The State of Society in France Before the Revolution of 1789 - Alexis de Tocqueville 9 стр.

The inhabitants had indeed, commonly, retained the right of electing their parochial magistrates by universal suffrage; but it frequently happened that the Intendant designated to this small electoral body a candidate who never failed to be returned by a unanimity of suffrages. Sometimes, when the election had been made by the parishioners themselves, he set it aside, named the collector and syndic of his own authority, and adjourned indefinitely a fresh election. There are thousands of such examples.

It is difficult to conceive a more cruel fate than that of these parochial officers. The lowest agent of the Central Government, the Sub-delegate, bent them to every caprice. Often they were fined, sometimes imprisoned; for the securities which elsewhere defended the citizens against arbitrary proceedings had ceased to exist for them: I have thrown into prison, said an Intendant in 1750, some of the chief persons in the villages who grumbled, and I have made these parishes pay the expense of the horsemen of the patrol. By these means they have been easily checkmated. The consequence was, that these parochial functions were not considered as honours, but as burdens to be evaded by every species of subterfuge.

Yet these last remnants of the ancient parochial government were still dear to the peasantry of France; and even at the present day, of all public liberties the only one they thoroughly comprehend is parochial freedom. The only business of a public nature which really interests them is to be found there. Men, who readily leave the government of the whole nation in the hand of a master, revolt at the notion of not being able to speak their mind in the administration of their own village. So much weight is there yet in forms the most hollow.

What has been said of the towns and parishes of France may be extended to almost all the corporate bodies which had any separate existence and collective property.

Under the social condition of France anterior to the Revolution of 1789, as well as at the present day, there was no city, town, borough, village, or hamlet in the kingdomthere was neither hospital, church fabric, religious house, nor college, which could have an independent will in the management of its private affairs, or which could administer its own property according to its own choice. Then, as now, the executive administration therefore held the whole French people in tutelage; and if that insolent term had not yet been invented, the thing itself already existed.

CHAPTER IV

In no country in Europe were the ordinary courts of justice less dependent on the Government than in France; but in no country were extraordinary courts of justice more extensively employed. These two circumstances were more nearly connected than might be imagined. As the King was almost entirely powerless in relation to the judges of the landas he could neither dismiss them, nor translate them, nor even, for the most part, promote themas, in short, he held them neither by ambition nor by fear, their independence soon proved embarrassing to the Crown. The result had been, in France, more than anywhere else, to withdraw from their jurisdiction the suits in which the authority of the Crown was directly interested, and to call into being, as it were beside them, a species of tribunal more dependent on the sovereign, which should present to the subjects of the Crown some semblance of justice without any real cause for the Crown to dread its control.

In other countries, as, for instance, in some parts of Germany, where the ordinary courts of justice had never been as independent of the Government as those of France, no such precautions were taken, and no administrative justice (as it was termed) existed. The sovereign was so far master of the judges, that he needed no special commissions.

The edicts and declarations of the Kings of France, published in the last century of the monarchy, and the Orders in Council promulgated within the same period, almost all provided on behalf of the Government, that the differences which any given measure might occasion and the litigation which might ensue, should be exclusively heard before the Intendants and before the Council. It is moreover ordered by his Majesty, that all the disputes which may arise upon the execution of this order, with all the circumstances and incidents thereunto belonging, shall be carried before the Intendant to be judged by him, saving an appeal to the Council, and all courts of justice and tribunals are forbidden to take cognisance of the same. Such was the ordinary form of these decrees.

In matters which fell under laws or customs of an earlier date, when this precaution had not been taken, the Council continually intervened, by way of what was termed evocation, or the calling up to its own superior jurisdiction from the hands of the ordinary officers of justice suits in which the administration of the State had an interest. The registers of the Council are full of minutes of evocation of this nature. By degrees the exception became the rule, and a theory was invented to justify the fact.26 It came to be regarded as a maxim of state, not in the laws of France, but in the minds of those by whom those laws were applied, that all suits in which a public interest was involved, or which arose out of the construction to be put on any act of the administration, were not within the competency of the ordinary judges, whose only business it was to decide between private interests. On this point we, in more recent times, have only added a mode of expression; the idea had preceded the Revolution of 1789.

Already at that time most of the disputed questions which arose out of the collection of the revenue were held to fall under the exclusive jurisdiction of the Intendant and the Kings Council.27 So, too, with reference to the regulation of public waggons and stage-coaches, drainage, the navigation of rivers, etc.; and in general all the suits in which the public authorities were interested came to be disposed of by administrative tribunals only. The Intendants took the greatest care that this exceptional jurisdiction should be continually extended. They urged on the Comptroller-General, and stimulated the Council. The reason one of these officers assigned to induce the Council to call up one of these suits deserves to be remembered. An ordinary judge, said he, is subject to fixed rules, which compel him to punish any transgression of the law; but the Council can always set aside rules for a useful purpose.

On this principle, it often happened that the Intendant or the Council called up to their own jurisdiction suits which had an almost imperceptible connection with any subject of administrative interest, or even which had no perceptible connection with such questions at all. A country gentleman quarrels with his neighbour, and being dissatisfied with the apparent disposition of his judges, he asks the Council to evoke his cause. The Intendant reports that, although this is a case solely affecting private rights, which fall under the cognisance of the courts of justice, yet that his Majesty can always, when he pleases, reserve to himself the decision of any suit whatever, without rendering any account at all of his motives.

It was generally before the Intendant or before the Provost of the Maréchaussée that all the lower order of people were sent for trial, by this process of evocation, when they had been guilty of public disturbances. Most of the riots so frequently caused by the high price of corn gave rise to transfers of jurisdiction of this nature. The Intendant then summoned to his court a certain number of persons, who formed a sort of local council, chosen by himself, and with their assistance he proceeded to try criminals. I have found sentences delivered in this manner, by which men were condemned to the galleys, and even to death. Criminal trials decided by the Intendant were still common at the close of the seventeenth century.

