municipal councils of cities; nor could it utter a word till its mouth had been opened by authority. No meeting could be convened until permission had been obtained in express terms from the intendant: this granted, the villagers, who called things by their right names, met "by his good will and pleasure." No meeting, however unanimous, could impose a tax, or sell or buy, or lease, or go to law, without permission from the Royal Council. The church which a storm had unroofed, or the presbytery wall which was fall- ing to pieces, could not be repaired without a decree of Council. This rule applied with equal force to all parishes, however distant from the capital. I have seen a petition firom a parish to the council praying to be allowed to spend twenty-five livres.
In general, 'the parishioners were still entitled to elect magistrates by universal suffrage; but the in- tendant frequently took pains to recommend a candi- date, who never failed to obtain the votes of the small electoral body. Again, he would occasionally declare of his own authority that an election just held was null and void, would appoint a collector and syndic, and temporarily disfranchise the com'munity. Of this course I have noticed a thousand examples.
No more wretched station than that of these pa- rochial functionaries can be conceived. They were subject to the whim of the lowest agent of the central government, the sub-delegate. He would fine or im- prison them, and they could lay no claim to the usual guarantees of the subject against arbitrary oppression. An intendant wrote in 1750, "I have imprisoned a few of the principal grumblers, and made the commu- 72 THE OLD REGIME nity pay the expense of sending for the police. By these measures I have checkmated them without dif- ficulty." Naturally enough, under these circumstan- ces, parochial office, instead of being an honor, became a burden from Vhich all sought to escape.
Yet still, these last traces of the old parochial sys- tem were dear to the peasant's heart. To this very day that system is the only branch of government which he thoroughly understands and cares for. Men who cheerfully see the whole nation submit to a mas- ter, rebel at the bare idea of not being consulted in the government of their village. So pregnant with weight are hollow forms!
The remarks I have made upon cities and villages apply also to almost every corporate body which had a separate existence and corporate property.
Under the old regime, as in our own day, neither city, nor borough, nor village, nor hamlet, however small, nor hospital, nor church, nor convent,'^ nor col- lege, could exercise a free will in its private aifairs, or administer its property as it thought best. Then, as now, the administration was the guardian of the whole French people; insolence had not yet invented the name, but the thing was abeady in existence.
AND THE REVOLUTION. 73 CHAPTER IV.
THAT ADMINISTRATIVE TRIBUNALS (lA JUSTICE ADMINISTRA- TIVE) AKD OFFICIAL IKKESPONSIBILITY(gARANTIE DES FONC- TIONNAIKES) AVERE INSTITUTIONS OF THE OLD REGIME.
IN no country in Europe were the courts more inde- pendent of the government than in France; nor was there any in which more abnormal tribunals ex- isted. The one involved a necessity for the other. Judges whose position was beyond the king's reach, whom he could neither dismiss, nor displace, nor pro- mote, and over whom he had no hold either by ambi- tion or by fear, soon proved inconvenient. That led to the denial of their jurisdiction over cases to which the administration was a party, and to the establish- ment of another class of courts, less independent, which presented to the subject's eye a semblance of justice, without involving, for the monarch, any risk of its reality.
In countries like Germany, where the judges were never as independent of the government as they were in France at this time, no such precaution was ever taken, and no administrative tribunals ever established. The monarch held the common courts in such subjec- tion that he did not need extraordinary ones.
Very few of the royal edicts and declarations, or of the Orders in Council, issued during the last century of the old monarchy, were unprovided with a clause stating that all disputes that might arise, and lawsuits D 74 THE OLD REGIME that might grow out of them, must be referred to the intendants and to the Council. The ordinary form of words was, "His majesty ordains that all disputes which may arise concerning the execution of the pres- ent decree, its accessories and corollaries, shall he tried "before the intendant, and decided Iby him, subject to appeal to the Council. We forbid our courts and tri- bunals to take cognizance of any such disputes."
In cases arising out of laws or old customs which made no similar provision, the Council constantly in- tervened by process of evocation, and took the suit out of the hands of the common judges to bring it before itself. The Council registers are full of such decrees of evocation. Frequently they gave to the practice the force of theory. A maxim, not of law, took root in the public mind to the effect that suits, in which state in- terests were involved, or which turned on the interpret- ation of a law, were not within the jurisdiction of or- dinary courts, and that these latter were restricted to the decision of cases between private individuals. We have embodied this idea in a set form, but its sub- stance belongs to the old regime.
In those days, the intendant and Council were the only court that could try cases growing out of ques- tions of taxation. They alone were competent to de- cide suits concerning common carriers and passenger vehicles, public highways, canals, river navigation, and generally all matters in which the public interest was concerned.
