Elster Jon, Goldhammer Arthur. Tocqueville: The Ancien Regime and the French Revolution (ENG)

Подождите немного. Документ загружается.



II.4 – How Administrative Justice and

the Immunity of Public Ofcials Were

Institutions of the Ancien Régime

In no other country of Europe were the regular courts less subservient

to the government than in France, but by the same token there were few

other countries in which recourse to special courts was more common.

These two things were more closely related than one might imagine. The

king had virtually no inuence on the fate of judges. He could not remove

them, transfer them, or even, as a general rule, promote them. In short,

he had no hold over them, whether through ambition or fear. He soon

came to regard this independence as an impediment to his will. Hence,

more than anywhere else, he was driven to deny them jurisdiction over

cases directly impinging on royal power and to create alongside the reg-

ular courts, for his own private use, a more subservient type of tribunal,

one that would offer a certain semblance of justice to his subjects without

obliging him to fear the reality.

In countries, including certain parts of Germany, where the regular

courts had never been as independent of the government as were the

French tribunals of the time, no such precautions were taken, and admin-

istrative justice never existed. The prince already wielded enough power

over judges that he had no need for commissaires, or commissioners, as

French administrative judges were called.

If you take the trouble to read the royal edicts and declarations pub-

lished in the last century of the monarchy, as well as the royal council

decrees issued in the same period, you will nd few instances in which

the government, after taking a decision, failed to say that any challenges

Book II



that might emerge or any litigation that might arise from it would be han-

dled exclusively by the intendants and the King’s Council: “Be it further

ordered by His Majesty that any dispute that may arise pursuant to the

execution of the present decree, and anything depending on or arising

from it, shall be brought to the attention of the intendant to be judged by

him, subject to appeal to the Council. We forbid our courts and tribunals

to sit in judgment thereof.” This was the usual formula.

In matters subject to ancient laws or customs, where this precaution

had not been taken, the King’s Council regularly intervened by way of

a procedure known as évocation, whereby a case in which the govern-

ment had an interest could be removed from the jurisdiction of regular

judges and taken in hand by the council. The council’s records are lled

with decrees invoking this special procedure. Little by little, the excep-

tion became the rule, and fact was transformed into theory. It became an

established tenet not of law but in the minds of those who applied the

law, a maxim of statecraft, as it were, that any case that involved the pub-

lic interest or arose out of the interpretation of an administrative act did

not come under the jurisdiction of regular judges, whose only role was

to decide cases in which one private interest was pitted against another.

In this area we have done nothing but come up with a formula; it was the

Ancien Régime that came up with the idea.

In those days, most disputes about taxes fell under the exclusive juris-

diction of the intendant and council. This was also true of all disputes

relating to the regulation of trafc, public transportation, highways, river

navigation, etc. Broadly speaking, any case in which the public authorities

had an interest took place before an administrative tribunal.

The intendants were at great pains to expand this special jurisdiction

endlessly. They alerted the comptroller general and prodded the King’s

Council. The reason given by one of these ofcials to obtain an évocation

is worth preserving: “The regular judge,” he said, “is subject to xed

rules, which oblige him to sanction an illegal action, but the Council can

always bend the rules for a useful purpose.”

In keeping with this principle, the intendants and council often took

charge of cases that had only the most tenuous connection with pub-

lic administration, or none at all. One nobleman, involved in a dispute

with his neighbor and unhappy with his judges’ rulings, asked the coun-

cil to take jurisdiction in the case. The intendant, who was consulted in

the matter, answered: “Although this case involves only private claims,

jurisdiction over which belongs to the courts, His Majesty can if he

II.4 Administrative Justice, Immunity of Ofcials



so chooses assert jurisdiction in any case without being accountable

for the grounds.”

By way of évocation, any person of the lower orders who disturbed the

peace by some act of violence was usually tried before the intendant or

the provost of the constabulary. Most of the riots that so often erupted

when grain prices rose too high resulted in évocations of this sort. The

intendant then handpicked a certain number of graduates to sit as a sort

of prefectural council in a criminal proceeding. I found judgments issued

in this manner condemning men to the galleys or even to death. Criminal

trials in which the intendant sat as judge were still common at the end of

the seventeenth century.

Modern jurists assure us that there has been great progress in admin-

istrative law since the Revolution: “Previously,” they say, “judicial and

administrative powers were conated. Distinctions have since been estab-

lished, and each has been restored to its proper place.” To appreciate prop-

erly the progress these authorities have in mind, one must never forget

that although the judicial power in the Ancien Régime repeatedly reached

beyond its natural sphere of authority, it never completely lled that sphere.

