The main difficulty would be with the churchmen; who (though the greatest, and most of them were, perhaps,Normanstoo) were well acquainted with theSaxonlaws, and for special reasons were much devoted to them. Theywere sensible that their possessions had been held, in theSaxontimes, inFranc-almoign: a sort of tenure, they were not forward to give up for this offeuds. ’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 law123. 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 ofNormandy, than originally planted by him in this kingdom: that the alteration made in it was favourable to the public interest; and that ourSaxonliberties 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-interest124of both parties, and thebenefit 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.â€
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 theNormanConqueror. 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.Freedomis a term of much latitude. TheNormanconstitution 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 absolutemonarchy, yet it is indulgent enough to absolutearistocracy. And the notion of each is equally remote from what we conceive of trueEnglishliberty.
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 theCHURCHmore immediately to the civil power: and laid the foundation of many services and fruits of tenure to which theLAY-FEUDATARIESin theSaxontimes 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 conceivedof 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 thefruits of tenure, to which the lay-fees were subjected by this system. For however reasonable, or rather necessary, thosefruitsmight be, in a feudal sense, and for the end to which the feudal establishment was directed, yet, as themeasureof 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 inchief 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 theNormanprinces 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, byHenrythe 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 thatONEessential 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.Anotherwas 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 ofNormandy, in his distribution of the forfeited estates and signiories to his principal officers, had been so immense125, 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 distressedthe 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 thatTWOgreat defects in the feudal plan of government, as settled amongst us, were, at length, taken away. But aTHIRD, and the greatest defect of all, was the narrowness of the plan itself, I mean when considered as a system ofCIVILpolity; 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 heldin capiteof the crown by barony or knight’s service, were the king’s, or rather the kingdom’s, great council. No public concerns could be regularlytransacted, without their consent126; 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 properfeudalidea) 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 lessdistraction 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 ofprædialandmilitarytenures.
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 theNormanfeuds; I mean, tillMagna Chartaand 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 theCroisadeshad 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 theNormanprinces, 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 tenantsin capitemultiplied exceedingly. And, as many of them were poor, and unequal to a personal attendancein 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 ofrepresentation. And this was the origin of what we now callthe 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 ofCitizens 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 tenantsin 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 underEdward 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, theHouse of Commonswas, now, formed. And by this addition, the glorious edifice ofEnglishliberty 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 ofEngland, 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 thosetenures. 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.
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 theEnglishmonarchy. 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 constitution127.
At least, my lord, with so little, that we may, perhaps, apply to theEnglishgovernment what the naturalists observe of theHUMAN BODY128; 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 theFEUDAL 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 andNormanestablishment all one, by the same rule as we say thatHercules, when he became the deliverer of oppressed nations, was still the same with him who had strangled serpents in his cradle.
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, andthe late rise of the House of Commons. And I have taken up your time to small purpose, if it doth not now appear, that theformerof these notions is false, and thelatterimpertinent. 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 thatvillanageconcludes no more against thefeudal, thanslaveryagainst theGreekorRoman, constitutions.
That is, SirJohn, you makelibertyto have been the essence of allTHREE; though, to the perfection of an equal commonwealth, you suppose it should have been further spread out and dilated: as they say offrankincense(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.
I was going to say that, as many have been misled by wrong notions of thefeudal tenures, others had erred as widely in their reasonings onthe late origin of the lower house of parliament. How have we heard some men triumph, in dating it no higher than the reign ofEdward 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 ourprinces129. 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, thefeudal 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; largeand 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 theBritishor evenSaxonannals. 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.
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?
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.
I think so, SirJohn; 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.
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 theNormansettlement, that theEnglishgovernment 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 theEnglishspirit 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 theEnglishhave ever guarded the national freedom, is at once a convincing testimony of theirright, and of their constantpossessionof it.
