True; but my learned friend, as I conceive, did not attend to this matter with his usual exactness. For foreigners are as frequently concerned in the courts of law and equity, as in the other tribunals. The case in point of reason is very clear. In all contests that are carried on between a native and a foreigner, as the subject of another state, the decision ought to be by the law of nations. But when a foreigner puts himself with a native under the protection of our state, the determination is, of course, by our law. The practice hath uniformly corresponded to the right in the courts of law and equity. In the other tribunals the right hath given way to the will of the prince, who had his reasons for preferring the authority of the imperial law.
Upon the whole, if we consider the veneration, which the clergy usually entertained, and endeavoured to inculcate into the people, for the civil law; the indulgence shewn it by the prince; its prevalence in those courts which were immediately under the prerogative; and even the countenance shewn it at times in the course of pleading at common law; we cannot avoid coming to this short conclusion, “That the genius of the imperial laws was repugnant to our constitution; and that nothing but the extreme jealousy of the barons, lest they might prove, in pleas of the crown, injurious to civil liberty, hath kept them from being received in England on the same footing that we every where find they are in the other countries of Europe, and as they are in Scotland to this day.”
But, if you think I draw this conclusion too hastily, and without grounding it on sufficient premises, you may further consider with me, if you please, THE FATE AND FORTUNES OF THE CIVIL LAW IN THIS KINGDOM DOWN TO THE PRESENT TIME.
In the reigns of Henry VII[150] and VIII, and the two first kings of the house of Stuart, that is, the most despotic of our princes, the study of the civil law hath been more especially favoured; as we might conclude from the general spirit of those kings themselves, but as we certainly know from the countenance they shewed to its professors; from their chusing to employ them in their business, and from the salaries and places they provided for their encouragement. Yet see the issue of all this indulgence to a foreign law, and the treatment it met with from our parliaments and people! The oppressions of Empson and Dudley had been founded in a stretch of power, usurped and justified on the principles of the civil law; by which these miscreants had been enabled to violate a fundamental part of our constitution, the way of trial by JURIES. The effect on the people was dreadful. Accordingly, in the entrance of the next reign, though the authority, by which they had acted, had even been parliamentary, these creatures of tyranny were indicted of high treason, were condemned and executed for having been instrumental in subverting LEGEM TERRÆ; and the extorted statute, under which they had hoped to shelter themselves, was with a just indignation repealed.
Yet all this was considered only as a necessary sacrifice to the clamours of an incensed people. The younger Henry, we may be sure, had so much of his father in him, or rather so far outdid him in the worst parts of his tyranny, that he could not but look with an eye of favour on the very law he had been constrained to abolish. His great ecclesiastical minister was, no doubt, in the secret of his master’s inclinations, and conducted himself accordingly. Yet the vengeance of the nation pursued and overtook him in good time. They resented his disloyal contempt of the original constitution; and made it one of the articles against this Roman cardinal, “That he endeavoured to subvert antiquissimas leges hujus regni, universumque hoc regnum LEGIBUS IMPERIALIBUS subjicere.”
From this time, the study of the civil law was thought to languish in England, till it revived with much spirit in the reigns of those unhappy princes who succeeded to the house of Tudor. Then indeed, by inclination and by pedantry, James I. was led to patronize and encourage it. And the same project was resumed, and carried still further, by his unfortunate son. I speak now from my own experience and observation. The civil lawyers were most welcome at court. They were brought into the Chancery and court of Requests. The minister, another sort of man than Wolsey, yet a thorough ecclesiastic, and bigoted, if not to the religion; yet to the policy of Rome, gave a countenance to this profession above that of the common law. He had found the spirit, and even the forms of it, most convenient for his purpose in the Star-chamber and High-commission court, those tribunals of imperial justice, exalted so far above the controul of the common law; and by his good will, therefore, would have brought the same regimen into the other branches of the administration. Great civilians were employed to write elaborate defences of their science; to the manifest exaltation of the prerogative; to the prejudice of the national rights and privileges; and to the disparagement of the common law. The consequence of these proceedings is well known. The most immediate was, that they provoked the jealousy of the common lawyers; and, when the rupture afterwards happened, occasioned many of the most eminent of them to throw themselves into the popular scale[151].
Yet, to see the uniformity of the views of tyranny, and the direct opposition which it never fails to encounter from the English law, no sooner had a set of violent men usurped the liberties of their country, and with the sword in their hands determined to rule despotically and in defiance of the constitution, than the same jealousy of the common law, and the same contempt of it, revived. Nay, to such an extreme was the new tyranny carried, that the very game of Empson and Dudley was played over again. The trial of an Englishman by his peers was disgraced and rejected; and (I speak from what I felt) the person imprisoned and persecuted, who dared appeal, though in his own case[152], to the ancient essential forms of the constitution. Under such a state of things, it is not to be wondered that much pains was taken to depreciate a law which these mighty men were determined not to regard. Invectives against the professors of the English laws were the usual and favoured topics of parliamentary eloquence. These were sometimes so indecent, and pushed to that provoking length, that Whitlocke himself, who paced it with them through all changes, was forced in the end to hazard his reputation with his masters, by standing on the necessary defence of himself and his profession[153].
I need not, I suppose, descend lower. Ye have both seen with your own eyes the occurrences of the late reign. Ye have heard the common language of the time. The practice was but conformable to such doctrines as were current at court, where it was generally maintained, that the king’s power of dispensing with law, was LAW; by which if these doctors did not intend the imperial or civil law, the insult was almost too gross to deserve a confutation, It must be owned, and to the eternal shame of those who were capable of such baseness, there were not wanting some even of the common lawyers that joined in this insult.
I but touch these things slightly; for I consider to whom I speak. But if, to these examples of the nation’s fondness for their laws, you add, what appears in the tenor of our histories, the constant language of the coronation-oaths, of the oaths of our judges, and, above all, of the several great charters; in all which express mention is made of the LEX TERRÆ, in opposition to every foreign, but especially the Cæsarean, law; you will conclude with me, “That, as certainly as the Cæsarean law is founded in the principles of slavery, our English law, and the constitution to which it refers, hath its foundation in freedom, and, as such, deserved the care with which it hath been transmitted down to us from the earliest ages.”
What think ye now, my good friends? Is it any longer a doubt, that the constitution of the English government, such I mean as it appears to have been from the most unquestioned annals of our country, is a free constitution? Is there any thing more in the way of this conclusion? or does it not force itself upon us, and lie open to the mind of every plain man that but turns his attention upon this subject?