Chapter II (1)

HISTORY OF THE PROTECTIVE SPIRIT, AND COMPARISON OF IT IN FRANCE AND
ENGLAND.

When, towards the end of the fifth century, the Roman empire was broken up, there followed, as is well known, a long period of ignorance and of crime, in which even the ablest minds were immersed in the grossest superstitions. During these, which are rightly called the Dark Ages, the clergy were supreme: they ruled the consciences of the most despotic sovereigns, and they were respected as men of vast learning, because they alone were able to read and write; because they were the sole depositaries of those idle conceits of which European science then consisted; and because they preserved the legends of the saints and the lives of the fathers, from which, as it was believed, the teachings of divine wisdom might easily be gathered.

Such was the degradation of the European intellect for about five hundred years, during which the credulity of men reached a height unparalleled in the annals of ignorance. But at length the human reason, that divine spark which even the most corrupt society is unable to extinguish, began to display its power, and disperse the mists by which it was surrounded. Various circumstances, which it would be tedious here to discuss, caused this dispersion to take place at different times in different countries. However, speaking generally, we may say that it occurred in the tenth and eleventh centuries, and that by the twelfth century there was no nation now called civilized, upon whom the light had not begun to dawn.

It is from this point that the first great divergence between the European nations took its rise. Before this time their superstition was so great and universal, that it would avail little to measure the degree of their relative darkness. Indeed, so low had they fallen, that, during the earlier period, the authority of the clergy was in many respects an advantage, as forming a barrier between the people and their rulers, and as supplying the sole instance of a class that even made an approach to intellectual pursuits. But when the great movement took place, when the human reason began to rebel, the position of the clergy was suddenly changed. They had been friendly to reasoning as long as the reasoning was on their side.[271] While they were the only guardians of knowledge, they were eager to promote its interests. Now, however, it was falling from their hands: it was becoming possessed by laymen: it was growing dangerous: it must be reduced to its proper dimensions. Then it was that there first became general the inquisitions, the imprisonments, the torturings, the burnings, and all the other contrivances by which the church vainly endeavoured to stem the tide that had turned against her.[272] From that moment there has been an unceasing struggle between these two great parties,--the advocates of inquiry, and the advocates of belief: a struggle which, however it may be disguised, and under whatever forms it may appear, is at bottom always the same, and represents the opposite interests of reason and faith, of scepticism and credulity, of progress and reaction, of those who hope for the future, and of those who cling to the past.

[271] 'Toute influence qu'on accordait à la science ne pouvait, dans les
premiers temps, qu'être favorable au clergé.' _Meyer_, _Institut.
Judic._ vol. i. p. 498.

[272] Early in the eleventh century the clergy first began
systematically to repress independent inquiries by punishing men
who attempted to think for themselves. Compare _Sismondi_, _Hist.
des Français_, vol. iv. pp. 145, 146; _Neander's Hist. of the
Church_, vol. vi. pp. 365, 366; _Prescott's Hist. of Ferdinand
and Isabella_, vol. i. p. 261 note. Before this, such a policy,
as Sismondi justly observes, was not required: 'Pendant plusieurs
siècles, l'église n'avoit été troublée par aucune hérésie;
l'ignorance étoit trop complète la soumission trop servile, la
foi trop aveugle, pour que les questions qui avoient si long-temps
exercé la subtilité des Grecs fussent seulement comprises par les
Latins.' As knowledge advanced, the opposition between inquiry
and belief became more marked: the church redoubled her efforts,
and at the end of the twelfth century the popes first formally
called on the secular power to punish heretics; and the earliest
constitution addressed 'inquisitoribus hæreticæ pravitatis' is
one by Alexander IV. _Meyer_, _Inst. Jud._ vol. ii. pp. 554, 556.
See also on this movement, _Llorente_, _Hist. de l'Inquisition_,
vol. i. p. 125, vol. iv. p. 284. In 1222 a synod assembled at
Oxford caused an apostate to be burned; and this, says Lingard
(_Hist. of England_, vol. ii. p. 148), 'is, I believe, the first
instance of capital punishment in England on the ground of
religion.' Compare _Wright's Biog. Brit. Lit._ vol. ii. p. 444.

This, then, is the great starting point of modern civilization. From the moment that reason began, however faintly, to assert its supremacy, the improvement of every people has depended upon their obedience to its dictates, and upon the success with which they have reduced to its standard the whole of their actions. To understand, therefore, the original divergence of France and England, we must seek it in the circumstances that took place when this, which may be called the great rebellion of the intellect, was first clearly seen.

If now, with a view to such inquiry, we examine the history of Europe, we shall find that just at this period there sprung up the feudal system: a vast scheme of polity, which, clumsy and imperfect as it was, supplied many of the wants of the rude people among whom it arose.[273] The connexion between it and the decline of the ecclesiastical spirit is very obvious. For the feudal system was the first great secular plan that had been seen in Europe since the formation of the civil law: it was the first comprehensive attempt which had been made, during more than four hundred years, to organize society according to temporal, not according to spiritual circumstances, the basis of the whole arrangement being merely the possession of land, and the performance of certain military and pecuniary services.[274]

[273] Sir F. Palgrave (_English Commonwealth_, vol. ii. p. ccvi.) says,
'it is generally admitted, by the best authorities, that from
about the eleventh century benefices acquired the name of fiefs
or feuds;' and Robertson (_State of Europe_, note viii. in
_Works_, p. 393) supposes that the word _feudum_ does not occur
before 1008. But according to M. Guizot (_Civilisation en
France_, vol. iii. p. 238), 'il apparaît, pour la première fois,
dans une charte de Charles le Gros en 884.' This is a question
more curious than important; since whatever the origin of the
word may be, it is certain that the thing did not, and could not,
exist before the tenth century at the earliest: inasmuch as the
extreme disorganisation of society rendered so coercive an
institution impossible. M. Guizot, in another work (_Essais sur
l'Hist. de France_, p. 239), rightly says, 'Au X^e siècle
seulement, les rapports et les pouvoirs sociaux acquirent quelque
fixité.' See also his _Civilisation en Europe_, p. 90.

