were, preferred their liberty to their pleasure. The bishops, they
knew, as partisans of the pope, were for subjecting the nation to
the imperial and papal laws. They offered, indeed, to begin with a
circumstance very much to their taste. But if they accepted the benefit
of them in one instance, with what decency could they object to them
in others? They determined therefore to be consistent. They rejected
a proposition, most agreeable in itself, lest their acceptance of it
should make way for the introduction of foreign laws; whose very genius
and essence, they well knew, was arbitrary, despotic power. Their
answer speaks their sense of this matter, NOLUMUS LEGES ANGLIÆ MUTARI.
They had nothing to object to the proposal itself. But they were afraid
for the constitution.
MR. SOMERS.
I doubt, Sir JOHN, my lord of SALISBURY will bring a fresh complaint
against you, for this liberty with the bishops. But I, who shall not
be thought wanting in a due honour for that bench, must needs confess
myself much pleased, as well with the novelty, as justice of this
comment. I have frequently considered this famous reply of the old
barons. But I did not see to the bottom of the contrivance. Their
aversion to the imperial laws, as you say, must have been very great,
to have put them on their guard against so inviting a proposal.
BP. BURNET.
One thing, however, is forgotten or dissembled in this account, that
the law of JUSTINIAN, which allows the privilege of legitimation
to subsequent marriage, is grounded on some reasons that might,
perhaps, recommend it to the judgment, as well as interest of the old
prelates. Besides, they doubtless found themselves much distressed
by the contrariety of the two laws in this instance. For the ground
of their motion, as I remember, was, _Quod esset secundum communem
formam ecclesiæ_. But, to deal ingenuously with you, Sir JOHN, you have
dressed up your hypothesis very plausibly. And I, who am no advocate
for the civil or ecclesiastical laws, in this or any instance where
they clash with those of my country, can allow your raillery on HENRY’S
good bishops, if it were only that I see it makes so much for your
general argument.
SIR J. MAYNARD.
Your lordship may the rather excuse this liberty with the _church_,
as I propose, in due time, to deal as freely with WESTMINSTER-HALL;
a similar plot, which I shall have occasion to mention presently,
having been formed against the ancient constitution by the men of our
profession.
MR. SOMERS.
In the mean time, Sir JOHN, you must give me leave, in quality of
advocate for the church, to observe one thing, that does the churchmen
honour. It is, that, in these attempts on the constitution, the judges
and great officers of the realm, who in those times were of the clergy,
constantly took the side of the _English_ laws; as my Lord COKE
himself, I remember, takes notice in his commentary on this statute of
MERTON.
SIR J. MAYNARD.
I believe the observation is very just. But I should incline to impute
this integrity, not to the influence of church principles, but those
of the common law, and so turn your compliment to the honour of our
profession instead of theirs, if it were not too clear in fact that
every profession, in its turn, hath been liable to this charge of
corruption.
But I was going on with my proofs of the national aversion to the
imperial law.
The next shall be taken from that famous dispute concerning the
succession to the crown of _Scotland_ in the reign of EDWARD I. For a
question arising about the kind of law by which the controversy should
be decided, and it being especially debated, whether the _Cæsarean_
law, as a sort of _jus gentium_, ought not in such a cause to have the
preference to the law of _England_; it was then unanimously determined
by the great council of NORHAM, that the authority of the _Cæsarean_
law should by no means be admitted; NE INDE MAJESTATIS ANGLICANÆ JURI
FIERET DETRIMENTUM[140].
This determination was public, and given on a very solemn occasion.
And in general we may observe, that at the junctures when the state
hath been most jealous of its liberty and honour, it hath declared
the loudest against the _imperial laws_: as in the WONDER-WORKING
parliament under RICHARD II, when the duke of _Gloucester_ accused the
archbishop of _York_, the duke of _Ireland_, and other creatures of
the king, of high treason. The charge was so fully proved, that the
court had no other way of diverting the storm, than by pretending an
irregularity in the forms of procedure. To this end the lawyers were
consulted with, or more properly directed. I will disguise nothing.
