The Modern Regime, Volume 1

by Hippolyte Taine

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 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,[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, 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,[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 (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,[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 classes are reduced to one,[2317] the 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,[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 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,