2. As to England proper, if my memory serves me, Blackstone counts, 1st. eleven kinds of courts existing at common law, of which four seem, indeed, to have fallen into disuse in his time. 2d. Three kinds of courts exercising jurisdiction over certain cases throughout the country. 3d. Ten kinds of special courts: one of these is local courts, created by special acts of Parliament or existing by custom, either at London or in the towns or bor- oughs of the provinces. These are so numerous and so varied in their systems and rules that Blackstone abandons the attempt to describe them in detail.
Thus, in England proper, if Blackstone is to be believed, there existed at the time he wrote, that is to say, during the second half of the eighteenth century, tw^enty-four kinds of courts, of vi^hich several were subdivided into various species, each having a par- ticular physiognomy. Setting aside those which seem to have fallen into disuse, there yet remain eighteen or twenty.
Now the least examination of this judicial system brings to light ever so many imperfections.
Notwithstanding the immense number of courts, there are none, it seems, close at hand, which can hear petty cases promptly and at small expense, and hence the administration of justice is em-' barrassing and costly. Several courts exercise jurisdiction over the same class of cases, whence troublesome doubts are thrown upon the validity of judgments. Nearly all the courts of appeal exercise original jurisdiction of one kind or another, either at com- 328 NOTES.
mon law or as equity courts. There are a variety of courts of appeal. The only point where all business centres is the House of Lords. Suits against the crown are not distinguished from other suits, which would seem a great deformity in the eyes of most of our lawyers. Finally, all these courts judge according to four different systems of laws, one of which consists wholly of precedents, and another — equity — has no settled basis, being de- signed, for the most part, to contradict the customs or statutes, and to correct the obsolete or over-harsh provisions of these by giving play to the discretion of the judge.
Here are astounding defects. Compare this old-fashioned and monstrous machine with our modern judiciary system, and the contrast between the simplicity, the coherence, and the logical organization of the one will place in still bolder relief the compli- cated and incoherent plan of the other. Yet there does not exist a country in which, even in Blackstone's time, the great ends of justice were more fully attained than in England; not one where every man, of whatever rank, and whether his suit was against a private individual or the sovereign, was more certain of being heard, and more assured of finding in the court ample guarantees for the defense of his fortune, his liberty, and his life.
This does not indicate that the faults of the judiciary system of England served the ends of justice. It only shows that there may exist in every judiciary system secondary faults which are but a slight impediment to the proper transaction of business, while there are radical faults which, though they coexist with many secondary excellences, may not only interfere with, but absolutely defeat the ends of justice. The former are the easiest to detect; they are instantly noticed by common minds. One can see them at a glance. The others are more difficult to discover, and lawyers are not always the people who perceive or point them out.
Note, also, that the same qualities may be secondary or princi- pal, according to the times and the political organization of socie- ty. In aristocratic times, all inequalities, or other contrivances to diminish the privileges of certain individuals before the courts, to guarantee the protection of the weak against the strong, or to give predominance to the action of the government, which natural- ly views disputes between its subjects with impartiality, are lead- ing and important features. They lose their importance when so- ciety and political institutions point toward democracy.
Studying the judiciary system of England by the light of this principle, it will be discovered that, while defects were allowed to NOTES. 329 exist which rendered the administration of justice among our neighbors obscure, complicated, slow, costly, and inconvenient, in- finite pains had been taken to protect the weak against the strong, the subject against the monarch; and the closer the details of the system are examined, the better will it be seen that every citizen had been amply provided with arms for his defense, and that mat- ters had been so arranged as to give to every one the greatest pos- sible number of guarantees against the partiality and venality of the courts, and, above all, against that form of venality which is both the commonest and the most dangerous in democratic times — subserviency to the supreme power.
In all these points of view, the English system, notwithstanding its secondary faults, appears to me superior to our own. Ours has none of its vices, it is true, but it is not endowed with the same excellences. It is admirable in respect of the guarantees it offers to the citizen in suits against his neighbor, but it fails in the par- ticular that is most essential in a democratic society like ours, namely, the guarantees of the individual against the state.
Note s, page 213.
ADVANTAGES ENJOYED BY THE DISTRICT OF PARIS.
This district (generalite) enjoyed as large advantages in re- spect of government charities as of taxes. For example, the comptroller-general writes, on 22d May, 1787, to the intendant of the district of Paris, to say that the king has fixed the sum to be spent in charitable works, in the district of Paris, during the year, at 172,800 livres. Besides this, 100,000 livres are to be spent in cows to be given to farmers. This letter shows that this sum of 172,800 livres was to be distributed by the intendant alone, in con- formity with the general rules laid down by the government, and subject to the general approval of the comptroller-general.
