Chapter VIII (4)

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.

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.

It was so; and for this good service, I let them pass without any harsher reflection. Though the true secret is, perhaps, no more than this: Their main object was the church, of whose interests, as is fitting, we will allow them to be the most competent judges. And, as these inclined them, they have been, at different junctures, the defenders or oppressors of civil liberty.

BP. BURNET.

At _some_ junctures, it may be, they have. But, if you insist on so general a censure, I must intreat Mr. SOMERS, once more, to take upon him the defence of our order.

SIR J. MAYNARD.

All I intended by this instance, was, to shew the spirit of the _Saxon_ laws, which could excite the jealousy of the prince, and deserve, at such a season, the patronage of the clergy. It seems, however, for once, as if they had a little misconceived their true interests. For the distinction of the two judicatures, which occasioned their resentment, was, in the end, a great means of the hierarchical greatness and independency.

Matters continued on this footing during the three first of the _Norman_ reigns. The prince did his utmost to elude the authority of the _English_ laws; and the nation, on the other hand, laboured hard to confirm it. But a new scene was opened under King STEPHEN, by means of the _Justinian_ laws; which had lately been recovered in _Italy_, and became at once the fashionable study over all _Europe_. It is certain, that the Pandects were first brought amongst us in that reign; and that the reading of them was much favoured by Archbishop THEOBALD[131], under whose encouragement they were publicly read in _England_ by VACARIUS, within a short time after the famous IRNERIUS had opened his school at _Bologna_. There is something singular in the readiness with which this new system of law was embraced in these Western parts of _Europe_. But my friend Mr. SELDEN used to give a plausible account of it. It was, he said[132], in opposition to INNOCENT II, who was for obtruding on the Christian states the _decretals_, as laws; manifestly calculated for the destruction of the civil magistrate’s power. And what seems to authorize the opinion of my learned friend, is, that the popes very early took the alarm, and, by their decrees, forbad churchmen to teach the civil law: as appears from the constitution of ALEXANDER III, so early as the year 1163, in the council of TOURS; and afterwards from the famous decretal of SUPER-SPECULA by HONORIUS III, in 1219, in which the clergy of all denominations, seculars as well as regulars, were prohibited the study of it. And it was, doubtless, to defeat the mischief which the popes apprehended to themselves, from the credit of the imperial laws, that GRATIAN was encouraged, about the same time, to compose and publish his DECREE; which, it is even said[133], had the express approbation of Pope EUGENIUS.

Let us see, now, what reception this newly-recovered law, so severely dealt with by the pope, and so well entertained by the greatest part of _Europe_, had in _England_.

VACARIUS had continued to teach it for some time, in the archbishop’s palace at _Lambeth_, to great numbers, whom first, the novelty of the study, and then, the fashion of the age, had drawn about him. The fame of the teacher was high, and the new science had made a great progress, when on a sudden it received a severe check, and from a quarter whence one should not naturally expect it. In short, the king himself interdicted the study of it. Some have imagined, that this inhibition was owing to the spite he bore to archbishop THEOBALD. But the truer reason seems to be, that the canon law was first read by VACARIUS at the same time, and under colour of the imperial. I think we may collect thus much very clearly from JOHN OF SALISBURY, who acquaints us with this edict. For he considers it as an offence against the church, and expressly calls the prohibition, an IMPIETY[134].

It is true, the decretals of GRATIAN were not yet published. But Ivo had made a collection of them in the reign of HENRY I; and we may be sure that some code of this sort would privately go about amongst the clergy, from what was before observed of the pains taken by INNOCENT II, to propagate the decretals. We may further observe, that THEOBALD had been in high favour with INNOCENT; and that his school, at _Lambeth_, was opened immediately on his return from _Rome_, whither he had been to receive his pall from this pope, on his appointment to the see of _Canterbury_[135]. All which makes it probable, that STEPHEN’S displeasure was not so much at the civil, as _canon_ law, which he might well conclude had no friendly aspect on his sovereignty.

And we have the greater reason to believe that this was the fact, from observing what afterwards happened in the reign of HENRY III, when a prohibition of the same nature was again issued out against the teachers of the _Roman_ laws in _London_[136]. The true cause of the royal mandate is well known. GREGORY IX had just then published a new code of the decretals; which, like all former collections of this sort, was calculated to serve the papal interest, and depress the rights of princes.

