The State of Society in France Before the Revolution of 1789

1. Eleven kinds of Courts of Common Law, four of which, it is true, seem to have already fallen into disuse.

2. Three kinds of courts, the jurisdiction of which extends to the whole country, but which take cognisance only of certain matters.

3. Ten kinds of courts, having a special character of their own. One of these kinds consists of Local Courts, established by different Acts of Parliament, and existing by tradition, either in London itself or in towns and boroughs in the counties. These Courts were so numerous, and were so extremely various in their constitution and in their regulations, that it would be out of the question to attempt to give a detailed account of them.

Thus, in England (properly so called) alone, if Blackstone is to be believed, there existed, at the period when he wrote, that is to say, in the second half of the eighteenth century, twenty-four kinds of Courts, several of which were subdivided into a great number of individual courts, each of which had its special peculiarities. If we set aside those kinds, which appear at that time to have almost fallen into disuse, we shall then find eighteen or twenty.

If now the judicial system in itself be examined it will be found to contain all sorts of imperfections.

In spite of the multiplicity of the courts there was frequently a want of smaller courts, of primary instance, placed within the reach of those concerned, and empowered to judge on the spot, and at little expense, all minor matters. This want rendered such legal proceedings perplexing and expensive. The same matters came under the jurisdiction of several courts; and thus an embarrassing uncertainty hung over the commencements of legal proceedings. Some of the Appeal Courts were also Courts of original jurisdiction—sometimes the Courts of Common Law, at other times the Courts of Equity. There was a great diversity of Appeal Courts. The only central point was that of the House of Lords. The administrative litigant was not separated from the ordinary litigant—a fact which, in the eyes of most French legal men, would appear a monstrous anomaly. All these courts, moreover, looked for the grounds of their judgments in four different kinds of legislation; that of the Courts of Equity was established upon practice and tradition, since its very object was most frequently to go against custom and statute, and to correct, by the rules of the system framed by the Judges in Equity, all that was antiquated or too harsh in statute and custom.

These blemishes were very great; and if the enormous old machine of the English judicial system be compared with the modern construction of that of France, and the simplicity, consistence, and natural connexity to be observed in the latter, with the remarkable complication and incoherence of the former, the errors of the English jurisprudence will appear greater still. Yet there is not a country in the world in which, in the days of Blackstone, the great ends of justice are more completely attained than in England; that is to say, no country in which every man, whatever his condition of life—whether he appeared in court as a common individual or a Prince—was more sure of being heard, or found in the tribunals of his country better guarantees for the defence of his property, his liberty, and his life.

It is not meant by this that the defects of the English judicial system were of any service to what I have here called the great ends of justice: it proves only that in every judicial organisation there are secondary defects that are only partially injurious to these ends of justice; and other principal ones, that not only prove injurious to them, but destroy them altogether, although joined to many secondary perfections. The first mentioned are the most easily perceived; they are the defects that generally first strike common minds: they stare one in the face, as the saying goes. The others are often more concealed; and it is not always the men the most learned in the law, and other men in the profession, who discover them and point them out.

It must be observed, moreover, that the same qualities may be either secondary or principal, according to the period of history or the political organisation of a country. In periods of aristocratic predominance and inequality everything that tends to lessen any privilege of any individual before the face of justice, to afford guarantees to the weak against the strong, and to give a predominance to the action of the state—which is naturally impartial in differences only occurring between subjects—becomes a principal quality; whereas it diminishes in importance in proportion to the inclination of the social state and political constitution towards democracy.

In studying the English judicial system upon these principles it will be found that, although it permitted the existence of every defect that could contribute to render justice in that country obscure, hampered, slow, expensive, and inconvenient, it had taken infinite precautions to prevent the strong from ever being favoured at the expense of the weak, or the State at the expense of the private individual. The more the observer penetrates into the details of the English legislation the more he will see that every citizen was provided with all sorts of weapons for his defence, and that matters were so arranged as to afford to every one the greatest number of guarantees possible against partiality, actual venality, and that sort of venality which is more common, and especially more dangerous in democratic times—the venality consisting of the servility of the courts towards the Government.

In this point of view the English judicial system, in spite of the numerous secondary errors that may still be found in it, appears to me superior to the French, which, although almost entirely untainted, it is true, by any one of these defects, does not at the same time offer in like degree the principal qualities that are to be found in it, which, although excellent in the guarantees it affords to every citizen in all disputes between individuals, fails precisely in that point that ought always to be strengthened in a democratic state of society like the French, namely, in the guarantees afforded to individuals against the State.

