I have been rereading a couple of works that I have not looked at in many years – Sir John Fortescue’s “In Praise of the Laws of England” and “Of the difference between absolute and limited monarchy”.
Fortescue was writing in the late 1400s – at the time of the so called “Wars of the Roses” in England, but it is his picture of France that interests me here.
Some of what Fortescue writes is exaggerated, even bigoted. But there is, sadly, much truth in the picture he presents of France.
By the late 1400s France was a land where (as with Roman Empire) the professional army of the King could demand that people in towns and villages give them anything they needed (or claimed to need). And where the Estates General (the French Parliament) had given up the right to regularly approve (or decide NOT to approve) taxation – with th nobles of France having been bought off by imunity from most (although not all) taxation.
Also any ordinary person could be condemned to death in France by the King’s judges without anything that would be understood as a proper trial in England.
Roman law (in the sense of the Roman law of the Empire – with the Prince being above the law and able to change the law by his own WILL) had triumphed in France – with such “feudal” ideas as juries swept away. Louis XI (“Louis the Spider”) sat in his dark tower making up webs of “laws” on the basis of his whims, much like a Roman Emperor.
However, France had not always been like this. Once the nobles, townsmen and freemen of France had been strong in the defence of their liberties – and had forced such Kings as Charles the Bald to recognise them.
Indeed, for example, such things as even the King of France not having the right to take the land held by one family and give it to another had been accepted as an “old right” even as far back as the 877 Edict of Quierzy.
Juries (first, of course, as a form of gaining evidence rather than deciding a verdict) actually came to England from northern France – yet in France (by the time of Fortescue) they had been suppressed. After all one could not have a local group of freemen giving their formal view, either as evidence or as judgement, of the facts of the case – that might limit a judge in his desire to execute people, or to torture them (“putting the question” another feature of late Roman law) till they confessed.
So what had changed? How had such things as eternal taxation (as opposed to taxation considered as a emergency matter – to be approved, each time, by the Estates General) come to be? How had the French King mutated into something close to a Roman Emperor?
My own view is that the so called “hundred years war” with England (mostly faught on the soil of France) was the main factor in the transformation of France from having a limited government – to something that, whilst not totally without limits, was close to be like the government of the Roman Empire (unlimited government).
French desperation to survive conquest, and the desperate desire for “order” (as armed men of many masters and none plundered and killed in most of the country) led to the French people placing vast power in the hands of the government.
Remember what were considered terrible and exceptional circumstances in England during the so called “War of the Roses” had been the NORM in France for around a century.
It may be this that so transformed France from a land of limited government – to what Richard Burke (the son of Edmund Burke) was later to call a land where “the state was all in all”.