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.”