Chapter V: Part 5

The personal government of Louis XVI. from 1774 to 1789 was chiefly marked by two series of facts. Firstly, there was the partial application of the principles propounded by the French economists of this period, the Physiocrats, who had a political doctrine peculiar to themselves. They were not in favour of political liberty, but attached on the contrary to the absolute monarchy, of which they did not fear the abuses because they were convinced that so soon as they should be known, reason (_evidence_) alone would suffice to make the crown respect the "natural and essential laws of bodies politic" (_Lois naturelles et essentielles des societes politiques_, the title of a book by Mercier de La Riviere). On the other hand, they favoured civil and economic liberty. They wished, in particular, to decentralize the administration and restore to the landed proprietors the administration and levying of taxes, which they wished to reduce to a tax on land only. This school came into power with Turgot, who was appointed controller-general of the finances, and laid the foundations of many reforms. He actually accomplished for the moment one very important reform, namely, the suppression of the trade and craft gilds (_communautes, jurandes et maitrises_). This organization, which was common to the whole of Europe (see GILDS), had taken definitive shape in France in the 13th and 14th centuries, but had subsequently been much abused. Turgot suppressed the privileges of the _maitres_, who alone had been able to work on their own account, or to open shops and workshops, and thus proclaimed the freedom of labour, industry and commerce. However, the old organization, slightly amended, was restored under his successor Necker. It was Turgot's purpose to organize provincial and other inferior assemblies, whose chief business was to be the assessment of taxes. Necker applied this idea, partially and experimentally, by creating a few of these provincial assemblies in various _generalites_ of the _pays d'elections_. A general reform on these lines and on a very liberal basis was proposed by Calonne to the assembly of notables in 1787, and it was brought into force for all the _pays d'elections_, though not under such good conditions, by an edict of the same year. Louis XVI. had inaugurated his reign by the restoration of the parlements; all the bodies which had been suppressed by Maupeou and all the officials whom he had dismissed were restored, and all the bodies and officials created by him were suppressed. But it was not long before the old struggle between the crown and parlements again broke out. It began by the conservative opposition offered by the parlement of Paris to Turgot's reforms. But the real struggle broke out in 1787 over the edicts coming from the assembly of notables, and particularly over the two new taxes, the stamp duty and the land tax. The parlement of Paris refused to register them, asserting that the consent of the taxpayers, as represented by the states general, was necessary to fresh taxation. The struggle seemed to have come to an end in September; but in the following November it again broke out, in spite of the king's promise to summon the states general. It reached its height in May 1788, when the king had created a _cour pleniere_ distinct from the parlements, the chief function of which was to register the laws in their stead. A widespread agitation arose, amounting to actual anarchy, and was only ended by the recall of Necker to power and the promise to convoke the states general for 1789.

The army.

_Various Institutions._--The permanent army which, as has been stated above, was first established under Charles VII., was developed and organized during the _ancien regime_. The _gendarmerie_ or heavy cavalry was continuously increased in numbers. On the other hand, the _francs archers_ fell into disuse after Louis XI.; and, after a fruitless attempt had been made under Francis I. to establish a national infantry, the system was adopted for this also of recruiting permanent bodies of mercenaries by voluntary enlistment. First there were the "old bands" (_vieilles bandes_), chiefly those of Picardy and Piedmont, and at the end of the 16th century appeared the first regiments, the number of which was from time to time increased. There were also in the service and pay of the king French and foreign regiments, the latter principally Swiss, Germans and Scots. The system of purchase penetrated also to the army. Each regiment was the property of a great lord; the captain was, so to speak, owner of his company, or rather a contractor, who, in return for the sums paid him by the king, recruited his men and gave them their uniform, arms and equipment. In the second half of the reign of Louis XIV. appeared the militia (_milices_). To this force each parish had to furnish one recruit, who was at first chosen by the assembly of the inhabitants, later by drawing lots among the bachelors or widowers without children, who were not exempt. The militia was very rarely raised from the towns. The purpose for which these men were employed varied from time to time. Sometimes, as under Louis XIV., they were formed into special active regiments. Under Louis XV. and Louis XVI. they were formed into _regiments provinciaux_, which constituted an organized reserve. But their chief use was during war, when they were individually incorporated into various regiments to fill up the gaps.

Under Louis XV., with the duc de Choiseul as minister of war, great and useful reforms were effected in the army. Choiseul suppressed what he called the "farming of companies" (_compagnie-ferme_); recruiting became a function of the state, and voluntary enlistment a contract between the recruit and the state. Arms, uniform and equipment were furnished by the king. Choiseul also equalized the numbers of the military units, and his reforms, together with a few others effected under Louis XVI., produced the army which fought the first campaigns of the Revolution.

System of taxation.

