The Modern Regime Volume I Part 14

[Footnote 2204: Ibid., III. 284 Laff. 213.]

[Footnote 2205: "The Revolution," III., 353, 416. (Laffont II. notes pp 262 and 305 to 308.)]

[Footnote 2206: "The Ancient Regime," 64, 65, 76, 77, 120, 121, 292.

(Laffont I. pp. 52-53, 60-61, 92 to 94, 218 to 219.)]

[Footnote 2207: "The Revolution," I., 177 and following pages. (Laffont I, pp. 438 to 445.)]

[Footnote 2208: The essays of Herbert Spencer furnish examples for England under the t.i.tle of "Over-legislation and Representative government." Examples for France may be found in "Liberte du Travail,"

by Charles Dunoyer (1845). This work antic.i.p.ates most of the ideas of Herbert Spencer, lacking only the physiological "ill.u.s.trations."]

CHAPTER III. THE NEW GOVERNMENT ORGANIZATION.

I. Precedents of the new organization.

Precedents of the new organization.--In practical operation.--Anterior usurpations of the public power.

--Spontaneous bodies under the Ancient Regime and during the Revolution.--Ruin and discredit of their supports.--The central power their sole surviving dependence.

Unfortunately, in France at the end of the eighteenth century the bent was taken and the wrong bent. For three centuries and more the public power had increasingly violated and discredited spontaneous bodies:

Sometimes it had mutilated them and decapitated them; for example, it had suppressed provincial governments (etats) over three-quarters of the territory, in all the electoral districts; nothing remained of the old province but its name and an administrative circ.u.mscription.

Sometimes, without mutilating the corporate body it had upset and deformed it, or dislocated and disjointed it.--So that in the towns, through changes made in old democratic const.i.tutions, through restrictions put upon electoral rights and repeated sales of munic.i.p.al offices,[2301] it had handed over munic.i.p.al authority to a narrow oligarchy of bourgeois families, privileged at the expense of the taxpayer, half separated from the main body of the public, disliked by the lower cla.s.ses, and no longer supported by the confidence or deference of the community. And in the parish and in the rural canton, it had taken away from the n.o.ble his office of resident protector and hereditary patron, reducing him to the odious position of a mere creditor, and, if he were a man of the court, to the yet worse position of an absentee creditor.[2302]--So that in the parish and in the rural canton, it had taken away from the n.o.ble his office of resident protector and hereditary patron, reducing him to the odious position of a mere creditor, and, if he were a man of the court, to the yet worse position of an absentee creditor.[2303] Thus, as to the clergy, it had almost separated the head from the trunk by superposing (through the concordat) a staff of gentleman prelates, rich, ostentatious, unemployed, and skeptical, upon an army of plain, poor, laborious, and believing curates.[2304]

Finally, it had, through a protection as untimely as it was aggressive, sometimes conferred on the corporation oppressive privileges which rendered it offensive and mischievous, or else fossilized in an obsolete form which paralyzed its action or corrupted its service. Such was the case with the corporations of crafts and industries to which, in consideration of financial aid, it had conceded monopolies onerous to the consumer and a clog on industrial enterprises. Such was the case with the Catholic Church to which, every five years, it granted, in exchange for its voluntary gift (of money), cruel favors or obnoxious prerogatives, the prolonged persecution of Protestants, the censorship of intellectual speculation, and the right of controlling schools and education.[2305] Such was the case with the universities benumbed by routine; with latest provincial "etats," const.i.tuted in 1789, as in 1489. Such was the case with n.o.ble families subjected by law to the antique system of subst.i.tutions and of primogeniture, that is to say, to social constraint which, devised long ago for private as well as for public interest in order to secure the transmission of local patronage and political power. This system, however, became useless and corrupting, fecund in pernicious vanities,[2306] in detestable calculations, domestic tyrannies, forced vocations, and private bickering, from the time when the n.o.bles, become frequenters of the court, had lost political power and renounced local patronage.

Thus deprived of, or diverted from, their purpose, the corporate bodies had become unrecognizable under the crust of the abuses which disfigured them. n.o.body, except a Montesquieu, could comprehend why they should exist; on the approach of the Revolution, they seemed, not organs, but outgrowths, deformities, and, so to say, superannuated monstrosities.