However, these edicts, if we suppose them levelled against the civil law, had no effect, any more than those of the popes ALEXANDER and HONORIUS, before mentioned. For the imperial law, being generally well received by the princes of _Europe_, presently became a kind of _Jus gentium_. And the clergy, who aspired to power and dignities, either abroad or at home, studied it with an inconceivable rage; insomuch, that ROGER BACON tells us, that, in his time for forty years together, the seculars, who were the ecclesiastics employed in business, never published a single treatise in divinity[137].

The truth is, whatever shew the popes or our own princes might make, at times, of discountenancing the civil law, it was not the design of either absolutely and universally to suppress it. It was properly, not the civil, but the canon law, which was discountenanced by our kings. And the case of the popes was, that, when they found the imperial law opposed to the _common_, they were ready to favour it; when it was opposed to the _canon_, and brought that into neglect, they forbad ecclesiastics the study of it.

MR. SOMERS.

In the mean time the poor people, methinks, were in a fine condition, between two laws, the one founded on civil, and the other on ecclesiastical, tyranny. If either had prevailed, there had been an end of their liberties.

SIR J. MAYNARD.

Certainly their situation was very critical. Yet in the end it was precisely this situation that saved them. For betwixt these contentions of the crown and mitre, each endeavouring to extend its dominion over the other, the people, who were of course to be gained by either side in its distress, found means to preserve themselves from both.

To see how this happened, we must remember, what appears indeed from the two edicts of STEPHEN and HENRY, that the king himself was a bulwark betwixt them and the papal power. And when the king in his turn wanted to exalt his prerogative over all, the church very naturally took the alarm, as we saw in the case of WILLIAM’S separation of the two tribunals. And thus it happened, as NAT. BACON observes[138], “That many times the pope and the clergy became protectors of the people’s liberties, and kept them safe from the rage of kings.” The greatest danger was, when the two powers chanced to unite in one common design against them; as they did in their general inclination for the establishment of the civil law. But here the people had the courage always to defend themselves; and with that wisdom too, as demonstrates their attention to the cause of civil liberty, and the vigilance with which they guarded even its remotest outworks.

Of their steady and watchful conduct, in this respect, I shall mention some of the many memorable examples, that occur in our history.

I have said that from the time of STEPHEN, notwithstanding his famous edict, the imperial laws were the chief and favourite study of the clergy. They had good reason for applying themselves so closely to this science, and still further views than their own immediate advancement. They wanted to bring those laws into the civil courts, and to make them the standing rule of public administration; not merely from their good-will to the papal authority, which would naturally gain an advantage by this change, but for the sake of controlling the too princely barons, and in hopes, no doubt, that the imperial would in due time draw the canon laws into vogue along with them. Such, I think, were at least the secret designs of the ruling clergy; and they did not wait long before they endeavoured to put their project in execution. The plot was admirably laid, and with that deep policy as hath kept it, I believe, from being generally understood to this day.

The great men of that time were, we may be sure, too like the great men of every other, to be very scrupulous about the commission of those vices to which they were most inclined. The truth is, their profligacy was in proportion to their greatness and their ignorance. They indulged themselves in the most licentious amours, and even prided themselves in this licence. The good churchmen, no doubt, lamented this corruption of manners; but, as they could not reform, they resolved at least to draw some emolument to themselves from it. The castles of the barons, they saw, were full of bastards. Nay, the courtesy of that time had so far dignified their vices, that the very same was had in honour. EGO GULIELMUS BASTARDUS, is even the preamble to one of WILLIAM the First’s charters.

Yet, as respectable as it was become, there was one unlucky check on this favourite indulgence: and this, with the barons leave, the considerate bishops would presently take off. Subsequent marriage, by the imperial as well as canon laws, legitimated bastards, as to succession; whereas the common law kept them eternally in their state of bastardy. It is not to be doubted, but the barons would be sensible enough of this restraint. They earnestly wished to get rid of it. And could any thing bid so fair to recommend the imperial law to their good liking, as the tender of it for so desirable a purpose? At a parliament, therefore, under HENRY III[139], _Rogaverunt omnes episcopi, ut consentirent quod nati ante matrimonium essent legitimi_. What think ye now of this general supplication of the hierarchy? What could the barons do but comply with it, especially as it was so kindly intended for their relief, and the proposal was even made with a delicacy that might enable them to come into it with a good grace, and without the shame of seeming to desire it? All this is very true. Yet the answer of the virtuous barons is as follows: _Omnes comites et barons unâ voce responderunt_, QUOD NOLUMUS LEGES ANGLIÆ MUTARI.

