Division of Powers: Legislative Power. — In dividing pow- er between the assembled nation and the king, the nobility ask that no law shall take effect until it has been sanctioned by the States-General and the king, and recorded in the registers of the courts appointed to enforce it; that the business of establishing and fixing the quotas of taxes shall belong exclusively to the States-General; that subsidies voted shall only be considered as having been appropriated for the interval between one session of the States and another; that all taxes, established or levied with- out the consent of the »States, shall be deemed illegal, and that all ministers and collectors who shall have ordered or levied such- taxes shall be prosecuted for extortion; that, on the same prin- ciple, no loan shall be contracted without the consent of the States- General, but that a limited credit shall be opened by the States, to be used by government in case of war or sudden calamity, until a new session of the States can be called; that all the national treas- uries shall be under the supervision of the States; that the ex- penses of each department shall be fixed by them, and that the most carefiil precautions shall be taken to prevent any appropria- tion being exceeded.
Most of the cahiers demand the suppression of those vexatious imposts known by the names of insinuation dues, centieme denier, ratification dues, and comprised under the title of regie of the king's domains (one cahier says: " The word regie would alone suffice to condemn them, since it implies that property which act- ually belongs to citizens is owned by the king"); that all the pub- lic domains which are not sold shall be placed under the govern- ment of the Provincial States, and that no ordinance or edict for 316 NOTES.
raising extraordinary taxes shall be issued, except with the con- sent of the three orders of the nation.
The idea of the nobility obviously was to transfer the whole ad- ministration of the finances, including loans, taxes, and this class of imposts, to the nation as represented by the general and pro- vincial assemblies.
Judicial Power. — In the same way, the organization of the judiciary tends to make the power of the judges largely dependent upon the assembled nation. Thus several cahiers declare: " That magistrates shall be responsible for their acts to the as- sembled nation;" that they shall only be dismissed with the con- sent of the States-General; that no court shall, on any pretext whatever, be disturbed in the exercise of its functions without the consent of these States, that delinquencies of the Court of Cassa- tion and of the Parliaments shall be judged by these States.. Most of the cahiers recommend that no judges but such as the people present for office be appointed by the king.
Executive Power. — This is wholly reserved to the king, but it is limited in order to prevent abuses.
Thus, as to the administration, the cahiers demand that the ac- counts of the various departments be printed and made public, and that the ministers be responsible to the nation assembled; and in like manner, that the king be bound to communicate his intentions to the States-General before he can employ the troops on foreign service. At home, the troops shall not be used against the people without a requisition from the States-General. The standing ar- my shall be limited; and in ordinary seasons, two thirds only shall be kept in effective service. As to the foreign troops which the king may have in his service, they must be kept away from the heart of the kingdom, and stationed on the frontier.
The most striking feature of the cahiers of the nobility — a feat- ure which no extract can reproduce — is the perfect harmony which exists between these noblemen and their age. They are imbued with its spirit and speak its language. They speak of " the inalienable rights of man," " principles inherent to the social compact." In treating of individuals, they speak of their rights; in alluding to society, they talk of its duties. Political principles seem to them " as absolute as moral truths, both the one and the other having reason for their basis." When they want to abolish the remains of serfdom, they say they must " efface the last traces of human degradation." They sometimes call Louis XVI. a "cit- izen king," and constantly allude to the crime of " high-treason NOTES. 317 NOTES. 317 against the nation," with which they are so soon themselves to be charged. In their eyes, as in those of every one else, public edu- cation seems the grand panacea, and its director must be the state. One cahier says that " the States-General will give their attention to forming the national character by modifying the education of children." Like their contemporaries, they are Ibnd of uniform- ity in legislative measures, always excepting every thing that concerns the existence of the Orders. They seek a uniform ad- ministration, uniform laws, &c., as ardently as the Third Estate. They call for all kinds of reforms, and those radical enough. They are for abolishing or transforming all the taxes without exception, and the whole judicial system, with the exception of the seigniorial courts, which only need improvement. Like all other Frenchmen, they regard France as a trial-field — a sort of political model-farm — in which every thing should be tried, every thing turned upside down, except the little spot in which their particular privileges grow. To their honor, it may even be said that they did not wholly spare that spot. In a word, it is seen from these cahiers that the only thing the nobles lacked to effect the Revolution was the rank of commoners.
