Though the principles of nature and common
sense do fully authorise resistance to the
civil magistrate in extreme cases, and of course
justify the late Revolution to every candid and
dispassionate man; yet I am sensible, my excellent
friend, there are many prejudices which
hinder the glorious proceedings in that affair
from being seen in their true light. The principal
of them, indeed, are founded on false
systems of policy, and those tied down on the
consciences of men by wrong notions of religion.
And such as these, no doubt, through
the experience of a better government, and a
juster turn of thinking, which may be expected
to prevail in our times, will gradually fall away
of themselves.
But there is another set of notions on this
subject, not so easy to be discredited, and
which are likely to keep their hold on the
minds even of the more sober and considerate
sort of men. For whatever advantage the
cause of liberty may receive from general reasonings
on the origin and nature of civil government,
the greater part of our countrymen
will consider, and perhaps rightly, the inquiry
into the constitution of their own government,
as a question of FACT; that must be tried by
authorities and precedents only; and decided
at last by the evidence of historical testimony,
not by the conclusions of philosophy or political
speculation.
Now, though we are agreed that this way of
managing the controversy must, when fully and
fairly pursued, be much in favour of the new
settlement, yet neither, I think, is it for every
man’s handling, nor is the evidence resulting
from it of a nature to compel our assent. The
argument is formed on a vast variety of particulars,
to be collected only from a large and
intimate acquaintance with the antiquities,
laws, and usages of the kingdom. Our printed
histories are not only very short and imperfect;
but the original records, which the curious
have in their possession, are either so obscure
or so scanty, that a willing adversary hath
always in readiness some objection, or some
cavil at least, to oppose to the evidence that
may be drawn from them. Besides, appearances,
even in the plainest and most unquestioned
parts of our history, are sometimes so
contradictory; arising either from the tyranny
of the prince, the neglect of the people, or
some other circumstance of the times; and, to
crown all, the question itself hath been so involved
by the disputations of prejudiced and
designing men; that the more intelligent inquirer
is almost at a loss to determine for
himself, on which side the force of evidence
lies.
On this account I have frequently thought
with myself, that a right good CONSTITUTIONAL
HISTORY of England would be the noblest
service that any man, duly qualified for the
execution of such a work, could render to his
country. For though, as I said, the subject
be obscure in itself, and perplexed by the subtilties
which contending parties have invented
for the support of their several schemes; yet,
from all I have been able to observe in the
course of my own reading, or conversation,
there is little doubt but that the form of the
English government hath, at all times, been
FREE. So that, if such a history were drawn
up with sufficient care out of our authentic
papers and public monuments, it would not
only be matter of entertainment to the curious,
but the greatest security to every Englishman
of his religions and civil rights. For what can
be conceived, more likely to preserve and perpetuate
these rights, than the standing evidence
which such a work would afford, of
the genuine spirit and temper of the constitution?
Of the principles of freedom109, on
which it was formed, and on which it hath
been continually and uniformly conducted?
Our youth, who at present amuse themselves
with little more than the military part of our
annals, would then have an easy opportunity
of seeing to the bottom of all our civil and domestic
broils. They would know on what pretences
the PREROGATIVE of our kings hath
sometimes aspired to exalt itself above controul;
and would learn to revere the magnanimity
of their forefathers, who as constantly
succeeded in their endeavours to reduce it
within the ancient limits and boundaries of the
LAW. In a word, they would no longer rest on
the surface and outside, as it were, of the
English affairs, but would penetrate the interior
parts of our constitution; and furnish
themselves with a competent degree of civil and
political wisdom; the most solid fruit that can
be gathered from the knowledge and experience
of past times.
And I am ready to think that such a provision
as this, for the instruction of the English
youth, may be the more requisite, on account
of that limited indeed, yet awful form of government,
under which we live. For, besides the
name, and other ensigns of majesty, in common
with those who wear the most despotic
crown, the whole execution of our laws, and
the active part of government, is in the hands
of the prince. And this pre-eminence gives
him so respectable a figure in the eyes of his
subjects, and presents him so constantly, and
with such lustre of authority, to their minds,
that it is no wonder they are sometimes disposed
to advance him, from the rank of first
magistrate of a free people, into that of supreme
and sole arbiter of the laws.
So that, unless these prejudices are corrected
by the knowledge of our constitutional history,
there is constant reason to apprehend, not only
that the royal authority may stretch itself
beyond due bounds; but may grow, at length,
into that enormous tyranny, from which this
nation hath been at other times so happily, and
now of late so wonderfully, redeemed.
But I suffer myself to be carried by these reflexions
much further than I designed. I would
only say to you, that, having sometimes reflected
very seriously on this subject, it was
with the highest pleasure I heard it discoursed
of the other day by two of the most accomplished
lawyers of our age: the venerable Sir
John Maynard, who, for a long course of
years, hath maintained the full credit and dignity
of his profession; and Mr. Somers, who,
though a young man, is rising apace, and
with proportionable merits, into all the honours
of it.
I was very attentive, as you may suppose, to
the progress of this remarkable conversation;
and, as I had the honour to bear a full share in
it myself, I may the rather undertake to give
you a particular account of it. I know the
pleasure it will give you to see a subject, you
have much at heart, and which we have frequently
talked over in the late times, thoroughly,
canvassed, and cleared up; as I think it must
be, to your entire satisfaction.
It was within a day or two after that great
event, so pleasing to all true Englishmen, THE
CORONATION OF THEIR MAJESTIES110, that Mr.
Somers and I went; as we sometimes used, to
pass an evening with our excellent friend, my
Lord Commissioner111. I shall not need to attempt
his character to you, who know him so
well. It is enough to say, that his faculties
and spirits are, even in this maturity of age, in
great vigour. And it seems as if this joyful
Revolution, so agreeable to his hopes and principles,
had given a fresh spring and elasticity to
both.
The conversation of course turned on the
late august ceremony; the mention of which
awakened a sort of rapture in the good old
man, which made him overflow in his meditations
upon it. Seeing us in admiration of the
zeal which transported him, “Bear with me,
said he, my young friends. Age, you know,
hath its privilege. And it may be, I use it
somewhat unreasonably. But I, who have
seen the prize of liberty contending for through
half a century, to find it obtained at last by a
method so sure, and yet so unexpected, do
you think it possible that I should contain
myself on such an occasion? Oh, if ye had
lived with me in those days, when such mighty
struggles were made for public freedom, when
so many wise counsels miscarried, and so many
generous enterprises concluded but in the confirmation
of lawless tyranny; if, I say, ye had
lived in those days, and now at length were able
to contrast with me, to the tragedies that were
then acted, this safe, this bloodless, this
complete deliverance: I am mistaken, if the
youngest of you could reprove me for this joy,
which makes me think I can never say enough
on so delightful a subject.
Reprove you, my lord? Alas! we are neither
of us so unexperienced in what hath passed
of late in these kingdoms, as not to rejoice
with you to the utmost for this astonishing deliverance.
You know I might boast of being
among the first that wished for, I will not say
projected, the measures by which it hath been
accomplished. And for Mr. Somers, the church
of England will tell——
I confess, my warmest wishes have ever
gone along with those who conducted this noble
enterprise. And I pretend to as sincere a
pleasure as any man, in the completion of it.
Yet, if we were not unreasonable at such a
time, I might be tempted to mention one circumstance,
which, I know not how, a little
abates the joy of these triumphant gratulations.
Is not the settlement then to your mind? Or
hath any precaution been neglected, which you
think necessary for the more effectual security
of our liberties?
Not that. I think the provision for the
people’s right as ample as needs be desired.
Or, if any further restrictions on the crown be
thought proper, it will now be easy for the
people, in a regular parliamentary way, to effect
it. What I mean is a consideration of much
more importance.
The pretended prince of Wales, you think,
will be raising some disturbance, or alarm at
least, to the new government. I believe, I
may take upon me to give you perfect satisfaction
upon that subject112.
Still your conjectures fall short or wide of
my meaning. Our new Magna Charta, as
I love to call the Declaration of Rights, seems
a sufficient barrier against any future encroachments
of the CROWN. And I think, the pretended
prince of Wales, whatever be determined
of his birth, a mere phantom, that may
amuse, and perhaps disquiet, the weaker sort
for a while; but, if left to itself113, will soon
vanish out of the minds of the PEOPLE. Not
but I allow that even so thin a pretence as this
may, some time or other, be conjured up to
disturb the government. But it must be, when
a certain set of principles are called in aid to
support it. And, to save you the further
trouble of guessing, I shall freely tell you, what
those principles are.—You will see, in them,
the ground of my present fears and apprehensions.
It might be imagined that so necessary a
Revolution, as that which hath taken place,
would sufficiently approve itself to all reasonable
men. And it appears, in fact, to have
done so, now that the public injuries are fresh,
and the general resentment of them strong and
lively. But it too often happens, that when
the evil is once removed, it is presently forgotten:
and in matters of government especially,
where the people rarely think till they are
made to feel, when the grievance is taken away,
the false system easily returns, and sometimes
with redoubled force, which had given birth
to it.