Note (LXVIII.)—Page 151, line 19ADVANTAGES ENJOYED BY THE GÉNÉRALITÉ OF PARIS

This Généralité was as much favoured in charities bestowed by the Government as it was in the levying of taxes. An example may be found in a letter of the Contrôleur-Général to the Intendant of the Généralité of the Île-de-France (dated May 22nd, 1787), in which he informs the latter that the King had fixed the sum, which was to be employed upon works of charity during the year, in the Généralité of Paris, at 172,800 livres; and 100,000 livres, moreover, were destined for the purchase of cows, to be given to different husbandmen. It may be seen by this letter that the sum of 172,000 livres was to be distributed by the Intendant alone, with the proviso that he was to conform himself to the general rules already made known to him by the Government, and that he was to lay the account of the distribution before the Contrôleur-Général for approval.

Note (LXIX.)—Page 152, line 27

The administration of the old monarchy was made up of a multitude of different powers, which had been established at different times, but generally for the purposes of the Treasury, and not of the Administration, properly so called, and which frequently had the same field of action. It was thus impossible to avoid confusion and contention otherwise than by each party acting but little, or even doing nothing at all. As soon as they made any efforts to rise above this sort of languor, they hampered and entangled each other’s movements; and thus it happened that the complaints made against the complication of the administrative machinery, and the confusion as to its different attributions, were very much more grievous during the years that immediately preceded the Revolution than thirty or forty years before. The political institutions of the country had not become worse—on the contrary, they had been greatly ameliorated; but the general political movement had become much more active.

Note (LXX.)—Page 157, line 30ARBITRARY AUGMENTATION OF THE TAXES

What was here said by the King respecting the taille might have been said by him, with as much reason, concerning the vingtièmes, as may be seen by the following correspondence:—In 1772 the Contrôleur-Général Terray had decided upon a considerable augmentation (as much as 100,000 livres) upon the vingtièmes of the Généralité of Tours. It is evident that this measure caused M. Ducluzel, an able administrator and an honourable man, both sorrow and embarrassment; for, in a confidential letter, he says: ‘It is probably the facility with which the 200,000 livres’ (a previous augmentation) ‘have been given, that has encouraged the cruel interpretation and the letter of the month of June.’

In a private and confidential letter, which the Director of Contributions wrote thereupon to the Intendant, he says: ‘If the augmentations which have been demanded appear to you, on account of the general distress, to be as aggravating and as revolting as you give me to understand, it would be better for the province, which can have no other defence or protection than in your generous good-feeling, that you should spare it, at least, the rôles de supplément, a retroactive tax, that is always odious.’

It may be seen by this correspondence what a complete absence there was of any solid basis, and what arbitrary measures were exercised, each with honest intentions. Both Minister and Intendant laid the weight of the increased taxation sometimes upon the agricultural rather than the manufacturing interests, sometimes upon one kind of agriculture more than another (as the growth of vines, for instance), according as they fancied that the manufacturing or any one branch of the agricultural interest ought to be more tenderly handled.

Note (LXXI.)—Page 159, line 13EXPRESSIONS USED BY TURGOT RESPECTING THE COUNTRY PEOPLE IN THE PREAMBLE OF A ROYAL DECLARATION

‘The rural communities consist, throughout the greater part of the kingdom, of poor peasants, who are ignorant and brutal, and incapable of self-administration.’

Note (LXXII.)—Page 163, line 24HOW IT WAS THAT REVOLUTIONARY IDEAS NATURALLY SPRANG UP IN MEN’S MINDS, EVEN UNDER THE OLD MONARCHY

In 1779 an avocat addressed a petition to the Council for a decree to establish a maximum of the price of straw throughout the whole kingdom.

Note (LXXIII.)—Page 163, line 32

The Head Engineer, in a letter written to the Intendant, in 1781, relative to a demand for an increase of indemnification, thus expresses himself: ‘The claimant does not pay heed to the fact that the indemnifications granted are an especial favour to the Généralité of Tours, and that people ought to consider themselves very fortunate in recovering only a part of their loss. If such compensations as the claimant requires were to be given, four millions would not suffice.’

Note (LXXIV.)—Page 167, line 39

The Revolution did not break out on account of this prosperity, but that active, uneasy, intelligent, innovating, ambitious spirit, that was destined to produce the Revolution—the democratic spirit of new states of society—began to stir up everything, and, before it overthrew for a period the social state of France, was already strong enough to agitate and develop it.

Note (LXXV.)—Page 169, line 13COLLISION OF THE DIFFERENT ADMINISTRATIVE POWERS IN 1787

The following may be taken as an example:—The intermediate commission of the Provincial Assembly of the Île-de-France claimed the administration of the Dépôt de Mendicité. The Intendant insisted upon its remaining in his own hands, ‘inasmuch,’ said he, ‘as this establishment is not kept up by the funds of the province.’ During the discussion, the intermediate commission communicated with the intermediate commissions of other provinces, in order to learn their opinions. Among other answers given to its questions, exists one from the intermediate commission of Champagne, informing that of the Île-de-France that it had met with the very same difficulties, and had offered the same resistance.