One of the most distinctive features of the _ancien regime_ was excessive taxation. The taxes imposed by the king were numerous, and, moreover, hardly any of them fell on all parts of the kingdom. To this territorial inequality was added the inequality arising from privileges. Ecclesiastics, nobles, and many of the crown officials were exempted from the heaviest imposts. The chief taxes were the _taille_ (q.v.), the _aides_ and the _gabelle_ (q.v.), or monopoly of salt, the consumption of which was generally made compulsory up to the amount determined by regulations. In the 17th and 18th centuries certain important new taxes were established: from 1695 to 1698 the _capitation_, which was re-established in 1701 with considerable modifications, and in 1710 the tax of the _dixieme_, which became under Louis XV. the tax of the _vingtiemes_. These two imposts had been established on the principle of equality, being designed to affect every subject in proportion to his income; but so strong was the system of privileges, that as a matter of fact the chief burden fell upon the roturiers. The income of a roturier who was not exempt was thus subject in turn to three direct imposts: the _taille_, the _capitation_ and the _vingtiemes_, and the apportioning or assessment of these was extremely arbitrary. In addition to indirect taxation strictly so called, which was very extensive in the 17th and 18th centuries, France under the _ancien regime_ was subject to the _traites_, or customs, which were not only levied at the frontiers on foreign trade, but also included many internal custom-houses for trade between different provinces. Their origin was generally due to historical reasons; thus, among the _provinces reputees etrangeres_ were those which in the 14th century had refused to pay the aids for the ransom of King John, also certain provinces which had refused to allow customs offices to be established on their foreign frontier. Colbert had tried to abolish these internal duties, but had only succeeded to a limited extent.

The indirect taxes, the _traites_ and the revenues of the royal domain were farmed out by the crown. At first a separate contract had been made for each impost in each _election_, but later they were combined into larger lots, as is shown by the name of one of the customs districts, _l'enceinte des cinq grosses fermes_. From the reign of Henry IV. on the levying of each indirect impost was farmed _en bloc_ for the whole kingdom, a system known as the _fermes generales_; but the real _ferme generale_, including all the imposts and revenues which were farmed in the whole of France, was only established under Colbert. The _ferme generale_ was a powerful company, employing a vast number of men, most of whom enjoyed various privileges. Besides the royal taxes, seigniorial imposts survived under the form of tolls and market dues. The lords also often possessed local monopolies, e.g. the right of the common bakehouse (_four banal_), which were called the _banalites_.

Courts of law.

The organization of the royal courts of justice underwent but few modifications during the _ancien regime_. The number of parlements, of _cours des aides_ and of _cours des comptes_ increased; in the 17th century the name of _conseil superieur_ was given to some new bodies which actually discharged the functions of the parlement, this being the period of the decline of the parlement. In the 16th century, under Henry II., had been created _presidiaux_, or courts of final jurisdiction, intended to avoid numerous appeals in small cases, and above all to avoid a final appeal to the parlements. Seigniorial courts survived, but were entirely subordinate to the royal jurisdictions and were badly officered by ill-paid and ignorant judges, the lords having long ago lost the right to sit in them in person. Their chief use was to deal with cases concerning the payment of feudal dues to the lord. Both lawyers and people would have preferred only two degrees of justice; and an ordinance of May 1788 realized this desire in the main. It did not suppress the seigniorial jurisdictions, but made their extinction a certainty by allowing litigants to ignore them and go straight to the royal judges. This was, however, reversed on the recall of Necker and the temporary triumph of the parlements.

Ecclesiastical courts.

The ecclesiastical jurisdictions survived to the end, but with diminished scope. Their competency had been considerably reduced by the Ordinance of Villers Cotterets of 1539, and by an edict of 1693. But a series of ingenious legal theories had been principally efficacious in gradually depriving them of most of the cases which had hitherto come under them. In the 18th century the privilege of clergy did not prevent civil suits in which the clergy were defendants from being almost always taken before secular tribunals, and ever since the first half of the 17th century, for all grave offences, or _cas privilegies_, the royal judge could pronounce a sentence of corporal punishment on a guilty cleric without this necessitating his previous degradation. The inquiry into the case was, it is true, conducted jointly by the royal and the ecclesiastical judge, but each of them pronounced his sentence independently. All cases concerning benefices came before the royal judges. Finally, the _officialites_ had no longer as a rule any jurisdiction over laymen, even in the matter of marriage, except in questions of betrothals, and sometimes in cases of opposition to marriages. The parish priests, however, continued to enter declarations of baptisms, marriages and burials in registers kept according to the civil laws.

The "customs."

The general customs of the _pays coutumiers_ were almost all officially recorded in the 16th century, definite procedure for this purpose having been adopted at the end of the 15th century. Drafts were prepared by the officials of the royal courts in the chief town of the district in which the particular customs were valid, and were then submitted to the government. The king then appointed commissioners to visit the district and promulgate the customs on the spot. For the purpose of this _publication_ the lords, lay and ecclesiastical, of the district, with representatives of the towns and of various bodies of the inhabitants, were summoned for a given day to the chief town. In this assembly each article was read, discussed and put to the vote. Those which were approved by the majority were thereupon decreed (_decretes_) by the commissioners in the king's name; those which gave rise to difficulties were put aside for the parlement to settle when it registered the _coutume_. The _coutumes_ in this form became practically written law; henceforward their text could only be modified by a formal revision carried out according to the same procedure as the first version. Throughout the 16th century a fair number of _coutumes_ were thus revised (_reformees_), with the express object of profiting by the observations and criticisms on the first text which had appeared in published commentaries and notes, the most important of which were those of Charles Dumoulin. In the 16th century there had been a revival of the study of Roman law, thanks to the historical school, among the most illustrious representatives of which were Jacques Cujas, Hugues Doneau and Jacques Godefroy; but this study had only slight influence on practical jurisprudence. Certain institutions, however, such as contracts and obligations, were regulated throughout the whole of France by the principles of Roman law.

