Book 3 — CHAPTER VII. (continued 2)

‘It has been announced, gentlemen, that the taxes are to be paid as they have been hitherto. Certainly, the taxes ought to be paid, but not as they have been hitherto. They ought to be paid as they are in England. We have many taxes there which you are free from; but the Tiers-Etat—the people—does not pay them: they fall entirely on the rich. Thus, in England, every window is taxed; but the man with only six windows to his house does not pay anything for them. A nobleman pays his twentieths[140] and his King’s-taxes, but the poor proprietor pays nothing on his little garden. The rich man pays for his horses, carriages and servants—he pays even for a licence to shoot his own partridges; the poor man is free from all these burdens. Nay, more, in England we have a tax paid by the rich to help the poor! So that, I say, if taxes are still to be paid, they should be paid differently. The English plan is far the better one.’

‘As my bad French,’ adds Young, ‘was much on a par with their patois, they understood me perfectly.’

Note (XXXVIII.)—Page 86, line 24.

The church at X., in the electoral district of Chollet, was going to ruin: it was to be repaired in the manner provided by the order of 1684 (16th December), viz., by a rate levied on all the inhabitants. When the collectors came to levy this rate, the Marquis de X., seigneur of the parish, refused to pay his proportion of the rate, as he meant to take on himself the entire repair of the chancel; the other inhabitants reply, very reasonably, that as lord of the manor and holder of the great tithes, he is bound to repair the chancel, and cannot, on the plea of this obligation, claim to escape his proportion of the common rate. This produces an order of the Intendant declaring the Marquis’s liability, and authorising the collector’s proceedings. Among the papers on the subject are more than ten letters from the Marquis, one more urgent than the other, begging hard that the rest of the parish may pay instead of himself, and, to obtain his prayer, stooping to address the Intendant as ‘Monseigneur,’ and even ‘le supplier.’

Note (XXXIX.)—Page 87, line 35.

AN INSTANCE OF THE WAY IN WHICH THE GOVERNMENT OF THE OLD MONARCHY RESPECTED VESTED RIGHTS, FORMAL CONTRACTS, AND THE FRANCHISES OF TOWNS OR CORPORATIONS.

A royal declaration ‘suspending in time of war repayment of all loans contracted by towns, villages, colleges, communities, hospitals, charitable houses, trade-corporations,[141] and others, repayable out of town dues by us conceded, though the instrument securing the said loans stipulates for the payment of interest in the case of non-payment at the stipulated terms.’

Thus not only is the obligation to repayment at the stipulated terms suspended, but the security itself is impaired. Such proceedings, which abounded under the old monarchy, would have been impracticable under a Government acting under the check of publicity or representative assemblies. Compare the above with the respect always shown for such rights in England, and even in America. The contempt of right in this instance is as flagrant as that of local franchises.

Note (XL.)—Page 89, line 21.

The case cited in the text is far from a solitary instance of an admission by the privileged class that the feudal burdens which weighed down the peasant reached even to themselves. The following is the language of an agricultural society, exclusively composed of this class, thirty years before the Revolution:—

‘Perpetual rent-charges, whether due to the State or to the lord, if at all considerable in amount, become so burdensome to the tenant that they cause first his ruin, and then that of the land liable to them; the tenant is forced to neglect it, being neither able to borrow on the security of an estate already too heavily burdened, nor to find purchasers if he wish to sell. If then payments were commutable, the tenant would readily be able to raise the means of commuting them by borrowing, or to find purchasers at a price that would cover the value both of the land and the payments with which it might be charged. A man always feels pleasure in keeping up and improving a property of which he believes himself to be in peaceable possession. It would be rendering a great service to agriculture to discover means of commutation for this class of payments. Many lords of manors, convinced of this, would readily give their aid to such arrangements. It would, therefore, be very interesting to discover and point out practicable means for thus ridding land from permanent burdens.’

Note (XLI.)—Page 90, line 38.

All public functionaries, even the agents of farmers of the revenue, were paid by exemptions from taxes—a privilege granted by the order of 1681. A letter from an Intendant to the minister in 1782 states, ‘Among the privileged orders the most numerous class is that of clerks in the Excise of salt, the public domain, the post-office, and other royal monopolies of all kinds. There are few parishes which do not include one; in many, two or three may be found.’

The object of this letter is to dissuade the minister from proposing an extension of exemption from taxation to the clerks and servants of these privileged agents; which extension, says the Intendant, is unceasingly backed by the Farmers-General, that they may thus get rid of the necessity of paying salaries.

Note (XLII.)—Page 91, line 1.

The sale of public employments, which were called offices, was not quite unknown elsewhere. In Germany some of the petty princes had introduced the practice to a small extent and in insignificant departments of administration. Nowhere but in France was the system followed out on a grand scale.

Note (XLIII.)—Page 95, line 17.

We must not be surprised, strange as it may appear and is, to find, under the old monarchy, public functionaries—many of them belonging to the public service, properly so called—pleading before the Parliaments to ascertain the limits of their own powers. The explanation of this is to be found in the fact that all these questions were questions of private property as well as of public administration. What is here viewed as an encroachment of the judicial power was a mere consequence of the error which the Government had committed in attaching public functions to certain offices. These offices being bought and sold, and their holders’ income being regulated by the work done and paid for, it was impossible to change the functions of an office without impairing some right for which money had been paid to a predecessor in the office.

To quote an instance out of a thousand:—At Mans the Lieutenant-General of Police carries on a prolonged suit with the Bureau de Finance of the town, to prove, that being charged with the duty of street-watching, he has a right to execute all legal instruments relative to the paving of the streets, and to the fees for such instruments.

The Bureau replies, that the paving is a duty thrown upon him by the nature of his office.

The question in this case is not decided by the king in council; the parliament gives judgment, as the principal matter in dispute is the interest of the capital devoted to the purchase of the office. The administrative question becomes a civil action.

Note (XLIV.)—Page 96, line 23.

ANALYSIS OF THE INSTRUCTIONS OF THE ORDER OF NOBILITY IN 1789.

The French Revolution is, I believe, the only one, at the beginning of which the different classes were able separately to bear authentic witness to the ideas they had conceived, and to display the sentiments by which they were moved before the Revolution had altered and defaced these ideas and feelings. This authentic testimony was recorded, as we all know, in the cahiers drawn up by the three Orders in 1789. These cahiers, or Instructions, were drawn up under circumstances of complete freedom and publicity, by each of the Orders concerned; they underwent a long discussion from those interested, and were carefully considered by their authors; for the Government of that period did not, whenever it addressed the nation, undertake both to put the question and to give the answer. At the time when the Instructions were drawn up, the most important parts of them were collected in three printed volumes, which are to be found in every library. The originals are deposited in the national archives, and with them the procès-verbaux of the assemblies by which they were drawn up, together with a part of the correspondence which passed between M. Necker and his agents on the subject of these assemblies. This collection forms a long series of folio volumes. It is the most precious document that remains to us from ancient France, and one which should be constantly consulted by those who wish to know the state of feeling amongst our forefathers at the time when the Revolution broke out.

I at first imagined that the abridgment printed in three volumes, which I mentioned above, might perhaps be the work of one party, and not a true representation of the character of this immense inquiry; but on comparing one with the other, I found the strongest resemblance between the large original picture and the reduced copy.

The extract from the cahiers of the nobility, which I am about to give, contains a true picture of the sentiments of the great majority of that Order. It clearly shows how many of their ancient privileges they were obstinately determined to maintain, how many they were not disinclined to give up, and how many they offered to renounce of their own accord. Above all, we see in full the spirit which animated them with regard to political liberty. The picture is a strange and sad one!

Individual Rights.—The nobles demand, first of all, that an explicit declaration should be made of the rights which belong to all men, and that this declaration should confirm their liberties and secure their safety.

Liberty of the Person.—They desire that the servitude to the glebe should be abolished wherever it still exists, and that means should be formed to destroy the slave trade and to emancipate the negroes; that every man should be free to travel or to reside wherever he may please, whether within or without the limits of the kingdom, without being liable to arbitrary arrest; that the abuses of police regulations shall be reformed, and that henceforth the police shall be under the control of the judges, even in cases of revolt; that no one shall be liable to be arrested or tried except by his natural judges; that, consequently, the state prisons and other illegal places of detention shall be suppressed. Some of them require the demolition of the Bastille. The nobility of Paris is especially urgent upon this point.

Are ‘Lettres Closes,’ or ‘Lettres de Cachet,’ to be prohibited?—If any danger of the State renders the arrest of a citizen necessary, without his being immediately brought before the ordinary courts of justice, measures should be taken to prevent any abuses, either by giving notice of the imprisonment to the Conseil d’État, or by some other proceeding.

The nobility demands the abolition of all special commissions, all courts of attribution or exemption, all privileges of committimus, all dilatory judgments, &c., &c., and requires that the severest punishment should be awarded to all those who should issue or execute an arbitrary order; that in common jurisdiction (the only one that ought to be maintained) the necessary measures should be taken for securing individual liberty, especially as regards the criminal; that justice should be dispensed gratuitously; and that useless jurisdictions should be suppressed. ‘The magistrates are instituted for the people, and not the people for the magistrates,’ says one of the memorials. A demand is even made that a council and gratuitous advocates for the poor should be established in each bailiwick; that the proceedings should be public, and permission granted to the litigants to plead for themselves; that in criminal matters the prisoner should be provided with counsel, and that in all stages of the proceedings the judge should have adjoined to him a certain number of citizens, of the same position in life as the person accused, who are to give their opinion relative to the fact of the crime or offence with which he is charged (referring on this point to the English constitution); that all punishments should be proportionate to the offence, and alike for all; that the punishment of death should be made more uncommon, and all corporal pains and tortures, &c., should be suppressed; that, in fine, the condition of the prisoner, and more especially of the simply accused, should be ameliorated.