They descended so much from the dignity of their profession, as to act
in perfect subserviency to the views of the court; and therefore gave
it as their opinion, that the proceedings against the lords were of
no validity, as being contrary to the forms prescribed by the _civil
law_. The barons took themselves to be insulted by these shifts of the
lawyers. They insisted that the proceedings were agreeable to their own
customs, and declared roundly that they would never suffer _England_ to
be governed by the _Roman_ civil law[141].
What think ye now of these examples? Are they not a proof that the
spirit of liberty ran high in those times, when neither the intrigues
of churchmen nor the chicane of lawyers could put a stop to it? It
seems as if no direct attempts on the constitution could have been
made with the least appearance of success; and that therefore the
abettors of arbitrary power were obliged to work their way obliquely,
by contriving methods for the introduction of a foreign law.
In this project they had many advantages, which nothing but
an unwearied zeal in the cause of liberty could have possibly
counteracted. From the reign of STEPHEN to that of EDWARD III, that
is, for the space of near 200 years, the _Roman_ law had been in great
credit[142]. All the learning of the times was in the clergy, and that
learning was little more than the imperial and canon laws. The fact is
so certain, that some of the clergy themselves, when in an ill temper,
or off their guard, complain of it in the strongest terms. And to see
the height to which this humour was carried, not the seculars only who
intended to rise by them, but the very monks in their cells studied
nothing but these laws[143]. To complete the danger, the magistracies
and great offices of the kingdom were filled with churchmen[144].
Who would expect, now, with those advantages, but that the _Roman_
law would have forced its way into our civil courts? It did indeed
insinuate itself there as it were by stealth, but could never appear
with any face of authority. The only service, that would be accepted
from it, was that of illustration only in the course of their
pleadings, whilst the lawyers quoted occasionally from the INSTITUTES,
just as they might have done from any other ancient author[145].
Yet, so long as the churchmen presided in the courts of justice,
this intruder was to be respected; and it is pleasant to observe the
wire-drawing of some of our ablest lawyers, in their endeavours to make
the policy of _England_ speak the language of _Rome_.
MR. SELDEN’S dissertation on FLETA[146], which lies open before me,
affords a curious instance. The civil law says, “Populus ei [Cæsari]
et in eum omne suum imperium et potestatem conferat;” meaning by
_people_, the _Roman_ people, and so establishing the despotic rule of
the prince. But BRACTON took advantage of the ambiguity, to establish
that maxim of a free government, “That all dominion arises from the
people.” This, you will say, was good management. But what follows is
still better. “Nihil aliud, says he, potest rex in terris, cum sit Dei
minister et vicarius, nisi quod JURE potest. NEC OBSTAT quod dicitur,
QUOD PRINCIPI PLACET LEGIS HABET VIGOREM; quia sequitur in fine legis,
CUM LEGE REGIA QUÆ DE IMPERIO EJUS LATA EST; id est, non quicquid de
voluntate regis temerè præsumptum est, sed quod consilio magistratuum
suorum, rege auctoritatem præstante, et habitâ super hoc deliberatione
et tractatu, rectè fuerit definitum.” Thus far old BRACTON; who is
religiously followed in the same gloss by THORNTON, and the author of
FLETA. But what! you will say, this is an exact description of the
present constitution. It is so, and therefore certainly not to be found
in the civil law. To confess the truth, these venerable sages are
playing tricks with us. The whole is a premeditated falsification, or,
to say it softer, a licentious commentary, for the sake of _English_
liberty. The words in the PANDECTS and INSTITUTIONS are these; “QUOD
PRINCIPI PLACUIT, LEGIS HABET VIGOREM, UTPOTE CUM LEGE REGIA, QUÆ DE
IMPERIO EJUS LATA EST, POPULUS EI ET IN EUM OMNE SUUM IMPERIUM ET
POTESTATEM CONFERAT.”
My honest friend, in mentioning this extraordinary circumstance, says,
one cannot consider it _sine stupore_. He observes, that these lawyers
did not quote the Pandects by hearsay, but had copies of them; and
therefore adds (for I will read on) “Unde magis mirandum quânam ratione
evenerit, ut non solùm ipse, adeò judiciis forensibus clarus, et (si
Biographis scriptorum nostratium fides) professor juris utriusque
Oxoniensis, verùm etiam THORNTONIUS juris aliàs peritissimus, et FLETÆ
author, adeò diversam lectionem sensumque diversum atque interpretibus
aliis universis adeò alienum in illustrissimo juris Cæsarei loco
explicando tam fidentèr admiserint.” The difficulty, you see, increases
upon him. But we shall easily remove it by observing, that the Cæsarean
laws, though they had no proper authority with us, yet were much
complimented in those times, and were to be treated on all occasions
with ceremony. And therefore those lawyers that lived under and wanted
to support a free constitution, saw there was no way of serving their
cause so effectually, as by pretending to find it in the _Roman
institutes_.
