The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface.
• The Old Regime and the Revolution.
• Book First.
• Chapter I.: Contradictory Opinions Formed Upon the Revolution When It Broke Out.
• Chapter II.: That the Fundamental and Final Object of the Revolution Was Not, As Some Have Supposed, to Destroy Religious and to Weaken Political Authority.
• Chapter III.: That the French Revolution, Though Political, Pursued the Same Course As a Religious Revolution, and Why.
• Chapter IV.: How the Same Institutions Had Been Established Over Nearly All Europe, and Were Every Where Falling to Pieces.
• Chapter V.: What Did the French Revolution Really Achieve?
• Book Second.
• Chapter I.: Why the Feudal Rights Were More Odious to the People In France Than Any Where Else.
• Chapter II.: That We Owe “administrative Centralization,” Not to the Revolution Or the Empire, As Some Say, But to the Old Regime
• Chapter III.: That What Is Now Called “the Guardianship of the State” (tutelle Administrative) Was an Institution of the Old Regime.
• Chapter IV.: That Administrative Tribunals (la Justice Administrative) and Official Irresponsibility (garantis Des Fonctionnaires) Were Institutions of the Old Regime.
• Chapter V.: How Centralization Crept In Among the Old Authorities, and Supplanted Without Destroying Them.
• Chapter VI.: Of Official Manners and Customs Under the Old Regime.
• Chapter VII.: How the Capital of France Had Acquired More Preponderance Over the Provinces, and Usurped More Control Over the Nation, Than Any Other Capital In Europe.
• Chapter VIII.: That Frenchmen Had Grown More Like Each Other Than Any Other People.
• Chapter IX.: That These Men, Who Were So Alike, Were More Divided Than They Had Ever Been Into Petty Groups, Each Independent of and Indifferent to the Others.
• Chapter X.: How the Destruction of Political Liberty and Class Divisions Were the Causes of All the Diseases of Which the Old Regime Died.
• Chapter XI.: Of the Kind of Liberty Enjoyed Under the Old Regime, and of Its Influence Upon the Revolution.
• Chapter XII.: How the Condition of the French Peasantry Was Worse In Some Respects In the Eighteenth Century Than It Had Been In the Thirteenth, Notwithstanding the Progress of Civilization.
• Chapter XIII.: How, Toward the Middle of the Eighteenth Century, Literary Men Became the Leading Politicians of the Country, and of the Effects Thereof.
• Chapter XIV.: How Irreligion Became a General Ruling Passion Among Frenchmen In the Eighteenth Century, and of the Influence It Exercised Over the Character of the Revolution.
• Chapter XV.: How the French Sought Reforms Before Liberties.
• Chapter XVI.: That the Reign of Louis XVI. Was the Most Prosperous Era of the Old Monarchy, and How That Prosperity Really Hastened the Revolution.
• Chapter XVII.: How Attempts to Relieve the People Provoked Rebellion.
• Chapter XVIII.: Of Certain Practices By Means of Which the Government Completed the Revolutionary Education of the People.
• Chapter XIX.: How Great Administrative Changes Had Preceded the Political Revolution, and of the Consequences Thereof.
• Chapter XX.: How the Revolution Sprang Spontaneously Out of the Preceding Facts.
• Appendix.
• Of the Pays D’etats, and Languedoc In Particular.
• Note Referring to Various Passages In This Volume.
• Feudal Rights Existing At the Time of the Revolution, According to the Feudal Lawyers of the Day.
• Estimate of the Various Tenures In Use In France Before the Revolution.

CHAPTER IV.

HOW THE SAME INSTITUTIONS HAD BEEN ESTABLISHED OVER NEARLY ALL EUROPE, AND WERE EVERY WHERE FALLING TO PIECES.

THE tribes which overthrew the Roman empire, and eventually constituted modern nations, differed in race, origin, and language; they were alike in barbarism only. They found the empire in hopeless confusion, which they aggravated; and thus, when they settled, each was isolated from the others by the ruins it had made. Civilization was almost extinct. Social order had ceased to exist. International communication was difficult and dangerous. Safety dictated the division of the great European family into a thousand little states, which soon became exclusive and hostile to each other.

