The period of twenty-five years that preceded the Revolution was a time of attempted reform in the French army. The defeats of the Seven Years' War had served as a lesson. The Duke of Choiseul, the able minister of Louis XV., abolished many abuses. The manoeuvres of the troops became more regular, the discipline stricter and more exact for a time. The Duke of Aiguillon ousted Choiseul, by making himself the courtier of the strumpet Du Barry, and things appear to have slipped back. Then the old king died, and Aiguillon followed his accomplice into exile. Louis XVI. found his finances in disorder, his army and navy demoralized. The death of the minister of war in 1775 gave him the opportunity to make one of his well-meant and feeble attempts at reform. He called to the ministry an old soldier, the Count of Saint-Germain, who had for some time been living in retirement. The count had seen much foreign service, was in full sympathy neither with the French army nor with the French court, and was moreover a man who had little knack at getting on with anybody. He had written a paper on military reforms, and thus attracted notice. In vain, when in office, he attacked some crying abuses, especially the privileges granted to favored regiments and favored persons. While he disgusted the court in this way, he raised a storm of indignation in the army by his love of foreign innovations, and especially of one practice considered deeply degrading. This was the punishment of minor offenses by flogging with the flat of the sword; using a weapon especially made for that purpose. The arguments in favor of this punishment are obvious. It is expeditious; it is disagreeable to the sufferer, but does not rob the state of his services, nor subject him to the bad influences and foul air of the guard-house. The objections are equally apparent. Flogging, which seems the most natural and simple of punishments to many men in an advanced state of civilization, is hated by others, hardly more civilized, with a deadly hatred. In the former case it inflicts but a moderate injury upon the skin; in the latter, it strikes deep into the mind and soul. It would be hard to say beforehand in which way a nation will take it. The English soldier of Waterloo, like the German of Rossbach, received the lash almost as a joke. The Frenchman, their unsuccessful opponent on those fields, could hardly endure it. Grenadiers wept at inflicting the sword stroke, and their colonel mingled his tears with theirs. "Strike with the point," cried a soldier, "it hurts less!"

To some of the foreigners in the French service this sensitiveness seemed absurd. The Count of Saint-Germain consulted, on the subject, a major of the regiment of Nassau, who had risen from the ranks. "Sir," said the veteran, "I have received a great many blows; I have given a great many, and all to my advantage."[Footnote: Segur, i. 80. Mercier, vii. 212. Besenval, ii. 19. Allonville. Mem. sec. 84. Montbarey, i. 311. Flogging in some form and German ways in general seem to have been introduced into the French army as early as Choiseul's time, and more or less practiced through the reign of Louis XVI.; but the great discontent appears to date from the more rigorous application of such methods by Saint-Germain. Montbarey. Dumouriez, i. 370 (liv. ii. ch. iii).]

The spirit of reform was in the air, and ardent young officers would let nothing pass untried. The Count of Segur tells a story of such an one; and although no name be given, he seems to point to the brother-in-law of Lafayette, the brave Viscount of Noailles.

"One morning," says Segur, "I saw a young man of one of the first families of the court enter my bedroom. I had been his friend from childhood. He had long hated study, and thought only of pleasure, play, and women. But recently he had been seized with military ardor, and dreamed but of arms, horses, school of theory, exercises, and German discipline.

"As he came into my room, he looked profoundly serious; he begged me to send away my valet. When we were alone: 'What is the meaning, my dear Viscount,' said I, 'of so early a visit and so grave a beginning? Is it some new affair of honor or of love?'

"'By no means,' said he, 'but it is on account of a very important matter, and of an experiment that I have absolutely resolved to make. It will undoubtedly seem very strange to you; but it is necessary in order to enlighten me on the great subject we are all discussing; we can judge well only of what we have ourselves undergone. When I tell you my plan you will feel at once that I could intrust it only to my best friend, and that none but he can help me to execute it. In a word, here is the case: I want to know positively what effect strokes with the flat of the sword may have on a strong, courageous, well-balanced man, and how far his obstinacy could bear this punishment without weakening. So I beg you to lay on until I say "Enough."'

"Bursting out laughing at this speech, I did all I could to turn him aside from his strange plan, and to convince him of the folly of his proposal; but it was useless. He insisted, begged and conjured me to do him this pleasure, with as many entreaties as if it had been a question of getting me to render him some great service.

"At last I consented and resolved to punish his fancy by giving him his money's worth. So I set to work; but, to my great astonishment, the sufferer, coldly meditating on the effect of each blow, and collecting all his courage to support it, spoke not a word and constrained himself to appear unmoved; so that it was only after letting me repeat the experiment a score of times that he said: 'Friend, it is enough. I am contented; and I now understand that this must be an efficacious method of conquering many faults.'

"I thought all was over; and up to that point the scene had seemed to me simply comic; but just as I was about to ring for my valet to dress me, the Viscount, suddenly stopping me, said: 'One moment, please; all is not finished; it is well that you should make this experiment, too.'

"I assured him that I had no desire to do so, and that it would by no means change my opinion, which was entirely adverse to an innovation so opposed to the French character.

"'Very well,' answered he, 'but I ask it not for your sake but for mine. I know you; although you are a perfect friend, you are very lively, a little fond of poking fun, and you would perhaps make a very amusing story of what has just happened between us, at my expense, among your ladies.'

"'But is not my word enough for you?' I rejoined.

"'Yes,' said he, 'in any more serious matter; but anyway, if I am only afraid of an indiscretion, that fear is too much. And so, in the name of friendship, I beg you, set me completely at ease on that point by taking back what you have been kind enough to lend me so gracefully. Moreover, I repeat it, believe me, you will profit by it and be glad to have judged for yourself this new method that is so much discussed.'

"Overcome by his prayers, I let him take the fatal weapon; but after he had given me the first stroke, far from imitating his obstinate endurance, I quickly called out that it was enough, and that I considered myself sufficiently enlightened on this grave question. Thus ended this mad scene; we embraced at parting; and in spite of my desire to tell the story, I kept his secret as long as he pleased."[Footnote: Segur, i. 84.]

The discipline of the French army, like that of other bodies, military and civil, depended much less on regulations than on the individual character of the men in command for the time being. France was engaged in but one war during the reign of Louis XVI., and in that war the land forces were occupied only in America. "The French discipline is such," writes Lafayette to Washington from Newport, "that chickens and pigs walk between the lines without being disturbed, and that there is in the camp a cornfield of which not one leaf has been touched." And Rochambeau tells with honest pride of apples hanging on the trees which shaded the soldier's tents. "The discipline of the French army," he says, "has always followed it in all its campaigns. It was due to the zeal of the generals, of the superior and regimental officers, and especially to the good spirit of the soldier, which never failed." But Rochambeau was a working general, and Lafayette had done his best in France that, as far as was possible, the French commander in America should have working officers under him. Neither in war nor in peace have the French always been famous for their discipline; and the discontent which had been caused by the changes above mentioned had not tended to strengthen it in the closing years of the monarchy. "Whatever idea I may have formed of the want of discipline and of the anarchy which reigned among the troops," says Besenval, "it was far below what I found when I saw them close," and circumstances confirm the testimony of this not over-trustworthy witness.[Footnote: Washington, vii. 518. Rochambeau, i. 255, 314. Fersen, i. 39. 67. Besenval, ii. 36.]

It was in the latter part of the previous reign that the adventure of the Count of Brehan had taken place; but the story is too characteristic to be omitted, and the spirit which it showed continued to exist down to the very end of the old monarchy.

The Count of Brehan, after serving with distinction in the Seven Years' War, had retired from the army, and devoted his time to society and the fine arts. He was called to Versailles one day by the Duke of Aiguillon, prime minister to Louis XV., his friend and cousin. "I have named you to the king," said the duke, "as the only man who would be able to bring the Dauphiny regiment into a state of discipline. The line officers, by their insubordinate behavior, have driven away several colonels in succession. If I were offering you a favor, you might refuse; but this is an act of duty, and I have assured the king that you would undertake it."

"You do me justice," answered Brehan. "I will take the command of the regiment, but I must make three conditions. I must have unlimited power to reward and punish; I must be pardoned if I overstep the regulations; and if I succeed in bringing the regiment into good condition, I am not to be obliged to keep it for more than a year."

His conditions granted, Brehan set out for Marseilles, where the regiment was quartered. On his arrival in that city, he put up at a small and inconspicuous inn, and, dressed as a civilian, made his way on foot to a coffee-house, which was said to be a favorite lounging-place of the officers of the Dauphiny regiment. Taking a seat, he listened to the conversation going on about him, and soon made out that the insubordinate subalterns were talking about their new colonel, and of the fine tricks they would play him on his arrival. Picking out two young officers who were making themselves particularly conspicuous, he interrupted their conversation.

"You do not know," he says, "the man whom you want to drive away. I advise you to mind what you do, or you may get into a scrape."

"Who is this jackanapes that dares to give us advice?"

"A man who will not stand any rudeness, and who demands satisfaction!" cries Brehan, unbuttoning his civilian's coat and showing his military order of Saint Louis.

So he goes out with the young fellows, and all the way to the place where they are to fight, he chaffs and badgers them. This puts them more and more out of temper, so that when they reach the ground they are very much excited, while he is perfectly cool. He wounds them one after the other; then, turning to the witnesses: "Gentlemen," says he, "I believe I have done enough, for a man who has been traveling night and day all the way from Paris. If anybody wants any more, he can easily find me. I am not one of the people who get out of the way."