And though I might illustrate this argument by many other instances, I chuse to insist only onONE, 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 ofHonorius, that is, when theRomanauthority ceased amongst us, theSaxoninstitutions, incorporated with the oldBritishcustoms, were the only standing laws of the kingdom. These had been collected and formed into a sort of digest byEdwardthe Confessor; and so great was the nation’s attachment to them, thatWilliamhimself was obliged to ratify them, at the same time that the feudal law itself was enacted. And afterwards, on any attempt toinnovate 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 theSaxontimes, 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 ofLincoln, 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 butWilliam’sinclinations, at least, were for arbitrary government; in which project hisNormanlawyers, it was hoped, might be of good use to him. But there was a greatobstacle in his way. The churchmen of those times had incomparably the best knowledge of theSaxonlaws. It matters not, whether those churchmen wereNormans, or not. They were equally devoted, as I observed before, to theSaxonlaws, with theEnglish; 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 beenNormans; so that the study of theSaxonlaws, from the interest they promised themselves in them, was grown familiar to the rising ecclesiastics of that country. Hence, as I said, the churchmen, thoughNormans, were well instructed in the spirit and genius of theSaxonlaws; 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 ofSalisburywill 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 aseparation 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, asWilliamofMalmesburytakes care to inform us130.
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 theEnglishlaws.
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.
Atsomejunctures, 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.
All I intended by this instance, was, to shew the spirit of theSaxonlaws, 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 theNormanreigns. The prince did his utmost to elude the authority of theEnglishlaws; and the nation, on the other hand, laboured hard to confirm it. But a new scene was opened under KingStephen, by means of theJustinianlaws; which had lately been recovered inItaly, and became at once the fashionable study over allEurope. It is certain, that the Pandects were first brought amongst us in that reign; and that the reading of them was much favoured by ArchbishopTheobald131, under whose encouragement theywere publicly read inEnglandbyVacarius, within a short time after the famousIrneriushad opened his school atBologna. There is something singular in the readiness with which this new system of law was embraced in these Western parts ofEurope. But my friend Mr.Seldenused to give a plausible account of it. It was, he said132, in opposition toInnocent II, who was for obtruding on the Christian states thedecretals, 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 ofAlexander III, so early as the year 1163, in the council ofTours; and afterwards from the famous decretal ofSuper-speculabyHonorius 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, thatGratianwas encouraged, about the same time, to compose and publish hisDecree; which, it is evensaid133, had the express approbation of PopeEugenius.
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 ofEurope, had inEngland.
Vacariushad continued to teach it for some time, in the archbishop’s palace atLambeth, 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 archbishopTheobald. But the truer reason seems to be, that the canon law was first read byVacariusat the same time, and under colour of the imperial. I think we may collect thus much very clearly fromJohn of Salisbury, who acquaints us with this edict. For he considers it as anoffence against the church, and expressly calls the prohibition, anIMPIETY134.
It is true, the decretals ofGratianwere not yet published. But Ivo had made a collection of them in the reign ofHenry 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 byInnocent II, to propagate the decretals. We may further observe, thatTheobaldhad been in high favour withInnocent; and that his school, atLambeth, was opened immediately on his return fromRome, whither he had been to receive his pall from this pope, on his appointment to the see ofCanterbury135. All which makes it probable, thatStephen’sdispleasure was not so much at the civil, ascanonlaw, 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 ofHenry III, when a prohibition of the same nature was again issued out against the teachers of theRomanlaws inLondon136. The true cause of the royal mandate is well known.Gregory IXhad 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 popesAlexanderandHonorius, before mentioned. For the imperial law, being generally well received by the princes ofEurope, presently became a kind ofJus gentium. And the clergy, who aspired to power and dignities, either abroad or at home, studied it with an inconceivable rage; insomuch, thatRoger Bacontells us, that, in his time for forty years together, the seculars, who were the ecclesiastics employed in business, never published a single treatise in divinity137.
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, butthe canon law, which was discountenanced by our kings. And the case of the popes was, that, when they found the imperial law opposed to thecommon, they were ready to favour it; when it was opposed to thecanon, and brought that into neglect, they forbad ecclesiastics the study of it.
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.
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 ofStephenandHenry, 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 ofWilliam’sseparation of the two tribunals. And thus it happened, asNat. Baconobserves138, “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 ofStephen, 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 proportionto 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 ofWilliamthe 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, underHenry III139,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 acceptanceof 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.
I doubt, SirJohn, my lord ofSalisburywill 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.
One thing, however, is forgotten or dissembled in this account, that the law ofJustinian,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, SirJohn, 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 onHenry’sgood bishops, if it were only that I see it makes so much for your general argument.
Your lordship may the rather excuse this liberty with thechurch, as I propose, in due time, to deal as freely withWestminster-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.
In the mean time, SirJohn, 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 theEnglishlaws; as my LordCokehimself, I remember, takes notice in his commentary on this statute ofMerton.
