not meet with the fame easy reception in England, where a mild and rational fyftem of laws had been long established, as it did upon the continent; and though the monkifh clergy (devoted to the will of a foreign primate) received it with eagerness and zeal, yet the laity, who were more interested to preferve the old conftitution, and had already feverely felt the effect of many Norman innovations, continued wedded to the ufe of the common law. King Stephen immediately published a proclamation, forbidding the ftudy of the laws, [ 19 ] 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 fchools and monafteries. 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 (2). C Rog. Bacon. citat. per Selden in Joan. Sarifburiens. Polycrat. 8. (2) Though the civil law, in matters of contract and the general commerce of life, may be founded in principles of natural and univerfal justice, yet the arbitrary and defpotic maxims, which recommended it as a favourite to the pope and the Romish clergy, rendered it defervedly odious to the people of England. Quod principi placuit legis habet vigorem, (Inft. 1. 2. 6.) the magna charta of the civil law, could never be reconciled with the judicium parium vel lex terræ. C 2 1.2. This This appears, on the one hand, from the fpleen 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 baftards legitimate in cafe 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 (fays the parliament "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 consent of "our lord the king and the lords of parliament fhall it ever [20be, ruled or governed by the civil law." 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, epifcopal 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 adminiftered, that they should in all things determine according to the law and cuftom of this realm *; though they still kept poffeffion of the high office of chancellor, an office then of little juridical power; and afterwards, as it's bufinefs in creafed 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 fpiritual courts of all denominations, from the chancellor's courts in both our univerfities, 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 affigned, unless that thefe courts were all under the immediate direction of the popish ecclefiaftics, among whom it was a point of religion to exclude the muni cipal law; pope Innocent the fourth having forbidden' the very reading of it by the clergy, because it's decifions were not founded on the imperial conftitutions, but merely on the cuf toms of the laity. And if it be confidered, that our univerfities began about that period to receive their prefent form of fcholaftic difcipline; that they were then, and continued to be till the time of the reformation, entirely under the influ- [ 21 ] · 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 fuch alacri"advocati manifeftatur in tribus ; unum, "quod obtineat omnia contra judicem "juftum & fapientem; fecundo, quod "contra adverfarium aftutum & fagacemy tertio, quod in caufa defperata: fed “beatissima virgo, contra judicem sapi"entiffimum, Dominum; contra adversa. "rium callidiffimum, dyabolum ; in cau"fa noftra defperata ; fententiam opta"tam obtinuit." To which an eminent francifcan, two centuries afterwards, Bernardinus de Bufti (Mariale, part. 4. ferm. 9.) very gravely fubjoins this note. "Nec videtur incongruum "mulieres babere peritiam juris. Legi tur enim de uxore Joannis Andreac C 3 ❝ mioffutariss 1 M. Paris ad A. D. 1254. m There cannot be a stronger instance of the abfurd and fuperftitious venera. tion 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 canonist; which Albertus Magbus, 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, & decreta fcivit in "fummo, probatur boc modo: fapientia m с This appears, on the one hand, from the fpleen 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 baftards legitimate in cafe 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 (fays the parliament "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 consent of "our lord the king and the lords of parliament fhall it ever [20❝be, ruled or governed by the civil law" And of this temper between the clergy and laity many more instances 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, epifcopal 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 adminiftered, that they should in all things determine according to the law and cuftom of this realm; though they still kept possession of the high office of chancellor, an office then of little juridical power; and afterwards, as it's bufinefs in creafed 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 fpiritual 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 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 muni cipal law; pope Innocent the fourth having forbidden' the very reading of it by the clergy, because it's decifions were not founded on the imperial constitutions, but merely on the cuftoms of the laity. And if it be confidered, that our univerfities began about that period to receive their prefent form of fcholaftic difcipline; that they were then, and continued to be till the time of the reformation, entirely under the influ- [ 21 ] 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 study of the Roman laws was in those days of bigotry m pursued with fuch alacri 1 M. Paris ad A. D. 1254. There cannot be a stronger instance of the abfurd and fuperftitious 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 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 epus) qu. 23. § 5. “Item quod jura "civilia, & leges, decreta fcivit in fummo, probatur bec modo: fapientia "advocati manifeftatur in tribus ; unum, |