About the time of the revival of the study of the Roman civil law, Gratian, an Italian monk, published in three volumes, arranged in titles and chapters after the manner of the Pandects, a collection of the decrees of the general councils of the church, a digest of the opinions of the fathers, and the decretals and bulls of the Holy See. Other collections had been previously made by ecclesiastics in Spain and elsewhere, but none were found to be complete or reliable. However, as Gratian's work was itself far from perfect, Pope Gregory IX. authorized Raymond de Pennafort, a learned divine, to compile a new collection, which was published by authority of his Holiness, A.D. 1234, under the title of Decretalia Gregorii Noni. It was divided into five books, and contained all that was worth preserving of Gratian, with the subsequent rescripts of the Popes, especially those of Alexander III., Innocent III., Honorius III., and Gregory IX. "In these books," says Hallam, "we find a regular and copious system of jurisprudence, derived in a great measure from the civil law, but with considerable deviation and possible improvement."[63] Boniface VIII., sixty years afterwards, published a sixth part, known as Sextus Decretalium, divided also into five books, in the nature of a supplement to the other five, of which it follows the arrangement, and is composed of decisions promulgated after the pontificate of Gregory IX. New constitutions were added by Clement V. and John XXII., under the titles respectively of Clementine and Extravagantes Johannis, and a few rescripts of later pontiffs are included in a second supplement, arranged like the Sextus, and called Extravantes Communes. Up to the Council of Pisa, in A.D. 1409, these books constituted the whole of the canon law or corpus juris canonici, and though principally intended for the government of ecclesiastics, were often applied to temporal purposes, in law and equity, when neither the civil nor common law met the requirements of a disputed point. The study of the canons had been encouraged from the first in the colleges and schools of Europe, but, upon the publication in a systematical form in the eleventh century, it became universal, and with the Roman civil law constituted an essential branch of clerical education. At first the Canonists and Glossators, as the professors of civil law were called, formed separate but not antagonistic schools, but in the thirteenth century Lanfrancus, a professor of Bologna, united the study of both laws, a custom which has since been generally adopted.
As we have before remarked, Sir William Blackstone would fain have us believe that every principle of English common law originated with, and was recognized by, the Anglo-Saxons from the remotest period of their history, but there is neither fact nor probable suspicion to sustain those unqualified statements of our partial commentator. The Romans, who held possession of Britain for more than four hundred years, may have left on the vanquished people of that country some impress of their laws, but the Britons themselves, soon after the departure of the legions, were driven to the mountains of Wales by the Angles and Saxons, and for centuries held no intercourse with the victorious intruders. These latter, the outpourings of the woods and swamps of the north, are represented by all reliable historians as the veriest barbarians, illiterate and idolatrous, and altogether incapable of conceiving or appreciating the broad principles of free government or the varied regulations which control the intercourse and commerce of man with man, such as we find in civilized society; much less those which affect the conduct of household relations, which, originating in the church, could only have been properly expounded by her ministers. The Danes, who subsequently invaded and for many years held possession of the larger portion of the island, were little less barbaric, nor can we trace to them any well-recognized custom or fundamental principle of our present laws. "In the barbarous specimens of legislation due to the era of Saxon and Danish rule," says a late able writer on this subject, "the few texts of Roman law which occur appear to us traceable through the Papal canons. How faint is the impression which even the Anglo-Saxon laws have left upon our system? We have still the local court and the local officers, and some of the rude democratic elements of judicial procedure and constitutional law have been nurtured into real civilized liberty, but happily for us, the harsh and partial regulations savoring of original Teutonic savageness which awarded the various penalties of crime have passed away, and the ancient absence of all expressed regulation in many most important points has been supplied by the legislation of more enlightened times and more cultivated men."[64] After the arrival of St. Augustine, towards the close of the sixth century, the gradual evangelization of the island of Britain necessitated the abolition of the heathen customs, the basis of the Anglo-Saxon legislation, such as it was, and the introduction of a new code of government. The primitive ignorance of the inhabitants and the subsequent decline of learning consequent on the repeated incursions of the Northmen, had the effect of limiting whatever knowledge was still possessed in the country to the ecclesiastics, who, amid the most adverse circumstances, and very often at the sacrifice of their lives, fed the torch of learning and kept its brilliancy undimmed when all around was darkness. They became not only the makers but the dispensers of the law, for, though surrounded on all sides by anarchy and ignorance, they had still the guidance of their canons and some acquaintance with the elaborate code of the empire. The clergy, admits Blackstone, "like the Druids, their predecessors, were proficient in the study of the law."
