VOLUME X SLICE VIII France to Francis Joseph I. (continued 3)

In this period of the history of France were evolved and defined the essential principles of the old public law. There were, in the first place, the fundamental laws of the realm, which were true constitutional principles, established Fundamental laws of France. for the most part not by law but by custom, and considered as binding in respect of the king himself; so that, although he was sovereign, he could neither abrogate, nor modify, nor violate them. There was, however, some discussion as to what rules actually came under this category, except in the case of two series about which there was no doubt. These were, on the one hand, those which dealt with the succession to the crown and forbade the king to change its order, and those which proclaimed the inalienability of the royal domain, against which no title by prescription was valid. This last principle, introduced in the 14th century, had been laid down and defined by the edict of Moulins in 1566; it admitted only two exceptions: the formation of appanages (q.v.), and selling (engagement), to meet the necessities of war, with a perpetual option of redeeming it.

There was in the second place the theory of the rights, franchises and liberties of the Gallican Church, formed of elements some of which were of great antiquity, and based on the conditions which had determined the relations of the Gallican Church with the crown and papacy during the Great Schism and under the Pragmatic Sanction of Bourges, and defined at the end of the 16th and the beginning of the 17th century. This body of doctrine was defined by the writings of three men especially, Guy Coquille, Pierre Pithou and Pierre Dupuy, and was solemnly confirmed by the declaration of the clergy of France, or Déclaration des quatres articles of 1682, and by the edict which promulgated it. Its substance was based chiefly on three principles: firstly, that the temporal power was absolutely independent of the spiritual power; secondly, that the pope had authority over the clergy of France in temporal matters and matters of discipline only by the consent of the king; thirdly, that the king had authority over and could legislate for the Gallican Church in temporal matters and matters of discipline. The old public law provided a safeguard against the violation of these rules. This was the process known as the appel comme d’abus, formed of various elements, some of them very ancient, and definitely established during the 16th century. It was heard before the parlements, but could, like every other case, be evoked before the royal council. Its effect was to annul any act of the ecclesiastical authority due to abuse or contrary to French law. The clergy were, when necessary, reduced to obedience by means of arbitrary fines and by the seizure of their temporalities. The Pragmatic Sanction had been abrogated and replaced by the Concordat of 1515, concluded between Francis I. and Leo X., which remained in force until suppressed by the Constituent Assembly. The Concordat, moreover, preserved many of the enactments of the Pragmatic Sanction, notably those which protected the collation of the inferior benefices from the encroachments of the papacy, and which had introduced reforms in certain points of discipline. But in the case of the superior benefices (bishoprics and abbeys) election by the chapters was suppressed. The king of France nominated the candidate, to whom the pope gave canonical institution. As a matter of fact, the pope had no choice; he had to institute the nominee of the king, unless he could show his unworthiness or incapacity, as the result of inquiries regularly conducted in France; for the pope it was, as the ancient French authors used to say, a case of compulsory collation. The annates were re-established at the time of the Concordat, but considerably diminished in comparison with what they had been before the Pragmatic Sanction. We must add, to complete this account, that many of the inferior benefices, in France as in the rest of Christendom, were conferred according to the rules of patronage, the patron, whether lay or ecclesiastic, presenting a candidate whom the bishop was bound to appoint, provided he was neither incapable nor unsuitable. There was some difficulty in getting the Concordat registered by the parlement of Paris, and the latter even announced its intention of not taking the Concordat into account in those cases concerning benefices which might come before it. The crown found an easy method of making this opposition ineffectual, namely, to transfer to the Grand Conseil the decision of cases arising out of the application of the Concordat.

In the 16th century also, contributions to the public services drawn from the immense possessions of the clergy were regularized. Since the second half of the 12th century at least, the kings had in times of urgent need asked for subsidies from the church, and ever since the Saladin tithe (dime saladine) of Philip Augustus this contribution had assumed the form of a tithe, taking a tenth part of the revenue of the benefices for a given period. Tithes of this kind were fairly frequently granted by the clergy of France, either with the pope’s consent or without (this being a disputed point). After the conclusion of the Concordat, Leo X. granted the king a tithe (décime) under the pretext of a projected war against the Turks; hitherto concessions of this kind had been made by the papacy in view of the Crusades or of wars against heretics. The concession was several times renewed, until, by force of custom, the levying of these tithes became permanent. But in the middle of the 16th century the system changed. The crown was heavily in debt, and its needs had increased. The property of the clergy having been threatened by the states general of 1560 and 1561, the king proposed to them to remit the bulk of the tithes and other dues, in return for the payment by them of a sum equivalent to the proceeds of the taxes which he had mortgaged. A formal contract to this effect was concluded at Poissy in 1561 between the king and the clergy of France, represented by the prelates who were then gathered together for the Colloquy of Poissy with the Protestants, and some of those who had been sitting at the states general of Pontoise. The fulfilment of this agreement was, however, evaded by the king, who diverted part of the funds provided by the clergy from their proper purpose. In 1580, after a period of ten years which had been agreed on, a new assembly of the clergy was called together and, after protesting against this action, renewed the agreement, which was henceforward always renewed every ten years. Such was the definitive form of the contribution of the clergy, who also acquired the right of themselves assessing and levying these taxes on the holders of benefices. Thus every ten years there was a great assembly of the clergy, the members of which were elected. There were two stages in the election, a preliminary one in the dioceses and a further election in the ecclesiastical provinces, each province sending four deputies to the general assembly, two of the first rank, that is to say, chosen from the episcopate, and two of the second rank, which included all the other clergy. The dons gratuits (benevolences) voted by the assembly comprised a fixed sum equivalent to the old tithes and supplementary sums paid on one occasion only, which were sometimes considerable. The church, on her side, profited by this arrangement in order to obtain the commutation or redemption of the taxes affecting ecclesiastics considered as individuals. This settlement only applied to the “clergy of France,” that is to say, to the clergy of those districts which were united to the crown before the end of the 16th century. The provinces annexed later, called pays étrangers, or pays conquis, had in this matter, as in many others, an arrangement of their own. At last, under Louis XV. the edict of 1749, concernant les établissements et acquisitions des gens de mainmorte, was completely effective in subordinating the acquisition of property by ecclesiastical establishments to the consent and control of the crown, rendering them incapable of acquiring real property by bequests.

At the end of the 16th century a wise law had been made which, in spite of the traces which it bore of past struggles, had established a reasonable balance among the Christians of France. The edict of Nantes, in 1598, granted the Protestants full civil rights, liberty of conscience and public worship in many places, and notably in all the royal bailliages. The Catholics, whose religion was essentially a state religion, had never accepted this arrangement as final, and at last, in 1685, under Louis XIV., the edict of Nantes was revoked and the Protestant pastors expelled from France. Their followers were forbidden to leave the country, but many succeeded nevertheless in escaping abroad. The position of those who remained behind was peculiar. Laws passed in 1715 and 1724 established the legal theory that there were no longer any Protestants in France, but only vieux catholiques and nouveaux convertis. The result was that henceforth they had no longer any regular civil status, the registers containing the lists of Catholics enjoying civil rights being kept by the Catholic clergy.

The form of government established under Louis XIV. was preserved without any fundamental modification under Louis XV. After the death of Louis XIV., however, the regent, under the inspiration of the duc de St Simon, made trial of a system of which the latter had made a study while in a close correspondence with the duke of Burgundy. It consisted in substituting for the authority of the ministers, secretaries of state and controller-general councils, or governmental bodies, mainly composed of great lords and prelates. These only lasted for a few years, when a return was made to the former organization. The parlements had regained their ancient rights in consequence of the parlement of Paris having, in 1715, set aside the will of Louis XIV. as being contrary to the fundamental laws of the kingdom, in that it laid down rules for the composition of the council of regency, and limited the power of the regent. This newly revived power they exercised freely, and all the more so since they were the last surviving check on the royal authority. During this reign there were numerous conflicts between them and the government, the causes of this being primarily the innumerable incidents to which the bull Unigenitus gave rise, and the increase of taxation; proceedings against Jesuits also figure conspicuously in the action of the parlements. They became at this period the avowed representatives of the nation; they contested the validity of the registration of laws in the lits de justice, asserting that laws could only be made obligatory when the registration had been freely endorsed by themselves. Before the registration of edicts concerning taxation they demanded a statement of the financial situation and the right of examining the accounts. Finally, by the theory of the classes, which considered the various parlements of France as parts of one and the same body, they established among them a political union. These pretensions the crown refused to recognize. Louis XV. solemnly condemned them in a lit de justice of December 1770, and in 1771 the chancellor Maupeou took drastic measures against them. The magistrates of the parlement of Paris were removed, and a new parlement was constituted, including the members of the grand conseil, which had also been abolished. The cour des aides of Paris, which had made common cause with the parlement, was also suppressed. Many of the provincial parlements were reorganized, and a certain number of useful reforms were carried out in the jurisdiction of the parlement of Paris; the object of these, however, was in most cases that of diminishing its importance. These actions, the coup d’état of the chancellor Maupeou, as they were called, produced an immense sensation. The repeated conflicts of the reign of Louis XV. had already given rise to a whole literature of books, pamphlets and tracts in which the rights of the crown were discussed. At the same time the political philosophy of the 18th century was disseminating new principles, and especially those of the supremacy of the people and the differentiation of powers, the government of England also became known among the French. Thus men’s minds were being prepared for the Revolution.

