Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/275

 8. STUBBS: THE CANON LAW 261 differing in details, far more akin to the civil law, the prac- tice of which in ecclesiastical causes was steadily before men's eyes whilst they were developing the new systems. But I dare not venture to say this without more authority. As we proceed, however, we are struck more and more with the prominence of the scientific element in legal edu- cation. The great compilations are not received as having any authority in England, but they are the sole legal teach- ing which is to be obtained in the schools where Englishmen go to learn law. The common law judges may not be canon- ists or civilians, but the statesmen, in many cases at least, are ; certainly archbishops Langton and Boniface and Peck- ham 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. Glan- ville's is indeed but a book of procedure, but Bracton, Fleta, and Britton are jurists, and whilst they illustrate and ex- plain the common law, bring to the interpretation an intel- ligence 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. T Whilst the study of these foreign systems was becoming increasingly important and increasingly common, the pop- ular 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 ecclesi- astical questions that the civil law touched Englishmen at all, but also because without the machinery of the civil law