All that I have said with regard to public works is applicable, even in a greater degree, to that other and equally important branch of the provincial administra- tion, the collection of the taxes. When one examines this department, first in the kingdom, then in the prov- ince, it seems impossible to believe that both are parts of the same empire.
I had occasion some time since to mention that the system used in Languedoc for the distribution and col- lection of the taille was substantially the same as the one now employed for the collection of our modern im- posts. I shall not again revert to the subject, but will add simply that the province was so weU convinced of the superiority of its method that, whenever the king established new taxes, the States paid heavily for the right of levying them in their own way, and by the hands of their own agents.
Notwithstanding all the outlays I have enumerated, the financial condition of Languedoc was so prosper- ous, and her credit so well established, that the central government often applied to it for endorsements, and borrowed in the name of the province at lower rates M 266 APPENDIX.
M 266 APPENDIX.
than woTilcl have been charged to the crown. I find that Languedoc borrowed in its own name, but for the use of the king, in the later years of the monarchy, 73,200,000 livres.
Yet the government watched these provincial liber- ties with a very jealous eye. E-ichelieu first mutilated, then abolished them. The weak and slothful Louis XIII., who loved nothing, detested them: he had such a dislike for provincial privileges, according to Boulain- viUiers, that he would fly into a rage at the mere men- tion of the subject. Weak minds always find energy enough to hate things which oblige them to exert them- selves; their whole vigor is concentrated upon that one point, and, weak as they are every where else, they contrive to hate with some force. Good fortune hap- pily restored the Constitution of Languedoc during the infancy of Louis XIV.; and that monarch, regarding it as his work, respected it. Louis XV. suspended it for a couple of years, but suffered its restoration after- ward.
The creation of municipal offices involved great in- direct dangers for the province. This detestable in- stitution tended not only to destroy the constitution of cities, but to disfigure that of provinces. I am not aware whether the deputi^ of the Third Estate in the Provincial Assemblies had ever been chosen in view of the business they had to perform; certain it is that for a long period of time they had not been so elected. The only legitimate representatives of the middle classes and the people were the municipal officers of cities.
So long as the cities chose their magistrates freely by universal suffirage, and generally for a short period Appendix. 267 of time, but little inconvenience was occasioned by the fact that these deputies had not been specially appoint- ed to represent the people, and defend their interest at that particular moment. Perhaps the mayor, coun- cil, or syndic was as faithful an exponent of the pop- ular will as if he had been expressly chosen to repre- sent the people in the assembly. But it will at once be understood that this ceased to be the case when the official had acquired his office for money. In this case he represented no one but himself, or, at best, only the small interests and petty passions of his coterie. Yet the powers of the magistrate by purchase were the same as those of the elected magistrate had been. Hence a total change in the character of the institu- tion. Instead of a firm body of popular representa- tives, the nobility and the clergy had to contend in the Provincial Assembly with no one but a few isolated, timid, and powerless burghers; the Third Estate be- came more and more insignificant in the government as it grew more and more powerful in society. This was not the case in Languedoc, as the province always took care to buy up the offices which the king estab- lished from time to time. For this object a loan of more than four millions of livres was effected in the year 1773 alone.
Other causes, more potent still, had operated to im- bue these old institutions with a modern spirit, and imparted to the States of Languedoc an indisputable superiority over all others.
In that province, as in a large portion of the South, the taiUe was a tax on the realty, not on the person. It was regulated by the value of the property, not the 268 APPENDIX.
fortune of the owner. True, certain lands enjoyed a privilege of exemption. These lands had formerly all belonged to the nobility; but, in the course of events and the progress of industry, part of them had fallen into the hands of commoners, while, on the other hand, noblemen had in many cases become proprietors of lands subject to the taille. The absurdity of privi- leges was enhanced, no doubt, by their transfer from persons to property; but their burden was diminished, because, inconvenient as they were, they involved no humiliation. They were no longer inseparably bound up with class ideas; they created no class interests hostile to those of the public; they threw no obstacle in the way of a general administration of the public business by all classes. Nor was there, in fact, any part of France in which all classes mixed so freely, or on so decided a footing of equality as in Languedoc.
In Bretagne, all men of rank were entitled to be present in person at the States; hence these latter bore some resemblance to Polish Diets. In Languedoc, the nobility was represented in the States by twenty-three deputies; the clergy was represented by twenty-three bishops. It is worthy of remark, that the cities had as many members as the other two orders combined.