The personal government of Louis XVI. from 1774 to 1789 was chiefly marked by two series of facts. Firstly, there was the partial application of the principles propounded by the French economists of this period, the Physiocrats, who had a political doctrine peculiar to themselves. They were not in favour of political liberty, but attached on the contrary to the absolute monarchy, of which they did not fear the abuses because they were convinced that so soon as they should be known, reason (évidence) alone would suffice to make the crown respect the “natural and essential laws of bodies politic” (Lois naturelles et essentielles des sociétés politiques, the title of a book by Mercier de La Rivière). On the other hand, they favoured civil and economic liberty. They wished, in particular, to decentralize the administration and restore to the landed proprietors the administration and levying of taxes, which they wished to reduce to a tax on land only. This school came into power with Turgot, who was appointed controller-general of the finances, and laid the foundations of many reforms. He actually accomplished for the moment one very important reform, namely, the suppression of the trade and craft gilds (communautés, jurandes et maîtrises). This organization, which was common to the whole of Europe (see Gilds), had taken definitive shape in France in the 13th and 14th centuries, but had subsequently been much abused. Turgot suppressed the privileges of the maîtres, who alone had been able to work on their own account, or to open shops and workshops, and thus proclaimed the freedom of labour, industry and commerce. However, the old organization, slightly amended, was restored under his successor Necker. It was Turgot’s purpose to organize provincial and other inferior assemblies, whose chief business was to be the assessment of taxes. Necker applied this idea, partially and experimentally, by creating a few of these provincial assemblies in various généralités of the pays d’élections. A general reform on these lines and on a very liberal basis was proposed by Calonne to the assembly of notables in 1787, and it was brought into force for all the pays d’élections, though not under such good conditions, by an edict of the same year. Louis XVI. had inaugurated his reign by the restoration of the parlements; all the bodies which had been suppressed by Maupeou and all the officials whom he had dismissed were restored, and all the bodies and officials created by him were suppressed. But it was not long before the old struggle between the crown and parlements again broke out. It began by the conservative opposition offered by the parlement of Paris to Turgot’s reforms. But the real struggle broke out in 1787 over the edicts coming from the assembly of notables, and particularly over the two new taxes, the stamp duty and the land tax. The parlement of Paris refused to register them, asserting that the consent of the taxpayers, as represented by the states general, was necessary to fresh taxation. The struggle seemed to have come to an end in September; but in the following November it again broke out, in spite of the king’s promise to summon the states general. It reached its height in May 1788, when the king had created a cour plénière distinct from the parlements, the chief function of which was to register the laws in their stead. A widespread agitation arose, amounting to actual anarchy, and was only ended by the recall of Necker to power and the promise to convoke the states general for 1789.

Various Institutions.—The permanent army which, as has been stated above, was first established under Charles VII., was developed and organized during the ancien régime. The gendarmerie or heavy cavalry was The army. continuously increased in numbers. On the other hand, the francs archers fell into disuse after Louis XI.; and, after a fruitless attempt had been made under Francis I. to establish a national infantry, the system was adopted for this also of recruiting permanent bodies of mercenaries by voluntary enlistment. First there were the “old bands” (vieilles bandes), chiefly those of Picardy and Piedmont, and at the end of the 16th century appeared the first regiments, the number of which was from time to time increased. There were also in the service and pay of the king French and foreign regiments, the latter principally Swiss, Germans and Scots. The system of purchase penetrated also to the army. Each regiment was the property of a great lord; the captain was, so to speak, owner of his company, or rather a contractor, who, in return for the sums paid him by the king, recruited his men and gave them their uniform, arms and equipment. In the second half of the reign of Louis XIV. appeared the militia (milices). To this force each parish had to furnish one recruit, who was at first chosen by the assembly of the inhabitants, later by drawing lots among the bachelors or widowers without children, who were not exempt. The militia was very rarely raised from the towns. The purpose for which these men were employed varied from time to time. Sometimes, as under Louis XIV., they were formed into special active regiments. Under Louis XV. and Louis XVI. they were formed into régiments provinciaux, which constituted an organized reserve. But their chief use was during war, when they were individually incorporated into various regiments to fill up the gaps.

Under Louis XV., with the duc de Choiseul as minister of war, great and useful reforms were effected in the army. Choiseul suppressed what he called the “farming of companies” (compagnie-ferme); recruiting became a function of the state, and voluntary enlistment a contract between the recruit and the state. Arms, uniform and equipment were furnished by the king. Choiseul also equalized the numbers of the military units, and his reforms, together with a few others effected under Louis XVI., produced the army which fought the first campaigns of the Revolution.

One of the most distinctive features of the ancien régime was excessive taxation. The taxes imposed by the king were numerous, and, moreover, hardly any of them fell on all parts of the kingdom. To this territorial inequality System of taxation. was added the inequality arising from privileges. Ecclesiastics, nobles, and many of the crown officials were exempted from the heaviest imposts. The chief taxes were the taille (q.v.), the aides and the gabelle (q.v.), or monopoly of salt, the consumption of which was generally made compulsory up to the amount determined by regulations. In the 17th and 18th centuries certain important new taxes were established: from 1695 to 1698 the capitation, which was re-established in 1701 with considerable modifications, and in 1710 the tax of the dixième, which became under Louis XV. the tax of the vingtièmes. These two imposts had been established on the principle of equality, being designed to affect every subject in proportion to his income; but so strong was the system of privileges, that as a matter of fact the chief burden fell upon the roturiers. The income of a roturier who was not exempt was thus subject in turn to three direct imposts: the taille, the capitation and the vingtièmes, and the apportioning or assessment of these was extremely arbitrary. In addition to indirect taxation strictly so called, which was very extensive in the 17th and 18th centuries, France under the ancien régime was subject to the traites, or customs, which were not only levied at the frontiers on foreign trade, but also included many internal custom-houses for trade between different provinces. Their origin was generally due to historical reasons; thus, among the provinces reputées étrangères were those which in the 14th century had refused to pay the aids for the ransom of King John, also certain provinces which had refused to allow customs offices to be established on their foreign frontier. Colbert had tried to abolish these internal duties, but had only succeeded to a limited extent.

The indirect taxes, the traites and the revenues of the royal domain were farmed out by the crown. At first a separate contract had been made for each impost in each élection, but later they were combined into larger lots, as is shown by the name of one of the customs districts, l’enceinte des cinq grosses fermes. From the reign of Henry IV. on the levying of each indirect impost was farmed en bloc for the whole kingdom, a system known as the fermes générales; but the real ferme générale, including all the imposts and revenues which were farmed in the whole of France, was only established under Colbert. The ferme générale was a powerful company, employing a vast number of men, most of whom enjoyed various privileges. Besides the royal taxes, seigniorial imposts survived under the form of tolls and market dues. The lords also often possessed local monopolies, e.g. the right of the common bakehouse (four banal), which were called the banalités.

The organization of the royal courts of justice underwent but few modifications during the ancien régime. The number of parlements, of cours des aides and of cours des comptes increased; in the 17th century the name of conseil supérieur Courts of law. was given to some new bodies which actually discharged the functions of the parlement, this being the period of the decline of the parlement. In the 16th century, under Henry II., had been created présidiaux, or courts of final jurisdiction, intended to avoid numerous appeals in small cases, and above all to avoid a final appeal to the parlements. Seigniorial courts survived, but were entirely subordinate to the royal jurisdictions and were badly officered by ill-paid and ignorant judges, the lords having long ago lost the right to sit in them in person. Their chief use was to deal with cases concerning the payment of feudal dues to the lord. Both lawyers and people would have preferred only two degrees of justice; and an ordinance of May 1788 realized this desire in the main. It did not suppress the seigniorial jurisdictions, but made their extinction a certainty by allowing litigants to ignore them and go straight to the royal judges. This was, however, reversed on the recall of Necker and the temporary triumph of the parlements.

The ecclesiastical jurisdictions survived to the end, but with diminished scope. Their competency had been considerably reduced by the Ordinance of Villers Cotterets of 1539, and by an edict of 1693. But a series of ingenious legal Ecclesiastical courts. theories had been principally efficacious in gradually depriving them of most of the cases which had hitherto come under them. In the 18th century the privilege of clergy did not prevent civil suits in which the clergy were defendants from being almost always taken before secular tribunals, and ever since the first half of the 17th century, for all grave offences, or cas privilégiés, the royal judge could pronounce a sentence of corporal punishment on a guilty cleric without this necessitating his previous degradation. The inquiry into the case was, it is true, conducted jointly by the royal and the ecclesiastical judge, but each of them pronounced his sentence independently. All cases concerning benefices came before the royal judges. Finally, the officialités had no longer as a rule any jurisdiction over laymen, even in the matter of marriage, except in questions of betrothals, and sometimes in cases of opposition to marriages. The parish priests, however, continued to enter declarations of baptisms, marriages and burials in registers kept according to the civil laws.