[274] 'La terre est tout dans ce système.... Le système féodal est comme
une religion de la terre.' _Origines du Droit_, in _[OE]uvres de
Michelet_, vol. ii. p. 302. 'Le caractère de la féodalité,
c'était la prédominance de la _réalité_ sur la _personnalité_, de
la terre sur l'homme.' _Eschbach_, _Etude du Droit_, p. 256.

This was, no doubt, a great step in European civilization, because it set the first example of a large public polity in which the spiritual classes as such had no recognized place;[275] and hence there followed that struggle between feudality and the church, which has been observed by several writers, but the origin of which has been strangely overlooked. What, however, we have now to notice is, that by the establishment of the feudal system, the spirit of protection, far from being destroyed, was probably not even weakened, but only assumed a new form. Instead of being spiritual, it became temporal. Instead of men looking up to the church, they looked up to the nobles. For, as a necessary consequence of this vast movement, or rather as a part of it, the great possessors of land were now being organized into an hereditary aristocracy.[276] In the tenth century, we find the first surnames:[277] by the eleventh century most of the great offices had become hereditary in the leading families:[278] and in the twelfth century armorial bearings were invented, as well as other heraldic devices, which long nourished the conceit of the nobles, and were valued by their descendants as marks of that superiority of birth to which, during many ages, all other superiority was considered subordinate.[279]

[275] According to the social and political arrangements from the fourth
to the tenth century, the clergy were so eminently a class apart,
that they were freed from 'burdens of the state,' and were not
obliged to engage in military services unless they thought proper
to do so. See _Neander's Hist. of the Church_, vol. iii. p. 195,
vol. v. pp. 133, 140; and _Petrie's Ecclesiast. Archit._ p. 382.
But under the feudal system this immunity was lost; and in regard
to performing services no separation of classes was admitted.
'After the feudal polity became established, we do not find that
there was any dispensation for ecclesiastical fiefs.' _Hallam's
Supplemental Notes_, p. 120; and for further proof of the loss of
the old privileges, compare _Grose's Military Antiquities_, vol.
i. pp. 5, 64; _Meyer_, _Instit. Judic._ vol. i. p. 257; _Turner's
Hist. of England_, vol. iv. p. 462; and _Mably's Observations_,
vol. i. pp. 434, 435: so that, as this writer says, p. 215,
'Chaque seigneur laïc avait gagné personnellement à la révolution
qui forma le gouvernement féodal; mais les évêques et les abbés,
en devenant souverains dans leurs terres, perdirent au contraire
beaucoup de leur pouvoir et de leur dignité.'

[276] The great change of turning life-possessions of land into
hereditary possessions, began late in the ninth century, being
initiated in France by a capitulary of Charles the Bald, in 877.
See _Allen on the Prerogative_, p. 210; _Spence's Origin of the
Laws of Europe_, pp. 282, 301; _Meyer_, _Instit. Judiciaires_,
vol. i. p. 206.

[277] That surnames first arose in the tenth century is stated by the
most competent authorities. See _Sismondi_, _Hist. de Français_,
vol. iii. pp. 452-455; _Hallam's Middle Ages_, vol. i. p. 138;
_Monteil_, _Hist. des divers Etats_, vol. iii. p. 268; _Petrie's
Ecclesiast. Archit._ pp. 277, 342. Koch (_Tableau des
Révolutions_, vol. i. p. 138) erroneously says, 'c'est
pareillement aux croisades que l'Europe doit l'usage des surnoms
de famille;' a double mistake, both as to the date and the cause,
since the introduction of surnames being part of a large social
movement, can under no circumstances be ascribed to a single
event.

[278] On this process from the end of the ninth to the twelfth century,
compare _Hallam's Supplemental Notes_, pp. 97, 98; _Dalrymple's
Hist. of Feudal Property_, p. 21; _Klimrath_, _Hist. du Droit_,
vol. i. p. 74.

[279] As to the origin of armorial bearings, which cannot be traced
higher than the twelfth century, see _Hallam's Middle Ages_, vol.
i. pp. 138, 139; _Ledwich_, _Antiquities of Ireland_, pp. 231,
232; _Origines du Droit_, in _[OE]uvres de Michelet_, vol. ii. p.
382.

Such was the beginning of the European aristocracy, in the sense in which that word is commonly used. With the consolidation of its power, feudality was made, in reference to the organization of society, the successor of the church;[280] and the nobles, becoming hereditary, gradually displaced in government, and in the general functions of authority, the clergy, among whom the opposite principle of celibacy was now firmly established.[281] It is, therefore, evident, that an inquiry into the origin of the modern protective spirit does, in a great measure, resolve itself into an inquiry into the origin of the aristocratic power; since that power was the exponent, and, as it were, the cover under which the spirit displayed itself. This, as we shall hereafter see, is likewise connected with the great religious rebellion of the sixteenth century; the success of which mainly depended on the weakness of the protective principle that opposed it. But, reserving this for future consideration, I will now endeavour to trace a few of the circumstances which gave the aristocracy more power in France than in England, and thus accustomed the French to a closer and more constant obedience, and infused into them a more reverential spirit than that which was usual in our country.

[280] For, as Lerminia says (_Philos. du Droit_, vol. i. p. 17), 'la loi
féodale n'est autre chose que la terre élevée à la souveraineté.'
On the decline of the church in consequence of the increased
feudal and secular spirit, see _Sismondi_, _Hist. des Français_,
vol. iii. p. 440, vol. iv. p. 88. In our own country, one fact
may be mentioned illustrative of the earliest encroachments of
laymen: namely, that, before the twelfth century, we find no
instance in England of the great seal being entrusted 'to the
keeping of a layman.' _Campbell's Chancellors_, vol. i. p. 61.

