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.
BP. BURNET.
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.
SIR J. MAYNARD.
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.
BP. BURNET.
I suppose, the question, as here put, is determinate enough for our
purpose.—Or, have you, Mr. SOMERS, any exceptions to make to it?
MR. SOMERS.
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?”
SIR J. MAYNARD.
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
transferred[114] 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?
BP. BURNET.
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.
SIR J. MAYNARD.
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
time[115], 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 dignity[116].
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_ prince[117], the
imperious carriage of _another_[118], and the generous intrigues of a
_third_[119]; 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.
MR. SOMERS.
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.
SIR J. MAYNARD.
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
feud[120]; 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.