WILLIAM REIGNED CONSTITUTIONALLY.

601

regrants

Edward's

cusin tint devant lui ;" and in the custumal ascribed to Henry Beauclerc, but probably even of later date, we have an assured testimony that as far as direct and positive legisla- William tion is concerned, William effected the smallest laws. possible innovation: and in [regard to] the assertion, that, in the very frame of his laws, he made a distinction between the Normans and English, [we may appeal to the fact, that they were received by the] nation, not only without reluctance, but with zealous joy; and thus the very means by which William was enabled to accomplish the Conquest, prevented him from ruling otherwise than as an English king.

of English and Norman

5. It is most certain that, after the accession of the Plantagenets, we find a very great similarity between the laws of Normandy and the laws of England. Both belonged to one active Similarity and powerful sovereign: one system of admin- law. istration prevailed. It was after one and the same course of business that the money was counted out upon the chequered table, on either side of the sea. The bailiffs in the Norman baillages passed their accounts just as the sheriffs to whom the bailliwicks of the shires were granted in England; and the brieves by which the king administered the law, whether in the kingdom or the duchy, are most evidently germane to each other. In all these circumstances, I can find the most evident and cogent proof that a great revolution was effected, not

602 ENGLISH LAW NOT DERIVED FROM NORMAN.

by William, but by Henry Plantagenet. Where he found his precedents, where his councillors, we know not, and in which country the new system originated, which, in a manner, they held in common, we know not. Documentary evidence would go a great way in deciding the Norman law question. At present none satisfactory has been the original. discovered by the researches of the antiquary.

certainly not

Glanville, the English justiciar, affords the ear-
liest precedents of the writs "de morte ante-
cessoris," and "de nova disseisina." Howard,
the Norman jurist, publishes our Littleton and
Bracton and Hela, as the most authentic monu-
ments which he can find of the antient laws of
the French; and the traditions of Normandy
even attributed the formation of that which in
the reign of Philippe Auguste was their national
code, the "Grand Coutumier," to the equity and
wisdom of Edward the Confessor. Nothing in
all this amounts to proof that Henry II., King
of England, legislated for the Duchy of Nor-
mandy; but at least it shews, that, from other
causes than the immediate conquest, to which
it is usually ascribed, the uniformity may have
arisen.

§ 6. Probably most of my readers have been
expecting, in the course of the preceding pages,
to hear much upon some subjects which hold so
conspicuous a station in our usual, I may almost
say our conventional ideas of medieval history;

1

M. Guizot on

I mean feudality and chivalry. If, using oldfashioned allegorical language, we were to say that Feudality and Chivalry, according to the popular notions of them, are phantoms who must be driven away before we can enter the Palace of Truth, we should hardly be using too strong language. A great living authority upon Feudalism. these subjects-perhaps the greatest-he who whilst I write these lines, is at the head of the councils of the Sovereign to whom, under Providence, the guidance of the destinies of France is confided, has said, and most truly, that never did the feudal system of regular subordination subsist in the forms assigned to it by jurists. Feudal society, in its supposed entirety, is an imaginary structure raised only by the fancy of the learned, and of which the materials only, incoherent and broken, have been found lying on the soil.

In considering the developments of the Conquest, the first question which always presents itself to the mind, is the state and condition of the English nation under their new masters; and this is inseparably connected with the supposed establishment of feudal tenures by the Feudal Conqueror. This is a very large question, which we must treat in this place on the smallest scale. A dull subject, many persons would say, but which must be discussed, on account of the

tenures.

The system

never existed

in its theo

pleteness.

604

COMPLETENESS OF THE FEUDAL

prominent, and, we must add, we believe erroneous position which it takes, according to the usual views of medieval history.

But notwithstanding all the assertions which historians have made, we have never been able to satisfy ourselves that such a feudal system ever existed. It reminds us of the feudal castle, retical com- rendered so familiar to our eyes and mind by worthy Captain Grose, of antiquarian and facetious memory; and which, multiplied and adopted in our encyclopædias and educational books, becomes the ideal form of architectural chivalry; and truly never was any representation better entitled to the old-fashioned inv: et delin in the corner, the dungeon tower in the centre, the inner bailey round the dungeon, the outer baileys round the inner, all neat and concentric as the crust of a pie. Now, though you might find such a square dungeon tower in many places, the inner bailey in half-a-dozen, and the outer bailey perhaps in a single example, still whoever forms his ideas upon this type, will have adapted them to a model which never existed. The reason why such a castle never could have existed is this, that every real fortification was necessarily adapted to the site which it was to defend; and the plan adopted to guard the coast of Dover, would, of necessity, be entirely different from that employed in the plain of Vincennes; and therefore, whatever similarity of principle there may have been in the so

called feudal institutions, they became infinitely varied by the nations amongst whom they were adopted; being, in fact, a transmission of Roman jurisprudence and Roman institutions, combined with the usages of Teutonic tribes.

tenures are not feudal

Without entering therefore into details, we shall venture to point out the two great errors which render the views commonly expressed entirely incorrect. The first is confounding the Feudal feudal tenures of land with what is called feudal government. government; for however paradoxical it may appear, there was no government in mediæval Europe founded upon feudality. The other is in the extreme exaggeration of the state of the common people, and the ascribing it to the barbaric invasions. So far as their influence extended, the lot of the Coloni was alleviated and not aggravated by the transfer of the Roman authority to the new race of masters. With respect to England, with which we are more immediately concerned, we believe, that, previous to the Conquest, all land imposed upon the owner the duty of contributing to the defence of the state, according to its value. As Land tenures the Conqueror found the land, so he gave it; and after a good deal of uncertainty, over-exactions on the part of the crown, demanding more than was due, and refusals on the part of the landholders to give what was really due, the territorial system settled, after the accession of

after the

Conquest.