MR. SOMERS.
This management of BRACTON and his followers makes some amends for the
ill conduct of RICHARD the Second’s lawyers. And as to their chicanery,
the ingenuity of the gloss, we will suppose, was no more than necessary
to correct the malignity of the text.
SIR J. MAYNARD.
They had, no doubt, consulted their honour much more, by insisting
roundly, as they might have done, that the text had no concern at all
in the dispute. But I mention these things only to shew the extreme
reverence, that was then paid to the civil law, by the shifts the
common lawyers were put to in order to evade its influence. From which
we learn how rooted the love of liberty must have been in this nation,
and how unshaken the firmness of the national councils in supporting
it, when, notwithstanding the general repute it was of in those days,
the imperial law could never gain authority enough to prescribe to
us in any matters that concerned the rights of the crown, or the
property of the subject. And this circumstance will be thought the more
extraordinary, if it be considered, that, to the general esteem in
which the _Roman_ law was held by the clergy, our kings have usually
added the whole weight of their influence; except indeed at some
particular junctures, when their jealousy of the _canon_ law prevailed
over their natural bias to the _civil_.
MR. SOMERS.
I should be unwilling to weaken any argument you take to be of use
in maintaining the noble cause you have undertaken. But, methinks,
this charge on our princes would require to be made out by other
evidence[147] than hath been commonly produced for it. There is no
doubt but many of them have aimed at setting themselves above the laws
of their country; but is it true (I mean, though FORTESCUE himself[148]
has suggested the same thing) that for this purpose they have usually
expressed a partiality to the _Roman_ laws?
SIR J. MAYNARD.
I believe it certain that they have, and on better reasons than the
bare word of any lawyer whatsoever.
What think you of RICHARD the Second’s policy in the instance before
mentioned; that RICHARD, who used to declare, “That the laws were only
in his mouth and breast, and that he himself could make and unmake them
at his pleasure?” We may know for what reason a prince of this despotic
turn had recourse to the _Roman_ law.
But even his great predecessor is known to have been very indulgent
towards it. And still earlier, EDWARD I. took much pains to establish
the credit of this law; and to that end engaged the younger ACCURSIUS,
the most renowned doctor of the age, to come over into _England_, and
set up a school of it at _Oxford_. Or, to wave these instances, let
me refer you to a certain and very remarkable fact, which speaks the
sense, not of this or that king, but of the whole succession of our
princes.
The imperial law, to this day, obtains altogether in the courts of
admiralty, in courts marescall, and in the universities[149]. On the
contrary, in what we call the courts of law and equity, it never
hath, nor ever could prevail. What shall we say to this remarkable
difference? or to what cause will you ascribe it, that this law, which
was constantly excluded with such care from the one sort of courts,
should have free currency and be of sole authority in the other? I
believe it will be difficult to assign any other than this: that the
subjects of decision in the first species of courts are matters in
the resort of the king’s prerogative, such as peace and war, and the
distribution of honours; whilst the subjects of decision in the courts
of common law are out of his prerogative, such as those of liberty
and property. The king had his choice by what law the first sort of
subjects should be regulated; and therefore he adopted the imperial
law. He had not his choice in the latter instance; and the people were
never satisfied with any other than the law of the land.
MR. SOMERS.
Yet Mr. SELDEN, you know, gives another reason of this preference: it
was, he thinks, because foreigners are often concerned with the natives
in those tribunals where the civil law is in use.
SIR J. MAYNARD.
True; but my learned friend, as I conceive, did not attend to this
matter with his usual exactness. For foreigners are as frequently
concerned in the courts of law and equity, as in the other tribunals.
