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.
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.