There was but one assembly, and votes were taken by heads, not by orders; hence the Third Estate nat- urally became the preponderating body, and gradual- ly imbued the whole assembly with its peculiar spirit. The three magistrates, known as syndics-general, who were intrusted with the general management of busi- ness before the States, were always lawyers, that is to say, commoners. The nobility was strong enough to APPENDIX. 269 APPENDIX. 269 maintain its rank, but not to rule. The clergy, on the other hand, though counting many men of rank among its members, always maintained a good understanding with the Third Estate. It took an ardent interest in many of the schemes proposed by the burghers, labor- ed in concert with them to augment the material prop- erty of citizens, and extend commerce and industry, and often placed at their service its extensive knowl- edge of men, and its peculiar skill in the management of affairs. It was almost always an ecclesiastic who was sent to Versailles to discuss with ministers ques- tions that were in dispute between the States and the crown. It may be said that during the whole of the last century the government of Languedoc was admin- istered by burghers, under the control of noblemen, and with the aid of bishops.
Thanks to the peculiar constitution of the province, the spirit of the new era penetrated Languedoc easily, and made many modifications in its old system with- out destroying any thing.
This might have been the case every where. A por- tion of the perseverance and energy that were employ- ed by the kings in abolishing or crippling the Provin- cial States would have sufficed for their improvement and adaptation to the necessities of modern civiliza- tion, had those monarchs ever sought any thing beyond extending and maintaining their own power.
NOTES.
Note a, page 29.
INFLUENCE OF THE ROMAN LAW IN GERMANY. HOW IT HAD REPLACED THE GERMANIC LAW.
At the close of the Middle Ages the Roman law became the chief and almost the only study of the German lawyers, most of whom, at this time, were educated abroad at the Italian universi- ties. These lawyers exercised no political power, but it devolved on them to expound and apply the laws. They were unable to abolish the Germanic law, but they did their best to distort it so as to fit the Roman mould. To every German institution that seemed to bear the most distant analogy to Justinian's legislation they applied Roman law. Hence a new spirit and new customs gradually in- vaded the national legislation, until its original shape was lost, and by the seventeenth century it was almost forgotten. Its place had been usurped by a medley that was Germanic in name, but Roman in fact.
I have reason to believe that this innovation of the lawyers had a tendency to aggravate the condition of more than one class of Germans, the peasantry especially. Persons who had up to that time succeeded in preserving the whole or a part of their liberty or their property, were ingeniously assimilated to the slaves or emphyteutic tenants of the Roman law, and lost rights and pos- sessions together.
This gradual transformation of the national law, and the efforts which were made to prevent its accomplishment, were plainly seen in the history of Wurtemberg.
From the rise of the county of this name in 1250 to the crea- tion of the duchy in 1495, the whole legislation of Wurtemberg was indigenous in character. It consisted of customs, local city laws, ordinances of seigniorial courts, or statutes of the States. Ecclesiastical affairs alone were regulated by foreign, that is to say, by canon law.
But from the year 1495 a cliange took place. Roman law be- 272 NOTES.
gan to penetrate the legislation of the duchy. The doctors, as they were called — that is to say, the individuals who had studied at foreign schools — connected themselves with the government, and took the management of the high courts. From the commence- ment to the middle of the fifteenth century, a struggle between them and the politicians of the day w^as carried on, similar in character, though different in result from the struggle that took place in England at the very same time. At the Diet of Tubin- gen in 1514 and the following Diets, the lawyers were attacked violently by the representatives of feudal institutions and the city deputies; they were loudly charged with invading all the courts of justice, and altering the spirit or the letter of all the laws and customs. At first, victory seemed to rest with the assailants. They obtained of government a promise that honorable and en- lightened persons, chosen from the nobility and the States of the duchy — not doctors — should be set over the higher courts, and that a commission, consisting of government agents and represent- atives of the States, should be appointed to draft a bill for a Code to have force throughout the country. Useless effort! The Roman law soon expelled the national law from a large section of the legislative sphere, and even planted its roots in the section where the latter was allowed to subsist.
German historians ascribe this triumph of foreign over domestic law to two causes: 1st. The attraction exercised over the public mind by ancient literature, which necessarily led to a contempt for the intellectual products of the national genius; and, 2dly. The idea — with which the Germans of the Middle Ages, and even their laws, were imbued — that the Holy Empire was a continuation of the Roman Empire, and hence that the legislation of the latter was an heirloom of the former.