Yet out of this chaos uniform laws suddenly issued.

They were not borrowed from Roman legislation. They were, indeed, so much opposed to it that the old Roman law was the instrument afterward used to transform and abolish them.a Their principles were original, and wholly different from any that had ever been broached before. Composed of symmetrical parts, knit together as closely as the articles of any modern code, they constituted a body of really learned laws for the use of a semi-barbarous people.

It is not my design to inquire how such a system was formed and spread over Europe. I merely note the fact that, during the Middle Ages, it existed to some extent in every country; and in many, to the total exclusion of all other systems.

I have had occasion to study the political institutions which flourished in England, France, and Germany during the Middle Ages. As I advanced in the work, I have been filled with amazement at the wonderful similarity of the laws established by races so far apart and so widely different. They vary constantly and infinitely, it is true, in matters of detail, but in the main they are identical every where. Whenever I discovered in the old legislation of Germany a political institution, a rule, or a power, I knew that a thorough search would bring something similar to light in France and England; and I never failed to find it so. Each of the three nations enabled me to understand the other two.

In all three the government was carried on in accordance with the same principles: the political assemblies were constituted from the same materials, and armed with the same powers; society was divided into the same classes, on the same sliding-scale; the nobles occupied the same rank, enjoyed the same privileges, were marked by the same natural characteristics—in short, the men were, properly speaking, identically the same in all.

The city constitutions resembled each other; the rural districts were governed on one uniform plan. There was no material difference in the condition of the peasantry; land was held, occupied, cultivated on the same plan, and the farmer paid the same taxes. From the confines of Poland to the Irish Sea we can trace the same seigniories, seigniors’ court, feuds, rents, feudal services, feudal rights, corporate bodies. Sometimes the names are the same, and, what is still more remarkable, the same idea pervades all these analogous institutions. I think it is safe to say that in the fourteenth century the various social, political, administrative, judicial, economical, and literary institutions of Europe were more nearly alike than they are now, though civilization has done so much to facilitate intercourse and efface national barriers.

The task I have undertaken does not require me to relate how this old constitution of Europe gradually gave way and broke down; I merely state that in the eighteenth century it was in proximate ruin every where.b Decay was least conspicuous in the eastern half of the continent, and most in the west; but old age and decrepitude were prominent on all sides.

The records of the old Middle-Age institutions contain the history of their decline. It is well known that land registers (terriers) were kept in each seigniory, in which, century after century, were entered the boundaries of the feuds and seigniories, the rents due, the services to be rendered, the local customs. I have seen registers of the fourteenth and thirteenth centuries, which are masterpieces of method, perspicuity, and intellect. The more modern ones grow more obscure, more incomplete, more confused as they approach our own day. It would seem as though the civilization of society had involved the relapse of the political system into barbarism.

The old European constitution was better preserved in Germany than in France; but there, too, a portion of the institutions to which it had given life were already destroyed. One can judge of the ravages of time, however, better from the portion which survived than from that which had perished.

Of the municipal franchises which, in the thirteenth and fourteenth centuries, had converted the chief cities of Germany into rich and enlightened republics,c a mere empty shadow remained. Their enactments were unrepealed; their magistrates bore the old titles, and appeared to perform the old duties; but the activity, the energy, the civic patriotism, the manly and fruitful virtues of olden time had vanished. These venerable institutions seemed to have sunk down without distortion.

