It had been an old custom, continued through the Saxon times, for the bishops and sheriffs to sit together in judicature in the county courts. This had been found a very convenient practice; for the presence of the churchmen gave a sanction to the determinations of the temporal courts, and drew an extraordinary reverence towards them from the people. Yet we find it abolished by the Conqueror; who, in a rescript to the bishop of Lincoln, ordained that, for the future, the bishops and aldermen of the shires should have separate courts and separate jurisdictions. The pretence for this alteration was the distinct nature of the two judicatures, and the desire of maintaining a strict conformity to the canons of the church. The real design was much deeper. There is no question but William’s inclinations, at least, were for arbitrary government; in which project his Norman lawyers, it was hoped, might be of good use to him. But there was a great obstacle in his way. The churchmen of those times had incomparably the best knowledge of the Saxon laws. It matters not, whether those churchmen were Normans, or not. They were equally devoted, as I observed before, to the Saxon laws, with the English; as favouring that independency, they affected, on the civil power. Besides, in the Confessor’s time, many and perhaps the greatest of the churchmen had been Normans; so that the study of the Saxon laws, from the interest they promised themselves in them, was grown familiar to the rising ecclesiastics of that country. Hence, as I said, the churchmen, though Normans, were well instructed in the spirit and genius of the Saxon laws; and it was not easy for the king’s glossers to interpret them to their own mind, whilst the bishops were at hand to refute and rectify their comments.
Besides, the truth is (and my lord of Salisbury will not be displeased with me for telling it), the ecclesiastics of that time were much indevoted to the court. They considered the king as the wickedest of all tyrants. He had brought them into subjection by their baronies, and had even set the pope himself at defiance. In this state of things, there was no hope of engaging the clergy in his plot. But when a separation of the two tribunals was made, and the civil courts were solely administered by his own creatures, the laws, it was thought, would speak what language he pleased to require of them.
Such appears to have been the design of this prince in his famous distinction of the ecclesiastic and temporal courts. It was so artfully laid, and so well coloured, that the laity seem to have taken no umbrage at it. But the clergy saw his drift; and their zeal for the ancient laws, as well as their resentments, put them upon contriving methods to counteract it. They hit upon a very natural and effectual one. In a word, they all turned common lawyers; and so found means of introducing themselves into the civil courts. This expedient succeeded so well, and was so generally relished, that the clergy to a man almost in the next reign were become professors of the common law; nullus Clericus nisi Causidicus, as William of Malmesbury takes care to inform us[130].
BP. BURNET.
Whatever their motive might be, the churchmen, I perceive, interposed very seasonably in the support of our civil liberties. It was a generous kind of revenge, methinks, to repay the king’s tyranny over the church by vindicating the authority of the English laws.
SIR J. MAYNARD.
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.