These causes do not suffice to explain the simultaneous intro- duction of Roman law into every Continental country. I think that the singular availability of the Roman law — which was a slave-law — for the purposes of monarchs, who were just then es- tablishing their absolute power upon the ruins of the old liberties of Europe, was the true cause of the phenomenon.
The Roman law carried civil society to perfection, but it in- variably degraded political society, because it was the work of a highly civilized and thoroughly enslaved people. Kings naturally embraced it with enthusiasm, and established it wherever they could throughout Europe; its interpreters became their ministers or their chief agents. Lawyers furnished them at need with legal NOTES. 273 NOTES. 273 warrant for violating the law. They have often done so since. Monarchs who have trampled the laws have almost always found a lawyer ready to prove the lawfulness of their acts — to establish learnedly that violence was just, and that the oppressed were in the wrong.
Note h, page 3.
TRANSITION FROM FEUDAL TO DEMOCRATIC MONARCHY.
As all European monarchies became absolute about the same time, it is not probable that the constitutional change was due to accidental circumstances which occurred simultaneously in every country. The natural supposition is that the general change was the fruit of a general cause operating on every country at the same moment.
That general cause was the transition from one social state to another, from feudal inequality to democratic equality. The no- bility was prostrate; the people had not yet risen up; the one was too low, the other not high enough to embarrass the movements of the supreme power. For a period of a hundred and fifty years kings enjoyed a golden age. They were all-powerful, and their thrones were stable, advantages usually inconsistent with each other.. They were as sacred as the hereditary chiefs of a feudal monarchy, and as absolute as the masters of a democracy.
Note c, page 32.
Note c, page 32.
DECLINE OF FREE GERMAN CITIES. IMPERIAL CITIES {Reichstadten).
According to the German historians, these cities reached their highest point of prosperity during the fourteenth and fifteenth cen- turies. They were then the refuge of the wealth, of the arts, of the learning of Europe, the mistress of commerce, and the centre of civilization. They ended, especially in northern and southern Germany, by forming, with the surrounding nobility, independent confederations, as the Swiss cities had done with the peasantry.
They were still prosperous in the sixteenth century; but their decline had begun. The Thirty Years' War hastened their down- fall; they were nearly all destroyed or ruined during that period.
The Treaty of Westphalia, however, made special mention of them, and maintained their condition as " immediate states," that is to say, communities independent of all control but the emperor. But neighboring monarchs on one side, and on the other the em- M2 274 NOTES.
M2 274 NOTES.
peror himself, whose power, after the Thirty Years' War, was nearly confined in its exercise to these small vassals of the em- pire, constantly encroached on their sovereignty. They still num- bered fifty-one in the eighteenth century. They occupied two benches at the Diet, and had a separate vote. But, practically, their influence over the direction of public affairs was gone.
At home they were overloaded with debts, chiefly arising from the fact that they were still taxed in proportion to their past splen- dor, and also, in some degree, from their defective administration. It is not a little remarkable that this maladministration appeared to flow from some secret disease that was common to all of them, whatever their constitution happened to be. Aristocratic and democratic forms of government provoked equal discontent. Aris- tocracies were said to be mere family coteries, in which favor and private interest controlled the government. Democracies were said to be under the sway of intrigue and corruption. Both forms of government were accused of dishonesty and profligacy. The Emperor was constantly obliged to interfere in their aff"airs to re- store order. Their population was falling off', their wealth van- ishing. They were no longer the centres of German civilization; the arts had fled from them to take refuge in new cities created by kings, and representing the modern era. Trade had deserted them. Their former energy, their patriotic vigor, had disappear- ed. Hamburg alone continued to be a great centre of wealth and learning; but this flowed from causes peculiar to itself.
Note d, page 38.
Note d, page 38.
DATE OF THE ABOLITION OF SERFDOM IN GERMANY.
It will be seen from the following table that serfdom has only been very recently abolished in the greater part of Germany. Serfdom was abolished, 1. In Baden not till 1783.
