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laries, the entire legal edifice of Germany, built up by her Othos, Henries, and Sigismunds, is full of the principles, precepts, and practices of one of the greatest of modern lawgivers. The inconceivable error of the present day in France is, the attempt to represent Charlemagne as an innovator who aimed at outstepping his age, and who sought to resuscitate the civilization of classical pagan Rome in the midst of a semi-barbarous race, with whose every thought, feeling, and custom, such a civilization was incompatible."

The words by which Tacitus describes a principle in the legislation of the Germans of his time, " De minoribus rebus principes consultant, de majoribus omnes," are perfectly applicable to the principle of delegation or representation, which was fundamentally that of Charlemagne's legal institutions. His "Missi Dominici," or agents of the king, are nothing more than so many centres around which the largest amount of justice may be gathered in the person of delegates, to whom the defence of justice is intrusted. On the one hand, the Missi Dominici represented the sovereign; whilst, on the other, every noble or churchman in his dominions, all those notables who answer to the denomination of "Principes," used by Tacitus, were obliged at least twice a year, at a general assembly, to expose to the sovereign the requirements of the population. The principle of delegation once recognized, we recognize the delegating power, which is the people, the whole nation; those whom Tacitus points to as having a right to judge of "greater things." Delegation itself is but a form; but the one thing from which it is impossible to separate it is, as we say, the recognized authority of the delegator. "By the judicial system of Charlemagne," says truly M. du Boys, "a sort of perpetual and healthy circulation of the blood in the body national was kept up; as a legislator, he appears to us as the reverse of an innovator. He has no preconceived plans or systems; he revises, alters, adds to, or modifies customs which he finds already existent; he makes use of, to improve them, regulations and statutes already established by tradition; he compiles, but he takes care not to create. Now and then, from the observation of a particular order of

events or circumstances frequently repeated, he is brought to the conclusion that a new enactment is required; but he proceeds most cautiously even then, and chiefly bases his new regulation upon some long-standing custom which he finds capable of application to the case in point. He never once tried, or dreamt of trying, to set up and create a uniform code, but left to each several race or population its national or traditional customs and legislation gave, according to the expression of his historian Eginhard, à chaque homme sa loi.””

Here is one of the points which to us seem the most important; first, because we find therein what we believe to be the chief cause of the ruling defect of modern French legislation, and next, by implication, what we take to constitute the superiority of our own. The Germanic principle of legislation is that of legislation from within, as it were; the Roman is that of legislation from without. In the Germanic system (which is so essentially our own), society is, up to a very high degree, its own best guardian and judge; and Anglo-Saxon races evidently aspire to as much self-legislation as possible, as they do politically to as much self-government. The proof of this is to be found in numberless details; but the two facts, of the existence of our unpaid magistrates and of grand juries, are sufficient for our argument. The institution of a grand jury proves the persistence of the Germanic element in our law; for it is, after all, but another form in which the nation presides over the administration of justice by its delegates. It is a manifest example of the body social taking its own affairs in hand, and watching over the way in which justice is administered. The legislative principle of the Germans is preserved whole and entire by this, in contradistinction to the spirit of Roman law. The same may be said of our unpaid magistrates, who in theory are the representatives of society, enforcing the laws of their country to the end that justice may be done, and see that justice be done. This is to associate, more or less, every man in the country-at all events, every man holding any stake in it-with the work of legislation and of the administration of justice, and this necessarily conduces to the great respect of the

majority for the law, to the facility, therefore, of its maintenance and enforcement.

The principle of Roman legislation is precisely the contrary of what we have been attempting to describe. It divides mankind into two distinct parts-the guilty and their judges. Centralization is the one great mode of action of the legislation, which, to give it its proper modern name, we will denominate GalloRoman legislation. In this system justice is administered by a body of men who are paid for administering it, and who, for a number of obvious reasons, cease to have any connecting tie with their fellow-citizens. Neither are they "citizens" themselves! They are accusers; and the rest of the world to their eyes assume the form of people who either are, or may one day be, accused. The excitement of the idea of pursuit is unavoidably awakened in the breasts of these men; and the human being, whose greater or less degree of culpability they have to discover and decide upon, becomes a quarry which there is a merit and a pleasure in hunting down. As the modern French legislative system stands, no two forces can be more thoroughly antagonistic than "society," and those who are nominally appointed to guard it against attack. This we mainly believe to come from the preference shown by all French rulers and statesmen, for the last two centuries, for the centralizing principle of Roman legislation, bearing upon society from without, over the far more Germanic principle, springing from within, and interesting society in the work of its own preservation and defence.

