The Online Library of Liberty

A project of Liberty Fund, Inc.

• Translator’s Preface.
• Autobiographical Preface.: History of My Historical Works and Theories.
• Historical Essays.
• Essay I.: Revolutions of England.
• Essay II.: On the Character of the Great Men of the Revolution of 1640, a Propos of the History of Cromwell, By M. Villemain.
• Essay III.: Continuation of the Same Subject.—character of Political Parties.—the Deists.—the Presbyterians.—the Independents.—the Royalists.—the Soldiers.—the People.
• Essay IV.: On the Life of Colonel Hutchinson, Member of the Long Parliament, Written By His Widow Lucy Apsley.
• Essay V.: On the Restoration of 1660, a Propos of a Work Entitled “an Historical Essay On the Reign of Charles the Second, By Jules Berthevin.”
• Essay VI.: On the Revolution of 1688.
• Essay VII.: On the National Spirit of the Irish, a Propos of the Irish Melodies By Thomas Moore.
• Essay VIII.: On the Conquest of England By the Normans, a Propos of the Novel of Ivanhoe.
• Essay IX.: On the Life of Anne Boleyn, Wife of Henry the Eighth, a Propos of Miss Benger’s Work, Entitled “memoirs of the Life of Anne Boleyn, Queen of Henry the Eighth.”
• Essay X.: On the History of Scotland, and the National Character of the Scotch.
• Essay XI.: On the History of the English Constitution, a Propos of Mr. Henry Hallam’s Work, Entitled “the Constitutional History of England.” *
• Essay XII.: On M. Daunou’s Historical Course At the College De France.
• Essay XIII.: On the Roman Empire, the Causes of Its Ruin, and the Double Character of the Institutions of the Middle Ages In the East and West, a Propos of the History of the Lower Empire, By M. De Segur.
• Essay XIV.: On the Primitive Meaning and Extent of the Title of King, a Propos of the Work Entitled, “on Royalty, According to the Revealed Divine Laws, Natural Laws, and the Constitutional Charter,” By M. De La Serve.
• Essay XV.: On the Real Constitution of the Ottoman Empire, a Propos of the Work Entitled, “the Revolution of Constantinople of 1807 and 1808,” By M. De Juchereau De Saint Denis.
• Essay XVI.: On Local and Municipal Freedom, a Propos of a Collection of Mirabeau’s Speeches and Opinions, Published By M. Barthe.
• Essay XVII.: On the Ancient and Modern Spirit of French Lawyers, a Propos of the Universal Journal of Legislation and Jurisprudence, Edited By Messrs. Barthe, Berenger, Berville, Dupin, Junior, Girod (de L’ain), Cousin, Merilhou, Odilon Barrot, Joseph Rey
• Essay XVIII.: On the Philosophy of the Eighteenth and That of the Nineteenth Century, a Propos of M. Garat’s Work, Entitled “historical Memoirs On the Life of M. Suard.”
• Essay XIX.: On the Antipathy of Race Which Divides the French Nation, a Propos of M. Warden’s Work, Entitled a “statistical, Historical, and Political Description of the United States of North America.”
• Essay XX.: The True History of Jacques Bonhomme, From Authentic Documents.
• Essay XXI.: On Some Errors of Our Modern Historians, a Propos of a History of France In Use In Our Colleges.
• Essay XXII.: First Letter On the History of France, Addressed to the Editor of the “courrier Francais.”
• Essay XXIII.: On the Classification of the History of France By Royal Races.
• Essay XXIV.: On the Character and Policy of the Franks.
• Essay XXV.: On the Enfranchisement of the Communes.
• Essay XXVI.: A Glance At the History of Spain. *
• Essay XXVII.: An Episode of the History of Brittany
• Preface to the Narratives.
• Narratives of the Merovingian Times.
• First Narrative. Ad 561—568.
• Second Narrative. Ad 568—575.
• Third Narrative. 575—578.
• Fourth Narrative. 577—586.
• Fifth Narrative. Ad 579—581.
• Sixth Narrative. 580—583.

ESSAY XVII.

ON THE ANCIENT AND MODERN SPIRIT OF FRENCH LAWYERS, A PROPOS OF THE UNIVERSAL JOURNAL OF LEGISLATION AND JURISPRUDENCE, EDITED BY MESSRS. BARTHE, BERENGER, BERVILLE, DUPIN, JUNIOR, GIROD (DE L’AIN), COUSIN, MERILHOU, ODILON BARROT, JOSEPH REY, DE SCHOONEN, ETC. ETC.

