The works of Richard Hurd, volume 3 (of 8)

by Richard Hurd

MR. DIGBY, DR. ARBUTHNOT, MR. ADDISON.

But do you consider, said Mr. Addison, as they descended into the valley, what an invidious task you are going to impose upon me? One cannot call in question a common opinion in any indifferent matter, without the appearance of some degree of perverseness. But to do it in a case of this importance, where the greatest authorities stand in the way, and the glory of one of our princes is concerned, will, I doubt, be liable to the imputation of something worse than singularity. For, besides that you will be apt to upbraid me, in the words of the poet,

Nullum memorabile nomen
Fœmineâ in pœnâ est, nec habet victoria laudem,

such a liberty of censure is usually taken for an argument, not of discourtesy or presumption only, but of ill-nature. At best, the attempt to arraign the virtues and government of Elizabeth will appear but like the idleness of the old sophists, who, you know, were never so well pleased as when they were controverting some acknowledged fact, or assaulting some established character.

That censure might be just enough, Dr. Arbuthnot said, of the old sophists, who had nothing in view but the credit of their own skill in the arts of disputation. But in this friendly debate, which means nothing more than private amusement, I see no colour for such apprehensions.

But what shall we say, interposed Mr. Addison, to another difficulty? The subject is very large; and it seems no easy matter to reduce it into any distinct order. Besides, my business is not so much to advance any thing of my own, as to object to what others have advanced concerning the fame and virtues of Elizabeth. And to this end, I must desire to know the particulars on which you are disposed to lay the greatest stress, and indeed to have some plan of the subject delivered in to me, which may serve, as it were, for the groundwork of the whole conversation.

I must not presume, said Dr. Arbuthnot, to prescribe the order in which your attack on the great queen shall be conducted. The subject, indeed, is large. But this common route of history is well known to all of us. To that, then, you may well enough refer, without being at the trouble, before you go to work, of laying foundations. Or, if you will needs have a basis to build upon, what if I just run over the several circumstances which I conceive to make most for the credit of that reign? A sketch of this sort, I suppose, will answer all the ends of the plan, you seem to require of me.

Mr. Addison agreed to this proposal; which he thought would be of use to shorten the debate, or at least to render the progress of it more clear and intelligible.

In few words then, resumed Dr. Arbuthnot, the reasons, that have principally determined me to an admiration of the government and character of queen Elizabeth, are such as these: “That she came to the crown with all possible disadvantages; which yet, by the prudence and vigour of her counsels, she entirely overcame: that she triumphed over the greatest foreign and domestic dangers: that she humbled the most formidable power in Europe by her arms; and composed, or checked at least, by the firmness of her administration, TWO, the most implacable and fiery factions at home: that she kept down the rebellious spirit of Ireland, and eluded the constant intrigues of her restless neighbours, the Scots: that she fixed our religious establishment on solid grounds; and countenanced, or rather conducted, the Protestant cause abroad: that she made her civil authority respected by her subjects; and raised the military glory of the nation, both by sea and land, to the greatest height: that she employed the ablest servants, and enacted the wisest laws: by all which means it came to pass that she lived in a constant good understanding with her parliaments, was idolized by her people, and admired and envied by all the rest of the world.”

Alas, said Mr. Addison, I shall never be able to follow you through all the particulars of this encomium: and, to say the truth, it would be to little purpose; since the wisdom of her policy, in all these instances of her government, can only be estimated from a careful perusal of the histories of that time; too numerous and contradictory to be compared and adjusted in this conversation. All I can do, continued he, after taking a moment or two to recollect himself, is to abate the force of this panegyric by some general observations of the CIRCUMSTANCES and GENIUS of that time; and then to consider the personal QUALITIES of the queen, which are thought to reflect so great a lustre on her government.

As you please, Dr. Arbuthnot replied. We shall hardly lose ourselves in this beaten field of history. And, besides, as your undertaking is so adventurous, it is but reasonable you should have the choice of your own method.

You are in the common opinion, I perceive, resumed Mr. Addison, that Elizabeth’s government was attended with all possible disadvantages. On the contrary, it appears to me that the security and even splendour of her reign is chiefly to be accounted for from the fortunate CIRCUMSTANCES of her situation.

Of these the FIRST, that demands our notice, is the great affair of religion.

The principles of Protestantism had now for many years been working among the people. They had grown to that head in the short reign of Edward VI. that the bloody severities of his successor served only to exasperate the zeal, with which these principles had been embraced and promoted. Elizabeth, coming to the crown at this juncture, was determined, as well by interest as inclination, to take the side of the new religion. I say by interest, as well as inclination. And, I think, I have reason for the assertion. For though the persons in power, and the clergy throughout the kingdom, were generally professed papists; yet they were most of them such as had conformed in king Edward’s days, and were not therefore much to be feared for any tie, their profession could really have on their consciences. Whereas, on the other hand, it was easy to see, from many symptoms, that the general bent of the nation was towards Protestantism; and that, too, followed with a spirit, which must in the end prevail over all opposition. Under these circumstances, then, it was natural for the queen, if she had not been otherwise led by her principles, and the interest of her title, to favour the Reformation.

The truth is, she came into it herself so heartily, and provided so effectually for its establishment, that we are not to wonder she became the idol of the Reformed, at the same time that the papal power through all Europe was confederated against her. The enthusiasm of her Protestant subjects was prodigious. It was raised by other considerations; but confirmed in all orders of the state by the ease they felt in their deliverance from the tyranny of the church; and in the great especially, by the sweets they tasted in their enjoyment of the church-revenues. It was, in short, one of those extraordinary conjunctures, in which the public danger becomes the public security; when religion and policy, conscience and interest, unite their powers to support the authority of the prince, and to give fidelity, vigour, and activity to the obedience of the subject.

And thus it was, continued he, that so warm and unconquerable a zeal appeared in defence of the queen against all attempts of her enemies. Her people were so thoroughly Protestant, as to think no expence of her government too great, provided they could but be secured from relapsing into Popery. And her parliaments were disposed to wave all disputes about the stretch of her prerogative, from a sense of their own and the common danger.

In magnifying this advantage of the zeal and union of Elizabeth’s good subjects, you forgot, said Dr. Arbuthnot, that two restless and inveterate factions were contending, all her lifetime, within her own kingdom.

I am so far from forgetting that circumstance, returned Mr. Addison, that I esteem it ANOTHER of the great advantages of her situation.

The contrary tendencies of those factions in some respects defeated each other. But the principal use of them was, that, by means of their practices, some domestic plot, or foreign alarm, was always at hand, to quicken the zeal and inflame the loyalty of her people. But to be a little more particular about the factions of her reign.

The Papist was, in truth, the only one she had reason to be alarmed at. The Puritan had but just begun to shew himself, though indeed with that ferocity of air and feature, which signified clearly enough what spirit he was of, and what, in good time, he was likely to come to. Yet even he was kept in tolerable humour, by a certain commodious policy of the queen; which was, so to divide her regards betwixt the Church and the Puritans, as made it the interest of both to keep well with her. ’Tis true, these last felt the weight of her resentment sometimes, when they ventured too saucily to oppose themselves to the establishment. But this was rarely, and by halves: and, when checked with the most rigour, they had the satisfaction to see their patrons continue in the highest places at court, and, what is more, in the highest degree of personal favour.

And what doth all this shew, interrupted Dr. Arbuthnot, but that she managed so well as to disarm a furious faction, or rather make it serve against the bent of its nature, to the wise ends of her government?

As to any wise ends of government, I see none, replied Mr. Addison, deserving to be so called, that were answered by her uncertain conduct towards the Puritans. For she neither restrained them with that severity, which might perhaps have prevented their growth, at first; nor shewed them that entire indulgence, which might have disabled their fury afterwards. It is true, this temporizing conduct was well enough adapted to prevent disturbances in her own time. But large materials were laid in for that terrible combustion, which was soon to break forth under one of her successors.

And so, instead of imputing the disasters that followed, said Dr. Arbuthnot, to the ill-government of the Stuarts, you are willing to lay the whole guilt of them on this last and greatest of the Tudors. This is a new way of defending that royal house; and, methinks, they owe you no small acknowledgments for it. I confess, it never occurred to me to make that apology for them.

Though I would not undertake, said Mr. Addison, to make their apology from this, or any other, circumstance; I do indeed believe that part of the difficulties the house of Stuart had to encounter, were brought upon them by this wretched policy of their predecessor. But, waving this consideration, I desire you will take notice of what I chiefly insist upon, “That the ease and security of Elizabeth’s administration was even favoured by the turbulent practices and clashing views of her domestic factions.” The Puritan was an instrument, in her hands, of controuling the church, and of balancing the power of her ministers: besides that this sort of people were, of all others, the most inveterate against the common enemy. And for the Papists themselves (not to insist that, of course, they would be strictly watched, and that they were not, perhaps, so considerable as to create any immediate danger[84]), the general abhorrence both of their principles and designs had the greatest effect in uniting more closely, and cementing, as it were, the affections of the rest of her subjects. So that, whether within or without, the common danger, as I expressed it, was the common safety.

Still, said Dr. Arbuthnot, I must think this a very extraordinary conclusion. I have no idea of the security of the great queen, surrounded, as she was, by her domestic and foreign enemies.

Her foreign enemies, returned Mr. Addison, were less formidable than they appear at first view. And I even make the condition of the neighbouring powers on the Continent, in her time, a THIRD instance of the signal advantages of her situation.

It is true, if a perfect union had subsisted between the Catholic princes, the papal thunders would have carried terror with them. But, as it was, they were powerless and ineffectual. The civil wars of France, and its constant jealousy of Spain, left the queen but little to apprehend from that quarter. The Spanish empire, indeed, was vast, and under the direction of a bigoted vindictive prince. But the administration was odious and corrupt in every part. So that wise men saw there was more of bulk than of force in that unwieldy monarchy. And the successful struggles of a handful of its subjects, inflamed by the love of liberty, and made furious by oppression, proclaimed its weakness to all the world.