Note t, page 214. The administration of the old regime comprised a multitude of different powers, which had been created — rather to help the treasury than the government — at various times, and often intrust- ed with the same sphere of action. Confusion and conflicts of authority could only be avoided on condition that each power should agree to do little or nothing. The moment they shook off inertia, they clashed and incommoded each other. Hence it hap- pened that complaints of the complications of the administrative 330 NOTES.
system and of the confusion of powers were much more pressing just before the Revolution than they had been thirty or forty years previous. Political institutions had grown better, not worse; but political life was more active.
Note u^ page 221.
ARBITRARY INCREASE OF THE TAXES.
What the king here says of the taille might have oeen said with equal truth of the twentieths, as is shown by the following correspondence. In 1772, Comptroller- general Terray had de- cided upon a considerable increase — 100,000 livres — in the twen- tieths in the district of Tours. M. Ducluzel, an able administra- tor and a good man, shows all the grief and annoyance he feels at the step in a confidential letter, in which he says, " It is the facil- ity with which the 250,000 livres were obtained by the last in- crease which has doubtless suggested the cruel step, and the letter of the month of June."
In a very confidential letter from the director of taxes to the intendant, in reference to the same matter, he says, " If you still think the increase as aggravating and revolting, in view of the public distress, as you were good enough to say it was, it would be desirable that you should contrive to spare the province — which has no other defender or protector but yourself — the sup- plementary rolls, which, being retroactive in their effect, are al- ways odious."
This correspondence likewise shows how sadly some standard rule of action was needed, and how arbitrarily matters were man- aged even with honest views. Intendant and minister both throw the surplus tax sometimes on agriculture rather than labor, some- times on one branch of agriculture (vines, for instance) rather than another, according to their own ideas as to which interest requires gentle treatment.
Note V, page 224.
STYLE IN WHICH TURCOT SPEAKS OF THE PEOPLE OF THE COUN- TRY PARTS IN THE PREAMBLE OF A ROYAL DECLARATION.
" The country communities," says he, " in most parts of the kingdom, are composed of poor, ignorant, and brutal peasants, in- capable of self-government" NOTES. 331 'Note w, page 229.
HOW REVOLUTIONARY IDEAS WERE SPONTANEOUSLY GERMINATING IN men's MINDS UNDER THE OLD REGIME.
In 1779 a lawyer begs the Council to pass an order establish- ing a maximum price for straw throughout the kingdom.
Note X, page 230. The chief engineer wrote to the intendant, in 1781, on the sub- ject of a depoand for increased indemnity: " The applicant forgets that these indemnities are a special favor granted to the district of Tours, and that he is fortunate in obtaining partial repayment for his loss. If all the parties in interest were reimbursed on the scale he proposes, four millions would not suffice."
Note y, page 234. This prosperity did not cause the Revolution; but the spirit which was to cause it — that active, restless, intelligent, innovating, ambitious, democratic spirit, which imbued the new society, was giving life to every thing, and stirring up and developing every social element before it overthrew the whole.
Note z, page 238.
• CONFLICT OF THE SEVERAL ADMINISTRATIVE POWERS IN 1787.
Example. — The intermediate commission of the provincial as- sembly of He de France claims the administration of the poor- house. The intendant insists on retaining control of it, as " it is not kept up out of the provincial funds." During the discussion, the commission applies to the intermediate commissions of other provinces for their opinion. That of Champagne, among others, replies that the same difficulty has been raised there, and that it has, in like manner, resisted the pretensions of the intendant.
Note a,, page 242. I find in the reports of the first provincial assembly of He de France this assertion, made by the reporter of a committee: " Hitherto the functions of syndic have been more onerous than honorable, and persons who possessed both means and information suitable to their rank were thus deterred from accepting the office."
K NOTE REFERRING TO VARIOUS PAS- \ SAGES IN THIS A^OLUME.
FEUDAL RIGHTS EXISTING AT THE TIME OF THE REVOLUTION, ACCORDING TO THE FEUDAL LAWYERS OF THE DAY.