One can readily admit the principles. But
the conclusion, you propose to draw from
them—
This very important one, “That, if the late
change of government was brought about, and
can be defended only, on the principles of
liberty; the settlement, introduced by it, can
be thought secure no longer than while those
principles are rightly understood, and generally
admitted.”
But what reason is there to apprehend that
these principles, so commonly professed and
publickly avowed, will not continue to be kept
up in full vigour?
Because, I doubt, they are so commonly
and publickly avowed, only to serve a present
turn; and not because they come from
the heart, or are entertained on any just ground
of conviction.
Very likely: and considering the pains that
have been taken to possess the minds of men
with other notions of government, the wonder
is, how they came to be entertained at all. Yet
surely the experience of better times may be
expected to do much. Men will of course
think more justly on these subjects in proportion
as they find themselves more happy.
And thus the principles, which, as you say,
were first pretended to out of necessity, will
be followed out of choice, and bound upon
them by the conclusions of their own reason.
I wish your lordship be not too sanguine in
these expectations. It is not to be conceived
how insensible the people are to the blessings
they enjoy, and how easily they forget their
past miseries. So that, if their principles have
not taken deep root, I would not answer for
their continuing much longer than it served
their purpose to make a shew of them.
I must confess, that all my experience of
mankind inclines me to this opinion. I could
relate to you some strange instances of the sort
Mr. Somers hints at. But after all, Sir, you
do not indulge these apprehensions, on account
of the general fickleness of human nature. You
have some more particular reasons for concluding
that the system of liberty, which hath
worked such wonders of late, is not likely to
maintain its ground amongst us.
I have: and I was going to explain those
reasons, if my lord of Salisbury had not a
little diverted me from the pursuit of them.
It is very notorious from the common discourse
of men even on this great occasion (and
I wish it had not appeared too evidently in the
debates of the houses), that very many of us
have but crude notions of the form of government
under which we live, and which hath
been transmitted to us from our forefathers. I
have met with persons of no mean rank, and
supposed to be well seen in the history of the
kingdom, who speak a very strange language.
They allow, indeed, that something was to be
done in the perilous circumstances into which
we had fallen. But, when they come to explain
themselves, it is in a way that leaves us
no right to do any thing; at least, not what it
was found expedient for the nation to do at
this juncture. For they contend in so many
words, “that the crown of England is absolute;
that the form of government is an entire
and simple monarchy; and that so it hath
continued to be in every period of it down to
the Abdication: that the Conquest, at least,
to ascend no higher, invested the first William
in absolute dominion; that from him it
devolved of course upon his successors; and
that all the pretended rights of the people, the
Great Charters of ancient and modern date,
were mere usurpations on the prince, extorted
from him by the necessity of his affairs, and
revocable at his pleasure: nay, they insinuate
that parliaments themselves were the creatures
of his will; that their privileges were all derived
from the sovereign’s grant; and that they
made no part in the original frame and texture
of the English government.
In support of this extraordinary system, they
refer us to the constant tenor of our history.
They speak of the Conqueror, as proprietary
of the whole kingdom: which accordingly,
they say, he parcelled out, as he saw fit, in
grants to his Norman and English subjects:
that, through his partial consideration of the
church, and an excessive liberality to his favoured
servants, this distribution was so ill
made, as to give occasion to all the broils and
contentions that followed: that the churchmen
began their unnatural claim of independency
on the crown; in which attempt they
were soon followed by the encroaching and too
powerful barons: that, in these struggles, many
flowers of the crown were rudely torn from it,
till a sort of truce was made, and the rebellious
humour somewhat composed, by the extorted
articles of Running-mede: that these confusions,
however, were afterwards renewed, and
even increased, by the contests of the two
houses of York and Lancaster: but that,
upon the union of the roses in the person of
Henry VII, these commotions were finally
appeased, and the crown restored to its ancient
dignity and lustre: that, indeed, the usage of
parliaments, with some other forms of popular
administration, which had been permitted in
the former irregular reigns, was continued; but
of the mere grace of the prince, and without
any consequence to his prerogative: that succeeding
kings, and even Henry himself, considered
themselves as possessed of an imperial
crown; and that, though they might sometimes
condescend to take the advice, they were
absolutely above the control, of the people: in
short, that the law itself was but the will of the
prince, declared in parliament; or rather solemnly
received and attested there, for the
better information and more entire obedience
of the subject.
This they deliver as a just and fair account
of the English government; the genius of
which, they say, is absolute and despotic in
the highest degree; as much so, at least, as
that of any other monarchy in Europe. They
ask, with an air of insult, what restraint our
Henry VIII, and our admired Elizabeth,
would ever suffer to be put on their prerogative;
and they mention with derision the fancy
of dating the high pretensions of the crown
from the accession of the Stuart family. They
affirm, that James I, and his son, aimed only
to continue the government on the footing on
which they had received it; that their notions
of it were authorized by constant fact; by
the evidence of our histories; by the language
of parliaments; by the concurrent sense of
every order of men amongst us: and that what
followed in the middle of this century was the
mere effect of POPULAR, as many former disorders
had been of PATRICIAN, violence. In a
word, they conclude with saying, that the old
government revived again at the Restoration,
just as, in like circumstances, it had done before
at the UNION of the two houses: that, in
truth, the voluntary desertion of the late king
have given a colour to the innovation of the
present year; but that, till this new settlement
was made, the English constitution, as implying
something different from pure monarchy,
was an unintelligible notion, or rather
a mere whimsy, that had not the least foundation
in truth or history.”
This is a summary of the doctrines, which,
I doubt, are too current amongst us. I do not
speak of the bigoted adherents to the late king;
but of many cooler and more disinterested men,
whose religious principles, as I suppose (for it
appears it could not be their political), had
engaged them to concur in the new settlement.
You will judge, then, if there be not reason
to apprehend much mischief from the prevalence
and propagation of such a system: a system,
which, as being, in the language of the
patrons of it, founded upon fact, is the more
likely to impose upon the people; and, as referring
to the practice of ancient times, is not
for every man’s confutation. I repeat it, therefore;
if this notion of the despotic form of our
government become general, I tremble to think
what effect it may hereafter produce on the
minds of men; especially when joined to that
false tenderness, which the people of England
are so apt to entertain for their princes, even
the worst of them, under misfortune. I might
further observe, that this prerogative system
hath a direct tendency to produce, as well as
heighten, this compassion to the sovereign.
And I make no scruple to lay it before you
with all its circumstances, because I know to
whom I speak, and that I could not have
wished for a better opportunity of hearing it
confuted.
I must own, though I was somewhat unwilling
to give way to such melancholy apprehensions
at this time, I think with Mr. Somers,
there is but too much reason to entertain them.
For my own part, I am apt to look no further
for the right of the legislature to settle the government
in their own way, than their own
free votes and resolutions. For, being used to
consider all political power as coming originally
from the people, it seems to me but fitting that
they should dispose of that power for their
own use, in what hands, and under what conditions,
they please. Yet, as much regard is
due to established forms and ancient prescription,
I think the matter of fact of great consequence;
and, if the people in general should
once conceive of it according to this representation,
I should be very anxious for the issue of so
dangerous an opinion. I must needs, therefore,
join very entirely with Mr. Somers, in
wishing to hear the whole subject canvassed,
or rather finally determined, as it must be, if
Sir John Maynard will do us the pleasure to
acquaint us what his sentiments are upon it.
Truly, my good friends, you have opened a
very notable cause, and in good form. Only,
methinks, a little less solemnity, if you had so
pleased, might have better suited the occasion.
Why, I could almost laugh, to hear you talk
of feats and dangers from a phantom of your
own raising. I certainly believe the common
proverb belies us; and that old age is not that
dastardly thing it hath been represented. For,
instead of being terrified by this conceit of a
prescriptive right in our sovereigns to tyrannize
over the subject, I am ready to think the
contrary so evident from the constant course of
our history, that the simplest of the people
are in no hazard of falling into the delusion. I
should rather have apprehended mischief from
other quarters; from the influence of certain
speculative points, which have been to successfully
propagated of late; and chiefly from
those pernicious glosses, which too many of
my order have made on the letter or the law,
and too many of yours, my lord of Salisbury,
on that of the gospel. Trust me, if the matter
once came to a question of FACT, and the inquiry
be only concerning ancient form and
precedent, the decision will be in our favour.
And for yourselves, I assure myself, this decision
is already made. But since you are
willing to put me upon the task, and we have
leisure enough for such an amusement, I shall
very readily undertake it. And the rather, as
I have more than once in my life had occasion
to go to the bottom of this inquiry; and now
very lately have taken a pleasure to reflect on
the general evidence which history affords of
our free constitution, and to review the scattered
hints and passages I had formerly set down for
my private satisfaction.
“I understand the question to be, not
under what form the government hath appeared
at some particular conjunctures, but
what we may conclude it to have been from
the general current and tenor of our histories.
More particularly, I conceive, you would ask,
not whether the administration hath not at
some seasons been DESPOTIC, but whether the
genius of the government hath not at all times
been FREE. Or, if you do not think the
terms, in which I propose the question, strict
enough, you will do well to state it in your
own way, that hereafter we may have no dispute
about it.
I suppose, the question, as here put, is determinate
enough for our purpose.—Or, have
you, Mr. Somers, any exceptions to make to
it?
