Chapter VIII (5)

This management of BRACTON and his followers makes some amends for the ill conduct of RICHARD the Second’s lawyers. And as to their chicanery, the ingenuity of the gloss, we will suppose, was no more than necessary to correct the malignity of the text.

SIR J. MAYNARD.

They had, no doubt, consulted their honour much more, by insisting roundly, as they might have done, that the text had no concern at all in the dispute. But I mention these things only to shew the extreme reverence, that was then paid to the civil law, by the shifts the common lawyers were put to in order to evade its influence. From which we learn how rooted the love of liberty must have been in this nation, and how unshaken the firmness of the national councils in supporting it, when, notwithstanding the general repute it was of in those days, the imperial law could never gain authority enough to prescribe to us in any matters that concerned the rights of the crown, or the property of the subject. And this circumstance will be thought the more extraordinary, if it be considered, that, to the general esteem in which the _Roman_ law was held by the clergy, our kings have usually added the whole weight of their influence; except indeed at some particular junctures, when their jealousy of the _canon_ law prevailed over their natural bias to the _civil_.

MR. SOMERS.

I should be unwilling to weaken any argument you take to be of use in maintaining the noble cause you have undertaken. But, methinks, this charge on our princes would require to be made out by other evidence[147] than hath been commonly produced for it. There is no doubt but many of them have aimed at setting themselves above the laws of their country; but is it true (I mean, though FORTESCUE himself[148] has suggested the same thing) that for this purpose they have usually expressed a partiality to the _Roman_ laws?

SIR J. MAYNARD.

I believe it certain that they have, and on better reasons than the bare word of any lawyer whatsoever.

What think you of RICHARD the Second’s policy in the instance before mentioned; that RICHARD, who used to declare, “That the laws were only in his mouth and breast, and that he himself could make and unmake them at his pleasure?” We may know for what reason a prince of this despotic turn had recourse to the _Roman_ law.

But even his great predecessor is known to have been very indulgent towards it. And still earlier, EDWARD I. took much pains to establish the credit of this law; and to that end engaged the younger ACCURSIUS, the most renowned doctor of the age, to come over into _England_, and set up a school of it at _Oxford_. Or, to wave these instances, let me refer you to a certain and very remarkable fact, which speaks the sense, not of this or that king, but of the whole succession of our princes.

The imperial law, to this day, obtains altogether in the courts of admiralty, in courts marescall, and in the universities[149]. On the contrary, in what we call the courts of law and equity, it never hath, nor ever could prevail. What shall we say to this remarkable difference? or to what cause will you ascribe it, that this law, which was constantly excluded with such care from the one sort of courts, should have free currency and be of sole authority in the other? I believe it will be difficult to assign any other than this: that the subjects of decision in the first species of courts are matters in the resort of the king’s prerogative, such as peace and war, and the distribution of honours; whilst the subjects of decision in the courts of common law are out of his prerogative, such as those of liberty and property. The king had his choice by what law the first sort of subjects should be regulated; and therefore he adopted the imperial law. He had not his choice in the latter instance; and the people were never satisfied with any other than the law of the land.

MR. SOMERS.

Yet Mr. SELDEN, you know, gives another reason of this preference: it was, he thinks, because foreigners are often concerned with the natives in those tribunals where the civil law is in use.

SIR J. MAYNARD.

True; but my learned friend, as I conceive, did not attend to this matter with his usual exactness. For foreigners are as frequently concerned in the courts of law and equity, as in the other tribunals. The case in point of reason is very clear. In all contests that are carried on between a native and a foreigner, as the subject of another state, the decision ought to be by the law of nations. But when a foreigner puts himself with a native under the protection of our state, the determination is, of course, by our law. The practice hath uniformly corresponded to the right in the courts of law and equity. In the other tribunals the right hath given way to the will of the prince, who had his reasons for preferring the authority of the imperial law.

Upon the whole, if we consider the veneration, which the clergy usually entertained, and endeavoured to inculcate into the people, for the civil law; the indulgence shewn it by the prince; its prevalence in those courts which were immediately under the prerogative; and even the countenance shewn it at times in the course of pleading at common law; we cannot avoid coming to this short conclusion, “That the genius of the imperial laws was repugnant to our constitution; and that nothing but the extreme jealousy of the barons, lest they might prove, in pleas of the crown, injurious to civil liberty, hath kept them from being received in _England_ on the same footing that we every where find they are in the other countries of _Europe_, and as they are in _Scotland_ to this day.”

But, if you think I draw this conclusion too hastily, and without grounding it on sufficient premises, you may further consider with me, if you please, THE FATE AND FORTUNES OF THE CIVIL LAW IN THIS KINGDOM DOWN TO THE PRESENT TIME.

In the reigns of HENRY VII[150] and VIII, and the two first kings of the house of STUART, that is, the most despotic of our princes, the study of the civil law hath been more especially favoured; as we might conclude from the general spirit of those kings themselves, but as we certainly know from the countenance they shewed to its professors; from their chusing to employ them in their business, and from the salaries and places they provided for their encouragement. Yet see the issue of all this indulgence to a foreign law, and the treatment it met with from our parliaments and people! The oppressions of EMPSON and DUDLEY had been founded in a stretch of power, usurped and justified on the principles of the civil law; by which these miscreants had been enabled to violate a fundamental part of our constitution, the way of _trial by_ JURIES. The effect on the people was dreadful. Accordingly, in the entrance of the next reign, though the authority, by which they had acted, had even been parliamentary, these creatures of tyranny were indicted of high treason, were condemned and executed for having been instrumental in subverting LEGEM TERRÆ; and the extorted statute, under which they had hoped to shelter themselves, was with a just indignation repealed.

