Part 14

The same thing cannot be said of the other instance, I mean the _fruits of tenure_, to which the lay-fees were subjected by this system. For however reasonable, or rather necessary, those _fruits_ might be, in a feudal sense, and for the end to which the feudal establishment was directed, yet, as the _measure_ of these fruits, as well as the manner of exacting them, was in a good degree arbitrary, and too much left to the discretion of the sovereign, the practice, in this respect, was soon found by the tenants in chief to be an intolerable grievance. Hence that other contest, so memorable in our history, betwixt the king and his barons: in which the former, under the colour of maintaining his feudal rights, laboured to usurp an absolute dominion over the persons and properties of his vassals; and the latter, impatient of the feudal burdens, or rather of the king’s arbitrary exactions under pretence of them, endeavoured to redeem themselves from so manifest an oppression.

It is not to be denied, that, in the heat of this contest, the barons sometimes carried their pretensions still further, and laboured in their turn to usurp on the crown, in revenge for the oppressions they had felt from it. However, their first contentions were only for a mitigation of the feudal system. It was not the character of the _Norman_ princes to come easily into any project that was likely to give the least check to their pretensions. Yet the grievances, complained of, were in part removed, in part moderated, by HENRY the First’s and many other successive charters: though the last blow was not given to these feudal servitudes till after the Restoration, when such of them as remained, and were found prejudicial to the liberty of the subject, were finally abolished.

Thus we see that ONE essential defect in the feudal policy, considered not as a military, but civil institution, was, the too great power it gave the sovereign in the arbitrary impositions, implied in this tenure. ANOTHER was accidental. It arose from the disproportionate allotment of those feuds, which gave the greater barons an ascendant over the prince, and was equally unfavourable to the cause of liberty. For the bounty of the duke of NORMANDY, in his distribution of the forfeited estates and signiories to his principal officers, had been so immense[125], that their share of influence in the state was excessive, and intrenched too much on the independency of the crown and the freedom of the people. And this undue poize in the constitution, as well as the tyranny of our kings, occasioned the long continuance of those civil wars, which for many ages harrassed and distressed the nation. The evil, however, in the end, brought on its own remedy. For these princely houses being much weakened in the course of the quarrel, HENRY VII. succeeded, at length, to the peaceable possession of the crown. And by the policy of this prince, and that of his successor, the barons were brought so low as to be quite disabled from giving any disturbance to the crown for the future.

It appears then that TWO great defects in the feudal plan of government, as settled amongst us, were, at length, taken away. But a THIRD, and the greatest defect of all, was the narrowness of the plan itself, I mean when considered as a system of CIVIL polity; for, in its primary martial intention, it was perfectly unexceptionable.

To explain this matter, which is of the highest importance, and will furnish a direct answer to Mr. SOMERS’ objection, we are to remember that in the old feudal policy the king’s barons, that is, such as held _in capite_ of the crown by barony or knight’s service, were the king’s, or rather the kingdom’s, great council. No public concerns could be regularly transacted, without their consent[126]; though the lesser barons, or tenants by knight’s service, did not indeed so constantly appear in the king’s court, as the greater barons; and though the public business was sometimes even left to the ordinary attendants on the king, most of them churchmen. It appears that, towards the end of the Conqueror’s reign, the number of these tenants in chief was about 700; who, as the whole property of the kingdom was, in effect, in their power, may be thought a no unfit representative (though this be no proper _feudal_ idea) of the whole nation. It was so, perhaps, in those rude and warlike times, when the strength of the nation lay entirely in the soldiery; that is, in those who held by military services, either immediately of the crown, or of the mesne lords. For the remainder of the people, whom they called tenants in socage, were of small account; being considered only in the light of servants, and contributing no otherwise to the national support than by their cultivation of the soil, which left their masters at leisure to attend with less distraction on their military services. At least, it was perfectly in the genius of the feudal, that is, military constitutions, to have little regard for any but the men of arms; and, as every other occupation would of course be accounted base and ignoble, it is not to be wondered that such a difference was made between the condition of _prædial_ and _military_ tenures.

However, a policy, that excluded such numbers from the rank and privileges of citizens, was so far a defective one. And this defect would become more sensible every day, in proportion to the growth of arts, the augmentation of commerce, and the security the nation found itself in from foreign dangers. The ancient military establishment would now be thought unjust, when the exclusive privileges of the swordsmen were no longer supported by the necessities of the public, and when the wealth of the nation made so great a part of the force of it. Hence arose an important change in the legislature of the kingdom, which was much enlarged beyond its former limits. But this was done gradually; and was more properly an extension than violation of the ancient system.