According to these memorials, measures should be taken to protect individual liberty in the enlistment of troops for land or sea service; permission should be given to convert the obligation of military service into pecuniary contributions. The drawing of lots should only take place in the presence of a deputation of the three Orders together; in fact, that the duties of military discipline and subordination should be made to tally with the rights of the citizen and freemen, blows with the back of the sabre being altogether done away with.

Freedom and Inviolability of Property.—It is required that property should be inviolable, and placed beyond all attack, except for some reason of indispensable public utility; in which case the Government ought to give a considerable and immediate indemnity: that confiscation should be abolished.

Freedom of Trade, Handicraft and Industrial Occupation.—The freedom of trade and industry ought to be secured; and, in consequence, freedoms and other privileges of certain companies should be suppressed, and the custom-house lines all put back to the frontiers of the country.

Freedom of Religion.—The Catholic religion is to be the only dominant religion in France; but liberty of conscience is to be left to everybody: and the non-Catholics are to be restored to their civil rights and their property.

Freedom of the Press.—Inviolability of the Secrecy of the Post.—The freedom of the press is to be secured, and a law is to establish beforehand all the restrictions which may be considered necessary in the general interest. Ecclesiastical censorship to exist only for books relative to the dogmas of the Church; and in all other cases it is considered sufficient to take the necessary precautions of knowing the authors and printers. Many of the memorials demand that offences of the press should only be tried by juries.

The memorials unanimously demand above all that the secrecy of letters entrusted to the post should be inviolably respected, so that (as they say) letters may never be made to serve as means of accusation or testimony against a man. They denounce the opening of letters, crudely enough, as the most odious espionage, inasmuch as it institutes a violation of public faith.

Instruction, Education.—The memorials of the nobility on this point require no more than that active measures should be taken to foster education, that it should be diffused throughout the country, and that it should be directed upon principles conformable to the presumed destination of the children; and, above all, that a national education should be given to the children, by teaching them their duties and their rights of citizenship. They urge the compilation of a political catechism, in which the principal points of the constitution should be made clear to them. They do not, however, point out the means to be employed for the diffusion of instruction: they do no more than demand educational establishments for the children of the indigent nobility.

Care to be taken of the People.—A great number of the memorials lay much stress upon greater regard being shown to the people. Several denounce, as a violation of the natural liberty of man, the excesses committed in the name of the police, by which, as they say, quantities of artisans and useful citizens are arbitrarily, and without any regular examination, dragged to prison, to houses of detention, &c., frequently for slight offences, or even upon simple suspicion. All the memorials demand the definitive abolition of statute labour. The greater portion of the bailiwicks desire the permission to buy off the vassalage and toll-dues; and several require that the receipt of many of the feudal dues should be rendered less onerous, and that those paid upon franc-fief should be abolished. ‘It is to the advantage of the Government,’ says one of the memorials, ‘to facilitate the purchase and sale of estates.’ This reason was precisely the one given afterwards for the abolition at one blow of all the seignorial rights, and for the sale of property in the condition of mainmorte. Many of the memorials desire that the droit de colombier (exclusive right of keeping pigeons) should be rendered less prejudicial to agriculture. Demands are made for the immediate abolition of the establishments used as royal game-preserves, and known by the name of ‘capitaineries,’ as a violation of the rights of property. The substitution of taxes less onerous to the people in the mode of levying for those then existing is also desired.

The nobility demand that efforts should be made to increase the prosperity and comfort of the country districts; that establishments for spinning and weaving coarse stuffs should be provided for the occupation of the country people during the dead season of the year; that public granaries should be established in each bailiwick, under the inspection of the provincial authorities, in order to provide against times of famine, and to maintain the price of corn at a certain rate; that means should be studied to improve the agriculture of the country, and ameliorate the condition of the country people; that an augmentation should be given to the public works; and that particular attention should be paid to the draining of marsh lands, the prevention of inundations, &c.; and finally, that the prizes of encouragement to commerce and agriculture should be distributed in all the provinces.

The memorials express the desire that the hospitals should be broken up into smaller establishments, erected in each district; that the asylums for beggars (dépôts de mendicité) should be suppressed, and replaced by charitable workhouses (ateliers de charité); that funds for the aid of the sick and needy should be established under the management of the Provincial States, and that surgeons, physicians, and midwives should be distributed among the arrondissements at the expense of the provinces, to give their gratuitous services to the poor; that the courts of justice should likewise be gratuitous to the people; finally, that care should be taken for the establishment of institutions for the blind, the deaf and dumb, foundling children, &c.

Generally speaking, in all these matters the order of nobles does no more than express its desire for reform, without entering into any minor details of execution. It may be easily seen that it mixed much less with the inferior classes than the lower order of clergy; and thus, having come less in contact with their wretchedness, had thought less of the means for mitigating it.

Admissibility to Public Functions; Hierarchy of Ranks; Honorary Privileges of the Nobility.—It is more especially, or rather it is solely, upon the points that concern the hierarchy of ranks and the difference of social classes, that the nobility separates itself from the general spirit of the reforms required, and that, though willing to concede some few important points, it still clings to the principles of the old system. It evidently is aware that it is now struggling for its very existence. Its memorials, consequently, urgently demanded the maintenance of the clergy and the nobility as distinct orders. They even require that efforts should be made to maintain the order of nobility in all its purity, and that to this intent it should be rendered impossible to acquire the title of noble by payment of money; that it should no longer be attached to certain places about Court, and that it should only be obtained by merit, after long and useful services rendered to the State. They express the desire that men assuming false titles of nobility should be found out and prosecuted. All these memorials, in fact, make urgent protestations in favour of the maintenance of the noble in all his honours. Some even desire that a distinctive mark should be given to the nobles to ensure their exterior recognition. It is impossible to imagine anything more characteristic than this demand, or more indicative of the perfect similitude that must have already existed between the noble and the plebeian in spite of the difference of their social conditions. In general, in its memorials, the nobility, although it appears easily disposed enough to concede many of its more profitable rights, clings energetically to its honorary privileges. So greatly does it feel itself already hurried on by the torrent of democracy, and fear to sink in the stream, that it not only wants to preserve all the privileges it already enjoys, but is desirous of inventing others it never possessed. It is singular to remark how it has a presentiment of the impending danger without the actual perception of it.

With regard to public employments, the nobles require that the venality of offices should be done away with in all places connected with the magistracy, and that, in appointments of this kind, the citizens in general should be presented by the nation to the king, and nominated by him without any distinction, except as regards conditions of age and capacity. The majority also opines that the Tiers-État should not be excluded from military rank, and that every military man, who had deserved well of his country, should have the right to rise to the very highest grade. ‘The order of nobility does not approve of any law that closes the portals of military rank to the order of the Tiers-État,’ is the expression used by some of the memorials. But the nobles desire that the right of coming into a regiment as officer, without having first gone through the inferior grades, should be reserved to themselves alone. Almost all the Instructions, however, require the establishment of fixed regulations, applicable alike to all, for the bestowal of rank in the army, and demand that they should not be entirely left to favour, but be conferred, with the exception of those of superior officers, by right of seniority.

As regards the clerical functions, they require the re-establishment of the elective system in the bestowal of benefices, or at least the appointment by the King of a committee that may enlighten him in the distribution of these benefices.

Lastly, they express the opinion that, for the future, pensions ought to be given away with more discernment; that they ought no longer to be exclusively lavished upon certain families; that no citizen ought to have more than one pension, or receive the salary of more than one place at a time, and that all reversions of such emoluments should be abolished.

The Church and the Clergy.—In matters which do not affect its own interests and especial constitution, the nobility is far less scrupulous. In all that regards the privileges and organisation of the Church, its eyes are opened wide enough to existing abuses.

It desires that the clergy should have no privileges in matters of taxation, and that it should pay its debts without putting the burden of them on the nation: moreover, that the monastic orders should undergo a complete reformation. The greater part of the Instructions declare that these monastic establishments have wholly departed from the original spirit of their institution.

The majority of the bailiwicks express their desire that the tithes should be made less prejudicial to agriculture; many demand their abolition altogether. ‘The greater part of the tithes,’ says one of the memorials, ‘is collected by those incumbents who do the least towards giving spiritual succour to the people.’ It is easy to perceive, that the latter order has not much forbearance for the former in its remarks. No greater respect was shown in its treatment of the Church itself. Several bailiwicks formally admit the right of the States-General to suppress certain religious orders, and apply their revenues to some other use. Seventeen bailiwicks declare the competence of the States-General to regulate their discipline. Several complain that the holidays (jours de fête) are too frequent, are prejudicial to agriculture, and are favourable to drunkenness, and suggest that, in consequence, a great number of them ought to be suppressed and kept only on the Sundays.

Political Rights.—As regards political rights, the Instructions establish the right of every Frenchman to take his part in the government, either directly or indirectly; that is to say, the right to elect or be elected, but without disturbing the gradation of social ranks; so that no one may nominate or be nominated otherwise than in his own Order. This principle once established, it is considered that the representative system ought to be established in such wise, that the power of taking a serious part in the direction of affairs may be guaranteed to each Order of the nation.

