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.