[281] Celibacy, on account of its supposed ascetic tendency, was
advocated and in some countries was enforced, at an early period;
but the first general and decisive movement in its favour was in
the middle of the eleventh century, before which time it was a
speculative doctrine, constantly disobeyed. See _Neander's Hist.
of the Church_, vol. vi. pp. 52, 61, 62, 72, 93, 94 note, vol.
vii. pp. 127-131; _Mosheim's Eccles. Hist._ vol. i. pp. 248, 249;
_Eccleston's English Antiq._ p. 95.

Soon after the middle of the eleventh century, and therefore while the aristocracy was in the process of formation, England was conquered by the Duke of Normandy, who naturally introduced the polity existing in his own country.[282] But, in his hands, it underwent a modification suitable to the new circumstances in which he was placed. He, being in a foreign country, the general of a successful army composed partly of mercenaries,[283] was able to dispense with some of those feudal usages which were customary in France. The great Norman lords, thrown as strangers into the midst of a hostile population, were glad to accept estates from the crown on almost any terms that would guarantee their own security. Of this, William naturally availed himself. For, by granting baronies on conditions favourable to the crown, he prevented the barons[284] from possessing that power which they exercised in France, and which, but for this, they would have exercised in England. The result was, that the most powerful of our nobles became amenable to the law, or, at all events, to the authority of the king.[285] Indeed, to such an extent was this carried, that William, shortly before his death, obliged all the landowners to render their fealty to him; thus entirely neglecting that peculiarity of feudalism, according to which each vassal was separately dependent on his own lord.[286]

[282] Where it was particularly flourishing: 'la féodalité fut organisée
en Normandie plus fortement et plus systématiquement que partout
ailleurs en France.' _Klimrath_, _Travaux sur l'Hist. du Droit_,
vol. i. p. 130. The 'coutume de Normandie' was, at a much later
period, only to be found in the old 'grand coutumier.'
_Klimrath_, vol. ii. p. 160. On the peculiar tenacity with which
the Normans clung to it, see _Lettres d'Aguesseau_, vol. ii. pp.
225, 226: 'accoutumés à respecter leur coutume comme l'évangile.'

[283] _Mills' Hist. of Chivalry_, vol. i. p. 387; _Turner's Hist. of
England_, vol. ii. p. 390, vol. iv. p. 76. Mercenary troops were
also employed by his immediate successors. _Grose's Military
Antiq._ vol. i. p. 55.

[284] On the different meanings attached to the word 'baron,' compare
_Klimrath_, _Hist. du Droit_, vol. ii. p. 40, with _Meyer_,
_Instit. Judiciaires_, vol. i. p. 105. But M. Guizot says, what
seems most likely, 'il est probable que ce nom fut commun
originairement à tous les vassaux immédiats de la couronne, liés
au roi _per servitium militare_, par le service de chevalier.'
_Essais_, p. 265.

[285] _Meyer_, _Instit. Judic._ vol. i. p. 242; _Turner's Hist. of
England_, vol. iii. p. 220. The same policy of reducing the
nobles was followed up by Henry II., who destroyed the baronial
castles. _Turner_, vol. iv. p. 223. Compare _Lingard_, vol. i.
pp. 315, 371.

[286] 'Deinde c[oe]pit homagia hominum totius Angliæ, et juramentum
fidelitatis cujuscumque essent feodi vel tenementi.' _Matthæi
Westmonast. Flores Historiarum_, vol. ii. p. 9.

But in France, the course of affairs was very different. In that country the great nobles held their lands, not so much by grant, as by prescription.[287] A character of antiquity was thus thrown over their rights; which, when added to the weakness of the crown, enabled them to exercise on their own estates, all the functions of independent sovereigns.[288] Even when they received their first great check, under Philip Augustus,[289] they, in his reign, and indeed long after, wielded a power quite unknown in England. Thus, to give only two instances: the right of coining money, which has always been regarded as an attribute of sovereignty, was never allowed in England, even to the greatest nobles.[290] But in France it was exercised by many persons independently of the crown, and was not abrogated until the sixteenth century.[291] A similar remark holds good of what was called the right of private war; by virtue of which the nobles were allowed to attack each other, and disturb the peace of the country with the prosecution of their private feuds. In England the aristocracy were never strong enough to have this admitted as a right,[292] though they too often exercised it as a practice. But in France it became a part of the established law; it was incorporated into the text-books of feudalism, and it is distinctly recognized by Louis IX. and Philip the Fair,--two kings of considerable energy, who did every thing in their power to curtail the enormous authority of the nobles.[293]

[287] See some good remarks on this difference between the French and
English nobles, in _Hallam's Middle Ages_, vol. ii. pp. 99, 100.
Mably (_Observations_, vol. i. p. 60) says: 'en effet, on
négligea, sur la fin de la première race, de conserver les titres
primordiaux de ses possessions.' As to the old customary French
law of prescription, see _Giraud_, _Précis de l'Ancien Droit_,
pp. 79, 80.

[288] _Mably_, _Observations sur l'Hist. de France_, vol. i. pp. 70,
162, 178.

[289] On the policy of Philip Augustus in regard to the nobles, see
_Mably_, _Observations_, vol. i. p. 246; _Lerminier_, _Philos. du
Droit_, vol. i. p. 265; _Boulainvilliers_, _Hist. de l'Ancien
Gouvernement_, vol. iii. pp. 147-150; _Guizot_, _Civilisation en
France_, vol. iv. pp. 134, 135; _Courson_, _Hist. des Peuples
Brétons_, Paris, 1846, vol. ii. p. 350.

[290] 'No subjects ever enjoyed the right of coining silver in England
without the royal stamp and superintendence; a remarkable proof
of the restraint in which the feudal aristocracy was always held
in this country.' _Hallam's Middle Ages_, vol. i. p. 154.

[291] _Brougham's Polit. Philos._ 1849, vol. i. p. 446. In addition to
the evidence there given on the right of coinage, see _Mably's
Observations_, vol. i. p. 424, vol. ii. pp. 296, 297; and
_Turner's Normandy_, vol. ii. p. 261.

