the British Druids).(q) they were 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 Malmsbury.(r) The judges therefore were usually created out of the sacred order,(s) as was likewise the case among the Normans;(t) and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated clerks to this day. [*18 But the common law of England, 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(u) discovered at Amalfi, *soon brought the civil law into vogue all over the west of Europe, where before it was quite laid aside,(w) and in a manner forgotten, though some traces of its authority remained in Italy(x) and the eastern provinces of the empire. (y) 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 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 feodal customs, in some places with a more extensive, in others a more confined authority.(z) 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 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 • The common account of this matter is that this copy of the Pandects was transcribed at Constantinople, in the seventh century, by a Greek scribe. It was discovered at Amalfi, A.D. 1135, by the Pisans, who took that city. Their ally, Lothaire II., granted them the copy in recompense of their services. On Pisa being taken by the Florentines,, A.D. 1406, it was transported to Florence, rebound in purple, placed in a rich casket in the ancient palace of the republic as a sacred relic, and shown to the curious by the monks or magistrates uncovered. It is supposed that all editions of the Pandects trace their origin to this copy. M. Savigny contests the whole of this account, and, after examination of the historical evidence produced in its favour, pronounces it unsatisfactory, (Hist. Droit Rom., vol. ii. c. 15.) Mr. Hallam also gives reasons for doubting it, (Middle Ages, vol. ii. p. 520.) The Florentine manuscript is undoubtedly the oldest in existence; but it appears to be the better opinion that many others were copied from still older ones. They were quoted by John of Chartres, who died A.D. 1117, by Theobald, Archbishop of Canterbury, and by Vacarius, the first professor of civil law in England, in a.p. 1140.-Colquhoun's Summary, vol. i. p. 67.-SHARSWOOD. Norman innovations, continued wedded to the use of the common law. *19] King Stephen immediately *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. 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 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 appears. on the one hand, from the spleen with which the monastic writers(e) speak of our municipal laws upon all occasions; and, on the other, from the firm temper which the nobility shewed 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 reason, because holy church (that is, the canon law) declared such children legitimate; but "all the earls and barons (says the parliament roll)(f) 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 unto this hour, neither by the consent of our lord the king, and the lords of parliament, shall it *20] 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. 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 the Third, (c) Rog. Bacon citat. per Selden, in Fletam. 7, 6, in For- barones una voce responderunt, quod nolunt leges Anglia tesc. c. 33, and 8 Rep. Pref. mutare, quæ hucusque usitatæ sunt et approbatæ. (g) 11 Ric. II. (d) Joan Sarisburiens. Polycrat. 8, 22. (e) Idem, ibid. 5, 16. Polydor. Virgil. Hist. 1. 9. (f) Stat. Merton. 20. Hen. III. c. 9. Et omnes comites et (A) Selden, Jan. Anglor, l. 2. § 43, in Fortesc. c. 33. Mr. F. Hargrave, in his notes to the first volume of Blackstone, has here presented an interesting history of the contests which have existed since this event between the clergy and the common lawyers. He shows that prior to the Reformation the latter kept the ecclesiastics within proper bounds,-that they were prominent actors in the events of the Reformation. Subsequently, if we are to believe Whitelocke's speech to the House of Commons in 1649, (Parl. Hist. iii. 1341,) the lawyers bore no mean part in the field of battle on the side of the Parliament. "The gown," says he, "does not abate a man's courage or his wisdom, or make him less capable of using a sword. You all know this to be true by the great services performed by Lieutenant-General Jones, and Commissary Ireton, and many of the members and other lawyers, who, putting off their gowns when you required it, have served you stoutly and successfully as soldiers, and undergone great dangers and hardships." He remarks, also, that in the Westminster Assembly, Hale, Maynard, Wilde, Selden, Whitelocke, St. John, and other lawyers, successfully resisted the attempts of the Presbyterians to clothe themselves with the jus divinum, which had just been stripped from the deposed hierarchy. Bishop Burnet, indeed, seems to have thought that antipathy to the national church is an inseparable characteristic of the lawyers. In his account of the contests between the French bishops and the parliament of Paris, in the beginning of the seventeenth century, is the following passage:-"It has been everywhere observed that no host of men have made head against those things which have been called rights of the church, with more zeal and indignation than lawyers and secular courts. This ecclesiastics impute to their enmity to the church and their envy at her prosperity; lawyers, on the other hand, pretend that their studies carry them further than other men into the discovery of those cheats and late inventions by which the world has been imposed on in former ages."-(Rights of Princes, ch. 8.)