I DO not design to write a treatise on feudal rights, or to inquire into their origin. My object is merely to state which of them were still exercised in the eighteenth century. They have played so important a part in subsequent history, and filled so large a place in the imagination of those who have been freed from them, that I have thought it would be curious to ascertain what they really were at the time the Revolution destroyed them. With this view I have studied, first, the terriers, or registers of a large number of seigniories, choosing those which were most recent in date in pref- erence to the older ones. Finding.that this plan led to no satis- factory results, as the feudal rights, though regulated by the same general system of laws throughout Europe, varied infinitely in mat- ters of detail in the diiferent provinces and cantons, I resolved to pursue a different method, which was this. The feudal rights gave rise to countless lawsuits. These suits involved such questions as, How were these rights acquired? how were they lost 1 in what did they consist? which of them required to be based on a Toyal patent? which on a private contract? which on the local custom or long-established practice 1 how were they valued in case of sale? what sum of money was each class supposed to rep- resent in proportion to the others % All these had been and still were litigated questions, and a school of lawyers had devoted their whole attention to their study. Of these, several wrote during the second half of the eighteenth century, some shortly before the Rev- olution. They were not jurisconsults, properly so called; they were legal practitioners, whose sole aim was to furnish the profes- sion with rules of practice for a special and unattractive branch of the law. A careful study of these writers throws light on the in- tricate and confused details of the subject.. I subjoin the most 334 NOTE.
succinct analysis that I have been able to make of my work. It is mainly derived from the work of Edme de Freminville, who wrote about 1750, and that of Renauldon, written in 1765, and en- titled Traite Historique et Pratique des Droits Seigneuriaux.
The cens (that is to say, the perpetual rent, in money or prod- uce, which the feudal laws impose on certain possessions) still con- tinues, in the eighteenth century, to modify the condition of many landholders. It is still indivisible; that is to say, when the prop- erty which owes the cens has been divided, it may be exacted from any one of the owners. It is not subject to prescription. Ac- cording to some customs, the owner of a property burdened with cens can not sell it without exposing himself to the retrait censu- el; that is to say, the creditor of the cens may take the property by paying the same price as the other purchaser. The custom of Paris ignores this right.
Lods et ventes (mutation-fine). — The general rule, in those parts of France where customary law obtains, is that a mutation- fine is due on every sale of land subject to cens: it is a due on the sale which accrues to the seignior. These dues differ in different customs, but they are considerable in all. They exist also in those parts of the country where written law obtains; there they amount to a sixth of the price, and are called lods; but the seignior, in these districts, must prove h^s right. Throughout the country the cens creates a privilege for the seignior, in virtue of which he is preferred to all other creditors.
Terr age or champart, agrier^ tasque. — These are dues in prod- uce which the debtor of the cens pays to the seignior; the quan- tity varies according to custom and private agreement. These dues were often met with during the eighteenth century. I be- lieve that, even where customary law obtained, terrage required to be founded on a contract. It was either seigniorial, or connected with the land {fancier). It would be superfluous to explain here the signs by which these two kinds were distinguished; suffice it to say that the latter, like ground-rents, was subject to a prescrip- tion of thirty years, while the former could never be lost by pre- scription. Land subject to terrage could not be hypothecated without the consent of the seignior.
Bordelage. — This was a due which existed only in Nivernais and Bourbonnais, and consisted in an annual rent payable by all land subject to cens, in the shape of money, grain, and poultry. This due entailed very rigorous consequences: the non-payment of it for three years involved the conimise, or confiscation of the NOTE. 335 NOTE. 335 property to the seignior. The rights of property of debtors of bordelage were, moreover, inchoate: in certain cases the seignior was entitled to their inheritance, to the exclusion of the rightful heirs. This was the most rigorous of all the dues of the feudal tenure, and its exercise had gradually been restricted to the rural districts; for, as the author says, " peasants are mules ready to carry any load."
Marciage was a peculiar right, only exercised in certain places. It consisted in a certain return which was paid by the possessors of property liable to cens on the natural death of the seignior.
Enfeoffed tithes. — A large portion of the tithes were still en- feoffed during the eighteenth century. In general, they could only be claimed in virtue of a contract, and did not result from the mere fact of the land being seigniorial.
Parcieres were dues levied on the harvest. They bore some resemblance to the champart and enfeoffed tithes, and were chiefly in use in Bourbonnais and Auvergne.
Carpot, a due peculiar to Bourbonnais, was to vines what cham- part was to arable land — a right to a portion of the produce. It was one quarter of the vintage.
Serfdom. — Those customs which retain traces of serfdom are called serf customs; they are few in number. In the provinces where they obtain, no lands, or very few indeed, are wholly fi^e from traces of serfdom. (This was written in 1765.) Serfdom, or, as the author terms it, servitude, was either personal or real.
