FOUNDATION OF THE CONSTITUTION OF ENGLAND.

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It appears to have had little more affinity with the present constitution, than the general relation, common indeed to all the governments established by the northern nations,that of having a king and a body of nobility; and the ancient Saxon government is "left us in story (to use the expressions of Sir William Temple on the subject) but like so many antique, broken, or defaced pictures, which may still represent something of the customs and fashions of those ages, though little of the true lines, proportions, or resemblance."*

It is at the æra of the conquest that we are to look for the real foundation of the English Constitution. From that period, says Spelman, novus seclorum nascitur ordo.t

*See his Introduction to the History of England.

+ See Spelman, Of Parliaments. It has been a favourite thesis with many writers, to pretend that the Saxon government was, at the time of the conquest, by no means subverted ;-that William of Normandy legally acceded to the throne, and consequently to the engagements of the Saxon Kings: and much argument has in particular been employed with regard to the word conquest, which, it has been said, in the feudal sense, only meant acquisition. These opinions have been particularly insisted upon in times of popular opposition: and, indeed, there was a far greater probability of success, in raising among the people the notions (familiar to them) of legal claims and long-established customs, than in arguing with them from the no less rational, but less determinate, and somewhat dangerous doctrines, concerning the original rights of mankind, and the lawfulness of at all times opposing force to an oppressive government.

But if we consider that the manner in which the public power is formed in a state is so very essential a part of its government, and that a thorough change in this respect was introduced into England by the conquest, we shall not scruple to allow that a new government was established. Nay, as almost the whole landed property in the kingdom was at that time transferred to other hands, a new system of criminal justice introduced, and the language of the law moreover altered, the revolution may be said to have been such as is not perhaps to be paralleled in the history of any other country

Some Saxon laws, favourable to the liberty of the people, were indeed again established under the successors of William: but the introduction of some new modes of proceeding in the courts of justice, and of a few particular laws, cannot, so long as the ruling power in the state remains the same, be said to be the introduction of a new government; and as, when the laws in question were again established, the public power in England continued in the same channel where the conquest had placed it, they were more properly new modifications of

William of Normandy having defeated Harold, and made himself master of the crown, subverted the ancient fabric of Saxon legislation: he exterminated, or expelled, the former occupiers of lands, in order to distribute their possessions among his followers; and establish the feudal system of government, as better adapted to his situation, and indeed the only one of which he possessed a competent idea.*

This sort of government prevailed also in almost all the other parts of Europe. But, instead of being established by dint of arms, and all at once, as in England, it had only been established on the continent, and particularly in France, through a long series of slow successive events;— a difference of circumstances this, from which consequences were in time to arise as important as they were at first difficult to be foreseen.

The German nations who passed the Rhine to conquer Gaul were in a great degree independent; their princes had no other title to their power but their own valour and the free election of the people; and, as the latter had acquired in their forest but contracted notions of sovereign authority, they followed a chief less in quality of subjects, than as companions in conquest.

Besides, this conquest was not the irruption of a foreign army, which only takes possession of fortified towns;-it was the general invasion of a whole people in search of new

the Anglo-Saxon constitution than they were the abolition of it; or, since they were again adopted from the Saxon legislation, they were rather imitations of that legislation, than the restoration of the Saxon government.

Contented, however, with the two authorities I have above quoted, I shall dwell no longer on a discussion of the precise identity, or difference, of two governments; that is, of two ideal systems, which only exist in the conceptions of men. Nor do I wish to explode a doctrine, which, in the opinion of some persons, giving an additional sanction and dignity to the English government, contributes to increase their love and respect for it. It will be sufficient for my purpose, if the reader shall be pleased to grant that a material change was, at the time of the conquest, effected in the government then existing, and is accordingly disposed to admit the proofs that will presently be laid before him, of such change having prepared the establishment of the present English constitution.

*The feudal system established by the conqueror was the most inexorable tyranny ever established in Europe. See note, p. 16.—Ed.

habitations; and, as the number of the conquerors bore a great proportion to that of the conquered, who were at the same time enervated by long peace, the expedition was no sooner completed that all danger was at an end, and of course their union also. After dividing among themselves what lands they thought proper to occupy, they separated; and though their tenure was at first only precarious, yet, in this particular, they depended not on the king, but on the general assembly of the nation.*

Under the kings of the first race, the fiefs, by the mutual connivance of the leaders, at first became annual; afterwards, held for life. Under the descendants of Charlemagne they became hereditary. And when at length Hugh Capet effected his own election, to the prejudice of Charles of Lorrain, intending to render the crown, which in fact was a fief, hereditary in his own family, he established the hereditariship of fiefs as a general principle; and from this epoch authors date the complete establishment of the feudal system in France.

On the other hand, the lords who gave their suffrages to Hugh Capet forgot not the interest of their own ambition. They completed the breach of those feeble ties which subjected them to the royal authority, and became everywhere independent. They left the king no jurisdiction, either over themselves or their vassals; they reserved the right of waging war with each other; they even assumed the same privilege, in certain cases, with regard to the king himself;§

*The fiefs were originally called terræ jure beneficii concessa; and it was not till under Charles le Gros that the term fief began to be in See BENEFICIUM, Gloss. Du Cange.

use.