Legislation by _ordonnances, edits, declarations_ or _lettres patentes_, emanating from the king, became more and more frequent; but the character of the _grandes ordonnances_, which were of a far-reaching and comprehensive nature, underwent a change during this period. In the 14th, 15th and 16th centuries they had been mainly _ordonnances de reformation_ (i.e. revising previous laws), which were most frequently drawn up after a sitting of the states general, in accordance with the suggestions submitted by the deputies. The last of this type was the ordinance of 1629, promulgated after the states general of 1614 and the assemblies of notables which had followed it. In the 17th and 18th centuries they became essentially _codifications_, comprising a systematic and detailed statement of the whole branch of law. There are two of these series of codifying ordinances: the first under Louis XIV., inspired by Colbert and carried out under his direction. The chief ordinances of this group are that of 1667 on civil procedure (code of civil procedure); that of 1670 on the examination of criminal cases (code of penal procedure); that of 1673 on the commerce of merchants, and that of 1681 on the regulation of shipping, which form between them a complete code of commerce by land and sea. The ordinance of 1670 determined the formalities of that secret and written criminal procedure, as opposed to the hearing of both parties in a suit, which formerly obtained in France; it even increased its severity, continuing the employment of torture, binding the accused by oath to speak the truth, and refusing them counsel save in exceptional cases. The second series of codifications was made under Louis XV., through the action of the chancellor d'Aguesseau. Its chief result was the regulation, by the ordinances of 1731, 1735 and 1747, of deeds of gift between living persons, wills, and property left in trust. Under Louis XVI. some mitigation was made of the criminal law, notably the abolition of torture.

Land tenure.

The feudal regime, in spite of the survival of seigniorial courts and tolls, was no longer of any political importance; but it still furnished the common form of real property. The fief, although it still implied homage from the vassal, no longer involved any service on his part (excepting that of the _arriere-ban_ due to the king); but when a fief changed hands the lord still exacted his _profits_. Tenures held by _roturiers_, in addition to some similar rights of transfer, were generally subject to periodical and fixed contributions for the profit of the lord. This system was still further complicated by tenures which were simply real and not feudal, e.g. that by payment of ground rent, which were superadded to the others, and had become all the heavier since, in the 18th century, royal rights of transfer had been added to the feudal rights. The inhabitants of the country districts were longing for the liberation of real property.

Serfdom.

The three estates.

Serfdom had disappeared from most of the provinces of the kingdom; among all the _coutumes_ which were officially codified, not more than ten or so still recognized this institution. This had been brought about especially by the agency of the custom by which serfs had been transformed into _roturiers_. An edict of Louis XVI. of 1779 abolished serfdom on crown lands, and mitigated the condition of the serfs who still existed on the domains of individual lords. The nobility still remained a privileged class, exempt from certain taxes. Certain offices were restricted to the nobility; according to an edict of Louis XVI. (1781) it was even necessary to be a noble in order to become an officer in the army. In fact, the royal favours were reserved for the nobility. Certain rules of civil and criminal procedure also distinguished nobles from _roturiers_. The acquisition of fiefs had ceased to bring nobility with it, but the latter was derived from three sources: birth, _lettres d'anoblissement_ granted by the king and appointment to certain offices. In the 17th and 18th centuries the peers of France can be reckoned among the nobility, forming indeed its highest grade, though the rank of peer was still attached to a fief, which was handed down with it; on the eve of the Revolution there were thirty-eight lay peers. The rest of the nation, apart from the ecclesiastics, consisted of the _roturiers_, who were not subject to the disabilities of the serfs, but had not the privileges of the nobility. Hence the three orders (estates) of the kingdom: the clergy, the nobility and the _tiers etat_ (third estate). An edict of Louis XVI. had made a regular civil status possible to the Protestants, and had thrown open offices and professions to them, though not entirely; but the exercise of their religion was still forbidden.

_The Revolution._--With the Revolution France entered the ranks of constitutional countries, in which the liberty of men is guaranteed by fixed and definite laws; from this time on, she has had always (except in the interval between two revolutions) a written constitution, which could not be touched by the ordinary legislative power. The first constitution was that of 1791; the states general of 1789, transformed by their own will, backed by public opinion, into the Constituent Assembly, drew it up on their own authority. But their work did not stop there. They abolished the whole of the old public law of France and part of the criminal law, or rather, transformed it in accordance with the principles laid down by the political philosophy of the 18th century. The principles which were then proclaimed are still, on most points, the foundation of modern French law. The development resulting from this extraordinary impetus can be divided into two quite distinct phases: the first, from 1789 to the _coup d'etat_ of the 18th Brumaire in the year VIII., was the continuation of the impulse of the Revolution; the second includes the Consulate and the first Empire, and was, as it were, the marriage or fusion of the institutions arising from the Revolution with those of the _ancien regime_.