[292] _Hallam's Supplemental Notes_, pp. 304, 305.

[293] 'Saint-Louis consacra le droit de guerre.... Philippe le Bel, qui
voulut l'abolir, finit par le rétablir.' _Montlosier_, _Monarchie
Française_, vol. i. pp. 127, 202: see also pp. 434, 435, and vol.
ii. pp. 435, 436. Mably (_Observations_, vol. ii. p. 338)
mentions 'lettres-patentes de Philippe-de-Valois du 8 février
1330, pour permettre dans le duché d'Aquitaine les guerres
privées,' &c.; and he adds, 'le 9 avril 1353 le roi Jean
renouvelle l'ordonnance de S. Louis, nommée la quarantaine du
roi, touchant les guerres privées.'

Out of this difference between the aristocratic power of France and England, there followed many consequences of great importance. In our country the nobles, being too feeble to contend with the crown, were compelled, in self-defence, to ally themselves with the people.[294] About a hundred years after the Conquest, the Normans and Saxons amalgamated; and both parties united against the king in order to uphold their common rights.[295] The Magna Charta, which John was forced to yield contained concessions to the aristocracy; but its most important stipulations were those in favour of 'all classes of freemen.'[296] Within half a century, fresh contests broke out; the barons were again associated with the people, and again there followed the same results,--the extension of popular privileges being each time the condition and the consequence of this singular alliance. In the same way, when the Earl of Leicester raised a rebellion against Henry III., he found his own party too weak to make head against the crown. He, therefore, applied to the people:[297] and it is to him that our House of Commons owes its origin; since he, in 1264, set the first example of issuing writs to cities and boroughs; thus calling upon citizens and burgesses to take their place in what had hitherto been a parliament composed entirely of priests and nobles.[298]

[294] Sir Francis Palgrave (in his _Rise and Progress of the English
Commonwealth_, vol. i. pp. 51-55) has attempted to estimate the
results produced by the Norman Conquest; but he omits to notice
this, which was the most important consequence of all.

[295] On this political union between Norman barons and Saxon citizens,
of which the first clear indication is at the end of the twelfth
century, compare _Campbell's Chancellors_, vol. i. p. 113, with
_Brougham's Polit. Philos._ vol. i. p. 339, vol. iii. p. 222.

In regard to the general question of the amalgamation of races, we have three distinct kinds of evidence:

1st. Towards the end of the twelfth century, a new language began to be formed by blending Norman with Saxon; and English literature, properly so called, dates from the commencement of the thirteenth century. Compare _Madden's Preface to Layamon_, 1847, vol. i. pp. xx. xxi., with _Turner's Hist. of England_, vol. viii. pp. 214, 217, 436, 437.

2nd. We have the specific statement of a writer in the reign of Henry II., that 'sic permixtæ sunt nationes ut vix discerni possit hodie, de liberis loquor, quis Anglicus, quis Normannus sit genere.' _Note in Hallam's Middle Ages_, vol. ii. p. 106.

3rd. Before the thirteenth century had passed away, the difference of dress, which in that state of society would survive many other differences, was no longer observed, and the distinctive peculiarities of Norman and Saxon attire had disappeared. See _Strutt's View of the Dress and Habits of the People of England_, vol. ii. p. 67, edit. Planché, 1842, 4to.

[296] 'An equal distribution of civil rights to all classes of freemen
forms the peculiar beauty of the charter.' _Hallam's Middle
Ages_, vol. ii. p. 108. This is very finely noticed in one of
Lord Chatham's great speeches. _Parl. Hist._ vol. xvi. p. 662.

[297] Compare _Meyer_, _Instit. Judic._ vol. ii. p. 39, with _Lingard's
England_, vol. ii. p. 127, and _Somers Tracts_, vol. vi. p. 92.

[298] 'He is to be honoured as the founder of a representative system of
government in this country.' _Campbell's Chief-Justices_, vol. i.
p. 61. Some writers (see, for instance, _Dalrymple's Hist. of
Feudal Property_, p. 332) suppose that burgesses were summoned
before the reign of Henry III.: but this assertion is not only
unsupported by evidence, but is in itself improbable; because at
an early period the citizens, though rapidly increasing in power,
were hardly important enough to warrant such a step being taken.
The best authorities are now agreed to refer the origin of the
House of Commons to the period mentioned in the text. See
_Hallam's Supplement_, _Notes_, pp. 335-339; _Spence's Origin of
the Laws of Europe_, p. 512; _Campbell's Chancellors_, vol. i. p.
155; _Lingard's England_, vol. ii. p. 138; _Guizot's Essais_, p.
319. The notion of tracing this to the wittenagemot is as absurd
as finding the origin of juries in the system of compurgators;
both of which were favourite errors in the seventeenth, and even
in the eighteenth century. In regard to the wittenagemot, this
idea still lingers among antiquaries: but, in regard to
compurgators, even they have abandoned their old ground, and it
is now well understood that trial by jury did not exist till long
after the Conquest. Compare _Palgrave's English Commonwealth_,
part i. pp. 243 seq., with _Meyer_, _Instit. Judic._ vol. ii. pp.
152-173. There are few things in our history so irrational as the
admiration expressed by a certain class of writers for the
institutions of our barbarous Anglo-Saxon ancestors.

The English aristocracy being thus forced, by their own weakness, to rely on the people,[299] it naturally followed, that the people imbibed that tone of independence, and that lofty bearing, of which our civil and political institutions are the consequence, rather than the cause. It is to this, and not to any fanciful peculiarity of race, that we owe the sturdy and enterprising spirit for which the inhabitants of this island have long been remarkable. It is this which has enabled us to baffle all the arts of oppression, and to maintain for centuries liberties which no other nation has ever possessed. And it is this which has fostered and upheld those great municipal privileges, which, whatever be their faults, have, at least, the invaluable merit of accustoming free men to the exercise of power, giving to citizens the management of their own city, and perpetuating the idea of independence, by preserving it in a living type, and by enlisting in its support the interests and affections of individual men.