The general customs of the pays coutumiers were almost all officially recorded in the 16th century, definite procedure for this purpose having been adopted at the end of the 15th century. Drafts were prepared by the officials The “customs.” of the royal courts in the chief town of the district in which the particular customs were valid, and were then submitted to the government. The king then appointed commissioners to visit the district and promulgate the customs on the spot. For the purpose of this publication the lords, lay and ecclesiastical, of the district, with representatives of the towns and of various bodies of the inhabitants, were summoned for a given day to the chief town. In this assembly each article was read, discussed and put to the vote. Those which were approved by the majority were thereupon decreed (décrétés) by the commissioners in the king’s name; those which gave rise to difficulties were put aside for the parlement to settle when it registered the coutume. The coutumes in this form became practically written law; henceforward their text could only be modified by a formal revision carried out according to the same procedure as the first version. Throughout the 16th century a fair number of coutumes were thus revised (reformées), with the express object of profiting by the observations and criticisms on the first text which had appeared in published commentaries and notes, the most important of which were those of Charles Dumoulin. In the 16th century there had been a revival of the study of Roman law, thanks to the historical school, among the most illustrious representatives of which were Jacques Cujas, Hugues Doneau and Jacques Godefroy; but this study had only slight influence on practical jurisprudence. Certain institutions, however, such as contracts and obligations, were regulated throughout the whole of France by the principles of Roman law.

Legislation by ordonnances, édits, déclarations or lettres patentes, emanating from the king, became more and more frequent; but the character of the grandes ordonnances, which were of a far-reaching and comprehensive nature, underwent a change during this period. In the 14th, 15th and 16th centuries they had been mainly ordonnances de réformation (i.e. revising previous laws), which were most frequently drawn up after a sitting of the states general, in accordance with the suggestions submitted by the deputies. The last of this type was the ordinance of 1629, promulgated after the states general of 1614 and the assemblies of notables which had followed it. In the 17th and 18th centuries they became essentially codifications, comprising a systematic and detailed statement of the whole branch of law. There are two of these series of codifying ordinances: the first under Louis XIV., inspired by Colbert and carried out under his direction. The chief ordinances of this group are that of 1667 on civil procedure (code of civil procedure); that of 1670 on the examination of criminal cases (code of penal procedure); that of 1673 on the commerce of merchants, and that of 1681 on the regulation of shipping, which form between them a complete code of commerce by land and sea. The ordinance of 1670 determined the formalities of that secret and written criminal procedure, as opposed to the hearing of both parties in a suit, which formerly obtained in France; it even increased its severity, continuing the employment of torture, binding the accused by oath to speak the truth, and refusing them counsel save in exceptional cases. The second series of codifications was made under Louis XV., through the action of the chancellor d’Aguesseau. Its chief result was the regulation, by the ordinances of 1731, 1735 and 1747, of deeds of gift between living persons, wills, and property left in trust. Under Louis XVI. some mitigation was made of the criminal law, notably the abolition of torture.

The feudal régime, in spite of the survival of seigniorial courts and tolls, was no longer of any political importance; but it still furnished the common form of real property. The fief, although it still implied homage from the vassal, no longer involved any service on his part (excepting that of the arrière-ban due to the king); but when a fief changed hands the lord still exacted his profits. Tenures held by roturiers, in addition to some similar Land tenure. rights of transfer, were generally subject to periodical and fixed contributions for the profit of the lord. This system was still further complicated by tenures which were simply real and not feudal, e.g. that by payment of ground rent, which were superadded to the others, and had become all the heavier since, in the 18th century, royal rights of transfer had been added to the feudal rights. The inhabitants of the country districts were longing for the liberation of real property.

Serfdom had disappeared from most of the provinces of the kingdom; among all the coutumes which were officially codified, not more than ten or so still recognized this institution. Serfdom. This had been brought about especially by the agency of the custom by which serfs had been transformed into roturiers. An edict of Louis XVI. of 1779 abolished serfdom on crown lands, and mitigated the condition of the serfs who still existed on the domains of individual lords. The nobility still remained a privileged class, exempt from certain taxes. Certain offices were restricted to the nobility; according to an edict of Louis XVI. (1781) it was even necessary to be a noble in The three estates. order to become an officer in the army. In fact, the royal favours were reserved for the nobility. Certain rules of civil and criminal procedure also distinguished nobles from roturiers. The acquisition of fiefs had ceased to bring nobility with it, but the latter was derived from three sources: birth, lettres d’anoblissement granted by the king and appointment to certain offices. In the 17th and 18th centuries the peers of France can be reckoned among the nobility, forming indeed its highest grade, though the rank of peer was still attached to a fief, which was handed down with it; on the eve of the Revolution there were thirty-eight lay peers. The rest of the nation, apart from the ecclesiastics, consisted of the roturiers, who were not subject to the disabilities of the serfs, but had not the privileges of the nobility. Hence the three orders (estates) of the kingdom: the clergy, the nobility and the tiers état (third estate). An edict of Louis XVI. had made a regular civil status possible to the Protestants, and had thrown open offices and professions to them, though not entirely; but the exercise of their religion was still forbidden.

The Revolution.—With the Revolution France entered the ranks of constitutional countries, in which the liberty of men is guaranteed by fixed and definite laws; from this time on, she has had always (except in the interval between two revolutions) a written constitution, which could not be touched by the ordinary legislative power. The first constitution was that of 1791; the states general of 1789, transformed by their own will, backed by public opinion, into the Constituent Assembly, drew it up on their own authority. But their work did not stop there. They abolished the whole of the old public law of France and part of the criminal law, or rather, transformed it in accordance with the principles laid down by the political philosophy of the 18th century. The principles which were then proclaimed are still, on most points, the foundation of modern French law. The development resulting from this extraordinary impetus can be divided into two quite distinct phases: the first, from 1789 to the coup d’état of the 18th Brumaire in the year VIII., was the continuation of the impulse of the Revolution; the second includes the Consulate and the first Empire, and was, as it were, the marriage or fusion of the institutions arising from the Revolution with those of the ancien régime.

On the whole, the constitutional law of the Revolution is a remarkably united whole, if we consider only the two constitutions which were effectively applied during this first phase, that of the 3rd of September 1791, and that of the The Constitutions of the Revolution. 5th Fructidor in the year III. It is true that between them occurred the ultra-democratic constitution of the 24th of June 1793, the first voted by the Convention; but although this was ratified by the popular vote, to which it had been directly submitted, in accordance with a principle proclaimed by the Convention and kept in force under the Consulate and the Empire, it was never carried into effect. It was first suspended by the establishment of the revolutionary government strictly so called, and after Thermidor, under the pretext of completing it, the Convention put it aside and made a new one, being taught by experience. As long as it existed it was the sovereign assembly of the Convention itself which really exercised the executive power, governing chiefly by means of its great committees.

The constitution of 1791 was without doubt monarchical, in so far as it preserved royalty. The constitution of the year III. was, on the contrary, republican. The horror of monarchy was still so strong at that time that an executive college was created, a Directory of five members, one of whom retired every year; they were elected by a complicated and curious procedure, in which each of the two legislative councils played a distinct part. But this difference, though apparently essential, was not in reality very profound; this is proved, for example, by the fact that the Directory had distinctly more extensive powers than those conferred on Louis XVI. by the Constituent Assembly. On almost all points of importance the two constitutions were similar. They were both preceded by a statement of principles, a “Declaration of the Rights of Man and of the Citizen.” They were both based on two principles which they construed alike: the sovereignty of the people and the separation of powers. Both of them (with the exception of what has been said with regard to the ratification of constitutions after 1793) recognized only representative government. From the principle of the sovereignty of the people they had not deduced universal suffrage; though, short of this, they had extended the suffrage as far as possible. According to the constitution of 1791, in addition to the conditions of age and residence, an elector was bound to pay a direct contribution equivalent to three days’ work; the constitution of the year III. recognized the payment of any direct contribution as sufficient; it even conferred on every citizen the right of having himself enrolled, without any other qualification than a payment equivalent to three days’ work, and thus to become an elector. Further, neither of the two constitutions admitted of a direct suffrage; the elections were carried out in two stages, and only those who paid at a higher rating could be chosen as electors for the second stage. The executive power, which was in the case of both constitutions clearly separated from the legislative, could not initiate legislation. The Directory had no veto; Louis XVI. had with difficulty obtained a merely suspensive veto, which was overridden in the event of three legislatures successively voting against it. The right of dissolution was possessed by neither the king nor the Directory. Neither the king’s ministers nor those of the Directory could be members of the legislative body, nor could they even be chosen from among its ranks. The ministers of Louis XVI. had, however, thanks to an unfortunate inspiration of the Constituent Assembly of 1791, the right of entry to, and, to a certain extent, of speaking in the Legislative Assembly; the constitution of the year III. showed greater wisdom in not bringing them in any way into contact with the legislative power. The greatest and most notable difference between the two constitutions was that that of 1791 established a single chamber which was entirely renewed every two years; that of the year III., on the contrary, profiting by the lessons of the past, established two chambers, one-third of the members of which were renewed every year. Moreover, the two chambers, the Council of Five Hundred and the Council of Ancients, were appointed by the same electors, and almost the only difference between their members was that of age.

