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.

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.

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