Anyone who looks at only one aspect of this phenomenon without the other

will have an incomplete and distorted view of the subject. At times the

courts were permitted to issue administrative regulations, although this

was clearly beyond their jurisdiction. At other times they were prohibited

from trying what were truly private lawsuits, although this was to exclude

them from their proper domain. It is true that we have banished the courts

from the administrative sphere, to which they had been improperly admit-

ted under the Ancien Régime, but at the same time, as we have seen, the

government repeatedly trespassed on the natural sphere of the courts, and

we have allowed it to remain there, as if the confusion of powers were not as

dangerous from this side as from the other, and perhaps even more danger-

ous, because the intervention of the courts in administrative affairs merely

harms efciency, whereas administrative interference with the courts cor-

rupts people and tends to make them at once revolutionary and servile.

Among the nine or ten constitutions that have been adopted in perpe-

tuity in France over the past sixty years, there is one that states explicitly

that no agent of the administration can be tried before the regular courts

without prior authorization. This article was apparently so well crafted

that when the constitution of which it was a part was overthrown, care

was taken to extract it from the ruins, and ever since it has been strenu-

ously protected from the consequences of revolution. Administrators still

Book II



customarily refer to the privilege granted them under this article as one

of the great conquests of 19, but in this they are also mistaken, because

the government of the old monarchy was scarcely less assiduous than

today’s government in protecting its ofcials from the unpleasantness of

having to defend their actions in court like ordinary citizens. The only

essential difference between the two periods is this: before the Revolution,

the government could protect its agents only by recourse to inequitable

and arbitrary measures, whereas since then it has had the legal power to

allow them to violate the law.

Whenever the courts of the Ancien Régime attempted to prosecute

a representative of the central government, the King’s Council usually

issued an order taking the accused out of the hands of his judges and

sending him before commissioners appointed by the council, because, as

one state councilor wrote at the time, an administrator subject to this sort

of attack would have found the regular court judges prejudiced against

him, and the king’s authority would have been compromised. Évocations

of this kind were not infrequent but daily occurrences, and they pertained

not only to the most important agents of the government but also to the

least important. It was enough to have only the most tenuous connection

with the administration to have nothing to fear except from the admin-

istration itself. A foreman employed by the Department of Bridges and

Roads to supervise compulsory labor details was accused by a peasant of

mistreating him. The council assumed jurisdiction in the case, and the

chief engineer sent a condential memorandum to the intendant: “The

fact is that the foreman’s behavior was quite reprehensible, but that is no

reason to let the case run its course, because it is of the utmost importance

for the Department of Bridges and Roads that the ordinary courts should

neither hear nor receive complaints against foremen from those subject

to compulsory labor. If this precedent were allowed, public works would

be hampered by the constant lawsuits to which the public’s animosity

toward the ofcials in question would give rise.”

In another case, involving a state contractor who took construction

materials from a neighbor’s eld, the intendant himself wrote to the

comptroller general: “I cannot overstate the degree to which it would be

prejudicial to the interests of the administration to abandon its contrac-

tors to the judgment of the regular courts, whose principles can never be

reconciled with those of the administration.”

These lines were written precisely a century ago, yet it seems that the

administrators who wrote them might be our contemporaries.



II. – How Centralization Was Thus Able to

Insinuate Itself among the Old Powers and

Supplant Them Without Destroying Them

Let us now briey recapitulate what was said in the three previous

chapters: a single body at the center of the kingdom controlled the public

administration throughout the country; the same minister was in charge

of nearly all domestic affairs; in each province, a single agent managed all

details; there was no subordinate administrative body or any other type

of body that could act without prior authorization; special courts heard

all cases in which the administration had an interest and protected all its

agents. What is this if not the centralization with which we are familiar?

Its formal institutions were less identiable than they are today, its pro-

cedures were less regulated, its existence was more agitated, but it was

the same being. In the interim, it was unnecessary to add or take away

anything essential. It was enough to eliminate everything that had been

built around it to reveal what we see today.

Most of the institutions that I have just described were subsequently

imitated in a hundred different places, but at the time they were peculiar

to France, and we shall soon see what a great inuence they had on the

French Revolution and its aftermath.

But how was it possible for institutions of such novel design to estab-

lish themselves in France amid the rubble of feudal society?

It was a task that required patience, skill, and time, rather than strength

and unchecked power. At the time the Revolution broke out, almost none

of the old administrative edice had been destroyed in France. Another

had been built beneath it, as it were.