A new spirit seems to have arisen in the class of young lawyers: it is the true spirit of the laws, the spirit of pure liberty. For a long while in France, the men who practised the science of the law, were ignorant of the real nature and sanction of human rights; for a long while the representatives of immutable justice regulated the decisions which they made in its name, on the capricious wills of the powerful, or on the servile maxims of paid judges. This shameful discordance is about to disappear. The doctrines which honour our political tribunal are already naturalized at the bar; thence it will spread to the bench of judges; and soon the social title of lawyers will not be as formerly in contradiction with the reality of their character; they will truly be hommes de droit. To this the young men who are now entering on the career of the law aspire; they intend to renew it by treading in it. Confided to their active brain, to their firm and upright minds, this spirit will not stop short; it will force those who follow routine with sincerity to give it up; it will correct those who have some little reason and conscience; as to the others, the course of years will soon have done them justice.

The old generation of French lawyers will thus disappear, body and soul, to make place for a generation as new in its existence as in its principles. Let it not complain that it is now approaching the close of its destiny; its career has been a long one, and one not destitute of grandeur. Born at the moment when the sons of the conquerors of Gaul began to reckon the conquered as men, it arose as a mediator between two nations, whose differences until then had no other arbitrator but the sword. The victorious race had men of its choice and confidence as magistrates: it had its equals as judges: the other race was governed and judged by masters. This subjugated race, for which there was no society, no government, no duties, comprised, in the thirteenth century, the men called people of the champaign country, in contradistinction to the conquerors entrenched on the heights, and the men of the cities who had neither sufficient courage nor sufficient riches to free themselves from the conquest. It was then, that by a simple instinct of humanity, or a great plan of ambition, the supreme chief of the ancient conquerors called around him judges chosen in the nation of the conquered, and thus gave the judgment by equals to that portion of the people which had been his inheritance. From this moment, by the fact of such an institution, by that one circumstance of the master’s allowing the establishment above him of men permitted to issue decrees against himself in favour of those whose bodies were his patrimony, from this moment arose moral relations between himself and his subjects; from this moment legality commenced, and with it obligation. Previously the weaker party obeyed, but was bound to nothing. The conquerors had duties towards their chief whom they called king; the conquered had none; this chief had only in their eyes the somewhat brutal character of a master imposed by violence; this character wore off, and the man whom the subjects of the conquest could formerly qualify only with the title of enemy, then became a chief and a king to them.

Such a revolution struck very much the minds of the men whom it raised out of the nothingness of servitude: their imagination imputed to it some marvellous causes; they attributed the royal power and title of the new judges to the Divinity; it became a popular maxim that the judges were instituted by God, and their mission sacred.* They were not unfaithful to it; the first axiom which they promulgated from their new position was this: “No man has full and entire power over the serf who cultivates his land;”† an axiom which contradicted the conquest by limiting its prerogatives.

This principle laid down, one step further led to this one: “that all prerogative sprung from conquest is void before reason and law.” The lawyers did not make this progress; instead of placing at once absolute legality in reason, to which alone it belongs, they placed it among the acts of the most rational power which then existed, in the will of him who had permitted his authority over the subjugated to have limits. From this confusion sprung those singular axioms which so long dishonoured tribunals, pulpits, and books: the law wills what the king wills; the command of the king is absolute, and absolutely obligatory;* principles, the immense bearings of which served, it is true, in the early periods, to attract under the most humane power the sons of the vanquished of the conquest, body serfs of the heirs of the conquerors, but which, like a two-edged sword, soon wounded on both sides.

In the name of these doctrines, supported on all sides by all the false resemblances which could be assembled in the codes of all periods, in the histories of all nations, in the dogmas of all religions, the sons of the ancient conquerors, originally equal, though socially inferior to the king, were summoned to avow themselves the king’s subjects; the sons of the conquered, the subjects of each manor of the conquerors, were at the same time summoned to avow themselves subjects of the king alone. The exactions of the conquest received the name of the king’s rights; the jurisdictions of the conquest were called the king’s territory; and the whole country became by a logical fiction united to the domain of a single man. Then arose in some sort a new conquest, which humbled all the inhabitants without distinction of race under the social chief of the primitive conquerors; a less absolute but more capable of endurance than the first one, because it united physical to logical force, and could argue its right at the same time as its fortune. A deplorable and yet consistent thing, the cities which had paid with their blood and their gold the right of exemption from the ancient domination, were claimed by the new; for the reason that being a logical one, that is to say, general both in time and place, it admitted of neither prescription nor reserves. The lawyers of the third estate, advocates, judges, and councillors, were compelled, under pain of denying their own maxims, to pursue and condemn juridically the liberty of the cities and communes, the homes of their fathers, and the ramparts of their nation against every tyranny. It was one of the noblest characters, the greatest talents of that order, it was the Chancellor de l’Hôpital who signed the proclamation issued at Moulins, in 1570, by which civil justice, elective administration, all the liberties of a hundred cities of France, were confiscated for the benefit of the king. This great man doubtless suffered much when he was thus forced to yield to the tyranny of a false principle; for it was under that yoke, more than under that of corruption, that those men of law crouched, who in the interval of the fourth to the seventeenth century, annihilated by decrees all that our country contained of individual independence, whether noxious or inoffensive. The judges commissioned to follow up the execution of the fatal proclamation of Moulins, suffered the cities to plead for the defence of their liberty. Those able to prove by charters, that this liberty belonged to them by a manifestly onerous title, were excepted from the sentence which deprived the others of it; a remarkable fact, which proves that the idea of justice in the minds of the lawyers of France, reduced itself to the conception of purely commercial justice. In this circle, they judged rightly; beyond it, their intelligence had no sure ground, and they were honestly iniquitous.