With regard to the manner of voting in the Assembly of the States-General the opinions differ. Most desire a separate vote for each Order; others think that an exception ought to be made to this rule in the votes upon taxation; whilst others again consider that it should always be so. ‘The votes ought to be counted by individuals and not by Orders,’ say the latter. ‘Such a manner of proceeding being the only sensible one, and the only one tending to remove and destroy that egotism of caste, which is the source of all our evils—to bring men together and lead them to that result, which the nation has the right to expect from an Assembly, whose patriotism and great moral qualities should be strengthened by its united intelligence.’ As an immediate adoption of this innovation, however, might prove dangerous in the existing state of general feeling, many of the Instructions provide that it should be only decided upon with caution, and that the assembly had better decide whether it were not more prudent to put off the system of individual voting to the following States-General. The nobility demands that, in any case, each Order should be allowed to preserve that dignity which is due to every Frenchman, and consequently that the humiliating ceremonies, to which the Tiers-État was subjected under the old system, should be abolished, as, for instance, that of being obliged to kneel—‘inasmuch,’ says one of these documents, ‘as the spectacle of one man kneeling before another is offensive to the dignity of man, and emblematic of an inferiority between creatures equal by nature, incompatible with their essential rights.’

The System to be established in the Form of Government, and the Principles of the Constitution.—With regard to the form of government, the nobility desired the maintenance of the monarchical constitution, the preservation of the legislative, judicial, and executive powers in the person of the King, but, at the same time, the establishment of fundamental laws for the purpose of guaranteeing the rights of the nation in the exercise of these powers.

All the Instructions, consequently, declare that the nation has the right to assemble in States-General, composed of a sufficient number of members to ensure the independence of the Assembly; and they express the desire that, for the future, these States should assemble at fixed periodical seasons, as well as upon every fresh succession to the throne, without the issue of any writs of convocation. Many of the bailiwicks even advise the permanence of this Assembly. If the convocation of the States-General were not to take place within the period prescribed by the law, they should have the right of refusing the payment of taxes. Some few of the Instructions desire that, during the intervals between the sittings of the States, an intermediary commission should be appointed to watch over the administration of the kingdom; but most of them formally oppose the appointment of any such commission, as being unconstitutional. The reason given for this objection is curious enough. They feared lest so small an Assembly, left to itself in the presence of the Government, might be seduced by it.

The nobility desires that the Ministers should not possess the right of dissolving the Assembly, and should be punished by law for disturbing it by their cabals; that no public functionary, no one dependent in any way upon the Government, should be a deputy; that the person of the deputies should be inviolable, and that they should not be able (according to the terms of the memorials) to be prosecuted for any opinions they may emit; finally, that the sittings of the Assembly should be public, and that, in order that the nation might more generally take part in them, they should be made known by printed reports.

The nobility unanimously demands that the principles destined to regulate the government of the State should be applied to the administration of the different parts of the kingdom, and that, consequently, Assemblies made up of members freely elected, and for a limited period of time, should be formed in each district and each parish.

Many of the Instructions recommend that the functions of Intendants and Receveurs-Généraux ought to be done away with; all are of opinion that, in future, the Provincial Assemblies should alone take in hand the assessment of the taxes, and see to the special interests of the province. The same ought to be the case, they consider, with the Assemblies of each arrondissement and of each parish, which ought only to be accountable for the future to the Provincial States.

Distribution of the Powers of State.—Legislative Power.—As regards the distribution of the powers of the State between the assembled nation and the King, the nobility requires that no law should be considered effective until it has been consented to by the States-General and the King and entered upon the registers of the courts empowered to maintain the execution of the laws; that the States-General should have the exclusive attribute of determining and fixing the amount of the taxes; that all subsidies agreed upon should be only for the period that may elapse between one sitting of the States and the next; that all which may be levied or ordained, without the consent of the States, should be declared illegal, and that all ministers and receivers of such subsidies, who may have ordered or levied them, should be prosecuted as public defaulters; that, in the same way, no loan should be contracted without the consent of the States-General, but that a credit alone should be opened, fixed by the States, of which the Government might make use in case of war or any great calamity, taking care, however, that measures should be taken to convoke the States-General in the shortest possible time; that all the national treasuries should be placed under the superintendence of the States; that the expenses of each department should be fixed by them; and that the surest measures should be taken to see that the funds voted were not exceeded.

The greater part of the Instructions recommend the suppression of those vexatious taxes, known under the names of insinuation, entérinement, and centième denier, coming under the denomination of ‘Administration (Régie) of the Royal domains,’ upon the subject of which one of the memorials says: ‘The denomination of Régie is alone sufficient to wound the feelings of the nation, inasmuch as it puts forward, as belonging to the King, matters which are in reality a part of the property of the citizens;’ that all the domains, not alienated, should be placed under the administration of the Provincial States, and no ordinance, no edict upon financial matters, should be given without the consent of the three Orders of the nation.

It is evidently the intention of the nobility to confer upon the nation the whole of the financial administration, as well in the regulation of loans and taxes, as in the receipt of the same by the means of the General and Provincial Assemblies.

Judicial Power.—In the same way, in the judicial organisation, it has a tendency towards rendering the power of the judges, at least in a great measure, dependent upon the nation assembled. And thus many of the memorials declare ‘that the magistrates should be responsible for the fact of their appointments to the nation assembled;’ that they should not be dismissed from their functions without the consent of the States-General; that no court of justice, under any pretext whatever, should be disturbed in the exercise of its functions without the consent of these States; that the disputed matters in the Appeal Court, as well as those before the Parliament, should be decided upon by the States-General. The majority of the Instructions add that the judges ought only to be nominated by the King, upon presentation to him by the people.

Executive Power.—The executive power is exclusively reserved to the King; but necessary limits are proposed, in order to prevent its abuse.

For instance, in the administration, the Instructions require that the state of the accounts of the different departments should be rendered public by being printed; likewise, that before employing the troops in the defence of the country from without, the King should make known his precise intention to the States-General; that, in the country itself, the troops should never be employed against the citizens, except upon the requisition of the States-General; that the number of the troops should be limited, and that two-thirds of them alone should remain, in common times, upon the second effective list; and that the Government ought to keep away all the foreign troops it may have in its pay from the centre of the kingdom, and send them to the frontiers.

In perusing the Instructions of the nobility, the reader cannot fail to be struck, more than all, with the conviction that the nobles are so essentially of their own time. They have all the feelings of the day, and employ its language with perfect fluency; they talk of ‘the inalienable rights of man’ and ‘the principles inherent to the social compact.’ In matters appertaining to the individual, they generally look to his rights—in those appertaining to society, to its duties. The principles of their political opinions appear to them as absolute as those of morality, both one and the other being based upon reason. In expressing their desire to abolish the last remnants of serfdom, they talk of effacing the last traces of the degradation of the human race. They sometimes denominate Louis XVI. the ‘Citizen-King,’ and frequently speak of that crime of lèse-nation (treason to the nation), which afterwards was so frequently imputed to themselves. In their opinion, as in that of every one else, everything was to be expected from the results of public education, which the States were to direct. ‘The States-General,’ says one of the Cahiers, ‘must take care to inspire a national character by alterations in the education of children.’ Like the rest of their contemporaries, they show a lively and constant desire for uniformity in the legislation, excepting, however, in all that affected the existence of ranks. They are as desirous as the Tiers-État of administrative uniformity—uniformity of measures, &c. They point out all kinds of reforms, and expect that these reforms should be radical. According to their suggestions, all the taxes, without exception, should be abolished or transferred, and the whole judicial system changed, except in the case of the Seignorial Courts of Justice, which they considered only to need improvement. They, as well as all the other French, looked upon France as a field for experiment—a sort of political model-farm, in which every portion was to be turned up and every experiment tried, except in one special little corner, where their own privileges blossomed. It must be said to their honour, however, that even this was but little spared by them. In short, as may be seen by reading their memorials, all the nobles wanted in order to make the Revolution was that they should be plebeians.

Note (XLV.)—Page 97, line 2.

SPECIMEN OF THE RELIGIOUS GOVERNMENT OF AN ECCLESIASTICAL PROVINCE IN THE MIDDLE OF THE EIGHTEENTH CENTURY.

1. The Archbishop.

2. Seven Vicars-General.

3. Two Ecclesiastical Courts, denominated Officialités. One, called the Metropolitan Officialité, took cognisance of the judgments of the suffragans. The other, called the Officialité of the Diocess, took cognisance (1) of personal affairs between clerical men; (2) of the validity of marriages, as regarded the performance of the ceremony.

This latter court was composed of three judges, to whom were adjoined notaries and attorneys.

4. Two Fiscal Courts. The one, called the office of the Diocess (Bureau Diocésain), took cognisance, in the first instance, of all matters having reference to the dues levied on the clergy of the diocess. (As is well known, they were fixed by the clergy themselves.) This court was presided over by the Archbishop, and made up of six other priests. The other court gave judgment in appeals on causes, which had been brought before the other Bureaux Diocésains, of the ecclesiastical province.

All these courts admitted counsel and heard pleadings.

Note (XLVI.)—Page 97, line 10.

GENERAL FEELING OF THE CLERGY IN THE STATES AND PROVINCIAL ASSEMBLIES.

