12 ON THE ORIGIN AND PROGRESS 



pensable in the administration of Judicial affairs, they imprudently took 

 oflfence at the opposition which had been made to their measure, and 

 withdrew in ill humour from the field of controversy, thus, leaving to 

 the laymen full scope and leisure to follow up their advantage. Thus, 

 turning their backs in spite on their opponents, they lost their judicial 

 position, which they never after recovered. Under the reign of Hen- 

 ry III, episcopal mandates were issued, which interdicted the clergy 

 from occupying themselves in future with secular lawsuits ; while, at 

 the same time. Innocent IV prohibited them from reading, even as 

 mere profane works, the laws of the country. The non-interference 

 of the clergy was further secured by the regulations in the Magna 

 Cfaarta, which Henry III at last set in full practice, to the effect that 

 the secular judges were no longer to wander about, and follow the steps 

 of the royal camp and periodic residences, but were henceforth to 

 hold their sittings at a certain fixed place in Westminster. The 

 teachers and pupils of the common law, who were excluded from the 

 ecclesiastical institutions at Oxford and Cambridge, established, in 

 consequence, judicial colleges for themselves, called, as yet, the inns 

 of court and of chancery, modelled after the ecclesiastical ones, and 

 privileged to confer titles and certain academical degrees on distin- 

 guished members. Both parties maintained for a long time their op- 

 position, with equal success. Wherever the influence of the clergy 

 found access, as in the universities, and even in the courts of war and 

 admiralty, the Roman and canonical laws were prevalent ; whilst in the 

 various courts of Westminster the common law alone was practised. 



Thus we find England, as early as the beginning of the thirteenth 

 century governed by two species of legislation, entirely alien to each 

 other, both in form and substance. The frequent clashing of these 

 in spirit, argument, and decision, soon gave rise to a third species of 

 legislation ; and from the deficiencies which were soon discovered to 

 exist in the practice of the common law, emendations and reforms 

 were introduced. 



The common law, based on prevailing customs, usages, and opinions, 

 as long as its explanation and application were in the hands of unlearn- 

 ed judges, must be considered as a sort of progressive legislation, con- 

 taining in itself the seeds of its reform and completion, and rendering 

 all other legislative contrivances for the conduct of civil life superflu- 

 ous. Every case in litigation received a judicial decision, bearing the 

 stamp and spirit of the then predominant custom and opinion, reducing 

 all the judgments to a subserviency to the spirit of the time, and just- 

 ly deserving the appellation of a continual and infinite revelation of 



