Elster Jon, Goldhammer Arthur. Tocqueville: The Ancien Regime and the French Revolution (ENG)
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On the Pays d’état and Languedoc
9
enough to rule by itself. At the same time, the clergy, though largely
composed of nobles, maintained close contact with the Third Estate. It
enthusiastically supported most of the latter’s projects, worked with it
to enhance the material prosperity of all citizens and to promote com-
merce and industry, and thus placed its great knowledge of men and rare
dexterity in the handling of affairs at the service of the Third Estate. A
clergyman was nearly always chosen to go to Versailles for debates with
ministers involving controversial issues related to conicts between royal
authority and the estates. It is fair to say that throughout the last century,
Languedoc was administered by bourgeois under the supervision of
nobles and with the help of bishops.
Thanks to Languedoc’s unusual constitution, the spirit of the new
age could quietly infuse this old institution and change it utterly without
destroying it.
It could have been the same everywhere else. A small part of the
perseverance and energy that France’s kings put into abolishing or
deforming the provincial estates would have sufced to improve them
as in Languedoc and adapt them to the needs of modern civilization, if
only those monarchs had ever wanted anything other than to become and
remain masters of their realms.
Notes
Page 22, line
P
o w e r o f ro m a n La w i n Ge r m a n y – wa y i n wh i c h it ha d
r
e P L a c e d Ge r m a n i c La w
At the end of the Middle Ages, Roman law became the principal and
virtually the only subject of study for German legal scholars. At that
time, most of them even obtained their education outside Germany, in
Italian universities. Since these scholars, who had no political power but
bore responsibility for explaining and applying the laws of their society,
could not abolish Germanic law, they sought to force it into a Roman
law framework. They applied Roman laws to every aspect of Germanic
institutions that bore the slightest similarity to the Justinian Code. They
introduced a new spirit and new customs into the laws of the nation,
which were gradually transformed to the point of unrecognizability. By
the seventeenth century, no one could understand German law. It had
been replaced by something I cannot describe, which was still German in
name but Roman in fact.
I have reason to believe that the work of these scholars worsened the
situation of many people in the old Germanic society, most notably the
peasants. Many who had managed to retain some or all of their liberties
and possessions now lost them because scholars had equated their status
with that of Roman slaves or tenants.
This gradual transformation of national law was clearly at work in the
history of Wurtemberg, which also reveals futile efforts to oppose it.
From the country’s inception in 250 to the creation of the duchy
in 45, the laws were entirely indigenous. They consisted of custom-
ary laws, local laws made by towns or seigniorial courts, and statutes
Notes
promulgated by the estates. Only ecclesiastical matters were regulated by
foreign legislation, specically, canon law.
After 45, the character of the law changed. Roman law began to make
inroads. The doctors, as those who had studied law in foreign schools were
called, entered government and took control of the high courts. In the
rst half of the fteenth century, political society opposed them, much as
it did in England during the same period, but with very different results.
In the Diet of Tubingen in 54, as well as in subsequent diets, represen-
tatives of the feudal lords and deputies from the towns protested what
was happening in a variety of ways. They attacked the legal scholars who
had gained ascendancy in the courts and altered the spirit as well as the
letter of all existing customs and laws. At rst, the advantage seemed to lie
with the opposition. It won from the government a promise that appoint-
ments to the high courts would henceforth be limited to honorable and
enlightened men chosen from the duchy’s nobility and the estates; the
doctors were to be excluded, and a committee composed of agents of
the government and representatives of the estates was to draft a code
that could be applied throughout the country. Wasted effort! Before long,
Roman law had entirely supplanted national law in many areas and rmly
implanted itself even where it allowed national law to remain.
A number of German historians attribute this triumph of foreign
law over native law to two things: ) a general intellectual tendency at
that time to turn toward the languages and literatures of antiquity, cou-
pled with a contempt, to which this tendency gave rise, for the fruits of
the German spirit; and 2) an idea that had always fascinated medieval
Germans and inuenced the laws they made even at that time, to wit,
that the Holy Roman Empire was the continuation of the Roman Empire,
whose legal system it had inherited.
By themselves, however, these factors cannot explain why Roman law
spread throughout the continent at this time. In my view, this happened
because absolute monarchies were established upon the ruins of Europe’s
ancient liberties everywhere, and because Roman law, a law of servitude,
was marvelously well adapted to absolutist thinking.