[299] Montlosier, with the fine spirit of a French noble, taunts the
English aristocracy with this: 'En France la noblesse, attaquée
sans cesse, s'est défendue sans cesse. Elle a subi l'oppression;
elle ne l'a point acceptée. En Angleterre, elle a couru dès la
première commotion, se réfugier dans les rangs des bourgeois, et
sous leur protection. Elle a abdiqué ainsi son existence.'
_Montlosier_, _Monarchie Française_, vol. iii. p. 162. Compare an
instructive passage in _De Staël_, _Consid. sur la Révolution_,
vol. i. p. 421.

But the habits of self-government which, under these circumstances, were cultivated in England, were, under opposite circumstances, neglected in France. The great French lords being too powerful to need the people, were unwilling to seek their alliance.[300] The result was, that, amid a great variety of forms and names, society was, in reality, only divided into two classes--the upper and the lower, the protectors and the protected. And, looking at the ferocity of the prevailing manners, it is not too much to say, that in France, under the feudal system, every man was either a tyrant or a slave. Indeed, in most instances, the two characters were combined in the same person. For, the practice of subinfeudation, which in our country was actively checked, became in France almost universal.[301] By this, the great lords having granted lands on condition of fealty and other services to certain persons, these last subgranted them; that is, made them over on similar conditions to other persons, who had likewise the power of bestowing them on a fourth party, and so on in an endless series;[302] thus forming a long chain of dependence, and, as it were, organizing submission into a system.[303] In England, on the other hand, such arrangements were so unsuited to the general state of affairs, that it is doubtful if they were ever carried on to any extent; and, at all events, it is certain that, in the reign of Edward I., they were finally stopped by the statute known to lawyers as _Quia emptores_.[304]

[300] See some good remarks in _Mably_, _Observations sur l'Hist. de
France_, vol. iii. pp. 114, 115.

[301] _Hallam's Middle Ages_, vol. i. p. 111.

[302] 'Originally there was no limit to subinfeudation.' _Brougham's
Polit. Philos._ vol. i. p. 279.

[303] A living French historian boasts that, in his own country, 'toute
la société féodale formait ainsi une échelle de clientelle et de
patronage.' _Cassagnac_, _Révolution Française_, vol. i. p. 459.

[304] This is 18 Edw. I. c. 1; respecting which, see _Blackstone's
Comment._ vol. ii. p. 91, vol. iv. p. 425; _Reeve's Hist. of
English Law_, vol. ii. p. 223; _Dalrymple's Hist. of Feudal
Property_, pp. 102, 243, 340.

Thus early was there a great social divergence between France and England. The consequences of this were still more obvious when, in the fourteenth century, the feudal system rapidly decayed in both countries. For in England, the principle of protection being feeble, men were in some degree accustomed to self-government; and they were able to hold fast by those great institutions which would have been ill adapted to the more obedient habits of the French people. Our municipal privileges, the rights of our yeomanry, and the security of our copyholders, were, from the fourteenth to the seventeenth centuries, the three most important guarantees for the liberties of England.[305] In France such guarantees were impossible. The real division being between those who were noble, and those who were not noble, no room was left for the establishment of intervening classes; but all were compelled to fall into one of these two great ranks.[306] The French have never had any thing answering to our yeomanry; nor were copyholders recognized by their laws. And, although they attempted to introduce into their country municipal institutions, all such efforts were futile; for, while they copied the forms of liberty, they lacked that bold and sturdy spirit by which alone liberty can be secured. They had, indeed, its image and superscription; but they wanted the sacred fire that warms the image into life. Every thing else they possessed. The show and appliances of freedom were there. Charters were granted to their towns, and privileges conceded to their magistrates. All, however, was useless. For it is not by the wax and parchment of lawyers that the independence of men can be preserved. Such things are the mere externals; they set off liberty to advantage; they are as its dress and paraphernalia, its holiday-suit in times of peace and quiet. But, when the evil days set in, when the invasions of despotism have begun, liberty will be retained, not by those who can show the oldest deeds and the largest charters, but by those who have been most inured to habits of independence, most accustomed to think and act for themselves, and most regardless of that insidious protection which the upper classes have always been so ready to bestow, that, in many countries, they have now left nothing worth the trouble to protect.

[305] The history of the decay of that once most important class, the
English yeomanry, is an interesting subject, and one for which I
have collected considerable materials; at present, I will only
say, that its decline was first distinctly perceptible in the
latter half of the seventeenth century, and was consummated by
the rapidly-increasing power of the commercial and manufacturing
classes early in the eighteenth century. After losing their
influence, their numbers naturally diminished, and they made way
for other bodies of men, whose habits of mind were less
prejudiced, and therefore better suited to that new state which
society assumed in the last age. I mention this, because some
writers regret the almost total destruction of the yeoman
freeholders; overlooking the fact, that they are disappearing,
not in consequence of any violent revolution or stretch of
arbitrary power, but simply by the general march of affairs;
society doing away with what it no longer requires. Compare
_Kay's Social Condition of the People_, vol. i. pp. 43, 602, with
a letter from Wordsworth in _Bunbury's Correspond. of Hanmer_,
p. 440; a note in _Mill's Polit. Econ._ vol. i. pp. 311, 312;
another in _Nichols's Lit. Anec._ vol. v. p. 323; and _Sinclair's
Correspond._ vol. i. p. 229.

[306] This is stated as an admitted fact by French writers living in
different periods and holding different opinions; but all agreed
as to there being only two divisions: 'comme en France on est
toujours ou noble, ou roturier, et qu'il n'y a pas de milieu.'
_Mém. de Rivarol_, p. 7. 'La grande distinction des nobles et des
roturiers.' _Giraud_, _Précis de l'Ancien Droit_, p. 10. Indeed,
according to the Coutumes, the nobles and roturiers attained
their majority at different ages. _Klimrath_, _Hist. du Droit_,
vol. ii. p. 249 (erroneously stated in _Story's Conflict of
Laws_, pp. 56, 79, 114). See further respecting this capital
distinction, _Mém. de Duplessis Mornay_, vol. ii. p. 230
('agréable à la noblesse et au peuple'); _[OE]uvres de Turgot_,
vol. viii. pp. 222, 232, 237; _Bunbury's Correspond. of Hanmer_,
p. 256; _Mably_, _Observations_, vol. iii. p. 263; and _Mercier
sur Rousseau_, vol. i. p. 38: 'On étoit roturier, vilain, homme
de néant, canaille, dès qu'on ne s'appelloit plus marquis, baron,
comte, chevalier, etc.'

