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].