The Constitutions of the Revolution.

On the whole, the constitutional law of the Revolution is a remarkably united whole, if we consider only the two constitutions which were effectively applied during this first phase, that of the 3rd of September 1791, and that of the 5th Fructidor in the year III. It is true that between them occurred the ultra-democratic constitution of the 24th of June 1793, the first voted by the Convention; but although this was ratified by the popular vote, to which it had been directly submitted, in accordance with a principle proclaimed by the Convention and kept in force under the Consulate and the Empire, it was never carried into effect. It was first suspended by the establishment of the revolutionary government strictly so called, and after Thermidor, under the pretext of completing it, the Convention put it aside and made a new one, being taught by experience. As long as it existed it was the sovereign assembly of the Convention itself which really exercised the executive power, governing chiefly by means of its great committees.

The constitution of 1791 was without doubt monarchical, in so far as it preserved royalty. The constitution of the year III. was, on the contrary, republican. The horror of monarchy was still so strong at that time that an executive college was created, a Directory of five members, one of whom retired every year; they were elected by a complicated and curious procedure, in which each of the two legislative councils played a distinct part. But this difference, though apparently essential, was not in reality very profound; this is proved, for example, by the fact that the Directory had distinctly more extensive powers than those conferred on Louis XVI. by the Constituent Assembly. On almost all points of importance the two constitutions were similar. They were both preceded by a statement of principles, a "Declaration of the Rights of Man and of the Citizen." They were both based on two principles which they construed alike: the sovereignty of the people and the separation of powers. Both of them (with the exception of what has been said with regard to the ratification of constitutions after 1793) recognized only representative government. From the principle of the sovereignty of the people they had not deduced universal suffrage; though, short of this, they had extended the suffrage as far as possible. According to the constitution of 1791, in addition to the conditions of age and residence, an elector was bound to pay a direct contribution equivalent to three days' work; the constitution of the year III. recognized the payment of any direct contribution as sufficient; it even conferred on every citizen the right of having himself enrolled, without any other qualification than a payment equivalent to three days' work, and thus to become an elector. Further, neither of the two constitutions admitted of a direct suffrage; the elections were carried out in two stages, and only those who paid at a higher rating could be chosen as electors for the second stage. The executive power, which was in the case of both constitutions clearly separated from the legislative, could not initiate legislation. The Directory had no veto; Louis XVI. had with difficulty obtained a merely suspensive veto, which was overridden in the event of three legislatures successively voting against it. The right of dissolution was possessed by neither the king nor the Directory. Neither the king's ministers nor those of the Directory could be members of the legislative body, nor could they even be chosen from among its ranks. The ministers of Louis XVI. had, however, thanks to an unfortunate inspiration of the Constituent Assembly of 1791, the right of entry to, and, to a certain extent, of speaking in the Legislative Assembly; the constitution of the year III. showed greater wisdom in not bringing them in any way into contact with the legislative power. The greatest and most notable difference between the two constitutions was that that of 1791 established a single chamber which was entirely renewed every two years; that of the year III., on the contrary, profiting by the lessons of the past, established two chambers, one-third of the members of which were renewed every year. Moreover, the two chambers, the Council of Five Hundred and the Council of Ancients, were appointed by the same electors, and almost the only difference between their members was that of age.

Abolition of the "ancien regime."

The Revolution entirely abolished the _ancien regime_, and in the first instance whatever remained of feudalism. The Constituent Assembly, in the course of its immense work of settlement, wished to draw distinctions, abolishing absolutely, without indemnity, all rights which had amounted in the beginning to a usurpation and could not be justified, e.g. serfdom and seigniorial courts of justice. On the other hand, it declared subject to redemption such feudal charges as had been the subject of contract or of a concession of lands. But as it was almost impossible to discover the exact origin of various feudal rights, the Assembly had proceeded to do this by means of certain legal assumptions which sometimes admitted of a proof to the contrary. It carefully regulated the conditions and rate of repurchase, and forbade the creation in the future of any perpetual charge which could not be redeemed: a principle that has remained permanent in French law. This was a rational and equitable solution; but in a period of such violent excitement it could not be maintained. The Legislative Assembly declared the abolishment without indemnity of all feudal rights for which the original deed of concession could not be produced; and to produce this was, of course, in most cases impossible. Finally, the Convention entirely abolished all feudal rights, and commanded that the old deeds should be destroyed; it maintained on the contrary, though subject to redemption, those tenures and charges which were solely connected with landed property and not feudal.

With feudalism had been abolished serfdom. Further, the Constituent Assembly suppressed nobility; it even forbade any one to assume and bear the titles, emblems and arms of nobility. Thus was established the equality of citizens before the law. The Assembly also proclaimed the liberty of labour and industry, and suppressed the corporations of artisans and workmen, the _jurandes_ and _maitrises_, as Turgot had done. But, in order to maintain this liberty of the individual, it forbade all associations between workers, or employers, fearing that such contracts would again lead to the formation of corporations similar to the old ones. It even forbade and declared punishable, as being contrary to the declaration of the rights of man and the citizen, combinations or strikes, or an agreement between workmen or employers to refuse to work or to give work except on given conditions. Such, for a long time, was French legislation on this point.

