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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 prores 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
the Conquest, did the English people ever know what led to the excess of hierarchical subordination in continental countries; and, according to the spirit of the English constitution, from the Anglo-Saxon period upwards, the sovereign never represented more than the man chosen and delegated by the people to represent their interests.”
If the excesses of feudalism in France be well studied, and the effects produced by the narrow-minded selfishness and want of any public feeling on the part of the nobles, be sufficiently taken into account, it will not be difficult to understand the favour with which the ultra-centralizing principle was received, when once brought to bear upon the confused and distracted condition of the people. Centralization was a relief-a reaction against a previous and other form of wrong. It was a worse and more cruel tyranny than what preceded; but that could not be felt at first, because it did away with what was universally abhorred. But centralization, when substituting its own abstract, impersonal despotism to the injustice that had till then been personified by the feudal lords and Grand Passant, could not allow of the existence of a force which, though it had shown itself baleful in practice, was in principle a force necessary to the work of perpetual ponderation, out of which constitutional government (and a certain amount of self-legislation, its natural consequence) may one day spring. The nobles of France had shown themselves unworthy of the part allotted to them in the affairs of the nation ; but the affairs of the nation were not likely to get on better, when there should be no nobles at all to stand between the encroachments of the crown and the passions of the people. This, we repeat it, was deeply felt by Henry IV., and by Sully, than whom, to their praise be it said, no two men were ever less theoretical. Henri IV. and Sully both recognized the unworthiness of the nobles as much as did Richelieu later; but neither of them dreamed of suppressing, and still less of degrading, the entire noblesse of the country, in order to make the way clear for the establishment of a kind of dictature. Henri IV., like Charlemagne, would have “ revised, reformed, altered, modified existent customs, traditions,
and laws," and would decidedly have abstained from the insane attempt to "create a uniform code,” wherein little or nothing should be adapted to the tastes, habits, and traditions of the various populations.
With Richelieu we have for the first time the worship of abstractions, the conception of the “state," and the persistent dealing with men as with mathematical quantities. The feudalism of the noblesse is hateful to the better sense of the cardinal minister, as well it might be; what is best and most upright, most honest and most just in him, is offended by the scandalous misgovernment of the heads of society in France; but he does not see that no force must ever be destroyed, but only differently directed that what is a power for evil may be a power for good; the cardinal sees nothing of all this-he is a theorist, and he decrees in his own mind the destruction of the French noblesse. When once the French noblesse is destroyed, the remark made by the boatman on the Pont Neuf to a peer of France is the true appreciation of what has happened: “Well, the cardinal has got rid of you, so now there is nothing more standing between the king and us !” and so it was. The political and legislative force of the seigneurs, which they had so misused, was destroyed. The nobility of France had done ill what it had to do, and there now remained to it nothing to do at all. Louis XIV. went on with the work, and completed it by the degradation of the noblesse. The sons of the men whom Richelieu beheaded for their overfeudalism, were those who constituted la noblesse de cour of Versailles, and whose descendants so feebly resisted the overcentralizing tendencies of the Convention, and of the empire under Napoleon I.
We repeat it, from the moment of the death of Henri IV., all possibility of establishing a system of self-legislation in France vanishes; centralization becomes a relief to the ignorant populations, and the uniform legislation of Rome is victorious over the Germanic principle, based upon tradition and the consecration of custom.
We will now, in a few words, examine what the workings of.
legal centralization have been upon the French mind, and how they have helped to bring about that singular fact, peculiar to France, of the unpopularity of the law, the popularity of whosoever infringes it, and its apparent incompatibility with freedom.
We have said that the law, in France, bas no root in custom or tradition—that it is a force bearing upon society from without; and the representatives whereof have no sympathies with the citizens they are called upon to judge. We have said that, in our opinion, this state of things has one common origin with all that is defective in France—the supremacy, namely, of the over-centralizing principle, and the establishment of a legislation based upon mere theory instead of practice.
Now, wbat is one of the consequences of all this that we are perpetually called upon to record? One of the chief consequences is, a manner of administering justice, and a mode of applying punishment to crime, that never fails to surprise and shock the impartial sense of an Englishman. But it is easy to show that, as things stand, this cannot be otherwise. The law, to be impartially and usefully applied, must be independent, and capable of standing on its own merits. It is neither one nor the other in France. It is of foreign growth ; and they who apply it are, in every respect, strangers to the population upon whom it is their office to bring it to bear. Compare, in this respect, our country magistrates with a juge d'instruction for instance, who has to decide upon the intricacies of a case where he knows nothing of the parties implicated, or of the habits of the locality, and let it be seen on which side must necessarily be the larger amount of confidence, on the part of the population, in the capacity and integrity of the representative of the law. Every minister of the law in France, is more or less an utter stranger to the population in the midst of which his official duties call upon him to reside. A priori, be knows himself an object of dislike, and this consciousness has mostly one of two diametrically opposite effects : either the representative of the law in France seeks to make himself popular, or he repays antipathy with antipathy, and, ceasing even to be a judge, becomes an enemy. There is scarcely a trial in France in which one of