Thereupon he leaves them, goes back to his inn, puts on his uniform, calls on the general commanding the garrison, and sends orders to the officers of the Dauphiny regiment to come and see him. These presently arrive, and are thoroughly astonished when they recognize the man whom they met in the coffee-house, and who has just wounded two of their comrades. But Brehan pretends not to know any of them, speaks to all kindly, tells them of the severe orders that he bears in case of insubordination, and expresses the hope and conviction that there will be no trouble. He then asks if all the officers of the regiment are present. They answer that two gentlemen are ill. "I will go to see them," says the new colonel, "and make sure that they are well taken care of." He does in fact visit his late adversaries, and finds them in great trepidation. They try to make excuses, but Brehan stops them. "I do not want to know about anything that happened before I took command," he says, "and I am quite sure that henceforth I shall have only a good report to make to the king of all the officers of my regiment, with whom I hope to live on the best of terms."

By this firm and conciliatory conduct, the Count of Brehan inspired the Dauphiny regiment with respect and affection. He restored its discipline and left it when his service was over, much regretted by all its officers.[Footnote: Allonville, i. 162.]

The lieutenants of the French army were united in an association called the Calotte. The legitimate object of this society was to lick young officers into shape, by obliging them to conform to the rules of politeness and proper behavior, as understood by their class. For this purpose the senior lieutenant of each regiment was the chief of the regimental club, and there was a general chief for the whole army. Offenses against good manners, faults of meanness, or oddity of behavior, were discouraged by admonitions, given privately by the chief, or publicly in the convivial meetings of the club. Moral pressure might be carried so far in an aggravated case, as to cause the culprit to resign his commission. The society in fact represented an organized professional spirit; and although not recognized by the regulations, was favored by the superior officers.[Footnote: Calotte=scull cap, here fool's-cap. Concerning this society, see a series of feuilletons in the Moniteur Universel, Nov. 25th to 30th, 1864 by Gen. Ambert; also Encyclopedie methodique, Art militaire. Militaire, iv. 101-103 (article Calotte); Segur, i. 132.]

When discipline was relaxed, the Calotte assumed too great powers. Not content with moral means, it undertook to enforce its decrees by physical ones; and it extended its jurisdiction far above the rank of lieutenant.

At the outbreak of the war between France and England in 1778, two camps were formed in Normandy and Brittany for the purpose of training the army, and perhaps with some intention of making a descent on the English coast. The young French officers swarmed to these camps and divided their time between drill and pleasure. On one occasion, seats had been reserved on a hill for some Breton ladies, who were to see the manoeuvres. Two colonels, escorting two ladies of the court who had recently arrived from Paris, undertook to appropriate the chairs for their companions. A squabble such as is common on such occasions was the result.

The Count of Segur, above mentioned, was acting as aide-de-camp to the commanding general. A few days after the quarrel about the chairs, just as he was going to begin a game of prisoners' base, two officers who were his friends informed him privately that the Calotte had ordered the two colonels who had given offense on that occasion to be publicly tossed in blankets and that the sentence was about to be carried out. Segur, to gain time, ordered the drummers to beat an alarm. The game was broken up, every officer ran to his colors, and the aide-de-camp hastened to explain the matter to the astonished general. The proposed punishment was deferred and finally prevented; but the escape from a scandalous breach of discipline had been a narrow one.

As the Revolution drew nearer, its spirit became evident in the army. The Count of Guibert, the most talented and influential member of the Board of War in 1788, was the object of satire and epigram. The younger officers conspired to spoil the success of his manoeuvres. The experiments that had been tried, the frequent changes in the regulations, had unsettled their ideas. In their reaction against the disagreeable rigor of German discipline, they protested that English officers alone, and not the machine-like soldiers of a despot, were the models for freemen. The common soldiers caught the spirit of insubordination from those who commanded them. Especially, the large regiment of French Guards, a highly privileged body, permanently quartered in Paris, was infected with the spirit of revolt. Its men were conspicuous in the early troubles of the Revolution, acting on the side of the mob.[Footnote: Cherest, i. 552. Miot de Melito, i. 3.]

The militia of old France does not call for a long notice. It consisted of from sixty to eighty thousand men, whose chief duty was in garrison in time of war, and who during peace were not kept constantly together, but assembled from time to time for drill. As the term of service was six years, the number of men drawn did not exceed fifteen thousand annually. This was surely no great drain on a population of twenty-six millions. Militia duty was greatly hated, however. This appears to have been because men did not volunteer for it, but were drafted; and because many persons were exempted from the draft. This immunity covered not only the sons of aged parents who were dependent on them for support, but privileged persons of all sorts, from apothecaries to advocates, gentlemen and their servants and game-keepers. The burden was thus thrown entirely on the poorer peasantry.[Footnote: Broc, i. 117; Babeau, Le Village, 259.]

The navy in the time of Louis XVI. reached a high state of efficiency. The war of 1778 to 1783 was in great measure a naval war, and although the French and their allies were worsted in some of the principal actions, the general result may be held to have been favorable to them. The navy at the outbreak of hostilities consisted of about seventy ships of the line, and as many frigates and large corvettes, with a hundred smaller vessels. These ships were built on admirable models, for the French marine architects were well-trained and skillful; but the materials and the construction were not equal in excellence to the design. The invention of coppering the ships' bottoms, and thus adding to their speed, although generally practiced in England, had been applied in France only to the smaller part of the navy. The French, however, had an advantage over the English in the fact that ships of the same nominal class were in reality larger and broader of beam among the former than among the latter, so that the French were sometimes able to fight their lower batteries in rough water, when the English had to keep their lower ports closed.

The naval officers of France were almost all noblemen, and received a careful professional training. Yet the practice of transferring officers of high rank from the army to the navy had not been completely abandoned. Thus d'Estaing, who commanded with little distinction on the North American coast in 1778, was no sailor, but a lieutenant-general, artificially turned into a vice-admiral. Such cases, however, were not common, and in general the French commanders erred rather by adhering too closely to naval rule, than by want of professional training. In the navy, as elsewhere, no great original talent was developed during this reign, which was a time of expectation rather than of action.

The men, like the officers, were good and well-trained, except when the lack of sailors obliged the government to employ soldiers on shipboard. It is noticeable that the seamen bore the rope's end with equanimity, although the landsmen were so much offended at flogging with the flat of the sword. Nor do I find any complaint of want of discipline at sea.

The administration of naval affairs was less satisfactory than the ships or the crews. The magazines were not well provided; and the stores were probably bad, for the fleets were subject to epidemics.[Footnote: Chabaud-Arnault, 189, 196, 214. Charnoek, iii. 222, 282 Segur, i. 138. Chevalier.]

In general the navy appears to have suffered less than the army from the fermentation of the public mind. Marine affairs must always remain the concern of a special class of men, cut off by absorbing occupations from the interests and sympathies of the rest of mankind.



CHAPTER VIII

THE COURTS OF LAW.

While the greater and more conspicuous part of the French nobility lived by the sword, a highly respectable portion of the order wore the judicial gown. Prominent in French affairs in the eighteenth century we find the Parliaments, a branch of the old feudal courts of the kings of France, retaining the function of high courts of justice, and playing, moreover, a certain political part. In the Parliament of Paris, on solemn occasions, sat those few members of the highest nobility who held the title of Peers of France. With these came the legal hierarchy of First President, presidents a mortier and counselors, numbering about two hundred. The members were distributed, for the purposes of ordinary business, among several courts, the Great Chamber, five courts of Inquest, two courts of Petitions, etc.[Footnote: Grand' Chambre, Cour des Enquetes, Cour des Requetes.] The Parliament of Paris possessed original and appellate jurisdiction over a large part of central France,—too large a part for the convenience of suitors,—but there were twelve provincial parliaments set over other portions of the kingdom. The members of these courts, and of several other tribunals of inferior jurisdiction, formed the magistracy, a body of great dignity and importance.

We have seen that the church possessed certain political rights; that it held assemblies and controlled taxes. The political powers of the parliaments were more limited, amounting to little more than the right of solemn remonstrance. Under a strong monarch, like Louis XIV., this power remained dormant; under weak kings, like his successors, it became important.

The method of passing a law in the French monarchy was this. The king, in one of his councils, issued an edict, and sent it to the Parliament of Paris, or to such other Parliaments as it might concern, for registration. If the Parliament accepted the edict, the latter was entered in its books, and immediately promulgated as law. If the Parliament did not approve, and was willing to enter on a contest with the king and his advisers, it refused to register. In that case the king might recede, or he might force the registration. This was done by means of what was called a bed of justice. His Majesty, sitting on a throne (whence the name of the ceremony), and surrounded by his officers of state, personally commanded the Parliament to register, and the Parliament was legally bound to comply. As a matter of fact, it did sometimes continue to remonstrate; it sometimes adjourned, or ceased to administer justice, by way of protest; but such a course was looked on as illegal, and severe measures on the part of the king and his counselors—the court, as the phrase went,—were to be expected. These measures might take the form of imprisonment of recalcitrant judges, or of exile of the Parliament in a body. Sometimes new courts of justice, more closely dependent on the king's pleasure, were temporarily established. Such were the Royal Chamber and the famous Maupeou Parliament under Louis XV., the Plenary Court of Louis XVI. Had these monarchs been strong men, the new courts would undoubtedly have superseded the old Parliaments altogether; as it was, they led only to confusion and uncertainty.[Footnote: Du Boys, Hist. du droit criminel de la France, ii. 225, 239.]