The Revolution entirely abolished the ancien régime, and in the first instance whatever remained of feudalism. The Constituent Assembly, in the course of its immense work of settlement, wished to draw distinctions, abolishing Abolition of the “ancien régime.” absolutely, without indemnity, all rights which had amounted in the beginning to a usurpation and could not be justified, e.g. serfdom and seigniorial courts of justice. On the other hand, it declared subject to redemption such feudal charges as had been the subject of contract or of a concession of lands. But as it was almost impossible to discover the exact origin of various feudal rights, the Assembly had proceeded to do this by means of certain legal assumptions which sometimes admitted of a proof to the contrary. It carefully regulated the conditions and rate of repurchase, and forbade the creation in the future of any perpetual charge which could not be redeemed: a principle that has remained permanent in French law. This was a rational and equitable solution; but in a period of such violent excitement it could not be maintained. The Legislative Assembly declared the abolishment without indemnity of all feudal rights for which the original deed of concession could not be produced; and to produce this was, of course, in most cases impossible. Finally, the Convention entirely abolished all feudal rights, and commanded that the old deeds should be destroyed; it maintained on the contrary, though subject to redemption, those tenures and charges which were solely connected with landed property and not feudal.

With feudalism had been abolished serfdom. Further, the Constituent Assembly suppressed nobility; it even forbade any one to assume and bear the titles, emblems and arms of nobility. Thus was established the equality of citizens before the law. The Assembly also proclaimed the liberty of labour and industry, and suppressed the corporations of artisans and workmen, the jurandes and maîtrises, as Turgot had done. But, in order to maintain this liberty of the individual, it forbade all associations between workers, or employers, fearing that such contracts would again lead to the formation of corporations similar to the old ones. It even forbade and declared punishable, as being contrary to the declaration of the rights of man and the citizen, combinations or strikes, or an agreement between workmen or employers to refuse to work or to give work except on given conditions. Such, for a long time, was French legislation on this point.

The Constituent Assembly gave to France a new administrative division, that into departments, districts, cantons and communes; and this division, which was intended to make the old provincial distinctions disappear, had to serve all Administrative reorganization. purposes, the department being the unit for all public services. This settlement was definitive, with the exception of certain modifications in detail, and exists to the present day. But there was a peculiar administrative organism depending on this arrangement. The constitution of 1791, it is true, made the king the titulary head of the executive power; but the internal administration of the kingdom was not actually in his hands. It was deputed, under his orders, to bodies elected in each department, district and commune. The municipal bodies were directly elected by citizens duly qualified; other bodies were chosen by the method of double election. Each body consisted of two parts: a council, for deliberative purposes, and a bureau or directoire chosen by the council from among its numbers to form the executive. These were the only instruments for the general administration and for that of the direct taxes. The king could, it is true, annul the illegal acts of these bodies, but not dismiss their members; he could merely suspend them from exercising their functions, but the matter then went before the Legislative Assembly, which could maintain or remit the suspension as it thought fit. The king had not a single agent chosen by himself for general administrative purposes. This was a reaction, though a very exaggerated one, against the excessive centralization of the ancien régime, and resulted in an absolute administrative anarchy. The organization of the revolutionary government partly restored the central authority; the councils of the departments were suppressed; the Committee of Public Safety and the “representatives of the people on mission” were able to remove and replace the members of the elected bodies; and also, by an ingenious arrangement, national agents were established in the districts. The constitution of the year III. continued in this course, simplifying the organization established by the Constituent Assembly, while maintaining its principle. The department had an administration of five members, elected as in the past, but having executive as well as deliberative functions. The district was suppressed. The communes retained only a municipal agent elected by themselves, and the actual municipal body, the importance of which was considerably increased, was removed to the canton, and consisted of the municipal agents from each commune, and a president elected by the duly qualified citizens of the canton. The Directory was represented in each departmental and communal administration by a commissary appointed and removable by itself, and could dismiss the members of these administrations.

The Constituent Assembly decided on the complete reorganization of the judicial organization. This was accomplished on a very simple plan, which realized that ideal of the two degrees of justice which, as we have noticed, was Judicial system. that of France under the ancien régime. In the lower degrees it created in each canton a justice of the peace (juge de paix), the idea and name of which were borrowed from England, but which differed very much from the English justice of the peace. He judged, both with and without appeal, civil cases of small importance; and, in cases which did not come within his competency, it was his duty to try to reconcile the parties. In each district was established a civil court composed of five judges. This completed the judicial organization, except for the court of cassation, which had functions peculiar to itself, never judging the facts of the case but only the application of the law. For cases coming under the district court, the Assembly had not thought fit to abolish the guarantee of the appeal in cases involving sums above a certain figure. But by a curious arrangement the district tribunals could hear appeals from one another. With regard to penal prosecutions, there was in each department a criminal court which judged crimes with the assistance of a jury; it consisted of judges borrowed from district courts, and had its own president and public prosecutor. Correctional tribunals, composed of juges de paix, dealt with misdemeanours. The Assembly preserved the commercial courts, or consular jurisdictions, of the ancien régime. There was a court of cassation, the purpose of which was to preserve the unity of jurisprudence in France; it dealt with matters of law and not of fact, considering appeals based on the violation of law, whether in point of matter or of form, and if such violation were proved, sending the matter before another tribunal of the same rank for re-trial. All judges were elected for a term of years; the juges de paix by the primary assembly of the canton, the district judges by the electoral assembly consisting of the electors of the second degree for the district, the members of the court of cassation by the electors of the departments, who were divided for the purpose into two series, which voted alternately. The Constituent Assembly did, it is true, require professional guarantees, by proof of a more or less extended exercise of the profession of lawyer from all judges except the juges de paix. But the system was really the same as that of the administrative organization. The king only appointed the commissaires du roi attached to the district courts, criminal tribunals and the court of cassation; but the appointment once made could not be revoked by him. These commissaries fulfilled one of the functions of the old ministère public, their duty being to demand the application of laws. The Convention did not change this general organization; but it suppressed the professional guarantees required in the case of candidates for a judgeship, so that henceforth all citizens were eligible; and it also caused new elections to take place. Moreover, the Convention, either directly or by means of one of its committees, not infrequently removed and replaced judges without further election. The constitution of the year III. preserved this system, but introduced one considerable modification. It suppressed the district courts, and in their place created in each department a civil tribunal consisting of twenty judges. The idea was a happy one, for it gave the courts more importance, and therefore more weight and dignity. But this reform, beneficial as it would be nowadays, was at the time premature, in view of the backward condition of means of communication.

The Constituent Assembly suppressed the militia and maintained the standing army, according to the old type, the numbers of which were henceforth to be fixed every year by the Legislative Assembly. The army was to be recruited by voluntary enlistment, careful rules for which were drawn up; the only The army. change was in the system of appointment to ranks; promotion went chiefly by seniority, and in the lower ranks a system of nomination by equals or inferiors was organized. The Assembly proclaimed, however, the principle of compulsory and personal service, but under a particular form, that of the National Guard, to which all qualified citizens belonged, and in which almost all ranks were conferred by election. Its chief purpose was to maintain order at home; but it could be called upon to furnish detachments for defence against foreign invasion. This was an institution which, with many successive modifications, and after various long periods of inactivity followed by a revival, lasted more than three-quarters of a century, and was not suppressed till 1871. For purposes of war the Convention, in addition to voluntary enlistments and the resources furnished by the National Guards, and setting aside the forced levy of 200,000 men in 1793, decided on the expedient of calling upon the communes to furnish men, a course which revived the principle of the old militia. But the Directory drew up an important military law, that of the 6th Fructidor of the year VI., which established compulsory military service for all, under the form of conscription strictly so called. Frenchmen aged from 20 to 25 (défenseurs conscrits) were divided into five classes, each including the men born in the same year, and were liable until they were 25 years old to be called up for active service, the whole period of service not exceeding four years. No class was called upon until the younger classes had been exhausted, and the sending of substitutes was forbidden. This law, with a few later modifications, provided for the French armies up to the end of the Empire.

The Constituent Assembly abolished nearly all the taxes of the ancien régime. Almost the only taxes preserved were the stamp duty and that on the registration of acts (the old contrôle and centième denier), and these were Taxation. completely reorganized; the customs were maintained only at the frontiers for foreign trade. In the establishment of new taxes the Assembly was influenced by two sentiments: the hatred which had been inspired by the former arbitrary taxation, and the influence of the school of the Physiocrats. Consequently it did away with indirect taxation on objects of consumption, and made the principal direct tax the tax on land. Next in importance were the contribution personnelle et mobilière and the patentes. The essential elements of the former were a sort of capitation-tax equivalent to three days’ work, which was the distinctive and definite sign of a qualified citizen, and a tax on personal income, calculated according to the rent paid. The patentes were paid by traders, and were also based on the amount of rent. These taxes, though considerably modified later, are still essentially the basis of the French system of direct taxation. The Constituent Assembly had on principle repudiated the tax on the gross income, much favoured under the ancien régime, which everybody had felt to be arbitrary and oppressive. The system of public contributions under the Convention was arbitrary and revolutionary, but the councils of the Directory, side by side with certain bad laws devised to tide over temporary crises, made some excellent laws on the subject of taxation. They resumed the regulation of the land tax, improving and partly altering it, and also dealt with the contribution personnelle et mobilière, the patentes, and the stamp and registration duties. It was at this time, too, that the door and window tax, which still exists, was provisionally established; there was also a partial reappearance of indirect taxation, in particular the octrois of the towns, which had been suppressed by the Constituent Assembly.