Administrative reorganization.

The Constituent Assembly gave to France a new administrative division, that into departments, districts, cantons and communes; and this division, which was intended to make the old provincial distinctions disappear, had to serve all purposes, the department being the unit for all public services. This settlement was definitive, with the exception of certain modifications in detail, and exists to the present day. But there was a peculiar administrative organism depending on this arrangement. The constitution of 1791, it is true, made the king the titulary head of the executive power; but the internal administration of the kingdom was not actually in his hands. It was deputed, under his orders, to bodies elected in each department, district and commune. The municipal bodies were directly elected by citizens duly qualified; other bodies were chosen by the method of double election. Each body consisted of two parts: a council, for deliberative purposes, and a _bureau_ or _directoire_ chosen by the council from among its numbers to form the executive. These were the only instruments for the general administration and for that of the direct taxes. The king could, it is true, annul the illegal acts of these bodies, but not dismiss their members; he could merely suspend them from exercising their functions, but the matter then went before the Legislative Assembly, which could maintain or remit the suspension as it thought fit. The king had not a single agent chosen by himself for general administrative purposes. This was a reaction, though a very exaggerated one, against the excessive centralization of the _ancien regime_, and resulted in an absolute administrative anarchy. The organization of the revolutionary government partly restored the central authority; the councils of the departments were suppressed; the Committee of Public Safety and the "representatives of the people on mission" were able to remove and replace the members of the elected bodies; and also, by an ingenious arrangement, national agents were established in the districts. The constitution of the year III. continued in this course, simplifying the organization established by the Constituent Assembly, while maintaining its principle. The department had an administration of five members, elected as in the past, but having executive as well as deliberative functions. The district was suppressed. The communes retained only a municipal agent elected by themselves, and the actual municipal body, the importance of which was considerably increased, was removed to the canton, and consisted of the municipal agents from each commune, and a president elected by the duly qualified citizens of the canton. The Directory was represented in each departmental and communal administration by a commissary appointed and removable by itself, and could dismiss the members of these administrations.

Judicial system.

The Constituent Assembly decided on the complete reorganization of the judicial organization. This was accomplished on a very simple plan, which realized that ideal of the two degrees of justice which, as we have noticed, was that of France under the _ancien regime_. In the lower degrees it created in each canton a justice of the peace (_juge de paix_), the idea and name of which were borrowed from England, but which differed very much from the English justice of the peace. He judged, both with and without appeal, civil cases of small importance; and, in cases which did not come within his competency, it was his duty to try to reconcile the parties. In each district was established a civil court composed of five judges. This completed the judicial organization, except for the court of cassation, which had functions peculiar to itself, never judging the facts of the case but only the application of the law. For cases coming under the district court, the Assembly had not thought fit to abolish the guarantee of the appeal in cases involving sums above a certain figure. But by a curious arrangement the district tribunals could hear appeals from one another. With regard to penal prosecutions, there was in each department a criminal court which judged crimes with the assistance of a jury; it consisted of judges borrowed from district courts, and had its own president and public prosecutor. Correctional tribunals, composed of _juges de paix_, dealt with misdemeanours. The Assembly preserved the commercial courts, or consular jurisdictions, of the _ancien regime_. There was a court of cassation, the purpose of which was to preserve the unity of jurisprudence in France; it dealt with matters of law and not of fact, considering appeals based on the violation of law, whether in point of matter or of form, and if such violation were proved, sending the matter before another tribunal of the same rank for re-trial. All judges were elected for a term of years; the _juges de paix_ by the primary assembly of the canton, the district judges by the electoral assembly consisting of the electors of the second degree for the district, the members of the court of cassation by the electors of the departments, who were divided for the purpose into two series, which voted alternately. The Constituent Assembly did, it is true, require professional guarantees, by proof of a more or less extended exercise of the profession of lawyer from all judges except the _juges de paix_. But the system was really the same as that of the administrative organization. The king only appointed the _commissaires du roi_ attached to the district courts, criminal tribunals and the court of cassation; but the appointment once made could not be revoked by him. These commissaries fulfilled one of the functions of the old _ministere public_, their duty being to demand the application of laws. The Convention did not change this general organization; but it suppressed the professional guarantees required in the case of candidates for a judgeship, so that henceforth all citizens were eligible; and it also caused new elections to take place. Moreover, the Convention, either directly or by means of one of its committees, not infrequently removed and replaced judges without further election. The constitution of the year III. preserved this system, but introduced one considerable modification. It suppressed the district courts, and in their place created in each department a civil tribunal consisting of twenty judges. The idea was a happy one, for it gave the courts more importance, and therefore more weight and dignity. But this reform, beneficial as it would be nowadays, was at the time premature, in view of the backward condition of means of communication.

The army.

