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referred to, as contributing to maintain it in France amidst all the revolutions it was perpetually undergoing. These were the bondage in which the people were held, and which gave to their lords an absolute control over their property and labour-the supreme judicial and legislative authority of the feudatories within their fiefs—the right of war, so inconsistent with order and subordination and lastly, a certain equality and balance of power among those feudatories who alone could have entertained the project of universal conquest. As these main pillars or props of the system successively gave way, the edifice itself became more and more feeble and insecure, until, at a still later period, it crumbled into a heap of ruins under the energetic despotism of Richelieu.
One of the principal causes of its destruction is to be sought where so many other revolutions have had their origin in the courts of justice. No feudal principle was better established than that a vassal could only be tried by his peers, and therefore a vassal of the king was amenable to no tribunal but the Court of Assizes, which was as ancient as the monarchy itself, and ought, in strictness, to have been composed, exclusively, of the immediate feudatories of the crown. 'This eminent judicatory, thus coinposed of the tenants in capite of the king, ought to have been carefully distinguished from another feudal court which Hugh Capet and his descendants held as Dukes of France and Counts of Paris and Orleans, but froin soine unaccountable inadvertence, or supineness, or ignorance in the great vassals, this distinction was not observed, and strange as it may appear, the loss of that grandeur and independence wbich had been acquired by their ancestors at the price of so much toil and blood, and which had been transmitted to them through so many centuries of revolution and disorder, was, in a good degree, owing to the ambiguity of an expression. From the moment that they submitted to this mixed and irregular tribunal, their security was at an end. The influence of the crown over its humbler retainers—the envy entertained by these against the chief feudatories—the increase of the royal demesnes from the confiscation of John's fiefs-all conspired to make the ancient pretensions of the vassals, be looked upon, in process of time, as more unfounded and extravagant, just in proportion as it became more difficult to enforce them. In addition to this, a most important auxiliary of the crown was found in the Corpus Juris Civilis. This system of jurisprudence, so excellent in questions of contract and property, so detestable in matters of public law and political rights, now began to be generally studied by the clergy, who soon became the only judges and practitioners in the courts. These clerks had no pride of ancestry to indulge, no haughty privileges to maintain, no interests distinct from those of the monarch, of whom they were the creatures, nor did it ever enter into their hearts to conceive that it was equally their right and their duty, as successors of the high tribunal just mentioned, to restrain every attempt he might make, either by force or by fraud, to “to set himself in glory above his peers.” They were accustomed, by the discipline of the church, to reverence the person, and to submit, implicitly, to the behests of a superior*the maxims of the imperial law with which they were imbued, breathed nothing but servitude, and inculcated nothing but submission—they regarded the feudal customs as relics of ages of darkness and violence—and whatever, by those customs, was wanting to the king as suzerein or lord paramount, they more than made up to him, as a political sovereign, with adscititious prerogatives derived from the palace of the Cæsars. Public opinion was thus, by degrees, entirely changed. It formed itself upon these new principles. The rebellious and haughty spirit of feudal times was considered as barbarous, as blameable, as criminal; and when the great vassals, at length, became conscious of their degradation, and attempted to restore their hereditary power and dignity, they were surprised to find themselves denounced and punished as traitors and felons, for claiming what had once been their indisputable privileges. And lastly, the kings cut up their independence by the very roots, by granting a right of appeal from their courts to tbose of the crown, in all cases of denial of justice, which was soon construed to mean all cases whatsoever. Thus it happened in this as in other instances, that the right of interpreting the law, conferred the power of altering it—that a court of justice became the mightiest engine of usurpation—that the theory of a constitution was utterly superseded by an abusive practice, and a system of government and jurisprudence reared up with so much pains, and maintained so long by arms and by violence, was, ultimately, undermined and subverted by the silent progress of opinion.
We shall conclude our observations upon this head, with a few remarks concerning the system as it existed in England, and its connexion with the history of Magna Charta and the English Constitution. We have seen in the extract made in a preceding page, from the work of Mr. Humphreys, that it existed in that island only in a degenerate shape. The conqueror who established it there, was probably too well aware of its tendency from experience of its effects on the continent to consent, that the adventurers who followed his banner, should turn his favours into arms against their benefactor. He, accordingly, began with a fundamental innovation upon its principles, at the famous council of Salisbury, A. D. 1085, by exacting and receiving the homage of all landholders in England, as well those who held immediately of the crown, as of their subtenants or valvassors. In addition to this important peculiarity, the fiefs of the nobles in comparison of those in France, were small and scattered—the King's court was paramount, and the County court and courts of the hundreds, both Saxon institutions, kept within very narrow limits, the territorial jurisdiction of the barons. And lastly, it is not unworthy of consideration that the bulk of the population, as a conquered and oppressed people, bore an implacable hatred to the Norman lords.
