prince, whom he is exhorting to apply himself to that branch of learning: "why the laws of England, being so good, "fo fruitful, and fo commodious, are not taught in the uni"verfities, as the civil and canon laws are?" In answer to which he gives what seems, with due deference be it spoken, a very jejune and unfatisfactory reason; being, in short, that as the proceedings at common law were in his time car❝ried on in three different tongues, the English, the Latin, " and the French, that science must be neceffarily taught "in those three feveral languages; but that in the univerfi❝ties all sciences were taught in the Latin tongue only;" and therefore he concludes, "that they could not be conve "niently taught or studied in our universities." But without attempting to examine seriously the validity of this reafon, (the very fhadow of which by the wisdom of our late constitutions is entirely taken away,) we perhaps may find out a better, or at least a more plaufible account, why the f ftudy of the municipal laws has been banished from these feats of science, than what the learned chancellor thought it prudent to give to his royal pupil. THAT antient collection of unwritten maxims and cuf- [17] toms, 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 measure weathered the rude fhock of the Norman conqueft. This had endeared it to the people in general, as well because it's 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 confifted great part of the learning of those dark ages; it was then taught, fays Mr. Selden P, in the monasteries, in the universities, 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 VOL. I. c. 48. C rin Flelam. 7.7. prede predeceffors the British Druids ) they were peculiarly remarkable for their proficiency in the ftudy of the law. Nullus clericus nifi caufidicus, is the character given of them foon after the conquest by William of Malmsbury'. The judges therefore were usually created out of the facred order', as was likewise 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. u BUT the common law of England, being not committed to writing, but only handed down by tradition, ufe, and experience, was not so 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 strangers 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 [ 18 ] 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 the canon law from this original. The study of it was introduced into feveral univerfities 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, just then beginning o recover from the convulfions confequent X upon the overthrow of the Roman empire, and fettling by degrees into peaceable forms of government, adopted the civil law, (being the best written system then extant,) as the bafis of their several conftitutions; blending and interweaving it among their own feodal cuftoms, in fome places with a more extensive, in others a more confined authority.z 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 eagerness and zeal, yet the laity, who were more interested to preferve 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, [19] 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. d FROM this time the nation feems to have been divided into two parties; the bishops and clergy, many of them foreign ers, who applied themfelves 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 opposite system that real merit which is abundantly to be found in each (2). This appears, on the one hand, from the spleen 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 prelates 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 parliament "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 jealousy prevailing above a century afterwards, 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 [20] «be, ruled or governed by the civil law." And of this Joan. Sarifburiens. Polycrat. 5.16. gliae mutare, quae hucufque ufitatae Polydor. Virgil. Hift. 1.9. f Stat. Merton. 20 Hen. III. c. 9. Et omnes comites et barones una voce refponderunt, quod nolunt leges An funt et approbatae. 11 Ric. II. h Selden. Jan. Anglor. 1. 2. § 43: in Fortesc. c. 33. (2) Though the civil laws, in matters of contract and the general commerce of life, may be founded in principles of natural and univerfal justice, yet the arbitrary and defpotic maxims which recommended it as a favourite to the pope and Romish clergy, rendered it defervedly odious to the people of England. Quod prin cipi placuit legis habet vigorem (Inft. 1. 2. 6.), the magna charta of the civil law, could never be reconciled with the judicium parium vel les terræ. temper 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, episcopal constitutions 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 necessary to be administered, that they should in all things determine according to the law and custom 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 procefs of the court at their own difcretion. 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 universities, and froin 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 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 1 the very reading of it by the clergy, because its decifions were not founded on the imperial conftitutions, but merely on the cuf toms of the laity. And if it be confidered, that our univerfities began about that period to receive their present form of i Spelman. Concil. A. D. 1217. Wilkins, vol. 1. p.574. 599. C 3 * Selden in Fletam. 93. 1 fcholaftic |