Part 15

It was so; and for this good service, I let them pass without any harsher reflection. Though the true secret is, perhaps, no more than this: Their main object was the church, of whose interests, as is fitting, we will allow them to be the most competent judges. And, as these inclined them, they have been, at different junctures, the defenders or oppressors of civil liberty.

BP. BURNET.

At _some_ junctures, it may be, they have. But, if you insist on so general a censure, I must intreat Mr. SOMERS, once more, to take upon him the defence of our order.

SIR J. MAYNARD.

All I intended by this instance, was, to shew the spirit of the _Saxon_ laws, which could excite the jealousy of the prince, and deserve, at such a season, the patronage of the clergy. It seems, however, for once, as if they had a little misconceived their true interests. For the distinction of the two judicatures, which occasioned their resentment, was, in the end, a great means of the hierarchical greatness and independency.

Matters continued on this footing during the three first of the _Norman_ reigns. The prince did his utmost to elude the authority of the _English_ laws; and the nation, on the other hand, laboured hard to confirm it. But a new scene was opened under King STEPHEN, by means of the _Justinian_ laws; which had lately been recovered in _Italy_, and became at once the fashionable study over all _Europe_. It is certain, that the Pandects were first brought amongst us in that reign; and that the reading of them was much favoured by Archbishop THEOBALD[131], under whose encouragement they were publicly read in _England_ by VACARIUS, within a short time after the famous IRNERIUS had opened his school at _Bologna_. There is something singular in the readiness with which this new system of law was embraced in these Western parts of _Europe_. But my friend Mr. SELDEN used to give a plausible account of it. It was, he said[132], in opposition to INNOCENT II, who was for obtruding on the Christian states the _decretals_, as laws; manifestly calculated for the destruction of the civil magistrate’s power. And what seems to authorize the opinion of my learned friend, is, that the popes very early took the alarm, and, by their decrees, forbad churchmen to teach the civil law: as appears from the constitution of ALEXANDER III, so early as the year 1163, in the council of TOURS; and afterwards from the famous decretal of SUPER-SPECULA by HONORIUS III, in 1219, in which the clergy of all denominations, seculars as well as regulars, were prohibited the study of it. And it was, doubtless, to defeat the mischief which the popes apprehended to themselves, from the credit of the imperial laws, that GRATIAN was encouraged, about the same time, to compose and publish his DECREE; which, it is even said[133], had the express approbation of Pope EUGENIUS.

Let us see, now, what reception this newly-recovered law, so severely dealt with by the pope, and so well entertained by the greatest part of _Europe_, had in _England_.

VACARIUS had continued to teach it for some time, in the archbishop’s palace at _Lambeth_, to great numbers, whom first, the novelty of the study, and then, the fashion of the age, had drawn about him. The fame of the teacher was high, and the new science had made a great progress, when on a sudden it received a severe check, and from a quarter whence one should not naturally expect it. In short, the king himself interdicted the study of it. Some have imagined, that this inhibition was owing to the spite he bore to archbishop THEOBALD. But the truer reason seems to be, that the canon law was first read by VACARIUS at the same time, and under colour of the imperial. I think we may collect thus much very clearly from JOHN OF SALISBURY, who acquaints us with this edict. For he considers it as an offence against the church, and expressly calls the prohibition, an IMPIETY[134].

It is true, the decretals of GRATIAN were not yet published. But Ivo had made a collection of them in the reign of HENRY I; and we may be sure that some code of this sort would privately go about amongst the clergy, from what was before observed of the pains taken by INNOCENT II, to propagate the decretals. We may further observe, that THEOBALD had been in high favour with INNOCENT; and that his school, at _Lambeth_, was opened immediately on his return from _Rome_, whither he had been to receive his pall from this pope, on his appointment to the see of _Canterbury_[135]. All which makes it probable, that STEPHEN’S displeasure was not so much at the civil, as _canon_ law, which he might well conclude had no friendly aspect on his sovereignty.

And we have the greater reason to believe that this was the fact, from observing what afterwards happened in the reign of HENRY III, when a prohibition of the same nature was again issued out against the teachers of the _Roman_ laws in _London_[136]. The true cause of the royal mandate is well known. GREGORY IX had just then published a new code of the decretals; which, like all former collections of this sort, was calculated to serve the papal interest, and depress the rights of princes.