The Constituent Assembly suppressed the militia and maintained the standing army, according to the old type, the numbers of which were henceforth to be fixed every year by the Legislative Assembly. The army was to be recruited by voluntary enlistment, careful rules for which were drawn up; the only change was in the system of appointment to ranks; promotion went chiefly by seniority, and in the lower ranks a system of nomination by equals or inferiors was organized. The Assembly proclaimed, however, the principle of compulsory and personal service, but under a particular form, that of the National Guard, to which all qualified citizens belonged, and in which almost all ranks were conferred by election. Its chief purpose was to maintain order at home; but it could be called upon to furnish detachments for defence against foreign invasion. This was an institution which, with many successive modifications, and after various long periods of inactivity followed by a revival, lasted more than three-quarters of a century, and was not suppressed till 1871. For purposes of war the Convention, in addition to voluntary enlistments and the resources furnished by the National Guards, and setting aside the forced levy of 200,000 men in 1793, decided on the expedient of calling upon the communes to furnish men, a course which revived the principle of the old militia. But the Directory drew up an important military law, that of the 6th Fructidor of the year VI., which established compulsory military service for all, under the form of conscription strictly so called. Frenchmen aged from 20 to 25 (_defenseurs conscrits_) were divided into five classes, each including the men born in the same year, and were liable until they were 25 years old to be called up for active service, the whole period of service not exceeding four years. No class was called upon until the younger classes had been exhausted, and the sending of substitutes was forbidden. This law, with a few later modifications, provided for the French armies up to the end of the Empire.

Taxation.

The Constituent Assembly abolished nearly all the taxes of the _ancien regime_. Almost the only taxes preserved were the stamp duty and that on the registration of acts (the old _controle_ and _centieme denier_), and these were completely reorganized; the customs were maintained only at the frontiers for foreign trade. In the establishment of new taxes the Assembly was influenced by two sentiments: the hatred which had been inspired by the former arbitrary taxation, and the influence of the school of the Physiocrats. Consequently it did away with indirect taxation on objects of consumption, and made the principal direct tax the tax on land. Next in importance were the _contribution personnelle et mobiliere_ and the _patentes_. The essential elements of the former were a sort of capitation-tax equivalent to three days' work, which was the distinctive and definite sign of a qualified citizen, and a tax on personal income, calculated according to the rent paid. The _patentes_ were paid by traders, and were also based on the amount of rent. These taxes, though considerably modified later, are still essentially the basis of the French system of direct taxation. The Constituent Assembly had on principle repudiated the tax on the gross income, much favoured under the _ancien regime_, which everybody had felt to be arbitrary and oppressive. The system of public contributions under the Convention was arbitrary and revolutionary, but the councils of the Directory, side by side with certain bad laws devised to tide over temporary crises, made some excellent laws on the subject of taxation. They resumed the regulation of the land tax, improving and partly altering it, and also dealt with the _contribution personnelle et mobiliere_, the _patentes_, and the stamp and registration duties. It was at this time, too, that the door and window tax, which still exists, was provisionally established; there was also a partial reappearance of indirect taxation, in particular the _octrois_ of the towns, which had been suppressed by the Constituent Assembly.

Religious liberty.

The Constituent Assembly gave the Protestants liberty of worship and full rights; it also gave Jews the status of citizen, which they had not had under the _ancien regime_, together with political rights. With regard to the Catholic Church, the Assembly placed at the disposal of the nation the property of the clergy, which had already, in the course of the 18th century, been regarded by most political writers as a national possession; at the same time it provided for salaries for the members of the clergy and pensions for those who had been monks. It abolished tithes and the religious orders, and forbade the re-formation of the latter in the future. The ecclesiastical districts were next reorganized, the department being always taken as the chief unit, and a new church was organized by the civil constitution of the clergy, the bishops being elected by the electoral assembly of the department (the usual electors), and the cures by the electoral assembly of the district. This was an unfortunate piece of legislation, inspired partly by the old Gallican spirit, partly by the theories on civil religion of J.J. Rousseau and his school, and, together with the civic oath imposed on the clergy, it was a source of endless troubles. The constitutional church established in this way was, however, abolished as a state institution by the Convention. By laws of the years III. and IV. the Convention and the Directory, in proclaiming the liberty of worship, declared that the Republic neither endowed nor recognized any form of worship. Buildings formerly consecrated to worship, which had not been alienated, were again placed at the disposal of worshippers for this purpose, but under conditions which were hard for them to accept.

Civil law.

Criminal law.