Apud Francos vero, sensim pedetentimque, jure hæreditario ad hæredes subinde transierunt feuda; quod labente seculo nono incepit. See FEudum, Du Cange.

Hotoman has proved beyond a doubt, in his Franco-Gallia, that, under the two first races of kings, the crown of France was elective. The princes of the reigning family had nothing more in their favour than the custom of choosing one of that house.

§ The principal of these cases was, when the king refused to appoint judges to decide a difference between himself and one of his first barons: the latter had then a right to take up arms against the king; and the subordinate vassals were so dependent on their immediate lords that they were obliged to follow them against the lord paramount. St.

so that if Hugh Capet, by rendering the crown hereditary, laid the foundation of the greatness of his family, and of the crown itself, yet he added little to his own authority, and acquired scarcely anything more than a nominal superiority over the number of sovereigns who then swarmed in France.*

But the establishment of the feudal system in England was an immediate and sudden consequence of that conquest which introduced it. Besides, this conquest was made by a prince who kept the greater part of his army in his own pay, and who was placed at the head of a people over whom he was an hereditary sovereign,-circumstances which gave a totally different turn to the government of that kingdom.

Surrounded by a warlike, though a conquered nation, William kept on foot part of his army. The English, and after them the Normans themselves, having revolted, he crushed both; and the new king of England, at the head of victorious troops, having to do with two nations lying under a reciprocal check from the enmity they bore to each other, and, moreover, equally subdued by a sense of their unfortunate attempts of resistance, found himself in the most. favourable circumstances for becoming an absolute monarch; and his laws thus promulgated in the midst, as it were, of thunder and lightning, imposed the yoke of despotism both on the victors and the vanquished.†

Louis, though the power of the crown was in his time much increased, was obliged to confirm both this privilege of the first barons, and this obligation of their vassals.

"The grandees of the kingdom," says Mezeray, "thought that Hugh Capet ought to put up with all their insults, because they had placed the crown on his head: nay, so great was their licentiousness, that, on his writing to Audebert, viscount of Perigueux, ordering him to raise the siege he had laid to Tours, and asking him, by way of reproach, who had made him a viscount? that nobleman haughtily answered, 'Not you, but those that made you a king.' [Ce n'est pas vous, mais ceux qui vous ont fait roi.]

The Norman kings ruled with despotic tyranny, and their judicial and political maxims were made subservient to the inexorable rule of stern feudal domination. All independent action was denied to the barons, knights, and people, which did not correspond with the will of the supreme chief of all-the king-who held every family in the kingdom in bondage to himself by knight-service and vassalage. His fines, tenths, fifteenths, scutages, and taxes on hundreds, and various extor

He divided England into sixty thousand two hundred and fifty military fiefs, all held of the crown; the possessors of which were, on pain of forfeiture, to take up arms, and repair to his standard on the first signal: he subjected not only the common people, but even the barons, to all the rigours of the feudal government; he even imposed on them his tyrannical forest laws.*

tions, were uncertain in number and amount, and endless in exaction and practice. Under the Saxon period the ecclesiastics managed to evade paying taxes for their lands. They never escaped under the Norman kings, who practically considered England no more than as a great field for plunder; and who often subjected the monasteries to spoliation, and the priests and abbots to fines and confiscations. William the Conqueror spoliated the Saxon clergy; Henry the Second seized à-Becket's revenues; Richard laid the abbeys under contribution; he made the Cistercians compound by paying 150,000 marks for their wool; he exacted the fourth of the rents of the clergy; and a fourth of some, and the tenth of the revenues of all clerks. The Norman kings laid down as an absolute feudal tenure, that every manor, even those of the church and abbeys, was held, either immediately or mediately, as a benefice, of which the possessor was a tenant of the crown in capite, or as a sub-vassal: for the tenants of those manors were all bound by specific services. Beyond these it was understood the king could assemble his barons when he demanded extraordinary aids or grants. The attendance of the barons on those occasions, considered by some a privilege, by others a grievance, was termed the civil, in contradistinction to the military service of the barons and manorial lords. During the Norman period the king held the barons under fully as great submission as the barons held their own vassals. But after the Norman rule ceased, both in England and in France, the barons acquired the real, while the kings possessed little more than the nominal power; excepting when the frequent quarrels between the barons enfeebled their strength, and increased the regal authority. The ecclesiastical barons considered themselves as prelates or abbots, altogether independent of the state, and accountable only to the Pope. As the clergy could have no legitimate children, on their death the king considered their benefices as reversionary, and then as being vested in the crown. During the turbulence of the feudal age, the attachment of vassals to their chiefs, and the social relations which subsisted between the baron and his followers, were maintained by that mutual protection which the one required of the other as essential to their personal safety. The civil jurisdiction and military authority were also united, and formed an inseparable bond of feudal union between the baron and his vassals.-Ed.

* He reserved to himself an exclusive privilege of killing game throughout England, and enacted the severest penalties on all who should attempt it without his permission. The suppression, or rather

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