Their historical and natural roots, their living germs far below the surface, their social necessity, their fundamental utility, their possible usefulness, were no longer visible. Only their present inconvenience was felt; people suffered by their friction and burden; their lack of harmony and incoherence created dissatisfaction; annoyance due to their degeneracy were attributed to radical defects; they were judged to be naturally unsound and were condemned, in principle, because of the deviations and laws which the public power had imposed on their development.

Suddenly, the public power, which had produced the evil by its intervention, pretended to remove it by a still greater intervention: in 1789 it again intruded itself on corporate bodies, not to reform them, not restore each to its proper channel, not to confine each with proper limits, but to destroy them outright. Through a radical, universal, and extraordinary amputation, the like of which is not mentioned in history, with the rashness of the theorist and the brutality of the butcher, the legislator extirpated them all, as far as he could, even including the family, while his fury extended beyond the present into the future.

To legal abolition and total confiscation, he added the systematic hostility of his preventive laws, together with a fresh obstacle in the shape of his new constructions; during three successive legislatures[2307] he provided against their future regeneration, against the permanent instincts and necessities which might one day resuscitate stable families, distinct provinces, and an orthodox church, against artistic, industrial, financial, charitable, and educational corporations, against every spontaneous and organized group, and against every collective, local, or special enterprise. In place of these he installed synthetic bodies or inst.i.tutions:

* a Church without believers,

* schools without pupils,

* hospitals without incomes,

* a geometrical hierarchy of improvised powers in the commune, district, and department,

all badly organized, badly adjusted, out of gear at the start, overwhelmed with political functions, as incapable of performing their proper duties as their supplementary duties, and, from the very beginning, either powerless or mischievous.[2308] Changes repeatedly marred by arbitrariness from above or from below, set aside or perverted now by the mob and again by the government, inert in the country, oppressive in the towns, we have seen the state into which they had fallen at the end of the Directory; how, instead of a refuge for liberty, they had become haunts of tyranny or sinks of egoism; why, in 1800, they were as much decried as their predecessors in 1788, why their two successive props, the old one and the most recent, historic custom and popular election, were now discredited and no longer resorted to.--After the disastrous experience of the monarchy and the still worse experience of the republic, another prop had to be sought for; but only one remained, that of the central power, the only one visible and which seemed substantial; in default of others they had recourse to this.[2309] In any event, no protestation, even secret and moral, any longer prevented the State from attaching other corporate bodies to itself, in order to use them for its own purposes as instruments or appendages.

II. Doctrines of Government.

The theory.--Agreement of speculative ideas with practical necessities.--Public rights under the Ancient Regime.--The King's three original rights.--Labors of the jurists in extending royal prerogatives.--Historical impediments.--The primitive or ulterior limits of royal power.--The philosophic and revolutionary principle of popular sovereignty.--Unlimited extension of State power.

--Application to spontaneous bodies.--Convergence of ancient and new doctrines.--Corporations considered as creations of the public power.--Centralization through the universal intervention of the State.

The theory here agreed with the need, and not alone the recent theory, but again the ancient theory. Long before 1789, public right had elevated the prerogative of centralized power into a dogma and exaggerated it beyond measure.

There are three t.i.tles under which this power was conferred.--Feudal seignior, and suzerain, that is to say, commander-in-chief of the great resident army whose willing forces had served to reconstruct society in the ninth century, the King, through the remotest of his origins--that is to say, through the immemorial confusion of sovereignty with property--was the owner of France, the same as an individual owns his private domain.[2310]--Married, moreover, to the Church since the first Capets, consecrated and crowned at Rheims, anointed by G.o.d like a second David,[2311] not only was he believed to be authorized from on high, like other monarchs, but, from Louis le Gros, and especially after the time of saint Louis, he appeared as the delegate from on high, invested with a laic sacerdotalism, clothed with moral power, minister of eternal justice, redresser of wrongs, protector of the weak, benefactor of the humble--in short, "His Most Christian Majesty."--At length, after the thirteenth century, the recent discovery and diligent study of the ancient codes of Justinian had shown in his person the successor of the Caesars of Rome and of the Emperors of Constantinople. According to these codes the people in a body had transferred its rights to the prince; now, in antique cities, all rights were vested in the community, and the individual had none;[2312] accordingly, through this transfer, all rights, public or private, pa.s.sed into the hands of the prince; henceforth he could exercise them as he pleased, under no restriction and no control. He was above the law, since he made it; his powers were illimitable and his decision absolute.[2313]