The Constituent Assembly gave the Protestants liberty of worship and full rights; it also gave Jews the status of citizen, which they had not had under the ancien régime, together with political rights. With regard to the Religious liberty. Catholic Church, the Assembly placed at the disposal of the nation the property of the clergy, which had already, in the course of the 18th century, been regarded by most political writers as a national possession; at the same time it provided for salaries for the members of the clergy and pensions for those who had been monks. It abolished tithes and the religious orders, and forbade the re-formation of the latter in the future. The ecclesiastical districts were next reorganized, the department being always taken as the chief unit, and a new church was organized by the civil constitution of the clergy, the bishops being elected by the electoral assembly of the department (the usual electors), and the curés by the electoral assembly of the district. This was an unfortunate piece of legislation, inspired partly by the old Gallican spirit, partly by the theories on civil religion of J.J. Rousseau and his school, and, together with the civic oath imposed on the clergy, it was a source of endless troubles. The constitutional church established in this way was, however, abolished as a state institution by the Convention. By laws of the years III. and IV. the Convention and the Directory, in proclaiming the liberty of worship, declared that the Republic neither endowed nor recognized any form of worship. Buildings formerly consecrated to worship, which had not been alienated, were again placed at the disposal of worshippers for this purpose, but under conditions which were hard for them to accept.

The Assemblies of the Revolution, besides the laws which, by abolishing feudalism, altered the character of real property, passed many others concerning civil law. The most important are those of 1792, passed by the Legislative Civil law. Assembly, which organized the registers of the état civil kept by the municipalities, and laid down rules for marriage as a purely civil contract. Divorce was admitted to a practically unlimited extent; it was possible not only for causes determined by law, and by mutual consent, but also for incompatibility of temper and character proved, by either husband or wife, to be of a persistent nature. Next came the laws of the Convention as to inheritance, imposing perfect equality among the natural heirs and endeavouring to ensure the division of properties. Illegitimate children were considered by these laws as on the same level with legitimate children. The Convention and the councils of the Directory also made excellent laws on the administration of hypothèques, and worked at the preparation of a Criminal law. Civil Code (see Code Napoléon). In criminal law their work was still more important. In 1791 the Constituent Assembly gave France her first penal code. It was inspired by humanitarian ideas, still admitting capital punishment, though accompanied by no cruelty in the execution; but none of the remaining punishments was for life. Long imprisonment with hard labour was introduced. Finally, as a reaction against the former system of arbitrary penalties, there came a system of fixed penalties determined, both as to its assessment and its nature, for each offence, which the judge could not modify. The Constituent Assembly also reformed the procedure of criminal trials, taking English law as model. It introduced the jury, with the double form of jury d’accusation and jury de jugement. Before the judges procedure was always public and oral. The prosecution was left in principle to the parties concerned, plaintiffs or dénonciateurs civiques, and the preliminary investigation was handed over to two magistrates; one was the juge de paix, as in English procedure at this period, and the other a magistrate chosen from the district court and called the directeur du jury. The Convention, before separating, passed the Code des délits et des peines of the 3rd Brumaire in the year IV. This piece of work, which was due to Merlin de Douai, was intended to deal with criminal procedure and penal law; but only the first part could be completed. It was the procedure established by the Constituent Assembly, but further organized and improved.

The Consulate and the Empire.—The constitutional law of the Consulate and the Empire is to be found in a series of documents called later the Constitutions de l’Empire, the constitution promulgated during the Hundred Days being consequently given the name of Acte additionnel aux Constitutions de l’Empire. These documents consist of (1) the Constitution of the 22nd Frimaire of the year VIII., the work of Sieyès and Bonaparte, the text on which the others were based; (2) the senatus consulte of the 16th Thermidor in the year X., establishing the consulate for life; and (3) the senatus consulte of the 28th Floréal in the year XII., which created the Empire. These constitutional acts, which were all, whether in their full text or in principle, submitted to the popular vote by means of a plébiscite, had all the same object: to assure absolute power to Napoleon, while preserving the forms and appearance of liberty. Popular suffrage was maintained, and even became universal; but, since the system was that of suffrage in many stages, which, moreover, varied very much, the citizens in effect merely nominated the candidates, and it was the Senate, playing the part of grand électeur which Sieyès had dreamed of as his own, which chose from among them the members of the various so-called elected bodies, even those of the political assemblies. According to the constitution of the year VIII., the first consul (to whom had been added two colleagues, the second and third consuls, who did not disappear until the Empire) possessed the executive power in the widest sense of the word, and he alone could initiate legislation. There were three representative assemblies in existence, elected as we have seen; but one of them, the Corps Législatif, passed laws without discussing them, and without the power of amending the suggestions of the government. The Tribunate, on the contrary, discussed them, but its vote was not necessary for the passing of the law. The Senate was the guardian and preserver of the constitution; in addition to its role of grand électeur, its chief function was to annul laws and acts submitted to it by the Tribunate as being unconstitutional. This original organization was naturally modified during the course of the Consulate and the Empire; not only did the emperor obtain the right of directly nominating senators, and the princes of the imperial family, and grant dignitaries of the Empire that of entering the Senate by right; but a whole body, the Tribunate, which was the only one which could preserve some independence, disappeared, without resort having been had to a plebiscite; it was modified and weakened by senatus consulte of the year X., and was suppressed in 1807 by a mere senatus consulte. The importance of another body, on the contrary, the conseil d’état, which had been formed on the improved type of the ancient conseil du roi, and consisted of members appointed by Napoleon and carefully chosen, continually increased. It was this body which really prepared and discussed the laws; and it was its members who advocated them before the Corps Législatif, to which the Tribunate also sent orators to speak on its behalf. The ministers, who had no relation with the legislative power, were merely the agents of the head of the state, freely chosen by himself. Napoleon, however, found these powers insufficient, and arrogated to himself others, a fact which the Senate did not forget when it proclaimed his downfall. Thus he frequently declared war upon his own authority, in spite of the provisions to the contrary made by the constitution of the year VIII.; and similarly, under the form of décrets, made what were really laws. They were afterwards called décrets-lois, and those that were not indissolubly associated with the political régime of the Empire, and survived it, were subsequently declared valid by the court of cassation, on the ground that they had not been submitted to the Senate as unconstitutional, as had been provided by the constitution of the year VIII.

This period saw the rise of a whole new series of great organic laws. For administrative organization, the most important was that of the 28th Pluviôse in the year VIII. It established as chief authority for each department a Administrative changes under Consulate and Empire. prefect, and side by side with him a conseil général for deliberative purposes; for each arrondissement (corresponding to the old district) a sub-prefect (sous-préfet) and a conseil d’arrondissement; and for each commune, a mayor and a municipal council. But all these officials, both the members of the councils and the individual agents, were appointed by the head of the state or by the prefect, so that centralization was restored more completely than ever. Together with the prefect there was also established a conseil de préfecture, having administrative functions, and generally acting as a court of the first instance in disputes and litigation arising out of the acts of the administration; for the Constituent Assembly had removed such cases from the jurisdiction of the civil tribunals, and referred them to the administrative bodies themselves. The final appeal in these disputes was to the conseil d’état, which was supreme judge in these matters. In 1807 was created another great administrative jurisdiction, the cour des comptes, after the pattern of that which had existed under the ancien régime.

Judicial organization had also been fundamentally altered. The system of election was preserved for a time in the case of the juges de paix and the members of the court of cassation, but finally disappeared there, even where Judicial changes. it had already been no more than a form. The magistrates were in principle appointed for life, but under the Empire a device was found for evading the rule of irremovability. For the judgment of civil cases there was a court of first instance in every arrondissement, and above these a certain number of courts of appeal, each of which had within its province several departments. The separate criminal tribunals were abolished in 1809 by the Code d’Instruction Criminelle, and the magistrates forming the cour d’assises, which judged crimes with the aid of a jury, were drawn from the courts of appeal and from the civil tribunals. The jury d’accusation was also abolished by the Code d’Instruction Criminelle, and the right of pronouncing the indictment was transferred to a chamber of the court of appeal. The correctional tribunals were amalgamated with the civil tribunals of the first instance. The tribunal de cassation, which took under the Empire the name of cour de cassation, consisted of magistrates appointed for life, and still kept its powers. The ministère public (consisting of imperial avocats and procureurs) was restored in practically the same form as under the ancien régime.

The former system of taxation was preserved in principle, Taxation. but with one considerable addition: Napoleon re-established indirect taxation on articles of consumption, which had been abolished by the Constituent Assembly; the chief of these were the duties on liquor (droits réunis, or excise) and the monopoly of tobacco.

The Concordat concluded by Napoleon with the papacy on the 26th Messidor of the year IX. re-established the Catholic religion in France as the form of worship recognized and endowed by the state. It was in principle drawn up on the lines of that of 1516, and assured to the The Concordat. head of the French state in his dealings with the papacy the same prerogatives as had formerly been enjoyed by the kings; the chief of these was that he appointed the bishops, who afterwards had to ask the pope for canonical institution. The territorial distribution of dioceses was preserved practically as it had been left by the civil constitution of the clergy. The state guaranteed the payment of salaries to bishops and curés; and the pope agreed to renounce all claims referring to the appropriation of the goods of the clergy made by the Constituent Assembly. Later on, a decree restored to the fabriques (vestries) such of their former possessions as had not been alienated, and the churches which had not been alienated were restored for the purposes of worship. The law of the 18th Germinal in the year X., ratifying the Concordat, reasserted, under the name of articles organiques du culte catholique, all the main principles contained in the old doctrine of the liberties of the Gallican Church. The Concordat did not include the restoration of the religious orders and congregations; Napoleon sanctioned by decrees only a few establishments of this kind.

