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This is not denied by any of their thinkers or writers. It is on all hands so much an admitted fact, that one of the great characteristics which distinguish the French from the Saxon and AngloSaxon races, is to be found in this circumstance, that whilst the latter respect their laws, honour them, and obey them cheerfully, the former seem to conceive they have well merited of humanity when they have resisted them. France is one of the few countries on the face of the globe, where the law is held to be incompatible with a large amount of freedom. Now this, be it remarked, is precisely the reverse of our English system; our notion is, that the law is that which is right; whereas, to the French mind, it is that which is tyrannical. This is not a particular opinion personal to ourselves; it is the plain statement of a fact which we are not aware it ever came into any body's head to dispute. The French dislike, and seek by every means to elude, and resist, and overthrow the law. This is a simple fact. They have done so under every succeeding régime; as much under the absolute monarchy of Louis XIV. as under the imperial despotism of Napoleon ; yet not less under the two republics of 1793 and 1848--the one so terrible, the other so mild and careless-than under the restoration, or the parliamentary government of Louis Philippe. Whatever the political form of their government, the French nation has evinced an equal amount of repugnance for its laws; an equal desire not to submit to them. When Englishmen think it is their duty to oppose sturdily and steadfastly any measure of the executive, the firmest ground which they choose for making a stand upon is the law; their “ rights” are represented by the law. When Frenchmen are hurried away into a revolution, the very first thing they rise against, the very first thing they determine to overthrow, is the law.
We have dwelt upon this, repeating, as our readers will see, more than once our well-founded convictions upon the subject; because the fact of a great country living in dislike of its laws, repudiating them, attacking and abolishing them whenever it finds an occasion of so doing, seems to us a condition of things
VOL. VIII. NO. XVI,
that cannot be too attentively considered, and that has not ever been sufficiently meditated upon by those writers who, amongst ourselves, have made France the object of their study.
We would, at the same time, call our readers' attention to another point. The law being more disliked in France than in any other country we could mention, we are also obliged to admit that in France, more than any where else, the law is marked by absolute uniformity. If we turn our eyes homewards we find, on the contrary, that the law, which is better liked in England than in, perhaps, any other part of the civilized world, is characterized precisely by the largest amount of variety. If political institutions, to be durable, ought to be nothing more than the gradual and perfect development of national requirements and manners, laws, to be easily submitted to, and regarded as really tutelary, should be chiefly the consecration of customs-national and local. Whenever law is the consecration of a long-standing custom, that law has for its existence a reason beyond all the arguments of the laws of most "learned doctors ;” and it is so thoroughly in such cases self-made by the population, that the infringer of it stands alone, and has the population against him whilst in all instances where laws spring simply from the combinations and decisions of mere theorists, the individual who infringes them is sure to attract to himself the sympathies of the community; and whenever this occurs (as it invariably does in France), the law, in its dignity and in its power of doing good, is the sufferer.
The first thing that occurs to a French jurisconsult when referring to the subject of English law, is to express unmitigated astonishment at the circumstance of any nation being able to put
with so hopelessly intricate and confused a mass of regulations. “You have no code,' as we have; no unique and uniform code,' applicable to all men and all delinquencies !” is his first cry
of despair; and the fact of not treating sentient human beings as mathematical quantities, appears to him a sign of unmistakable inferiority. The existence, for example, of what he denominates certain “idiosyncrasies" in the laws of Scotland, seems to him
so monstrous that he begins invariably by refusing to believe in it; and when the fact of its existence, prolonged into this "enlightened age,” is made evident to him, he stands aghast, and seriously wonders how any community so administered can subsist. Yet let any thinker on our side of the water say which system practically works the best; and then, perhaps, we may be content to uphold a set of laws—confused, “illogical,” absurd even as they may seem to our neighbours—which are of such strong self-growth amongst us, that obedience to them is applauded, and all attempts to escape from their action is unmistakably unpopular.
In France, legal like political institutions do not emerge from within, but press upon the nation from without. Law acts upon, and against, never with the community, and, besides this, it is with law as with government, there is too much of it; the French people are over-legislated for, if the term may be allowed, as they are over-governed. They are protected nowhere in their freedom; and a Frenchman, from cradle to grave, can with great difficulty have his own way
any one act of his life. At his birth, at his marriage, at his death-upon every occurrence however trifling of his life.he comes for ever in contact with "le Code!” and is amenable to the justice of some tribunal for the commission or omission of some, to our minds absurdly trifling, act, equally unimportant, whether omitted or committed.