All the surviving mediæval sources of authority had suffered from the same disease; all alike were decayed and languishing. Nor was this all: every thing which, without actually growing out of the mediæval system, had been connected with it and marked by its stamp, seemed equally lifeless. Aristocracy wore an air of servile debility. Even political freedom, which had filled the Middle Ages with its works, became sterile in the dress in which they had clothed it. Those provincial assemblies which had preserved their old constitution in its integrity were rather a hindrance than a help to civilization. They presented a stolid, impenetrable front to the march of intellect, and drove the people into the arms of monarchs. There was nothing venerable in the age of these institutions; the older they grew, the smaller their claims to respect; and somehow, the more harmless they became, the more hatred they seemed to inspire. A German writer, whose sympathies were all on the side of the old regime under which he lived, says, “The present state of things is shameful for all of us, and even contemptible. It is strange how unfavorably men look upon every thing that is old. Novelty penetrates even the family circle, and overturns its peace. Our very housekeepers want to get rid of their old furniture.” Yet in Germany, as in France, society was then thrilling with activity, and highly prosperous; but (mark this well! it is the finishing touch to the picture) every living, acting, producing agent was new, and not only new, but contrary to the old.

Royalty had nothing in common with mediæval royalty; its prerogatives were different, its rank had changed, its spirit was new, the homage it received was unusual. The central power encroached on every side upon decaying local franchises. A hierarchy of public functionaries usurped the authority of the nobles. All these new powers employed methods and took for their guide principles which the Middle Ages either never knew or rejected, and which, indeed, were only suitable for a state of society they never conceived.

At first blush it would appear that the old constitution of Europe is still in force in England; but, on a closer view, this illusion is dispelled. Forget old names, pass over old forms, and you will find the feudal system substantially abolished there as early as the seventeenth century: all classes freely intermingled, an eclipsed nobility, an aristocracy open to all, wealth installed as the supreme power, all men equal before the law, equal taxes, a free press, public debates—phenomena which were all unknown to mediæval society. It was the skillful infusion of this young blood into the old feudal body which preserved its life, and imbued it with fresh vitality, without divesting it of its ancient shape. England was a modern nation in the seventeenth century, though it preserved, as it were embalmed, some relies of the Middle Ages.

This hasty glance at foreign nations was essential to a right comprehension of the following pages. No one can understand the French Revolution without having seen and studied something more than France.

[Note a, page 29.]influence of the roman law in germany.—how it had replaced the germanic law.

At the close of the Middle Ages the Roman law became the chief and almost the only study of the German lawyers, most of whom, at this time, were educated abroad at the Italian universities. These lawyers exercised no political power, but it devolved on them to expound and apply the laws. They were unable to abolish the Germanic law, but they did their best to distort it so as to fit the Roman mould. To every German institution that seemed to bear the most distant analogy to Justinian’s legislation they applied Roman law. Hence a new spirit and new customs gradually invaded the national legislation, until its original shape was lost, and by the seventeenth century it was almost forgotten. Its place had been usurped by a medley that was Germanic in name, but Roman in fact.

I have reason to believe that this innovation of the lawyers had a tendency to aggravate the condition of more than one class of Germans, the peasantry especially. Persons who had up to that time succeeded in preserving the whole or a part of their liberty or their property, were ingeniously assimilated to the slaves or emphyteutic tenants of the Roman law, and lost rights and possessions together.

This gradual transformation of the national law, and the efforts which were made to prevent its accomplishment, were plainly seen in the history of Wurtemberg.

From the rise of the county of this name in 1250 to the creation of the duchy in 1495, the whole legislation of Wurtemberg was indigenous in character. It consisted of customs, local city laws, ordinances of seigniorial courts, or statutes of the States. Ecclesiastical affairs alone were regulated by foreign, that is to say, by canon law.

But from the year 1495 a change took place. Roman law began to penetrate the legislation of the duchy. The doctors, as they were called—that is to say, the individuals who had studied at foreign schools—connected themselves with the government, and took the management of the high courts. From the commencement to the middle of the fifteenth century, a struggle between them and the politicians of the day was carried on, similar in character, though different in result from the struggle that took place in England at the very same time. At the Diet of Tubingen in 1514 and the following Diets, the lawyers were attacked violently by the representatives of feudal institutions and the city deputies; they were loudly charged with invading all the courts of justice, and altering the spirit or the letter of all the laws and customs. At first, victory seemed to rest with the assailants. They obtained of government a promise that honorable and enlightened persons, chosen from the nobility and the States of the duchy—not doctors—should be set over the higher courts, and that a commission, consisting of government agents and representatives of the States, should be appointed to draft a bill for a Code to have force throughout the country. Useless effort! The Roman law soon expelled the national law from a large section of the legislative sphere, and even planted its roots in the section where the latter was allowed to subsist.

