DE LOLME. 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*'" Foundation of the English con It is at the era of the conquest that we are to look stitution, is to be for the real foundation of the English constitution. From that period, says Spelman, novus seclorum nascitur ordot. William of Normandy, having defeated sought after at the era of the conquest. * 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 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 Vide ante, 1—18. DE LOLME. less in quality of subjects, than as companions in conquest. The fiefs by connivance at first afterwards, held for life. 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 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 than 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 became annual; 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 Lorraine, intending to render the crown, which in fact was a fief, hereditary in his own family ‡, he established the hereditaryship 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 * The fiefs were originally called terræ jure beneficii concessæ; and it was not till under Charles le Gros that the term fief began to be in use. See Beneficium Gloss. Du Cange. Apud Francos vero, sensium pedetentimque, jure hæreditario ad hæredes subinde transierunt feuda; quod labente seculo nono incepit. Se 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. suffrages to Hugh Capet, forgot not the interest of DE LOLME. 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*; 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 Francet. 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. The establishfeudal system in ment of the England was an immediate conconquest. sequence of the William L. Surrounded by a warlike, though a conquered nation, Despotism of William kept on foot part of his army. The English, and after them the Normans themselves, having 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. 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 who made you a king. [Ce n'est pas vous, mais ceux qui vous ont fait roi.]" |