Throughout the reign of Louis XV. the Parliament of Paris was fighting against the church, while the court repeatedly changed sides, but oftener inclined to that of clergy. The controversy was theological in its origin, the magistrates being Jansenist in their proclivities, while the Church of France was largely controlled by the Molinist, or Jesuit party. The contest was long and doubtful, neither side obtaining a full victory. It was the fashion in the Philosophic party to represent the whole matter as a miserable squabble. Yet, apart from the importance of the original controversy, which touched the mighty but insoluble questions of predestination and free-will, the quarrel had a true interest for patriotic Frenchmen. The Roman Church was contending for the absolute and unlimited control of religious matters; the Parliament for the supremacy of law in the state.

In the reign of Louis XVI. the Parliament was principally engaged in struggles of another character. The magistrates were members of a highly privileged class. Their battle was arrayed for vested rights against reforms. From the time of Turgot to that of Lomenie de Brienne and the Notables, the Parliament of Paris, sometimes in sympathy with the nation, sometimes against it, was vigorously resisting innovations. Yet so great was the irritation then felt against the royal court that the Parliament generally gained a temporary popularity by its course of opposition.

The courts of justice, and especially the Parliaments, were controlled by men who had inherited or bought their places.[Footnote: Under Louis XIV, the price of a place of president a mortier was fixed at 350,000 livres, that of a maitre des requetes at 150,000 livres, that of a counselor at 90,000 to 100,000 livres. The place of First President was not venal, but held by appointment. Martin, xiii. 53 and n. The general subject of the venality of offices is considered in the chapter on Taxation.] This, while offering no guarantee of capacity, assured the independence of the judges. As the places were looked on as property, they were commonly transmitted from father to son, and became the basis of that nobility of the gown which played a large part in French affairs. The owner of a judicial place was obliged to pass an examination in law, before he could assume its duties and emoluments. This examination differed in severity at different times and in the different Parliaments. In the latter part of the eighteenth century it would appear to have been very easy at Paris, but harder in some of the provinces. The Parliaments, in any case, retained control over admission to their own bodies. Although they could not nominate, they could refuse certificates of capacity and morality. They insisted that none but counselors should be admitted to the higher places, and that candidates should be men of means, "so that, in a condition where honor should be the only guide, they might be able to live independently of the profits accessory to their labors, which should never have any influence." This caution was especially necessary as the judges were paid in great measure by the fees, or costs, which under the quaint name of spices were borne by the parties. Originally these fees had in fact consisted of sugar plums, not more than could be eaten in a day, but subsequently they had been commuted and increased until they amounted to considerable sums.[Footnote: Bastard d'Estang, i. 122, 245; Du Boys, 535.]

By requiring pecuniary independence and social position, together with a certain amount of learning and of personal character, the tone of the upper courts was kept good, the magistrates being generally among the most learned, solid, and respectable men in France. They seem also to have been hard-working and honest, although prejudiced in favor of their own privileged class. As the Revolution drew near, they fell into the common weakness of their age and country, the worship of public opinion, and the love of popularity. We find the Parliament of Paris undergoing, and even courting, the applause of the mob in its own halls of justice. Like the great Assembly which was soon to have in its hands the destinies of France, the most dignified court of justice in the land failed to perceive that the deliberative body that allows itself to be influenced or even interrupted by spectators, will soon, and deservedly, lose respect and power.[Footnote: De Tocqueville praises the independence of the old magistrates, who could neither be degraded nor promoted by the government, Oeuvres, iv. 171 (Ancien Regime, ch. xi.). Montesquieu, iii. 217 (Esp. des lois, liv. v. ch. xix.). Mirabeau, L'Ami des hommes, 212, 219. Bastard d'Estang, ii. 611, 621. Grimm, xi. 314.]

When we pass from the consideration of the political functions of the Parliaments, and of their composition, to that of the ordinary administration of justice, we are struck by the diversity of the law in civil matters, and by its severity in criminal affairs. The kingdom of France, as it existed in the eighteenth century, was made up of many provinces and cities, various in their history. Each one had its local customs and privileges. The complication of rules of procedure and rights of property was almost infinite. The body of the law was derived from sources of two distinct kinds, from feudal custom and from Roman jurisprudence. The customs which arose, or were first noted, in the Middle Ages, originating as, they did in the manners of barbarian tribes, or in the exigencies of a rude state of society, were products of a less civilized condition of the human mind than the laws of Rome. From a very early period, therefore, the most intelligent and educated lawyers all over Europe were struggling, more or less consciously, to bring customary feudal law into conformity with Roman ideas. These legists recognized that in many matters the custom had definitely fixed the law; but whenever a doubtful question arose, they looked for guidance to the more perfect system. "The Roman law," they said, "is observed everywhere, not by reason of its authority, but by the authority of reason." This idea was peculiarly congenial to the tone of thought current in the eighteenth century.

Even in England the common and customary law was enlarged at that time and adapted to new conditions in accordance with Latin principles, by the genius of Lord Mansfield and other eminent lawyers. In France the process began earlier and lasted longer. Domat, d'Aguesseau, and Pothier were but the successors of a long line of jurists. By the time of Louis XVI., some uniformity of principle had been introduced; but everywhere feudal irregularity still worried the minds of Philosophers and vexed the temper of litigants. The courts were numerous and the jurisdiction often conflicting. The customs were numberless, hardly the same for any two lordships. To the subjects of Louis XVI., believing as they did that there was a uniform, natural law of justice easily discoverable by man, this state of things seemed anomalous and absurd. "Shall the same case always be judged differently in the provinces and in the capital? Must the same man be right in Brittany and wrong in Languedoc?" cries Voltaire. And the inconvenience arising from this excessive variety of legal rights, together with the vexatious nature of some of them, did more perhaps than any other single cause to engender in the men of that time their too great love of uniformity.[Footnote: "Servatur ubique jus romanum, non ratione imperii, sed rationis imperio." Laferriere, i. 82, 532. See Ibid., i. 553 n., for a list of eighteen courts of extraordinary jurisdiction, and of five courts of ordinary jurisdiction, viz.; 1, Parlemens, 2, Presidiaux, 3, Baillis et senechaux royaux, 4, Prevots royaux, 5, Juges seigneuriaux. Voltaire, xxi. 419 (Louis XV.), Sorel, i. 148.]

It has been said that the judges of the higher courts were generally honest. In the lower courts, and especially in those tribunals which still depended on the lords, oppression and injustice appear to have been not uncommon. The bailiffs who presided in them were often partial where the interests of the lords whose salaries they received were concerned. And even when we come to the practice before the Parliaments, the American reader will sometimes be struck with astonishment at the extent to which members of those high tribunals were allowed by custom to be influenced by the private and personal solicitation of parties. The whole spirit of the continental system of civil and criminal law is here at variance with that of the Anglo-Saxon system. English and American judges are like umpires in a conflict; French judges like interested persons conducting an investigation. The latter method is perhaps the better for unraveling intricate cases, but the former would seem to expose the bench to less temptation. A judge who is long closeted with each of the contestants alternately must find it harder to keep his fingers from bribes and his mind from prejudice than a judge who is prevented by strict professional etiquette from seeing either party except in the full glare of the court-room, and from listening to any argument of counsel, save where both sides are represented. Accusations of bribery, even of judges, were common in old France. The lower officers of the court took fees openly. Thick books, under the name of memoires, were published, with the avowed intention of influencing the public and the courts in pending cases.[Footnote: For a statement that influential persons went unpunished in criminal matters and got the better of their adversaries in civil matters by means of lettres de cachet, and for instances, see Bos. 148; a long list of iniquitous judgments, Ibid., 190, etc.]

One judicial abuse especially contrary to fair dealing had become very common. Powerful and influential persons could have their cases removed from the tribunals in which they were begun, and tried in other courts where from personal influence they might expect a more favorable result. It was not only the royal council that could draw litigation to itself. The practice was widespread. By a writ called committimus, the tribunal by which an action was to be tried could be changed.

This appears to have been a frequent cause of failure of justice.

As for the criminal proceedings of the age, there was hardly a limit to their cruelty. Under Louis XV. the prisons were filthy dens, crowded and unventilated, true fever-holes. A private cell ten feet square, for a man awaiting trial, cost sixty francs a month. Large dogs were trained to watch the prisoners and to prevent their escape. Twice a year, in May and September, the more desperate convicts left Paris for the galleys. They made the journey chained together in long carts, so that eight mounted policemen could watch a hundred and twenty of them. The galleys at Toulon appear to have been less bad than the prisons in Paris. They were kept clean and well-aired, and the prisoners were fairly well fed and clothed; but some of them had been imprisoned for forty, fifty, or even sixty years. They were allowed to for themselves and to earn a little money. They were divided into three classes, deserters, smugglers, and thieves, distinguished by the color of their caps. [Footnote: Mercier, iii. 265, x. 151. Howard, Lazarettos, 54.]