And so it was in France. The towns, with few exceptions, fell at the first shock; and the citizens lost those municipal privileges which, not being grafted on the national character, it was found impossible to preserve. In the same way, in our country, power naturally, and by the mere force of the democratic movement, fell into the hands of the House of Commons; whose authority has ever since, notwithstanding occasional checks, continued to increase at the expense of the more aristocratic parts of the legislature. The only institution answering to this in France was the States-General; which, however, had so little influence, that, in the opinion of native historians, it was hardly to be called an institution at all.[307] Indeed, the French were, by this time, so accustomed to the idea of protection, and to the subordination which that idea involves, that they were little inclined to uphold an establishment which, in their constitution, was the sole representative of the popular element. The result was, that, by the fourteenth century, the liberties of Englishmen were secured;[308] and, since then, their only concern has been to increase what they have already obtained. But in that same century, in France, the protective spirit assumed a new form; the power of the aristocracy was, in a great measure, succeeded by the power of the crown; and there began that tendency to centralization which, having been pushed still further, first under Louis XIV., and afterwards under Napoleon, has become the bane of the French people.[309] For by it the feudal ideas of superiority and submission have long survived that barbarous age to which alone they were suited. Indeed, by their transmigration, they seemed to have gained fresh strength. In France, every thing is referred to one common centre, in which all civil functions are absorbed. All improvements of any importance, all schemes for bettering even the material condition of the people must receive the sanction of government; the local authorities not being considered equal to such arduous tasks. In order that inferior magistrates may not abuse their power, no power is conferred upon them. The exercise of independent jurisdiction is almost unknown. Every thing that is done must be done at head quarters.[310] The government is believed to see every thing, know every thing, and provide for every thing. To enforce this monstrous monopoly there has been contrived a machinery well worthy of the design. The entire country is covered by an immense array of officials;[311] who, in the regularity of their hierarchy, and in the order of their descending series, form an admirable emblem of that feudal principle, which ceasing to be territorial, has now become personal. In fact, the whole business of the state is conducted on the supposition that no man either knows his own interest, or is fit to take care of himself. So paternal are the feelings of government, so eager for the welfare of its subjects, that it has drawn within its jurisdiction the most rare, as well as the most ordinary, actions of life. In order that the French may not make imprudent wills, it has limited the right of bequest; and, for fear that they should bequeath their property wrongly, it prevents them from bequeathing the greater part of it at all. In order that society may be protected by its police, it has directed that no one shall travel without a passport. And when men are actually travelling, they are met at every turn by the same interfering spirit, which, under pretence of protecting their persons, shackles their liberty. Into another matter, far more serious, the French have carried the same principle. Such is their anxiety to protect society against criminals, that, when an offender is placed at the bar of one of their courts, there is exhibited a spectacle which is no idle boast to say we, in England, could not tolerate for a single hour. There is seen a great public magistrate, by whom the prisoner is about to be tried, examining him in order to ascertain his supposed guilt, re-examining him, cross-examining him, performing the duties, not of a judge, but of a prosecutor, and bringing to bear against the unhappy man all the authority of his judicial position, all his professional subtlety, all his experience, all the dexterity of his practised understanding. This is, perhaps, the most alarming of the many instances in which the tendencies of the French intellect are shown; because it supplies a machinery ready for the purposes of absolute power; because it brings the administration of justice into disrepute, by associating with it an idea of unfairness; and because it injures that calm and equable temper, which it is impossible fully to maintain under a system that makes a magistrate an advocate, and turns the judge into a partizan. But this, mischievous as it is, only forms part of a far larger scheme. For, to the method by which criminals are discovered, there is added an analogous method, by which crime is prevented. With this view, the people, even in their ordinary amusements, are watched and carefully superintended. Lest they should harm each other by some sudden indiscretion, precautions are taken similar to those with which a father might surround his children. In their fairs, at their theatres, their concerts, and their other places of public resort, there are always present soldiers, who are sent to see that no mischief is done, that there is no unnecessary crowding, that no one uses harsh language, that no one quarrels with his neighbour. Nor does the vigilance of the government stop there. Even the education of children is brought under the control of the state, instead of being regulated by the judgment of masters or parents.[312] And the whole plan is executed with such energy, that, as the French while men are never let alone, just so while children they are never left alone.[313] At the same time, it being reasonably supposed that the adults thus kept in pupilage cannot be proper judges of their own food, the government has provided for this also. Its prying eye follows the butcher to the shambles, and the baker to the oven. By its paternal hand, meat is examined lest it should be bad, and bread is weighed lest it should be light. In short, without multiplying instances, with which most readers must be familiar, it is enough to say that in France, as in every country where the protective principle is active, the government has established a monopoly of the worst kind; a monopoly which comes home to the business and bosoms of men, follows them in their daily avocations, troubles them with its petty, meddling spirit, and, what is worse than all, diminishes their responsibility to themselves; thus depriving them of what is the only real education that most minds receive,--the constant necessity of providing for future contingencies, and the habit of grappling with the difficulties of life.

[307] 'Les états-généraux sont portés dans la liste de nos institutions.
Je ne sais cependant s'il est permis de donner ce nom à des
rassemblemens aussi irréguliers.' _Montlosier_, _Monarchie
Française_, vol. i. p. 266. 'En France, les états-généraux, au
moment même de leur plus grand éclat, c'est à dire dans le cours
du xiv^e siècle, n'ont guère été que des accidents, un pouvoir
national et souvent invoqué, mais non un établissement
constitutionnel.' _Guizot_, _Essais_, p. 253. See also _Mably_,
_Observations_, vol. iii. p. 147; and _Sismondi_, _Hist. des
Français_, vol. xiv. p. 642.

