In spite of Stephen's prohibition, therefore, the study of the Civil law, to which was presently added that of the Canon law, was universally promoted by the Church. We shall see how the churchmen flocked to the University of Paris for this purpose. But although most lawyers were also civilians, they were not always canonists. Judges were still usually chosen from the clerical ranks, but although civilians and clerks, they were King's men first and always. Thomas à Becket was the exception. Having climbed into power as the King's man, he turned round and became the champion of the Canon law against Henry II. The struggle, as we shall see, produced the University of Oxford and the teaching there of the Civil law, but it also, we may rest assured, gave an impetus to the study of the Common law in the City of London. In Henry's reign, too, common pleas were as a matter of grace (and of course for a consideration) heard in the Court of Exchequer, which at any rate during its two financial sittings, if not throughout the year, sat in London. Whether the provision in Magna Charta was intended to deprive the Exchequer of this business or to afford relief to other less favoured litigants, in following the Court during the King's progress through the country, it undoubtedly had the effect of increasing legal business in London.

After his signature of the Great Charter, by which John unwittingly struck the second blow in the struggle between the Common law and the Church, "divers men learned in the law," says Coke, "that I may use the words of the record, kept schools of law in the City of London and taught such as resorted to them, the laws of the realm taking their foundation of Magna Charta and Charta de Foresta." This was precisely the method employed by the Readers to the Inns of Court when we first meet with them.

A churchman, and above all a tool of the Papal See,

If

Henry III, after he came of age, cancelled, in the eleventh year of his reign, both these charters. In 1234, Henry, by his writ, addressed to the Mayor and Sheriffs of the City, ordered "the suppression of the schools within the City of London";1 but, says Coke, this writ took no better effect than it deserved, for evil counsel being removed from the King, in the following year he confirmed under the great seal Magna Charta and Charta de Foresta. Selden thought that the leges referred to in Henry's writ were the Civil law, and this is also the opinion of Pollock and Maitland. Dr. Stubbs thought they referred to the Canon law, but at this period Henry was under the influence of his Italian priests and was endeavouring to support the Church. it is correct that civilian lawyers were still practising in the secular Courts and teaching Common law in the schools, Henry was killing two birds with one stone. Civilians had become almost as obnoxious to the extreme churchman as the common lawyers. This would agree with the suggestion of Pollock and Maitland, that Henry was protecting against competition the Oxford Law School which was entirely under the thumb of the Church. Coke evidently thought the term referred to the Common law and he had the record before him. Leges was never, so far as I am aware, used for the Civil law, but it does occur in legal documents at a later date for the Common law. It was probably intended here to cover both. Serjeants, with their groups of apprentices, must by this date have been long in existence, and if the prohibition did not include the teaching of the Common law, it is a little difficult to see why we should find all the law schools outside the city boundaries when we get our first glimpse of them, at the commencement of the fourteenth century. Of course, it is quite possible that their new habitat was solely due

1 That no one should set up schools of the laws in the said city and teach the laws there for the time to come.

to the increased business at Westminster, but it was more probably due to both these influences. Outside the city these schools would be free for the time from the restrictions of the writ, and at the same time more conveniently situated for attendance at Westminster Hall, and yet within easy reach of the Guildhall and other city Courts. And the prohibitions restraining the clergy from practising in secular Courts were part of the same policy. Since almost all lawyers were priests or clerks it was no doubt anticipated that their withdrawal would deprive the secular Courts of trained lawyers, weaken their authority and standing, and gradually throw all the business into the ecclesiastical Courts. And in 1164, Alexander III even prohibited clerks in Holy Orders from lecturing outside their monasteries on natural philosophy and municipal law. This prohibition was confirmed by Honorius III, but it was evidently found insufficient, for in 1217 we find Richard Poor, Bishop of Salisbury, giving the following advice to his clergy:-" Nec advocati sint clerici vel sacerdotes in foro seculari, nisi vel proprias causas vel misirabilium personarum prosequantur."

This was followed up in 1287 by the Papal Legate Otho, proclaiming from his throne in St. Paul's the Constitutions, whereby he forbade any clergyman to appear as an advocate in a secular Court in a case of blood or in any other case whatsoever, except it was allowed by the Canon law. Clergymen were also warned not to accept judicial appointments. Both these prohibitions must have been largely disregarded. Five Canons of St. Paul's alone were justices at Westminster or in Eyre between the date of the Constitutions and the death of Henry III. "Albeit," says Coke, "divers judges of the realme were men of the church as Britton, Martin de Patteshull, William de Raleighe, Robert de Lexinton, Henricus de Stanton, and many others, and that the honourable officers of the realme as Lord

Chancellor, lord Treasurer, lord privi seal, Master of the rolls etc. were in those days men of the Church, yet they had such honorable and true-hearted courage, as they suf fered no encroachment by any foreign power upon the rights of the crowne or the laws and customs of the realme."

It was, as Coke infers, the political pretensions of the Papacy that these ecclesiastical lawyers resented. They became champions of the Common law not because they loved it more than the Civil law, but because they hated the Canon law as representing a foreign power. They did not become champions of the Common law in opposition to the Civil law as Pollock and Maitland suggest, nor in opposition to the Canon law. On the contrary, these men were deeply read in the Civil law, and they never hesitated to apply its principles in order to supply the deficiencies of the Common law. Our first great legal text book, written by or under the direction of Henry II's Justiciar, Glanville, took the Pandects as its model. It was steeped in Roman law. The Church, however, was not satisfied with a purely negative policy. It claimed not only exemption for the clergy from the authority of the secular Courts, but also exclusive jurisdiction over all matters savouring of spirituality.

Thus in 1258, Boniface, Archbishop of Salisbury, uncle of Queen Eleanor, published a constitution in which he encroached upon the jurisdiction of the Common law Courts, thundering out excommunication against the judges if they violated or failed to obey the "Constitution.” “But notwithstanding the greatness of Bishop Boniface," observes Coke, "and that divers of the judges were of the clergy and all the great of the realm were prelates, yet the judges proceeded according to the laws of the realm and still kept, though with great difficulty, the ecclesiastical Courts within their just and proper limits."

In 1268 the Constitutions of Otho were confirmed by

the Legate, Cardinal Ottoman, with great pomp at St. Paul's.1

That this was part of a settled policy is also shown by the Bull of Innocent IV (probably spurious), who in 1254 had forbidden the teaching of the Common law by the clergy.

This attempt to degrade the status of the legal profession and to lower the standard of legal knowledge in order to retain the monopoly in the hands of the Church, nearly proved successful. It was successful in so far as it threw the profession open to practitioners who were both ignorant and unscrupulous. And the mischief did not stop at these persons, as the judicial scandals of 1289 proved. In the reform which followed, doubtless Edward I made some provision for legal instruction.

We may pause here to consider the nature of these schools of the law in the city. Like the Halls of Oxford and Cambridge, we should expect to find them children of the gild, and evidence is not wanting in the case of the Inns of Court and Chancery of such parentage. Founded for almost every purpose, civil and religious, these gild societies framed rules of government for the regulation of their respective objects; the protection of their members; the training and education of their novices and apprentices. It is in the constitution, therefore, of the Halls and Colleges of the English and foreign Universities that we shall find those characteristic features of the gild which will help us to understand the origin and growth of the analogous law schools in London.

The University of Oxford owed its origin to the famous struggle between Henry II and Becket. Up to this time, clerks and scholars had flocked to the University of Paris in crowds. By a provision in a series of royal ordinances directed against the partisans of Becket, it was decreed in 1167 that henceforth no clerk should cross from the

1 Milman, Latin Christ., Vol. II, 381.