It may be true, interrupted Dr. Arbuthnot, that the queen had less to fear from the princes on the Continent, than is sometimes represented. But you forget, in this survey of the public dangers, the distractions of Ireland, and the restless intrigues of her near neighbours, the Scots: both of them assisted by Spain; and these last under the peculiar influence and direction of the Guises.

You shall have my opinion, returned Mr. Addison, in few words.

For the Irish distractions, it was not the queen’s intention, or certainly it was not her fortune, to compose them: I mean, during the greatest part of her reign; for we are now speaking of the general tenor of her policy. Towards the close of it, indeed, she made some vigorous attempts to break the spirits of those savages. And it was high time she should. For, through her faint proceedings against them, they had grown to that insolence, as to think of setting up for an independency on England. Nay, the presumption of that arch-rebel Tyrone, countenanced and abetted by Spain, seemed to threaten the queen with still further mischiefs. The extreme dishonour and even peril of this situation roused her old age, at length, to the resolution of taking some effectual measures. The preparation was great, and suitable to the undertaking. It must, further, be owned, it succeeded: but so late, that she herself did not live to see the full effect of it. However, this success is reckoned among the glories of her reign. In the mean time, it is not considered that nothing but her ill policy, in suffering the disorders of that country to gather to a head, made way for this glory. I call it her ill policy, for unless it were rather owing to her excessive frugality[85] one can hardly help thinking she designed to perpetuate the Irish distractions. At least, it was agreeable to a favourite maxim of hers, to check, and not to suppress them. And I think it clear, from the manner of prosecuting the war, that, till this last alarm, she never was in earnest about putting an end to it.

Scotland, indeed, demanded a more serious attention. Yet the weak distracted counsels of that court—a minor king—a captive queen—and the unsettled state of France itself, which defeated in a good degree the malice of the Guises—were favourable circumstances.

But to be fair with you (for I would appear in the light of a reasonable objector, not a captious wrangler); I allow her policy in this instance to have been considerable. She kept a watchful eye on the side of Scotland. And, though many circumstances concurred to favour her designs, it must be owned they were not carried without much care and some wisdom.

I understand the value of this concession, replied Dr. Arbuthnot. It must have been no common degree of both, that extorted it from you.

I decline entering further, said Mr. Addison, into the public transactions of that reign; if it were only that, at this distance of time, it may be no easy matter to determine any thing of the policy, with which they were conducted. Only give me leave to add, as a FOURTH instance of the favourable circumstances of the time, “That the prerogative was then in its height, and that a patient people allowed the queen to use it on all occasions.” Hence the apparent vigour and firmness of her administration: and hence the opportunity (which is so rarely found in our country) of directing the whole strength of the nation to any end of government, which the glory of the prince or the public interest required.

What you impute to the high strain of prerogative, returned Dr. Arbuthnot, might rather be accounted for from the ability of her government, and the wise means she took to support it. The principal of these was, by employing the GREATEST MEN in the several departments of her administration. Every kind of merit was encouraged by her smile[86], or rewarded by her bounty. Virtue, she knew, would thrive best on its native stock, a generous emulation. This she promoted by all means; by her royal countenance, by a temperate and judicious praise, by the wisest distribution of her preferments. Hence would naturally arise that confidence in the queen’s counsels and undertakings, which the servile awe of her prerogative could never have occasioned.

This is the true account of the loyalty, obedience, and fidelity, by which her servants were distinguished. And thus, in fact, it was that, throughout her kingdom, there was every where that reverence of authority[87], that sense of honour, that conscience of duty, in a word, that gracious simplicity of manners, which renders the age of Elizabeth truly GOLDEN: as presenting the fairest picture of humanity, that is to be met with in the accounts of any people.

It is true, as you say, interposed Mr. Addison, that this picture is a fair one. But of what is it a copy? Of the Genius of the time, or of the queen’s virtues? You shall judge for yourself, after I have laid before you TWO remarkable events of that age, which could not but have the greatest effect on the public manners; I mean, THE REFORMATION OF RELIGION, and what was introductory of it, THE RESTORATION OF LETTERS. From these, as their proper sources, I would derive the ability and fidelity of Elizabeth’s good subjects.

The passion for LETTERS was extreme. The novelty of these studies, the artifices that had been used to keep men from them, their apparent uses, and, perhaps, some confused notion of a certain diviner virtue than really belongs to them; these causes concurred to excite a curiosity in all, and determined those, who had leisure, as well as curiosity, to make themselves acquainted with the Greek and Roman learning. The ecclesiastics, who, for obvious reasons, would be the first and most earnest in their application to letters, were not the only persons transported with this zeal. The gentry and nobility themselves were seized with it. A competent knowledge of the old writers was looked upon as essential to a gentleman’s education. So that Greek and Latin became as fashionable at court in those days, as French is in ours. Elizabeth herself, which I wonder you did not put me in mind of, was well skilled in both[88]; they say, employed her leisure in making some fine translations out of either language. It is easy to see what effect this general attention to letters must have on the minds of the liberal and well-educated. And it was a happiness peculiar to that age, that learning, though cultivated with such zeal, had not as yet degenerated into pedantry: I mean, that, in those stirring and active times, it was cultivated, not so much for show, as use; and was not followed, as it soon came to be, to the exclusion of other generous and manly applications.

Consider, too, the effects, which the alterations in RELIGION had produced. As they had been lately made, as their importance was great, and as the benefits of the change had been earned at the expence of much blood and labour: all these considerations begot a zeal for religion, which hardly ever appears under other circumstances. This zeal had an immediate and very sensible effect on the morals of the Reformed. It improved them in every instance; especially as it produced a cheerful submission to the government, which had rescued them from their former slavery, and was still their only support against the returning dangers of superstition. Thus religion, acting with all its power, and that, too, heightened by gratitude and even self-interest, bound obedience on the minds of men with the strongest ties[89]. And luckily for the queen, this obedience was further secured to her by the high uncontroverted notions of royalty, which, at that time, obtained amongst the people.

Lay all this together; and then tell me where is the wonder that a people, now emerging out of ignorance; uncorrupted by wealth, and therefore undebauched by luxury; trained to obedience, and nurtured in simplicity; but, above all, caught with the love of learning and religion, while neither of them was worn for fashion-sake, or, what is worse, perverted to the ends of vanity or ambition; where, say, is the wonder that such a people should present so bright a picture of manner’s to their admiring panegyrist?

To be fair with you; it was one of those conjunctures, in which the active virtues are called forth, and rewarded. The dangers of the time had roused the spirit, and brought out all the force and genius, of the nation. A sort of enthusiasm had fired every man with the ambition of exerting the full strength of his faculties, which way soever they pointed, whether to the field, the closet, or the cabinet. Hence such a crop of soldiers, scholars, and statesmen had sprung up, as have rarely been seen to flourish together in any country. And as all owed their duty, it was the fashion of the times for all to bring their pretensions, to the court. So that, where the multitude of candidates was so great, it had been strange indeed, if an ordinary discretion had not furnished the queen with able servants of all sorts; and the rather, as her occasions loudly called upon her to employ the ablest.

I was waiting, said Dr. Arbuthnot, to see to what conclusion this career of your eloquence would at length drive you. And it hath happened in this case, as in most others where a favourite point is to be carried, that a zeal for it is indulged, though at the expence of some other of more importance. Rather than admit the personal virtues of the queen, you fill her court, nay, her kingdom, with heroes and sages: and so have paid a higher compliment to her reign, than I had intended.

To her reign, if you will, replied Mr. Addison, so far as regards the qualities and dispositions of her subjects: for I will not lessen the merit of this concession with you, by insisting, as I might, that their manners, respectable as they were, were debased by the contrary, yet very consistent, vices of servility and insolence[90]; and their virtues of every kind deformed by, barbarism. But, for the queen’s own merit in the choice of her servants, I must take leave to declare my sentiments to you very plainly. It may be true, that she possessed a good degree of sagacity in discerning the natures and talents of men. It was the virtue by which, her admirers tell us, she was principally distinguished. Yet, that the high fame of this virtue hath been owing to the felicity of the times, abounding in all sorts of merit, rather than to her own judgment, I think clear from this circumstance, “That some of the most deserving of those days, in their several professions, had not the fortune to attract the queen’s grace, in the proportion they might have expected.” I say nothing of poor Spenser. Who has any concern for a poet[91]? But if merit alone had determined her majesty’s choice, it will hardly at this day admit a dispute, that the immortal Hooker and Bacon[92], at least, had ranked in another class than that, in which this great discerner of spirits thought fit to leave them.

And her character; continued he, in every other respect is just as equivocal. For having touched one part of it, I now turn from these general considerations on the circumstances and genius of the time, to our more immediate subject, the PERSONAL QUALITIES of Elizabeth. Hitherto we have stood aloof from the queen’s person. But there is no proceeding a step further in this debate, unless you allow me a little more liberty. May I then be permitted to draw the veil of Elizabeth’s court, and, by the lights which history holds out to us, contemplate the mysteries, that were celebrated in that awful sanctuary?

After so reverend a preface, replied Dr. Arbuthnot, I think you may be indulged in this liberty. And the rather, as I am not apprehensive that the honour of the illustrious queen is likely to suffer by it. The secrets of her cabinet-council, it may be, are not to be scanned by the profane. But it will be no presumption to step into the drawing-room.

Yet I may be tempted, said Mr. Addison, to use a freedom in this survey of her majesty, that would not have been granted to her most favoured courtiers. As far as I can judge of her character, as displayed in that solemn scene of her court, she had some apparent VIRTUES, but more genuine VICES; which yet, in the public eye, had equally the fortune to reflect a lustre on her government.

Her gracious affability, her love of her people, her zeal for the national glory; were not these her more obvious and specious qualities? Yet I doubt they were not so much the proper effects of her nature, as her policy; a set of spurious virtues, begotten by the very necessity of her affairs.

For her AFFABILITY, she saw there was no way of being secure amidst the dangers of all sorts, with which she was surrounded; but by ingratiating herself with the body of the people. And, though in her nature she was as little inclined to this condescension as any of her successors, yet the expediency of this measure compelled her to save appearances. And it must be owned, she did it with grace, and even acted her part with spirit. Possibly the consideration of her being a female actor, was no disadvantage to her.

