Volume 1 — DIALOGUE V. ON THE CONSTITUTION OF THE ENGLISH GOVERNMENT. (continued 2)

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 author145. 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 Fleta146, 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.

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 evidence147 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 himself148 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 universities149. 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.

SIR J. MAYNARD.

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 VII150 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 scale151.

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 case152, 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 profession153.

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?

You began, Mr. Somers, with great fears and apprehensions; or you thought fit to counterfeit them, at least. You suspected the matter was too mysterious for common understandings to penetrate, and too much involved in the darkness of ancient times to be brought into open day-light. Let me hear your free thoughts on the evidence I have here produced to you. And yet it is a small part only of that which might be produced, of that I am sure which yourself could easily have produced, and perhaps expected from me.

But I content myself with these obvious truths, “That the liberty of the subject appears, and of itself naturally arose, from the very nature of the FEUDAL, which is properly (at least if we look no further back than the Conquest) the English constitution; that the current of liberty has been gradually widening, as well as purifying, in proportion as it descended from its source; that charters and laws have removed every scruple that might arise about the reciprocal rights and privileges of prince and people; that the sense of that liberty which the nation enjoyed under their admirable constitution was so quick, that every the least attempt to deprive them of it gave an alarm; and their attachment to it so strong and constant, that no artifice, no intrigue, no perversion of law and gospel, could induce them to part with it: that, in particular, they have guarded this precious deposite of legal and constitutional liberty with such care, that, while the heedless reception of a foreign law, concurring with other circumstances, hath riveted the yoke of slavery on the other nations of Europe, this of England could never be cajoled nor driven into any terms of accommodation with it; but, as Nat. Bacon154 said truly, That the triple crown could never well solder with the English, so neither could the imperial; and that, in a word, the English LAW hath always been preserved inviolate from the impure mixtures of the canon and Cæsarean laws, as the sole defence and bulwark of our civil liberties.”

These are the plain truths, which I have here delivered to you, and on which I could be content to rest this great cause; I mean, if it had not already received its formal, and, I would hope, final determination, in another way. For no pretences will surely prevail hereafter with a happy people to renounce that liberty, which so rightfully belonged to them at all times, and hath now so solemnly been confirmed to them by the great transactions of these days. I willingly omit therefore, as superfluous, what in a worse cause might have been thought of no small weight, the express testimony of our ablest lawyers to the freedom of our constitution. I do not mean only the Cokes and Seldens of our time (though in point of authority what names can be greater than theirs?); but those of older and therefore more reverend estimation, such as Glanvil, Bracton, the author of Fleta, Thornton, and Fortescue155: men the most esteemed and learned in their several ages; who constantly and uniformly speak of the English, as a mixed and limited form of government, and even go so far as to seek its origin, where indeed the origin of all governments must be sought, in the free will and consent of the people.

All this I might have displayed at large; and to others perhaps, especially if the cause had required such management, all this I should have displayed. But, independently of the judgments of particular men, which prejudice might take occasion to object to, I hold it sufficient to have proved from surer grounds, from the very form and make of our political fabric, and the most unquestioned, because the most public, monuments of former times, “That the English constitution is assuredly and indisputably free156.”

BP. BURNET.

You will read, Sir John, in our attention to this discourse, the effect it has had upon us. The zeal, with which you have pleaded the cause of liberty, makes me almost imagine I see you again in the warmth and spirit of your younger years, when you first made head against the encroachments of civil tyranny. The same cause has not only recalled to your memory the old topics of defence, but restores your former vigour in the management of them. So that, for myself, I must freely own, your vindication of our common liberties is, at least, the most plausible and consistent that I have ever met with.

MR. SOMERS.

And yet, if one was critically disposed, there are still, perhaps, some things that might deserve a further explanation.—But enough has been said by you, Sir John, to shew us where the truth lies: and, indeed, from such plain and convincing topics, that, whatever fears my love of liberty might suggest, they are much abated at least, if not entirely removed, by your arguments.

BP. BURNET.

Mr. Somers, I perceive, is not easily cured of his scruples and apprehensions. But for my own part, Sir John, I can think but of one objection of weight that can be opposed to your conclusion. It is, “That, notwithstanding the clear evidence you have produced, both for the free nature of the English constitution, and the general sense of the English nation concerning it, yet, in fact, the government was very despotic under the Tudor, and still more perhaps under the first princes of the Stuart, line. How could this happen, may it be asked, on your plan, which supposes the popular interest to have been kept up in constant vigour, or rather to have been always gaining, insensibly indeed, but necessarily, on the power of the crown? Will not the argument then from historical evidence be turned against you, whilst it may be said that your theory, however plausible, is contradicted by so recent and so well-attested a part of our history? And, in particular, will not the partisans157 of the late king and his family have to allege in their behalf, that their notions of the prerogative were but such as they succeeded to with the crown; and, whatever may be pretended from researches into remoter times, that they endeavoured only to maintain the monarchy on the footing on which it had stood for many successions, and on which it then stood when the administration fell into their hands? If this point were effectually cleared, I see nothing that could be further desired to a full and complete vindication of English liberty.”

SIR J. MAYNARD.

Your lordship, I must own, has touched a very curious and interesting part of our subject. But you must not believe it was so much overlooked by me, as purposely left for your lordship’s better consideration. You, who have looked so minutely and carefully into the story of those times, will, better than any other, be able to unfold to us the mysteries of that affair. The fact is certain, as you say, that the English government wore a more despotic appearance from the time of the Tudor family’s accession to the throne, than in the reigns preceding that period. But I am mistaken, if your lordship will not open the reason of it so clearly as to convince us, that that increase of prerogative was no proof of a change in the constitution, and was even no symptom of declining liberty. I do not allow myself to speak my sentiments more plainly at present. But I am sure, if they are just, they will receive a confirmation from what your lordship will find occasion to observe to us in discoursing op this subject.

MR. SOMERS.

I will not disown that this was one of the matters I had in view, when I hinted some remaining doubts about your general conclusion. But I knew it would not escape my lord of Salisbury, who, of all others, is certainly the most capable of removing it.

BP. BURNET.

So that I have very unwarily, it seems, been providing a fine task for myself. And yet, as difficult as I foresee it will be for me to satisfy two such Inquirers, I should not decline that task, if I was indeed prepared for it, or if I could boast of such a memory as Sir J. Maynard has shewn in the course of this conversation. But the truth is, though I have not wanted opportunities of laying in materials for such a design, and though I have not neglected to take some slight notes of them, yet I cannot pretend to have them at once in that readiness, as to venture on such a discourse as I know you expect from me. But if, against our next meeting, I shall be able to digest such thoughts as have sometimes occurred to me when I was engaged in the History of the Reformation, I shall take a pleasure to contribute all I can to the further and more entire elucidation of this subject.

THE END OF THE THIRD VOLUME.

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