I believe we understand each other perfectly
well; the question being only this, “Whether
there be any ground in history, to conclude
that the prince hath a constitutional claim to
absolute uncontrolable dominion; or, whether
the liberty of the subject be not essential to
every different form, under which the English
government hath appeared?”
You expect of me then to shew, in opposition
to the scheme just now delivered by you,
that neither from the original constitution of
the government, nor from the various forms
(for they have, indeed, been various) under
which it hath been administered, is there any
reason to infer, that the English monarchy
is, or of right ought to be, despotic and unlimited.
Now this I take to be the easiest of all undertakings;
so very easy, that I could trust a
plain man to determine the matter for himself
by the light that offers itself to him from the
slightest of our histories. ’Tis true, the deeper
his researches go, his conviction will be the
clearer; as any one may see by dipping into
my friend Nat. Bacon’s discourses; where our
free constitution is set forth with that evidence,
as must for ever have silenced the patrons of
the other side, if he had not allowed himself
to strain some things beyond what the truth,
or indeed his cause, required. But, saving to
myself the benefit of his elaborate work, I
think it sufficient to take notice, that the system
of liberty is supported even by that short
sketch of our history, which Mr. Somers hath
laid before us; and in spite of the disguises,
with which, as he tells us, the enemies of
liberty have endeavoured to cloak it.
You do not, I am sure, expect from me,
that I should go back to the elder and more
remote parts of our history; that I should take
upon me to investigate the scheme of government,
which hath prevailed in this kingdom
from the time that the Roman power departed
from us; or that I should even lay myself out
in delineating, as many have done, the plan of
the Saxon constitution: though such an attempt
might not be unpleasing, nor altogether
without its use, as the principles of the Saxon
policy, and in some respects the form of it,
have been constantly kept up in every succeeding
period of the English monarchy. I content
myself with observing, that the spirit of
liberty was predominant in those times: and,
for proof of it, appeal at present only to one
single circumstance, which you will think remarkable.
Our Saxon ancestors conceived so
little of government, by the will of the magistrate,
without fixed laws, that Laga, or Leaga,
which in their language first and properly signified
the same as Law with us, was transferred114
very naturally (for language always
conforms itself to the genius, temper, and manners
of a nation) to signify a country, district,
or province; these good people having no notion
of any inhabited country not governed by
laws. Thus Dæna-laga; Merkena-laga;
and Westsexena-laga, were not only used in
their laws and history to signify the laws of the
Danes, Mercians, and West-Saxons, but the
countries likewise. Of which usage I could
produce to you many instances, if I did not
presume that, for so small a matter as this, my
mere word might be taken.
You see then how fully the spirit of liberty
possessed the very language of our Saxon forefathers.
And it might well do so; for it was
of the essence of the German constitutions; a
just notion of which (so uniform was the genius
of the brave people that planned them) may be
gathered, you know, from what the Roman
historians, and, above all, from what Tacitus
hath recorded of them.
But I forbear so common a topic: and, besides,
I think myself acquitted of this task, by
the prudent method, which the defenders of
the regal power have themselves taken in conducting
this controversy. For, as conscious of
the testimony which the Saxon times are ready
to bear against them, they are wise enough to
lay the foundation of their system in the Conquest.
They look, no higher than that event
for the origin of the constitution, and think
they have a notable advantage over us in deducing
their notion of the English government
from the form it took in the hands of the Norman
invader. But is it not pleasant to hear
these men calumniate the improvements that
have been made from time to time in the plan
of our civil constitution with the name of usurpations,
when they are not ashamed to erect the
constitution itself on what they must esteem, at
least, a great and manifest usurpation?
Conquest, I suppose, in their opinion, gives
right. And since an inquiry into the origin
of a constitution requires that we fix somewhere,
considering the vast alterations introduced by
the Conquest, and that we have never pretended
to reject, but only to improve and complete, the
duke of Normandy’s establishment; I believe
it may be as proper to set out from that æra
as from any other.
Your lordship does not imagine that I am
about to excuse myself from closing with them,
even on their own terms. I intended that question
only as a reproach to the persons we have
to deal with; who, when a successful event
makes, or but seems to make, for their idol of
an absolute monarchy, call it a regular establishment:
whereas a revolution brought about
by the justest means, if the cause of liberty receive
an advantage by it, shall be reviled by the
name of usurpation. But let them employ
what names they please, provided their facts be
well grounded. We will allow them to dignify
the Norman settlement with the title of CONSTITUTION.
What follows? That despotism
was of the essence of that constitution? So they
tell us indeed; but without one word of proof,
for the assertion. For what! do they think the
name of conquest, or even the thing, implies
an absolute unlimited dominion? Have they
forgotten that William’s claim to the crown
was, not conquest (though it enabled him to
support his claim), but testamentary succession:
a title very much in the taste of that
time115, and extremely reverenced by our Saxon
ancestors? That, even waving this specious
claim, he condescended to accept the crown,
as a free gift; and by his coronation-oath submitted
himself to the same terms of administration,
as his predecessors? And that, in one
word, he confirmed the Saxon laws, at least
before he had been many years in possession of
his new dignity116.
Is there any thing in all this that favours the
notion of his erecting himself, by the sole virtue
of his victory at Hastings, into an absolute
lord of the conquered country? Is it not
certain that he bound himself, as far as oaths
and declarations could bind him, to govern according
to law; that he could neither touch
the honours nor estates of his subjects but by
legal trial; and that even the many forfeitures
in his reign are an evidence of his proceeding
in that method?
Still we are told “of his parcelling out the
whole land, upon his own terms, to his followers;”
and are insulted “with his famous
institution of feudal tenures.” But what if the
former of these assertions be foreign to the
purpose at least, if not false; and the latter
subversive of the very system it is brought to
establish? I think, I have reason for putting
both these questions. For, what if he parcelled
out most, or all, of the lands of England to
his followers? The fact has been much disputed.
But be it, as they pretend, that the
property of all the soil in the kingdom had
changed hands: What is that to us, who claim
under our Norman, as well as Saxon, ancestors?
For the question, you see, is about the form
of government settled in this nation at the time
of the Conquest. And they argue with us,
from a supposed act of tyranny in the Conqueror,
in order to come at that settlement. The
Saxons, methinks, might be injured, oppressed,
enslaved; and yet the constitution, transmitted
to us through his own Normans, be perfectly
free.
But their other allegation is still more unfortunate.
“He instituted, they say, the feudal
law.” True. But the feudal law, and absolute
dominion, are two things; and, what is more,
perfectly incompatible.
I take upon me to say, that I shall make out
this point in the clearest manner. In the mean
time, it may help us to understand the nature
of the feudal establishment, to consider the
practice of succeeding times. What that was,
our adversaries themselves, if you please, shall
inform us. Mr. Somers hath told their story
very fairly; which yet amounts only to this,
“That, throughout the Norman and Plantagenet
lines, there was one perpetual contest
between the prince and his feudatories for law
and liberty:” an evident proof of the light in
which our forefathers regarded the Norman constitution.
In the competition of the two Roses,
and perhaps before, they lost sight indeed of
this prize. But no sooner was the public
tranquillity restored, and the contending claims
united in Henry VII. than the old spirit revived.
A legal constitution became the constant
object of the people; and, though not
always avowed, was, in effect, as constantly
submitted to by the sovereign.
It may be true, perhaps, that the ability of
one prince117, the imperious carriage of another118,
and the generous intrigues of a third119; but,
above all, the condition of the times, and a sense
of former miseries, kept down the spirit of liberty
for some reigns, or diminished, at least, the
force and vigour of its operations. But a passive
subjection was never acknowledged, certainly
never demanded as a matter of right, till
Elizabeth now and then, and King James,
by talking continually in this strain, awakened
the national jealousy; which proved so uneasy
to himself, and, in the end, so fatal to his
family.
I cannot allow myself to mention these things
more in detail to you, who have so perfect a
knowledge of them. One thing only I insist
upon, that, without connecting the system of
liberty with that of prerogative in our notion
of the English government, the tenor of our
history is perfectly unintelligible; and that no
consistent account can be given of it, but on
the supposition of a LEGAL LIMITED CONSTITUTION.
Yet that constitution, it will be thought, was
at least ill defined, which could give occasion to
so many fierce disputes, and those carried on
through so long a tract of time, between the
crown and the subject.
The fault, if there was one, lay in the original
plan of the constitution itself; as you will
clearly see when I have opened the nature of it,
that is, when I have explained the genius,
views, and consequences of the FEUDAL POLICY.
It must, however, be affirmed, that this policy
was founded in the principles of freedom, and
was, in truth, excellently adapted to an active,
fierce, and military people; such as were all
those to whom these western parts of Europe
have been indebted for their civil constitutions.
But betwixt the burdensome services imposed
on the subject by this tenure, or which it gave
at least the pretence of exacting from him, and
the too great restraint which an unequal and disproportioned
allotment of feuds to the greater
barons laid on the sovereign; but above all, by
narrowing the plan of liberty too much; and,
while it seemed to provide for the dependency of
the prince on one part of his subjects, by leaving
both him and them in a condition to exercise
an arbitrary dominion over all others:
hence it came to pass that the feudal policy
naturally produced the struggles and convulsions,
you spoke of, till it was seen in the end
to be altogether unsuited to the circumstances
of a rich, civilized, and commercial people.