Torture was regarded as a regular means for the discovery of crime. It was administered in various ways, the forms differing from province to province. They included the application of fire to various parts of the body, the distension of the stomach and lungs by water poured into mouth, thumbscrews, the rack, the boot. These were but methods of investigation, used on men and women whose crime was not proved. They might be repeated after conviction for the discovery of accomplices. The greater part of the examination of accused persons was carried on in private, and during it they were not allowed counsel for their defense. They were confronted but once with the witnesses against them, and that only after those witnesses had given their evidence and were liable to the penalties of perjury if they retracted it. Many offenses were punishable with death. Thieving servants might be executed, but under Louis XVI. public feeling rightly judged the punishment too severe for the offense, so that masters would not prosecute nor judges condemn for it.[Footnote: Counsel were not allowed in France for that important part of the proceedings which was carried on in secret. Voltaire, xlviii. 132. In England, at that time, counsel were not allowed of right to prisoners in cases of felony; but judges were in the habit of straining the law to admit them. Strictly they could only instruct the prisoner in matters of law. Blackstone iv. fol. 355 (ch. 27). The English seem for a long time to have entertained a wholesome distrust of confessions. Blackstone, ubi supra. How far is the Continental love of confessions derived from the church; and how far is the love of the church for confessions a result of the ever present busybody in human nature?]

Other criminals did not escape so easily. A most barbarous method of execution was in use. The wheel was set up in the principal cities of France. The voice of the crier was heard in the streets as he peddled copies of the sentence. The common people crowded about the scaffold, and the rich did not always scorn to hire windows overlooking the scene. The condemned man was first stretched upon a cross and struck by the executioner eleven times with an iron bar, every stroke breaking a bone. The poor wretch was then laid on his back on a cart wheel, his broken bones protruding through his flesh, his head hanging, his brow dripping bloody sweat, and left to die. A priest muttered religious consolation by his side. By such sights as these was the populace of the French cities trained to enjoy the far less inhuman spectacle of the guillotine.[Footnote: Mercier, iii. 267. Howard says that the gaoler at Avignon told him that he had seen prisoners under torture sweat blood. Lazarettos, 53.]

It was not until the middle of the century that men's minds were fairly turned toward the reform of the criminal law. Yet eminent writers had long pointed out the inutility of torture. "Torture-chambers are a dangerous invention, and seem to make trial of patience rather than of truth," says Montaigne; but he thinks them the least evil that human weakness has invented under the circumstances. Montesquieu advanced a step farther. He pointed out that torture was not necessary. "We see today a very well governed nation [the English] reject it without inconvenience." ... "So many clever people and so many men of genius have written against this practice," he continues, "that I dare not speak after them. I was about to say that it might be admissible under despotic governments, where all that inspires fear forms a greater part of the administration; I was about to say that slaves among the Greeks and Romans,—but I hear the voice of nature crying out against me." Voltaire attacked the practice in his usual vivacious manner; but, with characteristic prudence suggested that torture might still be applied in cases of regicide.[Footnote: Montaigne, ii. 36 (liv. ii. ch. v). So I interpret the last words of the chapter. Montesquieu, iii. 260 (Esprit des Lois, liv. vi. ch. 17). Voltaire, xxxii. 52 (Dict. philos. Question), xxxii. 391 (Ibid., Torture).]

Such scattered expressions as these might long have remained unfruitful. But in 1764 appeared the admirable book of the Milanese Marquis Beccaria, and about thirteen years later the Englishman John Howard published his first book on the State of the Prisons. Beccaria shared the ideas of the Philosophers on most subjects. Where he differed from them, it was as Rousseau differed, in the direction of socialism. But in usefulness to mankind few of them can compare with him. From him does the modern world derive some of its most important ideas concerning the treatment of crime. Extreme, like most of the Philosophers of his age; unable, like them, to recognize the proper limitations of his theories, he has yet transformed the thought of civilized men on one of the most momentous subjects with which they have to deal. So great is the change wrought in a hundred years by his little book, that it is hard to remember as we read it that it could ever have been thought to contain novelties. "The end of punishment... is no other than to prevent the criminal from doing farther injury to society, and to prevent others from committing the like offense." "All trials should be public." "The more immediately after the commission of a crime the punishment is inflicted, the more just and useful it will be." "Crimes are more effectually prevented by the certainty than by the severity of punishment." These are the commonplaces of modern criminal legislation. The difficulty lies in applying them. In the eighteenth century their enunciation was necessary. "The torture of a criminal during his trial is a cruelty consecrated by custom in almost every nation," says Beccaria. Indeed it seems to have been legal in his day all over the Continent, although restricted in Prussia and obsolete in practice in Holland. Beccaria opposed torture entirely, on broad grounds. As to torture before condemnation he holds it a grievous wrong to the innocent, "for in the eye of the law, every man is innocent whose crime has not been proved. Besides, it is confounding all relations to expect that a man should be both the accuser and the accused, and that pain should be the test of truth; as if truth resided in the muscles and sinews of a wretch in torture. By this method, the robust will escape and the weak will be condemned." The penalties proposed by Beccaria are generally mild,—he would have abolished that of death altogether,—his reliance being on certainty and not on severity of punishment. [Footnote: Beccaria, passim. Lea, Superstition and Force, 515.]

It was not to be expected that Beccaria's book should work an immediate change in the manners of Christendom. The criminal law remained unaltered at first, in theory and practice. But the consciences of the more advanced thinkers were affected. In 1766, at Abbeville, a young man named La Barre was convicted of standing and wearing his hat while a religious procession was passing, singing blasphemous songs, speaking blasphemous words, and making blasphemous gestures. There was much popular excitement at the time on account of the mutilation of a crucifix standing on a bridge in the town, but La Barre was not shown to have been concerned in this outrage. The judges at Abbeville appear to have laid themselves open to the accusation of personal hostility to him. The young man, having been tortured, was condemned to make public confession with a rope round his neck, before the church of Saint Vulfran, where the injured crucifix: had been placed, to have his tongue cut out, to be beheaded, and to have his body burned. This outrageous sentence was confirmed by the Parliament of Paris. The superstitious king, Louis XV., would not grant a pardon. The capital sentence was executed, but the cutting out of the tongue was omitted, the executioner only pretending to do that part of his work. La Barre's head fell, amid the applause of a cruel crowd which admired the skillful stroke of the headsman. A thrill of indignation, not unmixed with fear, ran through the liberal party in France. The anger and grief of Voltaire were loudly expressed. It was at least an improvement on the state of public feeling in former generations that such severity should not have met with universal acquiescence.[Footnote: The best account of the affair of La Barre which I have met is in Desnoiresterres, Voltaire et Rousseau, 465.]

The practice of torture was not without defenders. One of them asked what could be done to find stolen money if the thief refused to say where he had hidden it. But this was not his only argument. "The accused himself," he said, "has a guarantee in torture, which makes him a judge in his own case, so that he becomes able to avoid the capital punishment attached to the crime of which he is accused." And this writer confidently asserts that for a single example which might be cited in two or three centuries of an innocent man yielding to the violence of torture, a million cases of rightful punishment could be mentioned. [Footnote: Muyard de Vougland, quoted in Du Boys, ii. 205 ]

Yet the march of progress was fairly rapid in the latter part of the eighteenth century. In the jurisprudence of that age a distinction was made between preparatory torture, which was administered to suspected persons to make them confess, and previous torture, which was inflicted on the condemned, previous to execution, to obtain the accusation of accomplices. The former of these, by far the greater disgrace to civilization, was abolished in France on the 24th of August, 1780; the latter not until, 1788, and then only provisionally. Thus was one of the greatest of modern reforms accomplished before the Revolution. About the same time many ordinances were passed for the amelioration of French prisons. They were about as bad as those of other countries, and that was very bad indeed.[Footnote: Question preparatoire; question prealable, sometimes called q. definitive. Desmaze, Supplices, 177. Desjardins, p. xx. Howard, passim. The English have long boasted that torture is not allowed by their law; and although the peine forte et dure was undoubted torture, the boast is in general not unfounded. Torture was abolished in several parts of Germany in the eighteenth century, but lingered in other parts until the nineteenth. It was not done away in Baden until 1831. Lea, Superstition and Force, 517.]

The courts of law did not act against persons alone. The Parliament of Paris was in the habit of passing condemnation on books supposed to contain dangerous matter. The suspected volume was brought to the bar of the court by the advocate general, the objectionable passages were read, and the book declared to be "heretical, schismatical, erroneous, blasphemous, violent, impious," and condemned to be burned by the public executioner. Then a fagot was lighted at the foot of the great steps which may still be seen in front of the court-house in Paris. The street boys and vagabonds ran to see the show. The clerk of the court, if we may believe a contemporary, threw a dusty old Bible into the fire, and locked the condemned book, doubly valuable for its condemnation, safely away in his book-case.[Footnote: Mercier, iv. 241.]

As for the author, the Parliament would sometimes proceed directly against him, but oftener he was dealt with by an order under the royal hand and seal, known as a lettre de cachet[Footnote: The lettre de cachet was written on paper, signed by the king, and countersigned by a minister. It was so sealed that it could not be opened without breaking the seal. It was reputed a private order. Larousse.] Arbitrary imprisonment, without trial, is a thing so outrageous to Anglo-Saxon feelings that we are apt to forget that it has until recent years formed a part of the regular practice of most civilized nations. It is considered necessary to what is called the police of the country, a word for which we have in English no exact equivalent. Police, in this sense, not only punishes crime, but averts danger. Acts which may injure the public are prevented by guessing at evil intentions; and criminal enterprises are not allowed to come to action.