But, when she had made this sacrifice to interest, her proper temper shewed itself clearly enough in the treatment of her nobles, and of all that came within the verge of the court. Her caprice, and jealousy, and haughtiness, appeared in a thousand instances. She took offence so easily, and forgave so difficultly, that even her principal ministers could hardly keep their ground, and were often obliged to redeem her favour by the lowest submissions. When nothing else would do, they sickened, and were even at death’s door: from which peril, however, she would sometimes relieve them; but not till she had exacted from them, in the way of penance, a course of the most mortifying humiliations. Nay, the very ladies of her court had no way to maintain their credit with her, but by, submitting patiently to the last indignities.

It is allowed, from the instances you have in view, returned Dr. Arbuthnot, that her nature was something high and imperious. But these sallies of passion might well enough consist with her general character of affability.

Hardly, as I conceive, answered Mr. Addison, if you reflect that these sallies, or rather habits of passion, were the daily terror and vexation of all about her. Her very minions seemed raised for no other purpose, than the exercise of her ill-humour. They were encouraged, by her smile, to presume on the royal countenance, and then beaten down again in punishment of that presumption. But, to say the truth, the slavish temper of the time was favourable to such exertions of female caprice and tyranny. Her imperious father, all whose virtues, she inherited, had taught her a sure way to quell the spirit of her nobles. They had been long used to stand in awe of the royal frown. And the people were pleased to find their betters ruled with so high a hand, at a time when they themselves were addressed with every expression of respect, and even flattery.

She even carried this mockery so far, that, as Harrington observes well, “she converted her reign, through the perpetual love-tricks that passed between her and her people, into a kind of romance.” And though that political projector, in prosecution of his favourite notion, supposes the queen to have been determined to these intrigues by observing, that the weight of property was fallen into the popular scale; yet we need look no further for an account of this proceeding, than the inherent haughtiness of her temper. She gratified the insolence of her nature, in neglecting, or rather beating down, her nobility, whose greatness might seem to challenge respect: while the court, she paid to the people, revolted her pride less, as passing only upon herself, as well as others, for a voluntary act of affability. Just as we every day see very proud men carry it with much loftiness towards their equals, or those who and raised to some nearness of degree to themselves; at the same time that they affect a sort of courtesy to such, as are confessedly beneath them.

You see, then, what her boasted affability comes to. She gave good words to her people, whom it concerned her to be well with, and whom her pride itself allowed her to manage: she insulted her nobles, whom she had in her power, and whose abasement flattered the idea, she doted upon, of her own superiority and importance[93].

Let the queen’s manner of treating her subjects be what it would, Dr. Arbuthnot said, it appears to have given no offence in those days, when the sincerity of her intentions was never questioned. Her whole life is a convincing argument; that she bore the most entire affection to her people.

Her love of her people, returned Mr. Addison hastily, is with me a very questionable virtue. For what account shall we give of the multitude of penal statutes, passed in her reign? Or, because you will say, there was some colour for these; what excuse shall we make for her frequent grants of monopolies, so ruinous to the public wealth and happiness, and so perpetually complained of by her parliaments? You will say, she recalled them. She did so. But not till the general indignation had, in a manner, forced her to recall them. If by her people, be meant those of the poorer and baser sort only, it may be allowed, she seemed on all occasions willing to spare them. But for those of better rank and fortune, she had no such consideration. On the other hand, she contrived in many ways to pillage and distress them. It was the tameness of that time, to submit to every imposition of the sovereign. She had only to command her gentry on any service she thought fit, and they durst not decline it. How many of her wealthiest and best subjects did she impoverish by these means (though under colour, you may be sure, of her high favour); and sometimes by her very visits! I will not be certain, added he, that her visit to this pompous castle of her own Leicester, had any other intention.

But what, above all, are we to think of her vow of celibacy, and her obstinate refusal to settle the succession, though at the constant hazard of the public peace and safety?

You are hard put to it, I perceive, interrupted. Dr. Arbuthnot, to impeach the character of the queen in this instance, when a few penal laws, necessary to the support of her crown in that time of danger; one wrong measure of her government, and that corrected; the ordinary use of her prerogative; and even her virginity; are made crimes of. But I am curious to hear what you have to object to her zeal for the English glory, carried so high in her reign; and the single point, as it seems to me, to which all her measures and all her counsels were directed.

The English glory, Mr. Addison said, may, perhaps, mean the state and independency of the crown. And then, indeed, I have little to object. But, in any other sense of the word, I have sometimes presumed to question with myself, if it had not been better consulted, by more effectual assistance of the Reformed on the Continent; by a more vigorous prosecution of the war against Spain[94]; as I hinted before, by a more complete reduction of Ireland. But say, we are no judges of those high matters. What glory accrued to the English name, by the insidious dealing with the queen of Scots; by the vindictive proceedings against the duke of Norfolk; by the merciless persecutions of the unhappy earl of Essex? The same spirit, you see, continued from the beginning of this reign to the end of it. And the observation is the better worth attending to, because some have excused the queen’s treatment of Essex by saying, “That her nature, in that decline of life, was somewhat clouded by apprehensions; as the horizon, they observe, in the evening of the brightest day, is apt to be obscured by vapours[95].” As if this fanciful simile, which illustrates perhaps, could excuse, the perverseness of the queen’s temper; or, as if that could deserve to pass for an incident of age, which operated through life; and so declares itself to have been the proper result of her nature.

You promised, interposed Dr. Arbuthnot, not to pry too closely into the secrets of the cabinet. And such I must needs esteem the points to be, which you have mentioned. But enough of these beaten topics. I would rather attend you in the survey you promised to take of her court, and of the princely qualities that adorned it. It is from what passes in the inside of his palace, rather than from some questionable public acts, that the real character of a prince is best determined. And there, methinks, you have a scene opened to you, that deserves your applause. Nothing appears but what is truly royal. Nobody knew better, than Elizabeth, how to support the decorum of her rank. She presided in that high orb with the dignity of a great queen. In all emergencies of danger, she shewed a firmness, and, on all occasions of ceremony, a magnificence, that commanded respect and admiration. Her very diversions were tempered with a severity becoming her sex and place, and which made her court, even in its lightest and gayest humours, a school of virtue.

These are the points, concluded he, I could wish you to speak to. The rest may be left to the judgment of the historian, or rather to the curiosity of the nice and critical politician.

You shall be obeyed, Mr. Addison said. I thought it not amiss to take off the glare of those applauded qualities, which have dazzled the public at a distance, by shewing that they were either feigned or over-rated. But I come now to unmask the real character of this renowned princess. I shall paint her freely indeed, but truly as she appears to me. And, to speak my mind at once; I think it is not so much to her virtues, which at best were equivocal, as to her very VICES, that we are to impute the popular admiration of her character and government.

I before took notice of the high, indecent PASSION, she discovered towards her courtiers. This fierceness of temper in the softer sex was taken for heroism; and, falling in with the slavish principles of the age, begot a degree of reverence in her subjects, which a more equal, that is a more becoming, deportment would not have produced. Hence, she was better served than most of our princes, only because she was more feared; in other words, because she less deserved to be so. But high as she would often carry herself in this unprincely, I had almost said, unwomanly, treatment of her servants; awing the men by her oaths, and her women by blows; it is still to be remembered, that she had a great deal of natural TIMIDITY in her constitution.

What! interrupted Dr. Arbuthnot hastily, the magnanimous Elizabeth a coward? I should as soon have expected that charge against Cæsar himself, or your own Marlborough.

I distinguish, Mr. Addison said, betwixt a parade of courage, put on to serve a turn, and keep her people in spirits, and that true greatness of mind, which, in one word, we call magnanimity. For this last, I repeat it, she either had it not, or not in the degree in which it has been ascribed to her. On the contrary, I see a littleness, a pusillanimity, in her conduct on a thousand occasions. Hence it was, that both to her people and such of the neighbouring states as she stood in awe of, she used an excessive hypocrisy, which, in the language of the court, you may be sure, was called policy. To the Hollanders, indeed, she could talk big; and it was not her humour to manage those over whom she had gained an ascendant. This has procured her, with many, the commendation of a princely magnanimity. But, on the other hand, when discontents were apprehended from her subjects, or when France was to be diverted from any designs against her, no art was forgotten that might cajole their spirits with all the professions of cordiality and affection. Then she was wedded, that was the tender word, to her people: and then the interest of religion itself was sacrificed by this Protestant queen to her newly-perverted brother on the Continent.

Her foible, in this respect, was no secret to her ministers. But, above all, it was practised upon most successfully by the Lord Burghley; “for whom, as I have seem it observed, it was as necessary that there should be treasons, as for the state that they should be prevented[96].” Hence it was, that he was perpetually raising her fears, by the discovery of some plot, or, when that was wanting, by the proposal of some law for her greater security. In short, he was for ever finding, or making, or suggesting, dangers. The queen, though she would look big (for indeed she was an excellent actress), startled at the shadows of those dangers, the slightest rumours. And to this convenient timidity of his mistress, so constantly alarmed, and relieved in turn by this wily minister, was owing, in a good degree, that long and unrivalled interest, he held in her favour.

Still, further, to this constitutional fear (which might be forgiven to her sex, if it had not been so strangely mixed with a more than masculine ferocity in other instances) must be ascribed those favourite maxims of policy, which ran through her whole government. Never was prince more attached to the Machiavelian doctrine, DIVIDE ET IMPERA, than our Elizabeth[97]. It made the soul of her policies, domestic and foreign. She countenanced the two prevailing factions of the time. The Churchmen and Puritans divided her favour so equally, that her favourites were sure to be the chiefs of the contending parties. Nay, her court was a constant scene of cabals and personal animosities. She gave a secret, and sometimes an open, countenance to these jealousies. The same principle directed all her foreign[98] negociations.

And are you not aware, interrupted Dr. Arbuthnot, that this objected policy is the very topic that I, and every other admirer of the queen, would employ in commendation of her great ability in the art of government? It has been the fate of too many of our princes (and perhaps some late examples might be given) to be governed, and even insulted, by a prevailing party of their own subjects. Elizabeth was superior to such attempts. She had no bye-ends to pursue. She frankly threw herself on her people. And, secure in their affection, could defeat at pleasure, or even divert herself with, the intrigues of this or that aspiring faction.

