Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/197

 6. MAITLAND: THE RENAISSANCE 183 for a king who wished to be monarch in church as well as state: pleasahter reading than could be found in our an- cient English law-books. Surely Erastianism is a bad name for the theory that King Henry approved: MarsiHanism seems better, but Byzantinism seems best.^^ A time had come when, medieval spectacles being discarded, men could see with the naked eye what stood in the Code and Novels of Con- stantinople. 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 con- troversy should be judged by the New Testament, the an- cient fathers " and the godly approved laws of Justinian the was for a long time the law of the " Bartolist " tradition. Esmein (Histoire du droit franqais, ed. 2, p. 776) says: "Cujas exer^a sur le d^veloppement des theories de droit romain suivies en France une action beaucoup moins puissante que Du Moulin, et la filiation du romaniste Du Moulin n'est pas niable; par la forme comme par le fond, c'est le dernier des grands Bartolistes." '^ Thomas Starkey, when he was trying to win over Reginald Pole to Henry's side, wrote thus: " Thes thyngs I thynke schal be somewhat in your mynd confermyd by the redyng of Marsilius, whome I take, though he were in style rude, yet to be of grete iugement, and wel to set out thys mater, both by the authoryte of scripture and good reysonys groundyd in phylosophy, and of thys I pray you send me your iuge- ment." (Starkey's England, Early Engl. Text Soc. 1878, p. xxv.) Cha- puis (the imperial ambassador at Henry's court) to Charles V, 3 Jan. 1534 (Letters and Papers of Henry VIII., vol. vii., p. 6): "The little pamphlet composed by the Council, which I lately sent to your Majesty, is only a preamble and prologue of others more important which are now being printed. One is called Defensorium Pads, written in favour of the emperor Loys of Bavaria against apostolic authority. Formerly no one dared read it for fear of being burnt, but now it is translated into English so that all the people may see and understand it." William Marshall to Thomas Cromwell (Ibid., p. 178) : " Whereas you promised to lend me £20 towards the printing of Defensor Pads, which has been translated this twelve-month, but kept from the press for lack of money, in trust of your offer I have begun to print it. I have made an end 01 the Gift of Constantine and of Erasmus upon the Creed." The " Gift of Constantine" must be the famous treatise of Laurentius Valla. The translation of Marsilius appeared on 27 July, 1535 (Diet. Nat. Biog. a. n. William Marshall). In October twenty-four copies had been dis- tributed among the Carthusians in London (Letters and Papers, vol. ix., p. 171). In 1536 Marshall complained that the book had not sold, though it was the best book in English against the usurped power of the bishop of Rome (Ibid., vol. xi., p. 542). As to Byzantinism, if it be an accident it is a memorable accident that the strongest statement of King Henry's divinely instituted headship of the church occurs in a statute which enables unordained doctors of the civil (not canon) law to exercise that plenitude of ecclesiastical jurisdiction which God has committed to the king (Stat. 37 Hen. VIII., c. 17).