Yet all this was considered only as a necessary sacrifice to the clamours of an incensed people. The younger HENRY, we may be sure, had so much of his father in him, or rather so far outdid him in the worst parts of his tyranny, that he could not but look with an eye of favour on the very law he had been constrained to abolish. His great ecclesiastical minister was, no doubt, in the secret of his master’s inclinations, and conducted himself accordingly. Yet the vengeance of the nation pursued and overtook him in good time. They resented his disloyal contempt of the original constitution; and made it one of the articles against this _Roman_ cardinal, “That he endeavoured to subvert _antiquissimas leges hujus regni, universumque hoc regnum_ LEGIBUS IMPERIALIBUS _subjicere_.”

From this time, the study of the civil law was thought to languish in _England_, till it revived with much spirit in the reigns of those unhappy princes who succeeded to the house of TUDOR. Then indeed, by inclination and by pedantry, JAMES I. was led to patronize and encourage it. And the same project was resumed, and carried still further, by his unfortunate son. I speak now from my own experience and observation. The civil lawyers were most welcome at court. They were brought into the Chancery and court of Requests. The minister, another sort of man than WOLSEY, yet a thorough ecclesiastic, and bigoted, if not to the religion; yet to the policy of _Rome_, gave a countenance to this profession above that of the common law. He had found the spirit, and even the forms of it, most convenient for his purpose in the STAR-CHAMBER and HIGH-COMMISSION court, those tribunals of imperial justice, exalted so far above the controul of the common law; and by his good will, therefore, would have brought the same regimen into the other branches of the administration. Great civilians were employed to write elaborate defences of their science; to the manifest exaltation of the prerogative; to the prejudice of the national rights and privileges; and to the disparagement of the common law. The consequence of these proceedings is well known. The most immediate was, that they provoked the jealousy of the common lawyers; and, when the rupture afterwards happened, occasioned many of the most eminent of them to throw themselves into the popular scale[151].

Yet, to see the uniformity of the views of tyranny, and the direct opposition which it never fails to encounter from the _English_ law, no sooner had a set of violent men usurped the liberties of their country, and with the sword in their hands determined to rule despotically and in defiance of the constitution, than the same jealousy of the common law, and the same contempt of it, revived. Nay, to such an extreme was the new tyranny carried, that the very game of EMPSON and DUDLEY was played over again. The trial of an _Englishman_ by his peers was disgraced and rejected; and (I speak from what I felt) the person imprisoned and persecuted, who dared appeal, though in his own case[152], to the ancient essential forms of the constitution. Under such a state of things, it is not to be wondered that much pains was taken to depreciate a law which these mighty men were determined not to regard. Invectives against the professors of the _English_ laws were the usual and favoured topics of parliamentary eloquence. These were sometimes so indecent, and pushed to that provoking length, that WHITLOCKE himself, who paced it with them through all changes, was forced in the end to hazard his reputation with his masters, by standing on the necessary defence of himself and his profession[153].

I need not, I suppose, descend lower. Ye have both seen with your own eyes the occurrences of the late reign. Ye have heard the common language of the time. The practice was but conformable to such doctrines as were current at court, where it was generally maintained, that the king’s power of dispensing with law, was LAW; by which if these doctors did not intend the _imperial_ or _civil law_, the insult was almost too gross to deserve a confutation, It must be owned, and to the eternal shame of those who were capable of such baseness, there were not wanting some even of the common lawyers that joined in this insult.

I but touch these things slightly; for I consider to whom I speak. But if, to these examples of the nation’s fondness for their laws, you add, what appears in the tenor of our histories, the constant language of the _coronation-oaths_, of the _oaths of our judges_, and, above all, of the _several great charters_; in all which express mention is made of the LEX TERRÆ, in opposition to every foreign, but especially the Cæsarean, law; you will conclude with me, “That, as certainly as the CÆSAREAN LAW is founded in the principles of slavery, our ENGLISH LAW, and the constitution to which it refers, hath its foundation in freedom, and, as such, deserved the care with which it hath been transmitted down to us from the earliest ages.”

What think ye now, my good friends? Is it any longer a doubt, that the constitution of the _English_ government, such I mean as it appears to have been from the most unquestioned annals of our country, is a free constitution? Is there any thing more in the way of this conclusion? or does it not force itself upon us, and lie open to the mind of every plain man that but turns his attention upon this subject?

You began, Mr. SOMERS, with great fears and apprehensions; or you thought fit to counterfeit them, at least. You suspected the matter was too mysterious for common understandings to penetrate, and too much involved in the darkness of ancient times to be brought into open day-light. Let me hear your free thoughts on the evidence I have here produced to you. And yet it is a small part only of that which might be produced, of that I am sure which yourself could easily have produced, and perhaps expected from me.

But I content myself with these obvious truths, “That the liberty of the subject appears, and of itself naturally arose, from the very nature of the FEUDAL, which is properly (at least if we look no further back than the Conquest) the _English_ constitution; that the current of liberty has been gradually widening, as well as purifying, in proportion as it descended from its source; that charters and laws have removed every scruple that might arise about the reciprocal rights and privileges of prince and people; that the sense of that liberty which the nation enjoyed under their admirable constitution was so quick, that every the least attempt to deprive them of it gave an alarm; and their attachment to it so strong and constant, that no artifice, no intrigue, no perversion of law and gospel, could induce them to part with it: that, in particular, they have guarded this precious deposite of legal and constitutional liberty with such care, that, while the heedless reception of a foreign law, concurring with other circumstances, hath riveted the yoke of slavery on the other nations of _Europe_, this of _England_ could never be cajoled nor driven into any terms of accommodation with it; but, as NAT. BACON[154] said truly, _That the triple crown could never well solder with the English_, so neither could the _imperial_; and that, in a word, the ENGLISH LAW hath always been preserved inviolate from the impure mixtures of the canon and Cæsarean laws, as the sole defence and bulwark of our civil liberties.”