Note u,page 14L EXAMPLE OP THE RELIGIOUS GOVERNMENT OF AN ECCLESIASTICAL PROVINCE IN THE MIDDLE OF THE EIGHTEENTH CENTURY.
1. The archbishop.
2. Seven vicars general.
3. Two ecclesiastical courts called ofiicialities: the one, known as the "metropolitan officiality," having cognizance of all sen- tences of the suffragans; the other, known as the " diocesan ofii- ciality," having cognizance, first, of all personal affairs among the clergy, and, secondly, of all disputes regarding the validity of mar- riages, in reference to the sacrament. This last tribunal is com- posed of two judges: there are attorneys and notaries attached to it.
4. Two fiscal courts: one, styled the diocesan office, has orig- inal jurisdiction over all disputes which may arise respecting the taxes of the clergy in the diocese (the clerg}?-, as is known, im- posed their own taxes). This tribunal consisted of the archbishop, presiding, and six other priests. The other court hears appeals from the other diocesan offices of the ecclesiastical province. All these courts admit lawyers, and hear cases pleaded in due form.
318 NOTES.
Note V, page 142.
SPIRIT OF THE CLERGY IN THE PROVINCIAL STATES AND ASSEM- BLIES.
What I say in the text of the States of Languedoc applies equally to the Provincial States which assembled in 1779 and 1787, especially those of Haute Guienne. The members of the clergy are distinguished in this assembly for their learning, their activity, their liberality. The proposition to make the reports of the as- sembly public comes from the Bishop of Rodez.
Note vf, page 143.
This liberal tendency of the clergy in political matters, which was evidenced in 1789, was not the fruit of the excitement of the moment; it was of old standing. It was witnessed in Berri in 1779, when the clergy offered 68,000 livres as a free gift if the provincial administration were allowed to subsist.
Note X, page 145. Note that political society was disjointed, but that civil society still held together. In the heart of the different classes individ- uals were linked together; there even subsisted some trace of the old bond of union between seigniors and people. These peculiar- ities of civil society had their influence on politics; men thus united formed irregular and ill-organized masses, but bodies that were certain to be found refractory by government. The Revo- lution burst these ties, and substituted no political bonds in their stead; it thus paved the way for both equality and servitude.
Note y, page 146.
EXAMPLE OF THE TONE IN WHICH THE COURTS SPOKE OF CERTAIN ARBITRARY MEASURES.
It appears from a memorial laid before the comptroller-general by the intendant of the district of Paris, that it was the custom of that district that each parish should have two syndics, one elected by the people in an assembly over which the sub-delegate presided, the other appointed by the intendant, and directed to superintend his colleague. A quarrel took place between the two syndics of the parish of Rueil, the one who was elected refusing to obey his colleague. The intendant induced M. de Breteuil to imprison the refractory syndic for a fortnight in the prison of La NOTES. 319 Force; on his liberation he was discharged, and a new syndic ap- pointed in his stead. Thereupon the syndic appealed to the Par- liament. I have not been able to find the conclusion of the pro- ceedings, but the Parliament took occasion to declare that the imprisonment of the syndic and the nullification of his election could not but be considered " arbitrary and despotic acts." The courts were sometimes badly muzzled in those days.