This marked and beneficial interference of the ministers of the church in the legislative and judicial affairs of newly converted nations not only arose out of political and social necessity, but may be considered as a logical sequence of the establishment of Christianity itself. "The arbitrative authority of ecclesiastical pastors," says Hallam, "if not coeval with Christianity, grew up very early in the church, and was natural and even necessary to an isolated and persecuted society, accustomed to feel a strong aversion to the imperial tribunals, and even to consider a recurrence to them as hardly consistent with their profession; the early Christians retained somewhat of a similar prejudice even after the establishment of their religion. The arbitration of their bishops still seemed a less objectionable mode of settling differences, and this arbitrative jurisdiction was powerfully supported by a law of Constantine which directed the civil magistrate to enforce the execution of episcopal awards."[65] Justinian went even further than his illustrious ancestors, for he not only gave the bishops in the first instance, without the consent of the parties, the power of trying temporal causes in which the defendant was an ecclesiastic, but the episcopal order was absolutely exempted by him from all secular jurisdiction.[66]
If such clerical intrusion into the province of the civil magistrate was not only tolerated but encouraged in the best and most Catholic days of the Western and Eastern empires, how much more salutary must it have been in its effects among the semi-civilized and turbulent Saxons and Northmen! Unfortunately, scarcely any record is left to us of the labors of the priesthood in this direction during those centuries which preceded the Norman conquest, for the compilations of Alfred and Edward the Confessor are irreparably lost; but here and there we catch a glimpse of their presence legislating or deciding causes. Thus, as early as A.D. 787, at a provincial council held at Calcluith, a place long obliterated from the map of England, it was solemnly enacted "that none but legitimate princes should be raised to the throne, and not such as were engendered in adultery or incest." "But it is to be remarked," says Hallam, "that, although this synod was strictly ecclesiastical, being summoned by the Pope's legate, yet the kings of Mercia and Northumberland, with many of their nobles, confirmed the canons by their signatures."[67] Another instance of clerical legislation is to be found in the canons of the Northumbrian clergy, and that one of peculiar interest to students of law and history, presenting, as it does, the first germ of that glory of English law not inaptly called the palladium of the subject's liberty—trial by jury.[68] "If a king's thane," says the canon, "deny this (the practice of heathen superstition), let twelve be appointed for him, and let him take twelve of his kindred or equals (maga) and twelve British strangers, and if he fail let him pay for his breach of law twelve half-marcs; if a landholder (or lesser thane) deny the charge, let as many of his equals and as many strangers be taken for him as for a royal thane, and if he fail let him pay for his breach of law six half-marks; if a ceorl deny it, let as many of his equals and as many strangers be taken for him as for the others, and if he fail let him pay twelve oræ for his breach at law."[69] This quasi-jury system appears to have been applied to other cases, for we learn from the history of Ramsey, published in Gales's Scriptores, that a controversy relating to some land between the monks and a certain nobleman was brought into the county court, when each party was heard in his own behalf, and after its commencement it was referred by the court to thirty-six thanes, equally chosen by both sides.[70]
