CHAP. grown old in administrative cares, they retired to sit as judges and as councillors in parlement. What consummated the revolution was the introduction of the ideas of the Roman law in all questions of politics and prerogative, as well as with regard to the penalties and procedure of criminal jurisdiction. Instead of the people being the dispensers of justice and the framers of law, the crown was considered to be the sole fountain of both. One has but to compare Beaumanoir with Bracton, the French with the English jurisprudence of that early age, to perceive how the English preserved Teutonic traditions, whilst the French flung them off to resume those of antiquity. Their monarchs were educated in the belief that in them alone resided the powers of legislation, and that they were in temporal things what the Pope was in spiritual, an authority appointed by Heaven. Translating their imperial pretensions into feudal language, the monarch declared that he held but of God. And unfortunately there was no class of his subjects to contradict or of his councillors to correct him, for the middle and rising professional ranks were then rallying to the king, for protection against the aristocracy, which, in its turn, with a fatality peculiar to France, came to consider inferiors as enemies and rivals. Despotism is always born of dissensions between the different grades of society. The union of them, or a fair understanding between them, is the only guarantee against tyranny, a guarantee which unhappily the French have never attained, and from which they are still so remote, as neither to see its necessity nor desire its completion. In criminal jurisdiction the worst change was the preference given to the forms of procedure sanctioned by the canon law, which destroyed all publicity.* Still St. Louis "How came it," writes Montesquieu, "that in abandoning the old judicial forms, those of the canon law were taken in preference to the mode prescribed by the civil law? Because there was the example of VI. endeavoured to correct some of the evil effects, in that CHAP. edict of 1254, of which the chief provisions have before been stated. There are proofs in Beaumanoir what abuses were perpetrated in the two matters of debt and arrest, and how powerless the king's edict was to remedy them. But the baillis had the power to act upon the king's injunctions and accomplish his will by an interpretation and an enforcement of law which amounted to legislation. Thus Beaumanoir in his district of Clermont remedied the gross abuses of guards put upon the goods of debtors, causing more damage than the value of the debt itself. The same judge decided that every prisoner should be tried, and condemned or discharged, within forty days after arrest, under a severe penalty to the authorities. This, the only trace of Habeas Corpus in France, is founded on the regulations of a single judge. Another of the provisions of St. Louis was that in all crimes leading to the punishment of death, reference was to be had to the king or the king's court, who, if necessary, would send down or appoint assessors to inquire into the crime and assist at the judgment. It is these assessors that Beugnot seems to have taken for jurors. The penal part of St. Louis' ordinances, as is the case in all codes inspired by religious sentiments, were rigorously severe. Not only were murder, arson, rape, treason, visited with death, but robbery also. Larceny was punished with loss of ears, or feet, or eyes. Heresy of course was extirpated by the flames. Whilst St. Louis abrogated the judicial, and erased the political rights of the French noblesse, he attempted no change in the military organisation of the country, the most important perhaps of its institutions, for with the ecclesiastical courts following the canons, whilst there existed no tribunal where the civil law was followed. The practice that was known was adopted; and that of VI. CHAP. military provisions were bound up social privileges. The essence of feudality was that the land was held in payment of the performance of duties, especially of military duties. And the French monarch had as yet invented no effectual mode of raising other than feudal armies. In far expeditions, beyond the sea, to the Holy Land, or to Italy, which greatly exceeded any term of feudal service, it became necessary to pay knights and soldiers. Joinville records how high and expensive this pay was. But in these expeditions the mo narchs led the same chiefs and soldiers who would have formed a feudal army. The great magnates too supported their own expenses, as did the minor lords to the best of their ability, and the money allowed by the monarch was but supplementary. It was indeed attempted to regularize and provide for continued war in the East by endowing the corporations of Templars and Hospitallers with lands, the revenues of which went to support those priestly soldiers in Palestine. The aristocracy preserved the right to command and to lead; this seemed to be their principal privileges. To be a knight, which was tantamount to officer, was a higher distinction than being merely noble, nobles alone being entitled to aspire to knighthood. It is very remarkable that in these days of military feudalism, in those middle ages, so stigmatized as aristocratic, the caste of nobles was never so exclusive, as it afterwards became when rude feudalism died away. Down to the thirteenth century men rose by their strong arms or their good heads from a low to a high rank, nor was the door inexorably closed against the villains by the feudal law, as it was by the courtiers. During the crusades especially, rich citizens purchased fiefs, and the townsfolk became possessed of lordly properties in land. The law did not debar them from purchase; and the possession of the fief for three generations rendered them fully noble. St. Louis first attempted to stop VI. such acquisitions by purchase, but they continued, CHAP. and the commoner who became possessor of a fief was obliged to pay a tax called francfief, to make up for inability to perform military or feudal service. Several parts of France, never wholly feudal, found this severe, and St. Louis' successor was obliged to abolish francfief in Languedoc. Parisians, who may be supposed to have been the principal purchasers of lordly property, were excepted from it in 1371; and all Normandy later. Whilst the monopoly of land, by the exclusion of nonnoble purchasers, was thus by no means so close or so strict in purely feudal times as it became after feudalism declined, the law of inheritance was less rigid in favour of the eldest son than it will be found subsequently. A gentleman might leave to his younger sons at least one-third of his inherited estate, the eldest taking twothirds; but if it was an acquired estate, he might will it as he pleased. The portions allotted to the younger sons were held by them en parage; that is, the eldest did homage and performed military service for them. Whilst where the Norman spirit dictated the law, as in England and at Jerusalem, the eldest son exclusively inherited the fief. One would be glad to trace the proofs of any simultaneous rise or improvement in the condition of the labouring classes. But France, at least France Proper, north of the Seine, never contained a class of landed proprietors who were not noble. All the cultivators of the soil were subject to some lord, and the only mode of escape from his exactions, in other words, the only door open to freedom, was the becoming a burgher, or belong. ing to the king's private domain. The struggles of the civic classes were in fact to escape from feudal dues, claims, and exactions; and when certain rural districts asked or set up a freedom akin to the municipal, it was that they flung off a feudal chief, and became immediate VI. CHAP. tenants of the crown. But a class of yeomen, or independent peasants, such as existed in England, and created a peculiar spirit in our lower classes, were not to be found, at least in those parts of France which were objects of the legislation of St. Louis. It becomes a subsequent reproach to the French kings that they did. not make use of the free peasant in war, and command his services, as the English monarch did those of his yeomen. The truth is, there was no such class in France to call on. Each lord had his retainers, and beyond them there were none but the population of towns, which furnished soldiers indeed, but not of that hardy kind which our Edwards and Henrys brought into the field. The boldest, the most durable, and most important of the laws of St. Louis was his Pragmatic Sanction, issued in 1269, against the undue privileges of the clergy, and the usurpations of the Popes. More than twenty years previous, in 1249, the nobles of France had met and formed a league against the encroachments and tyranny of the clergy. It was by wielding their right of excommunication, that the ecclesiastics established a complete social tyranny. By the monopoly of licence to marry and of power to sanction wills, as well as to give judgment in cases of usury, that is of loans, they became judges in all the most important disputes. Heresy, too, was a crime which fell under their jurisdiction. Not content with these, they interfered in whatever suited them, and threatened or launched excommunications upon every opportunity: and excommunication, if not removed or mitigated, became in time confiscation. is probable that the clergy about this time, perceiving the great progress made by the king's baillis, were anxious to set up as rivals to them, and exaggerate the jurisdiction of their courts. The barons, who would not, or did not, protest against the royal encroachments, resisted the ecclesiastical, and formed a league, of which It |