The event was, that the inconveniences, perceived
in this form of government, gradually
made way for the introduction of a better;
which was not, however, so properly a new
form, as the old one amended and set right;
cleared of its mischiefs and inconsistencies, but
conducted on the same principles as the former,
and pursuing the same end, though by different
methods.
It is commonly said, “That the feudal tenures
were introduced at the Conquest.” But
how are we to understand this assertion? Certainly,
not as if the whole system of military
services had been created by the Conqueror;
for they were essential to all the Gothic or
German constitutions. We may suppose then,
that they were only new-modelled by this great
prince. And who can doubt that the form,
which was now given to them, would be copied
from that which the Norman had seen established
in his own country? It would be copied
then from the proper FEUDAL FORM; the essence
of which consisted in the perpetuity
of the feud120; whereas these military tenures
had been elsewhere temporary only, or revocable
at the will of the lord.
But to enter fully into the idea of the feudal
constitution; to see at what time, and in what
manner, it was introduced: above all, to comprehend
the reasons that occasioned this great
change; it will be convenient to look back to
the estate of France, and especially of Normandy,
where this constitution had, for some
years, taken place before it was transferred to
us at the Conquest.
Under the first princes of the Carlovingian
line, the lands of France were of two kinds,
ALLODIAL, and BENEFICIARY. The allodial,
were estates of inheritance; the persons possessing
them, were called Hommes libres.
The beneficiary, were held by grants from the
crown. The persons holding immediately under
the emperor, were called Leudes; the
sub-tenants, Vassals.
Further, the allodial lands were alienable, as
well as hereditary. The beneficiary were properly
neither. They were held for life, or a
term of years, at the will of the lord, and reverted
to him on the expiration of the term for
which they were granted.
I do not stay to explain these institutions
minutely. It is of more importance to see the
alterations that were afterwards made in them.
And the FIRST will be thought a strange one.
The possessors of allodial lands, in France,
were desirous to have them changed into tenures.
They who held of the crown in capite
were entitled to some distinctions and privileges,
which the allodial lords wished to obtain; and
therefore many of them surrendered their lands
to the emperor, and received them again of
him, in the way of tenure. This practice had
taken place occasionally from the earliest times:
but under Charles the Bald, it became almost
general; and free-men not only chose to hold
of the emperor, but of other lords. This last
was first allowed, in consequence of a treaty
between the three brothers, after the battle of
Fontenay in 847.
But these free-men were not so ill-advised
as to make their estates precarious, or to accept
a life estate instead of an inheritance. It
was requisite they should hold for a perpetuity.
And this I take to have been the true
origin of hereditary feuds. Most probably, in
those dangerous times, little people could not
be safe without a lord to protect them: and
the price of this protection was the change of
propriety into tenure.
The SECOND change was by a law made under
the same emperor in the year 877, the last of
his reign. It was then enacted, that beneficiary
estates held under the crown should descend
to the sons of the present possessors:
yet not, as I conceive, to the eldest son; but
to him whom the emperor should chuse; nor
did this law affect the estates only, but offices,
which had hitherto been also beneficiary; and
so the sons of counts, marquises, &c. (which
were all names of offices, not titles of honour)
were to succeed to the authority of their fathers,
and to the benefice annexed to it. The new
feuds, created in allodial lands, had, I suppose,
made the emperor’s tenants desirous of
holding on the same terms; and the weakness
of the reigning prince enabled them to succeed
in this first step, which prepared the
way for a revolution of still more importance.
For,
The THIRD change, by which the inheritance
of beneficiary lands and offices was extended to
perpetuity, and the possession rendered almost
independent of the crown, was not, we may
be sure, effected at once, but by degrees. The
family of Charlemagne lost the empire: they
resisted with great difficulty the incursions of
the Normans; and, in the year 911, Normandy
was granted to them as an hereditary
fee. The great lords made their advantage of
the public calamities; they defended the king
on what terms they pleased; if not complied
with in their demands, they refused their assistance
in the most critical conjunctures: and
before the accession of Hugh Capet, had entirely
shaken off their dependence on the crown.
For it is, I think, a vulgar mistake to say,
that this great revolution was the effect of
Hugh’s policy. On the contrary, the independence
of the nobles, already acquired, was,
as it seems to me, the cause of his success.
The prince had no authority left, but over his
own demesnes; which were less considerable
than the possessions of some of his nobles.
Hugh had one of the largest fiefs: and for this
reason, his usurpation added to the power of
the crown, instead of lessening it, as is commonly
imagined. But to bring back the feuds
of the other nobles to their former precarious
condition was a thing impossible: his authority
was partly supported by superior wisdom, and
partly by superior strength, his vassals being
more numerous than those of any other lord.
I cannot tell if these foreigners, when they
adopted the feudal plan, were immediately
aware of all the consequences of it. An hereditary
tenure was, doubtless, a prodigious acquisition;
yet the advantage was something
counter-balanced by the great number of impositions
which the nature of the change
brought with it. These impositions are what,
in respect of the lord, are called his FRUITS of
tenure; such as Wardship, Marriage, Relief,
and other services: and were the necessary
consequence of the king’s parting with
his arbitrary disposal of these tenures. For
now that the right of inheritance was in the
tenant, it seemed but reasonable, and, without
this provision, the feudal policy could not
have obtained its end, that the prince, in these
several ways, should secure to himself the honour,
safety, and defence, which the very nature
of the constitution implied and intended.
Hence hereditary feuds were very reasonably
clogged with the obligations. I have mentioned;
which, though trifling in comparison with the
disadvantages of a precarious tenure, were
yet at least some check on the independency
acquired. However, these services, which were
due to the king under the new model, were
also due to the tenant in chief from those who
held of him by the like tenure. And so the
barons, or great proprietaries of land, considering
more perhaps the subjection of their
own vassals, than that by which themselves
were bound to their sovereign, reckoned these
burdens as nothing, with respect to what they
had gained by an hereditary succession.
The example of these French feudataries,
we may suppose, would be catching. We accordingly
find it followed, in due time, in Germany;
where Conrad II.121 granted the like
privilege of successive tenures, and at the
pressing instance of his tenants.
I thought it material to remind you of these
things; because they prove the feudal institution
on the continent to have been favourable
to the cause of liberty; and because it
will abate our wonder to find it so readily accepted
and submitted to here in England.
The account you have given, and, I dare
say, very truly, of the origin of feuds in France
and Germany, is such as shews them to have
been an extension of the people’s liberty.
There is no question that hereditary alienable
estates have vastly the preference to beneficiary.
But the case, I suspect, was different with us
in England. The great offices of state, indeed,
in this country, as well as in France,
were beneficiary. But, if I do not mistake,
the lands of the English, except only the
church-lands, were all allodial. And I cannot
think it could be for the benefit of the English
to change their old Saxon possessions, subject
only to the famous triple obligation, for these
new and burdensome tenures.
Strange as it may appear, we have yet seen
that the French did not scruple to make that
exchange even of their allodial estates. But to
be fair, there was a great difference, as you
well observe, in the circumstances of the two
people. All the lands in England were, I believe,
allodial, in the Saxon times: while a
very considerable proportion of those in France
were beneficiary.
Another difference, also, in the state of the
two countries, is worth observing. In France,
the allodial lands (though considerable in quantity)
were divided into small portions. In
England, they seem to have been in few
hands; the greater part possessed by the King
and his Thanes; some smaller parcels by the
lesser Thanes; and a very little by the Ceorles.
The consequence was, that, though the allodial
proprietors in France were glad to renounce
their property for tenure, in order to secure
the protection they much wanted; yet with
us, as you say, there could not be any such inducement
for the innovation. For, the lands
being possessed in large portions by the nobility
and gentry, the allodial lords in England
were too great to stand in need of protection.
Yet from this very circumstance, fairly attended
to, we shall see that the introduction of
the feudal tenures was neither difficult nor unpopular.
The great proprietors of land were,
indeed, too free and powerful, to be bettered
by this change. But their tenants, that is, the
bulk of the people, would be gainers by it.
For these tenants were, I believe, to a man
beneficiaries. The large estates of the Thanes
were granted out in small portions to others,
either for certain quantities of corn or rent, reserved
to the lord, or on condition of stipulated
services. And these grants, of whichever sort
they were, were either at pleasure, or at most
for a limited term. So that, though the proprietors
of land in England were so much superior
to those in France; yet the tenants of
each were much in the same state; that is,
they possessed beneficiary lands on stipulated
conditions.
When, therefore, by right of forfeiture, the
greater part of the lands in England fell, as
they of course would do, into the power of the
king (for they were in few hands, and those
few had either fought at Hastings, or afterwards
rebelled against him), it is easy to see that the
people would not be displeased to find themselves,
instead of beneficiary tenants122, feudatary
proprietors.
I say this on supposition that these great forfeited
estates and signiories, so bountifully bestowed
by the Conqueror on his favourite Normans,
were afterwards, many of them at least,
granted out in smaller parcels to English sub-tenants.