Two things will always have to be remarked by whoever devotes himself to the comparative study of French and English institutions, political or judicial; the large amount of publicspiritedness in the Anglo-Saxon, and the singular want of any thing of the kind in the Gallic race. A Saxon thane was subject to the forfeiture of his lands to the crown, if he neglected three consecutive times to take his place at the great periodical council of the notables of his country; and enactments are to be found, proving that, amongst nations where the Germanic element predominates, the judicial power was so completely composed of

the members of society itself, acting as society's own guardian and judge, that there were populations "in which a magistrate may be found for every thousand, or five hundred, or one hundred, or even a smaller number of men.”—(A. du Boys, vol. i. p. 353.) This manifestly proves the tendency towards self-legislation, and the strong public life of a race. Now, what do we find in the Gallo-Frankish tribes? The impossibility of development of Germanic legislation, and the easy submission to the centralizing spirit of Rome, from the total want among the Gauls and Franks of that very public spirit we have just pointed out, and of that desire to help society in the work of guarding and defending itself.

When the comparatively low level of political and private morality in France is taken into consideration, it is a common thing to say that her institutions, her government, and her laws, are in fault. This is easy to assert, aud it is to some extent true, no doubt; but in M. de Maistre's famous speech-" a people never has any government but the one it deserves," there is also truth; and it is a question whether the inferiority of the political and judicial institutions of France is not mainly to be ascribed to the singularly small amount of public-spiritedness of the men whose office it was to make them work. We have said that Germanism, in the judicial institutions of France, was at its height under the reign of Charlemagne. The pure Germanic element decreases gradually after his death, without there being yet any apparent tendency to have recourse to the over-centralizing or Roman element. But what is the cause of this decrease, even at so early an epoch? the narrow selfishness of the men to whom the administration of justice is entrusted, and their absolute want of what we should term public spirit—namely, the care for or attachment to the public welfare, or the good of all the commonweal.

"The emperor Charles the Bald," says M. du Boys, "having conferred certain privileges upon his counts and nobles, these magistrates immediately aspired to a larger amount of personal authority and power. First, they laid hands themselves upon the

tolls, and other sources of the public revenue, which they had a right only to receive in the name of the king; and next, they ended by appropriating also to themselves the judicial authority over their dependants, which they had also no right to exercise otherwise than as delegates of the crown. In the beginning they did not deny that their power was in principle an inferior one, and that they were themselves amenable to the higher justice resident in the crown; but, in practice, they hesitated at nothing which could insure their own personal preponderance-no deed of cunning or bad faith, and no deed of violence was left uncommitted by the nobles; and their action being an immediate, and that of the crown only a remote one, the mere local jurisdictions soon came to be far more formidable to the people than the central force. This situation explains the great feudal revolution of the end of the tenth century, under Hugues Capet, and the establishment of a system of feudalism, which attained to its utmost excess of development in France alone."

Now here we see, in the very origin, the administration of justice confided by the crown to the largest possible portion of the nation; we note the desire on the part of the crown for the widest participation of the country in the work of self-legislation; and we have to record the unworthiness of the parties thus appealed to by the crown, and to mark the existence of a spirit of narrow selfishness on the part of all those to whom the defence of society is committed, which renders the attempt at self-legislation by the French race abortive.

A larger amount of power being in the hands of the nobles than in the hands of the sovereign, we of course come to the establishment of feudalism as the natural consequence of the failure of any establishment of self-legislation. But what feudalism? We refer our readers to the second volume of M. du Boys to obtain an insight into the system of the administration of (so-called) justice in France during the middle ages. To our honour, he is obliged to say (p. 496-7), "such an edifice as was raised by feudalism in France, never did, and never could, exist even in the earliest times in England. Neither before nor after

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