Principal service rendered by the public power.—It is aninstrumentality.—A common law for every instrumentality.—Mechanical instruments.—Physiological instruments.—Socialinstruments.—The perfection of an instrument increases withthe convergence of its effects.
What is the service which the public power renders to the public?—The principal one is the protection of the community against the foreigner, and of private individuals against each other.—Evidently, to do this, it must in all cases be provided with indispensable means, namely: diplomats, an army, a fleet, arsenals, civil and criminal courts, prisons, a police, taxation and tax-collectors, a hierarchy of agents and local supervisors, who, each in his place and attending to his special duty, will co-operate in securing the desired effect.—Evidently, again, to apply all these instruments, the public power must have, according to the case, this or that form or constitution, this or that degree of impulse and energy: according to the nature and gravity of external or internal danger, it is proper that it should be concentrated or divided, emancipated from control or under control, authoritative or liberal. No indignation need be cherished beforehand against its mechanism. Strictly speaking, it is a vast piece appliance in the human community, such as a machine in a factory or such as organ in the human body. If this organ is the only on that can carry out the task, let us accept it and its structure: whoever wants the end wants the means. All we can ask is that the means shall be adapted to the end; in other terms, that the myriad of large or small local or central pieces shall be determined, adjusted, and coordinated in view of the final and total effect to which they co-operate nearly or remotely.
But, whether simple or compound, every engine which does any work is subject to one condition; the better it is suited to any distinct purpose the less it is suited to other purposes; as its perfection increases, so does its application become limited.—Accordingly, if there are two distinct instruments applied to two distinct objects, the more perfect they are, each of its kind, the more do their domains become circumscribed and opposed to each other; as one of them becomes more capable of doing its own work it becomes more incapable of doing the work of the other; finally, neither can take the place of the other, and this is true whatever the instrument may be, mechanical, physiological, or social.
At the very lowest grade of human industry the savage possesses but one tool; with his cutting or pointed bit of stone he kills, breaks, splits, bores, saws, and carves; the instrument suffices, in the main, for all sorts of services. After this come the lance, the hatchet, the hammer, the punch, the saw, the knife, each adapted to a distinct purpose and less efficacious outside of that purpose: one cannot saw well with a knife, and one cuts badly with a saw. Later, highly-perfected engines appear, and, wholly special, the sewing-machine and the typewriter: it is impossible to sew with the typewriter or write with the sewing-machine.—In like manner, when at the lowest round of the organic ladder the animal is simply a shapeless jelly, homogeneous and viscous, all parts of it are equally suited to all functions; the amoebae, indifferently and by all the cells of its body, can walk, seize, swallow, digest, breathe, and circulate all its fluids, expel its waste, and propagate its species. A little higher up, in fresh-water polyp, the internal sac which digests and the outer skin which serves to envelop it can, if absolutely necessary, change their functions; if you turn the animal inside out like a glove it continues to live; its skin, become internal, fulfills the office of a stomach; its stomach, become external, fulfills the office of an envelope. But, the higher we ascend, the more do the organs, complicated by the division and subdivision of labor, diverge, each to its own side, and refuse to take each other's place. The heart, with the mammal, is only good for impelling the blood, while the lungs only furnish the blood with oxygen; one cannot possibly do the work of the other; between the two domains the special structure of the former and the special structure of the latter interpose an impassable barrier.—In like manner, finally, at the very bottom of the social scale—lower down than the Andamans and the Fuegians—we find a primitive stage of humanity in which society consists wholly of a herd. In this herd there is no distinct association in view of a distinct purpose; there is not even a family—no permanent tie between male and female; there is simply a contact of the sexes. Gradually, in this herd of individuals, all equal and all alike, particular groups define themselves, take shape, and separate: we see appearing more and more precise relationships, more and more distinct habitations, more and more hereditary homesteads, fishing, hunting, and war groups, and small workshops; if the people is a conquering people, castes establish themselves. At length, we find in this expanded and solidly-organized social body provinces, communes, churches, hospitals, schools, corporate bodies and associations of every species and dimension, temporary or permanent, voluntary or involuntary, in brief, a multitude of social engines constructed out of human beings who, on account of personal interest, habit, and constraint, or through inclination, conscience, and generosity, co-operate according to a public or tacit statute in effecting in the material or spiritual order of things this or that determinate undertaking. In France, to-day, there are, besides the State, eighty-six departments, thirty-six thousand communes, four church bodies, forty thousand parishes, seven or eight millions of families, millions of agricultural, industrial, and commercial establishments, hundreds of institutions of science and art, thousands of educational and charitable institutions, benevolent and mutual-aid societies, and others for business or for pleasure by tens and hundreds and thousands, in short, innumerable associations of every kind, each with a purpose of its own, and, like a tool or a special organ, carrying out a distinct work.
