This was not an ordinary war, but a veritable war of opinions; and as the lords had, to sustain it, nothing but their swords, they were at last obliged to renounce their pretensions.
The society of Europe, however, arrived at that period so fatal to nations, at that crisis, almost always a sanguinary one, in which new opinions and old opinions declare an obstinate war against each other; in which all that is new ferments, and is agitated violently; in which all that is ancient resists, and falls to pieces with a crash. For a length of time old laws were powerless; and the laws which were endeavoured to be established, had, in their execution, neither the force that is acquired by habit, nor that which is conferred by experience. A universal crisis was experienced throughout Europe; and the West, troubled by revolutions and civil wars, was, for a moment, upon the point of falling back into the darkness and chaos of the tenth century.
It was at this period that was established in Germany the imperial chamber, instituted for the purpose of appeasing discords and repressing brigandage. In Arragon the tutelary authority of the justiza was created, who was armed against license with all the power of a dictator. In all countries brotherhoods and associations were formed against the excesses of anarchy. It was in France, above all, that the necessity was felt to call in justice to the support of shaken social order, and to place it under the safeguard of royalty. Royal power was born, in some sort, amongst the perils and fears of society. There is an instinct which, in moments of crisis, guides people towards the authority which is to protect them; and this authority becomes all-powerful, from the reason that its assistance is implored, and that it is the object of all hopes.
Ecclesiastical jurisdiction had already dealt a mortal blow to feudal justice. The study of the Roman law caused something of the experience of the ancients to revive among nations scarcely escaped from barbarism. A new judicial order sprang up in Europe, particularly in France.[116] This judicial order was at first very complicated, in consequence of that natural disposition of men of the pen and of the robe to multiply forms in all affairs. To follow the clue through the labyrinth of the new laws, the barons were deficient in knowledge, and more particularly in patience. If it be true that lawyers complicated legislation in order to remain the sole interpreters of it, their hopes were not deceived; for they in the end took the places of the feudal nobles in judicial functions.
It is true that seignorial justices were not abolished; but an appeal was permitted from their decisions to the judgment of the crown. There were, besides, cases in which the justice of the barons was found incompetent, and as this incompetence was almost always judged of by the jurisdiction of the king, the latter finished by attracting to itself most of the causes of any weight or importance. As it is otherwise important that justice should be protected by a force that can make it respected, as the power of the barons declined, and as that of the king increased daily, the royal jurisdiction prevailed, and custom sanctioned the maxim that all justice emanates from the king. When once this maxim was recognised and proclaimed in all the provinces, Beaumanier was right in saying, “that the king was sovereign over everything, and that he had by right the general guardianship of the kingdom.”
It was at this period arose that French magistracy which afterwards became so eminent. The parliaments exhibited the frankness and loyalty of old times, united with the intelligence of modern times. They sometimes defended the rights of the people against the crown, and were often a buckler for the crown against factions. Perhaps their roots did not strike deeply enough into the society whose rights they defended. The fundamental laws of the kingdom had neither regulated their rights, nor fixed with precision the limits of their power. Their authority was due less to written constitutions than to that want of justice which is felt among civilized people, than to that supreme ascendancy which they almost always obtain whose function it is to be exponents of the law. We have seen parliaments perish amidst public disorders, for which they themselves gave the imprudent signal. They saw the faults of administration, but they were deficient in positive knowledge to point out the proper remedy: they appealed to the people, and factions answered; they invoked liberty, and the revolution burst forth. Now, when this magistracy no longer exists among us, and that it can have no place in the order of things which events have given birth to, it appears to us the moment is come for everybody to be just towards it, and to praise that noble disinterestedness, that enlightened firmness, that inflexible probity, which formed its principal character. “It is for the observer of the present period,” says an English writer, “and not for the historian of past times, to decide if those virtues which distinguished the ancient French magistracy are sufficiently common now-a-days, not to be remembered with great praise, and exhibited to our contemporaries as useful examples.”
In the revolution which was effected, we are astonished that the barons showed so little foresight; they opposed the privileges of an order of things which no longer existed, when, without their intervention and without their concurrence, a new order of things was established; the greater that was their need of union to defend themselves, the more obstinacy they showed for maintaining the too fatal privilege of making war upon each other. The habit of warlike and feudal manners made them prefer to all other functions the occupation of arms, which they considered, with reason, as the most glorious career; but which ruined them, kept them in their ignorance, and drove them from affairs, whilst others enriched themselves in peaceful employments, exercised their faculties usefully, and employed themselves exclusively with power. In the end, the nobility, after the most generous sacrifices, became nothing but an aristocracy without action in the government, whilst those who lent a hand to the administration became really the masters.
The revolutions we have just described have made us for a moment forget the crusades; the holy wars, however, may be reckoned among the causes which ameliorated legislation. The departure of the Crusaders gave occasion for a number of actions; precautions against fraud were multiplied; public notaries were called in; the use of charters,—called chartres chirographaires, or chartres parties,—was adopted, or rather revived. We have already said that many regulations were made to limit the numbers of the Crusaders, and these regulations were so many laws added to those which existed. The Crusaders, whilst passing through distant countries, might remark many wise customs, which they brought back into their own country. Villehardouin informs us with what astonishment the French nobles, on their arrival at Venice, beheld the senate, the doge, and the people deliberating in their presence. This spectacle could not fail to enlighten them. When the Latins were masters of Constantinople, they there became acquainted with the legislation of Greece; in Palestine, the Assizes of Jerusalem gave them an idea of a legislation less imperfect than their own; the code which for a long time governed the Christian colonies led Louis IX. to think of making a collection of laws, which he did not, it is true, put in practice, but which no doubt spread much useful information. The example of St. Louis, and the encouragement that jurisconsults received on his return from Egypt, contributed to create among the people the love of justice; and this love of justice, which began to be felt among all classes, was the best guarantee of a nascent civilization.
Skilful writers have gone over before us this epoch, so abundant in great events and in lessons of policy. They have shown how royalty rose from the bosom of disorder; how legislation progressively prevailed over anarchy; and how several states of Europe—particularly France—attained that degree of strength and splendour in which we have seen them during the eighteenth century. There would remain but very little for us to say, after the great publicists who have preceded us, if recent revolutions had not broken forth to enlighten us. The experience of the present times has thrown a new light over past ages; and we are better acquainted with the nature and origin of old institutions, since we have seen them sink into ruins. The tree of our ancient monarchy has not been able to resist the concussions which have shaken society; its branches have strewed the earth, and its roots have been laid bare. It then became easy for us to see by what secret conduits strength and life had been circulated; how had grown, and how had fallen,—
“That tree whose head approached to heaven,
And whose feet touched the empire of the dead.”[117]