[308] This is frankly admitted by one of the most candid and enlightened
of all the foreign writers on our history, _Guizot_, _Essais_, p.
297: 'En 1307, les droits qui devaient enfanter en Angleterre un
gouvernement libre étaient définitivement reconnus.'

[309] See an account of the policy of Philip the Fair, in _Mably_,
_Observations_, vol. ii. pp. 25-44; in _Boulainvilliers_, _Ancien
Gouvernement_, vol. i. pp. 292, 314, vol. ii. pp. 37, 38; and in
_Guizot_, _Civilisation en France_, vol. iv. pp. 170-192. M.
Guizot says, perhaps too strongly, that his reign was 'la
métamorphose de la royauté en despotisme,' On the connexion of
this with the centralizing movement, see _Tocqueville's
Démocratie_, vol. i. p. 307: 'Le goût de la centralisation et la
manie réglementaire remontent, en France, à l'époque où les
légistes sont entrés dans le gouvernement; ce qui nous reporte au
temps de Philippe le Bel.' Tennemann also notices, that in his
reign the 'Rechtstheorie' began to exercise influence; but this
learned writer takes a purely metaphysical view, and has
therefore misunderstood the more general social tendency. _Gesch.
der Philos._ vol. viii. p. 823.

[310] As several writers on law notice this system with a lenient eye
_Origines du Droit Français_, in _[OE]uvres de Michelet_, vol. ii.
p. 321; and _Eschbach_, _Etude du Droit_, p. 129: 'le système
énergique de la centralisation', it may be well to state how it
actually works.

Mr. Bulwer, writing twenty years ago, says: 'Not only cannot a
commune determine its own expenses without the consent of the
minister or one of his deputed functionaries, it cannot even
erect a building, the cost of which shall have been sanctioned,
without the plan being adopted by a board of public works
attached to the central authority, and having the supervision and
direction of every public building throughout the Kingdom.'
_Bulwer's Monarchy of the Middle Classes_, 1836, vol. ii. p. 262.

M. Tocqueville, writing in the present year (1856), says, 'Sous
l'ancien régime, _comme de nos jours_, il n'y avait ville, bourg,
village, ni si petit hameau en France, hôpital, fabrique, couvent
ni collège, qui pût avoir une volonté indépendante dans ses
affaires particulières, ni administrer à sa volonté ses propres
biens. Alors, _comme aujourd'hui_, l'administration tenait donc
tous les Français en tutelle, et si l'insolence du mot ne s'était
pas encore produite, on avait du moins déjà la chose.'
_Tocqueville_, _l'Ancien Régime_, 1856, pp. 79, 80.

[311] The number of civil functionaries in France, who are paid by the
government to trouble the people, passes all belief, being
estimated, at different periods during the present century, at
from 138,000 to upwards of 800,000. _Tocqueville_, _de la
Démocratie_, vol. i. p. 220; _Alison's Europe_, vol. xiv. pp. 127,
140; _Kay's Condition of the People_, vol. i. p. 272; _Laing's
Notes_, 2d series, p. 185. Mr. Laing, writing in 1850, says: 'In
France, at the expulsion of Louis Philippe, the civil
functionaries were stated to amount to 807,030 individuals.'

[312] 'The government in France possesses control over all the education
of the country, with the exception of the colleges for the
education of the clergy, which are termed seminaries, and their
subordinate institutions.' _Report on the State of Superior
Education in France in_ 1843, in _Journal of Statist. Soc._ vol.
vi. p. 304. On the steps taken during the power of Napoleon, see
_Alison's Europe_, vol. viii. p. 203: 'Nearly the whole education
of the empire was brought effectually under the direction and
appointment of government.'

[313] Much attention is paid to the _surveillance_ of pupils; it being a
fundamental principle of French education, that children should
never be left alone. _Report on General Education in France in_
1842, in _Journal of Statist. Soc._ vol. v. p. 20.

The consequence of all this has been, that the French, though a great and splendid people,--a people full of mettle, high-spirited, abounding in knowledge, and perhaps less oppressed by superstition than any other in Europe,--have always been found unfit to exercise political power. Even when they have possessed it, they have never been able to combine permanence with liberty. One of these two elements has always been wanting. They have had free governments, which have not been stable. They have had stable governments, which have not been free. Owing to their fearless temper, they have rebelled, and no doubt will continue to rebel, against so evil a condition.[314] But it does not need the tongue of a prophet to tell that, for at least some generations, all such efforts must be unsuccessful. For men can never be free, unless they are educated to freedom. And this is not the education which is to be found in schools, or gained from books; but it is that which consists in self-discipline, in self-reliance, and in self-government. These, in England, are matters of hereditary descent--traditional habits, which we imbibe in our youth, and which regulate us in the conduct of life. The old associations of the French all point in another direction. At the slightest difficulty, they call on the government for support. What with us is competition, with them is monopoly. That which we effect by private companies, they effect by public boards. They cannot cut a canal, or lay down a railroad, without appealing to the government for aid. With them, the people look to the rulers; with us, the rulers look to the people. With them, the executive is the centre from which society radiates;[315] with us, society is the instigator, and the executive the organ. The difference in the result has corresponded with the difference in the process. We have been made fit for political power, by the long exercise of civil rights; they, neglecting the exercise, think they can at once begin with the power. We have always shown a determination to uphold our liberties, and, when the times are fitting, to increase them; and this we have done with a decency and a gravity natural to men to whom such subjects have long been familiar. But the French, always treated as children, are, in political matters, children still. And as they have handled the most weighty concerns in that gay and volatile spirit which adorns their lighter literature, it is no wonder that they have failed in matters where the first condition of success is, that men should have been long accustomed to rely upon their own energies, and that before they try their skill in a political struggle, their resources should have been sharpened by that preliminary discipline, which a contest with the difficulties of civil life can never fail to impart.

