That antient collection of unwritten maxims and cuſtoms, 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 great meaſure weathered the rude ſhock of the Norman conqueſt. This had endeared it to the people in general, as well becauſe it’s deciſions were univerſally known, as becauſe it was found to be excellently adapted to the genius of the Engliſh nation. In the knowlege of this law conſiſted great part of the learning of thoſe dark ages; it was then taught, ſays Mr Selden[1], 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[2]) 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[3]. The judges therefore were uſually created out of the ſacred order[4], as was likewiſe the caſe among the Normans[5]; 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 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 it’s ruin. A copy of Juſtinian’s pandects, being newly[6] diſcovered at Amalfi, ſoon brought the civil law into
- ↑ in Fletam. 7. 7.
- ↑ Caeſar. de bello Gal. 6. 12.
- ↑ de geſt. reg. l. 4.
- ↑ Dugdale Orig. jurid. c. 8.
- ↑ Les juges ſont ſages perſonnes et autentiques,—ſicome les archeveſques, eveſques, les chanoines les egliſes cathedraulx, et les autres perſonnes qui ont dignitez in ſaincte egliſe; les abbez, les prieurs conventaulx, et les gouverneurs des egliſes, &c. Grand Couſtumier, ch. 9.
- ↑ circ. A. D. 1130.