These are the plain truths, which I have here delivered to you, and on which I could be content to rest this great cause; I mean, if it had not already received its formal, and, I would hope, final determination, in another way. For no pretences will surely prevail hereafter with a happy people to renounce that liberty, which so rightfully belonged to them at all times, and hath now so solemnly been confirmed to them by the great transactions of these days. I willingly omit therefore, as superfluous, what in a worse cause might have been thought of no small weight, the express testimony of our ablest lawyers to the freedom of our constitution. I do not mean only the COKES and SELDENS of our time (though in point of authority what names can be greater than theirs?); but those of older and therefore more reverend estimation, such as GLANVIL, BRACTON, the author of FLETA, THORNTON, and FORTESCUE[155]: men the most esteemed and learned in their several ages; who constantly and uniformly speak of the _English_, as a mixed and limited form of government, and even go so far as to seek its origin, where indeed the origin of all governments must be sought, in the free will and consent of the people.

All this I might have displayed at large; and to others perhaps, especially if the cause had required such management, all this I should have displayed. But, independently of the judgments of particular men, which prejudice might take occasion to object to, I hold it sufficient to have proved from surer grounds, from the very form and make of our political fabric, and the most unquestioned, because the most public, monuments of former times, “THAT THE ENGLISH CONSTITUTION IS ASSUREDLY AND INDISPUTABLY FREE[156].”

BP. BURNET.

You will read, Sir JOHN, in our attention to this discourse, the effect it has had upon us. The zeal, with which you have pleaded the cause of liberty, makes me almost imagine I see you again in the warmth and spirit of your younger years, when you first made head against the encroachments of civil tyranny. The same cause has not only recalled to your memory the old topics of defence, but restores your former vigour in the management of them. So that, for myself, I must freely own, your vindication of our common liberties is, at least, the most plausible and consistent that I have ever met with.

MR. SOMERS.

And yet, if one was critically disposed, there are still, perhaps, some things that might deserve a further explanation.—But enough has been said by you, Sir JOHN, to shew us where the truth lies: and, indeed, from such plain and convincing topics, that, whatever fears my love of liberty might suggest, they are much abated at least, if not entirely removed, by your arguments.

BP. BURNET.

Mr. SOMERS, I perceive, is not easily cured of his scruples and apprehensions. But for my own part, Sir JOHN, I can think but of one objection of weight that can be opposed to your conclusion. It is, “That, notwithstanding the clear evidence you have produced, both for the free nature of the _English_ constitution, and the general sense of the _English_ nation concerning it, yet, in fact, the government was very despotic under the TUDOR, and still more perhaps under the first princes of the STUART, line. How could this happen, may it be asked, on your plan, which supposes the popular interest to have been kept up in constant vigour, or rather to have been always gaining, insensibly indeed, but necessarily, on the power of the crown? Will not the argument then from historical evidence be turned against you, whilst it may be said that your theory, however plausible, is contradicted by so recent and so well-attested a part of our history? And, in particular, will not the partisans[157] of the late king and his family have to allege in their behalf, that their notions of the prerogative were but such as they succeeded to with the crown; and, whatever may be pretended from researches into remoter times, that they endeavoured only to maintain the monarchy on the footing on which it had stood for many successions, and on which it then stood when the administration fell into their hands? If this point were effectually cleared, I see nothing that could be further desired to a full and complete vindication of _English_ liberty.”

SIR J. MAYNARD.

Your lordship, I must own, has touched a very curious and interesting part of our subject. But you must not believe it was so much overlooked by me, as purposely left for your lordship’s better consideration. You, who have looked so minutely and carefully into the story of those times, will, better than any other, be able to unfold to us the mysteries of that affair. The fact is certain, as you say, that the _English_ government wore a more despotic appearance from the time of the TUDOR family’s accession to the throne, than in the reigns preceding that period. But I am mistaken, if your lordship will not open the reason of it so clearly as to convince us, that that increase of prerogative was no proof of a change in the constitution, and was even no symptom of declining liberty. I do not allow myself to speak my sentiments more plainly at present. But I am sure, if they are just, they will receive a confirmation from what your lordship will find occasion to observe to us in discoursing op this subject.

MR. SOMERS.

I will not disown that this was one of the matters I had in view, when I hinted some remaining doubts about your general conclusion. But I knew it would not escape my lord of SALISBURY, who, of all others, is certainly the most capable of removing it.

BP. BURNET.

So that I have very unwarily, it seems, been providing a fine task for myself. And yet, as difficult as I foresee it will be for me to satisfy two such Inquirers, I should not decline that task, if I was indeed prepared for it, or if I could boast of such a memory as Sir J. MAYNARD has shewn in the course of this conversation. But the truth is, though I have not wanted opportunities of laying in materials for such a design, and though I have not neglected to take some slight notes of them, yet I cannot pretend to have them at once in that readiness, as to venture on such a discourse as I know you expect from me. But if, against our next meeting, I shall be able to digest such thoughts as have sometimes occurred to me when I was engaged in the History of the Reformation, I shall take a pleasure to contribute all I can to the further and more entire elucidation of this subject.

THE END OF THE THIRD VOLUME.

Printed by J. Nichols and Son,
Red Lion Passage, Fleet Street, London.

FOOTNOTES:

[1] Mala et impia consuetudo est contra Deos disputandi, sive ex animo id fit, sive simulatè. _De Nat. D._ l. ii. c. 67.

[2] Genus hoc sermonum, positum in hominum veterum auctoritate, et eorum illustrium, plus nescio quo pacto videtur habere gravitatis. Itaque ipse mea legens, sic afficior interdum, ut Catonem, non me loqui existímem. CIC. _De Amic._ c. 1.

