When the kings of France had brought their long struggle forsupremacy to a successful close, an epoch which may be placedroughly at the accession of the branch of Valois-Angouleme to thethrone, the situation of the French jurists was peculiar andcontinued to be so down to the outbreak of the revolution. On theone hand, they formed the best instructed and nearly the mostpowerful class in the nation. They had made good their footing asa privileged order by the side of the feudal aristocracy, andthey had assured their influence by an organisation whichdistributed their profession over France in great charteredcorporations possessing large defined powers and still largerindefinite claims. In all the qualities of the advocate, thejudge, and the legislator, they far excelled their compeersthroughout Europe. Their juridical tact, their ease ofexpression, their fine sense of analogy and harmony, and (if theymay be judged by the highest names among them) their passionatedevotion to their conceptions of justice, were as remarkable asthe singular variety of talent which they included, a varietycovering the whole ground between the opposite poles of Cujas andMontesquieu, of D'Aguesseau and Dumoulin. But, on the other hand,the system of laws which they had to administer stood in strikingcontrast with the habits of mind which they had cultivated. TheFrance which had been in great part constituted by their effortswas smitten with the curse of an anomalous and dissonantjurisprudence beyond every other country in Europe. One greatdivision ran through the country and separated it into Pays duDroit Ecrit and Pays du Droit Coutumier; the first acknowledgingthe written Roman law as the basis of their jurisprudence, thelast admitting it only so far as it supplied general forms ofexpression, and courses of juridical reasoning which werereconcileable with the local usages. The sections thus formedwere again variously subdivided. In the Pays du Droit Coutumierprovince differed from province, county from county, municipalityfrom municipality, in the nature of its customs. In the Pays duDroit Ecrit the stratum of feudal rules which overlay the Romanlaw was of the most miscellaneous composition. No such confusionas this ever existed in England. In Germany it did exist, but wastoo much in harmony with the deep political and religiousdivisions of the country to be lamented or even felt. It was thespecial peculiarity of France that an extraordinary diversity oflaws continued without sensible alteration while the centralauthority of the monarchy was constantly strengthening itself,while rapid approaches were being made to complete administrativeunity, and while a fervid national spirit had been developedamong the people. The contrast was one which fructified in manyserious results, and among them we must rank the effect which itproduced on the minds of the French lawyer. Their speculativeopinions and their intellectual bias were in the strongestopposition to their interests and professional habits. With thekeenest sense and the fullest recognition of those perfections ofjurisprudence which consist in simplicity and uniformity, theybelieved, or seemed to believe, that the vices which actuallyinfested French law were ineradicable: and in practice they oftenresisted the reformation of abuses with an obstinacy which wasnot shown by many among their less enlightened countrymen. Butthere was a way to reconcile these contradictions. They becamepassionate enthusiasts for Natural Law. The Law of Natureoverleapt all provincial and municipal boundaries; it disregardedall distinctions between noble and burgess, between burgess andpeasant; it gave the most exalted place to lucidity, simplicityand system; but it committed its devotees to no specificimprovement, and did not directly threaten any venerable orlucrative technicality. Natural law may be said to have becomethe common law of France, or, at all events, the admission of itsdignity and claims was the one tenet which all Frenchpractitioners alike subscribed to. The language of theprae-revolutionary jurists in its eulogy is singularlyunqualified, and it is remarkable that the writers on theCustoms, who often made it their duty to speak disparagingly ofthe pure Roman law, speak even more fervidly of Nature and herrules than the civilians who professed an exclusive respect forthe Digest and the Code. Dumoulin, the highest of all authoritieson old French Customary Law, has some extravagant passages on theLaw of Nature; and his panegyrics have a peculiar rhetorical turnwhich indicated a considerable departure from the caution of theRoman jurisconsults. The hypothesis of a Natural Law had becomenot so much a theory guiding practice as an article ofspeculative faith, and accordingly we shall find that, in thetransformation which it more recently underwent, its weakestparts rose to the level of its strongest in the esteem of itssupporters.
The eighteenth century was half over when the most criticalperiod in the history of Natural Law was reached. Had thediscussion of the theory and of its consequences continued to beexclusively the employment of the legal profession, there wouldpossibly have been an abatement of the respect which itcommanded; for by this time the Esprit des Lois had appeared.
