of taking foreign troops into their pay, nor, above all, of levying taxes, without the consent of the nobles. He is, indeed, somewhat concerned, that there should have been formed a second order out of the clergy, and, still more, a third out of the people; and he loses all patience with the kings of France for assuming the right of granting patents of nobility, which he calls enfranchisements; and with reason, because according to the principles of the aristocracy it is a discredit to be recently ennobled: neither is it less offense to the principles of liberty.
M. de Boulainvilliers is an aristocrat of the true kind, that is, without any mixture of the temper of a courtier, the most degrading of all. He considers the nation as confined to the nobility and reckons that, in a population of more than twenty-four million, there are not above one hundred thousand descendants of the Franks; for he excludes, and rightly, according to his system, all families ennobled by the Crown, as well as the clergy of the second rank; and, according to him, these descendants of the Franks being the conquerors, and the Gauls the conquered, the former alone can participate in the management of public business. The citizens of a state have a right to share in making and preserving the laws; but if there are only one hundred thousand citizens in a state, it is they alone who possess this political right.6 The question, therefore, is, whether the 23,900,000 souls at present composing the Third Estate in France are, in fact, vanquished Gauls, or willing to be treated as such.
So long as the degraded condition of serfs allowed things to go on in this manner, we find everywhere governments in which liberties, if not liberty, have been perfectly acknowledged; that is, where privileges have obtained respect as rights. History and reason concur in showing that if, under the first race of the kings of France, those who possessed the right of citizens had a right to sanction legislative acts; if, under Philip the Fair, the free men of the Third Estate (far from numerous in that age, as the mass of the population still were serfs) were associated to the two other orders, it follows that the kings could not make use of them as a political counterpoise without acknowledging them for citizens. The inference is that these citizens were entitled to exercise the same powers, in regard to laws and taxes, as were at first exercised only by the nobles. And when the number of those who have acquired the right of citizens becomes so great that they cannot personally attend at public deliberations, this is when representative government is born.
The different provinces stipulated for certain rights and privileges as they became united to the Crown; and the twelve provincial parlements were successively established, partly for the administration of justice, but particularly for ascertaining whether the royal edicts, which they had the right to promulgate or not, were or were not in unison with the provincial privileges, or with the fundamental laws of the kingdom. Yet their authority in this respect was very precarious. In 1484, when Louis XII, then Duke of Orléans, made a complaint to them of want of attention to the demands of the last Estates, they answered that they were men of study, whose business related not to matters of government, but to the administration of justice. They soon after, however, advanced much higher claims, and their political power was such that Charles V sent two ambassadors to the parlement of Toulouse, to ascertain if they had ratified his treaty with Francis I.7 The parlements seemed therefore to have been intended as a habitual limitation of the royal authority; and the Estates General, being superior to parlements, should be considered as a still more powerful barrier. It was customary, in the Middle Ages, to mix the judicial with the legislative power; and the double power of the English peers, as judges in some cases, and legislators in all, is a remnant of this ancient conjunction. Nothing can be more natural in an uncivilized age, than that particular decisions should be antecedent to general laws. The respectability of the judges was in these days such as to make them considered the fittest persons to mold their own decisions into general laws. St. Louis was the first, as is believed, who erected the parlement into a court of justice;8 before his time it appears to have been only a royal council; but this sovereign, enlightened by his virtues, felt the necessity of giving strength to the institutions which could serve as a guarantee of the rights of his subjects.
The Estates General had no connection with the administration of justice: we thus recognize in the monarchy of France two powers, which, though badly organized, were each of them independent of the royal authority: the Estates General and the parlements. The ruling policy of the third race of kings was to extend immunities to the towns and to the inhabitants of the country, that they might gradually bring forward the Third Estate as a counterpoise to the great lords. Philip the Fair introduced the national deputies into the Estates General as a third order; because he stood in need of money, and because he dreaded the ill-will which his character had produced, and felt the want of support, not only against the nobles, but against the pope, by whom he was then persecuted. From this time forward (in 1302), the Estates General had, in right if not in fact, equal legislative powers with the English parliament. Their decrees (ordonnances) of 1355 and 13569 were as much in the spirit of liberty as the Magna Charta of England; but there was no provision for the annual convocation of this assembly, and its separation into three orders, instead of into two chambers, gave the King much greater means of setting them in opposition to one another.
The confusion of the political authority of the parlement, which was perpetual, and of that of the Estates General, which approached more to the elective form, is conspicuous in every reign of the kings of France of the third race. During the civil wars which took place, we find the king, the Estates General, and the parlement, each bringing forward different pretensions; but whatever were the avowed or concealed attempts of preceding monarchs, no one before Louis XIV ever openly advanced the doctrine of absolute power. All the strength of the parlements lay in their privilege of registry, since no law could be promulgated or subsequently executed without their consent. Charles VI was the first king who attempted to change the lit de justice, which formerly meant nothing but the presence of the king at a parlementary sitting, into an order to register, by express command, and in spite of remonstrance. The Crown was soon after obliged to cancel the edicts which the parlement had been made to accept by force; and a counselor of Charles VI, who, after having approved of these edicts, supported the canceling of them, being asked by a member of parlement his motive for such a change, replied: “Our rule is to desire what the King desires; we are regulated by the circumstances of the time; and find, by experience, that, in all the revolutions of courts, the best way to maintain our footing is to range ourselves on the stronger side.” Really, in this respect, one could deny the perfectibility of the human species.
Henri III put a stop to the practice of inserting at the top of official edicts, “by express command,” lest the people should refuse to obey them. Henri IV, who came to the crown in 1589, declared, himself, in one of his speeches, quoted by Joly, that parlementary registration was necessary for the validation of royal edicts. The Parlement of Paris, in its remonstrances against Mazarin’s ministry, recalled the promises made by Henri IV and quoted his own words upon the subject: “The authority of kings destroys itself in endeavoring to establish itself too firmly.”
Cardinal Richelieu’s political system entirely consisted in overthrowing the power of the nobles by aid of the people; but before and even during his ministry, the magistrates of parlement always professed the most liberal maxims. Pasquier, under Henri III, said that monarchy was one of the forms of the republic; meaning, by that word, the government whose object is the welfare of the people. The celebrated magistrate Talon thus expressed himself under Louis XIII: “In former years, the orders of the king were not received or executed by the people, unless signed in the original by the grandees of the kingdom, the princes, and higher officers of the crown. This political jurisdiction has now devolved on the parlements. We enjoy this second power, which the authority of time sanctions, which subjects suffer with patience, and honor with respect.”10
Such were the principles of the parlements; they admitted, like the constitutionists of the present day, the necessity of the consent of the nation; but they declared themselves its representatives, without, however, having the power to deny that the claims of the Estates General were, in this respect, superior. The