[3] Omnem sermonem tribuimus non Tithono, ut Aristo Chius; _parum enim esset auctoritatis in fabulâ_. De Senect. c. 1.

[4] See the Dialogue intituled, Πρὸς τὸν εἰπόντα, ΠΡΟΜΗΘΕΥΣ εἶ ἐν λόγοις.

[5] Ἔπαιζεν ἅμα σπουδάζων· Xen. Mem. l. i. c. 3.

[6] Γέλωτα κωμικὸν ὑπὸ σεμνότητι φιλοσόφῳ. Προμηθ. c. 7.

[7] Difficillimam illam societatem _Gravitatis cum Humanitate_. _Leg._ l. iii. c. 1.

[8] Ἐτολμήσαμεν ἡμεῖς τὰ οὕτως ἔχοντα ϖρὸς ἄλληλα ξυναγαγεῖν καὶ ξυναρμόσαι, οὐ ϖάνυ ϖειθόμενα, οὐδὲ εὐμαρῶς ἀνεχόμενα τὴν κοινωνίαν. Προμηθ. c. 7.

[9] Προμηθ. c. 7. to the end. Δὶς κατηγορούμενος. c. 33. and Ζεῦξις.

[10] ——quo in genere orationis utrumque Oratorem cognoveramus, id ipsum sumus in eorum sermone _adumbrare conati_. De Orat. iii. 4.

[11] A curious passage, or two, in his Letters to Atticus, will serve to illustrate this observation. The _academic questions_ were drawn up, and finished, when a doubt occurred to him, whether he should not change one of the speakers in that Dialogue, and, instead of Varro, introduce Brutus; who would suit his purpose, he said, just as well, because his philosophic principles were the same with those of Varro—_si addubitas_, says he to Atticus, _ad Brutum transeamus. Est enim is quoque Antiochius._ l. xiii. 25. Was this a change to be easily made, if it were necessary, in this kind of writing, to suit the _style_ and _manner of expression_ to the character of the speakers? Yet, hear how negligently he treats this matter—_Opinor igitur consideremus, etsi nomina jam facta sunt. Sed_ VEL INDUCI, VEL MUTARI POSSUNT. l. xiii. 14.—In other words, provided the _cast_ of the several parts was the same, the _language_ of the Dialogue would require no alteration. It was indifferent, in this respect, who were the speakers.

[12] Scripsit enim et DIALOGOS quos non magis philosophiæ annumerare possis, quam HISTORIÆ. SENECA, EP. C.

[13] Lord SHAFTESBURY’S _Moralists_, P. 1. S. I.

[14] _Adv. to an Author_, P. 1. S. III.

[15] _Adv. to an Author_, P. 1. towards the end.

[16] The scene of Dr. MORE’S DIVINE DIALOGUES, printed in 1668.

[17] At BEACONSFIELD in _Bucks_, the supposed scene of the Dialogue.

[18] See his works, where are some pieces of a very early date; though Lord CLARENDON tells us, _he was near thirty years of age, before he was much taken notice of as a Poet_. Contin. of his Life, P. I. p. 25.

[19] Dr. ANDREWS, bishop of _Winchester_, and Dr. NEAL, bishop of _Durham_. The story is well known.

[20] Dr. GEORGE MORLEY.

[21] This alludes to the impeachment of Mr. _Justice_ CRAWLEY, _July 6, 1641_, for his extra-judicial opinion in the affair of _Ship-money_. Mr. WALLER’S speech on this occasion is extant amongst his works.

[22] The famous Mr. HAMPDEN was his uncle.

[23] That of _Secretary of State_. The Lord CLARENDON tells us it was with the utmost difficulty he persuaded him to accept it. “There were two considerations (says the historian) that made most impression on him; the _one_, lest the world should believe that his own ambition had procured this promotion, and that he had therefore appeared signally in the house to oppose those proceedings, that he might thereby render himself gracious to the court: The _other_, lest the king should expect such a submission and resignation of himself and his own reason and judgment to his commands as he should never give or pretend to give; for he was so severe an adorer of truth, that he would as easily have given himself leave to steal as to dissemble,” &c. B. iv.

[24] The noble historian, before cited, gives us two instances of Lord FALKLAND’S scrupulosity. The _one_ was, “That he could never bring himself to employ spies, or give any countenance or entertainment to them:” The _other_, “That he could never allow himself the liberty of opening letters, upon a suspicion that they might contain matter of dangerous consequence.” B. viii.

[25] To this purpose my Lord CLARENDON. “He [Mr. W.] spoke, upon all occasions, with great sharpness and freedom: which (now there were so few that used it, and there was no danger of being over-voted) was not restrained; and therefore used as an argument against those, who were gone upon pretence, that they were not suffered to declare their opinion freely in the house; which could not be believed, when all men knew what liberty Mr. WALLER took, and spoke every day with impunity, against the sense and proceedings of the house.” B. vii.

[26] See Lord CLARENDON’S History.

[27] Ἅπλωσον σεαυτόν, lib. iv. § 26, which Dr. MORE, in l. ii. c. 3. of his ENCHIRIDION ETHICUM, translates, _simplifica teipsum_.

[28] In the year 1654.

[29] Lord CLARENDON died in 1674.

[30] The character of Mr. WALLER is given at large in the _Life of Lord Clarendon_, P. I. p. 25.—As for Dr. MORE, Bishop BURNET tells us, in one word, “That he was an open-hearted and sincere Christian philosopher.” _Hist. of his own Time_, vol. p. 273. 12^{mo}, _Edinb._ 1753.

[31] This Dialogue is founded on a short passage in Mr. SPRAT’S Life of Mr. COWLEY, in which he observes, “That in his long dependence on my Lord St. ALBANS, there never happened any manner of difference between them; except a little at LAST, because he would leave his service.”