Roman law, which everywhere raised civil society to a pitch of perfec-
tion, also degraded political society everywhere because it was, on the
whole, the work of a highly civilized but thoroughly subjugated people.
Kings therefore embraced it eagerly and instituted Roman law wherever
they ruled. Throughout Europe, the interpreters of Roman law became
their ministers and principal agents. Legal scholars provided kings with
Notes
legal support, when needed, against the law itself. And from that time on,
they have continued to do so on numerous occasions. Wherever a monarch
violated the law, it was rare that a legal scholar did not step forward to offer
him assurance that what he was doing was perfectly legitimate, and learned
proof that violence was just and the oppressed were in the wrong.
Page 23, line 33
t
h e tr a n s i t i o n f r o m fe u d a L mo n a r c h y t o de m o c r a t i c
m
o n a r c h y
Since all monarchies became absolute at about the same time, there is
little evidence in favor of the hypothesis that this change was related to
some particular circumstance that by chance happened to exist every-
where at the same time, and one has to concede that all these similar and
contemporary events must have been the result of a general cause equally
and simultaneously at work everywhere.
This general cause was the transition from one social state to another,
from feudal inequality to democratic equality. The nobles had already
been cut down to size and the people had not yet risen; the former were
still too low and the latter not yet high enough to impede the actions of
the state. The result was what might be called the golden age of mon-
archy, and it lasted 50 years, during which absolute monarchs enjoyed
both stability and omnipotence – two things that are ordinarily mutually
exclusive: they were as sacred as hereditary feudal princes and as absolute
as the rulers of democracy.
Page 24, line 5
d
e c a d e n c e o f fr e e ci t i e s i n Ge r m a n y . – im P e r i a L ci t i e s
(R
e i c h s s t ä d t e )
According to German historians, these cities achieved the apogee of
their splendor in the fourteenth and fteenth centuries. They were then
repositories of wealth, art, and learning and the mistresses of European
commerce, hegemonic centers of civilization. Ultimately, especially in the
north and south of Germany, urban centers joined forces with powerful
nobles in their vicinity to form independent confederations, just as Swiss
cities had allied themselves with peasants.
In the sixteenth century these cities were still prosperous, but deca-
dence had begun to set in. The Thirty Years’ War completed their ruin.
Virtually none escaped destruction or devastation in its wake.
The Treaty of Westphalia nevertheless treated the German cities as
independent states subordinate only to the emperor. Yet their sovereignty
Notes
200
was quite narrowly limited, on the one hand by neighboring sovereigns
and on the other by the emperor, whose power after the Thirty Years’ War
was largely limited to these minor vassals of the empire. In the eighteenth
century, fty-one independent German city-states still remained. They
occupied two benches in the diet, where they spoke with a distinctive
voice, but in fact they no longer exerted any control over general policy.
All bore a crushing load of debt. This was partly because they contin-
ued to pay imperial taxes at a level determined by their former splendor
and partly because they were very poorly governed. What is particularly
worthy of note is that bad government seems to have been a secret mal-
ady common to all, regardless of the form of their constitution. Whether
aristocratic or democratic, the complaints were, if not identical, at least
equally acute. If aristocratic, the government was said to have become the
coterie of a small number of families: favor and special interests ruled. If
democratic, intrigue and venality were everywhere. In both cases, gov-
ernments were accused of dishonesty and partiality. The emperor was
constantly compelled to intervene in the affairs of the imperial city-states
to restore order. Urban populations declined, and the cities fell into
misery. They ceased to be the centers of German civilization. The arts
abandoned them and took their brilliance to new cities, created by sover-
eigns and typical of the new world. Commerce turned elsewhere. The old
energy and patriotic vigor of the German burgs disappeared. Hamburg,
virtually alone among them, remained a major center of wealth and learn-
ing, but for reasons peculiar to itself alone.
