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.