[32] A small village on the _Thames_, which was Mr. COWLEY’S first retreat, before he removed to _Chertsea_.

[33] Meaning an estate he had obtained by means of this lord. This particular is several times referred to in the course of the Dialogue.

[34] The writer of the Dialogue has thought fit to soften the misanthropy of Mr. COWLEY in this instance. In one of his Essays he talks strangely. “It is the great boast,” says he, “of eloquence and philosophy, that they first congregated men dispersed, united them into cities, and built up the houses and the walls of cities. I wish they could unravel all they had woven, that we might have our woods and our innocence again, _instead of our castles and our policies_.”

[35] These verses are inserted in one of his _Essays_, and in some editions of his works.

[36] “Perhaps, says he (speaking of the poets), it was the immature and immoderate love of them, which stampt first, or rather engraved, the characters in me: they were like letters cut in the bark of a young tree, which with the tree, still grow proportionably.”

[_Essay on himself._]

[37] “When the civil war broke out, his [Mr. COWLEY’S] affection to the king’s cause drew him to _Oxford_, as soon as it began to be the chief seat of the royal party.” [Dr. SPRAT’S life of him.]

[38] Dr. SPRAT tells us in _his Life_, “That, during his residence at _Oxford_, he had the entire friendship of my Lord FALKLAND, one of the principal secretaries of state. That affection was contracted by the agreement of their learning and manners. For you may remember, Sir, [addressing himself to Mr. M. CLIFFORD] we have often heard Mr. COWLEY admire him, not only for the profoundness of his knowledge, which was applauded by all the world, but more especially for those qualities which he himself more regarded, for _his generosity of mind, and his neglect of the vain pomp of human greatness_.”

[39] _The Cutter of Coleman-street_; the occasion and purpose of which was this: At the Restoration, there was not a set of men more troublesome to the ministry than the cavalier officers; amongst whom had crept in all the profligate of broken fortunes, to share in the merits and rewards of that name. COWLEY writ this comedy to unmask these wretches, and might reasonably pretend to some thanks for it. But, contrary to expectation, this very attempt raised a storm against him even at court, which beat violently upon him. See his preface to that play in the later editions in 8vo.

[40] SHAKESPEAR. _As you like it._ Act II. S. 1.—There is a quaintness in these lines of the great poet, which however are not unlike some of Mr. COWLEY’S addressed to J. EVELYNE, Esq.

Where does the wisdom and the pow’r divine,
In a more bright and sweet reflexion shine;
Where do we finer strokes and colours see
Of the Creator’s real poetry;

Than when we with attention look
Upon the third day’s volume of the book?
If we could open and intend our eye,
We all, like _Moses_, should espy,
Ev’n in a _Bush_, the radiant Deity.

[41] In the PREFACE to his _Proposition for the advancement of experimental philosophy_, first printed in 1661. _See the edition in 24^{to}, Lond. for H. Herringham._

[42] Dr. SPRAT tells us, “That he had obtained a plentiful estate by the favour of my Lord ST. ALBANS, and the bounty of my lord duke of BUCKINGHAM.” [See his _Life_.]

[43] Meaning _The true history of_ Don Quixote; in which poor _Sancho Panca_ is drawn into all adventures, by the promise of his _knight_, to reward him in due time with the government of an _island_.

[44] LORD BACON gives another account of this matter.—“As for the privateness of life of contemplative men, it is a theme so common to extol a private life, not taxed with sensuality and sloth, in comparison, and to the disadvantage of a civil life, for safety, liberty, pleasure, and dignity, _as no man handleth it, but handleth it well_: such a consonancy it hath to men’s conceits in the expressing, and to men’s consents in the allowing.” [_Adv. of Learning_, Book 1.]

[45] The justness of this encomium on Lord CLARENDON will hardly be disputed by any man, whose opinion is worth regarding.—What pity, that Mr. COWLEY’S connexions with some persons, indevoted to the excellent Chancellor, kept him at a distance from a man, so congenial to himself, and for whom he could not but entertain the highest esteem! The Chancellor, though he could not be expected to take him out of the hands of his old patrons, seems, yet, to have been generous enough to Mr. COWLEY, not to resent those connexions: as may be gathered from the handsome testimony paid to his merit, in the _Continuation of the History of his own Life_. Speaking of B. JONSON, he says—“He [BEN JONSON] was the best judge of, and fittest to prescribe rules to, poetry and poets, of any man who had lived with, or before him, or since; _If Mr._ COWLEY _had not made a flight beyond all men_; with that modesty yet, to ascribe much of this, to the example and learning of BEN JONSON.”—Among the other infelicities of men of genius, ONE is, and not the least, that it rarely happens to them to have the choosing of the persons, to whom they would most wish to be obliged. The sensibility of their gratitude being equal to their other parts and virtues, the man, whose favour they chance first to experience, is sure of their constant services and attachment through life, how strongly soever their interest, and even their judgment, may _draw_ another way.

[46] The reader is not to forget, that Mr. SPRAT is writing to the Lord ST. ALBANS, and was, at this time, chaplain to the Duke of BUCKINGHAM.

[47] “Ingenium illustre altioribus studiis juvenis admodum dedit: non, ut PLERIQUE, UT NOMINE MAGNIFICO SEGNE OTIUM VELARET, sed quo firmior adversus fortuita rempublicam capesseret.” [_Hist._ IV. 5.]—Part of the fine character given us of HELVIDIUS PRISCUS.

[48] THE ROYAL SOCIETY; not yet instituted, but much talked of at this time.

[49] We have in this remonstrance that follows, the usual language of those we call our _friends_; which may sometimes be the _cause_, but is oftner the _pretence_, of ambition. Hear how gravely Sir DUDLEY CARLTON, who loved business, and drudged on in it all his life, is pleased, in an evil hour, to express himself: “The best is, I was never better, and were it not more for a necessity that is imposed by the EXPECTATION OF FRIENDS, not to stand at a stay and SENESCERE, whilst a man is young, than for ambition, I would not complain myself of my misfortune.” [Sir RALPH WINWOOD’S _Memorials_, vol. II. p. 45.]

