« AnteriorContinuar »
stood first in the catalogue of crimes, most repugnant to the very essence of a feudal tenure ; most severely and promptly avenged; most branded by general infamy. The feudal law books breathe throughout a spirit of honourable obligation. The feudal course of jurisdiction promoted, what trial by peers is peculiarly calculated to promote, a keener feeling, as well as readier perception, of moral as well as of legal distinctions. In the reciprocal services of lord and vassal, there was ample scope for every magnanimous and disinterested energy. The heart of man, when placed in circumstances that have a tendency to excite them, will seldom be deficient in such sentiments. No occasions could be more favourable, than the protection of a faithful supporter, or the defence of a beneficent sovereign, against such powerful aggression, as left little prospect except of sharing in his ruin.'
It is in France, chiefly, that Mr Hallam contemplates the feudal system and therefore, in describing its decay, he is naturally led to the consequences that ensued, in that kingdom, on its fall. He traces the gradual encroachments of the Crown, as the power of the nobility was reduced; its usurpation of the legislative authority, which had lain dormant for centuries; its assumption of the right of taxation, in opposition to the remonstrances of the States; its success in wresting from the Barons their territorial jurisdiction, and in placing the administration of justice in judges appointed by the king. He shows, in the course of this inquižy, that it was to the dissolution of all but the feudal government, at the accession of the third dynasty, and to the independence effected, and for many ages maintained by the feudal nobility, that the kings of France were indebted for the absolute authority which they at last acquired. When Hugh Capet usurped the throne, France was rather a collection of states, partially allied to each other, than a single monarchy. The kingdom was as a great fief, or rather as a bundle of fiefs, and the king little more than one of a number of feudal nobles, differing rather in dignity than in power from some of the rest.' The vassals of the Crown had the right of coining money, and of waging private war; they enjoyed exemption from all public tributes, except the feudal aids; were free from legislative control; and possessed the exclusive exercise of original jurisdiction in their dominions. . The king,' says St Lewis in his establishments, cannot make proclamation, that is, declare any new law, in the territory of a baron, without his consent, nor can the baron do so in that of a vavassor. If legislative power, therefore, be essential to sovereignty, we cannot, in strictness, assert the king of France to have been sovereign beyond the limits of his own domains.' Trusting to this cxemption from all laws, but those to which they had given their express consent, the barons withheld their presence from the king's court, or attended on particular occasions only, when questions of great public importance were to be discussed. In this suspension of legislative authority, the necessity of new laws induced the kings of France to frame ordinances by advice of their council; and to these ordinances, when they became powerful, they gave the effect of laws, by means of the coercive authority acquired by their courts of justice. The supreme legislative power of the Crown was, in this manner, the natural result of the original independence of the nobility, and of their ill-judged confidence in the stability of their feudal privileges.' In these and other encroachments of prerogative, the king had the never-failing support of the lawyers and the clergy, who were disgusted with the violence of the nobles, and had found, in the civil and canon law, a system of political maxims very different from those of the feudal code. A new theory of absolute power and unconditional obedience was introduced;' and Frenchmen were taught, that all feudal privileges were encroachments on the imprescriptible rights of the monarchy.'
The States General were first assembled by Philip the Fair, for the purpose of obtaining money from his subjects. * At no period, and in no instances did they possess a co-ordinate legislative authority with the Crown, or even a consenting voice. Mably, Boulainvilliers, and Montlosien are as decisive on this subject, as the most courtly writers of that country. It follows,' says Mr Hallam, that France never possessed a free constitution; nor had the monarchy any limitations in respect of enacting laws, save those which, until the reign of Philip the Fair, the feudal principles had imposed.' The sole privilege possessed by the States was, to grant money, and to regulate the collection of it. But, notwithstanding the narrow limits of their constitutional authority, they made various efforts to redress the grievances, and reform the government of the State. These attempts, however, though renewed at intervals, from the time of John to the reign of Charles VIII., were constantly defeated, either by the dissensions of the different orders, or by the disturbances and popular excesses to which they gave rise. The authority of the States, even in grants of money,
was extremely limited. They were held to have no power of imposing taxes without the specific consent of their constituents. Whether it was the timidity of the deputies, or false notions of freedom, which produced this doctrine, it was evidently repugnant to the stability and dignity of a representative assembly. Nor was it less ruinous in practice, than mistaken in theory. For as the necessary subsidies, after being provisionally granted by the States, were often rejected by their electors, the king found a reasonable pretence for dispensing with the concurrence of his subjects, when he levied contributions upon them.' In the fifteenth century, provincial assemblies, which were found to be more manageable than the States General, were substituted in their place for obtaining grants of money; and at length the formality of consent, whether by general or provincial States, ceased to be reckoned indispensable. Charles VII. levied money by his own authority. Lewis XI. carried this encroachment to the highest pitch of exaction. It was the boast of courtiers, that he first released the kings of France from dependence; or, in other words, that he effectually demolished those barriers, which, however imperfect and ill placed, had opposed some impediment to the establishment of despotism.'
