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.