[50] That Mr. COWLEY _had_ his prince’s grace appears from what the king said of him, on the news of his death: “_That he had not left a_ BETTER _man behind him in_ England.” And this with _grace_ enough, in reason, from SUCH a prince.—How it came to pass that he _wanted_ the grace of his peers (if, indeed, he _did_ want it), hath been explained in a note, p. 140.

[51] The application of this line is the affair of the _Mastership of the_ Savoy; “which though granted, says Mr. Wood, to his highest merit by both the CHARLESES I. and II. yet by certain persons, enemies to the Muses, he lost that place.” But this was not the worst. For, such is the hard lot of unsuccessful men, the _Savoy-missing_ COWLEY became the object of ridicule, instead of pity, even to the wits themselves; as may be seen in “_The session of the poets_, amongst _the miscellaneous poems_ published by Mr. DRYDEN.”

Quid DOMINI facient, audent si talia FURES?

[52] Printed among his works, under the name of THE COMPLAINT. The relation it has to the subject debated, made me think it not amiss to print it at the end of this Dialogue—It must raise one’s indignation to find that so just, so delicate, and so manly a _complaint_ should be scoffed at, as it was by the wits before mentioned, under the name of THE PITIFUL MELANCHOLY.

[53] Juvenal, _Sat._ i. ver. 112.

[54] Whether it were owing to his other occupations, or that he had no great confidence in the success of this attempt, these _Essays_, which _were to give entire satisfaction_ to his court-friend in the affair of his retirement, went on very slowly. They were even left imperfect at his death, “a little before which (says Dr. SPRAT) he communicated to me his resolution, to have dedicated them all to my Lord ST. ALBANS, as a testimony of his entire respects to him; and a _kind of apology_ for having left human affairs in the strength of his age, while he might have been serviceable to his country.”——However, if this apology had not the _intended_ effect, it had a much better. Lords and wits may decide of the qualities of Mr. COWLEY’S _head_ as they please; but, so long as these _Essays_ remain, they will oblige all honest men _to love the language of his heart_.

[55] Alas! he was mistaken.

[56] A citation from one of his own poems.

[57] Mr. SPRAT himself tells us, speaking of Mr. COWLEY’S retreat, that “some few friends and books, a _chearful heart_, and innocent conscience, were his constant companions.” _Life._

[58] This is one of the prettiest of Mr. COWLEY’S smaller Poems. The plan of it is highly poetical: and, though the numbers be not the most pleasing, the expression is almost every where natural and beautiful. But its principal charm is that air of _melancholy_, thrown over the whole, so expressive of the poet’s character.

The _address_ of the writer is seen in conveying his just reproaches on the _Court_, under a pretended vindication of it against the _Muse_.

[59] An execrable line.

[60] For the account of these _Monuments_, and of _Kenelworth-Castle_, see the plans and descriptions of DUGDALE.

[61] The speaker’s idea of Lord LEICESTER’S porter agrees with the character he sustained on the queen’s reception at _Kenelworth_; as we find it described in a paper of good authority written at that time. “Here a PORTER, tall of person, big of limbs, stark of countenance—with club and keys of quantity according; in a rough speech, full of passion in metre, while the queen came within his ward, burst out in a great pang of impatience to see such uncouth trudging to and fro, such riding in and out, with such din and noise of talk, within his charge; whereof he never saw the like, nor had any warning once, ne yet could make to himself any cause of the matter. At last, upon better view and advertisement, he proclaims open gates and free passage to all; yields over his club, his keys, his office and all, and on his knees humbly prays pardon of his ignorance and impatience. Which her highness graciously granting, _&c._”—

A letter from an attendant in court to his friend a citizen and merchant of _London_. From the court at _Worcester, 20 August 1575_.

[62] In the first volume of the SPECTATOR.

[63] The factious use, that was afterwards made of this humour of magnifying the character of ELIZABETH, may be seen in the _Craftsman_ and _Remarks on the History of England_.

[64] What the _political_ character of Mr. ADDISON was, may be seen from his _Whig-examiner_. This amiable man was keen and even caustic on subjects, where his party, that is, _civil liberty_, was concerned. Nor let it be any objection to the character I make him sustain in this Dialogue, that he treats ELIZABETH’S government with respect in the _Freeholder_. He had then the people to cajole, who were taught to reverence her memory. He is, here, addressing himself, in private, to his friends.

[65] Lucian expresses this use of the Table prettily—ΦΙΛΙΑΣ ΜΕΣΙΤΗΝ ΤΡΑΠΕΖΑΝ, Ἔρωτες, c. 27.

[66] Besides this sort of hospitality, there was another still more noble and disinterested, which distinguished the early times, especially the purer ages of chivalry. It was customary, it seems, for the great lords to fix up HELMETS on the roofs and battlements of their castles as a signal of hospitality to all adventurers and noble passengers. “Adoncques etoit une coustume en la Grant Bretagne (says the author of the old romance, called PERCEFOREST) et fut tant que charité regna illecque, tous gentils hommes et nobles dames faisoient mettre au plus hault de leur hostel ung heaulme, en SIGNE que tous gentils hommes et gentilles femmes trespassans les chemins, entrassent hardyement en leur hostel comme en leur propre; car leurs biens estoient davantage à tous nobles hommes et femmes trespassans le royaulme.” Vol. iii. fol. 103.