Page 3, line 7
d
a t e o f t h e ab o L i t i o n o f se r f d o m i n Ge r m a n y
As the following list shows, the abolition of serfdom in most parts of
Germany took place at a quite recent date. Serfdom was not abolished
. In Baden until 3;
2. In Hohenzollern in ;
3. In Schleswig and Holstein in 04;
4. In Nassau in 0.
5. Prussia. Frederick William I ended serfdom on his estates in .
As we have seen, the code of Frederick the Great claimed to abolish
it throughout the kingdom but in reality eliminated only its harshest
form, Leibeigenschaft. It preserved the milder form, Erbuntertänigkeit.
It was not until 0 that it ended entirely.
6. In Bavaria, serfdom vanished in 0.
Notes
20
. A Napoleonic decree issued in Madrid in 0 abolished serfdom in
the grand duchy of Berg and various other minor territories, such
Erfurt, Bayreuth, etc.
. In the kingdom of Westphalia, the end of serfdom dates from 0
and 0.
. In the principality of Lippe-Deltmold, from 0.
0. In Schomburg-Lippe, from 0.
. In Swedish Pomerania, also from 0.
2. In Hesse-Darmstadt, from 0 and .
3. In Würtemberg, from .
4. In Meckenburg, from 20.
5. In Oldenburg, from 4.
6. In Saxony, for Lusatia, from 32.
. In Hohenzollern-Sigmaringen, only from 33.
. In Austria, from . As early as 2 Joseph II had ended
Leibeigenschaft, but serfdom in the milder form of Erbuntertänigkeit
endured until .
Page 3, line 7
Parts of territories that are today German, such as Brandenburg, old
Prussia, and Silesia, were originally populated by Slavs and conquered
and partially occupied by Germans. In these regions, serfdom was much
harsher even than in Germany, and it left still deeper traces in the late
eighteenth century.
Page 32, line 8
f
r e d e r i c k t h e Gr e a t ’s co d e
Among the works of Frederick the Great, the least well known, even
in his own country, and the least spectacular is the code of law that he
ordered to be drafted and that his successor promulgated. Yet I am not
sure that anything else sheds more light on the man himself and on his
time or better reveals the mutual inuence of each on the other.
This code is a veritable constitution in the sense normally attributed to
that word. Its purpose is to regulate relations not only between citizens
but also between citizens and the state: it is at once a civil code, a criminal
code, and a charter.
It rests, or, rather, appears to rest, on certain general principles set
forth in a very philosophical and highly abstract form, which in many
respects are similar to those contained in the Declaration of the Rights of
Man in the Constitution of .
Notes
202
The document states that the welfare of the state and its inhabitants is
the purpose of society and limit of the law, that laws can restrict the lib-
erty and rights of citizens only to enhance the common utility, that each
member of the state must work for the general good in proportion to his
position and fortune, and that the rights of individuals must give way to
the general good.
Nowhere is there any mention of the hereditary right of the prince or his
family or even of a special right distinct from that of the state. The word
“state” is already the only one that is used to denote the royal power.
By contrast, the code does speak of the general rights of men: the
general rights of men are based on the natural freedom to seek one’s own
good without harming the rights of others. Any action that is not pro-
hibited by natural law or by some positive law of the state is permitted.
Any inhabitant of the state may demand that it defend his person and his
property, and he has the right to defend himself by force if the state fails
to come to his aid.
Having set forth these great principles, the lawmaker, instead of deriv-
ing from them the dogma of popular sovereignty and the organization
of a popular government in a free society, as in the Constitution of ,
stops short and moves on to another, equally democratic but illiberal con-
sequence: he regards the prince as the sole representative of the state and
bestows on him all the rights that have just been granted to society. In this
code, the sovereign is no longer the representative of God; he is only the
representative of society, its agent and servant, as Frederick made explic-
itly clear in all his works. But he is its sole representative and alone exer-
cises all powers. As stated in the introduction, the chief of state, to whom
is given all power to produce the general good, which is the sole purpose of
society, is authorized to direct and regulate all individual acts to that end.
Among the principal duties of this all-powerful agent of society I nd
the following: to maintain peace and public security domestically and to
protect every individual from violence. Abroad, it is up to him to make
peace and war; he alone must give laws and keep order. He alone has the
right to pardon and to quash criminal prosecutions.
All associations that exist within the state and all public establishments
are subject to his inspection and direction, in the interest of peace and
general security. In order for the head of state to fulll these obligations,
he needs certain revenues and revenue-producing dues (droits utiles). He
therefore has the power to establish taxes on private fortunes, on persons,
and on their professions, commerce, production, and consumption. The
Notes
203
public functionaries who act in his name must be obeyed as he himself
would be in all things falling within the scope of their ofce.
