Ancient Law Chapter 4

titutions which may be attributed to it are the material of some of the most violent controversies debated in our time， as will be seen when it is stated that the theory of Natural Law is the source of almost all the special ideas as to law， politics， and society which France during the last hundred years has been the instrument of diffusing over the western world. The part played by jurists in French history， and the sphere of jural conceptions in French thought， have always been remarkably large. It was not indeed in France， but in Italy， that the juridical science of modern Europe took its rise， but of the schools founded by emissaries of the Italian universities in all parts of the continent， and attempted （though vainly） to be set up in our island， that established in France produced the greatest effect on the fortunes of the country. The lawyers of France immediately formed a strict alliance with the kings of the house of Capet， and it was as much through their assertions of royal prerogative， and through their interpretations of the rules of feudal succession， as by the power of the sword， that the French monarchy at last grew together out of the agglomeration of provinces and dependencies. The enormous advantage which their understanding with the lawyers conferred on the French kings in the prosecution of their struggle with the great feudatories， the aristocracy， and the church， can only be appreciated if we take into account the ideas which prevailed in Europe far down into the middle ages. There was， in the first place， a great enthusiasm for generalisation and a curious admiration for all general propositions， and consequently， in the field of law， an involuntary reverence for every general formula which seemed to embrace and sum up a number of the insulated rules which were practised as usages in various localities. Such general formulas it was， of course， not difficult for practitioners familiar with the Corpus Juris or the Glosses to supply in almost any quantity. There was， however， another cause which added yet more considerably to the lawyers

' power. At the period of which we are speaking， there was universal vagueness of ideas as to the degree and nature of the authority residing in written texts of law For the most part， the peremptory preface， Ita scriptum est， seems to have been sufficient to silence all objections. Where a mind of our own day would jealously scrutinise the formula which had been quoted， would inquire its source， and would （if necessary） deny that the body of law to which it belonged had any authority to supersede local customs， the elder jurist w ould not probably have ventured to do more than question the applicability of the rule， or at best cite some counter proposition from the Pandects or the Canon Law. It is extremely necessary to bear in mind the uncertainty of men's notions on this most important side of juridical controversies， not only because it helps to explain the weight which the lawyers threw into the monarchical scale， but on account of the light which it sheds on several curious historical problems. The motives of the author of the Forged Decretals and his extraordinary success are rendered more intelligible by it. And， to take a phenomenon of smaller interest， it assists us， though only partially to understand the plagiarisms of Bracton. That an English writer of the time of Henry III should have been able to put off on his countrymen as a compendium of pure English law a treatise of which the entire form and a third of the contents were directly borrowed from the Corpus Juris， and that he should have ventured on this experiment in a country where the systematic study of the Roman law was formally proscribed， will always be among the most hopeless enigmas in the history of jurisprudence； but still it is something to lessen our surprise when we comprehend the state of opinion at the period as to the obligatory force of written texts， apart from all consideration of the Source whence they were derived.

　　When the kings of France had brought their long struggle for supremacy to a successful close， an epoch which may be placed roughly at the accession of the branch of Valois-Angouleme to the throne， the situation of the French jurists was peculiar and continued to be so down to the outbreak of the revolution. On the one hand， they formed the best instructed and nearly the most powerful class in the nation. They had made good their footing as a privileged order by the side of the feudal aristocracy， and they had assured their influence by an organisation which distributed their profession over France in great chartered corporations possessing large defined powers and still larger indefinite claims. In all the qualities of the advocate， the judge， and the legislator， they far excelled their compeers throughout Europe. Their juridical tact， their ease of expression， their fine sense of analogy and harmony， and （if they may be judged by the highest names among them） their passionate devotion to their conceptions of justice， were as remarkable as the singular variety of talent which they included， a variety covering the whole ground between the opposite poles of Cujas and Montesquieu， of D'Aguesseau and Dumoulin. But， on the other hand， the system of laws which they had to administer stood in striking contrast with the habits of mind which they had cultivated. The France which had been in great part constituted by their efforts was smitten with the curse of an anomalous and dissonant jurisprudence beyond every other country in Europe. One great division ran through the country and separated it into Pays du Droit Ecrit and Pays du Droit Coutumier； the first acknowledging the written Roman law as the basis of their jurisprudence， the last admitting it only so far as it supplied general forms of expression， and courses of juridical reasoning which were reconcileable with the local usages. The sections thus formed were again variously subdivided. In the Pays du Droit Coutumier province differed from province， county from county，

municipality from municipality， in the nature of its customs. In the Pays du Droit Ecrit the stratum of feudal rules which overlay the Roman law was of the most miscellaneous composition. No such confusion as this ever existed in England. In Germany it did exist， but was too much in harmony with the deep political and religious divisions of the country to be lamented or even felt. It was the special peculiarity of France that an extraordinary diversity of laws continued without sensible alteration while the central authority of the monarchy was constantly strengthening itself， while rapid approaches were being made to complete administrative unity， and while a fervid national spirit had been developed among the people. The contrast was one which fructified in many serious results， and among them we must rank the effect which it produced on the minds of the French lawyer. Their speculative opinions and their intellectual bias were in the strongest opposition to their interests and professional habits. With the keenest sense and the fullest recognition of those perfections of jurisprudence which consist in simplicity and uniformity， they believed， or seemed to believe， that the vices which actually infested French law were ineradicable： and in practice they often resisted the reformation of abuses with an obstinacy which was not shown by many among their less enlightened countrymen. But there was a way to reconcile these contradictions. They became passionate enthusiasts for Natural Law. The Law of Nature overleapt all provincial and municipal boundaries； it disregarded all distinctions between noble and burgess， between burgess and peasant； it gave the most exalted place to lucidity， simplicity and system； but it committed its devotees to no specific improvement， and did not directly threaten any venerable or lucrative technicality. Natural law may be said to have become the common law of France， or， at all events， the admission of its dignity and claims was the one tenet which all French practitioners alike subscribed to. The language of the prae-revolutionary jurists in its eulogy is singularly unqualified， and it is remarkable that the writers on the Customs， who often made it their duty to speak disparagingly of the pure Roman law， speak even more fervidly of Nature and her rules than the civilians who professed an exclusive respect for the Digest and the Code. Dumoulin， the highest of all authorities on old French Customary Law， has some extravagant passages on the Law of Nature； and his panegyrics have a peculiar rhetorical turn which indicated a considerable departure from the caution of the Roman jurisconsults. The hypothesis of a Natural Law had become not so much a theory guiding practice as an article of speculative faith， and accordingly we shall find that， in the transformation which it more recently underwent， its weakest parts rose to the level of its strongest in the esteem of its supporters.

　　The eighteenth century was half over when the most critical period in the history of Natural Law was reached. Had the discussion of the theory and of its consequences continued to be exclusively the employment of the legal profession， there would possibly have been an abatement of the respect which it commanded； for by this time the Esprit des Lois had appeared. Bearing in some exaggerations the marks of the excessive violence with which its author's mind had recoiled from assumptions usually suffered to pass without scrutiny， vet showing in some ambiguities the traces of a desire to compromise with existing prejudice， the book of Montesquieu， with all its defects， still proceeded on that Historical Method before which the Law of Nature has never maintained its footing for an instant. Its influence on thought ought to have been as great as its general popul

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