It is at the era of the conquest, that we are to look fo the real foundation of the English constitution. From that period, says Spelman, novus seclorum nascitur ordo. William of Normandy, having defeated Harold, and made himself master of the crown, subverted the ancient fabric of the Saxon legislation: he exterminated, or expelled, the

b 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 was 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 has placed it, they were more properly new modifications of the Anglo-Norman constitution, than they were the abolition of it; or, since they were again adopted from the Saxon legislation, they were rather limitations of that legislation, than the restoration of the Saxon government.

Contented, however, with the two authorities I have above quoted (Spelman and Temple) 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

former occupiers of lands, in order to distribute their possessions among his followers; and established 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 forests 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 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, aud 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.c

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, in consequence, 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 fiefs were originally called terræ jure beneficii concessæ; and it was not till under Charles le Gros the term fief began to be See Beneficium-Gloss. Du Cange.

in use.

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 every where 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 any thing more than a nominal superiority over the number of sovereigns who then swarmed in France.s

Apud Francos vero, sensim pedetentimque, jure hæreditario ad hæredes transierunt feuda; quod labente seculo nono incipit. See Feudum-Du Cange.

e Hottoman has proved beyond a doubt, in his Francogallia, 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 chusing one of that house.

f 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.

8 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,

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 a 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 who lay under a reciprocal check from the enmity they bore to each other, and were 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.

He divided England into sixty thousand two hundred and fifteen 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.h

He assumed the prerogative of imposing taxes. He invested himself with the whole executive power of government. But what was of the greatest consequence, he arrogated to himself the most extensive judicial power in 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.' Non pas vous, mais ceux qui vous ont fait roi."

hHe reserved to himself an exclusive privilege of killing game throughout all England, and enacted the severest penalties on all who should attempt it without his permission. The suppression, or rather mitigation of these penalties, was one of the articles of the Charta de Foresta, which the barons afterwards obtained by force of arms. Nullus de cetero amittat vitam, vel membra, pro venatione nostrâ.—Ch. de Forest. Art. 10.

the establishment of the court which was called aula regis; a formidable tribunal, which received appeals from all the courts of the barons, and decided in the last resort on the estates, honour, and lives of the barons themselves; and which, being wholly composed of the great officers of the crown, removable at the king's pleasure, and having the king himself for president, kept the first nobleman in the kingdom under the same controul as the meanest subject.

Thus, while the kingdom of France, in consequence of the slow and gradual formation of the feudal government, found itself, in the issue, composed of a number of parts simply placed by each other, and without any reciprocal adherence, the kingdom of England on the contrary, in consequence of the sudden and violent introduction of the same system, became a compound of parts united by the strongest ties: and the regal authority, by the pressure of its immense weight, consolidated the whole into one compact indissoluble body.

To this difference in the original constitution of France and England, that is, in the original power of their kings, we are to attribute the difference, so little analogous to its original cause, of their present constitutions. It is this which furnishes the solution of a problem which, I must confess, for a long time perplexed me, and explains the reason why, of two neighbouring nations, situated almost under the same climate, and having one common origin, the one has attained the summit of liberty, the other has gradually sunk under the most absolute monarchy.

In France the royal authority was indeed inconsiderable; but this circumstance was by no means favourable to the general liberty. The lords were every thing; and the bulk of the nation were accounted nothing. All those wars which were made on the king, had not liberty for their object; for of this their chiefs already enjoyed but too great a share: they were the mere effects of private ambition or caprice. The people did not engage in them as associates in the support of a cause common to all; they were dragged, blindfold and like slaves, to the standard of their leaders. In the mean time, as the laws by virtue of which their masters were considered as vassals, had no relation to those by which they were them