Yates v. Jack (1866), L. R. 1 Ch. 295; 35 L. J. Ch. 539; 14 L. T. 151; 12 Jur. (N.S.) 305; 14 W. R. 618 PAGE iii. 419 i. 164 ii. 352 ... Yellowly r. Gower (1855), 11 Exch. 274; 24 L. J. Exch. 289 York, Re Dean of (1841), 2 Q. B. 1 ... ... iii. 447 ...ii. 637, 639, 644, 660; iii. 12, 13, 691 (See Powell . ii. 41 ii. 245 Young, In the Goods of (1866), L. R. 1 P. & D. 186; 35 L. J. P. 126; 14 L. T. 634 ; 14 W. R. 821, 970 ... v. Corporation of Leamington (1893), 8 Q. B. D. 579; ... ... r. Geiger (1848), 6 C. B. 541; 6 D. & L. 337; 18 L. J. C. P. 40; 12 Jur. 983 ... ... iii. 7 iii. 237 Z. Zeta, The, [1893] A. C. 468; 63 L. J. Adm. 17; Zouch . Parsons (1765), 3 Burr. 1794; 1 W. Bl. 575 INTRODUCTION. SECTION I. OF THE STUDY OF THE LAW. Ar the outset of a work like the present, in the course of which it is proposed (though with the aid, in part, of materials derived from a former writer) to bring under examination no less a subject than the entire body of the English law, the discouragement to which the writer is naturally inclined by the magnitude of the task before him, is counteracted by the recollection of its general importance. The subject is one to which no class of readers in the realm can be indifferent; for it is incumbent upon every man to be acquainted with those laws at least with which he is immediately concerned, lest he incur the censure, as well as the inconvenience, of living in society without knowing the obligations which it lays him under. [And a knowledge of the law is still more. incumbent upon men of rank and education, the nobility and gentry of this realm, who are under duties both to the public and to themselves, and cannot discharge such duties without some degree of knowledge in the laws. And gentlemen, in particular, who profess (or who practise) the civil or the canon law are (of evident necessity) bound to make themselves acquainted with the common law; for the civil and canon laws are of no force in this kingdom, save so far as they have in some few cases been allowed by our laws. And in those cases wherein a reception has been thus allowed to the civil and canon S.C.-VOL. I. B [laws, if either they exceed the bounds of that reception, by extending themselves to other matters than are permitted to them, or if the judges proceed according to the decisions of those laws, in cases wherein they are controlled by the law of the land, the common law courts will, in either instance, prohibit and annul their proceedings]. But, most of all, a knowledge of the English law is necessary for those gentlemen who are preparing to become barristers or solicitors, with a view to practising in any of the numerous courts which administer that law, or conducting, on behalf of their clients, any of those countless transactions which are regulated by English law. The general necessity for an acquaintance with English law being thus apparent, it might naturally be supposed that some provision would antiently have been made for this, as for other branches of education, in the universities of Oxford and Cambridge. The reverse, however, was the fact; and the explanation is historical and instructive. The common law, most of which is now embodied in Acts of Parliament, or judicial decisions, at one time consisted of a collection of unwritten customs, which had subsisted immemorially in this kingdom; [and these customs, with their associated maxims, were at one time, as Mr. Selden tells us, taught in the monasteries, in the universities, and in the families of the principal nobility (a). The clergy, in particular, 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 (c). The judges therefore were usually created out of the sacred order (d); and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated clerks to this day. But the (a) Ad Fletam, 7, 7. (d) Dugdale, Orig. Jurid. ch. 8. [common law, not being committed to writing, but only handed down by tradition, was not relished by the foreign clergy, who came over during the reigns of the Conqueror and his two sons, and who were utter strangers to its provisions. And its popularity, among the same persons, was seriously diminished in the 12th century, by the new impulse then given to the study of the Roman law (e), which became in a particular manner the favourite of the clergy, who borrowed the method, and many of the maxims, of their canon law, from this original. The study of the Roman law was especially revived by the foundation, about this time, of many foreign universities, 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, beginning to recover just then from the convulsions consequent upon the overthrow of the Roman empire, also adopted the civil law 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 with a more confined authority (f). Nor was it long before the prevailing tendency reached England. For Theobald, a Norman abbot, being elected, in the year 1138, to the see of Canterbury, and being 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 to the people of this country (g). But it did not meet with the same easy reception in England; for although the monkish clergy, devoted to the will of a (e) It has been said (and the opinion is adopted by Blackstone) that this revival was owing to the accidental discovery of a copy of the Pandects at the capture of in M. Paris, A.D. 1254. Amalfi by the Pisans, about the no sufficient evidence that any such discovery took place. (f) Domat. Treatise of Law c. 13, s. 9; Epistol. Innocent IV. year 1130. But there appears to be (g) Gervas. Dorobern. Act. Pontif. Cantuar. (Rolls Series), p. 384. [foreign primate, received it with zeal, yet the laity, who were more interested to preserve the old constitution, continued wedded to the common law. And King Stephen even published a proclamation forbidding the study of the foreign laws (h), a proclamation which was treated by the monks as a piece of impiety (i), and which, although it may have hindered the introduction of the Roman law into our courts of justice, yet did not hinder the clergy from 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 these parties were reciprocally jealous of what they were unacquainted with, 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 speak of our municipal laws upon all occasions (k); 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 upon the subsequent intermarriage of their parents. For "all the earls and barons "with one voice answered, that they would not change the "laws of England, which had hitherto been used and "approved" (l). And in the reign of Richard the Second, the nobility again declared, "that the realm of England "hath never been unto this hour, neither by the consent of (h) Rog. Bacon. citat. per Selden Ad Fletam, 7, 6; Fortesc. De Laudibus c. 33; and 8 Rep. Pref. (i) Joan. Sarisburiens. Polycrat. 8, 22. (k) Ibid. 5, 16; Polydor. Virgil, Hist. 1, 9. (7) "Et omnes comites et barones una voce responderunt, quod nolunt leges Anglia mutare, quæ hucusque usitata sunt et approbata." Stat. Merton (1235), 20 Hen. 3. c. 9. |