What has been said in the text respecting the States of Languedoc is applicable just as well to the Provincial Assemblies that met in 1779 and 1787, for instance, in Haute-Guienne. The members of the clergy, in this Provincial Assembly, were among the most enlightened, the most active, and the most liberal. It was the Bishop of Rhodez who proposed to publish the minutes of the Assembly.

Note (XLVII.)—Page 98, line 26.

This liberal disposition on the part of the priests in political matters, which displayed itself in 1789, was not only produced by the excitement of the moment, evidence of it had already appeared at a much earlier period. It exhibited itself, for instance, in the province of Berri as early as 1779, when the clergy offered to make voluntary donations to the amount of 68,000 livres, upon the sole condition that the provincial administration should be preserved.

Note (XLVIII.)—Page 100, line 11.

It must be carefully remarked that, if the political conditions of society were without any ties, the civil state of society still had many. Within the circle of the different classes men were bound to each other; something even still remained of that close tie which had once existed between the class of the Seigneurs and the people; and although all this only existed in civil society, its consequence was indirectly felt in political society. The men, bound by these ties, formed masses that were irregular and unorganised, but refractory beneath the hand of authority. The Revolution, by breaking all social ties, without establishing any political ties in their place, prepared the way at the same time for equality and servitude.

Note (XLIX.)—Page 101, line 5.

EXAMPLE OF THE MANNER IN WHICH THE COURTS EXPRESSED THEMSELVES UPON THE OCCASION OF CERTAIN ARBITRARY ACTS.

It appears, from a memorial laid before the Contrôleur-Général in 1781, by the Intendant of the Généralité of Paris, that it was one of the customs of that Généralité that the parishes should have two syndics—the one elected by the inhabitants in an Assembly presided over by the Subdélégué, the other chosen by the Intendant, and considered the overseer of the former. A quarrel took place between the two syndics in the parish of Rueil, the elected syndic not choosing to obey the chosen syndic. The Intendant, by means of M. de Breteuil, had the elected syndic put into the prison of La Force for a fortnight; he was arrested, then dismissed from his post, and another was put in his place. Thereupon the Parliament, upon the requisition of the imprisoned syndic, commenced proceedings at law, the issue of which I have not been able to find, but during which it declared that the imprisonment of the plaintiff and the nullification of his election could only be considered as arbitrary and despotic acts. The judicial authorities, it seems, were then sometimes rather hard in the mouth.

Note (L.)—Page 103, line 30.

So far from being the case that the enlightened and wealthy classes were oppressed and enslaved under the ancien régime, it may be said, on the contrary, that all, including the bourgeoisie, were frequently far too free to do all they liked; since the Royal authority did not dare to prevent members of these classes from constantly creating themselves an exceptional position, to the detriment of the people; and almost always considered it necessary to sacrifice the latter to them, in order to obtain their good will, or put a stop to their ill humour. It may be said that, in the eighteenth century, a Frenchman belonging to these classes could more easily resist the Government, and force it to use conciliatory measures with him, than an Englishman of the same position in life could have done at that time. The authorities often considered themselves obliged to use towards such a man a far more temporising and timid policy than the English Government would ever have thought itself bound to employ towards an English subject in the same category—so wrong is it to confound independence with liberty. Nothing is less independent than a free citizen.

Note (LI.)—Page 103, line 37.

REASON THAT FREQUENTLY OBLIGED THE ABSOLUTE GOVERNMENT IN THE ANCIENT STATE OF SOCIETY TO RESTRAIN ITSELF.

In ordinary times the augmentation of old taxes, and more especially the imposition of new taxes, are the only subjects likely to cause trouble to a Government, or excite a people. Under the old financial constitution of Europe, when any Prince had expensive desires, or plunged into an adventurous line of policy, or allowed his finances to become disordered, or (to take another instance) needed money for the purpose of sustaining himself by winning partisans by means of enormous gains or heavy salaries that they had never earned, or by keeping up numerous armies, by undertaking great public works, &c. &c., he was obliged at once to have recourse to taxation; a proceeding that immediately roused and excited every class, especially that class which creates revolutions—the people. Nowadays, in similar positions, loans are contracted, the immediate effect of which passes almost unperceived, and the final result of which is only felt by the succeeding generation.

Note (LII.)—Page 105, line 29.

As one example, among many others, the fact may be cited, that the principal domains in the jurisdiction of Mayenne were farmed out to Fermiers-Généraux, who took as Sous-Fermiers little miserable tillers of land, who had nothing of their own, and for whom they were obliged to furnish the most necessary farming utensils. It may be well conceived that Fermiers-Généraux of this kind had no great consideration for the farmers or due-paying tenants of the old feudal Seigneur, who had put them in his place, and that the exercise of feudalism in such hands as these was often more hard to bear than in the Middle Ages.

Note (LIII.)—Page 105, line 29.

ANOTHER EXAMPLE.

The inhabitants of Mantbazon had put upon the taille the Stewards of the Duchy, which was in possession of the Price de Rohan, although these Stewards only farmed in his name. This Prince (who must have been extremely wealthy) not only caused this ‘abuse,’ as he termed it, to be put a stop to, but obtained the reimbursement of 5344 livres 15 sous, which he had been improperly made to pay, and which was charged upon the inhabitants.

Note (LIV.)—Page 108, line 7.

EXAMPLE OF THE MANNER IN WHICH THE PECUNIARY CLAIMS OF THE CLERGY ALIENATED FROM THEM THE HEARTS OF THOSE WHOSE ISOLATED POSITION OUGHT TO HAVE CONCILIATED THEM.

The Curé of Noisai asserted that the inhabitants were obliged to undertake the repairs of his barn and wine-press, and asked for the imposition of a local tax for that purpose. The Intendant gave answer that the inhabitants were only obliged to repair the parsonage-house, and that the barn and wine-press were to be at the expense of this pastor, who was evidently more busied about the affairs of his farm than his spiritual flock (1767).

Note (LV.)—Page 110, line 4.

In one of the memorials sent up in 1788 by the peasants—a memorial written with much clearness and in a moderate tone, in answer to an inquiry instituted by a Provincial Assembly—the following passages occur:—‘In addition to the abuses occasioned by the mode of levying the taille, there exists that of the garnissaires. These men generally arrive five times during the collection of the taille. They are commonly invalides, or Swiss soldiers. They remain every time four or five days in the parish, and are taxed at 36 sous a day by the tax-receipt office. As to the assessment of the taille, we will forbear to point out the too well-known abuses occasioned by the arbitrary measures employed and the bad effects produced by the officious parts played by officers who are frequently incapable and almost always partial and vindictive. They have been the cause, however, of many disturbances and quarrels, and have occasioned proceedings at law, extremely expensive for the parties pleading, and very advantageous to the courts.’

Note (LVI.)—Page 110, line 39.

THE SUPERIORITY OF THE METHODS ADOPTED IN THE PROVINCES POSSESSING ASSEMBLIES (PAYS D’ÉTAT) RECOGNISED BY THE GOVERNMENT FUNCTIONARIES THEMSELVES.

A confidential letter, written by the Director of the Taxes to the Intendant, on June 3rd, 1772, has the following:—‘In the Pays d’États, the tax being a fixed tantième (per-centage), every taxpayer is subject to it, and really pays it. An augmentation upon this tantième is made in the assessment, in proportion to the augmentation required by the King upon the total supplied—for instance, a million instead of 900,000 livres. This is a simple operation; whilst in the Généralité the assessment is personal, and, so to say, arbitrary; some pay their due, others only the half, others the third, the quarter, or nothing at all. How, in this case, subject the amount of taxation to the augmentation of one-ninth?’

Note (LVII.)—Page 112, line 37.

THE MANNER IN WHICH THE PRIVILEGED CLASSES UNDERSTOOD AT FIRST THE PROGRESS OF CIVILISATION IN ROAD-MAKING.

Count X., in a letter to the Intendant, complains of the very little zeal shown in the establishment of a road in his neighbourhood. He says it is the fault of the Subdélégué who does not use sufficient energy in the exercise of his functions, and will not compel the peasants to do their forced labour (corvées).

Note (LVIII.)—Page 112, line 42.

ARBITRARY IMPRISONMENT FOR THE CORVÉE.

An example is given in a letter of a Grand Prévôt, in 1768:—‘I ordered yesterday,’ it says, ‘the imprisonment of three men (at the demand of M. C., Sub-Engineer), for not having done their corvée. Upon which there was a considerable agitation among the women of the village, who exclaimed, “The poor people are thought of quite enough when the corvée is to be done; but nobody takes care to see they have enough to live upon.”’

Note (LIX.)—Page 113, line 20.

The resources for the making of roads were of two kinds. The greater was the corvée, for all the great works that required only labour; the smaller was derived from the general taxation, the amount of which was placed at the disposition of the Ponts et Chaussées for the expenses of works requiring science. The privileged classes—that is to say, the principal landowners—though more interested than all in the construction of roads, contributed nothing to the corvée and, moreover, were still exempt otherwise, inasmuch as the taxation for the Ponts et Chaussées was annexed to the taille, and levied in the same manner.

Note (LX.)—Page 113, line 29.

EXAMPLE OF FORCED LABOUR IN THE TRANSPORT OF CONVICTS.

It may be seen by a letter, addressed by a Commissary at the head of the police department of convict-gangs, to the Intendant, in 1761, that the peasants were compelled to cart the galley-slaves on their way; that they executed this task with very ill will; and that they were frequently maltreated by the convict-guards, ‘inasmuch,’ says the Commissary, ‘as the guards are coarse and brutal fellows, and the peasants who undertake this work by compulsion are often insolent.’