Book II



There is nothing to indicate that the government of the Ancien Régime

followed a deeply meditated plan in carrying out this difcult labor. It

simply yielded to the instinct that drives all governments to attempt to

take sole charge of everything, an instinct that never varied despite the

diversity of the government’s agents. It left the old powers with their

ancient names and honors but little by little deprived them of their

authority. It did not force them out of their respective seats of power but

quietly ushered them out. It took advantage of this one’s inertia and that

one’s selshness to take their place. It availed itself of all their vices, never

seeking to correct but only to supplant them, and in the end it had in fact

replaced nearly all with a single agent, the intendant, a title that did not

even exist when they were born.

In this great enterprise of the Ancien Régime, only the judicial power

stood in the way, but here again the central government ultimately seized

the substance of power while leaving only the shadow to its adversar-

ies. It did not exclude the parlements from the administrative sphere but

gradually expanded its own activity there until nearly no room remained

for anything else. In certain exceptional and eeting circumstances – in

times of food scarcity, for example, when popular passions served as plat-

forms for ambitious magistrates – the central government allowed the

parlements to govern temporarily, to raise a fuss that history has not for-

gotten. Before long, however, it silently resumed its place and discreetly

reasserted its control over everyone and everything.

When we look closely at the parlements’ struggle against royal power,

we nd that the two almost always clashed on the terrain of politics rather

than administration. Disputes ordinarily erupted over a new tax. In other

words, the two adversaries quarreled not about administrative power

but about legislative power, which the one had as little right to seize as

the other.

These quarrels became increasingly common as the Revolution drew

near. The more inamed popular passions became, the more the Paris

Parlement intervened in politics, and since, at the same time, the central

power and its agents gained experience and skill, this same parlement

played a smaller and smaller role in the administration proper; with

each passing day it became less of an administrative organ and more of

a tribune.

Time, moreover, regularly opened new elds of action to the central

government, elds where the courts lacked the agility to follow because

they involved new issues for which no precedents existed and which were

II.5 How Centralization Supplanted Old Powers



alien to the courts’ routine. Society, which was making rapid progress,

constantly engendered new needs, each of which was a new source of

power for a central government that was alone capable of satisfying them.

While the administrative sphere of the tribunals remained xed, that of

the central government was mobile, and it steadily expanded along with

civilization itself.

The impending Revolution had begun to agitate French minds every-

where, stirring a thousand new ideas to which only the government could

respond. Before overthrowing the government, the Revolution fostered

its development. It perfected itself along with everything else. This is

particularly striking when one studies the archives. The comptroller

general and the intendant of 78 no longer bore any resemblance to the

intendant and comptroller general of 74. The administration had been

transformed. Its agents remained the same, but the spirit that moved

them had changed. As it became more meticulous and all-encompassing,

it also became more systematic and better informed. As its assertion of

total control neared its end, it oppressed less and led more.

The rst efforts of the Revolution destroyed that great institution, the

monarchy. It was restored in 8. Despite what is often said, it was not

the principles of 78 in regard to public administration that triumphed

then and after but quite the opposite: all the principles of the Ancien

Régime were then reinvigorated and have remained in place.

If someone were to ask me how this portion of the Ancien Régime

could have been carried over intact and incorporated into the new society,

I would answer that the reason why centralization did not perish in the

Revolution is that it was in itself the beginning of the Revolution as well

as its sign. And I would add that when a people destroys the aristocracy

in its midst, it propels itself toward centralization. It then takes far less

effort to hasten its way further down this slope than to hold it back. There

is a tendency for all the powers within it to become one, and it is only with

a great deal of art that they can be kept apart.

The democratic revolution that destroyed so many institutions of the

Ancien Régime was therefore bound to consolidate this one. So naturally

did centralization nd its place in the society forged by the Revolution

that it was easy to mistake centralization for one of its achievements.



II. – On Administrative Mores under

the Ancien Régime

It is impossible to read the correspondence of an intendant of the Ancien

Régime with his superiors and subordinates without being astonished by

the way in which the institutional similarity between then and now made

the administrators of that time resemble the administrators of today.

They seem to link hands across the abyss of the Revolution. I would say

the same thing of the people subject to their administration. No better

illustration exists of the power of legislation over the minds of men.

Ministers had already conceived the desire to scrutinize personally

every detail of the government’s action and to monitor everything from

Paris. As time went by and the administration perfected its methods, this

passion increased. By the end of the eighteenth century, it was impossible

to set up a charity workshop in a remote corner of some distant province

without attracting the notice of the comptroller general, who would seek

personally to monitor all expenditure on the project, draft the regulations

governing it, and select its location. If a poorhouse was built, he would

want to be apprised of the names of the beggars who turned up and the

precise dates at which they entered and left. Toward the middle of the

century (1733), M. d’Argenson wrote: “The amount of detail with which

ministers must deal is enormous. Nothing is done without them, nothing

is done except by them, and if their knowledge is not as extensive as their

power, they are compelled to leave everything to clerks, who become the

real men in charge.”