We understand you, Mr. Addison replied; but when two parties are contending within a state, and one of them only in its true interest, the policy is a little extraordinary that should incline the sovereign to discourage this, from the poor ambition of controuling that, or, as you put it still worse, from the dangerous humour of playing with both parties. I say nothing of later times. I only ask; if it was indifferent, whether the counsels of the Cecils or of Leicester were predominant in that reign? But I mentioned these things before, and I touch them again now, only to shew you, that this conduct, however it may be varnished over by the name of wisdom, had too much the air of fearful womanish intrigue, to consist with that heroical firmness and intrepidity so commonly ascribed to queen Elizabeth[99].

And what if, after all, I should admit, replied Dr. Arbuthnot, that, in the composition of a woman’s courage, at least, there might be some scruples of discretion? Is there any advantage, worth contending for, you could draw from such a concession? Or, because you would be thought serious, I will put the matter more gravely. The arts of prudence, you arraign so severely, could not be taken for pusillanimity. They certainly were not, in her own time; for she was not the less esteemed or revered by all the nations of Europe on account of them. The most you can fairly conclude is, that she knew how to unite address with bravery, and that, on occasion, she could dissemble her high spirit. The difficulties of her situation obliged her to this management.

Rather say at once, returned Mr. Addison, that the constant dissimulation, for which she was so famous, was assumed to supply the want of a better thing, which had rendered all those arts as unnecessary as they were ignoble.

But haughtiness and timidity, pursued he, were not the only vices that turned to good account in the queen’s hands. She was frugal beyond all bounds of decorum in a prince, or rather AVARICIOUS beyond all reasonable excuse from the public wants and the state of her revenue. Nothing is more certain than this fact, from the allowance both of friends and enemies. It seems as if, in this respect, her father’s example had not been sufficient; and that, to complete her character, she had incorporated with many of his, the leading vice of her grandfather.

Here Dr. Arbuthnot could not contain himself; and the castle happening at that time, from the point where they stood, to present the most superb prospect, “Look there, said he, on the striking, though small, remnants of that grandeur you just now magnified so much; and tell me if, in your conscience, you can believe such grants are the signs, or were the effects, of avarice. For you are not to learn, that this palace before us is not the only one in the kingdom, which bears the memory of the queen’s bounty to her servants.”

Mr. Addison seemed a little struck with the earnestness of this address: “It is true, said he, the queen’s fondness for one or two of her favourites made her sometimes lavish of her grants; especially of what cost her nothing, and did not, it seems, offend the delicacy of her scruples; I mean, of the church-lands. But at the same time her treasury was shut against her ambassadors and foreign ministers; who complain of nothing more frequently than the slenderness of their appointments, and the small and slow remittances that were made to them. This frugality (for I must not call it by a worse name) distressed the public service on many occasions[100]; and would have done it on more, if the zeal of her trusty servants had not been content to carry it on at the expence of their own fortunes. How many instances might be given of this, if ONE were not more than sufficient, and which all posterity will remember with indignation!

You speak of Walsingham, interposed Dr. Arbuthnot. But were it not more candid to impute the poverty of that minister to his own generous contempt of riches, which he had doubtless many, fair occasions of procuring to himself, than to any designed neglect of him by his mistress?

The candour, returned Mr. Addison, must be very extraordinary, that can find an excuse for the queen in a circumstance that doubles her disgrace. But be it as you pretend. The uncommon moderation of the man shall be a cover to the queen’s parsimony. It was not, we will say, for this wise princess to provoke an appetite for wealth in her servants: it was enough that she gratified it, on proper occasions, where she found it already raised. And in this proceeding, no doubt, she was governed by a tender regard, for their honour, as well as her own interest. For how is her great secretary ennobled, by filling a place in the short list of those worthies, who, having lived and died in the service of their countries, have left not so much as a pittance behind them, to carry them to their graves! All this is very well. But when she had indulged this humour in one or two of her favourites, and suffered them, for example’s sake, to ascend to these heights of honour, it was going, methinks, a little too far, to expect the same delicacy of virtue in all her courtiers. Yet it was not her fault, if most of them did not reap this fame of illustrious poverty, as well as Walsingham. She dealt by them, indeed, as if she had ranked poverty, as well as celibacy, among the cardinal virtues.

In the mean time, I would not deny that she had a princely fondness for shew and appearance. She took a pride in the brilliancy of her court. She delighted in the large trains of her nobility. She required to be royally entertained by them. And she thought her honour concerned in the figure they made in foreign courts, and in the wars. But, if she loved this pomp, she little cared to furnish the expence of it. She considered in good earnest (as some have observed, who would have the observation pass for a compliment[101]) the purses of her subjects as her own; and seemed to reckon on their being always open to her on any occasion of service, or even ceremony. She carried this matter so far, that the very expences of her wars were rather defrayed out of the private purses of her nobility, than the public treasury. As if she had taken it for a part of her prerogative to impoverish her nobles at pleasure; or rather, as if she had a mind to have it thought that one of their privileges was, to be allowed to ruin themselves from a zeal to her service.

But the queen’s avarice, proceeded he, did not only appear from her excessive parsimony in the management of the public treasure, but from her rapacity in getting what she could from particulars into her privy purse. Hence it was that all offices, and even personal favours, were in a manner set to sale. For it was a rule with her majesty, to grant no suit but for a reasonable consideration. So that whoever pretended to any place of profit or honour was sure to send a jewel, or other rich present beforehand, to prepare her mind for the entertainment of his petition. And to what other purpose was it that she kept her offices so long vacant, but to give more persons an opportunity of winning a preference in her favour; which for the most part inclined to those who had appeared, in this interval, to deserve it best? Nay, the slightest disgust, which she frequently took on very frivolous occasions, could not be got over but by the reconciling means of some valuable or well fancied present. And, what was most grievous, she sometimes accepted the present, without remitting the offence.

I remember a ridiculous instance of this sort. When the Lady Leicester wanted to obtain the pardon of her unfortunate son, the Lord Essex, she presented the queen with an exceeding rich gown, to the value of above an hundred pounds. She was well pleased with the gift, but thought no more of the pardon. We need not, after this, wonder at what is said of her majesty’s leaving a prodigious quantity of jewels and plate behind her, and even a crowded wardrobe. For so prevalent was this thrifty humour in the queen’s highness, that she could not persuade herself to part with so much, as a cast-gown to any of her servants[102].

You allow yourself to be very gay, replied Dr. Arbuthnot, on this foible of the great queen. But one thing you forget, that it never biased her judgment so far as to prevent a fit choice of her servants on all occasions[103]. And, as to her wary management of the public revenue, which you take a pleasure to exaggerate, this, methinks, is a venial fault in a prince, who could not, in her circumstances; have provided for the expences of government, but by the nicest and most attentive economy.

I understand, said Mr. Addison, the full force of that consideration; and believe it was that attention principally, which occasioned the popularity of her reign, and the high esteem, in which the wisdom of her government is held to this day. The bulk of her subjects were, no doubt, highly pleased to find themselves spared on all occasions of expence. And it served at the same time, to gratify their natural envy of the great, to find, that their fortunes were first and principally sacrificed to the public service. Nay, I am not sure that the very rapacity of her nature, in the sale of her offices, was any objection with the people at large, or even the lower gentry of the kingdom. For these, having no pretensions themselves to those offices, would be well enough pleased to see them not bestowed on their betters, but dearly purchased by them. And then this traffic at court furnished the inferior gentry with a pretence for making the most of their magistracies. This practice at least must have been very notorious amongst them, when a facetious member of the lower house could define a justice of peace to be, “A living creature, that for half a dozen of chickens, will dispense with a whole dozen of penal statutes[104].” But, however this be, the queen’s ends, in every view, were abundantly answered. She enriched herself: she gained the affections of the people, and depressed and weakened the nobility. And by all these ways she effectually provided for, what she had ever most at heart, her own supreme and uncontrolled authority.

And is that to be wondered at in a great prince? returned Dr. Arbuthnot. Or, to take the matter in the light you place it, what if the queen had so much of her sex[105] and family in her disposition, as to like well enough to have her own way, is this such a crime as you would make of it? If she loved power, it was not to make a wanton or oppressive use of it. And if all princes knew as well to bound their own wills, as she did, we should not much complain of their impatience to be under the control of their subjects.

I am sorry, said Mr. Addison, that the acts of her reign will not allow me to come into this opinion of her moderation. On the other hand, her government appears to me, in many instances, OPPRESSIVE, and highly prejudicial to the ancient rights and privileges of her people. For what other construction can we make of her frequent interposition to restrain the counsels of their representatives in parliament: threatening some, imprisoning others, and silencing all with the thunder of her prerogative? Or, when she had suffered their counsels to ripen into bills, what shall we say of her high and mighty rejection of them, and that not in single and extraordinary cases, but in matters of ordinary course, and by dozens? I pass by other instances. But was her moderation seen in dilapidating the revenues of the church; of that church, which she took under the wing of her supremacy, and would be thought to have sheltered from all its enemies[106]. The honest archbishop Parker, I have heard, ventured to remonstrate against this abuse, the cognizance of which came so directly within his province. But to what effect, may be gathered, not only from the continuance of these depredations, but her severe reprehension of another of her bishops, whom she threatened with an oath to UNFROCK—that was her majesty’s own word—if he did not immediately give way to her princely extortions.

It may be hardly worth while to take notice of smaller matters. But who does not resent her capricious tyranny, in disgracing such of her servants as presumed to deviate, on any pretence, from her good pleasure; nay, such as gave an implicit obedience to her will, if it stood with her interest to disgrace them? Something, I know, may be said to excuse the proceedings against the queen of Scots. But the fate of Davison will reflect eternal dishonour on the policy, with which that measure was conducted.

I run over these things hastily, continued Mr. Addison, and in no great order: but you will see what to conclude from these hints; which taken together, I believe, may furnish a proper answer to the most considerable parts of your apology.

