MR. SOMERS.
I should be unwilling to weaken any argument you take to be of use in maintaining the noble cause you have undertaken. But, methinks, this charge on our princes would require to be made out by other evidence[147] than hath been commonly produced for it. There is no doubt but many of them have aimed at setting themselves above the laws of their country; but is it true (I mean, though Fortescue himself[148] has suggested the same thing) that for this purpose they have usually expressed a partiality to the Roman laws?
SIR J. MAYNARD.
I believe it certain that they have, and on better reasons than the bare word of any lawyer whatsoever.
What think you of Richard the Second’s policy in the instance before mentioned; that Richard, who used to declare, “That the laws were only in his mouth and breast, and that he himself could make and unmake them at his pleasure?” We may know for what reason a prince of this despotic turn had recourse to the Roman law.
But even his great predecessor is known to have been very indulgent towards it. And still earlier, Edward I. took much pains to establish the credit of this law; and to that end engaged the younger Accursius, the most renowned doctor of the age, to come over into England, and set up a school of it at Oxford. Or, to wave these instances, let me refer you to a certain and very remarkable fact, which speaks the sense, not of this or that king, but of the whole succession of our princes.
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.