Note 7., page 150. The educated and wealthy classes, the burghers included, were far from being oppressed or enslaved under the old regime. On the contrary, they had generally too much freedom; for the crown could not prevent them from securing their own position at the sacrifice of the people's, and, indeed, almost always felt bound to purchase their good-will or soothe their animosity by abandoning the people to their mercy. It may be said that a Frenchman be- longing to this class in the eighteenth century was better able to resist government and protect himself than an Englishman of the same period would have been in the like case. The crown felt bound to use more tenderness and deal more gently with him than the English government would have done to a man of the same standing. So wrong it is to confound independence with liberty. No one is less independent than a citizen of a free state.
Note 2i,page 150.
A REASON WHICH OFTEN COMPELLED THE GOVERNMENT OF THE OLD REGIME TO USE MODERATION.
In ordinary times, the most perilous acts for governments are the augmentation of old or the creation of nev/ taxes. In olden times, when a king had expensive tastes, v/hen he rushed into wild political schemes, when he let his finances fall into disorder, or when he needed large sums of money to sustain himself by gaining over his opponents, by paying heavy salaries that were not earned, by keeping numerous armies on foot, by undertaking extensive works, &c., he was obliged to have recourse to taxa- tion, and this at once aroused all classes, especially that one which achieves violent revolutions — the people. Nowadays, in the same circumstances, loans are effected, which are not immediately felt, and whose burden falls on the next generation.
320 NOTES.
Note b, page 152.
One of the many examples of this is to be found in the election of Mayence. The chief domains of that election were farmed out to farmers-general, who hired as sub-farmers small wretched peas- ants, who had nothing in the world, and to whom the most neces- sary farm-tools had to be furnished. It is easy to understand how creditors of this stamp would deal harshly with the farmers or debtors of the feudal seignior whom they represented, and would render the feudal tenure more oppressive than it had been in the Middle Ages.
Note c, page 152.
ANOTHER EXAMPLE.
The inhabitants of Montbazon had entered on the taille-roll the stewards of a duchy owned by the Prince of Rohan, in whose name it was worked. The prince, who was no doubt very rich, not only has " this abuse," as he calls it, corrected, but recovers a sum of 5344 livres 15 sous, which he had been wrongfully made to pay, and has the same charged to the inhabitants.
Note d, joa^e 154.
EXAMPLE OF THE EFFECT OF THE PECUNIARY RIGHTS OF THE CLERGY IN ALIENATING THE AFFECTIONS OF THOSE WHOSE ISOLATION SHOULD HAVE MADE THEM FRIENDS OF THE CHURCH.
The curate of Noisai declares that the people are bound to re- pair his barn and wine-press, and proposes that a local tax be im- posed for the purpose. The intendant replies that the people are only bound to repair the parson's house; the curate, who seems more attentive to his farm than to his flock, must himself repair his barn and wine-press. (1767.)
Note e,page 157.
The following passage is taken from a clear and moderate me- morial presented in 1788 by the peasantry to a provincial as- sembly: " To the other grievances incident to the collection of the taille must be added that of the bailiff's followers. They usually appear five times during the levy. They are, in general, invalid soldiers or Swiss. At each visit they remain four or five days in the parish, and for each of them 36 sous a day are added to the tax-levy. As for the distribution of the tax, we will not NOTES. 321 NOTES. 321 expose the well-known abuses of authority, or the bad effects of a distribution made by persons who are often incapable, and almost invariably partial and vindictive. These causes have, however, been a source of trouble and strife. They have led to lawsuits which have been very costly to litigants, and very advantageous to the places where the courts sit."
Note f, page 158.
SUPERIORITY OF THE METHODS USED IN THE PAYS d'eTATS AD- MITTED BY OFFICIALS OF THE CENTRAL GOVRENMENT ITSELF.
In a confidential letter dated 3d June, 1772, and addressed by the Director of Taxes to the intendant, it is stated, " In the pays (Tetats the imposition is a fixed percentage, which is exacted and really paid by the taxable. This percentage is raised in the levy in proportion to the increase in the total required by the king (a million, for instance, instead of 900,000 livres). This is a very simple matter. In our districts, on the contrary, the tax is per- sonal, and, to a certain degree, arbitrary. Some pay what they owe, others only half, others a third, others a quarter, and some nothing at all. How is it possible to increase such a tax one ninth, for instance V Note g, page 161.