One important creation of the Empire was the university. The ancien régime had had its universities for purposes of instruction and for the conferring of degrees; it had also, though without any definite organization, such The university. secondary schools as the towns admitted within their walls, and the primary schools of the parishes. The Revolution suppressed the universities and the teaching congregations. The constitution of the year III. proclaimed the liberty of instruction and commanded that public schools, both elementary and secondary, should be established. Under the Directory there was in each department an école centrale, in which all branches of human knowledge were taught. Napoleon, developing ideas which had been started in the second half of the 18th century, founded by laws and decrees of 1806, 1808 and 1811 the Université de France, which provided and organized higher, secondary and primary education; this was to be the monopoly of the state, carried on by its facultés, lycées and primary schools. No private educational establishment could be opened without the authorization of the state.

But chief among the documents dating from this period are the Codes, which still give laws to France. These are the Civil Code of 1804, the Code de Procédure Civile of 1806, the Code de Commerce of 1807, the Code d’Instruction Criminelle The Codes. of 1809, and the Code Pénal of 1810. These monumental works, in the elaboration of which the conseil d’état took the chief part, contributed, to a greater or less extent, towards the fusion of the old law of France with the laws of the Revolution. It was in the case of the Code Civil that this task presented the greatest difficulty (see Code Napoléon). The Code de Commerce was scarcely more than a revised and emended edition of the ordonnances of 1673 and 1681; while the Code de Procédure Civile borrowed its chief elements from the ordonnance of 1667. In the case of the Code d’Instruction Criminelle a distinctly new departure was made; the procedure introduced by the Revolution into courts where judgment was given remained public and oral, with full liberty of defence; the preliminary procedure, however, before the examining court (juge d’instruction or chambre des mises en accusation) was borrowed from the ordonnance of 1670; it was the procedure of the old law, without its cruelty, but secret and written, and generally not in the presence of both parties. The Code Pénal maintained the principles of the Revolution, but increased the penalties. It substituted for the system of fixed penalties, in cases of temporary punishment, a maximum and a minimum, between the limits of which judges could assess the amount. Even in the case of misdemeanours, it admitted the system of extenuating circumstances, which allowed them still further to decrease and alter the penalty in so far as the offence was mitigated by such circumstances. (See further under Napoleon I.)

The Restored Monarchy.—The Restoration and the Monarchy of July, though separated by a revolution, form one period in the history of French institutions, a period in which the same régime was continued and developed. This Constitutional monarchy. was the constitutional monarchy, with a parliamentary body consisting of two chambers, a system imitated from England. The same constitution was preserved under these two monarchies—the charter granted by Louis XVIII. in 1814. The revolution of 1830 took place in defence of the charter which Charles X. had violated by the ordonnances of July, so that this charter was naturally preserved under the “July Monarchy.” It was merely revised by the Chamber of Deputies, which had been one of the movers of the revolution, and by what remained of the House of Peers. In order to give the constitution the appearance of originating in the will of the people, the preface, which made it appear to be a favour granted by the king, was destroyed. The two chambers acquired the initiative in legislation, which had not been recognized as theirs under the Restoration, but from this time on belonged to them equally with the king. The sittings of the House of Peers were henceforth held in public; but this chamber underwent another and more fundamental transformation. The peers were nominated by the king, with no limit of numbers, and according to the charter of 1814 their appointment could be either for life or hereditary; but, in execution of an ordinance of Louis XVIII., during the Restoration they were always appointed under the latter condition. Under the July Monarchy their tenure of office was for life, and the king had to choose them from among twenty-two classes of notables fixed by law. The franchise for the election of the Chamber of Deputies had been limited by a system of money qualifications; but while, under the Restoration, it had been necessary, in order to be an elector, to pay three hundred francs in direct taxation, this sum was reduced in 1831 to two hundred francs, while in certain cases even a smaller amount sufficed. In order to be elected as a deputy it was necessary, according to the charter of 1814, to pay a thousand francs in direct taxation, and according to that of 1830 five hundred francs. From 1817 onwards there was direct suffrage, the electors directly electing the deputies. The idea of those who had framed the charter of 1814 had been to give the chief influence to the great landed proprietors, though the means adopted to this end were not adequate: in 1830 the chief aim had been to give a preponderating influence to the middle and lower middle classes, and this had met with greater success. The House of Peers, under the name of cour des pairs, had also the function of judging attempts and plots against the security of the state, and it had frequently to exercise this function both under the Restoration and the July Monarchy.

This was a period of parliamentary government; that is, of government by a cabinet, resting on the responsibility of the ministers to the Chamber of Deputies. The only interruption was that caused by the resistance of Charles X. at the end of his reign, which led to the revolution of July. Parliamentary government was practised regularly and in an enlightened spirit under the Restoration, although the Chamber had not then all the powers which it has since acquired. It is noteworthy that during this period the right of the House of Peers to force a ministry to resign by a hostile vote was not recognized. By the creation of a certain number of new peers, a fournée de pairs, as it was then called, the majority in this House could be changed when necessary. But the government of the Restoration had to deal with two extreme parties of a very opposite nature: the Ultras, who wished to restore as far as possible the ancien régime, to whom were due the acts of the chambre introuvable of 1816, and later the laws of the ministry of Villèle, especially the law of sacrilege and that voting compensation to the dispossessed nobles, known as the milliard des émigrés; and on the other hand the Liberals, including the Bonapartists and Republicans, who were attached to the principles of the Revolution. In order to prevent either of these parties from predominating in the chamber, the government made a free use of its power of dissolution. It further employed two means to check the progress of the Liberals; firstly, there were various alterations successively made in the electoral law, and the press laws, frequently restrictive in their effect, which introduced the censorship and a preliminary authorization in the case of periodical publications, and gave the correctional tribunals jurisdiction in cases of press offences. The best electoral law was that of 1817, and the best press laws were those of 1819; but these were not of long duration. Under the July Monarchy parliamentary government, although its machinery was further perfected, was not so brilliant. The majorities in the Chamber of Deputies were often uncertain, so much so, that more than once the right of dissolution was exercised in order to try by new elections to arrive at an undivided and certain majority. King Louis Philippe, though sober-minded, wished to exercise a personal influence on the policy of the cabinet, so that there were then two schools, represented respectively by Thiers and Guizot, one of which held the theory that “the king reigns but does not govern”; while the other maintained that he might exercise a personal influence, provided that he could rely on a ministry supported by a majority of the Chamber of Deputies. But the weak point in the July Monarchy was above all the question of the franchise. A powerful movement of opinion set in towards demanding an extension, some wishing for universal suffrage, but the majority proposing what was called the adjonction des capacités, that is to say, that to the number of qualified electors should be added those citizens who, by virtue of their professions, capacity or acquirements, were inscribed after them on the general list for juries. But the government obstinately refused all electoral reform, and held to the law of 1831. It also refused parliamentary reform, by which was meant a rule which would have made most public offices incompatible with the position of deputy, the Chamber of Deputies being at that time full of officials. The press, thanks to the Charter, was perfectly free, without either censorship or preliminary authorization, and press offences were judged by a jury.

In another respect also the Restoration and the July Monarchy were at one, the second continuing the spirit of the first, viz. in maintaining in principle the civil, legal and administrative institutions of the Empire. The preface to The system of the Empire retained. the charter of 1814 sanctioned and guaranteed most of the legal rights won by the Revolution; even the alienation of national property was confirmed. It was said, it is true, that the old nobility regained their titles, and that the nobility of the Empire kept those which Napoleon had given them; but these were merely titles and nothing more; there was no privileged nobility, and the equality of citizens before the law was maintained. Judicial and administrative organization, the system of taxation, military organization, the relations of church and state, remained the same, and the university also continued to exist. The government did, it is true, negotiate a new Concordat with the papacy in 1817, but did not dare even to submit it to the chambers. The most important reform was that of the law concerning recruiting for the army. The charter of 1814 had promised the abolition of conscription, in the form in which it had been created by the law of the year VI. The law of the 10th of March 1818 actually established a new system. The contingent voted by the chambers for annual incorporation into the standing army was divided up among all the cantons; and, in order to furnish it, lots were drawn among all the men of a certain class, that is to say, among the young Frenchmen who arrived at their majority that year. Those who were not chosen by lot were definitely set free from military service. The sending of substitutes, a custom which had been permitted by Napoleon, was recognized. This was the type of all the laws on recruiting in France, of which there were a good number in succession up to 1867. On other points they vary, in particular as to the duration of service, which was six years, and later eight years, under the Restoration; but the system remained the same.

The Restoration produced a code, the Code forestier of 1827, for the regulation of forests (eaux et forêts). In 1816 a law had abolished divorce, making marriage indissoluble, as it had been in the old law. But the best laws of this period were those on finance. Now, for the first time, was introduced the practice of drawing up regular budgets, voted before the year to which they applied, and divided since 1819 into the budget of expenditure and budget of receipts.