2. In Hohenzollern in 1789.
3. Schleswig and Holstein in 1804.
4. Nassau in 1808.
5. Prussia. Frederick William L abolished serfdom in his do- mains in 1717. The code of Frederick the Great, as has been ob- served, pretended to abolish it throughout the kingdom, but in reality it only abolished its hardest form, leibeigenschaft; it pre- served the milder form, called erbuntertahnigkeit. It did not cease entirely till 1809.
NOTES. 275 6. In Bavaria serfdom disappeared in 1808.
7. A decree of Napoleon's, dated Madrid, 1808, abolished it in the Grand-duchy of Berg, and in several small territories, such as Erfurth, Baireuth, &c.
8. In the kingdom of Westphalia its destruction dates from 1808 and 1809.
9. In the principality of Lippe-Detmold from 1809.
11. In Swedish Pomerania from 1810.
13. In Wurtemberg from 1817.
14. In Mecklenburg from 1820.
15. In Oldenburg from 1814.
16. In Saxony for Lusatia from 1832.
17. In Hohenzollern-Sigmaringen from 1833 only.
18. In Austria from 1811. In 1782, Joseph II. had abolished the leibeigenschaft; but serfdom in its mild form — erhuntertah- nigkeit — lasted till 1811.
Note e, page 38.
A portion of Germany, such as Brandenburg, old Prussia, and Silesia, was originally peopled by the Slavic race, and was con- quered and partly occupied by Germans. In those countries serf- dom was always much harsher than in the rest of Germany, and left much plainer traces at the close of the eighteenth century.
Note f, page 39.
CODE OF FREDERICK THE GREAT.
Of all the works of Frederick the Great, the least known, even in his own country, and the least striking, is the Code drawn up by his orders, and promulgated by his successor. Yet I doubt wheth- er any of his other works throws as much light on the mind of the man or on the times in which he lived, or shows as plainly the influence which they exercised one upon the other.
This Code was a real constitution in the ordinary sense of the word. It regulated not only the mutual relations of citizens, but also their relations to the state. It was a civil code, a criminal code, and a charter all in one.
It rests, or appears to rest, on a certain number of general prin- ciples, expressed in a highly philosophical and abstract form, and which bear a strong resemblance in many respects to those which 276 NOTES.
are embodied in the Declaration of the Rights of Man in the Con- stitution of 1791.
It proclaims that the welfare of the commonwealth and of its inhabitants is the aim of society and the limit of law; that laws can not restrain the freedom and the rights of the citizen save for public utility; that every member of the commonwealth ought to labor for the public good in proportion to his position and his means; that the. rights of individuals ought to give way to those of the public.
It makes no allusion to any hereditary rights of the sovereign, nor to his family, nor even to any particular right as distinguished from that of the state. The royal power was already designated by no other name than that of the state.
On the other hand, it alludes to the rights of man, which are founded on the natural right of every one to pursue his own hap- piness without treading on the rights of others. All acts not for- bidden by natural law, or a positive state law, are allowable. Ev- ery citizen is entitled to claim the protection of the state for him- self and his property, and may defend himself by using force if the state does not come to his defense.
These great principles established, the legislator, instead of evolving from them, as the constitution of 1791 did, the doctrine of popular sovereignty, and the organization of a democratic gov- ernment in a free society, turns sharp round and arrives at another conclusion, democratic enough, but not liberal. He considers the sovereign the sole representative of the state, and invests him with all the rights which he has stated belong to society. The sovereign does not figure in the Code as the representative of God; he is the representative, the agent, the servant of society, as Fred- erick stated at full length in his works; but he is its sole repre- sentative, he wields its whole authority alone. The head of the state, on whom the duty of securing the public welfare — which is the sole object of society — devolves, is authorized to direct and regulate all the actions of individuals in this view.
Among the chief duties of this all-powerful agent of society, I find such as these mentioned: maintaining order and public safety at home, so that every citizen shall be guaranteed against vio- lence; making peace and war; establishing all laws and police regulations; granting pardons; annulling criminal prosecutions.
Every association in the country, and every public establish- ment, is subject to his inspection and superintendence in the in- terest of the general peace and security. In order that the head NOTES. 277 of the state may be able to perform his duties, he must have cer- tain revenues and lucrative rights; hence he is allowed to tax pri- vate fortunes, persons, professions, commerce, industry, articles of consumption. Public functionaries acting in his name must be obeyed as he is in all matters within the scope of their duties.