Note (LXXVI.)—Page 172, line 2

In the minutes of the first Provincial Assembly of the Île-de-France, the following declaration may be found, proceeding from the mouth of the reporter of the committee:—‘Up to the present time the functions of syndic, which are far more onerous than honourable, are such as to indispose from accepting them all those who unite a sufficient competency to the intelligence to be expected from their position in life.’

Note (LXXVII.)—Page 173, line 9FEUDAL RIGHTS, WHICH STILL EXISTED AT THE PERIOD OF THE REVOLUTION, ACCORDING TO THE FEUDAL LAWYERS

It is not the intention of the author here to write a treatise upon feudal rights, and, least of all, to attempt any research into their possible origin. It is simply his desire to point out those which were still exercised in the eighteenth century. These rights played so important a part at that time, and have since retained so large a space in the imagination of the very persons who have no longer anything to suffer from them, that it was a most interesting task to find out precisely what they were when the Revolution destroyed them all. For this purpose a great number of terriers, or rolls of feudal manors, were studied,—those of the most recent date being selected. But this manner of proceeding led to nothing; for the feudal rights, although regulated by a legal code, which was the same throughout the whole of feudal Europe, were infinitely various in their kinds, according to the province, or even the districts, where they existed. The only system, then, which appeared likely to lead, in an approximate manner, to the required result, was the following:—These feudal rights were continually giving rise to all sorts of disputes and litigation. In these cases it was necessary to know how these rights were acquired, how they were lost, in what they consisted exactly, which were the dues that could only be collected by virtue of a Royal patent, which those that could only be established by private title, which those on the contrary that had no need of formal titles, and might be collected upon the strength of local custom, or even in virtue of long usage. Again, when they were for sale, it was necessary to know in what manner they were to be valued, and what capital each of them represented, according to its importance. All these points, so immediately affecting a thousand pecuniary interests, were subject to litigation; and thus was constituted a distinct class of legal men, whose only occupation it was to elucidate them. Many of these men wrote during the second half of the eighteenth century; some even just upon the threshold of the Revolution. They were not lawyers, properly speaking, but practitioners, whose only task it was to point out to professional men the rules to be followed in this special and little attractive portion of legal science. By an attentive study of these feudistes, a tolerably minute and distinct idea of a subject, the size and confusion of which is at first bewildering, may be at last come at. The author gives below the most succinct summary he was able to make of his work. These notes are principally derived from the work of Edmé de Fréminville, who wrote about the year 1750, and from that of Renauldon, written in 1765, and entitled ‘Traité historique et pratique des Droits Seigneuriaux.’

The cens (that is to say, the perpetual quit-rent, in kind and in money, which, by the feudal laws, was affixed to the possession of certain lands) still, in the eighteenth century, affected most deeply the position of a great number of landed proprietors. This cens continued to be indivisible, that is to say, the entire cens might be claimed of any one of the possessors of the property, subject to the cens at will. It was always irredeemable. No proprietor of any lands, subject to the cens, could sell them without being exposed to the retrait censuel, that is to say, without being obliged to let the property be taken back at the price of the sale; but this only took place in certain coutumes. The coutume of Paris, which was the most general, did not recognise this right.

Lods et Ventes.—It was a general rule that, in every part of the country where the coutume prevailed, the sale of every estate subject to the cens should produce what were called lods et ventes; in other words, the fines paid to the lords of the manor, upon the alienation of this kind of property. These dues were more or less considerable, according to the customs of the manor, but were everywhere considerable enough; they existed just as well in parts where the droit écrit (written law) was established. They generally consisted of one-sixth of the price, and were then named lods. But in these parts the lord of the manor had to establish his rights. In what was called pays écrit, as well as in pays coutumier, the cens gave the lord of the manor a privilege which took precedence of all other debts on the estate.

Terrage or Champart.—Agrier.—Tasque.—These dues consisted of a certain portion of the produce, which the lord of the manor levied upon lands subject to the cens. The amount varied according to the contracts or the customs of the place. This right is frequently to be met with in the eighteenth century. I believe that the terrage, even in pays coutumier, could only be claimed under express deed. The terrage was either seigneurial or foncier. It is not necessary to explain here the distinctions which existed between these two different kinds. Suffice it to say that the terrage foncier was fixed for thirty years, like the rentes foncières, whilst the terrage seigneurial was irredeemable. Lands subject to terrage could not be mortgaged without the consent of the lord of the manor.