[67] This is not said without authority: “Give me leave, says one, to hold this paradox, that the English were never more idle, never more ignorant in manual arts, never more factious in following the parties of princes or their landlords, never more base (as I may say) trencher slaves, than in that age, wherein great men kept open houses for all comers and goers: and that in our age, wherein we have better learned each man to live of his own, and great men keep not such troops of idle servants, not only the English are become very industrious and skilful in manual arts, but also the tyranny of lords and gentlemen is abated, whereby they nourished private dissensions and civil wars, with the destruction of the common people.” FYNES MORYSON’S _Itinerary_, Part III. Ch. v.

[68] Dr. ARBUTHNOT, too, has his authority. A famous politician of the last century expresseth himself to much the same purpose, after his manner: “Henceforth, says he, [that is, after the statutes against retainers in HEN. VII’S reign] the country lives, and _great tables_ of the nobility, which no longer nourished veins that would bleed for them, were fruitless and loathsome till they changed the air, and of princes became _courtiers_; where their revenues, never to have been exhausted by beef and mutton, were found _narrow_; whence followed racking of rents, and, at length, sale of lands.” SIR JAMES HARRINGTON’S OCEANA, p. 40. _Lond._ 1656.

[69] True it is, that this divertisement of _bear-baiting_ was not altogether unknown in the age of ELIZABETH, and, as it seemeth, not much misliked of master STOW himself, who hath very graphically described it. He is speaking of the _Danish_ embassador’s reception and entertainment at _Greenwich_ in 1586. “As the better sort, saith he, had their convenient disports, so were not the ordinary people excluded from competent pleasure. For, upon a green, very spacious and large, where thousands might stand and behold with good contentment, their BEAR-BAITING and bull-baiting (tempered with other merry disports) were exhibited; whereat it cannot be spoken of what pleasure the people took.

For it was a sport alone, of these beasts, continueth the historian, to see the bear with his pink-eyes leering after his enemies; the nimbleness and wait of the dog to take his advantage; and the force and experience of the bear again to avoid the assaults; if he were bitten in one place, how he would pinch in another to get free; and if he were once taken, then what shift with biting, clawing, roaring, tugging, grasping, tumbling, and tossing, he would work to wind himself away; and, when he was loose, to shake his ears with the blood and slaver about his phisnomy, was a pittance of good relief. The like pastime also of the bull.—And now the day being far spent, and the sun in his declination, the embassador withdrew to his lodging by barge to CROSBY’S place; where, no doubt, THIS DAY’S SOLEMNITY WAS THOUGHT UPON AND TALKED OF.”—p. 1562.

[70] See the _Anarcharsis_ of LUCIAN.

[71] If the reader be complaisant enough to admit the fact, it may be accounted for, on the ideas of chivalry, in the following manner. The knight forfeited all pretensions to the favour of the ladies, if he failed, in any degree, in the point of valour. And, reciprocally, the claim which the ladies had to protection and courtesy from the order of knights, was founded singly in the reputation of chastity, which was the female point of honour. “Ce droit que les dames avoient sur la chevalerie (says M. DE LA CURNE DE STE PALAYE) devoit étre conditionel; il supposoit que leur conduite et leur reputation ne les rendoient point indignes de l’espece d’association qui les unissoit à cet ordre uniquement fondé sur l’honneur.

Par celle voye (says an old _French_ writer, the chevalier DE LA TOUR, about the year 1371) les bonnes se craignoient et se tenoient plus fermes de faire chose dont elles peussent perdre leur honneur et leur etat. _Si vouldroye que celûi temps fust revenu, car je pense qu’il n’en seroit pas tant de blasmées comme il est à present.”_

[72] Sir PHILIP SYDNEY.

[73] What is hinted, here, of the _reality_ of these representations, hath been lately shewn at large in a learned memoir on this subject, which the reader will find in the XX^{th} Tom. of HIST. DE L’ACAD. DES INSCRIPTIONS ET BELLES LETTRES.

[74] This representation of things in the ages of chivalry agrees with what we are told by the author of the memoir just quoted: “Les premières leçons,” (says he, speaking of the manner in which the youth were educated in the houses of the Great, which were properly the schools of those times) “qu’on leur donnoit, regardoient principalement _l’amour de Dieu, et des dames_, c’est-à-dire, la religion, et la galanterie. Mais autant la dévotion qu’on leur inspiroit étoit accompagnée de puerilités et de superstitions, autant l’amour des dames, qu’on leur recommandoit, étoit il rempli de RAFFINEMENT et de FANATISME. Il semble qu’on ne pouvoit, dans ces siécles ignorans et grossiers, présenter aux hommes la religion sous une forme assez materielle pour la mettre à leur portée; ni leur donner, en même tems, une idée de l’amour assez pure, assez metaphysique, pour prevenir les desordres et les excès, dont etoit capable une nation qui conservoit par-tout le caractere impetueux qu’elle montroit à la guerre.” Tom. xx. p. 600.

One sees then the origin of that furious gallantry which runs through the old romances. And so long as the _refinement and fanaticism_, which the writer speaks of, were kept in full vigour by the force of institution and the fashion of the times, the morals of these enamoured knights might, for any thing I know, be as pure as their apologist represents them. At the same time it must be confessed that this discipline was of a nature very likely to relax itself under another state of things, and certainly to be misconstrued by those who should come to look upon these pictures of a _refined and spiritual passion_, as incredible and fantastic. And hence, no doubt, we are to account for that censure which a famous writer, and one of the ornaments of ELIZABETH’S own age, passeth on the old books of chivalry. His expression is downright, and somewhat coarse. “In our fathers time nothing was read but books of chivalry, wherein a man by reading should be led to none other end, but only to _manslaughter_ and _baudrye_. If any man suppose they were good enough to pass the time withall, he is deceived. For surely vain words do work no small thing in vain, ignorant, and young minds, especially if they be given any thing thereunto of their own nature.” He adds, like a good Protestant, “These books, as I have heard say, were made the most part in abbayes and monasteries; a very likely and fit fruit of such an idle and blind kind of living.” _Præf._ to ASCHAM’S TOXOPHILUS, 1571.

