reasons for his decision, so that, the grounds on which it rested being understood, the judgment itself may afterwards be confidently applied.(i) (3) *Admitting that a knowledge of our laws is, for most of our fellow[*10] countrymen, desirable, and for some essential, a brief inquiry may Causes of the proper why legal studies, now happily reviving, fell, during a study of the law. long period, into disrepute and neglect amongst us. neglect of the be Sir John Fortescue, in his panegyric on the laws of England(k) (written in the reign of Henry VI.), puts a very obvious question in the mouth of the young prince, whom he is exhorting to apply himself to that branch of learning:-"why the laws of England, being so good, so fruitful, and so commodious, are not taught in the universities, as the civil and canon laws are?" In answer to which he gives (1) what seems, with due deference be it spoken, a very jejune and unsatisfactory reason; being, in short, that "as the proceedings at common law were, in his time, carried on in three different tongues, the English, the Latin, and the French, that science must be necessarily taught in those three several languages; but that in the universities, all sciences were taught in the Latin tongue only;" and therefore he concludes that the laws of England "could not be conveniently taught or studied in our universities." But, without attempting to examine seriously the validity of this reason (the very shadow of which has been taken away), we perhaps may find out a better, or at least a more plausible explanation, why the study of the municipal laws was at one time banished from our seats of science, than that which 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 (m), has subsisted immemorially in this kingdom; and, though somewhat altered and impaired by the violence of the times, it in great measure weathered the rude shock of the Norman conquest. It became endeared to the people [*11] 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(n). In the knowledge of this law consisted great part of the learning (i) In Wilkes's case, 19 St. Tr. 1098, Lord Mansfield observed:-"It is not only a justice due to the Crown and the party in every criminal cause where doubts arise to weigh well the grounds and reasons of the judgment, but it is of great consequence to explain them with accuracy and precision in open court, especially if the questions be of a general tendency, and upon topics never before fully considered and settled-that the criminal law of the land may be certain and known." It was indeed affirmed by no less considerable a judge than Lord Hardwicke that courts neither of equity nor of law are obliged to give reasons for their judgments (Gregory v. Molesworth, 3 Atk. 627); but (m) As to which, post, p. 55. (n) In Barnardiston v. Soame, 6 St. Tr. 1089, it was judicially remarked that "our common law complies with and conforms to the general opinion and genius of the kingdom. It values what they esteem and value, and disesteems what they value not." (3) It is always desirable that a judge should declare the true grounds, as well as to assign sufficient reasons for the judgment which he pronounces. And yet, if his decision is correct, and in accordance with the law, it will be sustained, although the reasons he assigns for it are entirely erroneous and insufficient. Gillespie v. Torrance, 7 Abb. 462; Munro v. Potter, 34 Barb. 358; Deland v. Richardson, 4 Denio, 95; Hanford v. Archer, 4 Hill, 273; Holtsinger v. National Corn Exchange Bank, 6 Abb. N. S. 292; 37 How. 203; 1 Sweeny, 64; Beckwith v. Whalen, 5 Lans. 376; Ohio and Mississippi R. R. Co. v. Shultz, 31 Ind. 150. of the dark ages; it was taught, says Mr. Selden (o), 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 (p)) were they 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(q). The judges, therefore, were usually created out of the sacred order(r), as was likewise the case among the Normans(s); and all the inferior legal offices were filled by the lower clergy, which has occasioned their successors to be denominated "clerks" to this day. of the foreign clergy. The common law of England, however, being not committed to writing(t), but handed down by tradition, use, and experience, was not so heartily relished The irruption 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 to our language. About the middle of the twelfth century, moreover, the study of the civil law revived throughout the west of Europe, where before it had been laid aside (u) though some traces of [*12] *its authority remained in Italy(x) and the eastern provinces of the empire(y). It 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 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 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 feudal customs, with, in some places, a more extensive, in others a more confined authority(z). who preferred the civil law. Nor was it long before the prevailing mode of the times reached England. For Theobald, a Norman abbot, being elected to the see of Canterbury (a), 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 comparatively 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 preserve the old constitution, and had already severely felt the effect of many Norman innovations, (0) In Fletam, 7. 7. (p) Cæsar de bello Gal. 6. 13. (q) De gest. reg. 1. 4. (r) Dugdale Orig. jurid. c. 8. (8) Les juges sont sages personnes et autentiques-sicome les archevesques, evesques, les chanoines des eglises cathedraulx, et les autres personnes qui ont dignitez in sainctes eglises; les abbez, les prieurs conventaulx, et les gouverneurs des eglises, &c. Grand Coustumier, ch. 9. [*13] continued wedded to the use of the common law. King Stephen, shortly *after the establishment of Vacarius as a professor, published a proclamation(c), forbidding the study of the laws then newly imported from Italy, which was treated by the monks(d) 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. and endeavored into this coun try. From this time the nation seems 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 to introduce it 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 may appear, on the one hand, from the spleen with which the monastic writers (e) speak of our municipal laws, and, on the other, from the firm temper which the nobility showed at the famous parliament of Merton, when the prelates endeavoured to procure an act, to declare all bastards legitimate in case the parents intermarried, 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(ƒ)), 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 afterwards (g), when the nobility declared, with a kind of prophetic spirit, "that the *realm of England hath never been [*14] unto this hour, neither by the consent of our lord the king, and the lords of parliament, shall it ever be, ruled or governed by the civil law "(h). And of this temper between the clergy and laity many more instances might be given(i). The withdrawal of the clergy from practice. 