Under this very modern head we shall now see a thoroughly Gothic body placed. Frederick has taken away nothing but what might impede the action of his own power, and the whole will form a monstrous being, which looks like a compromise between two creations. In this strange production Frederick evinces as much contempt for logic as care for his own power, and anxiety not to create useless difficulties in attacking what was still capa- ble of defense.
With the exception of a few districts and certain localities, the inhabitants of the rural districts are placed in a state of hereditary serfdom; not only is the land clogged with corvees and inherent services, but, as has been seen already, similar burdens attach to the persons of the peasants.
Most of the privileges of landholders are recognized anew by the Code — or, it might be said, in contradiction to the Code; for it is expressly stated that, wherever the new legislation clashes with local customs, the latter must prevail. It is formally declared that the state can not abolish any of these privileges except by pur- chase, according to the legal forms.
True, the Code states that serfdom, properly so called {lei- heigenschaft),, is abolished in so far as it interferes with personal liberty; but the hereditary subjection which takes its place {er- huntertahnigkeit) is, after all, a species of serfdom, as the text shows.
According to the Code, the burgher remains wholly distinct from the peasant. Between the noble and the burgher, an interme- diate class, consisting of high functionaries who are not noble, ec- clesiastics, professors of learned schools, gymnasia, and universi- ties, is placed.
Superior to the burghers, these personages were not to be con- founded with the nobility, to whom they were clearly understood to be inferior. They could not purchase equestrian estates, or fill the highest posts in the civil service. Nor were they hoffdhig; that is to say, they could but rarely appear at court, and never with their families. As was the case in France, these distinctions became more insulting in proportion to the increasing knowledge and influence of this class, which, though excluded from the most 278 NOTES.
brilliant posts, filled all those where business of importance was transacted. The privileges of the nobility necessarily gave birth to irritation, which mainly contributed to cause the revolution here, and make it popular in Germany. The principal author of the Code was a burgher, but no doubt he merely obeyed the in- structions of his master.
The old constitution of Europe is not in such ruin in this part of Germany that Frederick thinks it safe to allow his contempt for it to lead him to destroy its relics. Generally speaking, he deprives the nobility of the right of assemblage and corporate ac- tion; leaving to each nobleman his privileges, he limits and reg- ulates their use. Hence it happens that this Code, drawn up by the orders of a disciple of one of our philosophers, and put in force after the outbreak of the French Revolution, is the most authentic and latest legislative document which gives a legal warrant for the feudal inequalities which the Revolution was about to abolish throughout Europe.
The nobility is declared to be the first body in the state. Men of rank, it states, are to be preferred to all others for posts of hon- or, if they are capable of filling them. None but they are to pos- sess noble estates, create substitutions, enjoy rights of chase, jus- ticiary rights inherent to noble estates, and rights of presentation to clerical livings; none but they can assume the name of their estates. Burghers, specially authorized to acquire noble estates, can only enjoy the rights and honors attached to such possessions within these limits. A burgher owning a noble estate can not leave it to an heir burgher unless he be heir in the first degree. When there are no such heirs and no heirs noble, the property must be sold at auction.
One of the most characteristic portions of the Code of Frederick the Great is its criminal provision for political offenses.
Frederick's successor, Frederick William 11., who, notwith- standing the feudal and absolutist provisions above noted, fancied he detected revolutionary tendencies in this work of his uncle's, and refrained from promulgating it till 1794, was only reconciled to it by the excellent penal provisions which served to counteract its bad principles. Nor has there ever been any thing since de- vised more complete of the kind. Not only are revolts and con- spiracies punished with the greatest rigor, but disrespectful criti- cisms of government are repressed with equal severity. It is for- bidden to purchase or to distribute dangerous writings; printer, publisher, and vender are all responsible for the act of the author.
NOTES. 279 Public balls and masquerades are declared to be public meetings, which can not take place without the authority of the police. Similar rules govern dinners in public places. Liberty of the press and of speech are under close and arbitrary supervision. It is forbidden to carry fire-arms.
By the side of this work, which was more than half borrowed from the Middle Ages, are provisions whose spirit borders on so- cialism. Thus it is declared that it devolves on the state to pro- vide food, work, and wages for all who can not support themselves, and have no claim for support on the seignior or the commune; they must be provided with work suited to their strength and ca- pacity. The state is bound to provide establishments for relieving the poor. It is authorized to abolish establishments which tend to encourage idleness, and to distribute personally to the poor the money by which these establishments were supported.