This sort of protection is a part of the function of every government; but on the Continent, in old times, and still in some countries, long and painful imprisonment of men who had never been convicted of any crime was considered one of the proper methods of police. It was justified in some measure in French eyes by the fact that secrecy saved the feelings of innocent families, which thus did not suffer in the public estimation for the misdeeds of one unruly member. In France, where the family is much more of a unit than in English-speaking countries, the disgrace of one person belonging to it affects the others far more seriously. The lettre de cachet of old France, confining its victim in a state prison, was too elaborate a method to be used with the turbulent lower classes—for them there were less dignified forms of proceeding; but it was freely employed against persons of any consequence. Spendthrifts and licentious youths were shut up at the request of their relations. Authors of dangerous books were readily clapped into the Bastille, Vincennes or Fors l'Eveque. Voltaire, Diderot, Mirabeau, and many others underwent that sort of confinement; and the first of them is said to have procured by his influence the incarceration of one of his own literary enemies. Fallen statesmen were fortunate when they did not pass from the cabinet to the prison, but were allowed the alternative of exile, or of seclusion in their own country houses. But this was not the worst. The lettre de cachet was too often the instrument of private hate. Signed carelessly, or even in blank, by the king, it could be procured by the favorite or the favorite's favorite, for his own purposes. And if the victim had no protector to plead his cause, he might be forgotten in captivity and waste a lifetime.

For such abuses as this, there is no remedy but publicity. If, on the one hand, too much has been made of the romantic story of the Bastille, which was certainly not a standing menace to most peaceable Frenchmen, too great stress, on the other hand, may be laid on the undoubted fact that under Louis XVI. the grim old fortress contained but few prisoners, and that some of them were persons who might have been cast into prison under any system of government. In the reign of that king's immediate predecessor great injustice had been committed. Nor had arbitrary proceedings been entirely renounced by the government of Louis XVI. itself. In the very last year before that in which the Estates General met at Versailles, the royal ministers imprisoned in the Bastille twelve Breton gentlemen, whose crime was that they importunately presented a petition from the nobles of their province. The apartments which they were to occupy were filled with other prisoners, so room was made by removing these unhappy occupants to the madhouse at Charenton, whence they were released only in the following year by order of a committee of the National Assembly.[Footnote: Barere, i. 281. Perhaps the most terrifying thing about the Bastille was that no one really knew what went on inside. Mercier thinks that the common people were not afraid of it, iii. 287, 289.]



CHAPTER IX.

EQUALITY AND LIBERTY.

It was as a privileged order that the Nobility of France principally excited the ill-will of the common people. The more thoughtful Frenchmen of the eighteenth century, all of them at least who have come to be known by the name of Philosophers, set before themselves two great ideals. These were equality and liberty. The aspiration after these was accompanied in their minds by contempt for the past and its lessons, misunderstanding of the benefits which former ages had bequeathed to them, and hatred of the wrongs and abuses which had come down from earlier times. Among them the word gothic was a violent term of reproach, aimed indiscriminately at buildings, laws, and customs. History, with the exception of that of Sparta, was thought to consist far more of warnings than of models. Just before the Revolution, a number of persons who had met in a lady's parlor were discussing the education of the Dauphin. "I think," said Lafayette," that he would do well to begin his History of France with the year 1787."

This tendency to depreciate the past was due in a measure to the preference, natural to lively minds, for deductive over inductive methods of thought. It is so much easier and pleasanter to assume a few plausible general principles and meditate upon them, than to amass and compare endless series of dry facts, that not by long chastening will the greater part of the world be brought to the more arduous method. Nor should enthusiasm for one of the great processes of thought cause contempt of the other. Even the great inductive French philosopher of the eighteenth century, Montesquieu, failed in a measure to grasp the continuity of history; and drew the facts for his study rather from China and from England than from France, rather from the Roman republic than the existing monarchy. Fear of the censor and of the civil and ecclesiastical tribunals, which would not bear the open discussion of questions of present interest, doubtless added to this tendency.

The idea of equality at first seems simple, but equality may be of many kinds. Absolute equality in all respects between two human beings, no one has ever seen, and no one perhaps has ever thought of desiring. All the relations of life are founded on inequality. By their differences husband and wife, friend and friend, are made necessary and endeared to each other; the parent protects and serves the child, the child obeys and helps the parent; the citizen calls on the magistrate to guard his rights, the magistrate enforces the laws which have their sanction in the consent of the body of citizens. Equality as a political ideal is therefore a limited equality. It may extend to condition, it may be confined to civil rights, or to opportunities.

The Philosophers of the eighteenth century, followed by a school in our day, universally assumed that an approximate equality of condition was desirable. Rousseau agreed with Montesquieu, in believing that a small republic, none of whose citizens were either very rich or very poor, was likely to be in a desirable condition. Virtue, they thought, would be its especial characteristic. In some of the Swiss cantons, and later in the struggling American colonies of Great Britain, Frenchmen discovered communities approaching their ideal in respect to the equal distribution of wealth; and their discovery in the latter case was not without great results. This kind of equality has since passed away from large portions of America, as it must always disappear where civilization increases. Good people mourn its departure; some few, perhaps, would patiently endure its return. They are about as numerous as those who abandon city life to dwell permanently in the country, also the home of comparative equality of condition. The theoretic admiration for this sort of equality was shared by a large and enlightened part of the French nobility. Thus the order was weakened by the fact that many of its own members did not believe in its claims.

Another kind of equality is that of civil rights. Before the Revolution, France was ruled by law, but all Frenchmen were not ruled by the same law. There were privileged persons and privileged localities. Of these anomalies, sometimes working hardship, the minds of intelligent men at that time were especially impatient. They believed, as has been said, in natural laws, implanted in every breast, finding their expression in every conscience; and many of them entertained a crude notion that such laws could easily be applied to the enormously complicated facts of actual life. Assuming such laws to exist, as absolute as mathematical axioms and far easier of application, all variation was error, all anomaly absurd, all claims of a privileged class unfair and unfounded.

Equality of civil rights is also desired from the fear of oppression; a very important motive in the eighteenth century, when the great still had the power to be very oppressive at times. We have seen the treatment which Voltaire received at the hands of a member of one of the great families. Outrages still more flagrant appear to have been not uncommon in the reign of Louis XV., and although there had probably never been a time in France so free from them as that of his successor, their memory was still fresh. It is in their decrepitude that political abuses are most ferociously attacked. When young and lusty they are formidable.

Again, there is equality of opportunity. This is desired as a means of subverting equality of condition to our own advantage, as a chance to be more than equal to our fellow-men. This kind is longed for by the able and ambitious. Where it is denied, the strongest good men will be less useful to the state, unless they happen to be favorably placed at birth; the strongest bad men perhaps more dangerous, because more discontented. It is this sort of equality, more than any other, which the French Philosophers and their followers actually secured for Frenchmen, and in a less degree for other Europeans of to-day. By their efforts, the chance of the poor but talented child to rise to power and wealth has been somewhat increased. This chance, when they began their labors, was not so hopeless as it is often represented. It is not now so great as it is sometimes assumed to be. Still, there has been one decided advance. We have seen that under the old monarchy many important places were reserved for members of the noble class, and practically for a few families among them. Since that monarchy passed away, the opportunity to serve the state, with the great prizes which public life offers to the strong and the aspiring, has been thrown open, theoretically at least, to all Frenchmen.

If the idea of equality be comparatively simple, that of liberty is very much the reverse. The word, in its general sense, signifies little more than the absence of external control. In politics it is used, in the first place, for the absence of foreign conquest, and in this sense a country may be called free although it is governed by a despot. The next signification of liberty is political right, and this is the sense in which it has been most used until recent years. When a tyrant overthrew the liberties of a Greek city, he substituted his own personal rule for the rights of an oligarchy. The mass of the inhabitants may have been neither better nor worse off than before. When Hampden resisted the encroachments of King Charles I, he was fighting the battle of the upper and middle classes against despotism, and we hold him one of the principal champions of liberty. Indeed, liberty in this sense is so far from being identical with equality, that many of those who have been foremost in its defense have been members of aristocracies and holders of slaves. To accuse them of inconsistency is to be misled by the ambiguous meaning of a word. They fought for rights which they believed to be their own; they denied that the rights of all men were identical. During the eighteenth century in France, certain bodies, such as the clergy and the Parliament of Paris, were struggling for political liberties in this older sense, and before the outbreak of the French Revolution many of the most enlightened of the nobility hoped to acquire such liberties. Much blood and confusion might have been spared, and many useful reforms accomplished, had Frenchmen clutched less wildly at the phantom of equality, and sought the safer goal of political liberty.

Another sort of liberty, although it has undoubtedly been desired by individuals in all ages, is almost entirely modern as an ideal for civilized communities. This is the absence of interference, not only of a foreign power or of a lawless oppressor, but of the very law itself. The desire for such freedom as this, would in almost all ages of the world have been held inconsistent with proper respect for order and security. It would have been considered no more than the wicked longing of an unchastened spirit, the temptation of the Evil One himself. In the eighteenth century, however, we see the rise of new opinions. It may be that order had become so firmly established in the European world that a reaction could safely set in. At any rate we find a new way of looking at things. "Independence," a word which had been often used by the clerical party, and always as a term of reproach, is treated by the Philosophers with favor. Toleration of all kinds of opinions, and of most kinds of spoken words, is making way.[Footnote: In spite of the impatience shown by Voltaire of any criticism of himself, he and his followers did more than any other men that ever lived to make criticism free to all writers.] A new school of thinkers is adapting the new form of thought to economical matters. Laissez faire; laissez passer. Restrict the functions of government. Order will arise from the average of contending interests; right direction is produced by the sum of conflicting forces. The doctrine has exerted enormous influence since the French Revolution in resisting the claims of socialism,—that new form of tyranny in which all are to be the despot and each the slave. But few of the Philosophers accepted it entirely. Most of them desired the constant interference of the government for one purpose or another, and many believed in the power, almost the omnipotence, of a mythical personage, borrowed in part from Plutarch and commonly called the Legislator.