-SHARSWOOD. episcopal constitutions were published,() forbidding all 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,(k) 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. 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 before mentioned; 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 the Fourth having forbidden(7) the very reading of it by the clergy, because its decisions were not founded on the imperial constitutions, but merely on the customs of the laity. 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 [ *21 till the time of the Reformation, entirely under the influence of the popish clergy; (Sir John Mason the first Protestant, being also the first lay, Chancellor of Oxford;) this will lead us to perceive the reason, why the study of the Roman laws was in those days of bigotry (m) pursued with such alacrity in these seats of learning; and why the common law was entirely despised, and esteemed little better than heretical. And, since the Reformation, many causes have conspired to prevent its becoming a part of academical education. As, first, long usage and established custom; which, as in every thing else, so especially in the forms of scholastic exercise, have justly great weight and authority. Secondly, the real intrinsic merit of the civil law, 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. But the principal reason of all, 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. 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 laws will probably be more generally known; we may hope that the method of studying them will soon revert to its antient course, and the foundations at least of that science will be laid in the two universities; without being exclusively confined to the channel which it fell into at the times I have just been describing. [*22 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 scruple to profess their contempt, nay even their ignorance(0) of it in (0) Spelman, Concil. A.D. 1217. Wilkins, vol. 1 p. 574, 599. (m) 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) 23 2 5. * Item quod jura civilia, et leges, et decreta scivit in summo, probatur hoc modo: sapientia advocati manifestatur in tribus; unum, quod obtineat omnia contra judicem justum et sapientem; secundo, quod contra adversarium astutum et sagacem; tertio, quod in causa desperata: sed beatissima virgo. contra judicem sapientissimum. Dominun; contra adversarium callidissimum diabolum; in cau a nos tra desperta; sententiam optatam obtinuit." To which an eminent Franciscan, two centuries afterwards, Bernardinus de Busti, (Mariale, part 4, serm, 9,) very gravely subjoins this note: "Nec videtur incongruum mulieres habere peritiam juris. Legitur enim de uxore Joannis Andrex glossa toris, quod tantam peritiam in utroque jure habuil, ut publice in scholis legere ausa sit.” (n) Fortesc, de Laud. L. L. c. 23. (0) This remarkably appeared in the case of the Abbot of Torum, 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 the most public manner. But still as the balance of learning was greatly on the side of the clergy, and as the common law was no longer taught, as formerly, in any part of the kingdom, it must have been subjected to many inconveniences, and perhaps would have been gradually lost and overrun by the civil, (a suspicion well justified from the frequent transcripts of Justinian 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 its support. The incident which I mean was the fixing of 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. *23] Formerly that, in conjunction with all the other superior *courts, was held before the king's capital justiciary of England, in the aula regis, or such of his palaces wherein his royal person resided; and removed, with his household, 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,(p) 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(7) observes,) addicting themselves wholly to the study of the laws of the land, and no longer considering it as a mere subordinate science for the amusement of leisure hours, soon raised those laws to that pitch of perfection, which they suddenly attained under the auspices of our English Justinian, King Edward the First. In consequence of this lucky assemblage, they naturally fell into a kind of collegiate order, and, being excluded from Oxford and Cambridge, found it necessary to establish a new university of their own. This they did by purchasing at various times certain houses (now called the inns of court and of 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.(r) Here exercises were performed, lectures read, and degrees were at length conferred in the common law, as at other universities in the canon and civil. The degrees were those of barristers (first styled *24] apprentices(s) from apprendre, to *learn) who answered to our bachelors : as the state and degree of a serjeant,(t) servientis ad legem, did to that of doctor. The crown seems to have soon taken under its protection this infant seminary of common law; and, the more effectually to foster and cherish it, King Henry the Third, in the nineteenth year of his reign, issued out an order directed to the mayor and sheriffs of London, commanding that no regent of any law schools within that city should, for the future, teach law therein.(u) The word law, or leges, being a general term, may create some doubt, at this distance of time, Mr. Selden (in Flet. 8, 5) very justly understands to be 1, 3 Edw. I. c. 29, and in Horn's Mirror, c. 1 2 10. c. 2, 5 c. 3, 1, in the same reign. But M. Paris, in his life of John II., Abbot of St. Alban's, which he wrote in 1255, 39 Henry III. speaks of advocates at the common law, or countors, (quos banci narratores vulgariter appellamus.)