I thought it but just to set down this censure of Mr. ASCHAM over-against the candid representation of the French memorialist.—However, what is said of the influence, which this ancient institution had on the character of his countrymen, is not to be disputed. “Les preceptes d’amour repandoient dans le commerce des dames ces considerations et ces egards respectueux, qui, n’ayant jamais été effacés de l’esprit des François, ont toujours fait un des caractères distinctifs de nôtre nation.”

[75] Of SCRIBLERUS. See the VI^{th} chapter of that learned work, _On the ancient Gymnastics_.

[76] MASQUES, p. 181. WHALEY’S edition.

[77] This romantic spirit of the Queen may be seen as well in her _amours_, as military achievements. “Ambiri, coli ob formam, et AMORIBUS, etiam inclinatâ jam ætate, videri voluit; de FABULOSIS INSULIS per illam relaxationem renovatâ quasi memoriâ in quibus EQUITES AC STRENUI HOMINES ERRABANT, et AMORES, fœditate omni prohibitâ, generosè per VIRTUTEM exercebant.”

THUANI Hist. tom. vi. p. 172.

The observation of the great historian is confirmed by FRANCIS OSBORNE, Esq., who, speaking of a contrivance of the Cecilian party to ruin the earl of ESSEX, by giving him a rival in the good graces of the queen, observes—“But the whole result concluding in a duel, did rather inflame than abate the former account she made of him: the opinion of a CHAMPION being more splendid (in the weak and romantic sense of women, that admit of nothing fit to be made the object of a quarrel but themselves) and far above that of a captain or general. So as Sir EDMUND CARY, brother to the Lord HUNSDON, then chamberlain and near kinsman to the Queen, told me, that though she chid them both, nothing pleased her better than a conceit she had, that her _beauty_ was the subject of this quarrel, when, God knows, it grew from the stock of honour, of which then they were very tender.”—MEM. OF Q. ELIZABETH, p. 456.

But nothing shews the romantic disposition of the Queen, and indeed of her times, more evidently than the TRIUMPH, as it was called; devised and performed with great solemnity, in honour of the _French_ commissioners in 1581. The contrivance was for four of her principal courtiers, under the quaint appellation of “four foster-children of DESIRE,” to besiege and carry, by dint of arms, “THE FORTRESS OF BEAUTY;” intending, by this courtly ænigma, nothing less than the queen’s majesty’s own person.—The actors in this famous triumph were, the Earl of ARUNDEL, the Lord WINDSOR, Master PHILIP SIDNEY, and Master FULK GREVIL. And the whole was conducted so entirely in the spirit and language of knight errantry, that nothing in the Arcadia itself is more romantic. See the account at large in STOW’S continuation of HOLINSHED’S Chronicles, p. 1316-1321.

To see the drift and propriety of this triumph, it is to be observed that the business which brought the _French_ commissioners into _England_ was, the great affair of the queen’s marriage with the duke of ALANÇON.

[78] Speeches at Prince HENRY’S barriers.

[79] There was an instance of this kind, and perhaps the latest upon record in our history, in the 13th year of the queen, when “a combat was appointed to have been fought for a certain manor, and demain lands belonging thereto, in _Kent_.” The matter was compromised in the end. But not till after the usual forms had been observed, by the two parties: of which we have a curious and circumstantial detail in _Holinshed’s_ Chronicles, p. 1225.

[80] Alluding to a tract, so called, by GASCOIGNE, an attendant on the court, and poet of that time, who hath given us a narrative of the entertainments that passed on this occasion at _Kenelworth_.

[81] Hence then it is that a celebrated dramatic writer of those days represents the entertainment of MASKS and SHOWS, as the highest indulgence that could be provided for a luxurious and happy monarch. His words are these;

“Music and poetry are his delight.
Therefore I’ll have _Italian_ masques by night,
Sweet speeches, comedies, and pleasing shows;
And in the day, when he shall walk abroad,
Like SYLVAN NYMPHS, my pages shall be clad:
My men, like SATYRS, grazing on the lawns,
Shall, with their goat-feet dance the antic hay:
Sometimes a lovely boy in DIAN’S shape,
With hair, that gilds the water as it glides,
Crownets of pearls about his naked arms,
And in his sportful hands an olive-tree,
Shall bathe him in a spring, and there hard-by
One like ACTÆON, peeping through the grove,
Shall by the angry Goddess be transform’d—
Such things as these best please his Majesty.”

MARLOW’S Edward II.

And how exactly this dramatist painted the humour of the times, we may see from the entertainment provided, not many years after, for the reception of King JAMES at _Althorp_ in _Northamptonshire_; where this very design of _Sylvan Nymphs_, _Satyrs_, and ACTÆON, was executed in a masque by B. JONSON.

[82] Whom his friend Mr. SELDEN characterizeth in this manner,

“Omnia carmina doctus
Et calles mythων plasmata et historiam.”
TIT. OF HON. p. 466.

[83] _Sacrifices_, says PLUTARCH, _without chorusses and without music, we have known: but for poetry, without fable and without fiction, we know of no such thing_. Θυσίας μὲν ἀχόρους καὶ ἀναύλους ἴσμεν· οὐκ ἴσμεν δὲ ἄμυθον οὐδὲ ἀψευδῆ ϖοίησιν. De aud. poët. vol. i. p. 16.

[84] This will be admitted, if a calculation said to have been made by themselves of their number at that time may be relied on—“They make reasoning (saith Sir EDWIN SANDYS in his _Speculum Europæ_, written in 1699) forty hundred sure catholics in _England_, with four hundred _English Roman_ priests to maintain that militia,” p. 157.