The Assemblies of the Revolution, besides the laws which, by abolishing feudalism, altered the character of real property, passed many others concerning civil law. The most important are those of 1792, passed by the Legislative Assembly, which organized the registers of the _etat civil_ kept by the municipalities, and laid down rules for marriage as a purely civil contract. Divorce was admitted to a practically unlimited extent; it was possible not only for causes determined by law, and by mutual consent, but also for incompatibility of temper and character proved, by either husband or wife, to be of a persistent nature. Next came the laws of the Convention as to inheritance, imposing perfect equality among the natural heirs and endeavouring to ensure the division of properties. Illegitimate children were considered by these laws as on the same level with legitimate children. The Convention and the councils of the Directory also made excellent laws on the administration of _hypotheques_, and worked at the preparation of a Civil Code (see CODE NAPOLEON). In criminal law their work was still more important. In 1791 the Constituent Assembly gave France her first penal code. It was inspired by humanitarian ideas, still admitting capital punishment, though accompanied by no cruelty in the execution; but none of the remaining punishments was for life. Long imprisonment with hard labour was introduced. Finally, as a reaction against the former system of arbitrary penalties, there came a system of fixed penalties determined, both as to its assessment and its nature, for each offence, which the judge could not modify. The Constituent Assembly also reformed the procedure of criminal trials, taking English law as model. It introduced the jury, with the double form of _jury d'accusation_ and _jury de jugement_. Before the judges procedure was always public and oral. The prosecution was left in principle to the parties concerned, plaintiffs or _denonciateurs civiques_, and the preliminary investigation was handed over to two magistrates; one was the _juge de paix_, as in English procedure at this period, and the other a magistrate chosen from the district court and called the _directeur du jury_. The Convention, before separating, passed the _Code des delits et des peines_ of the 3rd Brumaire in the year IV. This piece of work, which was due to Merlin de Douai, was intended to deal with criminal procedure and penal law; but only the first part could be completed. It was the procedure established by the Constituent Assembly, but further organized and improved.

_The Consulate and the Empire._--The constitutional law of the Consulate and the Empire is to be found in a series of documents called later the _Constitutions de l'Empire_, the constitution promulgated during the Hundred Days being consequently given the name of _Acte additionnel aux Constitutions de l'Empire_. These documents consist of (1) the Constitution of the 22nd Frimaire of the year VIII., the work of Sieyes and Bonaparte, the text on which the others were based; (2) the _senatus consulte_ of the 16th Thermidor in the year X., establishing the consulate for life; and (3) the _senatus consulte_ of the 28th Floreal in the year XII., which created the Empire. These constitutional acts, which were all, whether in their full text or in principle, submitted to the popular vote by means of a _plebiscite_, had all the same object: to assure absolute power to Napoleon, while preserving the forms and appearance of liberty. Popular suffrage was maintained, and even became universal; but, since the system was that of suffrage in many stages, which, moreover, varied very much, the citizens in effect merely nominated the candidates, and it was the Senate, playing the part of _grand electeur_ which Sieyes had dreamed of as his own, which chose from among them the members of the various so-called elected bodies, even those of the political assemblies. According to the constitution of the year VIII., the first consul (to whom had been added two colleagues, the second and third consuls, who did not disappear until the Empire) possessed the executive power in the widest sense of the word, and he alone could initiate legislation. There were three representative assemblies in existence, elected as we have seen; but one of them, the Corps Legislatif, passed laws without discussing them, and without the power of amending the suggestions of the government. The Tribunate, on the contrary, discussed them, but its vote was not necessary for the passing of the law. The Senate was the guardian and preserver of the constitution; in addition to its role of _grand electeur_, its chief function was to annul laws and acts submitted to it by the Tribunate as being unconstitutional. This original organization was naturally modified during the course of the Consulate and the Empire; not only did the emperor obtain the right of directly nominating senators, and the princes of the imperial family, and grant dignitaries of the Empire that of entering the Senate by right; but a whole body, the Tribunate, which was the only one which could preserve some independence, disappeared, without resort having been had to a plebiscite; it was modified and weakened by _senatus consulte_ of the year X., and was suppressed in 1807 by a mere _senatus consulte_. The importance of another body, on the contrary, the _conseil d'etat_, which had been formed on the improved type of the ancient _conseil du roi_, and consisted of members appointed by Napoleon and carefully chosen, continually increased. It was this body which really prepared and discussed the laws; and it was its members who advocated them before the Corps Legislatif, to which the Tribunate also sent orators to speak on its behalf. The ministers, who had no relation with the legislative power, were merely the agents of the head of the state, freely chosen by himself. Napoleon, however, found these powers insufficient, and arrogated to himself others, a fact which the Senate did not forget when it proclaimed his downfall. Thus he frequently declared war upon his own authority, in spite of the provisions to the contrary made by the constitution of the year VIII.; and similarly, under the form of _decrets_, made what were really laws. They were afterwards called _decrets-lois_, and those that were not indissolubly associated with the political regime of the Empire, and survived it, were subsequently declared valid by the court of cassation, on the ground that they had not been submitted to the Senate as unconstitutional, as had been provided by the constitution of the year VIII.

Administrative changes under Consulate and Empire.

This period saw the rise of a whole new series of great organic laws. For administrative organization, the most important was that of the 28th Pluviose in the year VIII. It established as chief authority for each department a prefect, and side by side with him a _conseil general_ for deliberative purposes; for each _arrondissement_ (corresponding to the old _district_) a sub-prefect (_sous-prefet_) and a _conseil d'arrondissement_; and for each _commune_, a mayor and a municipal council. But all these officials, both the members of the councils and the individual agents, were appointed by the head of the state or by the prefect, so that centralization was restored more completely than ever. Together with the prefect there was also established a _conseil de prefecture_, having administrative functions, and generally acting as a court of the first instance in disputes and litigation arising out of the acts of the administration; for the Constituent Assembly had removed such cases from the jurisdiction of the civil tribunals, and referred them to the administrative bodies themselves. The final appeal in these disputes was to the _conseil d'etat_, which was supreme judge in these matters. In 1807 was created another great administrative jurisdiction, the _cour des comptes_, after the pattern of that which had existed under the _ancien regime_.