-as of an order of men well known. And we have an example of the antiquity of the coif in the same author's History of England, A.D. 1259, in the case of one William de Bussy: who, being called to account for his great knavery and malpractices, claimed the benefit of his orders or clergy, which till then remained an entire secret; and to that end voluit ligamenta coifæ suæ solvere, ut palam monstraret se tonsuram habere clericalem; sed non est permissus.Satelles vera eum arripiens, nom per coife ligamina sed per guttur eum apprehendens, trarit ad carcerem. Hence 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. (u) Ne alinis scholas regens de legibus in eadem civitate de cætero ibidem leges doceat. whether the teaching of the civil law or the common, or both, is hereby restrained. But in either case it tends to the same end. If the civil law only is prohibited, (which is Mr. Selden's(w) opinion,) it is then a retaliation upon the clergy, who had excluded the common law from their seats of learning. If the municipal law be also included in the restriction, (as Sir Edward Coke(x) understands it, and which the words seem to import,) then the intention is evidently this; by preventing private teachers within the walls of the city, to collect all the common lawyers into the one public university, which was newly instituted in the suburbs. *In this juridical university (for such it is insisted to have been by [ *25 Fortescue(y) and Sir Edward Coke)(z) there are two sorts of collegiate houses; one called inns of chancery, in which the younger students of the law were usually placed, "learning and studying, (says Fortescue,) (a) the originals, and, as it were, the elements of the law; who, profiting therein, as they grew to ripeness, so were they admitted into the greater inns of the same study, called the inns of court." And in these inns of both kinds, he goes on to tell us, the knights and barons, with other grandees and noblemen of the realm, did use to place their children, though they did not desire to have them thoroughly learned in the law, or to get their living by its practice: and that in his time there were about two thousand students at these several inns, all of whom, he informs us, were filii nobilium, or gentlemen born." (w) In Flet. 8, 2. (z) 2 Inst. proem. (y) C. 49. (z) 3 Rep. pref. (a) C. 49. The number was not materially different in the time of Ben Jonson, who has given evidence of their influence and character in the dedication of his comedy of Every Man out of his Humour, which he inscribed "To the noblest nurseries of humanity and liberty in the kingdom,-the Inns of Court." By humanity is evidently meant classical learning, a meaning of the word which is now almost lost by disuse. To characterize a law school as the nursery of sound literature and civil liberty is indeed a highly-wrought eulogium of the legal profession,-a tribute, however, which it is believed that its history shows to have been well merited. In the time of Jonson, the Inns of Court were still in a very flourishing condition. In the year 1586, there were in term 1703, out of term 643. There were four Inns of Court,-Gray's Inn, Lincoln's Inn, the Middle Temple, and the Inner Temple. These had attached to them certain Inns of Chancery, in all numbering eight. Clifford's Inn, Clement's Inn, and Lion's Inn belonged to the Inner Temple; New Inn, to the Middle Temple; Furnival's Inn (which has since ceased to exist) and Thavie's Inn to Lincoln's Inn, and Staple's Inn and Barnard's Inn to Gray's Inn. Sir Edward Coke seems to consider the writ of Henry III., mentioned in the text, as intended to attack the memory of Magna Charta and the Charter of the Forest, by silencing, in an arbitrary and summary manner, legal teachers who based upon these documents instruction in the laws of England. It may be doubted whether the opinion of Sir William Blackstone, that the lawyers were collected together at so early a period, will bear examination. Of Lincoln's Inn Dugdale mentions a tradition as still current among the ancients, that the professors of the law were brought to settle in that place by Henry, Earl of Lincoln, "about the beginning of Edward II.'s time." This was written more than seventy years after the nineteenth of Henry III. There is an account of Gray's Inn (formerly the property of the Lords Gray of Wilton) as having been held by lease from them by students of the law, in the time of King Edward III. And Dugdale gives a traditionary account that the temple, having passed to the Knights Hospitallers in the reign of Edward III., came to the lawyers by demise from them. The word Inns was anciently used to denote town-houses, in which the nobility and gentry resided when they were in attendance at court; and it is frequently employed by the old poets to denote a noble mansion. The Inns of Court were in French termed hostells. In all our Latin records they are called hospitia; while diversoria is the name applied to public lodging-houses, which are now commonly known as inns. The buildings originally purchased for the purposes of these legal societies, having been at the time handsome private residences, still retained in their new use the ancient names by which they were designated. The Middle and Inner Temple were formerly dwellings of the Knights Templars. Lincoln's and Gray's Inns anciently belonged to the Earls of Lincoln and Gray. So the names of the several Inns of Chancery are taken from the names of their original proprietors, except New Inn, Staple's Inn, which belonged to the Merchants of the Staple, and Lion's Inn, which was a common inn with the sign of a lion. At a very early period Holborn was a quiet suburban village of London, watered by a |