But if these sub-tenants were also
Normans (though the case of the English or
old Saxon freeholders was then very hard), the
change of allodial into feudatary estates is the
more easily accounted for.
The main difficulty would be with the churchmen;
who (though the greatest, and most of
them were, perhaps, Normans too) were well
acquainted with the Saxon laws, and for special
reasons were much devoted to them. They
were sensible that their possessions had been
held, in the Saxon times, in Franc-almoign:
a sort of tenure, they were not forward to give
up for this of feuds. ’Tis true, the burdens of
these tenures would, many of them, not affect
them. But then neither could they reap the
principal fruit of them, the fruit of inheritance.
They, besides, considered every restraint on
their privileges as impious; and took the subjection
of the ecclesiastic to the secular power,
which the feudal establishment was to introduce,
for the vilest of all servitudes. Hence
the churchmen were, of all others, the most
averse from this law123. And their opposition
might have given the Conqueror still more
trouble, if the suppression of the great Northern
rebellion had not furnished him with the power,
and (as many of them had been deeply engaged
in it) with the pretence, to force it upon them.
And thus, in the end, it prevailed universally,
and without exception.
I would not go further into the history of
these tenures. It may appear from the little I
have said of them, that the feudal system was
rather improved and corrected by the duke of
Normandy, than originally planted by him in
this kingdom: that the alteration made in it
was favourable to the public interest; and that
our Saxon liberties were not so properly restrained,
as extended by it. It is of little moment
to inquire whether the nation was won, or
forced, to a compliance with this system. It
is enough to say, that, as it was accepted by
the nation, so it was in itself no servile establishment,
but essentially founded in the principles
of liberty. The duties of lord and feudatary
were reciprocal and acknowledged: services
on the one part, and protection on the
other. The institution was plainly calculated
for the joint-interest124 of both parties, and the
benefit of the community; the proper notion
of the feudal system being that “of a confederacy
between a number of military persons,
agreeing on a certain limited subordination and
dependence on their chief, for the more effectual
defence of his and their lives, territories,
and possessions.”
I have nothing to object to your account of
the feudal constitution. And I think you do
perfectly right, to lay the main stress on the
general nature and genius of it; as by this
means you cut off those fruitless altercations,
which have been raised, concerning the personal
character of the Norman Conqueror. Our
concern is not with him, but with the government
he established. And if that be free, no
matter whether the founder of it were a tyrant.
But, though I approve your method, I doubt
there is some defect in your argument. Freedom
is a term of much latitude. The Norman
constitution may be free in one sense, as it excludes
the sole arbitrary dominion of one man;
and yet servile enough in another, as it leaves
the government in few hands. For it follows,
from what I understand of the feudal plan, that
though its genius be indeed averse from absolute
monarchy, yet it is indulgent enough to
absolute aristocracy. And the notion of each
is equally remote from what we conceive of true
English liberty.
It is true, the proper feudal form, especially
as established in this kingdom, was in a high
degree oligarchical. It would not otherwise,
perhaps, have suited to the condition of those
military ages. Yet the principles it went upon,
were those of public liberty, and generous
enough to give room for the extension of the
system itself, when a change of circumstances
should require it.—But your objection will best
be answered by looking a little more distinctly
into the nature of these tenures.
I took notice that the feudal system subjected
the CHURCH more immediately to the civil
power: and laid the foundation of many services
and fruits of tenure to which the LAY-FEUDATARIES
in the Saxon times had been altogether
strangers. It is probable that all the
consequences of this alteration were not foreseen.
Yet the churchmen were pretty quick-sighted.
And the dislike, they had conceived
of the new establishment, was the occasion of
those struggles, which continued so long
between the mitre and crown, and which are
so famous more especially in the early parts of
our history. The cause of these ecclesiastics
was a bad one. For their aim was, as is rightly
observed by the advocates for the prerogative,
to assert an independency on the state; and for
that purpose the pope was made a party in the
dispute; by whose intrigues it was kept up in
one shape or other till the total renunciation
of the papal power. Thus far, however, the
feudal constitution cannot be blamed. On the
contrary, it was highly serviceable to the cause
of liberty, as tending only to hold the ecclesiastic,
in a due subordination to the civil,
authority.
The same thing cannot be said of the other
instance, I mean the fruits of tenure, to which
the lay-fees were subjected by this system. For
however reasonable, or rather necessary, those
fruits might be, in a feudal sense, and for the
end to which the feudal establishment was directed,
yet, as the measure of these fruits, as
well as the manner of exacting them, was in a
good degree arbitrary, and too much left to
the discretion of the sovereign, the practice, in
this respect, was soon found by the tenants in
chief to be an intolerable grievance. Hence
that other contest, so memorable in our history,
betwixt the king and his barons: in which
the former, under the colour of maintaining
his feudal rights, laboured to usurp an absolute
dominion over the persons and properties of his
vassals; and the latter, impatient of the feudal
burdens, or rather of the king’s arbitrary exactions
under pretence of them, endeavoured to
redeem themselves from so manifest an oppression.
It is not to be denied, that, in the heat of
this contest, the barons sometimes carried their
pretensions still further, and laboured in their
turn to usurp on the crown, in revenge for the
oppressions they had felt from it. However,
their first contentions were only for a mitigation
of the feudal system. It was not the character
of the Norman princes to come easily
into any project that was likely to give the least
check to their pretensions. Yet the grievances,
complained of, were in part removed, in part
moderated, by Henry the First’s and many
other successive charters: though the last blow
was not given to these feudal servitudes till
after the Restoration, when such of them as
remained, and were found prejudicial to the
liberty of the subject, were finally abolished.
Thus we see that ONE essential defect in the
feudal policy, considered not as a military, but
civil institution, was, the too great power it gave
the sovereign in the arbitrary impositions, implied
in this tenure. Another was accidental.
It arose from the disproportionate allotment of
those feuds, which gave the greater barons an
ascendant over the prince, and was equally unfavourable
to the cause of liberty. For the
bounty of the duke of Normandy, in his distribution
of the forfeited estates and signiories
to his principal officers, had been so immense125,
that their share of influence in the state was
excessive, and intrenched too much on the independency
of the crown and the freedom of
the people. And this undue poize in the constitution,
as well as the tyranny of our kings,
occasioned the long continuance of those civil
wars, which for many ages harrassed and distressed
the nation. The evil, however, in the
end, brought on its own remedy. For these
princely houses being much weakened in the
course of the quarrel, Henry VII. succeeded,
at length, to the peaceable possession of the
crown. And by the policy of this prince,
and that of his successor, the barons were
brought so low as to be quite disabled from
giving any disturbance to the crown for the future.
It appears then that TWO great defects in the
feudal plan of government, as settled amongst
us, were, at length, taken away. But a THIRD,
and the greatest defect of all, was the narrowness
of the plan itself, I mean when considered
as a system of CIVIL polity; for, in its primary
martial intention, it was perfectly unexceptionable.
To explain this matter, which is of the
highest importance, and will furnish a direct
answer to Mr. Somers’ objection, we are to
remember that in the old feudal policy the
king’s barons, that is, such as held in capite
of the crown by barony or knight’s service,
were the king’s, or rather the kingdom’s, great
council. No public concerns could be regularly
transacted, without their consent126; though
the lesser barons, or tenants by knight’s service,
did not indeed so constantly appear in
the king’s court, as the greater barons; and
though the public business was sometimes even
left to the ordinary attendants on the king,
most of them churchmen. It appears that,
towards the end of the Conqueror’s reign, the
number of these tenants in chief was about
700; who, as the whole property of the kingdom
was, in effect, in their power, may be
thought a no unfit representative (though this
be no proper feudal idea) of the whole nation.
It was so, perhaps, in those rude and warlike
times, when the strength of the nation lay entirely
in the soldiery; that is, in those who
held by military services, either immediately
of the crown, or of the mesne lords. For the
remainder of the people, whom they called
tenants in socage, were of small account; being
considered only in the light of servants, and
contributing no otherwise to the national support
than by their cultivation of the soil, which
left their masters at leisure to attend with less
distraction on their military services. At least,
it was perfectly in the genius of the feudal,
that is, military constitutions, to have little regard
for any but the men of arms; and, as
every other occupation would of course be accounted
base and ignoble, it is not to be wondered
that such a difference was made between
the condition of prædial and military tenures.
However, a policy, that excluded such numbers
from the rank and privileges of citizens,
was so far a defective one. And this defect
would become more sensible every day, in proportion
to the growth of arts, the augmentation
of commerce, and the security the nation
found itself in from foreign dangers. The ancient
military establishment would now be
thought unjust, when the exclusive privileges
of the swordsmen were no longer supported by
the necessities of the public, and when the
wealth of the nation made so great a part of
the force of it. Hence arose an important
change in the legislature of the kingdom, which
was much enlarged beyond its former limits.
But this was done gradually; and was more
properly an extension than violation of the ancient
system.
