foon brought the civil law into vogue all over the west 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 their canon law from this original. The ftudy of it was introduced into several universities abroad, particularly that of Bologna; where exercises 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 convulfions confequent 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 basis of their several constitutions; blending and interweaving it among their own feodal customs, in fome places with a more extensive, 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 univerfity 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 eagernefs and zeal, yet the laity, who were more interested to preferve the old constitution, and had already feverely felt the effect of many Norman innovations, continued wedded to the use of the common law. King Stephen immediately pub * LL. Wifigetb. 2. 1. 9. z Domat's treatise of law, c. 13. §.9. Epiftol. Innocent. IV. in M. Paris ad A. D. 1254. a A. D. 1138. b Gervaf. Dorobern: A. Pontif.Cana tuar. col. 1665. lifhed lished a proclamation, forbidding the study of the laws, 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. e FROM this time the nation feems 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 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. 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 bastards legitimate in case 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 (says the parlia "ment 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 fpirit," that the realm of England hath "never been unto this hour, neither by the confent of our "lord the king and the lords of parliament shall it ever be, c Rog. Bacon citat. per Selden in Fletam. 7.6. inFortefc. c. 33. & 8 Rep. Pref. d Joan. Sarifburiens. Polycrat. 8. 22. e Idem, ibid. 5. 16. Polydor. Virgil. Hift. 1. 9. B 2 f Stat. Merton. 20 Hen. III. c. 9. Et omnes comites et barones una voce refponderunt, quod nolunt leges Angliae mutare, quae hucufque ufitatae funt et approbatae. g 11 Ric. II. "ruled 1 "ruled or governed by the civil law h." And of this 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 conftitutions 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 neceffary to be administered, that they fhould in all things determine according to the law and cuftom of this realm; though they ftill kept poffeffion of the high office of chancellor, an office then of little juridical power; and afterwards, as it's bufinefs increased 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 spiritual courts of all denominations, from the chancellor's courts in both our universities, and from the high court of chancery beforementioned; in all of which the proceedings are to this day in a courfe 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 it's decifions were not founded on the imperial constitutions, but merely on the customs of the laity. And if it be confidered, that our universities began about that period to receive their present form of scholastic discipline; that they were then, and continued to h Selden. Jan. Anglor. 1. 2. §. 43. kins, vol. 1. p. 574. 599. in Fortefe. c. 33. i Spelman. Concil. A. D. 1217, Wil k Selden in Fletam. 9. 3. 1 M. Paris ad A. D. 1254. be be till the time of the reformation, entirely under the influ ence of the popish clergy; (fir John Mason the first protestant, being alfo the first lay, chancellor of Oxford) this will lead us to perceive the reason, why the ftudy of the Roman laws was in those days of bigotry" pursued with such 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 it's 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 reason 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 ba nished 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 m There cannot be a stronger instance of the abfurd and fuperftitious veneration that was paid to these laws, than that the moft learned writers of the times thought they could not form a perfect character, even of the bleffed virgin, without making her a civilian and a canonift. Which Albertus Magnus, the renowned dominican doctor of the thirteenth century, thus proves in his Summa de laudibus chriftiferae virginis (divinum magis quam bumanum opus) qu. 23. §. 5. "Item quod jura civilia, & leges, & de❝ creta fcivit in fummo, probatur boc modo: "fapientia advocati manifeftatur in tribus; “unum,quod obtineat omnia contra judicem juris. Legitur enim de uxore Joannis "Andreae gloffatoris, quod tantam peri«tiam in utroque jure habuit, ut publice " in fcholis legere ausa fit.” B 3 laws laws will probably be more generally known; we may hope that the method of studying them will foon revert to it's antient course, and the foundations at least of that science will be laid in the two universities; 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 most 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 inconveniencies, and perhaps would have been gradually loft and overrun by the civil, (a fufpicion well juftified 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 it's fupport. THE incident which I mean was the fixing the court of common pleas, the grand tribunal for difputes of property, to be held in one certain spot; that the feat of ordinary justice might be permanent and notorious to all the nation. Formerly that, in conjunction with all the other fuperior n 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 fummoned to anfwer 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 |