Personal servitude was inherent in the person, and clung to him wherever he went. Wherever he removed his household, the seignior could pursue and seize him. The authors contain sever- al judgments of the courts based on this right. Among them, one, dated 17th June, 1760, rejects the claim of a seignior of Nivernais upon the succession of one Pierre Truchet. Truchet was the son of a serf under the custom of Nivernais, who had married a free woman of Paris, and died there. The court rejected the seignior's demand on the ground that Paris was a place of refuge from which serfs could not be recovered. The ground of this judgment shows that the seigniors were entitled to claim the property of their serfs when they died in the seigniory.
Real servitude flowed from the possession of certain land, and could not be got rid of except by removing from the land and re- siding elsewhere.
Corvees v/ere a right by which the seignior employed his vas- sals or their cattle for so many days for his benefit. Corvees at 336 NOTE.
will, that is to say, at the discretion of the seignior, are wholly abolished. They were long since reduced to so many days' work in the year.
Corvees were either personal or real. Personal corvees were due by every laborer living on the seigniory, each working at his own trade. Real corvees were attached to the possession of cer- tain lands. Noblemen, ecclesiastics, clergymen, officers of justice, advocates, physicians, notaries, bankers, notables, were exempt from corvees. The author quotes a judgment of 13th August, 1735, rendered in favor of a notary whose seignior wished to com- pel him to work for three days in the year in drawing up deeds for the seignior. Also another judgment of 1750, deciding that when the corvee is to be paid either in money or in labor, the choice rests with the debtor. Corvees must be substantiated by a writ- ten document. Seigniorial corvees had become very rare in the eighteenth century.
Banality. — There are no banal rights in the provinces of Ar- tois, Flanders, and Hainault. The custom of Paris strictly for- bids the exercise of this right when it is not founded on a proper title. All who are domiciled in the seigniory are subject to it — men of rank and ecclesiastics even oftener than others.
Independently of the banality of mills and ovens, there are many others: 1st. Banality of Factory -mills ^ such as cloth-mills, cork-mills, hemp-mills. Several customs, among others those of Anjou, Maine, and Touraine, establish this banality.
2d. Banality of Wtne-presses. — Very few customs speak of it. That of Lorraine establishes it, as also does that of Maine.
3d. Banal Bull. — No custom alludes to it, but it is established by certain deeds. The same is true of banal butcheries.
Generally speaking, this second class of banalities are rarer and less favorably viewed than the others. They can only be estab- lished in virtue of a clear provision of the custom, or, in default of this, by special agreement.
Ban of the Vintage. — This was a police authority, which high justiciary seigniors exercised, without special title, throughout the kingdom during the eighteenth century. It was binding on every one. The custom of Burgundy gave to the seignior the right of gathering his crop of grapes one day before any other vine-grower.
Right of Banvin. — This right, which, according to the authors, a host of seigniors exercised either in virtue of the custom or un- der private contracts, entitled them to sell the wine made on their NOTE. 337 own estates a certain time — usually a month or forty days — before any other vine-grower could send his wine to market. Of the greater customs, those of Tours, Anjou, Maine, and Marche are the only ones which recognize and regulate this right. A judg- ment of the Court of Aides, bearing date 28th August, 1751, permits innkeepers to sell wine during the hanvin; but this was an excep- tional case; they were only allowed to sell to strangers, and the wine sold must have come from the seignior's vineyard. The cus- toms which mention and regulate the right of hanvin usually re- quire that it be founded on written titles.
Right of Blairie. — This is the right in virtue of which high jus- ticiary seigniors grant permission to the inhabitants of the seign- iory to pasture their cattle upon the lands within their jurisdiction, or waste lands. This right does not exist in those districts which are governed by written law; but it is well known within the lim- its of the various customs. It is found under different names in Bourbonnais, Nivernais, Auvergne, and Burgundy. It rests on the assumption that the property of all the land was originally in the seignior, and that, after having distributed the best portions in feuds, copyholds {censives)^ and other concessions, for specific rents, he is still at liberty to grant the temporary use of those lands which are only fit for pasture. Blaine is established by several customs; but no one can claim it but a high justiciary, and he must be able to show either a positive title to it, or old acknowledg- ments of its existence, fortified by long usage.
Tolls. — Originally, say the authors, there existed a vast num- ber of seigniorial tolls on bridges, rivers, and roads. Louis XIV. abolished many of them. In 1724, a commission appointed to in- quire into the subject abolished twelve hundred of them; and in 1765 they were still being reduced. The first principle in this matter, says Renauldon, is that a toll, being a tax, must not only be established in virtue of a title, but that title must emanate from the crown. The toll is mentioned as being de par le roi. One of the conditions of tolls is that there must be attached to them a tariff of the rates which all merchandise must pay. This tariff must always be approved by an Order in Council. The title, says the author, must be confirmed by uninterrupted possession. Not- withstanding the precautions taken by the legislator, the value of some tolls has largely increased of late years. I know a toll, he adds, which w^as farmed out for 100 livres a century since, and which now brings in 1400; another, farmed out for 39,000 livres, now produces 90,000. The chief ordinances and edicts regulating P 338, NOTE.
tolls are the 29th title of the ordinance of 1669, and the edicts of 1683, 1693, 1724, and 1775.