Note (LXI.)—Page 113, line 32.

Turgot has given descriptions of the inconvenience and hardship of forced labour for the transport of military baggage, which, after a perusal of the office papers, appear not to have been exaggerated. Among other things, he says that its chief hardship consisted in the unequal distribution of a very heavy burden, inasmuch as it fell entirely upon a small number of parishes, which had the misfortune of being placed on the high road. The distance to be done was often one of five, six, or sometimes ten and fifteen leagues. In which case three days were necessary for the journey out and home again. The compensation given to the landowners only amounted to one-fifth of the expense that fell upon them. The period when forced labour was required was generally the summer, the time of harvest. The oxen were almost always overdriven, and frequently fell ill after having been employed at the work—so much so that a great number of landowners preferred giving a sum of 15 to 20 livres rather than supply a waggon and four oxen. The consequent confusion which took place was unavoidable. The peasants were constantly exposed to violence of treatment from the military. The officers almost always demanded more than was their due; and sometimes they obliged the drivers, by force, to harness saddle-horses to the vehicles at the risk of doing them a serious injury. Sometimes the soldiers insisted upon riding upon carts already overloaded; at other times, impatient at the slow progress of the oxen, they goaded them with their swords, and when the peasants remonstrated they were maltreated.

Note (LXII.)—Page 113, line 38.

EXAMPLE OF THE MANNER IN WHICH FORCED LABOUR WAS APPLIED TO EVERYTHING.

A correspondence arising, upon a complaint made by the Intendant of the Naval department at Rochefort, concerning the difficulties made by the peasants who were obliged by the corvée to cart the wood purchased by the navy contractors in the different provinces for the purposes of shipbuilding, shows that the peasants were in truth still (1775) obliged to do this forced labour, the price of which the Intendant himself fixed. The Minister of the Navy transferred the complaint to the Intendant of Tours, with the order that he must see to the supply of the carriages required. The Intendant, M. Ducluzel, refused to authorise this species of forced labour, whereupon the Minister wrote him a threatening letter, telling him that he would have to answer for his refusal to the King. The Intendant, to this, replied at once (December 11th, 1775) with firmness, that, during the ten years he had been Intendant at Tours, he never had chosen to authorise these corvées, on account of the inevitable abuses resulting from them, for which the price fixed for the use of the vehicles was no compensation. ‘For frequently,’ says his letter, ‘the animals are crippled by the weight of the enormous masses they are obliged to drag through roads as bad as the time of year when they are ordered out.’ What encouraged the Intendant in his resistance seems to have been a letter of M. Turgot, which is annexed to the papers on this matter. It is dated on July 30th, 1774, shortly after his becoming Minister; and it says that he himself never authorised these corvées at Limoges, and approves of M. Ducluzel for not authorising them at Tours.

It is proved by some portions of this correspondence that the timber contractors frequently exacted this forced labour even when they were not authorised to do so by the contracts made between themselves and the State, inasmuch as they thus profited at least one-third in the economy of their transport expenses. An example of the profit thus obtained is given by a Subdélégué in the following computation: ‘Distance of the transport of the wood from the spot where it is cut to the river, by almost impracticable cross-roads, six leagues; time employed in going and coming back, two days; reckoning (as an indemnity to the corvéables) the square foot at the rate of six liards a league, the whole amounts to 13 francs 10 sous for the journey—a sum scarcely sufficient to pay the actual expenses of the small landowner, of his assistant, and of the oxen or horses harnessed to his cart. His own time and trouble, and the work of his beasts, are dead losses to him.’ On May 17th, 1776, the Intendant was served by the Minister with a positive order from the King to have this corvée executed. M. Ducluzel being then dead, his successor, M. l’Escalopier, very readily obeyed, and published an ordinance declaring that the Subdélégué had to make the assessment of the amount of labour to be levied upon each parish, in consequence of which the different persons obliged to statute labour in the said parishes were constrained to go, according to the time and place set forth by the syndics, to the spot where the wood might happen to be, and cart it at the price regulated by the Subdélégué.

Note (LXIII.)—Page 115, line 22.

EXAMPLE OF THE MANNER IN WHICH THE PEASANTS WERE OFTEN TREATED.

In 1768 the King allowed a remittance of 2000 francs to be made upon the taille in the parish of Chapelle-Blanche, near Saumur. The curé wanted to appropriate a part of this sum to the construction of a belfry, in order to get rid of the sound of the bells that annoyed him, as he said, in his parsonage-house. The inhabitants complained and resisted. The Subdélégué took part with the curé, and had three of the principal inhabitants arrested during the night and put into prison.

Further examples may be found in a Royal order to imprison for a fortnight a woman who had insulted two of the mounted rural police; and another order for the imprisonment for a fortnight of a stocking-weaver who had spoken ill of the same police. In this latter case the Intendant replied to the Minister, that he had already put the man in prison—a proceeding that met with the approval of the Minister. This abuse of the maréchaussée had arisen from the fact of the violent arrest of several beggars, that seems to have greatly shocked the population. The Subdélégué, it appears, in arresting the weaver, made publicly known that all who should continue to insult the maréchaussée should be even still more severely punished.

It appears by the correspondence between the Subdélégué and their Intendant (1760-1770) that orders were given by him to them to have all ill-doing persons arrested—not to be tried, but to be punished forthwith by imprisonment. In one instance the Subdélégué asks leave of the Intendant to condemn to perpetual imprisonment two dangerous beggars whom he had arrested; in another we find the protest of a father against the arrest of his son as a vagabond, because he was travelling without his passport. Again, a householder of X. demands the arrest of a man, one of his neighbours, who had come to establish himself in the parish, to whom he had been of service, but who had behaved ill, and was disagreeable to him; and the Intendant of Paris writes to request the Intendant of Rouen to be kind enough to render this service to the householder, who is one of his friends.

In another case an Intendant replies to a person who wants to have some beggars set at liberty, saying that the Dépôt des Mendicants was not to be considered as a prison, but only as a house intended for the detention of beggars and vagabonds, as an ‘administrative correction.’ This idea has come down to the French Penal Code, so much have the traditions of the old monarchy, in these matters, maintained themselves.

Note (LXIV.)—Page 121, line 7.

It has been said that the character of the philosophy of the eighteenth century was a sort of adoration of human reason—a boundless confidence in its almighty power to transform at its will laws, institutions, and morals. But, upon examination, we shall see that, in truth, it was more their own reason that some of these philosophers adored than human reason. None ever showed less confidence in the wisdom of mankind than these men. I could name many who had almost as much contempt for the masses as for the Divinity. The latter they treated with the arrogance of rivals, the former with the arrogance of upstarts. A real and respectful submission to the will of the majority was as far from their minds as submission to the Divine will. Almost all the revolutionists of after days have displayed this double character. There is a wide distance between their disposition and the respect shown by the English and Americans to the opinion of the majority of their fellow-citizens. Individual reason in those countries has its own pride and confidence in itself, but is never insolent; it has thus led the way to freedom, whilst in France it has done nothing but invent new forms of servitude.

Note (LXV.)—Page 132, line 15.

Frederick the Great, in his Memoirs, has said: ‘Your great men, such as Fontenelle, Voltaire, Hobbes, Collins, Shaftesbury, Bolingbroke, have struck a mortal blow at religion. Men began to look into that which they had blindly adored; reason overthrew superstition; disgust for all the fables they had believed succeeded. Deism acquired many followers. As Epicureanism became fatal to the idolatrous worship of the heathen, so did Deism in our days to the Judaical visions adopted by our forefathers. The freedom of opinion prevalent in England contributed greatly to the progress of philosophy.’

It may be seen by the above passage that Frederick the Great, at the time he wrote those lines, that is to say, in the middle of the eighteenth century, still at that time looked upon England as the seat of irreligious doctrines. But a still more striking fact may be gathered from it, namely, that one of the sovereigns, the most experienced in the knowledge of man, and of affairs in general, does not appear to have the slightest idea of the political utility of religion. The errors of judgment in the mind of his instructors had evidently disordered the natural qualities of his own.

Note (LXVI.)—Page 150, line 1.

The spirit of progress which showed itself in France at the end of the eighteenth century appeared at the same time throughout all Germany, and was everywhere accompanied by the same desire to change the institutions of the time. A German historian gives the following picture of what was then going on in his own country:—

‘In the second half of the eighteenth century the new spirit of the age gradually introduced itself even into the ecclesiastical territories. Reforms were begun in them; industry and tolerance made their way in them on every side; and that enlightened absolutism, which had already taken possession of the large states, penetrated even there. It must be said at the same time, that at no period of the eighteenth century had these ecclesiastical territories possessed such remarkable and estimable Princes as during the last ten years preceding the French Revolution.’

The resemblance of this picture to that which France then offered is remarkable. In France, the movement in favour of amelioration and progress began at the same epoch; and the men the most able to govern appeared on the stage just at the time when the Revolution was about to swallow up everything.

It must be observed also how much all that portion of Germany was visibly hurried on by the movement of civilisation and political progress in France.

Note (LXVII.)—Page 151, line 1.

THE LAWS OF ENGLAND PROVE THAT IT IS POSSIBLE FOR INSTITUTIONS TO BE FULL OF DEFECTS AND YET NOT PREVENT THE ACCOMPLISHMENT OF THE PRINCIPAL END AND AIM FOR WHICH THEY WERE ESTABLISHED.