However, these edicts, if we suppose them levelled against the civil law, had no effect, any more than those of the popes ALEXANDER and HONORIUS, before mentioned. For the imperial law, being generally well received by the princes of _Europe_, presently became a kind of _Jus gentium_. And the clergy, who aspired to power and dignities, either abroad or at home, studied it with an inconceivable rage; insomuch, that ROGER BACON tells us, that, in his time for forty years together, the seculars, who were the ecclesiastics employed in business, never published a single treatise in divinity[137].

The truth is, whatever shew the popes or our own princes might make, at times, of discountenancing the civil law, it was not the design of either absolutely and universally to suppress it. It was properly, not the civil, but the canon law, which was discountenanced by our kings. And the case of the popes was, that, when they found the imperial law opposed to the _common_, they were ready to favour it; when it was opposed to the _canon_, and brought that into neglect, they forbad ecclesiastics the study of it.

MR. SOMERS.

In the mean time the poor people, methinks, were in a fine condition, between two laws, the one founded on civil, and the other on ecclesiastical, tyranny. If either had prevailed, there had been an end of their liberties.

SIR J. MAYNARD.

Certainly their situation was very critical. Yet in the end it was precisely this situation that saved them. For betwixt these contentions of the crown and mitre, each endeavouring to extend its dominion over the other, the people, who were of course to be gained by either side in its distress, found means to preserve themselves from both.

To see how this happened, we must remember, what appears indeed from the two edicts of STEPHEN and HENRY, that the king himself was a bulwark betwixt them and the papal power. And when the king in his turn wanted to exalt his prerogative over all, the church very naturally took the alarm, as we saw in the case of WILLIAM’S separation of the two tribunals. And thus it happened, as NAT. BACON observes[138], “That many times the pope and the clergy became protectors of the people’s liberties, and kept them safe from the rage of kings.” The greatest danger was, when the two powers chanced to unite in one common design against them; as they did in their general inclination for the establishment of the civil law. But here the people had the courage always to defend themselves; and with that wisdom too, as demonstrates their attention to the cause of civil liberty, and the vigilance with which they guarded even its remotest outworks.

Of their steady and watchful conduct, in this respect, I shall mention some of the many memorable examples, that occur in our history.

I have said that from the time of STEPHEN, notwithstanding his famous edict, the imperial laws were the chief and favourite study of the clergy. They had good reason for applying themselves so closely to this science, and still further views than their own immediate advancement. They wanted to bring those laws into the civil courts, and to make them the standing rule of public administration; not merely from their good-will to the papal authority, which would naturally gain an advantage by this change, but for the sake of controlling the too princely barons, and in hopes, no doubt, that the imperial would in due time draw the canon laws into vogue along with them. Such, I think, were at least the secret designs of the ruling clergy; and they did not wait long before they endeavoured to put their project in execution. The plot was admirably laid, and with that deep policy as hath kept it, I believe, from being generally understood to this day.

The great men of that time were, we may be sure, too like the great men of every other, to be very scrupulous about the commission of those vices to which they were most inclined. The truth is, their profligacy was in proportion to their greatness and their ignorance. They indulged themselves in the most licentious amours, and even prided themselves in this licence. The good churchmen, no doubt, lamented this corruption of manners; but, as they could not reform, they resolved at least to draw some emolument to themselves from it. The castles of the barons, they saw, were full of bastards. Nay, the courtesy of that time had so far dignified their vices, that the very same was had in honour. EGO GULIELMUS BASTARDUS, is even the preamble to one of WILLIAM the First’s charters.

Yet, as respectable as it was become, there was one unlucky check on this favourite indulgence: and this, with the barons leave, the considerate bishops would presently take off. Subsequent marriage, by the imperial as well as canon laws, legitimated bastards, as to succession; whereas the common law kept them eternally in their state of bastardy. It is not to be doubted, but the barons would be sensible enough of this restraint. They earnestly wished to get rid of it. And could any thing bid so fair to recommend the imperial law to their good liking, as the tender of it for so desirable a purpose? At a parliament, therefore, under HENRY III[139], _Rogaverunt omnes episcopi, ut consentirent quod nati ante matrimonium essent legitimi_. What think ye now of this general supplication of the hierarchy? What could the barons do but comply with it, especially as it was so kindly intended for their relief, and the proposal was even made with a delicacy that might enable them to come into it with a good grace, and without the shame of seeming to desire it? All this is very true. Yet the answer of the virtuous barons is as follows: _Omnes comites et barons unâ voce responderunt_, QUOD NOLUMUS LEGES ANGLIÆ MUTARI.

We see then what stuck with them. These barons, as licentious as they 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.