First, the number of tenants in chief, or the king’s freeholders, was much increased by various causes, but chiefly by the alienation which the greater barons made of their fees. Such alienation, though under some restraint, seems to have been generally permitted in the _Norman_ feuds; I mean, till MAGNA CHARTA and some subsequent statutes laid it under particular limitations. But, whether the practice were regular or not, it certainly prevailed from the earliest times; especially on some more extraordinary occasions. Thus, when the fashionable madness of the CROISADES had involved the greater barons in immense debts, in order to discharge the expences of these expeditions, they alienated their fees, and even dismembered them; that is, they parted with their right in them, and made them over in small parcels to others, to hold of the superior lord. And what these barons did from necessity, the crown itself did, out of policy: for the _Norman_ princes, growing sensible of the inconvenience of making their vassals too great, disposed of such estates of their barons as fell in to them by forfeiture, and were not a few, in the same manner. The consequence of all this was, that, in process of time, the lesser military tenants _in capite_ multiplied exceedingly. And, as many of them were poor, and unequal to a personal attendance in the court of their lord, or in the common council of the kingdom (where of right and duty they were to pay their attendance), they were willing, and it was found convenient to give them leave, to appear in the way of _representation_. And this was the origin of what we now call THE KNIGHTS OF THE SHIRES; who, in those times, were appointed to represent, not all the free-holders of counties, but the lesser tenants of the crown only. For these not attending in person, would otherwise have had no place in the king’s council.

The rise of CITIZENS AND BURGESSES, that is, representatives of the cities and trading towns, must be accounted for somewhat differently. These had originally been in the jurisdiction, and made part of the demesnes, of the king and his great lords. The reason of which appears from what I observed of the genius of the feudal policy. For, little account being had of any but martial men, and trade being not only dishonourable, but almost unknown in those ages; the lower people, who lived together in towns, most of them small and inconsiderable, were left in a state of subjection to the crown, or some other of the barons, and exposed to their arbitrary impositions and talliages.

But this condition of burghers, as it sprang from the military genius of the nation, could only be supported by it. When that declined therefore, and, instead of a people of soldiers, the commercial spirit prevailed, and filled our towns with rich traders and merchants, it was no longer reasonable, nor was it the interest of the crown, that these communities and bodies of men should be so little regarded. On the contrary, a large share of the public burdens being laid upon them, and the frequent necessities of the crown, especially in foreign wars, or in the king’s contentions with his barons, requiring him to have recourse to their purses, it was naturally brought about that those, as well as the tenants _in capite_, should, in time, be admitted to have a share in the public councils.

I do not stay to trace the steps of this change. It is enough to say, that arose insensibly and naturally out of the growing wealth and consequence of the trading towns; the convenience the king found in drawing considerable sums from them, with greater ease to himself, and less offence to the people; and, perhaps, from the view of lessening by their means the exorbitant power and influence of the barons.

From these, or the like reasons, the great towns and cities, that before were royal demesnes, part of the king’s private patrimony, and talliable by him at pleasure, were allowed to appear in his council by their deputies, to treat with him of the proportion of taxes to be raised on them, and, in a word, to be considered it the same light as the other members of that great assembly.

I do not inquire when this great alteration was first made. I find it subsisting at least under EDWARD III. And from that time, there is no dispute but that the legislature, which was originally composed of the sovereign and his feudal tenants, included also the representatives of the counties, and of the royal towns and cities. To speak in our modern style, the HOUSE OF COMMONS was, now, formed. And by this addition, the glorious edifice of _English_ liberty was completed.

I am sensible, I must have wearied you with this deduction, which can be no secret to either of you. But it was of importance to shew, that the constitution of _England_, as laid in the feudal tenures, was essentially free; and that the very changes it hath undergone, were the natural and almost unavoidable effects of those tenures. So that what the adversaries of liberty object to us, as usurpations on the regal prerogative, are now seen to be either the proper result of the feudal establishment, or the most just and necessary amendments of it.

BP. BURNET.

I have waited with much pleasure for this conclusion, which entirely discredits the notion of an absolute, despotic government. I will not take upon me to answer for Mr. _Somers_, whose great knowledge in the laws and history of the kingdom enables him to see further into the subject than I do; but to me nothing appears more natural or probable than this account of the rise and progress of the _English_ monarchy. One difficulty, in particular, which seemed to embarrass this inquiry, you have entirely removed, by shewing how, from the aristocratical form which prevailed in the earlier times, the more free and popular one of our days hath gradually taken place, and that without any violence to the antient constitution[127].

MR. SOMERS.