Imprisoned in this miserably circumscribed territory, acknowledging no individual rights without a special contract, no social rights beyond the right of absolute sovereignty exercised by a single man, finding in such narrow limits no real distinction between the just and the unjust in politics, they created for themselves factitious distinctions, and fixed arbitrarily what was law; what morally obliged, and what did not oblige the citizens. Their greatest presumption was the imagining that a royal will, expressed in certain terms, registered with certain forms, was in virtue of these forms the real law, the true type of social reason, and that it consequently had a right to be obeyed and to compel obedience. It was in the wavering and slight distinction between a registered and unregistered will, that they placed the limit of what was just or iniquitous, true or false, legal or arbitrary. Like soldiers who present themselves intrepidly to danger for the most equivocal of causes, they performed prodigies of courage, to sustain against insatiable power that theory which permitted it every thing, on the condition of a vain formula, and ceremonies almost as vain. Talon, Molé, d’Aguesseau, displayed an incredible strength of mind in defending the orders of ancient kings against those of new ones. Their successors did not resist in the same way; perhaps less from cowardice than from a want of confidence in the worn-out dogma of the sanctity of proclamations, erected by registration into fundamental laws of the kingdom.

The French nation on its side, had lost all faith in these formula; it had, slowly it is true, but profoundly, conceived other principles on the subject of social science, besides the royal lordliness and unlimited sovereignty of the prince, the universal guardian of persons and universal curator of property. In proclaiming the rights of individuals as superior to those of societies, and the rights of societies as superior to those of social power, the revolution soon came to efface the doctrines, traditions, and credit of the ancient lawyers.

If from its cradle the revolution could have been fortunate, we should have seen in a new class of lawyers, a sort of incarnation of the spirit of the maxims of liberty, which, from the human reason that had given birth to them, were passing into written constitutions. The judiciary order would thenceforth have risen to its supreme destination, to the perpetual defence of the individuality of the citizen against the unjust aggressions of private or public force. But this august establishment was never formed; those who would have been worthy to found it perished in the civil tempest; when calm returned, minds were weary and empty; and the sole supports which presented themselves to prop our judiciary institutions were old members of the Parliament, and old councillors at the Châtelet. They were set to work, and proceeded in the direction of their education and habits. The ancient doctrines having no strong hold on purely private transactions, the civil code was maintained on the basis which the constituent assembly had laid down; the penal code appeared to be edited by some one of those who were called the bouchers de la Tournelle; the codes of procedure were calculated to find culprits; the judgment of political crimes was given to commissions.

But in the year 1814, the French Revolution suddenly awoke. Freed from the slough of the empire, liberal France reappeared, bright and young, like those cities that we find intact, at the end of centuries, when we have broken through the coating of lava which covered them. The mind of that reviving France passed into the French bar and the schools of law, so long colourless and lifeless. This new life has abundantly produced, within five years, generous ambitions, noble efforts, and national reputations. The dogma of the sanctity of human liberty has resounded before the tribunals, and in the professors’ chairs; although it has been contradicted there by more than one decree, it has taken possession of a territory which it will never give up.

The Universal Journal of Legislation and Jurisprudence appears to us an inspiration of the profoundly true and generous spirit which must one day be the party spirit of the entire body of lawyers in France. Edited by patriotic magistrates and young lawyers of already distinguished talent, this work may be considered as the centre and rallying point of the various doctrines, whether of generallaw, or of special jurisprudence, which will compose the great doctrine of the new judiciary school. On this account, it will be useful to students, and will not be without fruit for the public, which requires a fixed support in the false position in which we find ourselves at the present day, placed as we are between the liberty which we require, and laws made under a state of servitude.

[* ] Loiseau, Traité des Offices.

[† ] Beaumanoir.

[* ] See Pasquier, Loiseau, Loysel, etc. passim.