ARBITRARY IMPRISONMENT FOR CORVEES.
Example. — It is stated in a letter of the high provost in 1768, " I ordered three men to be arrested yesterday on the requisition of M. C.,the assistant engineer, for not having performed their corvee. The affair made quite a stir among the women of the village, who cried, ' Nobody thinks of the poor people when the corvee is in question; nobody cares how they live — do you see?' " Note h^ page 161.
OF THE MANNER IN WHICH THE PRIVILEGED CLASSES ORIGINALLY UNDERSTOOD THE PROGRESS OF CIVILIZATION IN REFERENCE TO ROADS.
The Count of K., in a letter to the intendant, complains of the want of zeal with which a road that is to pass near his place is prosecuted. He says it is the fault of the sub-delegate, who is not energetic enough, and does not force the peasantry to perform their corvees.
02 322 NOTES.
Note i, page 163.
There were two means of making roads. One was by corvees for all heavy work requiring mere manual labor; the other — and the least valuable resource — ^was by imposing a general tax, whose proceeds were placed at the disposal of the Department of Bridges and Roads for the construction of scientific works. The privi- leged classes, that is to say, the principal landholders, who were of course the parties most interested in the roads, had nothing to do with corvees; and as the general tax in favor of the Bridge and Road Department was always joined with the taille, and levied on those who paid it, they escaped that too.
Note k, page 162.
INSTANCE OF CORVEES FOR THE REMOVAL OF CONVICTS.
A letter dated 1761, and addressed to the intendant by the com- missioner of the chain-service, states that the peasants were forced to transport the convicts in carts; that they did so very reluctant- ly; that they were often maltreated by the keepers of the con- victs, " who," says the letter, " are coarse, brutal men, while the peasants, who dislike this duty, are often insolent."
Note 1, page 162. Target's sketches of the inconveniences and annoyances of corvees for the transportation of military baggage do not seem to me exaggerated now that I have read the documents bearing on the subject. He says, among other things, that the first incon- venience of the system is the extreme inequality with which this heavy burden is borne. It falls wholly on a small number of par- ishes, who are exposed to it by the misfortune of their position. The distance to be traversed is often five, six, and sometimes ten or fifteen leagues; three days are consumed in the journey and the return. The sum allowed is not one fifth the value of the la- bor. These corvees are almost invariably required in summer during harvest-time. The oxen are almost always overdriven, and often come home sick, so that many farmer^ prefer paying 15 or 20 livres to furnishing a cart and four oxen. The work is done in a most disorderly manner; the peasantry are constantly in prey to the violence of the soldiery. Officers almost always exact more than the law allows: they sometimes compel the farmers to yoke saddle-horses to carts, whereby the animals are often lamed. Sol- NOTES. 323 NOTES. 323 diers will insist on riding on carts that are already heavily laden; in their impatience at the slow gait of the oxen, they will prick them with their swords, and if the farmer objects he is very rough- ly handled.
Note m, page 162.
EXAMPLE OF THE APPLICATION OF CORVEES TO EVERY THING.
The marine intendant of Rochefort complains that the peasants are indisposed to perform their corvees by carting the timber that has been purchased by the naval purveyors in the various prov- inces. (This correspondence shows that the peasants were, in fact, still — 1775 — bound to corvees of this kind, for which the in- tendant fixed their remuneration.) The Minister of Marine sends the letter to the intendant of Tours, and says that the carts re- quired must be supplied. The intendant, M. Ducluzel, refuses to sanction corvees of this nature. The Minister of Marine writes him, a threatening letter, in which he notifies him that he will ap- prize the king of his resistance. The intendant replies directly (11th December, 1775), and states firmly, that during the whole ten years of his service as intendant at Tours, he has always re- fused to authorize these corvees, in consequence of the abuses they involve — abuses which the rates of wages do not compensate; " for," says he, " the cattle are often lamed by drawing heavy logs over roads as bad as the weather in which this service is usually required of them." The secret of this intendant's firmness seems to have been a letter of M. Turgot's, filed with the correspondence, and dated 30th July, 1774, when Turgot entered the min- istry; the letter states that Turgot never sanctioned these corvees at Limoges, and approves M. Ducluzel for refusing to sanction them at Tours.