[314] A distinguished French author says: 'La France souffre du mal du
siècle; elle en est plus malade qu'aucun autre pays; ce mal c'est
la haine de l'autorité.' _Custine_, _Russie_, vol. ii. p. 136.
Compare, _Rey_, _Science Sociale_, vol. ii. p. 86 note.

[315] It is to the activity of this protective and centralizing spirit
that we must ascribe, what a very great authority noticed thirty
years ago, as 'le défaut de spontanéité, qui caractérise les
institutions de la France moderne.' _Meyer_, _Instit. Judic._
vol. iv. p. 536. It is also this which, in literature and in
science, makes them favour the establishment of academies; and it
is probably to the same principle that their jurists owe their
love of codification. All these are manifestations of an
unwillingness to rely on the general march of affairs, and show
an undue contempt for the unaided conclusions of private men.

These are among the considerations by which we must be guided, in estimating the probable destinies of the great countries of Europe. But what we are now rather concerned with is, to notice how the opposite tendencies of France and England long continued to be displayed in the condition and treatment of their aristocracy; and how from this there naturally followed some striking differences between the war conducted by the Fronde, and that waged by the Long Parliament.

When, in the fourteenth century, the authority of the French kings began rapidly to increase, the political influence of the nobility was, of course, correspondingly diminished. What, however, proves the extent to which their power had taken root, is the undoubted fact, that, notwithstanding this to them unfavourable circumstance, the people were never able to emancipate themselves from their control.[316] The relation the nobles bore to the throne became entirely changed; that which they bore to the people remained almost the same. In England, slavery, or villenage, as it is mildly termed, quickly diminished, and was extinct by the end of the sixteenth century.[317] In France, it lingered on two hundred years later, and was only destroyed in that great Revolution by which the possessors of ill-gotten power were called to so sharp an account.[318] Thus, too, until the last seventy years, the nobles were in France exempt from those onerous taxes which oppressed the people. The taille and corvée were heavy and grievous exactions, but they fell solely on men of ignoble birth;[319] for the French aristocracy, being a high and chivalrous race, would have deemed it an insult to their illustrious descent, if they had been taxed to the same amount as those whom they despised as their inferiors.[320] Indeed, every thing tended to nurture this general contempt. Every thing was contrived to humble one class, and exalt the other. For the nobles there were reserved the best appointments in the church, and also the most important military posts.[321] The privilege of entering the army as officers was confined to them;[322] and they alone possessed a prescriptive right to belong to the cavalry.[323] At the same time, and to avoid the least chance of confusion, an equal vigilance was displayed in the most trifling matters, and care was taken to prevent any similarity, even in the amusements of the two classes. To such a pitch was this brought, that, in many parts of France, the right of having an aviary or a dovecote depended entirely on a man's rank; and no Frenchman, whatever his wealth might be, could keep pigeons, unless he were a noble; it being considered that these recreations were too elevated for persons of plebeian origin.[324]

[316] Mably (_Observations_, vol. iii. pp. 154, 155, 352-362) has
collected some striking evidence of the tyranny of the French
nobles in the sixteenth century; and as to the wanton cruelty
with which they exercised their power in the seventeenth century,
see _Des Réaux_, _Historiettes_, vol. vii. p. 155, vol. viii. p.
79, vol. ix. pp. 40, 61, 62, vol. x. pp. 255-257. In the
eighteenth century, matters were somewhat better; but still the
subordination was excessive, and the people were poor,
ill-treated, and miserable. Compare _[OE]uvres de Turgot_, vol.
iv. p. 139; _Letter from the Earl of Cork_, dated Lyons, 1754, in
_Burton's Diary_, vol. iv. p. 80; the statement of Fox, in _Parl.
Hist._ vol. xxxi. p. 406; _Jefferson's Correspond._ vol. ii. p.
45; and _Smith's Tour on the Continent_, edit. 1793, vol. iii.
pp. 201, 202.

[317] Mr. Eccleston (_English Antiq._ p. 138) says, that in 1450
'villenage had almost passed away;' and according to Mr. Thornton
(_Over-Population_, p. 182), 'Sir Thomas Smith, who wrote about
the year 1550, declares that he had never met with any personal
or domestic slaves; and that the villains, or predial slaves,
still to be found, were so few, as to be scarcely worth
mentioning.' Mr. Hallam can find no 'unequivocal testimony to the
existence of villenage' later than 1574. _Middle Ages_, vol. ii.
p. 312; see, to the same effect, _Barrington on the Statutes_,
pp. 308, 309. If, however, my memory does not deceive me, I have
met with evidence of it in the reign of James I., but I cannot
recall the passage.

[318] M. Cassagnac (_Causes de la Révolution_, vol. iii. p. 11) says:
'Chose surprenante, il y avait encore, au 4 août 1789, _un
million cinq cent mille serfs de corps_;' and M. Giraud (_Précis
de l'Ancien Droit_, Paris, 1852, p. 3), 'jusqu'à la révolution
une division fondamentale partageait les personnes en personnes
libres et personnes sujettes à condition servile.' A few years
before the Revolution, this shameful distinction was abolished by
Louis XVI. in his own domains. Compare _Eschbach_, _Etude du
Droit_, pp. 271, 272, with _Du Mesnil_, _Mém. sur le Prince le
Brun_, p. 94. I notice this particularly, because M. Monteil, a
learned and generally accurate writer, supposes that the
abolition took place earlier than it really did. _Hist. des
divers Etats_, vol. vi. p. 101.

[319] _Cassagnac_, _de la Révolution_, vol. i. pp. 122, 173; _Giraud_,
_Ancien Droit_, p. 11; _Soulavie_, _Mém. de Louis XVI_, vol. vi.
p. 156; _Mém. au Roi sur les Municipalités_, in _[OE]uvres de
Turgot_, vol. vii. p. 423; _Mém. de Genlis_, vol. i. p. 200.