Nothing was left undone by the intendants to ex- tend their jurisdiction. Representations to the comp- troller-general, and sharp hints to the Council, were in- AND THE REVOLUTION. 75 cessant. One of the reasons assigned by a magistrate of this rank for issuing a writ of evocation is worth preserving. " Ordinary judges," says he, "are bound by rule to repress illegal acts; but the Council can al- ways overstep rules for a salutary purpose."
This principle often led intendants and Council to assume jurisdiction over cases whose connection with the administration was so slight as to be invisible, and even over cases which had obviously no connection with it at all. A gentleman went to law with his neigh- bor. Dissatisfied with the tone of the court, he begged the Council to evoke the case. The intendant, to whom it was referred, reported that, " though the interests in- volved were wholly of a private nature, his majesty could always, if he chose, take cognizance of all classes of suits, without rendering account of his motives to any one."
Individuals arrested for riot were usually tried on evocation before the intendant or the Provost of Police {j>rev6t de la marechaussee). In times of scarcity, evocations of this kind were common, and the intend- ants appointed several "graduates" to assist them in their duties. They formed a sort of prefect's council, with criminal jurisdiction. I have seen sentences ren- dered by these bodies condemning culprits to the gal- leys and to the scaffold. At the close of the seven- teenth century, criminal jurisdiction was still frequent- ly exercised by intendants.
Modem legists assure us that we have made great progress in administrative law since the Revolution. They tell us that "before that event the powers of the judiciary and those of the administration were inter- 76 THE OLD KEOIME mingled and confused, but that since then they have been severed, and a line drawn between them." A right appreciation of the progress here mentioned can only be formed when it is well borne in mind that if the ju- diciary under the old regime occasionally overstepped its natural sphere, it never filled the whole of that sphere. Both of these facts must be remembered, or a false and incomplete view will be taken of the sub- ject. True, the courts were allowed to travel out of their sphere to make laws on certain subjects for the government of the public; but, on the other hand, they were denied cognizance of legitimate lawsuits, and thus excluded from a part of their proper domain. We have stripped the courts of the right of intruding into the administration of government, which they very im^properly possessed under the old regime, but we have continued to suffer the government to intrude into the courts of law; yet it is even more dangerous for the government than for the judiciary to transcend its scope; for the interference of the latter in the admin- istration of government only injures the public busi- ness, whereas the interference of government in the administration of justice tends to deprave the public mind, and to render men servile and revolutionary at one and the same time.
In one of the nine or ten constitutions which have been established in France within the last sixty years, and designed to last forever, an article was inserted de- claring that no government official could be prosecuted before the common courts until permission had been obtained from the executive. The idea seemed so happy that, when the constitution was destroyed, the AND THE REVOLUTION. 77 article in question was rescued from destruction, and has ever since "been carefully sheltered from revolution. Officials commonly allude to the privilege secured to them by this article as one of the great triumphs of 1789, "but here again they are in error. The old mon- archy was quite as solicitous as more modern govern- ments to protect its servants from responsibility to the courts, like mere citizens. Between the two eras the only substantial difference is this: before the Revolu- tion government could not come to the rescue of its agents without having recourse to arbitrary and illegal measures; since then it has been legally authorized to let them violate the law.
When, under the old regime, an agent of the central government was prosecuted before any of the ordinary courts, an Order in Council usually forbade the judges to proceed with the case, and referred it to commis- sioners named in the order. The ground for the pro- ceeding was, according to the opinion of a councilor of that day, because the ordinary judges were sure to be biased against a government official, and thus the king's government was likely to be brought into con- tempt. Cases of evocation were not rare occurrences. They took place daily, and the lowest officials were as often protected by them as the highest. The most slender connection with government secured immu- nity from all authorities, save the Council only. A farmer liable to corvees prosecuted an overseer of the Bridge and Road department for having maltreated him. The Council evoked the case. The chief en- gineer reported confidentially to the intendant that " the overseer was no doubt much to blame, but that 78 THE OLD EEGIME 78 THE OLD EEGIME was no reason wliy the case should he allowed to take its course. It is of the highest importance to the de- partment of Bridges and Koads that the ordinary courts should not take cognizance of complaints against the overseers made by workmen "bound to service, for if they did, the works would soon be brought to a stand by the lawsuits which the public dislike of these offi- cials would excite."
On another occasion, a state contractor had taken from a neighboring field materials which he required, and used them. The intendant himself wrote to the comptroller-general, "I can not lay sufficient stress on the injury the government would incur if contractors were left at the mercy of the ordinary courts, for their principles are wholly at variance with those by which the administration is guided."