Now, each of these associations so far as it is a tool or an organ is subject to the same law; the better it is in one direction, the more mediocre it is in other directions; its special competency constitutes its general incompetence. This is why, among developed nations, no specialized organization can replace another in a satisfactory manner. "An academy of painting which should also be a bank would, in all probability, exhibit very bad pictures and discount very bad bills. A gas company which should also be a kindergarten would, we expect, light the streets poorly and teach the children badly."2201And the reason is that an instrument, whatever it may be, a mechanical tool, or physiological organ, or human association, is always a system of pieces whose effects converge to a given end; it matters little whether the pieces are bits of wood and metal, as in the tool, cells and fibers, as in the organ, souls and understandings, as in the association; the essential thing is the convergence of their effects; for the more convergent these effects, the more efficient is the instrument in the realization of its end. But, through this convergence, it takes one direction exclusively and cannot take any other; it cannot operate at once in two different senses; it cannot possibly turn to the right and at the same time turn to the left. If any social instrument devised for a special service is made to act additionally for another, it will perform its own office badly as well the one it usurps. Of the two works executed by it, the first injures the second and the second injures the first one. The end, ordinarily, is the sacrifice of one to the other, and, most frequently, the failure of both.
Application of this law to the public power.—General effectof its intervention.
Let us follow out the effects of this law when it is the public power which, beyond its principal and peculiar task, undertakes a different task and puts itself in the place of corporate bodies to do their work; when the State, not content with protecting the community and individuals against external or internal oppression, takes upon itself additionally the government of churches, education, or charity, the direction of art, science, and of commercial, agricultural, municipal, or domestic affairs.—Undoubtedly, it can intervene in all corporate bodies other than itself; it has both the right and the duty to interfere; it is bound to do this through its very office as defender of persons and property, to repress in these bodies spoliation and oppression, to compel in them the observance of the primordial statute, charter, or contract, to maintain in the them rights of each member fixed by this statute, to decide according to this statute all conflicts which may arise between administrators and the administrated, between directors and stockholders, between pastors and parishioners, between deceased founders and their living successors. In doing this, it affords them its tribunals, its constables, and its gendarmes, and it affords these to them only with full consent after having looking into and accepted the statute. This, too, is one of the obligations of its office: its mandate hinders it from placing the public power at the service of despoiling and oppressive enterprises; it is interdicted from authorizing a contract for prostitution or slavery, and above all, for the best of reasons, a society for brigandage and insurrections, an armed league, or ready to arm itself, against the community, or a part of the community, or against itself.—But, between this legitimate intervention which enables it to maintain rights, and the abusive interference by which it usurps rights, the limit is visible and it oversteps this limit when, to its function of justiciary, it adds a second, that of governing or supporting another corporation. In this case two series of abuses unfold themselves; on the one side, the State acts contrary to its primary office, and, on the other, it discharges the duties of its superadded office badly.2202
It acts against its function. Its encroachments are attackson persons and property.
For, in the first place, to govern another corporate body, for example the Church, the State at one time appoints its ecclesiastical heads, as under the old monarchy after the abolition of the Pragmatic Sanction by the Concordat of 1516; at another, as with the Constituent Assembly in 1791, without appointing its heads, it invents a new mode of appointment by imposing on the Church a discipline contrary to its spirit and even to its dogmas. Sometimes it goes further still and reduces a special body into a mere administrative branch, transforming its heads into revocable functionaries whose acts it orders and directs; such under the Empire as well as under the Restoration, were the mayor and common-councilors in a commune, and the professors and head-masters of the University. One step more and the invasion is complete: naturally, either through ambition or precaution, or through theory or prejudice, on undertaking a new service it is tempted to reserve to itself or delegate its monopoly. Before 1789 there existed one of these monopolies to the advantage of the Catholic Church, through the interdiction of other cults, also another to the advantage of each corporation of "Arts et Métiers," through the interdiction of free labor; after 1800, there existed one for the benefit of the University through all sorts of shackles and constraints imposed on the establishment and maintenance of private schools.—Now, through each of these constraints the State encroaches on the domain of the individual; the more extended its encroachments the more does it prey upon and reduce the circle of spontaneous initiation and of independent action, which constitute the true life of the individual; if, in conformity with the Jacobin program, it pushes its interference to the end, it absorbs in itself all other lives;2203henceforth, the community consists only of automata maneuvered from above, infinitely small residues of men, passive, mutilated, and, so to say, dead souls; the State, instituted to preserve persons, has reduced them to nonentities.