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 ofScotlandin the reign ofEdward I. For a question arising about the kind of law by which the controversy should be decided, and it being especially debated, whether theCæsareanlaw, as a sort ofjus gentium, ought not in such a cause to have the preference to the law ofEngland; it was then unanimously determined by the great council ofNorham, that the authority of theCæsareanlaw should by no means be admitted;ne inde majestatis Anglicanæ juri fieret detrimentum140.
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 theimperial laws: as in theWONDER-WORKINGparliament underRichard II, when the duke ofGloucesteraccused the archbishop ofYork, the duke ofIreland, 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 thecivil 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 sufferEnglandto be governed by theRomancivil law141.
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 ofStephento that ofEdward III, that is, for the space of near 200 years, theRomanlaw had been in great credit142. 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 laws143. To complete the danger, the magistracies and great offices of the kingdom were filled with churchmen144.
Who would expect, now, with those advantages, but that theRomanlaw 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 beaccepted from it, was that of illustration only in the course of their pleadings, whilst the lawyers quoted occasionally from theInstitutes, just as they might have done from any other ancient author145. 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 ofEnglandspeak the language ofRome.
Mr. Selden’sdissertation onFleta146, 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 bypeople, theRomanpeople, and so establishing the despotic rule of the prince. ButBractontook 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 obstatquod dicitur,QUOD PRINCIPI PLACET LEGIS HABET VIGOREM; quia sequitur in fine legis,CUM LEGE REGIA QUÆDE 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 oldBracton; who is religiously followed in the same gloss byThornton, and the author ofFleta. 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 ofEnglishliberty. The words in thePandectsandInstitutionsare 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.â€
My honest friend, in mentioning this extraordinary circumstance, says, one cannot consider itsine 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 solùmipse, adeò judiciis forensibus clarus, et (si Biographis scriptorum nostratium fides) professor juris utriusque Oxoniensis, verùm etiamThorntoniusjuris aliàs peritissimus, etFletæauthor, 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 theRoman institutes.
This management ofBractonand his followers makes some amends for the ill conduct ofRichardthe Second’s lawyers. And as to their chicanery, the ingenuity of the gloss, we will suppose, was no more than necessary to correct the malignity of the text.
They had, no doubt, consulted their honour much more, by insisting roundly, as they might have done, that the text had no concern at all in the dispute. But I mention these things only to shew the extreme reverence, that was then paid to the civil law, by the shifts the common lawyers were put to in order to evade its influence. From which we learn how rooted the love of liberty must have been in this nation, and how unshaken the firmness of the national councils in supporting it, when, notwithstanding the general repute it was of in those days, the imperial law could never gain authority enough to prescribe to us in any matters that concerned the rights of the crown, or the property of the subject. And this circumstance will be thought the more extraordinary, if it be considered, that, to the general esteem in which theRomanlaw was held by the clergy, our kings have usually added the whole weight of their influence; except indeed at some particular junctures, when their jealousy of thecanonlaw prevailed over their natural bias to thecivil.
I should be unwilling to weaken any argument you take to be of use in maintaining the noble cause you have undertaken. But, methinks, this charge on our princes would require to be made out by other evidence147than hath been commonly produced for it. There is no doubt but many of them have aimed at setting themselves above the laws of their country; but is it true (I mean, thoughFortescuehimself148has suggested the same thing) that for this purpose they have usually expressed a partiality to theRomanlaws?
I believe it certain that they have, and on better reasons than the bare word of any lawyer whatsoever.
What think you ofRichardthe Second’s policy in the instance before mentioned; thatRichard, who used to declare, “That thelaws were only in his mouth and breast, and that he himself could make and unmake them at his pleasure?†We may know for what reason a prince of this despotic turn had recourse to theRomanlaw.
But even his great predecessor is known to have been very indulgent towards it. And still earlier,Edward I.took much pains to establish the credit of this law; and to that end engaged the youngerAccursius, the most renowned doctor of the age, to come over intoEngland, and set up a school of it atOxford. Or, to wave these instances, let me refer you to a certain and very remarkable fact, which speaks the sense, not of this or that king, but of the whole succession of our princes.