The authors whom I quote, though rather prepossessed, in gen- eral, in favor of feudal rights, acknowledge that great abuses are practiced in the collection of toUs, Ferries. — The right of ferry differs sensibly from the right of tolls. The latter is levied on merchandise only; the former on persons, cattle, and vehicles. This right can not be exercised without the king's sanction, and the tariff of rates charged must be included in the Order in Council authorizing or establishing the ferry.
The Right of Leyde (its name varies in different places) is an impost on merchandise sent to fairs or markets. The lawyers I am quoting say that many seigniors erroneously consider this a right appurtenant to high justice, and purely seigniorial; whereas it is a tax which requires the sanction of the king. At any rate, the right can only be exercised by a high justiciary, who receives the fines levied in virtue thereof. And it appears that though the- oretically the right of leyde could not be exercised except by grant from the king, it was often in part exercised in virtue of a feudal title and long usage.
It is certain that fairs could only be established by authorization of the king.
Seigniors need no specific title or royal grant to regulate the weights and measures that are to be used in the seigniory. It suf- fices that the right is founded on the custom or long continued usage. The authors say that all the attempts that have been made by the kings to introduce a uniform standard of weights and meas- ures have been failures. No progress has been made in this mat- ter since the customs were drawn up.
Roads. — Rights exercised by the seigniors over the roads.
The highways, which are called the king's roads, belong whol- ly to the crown. Their establishment, their repairs, crimes com- mitted upon them, are not within the jurisdiction of the seign- iors or their judges; but all private roads within the limits of a seigniory belong, without doubt, to the high justiciary. They have entire control over them, and all crimes committed thereon, except cases reserved to the king, are within the jurisdiction of the seigniorial judges. Formerly the seigniors were expected to keep in repair the high roads which traversed their seigniory, and rights of toll, boundary, and traverse were granted them by way of indemnity; but the king has since taken the direction of all highways.
NOTE. 339 Rivers. — All rivers navigable for boats or rafts belong to the king, though they traverse seigniories, any title to the contrary notwithstanding (ordinance of 1669). Any rights which the seign- iors may exercise on these rivers — rights of fishing, establishing mills or bridges, or levying tolls — must have been acquired by grant from the king. Some seigniors claim civil or police juris- diction over these rivers; but any such rights have been usurped or obtained by fraudulent grants.
Small rivers undoubtedly belong to the seigniors whose domain they traverse. They have the same rights of property, jurisdic- tion, and police, as the king has over navigable rivers. All high justiciaries are universal seigniors of non-navigable rivers flow- ing through their territory. They need no better title to establish their right of property than the fact of their existence as high jus- ticiaries. Some customs, such as that of Berri, authorize individ- uals to erect mills on seigniorial rivers flowing through their prop- erty without permission from the seignior. The custom of Bre- tagne granted this right to noblemen. Generally, the law restricts to the high justiciary the right of granting permission to build mills within his jurisdiction. Even traverses can not be made upon a seigniorial river, for the protection of a farm, without per- mission from the seigniorial judges.
Fountains, Pictnps, Retting-tanks, Ponds. — Rain falling upon the highway belongs exclusively to the high justiciary, who alone can make use of it. He can make a pond in any part of his juris- diction, even on the property of his tenants, by paying them for the land that is submerged. This rule is distinctly laid down by sev- eral customs; among others, by those of Troyes and Nivernais. Private individuals can only have ponds on their own land; and even for this, according to several customs, they must obtain leave from the seignior. The customs which require leave to be asked of the seignior forbid his selling permission.
Fishery. — The right of fishery in rivers navigable for boats or rafts belongs to the king. He alone can grant it. His judges have sole cognizance of infractions of the fishery laws. Many seigniors, however, enjoy rights of fishery on these rivers, but they have either usurped them, or hold them by special grant from the king. As for non-navigable rivers, it is forbidden to fish therein, even with line, without the leave of the high justiciary in whose domain they flow. A judgment of 30th April, 1749, condemned a fisherman on this rule. Seigniors themselves must obey the gen- eral regulations regarding fisheries in fishing in these rivers. The 340 NOTE.
high justiciary may grant the right of fishing in his river, either as a feud, or for a yearly cens.