* Other portions of this correspondence show that purveyors of timber frequently exacted these corvees without being authorized to do so by a bargain with the state. They saved at least a third in freight. A sub-delegate gives the following instance of this profit: " Distance to drav;^ the logs from the place where they are cut to the river, over roads almost impassable, six leagues; time consumed, two days. The corv'eables are paid at the rate of six liards a league per cubic foot; they will thus receive 13/5, 10 s. for the journey, which will barely cover the expenses of the farm- er, his assistant, and the cattle yoked to his cart. He loses his own time, his trouble, and the labor of his cattle."
324 NOTES.
324 NOTES.
On 17th May, 1776, a positive order of the king to insist on this corvee is intimated to the intendant by the minister. M. Du- cluzel having died, his successor, M. L'Escalopier, hastens to obey, and to promulgate an ordinance stating that " the sub-dele- gate is empovi^ered to distribute the duty among the parishes; and all persons liable to corvees in the said parishes are hereby order- ed to be present, at the hour directed by the syndics, at the place where the timber lies, and to cart it at the rate that shall be fixed by the sub-delegate."
Note ii,pag^ 165.
INSTANCE OF THE MANNER IN WHICH THE PEASANTRY WERE OFTEN TREATED.
1768. The king remits 2000 francs of the taille to the parish of Chapelle Blanche, near Saumur. The curate claims a portion of this sum to build a steeple, and so rid himself of the noise of the bells which incommodes him in his parsonage. The inhabit- ants object and resist. The sub-delegate takes the side of the curate, and has three of the principal inhabitants arrested at night, and locked up in jail.
Another example: Order of the king to imprison for two days a woman who has insulted two troopers of the horse-police. An- other to imprison for a fortnight a stocking-maker who has spoken ill of the horse-police. In this case the intendant replies that he has already had the fellow arrested, for which he is warmly praised by the minister. The police, it seems, had been insulted in con- sequence of the arrests of beggars, which had shocked people. When the intendant arrested the stocking-maker, he gave out that any person thereafter insulting the police would be still more severely punished.
The correspondence between intendant and sub-delegates (1760 -1770) shows that the former ordered the arrest of mischievous persons, not to bring them to trial, but to get them out of the way. The sub-delegate asks permission to keep two dangerous beg- gars he has arrested in perpetual confinement. A father protests against the imprisonment of his son, who has been arrested as a vagabond because he traveled without papers. A landowner of X. demands that a neighbor of his, who has lately come to settle in his parish, whom he aided, but who is conducting himself badly toward him and annoying him, be forthwith arrested. The intend- ant of- Paris begs his colleague of Rouen to oblige him thus far, as the petitioner is his friend.
NOTES. 325 To some one who desired to have some beggars set at liberty, the intendant replied " that poor-houses must not be considered prisons, but mere estabhshments intended for the detention of beg- gars and vagabonds by way oi administrative correction.'''^ This idea found its way into the Penal Code, So well preserved have been the notions of the old regime in this matter.