The invasion and speedy conquest of Britain by the Normans not only overturned the Saxon dynasty, and reduced the people of that and the Danish race remaining in the country to a condition of absolute servitude, but introduced a new language and completely revolutionized the municipal laws of the entire nation. The sacrifice of human life incident to the conquest was small in comparison to the amount of misery, wretchedness, and degradation entailed on the vanquished for centuries afterwards by the conquerors-men gathered from every quarter of Europe, whose fortunes were at their swords' points, and whose fidelity and support were only to be purchased by the fruits of plunder and spoliation. Still, it must be admitted that the conquest had its advantages, and very great ones. From the departure of the Romans until the arrival of William, England proper cannot be said to have enjoyed any appreciable respite from foreign wars or domestic dissensions. The Britons, deprived of the powerful protection of the legions, were constantly harassed by their rapacious neighbors from the north side of the Tweed, and in trying to escape from them they fell into the clutches of their false allies, the Angles and Saxons, and narrowly escaped extermination. These latter were no sooner settled in the country than they established as many monarchies as they had chiefs, and, having for a time no foreign foe to contend against, readily turned their arms against each other on the slightest provocation. Weakened and distracted, they soon fell an easy prey to the piratical Northmen, who, under Canute and his successors, fastened on the fair lands of the middle and northern portions of the island and on the contiguous sea-ports a grip so tenacious that all the subsequent efforts of the Saxon monarchs could not unloosen it. This diversity of race and traditional forms of government naturally gave birth to laws and customs entirely at variance with each other in letter and spirit, and what was binding in one section was unknown or disregarded in another. The Normans, with the thoroughness of genuine conquerors, disregarded all such local distinctions, and reduced the entire native population to a level, thane and ceorl alike being made to endure the same burdens of servitude and compelled to obey implicitly the will of their new masters.
But the Normans were Christians, at least by profession, and boasted of a species of rude chivalry which prevented them from imitating the excesses of their pagan predecessors. While greedy enough for the secular lands of the defeated Saxons, they seldom interfered with churches or institutions of learning and charity; on the contrary, they were wise enough to protect the one and encourage the other in every manner possible consistent with their design of total subjection. They introduced generally the new system of feuds and a foreign hierarchy, it is true, but they did not deprive the people of the consolations of religion, and they gave to the country for the first time unity, the necessary precursor of rational freedom, and a national government with uniform laws, which, if born amid the clash of arms, rested its principal claims to support on the ways of peace.
The feudal system, though burdened with its aids, reliefs, seisin, wardship, and many other equally onerous conditions, was for that time the best and in fact the only proper form of government for England, and it is mainly to its uniform establishment by the conquerors, and to the judicious statesmanship of her great ecclesiastical lawyers, who subsequently gradually mitigated its harsher features, that the past and present greatness of that country is to be traced. The theory that the sovereign, representing the majesty of the nation, was the owner of all the lands of the kingdom, and that directly or indirectly all the occupiers of the soil were his tenants, holding by right of fealty and service, gave to the people what they so long wanted, a centre of unity and a common authority to which they could look for redress and protection. Besides, the system had become so general on the Continent, and had proved so admirable a machine for defence or aggression, that its adoption by the new Anglo-Norman kingdom had become a political necessity.