A century has elapsed since these lines were writ- ten, and yet these public officers would pass for con- temporaries of our own.
AND THE REVOLUTION. 79 CHAPTEE V.
HOW CENTRALIZATION CSEPT IN AMONG THE OLD AUTHORITIES, AND SUPPLANTED WITHOUT DESTROYING THEM.
LET US briefly recapitulate the points established in the three preceding chapters. -^ A single body, placed in the centre of the kingdom, administering government throughout the country; a single minister managing nearly all the business of the interior; a single agent directing the details in each province; no secondary administrative bodies, or au- thorities competent to act without permission: special tribunals to hear cases in which government is con- cerned, and shield its agents.^ What is this but the same centralization with which we are acquainted? As compared with ours, its forms are less shai*ply marked, its mode of action less regular, its existence less tranquil; but the system is the same. Nothing has been added, nothing taken away from the old plan; when the surrounding edifices were pulled down, it stood precisely as we see it.
Frequent imitations of the institutions I have just described have since made their appearance in various places, y but they were then peculiar to France. We shall see presently how gTeat an influence they exer- cised over the French Revolution and its sequel.
But how did these modern institutions find place among the ruins of the old feudal society?
By patient, adroit, persevering labor, rather than by HO. THE OLD EEGIME violent arbitrary effort. At the outbreak of the Revo- lution, the old administrative system of France was still standing, but a new system had been built up in- side it.
There is no reason for believing that this difficult exploit was the fruit of a deep scheme laid by the old government. On the contrary, it appears to have been accomplished almost unconsciously, instinct teaching the government and its various agents to acquire as much control as possible. The old officials were left in possession of their titles and their honors, but strip- ped of their power. They were led, not driven out of their domain. The idleness of one, the selfishness of another, the vices of all, were skillfully turned to ac- count. No attempt was made to convert them, but one and aU were quietly replaced by the intendant, whose name had never even been heard at tlie time they were born.
The only obstacle in the way of the change was in the judiciary department; but there, as elsewhere, the government had contrived to seize the substance, leav- ing its rivals the outward show of power. It did not exclude the Parliaments from administrative business, but it gradually absorbed their duties till there was nothing for them to do.^ On some few rare occasions, as, for example, in times of scarcity, when popular ex- citements tempted the ambition of magistrates, it al- lowed the Parliaments to exercise administrative au- thority for a brief interval, and let them make a noise which has often found an echo in history; but it soon silently resumed its fvmctions, and discreetly assumed sole control of men and things.
AND THE REVOLUTION. 81 A close study of the stmggles of the Parliaments against the power of the king will lead to the discov- ery that they were invariably on political issues, and never on points of administration. Quarrels usually began on the creation of new taxes — that is to say, the belligerents contended for legislative authority, to which neither had any claim, and not for administrative power.
This becomes more apparent as we approach the revolutionary era. As the people's feelings become in- flamed, the Parliament mixes more in politics; and simultaneously, the central government and its agents, with skill enhanced by experience, usurp more admin- istrative power. The Parliament grows daily less like an administration, and more like a tribune.
Day after day, the central government conquers new fields of action into which these bodies can not follow it. Novelties arise, pregnant with cases for which no precedents can be found in parliamentary routine: so- ciety, in a fever of activity, creates new demands, which the government alone can satisfy, and each of which swells its authority; for the sphere of all other admin- istrative bodies is defined and fixed; that of the gov- ernment alone is movable, and spreads with the exten- sion of civilization.
Impending revolution unsettles the mind of the French, and suggests a host of new ideas which the central government alone can realize: it is developed before it perishes. Like every thing else, it is brought to perfection, as is singularly proved by its archives. There is no resemblance between the comptroller-gen- eral and the intendant of 1780 and the like officials in D2 82 ' THE OLD REGIME *- 1740: the system lias been transformed. The agents are the same, but their spirit is different. Time, while it extends and exercises the power of the government, imparts to it new skill and regularity. Its latest usur- pations are marked by unusual forbearance; it rules more imperatively, but it is far less oppressive.
This great institution of the monarchy was thrown down by the first blow of the Ee volution: it was raised anew in 1800. It is not true that the principles of government which were then adopted were those of 1789, as so many persons have asserted; they were those of the old monarchy, which were restored, and have remained in force ever since.
If it be asked how this portion of the old regime could be bodily transplanted into and incorporated with the new social system, I reply that centralization was not abolished by the Eevolution, because it was, in fact, its preliminary and precursor; and I may add, that when a nation abolishes aristocracy^ centralization follows as a matter of course. It is much harder to prevent its establishment than to hasten it. Every thing tends toward unity of power, and it requires no small contrivance to maintain divisions of authority.