First, the number of tenants in chief, or the
king’s freeholders, was much increased by various
causes, but chiefly by the alienation which
the greater barons made of their fees. Such
alienation, though under some restraint, seems
to have been generally permitted in the Norman
feuds; I mean, till Magna Charta and
some subsequent statutes laid it under particular
limitations. But, whether the practice were
regular or not, it certainly prevailed from the
earliest times; especially on some more extraordinary
occasions. Thus, when the fashionable
madness of the Croisades had involved
the greater barons in immense debts, in order
to discharge the expences of these expeditions,
they alienated their fees, and even dismembered
them; that is, they parted with their right in
them, and made them over in small parcels to
others, to hold of the superior lord. And what
these barons did from necessity, the crown itself
did, out of policy: for the Norman princes,
growing sensible of the inconvenience of making
their vassals too great, disposed of such estates
of their barons as fell in to them by forfeiture,
and were not a few, in the same manner. The
consequence of all this was, that, in process of
time, the lesser military tenants in capite multiplied
exceedingly. And, as many of them
were poor, and unequal to a personal attendance
in the court of their lord, or in the common
council of the kingdom (where of right and
duty they were to pay their attendance), they
were willing, and it was found convenient to
give them leave, to appear in the way of representation.
And this was the origin of what we
now call the Knights of the Shires; who,
in those times, were appointed to represent, not
all the free-holders of counties, but the lesser
tenants of the crown only. For these not attending
in person, would otherwise have had
no place in the king’s council.
The rise of Citizens and Burgesses, that
is, representatives of the cities and trading
towns, must be accounted for somewhat differently.
These had originally been in the jurisdiction,
and made part of the demesnes, of
the king and his great lords. The reason of
which appears from what I observed of the
genius of the feudal policy. For, little account
being had of any but martial men, and trade
being not only dishonourable, but almost unknown
in those ages; the lower people, who
lived together in towns, most of them small
and inconsiderable, were left in a state of subjection
to the crown, or some other of the barons,
and exposed to their arbitrary impositions
and talliages.
But this condition of burghers, as it sprang
from the military genius of the nation, could
only be supported by it. When that declined
therefore, and, instead of a people of soldiers,
the commercial spirit prevailed, and filled our
towns with rich traders and merchants, it was
no longer reasonable, nor was it the interest of
the crown, that these communities and bodies
of men should be so little regarded. On the
contrary, a large share of the public burdens
being laid upon them, and the frequent necessities
of the crown, especially in foreign wars,
or in the king’s contentions with his barons,
requiring him to have recourse to their purses,
it was naturally brought about that those, as
well as the tenants in capite, should, in time,
be admitted to have a share in the public
councils.
I do not stay to trace the steps of this change.
It is enough to say, that arose insensibly
and naturally out of the growing wealth and
consequence of the trading towns; the convenience
the king found in drawing considerable
sums from them, with greater ease to
himself, and less offence to the people; and,
perhaps, from the view of lessening by their
means the exorbitant power and influence of
the barons.
From these, or the like reasons, the great
towns and cities, that before were royal demesnes,
part of the king’s private patrimony,
and talliable by him at pleasure, were allowed
to appear in his council by their deputies, to
treat with him of the proportion of taxes to be
raised on them, and, in a word, to be considered
it the same light as the other members
of that great assembly.
I do not inquire when this great alteration
was first made. I find it subsisting at least
under Edward III. And from that time, there
is no dispute but that the legislature, which
was originally composed of the sovereign and
his feudal tenants, included also the representatives
of the counties, and of the royal towns
and cities. To speak in our modern style, the
House of Commons was, now, formed. And
by this addition, the glorious edifice of English
liberty was completed.
I am sensible, I must have wearied you with
this deduction, which can be no secret to either
of you. But it was of importance to shew,
that the constitution of England, as laid in the
feudal tenures, was essentially free; and that
the very changes it hath undergone, were the
natural and almost unavoidable effects of those
tenures. So that what the adversaries of liberty
object to us, as usurpations on the regal prerogative,
are now seen to be either the proper
result of the feudal establishment, or the most
just and necessary amendments of it.
I have waited with much pleasure for this
conclusion, which entirely discredits the notion
of an absolute, despotic government. I will
not take upon me to answer for Mr. Somers,
whose great knowledge in the laws and history
of the kingdom enables him to see further into
the subject than I do; but to me nothing appears
more natural or probable than this account
of the rise and progress of the English
monarchy. One difficulty, in particular, which
seemed to embarrass this inquiry, you have
entirely removed, by shewing how, from the
aristocratical form which prevailed in the earlier
times, the more free and popular one of
our days hath gradually taken place, and that
without any violence to the antient constitution127.
At least, my lord, with so little, that we
may, perhaps, apply to the English government
what the naturalists observe of the HUMAN
BODY128; that, when it arrives at its full
growth, it does not perhaps retain a single particle
of the matter it originally set out with;
yet the alteration hath been made so gradually
and imperceptibly, that the system is accounted
the same under all changes. Just so, I think,
we seem to have shaken off the constituent
parts of the FEUDAL CONSTITUTION; but, liberty
having been always the informing principle,
time and experience have rather completed
the old system, than created a new one:
and we may account the present and Norman
establishment all one, by the same rule as we
say that Hercules, when he became the deliverer
of oppressed nations, was still the same
with him who had strangled serpents in his
cradle.
I know not what fanciful similes your
younger wit may delight in. I content myself
with observing, that the two great points,
which they, who deny the liberty of the subject,
love to inculcate, and on which the plausibility
of all their reasonings depends, are,
THE SLAVISH NATURE OF THE FEUDAL CONSTITUTION,
and the late rise of the House of
Commons. And I have taken up your time to
small purpose, if it doth not now appear, that
the former of these notions is false, and the
latter impertinent. If the learned inquirers
into this subject had considered that the question
is concerning the freedom itself of our
constitution, and not the most convenient form
under which it may be administered, they must
have seen that, the feudal law, though it narrowed
the system of liberty, was founded in
it; that the spirit of freedom is as vital in this
form, and the principles it goes upon as solid,
as in the best-formed republic; and that villanage
concludes no more against the feudal,
than slavery against the Greek or Roman,
constitutions.
That is, Sir John, you make liberty to have
been the essence of all THREE; though, to the
perfection of an equal commonwealth, you
suppose it should have been further spread out
and dilated: as they say of frankincense (if
you can forgive another allusion), which, when
lying in the lump, is of no great use or pleasure;
but, when properly diffused, is the
sweetest of all odours. But you was going on
with the application of your principles.
I was going to say that, as many have been
misled by wrong notions of the feudal tenures,
others had erred as widely in their reasonings
on the late origin of the lower house of parliament.
How have we heard some men triumph,
in dating it no higher than the reign of
Edward III? Let the fact be admitted.
What follows? That this house is an usurpation
on the prerogative? Nothing less. It
was gradually brought forth by time, and grew
up under the favour and good liking of our
princes129. The constitution itself supposed the
men of greatest consequence in the commonwealth
to have a seat in the national councils.
Trade and agriculture had advanced vast numbers
into consequence, that before were of
small account in the kingdom. The public
consideration was increased by their wealth,
and the public necessities relieved by it. Were
these to remain for ever excluded from the
king’s councils? or was not that council, which
had liberty for its object, to widen and expand
itself in order to receive them? It did, in fact,
receive them with open arms; and, in so
doing, conducted itself on the very principles
of the old feudal policy.
In short, the feudal constitution, different
from all others that human policy is acquainted
with, was of such a make, that it readily gave
way, and fitted itself to the varying situations
of society: narrow and contracted, when the
public interest required a close connexion between
the governor and the governed; large
and capacious, when the same interest required
that connexion to be loosened. Just as the
skin (if you will needs have a comparison),
the natural cincture of the body, confines the
young limbs with sufficient tightness, and
yet widens in proportion to their growth,
so as to let the different parts of the
body play with ease, and obtain their full size
and dimensions. Whereas the other policies,
that have obtained in the world, may be compared
to those artificial coverings, which, being
calculated only for one age and size; grow
troublesome and insupportable in any other;
and yet cannot, like these, be thrown off and
supplied by such as are more suitable and convenient;
but are worn for life, though with
constant, or rather increasing, uneasiness.
This then being the peculiar prerogative of
the feudal policy, I think we may say with
great truth, not that the House of Commons
violated the constitution, but, on the contrary,
that the constitution itself demanded, or rather
generated, the House of Commons.
So that I cannot by any means commend
the zeal which some have shewn in seeking the
origin of this house in the British or even
Saxon annals. Their aim was, to serve the
cause of liberty; but, it must be owned, at the
expence of truth, and, as we now perceive,
without the least necessity.
It hath happened then in this, as in so many
other instances, that an excellent cause hath
suffered by the ill judgment of its defenders.
But, when truth itself had been disgraced by
one sort of men in being employed by them to
the worst purposes, is it to be wondered that
others should not acknowledge her in such
hands, but be willing to look out for her in
better company?
Let us say, my lord, they should have acknowledged
her in whatever company she was
found; and the rather, as ill-applied truths are
seen to be full as serviceable to a bad cause, as
downright falsehoods. Besides, this conduct
had not only been fairer, but more politic.
For when so manifest a truth was rejected, it
was but natural to suspect foul play in the rest,
and that none but a bad cause could want to be
supported by so disingenuous a management.