The history and action of this personage may be roughly stated as follows. Every nation now civilized was in early days in a barbarous condition. Once upon a time, a great man came from somewhere, and brought a complete set of laws, morals, and manners with him. To these laws and customs he generally ascribed a divine origin. The nation to which they were proclaimed adopted them, and the people's subsequent happiness and prosperity were in proportion to their excellence. The reasons which are supposed to have induced the barbarous tribe to change all its habits at the bidding of one man are seldom given, or if given, are ludicrously inadequate. The theory of the legislator is now out of date. It is generally held that the institutions of every race have grown up with it, that they are appropriate to its nature and history, gradually modified sometimes by act of the national will, and more or less changed under foreign influences, but that their general character cannot suddenly be subverted. Its institutions thus as truly belong to a civilized race, as the skin without fur or the erect position belong to mankind. There is some evidence in support of either theory, and the truth will probably be found to lie between them, although nearer to the latter. Yet the effect of a higher civilization implanted on a lower one seems at times singularly rapid. The story of the legislator is a part of most early histories and mythologies. The classical model has generally been held to be either Minos or Lycurgus. There were few clever men in France between the years 1740 and 1790 who did not dream of trying on the sandals of those worthies.

While the ideas attached to equality and to liberty were vague and indefinite, it was generally assumed that they would coincide. Liberty and equality, however, have tendencies naturally opposed to each other. Remove the exterior forces which control the wills of men, overturn foreign domination, give every citizen political rights, reduce the interference of laws to a minimum, and the natural differences and inequalities of physical, mental, and moral strength, or power of will, inherent in mankind, will have the fuller opportunity to act. The strong improve their natural advantage, they acquire dominion over their weaker neighbors, they monopolize opportunities for themselves, their friends and their children. Only by keeping all men in strict subjection to something outside of themselves can all be kept in comparative equality. This fact was instinctively apprehended by one school of French thinkers. We shall see that the followers of Rousseau, while posing as champions of Liberty, were in fact the founders of a system which is the very antithesis of individual freedom.[Footnote: It is perhaps needless to remark that I have touched here only on the political meanings of the word Liberty. In the eighteenth century the word was much used in its philosophical sense, and the eternal problem of necessity and free-will was warmly discussed.]



CHAPTER X.

MONTESQUIEU.

One man stands out among the French nobility of the gown in the eighteenth century, influencing human thought beyond the walls of the court-room; one Philosopher who looks on existing society as something to be saved and directed. The work of Voltaire and his followers was principally negative. Their favorite task was demolition. The ugly and uninhabitable edifices of Rousseau's genius required for their erection a field from which all possible traces of civilized building had been removed. But Montesquieu, while he satirized the vices of the society which he saw about him, yet appreciated at their full value the benefits of civilization. He recognized that change is always accompanied by evil, even if its preponderating result be good, and that it should be attempted only with care and caution. His ideas influenced the leading men of the second half of the century somewhat in proportion to their judgment and in inverse proportion to their enthusiasm.

Charles Louis de Secondat, Baron of Montesquieu, born in 1689, was by inheritance one of the presidents of the Parliament of Bordeaux. [Footnote: In his youth he was known as Charles Louis de la Brede, the name being taken from a fief of his mother. The name of Montesquieu he inherited from an uncle, together with his place of president a mortier. Vian, Histoire de Montesquieu, 16, 30.] He was recognized in early life as a rising man, a respectable magistrate, sensible and brilliant rather than learned; a man of the world, rich and thrifty, not very happily married, and fond of the society of ladies. In appearance he was ugly, with a large head, weak eyes, a big nose, a retreating forehead and chin. In temperament he was calm and cheerful. "I have had very few sorrows," he says, "and still less ennui."—"Study has been to me a sovereign remedy against the troubles of life, and I have never had a grief that an hour's reading would not dissipate." He was shy, he tells us, but less among bright people than among stupid ones. Good-natured he appears to have been, and somewhat selfish; easily amused, less by what people said than by their way of saying it. He was a good landlord and a kind master. It is told of him that one day, while scolding one of his servants, he turned round with a laugh to a friend standing by. "They are like clocks," said he, "and need winding up now and then".[Footnote: See the medallion given in Vian, and said by the Biographie universelle to be the only authentic portrait. Also Montesq. vii. 150, (Pensees diverses. Portrait de M. par lui-meme, apparently written when he was about forty). Also Vian, 141.]

Montesquieu set himself a high standard of duty. In a paper intended only for his son, he writes: "If I knew something which was useful to myself and injurious to my family, I should reject it from my mind. If I knew of anything which was useful to my family and which was not so to my country, I should try to forget it. If I knew something useful to my country, which was injurious to Europe and the human race, I should consider it a crime."[Footnote: Montesq., vii. 157.]

Montesquieu's first book appeared in 1721, a book very different from those which followed it. It is witty and licentious after a rather stately fashion, full of keen observation and cutting satire. In contrast to the books of other famous writers of the century, the "Persian Letters" are eminently the work of a gentleman;—of a French gentleman, when the Duke of Orleans was Regent.

The "Lettres Persanes" are, as their name suggests, the supposed correspondence of two rich Persians, Usbek and Rica, traveling in France and exchanging letters with their friends and their eunuchs in Persia. The letters which the travelers receive, containing the gossip of their harems, form but the smaller portion of the book, and are evidently intended to give it variety and lightness. In the letters which they write to their Persian correspondents we have the satirical picture of French society. How far had the ruling, infallible church sunk in the minds of Frenchmen, when a well-placed and rather selfish man could write what follows.

"The Pope is the chief of the Christians. He is an old idol, to which people burn incense from the force of habit. In old times he was formidable even to princes; for he deposed them as easily as our magnificent Sultans depose the kings of Irimette and of Georgia. But he is no longer feared. He calls himself the successor of one of the earliest Christians, known as Saint Peter; and it is certainly a rich inheritance, for he has enormous treasures and a rich country under his dominion."

The bishops are legists, subordinate to the Pope. They have two functions. When assembled they make articles of faith as he does. When separate, they dispense people from obeying the law. For the Christian religion is full of difficult observances; and it is thought to be harder to do your duty than to have bishops to give you dispensation. The doctors, bishops, and monks are constantly raising questions on religious subjects, and dispute for a long time, until at last an assembly is held to decide among them. In no kingdom have there been as many civil wars as in that of Christ.[Footnote: Montesq., i. 124. Letter xxix.]

Farther on we have a picture of the way in which religion is regarded in French society. It is less a subject of sanctification than of dispute. Courtiers, soldiers, even women, rise up against ecclesiastics and ask them to prove what the others have resolved not to believe. This is not because people have determined their minds by reason, nor that they have taken the trouble to examine the truth or falsehood of this religion which they reject. They are rebels who have felt the yoke and who have shaken it off before they have known it. They are, therefore, no firmer in their unbelief than in their faith. They live in an ebbing and flowing tide, which unceasingly carries them from one to the other. [Footnote: Montesq., i. 251. Letter lxxv.] Making a large allowance for satire, we have yet an interesting and doleful picture of a small but important part of the French nation. And it is noticeable that the Persian Letters precede by thirteen years Voltaire's "Philosophical," or "English Letters."[Footnote: 1721-1734.]

Montesquieu argues that it is well to have several sects in a country, as they keep a watch on each other, and every man is anxious not to disgrace his party. But it is for toleration and not for equality that the author pleads. A state church seemed almost necessary to thought in the early part of the eighteenth century. Yet Montesquieu has no great liking for any form of dogmatic religion; in this he belongs distinctly with the Philosophers; morality is, in his eyes, the great, perhaps the only thing to be desired; obedience to law, love to men, filial piety, those, he says, are the first acts of all religions; ceremonies are good only on the supposition that God has commanded them; but about the commands of God it is easy to be mistaken, for there are two thousand religions, each of which puts in its claim. Thus was the great argument of the Catholics, that the multiplicity of Protestant sects—provided their falsity, turned against its inventors.[Footnote: Ibid., i. 164. Letter xlvi. Compare with Montesquieu's opinion, expressed in the Spirit of the Laws, that the sovereign should neither allow the establishment of a new form of religion, nor persecute one already established.]

The licentiousness of the "Persian Letters" has been mentioned. It is one of the most noticeable features of the writings of the Philosophers of the eighteenth century that the whole subject of sexual morality is viewed by them from a standpoint different from that taken by ourselves. The thinking Frenchmen of that age believed that there was a system of natural morals, imposed on man by his own nature and the nature of things. They believed that there was also an artificial system resting only on positive law, or on the ordinances of the church. It was the tendency of the ecclesiastical mind to ignore that distinction. That tendency had been pushed too far and had produced a reaction.