Together with other institutions of the Empire, the Restoration had preserved the exaggerated system of administrative centralization established in the year VIII.; and proposals for its relaxation submitted to the chambers had come to nothing. It was only under the July Monarchy that it was relaxed. The municipal law of the 21st of March 1831 made the municipal councils elective, and extended widely the right of voting in the elections for them; the maires and their assistants continued to be appointed by the government, but had to be chosen from among the members of the municipal councils. The law of the 22nd of June 1833 made the general councils of the departments also elective, and brought the adjonction des capacités into effect for their election. The powers of these bodies were enlarged in 1838, and they gained the right of electing their president. In 1833 was granted another liberty, that of primary education; but in spite of violent protestations, coming especially from the Catholics, secondary and higher education continued to be a monopoly of the state. Many organic laws were promulgated, one concerning the National Guard, which was reorganized in order to adapt it to the system of citizen qualifications; one in 1832 on the recruiting of the army, fixing the period of service at seven years; and another in 1834 securing the status of officers. A law of the 11th of June 1842 established the great railway lines. In 1832 the Code Pénal and Code d’Instruction Criminelle were revised, with the object of lightening penalties; the system of extenuating circumstances, as recognized by a jury, was extended to the judgment of all crimes. There was also a revision of Book III. of the Code de Commerce, treating of bankruptcy. Finally, from this period date the laws of the 3rd of May 1841, on expropriation for purposes of public utility, and of the 30th of June 1838, on the treatment of the insane, which is still in force. Judicial organization remained as it was, but the amount of the sum up to which civil tribunals of the first instance could judge without appeal was raised from 1000 francs to 1500, and the competency of the juges de paix was widened.

The Second Republic and the Second Empire.—From the point of view of constitutional law, the Second Republic and the Second Empire were each in a certain sense a return to the past. The former revived the tradition of the Assemblies of the Revolution; the latter was obviously and avowedly an imitation of the Consulate and the First Empire.

The provisional government set up by the revolution of the 24th of February 1848 proclaimed universal suffrage, and by this means was elected a Constituent Assembly, which sat till May 1849, and, after first organizing various Republican constitution of 1848. forms of another provisional government, passed the Republican constitution of the 4th of November 1848. This constitution, which was preceded by a preface recalling the Declarations of Rights of the Revolution, gave the legislative power to a single permanent assembly, elected by direct universal suffrage, and entirely renewed every three years. The executive authority, with very extensive powers, was given to a president of the Republic, also elected by the universal and direct suffrage of the French citizens. The constitution was not very clear upon the point of whether it adopted parliamentary government in the strict sense, or whether the president, who was declared responsible, was free to choose his ministers and to retain or dismiss them at his own pleasure. This gave rise to an almost permanent dispute between the president, who claimed to have his own political opinions and to direct the government, and the Assembly, which wished to carry on the traditions of cabinet government and to make the ministers fully responsible to itself. Consequently, in January 1851, a solemn debate was held, which ended in the affirmation of the responsibility of ministers to the Assembly. On the other hand, the president, though very properly given great power by the constitution, was not immediately eligible for re-election on giving up his office. Now Louis Napoleon, who was elected president on the 10th of December 1848 by a huge majority, wished to be re-elected. Various propositions were submitted to the Assembly in July 1851 with a view to modifying the constitution; but they could not succeed, as the number of votes demanded by the constitution for the convocation of a Constituent Assembly was not reached. Moreover, the Legislative Assembly elected in May 1849 was very different from the Constituent Assembly of 1848. The latter was animated by that spirit of harmony and, in the main, of adhesion to the Republic which had followed on the February Revolution. The new assembly, on the contrary, was composed for the most part of representatives of the old parties, and had monarchist aspirations. By the unfortunate law of the 31st of May 1850 it even tried by a subterfuge to restrict the universal suffrage guaranteed by the constitution. It suspended the right of holding meetings, but, on the whole, respected the liberty of the press. It was especially impelled to these measures by the growing fear of socialism. The result was the coup d’état of the 2nd of December 1851. A detail of some constitutional importance is to be noticed in this period. The conseil d’état, which had remained under the Restoration and the July Monarchy an administrative council and the supreme arbiter in administrative trials, acquired new importance under the Second Republic. The ordinary conseillers d’état (en service ordinaire) were elected by the Legislative Assembly, and consultation with the conseil d’état was often insisted on by the constitution or by law. This was the means of obtaining a certain modifying power as a substitute for the second chamber, which had not met with popular approval. During its short existence the Second Republic produced many important laws. It abolished the penalty of death for political crimes, and suppressed negro slavery in the colonies. The election of conseillers généraux was thrown open to universal suffrage, and the municipal councils were allowed to elect the maires and their colleagues. The law of the 15th of March 1850 established the liberty of secondary education, but it conferred certain privileges on the Catholic clergy, a clear sign of the spirit of social conservatism which was the leading motive for its enactment. Certain humanitarian laws were passed, applying to the working classes.

With the coup d’état of the 2nd of December 1851 began a new era of constitutional plebiscites and disguised absolutism. The proclamations of Napoleon on the 2nd of December contained a criticism of parliamentary government, Constitution of Jan. 14, 1852. and formulated the wish to restore to France the constitutional institutions of the Consulate and the Empire, just as she had preserved their civil, administrative and military institutions. Napoleon asked the people for the powers necessary to draw up a constitution on these principles; the plebiscite issued in a vast majority of votes in his favour, and the constitution of the 14th of January 1852 was the result. It bore a strong resemblance to the constitution of the First Empire after 1807. The executive power was conferred on Louis Napoleon for ten years, with the title of president of the Republic and very extended powers. Two assemblies were created. The conservative Senate, composed of ex officio members (cardinals, marshals of France and admirals) and life members appointed by the head of the state, was charged with the task of seeing that the laws were constitutional, of opposing the promulgation of unconstitutional laws, and of receiving the petitions of citizens; it had also the duty of providing everything not already provided but necessary for the proper working of the constitution. The second assembly was the Corps Législatif, elected by direct universal suffrage for six years, which passed the laws, the government having the initiative in legislation. This body was not altogether a corps des muets, as in the year VIII., but its powers were very limited; thus the general session assured to it by the constitution was only for three months, and it could only discuss and put to the vote amendments approved by the conseil d’état; the ministers did not in any way come into contact with it and could not be members of it, being responsible only to the head of the state, and only the Senate having the right of accusing them before a high court of justice. The conseil d’état was composed in the same way and had the same authority as it had possessed from the year VIII. to 1814; and it was the members of it who supported projected laws before the Corps Législatif. To this was added a Draconian press legislation; not only were press offences, many of which were mere expressions of opinion, judged not by a jury but by the correctional tribunals; but further, political papers could not be founded without an authorization, and were subject to a regular administrative discipline; they could be warned, suspended or suppressed without a trial, by a simple act of the administration. The constitution of January 1852 was still Republican in name, though less so than that of the year VIII. The period corresponding with the Consulate was also shorter in the case of Louis Napoleon. The year 1852 had not come to an end before a senatus consulte, that of the 10th of November, ratified by a plebiscite, re-established the imperial rank in favour of Napoleon III.; it also Restoration of the Empire. conferred on him certain new powers, especially with reference to the budget and foreign treaties; thus various cracks, which experience had revealed in the original structure of the Empire, were filled up. This period was called that of the empire autoritaire. Further features of it were the free appointment of the maires by the emperor, the oath of fidelity to him imposed on all officials, and the legal organization of official candidatures for the elections. Two measures marked the highest point reached by this system: the loi de sureté générale of the 27th of February 1858, which allowed the government to intern in France or Algeria, or to exile certain French citizens, without a trial. The other was the senatus consulte of the 17th of February 1858, which made the validity of candidatures for the Corps Législatif subject to a preliminary oath of fidelity on the part of the candidate. But for various causes, which cannot be examined here, a series of measures was soon to be initiated which were gradually to The empire libéral. lead back again to political liberty, and definitively to found what has been called the empire libéral. One by one the different rules and proceedings of parliamentary government as it had existed in France regained their force. The first step was the decree of the 24th of November 1860, which re-established for each ordinary session the address voted by the chambers in response to the speech from the throne. In 1867 this movement took a more decisive form. It led to a new constitution, that of the 21st of May 1870, which was again ratified by popular suffrage. While maintaining the Empire and the imperial dynasty, it organized parliamentary government practically in the form in which it had operated under the July Monarchy, with two legislative chambers, the Senate and the Corps Législatif, the consent of both of which was necessary for legislation, and which, together with the emperor, had the initiative in this matter. The laws of the 11th of May 1868 and the 6th of June 1868 restored to a certain extent the liberty of the press and of holding meetings, though without abolishing offences of opinion, or again bringing press offences under the jurisdiction of a jury. Laws of the 22nd and 23rd of July 1870 gave the conseils généraux, whose powers had been somewhat widened, the right of electing their presidents, and provided that the maires and their colleagues should be chosen from among the members of the municipal councils.

