century, Bretonnier called the edict of St. Maur a "torch of discord thrown into the midst of every family in the countries of the written law." The parlements did not agree in the interpretation of the edict, which was finally repealed for the countries of the written law by an edict of August, 1729. The exclusion of mothers only remained in the countries of the customary law, and for inherited estates only. This exclusion disappeared along with the distinction between inherited and purchased estates, an invention of feudal pride which the civil code wisely put an end to; and yet there has remained in that code something of the old aristocratic leaven-I mean the provision in articles 753 and 754-which, where brothers and sisters are wanting, makes a reservation on behalf of the most distant paternal relatives. § 8.-GENERAL REFLECTIONS UPON FEUDAL LAW. This would be the place to speak of the civil and political capacity of women, under the sway of feudalism; for it was feudal law which, in this respect, determined the nature of the political and civil law; but I will reserve this subject for a separate Book at the conclusion of my treatise, and I will there expound, at the same time, what was the political capacity of women in the countries where feudal law only penetrated to a slight extent. I will now conclude these considerations with a single reflection. Feudalism did not follow a uniform march in every country. It was slowest in its development in Germany; it was most clearly settled in France; it was most rigid and formal in England. In England, feudalism has changed but little, and Gans, with as much wit as wisdom, called Great Britain the Herculaneum of feudalism. The feudal genius has petrified all the forms and usages of English law. These forms have undergone no great change since William the Conqueror, and in our days Littleton is quoted in the courts of justice as he was three hundred years ago. But a different spirit has superseded the old feudal spirit; the forms have remained, as formerly at Rome the primitive usages of the Republic lasted even down to the empire; but at London, as of yore at Rome, a new spirit breathes beneath the antique forms. The English genius emancipated liberty from the swaddling clothes in which it was held captive, and this struggle, which began at an epoch when feudalism ruled unchallenged on the continent, was terminated at a period when our political laws were still wholly impregnated with feudal ideas. But this revolution, which was a purely political one, and made for the behoof of the aristocracy, only had a slight influence on the laws of property. The English laws which relate to real property and the family were calculated to maintain the greatness and permanence of a territorial aristocracy. The feudal forms have therefore undergone but slight alterations; for these forms contri buted to prop up an aristocracy which is only a social feudalism. In this respect these laws have well answered their object; they have founded the richest and most intelligent aristocracy which a nation has ever possessed; but it may be doubted whether those laws have not outlived their utility. Their spirit is certainly not in harmony with that of the nineteenth century, and we can hardly understand our neighbours' reverence for the laws of primogeniture and entail, and their preference for males, all quite feudal rules which constitute the actual basis of the civil laws of England. In France, feudalism quickly crystallised; we are a generalising and highly logical people, which likes to lay down with precision its rights and duties. Formulated at an early date, feudalism was immediately laid siege to. Attacked on political grounds by the kings, aided by their parliaments, and on social grounds by the lawyers, armed with the Roman law, it rapidly shrivelled up. Between Beaumanoir and Bouteiller there was quite a revolution; the fief had become an inheritance, laden with certain services, from which every tenant sought to emancipate himself. Between Britton and Beaumanoir, two contemporaries in England and France respectively, what a difference there is! Compare only the manner in which they speak of the condition of the villeins! You will be surprised by the humanity of the latter, and the cold ferocity of the former. I attribute to the Roman (civil) law, which never penetrated into England, this rapid enervation of feudalism in France; and one would have thought that this benevolent system of legislation would have sooner introduced equality into our social system, and a great amelioration in the condition of women. But the Roman law struck against an obstacle, which for long delayed its victory. The dominant idea from the fifteenth to the eighteenth century was, as we have said, to perpetuate certain families by perpetuating and concentrating estates in the same hands. Our legislation laid itself out to accomplish this object, and thus was organised in France, not an aristocracy, as in England (our kings had provided against that), but a privileged class of nobles without political power, and consequently without having any political reason for their privileges. The bourgeosie, as it grew in strength, organised itself like the noblesse; the long robe was for the one what the sword had been for the other, and in the reformation of the customs, the bourgeosie exerted all its efforts to change itself into a noblesse, by claiming for itself the rights of primogeniture and the privileges of males; but these vainglorious prerogatives had no solid foundation, and the good sense of the eighteenth century had no difficulty in effecting a breach in them. Equality was in our manners when our laws were still intent on privileges; accord* Britton died in 1275. Beaumanoir wrote in 1283. ingly a stroke of the pen sufficed to destroy those irrational anomalies, a word of Mirabeau's upset the law of primogeniture, and we may safely predict that it will never reappear. In Germany the fusion of the different classes of the nation was never entirely accomplished; feudalism, although enfeebled by the Roman law, maintained itself in the privileges and the customs of the nobility; the bourgeosie hedged itself round with a peculiar legal system, which was partly Roman and partly customary; the peasants preserved customs which belonged neither to the nobles nor to the bourgeosie; each of these systems went its own separate way, and it needed the iron hand of Napoleon to knead together, by conquest, such distinct elements. Until his time, there was in every German country three separate races with three different legal systems. These distinctions are not yet completely extinct, as we may gather from the perusal of the famous Germanists, the Mittermaiers, the Eichhorns, the Phillipses, &c., but it is easy to foresee their approaching destruction. The civil code has left in Germany a germ of equality which will sprout and bear fruit, come what may. Thus, each of these three great countries represents a distinct phase of feudalism; Germany brings us face to face with the nobles, the middle-class, and the villeins, as three different peoples, lying one above the other without mingling; England has preserved the feudal aristocracy in all its political power, and the primitive forms of feudal real property law; France best represents the progress of civilisation, the gradual extinction of the feudal spirit, and the progressive fusion of all the orders of the state into one sole order, that of citizens. France, which was a long way in arrear in political organisation, progressed more quickly than her rivals in the paths of social progress. She owes this precious advantage to those lawyers who were the terror of the nobility, and who early raised the cry of "one law, one weight, and one measure for all," and who were the most powerful auxiliaries of our kings in the destruction of feudal privileges. Dating from the sixteenth century, the French aristocracy was a noblesse without political power; there remained to it only some social privileges, of which our jurists ultimately deprived them. France has drawn along with her in her progress, Germany, Italy, and Spain; the civil code has everywhere been imitated in its most admirable feature, the establishment of social equality. England has alone remained unaffected by this movement. Like the man who takes a pleasure in contemplating from the shore the foaming waves of the sea, England has maintained intact her laws of property, but this immobility is only fallacious. All nations are bound together, solidaires, and there is an imperceptible magnetism which pulls everything along, and which makes humanity march with an even step, even in spite of itself. Look ing at the misery of her manufacturing population, and at the children of "the Emerald Isle," who have not an inch of the soil which was made fruitful by their ancestors, we may, without assuming the prophet's mantle, augur for England a revolution which will change from top to bottom her real property law, and lead to the results which our fathers bought with their blood; namely, one kind of tenure and estate, one sole order of citizens, no more privileges of birth or sex, absolute equality in the family, because family equality is the essential condition of equality in the state. (To be continued.) |