Part 13

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.

Another difference, also, in the state of the two countries, is worth observing. In _France_, the allodial lands (though considerable in quantity) were divided into small portions. In _England_, they seem to have been in few hands; the greater part possessed by the King and his _Thanes_; some smaller parcels by the lesser _Thanes_; and a very little by the _Ceorles_. The consequence was, that, though the allodial proprietors in _France_ were glad to renounce their property for tenure, in order to secure the protection they much wanted; yet with us, as you say, there could not be any such inducement for the innovation. For, the lands being possessed in large portions by the nobility and gentry, the allodial lords in _England_ were too great to stand in need of protection. Yet from this very circumstance, fairly attended to, we shall see that the introduction of the feudal tenures was neither difficult nor unpopular. The great proprietors of land were, indeed, too free and powerful, to be bettered by this change. But their tenants, that is, the bulk of the people, would be gainers by it. For these tenants were, I believe, to a man beneficiaries. The large estates of the _Thanes_ were granted out in small portions to others, either for certain quantities of corn or rent, reserved to the lord, or on condition of stipulated services. And these grants, of whichever sort they were, were either at pleasure, or at most for a limited term. So that, though the proprietors of land in _England_ were so much superior to those in _France_; yet the tenants of each were much in the same state; that is, they possessed beneficiary lands on stipulated conditions.

When, therefore, by right of forfeiture, the greater part of the lands in _England_ fell, as they of course would do, into the power of the king (for they were in few hands, and those few had either fought at _Hastings_, or afterwards rebelled against him), it is easy to see that the people would not be displeased to find themselves, instead of beneficiary tenants[122], feudatary proprietors.

I say this on supposition that these great forfeited estates and signiories, so bountifully bestowed by the Conqueror on his favourite _Normans_, were afterwards, many of them at least, granted out in smaller parcels to _English_ sub-tenants. But if these sub-tenants were also _Normans_ (though the case of the _English_ or old _Saxon_ freeholders was then very hard), the change of allodial into feudatary estates is the more easily accounted for.

The main difficulty would be with the churchmen; who (though the greatest, and most of them were, perhaps, _Normans_ too) were well acquainted with the _Saxon_ laws, and for special reasons were much devoted to them. They were sensible that their possessions had been held, in the _Saxon_ times, in FRANC-ALMOIGN: a sort of tenure, they were not forward to give up for this of _feuds_. ’Tis true, the burdens of these tenures would, many of them, not affect them. But then neither could they reap the principal fruit of them, the fruit of inheritance. They, besides, considered every restraint on their privileges as impious; and took the subjection of the ecclesiastic to the secular power, which the feudal establishment was to introduce, for the vilest of all servitudes. Hence the churchmen were, of all others, the most averse from this law[123]. And their opposition might have given the Conqueror still more trouble, if the suppression of the great Northern rebellion had not furnished him with the power, and (as many of them had been deeply engaged in it) with the pretence, to force it upon them. And thus, in the end, it prevailed universally, and without exception.

I would not go further into the history of these tenures. It may appear from the little I have said of them, that the feudal system was rather improved and corrected by the duke of NORMANDY, than originally planted by him in this kingdom: that the alteration made in it was favourable to the public interest; and that our _Saxon_ liberties were not so properly restrained, as extended by it. It is of little moment to inquire whether the nation was won, or forced, to a compliance with this system. It is enough to say, that, as it was accepted by the nation, so it was in itself no servile establishment, but essentially founded in the principles of liberty. The duties of lord and feudatary were reciprocal and acknowledged: services on the one part, and protection on the other. The institution was plainly calculated for the joint-interest[124] of both parties, and the benefit of the community; the proper notion of the feudal system being that “of a confederacy between a number of military persons, agreeing on a certain limited subordination and dependence on their chief, for the more effectual defence of his and their lives, territories, and possessions.”

MR. SOMERS.

I have nothing to object to your account of the feudal constitution. And I think you do perfectly right, to lay the main stress on the general nature and genius of it; as by this means you cut off those fruitless altercations, which have been raised, concerning the personal character of the _Norman_ Conqueror. Our concern is not with him, but with the government he established. And if that be free, no matter whether the founder of it were a tyrant. But, though I approve your method, I doubt there is some defect in your argument. _Freedom_ is a term of much latitude. The _Norman_ constitution may be free in one sense, as it excludes the sole arbitrary dominion of one man; and yet servile enough in another, as it leaves the government in few hands. For it follows, from what I understand of the feudal plan, that though its genius be indeed averse from absolute monarchy, yet it is indulgent enough to absolute _aristocracy_. And the notion of each is equally remote from what we conceive of true _English_ liberty.

SIR J. MAYNARD.

It is true, the proper feudal form, especially as established in this kingdom, was in a high degree oligarchical. It would not otherwise, perhaps, have suited to the condition of those military ages. Yet the principles it went upon, were those of public liberty, and generous enough to give room for the extension of the system itself, when a change of circumstances should require it.—But your objection will best be answered by looking a little more distinctly into the nature of these tenures.

I took notice that the feudal system subjected the CHURCH more immediately to the civil power: and laid the foundation of many services and fruits of tenure to which the LAY-FEUDATARIES in the _Saxon_ times had been altogether strangers. It is probable that all the consequences of this alteration were not foreseen. Yet the churchmen were pretty quick-sighted. And the dislike, they had conceived of the new establishment, was the occasion of those struggles, which continued so long between the mitre and crown, and which are so famous more especially in the early parts of our history. The cause of these ecclesiastics was a bad one. For their aim was, as is rightly observed by the advocates for the prerogative, to assert an independency on the state; and for that purpose the pope was made a party in the dispute; by whose intrigues it was kept up in one shape or other till the total renunciation of the papal power. Thus far, however, the feudal constitution cannot be blamed. On the contrary, it was highly serviceable to the cause of liberty, as tending only to hold the ecclesiastic, in a due subordination to the civil, authority.