I think so, Sir John; and there is this further
use of such candor, that it cuts off at once
the necessity of long and laboured researches
into the dark parts of our history; and so not
only shortens the debate, but renders it much
more intelligible to the people.
I was aware of that advantage, and am therefore
not displeased that truth allowed me to
make use of it.—But to resume the main argument;
for I have not yet done with my evidence
for the freedom of our excellent constitution:—It
seemed of moment to shew, from
the nature and consequences of the Norman
settlement, that the English government was
essentially free. But, because the freest form
of government may be tamely given up and
surrendered into the hands of a master, I hold
it of consequence to prove, that the English
spirit hath always been answerable to the constitution,
and that even the most insidious attempts
on their liberties have never failed to
awaken the resentment of our generous forefathers.
In a word, I would shew that the
jealously, with which the English have ever
guarded the national freedom, is at once a convincing
testimony of their right, and of their
constant possession of it.
And though I might illustrate this argument
by many other instances, I chuse to insist only
on ONE, THEIR PERPETUAL OPPOSITION TO THE
CIVIL AND CANON LAWS; which, at various times
and for their several ends, the crown and
church have been solicitous to obtrude on the
people.
To open the way to this illustration, let it
be observed that, from the time of Honorius,
that is, when the Roman authority ceased
amongst us, the Saxon institutions, incorporated
with the old British customs, were the
only standing laws of the kingdom. These
had been collected and formed into a sort of
digest by Edward the Confessor; and so great
was the nation’s attachment to them, that
William himself was obliged to ratify them,
at the same time that the feudal law itself was
enacted. And afterwards, on any attempt to
innovate on those laws, we hear of a general
outcry and dissatisfaction among the people:
which jealousy of theirs was not without good
grounds; as we may see from an affair that happened
in the Conqueror’s own reign, and serves
to illustrate the policy of this monarch.
It had been an old custom, continued
through the Saxon times, for the bishops and
sheriffs to sit together in judicature in the
county courts. This had been found a very
convenient practice; for the presence of the
churchmen gave a sanction to the determinations
of the temporal courts, and drew an extraordinary
reverence towards them from the
people. Yet we find it abolished by the Conqueror;
who, in a rescript to the bishop of
Lincoln, ordained that, for the future, the
bishops and aldermen of the shires should
have separate courts and separate jurisdictions.
The pretence for this alteration was
the distinct nature of the two judicatures,
and the desire of maintaining a strict conformity
to the canons of the church. The real
design was much deeper. There is no question
but William’s inclinations, at least, were for
arbitrary government; in which project his
Norman lawyers, it was hoped, might be of
good use to him. But there was a great
obstacle in his way. The churchmen of those
times had incomparably the best knowledge of
the Saxon laws. It matters not, whether those
churchmen were Normans, or not. They were
equally devoted, as I observed before, to the
Saxon laws, with the English; as favouring
that independency, they affected, on the civil
power. Besides, in the Confessor’s time, many
and perhaps the greatest of the churchmen
had been Normans; so that the study of the
Saxon laws, from the interest they promised
themselves in them, was grown familiar to the
rising ecclesiastics of that country. Hence, as
I said, the churchmen, though Normans, were
well instructed in the spirit and genius of the
Saxon laws; and it was not easy for the king’s
glossers to interpret them to their own mind,
whilst the bishops were at hand to refute and
rectify their comments.
Besides, the truth is (and my lord of Salisbury
will not be displeased with me for telling
it), the ecclesiastics of that time were much
indevoted to the court. They considered the
king as the wickedest of all tyrants. He had
brought them into subjection by their baronies,
and had even set the pope himself at defiance.
In this state of things, there was no hope of
engaging the clergy in his plot. But when a
separation of the two tribunals was made, and
the civil courts were solely administered by his
own creatures, the laws, it was thought, would
speak what language he pleased to require of
them.
Such appears to have been the design of this
prince in his famous distinction of the ecclesiastic
and temporal courts. It was so artfully
laid, and so well coloured, that the laity seem
to have taken no umbrage at it. But the
clergy saw his drift; and their zeal for the
ancient laws, as well as their resentments, put
them upon contriving methods to counteract
it. They hit upon a very natural and effectual
one. In a word, they all turned common
lawyers; and so found means of introducing
themselves into the civil courts. This expedient
succeeded so well, and was so generally
relished, that the clergy to a man almost in
the next reign were become professors of the
common law; nullus Clericus nisi Causidicus,
as William of Malmesbury takes care
to inform us130.
Whatever their motive might be, the churchmen,
I perceive, interposed very seasonably in
the support of our civil liberties. It was a
generous kind of revenge, methinks, to repay
the king’s tyranny over the church by vindicating
the authority of the English laws.
It was so; and for this good service, I let
them pass without any harsher reflection.
Though the true secret is, perhaps, no more
than this: Their main object was the church,
of whose interests, as is fitting, we will allow
them to be the most competent judges. And,
as these inclined them, they have been, at different
junctures, the defenders or oppressors of
civil liberty.
At some junctures, it may be, they have.
But, if you insist on so general a censure, I
must intreat Mr. Somers, once more, to take
upon him the defence of our order.
All I intended by this instance, was, to shew
the spirit of the Saxon laws, which could excite
the jealousy of the prince, and deserve, at
such a season, the patronage of the clergy. It
seems, however, for once, as if they had a little
misconceived their true interests. For the distinction
of the two judicatures, which occasioned
their resentment, was, in the end, a great
means of the hierarchical greatness and independency.
Matters continued on this footing during the
three first of the Norman reigns. The prince
did his utmost to elude the authority of the
English laws; and the nation, on the other
hand, laboured hard to confirm it. But a new
scene was opened under King Stephen, by
means of the Justinian laws; which had lately
been recovered in Italy, and became at once
the fashionable study over all Europe. It is
certain, that the Pandects were first brought
amongst us in that reign; and that the reading
of them was much favoured by Archbishop
Theobald131, under whose encouragement they
were publicly read in England by Vacarius,
within a short time after the famous Irnerius
had opened his school at Bologna. There is
something singular in the readiness with which
this new system of law was embraced in these
Western parts of Europe. But my friend Mr.
Selden used to give a plausible account of it.
It was, he said132, in opposition to Innocent II,
who was for obtruding on the Christian states
the decretals, as laws; manifestly calculated
for the destruction of the civil magistrate’s
power. And what seems to authorize the
opinion of my learned friend, is, that the popes
very early took the alarm, and, by their decrees,
forbad churchmen to teach the civil
law: as appears from the constitution of Alexander
III, so early as the year 1163, in the
council of Tours; and afterwards from the
famous decretal of Super-specula by Honorius
III, in 1219, in which the clergy of all
denominations, seculars as well as regulars,
were prohibited the study of it. And it was,
doubtless, to defeat the mischief which the
popes apprehended to themselves, from the
credit of the imperial laws, that Gratian was
encouraged, about the same time, to compose
and publish his Decree; which, it is even
said133, had the express approbation of Pope
Eugenius.
Let us see, now, what reception this newly-recovered
law, so severely dealt with by the
pope, and so well entertained by the greatest
part of Europe, had in England.
Vacarius had continued to teach it for some
time, in the archbishop’s palace at Lambeth,
to great numbers, whom first, the novelty of
the study, and then, the fashion of the age,
had drawn about him. The fame of the teacher
was high, and the new science had made a
great progress, when on a sudden it received a
severe check, and from a quarter whence one
should not naturally expect it. In short, the
king himself interdicted the study of it. Some
have imagined, that this inhibition was owing
to the spite he bore to archbishop Theobald.
But the truer reason seems to be, that the canon
law was first read by Vacarius at the same
time, and under colour of the imperial. I
think we may collect thus much very clearly
from John of Salisbury, who acquaints us
with this edict. For he considers it as an
offence against the church, and expressly calls
the prohibition, an IMPIETY134.
It is true, the decretals of Gratian were not
yet published. But Ivo had made a collection
of them in the reign of Henry I; and we may
be sure that some code of this sort would privately
go about amongst the clergy, from what
was before observed of the pains taken by Innocent
II, to propagate the decretals. We
may further observe, that Theobald had been
in high favour with Innocent; and that his
school, at Lambeth, was opened immediately
on his return from Rome, whither he had been
to receive his pall from this pope, on his appointment
to the see of Canterbury135. All
which makes it probable, that Stephen’s displeasure
was not so much at the civil, as canon
law, which he might well conclude had no
friendly aspect on his sovereignty.
And we have the greater reason to believe
that this was the fact, from observing what
afterwards happened in the reign of Henry III,
when a prohibition of the same nature was
again issued out against the teachers of the
Roman laws in London136. The true cause of
the royal mandate is well known. Gregory IX
had just then published a new code of the decretals;
which, like all former collections of this
sort, was calculated to serve the papal interest,
and depress the rights of princes.
However, these edicts, if we suppose them
levelled against the civil law, had no effect,
any more than those of the popes Alexander
and Honorius, before mentioned. For the
imperial law, being generally well received by
the princes of Europe, presently became a kind
of Jus gentium. And the clergy, who aspired
to power and dignities, either abroad or at
home, studied it with an inconceivable rage;
insomuch, that Roger Bacon tells us, that,
in his time for forty years together, the seculars,
who were the ecclesiastics employed in
business, never published a single treatise in
divinity137.