To sum it up in few words. Those two great events of her time, the establishment of the Reformation, and the triumph over the power of Spain, cast an uncommon lustre on the reign of Elizabeth. Posterity, dazzled with these obvious successes, went into an excessive admiration of her personal virtues. And what has served to brighten them the more, is the place in which we chance to find her, between the bigot queen on the one hand, and the pedant king on the other. No wonder then that, on the first glance, her government should appear able, and even glorious. Yet, in looking into particulars, we find that much is to be attributed to fortune, as well as skill; and that her glory is even lessened by considerations, which, on a careless view, may seem to augment it. The difficulties, she had to encounter, were great. Yet these very difficulties, of themselves, created the proper means to surmount them. They sharpened the wits, inflamed the spirits, and united the affections, of a whole people. The name of her great enemy on the continent, at that time, carried terror with it. Yet his power was, in reality, much less than it appeared. The Spanish empire was corrupt and weak, and tottered under its own weight. But this was a secret even to the Spaniard himself. In the mean time, the confidence, which the opinion of great strength inspires, was a favourable circumstance. It occasioned a remissness and neglect of counsel on one side, in proportion as it raised the utmost vigilance and circumspection on the other. But this was not all. The religious feuds in the Low Countries—the civil wars in France—the distractions of Scotland—all concurred to advance the fortunes of Elizabeth. Yet all had, perhaps, been too little in that grand crisis of her fate, and, as it fell out, of her glory, if the conspiring elements themselves had not fought for her.

Such is the natural account of her foreign triumphs. Her domestic successes admit as easy a solution. Those external dangers themselves, the genius of the time, the state of religious parties, nay, the very factions of her court, all of them directly, or by the slightest application of her policy, administered to her greatness. Such was the condition of the times, that it forced her to assume the resemblance, at least, of some popular virtues: and so singular her fortune, that her very vices became as respectable, perhaps more useful to her reputation, than her virtues. She was vigilant in her counsels; careful in the choice of her servants; courteous and condescending to her subjects. She appeared to have an extreme tenderness for the interests, and an extreme zeal for the honour, of the nation. This was the bright side of her character; and it shone the brighter from the constant and imminent dangers, to which she was exposed. On the other hand, she was choleric, and imperious; jealous, timid, and avaricious: oppressive, as far as she durst; in many cases capricious, in some tyrannical. Yet these vices, some of them sharpened and refined her policy, and the rest, operating chiefly towards her courtiers and dependents, strengthened her authority, and rooted her more firmly in the hearts of the people. The mingled splendour of these qualities, good and bad (for even her worst had the luck, when seen but on one side, or in well-disposed lights to look like good ones) so far dazzled the eyes of all, that they did not, or would not, see many outrageous acts of tyranny and oppression.

And thus it hath come to pass that, with some ability, more cunning, and little real virtue, the name of Elizabeth is, by the concurrence of many accidental causes, become the most revered of any in the long roll of our princes. How little she merited this honour, may appear from this slight sketch of her character and government. Yet, when all proper abatement is made in both, I will not deny her to have been a great, that is, a fortunate, queen; in this, perhaps, the most fortunate, that she has attained to so unrivalled a glory with so few pretensions to deserve it.

And so, replied Dr. Arbuthnot, you have concluded your invective in full form, and rounded it, as the ancient orators used to do, with all the advantage of a peroration. But, setting aside this trick of eloquence, which is apt indeed to confound a plain man, unused to such artifices, I see not but you have left the argument much as you took it up; and that I may still have leave to retain my former reverence for the good old times of queen Elizabeth. It is true, she had some foibles. You have spared, I believe, none of them. But, to make amends for these defects, let but the history of her reign speak for her, I mean in its own artless language, neither corrupted by flattery, nor tortured by invidious glosses; and we must ever conceive of her, I will not say as the most faultless, perhaps not the most virtuous, but surely the most able, and, from the splendour of some leading qualities, the most glorious of our English monarchs.

To give you my notion of her in few Words.—For the dispute, I find, must end, as most others usually do, in the simple representation of our own notions.—She was discreet, frugal, provident, and sagacious; intent on the pursuit of her great ends, the establishment of religion, and the security and honour of her people: prudent in the choice of the best means to effect them, the employment of able servants, and the management of the public revenue; dexterous at improving all advantages which her own wisdom or the circumstances of the times gave her: fearless and intrepid in the execution of great designs, yet careful to unite the deepest foresight with her magnanimity. If she seemed AVARICIOUS, let it be considered that the nicest frugality was but necessary in her situation: if IMPERIOUS, that a female government needed to be made respectable by a shew of authority: and if at any time OPPRESSIVE, that the English constitution, as it then stood, as well as her own nature, had a good deal of that bias.

In a word, let it be remembered, that she had the honour of ruling[107], perhaps of forming, the wisest, the bravest, the most, virtuous people, that have adorned any age or country; and that she advanced the glory of the English name and that of her own dignity to a height, which has no parallel in the annals of our nation.

Mr. Digby, who had been very attentive to the course of this debate, was a little disappointed with the conclusion of it. He thought to have settled his judgment of this reign by the information his two friends should afford him. But he found himself rather perplexed by their altercations, than convinced by them. He owned, however, the pleasure they had given him; and said, he had profited so much at least by the occasion, that, for the future, he should conceive with something less reverence of the great queen, and should proceed with less prejudice to form his opinion of her character and administration.

Mr. Addison did not appear quite satisfied with this sceptical conclusion; and was going to enforce some things, which he thought had been touched too slightly, when Dr. Arbuthnot took notice that their walk was now at an end; the path, they had taken, having by this time brought them round again to the walls of the castle. Besides, he said, he found himself much wearied with this exercise; though the warmth of debate, and the opportunities he took of resting himself at times, had kept him from complaining of it. He proposed, therefore, getting into the coach as soon as possible; where, though the conversation was in some sort resumed, there was nothing material enough advanced on either side to make it necessary for me to continue this recital any further.

DIALOGUE V.
ON THE
CONSTITUTION
OF THE
ENGLISH GOVERNMENT.
BETWEEN
SIR JOHN MAYNARD, MR. SOMERS,
AND
BISHOP BURNET.

DIALOGUE V.
ON THE CONSTITUTION OF THE ENGLISH GOVERNMENT.

SIR JOHN MAYNARD, MR. SOMERS, BISHOP BURNET[108].

TO DR. TILLOTSON.

Though the principles of nature and common sense do fully authorise resistance to the civil magistrate in extreme cases, and of course justify the late Revolution to every candid and dispassionate man; yet I am sensible, my excellent friend, there are many prejudices which hinder the glorious proceedings in that affair from being seen in their true light. The principal of them, indeed, are founded on false systems of policy, and those tied down on the consciences of men by wrong notions of religion. And such as these, no doubt, through the experience of a better government, and a juster turn of thinking, which may be expected to prevail in our times, will gradually fall away of themselves.

But there is another set of notions on this subject, not so easy to be discredited, and which are likely to keep their hold on the minds even of the more sober and considerate sort of men. For whatever advantage the cause of liberty may receive from general reasonings on the origin and nature of civil government, the greater part of our countrymen will consider, and perhaps rightly, the inquiry into the constitution of their own government, as a question of FACT; that must be tried by authorities and precedents only; and decided at last by the evidence of historical testimony, not by the conclusions of philosophy or political speculation.

Now, though we are agreed that this way of managing the controversy must, when fully and fairly pursued, be much in favour of the new settlement, yet neither, I think, is it for every man’s handling, nor is the evidence resulting from it of a nature to compel our assent. The argument is formed on a vast variety of particulars, to be collected only from a large and intimate acquaintance with the antiquities, laws, and usages of the kingdom. Our printed histories are not only very short and imperfect; but the original records, which the curious have in their possession, are either so obscure or so scanty, that a willing adversary hath always in readiness some objection, or some cavil at least, to oppose to the evidence that may be drawn from them. Besides, appearances, even in the plainest and most unquestioned parts of our history, are sometimes so contradictory; arising either from the tyranny of the prince, the neglect of the people, or some other circumstance of the times; and, to crown all, the question itself hath been so involved by the disputations of prejudiced and designing men; that the more intelligent inquirer is almost at a loss to determine for himself, on which side the force of evidence lies.

On this account I have frequently thought with myself, that a right good CONSTITUTIONAL HISTORY of England would be the noblest service that any man, duly qualified for the execution of such a work, could render to his country. For though, as I said, the subject be obscure in itself, and perplexed by the subtilties which contending parties have invented for the support of their several schemes; yet, from all I have been able to observe in the course of my own reading, or conversation, there is little doubt but that the form of the English government hath, at all times, been FREE. So that, if such a history were drawn up with sufficient care out of our authentic papers and public monuments, it would not only be matter of entertainment to the curious, but the greatest security to every Englishman of his religions and civil rights. For what can be conceived, more likely to preserve and perpetuate these rights, than the standing evidence which such a work would afford, of the genuine spirit and temper of the constitution? Of the principles of freedom[109], on which it was formed, and on which it hath been continually and uniformly conducted? Our youth, who at present amuse themselves with little more than the military part of our annals, would then have an easy opportunity of seeing to the bottom of all our civil and domestic broils. They would know on what pretences the PREROGATIVE of our kings hath sometimes aspired to exalt itself above controul; and would learn to revere the magnanimity of their forefathers, who as constantly succeeded in their endeavours to reduce it within the ancient limits and boundaries of the LAW. In a word, they would no longer rest on the surface and outside, as it were, of the English affairs, but would penetrate the interior parts of our constitution; and furnish themselves with a competent degree of civil and political wisdom; the most solid fruit that can be gathered from the knowledge and experience of past times.

And I am ready to think that such a provision as this, for the instruction of the English youth, may be the more requisite, on account of that limited indeed, yet awful form of government, under which we live. For, besides the name, and other ensigns of majesty, in common with those who wear the most despotic crown, the whole execution of our laws, and the active part of government, is in the hands of the prince. And this pre-eminence gives him so respectable a figure in the eyes of his subjects, and presents him so constantly, and with such lustre of authority, to their minds, that it is no wonder they are sometimes disposed to advance him, from the rank of first magistrate of a free people, into that of supreme and sole arbiter of the laws.

