Chapter VIII (3)

Such is the natural account of her foreign triumphs. Her domestic successes admit as easy a solution. Those external dangers themselves, the genius of the time, the state of religious parties, nay, the very factions of her court, all of them directly, or by the slightest application of her policy, administered to her greatness. Such was the condition of the times, that it forced her to assume the resemblance, at least, of some popular _virtues_: and so singular her fortune, that her very _vices_ became as respectable, perhaps more useful to her reputation, than her virtues. She was vigilant in her counsels; careful in the choice of her servants; courteous and condescending to her subjects. She appeared to have an extreme tenderness for the interests, and an extreme zeal for the honour, of the nation. This was the bright side of her character; and it shone the brighter from the constant and imminent dangers, to which she was exposed. On the other hand, she was choleric, and imperious; jealous, timid, and avaricious: oppressive, as far as she durst; in many cases capricious, in some tyrannical. Yet these vices, some of them sharpened and refined her policy, and the rest, operating chiefly towards her courtiers and dependents, strengthened her authority, and rooted her more firmly in the hearts of the people. The mingled splendour of these qualities, good and bad (for even her worst had the luck, when seen but on one side, or in well-disposed lights to look like good ones) so far dazzled the eyes of all, that they did not, or would not, see many outrageous acts of tyranny and oppression.

And thus it hath come to pass that, with some ability, more cunning, and little real virtue, the name of ELIZABETH is, by the concurrence of many accidental causes, become the most revered of any in the long roll of our princes. How little she merited this honour, may appear from this slight sketch of her character and government. Yet, when all proper abatement is made in both, I will not deny her to have been a great, that is, a _fortunate_, queen; in this, perhaps, the most fortunate, that she has attained to so unrivalled a glory with so few pretensions to deserve it.

And so, replied Dr. ARBUTHNOT, you have concluded your invective in full form, and rounded it, as the ancient orators used to do, with all the advantage of a peroration. But, setting aside this trick of eloquence, which is apt indeed to confound a plain man, unused to such artifices, I see not but you have left the argument much as you took it up; and that I may still have leave to retain my former reverence for the good old times of queen ELIZABETH. It is true, she had some foibles. You have spared, I believe, none of them. But, to make amends for these defects, let but the history of her reign speak for her, I mean in its own artless language, neither corrupted by flattery, nor tortured by invidious glosses; and we must ever conceive of her, I will not say as the most faultless, perhaps not the most virtuous, but surely the most able, and, from the splendour of some leading qualities, the most glorious of our _English_ monarchs.

To give you my notion of her in few Words.—For the dispute, I find, must end, as most others usually do, in the simple representation of our own notions.—She was discreet, frugal, provident, and sagacious; intent on the pursuit of her great ends, _the establishment of religion_, and _the security and honour of her people_: prudent in the choice of the best _means_ to effect them, the employment of able servants, and the management of the public revenue; dexterous at improving all advantages which her own wisdom or the circumstances of the times gave her: fearless and intrepid in the execution of great designs, yet careful to unite the deepest foresight with her magnanimity. If she seemed AVARICIOUS, let it be considered that the nicest frugality was but necessary in her situation: if IMPERIOUS, that a female government needed to be made respectable by a shew of authority: and if at any time OPPRESSIVE, that the _English_ constitution, as it then stood, as well as her own nature, had a good deal of that bias.

In a word, let it be remembered, that she had the honour of ruling[107], perhaps of forming, the wisest, the bravest, the most, virtuous people, that have adorned any age or country; and that she advanced the glory of the _English_ name and that of her own dignity to a height, which has no parallel in the annals of our nation.

Mr. DIGBY, who had been very attentive to the course of this debate, was a little disappointed with the conclusion of it. He thought to have settled his judgment of this reign by the information his two friends should afford him. But he found himself rather perplexed by their altercations, than convinced by them. He owned, however, the pleasure they had given him; and said, he had profited so much at least by the occasion, that, for the future, he should conceive with something less reverence of the great queen, and should proceed with less prejudice to form his opinion of her character and administration.

Mr. ADDISON did not appear quite satisfied with this sceptical conclusion; and was going to enforce some things, which he thought had been touched too slightly, when Dr. ARBUTHNOT took notice that their walk was now at an end; the path, they had taken, having by this time brought them round again to the walls of the castle. Besides, he said, he found himself much wearied with this exercise; though the warmth of debate, and the opportunities he took of resting himself at times, had kept him from complaining of it. He proposed, therefore, getting into the coach as soon as possible; where, though the conversation was in some sort resumed, there was nothing material enough advanced on either side to make it necessary for me to continue this recital any further.

DIALOGUE V.

ON THE

CONSTITUTION

OF THE

ENGLISH GOVERNMENT.

BETWEEN

SIR JOHN MAYNARD, MR. SOMERS,

AND

BISHOP BURNET.

DIALOGUE V.

ON THE CONSTITUTION OF THE ENGLISH GOVERNMENT.

SIR JOHN MAYNARD, MR. SOMERS, BISHOP BURNET[108].

TO DR. TILLOTSON.

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 freedom[109], 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 MAJESTIES[110], that Mr. SOMERS and I went; as we sometimes used, to pass an evening with our excellent friend, my Lord Commissioner[111]. 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.

BP. BURNET.

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——

MR. SOMERS.

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.

SIR J. MAYNARD.

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?

MR. SOMERS.

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.

BP. BURNET.

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 subject[112].

MR. SOMERS.

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 itself[113], 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.

BP. BURNET.

One can readily admit the principles. But the conclusion, you propose to draw from them—

MR. SOMERS.

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.”

BP. BURNET.

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?

MR. SOMERS.

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.

BP. BURNET.

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.

MR. SOMERS.

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.

SIR J. MAYNARD.

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.

MR. SOMERS.

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.

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.

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_.

MR. SOMERS.

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.

SIR J. MAYNARD.

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.