Note 120 — DIALOGUE V. ON THE CONSTITUTION OF THE ENGLISH GOVERNMENT.

121 Craig’s Jus feudale, lib. i. p. 21. Lond. 1655.

122 This account of the Saxon benefices is much confirmed by the famous charter of Bishop Oswald, and the comment of Sir H. Spelman upon it. See his discourse on FEUDS and TENURES.

123 Matthew Paris gives us the following account of this matter—“Episcopatus et Abbatias omnes, quæ baronias tenebant, et eatenus ab omni servitute sæculari libertatem habuerant, sub servitute statuit militari, inrotulans singulos episcopatus et abbatias pro voluntate suâ, quot milites sibi et successoribus suis, hostilitatis tempore, voluit à singulis exhiberi. Et ROTULOS HUJUS ECCLESIASTICÆ SERVITUTIS ponens in thesauris, multos viros ecclesiasticos HUIC CONSTITUTIONI PESSIMÆ reluctantes, à regno fugavit.” Hist. Ang. Willielmus Conqæstor.

124 The learned Craig, who has written so largely and accurately on the feudal law, was so far from seeing any thing servile in it, that he says, “The foundations of this discipline are laid in the most generous of all considerations, those of Gratitude. Hujus feudalis disciplinæ fundamenta à gratitudine et ingratitudine descendunt.” Epist. Nuncup. to K. James.

125 This bounty in so wise a prince as William will be thought strange. I believe it may be, in part, accounted for, from what is observed above of the Saxon allodial lords. These had possessed immense estates. And, as they fell in upon forfeiture, the great Norman adventurers would of course expect to come into the entire succession.—Perhaps too, in that confusion of affairs, the prince might not always, himself, be apprized of the extent and value of these possessions.

126 The law of Edward the Confessor is express to this purpose, and it was ratified by the Conqueror—“Debet rex omnia ritè facere in regno et per judicium procerum regni.” Sir H. Spelman of Parliaments, p. 58.

127 M. De Montesquieu observes of the Gothic government—“Il fut d’abord melé de l’aristocratie, et de la monarchie. Il avoit cet inconvenient, que le bas-peuple y étoit esclave: C’étoit un bon gouvernment, qui avoit en soi la capacité de devenir meilleur.” [l. xi. c. 8.]—the very idea, which is here inculcated.

128 See old Fortescue, in his book De laudibus legum Angliæ, where this sort of analogy is pursued at length through a great part of the XIII^th chapter.

129 Agreeably to what Sir H. Spelman asserts, in his Glossary, of its parent, the feudal law itself; “De lege feudali—pronunciandum censeo, TEMPORIS eam esse filiam, sensimque succrescentem, EDICTIS PRINCIPUM auctam indies excultam.” In voce Feodum.

130 Diss. ad Flet. 1091. and William of Malmesbury, lib. iv. 1. 69. Lond. 1596.

131 Selden’s Works, vol. ii. p. 1082.

132 Diss. ad Flet. 1078.

133 Dr. Duck, De usu et authoritate juris civilis, p. 103. Lugd. Batav. 1654.

134 Policratic. lib. viii. c. 22. p. 672. Lugd. Bat. 1639.

135 Diss. ad Flet. 1082.

136 Diss. ad Flet. 1097.

137 Dr. Duck, p. 364.

138 Disc. Part I. p. 78. Lond. 1739.

139 At Merton, in the year 1236.

140 Diss. ad Flet. 1108.

141 See Fortescue, De laudibus leg. Angl. p. 74. Lond. 1741; and Selden’s Janus Anglorum, 1610, vol. ii. tom. ii.

142 Diss. ad Flet. 1104.

143 Dr. Duck, p. 365.

144 Diss. ad Flet. 1010.

145 Diss. ad Flet. 1106.

146 P. 1046.

147 Mr. Selden’s Diss. ad Flet. 1100.

148 De laud. leg. Ang. c. 33, 34.

149 Diss. ad Flet. 1102.

150 The speaker might have begun this account of the fate and fortunes of the civil law still higher. Nat. Bacon, speaking of Henry the Fifth’s reign, observes, “The times were now come about, wherein light began to spring forth, conscience to bestir itself, and men to study the scriptures. This was imputed to the idleness and carelessness of the clergy, who suffered the minds of young scholars to luxuriate into errors of divinity, for want of putting them on to other learning; and gave no encouragement to studies of human literature, by preferring those that were deserving. The convocation taking this into consideration, do decree, that no person should exercise any jurisdiction in any office, as vicar-general, commissary, or official, or otherwise, unless he shall first in the university have taken degrees in the CIVIL OR CANON LAWS. A shrewd trick this was, to stop the growth of the study of divinity, and Wickliff’s way; and to embellish men’s minds with a kind of learning that may gain them preferment, or at least an opinion of abilities beyond the common strain, and dangerous to be meddled with. Like some gallants, that wear swords as badges of honour, and to bid men beware, because they possibly may strike, though in their own persons they may be very cowards. And no less mischievously intended was this against the rugged COMMON LAW, a rule so nigh allied to the gospel-way, as it favoureth liberty; and so far estranged from the way of the civil and canon law, as there is no hope of accommodation till Christ and Antichrist have sought the field.” Disc. Part II. p. 90. Lond. 1739.

151 It should however be observed, in honour of their patriotism, that “they afterwards took themselves out of it,” when they saw the extremities to which the popular party were driving.

152 This alludes to the proceedings against the eleven members upon the charge of the Army. Sir John Maynard was one of them. And when articles of high treason were preferred against him, and the trial was to come on before the lords, he excepted to the jurisdiction of the court, and, by a written paper presented to them, required to be tried by his peers according to Magna Charta, and the law of the land. See Whitlocke’s Memorials; and a short pamphlet written on that occasion, called The Royal Quarrel, dated 9th of Feb. 1647.—Sir John was, at this time, a close prisoner in the Tower.

153 See his speech, inserted in his Memorials of English Affairs, Nov. 1649.

154 Disc. Part I. p. 78.

155 The reader may not be displeased to see the words of old Fortescue on this subject of the origin of the English government, which are very remarkable. In his famous book De laudibus legum Angliæ, he distinguishes between the REGAL and POLITICAL forms of government. In explaining the latter, which he gives us as the proper form of the English government, he expresseth himself in these words—“Habes instituti omnis POLITICI REGNI formam, ex quâ metiri poteris potestatem, quam rex ejus in leges ipsius aut subditos valeat exercere: ad tutelam namque legis subditorum, ac eorum corporum et bonorum rex hujusmodi erectus est, et hanc potestatem A POPULO EFFLUXAM ipse habet, quo ei non licet potestate aliâ suo populo dominari.” Cap. xiii.

156 It may be of little moment to us, at this day, to inquire, how far the princes of the house of Stuart were blameable for their endeavours to usurp on the constitution. But it must ever be of the highest moment to maintain, that we had a constitution to assert against them. Party-writers perpetually confound these two things. It is the author’s purpose, in these two Dialogues, to contend for the latter.

157 See the late History of England by David Hume, esq.; who forms the apology of the house of Stuart on these principles.