Page:Seventeen lectures on the study of medieval and modern history and kindred subjects.djvu/316

although not by any known assize or constitution, must have restrained the ecclesiastical judicature from interfering in secular matters, except in the two points of matrimony, which was closely connected with a sacramental theory, and of testamentary business. These two, however, furnished matter sufficiently remunerative for a school of church lawyers; and the more distinctly ecclesiastical jurisdiction over spiritual things and persons provided much more. A thoroughly learned class of civil and canon lawyers is required over and above the thoroughly learned class of common law and (to anticipate a little) chancery lawyers of the royal courts. Here then we begin to mark signs of increasing divergence. The common lawyers of England, the men who tread in the steps of Glanville, who are closely allied with the baronage and with the customary theories of prerogative, are opposed to the introduction of either branch of the Roman law. Glanville, anticipating the decision of the Statute of Merton on the question of legitimisation of children by the subsequent marriage of their parents, speaks of the 'canones legesque Romanorum' with the same tone of aversion. The ecclesiastics who followed the common law were as adverse to the Roman law as were the knights and barons who learned secular jurisprudence in the discharge of executive office: and very rarely do we find a great judge of the courts of Westminster taken from the ranks of canonists or civilians. Yet the educational influence of these two great systems was making itself felt very early indeed. Not only does Glanville, in the preface to his manual, cite from the Institutes the language in which he addresses his master, but large importations from the civil law procedure must have come in as the jurisprudence developed; and Bracton, who wrote a century after Glanville, makes direct citations from the compilations of Justinian. If I were not afraid of the lawyers, I should venture to say that the whole theory of Appeals and the whole subject of Equity are strange to the national growth of the common law, and, although widely differing in details, far more akin to the civil law, the practice of which in ecclesiastical causes was steadily before men's eyes whilst they, were developing the