That ancient collection of unwritten maxims and customs, says he, which is called the common law, however compounded or from whatever fountains derived, had subsisted immemorially in this kingdom: and, though somewhat altered and impaired by the violence of the times, had in a great measure weathered the rude shock of the Norman conquest. This had endeared it to the people 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. In the knowledge of this law consisted great part of the learning of those dark ages; it was then taught, says Mr. Selden, 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) they were peculiarly remarkable for their proficiency in the study of the law.
‘But the common law being not committed to writing, but only handed down by tradition, use, and experience, was not so heartily relished 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 our language. And an accident, which soon after happened, had nearly completed its ruin.’
A copy of Justinian’s Pandects, being newly discovered at Amalfi, about A.D. 1130, soon brought the civil law into vogue all over the rest of Europe. It became in a particular manner the favourite of the Popish clergy; and Theobald, a Norman Abbot, being elected to the see of Canterbury, A.D. 1138, 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 to teach it. The monkish clergy (devoted to the will of a foreign Primate) received it with eagerness and zeal; but the laity, who were more interested to preserve the old constitution, and had already severely felt the effect of many Norman innovations, continued wedded to the use of the common law.
The clergy, finding it impossible to root out the municipal law, withdrew by degrees from the temporal courts; and in 1217, they passed a canon in a national synod, forbidding all ecclesiastics to appear as advocates in foro sæculari[[1]]; 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 the court at their own discretion.
[1]. Sir H. Spelman conjectures (Glossar 335.) that coifs were introduced to hide the tonsure of such renegade clerks, as were still tempted to remain in the secular courts in the quality of advocates or judges, notwithstanding their prohibition by canon.
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 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; in all of which the proceedings are to this day in a course much conformed to the civil law. And if it be considered, that our universities began about that period to receive their present form of scholastic discipline; that they were then, and continued to be till the time of the reformation, entirely under the influence of the Popish clergy; this will lead us to perceive the reason, why the study of the Roman laws was in those days of bigotry[[2]] pursued with such alacrity in these seats of learning.
Since the reformation, the principal reason 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.
As the common law was no longer taught, as formerly, in any part of the kingdom, it perhaps would have been gradually lost and over-run by the civil, had it not been for the peculiar incident which happened at a very critical time, of fixing the court of Common Pleas, the grand tribunal for disputes of property, to be held in one certain spot; that the seat of ordinary justice might be permanent and notorious to all the nation. Formerly that, in conjunction with all the other superior courts, was held before the King’s justiciary of England, in the aula regis, or such of his palaces wherein his royal person resided, and removed with his houshold from one end of the kingdom to the other. This was found to occasion great inconvenience to the suitors; 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 some certain place:” in consequence of which they have ever since been held (a few necessary removals in times of the plague excepted) in the palace of Westminster only. This brought together the professors of the municipal law, who before were dispersed about the kingdom, and formed them into an aggregate body; whereby a society was established of persons, who (as Spelman observes) addicted themselves wholly to the study of the laws of the land.
[2]. There cannot be a stronger instance of the absurd and superstitious veneration that was paid to these laws, than that the most learned writers of the times thought they could not form a perfect character, even of the blessed Virgin, without making her a Civilian and a Canonist. Which Albertus Magnus, the renowned Dominican Doctor of the thirteenth century, thus proves in his Summa de laudibus Christiferæ Virginis (divinum magis quam humanum opus) qu. 23. §. 5. “Item quod jura civilia, & leges, & decreta scivit in summo, probatur hoc modo: sapientia advocati manifestatur in tribus; unum, quod obtineat omnia contra judicem justum & sapientem; secundo, quod contra adversarium astutum & sagacem; tertio, quod in causa desperata: sed beatissima Virgo, contra judicem sapientissimum, Dominum; contra adversarium callidissimum, dyabolum; in causa nostra desperata; sententiam optatam obtinuit.“
They naturally fell into a kind of collegiate order; and, being excluded from Oxford and Cambridge, established a new university of their own, by purchasing certain houses (now called the Inns of Court and 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.