At least, my lord, with so little, that we may, perhaps, apply to the _English_ government what the naturalists observe of the HUMAN BODY[128]; that, when it arrives at its full growth, it does not perhaps retain a single particle of the matter it originally set out with; yet the alteration hath been made so gradually and imperceptibly, that the system is accounted the same under all changes. Just so, I think, we seem to have shaken off the constituent parts of the FEUDAL CONSTITUTION; but, liberty having been always the informing principle, time and experience have rather completed the old system, than created a new one: and we may account the present and _Norman_ establishment all one, by the same rule as we say that HERCULES, when he became the deliverer of oppressed nations, was still the same with him who had strangled serpents in his cradle.

SIR. J. MAYNARD.

I know not what fanciful similes your younger wit may delight in. I content myself with observing, that the two great points, which they, who deny the liberty of the subject, love to inculcate, and on which the plausibility of all their reasonings depends, are, THE SLAVISH NATURE OF THE FEUDAL CONSTITUTION, and THE LATE RISE OF THE HOUSE OF COMMONS. And I have taken up your time to small purpose, if it doth not now appear, that the _former_ of these notions is false, and the _latter_ impertinent. If the learned inquirers into this subject had considered that the question is concerning the freedom itself of our constitution, and not the most convenient form under which it may be administered, they must have seen that, the feudal law, though it narrowed the system of liberty, was founded in it; that the spirit of freedom is as vital in this form, and the principles it goes upon as solid, as in the best-formed republic; and that _villanage_ concludes no more against the _feudal_, than _slavery_ against the _Greek_ or _Roman_, constitutions.

MR. SOMERS.

That is, Sir JOHN, you make _liberty_ to have been the essence of all THREE; though, to the perfection of an equal commonwealth, you suppose it should have been further spread out and dilated: as they say of _frankincense_ (if you can forgive another allusion), which, when lying in the lump, is of no great use or pleasure; but, when properly diffused, is the sweetest of all odours. But you was going on with the application of your principles.

SIR J. MAYNARD.

I was going to say that, as many have been misled by wrong notions of the _feudal tenures_, others had erred as widely in their reasonings on _the late origin of the lower house of parliament_. How have we heard some men triumph, in dating it no higher than the reign of EDWARD III? Let the fact be admitted. What follows? That this house is an usurpation on the prerogative? Nothing less. It was gradually brought forth by time, and grew up under the favour and good liking of our princes[129]. The constitution itself supposed the men of greatest consequence in the commonwealth to have a seat in the national councils. Trade and agriculture had advanced vast numbers into consequence, that before were of small account in the kingdom. The public consideration was increased by their wealth, and the public necessities relieved by it. Were these to remain for ever excluded from the king’s councils? or was not that council, which had liberty for its object, to widen and expand itself in order to receive them? It did, in fact, receive them with open arms; and, in so doing, conducted itself on the very principles of the old feudal policy.

In short, the _feudal constitution_, different from all others that human policy is acquainted with, was of such a make, that it readily gave way, and fitted itself to the varying situations of society: narrow and contracted, when the public interest required a close connexion between the governor and the governed; large and capacious, when the same interest required that connexion to be loosened. Just as the skin (if you will needs have a comparison), the natural cincture of the body, confines the young limbs with sufficient tightness, and yet widens in proportion to their growth, so as to let the different parts of the body play with ease, and obtain their full size and dimensions. Whereas the other policies, that have obtained in the world, may be compared to those artificial coverings, which, being calculated only for one age and size; grow troublesome and insupportable in any other; and yet cannot, like these, be thrown off and supplied by such as are more suitable and convenient; but are worn for life, though with constant, or rather increasing, uneasiness.

This then being the peculiar prerogative of the feudal policy, I think we may say with great truth, not that the House of Commons violated the constitution, but, on the contrary, that the constitution itself demanded, or rather generated, the House of Commons.

So that I cannot by any means commend the zeal which some have shewn in seeking the origin of this house in the _British_ or even _Saxon_ annals. Their aim was, to serve the cause of liberty; but, it must be owned, at the expence of truth, and, as we now perceive, without the least necessity.

BP. BURNET.

It hath happened then in this, as in so many other instances, that an excellent cause hath suffered by the ill judgment of its defenders. But, when truth itself had been disgraced by one sort of men in being employed by them to the worst purposes, is it to be wondered that others should not acknowledge her in such hands, but be willing to look out for her in better company?

SIR J. MAYNARD.

Let us say, my lord, they should have acknowledged her in whatever company she was found; and the rather, as ill-applied truths are seen to be full as serviceable to a bad cause, as downright falsehoods. Besides, this conduct had not only been fairer, but more politic. For when so manifest a truth was rejected, it was but natural to suspect foul play in the rest, and that none but a bad cause could want to be supported by so disingenuous a management.

MR. SOMERS.

