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WILLIAM STUBBS Seventeen lectures on the study of medieval and modern history and kindred subjects

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WILLIAM STUBBS
Seventeen lectures on the study of medieval and modern history and kindred subjects
page 356



LEGAL EDUCATION. [XIII. 35° and Boniface and Peckham and Winchelsey. And even of the common lawyers it must be affirmed that their teaching, such as they had, was not merely empirical, not the mere knowledge of customs and the few statutes that were as yet incorporated in the common law code ; but scientific, that is, learned from the writings of jurists who treated not merely of the letter or the case, but of the spirit and reason of legislation. Glanville's is indeed but a book of procedure, but Bracton, Fleta, and Britton are jurists, and whilst they illustrate and explain the common law, bring to the interpretation an intelligence and authority that look to something far higher than precedent. We see how long the old doctrine of the authority that -is in the mouth of the judge stands out against the new doctrine that is in the letter of the law. Like the 'decretum,' like the 'responsa prudentum' of the Pandects, the work of Bracton is a scientific rather than an authoritative text-book. But I am anticipating what I ought to put in proper order somewhat later. Whilst the study, of these foreign systems was becoming increasingly important and increasingly common, the popular dislike of foreign law was not in the least diminished. I must here couple the two Roman systems together, for to all purposes of domestic litigation they were inseparable : the 'canones legesque Romanorum' were classed together and worked together, mainly because it was only on ecclesiastical questions that the civil law touched Englishmen at all, but also because without the machinery of the civil law the canon law could not be worked ; if you take any well-drawn case of litigation in the middle ages, such as that of the monks of Canterbury against the archbishops, you will find that its citations from the Code and Digest are at least as numerous as from the Decretum. Moreover the accretions of the Decretum,: the Extravagants as they


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