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.