The power, which nations possess, of prospering in spite of the imperfections to be met with in secondary portions of their institutions, as long as the general principles and the actual spirit which animate those institutions are full of life and vigour, is a phenomenon which manifests itself with peculiar distinctness when the judicial constitution of England in the last century, as described by Blackstone, is looked into.

The attention is immediately arrested by two great diversities, that are very striking:—

First. The diversity of the laws.

Secondly. The diversity of the Courts that administer them.

I.—Diversity of the Laws.—(1.) The laws are different for England (properly so called), for Scotland, for Ireland, for the different European dependencies of Great Britain, such as the Isle of Man, the Channel Islands, &c., and, finally, for the British Colonies.

(2.) In England itself may be found four kinds of laws—the common law, statute laws, canon law, and equity. The common law is itself divided into general customs adopted throughout the whole kingdom, and customs specially belonging to certain manors or certain towns, or sometimes only to certain classes, such as the trades. These customs sometimes differ greatly from each other; as those, for instance, which, in opposition to the general tendency of the English laws require an equal distribution of property among all the children (gavelkind), and, what is still more singular, give a right of primogeniture to the youngest child (borough-English).

II.—Diversity of the Courts.—Blackstone informs us that the law has instituted a prodigious variety of different courts. Some idea of this may be obtained from the following extremely summary analysis:—

(1.) In the first place there were the Courts established without the limits of England, properly so called; such as the Scotch and Irish courts, which never were dependencies of the superior courts in England, although an appeal lies from these several jurisdictions to the House of Lords.

(2.) In England itself, if I am correct in my memory, among the classifications of Blackstone are to be found the following:

1. Eleven kinds of Courts of Common Law, four of which, it is true, seem to have already fallen into disuse.

2. Three kinds of courts, the jurisdiction of which extends to the whole country, but which take cognisance only of certain matters.

3. Ten kinds of courts, having a special character of their own. One of these kinds consists of Local Courts, established by different Acts of Parliament, and existing by tradition, either in London itself or in towns and boroughs in the counties. These Courts were so numerous, and were so extremely various in their constitution and in their regulations, that it would be out of the question to attempt to give a detailed account of them.

Thus, in England (properly so called) alone, if Blackstone is to be believed, there existed, at the period when he wrote, that is to say, in the second half of the eighteenth century, twenty-four kinds of Courts, several of which were subdivided into a great number of individual courts, each of which had its special peculiarities. If we set aside those kinds, which appear at that time to have almost fallen into disuse, we shall then find eighteen or twenty.

If now the judicial system in itself be examined it will be found to contain all sorts of imperfections.

In spite of the multiplicity of the courts there was frequently a want of smaller courts, of primary instance, placed within the reach of those concerned, and empowered to judge on the spot, and at little expense, all minor matters. This want rendered such legal proceedings perplexing and expensive. The same matters came under the jurisdiction of several courts; and thus an embarrassing uncertainty hung over the commencements of legal proceedings. Some of the Appeal Courts were also Courts of original jurisdiction—sometimes the Courts of Common Law, at other times the Courts of Equity. There was a great diversity of Appeal Courts. The only central point was that of the House of Lords. The administrative litigant was not separated from the ordinary litigant—a fact which, in the eyes of most French legal men, would appear a monstrous anomaly. All these courts, moreover, looked for the grounds of their judgments in four different kinds of legislation; that of the Courts of Equity was established upon practice and tradition, since its very object was most frequently to go against custom and statute, and to correct, by the rules of the system framed by the Judges in Equity, all that was antiquated or too harsh in statute and custom.

These blemishes were very great; and if the enormous old machine of the English judicial system be compared with the modern construction of that of France, and the simplicity, consistence, and natural connexity to be observed in the latter, with the remarkable complication and incoherence of the former, the errors of the English jurisprudence will appear greater still. Yet there is not a country in the world in which, in the days of Blackstone, the great ends of justice are more completely attained than in England; that is to say, no country in which every man, whatever his condition of life—whether he appeared in court as a common individual or a Prince—was more sure of being heard, or found in the tribunals of his country better guarantees for the defence of his property, his liberty, and his life.

It is not meant by this that the defects of the English judicial system were of any service to what I have here called the great ends of justice: it proves only that in every judicial organisation there are secondary defects that are only partially injurious to these ends of justice; and other principal ones, that not only prove injurious to them, but destroy them altogether, although joined to many secondary perfections. The first mentioned are the most easily perceived; they are the defects that generally first strike common minds: they stare one in the face, as the saying goes. The others are often more concealed; and it is not always the men the most learned in the law, and other men in the profession, who discover them and point them out.

It must be observed, moreover, that the same qualities may be either secondary or principal, according to the period of history or the political organisation of a country. In periods of aristocratic predominance and inequality everything that tends to lessen any privilege of any individual before the face of justice, to afford guarantees to the weak against the strong, and to give a predominance to the action of the state—which is naturally impartial in differences only occurring between subjects—becomes a principal quality; whereas it diminishes in importance in proportion to the inclination of the social state and political constitution towards democracy.

In studying the English judicial system upon these principles it will be found that, although it permitted the existence of every defect that could contribute to render justice in that country obscure, hampered, slow, expensive, and inconvenient, it had taken infinite precautions to prevent the strong from ever being favoured at the expense of the weak, or the State at the expense of the private individual. The more the observer penetrates into the details of the English legislation the more he will see that every citizen was provided with all sorts of weapons for his defence, and that matters were so arranged as to afford to every one the greatest number of guarantees possible against partiality, actual venality, and that sort of venality which is more common, and especially more dangerous in democratic times—the venality consisting of the servility of the courts towards the Government.

In this point of view the English judicial system, in spite of the numerous secondary errors that may still be found in it, appears to me superior to the French, which, although almost entirely untainted, it is true, by any one of these defects, does not at the same time offer in like degree the principal qualities that are to be found in it, which, although excellent in the guarantees it affords to every citizen in all disputes between individuals, fails precisely in that point that ought always to be strengthened in a democratic state of society like the French, namely, in the guarantees afforded to individuals against the State.

Note (LXVIII.)—Page 151, line 19.

ADVANTAGES ENJOYED BY THE GÉNÉRALITÉ OF PARIS.

This Généralité was as much favoured in charities bestowed by the Government as it was in the levying of taxes. An example may be found in a letter of the Contrôleur-Général to the Intendant of the Généralité of the Île-de-France (dated May 22nd, 1787), in which he informs the latter that the King had fixed the sum, which was to be employed upon works of charity during the year, in the Généralité of Paris, at 172,800 livres; and 100,000 livres, moreover, were destined for the purchase of cows, to be given to different husbandmen. It may be seen by this letter that the sum of 172,000 livres was to be distributed by the Intendant alone, with the proviso that he was to conform himself to the general rules already made known to him by the Government, and that he was to lay the account of the distribution before the Contrôleur-Général for approval.

Note (LXIX.)—Page 152, line 27.

The administration of the old monarchy was made up of a multitude of different powers, which had been established at different times, but generally for the purposes of the Treasury, and not of the Administration, properly so called, and which frequently had the same field of action. It was thus impossible to avoid confusion and contention otherwise than by each party acting but little, or even doing nothing at all. As soon as they made any efforts to rise above this sort of languor, they hampered and entangled each other’s movements; and thus it happened that the complaints made against the complication of the administrative machinery, and the confusion as to its different attributions, were very much more grievous during the years that immediately preceded the Revolution than thirty or forty years before. The political institutions of the country had not become worse—on the contrary, they had been greatly ameliorated; but the general political movement had become much more active.

Note (LXX.)—Page 157, line 30.

ARBITRARY AUGMENTATION OF THE TAXES.

What was here said by the King respecting the taille might have been said by him, with as much reason, concerning the vingtièmes, as may be seen by the following correspondence:—In 1772 the Contrôleur-Général Terray had decided upon a considerable augmentation (as much as 100,000 livres) upon the vingtièmes of the Généralité of Tours. It is evident that this measure caused M. Ducluzel, an able administrator and an honourable man, both sorrow and embarrassment; for, in a confidential letter, he says: ‘It is probably the facility with which the 200,000 livres’ (a previous augmentation) ‘have been given, that has encouraged the cruel interpretation and the letter of the month of June.’

In a private and confidential letter, which the Director of Contributions wrote thereupon to the Intendant, he says: ‘If the augmentations which have been demanded appear to you, on account of the general distress, to be as aggravating and as revolting as you give me to understand, it would be better for the province, which can have no other defence or protection than in your generous good-feeling, that you should spare it, at least, the rôles de supplément, a retroactive tax, that is always odious.’

It may be seen by this correspondence what a complete absence there was of any solid basis, and what arbitrary measures were exercised, each with honest intentions. Both Minister and Intendant laid the weight of the increased taxation sometimes upon the agricultural rather than the manufacturing interests, sometimes upon one kind of agriculture more than another (as the growth of vines, for instance), according as they fancied that the manufacturing or any one branch of the agricultural interest ought to be more tenderly handled.

Note (LXXI.)—Page 159, line 13.

EXPRESSIONS USED BY TURGOT RESPECTING THE COUNTRY PEOPLE IN THE PREAMBLE OF A ROYAL DECLARATION.

