Turning to the modern history of the law of nature, we findit easier to convince ourselves of the vastness of its influencethan to pronounce confidently whether that influence has beenexerted for good or for evil. The doctrines and institutionswhich may be attributed to it are the material of some of themost violent controversies debated in our time, as will be seenwhen it is stated that the theory of Natural Law is the source ofalmost all the special ideas as to law, politics, and societywhich France during the last hundred years has been theinstrument of diffusing over the western world. The part playedby jurists in French history, and the sphere of jural conceptionsin French thought, have always been remarkably large. It was notindeed in France, but in Italy, that the juridical science ofmodern Europe took its rise, but of the schools founded byemissaries of the Italian universities in all parts of thecontinent, and attempted (though vainly) to be set up in ourisland, that established in France produced the greatest effecton the fortunes of the country. The lawyers of France immediatelyformed a strict alliance with the kings of the house of Capet,and it was as much through their assertions of royal prerogative,and through their interpretations of the rules of feudalsuccession, as by the power of the sword, that the Frenchmonarchy at last grew together out of the agglomeration ofprovinces and dependencies. The enormous advantage which theirunderstanding with the lawyers conferred on the French kings inthe prosecution of their struggle with the great feudatories, thearistocracy, and the church, can only be appreciated if we takeinto account the ideas which prevailed in Europe far down intothe middle ages. There was, in the first place, a greatenthusiasm for generalisation and a curious admiration for allgeneral propositions, and consequently, in the field of law, aninvoluntary reverence for every general formula which seemed toembrace and sum up a number of the insulated rules which werepractised as usages in various localities. Such general formulasit was, of course, not difficult for practitioners familiar withthe Corpus Juris or the Glosses to supply in almost any quantity.
There was, however, another cause which added yet moreconsiderably to the lawyers' power. At the period of which we arespeaking, there was universal vagueness of ideas as to the degreeand nature of the authority residing in written texts of law Forthe most part, the peremptory preface, Ita scriptum est, seems tohave been sufficient to silence all objections. Where a mind ofour own day would jealously scrutinise the formula which had beenquoted, would inquire its source, and would (if necessary) denythat the body of law to which it belonged had any authority tosupersede local customs, the elder jurist w ould not probablyhave ventured to do more than question the applicability of therule, or at best cite some counter proposition from the Pandectsor the Canon Law. It is extremely necessary to bear in mind theuncertainty of men's notions on this most important side ofjuridical controversies, not only because it helps to explain theweight which the lawyers threw into the monarchical scale, but onaccount of the light which it sheds on several curious historicalproblems. The motives of the author of the Forged Decretals andhis extraordinary success are rendered more intelligible by it.
And, to take a phenomenon of smaller interest, it assists us,though only partially to understand the plagiarisms of Bracton.
That an English writer of the time of Henry III should have beenable to put off on his countrymen as a compendium of pure Englishlaw a treatise of which the entire form and a third of thecontents were directly borrowed from the Corpus Juris, and thathe should have ventured on this experiment in a country where thesystematic study of the Roman law was formally proscribed, willalways be among the most hopeless enigmas in the history ofjurisprudence; but still it is something to lessen our surprisewhen we comprehend the state of opinion at the period as to theobligatory force of written texts, apart from all considerationof the Source whence they were derived.