The distinction is one which is not quite disregarded even by men of those races which have most respect for law. Nobody feels that the injunction to keep off the grass in a public park, or the rule to pass to the right in driving, is of quite the same sort of obligation as the precept to keep your hands from picking and stealing. A far greater amount of odium is incurred by the known breach of a rule of natural morals, than by that of a rule depending solely on the ordinance of the legislative power. Smuggling may be mentioned as a crime coming near the dividing line in the popular feeling of most countries. Few men would feel as much disgraced at being caught by a custom-house officer, with a box of cigars hidden under the trowsers at the bottom of their trunk, as at being seized in the act of stealing the same box from the counter of a tobacconist. In countries where the laws are arbitrary and the law-making power distrusted, this distinction is more strongly marked than where the government has the full confidence and approbation of the community. The more progressive Frenchmen of a hundred and fifty years ago believed the laws of their country to be bad in many respects. They therefore thought that there was a great difference between what jurists call prohibited wrong and wrong in itself.

Now, admitting this distinction to exist in men's minds, there is one large class of crimes and vices which is put in one category by most Anglo-Saxons and which was put in the other by the French Philosophers. These are the breaches of the sexual laws. It is one of the greatest services of the church to Christendom that she has always laid particular emphasis on the duty of chastity. It is one of her greatest errors, that she has exalted the practice of celibacy over that of conjugal fidelity. The Philosophers, as was their custom, looked abroad on the practice of various nations. They found that some of the ancients granted divorce freely at the request of either party. They learned that Orientals generally allowed polygamy. They saw in their own country a low state of sexual morals among the highest classes, partly due perhaps to the example of a depraved court. Observation and desire concurred with hatred of the clergy to warp their judgments. They forgot, at least in part, that chastity is the foundation of the family and the civilized state; that divorce and polygamy, although of momentous importance, are but secondary questions; that on sexual self-restraint civilization rests, as much as on respect for life and property. On the false theory that unchastity is but an artificial crime, the delusive invention of an ascetic church, will, I think, be found to depend much that has been worst in the practice of Frenchmen, much that is most disgusting in their literature.[Footnote: The commandment "Thou shalt not commit adultery" is equally applicable to polygamists and monogamists. It was originally promulgated to the former, and to a nation in which a man could put away his wife.]

This theory is seldom held unreservedly. In the "Persian Letters" it goes no farther than an elaborate apology for divorce, a scathing denunciation of celibacy, and a general licentiousness of tone. The later writings of Montesquieu are free from indecency. But it is noticeable of him, perhaps the most high-minded of the Philosophers, and of the rest of them, that while they constantly insist on the importance of virtue, they hardly rank chastity among the virtues.[Footnote: See the story of a Guebir who marries his sister, Montesq., i. 226, Letter lxvii. The point appears to be that the laws forbidding marriage in cases of consanguinity are arbitrary.]

The monarchy fares little better than the church in the "Persian Letters." "The King of France," says Rica, "is the most powerful prince in Europe. He has no gold-mines like his neighbor the King of Spain; but he has more wealth than the latter, for he draws it from the vanity of his subjects, more inexhaustible than mines. He has been known to undertake and carry on great wars, with no other resource than titles of honor to sell; and by a prodigy of human pride, his troops were paid, his forts furnished, his fleets equipped."

"Moreover, this king is a great magician; he rules the very minds of his subjects; he makes them think as he pleases. If he has only one million dollars in his treasury and needs two, he has but to assure them that one dollar is worth two, and they believe him. If he has a difficult war to carry on, and has no money, he has but to put it into their heads that a piece of paper is bullion, and immediately they are convinced. He even goes so far as to make them believe that he cures them of all manner of diseases by touching them. Such is the strength and power that he has over their minds."[Footnote: Ibid., i. 110, Letter xxiv. Referring to the sale of offices and titles, to the habit of debasing the coinage, and to that of touching for scrofula.]

"What I tell you of this prince need not astonish you, There is another magician stronger than he; who is no less master of the king's spirit, than the king himself is of that of others. This magician is called the Pope. Sometimes he makes the king believe that three are only one; that the bread people eat is not bread, that the wine that they drink is not wine, and many things of the same kind."

Rica has seen the young king, Louis XV. His countenance is majestic and charming; a good education, added to a good natural disposition, gives promise of a great sovereign. But Rica is informed that you cannot tell about these western kings until you know of their mistress and their confessor. "Under a young prince these exercise rival powers; under an old one, they are united. The strength of a young king makes the dervish weak; but the mistress turns both strength and weakness to account." [Footnote: Montesq., i. 339, Letter cvii.]

The Christian princes long ago freed all the slaves in their states; saying that Christianity made all men equal. This religious action was very useful to them, for it abridged the power of their chief lords. Since then, they have conquered new countries where slavery was profitable. They have forgotten their religion and allowed slaves to be bought and sold.[Footnote: Ibid., i. 252, Letter lxxv.]

The French are more governed by the laws of honor than the Persians, because they are more free. But the sanctuary of honor, reputation, and virtue seems to be built in republics, where a man may feel that he has indeed a country. In Greece and Rome a crown of leaves, a statue, the praise of the state, were recompense enough for a battle won or a city taken. Switzerland and Holland, with the poorest soil in Europe, are the most populous countries for their area. Liberty—and opulence, which always follows it—draws strangers to the country. Political equality among citizens generally produces equality of fortune, and scatters abundance and life.

But under an arbitrary government, the prince, his courtiers, and a few individuals, possess all the wealth, while the rest of the country suffers from extreme poverty.[Footnote: Montesq., i. 291, Letter lxxxix. See also pp. 381, 386, Letters cxxii., cxxiv.]

The satirical character of the "Persian Letters" is sufficiently evident from the extracts given above. But Montesquieu is far more widely and justly known as a wise and learned writer on government than as a satirist. The book we have been considering was by far the lightest, as it was the earliest, of his considerable writings. The good sense, caution, and conservatism of his nature appear in the "Persian Letters" less conspicuously than in his later works; yet, even there, are in marked contrast to the haste and shallowness of many of the Philosophers. "It is true'," he says, "that laws must sometimes be altered, but the case is rare; and when it happens, they should be touched with a trembling hand; and so many solemnities should be observed, and so many precautions used, that the people may naturally conclude that the laws are very sacred, since so many formalities are necessary to abrogate them."[Footnote: Ibid., i. 401, Letter cxxix.]

Here is an opinion, overstated perhaps, but not without its frequent illustrations since he wrote it. "It seems ... that the largest heads grow narrow when they are assembled, and that where there are, most wise men, there is least wisdom. Large bodies are always deeply attached to details, to vain customs; and essential matters are always postponed. I have heard that a king of Aragon, having assembled the Estates of Aragon and Catalonia, the first meetings were taken up in deciding in what language the deliberations should be held. The dispute was lively, and the Estates would have broken up a thousand times, had not an expedient been hit upon, which was that the questions should be put in Catalonian and the answers given in Aragonese."[Footnote: Montesq., i. 344, Letter cix. See several of the principal deliberative bodies of the world so bound by their own rules that they can scarcely move; and compare with them in point of efficiency the small legislatures and boards which manage many important and complicated interests promptly, sitting with closed doors.]

"I have never heard people talk about public law," he says in another letter, "that they did not inquire carefully what was the origin of society; which strikes me as absurd. If men did not form a society, if they separated and fled from each other, we should have to ask the reason of it, and to seek out why they kept apart. But they are created all bound to each other, the son is born near his father and stays there; this is society, and the cause of society."[Footnote: Ibid., i. 301, Letter xciv.]

A satirical book, like the "Persian Letters," could not have been openly published in France under Louis XV. The first edition was in fact printed at Amsterdam, although Cologne appeared on the title-page as the place of publication. The book was anonymous, but Montesquieu was well known to be the author, and speedily acquired a great reputation. After several years, for things did not move fast in Old France, he was proposed for election to the Academy. To be one of the forty members of that body is the legitimate ambition of the literary Frenchman. The Cardinal de Fleury, who was prime minister, is said to have announced that the king would never consent to the election of the author of the "Persian Letters." He added that he had not read the book, but that people in whom he had confidence assured him that it was dangerous. According to Voltaire, Montesquieu thereupon had a garbled edition of the Letters hastily printed, himself took a copy to the Cardinal, induced His Eminence to read a part of it, and, with the help of friends, prevailed on him to alter his decision. Such a trick is more worthy of Voltaire, who continually denied his own works, than of Montesquieu, who, I believe, never did so. D'Alembert tells the story in a way entirely creditable to the latter. He says that Montesquieu saw the minister, told him that for private reasons he did not give his name to the "Persian Letters," but that he was far from disowning a book of which he did not think he had cause to be ashamed. He then insisted that the Letters should be judged after reading them, and not on hearsay. Thereupon the Cardinal read the book, was pleased with it and with its author, and withdrew his opposition to the latter's election to the Academy.[Footnote: Nouvelle Biographie Universelle. Voltaire (Siecle de Louis XIV. liste des ecrivains). D'Alembert, vi. 252. The date of Montesquieu's election was Jan. 24, 1728. See a discussion of the whole story in Vian, 100. Montesquieu is there said to have threatened to leave France, and to have declined a pension at this time. Montesquieu tells the story of the pension, but without fixing a date: "Je dis que n'ayant pas fait de bassesse, je n'avais pas besoin d'etre console par des graces," vii. 157. Voltaire was always jealous of Montesquieu's reputation; and also, at this time, out of temper with the Academy, to which he was elected only in 1746.]