Beneath this quite modern head there emerged, as we shall now see,
a quite Gothic body. Frederick merely saw to it that anything that might
hinder the action of his own power was removed from that body to yield
a monstrous whole, which seemed to be a transition from one state of
creation to another. In this strange production, Frederick demonstrated
as much contempt for logic as solicitude for his own power; he also dem-
onstrated his desire not to create unnecessary difculties for himself by
attacking that which still had the strength to defend itself.
The inhabitants of the countryside, with the exception of a few dis-
tricts and localities, were placed in hereditary servitude, which was not
limited to compulsory labor and services inherent in the possession of
certain pieces of land but extended, as we have seen, to the person of the
possessor.
Most landowner privileges were consecrated anew by the code. One
can even say that they were consecrated against the code, since it was
stated that in case local custom differed from the new law, the former
should be obeyed. It was formally declared that the state may not destroy
any of these privileges without compensation and adherence to proper
judicial formalities.
To be sure, the code made it clear that serfdom in the personal
sense (Leibeigenschaft) was abolished, but the hereditary subjection
(Erbuntertänigkeit) that replaced it was still a kind of servitude, as is clear
from the text.
The same code continued to maintain a careful distinction between
bourgeois and peasant. Between the bourgeoisie and the nobility, a sort of
intermediate class was recognized: it consisted of non-noble high ofcials,
ecclesiastics, and professors in schools of higher learning, gymnasia, and
universities.
Although separate from the rest of the bourgeoisie, these bourgeois
were not confused with nobles. On the contrary, they remained in an
inferior status. They could not in general purchase knightly properties or
obtain the highest positions in the civil service. Nor were they Hoffähig,
which is to say, they could not be presented at court except in rare cases,
and never with their families. As in France, this inferiority was all the
more hurtful because this class was daily becoming more enlightened and
inuential, and while bourgeois state ofcials may not have held the most
brilliant posts, they already lled those that had the most to do and did
Notes
204
the most useful things. Irritation with noble privileges, which in France
contributed so much to the Revolution, in Germany paved the way for
the approval with which the Revolution was initially greeted. Although
the chief drafter of the code was a bourgeois, he was no doubt following
the orders of his master.
In this part of Germany, the old constitution of Europe had yet to be
demolished sufciently for Frederick to believe, despite the contempt it
inspired in him, that the time had come to clear away the debris. On the
whole, he conned himself to depriving nobles of the right to assem-
ble and administer as a body, while allowing each individual nobleman
to retain his privileges. He merely limited and regulated their use. That
is why this code, drafted on orders issued by a student of our French
philosophes and put into force after the French Revolution had broken
out, is the most recent and authentic legislative document establishing
a legal foundation for the very feudal inequalities that the Revolution
would soon abolish throughout Europe.
In it, the nobility is declared to be the principal body of the state.
Noblemen are to be preferred, the code states, for all honoric posts when
they are capable of lling them. They alone may own noble lands, cre-
ate entailments, and enjoy the hunting rights and judicial powers inher-
ent in noble estates, along with rights of patronage over churches. Only
they may take the name of land they own. Bourgeois may, exceptionally,
receive express authorization to own noble lands but enjoyed only those
rights and honors of ownership explicitly set forth in the authorization.
A bourgeois who owns a noble property may leave it to a bourgeois heir
only if that heir is of the rst degree. If there is no such heir and there are
no other noble heirs, the property must be sold.
One of the most characteristic sections of Frederick’s code is the
appendix on criminal law applicable to political offenses.
Despite the feudal and absolutist provisions of the code described
here, Frederick the Great’s successor, Frederick William II, thought he
saw revolutionary tendencies in his uncle’s work and therefore suspended
publication until 4, at which point his scruples were said to have been
overcome by the fact that the code included a ne array of criminal
penalties, which corrected for its wicked principles. Indeed, there has
never been a more comprehensive schedule of punishments, before or
since. Not only are revolts and conspiracies punished with the utmost
severity; disrespectful criticisms of government actions are also quite
harshly repressed. The purchase and distribution of dangerous writings