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.