So that, unless these prejudices are corrected by the knowledge of our constitutional history, there is constant reason to apprehend, not only that the royal authority may stretch itself beyond due bounds; but may grow, at length, into that enormous tyranny, from which this nation hath been at other times so happily, and now of late so wonderfully, redeemed.

But I suffer myself to be carried by these reflexions much further than I designed. I would only say to you, that, having sometimes reflected very seriously on this subject, it was with the highest pleasure I heard it discoursed of the other day by two of the most accomplished lawyers of our age: the venerable Sir John Maynard, who, for a long course of years, hath maintained the full credit and dignity of his profession; and Mr. Somers, who, though a young man, is rising apace, and with proportionable merits, into all the honours of it.

I was very attentive, as you may suppose, to the progress of this remarkable conversation; and, as I had the honour to bear a full share in it myself, I may the rather undertake to give you a particular account of it. I know the pleasure it will give you to see a subject, you have much at heart, and which we have frequently talked over in the late times, thoroughly, canvassed, and cleared up; as I think it must be, to your entire satisfaction.

It was within a day or two after that great event, so pleasing to all true Englishmen, THE CORONATION OF THEIR MAJESTIES[110], that Mr. Somers and I went; as we sometimes used, to pass an evening with our excellent friend, my Lord Commissioner[111]. I shall not need to attempt his character to you, who know him so well. It is enough to say, that his faculties and spirits are, even in this maturity of age, in great vigour. And it seems as if this joyful Revolution, so agreeable to his hopes and principles, had given a fresh spring and elasticity to both.

The conversation of course turned on the late august ceremony; the mention of which awakened a sort of rapture in the good old man, which made him overflow in his meditations upon it. Seeing us in admiration of the zeal which transported him, “Bear with me, said he, my young friends. Age, you know, hath its privilege. And it may be, I use it somewhat unreasonably. But I, who have seen the prize of liberty contending for through half a century, to find it obtained at last by a method so sure, and yet so unexpected, do you think it possible that I should contain myself on such an occasion? Oh, if ye had lived with me in those days, when such mighty struggles were made for public freedom, when so many wise counsels miscarried, and so many generous enterprises concluded but in the confirmation of lawless tyranny; if, I say, ye had lived in those days, and now at length were able to contrast with me, to the tragedies that were then acted, this safe, this bloodless, this complete deliverance: I am mistaken, if the youngest of you could reprove me for this joy, which makes me think I can never say enough on so delightful a subject.

BP. BURNET.

Reprove you, my lord? Alas! we are neither of us so unexperienced in what hath passed of late in these kingdoms, as not to rejoice with you to the utmost for this astonishing deliverance. You know I might boast of being among the first that wished for, I will not say projected, the measures by which it hath been accomplished. And for Mr. Somers, the church of England will tell——

MR. SOMERS.

I confess, my warmest wishes have ever gone along with those who conducted this noble enterprise. And I pretend to as sincere a pleasure as any man, in the completion of it. Yet, if we were not unreasonable at such a time, I might be tempted to mention one circumstance, which, I know not how, a little abates the joy of these triumphant gratulations.

SIR J. MAYNARD.

Is not the settlement then to your mind? Or hath any precaution been neglected, which you think necessary for the more effectual security of our liberties?

MR. SOMERS.

Not that. I think the provision for the people’s right as ample as needs be desired. Or, if any further restrictions on the crown be thought proper, it will now be easy for the people, in a regular parliamentary way, to effect it. What I mean is a consideration of much more importance.

BP. BURNET.

The pretended prince of Wales, you think, will be raising some disturbance, or alarm at least, to the new government. I believe, I may take upon me to give you perfect satisfaction upon that subject[112].

MR. SOMERS.

Still your conjectures fall short or wide of my meaning. Our new Magna Charta, as I love to call the Declaration of Rights, seems a sufficient barrier against any future encroachments of the CROWN. And I think, the pretended prince of Wales, whatever be determined of his birth, a mere phantom, that may amuse, and perhaps disquiet, the weaker sort for a while; but, if left to itself[113], will soon vanish out of the minds of the PEOPLE. Not but I allow that even so thin a pretence as this may, some time or other, be conjured up to disturb the government. But it must be, when a certain set of principles are called in aid to support it. And, to save you the further trouble of guessing, I shall freely tell you, what those principles are.—You will see, in them, the ground of my present fears and apprehensions.

It might be imagined that so necessary a Revolution, as that which hath taken place, would sufficiently approve itself to all reasonable men. And it appears, in fact, to have done so, now that the public injuries are fresh, and the general resentment of them strong and lively. But it too often happens, that when the evil is once removed, it is presently forgotten: and in matters of government especially, where the people rarely think till they are made to feel, when the grievance is taken away, the false system easily returns, and sometimes with redoubled force, which had given birth to it.

BP. BURNET.

One can readily admit the principles. But the conclusion, you propose to draw from them—

MR. SOMERS.

This very important one, “That, if the late change of government was brought about, and can be defended only, on the principles of liberty; the settlement, introduced by it, can be thought secure no longer than while those principles are rightly understood, and generally admitted.”

BP. BURNET.

But what reason is there to apprehend that these principles, so commonly professed and publickly avowed, will not continue to be kept up in full vigour?

MR. SOMERS.

Because, I doubt, they are so commonly and publickly avowed, only to serve a present turn; and not because they come from the heart, or are entertained on any just ground of conviction.

BP. BURNET.

Very likely: and considering the pains that have been taken to possess the minds of men with other notions of government, the wonder is, how they came to be entertained at all. Yet surely the experience of better times may be expected to do much. Men will of course think more justly on these subjects in proportion as they find themselves more happy. And thus the principles, which, as you say, were first pretended to out of necessity, will be followed out of choice, and bound upon them by the conclusions of their own reason.

MR. SOMERS.

I wish your lordship be not too sanguine in these expectations. It is not to be conceived how insensible the people are to the blessings they enjoy, and how easily they forget their past miseries. So that, if their principles have not taken deep root, I would not answer for their continuing much longer than it served their purpose to make a shew of them.

SIR J. MAYNARD.

I must confess, that all my experience of mankind inclines me to this opinion. I could relate to you some strange instances of the sort Mr. Somers hints at. But after all, Sir, you do not indulge these apprehensions, on account of the general fickleness of human nature. You have some more particular reasons for concluding that the system of liberty, which hath worked such wonders of late, is not likely to maintain its ground amongst us.

MR. SOMERS.

I have: and I was going to explain those reasons, if my lord of Salisbury had not a little diverted me from the pursuit of them.

It is very notorious from the common discourse of men even on this great occasion (and I wish it had not appeared too evidently in the debates of the houses), that very many of us have but crude notions of the form of government under which we live, and which hath been transmitted to us from our forefathers. I have met with persons of no mean rank, and supposed to be well seen in the history of the kingdom, who speak a very strange language. They allow, indeed, that something was to be done in the perilous circumstances into which we had fallen. But, when they come to explain themselves, it is in a way that leaves us no right to do any thing; at least, not what it was found expedient for the nation to do at this juncture. For they contend in so many words, “that the crown of England is absolute; that the form of government is an entire and simple monarchy; and that so it hath continued to be in every period of it down to the Abdication: that the Conquest, at least, to ascend no higher, invested the first William in absolute dominion; that from him it devolved of course upon his successors; and that all the pretended rights of the people, the Great Charters of ancient and modern date, were mere usurpations on the prince, extorted from him by the necessity of his affairs, and revocable at his pleasure: nay, they insinuate that parliaments themselves were the creatures of his will; that their privileges were all derived from the sovereign’s grant; and that they made no part in the original frame and texture of the English government.

In support of this extraordinary system, they refer us to the constant tenor of our history. They speak of the Conqueror, as proprietary of the whole kingdom: which accordingly, they say, he parcelled out, as he saw fit, in grants to his Norman and English subjects: that, through his partial consideration of the church, and an excessive liberality to his favoured servants, this distribution was so ill made, as to give occasion to all the broils and contentions that followed: that the churchmen began their unnatural claim of independency on the crown; in which attempt they were soon followed by the encroaching and too powerful barons: that, in these struggles, many flowers of the crown were rudely torn from it, till a sort of truce was made, and the rebellious humour somewhat composed, by the extorted articles of Running-mede: that these confusions, however, were afterwards renewed, and even increased, by the contests of the two houses of York and Lancaster: but that, upon the union of the roses in the person of Henry VII, these commotions were finally appeased, and the crown restored to its ancient dignity and lustre: that, indeed, the usage of parliaments, with some other forms of popular administration, which had been permitted in the former irregular reigns, was continued; but of the mere grace of the prince, and without any consequence to his prerogative: that succeeding kings, and even Henry himself, considered themselves as possessed of an imperial crown; and that, though they might sometimes condescend to take the advice, they were absolutely above the control, of the people: in short, that the law itself was but the will of the prince, declared in parliament; or rather solemnly received and attested there, for the better information and more entire obedience of the subject.

This they deliver as a just and fair account of the English government; the genius of which, they say, is absolute and despotic in the highest degree; as much so, at least, as that of any other monarchy in Europe. They ask, with an air of insult, what restraint our Henry VIII, and our admired Elizabeth, would ever suffer to be put on their prerogative; and they mention with derision the fancy of dating the high pretensions of the crown from the accession of the Stuart family. They affirm, that James I, and his son, aimed only to continue the government on the footing on which they had received it; that their notions of it were authorized by constant fact; by the evidence of our histories; by the language of parliaments; by the concurrent sense of every order of men amongst us: and that what followed in the middle of this century was the mere effect of POPULAR, as many former disorders had been of PATRICIAN, violence. In a word, they conclude with saying, that the old government revived again at the Restoration, just as, in like circumstances, it had done before at the UNION of the two houses: that, in truth, the voluntary desertion of the late king have given a colour to the innovation of the present year; but that, till this new settlement was made, the English constitution, as implying something different from pure monarchy, was an unintelligible notion, or rather a mere whimsy, that had not the least foundation in truth or history.”