The effect is the same with property when the State supports other organizations than its own. For, to maintain these, it has no other funds than those of the taxpayers; consequently, using its collectors, it takes the money out of their pockets; all, indiscriminately, willingly or not, pay supplementary taxes for supplementary services, whether this service benefits them or is repugnant to them. If I am a Protestant in a Catholic State, or a Catholic in a Protestant State, I pay for religion which seems wrong to me and for a Church which seems to me mischievous. If I am a skeptic, a free-thinker, indifferent or hostile to positive religions in France, I pay to-day for the support of four cults which I regard as useless or pernicious. If I am a provincial or a peasant, I pay for maintaining an "Opéra" which I never attend and for a "Sèvres" and "Gobelins" of which I never see a vase or a piece of tapestry.—In times of tranquility the extortion is covered up, but in troubled times it is nakedly apparent. Under the revolutionary government, bands of collectors armed with pikes made raids on villages as in conquered countries;2204the farmer, collared and kept down by blows from the butt end of a musket, sees his grain taken from his barn and his cattle from their stable; "all scampered off on the road to the town;" while around Paris, within a radius of forty leagues, the departments fasted in order that the capital might be fed. With gentler formalities, under a regular government, a similar extortion occurs when the State, employing a respectable collector in uniform, takes from our purse a crown too much for an office outside of its competency. If, as with the Jacobin State, it claims all offices, it empties the purse entirely; instituted for the conservation of property, it confiscates the whole of it.—Thus, with property, as with persons, when the state proposes to itself another purpose than the preservation of these, not only does it overstep its mandate but it acts contrary to its mandate.
It badly fills the office of the bodies it supplant.—Casesin which it usurps their powers and refuses to be theirsubstitute.—Cases in which it violates or profits by theirmechanism.—In all cases it is bad or mediocre substitute.—Reasons derived from its structure compared with that ofother bodies.
Let us consider the other series of abuses, and the way in which the State performs the service of the corporate bodies it supplants.
In the first place there is a chance that, sooner or later, it will shirk this work, for this new service is more or less costly, and, sooner or later, it seems too costly.—Undoubtedly the State has promised to defray expenses; sometimes even, like the Constituent and Legislative assemblies, the revenues for this having been confiscated, it has to furnish an equivalent; it is bound by contract to make good the local or special sources of revenue which it has appropriated or dried up, to furnish in exchange a supply of water from the grand central reservoir, the public treasury.—But if water becomes low in this reservoir, if the taxes in arrears stop the regular supply, if a war happens to open a large breach in it, if the prodigality and incapacity of the rulers, multiply its fissures and leaks, then there is no money on hand for accessory and secondary services. The State, which has adopted this service drops it: we have seen under the Convention and the Directory how, having taken the property of all corporations, provinces, and communes, of institutions of education, art, and science, of churches, hospitals, and asylums, it performed their functions; how, after having been a despoiler and a robber, it became insolvent and bankrupt; how its usurpation and bankruptcy ruined and then destroyed all other services; how, through the double effect of its intervention and desertion, it annihilated in France education, worship, and charity; why the streets in the towns were no longer lighted nor swept; why, in the provinces, roads went to decay, and dikes crumbled; why schools and churches stood empty or were closed; why, in the asylum and in the hospital, foundlings died for lack of milk, the infirm for lack of clothing and food, and the sick for lack of broth, medicines, and beds.2205
In the second place, even when the State respects a service or provides the means for it, there is a chance that it will pervert this simply because it comes under its direction.—When rulers lay their hands on an institution it is almost always for the purpose of making something out of it for their own advantage and to its detriment: they render everything subordinate to their interests or theories, they put some essential piece or wheel out of shape or place; they derange its action and put the mechanism out of order; they make use of it as a fiscal, electoral, or doctrinal engine, as a reigning or sectarian instrument.—Such, in the eighteenth century, was the ecclesiastical staff with which we are familiar,2206court bishops, drawing-room abbés imposed from above on their diocese or their abbey, non-residents, charged with functions which they do not fulfill, largely-paid idlers, parasites of the Church, and, besides all this, worldly, gallant, often unbelievers, strange leaders of a Christian clergy and which, one would say, were expressly selected to undermine Catholic faith in the minds of their flocks, or monastic discipline in their convents.—Such, in 1791,2207is the new constitutional clergy, schismatic, excommunicated, interlopers, imposed on the orthodox majority to say masses which they deem sacrilegious and to administer sacraments which they refuse to accept.