A little before this time Montesquieu resigned his place as one of the presidents of the Parliament of Bordeaux, selling the life estate in it, but reserving the reversion for his son. Having thus obtained leisure, he set out on a long course of travel, lasting three years. "In France," said he later, "I make friends with everybody; in England with nobody; in Italy I make compliments to every one; in Germany I drink with every one." "When I go into a country, I do not look to see if there are good laws, but whether they execute those they have; for there are good laws everywhere."[Footnote: Vian, 90. Montesq. vii. 186, 189.]

Montesquieu arrived in England in the autumn of 1729, sailing from Holland in the yacht of Lord Chesterfield, whose acquaintance he had made on the Continent. He spent seventeen months in the country, and, in spite of his epigram about making friends with nobody, saw some of the most eminent men, including Swift and Pope, was received by the Royal Society, and presented at Court. At a time when England and the English language were little known in France, he studied them in a way which deeply influenced all his views of government. "In London," he says, "liberty and equality. The liberty of London is the liberty of the best people,[Footnote: Honnestes gens, which cannot be exactly translated. Montesq., vii. 185. Vian, 112.] in which it differs from the liberty of Venice, "which is the liberty of debauchery." The equality of London is also the equality of the best people, in which it differs from the liberty of Holland, which is the liberty of the populace."

"England is at present the most free country in the world; I do not except any republic. I call it free because the prince can do no conceivable harm to anybody; because his power is controlled and limited by a law. But if the lower chamber should become them mistress, its power would be unlimited and dangerous, because it would have executive power also; whereas now unlimited power is in the parliament and the king, and the executive power in the king, whose power is limited. A good Englishman must, therefore, seek to defend liberty equally against the attacks of the crown and those of the chamber."[Footnote: Montesq., vii. 195 (Notes sur l'Angleterre).]

Montesquieu brought back from England an admiration of what he had seen there as genuine, and far more discriminating than that of Voltaire. While the studies of Montesquieu were principally directed to the political institutions of the country, those of Voltaire embraced the philosophy and social life of England. Through these two great men, more perhaps than through any others, English ideas were spread in France in the middle of the eighteenth century.[Footnote: Voltaire returned from England a few months before Montesquieu went there in 1729.]

Montesquieu now went on with his studies with an enlarged mind. He would appear, before he started on his travels, to have already formed the project of writing a great work on the Spirit of the Laws. But in 1784 he published a smaller book, the "Greatness and Decadence of the Romans." It is said that this essay was composed of a part of the material collected for the Spirit of the Laws, and was published separately in order not to give the Romans too large a place in the more important work. This has been doubted, but there is nothing either in the subject or in the treatment to make it improbable. Nor is it important, so long as between the two books there is unity of purpose and agreement of method.

The "Greatness and Decadence of the Romans" is a study of philosophic history. In form it is not unlike Machiavelli's Discourses on the first ten books of Livy. That remarkable work would have been most profitable reading for Frenchmen of the eighteenth century, as it must be in all times for students of the science of politics. Of republics Machiavelli had more experience than Montesquieu. Both considered the republican form of government the most desirable; both thought it impossible without the preservation of substantial equality of property among the citizens. Montesquieu, who knew more of monarchy than Machiavelli, had also more faith in it. Both hated the Rule of the Roman Church. [Footnote: Machiavelli, ii. 210. Montesq., ii. 136, 140. Mach., ii. 130.] The Frenchman excels the Italian in practical wisdom; he is also more brilliant. By his brilliancy he may sometimes have been led away, but I think not often. While we feel in reading Voltaire that the sparkling point is often the cause of the saying, with Montesquieu we are generally struck with the weight of thought in what we read.

"The tyranny of a prince," says Montesquieu, "does not bring him nearer to ruin, than indifference to the public good brings a republic. The advantage of a free state is that the revenues are better administered—but how if they are worse? The advantage of a free state is that there are no favorites; but when that is not the case, and when instead of enriching the prince's friends and relations, all the friends and relations of all those who share in the government have to be enriched, all is lost; the laws are evaded more dangerously than they are violated by a prince, who, being always the greatest citizen of a state, has the most interest in its preservation."[Footnote: Montesq., ii. 139.]

Kings, as Montesquieu points out, are less envied than aristocracies; for the king is too far above most of his subjects to excite comparisons, while the nobility is not so placed. Republics, where birth confers no privileges, are, he thinks, happier in this respect than other countries; for the people can envy but little an authority which it grants and withdraws at its pleasure. Montesquieu forgets that every chance to rise which excites in the strong and virtuous a noble emulation, will cause in the weak and sour the corresponding base passion of envy. Complete despotism he believes to be impossible. There is in every nation a general spirit on which all power is founded. Against this, the ruler is powerless. It is wise not to disturb established forms and institutions, for the very causes which have made them last hitherto may maintain them in the future, and these causes are often complicated and unknown. When the system is changed, theoretic difficulties may be overcome, but drawbacks remain which only use can show. It is folly in conquerors to wish to make the conquered adopt new laws and customs, and it is useless; for under any form of government, subjects can obey. Men are never more offended than when their ceremonies and customs are interfered with. Oppression is sometimes a proof of the esteem in which they are held; interference with their customs is always a mark of contempt.[Footnote: Montesq., ii. 181, 315, 316, 266, 174, 209.]

Such are some of the general opinions of Montesquieu, found in the "Greatness and Decadence of the Romans." In the same book occurs the expression of an idea (afterwards repeated and worked out), which was to be perhaps the most fruitful of his teachings. "The laws of Rome," he says, "had wisely divided the public power among a great number of offices, which sustained, arrested, and moderated each other; and as each had but a limited power, every citizen was capable of attaining to any one of them; and the people, seeing several persons pass before it one after the other, became accustomed to none of them."[Footnote: Ibid., ii. 200.]

This idea that the division of power was highly desirable, that a system of checks and balances in government would tend to secure freedom, never took firm root in France. Indeed, Montesquieu, as he himself had partly foreseen, was more praised than read in his own country.[Footnote: Ibid., vii. 157 (Pensees diverses. Portrait de M par lui-meme).] But in the distant colonies of America the "Greatness and Decadence of the Romans" and the "Spirit of the Laws" found eager students. The thoughts of Montesquieu were embodied in the constitutions of new states, whose social and economic condition was not far removed from that which he considered the most desirable. In these states the doctrine of the division of powers was consciously and carefully adopted, with the most beneficent results. This division was not a new idea to the American colonists: it was already in a measure a part of their institutions. But there can be little doubt that the idea was enforced in their minds by being clearly stated by one of the writers on political subjects whom they most admired.[Footnote: We have seen that Montesquieu had arrived at this idea from the study of the English Constitution as it existed in his day. In respect to the division of powers, the government of the United States conforms far more nearly to his idea than does the present government of England, in which the system of balanced powers has been superseded by that of government by the Lower Chamber, of which he pointed out the danger. The full results of this change will be known only to future generations.]

Fourteen years had passed from the time of the publication of the "Greatness and Decadence of the Romans," when in 1748 appeared the great work of Montesquieu, the "Spirit of the Laws." The book is announced by its author as something entirely original, "a child without a mother." [Footnote: Prolem sine matre creatam, on the title-page.] Nor is the claim altogether unfounded, although any reader familiar with the "Politics" of Aristotle can hardly fail to observe the resemblance between that great book and the other. Nor is it a detraction from the genius of Montesquieu to say that the comparison will not be altogether in his favor.

Montesquieu's scheme is announced in the title originally given to his book. "Of the Spirit of the Laws, or of the relation which the laws should have to the constitution of every government, manners, climate, religion, commerce, etc. To which the author has added new researches into the Roman laws concerning inheritance, into French laws, and into feudal laws." Thus we see that the principal subject of the book is the relation of laws to the circumstances of the country in which they exist. In this also is its chief value and its claim to originality. The Philosophers of the eighteenth century, following the example of the churches, believed that there was an absolute standard of justice to which all laws could easily be referred, independently of the country in which the laws existed. If the laws of Naples differed from those of Prussia, the laws which governed the phlegmatic Dutchman from those which contained the excitable inhabitant of Marseilles, one or the other set of laws, or both of them, must be wrong. The Civil Law of the Latin races, the Common Law of England, each claimed to be the expression of perfect abstract reason. The church with its canon, the same for all races and climates, confirmed the theory. To all these came Montesquieu with a teaching that would reconcile their claims.

"Law in general is human reason, in so far as it governs all the nations of the earth; and the political and civil laws of each nation should be but the particular cases to which that human reason is applied."

"They should be so adapted to the people for whom they are made, that it is a very great chance if those of one nation will apply to another."

"They must be in relation to the nature and the principle of the government which is established, or about to be established; whether they form it, as do political laws; or maintain it, as do civil laws."

"They must be in relation to the physical nature of the country; to the frozen, burning, or temperate climate; to the quality of the soil, the situation and size of the country; to the style of life of the people, as farmers, hunters, or shepherds; they should be in relation to the amount of liberty which the constitution may allow; to the religion of the inhabitants, their inclinations, their wealth, their numbers, their customs, their morals, and their manners. Finally, they have relations to each other; they have them to their own origin, to the object of the legislator, to the order of things on which they are established. They should be considered from all these points of view."