I think so, Sir JOHN; and there is this further use of such candor, that it cuts off at once the necessity of long and laboured researches into the dark parts of our history; and so not only shortens the debate, but renders it much more intelligible to the people.

SIR J. MAYNARD.

I was aware of that advantage, and am therefore not displeased that truth allowed me to make use of it.—But to resume the main argument; for I have not yet done with my evidence for the freedom of our excellent constitution:—It seemed of moment to shew, from the nature and consequences of the _Norman_ settlement, that the _English_ government was essentially free. But, because the freest form of government may be tamely given up and surrendered into the hands of a master, I hold it of consequence to prove, that the _English_ spirit hath always been answerable to the constitution, and that even the most insidious attempts on their liberties have never failed to awaken the resentment of our generous forefathers. In a word, I would shew that the jealously, with which the _English_ have ever guarded the national freedom, is at once a convincing testimony of their _right_, and of their constant _possession_ of it.

And though I might illustrate this argument by many other instances, I chuse to insist only on ONE, THEIR PERPETUAL OPPOSITION TO THE CIVIL AND CANON LAWS; which, at various times and for their several ends, the crown and church have been solicitous to obtrude on the people.

To open the way to this illustration, let it be observed that, from the time of HONORIUS, that is, when the _Roman_ authority ceased amongst us, the _Saxon_ institutions, incorporated with the old _British_ customs, were the only standing laws of the kingdom. These had been collected and formed into a sort of digest by EDWARD the Confessor; and so great was the nation’s attachment to them, that WILLIAM himself was obliged to ratify them, at the same time that the feudal law itself was enacted. And afterwards, on any attempt to innovate on those laws, we hear of a general outcry and dissatisfaction among the people: which jealousy of theirs was not without good grounds; as we may see from an affair that happened in the Conqueror’s own reign, and serves to illustrate the policy of this monarch.

It had been an old custom, continued through the _Saxon_ times, for the bishops and sheriffs to sit together in judicature in the county courts. This had been found a very convenient practice; for the presence of the churchmen gave a sanction to the determinations of the temporal courts, and drew an extraordinary reverence towards them from the people. Yet we find it abolished by the Conqueror; who, in a rescript to the bishop of _Lincoln_, ordained that, for the future, the bishops and aldermen of the shires should have separate courts and separate jurisdictions. The pretence for this alteration was the distinct nature of the two judicatures, and the desire of maintaining a strict conformity to the canons of the church. The real design was much deeper. There is no question but WILLIAM’S inclinations, at least, were for arbitrary government; in which project his _Norman_ lawyers, it was hoped, might be of good use to him. But there was a great obstacle in his way. The churchmen of those times had incomparably the best knowledge of the _Saxon_ laws. It matters not, whether those churchmen were _Normans_, or not. They were equally devoted, as I observed before, to the _Saxon_ laws, with the _English_; as favouring that independency, they affected, on the civil power. Besides, in the Confessor’s time, many and perhaps the greatest of the churchmen had been _Normans_; so that the study of the _Saxon_ laws, from the interest they promised themselves in them, was grown familiar to the rising ecclesiastics of that country. Hence, as I said, the churchmen, though _Normans_, were well instructed in the spirit and genius of the _Saxon_ laws; and it was not easy for the king’s glossers to interpret them to their own mind, whilst the bishops were at hand to refute and rectify their comments.

Besides, the truth is (and my lord of SALISBURY will not be displeased with me for telling it), the ecclesiastics of that time were much indevoted to the court. They considered the king as the wickedest of all tyrants. He had brought them into subjection by their baronies, and had even set the pope himself at defiance. In this state of things, there was no hope of engaging the clergy in his plot. But when a separation of the two tribunals was made, and the civil courts were solely administered by his own creatures, the laws, it was thought, would speak what language he pleased to require of them.

Such appears to have been the design of this prince in his famous distinction of the ecclesiastic and temporal courts. It was so artfully laid, and so well coloured, that the laity seem to have taken no umbrage at it. But the clergy saw his drift; and their zeal for the ancient laws, as well as their resentments, put them upon contriving methods to counteract it. They hit upon a very natural and effectual one. In a word, they all turned common lawyers; and so found means of introducing themselves into the civil courts. This expedient succeeded so well, and was so generally relished, that the clergy to a man almost in the next reign were become professors of the common law; NULLUS CLERICUS NISI CAUSIDICUS, as WILLIAM of _Malmesbury_ takes care to inform us[130].

BP. BURNET.

Whatever their motive might be, the churchmen, I perceive, interposed very seasonably in the support of our civil liberties. It was a generous kind of revenge, methinks, to repay the king’s tyranny over the church by vindicating the authority of the _English_ laws.

SIR J. MAYNARD.