The legislation of the Second Empire led to a considerable number of reforms. Its chief aim was the development of Economic and social reforms under the Second Empire. commerce, industry and agriculture, and generally the material prosperity of the country. The Empire, though restricting liberty in political matters, increased it in economic matters. Such were the decrees and laws of 1852 and 1853 relating to land-banks (établissements de crédit foncier) and that of 1857 on trade-marks, those of 1863 and 1867 on commercial companies, that of 1858 on general stores (magasins généraux) and warrants, that of 1856 on drainage, that of 1865 on the associations syndicales de propriétaires, that of 1866 on the mercantile marine. The law of the 14th of June 1865 introduced into France the institution, borrowed from England, of cheques. But of still greater importance for economic development than all these laws were the Commercial treaties. treaties concluded by the emperor with foreign powers, in order to introduce, as far as possible, free exchange of commodities; the chief of these, which was the model of all the others, was that concluded with Great Britain on the 23rd of January 1860. Moreover, the law of the 25th of May 1864 admitted for the first time the right of strikes and lock-outs among workmen or employers, annulling articles 414 and following of the Code Pénal, which had so far made them a penal offence, even when not accompanied by fraudulent practices, threats or violence, tending to hinder the liberty of labour. The superannuation fund (caisse des retraites pour la vieillesse), supported by voluntary payments from those participating in it, which had been created by the law of the 18th of June 1850, was reorganized and perfected, and a law of the 11th of July 1868 established, with the guarantee of the state, two funds for voluntary insurance, one in case of death, the other against accidents occurring in industrial or agricultural employment. A decree of 1863 established in principle the freedom of bakeries, and another in 1864 that of theatrical management.

Criminal law was the subject of important legislation. Two codes were promulgated on special points, the codes of military justice for the land forces (1857) and for the naval forces (1858). But the common law was also largely Reforms in the criminal law. remodelled. A law of the 10th of June 1858, it is true, created certain new crimes, with a view to protecting the members of the imperial family, and that of the 17th of July 1856 increased the powers and independence of the juges d’instruction; but, on the other hand, useful improvements were introduced by laws of 1856 and 1865, and notably with regard to precautionary detention and provisional release with or without bail. A law of the 20th of May 1863 organized a simple and rapid procedure, copied from that followed in England before the police courts, for summary jurisdiction. A law of 1868 permitted the revision of criminal trials after the death of the condemned person. But the most far-reaching reforms took place in 1854, namely, the abolition of the total loss of civil rights which formerly accompanied condemnation to imprisonment for life, and the law of the 30th of May on penal servitude (travaux forcés) which substituted transportation to the colonies for the system of continental convict prisons. Finally, in 1863, there was a revision of the Code Pénal, which, in the process of lightening penalties, made a certain number of crimes into misdemeanours, and in consequence transferred Civil legislation. Taxation and army. the judgment of them from the assize courts to the correctional tribunals. In civil legislation may be noted the law of the 23rd of March 1855 on hypothecs (see Code Napoléon); that of the 22nd of July 1857, which abolished seizure of the person (contrainte par corps) for civil and commercial debts; and finally, the law of the 14th of July 1866, on literary copyright. The system of taxation was hardly modified at all, except for the establishment of a tax on the income arising from investments (shares and bonds of companies) in 1857, and the tax on carriages (1862). On the 1st of February 1868 was promulgated an important military law, which, however, passed the Corps Législatif with some difficulty. It asserted the principle of universal compulsory military service, at least, in time of war. It preserved, however, the system of drawing lots to determine the annual contingent to be incorporated into the standing army; the term of service was fixed at five years, and it was still permissible to send a substitute. But able-bodied men who were not included in the annual contingent formed a reserve force called the garde nationale mobile, each department organizing its own section. These gardes mobiles, though they were not effectively organized or exercised under the Empire, took part in the war of 1870-71.

The Third Republic.—The Third Republic had at first a provisional government, unanimously acclaimed by the people of Paris. It was accepted by France, exercised full powers, and sustained by no means ingloriously a desperate struggle against the enemy; a certain number of its décrets-lois are still in force. After the capitulation of Paris, a National Assembly was elected to treat with Germany. It was elected in accordance with the electoral law of 1849, which had been revived with a few modifications, and it met at Bordeaux to the number of 753 members on the 13th of February 1871. It was a sovereign assembly, since France had no longer a constitution, and for this very reason it claimed from the outset constituent powers; the Republican party at the time, however, contested this claim, the majority in the assembly being frankly monarchist, though divided as to the choice of a monarch. But for some time the National Assembly either could not or would not exercise this power, and up to 1875 affairs remained in a provisional state, legalized and regulated this time by the Assembly. This was an application, though unconscious, of a form of government which M. Grévy had proposed to the Constituent Assembly in 1848. There was a single assembly, with one man elected by it as head of the executive power (the first to be elected was M. Thiers, who received the title of president of the Republic in August 1871), who was responsible to the Assembly and governed with the help of ministers chosen by himself, who were also responsible to it. Thiers fell on the 24th of May 1873. His place was taken by Marshal MacMahon, on whom the Assembly later conferred, in November 1873, the position of president of the Republic for seven years, when the refusal of the comte de Chambord to accept the tricolour in place of the white flag of the Bourbons had made any attempt to restore the monarchy impossible. Henceforth the definitive adoption of the Republican form of government became inevitable, and the opinion of the country began to turn in this direction, as was shown by the elections of deputies which took place to fill up the gaps occurring in the Assembly. The Assembly, however, shrank from the inevitable solution, and when a discussion was begun in January 1875 on the projected constitutional laws prepared by the commission des trente, the only proposals made by the latter were for a more complete organization of the powers of one man, Marshal MacMahon. But on the 30th of January 1875 was adopted, by 353 votes to 352, an amendment by M. Wallon which provided for the election of an indefinite succession of presidents of the Definitive establishment of the Republic. Republic; this amounted to a definitive recognition of the Republic. In this connexion it has often been said that the Republic was established by a majority of one. This is not an accurate statement, for it was only the case on the first reading of the law; the majority on the second and third readings increased until it became considerable. There was a strong movement in the direction of a reconciliation between the parties; and there had been a rapprochement between the Republicans and the Right Centre. At the end of February were passed and promulgated two constitutional laws, that of the 25th of February 1875, on the organization of the public powers, and that of the 24th of February 1875, on the organization of the senate. In the middle of the year they were supplemented by a third, that of the 16th of July 1875, on the relations between the public powers.

Thus was built up the actual constitution of France. It differs fundamentally, both in form and contents, from previous constitutions. As to its form, instead of a single methodical text divided into an uninterrupted series of The French Constitution. articles, it consisted of three distinct laws. As to matter, it is obviously a work of an essentially practical nature, the result of compromise and reciprocal concessions. It does not lay down any theoretical principles, and its provisions, which were arrived at with difficulty, confine themselves strictly to what is necessary to ensure the proper operation of the governmental machinery. The result is a compromise between Republican principles and the rules of constitutional and parliamentary monarchy. On this account it has been accused, though unjustly, of being too monarchical. Its duration, by far the longest of any French constitution since 1791, is a sign of its value and vitality. It is in fact a product of history, and not of imagination. Its composition is as follows. The legislative power was given to two elective chambers, having equal powers, the vote of both of which is necessary for legislation, and both having the right of initiating and amending laws. The constitution assures them an ordinary session of five months, which opens by right on the second Tuesday in January. One house, the Chamber of Deputies, is elected by direct universal suffrage and is entirely renewed every four years; the other, the Senate, consists of 300 members, divided by the law of the 27th of February 1875 into two categories; 75 of the senators were elected for life and irremovable, and the first of them were elected by the National Assembly, but afterwards it was the Senate itself which held elections to fill up vacancies. The 225 remaining senators were elected by the departments and by certain colonies, among which they were apportioned in proportion to the population; they are elected for nine years, a third of the house being renewed every three years. The electoral college in each department which nominated them included the deputies, the members of the general council of the department and of the councils of the arrondissements, and one delegate elected by each municipal council, whatever the importance of the commune. This was practically a system of election in two and, partly, three degrees, but with this distinguishing feature, that the electors of the second degree had not been chosen purely with a view to this election, but chiefly for the exercise of other functions. The most important elements in this electoral college were the delegates from the municipal councils, and by giving one delegate to each, to Paris just as to the smallest commune in France, the National Assembly intended to counterbalance the power of numbers, which governed the elections for the Chamber of Deputies, and, at the same time, to give a preponderance to the country districts. The 75 irremovable senators were another precaution against the danger from violent waves of public opinion. The executive power was entrusted to a president, elected for seven years (as Marshal MacMahon had been in 1873), by the Chamber and the Senate, combined into a single body under the name of National Assembly. He is always eligible for re-election, and is irresponsible except in case of high treason. His powers are of the widest, including the initiative in legislation jointly with the two chambers, the appointment to all civil and military offices, the disposition, and, if he wish it, the leadership of the armed forces, the right of pardon, the right of negotiating treaties with foreign powers, and, in principle, of ratifying them on his own authority, the consent of the two chambers being required only in certain cases defined by the constitution. The nomination of conseillers d’état for ordinary service, whom the National Assembly had made elective, as in 1848, and elected itself, was restored to the president of the Republic, together with the right of dismissing them. But these powers he can only exercise through the medium of a ministry, politically and jointly responsible to the chambers, and forming a council, over which the president usually presides.