This is a summary of the doctrines, which, I doubt, are too current amongst us. I do not speak of the bigoted adherents to the late king; but of many cooler and more disinterested men, whose religious principles, as I suppose (for it appears it could not be their political), had engaged them to concur in the new settlement. You will judge, then, if there be not reason to apprehend much mischief from the prevalence and propagation of such a system: a system, which, as being, in the language of the patrons of it, founded upon fact, is the more likely to impose upon the people; and, as referring to the practice of ancient times, is not for every man’s confutation. I repeat it, therefore; if this notion of the despotic form of our government become general, I tremble to think what effect it may hereafter produce on the minds of men; especially when joined to that false tenderness, which the people of England are so apt to entertain for their princes, even the worst of them, under misfortune. I might further observe, that this prerogative system hath a direct tendency to produce, as well as heighten, this compassion to the sovereign. And I make no scruple to lay it before you with all its circumstances, because I know to whom I speak, and that I could not have wished for a better opportunity of hearing it confuted.

BP. BURNET.

I must own, though I was somewhat unwilling to give way to such melancholy apprehensions at this time, I think with Mr. Somers, there is but too much reason to entertain them. For my own part, I am apt to look no further for the right of the legislature to settle the government in their own way, than their own free votes and resolutions. For, being used to consider all political power as coming originally from the people, it seems to me but fitting that they should dispose of that power for their own use, in what hands, and under what conditions, they please. Yet, as much regard is due to established forms and ancient prescription, I think the matter of fact of great consequence; and, if the people in general should once conceive of it according to this representation, I should be very anxious for the issue of so dangerous an opinion. I must needs, therefore, join very entirely with Mr. Somers, in wishing to hear the whole subject canvassed, or rather finally determined, as it must be, if Sir John Maynard will do us the pleasure to acquaint us what his sentiments are upon it.

SIR J. MAYNARD.

Truly, my good friends, you have opened a very notable cause, and in good form. Only, methinks, a little less solemnity, if you had so pleased, might have better suited the occasion. Why, I could almost laugh, to hear you talk of feats and dangers from a phantom of your own raising. I certainly believe the common proverb belies us; and that old age is not that dastardly thing it hath been represented. For, instead of being terrified by this conceit of a prescriptive right in our sovereigns to tyrannize over the subject, I am ready to think the contrary so evident from the constant course of our history, that the simplest of the people are in no hazard of falling into the delusion. I should rather have apprehended mischief from other quarters; from the influence of certain speculative points, which have been to successfully propagated of late; and chiefly from those pernicious glosses, which too many of my order have made on the letter or the law, and too many of yours, my lord of Salisbury, on that of the gospel. Trust me, if the matter once came to a question of FACT, and the inquiry be only concerning ancient form and precedent, the decision will be in our favour. And for yourselves, I assure myself, this decision is already made. But since you are willing to put me upon the task, and we have leisure enough for such an amusement, I shall very readily undertake it. And the rather, as I have more than once in my life had occasion to go to the bottom of this inquiry; and now very lately have taken a pleasure to reflect on the general evidence which history affords of our free constitution, and to review the scattered hints and passages I had formerly set down for my private satisfaction.

“I understand the question to be, not under what form the government hath appeared at some particular conjunctures, but what we may conclude it to have been from the general current and tenor of our histories. More particularly, I conceive, you would ask, not whether the administration hath not at some seasons been DESPOTIC, but whether the genius of the government hath not at all times been FREE. Or, if you do not think the terms, in which I propose the question, strict enough, you will do well to state it in your own way, that hereafter we may have no dispute about it.

BP. BURNET.

I suppose, the question, as here put, is determinate enough for our purpose.—Or, have you, Mr. Somers, any exceptions to make to it?

MR. SOMERS.

I believe we understand each other perfectly well; the question being only this, “Whether there be any ground in history, to conclude that the prince hath a constitutional claim to absolute uncontrolable dominion; or, whether the liberty of the subject be not essential to every different form, under which the English government hath appeared?”

SIR J. MAYNARD.

You expect of me then to shew, in opposition to the scheme just now delivered by you, that neither from the original constitution of the government, nor from the various forms (for they have, indeed, been various) under which it hath been administered, is there any reason to infer, that the English monarchy is, or of right ought to be, despotic and unlimited.

Now this I take to be the easiest of all undertakings; so very easy, that I could trust a plain man to determine the matter for himself by the light that offers itself to him from the slightest of our histories. ’Tis true, the deeper his researches go, his conviction will be the clearer; as any one may see by dipping into my friend Nat. Bacon’s discourses; where our free constitution is set forth with that evidence, as must for ever have silenced the patrons of the other side, if he had not allowed himself to strain some things beyond what the truth, or indeed his cause, required. But, saving to myself the benefit of his elaborate work, I think it sufficient to take notice, that the system of liberty is supported even by that short sketch of our history, which Mr. Somers hath laid before us; and in spite of the disguises, with which, as he tells us, the enemies of liberty have endeavoured to cloak it.

You do not, I am sure, expect from me, that I should go back to the elder and more remote parts of our history; that I should take upon me to investigate the scheme of government, which hath prevailed in this kingdom from the time that the Roman power departed from us; or that I should even lay myself out in delineating, as many have done, the plan of the Saxon constitution: though such an attempt might not be unpleasing, nor altogether without its use, as the principles of the Saxon policy, and in some respects the form of it, have been constantly kept up in every succeeding period of the English monarchy. I content myself with observing, that the spirit of liberty was predominant in those times: and, for proof of it, appeal at present only to one single circumstance, which you will think remarkable. Our Saxon ancestors conceived so little of government, by the will of the magistrate, without fixed laws, that Laga, or Leaga, which in their language first and properly signified the same as Law with us, was transferred[114] very naturally (for language always conforms itself to the genius, temper, and manners of a nation) to signify a country, district, or province; these good people having no notion of any inhabited country not governed by laws. Thus Dæna-laga; Merkena-laga; and Westsexena-laga, were not only used in their laws and history to signify the laws of the Danes, Mercians, and West-Saxons, but the countries likewise. Of which usage I could produce to you many instances, if I did not presume that, for so small a matter as this, my mere word might be taken.

You see then how fully the spirit of liberty possessed the very language of our Saxon forefathers. And it might well do so; for it was of the essence of the German constitutions; a just notion of which (so uniform was the genius of the brave people that planned them) may be gathered, you know, from what the Roman historians, and, above all, from what Tacitus hath recorded of them.

But I forbear so common a topic: and, besides, I think myself acquitted of this task, by the prudent method, which the defenders of the regal power have themselves taken in conducting this controversy. For, as conscious of the testimony which the Saxon times are ready to bear against them, they are wise enough to lay the foundation of their system in the Conquest. They look, no higher than that event for the origin of the constitution, and think they have a notable advantage over us in deducing their notion of the English government from the form it took in the hands of the Norman invader. But is it not pleasant to hear these men calumniate the improvements that have been made from time to time in the plan of our civil constitution with the name of usurpations, when they are not ashamed to erect the constitution itself on what they must esteem, at least, a great and manifest usurpation?

BP. BURNET.

Conquest, I suppose, in their opinion, gives right. And since an inquiry into the origin of a constitution requires that we fix somewhere, considering the vast alterations introduced by the Conquest, and that we have never pretended to reject, but only to improve and complete, the duke of Normandy’s establishment; I believe it may be as proper to set out from that æra as from any other.

SIR J. MAYNARD.

Your lordship does not imagine that I am about to excuse myself from closing with them, even on their own terms. I intended that question only as a reproach to the persons we have to deal with; who, when a successful event makes, or but seems to make, for their idol of an absolute monarchy, call it a regular establishment: whereas a revolution brought about by the justest means, if the cause of liberty receive an advantage by it, shall be reviled by the name of usurpation. But let them employ what names they please, provided their facts be well grounded. We will allow them to dignify the Norman settlement with the title of CONSTITUTION. What follows? That despotism was of the essence of that constitution? So they tell us indeed; but without one word of proof, for the assertion. For what! do they think the name of conquest, or even the thing, implies an absolute unlimited dominion? Have they forgotten that William’s claim to the crown was, not conquest (though it enabled him to support his claim), but testamentary succession: a title very much in the taste of that time[115], and extremely reverenced by our Saxon ancestors? That, even waving this specious claim, he condescended to accept the crown, as a free gift; and by his coronation-oath submitted himself to the same terms of administration, as his predecessors? And that, in one word, he confirmed the Saxon laws, at least before he had been many years in possession of his new dignity[116].

Is there any thing in all this that favours the notion of his erecting himself, by the sole virtue of his victory at Hastings, into an absolute lord of the conquered country? Is it not certain that he bound himself, as far as oaths and declarations could bind him, to govern according to law; that he could neither touch the honours nor estates of his subjects but by legal trial; and that even the many forfeitures in his reign are an evidence of his proceeding in that method?

Still we are told “of his parcelling out the whole land, upon his own terms, to his followers;” and are insulted “with his famous institution of feudal tenures.” But what if the former of these assertions be foreign to the purpose at least, if not false; and the latter subversive of the very system it is brought to establish? I think, I have reason for putting both these questions. For, what if he parcelled out most, or all, of the lands of England to his followers? The fact has been much disputed. But be it, as they pretend, that the property of all the soil in the kingdom had changed hands: What is that to us, who claim under our Norman, as well as Saxon, ancestors? For the question, you see, is about the form of government settled in this nation at the time of the Conquest. And they argue with us, from a supposed act of tyranny in the Conqueror, in order to come at that settlement. The Saxons, methinks, might be injured, oppressed, enslaved; and yet the constitution, transmitted to us through his own Normans, be perfectly free.

But their other allegation is still more unfortunate. “He instituted, they say, the feudal law.” True. But the feudal law, and absolute dominion, are two things; and, what is more, perfectly incompatible.

