of Juftinian or Gregory, or is conformable to the decrees of the Rota or imperial chamber. For which reafon it becomes. highly neceffary for every civilian and canonift, that would act with safety as a judge, or with prudence and reputation as an advocate, to know in what cafes and how far the English laws have given fanction to the Roman; in what points the latter are rejected; and where they are both fo intermixed and blended together as to form certain fupplemental parts of the common law of England, distinguished by the titles of the king's maritime, the king's military, and the king's ecclefiaftical law. The propriety of which inquiry the university of Oxford has for more than a century fo thoroughly feen, that in her ftatutes' fhe appoints, that one of the three queftions to be annually difcufied at the act by the jurist-incep tors fhall relate to the common law; fubjoining this reason, [ 16 ] “ quia juris civilis ftudiofos decet haud imperitos esse juris muni"cipalis, et differentias exteri patriique juris notas habere.” And the statutes of the university of Cambridge fpeak exprefsly to the fame effect. m FROM the general use and neceffity of fome acquaintance with the common law, the inference was extremely easy with regard to the propriety of the present institution, in a place to which gentlemen of all ranks and degrees refort, as the fountain of all useful knowledge. But how it has come to pass that a design of this fort has never before taken place in the university, and the reason why the study of our laws has in general fallen into difufe, I fhall previously proceed to inquire. SFR John Fortefque, in his panegyric on the laws of England, (which was written in the reign of Henry the fixth) puts a very obvious question in the mouth of the young 1 Tit. VII. Sect. 2. §2. Doctor legum mox a doctoratu dabit peram legibus Angliae, ut non fit imperitus earum legum quas habet fua patria, et differentias exteri patriique juris nofcat, Stat. Eliz. R. 6. 14. Cowel. Inftitut. in proïmio. 6.47. prince, prince, whom he is exhorting to apply himself to that branch of learning; "why the laws of England, being fo good, « so fruitful, and fo commodious, are not taught in the uni"versities, 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 reafon; 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"fities all sciences were taught in the Latin tongue only;" and therefore he concludes, "that they could not be conve"niently taught or ftudied in our univerfities." But without attempting to examine seriously the validity of this reason, (the very shadow 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 science, than what the learned chancellor thought it prudent to give to his royal pupil. THAT antient collection of unwritten maxims and cuf-17 1 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 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 knowledge of this law confifted great part of the learn ing of those dark ages; it was then taught, fays Mr. Selden ?, in the monafteries, 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 • 6.48. VOL. I. C P in Fletam.7.7. predeceffors predecesors the British Druids ) they were peculiarly remarkable for their proficiency in the study of the law. Nullus clericus nifi caufidicus, is the character given of them soon, after the conqueft by William of Malmsbury'. The judges therefore were ufually created out of the facred order', 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, ufe, 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 flrangers to our constitution 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 " difcovered 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 its authority remained in Italy and the eastern provinces of the empire". This now became in a particular manner the favourite of the popifh clergy, who borrowed the method and many of the maxims of the canon law from this original. The ftudy 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, juft then beginning to recover from the convulfions confequent 9 Caefar de bello Gal. 6. 12. Les juges font fages perfonnes et au- fainte eglife; les abbex, les prieurs con- Circ. A.D. 1130. * Capitular. Hludov. Pii. 4. 102. upon upon the overthrow of the Roman empire, and fettling by degrees into peaceable forms of government, adopted the civil law, (being the best written fyftem then extant,) as the bafis of their several conftitutions; blending and interweaving it among their own feodal cuftoms, in fome plates with a more extenfive, in others a more confined authority ». 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 eafy reception in England, where a mild and rational fyftem 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 juftice, 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 bishops and clergy, many of them foreign ers, who applied themselves wholly to the ftudy 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 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 reason, because holy church (that is, the canon law) declared such children legitimate: but "all the earls and barons (says 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 fhall it ever [20] "be, ruled or governed by the civil law." And of this Joan Sarifburiens. Polycrat. 5. 16. quae hucufque ufitatae funt et appro Polydor. Virgil. Hift. l. 9. f Stat. Merton. 20 Hen. III. c. 9. Et omnes comites et barones una voce refpon n Selden. Jan. Anglor. L. 2. § 43derunt, quod nolunt leges Angliae mutare, in Fortefc.c. 33. (2) Though the civil law, in matters of contract and the general commerce of life, may be founded in principles of natural and univerfal juftice, yet the arbitrary and defpotic maxims, which recommended it as a favourite to the pope and Romish clergy, rendered it deservedly odious to the people of England. Quod principi placuit legis habet vigorem, (Inft. 1. 2. 6.) the magna charta of the civil law, could never be reconciled with the judicium parium vel lex terra. temper |