The imperial law, to this day, obtains altogether in the courts of admiralty, in courts marescall, and in the universities149. On the contrary, in what we call the courts of law and equity, it never hath, nor ever could prevail. What shall we say to this remarkable difference? or to what cause will you ascribe it, that this law, which was constantly excluded with such care from the one sort of courts,should have free currency and be of sole authority in the other? I believe it will be difficult to assign any other than this: that the subjects of decision in the first species of courts are matters in the resort of the king’s prerogative, such as peace and war, and the distribution of honours; whilst the subjects of decision in the courts of common law are out of his prerogative, such as those of liberty and property. The king had his choice by what law the first sort of subjects should be regulated; and therefore he adopted the imperial law. He had not his choice in the latter instance; and the people were never satisfied with any other than the law of the land.
Yet Mr.Selden, you know, gives another reason of this preference: it was, he thinks, because foreigners are often concerned with the natives in those tribunals where the civil law is in use.
True; but my learned friend, as I conceive, did not attend to this matter with his usual exactness. For foreigners are as frequentlyconcerned in the courts of law and equity, as in the other tribunals. The case in point of reason is very clear. In all contests that are carried on between a native and a foreigner, as the subject of another state, the decision ought to be by the law of nations. But when a foreigner puts himself with a native under the protection of our state, the determination is, of course, by our law. The practice hath uniformly corresponded to the right in the courts of law and equity. In the other tribunals the right hath given way to the will of the prince, who had his reasons for preferring the authority of the imperial law.
Upon the whole, if we consider the veneration, which the clergy usually entertained, and endeavoured to inculcate into the people, for the civil law; the indulgence shewn it by the prince; its prevalence in those courts which were immediately under the prerogative; and even the countenance shewn it at times in the course of pleading at common law; we cannot avoid coming to this short conclusion, “That the genius of the imperial laws was repugnant to our constitution; and that nothing but the extreme jealousy of the barons, lest they might prove, in pleas of the crown, injurious to civil liberty, hath kept them from being receivedinEnglandon the same footing that we every where find they are in the other countries ofEurope, and as they are inScotlandto this day.â€
But, if you think I draw this conclusion too hastily, and without grounding it on sufficient premises, you may further consider with me, if you please,THE FATE AND FORTUNES OF THE CIVIL LAW IN THIS KINGDOM DOWN TO THE PRESENT TIME.
In the reigns ofHenry VII150and VIII, and the two first kings of the house ofStuart,that is, the most despotic of our princes, the study of the civil law hath been more especially favoured; as we might conclude from the general spirit of those kings themselves, but as we certainly know from the countenance they shewed to its professors; from their chusing to employ them in their business, and from the salaries and places they provided for their encouragement. Yet see the issue of all this indulgence to a foreign law, and the treatment it met with from our parliaments and people! The oppressions ofEmpsonandDudleyhad been founded in a stretch of power, usurped and justified on the principles of the civil law; by which these miscreants had been enabled to violate a fundamental part of our constitution, the way oftrial byJURIES. The effect on thepeople was dreadful. Accordingly, in the entrance of the next reign, though the authority, by which they had acted, had even been parliamentary, these creatures of tyranny were indicted of high treason, were condemned and executed for having been instrumental in subvertingLEGEM TERRÆ; and the extorted statute, under which they had hoped to shelter themselves, was with a just indignation repealed.
Yet all this was considered only as a necessary sacrifice to the clamours of an incensed people. The youngerHenry, we may be sure, had so much of his father in him, or rather so far outdid him in the worst parts of his tyranny, that he could not but look with an eye of favour on the very law he had been constrained to abolish. His great ecclesiastical minister was, no doubt, in the secret of his master’s inclinations, and conducted himself accordingly. Yet the vengeance of the nation pursued and overtook him in good time. They resented his disloyal contempt of the original constitution; and made it one of the articles against thisRomancardinal, “That he endeavoured to subvertantiquissimas leges hujus regni, universumque hoc regnumLEGIBUS IMPERIALIBUSsubjicere.â€
From this time, the study of the civil law was thought to languish inEngland, till it revived with much spirit in the reigns of those unhappy princes who succeeded to the house ofTudor. Then indeed, by inclination and by pedantry,James I.was led to patronize and encourage it. And the same project was resumed, and carried still further, by his unfortunate son. I speak now from my own experience and observation. The civil lawyers were most welcome at court. They were brought into the Chancery and court of Requests. The minister, another sort of man thanWolsey, yet a thorough ecclesiastic, and bigoted, if not to the religion; yet to the policy ofRome, gave a countenance to this profession above that of the common law. He had found the spirit, and even the forms of it, most convenient for his purpose in theStar-chamberandHigh-commissioncourt, those tribunals of imperial justice, exalted so far above the controul of the common law; and by his good will, therefore, would have brought the same regimen into the other branches of the administration. Great civilians were employed to write elaborate defences of their science; to the manifest exaltation of the prerogative; to the prejudice of the national rightsand privileges; and to the disparagement of the common law. The consequence of these proceedings is well known. The most immediate was, that they provoked the jealousy of the common lawyers; and, when the rupture afterwards happened, occasioned many of the most eminent of them to throw themselves into the popular scale151.