German historians ascribe this triumph of foreign over domestic law to two causes: 1st. The attraction exercised over the public mind by ancient literature, which necessarily led to a contempt for the intellectual products of the national genius; and, 2dly. The idea—with which the Germans of the Middle Ages, and even their laws, were imbued—that the Holy Empire was a continuation of the Roman Empire, and hence that the legislation of the latter was an heirloom of the former.

These causes do not suffice to explain the simultaneous introduction of Roman law into every Continental country. I think that the singular availability of the Roman law—which was a slave-law—for the purposes of monarchs, who were just then establishing their absolute power upon the ruins of the old liberties of Europe, was the true cause of the phenomenon.

The Roman law carried civil society to perfection, but it invariably degraded political society, because it was the work of a highly civilized and thoroughly enslaved people. Kings naturally embraced it with enthusiasm, and established it wherever they could throughout Europe; its interpreters became their ministers or their chief agents. Lawyers furnished them at need with legal warrant for violating the law. They have often done so since. Monarchs who have trampled the laws have almost always found a lawyer ready to prove the lawfulness of their acts—to establish learnedly that violence was just, and that the oppressed were in the wrong.

[Note b, page 3.]transition from feudal to democratic monarchy.

As all European monarchies became absolute about the same time, it is not probable that the constitutional change was due to accidental circumstances which occurred simultaneously in every country. The natural supposition is that the general change was the fruit of a general cause operating on every country at the same moment.

That general cause was the transition from one social state to another, from feudal inequality to democratic equality. The nobility was prostrate; the people had not yet risen up; the one was too low, the other not high enough to embarrass the movements of the supreme power. For a period of a hundred and fifty years kings enjoyed a golden age. They were all-powerful, and their thrones were stable, advantages usually inconsistent with each other. They were as sacred as the hereditary chiefs of a feudal monarchy, and as absolute as the masters of a democracy.

[Note c, page 32.]decline of free german cities.—imperial cities (Reichstadten).

According to the German historians, these cities reached their highest point of prosperity during the fourteenth and fifteenth centuries. They were then the refuge of the wealth, of the arts, of the learning of Europe, the mistress of commerce, and the centre of civilization. They ended, especially in northern and southern Germany, by forming, with the surrounding nobility, independent confederations, as the Swiss cities had done with the peasantry.

They were still prosperous in the sixteenth century; but their decline had begun. The Thirty Years’ War hastened their downfall; they were nearly all destroyed or ruined during that period.

The Treaty of Westphalia, however, made special mention of them, and maintained their condition as “immediate states,” that is to say, communities independent of all control but the emperor. But neighboring monarchs on one side, and on the other the emperor himself, whose power, after the Thirty Years’ War, was nearly confined in its exercise to these small vassals of the empire, constantly encroached on their sovereignty. They still numbered fifty-one in the eighteenth century. They occupied two benches at the Diet, and had a separate vote. But, practically, their influence over the direction of public affairs was gone.

At home they were overloaded with debts, chiefly arising from the fact that they were still taxed in proportion to their past splendor, and also, in some degree, from their defective administration. It is not a little remarkable that this maladministration appeared to flow from some secret disease that was common to all of them, whatever their constitution happened to be. Aristocratic and democratic forms of government provoked equal discontent. Aristocracies were said to be mere family coteries, in which favor and private interest controlled the government. Democracies were said to be under the sway of intrigue and corruption. Both forms of government were accused of dishonesty and profligacy. The Emperor was constantly obliged to interfere in their affairs to restore order. Their population was falling off, their wealth vanishing. They were no longer the centres of German civilization; the arts had fled from them to take refuge in new cities created by kings, and representing the modern era. Trade had deserted them. Their former energy, their patriotic vigor, had disappeared. Hamburg alone continued to be a great centre of wealth and learning; but this flowed from causes peculiar to itself.