‘The rural communities consist, throughout the greater part of the kingdom, of poor peasants, who are ignorant and brutal, and incapable of self-administration.’

Note (LXXII.)—Page 163, line 24.

HOW IT WAS THAT REVOLUTIONARY IDEAS NATURALLY SPRANG UP IN MEN’S MINDS, EVEN UNDER THE OLD MONARCHY.

In 1779 an avocat addressed a petition to the Council for a decree to establish a maximum of the price of straw throughout the whole kingdom.

Note (LXXIII.)—Page 163, line 32.

The Head Engineer, in a letter written to the Intendant, in 1781, relative to a demand for an increase of indemnification, thus expresses himself: ‘The claimant does not pay heed to the fact that the indemnifications granted are an especial favour to the Généralité of Tours, and that people ought to consider themselves very fortunate in recovering only a part of their loss. If such compensations as the claimant requires were to be given, four millions would not suffice.’

Note (LXXIV.)—Page 167, line 39.

The Revolution did not break out on account of this prosperity, but that active, uneasy, intelligent, innovating, ambitious spirit, that was destined to produce the Revolution—the democratic spirit of new states of society—began to stir up everything, and, before it overthrew for a period the social state of France, was already strong enough to agitate and develop it.

Note (LXXV.)—Page 169, line 13.

COLLISION OF THE DIFFERENT ADMINISTRATIVE POWERS IN 1787.

The following may be taken as an example:—The intermediate commission of the Provincial Assembly of the Île-de-France claimed the administration of the Dépôt de Mendicité. The Intendant insisted upon its remaining in his own hands, ‘inasmuch,’ said he, ‘as this establishment is not kept up by the funds of the province.’ During the discussion, the intermediate commission communicated with the intermediate commissions of other provinces, in order to learn their opinions. Among other answers given to its questions, exists one from the intermediate commission of Champagne, informing that of the Île-de-France that it had met with the very same difficulties, and had offered the same resistance.

Note (LXXVI.)—Page 172, line 2.

In the minutes of the first Provincial Assembly of the Île-de-France, the following declaration may be found, proceeding from the mouth of the reporter of the committee:—‘Up to the present time the functions of syndic, which are far more onerous than honourable, are such as to indispose from accepting them all those who unite a sufficient competency to the intelligence to be expected from their position in life.’

Note (LXXVII.)—Page 173, line 9.

FEUDAL RIGHTS, WHICH STILL EXISTED AT THE PERIOD OF THE REVOLUTION, ACCORDING TO THE FEUDAL LAWYERS.

It is not the intention of the author here to write a treatise upon feudal rights, and, least of all, to attempt any research into their possible origin. It is simply his desire to point out those which were still exercised in the eighteenth century. These rights played so important a part at that time, and have since retained so large a space in the imagination of the very persons who have no longer anything to suffer from them, that it was a most interesting task to find out precisely what they were when the Revolution destroyed them all. For this purpose a great number of terriers, or rolls of feudal manors, were studied,—those of the most recent date being selected. But this manner of proceeding led to nothing; for the feudal rights, although regulated by a legal code, which was the same throughout the whole of feudal Europe, were infinitely various in their kinds, according to the province, or even the districts, where they existed. The only system, then, which appeared likely to lead, in an approximate manner, to the required result, was the following:—These feudal rights were continually giving rise to all sorts of disputes and litigation. In these cases it was necessary to know how these rights were acquired, how they were lost, in what they consisted exactly, which were the dues that could only be collected by virtue of a Royal patent, which those that could only be established by private title, which those on the contrary that had no need of formal titles, and might be collected upon the strength of local custom, or even in virtue of long usage. Again, when they were for sale, it was necessary to know in what manner they were to be valued, and what capital each of them represented, according to its importance. All these points, so immediately affecting a thousand pecuniary interests, were subject to litigation; and thus was constituted a distinct class of legal men, whose only occupation it was to elucidate them. Many of these men wrote during the second half of the eighteenth century; some even just upon the threshold of the Revolution. They were not lawyers, properly speaking, but practitioners, whose only task it was to point out to professional men the rules to be followed in this special and little attractive portion of legal science. By an attentive study of these feudistes, a tolerably minute and distinct idea of a subject, the size and confusion of which is at first bewildering, may be at last come at. The author gives below the most succinct summary he was able to make of his work. These notes are principally derived from the work of Edmé de Fréminville, who wrote about the year 1750, and from that of Renauldon, written in 1765, and entitled ‘Traité historique et pratique des Droits Seigneuriaux.’

The cens (that is to say, the perpetual quit-rent, in kind and in money, which, by the feudal laws, was affixed to the possession of certain lands) still, in the eighteenth century, affected most deeply the position of a great number of landed proprietors. This cens continued to be indivisible, that is to say, the entire cens might be claimed of any one of the possessors of the property, subject to the cens at will. It was always irredeemable. No proprietor of any lands, subject to the cens, could sell them without being exposed to the retrait censuel, that is to say, without being obliged to let the property be taken back at the price of the sale; but this only took place in certain coutumes. The coutume of Paris, which was the most general, did not recognise this right.

Lods et Ventes.—It was a general rule that, in every part of the country where the coutume prevailed, the sale of every estate subject to the cens should produce what were called lods et ventes; in other words, the fines paid to the lords of the manor, upon the alienation of this kind of property. These dues were more or less considerable, according to the customs of the manor, but were everywhere considerable enough; they existed just as well in parts where the droit écrit (written law) was established. They generally consisted of one-sixth of the price, and were then named lods. But in these parts the lord of the manor had to establish his rights. In what was called pays écrit, as well as in pays coutumier, the cens gave the lord of the manor a privilege which took precedence of all other debts on the estate.

Terrage or Champart.—Agrier.—Tasque.—These dues consisted of a certain portion of the produce, which the lord of the manor levied upon lands subject to the cens. The amount varied according to the contracts or the customs of the place. This right is frequently to be met with in the eighteenth century. I believe that the terrage, even in pays coutumier, could only be claimed under express deed. The terrage was either seigneurial or foncier. It is not necessary to explain here the distinctions which existed between these two different kinds. Suffice it to say that the terrage foncier was fixed for thirty years, like the rentes foncières, whilst the terrage seigneurial was irredeemable. Lands subject to terrage could not be mortgaged without the consent of the lord of the manor.

Bordelage.—A right which only existed in the Nivernais and Bourbonnais countries, and which consisted in an annual quit-rent, paid in money, corn, and fowls, upon lands subject to the cens. This right entailed very rigorous consequences: non-payment of the dues during three years gave cause for the exercise of the commise or entry to the advantage of the lord of the manor. A tenant owing the bordelage was more open than any other to a variety of annoyances on his property. Sometimes the lord of the manor possessed the right of claiming his inheritance, even when he died having heirs who had legal rights to the succession. This was the most rigorous of any of the feudal rights; and the law had finally restricted it only to rural inheritances. ‘For,’ as our author says, ‘the peasant is always the mule ready to bear every burden.’

Marciage was the name of peculiar dues levied upon the possessors of land, subject to the cens, in very few places, and consisting in certain payments due only upon the natural death of the lord of the manor.

Dîmes Inféodées.—There still existed in the eighteenth century a great number of tithes in fief. They were generally established by separate contract, and did not result from the mere fact of the lordship of the manor.

Parcière.—The parcières were dues levied upon the crops of fruit gathered on the manor-lands. They bore resemblance to the champart and the dîme inféodée, and were principally in usage in the Bourbonnais and Auvergne countries.

Carpot.—This was observed in the Bourbonnais country, and was a due levied upon the vineyards, as the champart was upon arable lands, that is to say, it was levied upon a portion of the crops. It amounted to a quarter of the vintage.

Servage.—The customs that still possessed traces of serfdom were called coutumes serves; they were very few in number. In the provinces where they were still observed there were no estates, or at least very few, where some traces of ancient serfdom were not visible. [This remark is derived from a work written in 1765.] The Servage (or, as the author terms it, the Servitude) was either personal or real.

The personal servitude was attached to the person, and followed him everywhere. Wherever the serf might go, to whatever place he might transport his substance, he might be reclaimed by the lord by right of suite. Our authors cite several legal verdicts that establish this right—among others, a verdict given on the 17th June, 1760, in which the court decides against a Seigneur of the Nivernais in respect to his right of claiming the succession of Pierre Truchet, who was the son of a serf subject to poursuite, according to the custom of the Nivernais, who had married a Parisian woman, and who had died in Paris, as well as his son. But this verdict seems to have been founded on the fact that Paris was a ‘place of refuge’ (lieu d’asile) in which the suite could not take place. If the right of asile alone prevented the Seigneur from seizing upon property possessed by his serfs in the lieu d’asile, it formed no opposition against his claiming to succeed to property left in his own manor.

The ‘real’ servitude resulted from the occupation of land, and might cease upon the land being given up or residence in a certain place changed.

Corvées.—The right possessed by the lord of the manor over his subjects, by means of which he could employ for his own profit a certain number of their days of labour, or of their oxen and horses. The corvée à volonté, that is to say, at the arbitrary will of the Seigneur, had been completely abolished: forced labour had been for some time past confined to a certain number of days a year.

