Plainly the story is not simple and we must hurry past it. Still the perplexity of detail should not obscure the broad truth that there was pleasant reading in the Byzantine Code for a king who wished to be monarch in church as well as state: pleasanter reading than could be found in our ancient English law-books. Surely Erastianism is a bad name for the theory that King Henry approved: Marsilianism seems better, but Byzantinism seems best[31]. A time had come when, medieval spectacles being discarded, men could see with the naked eye what stood in the Code and Novels of Constantinople. In 1558 on the eve of an explosive Reformation ‘the Protestants of Scotland,’ craving ‘remedy against the tyranny of the estate ecclesiastical,’ demanded that the controversy should be judged by the New Testament, the ancient fathers ‘and the godly approved laws of Justinian the emperor[32].’ University-bred jurists, even such as came from an oldish school, were very serviceable to King Henry in the days of the great divorce case and the subsequent quarrel with the papacy. Tunstall, Gardiner, Bonner, Sampson and Clerk, to say nothing of the Leghs and Laytons, were doctors of law and took their fees in bishoprics and deaneries[33]. Certainly they were more conspicuous and probably they were much abler men than those who were sitting in the courts of the common law. With the one exception of Anthony Fitzherbert, the judges of Henry’s reign are not prominent in our legal history, and we have little reason for attributing deep knowledge of any sort of law to such chancellors as Audley, Wriothesley and Rich. I doubt our common lawyers easily accommodated themselves to ecclesiastical changes. Some years after Elizabeth’s accession the number of barristers who were known to the government as ‘papists’ was surprisingly large and it included the great Plowden[34]. But we must go back to our main theme.
A Reception there was not to be, nor dare I say that a Reception was what our Regius Professor or his royal patron desired. As to Smith himself, it is fairly evident that some time afterwards, when he had resigned his chair and was Elizabeth’s ambassador at the French court, he was well content to contrast the public law of England with that of ‘France, Italy, Spain, Germany and all other countries which’ to use his words ‘do follow the civil law of the Romans compiled by Justinian into his Pandects and Code[35].’ The little treatise on the Commonwealth of England which he wrote at Toulouse in 1565--a remarkable feat for he had no English books at hand[36]--became a classic in the next century, and certainly did not underrate those traditional, medieval, Germanic and parliamentary elements which were still to be found in English life and law under the fifth and last of the Tudors. Nevertheless I think that a well-equipped lecturer might persuade a leisurely audience to perceive that in the second quarter of the sixteenth century the continuity of English legal history was seriously threatened[37].