It was natural, then, that the democratic Revolu- tion, while it destroyed so many of the institutions of the old regime, should retain this one. Nor was cen- tralization so out of place in the social order created by the Revolution that it could not easily be mistaken for one of its fruits.
AND THE REVOLUTION. 83 CHAPTER VI.
OF OFFICIAL MANNERS AND CUST03IS UNDER THE OLD REGIME, IT is impossible to read the correspondence of intend- ants of tlie old regime with their superiors without being struck with the resemblance between the officials of that daj and those of our own. Like institutions produced like men; across the Revolutionary gulf which divides them thej appear hand in hand. As much may be said of the people governed. Never was the power of legislation to shape men's minds more powerfully illustrated.
Already in those days ministers were seized with a mania for seeing with their own eyes the details of every thing, and managing every thing at Paris. The mania increased with time and practice. Toward the close of the eighteenth century, a work-house could not be established in any corner of a distant province but the comptroller must insist on overseeing its expendi- ture, providing it with rules, choosing its site. If a poor-house were founded, the same minister requu-ed to know the names of all paupers relieved, their exits and their entrances. Before the middle of the century, in 1733, M. D'Argenson wrote, " Ministers are over- loaded with business details. Every tiling is done by them and through them, and if their information be not coextensive with their power, they are forced to let their clerks act as they please, and become the real masters of the country."
84 THE OLD REGIME Comptrollers-general were not content with business reports; they insisted on minute information about in- dividuals. Intendants expected the same from their sub-delegates, and rarely failed to repeat, word for word, in their reports, what these subordinates stated in theirs, as though they were stating matters within their own knowledge.
A very extensive machinery was requisite before the government could know every thing and manage every thing at Paris. The amount of documents filed was enormous, and the slowness with which public busi- ness was transacted such that I have been unable to discover any case in which a village obtained permis- sion to raise its church steeple or repair its presbytery in less than a year. Generally speaking, two or three years elapsed before such petitions were granted.
The Council itself confessed, in a decree of 29th March, 1773, that " administrative forms cause infinite delays, and frequently give rise to very just com- plaints; yet these forms are all necessary."
I was under the impression that a taste for statistics was peculiar to the government officials of our own day: this I find to be an error. Toward the close of the old regime, printed forms were constantly sent to the intendant, who sent them on to his sub-delegates, who sent them on to the syndics, who filled the blanks. The subjects on which the comptroller thus sought in- formation were the character of lands and of their cul- tivation, the kind and quantity of produce raised, the number of cattle, and the customs of the people. In- formation thus obtained was fully as minute and as reliable as that which sub-prefects and mayors furnish AND THE REVOLUTION. 85 in our own day. Sub-delegates seem, from these tab- ular reports, to have formed in general an unfavora- ble judgment upon the character of the people. They reiterate the opinion that ''the peasant is naturally idle, and would not work if he could live without it." That economical doctrine appears to be very generally received among these government officials.
Nor is the official style of the two periods less strik- ingly similar. Official writers then, as now, affected a colorless, smooth, vague, diffuse style; each writer merged his identity in the general mediocrity of the body to which he belonged. Kead a prefect, you have read an intendant.
When, toward the close of the century, the peculi- arities of Diderot and Eousseau spread into the lan- guage of the day, the affected sensibility of these writers was adopted by the officials and even by state financiers. Official style, usually dry enough, then became unctuous and even tender. A sub-delegate complained to the intendant of Paris that his "feelings were so sensitive that he could not discharge the du- ties of his office without moments of poignant grief."
The government distributed, as it still does, certain sums in charity in each parish, on condition that the parishioners raised something on their side for the same purpose. When the sum raised by them was suffi- cient, the comptroller made a memorandum on the margin of the scheme of distribution, *' Good — express satisfaction;" but when it was considerable, he wrote, " Good — express satisfaction and sensibility." "^ Government officials, none of whom were of noble •descent, already formed a class apart, with feelings, SQ THE OLD REGIME traditions, virtues,, and notions of honor and dignity- all their own. Thej constituted the aristocracy of the new society, ready to take their rank as soon as the Eevolution had cleared the way.y A marked characteristic of the French government, even in those days, was the hatred it bore to every one, whether noble or not, who presumed to meddle with public affairs without its knowledge. It took fright at the organization of the least public body which ventured to exist without permission. It was disturbed by the formation of any free society. It could brook no association but such as it had arbitrarily formed, and over which it presided. Even manufac- turing companies displeased it. In a word,' it objected to people looking after their own concerns, and pre- ferred general inertia to rivalry. Still, as the French could not exist without some sort of liberty, they were permitted to discuss as freely as they chose all sorts of general and abstract theories on religion, philoso- phy, morals, and even politics. Provided its agents were not meddled with, the government had no objec- tion to attacks on the fundamental principles of socie- ty, and even on the existence of a God. Officials fan- cied these were no concerns of theirs.
