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

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СКАЧАТЬ 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.[29] 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 day—not 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.

       Table of Contents

      SHOWING HOW CENTRALISATION HAD BEEN ABLE TO INTRODUCE ITSELF AMONG THE ANCIENT INSTITUTIONS OF FRANCE, AND TO SUPPLANT WITHOUT DESTROYING THEM.

      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;[30] 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 affairs—an 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.

      The judicial institutions had alone impeded the Government in this great enterprise; but even there the State had seized the substance of power, leaving only the shadow of it to its adversaries. The Parliaments of France СКАЧАТЬ