The case in point of reason is very clear. In all contests that are
carried on between a native and a foreigner, as the subject of another
state, the decision ought to be by the law of nations. But when a
foreigner puts himself with a native under the protection of our
state, the determination is, of course, by our law. The practice hath
uniformly corresponded to the right in the courts of law and equity. In
the other tribunals the right hath given way to the will of the prince,
who had his reasons for preferring the authority of the imperial law.
Upon the whole, if we consider the veneration, which the clergy usually
entertained, and endeavoured to inculcate into the people, for the
civil law; the indulgence shewn it by the prince; its prevalence in
those courts which were immediately under the prerogative; and even the
countenance shewn it at times in the course of pleading at common law;
we cannot avoid coming to this short conclusion, “That the genius of
the imperial laws was repugnant to our constitution; and that nothing
but the extreme jealousy of the barons, lest they might prove, in
pleas of the crown, injurious to civil liberty, hath kept them from
being received in _England_ on the same footing that we every where
find they are in the other countries of _Europe_, and as they are in
_Scotland_ to this day.”
But, if you think I draw this conclusion too hastily, and without
grounding it on sufficient premises, you may further consider with me,
if you please, THE FATE AND FORTUNES OF THE CIVIL LAW IN THIS KINGDOM
DOWN TO THE PRESENT TIME.
In the reigns of HENRY VII[150] and VIII, and the two first kings of
the house of STUART, that is, the most despotic of our princes, the
study of the civil law hath been more especially favoured; as we might
conclude from the general spirit of those kings themselves, but as we
certainly know from the countenance they shewed to its professors; from
their chusing to employ them in their business, and from the salaries
and places they provided for their encouragement. Yet see the issue of
all this indulgence to a foreign law, and the treatment it met with
from our parliaments and people! The oppressions of EMPSON and DUDLEY
had been founded in a stretch of power, usurped and justified on the
principles of the civil law; by which these miscreants had been enabled
to violate a fundamental part of our constitution, the way of _trial
by_ JURIES. The effect on the people was dreadful. Accordingly, in the
entrance of the next reign, though the authority, by which they had
acted, had even been parliamentary, these creatures of tyranny were
indicted of high treason, were condemned and executed for having been
instrumental in subverting LEGEM TERRÆ; and the extorted statute, under
which they had hoped to shelter themselves, was with a just indignation
repealed.
Yet all this was considered only as a necessary sacrifice to the
clamours of an incensed people. The younger HENRY, we may be sure,
had so much of his father in him, or rather so far outdid him in the
worst parts of his tyranny, that he could not but look with an eye of
favour on the very law he had been constrained to abolish. His great
ecclesiastical minister was, no doubt, in the secret of his master’s
inclinations, and conducted himself accordingly. Yet the vengeance of
the nation pursued and overtook him in good time. They resented his
disloyal contempt of the original constitution; and made it one of the
articles against this _Roman_ cardinal, “That he endeavoured to subvert
_antiquissimas leges hujus regni, universumque hoc regnum_ LEGIBUS
IMPERIALIBUS _subjicere_.”
From this time, the study of the civil law was thought to languish in
_England_, till it revived with much spirit in the reigns of those
unhappy princes who succeeded to the house of TUDOR. Then indeed,
by inclination and by pedantry, JAMES I. was led to patronize and
encourage it. And the same project was resumed, and carried still
further, by his unfortunate son. I speak now from my own experience and
observation. The civil lawyers were most welcome at court. They were
brought into the Chancery and court of Requests. The minister, another
sort of man than WOLSEY, yet a thorough ecclesiastic, and bigoted, if
not to the religion; yet to the policy of _Rome_, gave a countenance
to this profession above that of the common law. He had found the
spirit, and even the forms of it, most convenient for his purpose in
the STAR-CHAMBER and HIGH-COMMISSION court, those tribunals of imperial
justice, exalted so far above the controul of the common law; and by
his good will, therefore, would have brought the same regimen into the
other branches of the administration. Great civilians were employed to
write elaborate defences of their science; to the manifest exaltation
of the prerogative; to the prejudice of the national rights and
privileges; and to the disparagement of the common law. The consequence
of these proceedings is well known. The most immediate was, that they
provoked the jealousy of the common lawyers; and, when the rupture
afterwards happened, occasioned many of the most eminent of them to
throw themselves into the popular scale[151].
