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 constitution[127].
MR. SOMERS.
At least, my lord, with so little, that we may, perhaps, apply to
the _English_ government what the naturalists observe of the HUMAN
BODY[128]; 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.
SIR. J. MAYNARD.
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.
MR. SOMERS.
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.
SIR J. MAYNARD.
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 princes[129]. 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.
BP. BURNET.
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?
SIR J. MAYNARD.
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.
MR. SOMERS.
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.
SIR J. MAYNARD.
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 us[130].
BP. BURNET.
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.
SIR J. MAYNARD.
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.
BP. BURNET.
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.
SIR J. MAYNARD.
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 THEOBALD[131],
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 said[132], 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
said[133], 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 IMPIETY[134].
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 _Canterbury_[135]. 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 _London_[136]. 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 divinity[137].
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.
MR. SOMERS.
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.
SIR J. MAYNARD.
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 observes[138],
“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 III[139], _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.