IV., in M. Paris, ad A.D. 1254.

a A.D. 1138.

b Gervas. Dorobern., Act. Pontif. Cantuar., col. 1665.

Rog. Bacon, citat. per Selden in
Fletam., 7, 6, in Fortesc., c. 33, and 8
Rep., Pref.

Joan. Sarisburiens., Polycrat., 8, 22.
Joan. Sarisburiens., Polycrat., 5, 16.
Polydor. Virg., Hist., 1, 9.

in case the parents intermarried at any time afterward, 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 afterward,s 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, [20] shall it ever be, ruled or governed by the civil law."

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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 f Stat. Merton. 20 Hen. III., c. 9. Et omnes comites et barones una voce responderunt, quod nolunt leges Anglia

(6) The withdrawal of the clergy from practice in the temporal courts gave birth to the common lawyers as a distinct class, who thenceforth made the most vigilant, firm, and successful opposition to every effort of the Anglican hierarchy to free themselves from the control of the law. The following is an outline of the rise and progress of this animosity, which has materially influenced the result of several important contests in the history of our Consti


Before the Reformation, the papal hierarchy had two objects of ambition: the one, the withdrawal of all spiritual persons from lay jurisdiction; the other, the acquisition of an exclusive jurisdiction for the spiritual courts over "divine matters." Their struggles for the former were nipped in the bud by the Constitutions of Clarendon, while the writ of prohibition checked every attempt to seize upon the latter. To free himself from the control of this writ, which was a curb on the pride of papal prelates, when their feet were on the necks of king, barons, and people, Archbishop Boniface struggled most vehemently in the reign of Henry III., fairly trying his strength against that of the courts of common law, by threatening the judges of those courts with "especial excommunication" if they should dare to issue prohibitions on the matters specified in his celebrated articuli cleri. "Yet," says Lord Coke (2 Inst., 599), "notwithstanding the greatness of

mutare, quæ hucusque usitata sunt et
€ 11 Ric. II.
Selden. Jan. Anglor., 1, 2, § 43, in
Fortesc., c. 33.

the archbishop, and that divers of the judges were clergy, and all the great officers of state, the judges proceeded according to the laws of the realm, and still kept, though with great difficulty, the ecclesiastics within proper bounds." -Hallam's Mid. Ag., Harper's ed., p. 299. See, also, and compare Glanvil., 1. 4, c. 13; 1. 12, c. 21, 22, with the full account of the law of prohibitions, contained in the 5th book of Bracton. The former was appointed Chief Justiciary of England by Hen. II., A.D. 1180, the latter by Hen. III., A.D. 1253. The reader need scarcely be reminded that from the earliest times every object of ecclesiastical ambition has been claimed "jure divino;" that is, by a title paramount to all human laws, and not to be examined except by spiritual persons.

At the Reformation, if we select the point upon which the contending parties came to issue, we shall find the lawyers at their post. The contending parties came to issue in the Parliament held in the 21 Hen. VIII., and on the abuses of the Church. In that Parliament three bills were sent up to the Lords from the Commons, leveled, the one against unreasonable exactions of fees for the probate of wills, another against mortuaries, and the third to restrain pluralities and non-residence, to forbid the clergy taking farms, &c., and to confine them to a due discharge of their functions. "The clergy," says Bishop Burnett (Hist. Ref., i., 80), "suffered a severe blow by these bills, for they not only felt an immediate

end, very early in the reign of King Henry the Third, episcopal constitutions were published, i forbidding all ecclesiastics

i Spelman, Concil., A.D. 1217. Wilkins, vol. 1, p. 574, 599.

restraint and lost a present profit, but a door was opened for the many mortifying regulations which soon followed." See, also, Reeve's Hist. of Engl. Law, vol. 4, p. 205, 211. By whose efforts were the House of Commons induced to aim this severe blow," and to "open the door of the Reformation?" We learn from Hall (Chron., p. 766), that while the Commons were "in sore debate" on the above three bills, they were much exasperated by an intemperate speech of Bishop Fisher's, which, besides maintaining the exemption of the clergy from Parliamentary control, and advancing the old claim of jus divinum, and so forth, charged the House of Commons as a body with "lacke of faith." When this speech came to the knowledge of the House of Commons, the debate on these bills was stopped, and the members were addressed on the subject of their “lacke of faith," by a "gentleman of Greye's Inn," in a speech of marvelous power, and of then unprecedented boldness; after hearing which, the House made a formal complaint to the king against the bishop. The bishop "explained," but when the debate was resumed, every one of these three bills was passed, and the first effectual blow thus struck in the House of Commons against the jus divinum of the hierarchy. "These things," continues the chronicler, "against the power of the clergy, before this time durst in no wise be touched, nor yet talked of by no man, unless he would run the hazard of being judged an heretic, and lose all that he had, for as the bishops were always chancellors, and had all the rule about the king, so that no man durst once presume to attempt any thing contrary to their profitte and advantage." Before this speech (Lord Herbert's Life of Hen. VIII., p. 321, 324), no man in the House of Commons durst attack the power of the Church, for certain ruin would fall upon him; but after this speech the House resolved that a reformation of the clergy was necessary, and bills for that purpose were passed in spite of all their outcries. These acts were, the act against appeals to Rome (24 Hen. VIII., c. 12), for the submission of the clergy (25 Hen. VIII., c. 19), against payment of first-fruits to the pope, and for the election of bishops (c. 20), against Peter's pence and dispensations (c. 21), for the king's supremacy (26 Hen. VIII., VOL. I.-B