The comptroller general asked not only for reports on government

affairs but also for insignicant details about individual citizens. The

II.6 On Administrative Mores

3

intendant would then turn to his subdelegates for answers, and he never

failed to report what they told him word for word, as though he had

personal knowledge of the situation.

In order to direct everything from Paris and have knowledge there of

affairs throughout the country, a thousand new means of control had to

be invented. The volume of written documents was already enormous,

and administrative procedures were so slow that in no case did I nd that

it took less than a year for a parish to obtain authorization to rebuild a

church steeple or repair a presbytery. Usually two or three years passed

before the request was granted.

The council itself observed in one of its decrees (dated March 9,

1773) “that administrative formalities lead to endless delays and all too

often to eminently justiable complaints.” It added that “however, all

these formalities are necessary.”

I used to think that the taste for statistics was peculiar to today’s

administrators, but I was wrong. Toward the end of the Ancien Régime,

intendants often were sent short printed forms so that all they had to do

was have these forms lled out by their subdelegates and parish syndics.

The comptroller general solicited reports on the nature of the land, crops

grown, type and quantity of produce, number of livestock, and local

industry and mores. The information obtained in this way was scarcely

less detailed or more reliable than that supplied in similar cases nowa-

days by prefects and mayors. On these occasions, subdelegates generally

offered rather unattering judgments of the character of the people sub-

ject to their administration. They frequently remarked that “the peasant

is naturally lazy and would not work if he were not obliged to in order to

survive.” This economic doctrine appears to have been quite widespread

among administrators.

Even in terms of administrative language, the two periods are strik-

ingly similar. The style of both is equally colorless, facile, vague, and

accid. Each writer’s individuality is obliterated and subsumed in the

common mediocrity. If you read a prefect of today, you have read the

intendant of yesterday.

Toward the end of the century, however, when the distinctive styles of

Diderot and Rousseau had had time to spread and tincture the common

tongue, the affected sentimentality that abounds in the works of these

two writers acquired inuence among administrators and even nan-

ciers. The administrative style, ordinarily quite dry in tone, then became

unctuous at times and almost tender. A subdelegate complained to the

Book II



intendant of Paris “that in the performance of his duties he often suffers

pangs that rend the heart of a sensitive soul.”

The government distributed then, as it does today, certain charitable

assistance to the parishes, on condition that the residents make a con-

tribution of their own. When the sum they offered was sufcient, the

comptroller general would write in the margin of the distribution slip,

“Good, express satisfaction.” But when it was more than adequate, he

would write: “Good, express satisfaction and emotion.”

Administrative ofcials, who were nearly all bourgeois, already formed

a class with its own spirit, traditions, virtues, honor, and pride. It was the

aristocracy of the new society, already fully formed and drawing breath.

It was simply waiting for the Revolution to make a place for it.

What was already characteristic of the administration in France was its

indiscriminate hatred of all, noble or bourgeois, who sought to play a role

in public affairs outside its control. It was terried of any independent

body, no matter how insignicant, that showed signs of wanting to orga-

nize without its cooperation. Any free association, however minor and no

matter what its purpose, was a source of vexation. Only those associations

whose members it chose at will and over which it presided were allowed

to subsist. Even the great industrial companies pleased it but little. In

short, it had no intention of allowing citizens to intervene in any way

in overseeing their own affairs. It preferred sterility to competition. But

since the French must always be allowed a small degree of license as con-

solation for their servitude, the government allowed them to debate quite

freely all sorts of general and abstract theories in religion, philosophy,

ethics, and even politics. It rather readily tolerated attacks on the funda-

mental principles on which society then rested, and even discussion of

God himself, provided that its least ofcials were immune from criticism.

It reckoned that these things were none of its business.

Although eighteenth-century newspapers, or gazettes, as they

were called at the time, contained more quatrains than polemics, the

administration already looked upon this minor power with quite a jealous

eye. Though indulgent toward books, it was already quite hard on news-

papers. Unable to stamp them out altogether, it tried to make use of them

for its own exclusive purposes. I found a circular dated 171, addressed

to all the intendants of the kingdom, which announced that the king

(Louis XV) had decided that the Gazette de France would henceforth be

put together under the government’s watchful eye: “His Majesty wishes

to make this paper interesting and assure its superiority over all others.