Yet, to see the uniformity of the views of tyranny, and the direct opposition which it never fails to encounter from theEnglishlaw, no sooner had a set of violent men usurped the liberties of their country, and with the sword in their hands determined to rule despotically and in defiance of the constitution, than the same jealousy of the common law, and the same contempt of it, revived. Nay, to such an extreme was the new tyranny carried, that the very game ofEmpsonandDudleywas played over again. The trial of anEnglishmanby his peers was disgraced and rejected; and (I speak from what I felt) the person imprisoned and persecuted, who dared appeal, though inhis own case152, to the ancient essential forms of the constitution. Under such a state of things, it is not to be wondered that much pains was taken to depreciate a law which these mighty men were determined not to regard. Invectives against the professors of theEnglishlaws were the usual and favoured topics of parliamentary eloquence. These were sometimes so indecent, and pushed to that provoking length, thatWhitlockehimself, who paced it with them through all changes, was forced in the end to hazard his reputation with his masters, by standing on the necessary defence of himself and his profession153.
I need not, I suppose, descend lower. Ye have both seen with your own eyes the occurrencesof the late reign. Ye have heard the common language of the time. The practice was but conformable to such doctrines as were current at court, where it was generally maintained, that the king’s power of dispensing with law, wasLAW; by which if these doctors did not intend theimperialorcivil law, the insult was almost too gross to deserve a confutation, It must be owned, and to the eternal shame of those who were capable of such baseness, there were not wanting some even of the common lawyers that joined in this insult.
I but touch these things slightly; for I consider to whom I speak. But if, to these examples of the nation’s fondness for their laws, you add, what appears in the tenor of our histories, the constant language of thecoronation-oaths, of theoaths of our judges, and, above all, of theseveral great charters; in all which express mention is made of theLEX TERRÆ, in opposition to every foreign, but especially the Cæsarean, law; you will conclude with me, “That, as certainly as theCæsarean lawis founded in the principles of slavery, ourEnglish law, and the constitution to which it refers, hath its foundation in freedom, and, as such, deserved the care with which ithath been transmitted down to us from the earliest ages.â€
What think ye now, my good friends? Is it any longer a doubt, that the constitution of theEnglishgovernment, such I mean as it appears to have been from the most unquestioned annals of our country, is a free constitution? Is there any thing more in the way of this conclusion? or does it not force itself upon us, and lie open to the mind of every plain man that but turns his attention upon this subject?
You began, Mr.Somers, with great fears and apprehensions; or you thought fit to counterfeit them, at least. You suspected the matter was too mysterious for common understandings to penetrate, and too much involved in the darkness of ancient times to be brought into open day-light. Let me hear your free thoughts on the evidence I have here produced to you. And yet it is a small part only of that which might be produced, of that I am sure which yourself could easily have produced, and perhaps expected from me.
But I content myself with these obvious truths, “That the liberty of the subject appears,and of itself naturally arose, from the very nature of theFEUDAL, which is properly (at least if we look no further back than the Conquest) theEnglishconstitution; that the current of liberty has been gradually widening, as well as purifying, in proportion as it descended from its source; that charters and laws have removed every scruple that might arise about the reciprocal rights and privileges of prince and people; that the sense of that liberty which the nation enjoyed under their admirable constitution was so quick, that every the least attempt to deprive them of it gave an alarm; and their attachment to it so strong and constant, that no artifice, no intrigue, no perversion of law and gospel, could induce them to part with it: that, in particular, they have guarded this precious deposite of legal and constitutional liberty with such care, that, while the heedless reception of a foreign law, concurring with other circumstances, hath riveted the yoke of slavery on the other nations ofEurope, this ofEnglandcould never be cajoled nor driven into any terms of accommodation with it; but, asNat. Bacon154said truly,That the triple crown could never well solder with the English, so neither could theimperial; and that, in a word, theEnglishLAWhath always been preserved inviolate from the impure mixtures of the canon and Cæsarean laws, as the sole defence and bulwark of our civil liberties.â€