After a long and unequal struggle to maintain their independence, the territorial courts of the Barons were brought under the authority of the royal tribunals. This change, in many respects beneficial to the people, was completed in the fourteenth century, by the establishment of the Parliament of Paris and other sovereign courts. But these tribunals, after contributing to the exaltation of the royal prerogative, attempted to set up barriers against the power they had created. It had be come usual to promulgate in the Parliament of Paris, the royal edicts prepared in the Council, or to send them thither for registration. · This formality was deemed essential to render them authentic and notorious, and thus indirectly gave them the sanction and validity of law.' In the fifteenth century, the Parliament began to claim a right of judging the expediency of the edicts transmitted to it for registration; and this pretension, extraordinary and anomalous as it appears, it maintained to the period of the Revolution. Subsequent regulations rendered its members independent of the Court; and, from the spirit of resistance which they afterwards displayed, this body of lawyers · became, in later times, the sole depositary of public spirit, and attachment to justice, in France. Doubtless,' says Mr Hallam, the Parliament of Paris, with its prejudices and narrow views; its high notions of loyal obedience, so strangely mixed up with remonstrances and resistance; its anomalous privilege of objecting to edicts, hardly approved by the nation who did not participate in it, and overturned with facility by the king, whenever he thought fit to exert the sinews of his prerogative, was indeed poorly substituted for that coordinate sovereignty, that equal concurrence of na
tional representatives in legislation, which has long been the exclusive pride of our government, and to which the States-General of France, in their best days, had never aspired. No man of sane understanding would desire to revive institutions, both uncongenial to modern opinions and to the natural order of society. Yet the name of the Parliament of Paris must ever be respectable. It exhibited, upon various occasions, virtues from which human esteem is as inseparable as the shadow from the substance ; a severe adherence to principles, an unaccommodating sincerity, individual disinterestedness and consistency.'
The decline of the feudal system in France, Mr Hallam ascribes to the aggrandisement of the Crown by the annexation of Normandy, Toulouse, and other great fiefs; to the institution of free and chartered towns; and to the introduction of hired soldiers in place of the feudal militia. The emancipation of the towns he refers to the necessities, rather than to the policy of the Court; and doubts whether the Crown derived any suh. stantial addition of power from this innovation, till the reign of Lewis VIII., when the king claimed the immediate sovereignty over all chartered towns, in exclusion of their original lords.' By the establishment of this pretension, and the prudent use made of it by the government, a deadly blow was given to the feudal aristocracy, which, from other causes, was going rapidly to decay. It is worthy of remark, that as soon as the independence of the Barons had completely yielded, the Court began to give into a new policy, which was ever after pursued; that of maintaining the dignity and privileges of the noble class against those attacks which wealth and liberty encouraged the plebeians to make upon them.' It was by this variable, but uniformly selfish policy, skilfully adapted to circumstances as they arose, that the kings of France were enabled to trample by turns on every class of their subjects, and erect an arbitrary despotism on the ruins of their liberty. To humble his nobles, the king condescended to become the protector of his towns, and dispenser of equal justice to his people. When his nobles were sufficiently humbled, he espoused their cause, and crushed their plebeian adversaries with his sceptre of iron. The lawyers, after contributing to his victory; and corrupting public opinion by their doctrines, when they attempted to raise their feeble voice against his power, found their own slavish maxims and lessons of obedience turned against themselves. Had these different orders of men possessed sagacity to discern their real interests, and sense to unite against their common enemy, France, like England, might have settled into a limited monarchy, instead of being for ages the scourge of Europe abroad, and victim of arbitrary power at home.
Mr Hallam finds instances of hired soldiers in the 10th and 11th centuries. In the 12th and 13th, the practice became common; and, in the 14th, nearly universal. But these soldiers were disbanded at the conclusion of hostilities; a standing army in time of peace being unknown in France, till the ordinance of Charles VII. in 1444. The employment of hired soldiers led to another innovation, that of escuage or scutage; which was a compensation in money paid by the feudal vassals to their sovereign, in lieu of the military service to which they were bound by their tenures. Madox cannot trace the existence of scutage in England beyond the time of Henry I. But there is a transaction recorded of William Rufus, that bears a great resemblance to it, and appears to us to throw considerable light upon its origin. We are informed in the Annals of Waverly, that in 1094, rex Willielmus misit ad hanc terram (Angliam scil.) et jussit summoneri viginti millia Anglorum qui venirent illi in aurilium in Normanniam ; sed postquam ad mare venerunt, jussi sunt redire, et mittere. regi pecuniam quam deferebant, scilicet unusquisque viginti solidos, quod ipsi fecerunt. * That is, the military tenants gave to the crown what they had provided to bear the expenses of their expedition, and the king accepted this payment in lieu of their personal attendance. They were saved from the dangers, inconvenience and fatigues of war; and he was furnished with money for the hire of mercenaries, whose • soldier-like principles of indiscriminate obedience, still more than their courage and field discipline, rendered them dear to kings, who dreaded the free spirit of a feudal army.'
Before taking leave of this part of Mr Hallam's book, we must observe, that some doubtful positions are maintained in it, to which we should have been desirous of calling his attention, if we had not been afraid of fatiguing our readers by the minuteness and prolixity of the discussion. We shall therefore content ourselves with expressing our doubts of the correctness of his statement, that the exclusion of females from inheritance in fixed possessions was very common among the Teutonic nations.' t-We shall cite a few examples to the contrary. The Burgundian law is one of the most antient codes of the Barbarians, and most exempt from the interpolation of later times. But in that code we have the following passage. Inter Burgundiones id volumus custodiri, ut si quis filium non reliquerit, in loco filii filia in patris matrisque hereditate succedat. I The same law of inheritance was established among the Lombards. Si quis
* Gale, 2. 139.
Tit. 14, 1.
+ Vol. I. p. 103. Not