Modern jurists in discussing this subject of administrative jurisdictions assert, that great progress has been made since the Revolution. Before that era, they say, the judicial and administrative powers were confounded; they have since been distinguished and assigned to their respective places. To appreciate correctly the progress here spoken of, it must never be forgotten, that if on the one hand the judicial power under the old monarchy was incessantly extending beyond the natural sphere of its authority, yet on the other hand that sphere was never entirely filled by it. To see one of these facts without the other is to form an incomplete and inaccurate idea of the subject. Sometimes the courts of law were allowed to enact regulations on matters of public administration, which was manifestly beyond their jurisdiction; sometimes they were restrained from judging regular suits, which was to exclude them from the exercise of their proper functions. The modern law of France has undoubtedly removed the administration of justice from those political institutions into which it had very improperly been allowed to penetrate before the Revolution; but at the same time, as has just been shown, the Government continually invaded the proper sphere of the judicial authorities, and this state of things is unchanged, as if the confusion of these powers were not equally dangerous on the one side as on the other, and even worse in the latter mode; for the intervention of a judicial authority in administrative business is only injurious to the transaction of affairs; but the intervention of administrative power in judicial proceedings depraves mankind, and tends to render men at once revolutionary and servile.

Amongst the nine or ten constitutions which have been established in perpetuity in France within the last sixty years, there is one in which it was expressly provided that no agent of the administration can be prosecuted before the ordinary courts of law without having previously obtained the assent of the Government to such a prosecution.28 This clause appeared to be so well devised that when the constitution to which it belonged was destroyed, this provision was saved from the wreck, and it has ever since been carefully preserved from the injuries of revolutions. The administrative body still calls the privilege secured to them by this article one of the great conquests of 1789; but in this they are mistaken, for under the old monarchy the Government was not less solicitous than it is in our own times to spare its officers the unpleasantness of rendering an account in a court of law, like any other private citizens. The only essential difference between the two periods is this: before the Revolution the Government could only shelter its agents by having recourse to illegal and arbitrary measures; since the Revolution it can legally allow them to violate the laws.

When the ordinary tribunals of the old monarchy allowed proceedings to be instituted against any officer representing the central authority of the Government, an Order in Council usually intervened to withdraw the accused person from the jurisdiction of his judges, and to arraign him before commissioners named by the Council; for, as was said by a councillor of state of that time, a public officer thus attacked would have had to encounter an adverse prepossession in the minds of the ordinary judges, and the authority of the King would have been compromised. This sort of interference occurred not only at long intervals, but every daynot only with reference to the chief agents of the Government, but to the least. The slightest thread of a connection with the administration sufficed to relieve an officer from all other control. A mounted overseer of the Board of Public Works, whose business was to direct the forced labour of the peasantry, was prosecuted by a peasant whom he had ill-treated. The Council evoked the cause, and the chief engineer of the district, writing confidentially to the Intendant, said on this subject: It is quite true that the overseer is greatly to blame, but that is not a reason for allowing the case to follow the ordinary jurisdiction; for it is of the utmost importance to the Board of Works that the courts of common law should not hear or decide on the complaints of the peasants engaged in forced labour against the overseers of these works. If this precedent were followed, those works would be disturbed by continual litigation, arising out of the animosity of the public against the officers of the Government.

On another occasion the Intendant himself wrote to the Comptroller-General with reference to a Government contractor, who had taken his materials in a field which did not belong to him. I cannot sufficiently represent to you how injurious it would be to the interests of the Administration if the contractors were abandoned to the jurisdiction of the ordinary courts, whose principles can never be reconciled to those of the Government.

These lines were written precisely a hundred years ago, but it appears as if the administrators who wrote them were our own contemporaries.

CHAPTER V

Let us now briefly recapitulate what has been said in the three preceding chapters. A single body or institution placed in the centre of the kingdom regulated the public administration of the whole country; the same Minister directed almost all the internal affairs of the kingdom; in each province a single Government agent managed all the details; no secondary administrative bodies existed, and none which could act until they had been set in motion by the authority of the State; courts of extraordinary jurisdiction judged the causes in which the administration was interested, and sheltered all its agents. What is this but the centralisation with which we are so well acquainted? Its forms were less marked than they are at present; its course was less regular, its existence more disturbed; but it is the same being. It has not been necessary to add or to withdraw any essential condition; the removal of all that once surrounded it at once exposed it in the shape that now meets our eyes.

Most of the institutions which I have just described have been imitated subsequently, and in a hundred different places;29 but they were at that time peculiar to France; and we shall shortly see how great was the influence they had on the French Revolution and on its results.

But how came these institutions of modern date to be established in France amidst the ruins of feudal society?

It was a work of patience, of address, and of time, rather than of force or of absolute power. At the time when the Revolution occurred, scarcely any part of the old administrative edifice of France had been destroyed; but another structure had been, as it were, called into existence beneath it.

There is nothing to show that the Government of the old French monarchy followed any deliberately concerted plan to effect this difficult operation. That Government merely obeyed the instinct which leads all governments to aim at the exclusive management of affairsan instinct which ever remained the same in spite of the diversity of its agents. The monarchy had left to the ancient powers of France their venerable names and their honours, but it had gradually subtracted from them their authority. They had not been expelled but enticed out of their domains. By the indolence of one man, by the egotism of another, the Government had found means to occupy their places. Availing itself of all their vices, never attempting to correct but only to supersede them, the Government at last found means to substitute for almost all of them its own sole agent, the Intendant, whose very name was unknown when those powers which he supplanted came into being.