Yet, to see the uniformity of the views of tyranny, and the direct
opposition which it never fails to encounter from the _English_ law, no
sooner had a set of violent men usurped the liberties of their country,
and with the sword in their hands determined to rule despotically
and in defiance of the constitution, than the same jealousy of the
common law, and the same contempt of it, revived. Nay, to such an
extreme was the new tyranny carried, that the very game of EMPSON and
DUDLEY was played over again. The trial of an _Englishman_ by his
peers was disgraced and rejected; and (I speak from what I felt) the
person imprisoned and persecuted, who dared appeal, though in his own
case[152], to the ancient essential forms of the constitution. Under
such a state of things, it is not to be wondered that much pains was
taken to depreciate a law which these mighty men were determined not
to regard. Invectives against the professors of the _English_ laws
were the usual and favoured topics of parliamentary eloquence. These
were sometimes so indecent, and pushed to that provoking length,
that WHITLOCKE himself, who paced it with them through all changes,
was forced in the end to hazard his reputation with his masters, by
standing on the necessary defence of himself and his profession[153].
I need not, I suppose, descend lower. Ye have both seen with your own
eyes the occurrences of the late reign. Ye have heard the common
language of the time. The practice was but conformable to such
doctrines as were current at court, where it was generally maintained,
that the king’s power of dispensing with law, was LAW; by which if
these doctors did not intend the _imperial_ or _civil law_, the insult
was almost too gross to deserve a confutation, It must be owned, and
to the eternal shame of those who were capable of such baseness, there
were not wanting some even of the common lawyers that joined in this
insult.
I but touch these things slightly; for I consider to whom I speak. But
if, to these examples of the nation’s fondness for their laws, you
add, what appears in the tenor of our histories, the constant language
of the _coronation-oaths_, of the _oaths of our judges_, and, above
all, of the _several great charters_; in all which express mention is
made of the LEX TERRÆ, in opposition to every foreign, but especially
the Cæsarean, law; you will conclude with me, “That, as certainly as
the CÆSAREAN LAW is founded in the principles of slavery, our ENGLISH
LAW, and the constitution to which it refers, hath its foundation in
freedom, and, as such, deserved the care with which it hath been
transmitted down to us from the earliest ages.”
What think ye now, my good friends? Is it any longer a doubt, that the
constitution of the _English_ government, such I mean as it appears to
have been from the most unquestioned annals of our country, is a free
constitution? Is there any thing more in the way of this conclusion?
or does it not force itself upon us, and lie open to the mind of every
plain man that but turns his attention upon this subject?
You began, Mr. SOMERS, with great fears and apprehensions; or you
thought fit to counterfeit them, at least. You suspected the matter
was too mysterious for common understandings to penetrate, and too
much involved in the darkness of ancient times to be brought into open
day-light. Let me hear your free thoughts on the evidence I have here
produced to you. And yet it is a small part only of that which might be
produced, of that I am sure which yourself could easily have produced,
and perhaps expected from me.
But I content myself with these obvious truths, “That the liberty of
the subject appears, and of itself naturally arose, from the very
nature of the FEUDAL, which is properly (at least if we look no further
back than the Conquest) the _English_ constitution; that the current
of liberty has been gradually widening, as well as purifying, in
proportion as it descended from its source; that charters and laws have
removed every scruple that might arise about the reciprocal rights and
privileges of prince and people; that the sense of that liberty which
the nation enjoyed under their admirable constitution was so quick,
that every the least attempt to deprive them of it gave an alarm;
and their attachment to it so strong and constant, that no artifice,
no intrigue, no perversion of law and gospel, could induce them to
part with it: that, in particular, they have guarded this precious
deposite of legal and constitutional liberty with such care, that,
while the heedless reception of a foreign law, concurring with other
circumstances, hath riveted the yoke of slavery on the other nations
of _Europe_, this of _England_ could never be cajoled nor driven into
any terms of accommodation with it; but, as NAT. BACON[154] said truly,
_That the triple crown could never well solder with the English_, so
neither could the _imperial_; and that, in a word, the ENGLISH LAW
hath always been preserved inviolate from the impure mixtures of the
canon and Cæsarean laws, as the sole defence and bulwark of our civil
liberties.”