The State of Society in France Before the Revolution of 1789. Alexis de Tocqueville
the Orders in Council promulgated within the same period, almost all provided on behalf of the Government, that the differences which any given measure might occasion and the litigation which might ensue, should be exclusively heard before the Intendants and before the Council. ‘It is moreover ordered by his Majesty, that all the disputes which may arise upon the execution of this order, with all the circumstances and incidents thereunto belonging, shall be carried before the Intendant to be judged by him, saving an appeal to the Council, and all courts of justice and tribunals are forbidden to take cognisance of the same.’ Such was the ordinary form of these decrees.
In matters which fell under laws or customs of an earlier date, when this precaution had not been taken, the Council continually intervened, by way of what was termed evocation, or the calling up to its own superior jurisdiction from the hands of the ordinary officers of justice suits in which the administration of the State had an interest. The registers of the Council are full of minutes of evocation of this nature. By degrees the exception became the rule, and a theory was invented to justify the fact.26 It came to be regarded as a maxim of state, not in the laws of France, but in the minds of those by whom those laws were applied, that all suits in which a public interest was involved, or which arose out of the construction to be put on any act of the administration, were not within the competency of the ordinary judges, whose only business it was to decide between private interests. On this point we, in more recent times, have only added a mode of expression; the idea had preceded the Revolution of 1789.
Already at that time most of the disputed questions which arose out of the collection of the revenue were held to fall under the exclusive jurisdiction of the Intendant and the King’s Council.27 So, too, with reference to the regulation of public waggons and stage-coaches, drainage, the navigation of rivers, etc.; and in general all the suits in which the public authorities were interested came to be disposed of by administrative tribunals only. The Intendants took the greatest care that this exceptional jurisdiction should be continually extended. They urged on the Comptroller-General, and stimulated the Council. The reason one of these officers assigned to induce the Council to call up one of these suits deserves to be remembered. ‘An ordinary judge,’ said he, ‘is subject to fixed rules, which compel him to punish any transgression of the law; but the Council can always set aside rules for a useful purpose.’
On this principle, it often happened that the Intendant or the Council called up to their own jurisdiction suits which had an almost imperceptible connection with any subject of administrative interest, or even which had no perceptible connection with such questions at all. A country gentleman quarrels with his neighbour, and being dissatisfied with the apparent disposition of his judges, he asks the Council to evoke his cause. The Intendant reports that, ‘although this is a case solely affecting private rights, which fall under the cognisance of the courts of justice, yet that his Majesty can always, when he pleases, reserve to himself the decision of any suit whatever, without rendering any account at all of his motives.’
It was generally before the Intendant or before the Provost of the Maréchaussée that all the lower order of people were sent for trial, by this process of evocation, when they had been guilty of public disturbances. Most of the riots so frequently caused by the high price of corn gave rise to transfers of jurisdiction of this nature. The Intendant then summoned to his court a certain number of persons, who formed a sort of local council, chosen by himself, and with their assistance he proceeded to try criminals. I have found sentences delivered in this manner, by which men were condemned to the galleys, and even to death. Criminal trials decided by the Intendant were still common at the close of the seventeenth century.
Modern jurists in discussing this subject of administrative jurisdictions assert, that great progress has been made since the Revolution. ‘Before that era,’ they say, ‘the judicial and administrative powers were confounded; they have since been distinguished and assigned to their respective places.’ To appreciate correctly the progress here spoken of, it must never be forgotten, that if on the one hand the judicial power under the old monarchy was incessantly extending beyond the natural sphere of its authority, yet on the other hand that sphere was never entirely filled by it. To see one of these facts without the other is to form an incomplete and inaccurate idea of the subject. Sometimes the courts of law were allowed to enact regulations on matters of public administration, which was manifestly beyond their jurisdiction; sometimes they were restrained from judging regular suits, which was to exclude them from the exercise of their proper functions. The modern law of France has undoubtedly removed the administration of justice from those political institutions into which it had very improperly been allowed to penetrate before the Revolution; but at the same time, as has just been shown, the Government continually invaded the proper sphere of the judicial authorities, and this state of things is unchanged, as if the confusion of these powers were not equally dangerous on the one side as on the other, and even worse in the latter mode; for the intervention of a judicial authority in administrative business is only injurious to the transaction of affairs; but the intervention of administrative power in judicial proceedings depraves mankind, and tends to render men at once revolutionary and servile.
Amongst the nine or ten constitutions which have been established in perpetuity in France within the last sixty years, there is one in which it was expressly provided that no agent of the administration can be prosecuted before the ordinary courts of law without having previously obtained the assent of the Government to such a prosecution.28 This clause appeared to be so well devised that when the constitution to which it belonged was destroyed, this provision was saved from the wreck, and it has ever since been carefully preserved from the injuries of revolutions. The administrative body still calls the privilege secured to them by this article one of the great conquests of 1789; but in this they are mistaken, for under the old monarchy the Government was not less solicitous than it is in our own times to spare its officers the unpleasantness of rendering an account in a court of law, like any other private citizens. The only essential difference between the two periods is this: before the Revolution the Government could only shelter its agents by having recourse to illegal and arbitrary measures; since the Revolution it can legally allow them to violate the laws.
When the ordinary tribunals of the old monarchy allowed proceedings to be instituted against any officer representing the central authority of the Government, an Order in Council usually intervened to withdraw the accused person from the jurisdiction of his judges, and to arraign him before commissioners named by the Council; for, as was said by a councillor of state of that time, a public officer thus attacked would have had to encounter an adverse prepossession in the minds of the ordinary judges, and the authority of the King would have been compromised. This sort of interference occurred not only at long intervals, but every day—not only with reference to the chief agents of the Government, but to the least. The slightest thread of a connection with the administration sufficed to relieve an officer from all other control. A mounted overseer of the Board of Public Works, whose business was to direct the forced labour of the peasantry, was prosecuted by a peasant whom he had ill-treated. The Council evoked the cause, and the chief engineer of the district, writing confidentially to the Intendant, said on this subject: ‘It is quite true that the overseer is greatly to blame, but that is not a reason for allowing the case to follow the ordinary jurisdiction; for it is of the utmost importance to the Board of Works that the courts of common law should not hear or decide on the complaints of the peasants engaged in forced labour against the overseers of these works. If this precedent were followed, those works would be disturbed by continual litigation, arising out of the animosity of the public against the officers of the Government.’
On another occasion the Intendant himself wrote to the Comptroller-General with reference to a Government contractor, who had taken his materials in a field which did not belong to him. ‘I cannot sufficiently represent to you how injurious it would be to the interests of the Administration if the contractors were abandoned to the jurisdiction of the ordinary courts, whose principles can never be reconciled to those of the Government.’
These lines were written precisely a hundred years ago, but it appears as if the administrators who wrote them were our own contemporaries.
CHAPTER V
See Note XXII.
See Note XXIII.
[The article referred to is the 75th article of the Constitution de l’An VIII., which provided that the agents of the executive government, other than the ministers, could only be prosecuted for their conduct in the discharge of their functions, in virtue of a decision of the Council of State.]