I take upon me to say, that I shall make out this point in the clearest manner. In the mean time, it may help us to understand the nature of the feudal establishment, to consider the practice of succeeding times. What that was, our adversaries themselves, if you please, shall inform us. Mr. Somers hath told their story very fairly; which yet amounts only to this, “That, throughout the Norman and Plantagenet lines, there was one perpetual contest between the prince and his feudatories for law and liberty:” an evident proof of the light in which our forefathers regarded the Norman constitution. In the competition of the two Roses, and perhaps before, they lost sight indeed of this prize. But no sooner was the public tranquillity restored, and the contending claims united in Henry VII. than the old spirit revived. A legal constitution became the constant object of the people; and, though not always avowed, was, in effect, as constantly submitted to by the sovereign.

It may be true, perhaps, that the ability of one prince[117], the imperious carriage of another[118], and the generous intrigues of a third[119]; but, above all, the condition of the times, and a sense of former miseries, kept down the spirit of liberty for some reigns, or diminished, at least, the force and vigour of its operations. But a passive subjection was never acknowledged, certainly never demanded as a matter of right, till Elizabeth now and then, and King James, by talking continually in this strain, awakened the national jealousy; which proved so uneasy to himself, and, in the end, so fatal to his family.

I cannot allow myself to mention these things more in detail to you, who have so perfect a knowledge of them. One thing only I insist upon, that, without connecting the system of liberty with that of prerogative in our notion of the English government, the tenor of our history is perfectly unintelligible; and that no consistent account can be given of it, but on the supposition of a LEGAL LIMITED CONSTITUTION.

MR. SOMERS.

Yet that constitution, it will be thought, was at least ill defined, which could give occasion to so many fierce disputes, and those carried on through so long a tract of time, between the crown and the subject.

SIR J. MAYNARD.

The fault, if there was one, lay in the original plan of the constitution itself; as you will clearly see when I have opened the nature of it, that is, when I have explained the genius, views, and consequences of the FEUDAL POLICY. It must, however, be affirmed, that this policy was founded in the principles of freedom, and was, in truth, excellently adapted to an active, fierce, and military people; such as were all those to whom these western parts of Europe have been indebted for their civil constitutions. But betwixt the burdensome services imposed on the subject by this tenure, or which it gave at least the pretence of exacting from him, and the too great restraint which an unequal and disproportioned allotment of feuds to the greater barons laid on the sovereign; but above all, by narrowing the plan of liberty too much; and, while it seemed to provide for the dependency of the prince on one part of his subjects, by leaving both him and them in a condition to exercise an arbitrary dominion over all others: hence it came to pass that the feudal policy naturally produced the struggles and convulsions, you spoke of, till it was seen in the end to be altogether unsuited to the circumstances of a rich, civilized, and commercial people. The event was, that the inconveniences, perceived in this form of government, gradually made way for the introduction of a better; which was not, however, so properly a new form, as the old one amended and set right; cleared of its mischiefs and inconsistencies, but conducted on the same principles as the former, and pursuing the same end, though by different methods.

It is commonly said, “That the feudal tenures were introduced at the Conquest.” But how are we to understand this assertion? Certainly, not as if the whole system of military services had been created by the Conqueror; for they were essential to all the Gothic or German constitutions. We may suppose then, that they were only new-modelled by this great prince. And who can doubt that the form, which was now given to them, would be copied from that which the Norman had seen established in his own country? It would be copied then from the proper FEUDAL FORM; the essence of which consisted in the perpetuity of the feud[120]; whereas these military tenures had been elsewhere temporary only, or revocable at the will of the lord.

But to enter fully into the idea of the feudal constitution; to see at what time, and in what manner, it was introduced: above all, to comprehend the reasons that occasioned this great change; it will be convenient to look back to the estate of France, and especially of Normandy, where this constitution had, for some years, taken place before it was transferred to us at the Conquest.

Under the first princes of the Carlovingian line, the lands of France were of two kinds, ALLODIAL, and BENEFICIARY. The allodial, were estates of inheritance; the persons possessing them, were called Hommes libres. The beneficiary, were held by grants from the crown. The persons holding immediately under the emperor, were called Leudes; the sub-tenants, Vassals.

Further, the allodial lands were alienable, as well as hereditary. The beneficiary were properly neither. They were held for life, or a term of years, at the will of the lord, and reverted to him on the expiration of the term for which they were granted.

I do not stay to explain these institutions minutely. It is of more importance to see the alterations that were afterwards made in them. And the FIRST will be thought a strange one.

The possessors of allodial lands, in France, were desirous to have them changed into tenures. They who held of the crown in capite were entitled to some distinctions and privileges, which the allodial lords wished to obtain; and therefore many of them surrendered their lands to the emperor, and received them again of him, in the way of tenure. This practice had taken place occasionally from the earliest times: but under Charles the Bald, it became almost general; and free-men not only chose to hold of the emperor, but of other lords. This last was first allowed, in consequence of a treaty between the three brothers, after the battle of Fontenay in 847.

But these free-men were not so ill-advised as to make their estates precarious, or to accept a life estate instead of an inheritance. It was requisite they should hold for a perpetuity. And this I take to have been the true origin of hereditary feuds. Most probably, in those dangerous times, little people could not be safe without a lord to protect them: and the price of this protection was the change of propriety into tenure.

The SECOND change was by a law made under the same emperor in the year 877, the last of his reign. It was then enacted, that beneficiary estates held under the crown should descend to the sons of the present possessors: yet not, as I conceive, to the eldest son; but to him whom the emperor should chuse; nor did this law affect the estates only, but offices, which had hitherto been also beneficiary; and so the sons of counts, marquises, &c. (which were all names of offices, not titles of honour) were to succeed to the authority of their fathers, and to the benefice annexed to it. The new feuds, created in allodial lands, had, I suppose, made the emperor’s tenants desirous of holding on the same terms; and the weakness of the reigning prince enabled them to succeed in this first step, which prepared the way for a revolution of still more importance. For,

The THIRD change, by which the inheritance of beneficiary lands and offices was extended to perpetuity, and the possession rendered almost independent of the crown, was not, we may be sure, effected at once, but by degrees. The family of Charlemagne lost the empire: they resisted with great difficulty the incursions of the Normans; and, in the year 911, Normandy was granted to them as an hereditary fee. The great lords made their advantage of the public calamities; they defended the king on what terms they pleased; if not complied with in their demands, they refused their assistance in the most critical conjunctures: and before the accession of Hugh Capet, had entirely shaken off their dependence on the crown. For it is, I think, a vulgar mistake to say, that this great revolution was the effect of Hugh’s policy. On the contrary, the independence of the nobles, already acquired, was, as it seems to me, the cause of his success. The prince had no authority left, but over his own demesnes; which were less considerable than the possessions of some of his nobles. Hugh had one of the largest fiefs: and for this reason, his usurpation added to the power of the crown, instead of lessening it, as is commonly imagined. But to bring back the feuds of the other nobles to their former precarious condition was a thing impossible: his authority was partly supported by superior wisdom, and partly by superior strength, his vassals being more numerous than those of any other lord.

I cannot tell if these foreigners, when they adopted the feudal plan, were immediately aware of all the consequences of it. An hereditary tenure was, doubtless, a prodigious acquisition; yet the advantage was something counter-balanced by the great number of impositions which the nature of the change brought with it. These impositions are what, in respect of the lord, are called his FRUITS of tenure; such as Wardship, Marriage, Relief, and other services: and were the necessary consequence of the king’s parting with his arbitrary disposal of these tenures. For now that the right of inheritance was in the tenant, it seemed but reasonable, and, without this provision, the feudal policy could not have obtained its end, that the prince, in these several ways, should secure to himself the honour, safety, and defence, which the very nature of the constitution implied and intended. Hence hereditary feuds were very reasonably clogged with the obligations. I have mentioned; which, though trifling in comparison with the disadvantages of a precarious tenure, were yet at least some check on the independency acquired. However, these services, which were due to the king under the new model, were also due to the tenant in chief from those who held of him by the like tenure. And so the barons, or great proprietaries of land, considering more perhaps the subjection of their own vassals, than that by which themselves were bound to their sovereign, reckoned these burdens as nothing, with respect to what they had gained by an hereditary succession.

The example of these French feudataries, we may suppose, would be catching. We accordingly find it followed, in due time, in Germany; where Conrad II.[121] granted the like privilege of successive tenures, and at the pressing instance of his tenants.

I thought it material to remind you of these things; because they prove the feudal institution on the continent to have been favourable to the cause of liberty; and because it will abate our wonder to find it so readily accepted and submitted to here in England.

MR. SOMERS.

The account you have given, and, I dare say, very truly, of the origin of feuds in France and Germany, is such as shews them to have been an extension of the people’s liberty. There is no question that hereditary alienable estates have vastly the preference to beneficiary. But the case, I suspect, was different with us in England. The great offices of state, indeed, in this country, as well as in France, were beneficiary. But, if I do not mistake, the lands of the English, except only the church-lands, were all allodial. And I cannot think it could be for the benefit of the English to change their old Saxon possessions, subject only to the famous triple obligation, for these new and burdensome tenures.

SIR J. MAYNARD.

Strange as it may appear, we have yet seen that the French did not scruple to make that exchange even of their allodial estates. But to be fair, there was a great difference, as you well observe, in the circumstances of the two people. All the lands in England were, I believe, allodial, in the Saxon times: while a very considerable proportion of those in France were beneficiary.

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

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

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

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

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

MR. SOMERS.

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

SIR J. MAYNARD.

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

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

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.

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

SIR J. MAYNARD.

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

MR. SOMERS.

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

SIR J. MAYNARD.

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

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

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

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

MR. SOMERS.

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

SIR J. MAYNARD.

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

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

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

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

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

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

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

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

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

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

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

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

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

All this I might have displayed at large; and to others perhaps, especially if the cause had required such management, all this I should have displayed. But, independently of the judgments of particular men, which prejudice might take occasion to object to, I hold it sufficient to have proved from surer grounds, from the very form and make of our political fabric, and the most unquestioned, because the most public, monuments of former times, “That the English constitution is assuredly and indisputably free[156].”

BP. BURNET.

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

MR. SOMERS.

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

BP. BURNET.

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

SIR J. MAYNARD.

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

MR. SOMERS.

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

BP. BURNET.

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

THE END OF THE THIRD VOLUME.

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