Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

In inferior assemblies, and in the forms of judicial proceedings, the marks are also to be traced of the power of the people, and of a limited administration. The hundred and county courts were admirably calculated for the protection of the subject. They were composed of freeholders, who were bound, under a penalty, to assemble at stated times; and who, with the hundreder, earl and bishop, gave decision in all matters of civil, criminal, or ecclesiastical import. A very powerful obstruction was thus created to the oppressions of the great. And, in the institution of a jury, our ancestors possessed a bulwark, the most efficacious and noble that human wisdom has ever devised for the security of the persons and possessions of men[11].

Nor was the condition of those times so entirely destitute of grandeur as some historians have been fond to assert. Even in the age of Tacitus, London was a port not unknown to navigators and traders[12]; and we have the authority of Bede, that England abounded at an early period with cities which were wealthy and populous[13]. Alfred was particularly attentive to encourage industry, trade and manufactures; and even imported the luxuries of life from the most distant countries[14]. It was a law of Athelstane, that the merchant, who had performed at his own expence three long and hazardous voyages, should be invested with nobility[15]. Civility and knowledge, commerce and wealth increased under Edgar, whose ability and affable manners allured many foreigners to his court; and affairs did not degenerate, nor was England less respectable under the peaceful and fortunate administration of Edward the Confessor.

But the beautiful pre-eminence on the side of the people, enjoyed during the Saxon times, was soon to be violated. The invasion of the duke of Normandy was about to introduce sanguinary and oppressive times. We must not, however, with a multitude of authors, be deceived into the opinion, that this warriour and statesman atchieved a conquest over the constitution and the people of England. He made effectual by arms his right of succession to Edward; but he received the crown with all its inherent properties. He took the oath which had been prescribed to the Saxon princes; he acknowledged himself to be equally under restraint and limitation; and he engaged to preserve the immunities of the church, and to act according to the laws. The victory he obtained at Hastings was over the person of Harold, and not over the rights of the nation[16].

His accession, at the same time, it will be allowed, was a source of inquietude and confusion. Dominion is ever consequent on property; and the forfeited estates of the nobility and the landed proprietors who had assisted Harold, or who had afterwards joined in insurrections, having been bestowed by him on his officers; and the high rank of many of these requiring very ample retributions, a great proportion of territory was necessarily vested in the hands of a few. Nor was it favourable to the spirit of democracy, that the donations of William were governed by the more extended notions of the feudal law.

This polity, which was common to the northern tribes, had not been unknown to our Saxon ancestors; but, though they were familiar with grants, which were precarious, or which endured for a term of years, or during the life of the feudatory, they had seen few examples of the perpetuity of the fief. They had not been accustomed to the last step of the feudal progress; but a tendency to its establishment was observable among them; and, if the invasion of William had never taken place, the institutions of this law had yet arrived at their highest point. He only hastened what the course of time was about to produce by slow degrees: It was a result of his administration, that, before the end of the reign of Henry II. fiefs, in their more enlarged condition, had spread themselves over England[17].

This plan of political law, which had been propitious to liberty and conquest in its rise, was prejudicial to both in its decline; and the same institutions, which in one situation, conducted to greatness, led the way in another to confusion and anarchy[18]. The advantages which distinguished their earlier state, were unknown when they had attained the ultimate step of their progress. When fiefs had become hereditary, the association of the chief and the retainer, or the lord and his vassal, had no longer for its support, any other tie than that of land[19]; and, if the possessor of a fief was less attached to his followers, he was less dependent on, and less connected with his prince. The system had lost the circumstances, which formerly had fitted it so admirably for war; and the few regulations it included with regard to peace and domestic policy, were rather calculated for the narrow circle of a nascent community, than for the complicated fabric of an extensive empire.

The exorbitant grants, which it was necessary that duke William should make, the full establishment of the perpetuity of the fief, and the consequent investment of offices of rank and of dignity in particular families, introduced all the disorders of aristocracy. The most princely dominion was in general claimed and exercised by the great[20]. They assumed the right of declaring war against each other of their private authority; they coined money; and they affected to exert without appeal every species of jurisdiction. But while they disputed in the field the prize of military glory, or vied in displays of magnificence and grandeur, their tenants and vassals were oppressed to supply their necessities; and, amidst the unbounded rapine and licentiousness which arose, no legal protection was afforded to individuals[21]. There was no safety for the helpless but in associations with the powerful; and to these they paid attention and service. The tribunals of justice became corrupted; and decisions were publickly bought from the judges. New sources of oppression were thought of; and none were infamous enough to be rejected. The feudal casualties were exacted with the most rigorous severity; and, while the kingdom appeared to be divided into a thousand principalities, the people were nearly debased into a state of servility.

On a superficial view, one would be apt to imagine, that, in regard to competition, the nobles of those times were considerably an overmatch for the prince. But Barons, whose chief recommendations were the military virtues, who were haughty and independent, and often inflamed against each other with the fiercest animosity, could not always act in a body, or by fixed and determined maxims. It was not so with the sovereign: The master of operations, which depended on himself, he could speculate in silence, and watch the opportunities of action. The advantages he derived from his situation were powerful. Not to mention his prerogatives and his revenue; the returns of feudal service reminded the nobility of their subjection to him; and the inferior orders of men, regarding these as their immediate oppressors, looked up to him as to their guardian.