c. 1), for the suppression of the lesser monasteries (27 Hen. VIII., c. 28), for extinguishing the authority of the Bishop of Rome (28 Hen. VIII., c. 10), and for the total suppression of the monasteries (30 Hen. VIII., c. 13). Besides the above "gentleman of Greye's Inn," Sir Thomas Audley, attorney-general of the duchy of Lancaster, and afterward lord-chancellor, was conspicuous in forcing the House of Commons forward; and it is also incidentally mentioned by Hall, that "other learned men in the law, being of the Commons' House, took much payne." The speeches of Bishop Fisher and "the gentleman of Greye's Inn" are set forth, Parl. Hist., vol. 1, p. 502-6, and are highly interesting, not only as specimens of Parliamentary oratory three centuries ago, but as being the speeches which "opened the door" of the Reformation, and induced the Parliament to pass a series of statutes which prevented that door from being ever thereafter closed.

Even during the reign of Elizabeth, the animosity between the lawyers and the clergy was not entirely dormant; for we find the jealousy between the common lawyers and the civilians breaking out in the House of Commons during the debate on the ex officio oath (1592). Many of Whitgift's and Bancroft's letters contain murmurs at the subjection of the clergy to tribunals composed of lay lawyers, "whose learning," says Whitgift (Letter cited, Hallam, C. H., ii., 288), "is no learning any where but here at home, and of whom, many a one, being born to nothing, doth, by his labor and travail in this barbarous knowledge (of the common law), purchase to himself and his heirs forever a thousand pounds per annum, and oftentimes much more." These were but the forerunners of the open rupture which took place in the next reign. No sooner had James I. ascended the throne, than we find the prelates renewing their claims to a jurisdiction beyond the control of the courts of common law, and making especial remonstrance against the use of the writ of prohibition. The exact nature of these ecclesiastical demands will be learned from a survey of the canons of 1603 (vide infra, p. 83), and the articuli cleri of Bancroft (for which, see Coke's 2 Inst., 599). "The favorite object of the bishops in the reign of James I.," says

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; though they still kept possession of the Selden in Fletam., 9, 3.

Mr. Hallam (C. H., i., 440), "was to render their ecclesiastical jurisdiction as unrestrained as possible by the courts of law, and to effect the subjugation of the common lawyers" (ii., 63). The successful opposition made by the judges to the pretensions of Bancroft only serv. ed to exasperate both parties, and to aggravate that jealousy of the ecclesiastical courts which the common lawyers had long entertained. In 1611 we find Bancroft complaining of the power and popularity of the common lawyers, in answer to a petition from the doctors of the Arches, expressly requesting his grace to favor them against the common lawyers (Strype's Whitgift, App., p. 227). The difficulties thrown by the lawyers in the way of Charles I. and Archbishop Laud, each struggling vig. orously to set up a jus divinum, and each assisting the efforts of the other, are frequent themes in the correspondence between that prelate and Strafford. "The Church," says Laud, in 1633 (Letter cited, Hallam, C. H., ., 65), "is so bound up in the forms of the common law, that it is not possible for me or for any man to do that good which he would or is bound to do. For your lordship sees that the lawyers, who have gotten so much power in and over the Church, will not let go their hold." Clarendon also justly remarks, that the unwarrantable opposition of the spiritualty to prohibitions, and their claims to the possession of an uncontrolled authority, ultimately led to the ruin of Laud and of the Church, by bringing upon them "the great herd of common lawyers." The noble historian concludes, however, his review of the faults of both parties with expressing his own conviction that the fatal is sue of that struggle was an instance of the divine anger against the pride of both churchmen aud lawyers.-(Hist. of Rebellion, ii., 34.) If we are to believe Whitelocke's speech to the House of Commons in 1649 (Parl. Hist., iii., 1341), the lawyers had borne no mean part in the field of battle on the side of the Parliament. "The gown," says Whitelocke, "does not abate either a man's courage or his wisdom, or render him less capable of using a sword. You

all know this to be true, by the great services performed by Lieutenant-general Jones, and Commissary Ireton, and many of the members and other lawyers, who, putting off their gowns, when you required it, have served you stoutly and successfully as soldiers, and undergone great dangers and hardships." Lastly, continuing our epitome into the despotism of the Commonwealth, we find in the Westminster Assembly, Hale, Maynard, Wilde, Selden, Whitelocke, St. John, and other lawyers, successfully resisting the attempts of the Presbyterians to clothe themselves with the jus divinum, which had been just stripped from the deposed hierarchy.

Here the traces of this animosity seem to cease, the supremacy of the law having since remained far above any attacks of prelates. Not but that there are still to be found a few modern civilians, who, thinking that this su premacy of law implies a superiority in lawyers, have naturally complained grievously on the subject. Collyer's Ecclesiastical History is full of repinings on this subject. So Bishop Gibson, in the preface to his Codex (page 4), says, "The common laws spiritual ought not to be dragged into the channel of the common law temporal, which is unnatural to them, and in which it is impossi ble for them to thrive." Bishop Bur nett, indeed, seems to have thought tha antipathy to the National Church is ar inseparable characteristic of the lawyer In his account of the contests betwee the French bishops and the Parliamen of Paris, in the beginning of the seven teenth century, respecting the right to the regale, is the following passage: "It has been every where observed, that no sort of men have made head against those things which have been called rights of the Church with more zeal and indignation than lawyers and secular courts. This ecclesiastics impute to their enmity to the Church and their envy at her prosperity; lawyers, on the other hand, pretend that their studies carry them further than other men into the discovery of those cheats and late inventions by which the world has been imposed on in former ages." (Rights of Princes, chap. 8.)

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