In the last place, even when the rulers do not subordinate the interests of the institution to their passions, to their theories, or to their own interests, even when they avoid mutilating it and changing its nature, even when they loyally fulfill, as well as they know how, the supererogatory (distributive) mandate which they have adjudged to themselves, they infallibly fulfill it badly, at least worse than the special and spontaneous bodies for which they substitute themselves, for the structure of these bodies and the structure of the state are different.—Unique of its kind, alone wielding the sword, acting from above and afar by authority and constraints, the State acts over the entire territory through uniform laws, through imperative and minute regulations, by a hierarchy of obedient functionaries, which it maintains under strict instructions. Hence, it is not adapted to business which, to be well done, needs springs and processes of another species. Its springs, wholly exterior, are insufficient, too weak to support and push undertakings which require an internal motor like private interest, local patriotism, family affections, scientific curiosity, charitable instincts, and religious faith. Its wholly mechanical processes, too rigid and too limited, cannot urge on enterprises which demand of whoever undertakes them delicate and safe handling, supple manipulation, appreciation of circumstances, ready adaptation of means to ends, constant contrivance, the initiative, and perfect independence. On this account the State is a poor head of a family, a poor commercial or agricultural leader, a bad distributor of labor and of subsistence, a bad regulator of production, exchanges, and consumption, a mediocre administrator of the province and the commune, an undiscerning philanthropist, an incompetent director of the fine arts, of science, of instruction, and of worship.2208In all these offices its action is either dilatory or bungling, according to routine or oppressive, always expensive, of little effect and feeble in returns, and always beyond or apart from the real wants it pretends to satisfy. The reason is that it starts from too high a point therefore extending over too vast a field. Transmitted by hierarchical procedures, it lags along in formalism, and loses itself in "red-tape." On attaining its end and object it applies the same program to all territories alike a program devised beforehand in the Cabinet, all of a piece, without experimental groping and the necessary corrections;
* a program which, calculated approximately according to the average and the customary, is not exactly suited to any particular case;
* a program which imposes its fixed uniformity on things instead of adjusting itself to its diversity and change;
* a sort of model coat, obligatory in pattern and stuff, which the government dispatches by thousands from the center to the provinces, to be worn, willingly or not, by figures of all sizes and at all seasons.
Other consequences.—Suppressed or stunted bodies cease togrow.—Individuals become socially and politicallyincapable.—The hands into which public power then falls.—Impoverishment and degradation of the social body.
And much worse. Not only does the State do the work badly on a domain not its own, roughly, at greater cost, and with smaller yield than spontaneous organizations, but, again, through the legal monopoly which it deems its prerogative, or through its unfair competition, it kills and paralyzes these natural organizations or prevents their birth; and hence so many precious organs, which, absorbed, curbed or abandoned, are lost to the great social body.—And still worse, if this system lasts, and continues to crush them out, the human community loses the faculty of reproducing them; entirely extirpated, they do not grow again; even their germ has perished. Individuals no longer know how to form associations, how to co-operate under their own impulses, through their own initiative, free of outside and superior constraint, all together and for a long time in view of a definite purpose, according to regular forms under freely-chosen chiefs, frankly accepted and faithfully followed. Mutual confidence, respect for the law, loyalty, voluntary subordination, foresight, moderation, patience, perseverance, practical good sense, every disposition of head and heart, with which no association of any kind is efficacious or even viable, have died out for lack of exercise. Henceforth spontaneous, pacific, and fruitful co-operation, as practiced by a free people, is unattainable; men have arrived at social incapacity and, consequently, at political incapacity.—In fact they no longer choose their own constitution or their own rulers; they put with these, willingly or not, according as accident or usurpation furnishes them: now the public power belongs to the man, the faction, or the party sufficiently unscrupulous, sufficiently daring, sufficiently violent, to seize and hold on to it by force, to make the most of it as an egotist or charlatan, aided by parades and prestige, along with bravura songs and the usual din of ready-made phrases on the rights of Man and the public salvation.—This central power itself has in its hands no body who might give it an impetus and inspiration, it rules only over an impoverished, inert, or languid social body, solely capable of intermittent spasms or of artificial rigidity according to order, an organism deprived of its secondary organs, simplified to excess, of an inferior or degraded kind, a people no longer anything but an arithmetical sum of separate, unconnected units, in brief, human dust or mud.—This is what the interference of the State leads to.