We see then what stuck with them. These barons, as licentious as they were, preferred their liberty to their pleasure. The bishops, they knew, as partisans of the pope, were for subjecting the nation to the imperial and papal laws. They offered, indeed, to begin with a circumstance very much to their taste. But if they accepted the benefit of them in one instance, with what decency could they object to them in others? They determined therefore to be consistent. They rejected a proposition, most agreeable in itself, lest their acceptance of it should make way for the introduction of foreign laws; whose very genius and essence, they well knew, was arbitrary, despotic power. Their answer speaks their sense of this matter, NOLUMUS LEGES ANGLIÆ MUTARI. They had nothing to object to the proposal itself. But they were afraid for the constitution.

MR. SOMERS.

I doubt, Sir JOHN, my lord of SALISBURY will bring a fresh complaint against you, for this liberty with the bishops. But I, who shall not be thought wanting in a due honour for that bench, must needs confess myself much pleased, as well with the novelty, as justice of this comment. I have frequently considered this famous reply of the old barons. But I did not see to the bottom of the contrivance. Their aversion to the imperial laws, as you say, must have been very great, to have put them on their guard against so inviting a proposal.

BP. BURNET.

One thing, however, is forgotten or dissembled in this account, that the law of JUSTINIAN, which allows the privilege of legitimation to subsequent marriage, is grounded on some reasons that might, perhaps, recommend it to the judgment, as well as interest of the old prelates. Besides, they doubtless found themselves much distressed by the contrariety of the two laws in this instance. For the ground of their motion, as I remember, was, _Quod esset secundum communem formam ecclesiæ_. But, to deal ingenuously with you, Sir JOHN, you have dressed up your hypothesis very plausibly. And I, who am no advocate for the civil or ecclesiastical laws, in this or any instance where they clash with those of my country, can allow your raillery on HENRY’S good bishops, if it were only that I see it makes so much for your general argument.

SIR J. MAYNARD.

Your lordship may the rather excuse this liberty with the _church_, as I propose, in due time, to deal as freely with WESTMINSTER-HALL; a similar plot, which I shall have occasion to mention presently, having been formed against the ancient constitution by the men of our profession.

MR. SOMERS.

In the mean time, Sir JOHN, you must give me leave, in quality of advocate for the church, to observe one thing, that does the churchmen honour. It is, that, in these attempts on the constitution, the judges and great officers of the realm, who in those times were of the clergy, constantly took the side of the _English_ laws; as my Lord COKE himself, I remember, takes notice in his commentary on this statute of MERTON.

SIR J. MAYNARD.

I believe the observation is very just. But I should incline to impute this integrity, not to the influence of church principles, but those of the common law, and so turn your compliment to the honour of our profession instead of theirs, if it were not too clear in fact that every profession, in its turn, hath been liable to this charge of corruption.

But I was going on with my proofs of the national aversion to the imperial law.

The next shall be taken from that famous dispute concerning the succession to the crown of _Scotland_ in the reign of EDWARD I. For a question arising about the kind of law by which the controversy should be decided, and it being especially debated, whether the _Cæsarean_ law, as a sort of _jus gentium_, ought not in such a cause to have the preference to the law of _England_; it was then unanimously determined by the great council of NORHAM, that the authority of the _Cæsarean_ law should by no means be admitted; NE INDE MAJESTATIS ANGLICANÆ JURI FIERET DETRIMENTUM[140].

This determination was public, and given on a very solemn occasion. And in general we may observe, that at the junctures when the state hath been most jealous of its liberty and honour, it hath declared the loudest against the _imperial laws_: as in the WONDER-WORKING parliament under RICHARD II, when the duke of _Gloucester_ accused the archbishop of _York_, the duke of _Ireland_, and other creatures of the king, of high treason. The charge was so fully proved, that the court had no other way of diverting the storm, than by pretending an irregularity in the forms of procedure. To this end the lawyers were consulted with, or more properly directed. I will disguise nothing. They descended so much from the dignity of their profession, as to act in perfect subserviency to the views of the court; and therefore gave it as their opinion, that the proceedings against the lords were of no validity, as being contrary to the forms prescribed by the _civil law_. The barons took themselves to be insulted by these shifts of the lawyers. They insisted that the proceedings were agreeable to their own customs, and declared roundly that they would never suffer _England_ to be governed by the _Roman_ civil law[141].