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 end, very early in the reign of king Henry III., episcopal constitutions were published(k), forbidding ecclesiastics 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 high office of chancellor; an office then of little juridical power; and afterwards, as its business increased by degrees, they modelled the process of his court at their own discretion. But wherever they retired, and wherever their authority extended, they carried with them the same zeal to introduce the rules of the civil, in exclusion (c) Rog. Bacon, citat. per Selden in Fletam. 7.6. & in Fortesc. c. 33; 8 Rep. Pref. (d) Joan. Sarisburiens. Polycrat. 8. 22. (e) Joan. Sarisburiens. Polycrat. 5. 16. Polydor. Virg. Hist. 1. 9. (f) Et omnes comites et barones una voce responderunt, quod nolunt leges Angliæ mutare, quæ hucusque usitatæ sunt et approbatæ. Stat. Merton, 20 Hen. III. c. 9. VOL. I.-2 The common the clergy. of the municipal law. This appears in a particular manner from the spiritual courts of all denominations, from the chancellor's court at the university of Cambridge, and from the court of chancery before mentioned; law despised by 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 assigned, unless that these courts were all under the immediate direction of the popish ecclesiastics, among whom it was a point of religion to exclude the municipal law; Pope Innocent IV. having forbidden (m) the very reading of it by the *clergy, because its decisions were not founded on the imperial [ *15] constitutions, but merely on the customs of the laity. And remembering that our universities continued to be, till the time of the Reformation, entirely under the influence of the popish clergy, we shall perceive the reason why the study of the Roman laws was in those days of bigotry pursued with such alacrity in these seats of learning; and why the common law was entirely despised, and esteemed little better than heretical. And, after the Reformation, many causes conspired to prevent our municipal law from becoming a part of academical education. As, first, long usage and established custom; which, as in everything else, so especially in aged in the uni- the forms of scholastic exercise, have justly great weight and versities. authority. Secondly, the real intrinsic merit of the civil law, and not encour considered upon the footing of reason and not of obligation, which was well known to the instructors of our youth; and their total ignorance of the merit of the common law, though its equal at least, and perhaps an improvement on the other. Thirdly and principally, because the study of the common law, having been banished from our universities in the times of popery, fell into a quite different channel, and was wholly cultivated in another place. For being then entirely abandoned by the clergy, a few stragglers excepted, the study and practice of it devolved of course into the hands of laymen: who entertained upon their parts a most hearty aversion to the civil law(n), and made no [ *16] scruple to profess their contempt for, nay even their ignorance(o) of *it, in the most public manner. After the withdrawal, indeed, of the clergy from practice in the temporal courts, the common lawyers made a firm and successful opposition to the efforts of the Anglican hierarchy to free themselves from the control of the law. This is shown at various epochs of our history. Before the Reformation the papal clergy had two principal objects in view, the withdrawal of spiritual persons from lay jurisdiction; and 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 (m) M. Paris ad A. D. 1254. (0) This remarkably appeared in the case of the abbot of Torun, M. 22 Edw. III. 24, who had caused 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 (Dig. 39. 1; C. 8. 11; Decretal. not Extrav. 5. 32), whereby the erection of any new buildings in prejudice of more an cient ones was prohibited. But Skipwith, the king's serjeant, and afterwards Chief Baron of the Exchequer, declares them to be flat nonsense: "in ceux parola, contra inhibitionem novi operis, ny ad pas entendment:" and Justice Schardelow mends the matter but little by informing him that they signify a restitution in their law; for which reason he very sagely resolves to pay no sort of regard to them, "Ceo n'est que un restitution en leur ley, pur que a ceo n'avomus regard, &c." Clarendon, whilst the writ of prohibition checked every successive attempt to seize upon the latter. In order to free himself from the control of this writ, Archbishop Boniface struggled 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 excommunication if they should dare to issue prohibitions on the matters specified in his articuli cleri. Yet, says Lord Coke (p), notwithstanding the greatness of the archbishop, and that divers of the judges and all the great officers of state were clergy, the judges proceeded according to the laws of the realm, and still kept, though with great difficulty, the ecclesiastical courts within their just and proper limits. At the Reformation the contending parties came to issue in the parliament held in the 21st year of Henry VIII., on the abuses of the church. In that parliament three bills were sent up to the lords from the commons, one against unreasonable exactions of fees for the probate of wills, *another against mortuaries, [*17] 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. These bills having eventually been passed (q), were, after a long interval, followed up by enactments against appeals to Rome(r), for the submission of the clergy(s), against payment of first fruits to the pope, and for the election of bishops(t), against Peter's pence and dispensations(u), for the king's supremacy(x), for the suppression of the lesser monasteries(y), for extinguishing the authority of the pope(z), and for the total suppression of the monasteries(a). Even during the reign of Elizabeth, the animosity between the lawyers and the clergy was not entirely dormant(b), and 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(c), and the articuli cleri of Archbishop Bancroft (d) in the same year. The successful opposition made by the judges to the pretensions of Bancroft only served to exasperate both parties, and to aggravate that jealousy of the ecclesiastical courts, which the common lawyers had long entertained(e). But the supremacy of the legal over the ecclesiastical power was shortly after this period finally established. *In the thirteenth century an incident had occurred which greatly [*18] tended to the support of our common law. This incident was the fixing The court of common pleas the court of common pleas, the grand tribunal for disputes concerning property, in one certain spot; that the seat of ordinary justice might be permanent and notorious to all the nation. This court had previously been held before the king's chief justiciary of Eng fixed in one spot. |