Though the newspapers of those days, or, as they were usually called, the gazettes, contained more poet- ry than politics, they were none the less viewed with a jealous eye by the government. Careless about books, it was very strict with regard to journals, -and being unable to suppress them, it undertook to make them a government monopoly./ A circular, dated 1761, which I have seen, announced to all the intendants in AND THE REVOLUTION. 87 the kingdom that the Gazette de France would be thereafter composed under the eye of the king (Louis XV.), "his majesty desiring to render it interesting and superior to all others. You will, therefore," con- tinues the circular, " have the goodness to let me have a report of all events of interest within your province, especially such as hear upon natural philosophy and natural history, together with other singular and strik- ing occurrences." To the circular was attached a prospectus of the Gazette^ informing the public that, though it appeared oftener and contained more matter than its rival, its subscription price would be consid- erably less.
Armed with these documents, an intendant applied to his sub-delegates for information, but the latter re- plied that they had none to give. Then came a sec- ond letter from the minister, complaining bitterly of the dearth of news from the province in question, and winding up with, " His majesty commands me to say to you that it is his will that you give your serious attention to this affair, and issue the strictest orders to your subordinates." Under the pressure, the sub- delegates did their best. One reported that a salt- smuggler had been hanged, and had displayed great courage; another, that a woman in his neighborhood had been delivered of three girls at one birth; a third, that a terrible storm had taken place, but, happily, had done no mischief. A fourth declared that he had not been able, notwithstanding great exertions, to discover any news of interest, but that he took pleasure in sub- scribing personally to so useful a gazette, and would recommend all his neighbors to do the like. Still, 88 THE OLD REGIME 88 THE OLD REGIME these remarkable efforts seem to have produced inade- quate results, for it appears from a fresh letter that " the king, who has graciously deigned to give his at- tention to the best means of perfecting the Gazette^ and wishes to secure for this journal the superiority and fame which it deserves, has expressed much dissatis- faction at the manner in which his desires have been seconded." ^ History, it is easily perceived, is a picture-gallery containing a host of copies and very few originals.
It must be admitted, however, that the central gov- ernment of France never followed the example of those southern governments which seem to have sought to be despotic only in order to blight their realms. The former was always active, and often intelligently so. Its activity was often fruitless and even mischievous, however, because it essayed to achieve feats beyond its reach, and even impossibilities.
It seldom undertook, or soon abandoned projects of useful reform which demanded perseverance and en-^ ergy, but it was incessantly engaged in altering the laws. Eepose was never known in its domain. New rules followed each other with such bewildering ra^ pidity that its agents never knew which to obey of the multifarious commands they received. Municipal offi- cers complained to the comptroller-general of the ex- treme instability of the minor laws. " The financial regulations alone," say they, " vary so constantly that it would require the whole time of a municipal officer, holding office for life, to acquire a knowledge of the new regulations as they appear from time to time."
When the substance of the laws was allowed to re- AND THE REVOLUTION. 89 main the same, their execution was varied. Those who have not studied the actual working of the old regime in the official records it left behind can form no idea of the contempt into which the laws fall, even in the minds of their administrators, when there are no po- litical meetings or newspapers to check the capricious activity and set bounds to the arbitrary tendencies of government officials.
Very few Orders in Council omitted to repeal former and frequently quite recent enactments, which, though quite regular, had never been carried into effect. No edict, or royal declaration, or registered letters patent was strictly carried out in practice. / The correspond- ence of the comptrollers-general and the intendants shows plainly that the government was constantly in the habit of tolerating exceptions to its rules. It rare- ly broke the law, but it daily bent it to either side, to suit particular cases or facilitate the transaction of business.'
An intendant wrote to the minister, in reference to an application of a state contractor to be relieved from paying town dues, "It is certain that, according to the strict letter of the laws I have cited, no one can claim exemption from these dues, but all who are acquaint- ed with business are aware that these sweeping pro- visions, like the penalties they impose, though con- tained in most of the edicts, declarations, and decrees establishing taxes, were not intended to be literally construed, or to exclude exceptional cases."
These words containnthe whole principle of the old regime. Strict rules, loosely enforced — such was its characteristic.
90 THE OLD REGIME