Part 16

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.”

These are the plain truths, which I have here delivered to you, and on which I could be content to rest this great cause; I mean, if it had not already received its formal, and, I would hope, final determination, in another way. For no pretences will surely prevail hereafter with a happy people to renounce that liberty, which so rightfully belonged to them at all times, and hath now so solemnly been confirmed to them by the great transactions of these days. I willingly omit therefore, as superfluous, what in a worse cause might have been thought of no small weight, the express testimony of our ablest lawyers to the freedom of our constitution. I do not mean only the COKES and SELDENS of our time (though in point of authority what names can be greater than theirs?); but those of older and therefore more reverend estimation, such as GLANVIL, BRACTON, the author of FLETA, THORNTON, and FORTESCUE[155]: men the most esteemed and learned in their several ages; who constantly and uniformly speak of the _English_, as a mixed and limited form of government, and even go so far as to seek its origin, where indeed the origin of all governments must be sought, in the free will and consent of the people.

All this I might have displayed at large; and to others perhaps, especially if the cause had required such management, all this I should have displayed. But, independently of the judgments of particular men, which prejudice might take occasion to object to, I hold it sufficient to have proved from surer grounds, from the very form and make of our political fabric, and the most unquestioned, because the most public, monuments of former times, “THAT THE ENGLISH CONSTITUTION IS ASSUREDLY AND INDISPUTABLY FREE[156].”

BP. BURNET.

You will read, Sir JOHN, in our attention to this discourse, the effect it has had upon us. The zeal, with which you have pleaded the cause of liberty, makes me almost imagine I see you again in the warmth and spirit of your younger years, when you first made head against the encroachments of civil tyranny. The same cause has not only recalled to your memory the old topics of defence, but restores your former vigour in the management of them. So that, for myself, I must freely own, your vindication of our common liberties is, at least, the most plausible and consistent that I have ever met with.

MR. SOMERS.

And yet, if one was critically disposed, there are still, perhaps, some things that might deserve a further explanation.—But enough has been said by you, Sir JOHN, to shew us where the truth lies: and, indeed, from such plain and convincing topics, that, whatever fears my love of liberty might suggest, they are much abated at least, if not entirely removed, by your arguments.

BP. BURNET.

Mr. SOMERS, I perceive, is not easily cured of his scruples and apprehensions. But for my own part, Sir JOHN, I can think but of one objection of weight that can be opposed to your conclusion. It is, “That, notwithstanding the clear evidence you have produced, both for the free nature of the _English_ constitution, and the general sense of the _English_ nation concerning it, yet, in fact, the government was very despotic under the TUDOR, and still more perhaps under the first princes of the STUART, line. How could this happen, may it be asked, on your plan, which supposes the popular interest to have been kept up in constant vigour, or rather to have been always gaining, insensibly indeed, but necessarily, on the power of the crown? Will not the argument then from historical evidence be turned against you, whilst it may be said that your theory, however plausible, is contradicted by so recent and so well-attested a part of our history? And, in particular, will not the partisans[157] of the late king and his family have to allege in their behalf, that their notions of the prerogative were but such as they succeeded to with the crown; and, whatever may be pretended from researches into remoter times, that they endeavoured only to maintain the monarchy on the footing on which it had stood for many successions, and on which it then stood when the administration fell into their hands? If this point were effectually cleared, I see nothing that could be further desired to a full and complete vindication of _English_ liberty.”

SIR J. MAYNARD.

Your lordship, I must own, has touched a very curious and interesting part of our subject. But you must not believe it was so much overlooked by me, as purposely left for your lordship’s better consideration. You, who have looked so minutely and carefully into the story of those times, will, better than any other, be able to unfold to us the mysteries of that affair. The fact is certain, as you say, that the _English_ government wore a more despotic appearance from the time of the TUDOR family’s accession to the throne, than in the reigns preceding that period. But I am mistaken, if your lordship will not open the reason of it so clearly as to convince us, that that increase of prerogative was no proof of a change in the constitution, and was even no symptom of declining liberty. I do not allow myself to speak my sentiments more plainly at present. But I am sure, if they are just, they will receive a confirmation from what your lordship will find occasion to observe to us in discoursing op this subject.

MR. SOMERS.

I will not disown that this was one of the matters I had in view, when I hinted some remaining doubts about your general conclusion. But I knew it would not escape my lord of SALISBURY, who, of all others, is certainly the most capable of removing it.

BP. BURNET.

So that I have very unwarily, it seems, been providing a fine task for myself. And yet, as difficult as I foresee it will be for me to satisfy two such Inquirers, I should not decline that task, if I was indeed prepared for it, or if I could boast of such a memory as Sir J. MAYNARD has shewn in the course of this conversation. But the truth is, though I have not wanted opportunities of laying in materials for such a design, and though I have not neglected to take some slight notes of them, yet I cannot pretend to have them at once in that readiness, as to venture on such a discourse as I know you expect from me. But if, against our next meeting, I shall be able to digest such thoughts as have sometimes occurred to me when I was engaged in the History of the Reformation, I shall take a pleasure to contribute all I can to the further and more entire elucidation of this subject.

THE END OF THE THIRD VOLUME.

Printed by J. Nichols and Son, Red Lion Passage, Fleet Street, London.

FOOTNOTES:

[1] Mala et impia consuetudo est contra Deos disputandi, sive ex animo id fit, sive simulatè. _De Nat. D._ l. ii. c. 67.

[2] Genus hoc sermonum, positum in hominum veterum auctoritate, et eorum illustrium, plus nescio quo pacto videtur habere gravitatis. Itaque ipse mea legens, sic afficior interdum, ut Catonem, non me loqui existímem. CIC. _De Amic._ c. 1.

