CHAPTER I

FRENCH ADMINISTRATION, 1600-1787

OR eight centuries before the French Revolution, the King, in exercising the supreme power, stood, according to the theory of French jurisprudence, in a fiduciary relation to the people, being regarded as under an obligation to decide problems of government scientifically and judicially. No written Constitution had ever been dreamed of. No system of popular elections was considered desirable. Yet there was, until the seventeenth century, at least, a good and orderly government. France was a great nation and successfully governed throughout a great domain until the middle of the eighteenth century.

Vicomte d'Avenel, in his Richelieu et la Monarchie Absolue, published in 1895, speaking of the Constitution of France during the period of the traditional monarchy, -from 987 to 1620,-quotes with approval the saying of Bodin in his treatise De la République, published in 1580:

The royal or legitimate monarchy is that in which the subject obeys the laws of the monarch and the monarch the laws of nature, leaving to the subjects their natural liberty and their private property.

Vicomte d'Avenel, in the course of his remarks on the way in which these principles were worked out during the traditional monarchy,, says:

The relationship between the King and the subject differed from that between lord and vassal, in that the King was the

only lord in France who made oath to his vassals. There were in France sovereign laws, which were supreme over the power of the King, and according to which he was obliged to direct his political life; in his private life, the King was only a private citizen before the proper courts. The fundamental laws of the Kingdom were nothing but legal usages, which were binding on the monarchs themselves. Whether written or unwritten, whether enacted by a previous King or deriving their force from tradition only, these laws were regarded as unchangeable. "They have been observed for so long," says Seyssel, in 1519, in his book La Grande Monarchie de France," that the Kings do not undertake to interfere with them, and when they wish to do so, no one obeys their commands." Although the King possessed the legislative power, nevertheless if he saw fit to change, by edict, certain ancient arrangements (dispositions) ratified by public opinion, he was reproached with having violated the laws of the State, as if the consecration of time had given them an indestructible force. This regard for tradition appears incessantly in the writings and public discourses of the period. Under Louis XIII. [from 1610 to 1643, during which time, under the influence of Richelieu, the traditional monarchy ceased to exist except in theory]; writers and public speakers were in the habit of citing freely, as authorities, the acts, the charters, or the bulls of the first Capetian Kings, and even those of earlier date. In the books, when a subject was examined, the author went back to the times of the Greeks and Romans. ... In the matter of taxation, the right of the King was remarkably limited. The States-General not only discussed the necessity of the aide, but also determined the manner in which it should be levied and collected. The principle that taxes are not legal except by consent of the people who pay them was violated more than once before the time of Louis XIII., but it had not ceased to be recognized even then. It was the doctrine of Old France. Every one knows what happened later on, but no one, in those old days, could have imagined the "taillable et corvéable à merci" of Louis XIV.

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From the beginning of the Capetian monarchy, we observe two distinct kinds of legislative acts of the King; one relating to the domains of the King, in which he speaks in his own name; the other relating to the whole of France, emanating from the united action of the King and Barons,-often even from that of the King and the people. Seyssel thinks

that "it is necessary the important affairs of the Kingdom should be consulted upon by a Council of personages drawn from the different Estates, both ecclesiastical and secular." Bodin regards it as less dangerous to have a bad King, guided by a good Council, than a good King, guided by a bad Council.

Throughout the existence of the traditional monarchy, the King acted by the advice of expert counsellors, some of whom acted as his Ministers.

During this period, this theory of government became crystallized in the French language, and the study of the words they used to express the exercise of the supreme power is, in fact, a study of the unwritten Constitution of France. The two words which expressed the exercise of the supreme power were the verbs ordonner and disposer. Of these the latter was the more strictly generic, though the former was used also in a generic sense. The Grand Vocabulaire François of 1770 treats the words as synonymes, defining ordonnance (ordinance) as a disposition (disposition).

Vattel, writing of the general public law in 1758, in his great work, The Law of Nations, said of the power of the state:

Le pays qu'une nation habite

est l'établissement

de la nation; elle y a un droit propre et exclusif.

Ce droit comprend deux choses: 1. Le domaine, en vertu duquel la nation peut user seule de ce pays pour ses besoins, en disposer et en tirer tout l'usage auquel il est propre. 2. L'empire, ou le droit du souverain commandement, par lequel elle ordonne et dispose à son volunté de tout ce qui se passe dans le pays.

A translation of which is:

is the estab

The country which a nation inhabits lishment of the nation; in this country it has a proprietary and exclusive right.

2.

This right includes: 1. The domain, by virtue of which the nation may exclusively use the material resources of the country for its needs, may dispose of them, and may draw from them every kind of utility which pertains to them. The empire, or the right of supreme command over persons, by virtue of which it orders and disposes, according to its will, of the whole intercourse and commerce of the country.

Every act of the depositary of the supreme power in a State, therefore, according to Vattel, whether it relates to the partition of the soil or other arrangements concerning it, or to the use by the State of private property for public uses, or to grants of governmental authority over persons, or to the control of the action of persons by legislative action, was properly described, in 1758, by the expression" à disposer de "à disposer de "-" to dispose of."

Vattel's definition of the right of the depositary of the supreme power in the state is called "classic" by the editor of the great French Encyclopædia of Law (Dalloz, Répertoire de Législation, de Doctrine, et de Jurisprudence).

The verb disposer (our word “ dispose") and the expression disposer de (our expression "dispose of "') carried with them the idea, brought over from the Latin word

dispono," of conforming things to a certain order in the ends of propriety and justice, and implied that in each case there was some orderly and proper course of action, as contradistinguished from all other possible courses, and that the person who" disposed of " the particular case occupied himself with ascertaining, either from expert knowledge or by a new investigation, the orderly and proper course, and, having discovered it, applied it in the particular case. His action was called a

disposition of " the matter. He" disposed of " problems of motion or action; he "disposed" things or actions by setting them in their proper order.

The word disposer and the expression disposer de were, therefore, those which were peculiarly appropriate to express the exercise of supreme power which was required by the Constitution to be exercised expertly. They had no reference to the extent or the sphere of the power. The sphere or extent might be small or great, with specific limits or with indefinite. If the power within the sphere of action was exercised expertly, it was regarded as disposition. Distinguished from disposition was légisbation, which implied the making of commands according to the mere will of the depositary of the supreme. power-that is, without the recognition of any condition as to the manner of the exercise of the power. The word juridiction was more commonly used to describe supreme power exercised by way of disposition, and quite properly, when the literal meaning of the word-"the declaring of the right in the particular case "—is considered. The supreme power exercised within the state was spoken of as juridiction, as distinguished from the supreme power exercised outside the state and with reference to international questions, which was called souveraineté. The word juridiction was used to express the exercise of the power, the word disposition to describe the power itself. The King in exercising the power of disposition was said to have juridiction over the land and things concerning the transfer of which, and the persons concerning the actions of whom, disposition was made.

The French for many centuries past have commonly used the expression, les dispositions des lois, where we should say "the provisions of the laws." Doubtless both expressions are relics of the conception of the moral obligation attached to the exercise of the supreme power requiring that it shall be exercised not according to mere