On this triple frame the jurists, like State spiders, had, from Philippe le Bel down, spun their web, and the instinctive concordance of their hereditary efforts had attached all its threads to the omnipotence of the King.--Being jurisconsults--that is to say, logicians--they were obliged to deduce, and their minds naturally recurred to the unique and rigid principle to which they might attach their arguments.--As advocates and councilors of the crown they espoused the case of their client and, through professional zeal, derived or forced precedents and texts to his advantage.--By virtue of being administrators and judges the grandeur of their master const.i.tuted their grandeur, and personal interest counseled them to expand a prerogative in which, through delegation, they took part.--Hence, during four centuries, they had spun the tissue of "regalian rights," the great net in the meshes of which, since Louis XIV., all lives found themselves caught.[2314]

Nevertheless, however tightly spun was the web, there were openings in it, or, at least, very weak spots.--And first, of the consequences flowing from these three principles in their hands, two of them had hindered the third from unwinding its skein to the end: owing to the fact that the King was formerly Count de Paris and Abbot of St. Denis, he could not become a veritable Augustus, an authentic Diocletian: his two French t.i.tles limited his Roman t.i.tle. Without regard to the laws, so-called fundamental, which imposed his heir on him beforehand, also the entire line of his successive heirs, the tutor, male or female, of his minor heir, and which, if he derogated from immemorial usage, annulled his will like that of a private individual, his quality of suzerain and that of Most Christian, were for him a double impediment.

As hereditary general of the feudal army he was bound to consider and respect the hereditary officers of the same army, his old peers and companions in arms--that is to say, the n.o.bles. As outside bishop, he owed to the Church not alone his spiritual orthodoxy, but, again, his temporal esteem, his active zeal, and the aid furnished him by his secular arm. Hence, in applied right, the numerous privileges of the n.o.bles and the Church, so many immunities and even liberties, so many remains of antique local independence, and even of antique local sovereignty,[2315] so many prerogatives, honorific or serviceable, maintained by the law and by the tribunals. On this side, the meshes of the monarchical netting had not been well knit or remained loose; and the same elsewhere, with openings more or less wide, in the five provincial governments (etats), in the Pyrenees districts, in Alsace, at Strasbourg, but especially in Languedoc and in Brittany, where the pact of incorporation, through a sort of bilateral contract, a.s.sociated together on the same parchment and under the same seal the franchises of the province and the sovereignty of the King.

Add to these original lacunae the hole made by the Prince himself in his net already woven: he had with his own hand torn away its meshes, and by thousands. Extravagant to excess and always needy, he converted everything into money, even his own rights, and, in the military order, in the civil order, in commerce and in industry, in the administration, in the judicature, and in the finances. From one end of the territory to the other, he had sold innumerable offices, imposts, dignities, honors, monopolies, exemptions, survivorships, expectancies--in brief, privileges which, once conferred for a money consideration, became legal property,[2316] often hereditary and transmissible by the individual or the corporation which had paid for them. In this way the King alienated a portion of his royalty for the benefit of the buyer. Now, in 1789, he had alienated a great many of these portions; accordingly, his present authority was everywhere restricted by the use he had previously made of it.--Sovereignty, thus, in his hands had suffered from the double effect of its historic origins and its historic exercise; the public power had not become, or had ceased to be, omnipotence. On the one hand it had not reached its plenitude, and on the other hand it had deprived itself of a portion of its own completeness.

The philosophers wished to find a solution for this double weakness, innate and acquired They had therefore transported sovereignty out of history into the ideal and abstract world, with an imaginary city of mankind reduced to the minimum of a human being Here men, infinitely simplified, all alike, equal, separate from their surroundings and from their past, veritable puppets, were all lifting their hands in common rectangular motion to vote unanimously for the contrat social. In this contract "all cla.s.ses are reduced to one,[2317] the complete surrender of each a.s.sociate, with all his rights, to the community, each giving himself up entirely, just as he actually is, himself and all his forces, of which whatever he possesses forms a part," each becoming with respect to himself and every act of his private life a delegate of the State, a responsible clerk, in short, a functionary, a functionary of the people, henceforth the unique, the absolute, and the universal sovereign. A terrible principle, proclaimed and applied for ten years, below by the mob and above by the government! Popular opinion had adopted it; accordingly the pa.s.sage from the sovereignty of the King to the sovereignty of the people was easy, smooth,[2318] and to the novice in reasoning, the old-fashioned taxable and workable subject, to whom the principle conferred a portion of the sovereignty, the temptation was too great.