Though sadly behind many of her sister nations in the arts of government, England was not at the time of the conquest altogether deficient in the knowledge of civil or common law. On the contrary, she had many eminent professors of both. The monks of Croyland and Spaulding were distinguished as jurists, and Egelbert, Bishop of Chichester, is said, even by Norman authorities, to have been thoroughly acquainted not only with the canons and what was then known of the Roman civil law, but with "all the ancient laws and customs of the land."[71] The Normans, however, preferring to place their own countrymen in positions of trust and influence, invited from the Continent many learned bishops and professors, to whom they gave the charge of the principal sees and universities, and these, having been trained in the schools of Italy and France, soon substituted the study of the clearer and more equitable regulations of the lately-revived civil law for the illogical and conflicting customs of the natives. Thus the Pandects of Justinian were introduced into England by Vicarius, professor of canon law at Oxford, A.D. 1138, and he was succeeded by Accorso, a doctor of the civil law. Bishop Grosseteste wrote a treatise in favor of the study of Roman law, and Theobald, Archbishop of Canterbury, founded a professorship in Oxford to promote the same object. Of the latter prelate, it is said that he was accustomed to retain in his house "several learned persons famous for their knowledge of law, who spent the hours between prayers and dinner in lecturing, disputing, and debating causes."[72]
The conquerors of the Anglo-Saxons, though by no means deficient in the scholarship and accomplishments of that rude age, were too intent on retaining by force the possessions they had won by the strong arm, to cultivate the arts of peace, and, consequently, the framing of the laws, the judicial authority, and even the pleading of causes, necessarily devolved on the ecclesiastics. Hallam, a writer equally prejudiced with Blackstone, though a much better historian, is forced to admit that "the bishops acquired and retained much of their ascendency by a very respectable instrument of power—intellectual superiority. As they alone were acquainted with the art of writing, they were naturally entrusted with political correspondence and the making of the laws."[73] And it was well for the conqueror and conquered alike that it was so, for to them, and them alone, was given the skill and authority to restrain with one hand the ruthless oppressions of the lawless barons, and with the other to alleviate the sufferings of a down-trodden people. To the wisdom that proceeds from long communion with the works of great and good men they joined the authority of the church, which they failed not to call into requisition when persuasion and reasoning equally failed. To them we owe every successful effort that was made in the middle age of England's history, either against the tyranny of the crown or the injustice of the nobles. Magna Charta, that famous instrument, which, like our own constitution, is so frequently talked about and so little understood, issued from the fertile brain of Archbishop Langton, and was signed by every bishop and abbot in the land.[74] It was they who took up the serf, educated and ordained him, and made him not only the equal but in many cases the superior of his late master. They also regulated the alienation and descent of lands, and by their introduction of fines and recoveries, uses and trusts, and other forms of conveyance, not only abolished many of the worst evils of feudalism, but even, according to Blackstone, "laid the foundation of modern conveyancing." For many centuries they were the confidential advisers of kings, their trusted ambassadors abroad, and their names always appeared first in every writ summoning a council or parliament to legislate for the welfare of the realm, and the laws thus made were regularly dispensed in the county courts by the bishops and the civil magistrates sitting together with equal jurisdiction.
But it was in the court of chancery that the wisdom, clemency, and equity of the bishops of those days shone with the greatest brilliancy. This was a court of extraordinary jurisdiction, unknown in England before the conquest and unparalleled in contemporary nations. The chancellor and his assistants, almost without exception, up to the time of Wolsey, were ecclesiastics. Their decisions, resting upon conscience alone, though unsupported by express statute or even in contravention of its letter, had all the force of legal enactments, and formed, collectively, the basis of much of our modern remedial legislation, as well as an unerring rule for the guidance of our highest civil justices. The affairs of married persons, infants, idiots, corporations, bankrupts, testators and intestates, grantors and grantees of land, and of nearly every conceivable condition of life, are even at the present day within the special and almost exclusive jurisdiction of our courts of equity. In the words of a distinguished English lawyer, "It gives relief for and against infants, notwithstanding their minority, and for and against married women, notwithstanding their coverture. All frauds and deceits for which there is no redress at common law, all breaches of trust and confidence, and unavoidable casualties, by which obligors, mortgagors, and others may be held to incur penalties and forfeitures, are here remedied. This court also gives relief against the extremity of unreasonable engagements entered into without consideration, obliges creditors who are unreasonable to compound with an unfortunate debtor, and makes executors, etc., give security and pay interest for money which is to be long in their hands. The court may confirm the title to lands, though one has lost his writings, render conveyances which are defective through mistake or otherwise good and perfect. In chancery, copyholders may be relieved against the ill-usage of their lords, enclosures of land which is common may be decreed, and this court may also decree the disposition of money or lands given to charitable uses, oblige men to account with each other," etc.[75]