fcholaftic difcipline: that they were then, and continued to [21] be till the time of the reformation, entirely under the influence of the popish clergy; (Sir John Mason the first protestant, being alfo the first lay, chancellor of Oxford;) this will lead us to perceive the reafon, why the ftudy of the Roman laws was in those days of bigotry m pursued with fuch alacrity in these feats of learning: and why the common law was entirely defpifed, and esteemed little better than heretical. AND, fince the reformation, many causes have conspired to prevent its becoming a part of academical education. As, firft, long ufage and established cuftom; which, as in every thing else, so especially in the forms of scholastic exercise, have justly great weight and authority. Secondly, the real intrinfic merit of the civil law, confidered upon the footing of reafon and not of obligation, which was well known to the inftructors of our youth; and their total ignorance of the merit of the common law, though it's equal at least, and perhaps an improvement on the other. But the principal reafon 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 different channel, and has hitherto been wholly cultivated 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 merit of those laws will probably be more generally known; we [ 22 ] may hope that the method of studying them will foon revert to its antient courfe, and the foundations at least of that feience will be laid in the two univerfities; without being exclufively confined to the channel which it fell into at the times I have just been defcribing. FOR, being then entirely abandoned by the clergy, a few ftragglers excepted, the study and practice of it devolved of course into the hands of laymen: who entertained upon their parts a moft hearty averfion to the civil law", and made no fcruple to profess their contempt, nay even their ignorance° of it, in the moft public manner. But ftill as the balance of learning was greatly on the fide of the clergy, and as the common law was no longer taught, as formerly, in any part of the kingdom, it must have been fubjected to many inconveniences, and perhaps would have been gradually loft and overrun by the civil, (a fufpicion well justified from the frequent tranfcripts of Juftinian 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. Fortefc. de laud. LL. c.25. • This remarkably appeared in the cafe of the abbot of Torun, M. 22 Edw. III. 24. who had caufed 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. not Extrav. 5. 32.) whereby the erection of any new buildings in prejudice of more antient ones was prohibited. But Skipwith the king's ferjeant, and afterwards chief baron of the Exchequer, declares them to be flat nonsense; “in ceux parolx, contra in"hibitionem novi operis ny ad pas en"tendment:" and juftice Schardelow mends the matter but little by informing him, that they fignify a restitution in their law: for which reason he very sagely refolves to pay no fort of regard to them, "Ceo n'eft que un reflitution en leur ley, pur que a ceo n'avemus regard,&c." C 4 THE THE incident which I mean was the fixing the court of common pleas, the grand tribunal for disputes of property, to be held in one certain fpot; that the feat of ordinary justice might be permanent and notorious to all the nation. Formerly that, in conjunction with all the other fuperior courts, [23] was held before the king's capital jufticiary of England, in the aula regis, or fuch of his palaces wherein his royal perfon refided; and removed with his household from one end of the kingdom to the other. This was found to occafion great inconvenience to the fuitors; to remedy which it was made an article of the great charter of liberties, both that of King John and King Henry the third", that "common pleas should "no longer follow the king's court, but be held in fome "certain place:" in confequence of which they have ever fince been held (a few neceffary removals in times of the plague excepted) in the palace of Westminster only. This brought together the profeffors of the municipal law, who before were dispersed about the kingdom, and formed them into an aggregate body; whereby a fociety was established of perfons, who, (as Spelman observes,) addicting themselves wholly to the study of the laws of the land, and no longer confidering it as a mere fubordinate science, for the amusement of leisure hours, foon raised those laws to that pitch of perfection, which they suddenly attained under the auspices of our English Juftinian, king Edward the first. IN confequence of this lucky affemblage, they naturally fell into a kind of collegiate order; and, being excluded from Oxford and Cambridge, found it neceffary to establish a new univerfity 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. Here exercifes were performed, lectures * Fortefc. c. 48. PC. II. & Gloffar. 334. read, read, and degrees were at length conferred in the common Jaw, as at other universities in the canon and civil. The degrees were thofe of barristers (first styled apprentices * from apprender, to learn) who answered to our bachelors: as the [ 24 ] ftate and degree of a ferjeant, servientis ad legem, did to that of doctor. THE Crown feems to have foon taken under its protection this infant feminary of common law; and, the more effectually to foster and cherish it, king Henry the third, in the nineteenth year of his reign, iffued 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 ". The word, law, or leges, being a general term, may create fome doubt at this distance of time, whether the teaching of the civil law, or the common, or both, is hereby reftrained. But in either cafe it tends to the fame end. If the civil law only is prohibited, (which is Mr. Selden's w opinion,) it is then a retaliation upon the clergy, who had ex • Apprentices or barristers feem to have been first appointed by an ordimance of king Edward the first in parliament, in the 20th year of his reign. (Spelm. Gloff. 37. Dugdale, Orig. Jurid. 55.) t The first mention which I have met with in our law-books of ferjeants or countors, is in the ftatute of Westm. 1. 3 Ed. I. c. 29. and in Horn's Mirror, c. 1. § 10. c. 2. § 5. c. 3. § 1. in the fame reign. But M. Paris, in his life of John II. abbot of St. Albans, which he wrote in 1255, 30 Hen. III., fpeaks 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 fame author's hiftory of England, A. D. 1259, in the cafe of one William de Buffy, who, W being called to account for his great Ne aliquis fcholas regens de legibus win Flet. 8. 2. cluded [ 25 ] cluded the common law from their feats of learning. If the municipal law be alfo excluded in the restriction, (as Sir Edward Coke understands it, and which the words feem 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 univerfity, which was newly inftituted in the fuburbs. In this juridical univerfity (for fuch it is infifted to have been by Fortefcue and fir Edward Coke 2) there are two forts of collegiate houses; one called inns of chancery, in which the younger students of the law were ufually placed, "learning and ftudying," says Fortefcue," the originals, and << as it were the elements of the law; who, profiting therein "as they grew to ripeness, so were they admitted into the "greater inns of the fame study, called the inns of court." And in these inns of both kinds, he goes on to tell us, the knights and barons, with other grandees and noblemen of the realm, did use to place their children, though they did not defire to have them thoroughly learned in the law, or to get their living by its practice: and that in his time there were about two thousand ftudents at these several inns, all of whom he informs us were filii nobilium, or gentlemen born. HENCE it is evident, that (though under the influence of the monks our univerfities neglected this ftudy, yet) in the time of Henry the fixth it was thought highly neceffary, and was the univerfal practice, for the young nobility and gentry to be inftructed in the originals and elements of the laws. But by degrees this cuftom has fallen into disuse; so that in the reign of queen Elizabeth fir Edward Cokeb does not reckon above a thousand students, and the number at prefent is very confiderably lefs. Which feems principally owing to these reasons: firft, because the inns of chancery being |