* What is here said of the Civilians is certainly true of the Continental Clergy. The noble example, however, of Cardinal Langton, and the English ecclesiastics, shows that the spirit of Anglo Saxon liberty was not to be repressed or corrupted by their example,
It resulted, of course, from the restraints thus laid upon the power of the nobles, that the royal authority was more sensibly felt in England than in any other feudal kingdom. Important effects were produced by this peculiarity in its institutions. The administration of the Conqueror himself and of William Rufus, was not only vigorous, but despotic and oppressive; and, although the barons, taking advantage of the dependent situation of Henry I., who had succeeded to the throne to the exclusion of his elder brother Robert, extorted from him a charter, granting or guaranteeing to them the most extensive privileges, yet, subsequent monarchs did not conceive themselves bound by a bad bargain of their predecessor. The discontents of the barons, continually increasing, waited only for a fit opportunity to break forth in open revolt. Their individual weakness made combination necessary--the “ public good” is always the pretext, and sometimes the unlooked for consequence of factious or selfish opposition—and the vassals of the English throne, who, although tyrants themselves, were not powerful enough to resist a greater tyrant, extorted from him at Runnymeade, a treaty, which became, in later times, and under the influence of more enlightened ideas and a still more generous and lofty spirit, the fundamental law of the only free people in Europe.
We “deem, with mysterious reverence," of Magna Charta. Its name is identified with all the liberty—the rational and pure liberty—which now exists in either hemisphere. It produced all the good effects which can be expected from any written constitution. It supplied, and more than supplied the place of the laws of Edward the Confessor, of which nobody had any defi
vol. III.-N0. 5.
nite idea, and of those abstract political maxims which a rude people are incapable of comprehending. It was not only a charter but a chart to our English ancestors in their subsequent struggles with the crown : and when they stood up against the encroachments of prerogative and asserted the inalienable rights of human nature, this great charter which had been so often recognized and confirmed, which spoke a language so emphatic and precise, and which had come down to them, associated with so many lofty and ennobling recollections, served, at once, as the best authority and precedent and guide for them in their efforts to meliorate the condition of society. We admit that it would be difficult to overrate its effects—but if it is meant to infer from it, that the political opinions of the English were, at that time, more enlightened than those of other nations, we must be permitted to question the correctness of such a conclusion. We do not perceive that Magna Charta differs, materially, from any other feudal charter, except in the relative importance of its subject;*-in what Lord Coke calls “the great weightiness and weighty greatness of the matters contained therein.” It presupposes, in the king, an unlimited legislative power-spontanea et bona voluntate nostrâ, dedimus et concessimus. Nor did the barons, whose combined efforts extorted it from a feeble and reluctant monarch, advance any pretensions themselves to a share in that power, or assert any maxims of government inconsistent with the established principles of the feudal system.
There is not a more common error than to ascribe our own notions to those who have gone before us, and to suppose that in politics, the same words always mean precisely the same things.t In that age of barbarism and violence, it seems to us next to impossible that any idea of well-regulated liberty should have been entertained by a whole class of men, and more especially by a body of petty tyrants, like the barons of England. We have met with the remark somewhere, and it is quite just, that in all the violent contentions of those times, now between the secular and ecclesiastical powers, then between the royal prerogative and the privileges of the noblesse, no mention is ever made of the rights of man, the fitness of things, the reasonableness or
* We reter the curious reader to the Book of Feuds, for some striking examples of this truth.
+ The construction put upon the words of Florus and Lampridius, by Blackstone, which we adverted to in a previous page, furnishes a striking exemplification of this remark. Does liber homo, in Magna Charta, mean freeman, freeholder, or gentleman? See Spelman's Glossary, and the 2d Institute.
Langton's character is, to us, a wonder or a mystery. He seems to have been an enlightened advocate of free institutions; but it is demonstrable from the whole tenor of English history and legislation, that the lay-lords were not so.
justice in the abstract of this or that institution, or principle, &c. Men had not yet learned the meaning of the words nation, constitution, society, the people. Magna Charta, in our opinion, some vague terms to the contrary notwithstanding—is an example of this truth. It is admitted not to have been so favourable to popular rights, as the charters extorted from Henry I., in the iron age of Norman despotism. In short, it seems to have grown out of no idées libérales, as the constitutionalists in France express it—no platonic love of liberty in the abstract. It was a mere treaty,* extorted “by the brute and boisterous force of violent men,” from a cowardly and feeble tyrant, whose pretensions came in conflict with their own, and whose arbitrary exactions, under colour of feudal dues, was likely to ruin their estates.
To sum up, in a few words, the difference between the effects of the feudal system in France and in England. In the former, owing to the great power of the chief feudatories, the rash confidence with which it inspired them, and the odium which it excited against them among the lower orders of the nobility and the people, it resulted, ultimately, in establishing the despotism of the throne, which triumphed over them one by one. In the latter, the weakness which made concert and union necessary in a common cause, had the salutary effect of awakening, by degrees, a sense of common interest, public spirit, an enlarged patriotism—the feudal confederacy was sooner merged in a consolidated nation-and what had been at first little more than the concession of a lord paramount, binding himself to adhere to the law of feods in its original spirit of a rudė and violent, but a manly and robust independence and equality, became, as we have already remarked, the fundamental constitution of a free people. Magna Charta was the means of bringing back the feodal aristocracy to its first principles—one of the worst governments upon the whole, as a practical system, that ever existed—yet, Selden and Coke and Hambden, regenerated the government of England by bringing it back to the principles of Magna Charta, as explained in an enlightened age. So pliable are all political forms—so absolutely do they depend upon the spirit which animates them, and the sense in which they are interpreted. So fortunate was it for the people of England, that by a series of events, the bold and proud character which was at first peculiar to her barons, became common to her whole people ; and, that the barriers which they had built up around their own privileges,
* See a piece published by Blackstone at the end of the Great Charter. Hæc est conventio inter Joannem Regem Angliæ.ex una parte, &c.