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 those 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it-that a court of justice became the mightiest engine of usurpation-that the theory of a constitution was utterly superseded by an abusive practice, and a system of government and jurisprudence reared up with so much pains, and maintained so long by arms and by violence, was,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

*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.

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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.

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. NO. 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-spontaneá et boná voluntate nostrá, 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 refer 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


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 rude 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 unâ parte, &c.

were found to be ample enough, after the lapse of some centurie, to furnish a complete protection to public liberty.

4. The effects of the system of Feods, upon the law of real estate, being our principal object in the following remarks, we shall say but a very few words about its influence upon the opinions and manners of modern society.

This is principally to be remarked in the ideas of civil liberty, and in the point of honour.

As to the former, the whole system of feuds rested upon the principle of a generous and honourable confidence, and implied the strictest reciprocity of rights and obligations. The gift was made without price or stipulation to him who seemed the most worthy of it-the loyalty of the vassal was the legitimate recompense, as it was the natural fruit of the benevolence of his lordhis own interests were indissolubly bound up in those of his benefactor-and his chief duties, the defence of the fief in war and attendance upon its courts in peace, were, at once, the proudest badge of his privileges, and the surest means of defending them. If he failed to perform these duties, he was branded with the disgrace which attends a breach of faith, and the refusal to pay a debt of honour; and the very sentence passed upon him, implied the entire freedom of his actions. In theory, at least, he had no oppression to fear, for he might resist, with open force, without violating the law-he had no arbitrary punishment to dread, for he was tried by his peers-nor was he degraded by the inequality of his condition, for his lord lay under reciprocal obligations quite equivalent to his own. The services he was called upon to perform were of the most honorable kindit was to be a brave knight in the field, a righteous judge in the court, a faithful and true friend in all the offices of life. It is manifest that such a relation in its purity, and as far as the aristocracy was concerned, was, in the highest degree, favorable to the spirit of liberty, and to the elevation of character which it begets. It naturally familiarized men's minds with that principle which is the basis of all well-regulated freedom, and which, in later times, has mitigated and softened even despotism into something like a constitutional polity, that obligation and right are reciprocal, and that the greatest ought not to be above the law which they impose upon the humble and the weak. It is true, centuries of tyranny, of war, of persecution, of cruelty, have been the bitter fruits of feudalism in Europe. Still, these terrible evils have not been unmingled with good-the original spirit of the system, the wild liberty of the Sicambri and the Scandinavians seems to have survived the abuses that oppressed it so long-and at the bottom of all this suffering and degrada

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