What think ye now of these examples? Are they not a proof that the spirit of liberty ran high in those times, when neither the intrigues of churchmen nor the chicane of lawyers could put a stop to it? It seems as if no direct attempts on the constitution could have been made with the least appearance of success; and that therefore the abettors of arbitrary power were obliged to work their way obliquely, by contriving methods for the introduction of a foreign law.

In this project they had many advantages, which nothing but an unwearied zeal in the cause of liberty could have possibly counteracted. From the reign of STEPHEN to that of EDWARD III, that is, for the space of near 200 years, the _Roman_ law had been in great credit[142]. All the learning of the times was in the clergy, and that learning was little more than the imperial and canon laws. The fact is so certain, that some of the clergy themselves, when in an ill temper, or off their guard, complain of it in the strongest terms. And to see the height to which this humour was carried, not the seculars only who intended to rise by them, but the very monks in their cells studied nothing but these laws[143]. To complete the danger, the magistracies and great offices of the kingdom were filled with churchmen[144].

Who would expect, now, with those advantages, but that the _Roman_ law would have forced its way into our civil courts? It did indeed insinuate itself there as it were by stealth, but could never appear with any face of authority. The only service, that would be accepted from it, was that of illustration only in the course of their pleadings, whilst the lawyers quoted occasionally from the INSTITUTES, just as they might have done from any other ancient author[145]. Yet, so long as the churchmen presided in the courts of justice, this intruder was to be respected; and it is pleasant to observe the wire-drawing of some of our ablest lawyers, in their endeavours to make the policy of _England_ speak the language of _Rome_.

MR. SELDEN’S dissertation on FLETA[146], which lies open before me, affords a curious instance. The civil law says, “Populus ei [Cæsari] et in eum omne suum imperium et potestatem conferat;” meaning by _people_, the _Roman_ people, and so establishing the despotic rule of the prince. But BRACTON took advantage of the ambiguity, to establish that maxim of a free government, “That all dominion arises from the people.” This, you will say, was good management. But what follows is still better. “Nihil aliud, says he, potest rex in terris, cum sit Dei minister et vicarius, nisi quod JURE potest. NEC OBSTAT quod dicitur, QUOD PRINCIPI PLACET LEGIS HABET VIGOREM; quia sequitur in fine legis, CUM LEGE REGIA QUÆ DE IMPERIO EJUS LATA EST; id est, non quicquid de voluntate regis temerè præsumptum est, sed quod consilio magistratuum suorum, rege auctoritatem præstante, et habitâ super hoc deliberatione et tractatu, rectè fuerit definitum.” Thus far old BRACTON; who is religiously followed in the same gloss by THORNTON, and the author of FLETA. But what! you will say, this is an exact description of the present constitution. It is so, and therefore certainly not to be found in the civil law. To confess the truth, these venerable sages are playing tricks with us. The whole is a premeditated falsification, or, to say it softer, a licentious commentary, for the sake of _English_ liberty. The words in the PANDECTS and INSTITUTIONS are these; “QUOD PRINCIPI PLACUIT, LEGIS HABET VIGOREM, UTPOTE CUM LEGE REGIA, QUÆ DE IMPERIO EJUS LATA EST, POPULUS EI ET IN EUM OMNE SUUM IMPERIUM ET POTESTATEM CONFERAT.”

My honest friend, in mentioning this extraordinary circumstance, says, one cannot consider it _sine stupore_. He observes, that these lawyers did not quote the Pandects by hearsay, but had copies of them; and therefore adds (for I will read on) “Unde magis mirandum quânam ratione evenerit, ut non solùm ipse, adeò judiciis forensibus clarus, et (si Biographis scriptorum nostratium fides) professor juris utriusque Oxoniensis, verùm etiam THORNTONIUS juris aliàs peritissimus, et FLETÆ author, adeò diversam lectionem sensumque diversum atque interpretibus aliis universis adeò alienum in illustrissimo juris Cæsarei loco explicando tam fidentèr admiserint.” The difficulty, you see, increases upon him. But we shall easily remove it by observing, that the Cæsarean laws, though they had no proper authority with us, yet were much complimented in those times, and were to be treated on all occasions with ceremony. And therefore those lawyers that lived under and wanted to support a free constitution, saw there was no way of serving their cause so effectually, as by pretending to find it in the _Roman institutes_.

MR. SOMERS.