Judicial changes.

Judicial organization had also been fundamentally altered. The system of election was preserved for a time in the case of the _juges de paix_ and the members of the court of cassation, but finally disappeared there, even where it had already been no more than a form. The magistrates were in principle appointed for life, but under the Empire a device was found for evading the rule of irremovability. For the judgment of civil cases there was a court of first instance in every arrondissement, and above these a certain number of courts of appeal, each of which had within its province several departments. The separate criminal tribunals were abolished in 1809 by the _Code d'Instruction Criminelle_, and the magistrates forming the _cour d'assises_, which judged crimes with the aid of a jury, were drawn from the courts of appeal and from the civil tribunals. The _jury d'accusation_ was also abolished by the _Code d'Instruction Criminelle_, and the right of pronouncing the indictment was transferred to a chamber of the court of appeal. The correctional tribunals were amalgamated with the civil tribunals of the first instance. The _tribunal de cassation_, which took under the Empire the name of _cour de cassation_, consisted of magistrates appointed for life, and still kept its powers. The _ministere public_ (consisting of imperial _avocats_ and _procureurs_) was restored in practically the same form as under the _ancien regime_.

Taxation.

The former system of taxation was preserved in principle, but with one considerable addition: Napoleon re-established indirect taxation on articles of consumption, which had been abolished by the Constituent Assembly; the chief of these were the duties on liquor (_droits reunis_, or excise) and the monopoly of tobacco.

The Concordat.

The Concordat concluded by Napoleon with the papacy on the 26th Messidor of the year IX. re-established the Catholic religion in France as the form of worship recognized and endowed by the state. It was in principle drawn up on the lines of that of 1516, and assured to the head of the French state in his dealings with the papacy the same prerogatives as had formerly been enjoyed by the kings; the chief of these was that he appointed the bishops, who afterwards had to ask the pope for canonical institution. The territorial distribution of dioceses was preserved practically as it had been left by the civil constitution of the clergy. The state guaranteed the payment of salaries to bishops and cures; and the pope agreed to renounce all claims referring to the appropriation of the goods of the clergy made by the Constituent Assembly. Later on, a decree restored to the _fabriques_ (vestries) such of their former possessions as had not been alienated, and the churches which had not been alienated were restored for the purposes of worship. The law of the 18th Germinal in the year X., ratifying the Concordat, reasserted, under the name of _articles organiques du culte catholique_, all the main principles contained in the old doctrine of the liberties of the Gallican Church. The Concordat did not include the restoration of the religious orders and congregations; Napoleon sanctioned by decrees only a few establishments of this kind.

The university.

One important creation of the Empire was the university. The _ancien regime_ had had its universities for purposes of instruction and for the conferring of degrees; it had also, though without any definite organization, such secondary schools as the towns admitted within their walls, and the primary schools of the parishes. The Revolution suppressed the universities and the teaching congregations. The constitution of the year III. proclaimed the liberty of instruction and commanded that public schools, both elementary and secondary, should be established. Under the Directory there was in each department an _ecole centrale_, in which all branches of human knowledge were taught. Napoleon, developing ideas which had been started in the second half of the 18th century, founded by laws and decrees of 1806, 1808 and 1811 the Universite de France, which provided and organized higher, secondary and primary education; this was to be the monopoly of the state, carried on by its _facultes_, _lycees_ and primary schools. No private educational establishment could be opened without the authorization of the state.

The Codes.

But chief among the documents dating from this period are the Codes, which still give laws to France. These are the Civil Code of 1804, the _Code de Procedure Civile_ of 1806, the _Code de Commerce_ of 1807, the _Code d'Instruction Criminelle_ of 1809, and the _Code Penal_ of 1810. These monumental works, in the elaboration of which the _conseil d'etat_ took the chief part, contributed, to a greater or less extent, towards the fusion of the old law of France with the laws of the Revolution. It was in the case of the _Code Civil_ that this task presented the greatest difficulty (see CODE NAPOLEON). The _Code de Commerce_ was scarcely more than a revised and emended edition of the _ordonnances_ of 1673 and 1681; while the _Code de Procedure Civile_ borrowed its chief elements from the _ordonnance_ of 1667. In the case of the _Code d'Instruction Criminelle_ a distinctly new departure was made; the procedure introduced by the Revolution into courts where judgment was given remained public and oral, with full liberty of defence; the preliminary procedure, however, before the examining court (_juge d'instruction_ or _chambre des mises en accusation_) was borrowed from the _ordonnance_ of 1670; it was the procedure of the old law, without its cruelty, but secret and written, and generally not in the presence of both parties. The _Code Penal_ maintained the principles of the Revolution, but increased the penalties. It substituted for the system of fixed penalties, in cases of temporary punishment, a maximum and a minimum, between the limits of which judges could assess the amount. Even in the case of misdemeanours, it admitted the system of extenuating circumstances, which allowed them still further to decrease and alter the penalty in so far as the offence was mitigated by such circumstances. (See further under NAPOLEON I.)

Constitutional monarchy.