There are laws in the social and moral world as in the physiological and physical world; we may misunderstand them, but we cannot elude them; they operate now against us, now for us, as we please, but always alike and without heeding us; it is for us to heed them; for the two conditions they couple together are inseparable; the moment the first appears the second inevitably follows.
2201 (return)[ Macaulay, "Essays: Gladstone on Church and State."—This principle, of capital importance and of remarkable fecundity, may be called the principle of specialties. Adam Smith fist applied it to machines and to workmen. Macaulay extended it to human associations. Milne-Edwards applied it to the entire series of animal organs. Herbert Spencer largely develops it in connection with physiological organs and human societies in his "Principles of Biology" and "Principles of Sociology." I have attempted here to show the three parallel branches of its consequences, and, again, their common root, a constitutive and primordial property inherent in every instrumentality.]
2202 (return)[ Cf. "The Revolution," III., book VI., ch. 2 The encroachments of the State and their effect on individuals is there treated. Here, the question is their effects on corporations. Read, on the same subject, "Gladstone on Church and State," by Macaulay, and "The Man versus the State," by Herbert Spencer, two essays in which the close reasoning and abundance of illustrations are admirable.]
2203 (return)[ "The Revolution," III, 346. (Laffont II. p 258.)]
2204 (return)[ Ibid., III. 284 Laff. 213.]
2205 (return)[ "The Revolution," III., 353, 416. (Laffont II. notes pp 262 and 305 to 308.)]
2206 (return)[ "The Ancient Régime," 64, 65, 76, 77, 120, 121, 292. (Laffont I. pp. 52-53, 60-61, 92 to 94, 218 to 219.)]
2207 (return)[ "The Revolution," I., 177 and following pages. (Laffont I, pp. 438 to 445.)]
2208 (return)[ The essays of Herbert Spencer furnish examples for England under the title of "Over-legislation and Representative government." Examples for France may be found in "Liberté du Travail," by Charles Dunoyer (1845). This work anticipates most of the ideas of Herbert Spencer, lacking only the physiological "illustrations."]
Precedents of the new organization.—In practicaloperation.—Anterior usurpations of the public power.—Spontaneous bodies under the Ancient Regime and during theRevolution.—Ruin and discredit of their supports.—Thecentral 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 (états) over three-quarters of the territory, in all the electoral districts; nothing remained of the old province but its name and an administrative circumscription.
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 constitutions, through restrictions put upon electoral rights and repeated sales of municipal offices,2301it had handed over municipal 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 classes, 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 noble 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 noble 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.2303Thus, 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.2305Such was the case with the universities benumbed by routine; with latest provincial "Ètats," constituted in 1789, as in 1489. Such was the case with noble families subjected by law to the antique system of substitutions 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,2306in detestable calculations, domestic tyrannies, forced vocations, and private bickering, from the time when the nobles, 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. Nobody, 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 legislatures2307he 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 institutions:
* 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.2308Changes 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.2309In 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.
The theory.—Agreement of speculative ideas with practicalnecessities.—Public rights under the Ancient Regime.—TheKing's three original rights.—Labors of the jurists inextending royal prerogatives.—Historical impediments.—Theprimitive or ulterior limits of royal power.—Thephilosophic and revolutionary principle of popularsovereignty.—Unlimited extension of State power.—Application to spontaneous bodies.—Convergence of ancientand new doctrines.—Corporations considered as creations ofthe public power.—Centralization through the universalintervention 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 titles 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 God like a second David,2311not 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;2312accordingly, through this transfer, all rights, public or private, passed 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 constituted 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 titles limited his Roman title. 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 nobles. 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 nobles and the Church, so many immunities and even liberties, so many remains of antique local independence, and even of antique local sovereignty,2315so 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 (états), 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, associated 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,2316often 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 classes are reduced to one,2317the complete surrender of each associate, 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 passage from the sovereignty of the King to the sovereignty of the people was easy, smooth,2318and 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 Régime, 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 lésé majesté,
* 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 Cambacérès, in those of the Constituant and Legislative Assemblies, 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.2319Such 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 associations 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,2320inventor of the first, had like-wise enunciated the second; the constituent assembly had solemnly decreed it and applied it on a grand scale,2321and successive assemblies had applied it on a still grander scale;2322it 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 Barbé-Marbois. There was nobody 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.