Note o, page 172. It has been said that the character of the philosophy of the eighteenth century was a sort of adoration of human intellect, an unlimited confidence in its power to transform at will laws, insti- tutions, customs. To be accurate, it must be said that the human intellect which some of these philosophers adored was simply their own. They showed, in fact, an uncommon want of faith in the wisdom of the masses. I^iould mention several who despised the public almost as heartily as they despised the Deity. Toward the latter they evinced the pride of rivals — the former they treated with the pride of parvenus. They were as far from real and re- spectful submission to the will of the majority as from submission to the will of God. Nearly all subsequent revolutionaries have borne the same character. Very different from this is the respect shown by Englishmen and Americans for the sentiments of the majority of their fellow-citizens. Their intellect is proud and self-reliant, but never insolent; and it has led to liberty, while ours has done little but invent new forms of servitude.
Note p, page 187.
Note p, page 187.
Frederick the Great says in his Memoirs, " The Fontenelles, the Voltaires, the Hobbeses, the Collinses, the Shaftesburys, the Bol- ingbrokes — all these great men dealt a deadly blow to religion. Men began to examine what they had stupidly adored. Intellect overthrew superstition. Fables that had long been believed fell into disgust. Deism made many converts. If Epicureanism was fatal to the idolatrous worship of the pagans. Deism was equally fatal to the Judaical visions of our ancestry. The liberty of thought which reigned in England M^as very favorable to the progress of philosophy."
It may be here seen that Frederick the Great, at the time he wrote these lines, that is to say, in the middle of the eighteenth century, regarded England as the centre of irreligious doctrines. A still more striking fact is the total ignorance displayed by one of the most enlightened and experienced sovereigns of history, of 326 NOTES.
the political utility of religion. The faults of his masters had in- jured the natural qualities of his mind.
Note q, page 211.
A similar spirit of progress manifested itself at the same time in Germany, and there, as in France, was accompanied by a de- sire for a change of institutions. See the picture which a Ger- man historian draws of the state of his country at that time: " During the second half of the eighteenth century," says he, " the new spirit of the age has been introduced even into ecclesi- astical territory, on which reforms are commenced. Industry and tolerance penetrate into every corner of it; it is reached by the enlightened absolutism which has already mastered the greater states. And it must be acknowledged that at no period during the century has the territory of the Church been ruled by sovereigns as worthy of esteem and respect as those who figured during the ten years which preceded the French Revolution."
Note how this sketch resembles France, where progress and reform took a start at the same moment, and the men who were most worthy of governing appeared just when the Revolution was about to devour them all.
Note, also, how visibly this part of Germany was drawn into the French movement of civilization and politics.
Note X, page 212.
HOW THE ORGANIZATION OP THE ENGLISH COURTS PROVES THAT INSTITUTIONS MAY HAVE MADE SECONDARY FAULTS WITHOUT FAILING IN THEIR ORIGINAL OBJECT.
Nations have a faculty of prospering in spite of imperfections in the secondary parts of their institutions, so long as the general principles and spirit of these institutions are imbued with vitality. This phenomenon is well illustrated by the judicial organization of England during the last century, as we find it in Blackstone.
Two anomalies at once meet the eye: 1st. The laws differ; 2d. They are carried into effect by different tribunals.
1st. As to the laws: 1. One set of laws is in force for England proper, another for Scotland, another for Ireland, another for certain European pos- sessions of Great Britain, such as the Isle of Man and the Chan- nel Islands, others for the colonies.
2. In England alone four systems of law are in use: customary NOTES. 327 law, statute law, Roman law, equity. Customary law, again, is subdivided into general customs which apply to the whole king- dom, customs which apply to certain seigniories or towns, and customs which apply to certain classes — such, for instance, as the custom of merchants. Some of these customs differ widely from the others, as, for instance, those which, in opposition to the gen- eral spirit of the English laws, direct the equal division of proper- ty among children (gavelkind), and those more singular customs still which award a right of primogeniture to the youngest child.
2d. As to the courts: The law, says Blackstone, has established an infinite variety of courts. Some idea may be formed of their number from the fol- lowing very brief analysis: 1. One meets first with the courts established out of England proper, such as the courts of Scotland and Ireland, which were not subordinate to the superior courts of England, though they were all, I fancy, subject to appeal fo the House of Lords.