The truth is, whatever shew the popes or
our own princes might make, at times, of discountenancing
the civil law, it was not the
design of either absolutely and universally to
suppress it. It was properly, not the civil, but
the canon law, which was discountenanced by
our kings. And the case of the popes was,
that, when they found the imperial law opposed
to the common, they were ready to favour it;
when it was opposed to the canon, and brought
that into neglect, they forbad ecclesiastics the
study of it.
In the mean time the poor people, methinks,
were in a fine condition, between two laws,
the one founded on civil, and the other on ecclesiastical,
tyranny. If either had prevailed,
there had been an end of their liberties.
Certainly their situation was very critical.
Yet in the end it was precisely this situation
that saved them. For betwixt these contentions
of the crown and mitre, each endeavouring to
extend its dominion over the other, the people,
who were of course to be gained by either side
in its distress, found means to preserve themselves
from both.
To see how this happened, we must remember,
what appears indeed from the two edicts
of Stephen and Henry, that the king himself
was a bulwark betwixt them and the papal
power. And when the king in his turn wanted
to exalt his prerogative over all, the church
very naturally took the alarm, as we saw in the
case of William’s separation of the two tribunals.
And thus it happened, as Nat. Bacon
observes138, “That many times the pope and
the clergy became protectors of the people’s
liberties, and kept them safe from the rage of
kings.” The greatest danger was, when the two
powers chanced to unite in one common design
against them; as they did in their general
inclination for the establishment of the civil
law. But here the people had the courage
always to defend themselves; and with that
wisdom too, as demonstrates their attention to
the cause of civil liberty, and the vigilance
with which they guarded even its remotest outworks.
Of their steady and watchful conduct, in
this respect, I shall mention some of the
many memorable examples, that occur in our
history.
I have said that from the time of Stephen,
notwithstanding his famous edict, the imperial
laws were the chief and favourite study of the
clergy. They had good reason for applying
themselves so closely to this science, and still
further views than their own immediate advancement.
They wanted to bring those laws
into the civil courts, and to make them the
standing rule of public administration; not
merely from their good-will to the papal authority,
which would naturally gain an advantage
by this change, but for the sake of controlling
the too princely barons, and in hopes, no
doubt, that the imperial would in due time
draw the canon laws into vogue along with
them. Such, I think, were at least the secret
designs of the ruling clergy; and they did not
wait long before they endeavoured to put their
project in execution. The plot was admirably
laid, and with that deep policy as hath kept it,
I believe, from being generally understood to
this day.
The great men of that time were, we may be
sure, too like the great men of every other, to
be very scrupulous about the commission of
those vices to which they were most inclined.
The truth is, their profligacy was in proportion
to their greatness and their ignorance. They
indulged themselves in the most licentious
amours, and even prided themselves in this
licence. The good churchmen, no doubt, lamented
this corruption of manners; but, as
they could not reform, they resolved at least to
draw some emolument to themselves from it.
The castles of the barons, they saw, were full
of bastards. Nay, the courtesy of that time
had so far dignified their vices, that the very
same was had in honour. Ego Gulielmus
Bastardus, is even the preamble to one of
William the First’s charters.
Yet, as respectable as it was become, there
was one unlucky check on this favourite indulgence:
and this, with the barons leave, the
considerate bishops would presently take off.
Subsequent marriage, by the imperial as well
as canon laws, legitimated bastards, as to succession;
whereas the common law kept them
eternally in their state of bastardy. It is not
to be doubted, but the barons would be sensible
enough of this restraint. They earnestly wished
to get rid of it. And could any thing bid so
fair to recommend the imperial law to their
good liking, as the tender of it for so desirable
a purpose? At a parliament, therefore, under
Henry III139, Rogaverunt omnes episcopi, ut
consentirent quod nati ante matrimonium essent
legitimi. What think ye now of this
general supplication of the hierarchy? What
could the barons do but comply with it, especially
as it was so kindly intended for their relief,
and the proposal was even made with a
delicacy that might enable them to come into
it with a good grace, and without the shame
of seeming to desire it? All this is very true.
Yet the answer of the virtuous barons is as
follows: Omnes comites et barons unâ voce
responderunt, Quod nolumus leges Angliæ
mutari.
We see then what stuck with them. These
barons, as licentious as they were, preferred
their liberty to their pleasure. The bishops,
they knew, as partisans of the pope, were for
subjecting the nation to the imperial and papal
laws. They offered, indeed, to begin with a
circumstance very much to their taste. But if
they accepted the benefit of them in one instance,
with what decency could they object
to them in others? They determined therefore
to be consistent. They rejected a proposition,
most agreeable in itself, lest their acceptance
of it should make way for the introduction of
foreign laws; whose very genius and essence,
they well knew, was arbitrary, despotic power.
Their answer speaks their sense of this matter,
Nolumus leges Angliæ mutari. They had
nothing to object to the proposal itself. But
they were afraid for the constitution.
I doubt, Sir John, my lord of Salisbury
will bring a fresh complaint against you, for
this liberty with the bishops. But I, who
shall not be thought wanting in a due honour
for that bench, must needs confess myself
much pleased, as well with the novelty, as
justice of this comment. I have frequently
considered this famous reply of the old barons.
But I did not see to the bottom of the contrivance.
Their aversion to the imperial laws,
as you say, must have been very great, to have
put them on their guard against so inviting a
proposal.
One thing, however, is forgotten or dissembled
in this account, that the law of Justinian,
which allows the privilege of legitimation
to subsequent marriage, is grounded on
some reasons that might, perhaps, recommend
it to the judgment, as well as interest of the
old prelates. Besides, they doubtless found
themselves much distressed by the contrariety
of the two laws in this instance. For the
ground of their motion, as I remember, was,
Quod esset secundum communem formam ecclesiæ.
But, to deal ingenuously with you,
Sir John, you have dressed up your hypothesis
very plausibly. And I, who am no advocate
for the civil or ecclesiastical laws, in this or
any instance where they clash with those of my
country, can allow your raillery on Henry’s
good bishops, if it were only that I see it
makes so much for your general argument.
Your lordship may the rather excuse this
liberty with the church, as I propose, in due
time, to deal as freely with Westminster-hall;
a similar plot, which I shall have occasion
to mention presently, having been formed
against the ancient constitution by the men
of our profession.
In the mean time, Sir John, you must give
me leave, in quality of advocate for the church,
to observe one thing, that does the churchmen
honour. It is, that, in these attempts on the
constitution, the judges and great officers of
the realm, who in those times were of the
clergy, constantly took the side of the English
laws; as my Lord Coke himself, I remember,
takes notice in his commentary on this statute
of Merton.
I believe the observation is very just. But
I should incline to impute this integrity, not
to the influence of church principles, but those
of the common law, and so turn your compliment
to the honour of our profession instead of
theirs, if it were not too clear in fact that
every profession, in its turn, hath been liable
to this charge of corruption.
But I was going on with my proofs of the
national aversion to the imperial law.
The next shall be taken from that famous
dispute concerning the succession to the crown
of Scotland in the reign of Edward I. For
a question arising about the kind of law by
which the controversy should be decided, and
it being especially debated, whether the Cæsarean
law, as a sort of jus gentium, ought
not in such a cause to have the preference to
the law of England; it was then unanimously
determined by the great council of Norham,
that the authority of the Cæsarean law should
by no means be admitted; ne inde majestatis
Anglicanæ juri fieret detrimentum140.
This determination was public, and given
on a very solemn occasion. And in general
we may observe, that at the junctures when
the state hath been most jealous of its liberty
and honour, it hath declared the loudest
against the imperial laws: as in the WONDER-WORKING
parliament under Richard II, when
the duke of Gloucester accused the archbishop
of York, the duke of Ireland, and other creatures
of the king, of high treason. The
charge was so fully proved, that the court had
no other way of diverting the storm, than by
pretending an irregularity in the forms of procedure.
To this end the lawyers were consulted
with, or more properly directed. I will disguise
nothing. They descended so much from
the dignity of their profession, as to act in perfect
subserviency to the views of the court;
and therefore gave it as their opinion, that the
proceedings against the lords were of no validity,
as being contrary to the forms prescribed
by the civil law. The barons took themselves
to be insulted by these shifts of the lawyers.
They insisted that the proceedings were agreeable
to their own customs, and declared roundly
that they would never suffer England to be
governed by the Roman civil law141.
What think ye now of these examples? Are
they not a proof that the spirit of liberty ran
high in those times, when neither the intrigues
of churchmen nor the chicane of lawyers could
put a stop to it? It seems as if no direct
attempts on the constitution could have been
made with the least appearance of success; and
that therefore the abettors of arbitrary power
were obliged to work their way obliquely, by
contriving methods for the introduction of a
foreign law.
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
credit142. 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 laws143. To
complete the danger, the magistracies and
great offices of the kingdom were filled with
churchmen144.
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.
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.
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.
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?
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.
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 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.”
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.
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.
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.”
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.
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.
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.
Printed by J. Nichols and Son,
Red Lion Passage, Fleet Street, London.