Bordelage.—A right which only existed in the Nivernais and Bourbonnais countries, and which consisted in an annual quit-rent, paid in money, corn, and fowls, upon lands subject to the cens. This right entailed very rigorous consequences: non-payment of the dues during three years gave cause for the exercise of the commise or entry to the advantage of the lord of the manor. A tenant owing the bordelage was more open than any other to a variety of annoyances on his property. Sometimes the lord of the manor possessed the right of claiming his inheritance, even when he died having heirs who had legal rights to the succession. This was the most rigorous of any of the feudal rights; and the law had finally restricted it only to rural inheritances. ‘For,’ as our author says, ‘the peasant is always the mule ready to bear every burden.’

Marciage was the name of peculiar dues levied upon the possessors of land, subject to the cens, in very few places, and consisting in certain payments due only upon the natural death of the lord of the manor.

Dîmes Inféodées.—There still existed in the eighteenth century a great number of tithes in fief. They were generally established by separate contract, and did not result from the mere fact of the lordship of the manor.

Parcière.—The parcières were dues levied upon the crops of fruit gathered on the manor-lands. They bore resemblance to the champart and the dîme inféodée, and were principally in usage in the Bourbonnais and Auvergne countries.

Carpot.—This was observed in the Bourbonnais country, and was a due levied upon the vineyards, as the champart was upon arable lands, that is to say, it was levied upon a portion of the crops. It amounted to a quarter of the vintage.

Servage.—The customs that still possessed traces of serfdom were called coutumes serves; they were very few in number. In the provinces where they were still observed there were no estates, or at least very few, where some traces of ancient serfdom were not visible. [This remark is derived from a work written in 1765.] The Servage (or, as the author terms it, the Servitude) was either personal or real.

The personal servitude was attached to the person, and followed him everywhere. Wherever the serf might go, to whatever place he might transport his substance, he might be reclaimed by the lord by right of suite. Our authors cite several legal verdicts that establish this right—among others, a verdict given on the 17th June, 1760, in which the court decides against a Seigneur of the Nivernais in respect to his right of claiming the succession of Pierre Truchet, who was the son of a serf subject to poursuite, according to the custom of the Nivernais, who had married a Parisian woman, and who had died in Paris, as well as his son. But this verdict seems to have been founded on the fact that Paris was a ‘place of refuge’ (lieu d’asile) in which the suite could not take place. If the right of asile alone prevented the Seigneur from seizing upon property possessed by his serfs in the lieu d’asile, it formed no opposition against his claiming to succeed to property left in his own manor.

The ‘real’ servitude resulted from the occupation of land, and might cease upon the land being given up or residence in a certain place changed.

Corvées.—The right possessed by the lord of the manor over his subjects, by means of which he could employ for his own profit a certain number of their days of labour, or of their oxen and horses. The corvée à volonté, that is to say, at the arbitrary will of the Seigneur, had been completely abolished: forced labour had been for some time past confined to a certain number of days a year.

The corvée might be either personal or real. The personal corvées were paid by labourers and workmen, whose residence was established upon the manor, each according to his occupation. The real corvées were attached to the possession of certain lands. Nobles, ecclesiastics, clerical personages, officers of justice, advocates, physicians, notaries, and bankers, and men in that position of life, were exempt from the corvée. A verdict, given on the 13th August, 1735, is cited by one of our authors, exempting a notary whom his Seigneur wanted to force to come for nothing, during three days, and draw up certain law papers concerning the seigneurie on which the notary resided. Another verdict, of the date of 1750, decides that, when the corvée is personal, it may be paid either in person or by money, the choice to be left to the person by whom it is due. Every corvée had to be established by written title-deeds. The corvée seigneuriale had become extremely rare in the eighteenth century.

Banalités. (Rights possessed by the lords of certain manors to oblige those residing on them to make use of his baking-office, mill, &c., upon payment.)—The provinces of Flanders, Artois, and Hainault were alone exempt from banalités. The Custom of Paris rigorously requires that this should not be exercised without written title. Every person domiciled within the circuit of the banalité was subject to it, and, most generally, even the nobles and priests also.

Besides the banalité of the wine-press and baking-office there existed several others:—

(1.) Banalités of industrial establishments, such as for cloth, tanning, or hemp. This banalité is established by many coutumes, as for instance, by those of Anjou, the Maine, and Brittany.

(2.) Banalités of the wine-press. Few coutumes mention this. But that of Lorraine, as well as that of the Maine, establish it.

(3.) Banalité of the manor bull. No coutumes mention this; but there were title-deeds that established the right. The same may be said of the right of banalité for butchers’ shambles.

In general these latter banalités of which we have just spoken were more uncommon, and looked upon with a still less favourable eye than the others. They could only be exercised by the clearest declaration of the coutumes, or, where that was wanting, by the most precise title.