[3] Omnem sermonem tribuimus non Tithono, ut Aristo Chius; _parum enim esset auctoritatis in fabulâ_. De Senect. c. 1.

[4] See the Dialogue intituled, Πρὸς τὸν εἰπόντα, ΠΡΟΜΗΘΕΥΣ εἶ ἐν λόγοις.

[5] Ἔπαιζεν ἅμα σπουδάζων· Xen. Mem. l. i. c. 3.

[6] Γέλωτα κωμικὸν ὑπὸ σεμνότητι φιλοσόφῳ. Προμηθ. c. 7.

[7] Difficillimam illam societatem _Gravitatis cum Humanitate_. _Leg._ l. iii. c. 1.

[8] Ἐτολμήσαμεν ἡμεῖς τὰ οὕτως ἔχοντα ϖρὸς ἄλληλα ξυναγαγεῖν καὶ ξυναρμόσαι, οὐ ϖάνυ ϖειθόμενα, οὐδὲ εὐμαρῶς ἀνεχόμενα τὴν κοινωνίαν. Προμηθ. c. 7.

[9] Προμηθ. c. 7. to the end. Δὶς κατηγορούμενος. c. 33. and Ζεῦξις.

[10] ——quo in genere orationis utrumque Oratorem cognoveramus, id ipsum sumus in eorum sermone _adumbrare conati_. De Orat. iii. 4.

[11] A curious passage, or two, in his Letters to Atticus, will serve to illustrate this observation. The _academic questions_ were drawn up, and finished, when a doubt occurred to him, whether he should not change one of the speakers in that Dialogue, and, instead of Varro, introduce Brutus; who would suit his purpose, he said, just as well, because his philosophic principles were the same with those of Varro—_si addubitas_, says he to Atticus, _ad Brutum transeamus. Est enim is quoque Antiochius._ l. xiii. 25. Was this a change to be easily made, if it were necessary, in this kind of writing, to suit the _style_ and _manner of expression_ to the character of the speakers? Yet, hear how negligently he treats this matter—_Opinor igitur consideremus, etsi nomina jam facta sunt. Sed_ VEL INDUCI, VEL MUTARI POSSUNT. l. xiii. 14.—In other words, provided the _cast_ of the several parts was the same, the _language_ of the Dialogue would require no alteration. It was indifferent, in this respect, who were the speakers.

[12] Scripsit enim et DIALOGOS quos non magis philosophiæ annumerare possis, quam HISTORIÆ. SENECA, EP. C.

[13] Lord SHAFTESBURY’S _Moralists_, P. 1. S. I.

[14] _Adv. to an Author_, P. 1. S. III.

[15] _Adv. to an Author_, P. 1. towards the end.

[16] The scene of Dr. MORE’S DIVINE DIALOGUES, printed in 1668.

[17] At BEACONSFIELD in _Bucks_, the supposed scene of the Dialogue.

[18] See his works, where are some pieces of a very early date; though Lord CLARENDON tells us, _he was near thirty years of age, before he was much taken notice of as a Poet_. Contin. of his Life, P. I. p. 25.

[19] Dr. ANDREWS, bishop of _Winchester_, and Dr. NEAL, bishop of _Durham_. The story is well known.

[20] Dr. GEORGE MORLEY.

[21] This alludes to the impeachment of Mr. _Justice_ CRAWLEY, _July 6, 1641_, for his extra-judicial opinion in the affair of _Ship-money_. Mr. WALLER’S speech on this occasion is extant amongst his works.

[22] The famous Mr. HAMPDEN was his uncle.

[23] That of _Secretary of State_. The Lord CLARENDON tells us it was with the utmost difficulty he persuaded him to accept it. “There were two considerations (says the historian) that made most impression on him; the _one_, lest the world should believe that his own ambition had procured this promotion, and that he had therefore appeared signally in the house to oppose those proceedings, that he might thereby render himself gracious to the court: The _other_, lest the king should expect such a submission and resignation of himself and his own reason and judgment to his commands as he should never give or pretend to give; for he was so severe an adorer of truth, that he would as easily have given himself leave to steal as to dissemble,” &c. B. iv.

[24] The noble historian, before cited, gives us two instances of Lord FALKLAND’S scrupulosity. The _one_ was, “That he could never bring himself to employ spies, or give any countenance or entertainment to them:” The _other_, “That he could never allow himself the liberty of opening letters, upon a suspicion that they might contain matter of dangerous consequence.” B. viii.

[25] To this purpose my Lord CLARENDON. “He [Mr. W.] spoke, upon all occasions, with great sharpness and freedom: which (now there were so few that used it, and there was no danger of being over-voted) was not restrained; and therefore used as an argument against those, who were gone upon pretence, that they were not suffered to declare their opinion freely in the house; which could not be believed, when all men knew what liberty Mr. WALLER took, and spoke every day with impunity, against the sense and proceedings of the house.” B. vii.

[26] See Lord CLARENDON’S History.

[27] Ἅπλωσον σεαυτόν, lib. iv. § 26, which Dr. MORE, in l. ii. c. 3. of his ENCHIRIDION ETHICUM, translates, _simplifica teipsum_.

[28] In the year 1654.

[29] Lord CLARENDON died in 1674.

[30] The character of Mr. WALLER is given at large in the _Life of Lord Clarendon_, P. I. p. 25.—As for Dr. MORE, Bishop BURNET tells us, in one word, “That he was an open-hearted and sincere Christian philosopher.” _Hist. of his own Time_, vol. p. 273. 12^{mo}, _Edinb._ 1753.