The corvée might be either personal or real. The personal corvées were paid by labourers and workmen, whose residence was established upon the manor, each according to his occupation. The real corvées were attached to the possession of certain lands. Nobles, ecclesiastics, clerical personages, officers of justice, advocates, physicians, notaries, and bankers, and men in that position of life, were exempt from the corvée. A verdict, given on the 13th August, 1735, is cited by one of our authors, exempting a notary whom his Seigneur wanted to force to come for nothing, during three days, and draw up certain law papers concerning the seigneurie on which the notary resided. Another verdict, of the date of 1750, decides that, when the corvée is personal, it may be paid either in person or by money, the choice to be left to the person by whom it is due. Every corvée had to be established by written title-deeds. The corvée seigneuriale had become extremely rare in the eighteenth century.

Banalités. (Rights possessed by the lords of certain manors to oblige those residing on them to make use of his baking-office, mill, &c., upon payment.)—The provinces of Flanders, Artois, and Hainault were alone exempt from banalités. The Custom of Paris rigorously requires that this should not be exercised without written title. Every person domiciled within the circuit of the banalité was subject to it, and, most generally, even the nobles and priests also.

Besides the banalité of the wine-press and baking-office there existed several others:—

(1.) Banalités of industrial establishments, such as for cloth, tanning, or hemp. This banalité is established by many coutumes, as for instance, by those of Anjou, the Maine, and Brittany.

(2.) Banalités of the wine-press. Few coutumes mention this. But that of Lorraine, as well as that of the Maine, establish it.

(3.) Banalité of the manor bull. No coutumes mention this; but there were title-deeds that established the right. The same may be said of the right of banalité for butchers’ shambles.

In general these latter banalités of which we have just spoken were more uncommon, and looked upon with a still less favourable eye than the others. They could only be exercised by the clearest declaration of the coutumes, or, where that was wanting, by the most precise title.

Ban des Vendanges.—This was still practised throughout the whole of the kingdom in the eighteenth century. It was a simple right of police attached to the right of haute justice. In order to exercise it, the Seigneur, who was Haut Justicier, did not need to possess any other title. The ban des vendanges was obligatory upon everybody. The coutumes of Burgundy give the Seigneur the right of gathering in his vintage a day before any other vine proprietor.

Droit de Banvin.—This was a right still possessed by a quantity of Seigneurs (as our authors have it), either by custom or special title, to sell the wine grown upon their manors for a certain period of time, in general a month or forty days, before any one else. Among the grandes coutumes those of Tours, Anjou, the Maine, and La Marche alone established it, and had regulations for it. A verdict of the Cour des Aides, dated 28th August, 1751, authorises publicans (as an exception to the common rule) to sell wine during the banvin; but this must have referred only to the wine of the Seigneur, made from that year’s growth. The coutumes that establish and regulate the right of banvin generally require that it should be founded upon legal title.

Droit de Blairie was a right belonging to the Seigneur, who was Haut Justicier, to grant permission to the inhabitants to have their cattle graze upon lands situated throughout his jurisdiction, or upon waste lands. This right did not exist in any parts regulated by droit écrit; but it was common enough in those where the droit coutumier was in force. It was to be found under different denominations, more particularly in the Bourbonnais, the Nivernais, Auvergne, and Burgundy. This right rested upon the supposition that the whole territory originally belonged to the Seigneur, in such wise that, after the distribution of the greater part into fiefs, cencites, and other concessions of lands upon quit-rents, there still remained portions which could only be used for waste pasture-ground, and of which he might grant the temporary use to others. The blairie was established in several coutumes; but it could only be claimed by a Seigneur who was Haut Justicier, and was maintained only by some special title, or at least by old claims supported by long possession.

Péages.—According to our authors, there originally existed a prodigious number of manorial tolls upon bridges, rivers, and roads. Louis XIV. did away with a great number of them. In 1724 a commission, nominated to examine into the titles by which the tolls were claimed, suppressed twelve hundred of them; and, in 1765, they were still being constantly suppressed. ‘The principle observed in this respect,’ says Renauldon, ‘was that, inasmuch as the toll was a tax, it was necessary to be founded not only upon legal title, but upon one emanating from the sovereign.’ The toll was levied ‘De par le Roi.’ One of the conditions of the toll was that it should be established by tarif regulating the dues, which each kind of merchandise had to pay. It was necessary that this tarif should be approved by a decree of the Council. ‘The title of concession,’ says one author, ‘had to be followed by uninterrupted possession.’ In spite of these precautions legally taken, it appears that the value of the tolls had greatly increased in later times. ‘I know one toll,’ says the same author, ‘that was farmed out, a century ago, at 100 livres, and now brings in 1400; and another, farmed at 39,000 livres, that brings in 90,000.’ The principal ordinances or principal decrees that regulated the right of toll, were paragraph 29 of the Ordinance of 1669, and the Decrees of 1683, 1693, 1724, 1775.

The authors I have quoted, although in general favourable enough to feudal rights, acknowledge that great abuses were committed in the levying of the tolls.

Bacs.—The right of ferries differed materially from the right of toll. The latter was only levied upon merchandise; the former upon individuals, animals, and carriages. It was necessary that this right, in order to be exercised, should likewise be authorised by the King; and the dues, to be levied, had to be fixed by the same decree of Council that established and authorised it.

Droit de Leyde (to which many other names have been given in different places) was a tax levied upon merchandise brought to fairs and markets. Many lords of the manor (as appears by our feudistes) considered this right as one attached to the right of haute justice, and wholly manorial, but quite mistakenly, inasmuch as it could only be authorised by the King. At all events, this right only belonged to the Seigneur, who was Haut Justicier: he levied the police fines, to which the exercise of the right gave occasion. It appears, however, that, although by theory the droit de leyde could only emanate from the King, it was frequently set up solely upon the basis of feudal title or long possession.

It is very certain that fairs could not be established otherwise than by Royal authorisation.

The lords of the manor, however, had no need of any precise title, or any concession on the part of the King, for the exercise of the right of regulating the weights and measures to be used by their vassals in all fairs and markets held upon the manor. It was enough for the right to be founded upon custom and constant possession. Our authors say that all the Kings, who, one after the other, were desirous of re-establishing uniformity in the weights and measures, failed in the attempt. Matters had been allowed to remain at the same point where they were when the old coutumes were drawn up.

Chemins. (Rights exercised by the lords of the manor upon roads.)—The high roads, called ‘Chemins du Roi’ (King’s highway), belonged, in fact, to the sovereigns alone; their formation, their reparation, and the offences committed upon them, were beyond the cognisance of the Seigneurs or their judges. The by-roads, to be met with on any portion of a Seigneurie, doubtless belonged to such Seigneurs as were Hauts Justiciers. They had all the rights of voirie and police upon them, and their judges took cognisance of all the offences committed upon them, except in Royal cases. At an earlier period the Seigneurs had been obliged to keep up the high roads passing through their seigneurie, and, as a compensation for the expenses incurred in these repairs, they were allowed the dues arising from tolls, settlement of boundaries, and barriers; but, at this epoch, the King had resumed the general direction of the high roads.

Eaux.—All the rivers, both navigable and floatable (admitting the passage of rafts), belonged to the King, although they flowed through the property of lords of the manor, and in spite of any title to the contrary. (See Ordinance of 1669.) If the lords of the manor levied any dues upon these rivers, it was those arising from the rights of fishing, the mills, ferry-boats, and bridge-tolls, &c., in virtue of concessions emanating only from the King. There were some lords of the manor who still arrogated to themselves the rights of jurisdiction and police upon these rivers; but this manifestly only arose from usurpation, or from concessions improperly acquired.

The smaller rivers unquestionably belonged to the Seigneurs through whose property they flowed. They possessed in them the same rights of property, of jurisdiction, and police, which the King possessed upon the navigable rivers. All Seigneurs Hauts Justiciers were universally the lords of the non-navigable rivers running through their territory. They wanted no other legal title for the exercise of their claims than that which conferred the right of haute justice. There were some customs, such as the Coutume du Berri, that authorised private individuals to erect a mill upon the seignorial river passing through the lands they occupied, without the permission of the Seigneur. The Coutume de Bretagne only granted this right to private personages who were noble. As a matter of general right, it is very certain that the Seigneur Haut Justicier had alone the right of erecting mills throughout every part of his jurisdiction. No one was entitled to erect barriers for the protection of his property without the permission of the judges of the Seigneur.

Fontaines.—Puits.—Routoirs.—Étangs.—The rain-water that fell upon the high roads belonged exclusively to the Seigneurs Hauts Justiciers; they alone were enabled to dispose of it. The Seigneur Haut Justicier possessed the right of constructing ponds in any part throughout his jurisdiction, and even upon lands in the possession of those who resided under it, upon the condition of paying them the price of the ground put under water. Private individuals were only able to make ponds upon their own soil; and, even for this, many coutumes require that permission should be obtained of the Seigneur. The coutumes, however, thus requiring the acquiescence of the Seigneur, establish that it is to be given gratuitously.

La Pêche.—The right of fishing on navigable or floatable rivers belonged only to the King, and he alone could make grants of this right. The Royal Judges alone had the right of judging offences against the right of fishery. There were many Seigneurs, however, who exercised the right of fishing in these streams; but they either possessed by concession made by the King, or had usurped it. No person could fish, even with the rod, in non-navigable rivers without permission from the Seigneur Haut Justicier within whose limits they flowed. A judgment (dated April 30th, 1749) condemns a fisherman in a similar case. Even the Seigneurs themselves, however, were obliged, in fishing, to observe the general regulations respecting fisheries. The Seigneur Haut Justicier was enabled to give the right of fishing in his river to tenants in fief, or à cens.