At once, according to their custom, the jurists put themselves at the service of the new reign. And no dogma was better suited their to authoritative instinct; no axiom furnished them so convenient a fulcrum on which to set up and turn their logical wheel. This wheel, which they had latterly managed with care and caution under the ancient Regime, had suddenly in their hands turned with frightful speed and effect in order to convert the rigid, universal, and applied laws, the intermittent processes, the theoretical pretensions, and the worst precedents of the monarchy into practice. This meant

* the use of extraordinary commissions,

* accusations of lese majeste,

* the suppression of legal formalities,

* the persecution of religious beliefs and of personal opinions,

* the right of condemning publications and of coercing thought,

* the right of instruction and education,

* the rights of pre-emption, of requisition, of confiscation, and of proscription,

in short, pure and perfect arbitrariness. The result is visible in the deeds of Treilhard, of Berlier, of Merlin de Douai, of Cambaceres, in those of the Const.i.tuant and Legislative a.s.semblies, in the Convention, under the Directory, in their Jacobin zeal or hypocrisy, in their talent for combining despotic tradition with tyrannical innovation, in their professional skill in fabricating on all occasions a snare of plausible arguments with which to properly strangle the individual, their adversary, to the profit of the State, their eternal master.

In effect, not only had they almost strangled their adversary, but likewise, through an aftereffect, their master: France which, after fourteen months of suffocation, was approaching physical suicide.[2319]

Such success, too great, had obliged them to stop; they had abandoned one-half of their destructive creed, retaining only the other half, the effect of which, less imminent, was less apparent. If they no longer dared paralyze individual acts in the man, they persisted in paralyzing in the individual all collective acts.--There must be no special a.s.sociations in general society; no corporations within the State, especially no spontaneous bodies endowed with the initiative, proprietary and permanent: such is Article II. of the Revolutionary Creed, and the direct consequence of the previous one which posits axiomatically the sovereignty of the people and the omnipotence of the State. Rousseau,[2320] inventor of the first, had like-wise enunciated the second; the const.i.tuent a.s.sembly had solemnly decreed it and applied it on a grand scale,[2321] and successive a.s.semblies had applied it on a still grander scale;[2322] it was a faith with the Jacobins, and, besides, in conformity with the spirit of Roman imperial right and with the leading maxim of French monarchical right. On this point the three known jurisprudential systems were in accord, while their convergence brought together around the same table the jurists of the three doctrines in a common task, ex-parliamentarians and ex-members of the Committee of Public Safety, former pro-scribers and the proscribed, the purveyors of Sinamari with Treilhard and Merlin de Douai, returned from Guiana, alongside of Simeon, Portalis, and Barbe-Marbois. There was n.o.body in this conclave to maintain the rights of spontaneous bodies; the theory, on all three sides, no matter from whom it proceeded, refused to recognize them for what they are originally and essentially, that is to say, distinct organisms equally natural with the State, equally indispensable in their way, and, therefore, as legitimate as itself; it allowed them only a life on trust, derived from above and from the center. But, since the State created them, it might and ought to treat them as its creatures, keep them indefinitely under its thumb, use them for its purposes, act through them as through other agencies, and transform their chiefs into functionaries of the central power.

III. Brilliant Statesman and Administrator.

The Organizer.--Influence of Napoleon's character and mind on his internal and French system.--Exigencies of his external and European role.--Suppression of all centers of combination and concord.--Extension of the public domain and what it embraces.--Reasons for maintaining the private domain.--The part of the individual.--His reserved enclosure.--Outlets for him beyond that.--His talents are enlisted in the service of public power.--Special apt.i.tude and temporary vigor, lack of balance, and doubtful future of the social body thus formed.

A new France, not the chimerical, communistic, equalized, and Spartan France of Robespierre and Saint-Just, but a possible real, durable, and yet leveled and uniform France, logically struck out at one blow, all of a piece, according to one general principle, a France, centralized, administrative, and, save the petty egoistic play of individuals, managed in one entire body from top to bottom,--in short, the France which Richelieu and Louis XIV. had longed for, which Mirabeau after 1790 had foreseen,[2323] is now the work which the theories of the monarchy and of the Revolution had prepared, and toward which the final concurrence of events, that is to say, "the alliance of philosophy and the saber," led the sovereign hands of the First Consul.