“ La légalité nous tue !” said most truly a deputy under Louis Philippe's reign. It does so. Frenchmen are essarily entrammelled and tied down by the countless threads of a vast legal web, which it is no wonder they hate. But whence comes this over-legislation, and this particular characteristic of the law in France, that it springs not from, nor is in sympathy with, the habits of the people? It comes from the fact of the preponderance of the Roman element in French jurisprudence, “ At the time of the Renaissance,” says M. du Boys, " there is no denying that a certain reaction in favour of Paganism took place throughout Europe, but most of all has its influence to be noted in the formation of our social institutions; meanwhile the Germanic element was gradually weakened, day after day by degrees, as
civilization progressed ! Of this there now remains to us nothing save the memory of certain liberties and local traditions."
It is curious enough that the uniformity and excess of centralization, which are the principles of Roman jurisprudence, so fascinated the modern French mind, that they are to be found secretly inspiring every man who in France aims, since the commencement of the seventeenth century, at becoming either a legislator or a statesman. Henri IV., who was the last French king, the last sovereign who understood that a nation, to maintain its place amongst other nations, must co-operate in the task of governing itself-Henri IV. encouraged the existence of all really national traditions, of all local customs; and had he and his minister, Sully, but been followed during half a century by other sovereigns and statesmen of their own stamp, they would have laid the basis of a legal edifice in France, which would assuredly have been wanting in the perfect uniformity of the present "code, but which would have been respected by the nation, because emanating in fact from itself, and would have insured unpopularity to the law-breaker, which we take to be the best and most practical end and aim of all law.
There are two prime sources of all legislation in our modern world--tradition and the Roman law; and, in proportion as any country is ripe for independence and self-government, will tradition be found to inspire its lawgivers. The Roman law prevails only there where the notion of the state supersedes that of the nation. This is what has been progressively occurring in France. During the reigns of the Valois, between Louis XIL and Henri III., we find the nation so active, so ready to take its own part, that the part played by “the government” is almost a secondary one; and there can be no doubt that Henri IV. left at his death an independent country, a complete body composed of those several strong, living, counterbalancing forces, which, summed up together, make a body national, a people. To the death of Henri IV. the French nation is occupied in developing itself. With Cardinal de Richelieu we come at once to the idea of the state. Without seeking for an instant to detract from his
political greatness (which was incontestable), it must, however, be remarked that, more perhaps than any of his successors, he was imbued with the unfortunate conviction, that a state may be created, fashioned, modelled, animated, brought to be, and to act, by the will of one resolute man, or of a small set of resolute men, independently of the genuine tendencies or habits of the populations. From the time of Richelieu dates that perfect mania (for it deserves no milder name) by which all French legislators and politicians have been possessed until the present moment-the mania, namely, for reducing each living national force to an abstraction, and for treating populations of human beings as though they were mere mathematical quantities. Louis XIV. declares “ the state” incarnate in hiinself, and authoritatively lays down the principle, that the king is the state. At the same time he reverts to Rome as the source of all legislation, with such determined conviction, that, aided by such narrow, dogmatic theorists as Colbert, Louvois, and some few others, we have him (which is too little known) working day and night at the elaboration of a compact, uniform code, entitled “Le Code Louis," and in which the only things utterly neglected are the tendencies, tastes, habits, customs, and traditions of the populations that are to be governed and legislated for. The Convention next continued this system, which unconsciously adopts all the theoretical notions of le Grand Roi; and is even more enamoured of the idea of the "state" (which term it only sometimes exchanges for that of “la Patrie"), deals even more in abstractions, treats men still more as mathematical quantities, and reverts to Rome with such idolatry, that upon some solemn occasions it can be satisfied with nothing less than actually inflicting, upon what it calls the “Tribunes of the People,” the disguise of a Roman citizen's attire. The Convention worships classical traditions only; and, in what it misconceives to be a liberal movement, it inaugurates simply the reign of an abstract despotism, the despotic nature whereof escapes it for the mere reason of its impersonality. As to the Consulate and the Empire, this is all Rome. “The state" is incarnate in Napoleon now as