"Public Authority and the State in the Western Tradition: A Thousand Years of Growth, A.D. 976 - 1976"

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0:56:54

          A thousand, a hundred years after the last Carolingian died in 887, a microscopic lord near Paris was permitted by the seven or eight great lords who surrounded him, much more powerful than he was, to take the royal title.  His name was Hugh Capet.   The date is 987.  Hugh Capet was the first of the Capetian kings; and he was allowed to take that title because he was so weak.  They would not have permitted anyone with any strength.  In fact, [with] the title of king, he was also allowed to take the title of suzerain, which means he was the top man in the feudal system.  (I'll not attempt to define the feudal system if you don't know it.)   So here's the suzerain is combined with the king, in a man with no power.  And it was done because he was pious and religious and weak.  Now, as suzerain he didn't have the powers of a real  Suzerain.  A suzerain is simply a feudal lord who has no feudal lord above him.  Because the feudal lords below him, who were technically his vassals, did not perform military service, did not come to his court to settle disputes, and had very little to do with him.  But nevertheless, the power of his religious aura allowed him gradually to accumulate more and more and more power. 

0:58:53

          Now, I want to say a few words about the title of king.  King is a religious title.   It means a ruler who has been consecrated with holy oils by an archbishop in an archiepiscopal cathedral.   it's a ceremony very simple, similar to the Sacrament of Confirmation.  You're anointed with holy oil; and you thus become a kind of a special thing.  This power and [title] of king allowed him to assume certain things, such as, the king should see that everyone gets justice; the king should see that everyone gets protection.  (The king' s peace, in other words.)  He will seek justice on Earth with God's blessing.  To the vassals that meant the Capetians should provide ethical and moral support for their individual and political rights, which for them was exactly what they wanted.  The interesting thing is that in 1792, when Louis XVI was going to the scaffold in the French Revolution, he still believed this:  that the obligations that he had as a king was [sic] to support the rights of everyone, including the nobles and the Church.  So it was a powerful feeling.  This was the central core of the Old Regime and it cannot be emphasized too much:  the king is the source of justice. 

1:00:38

          Now, with this I want to combine something else which is difficult, perhaps.  The idea of property in Classical Antiquity we sum up in the word proprietas.  It means possession [of] all the innumerable and un-numerable rights in an object, maybe with a few specific restraints.  In other words, you have a car that will drive 150 miles an hour, but you're not supposed to drive it 150 miles an hour.  Now, but it's your car.  And you can drive it or not; you can let other people drive it; you can rent it; you can sell it, and then.  In other words, that's propriety [proprietas].  Proprietas is the sum of un-, innumerable and undesignated rights in an object.  This is not the mediaeval idea of property.  The mediaeval idea of property was specific rights, and the word that we use is dominia, d-o-m-i-n-i-a, which is a plural, meaning rights.  

1:01:54

          Now. the obligation of the Capetian king was to preserve everyone's dominia.  This meant  that if there's an object, a piece of land, and those people have certain rights in it, his job is to preserve their rights.  And this includes, because he's under the law, his own property, because it isn't his.  It's the monarchy's.  It's the family's.  This means he cannot alienate his own property.  It isn't his own.  He cannot alienate the demesne, we call it, the property of the monarchy it[self]. 

1:02:44

          He gradually was assuming the dimly remembered powers that monarchy had had in the past:  to coin money; to call out the whole people for military service in an emergency; to see that all men lived in peace and had justice; to grant municipalities rights of self-government, or to recognize specifically the rights of self-government; to protect the Church and religion; to regulate commerce, particularly experts, exports, so that there would be no shortage of food for the people.  That's six things which were incumbent upon him as king.  The last four of these are what in French public law is known as la police, the policy, i.e., administrative power to use discretion in an emergency or a complicated social situation.

1:03:45

          Now, In building up these, one of the greatest assets which the Capetians had was that for eight generations they produced sons.  From 987 to 1328 they produced sons.  And in 1328 when they didn't produce sons, there were brothers.  In fact when they first started in 1814 [sic] there were several brothers and the brothers had sons.  The much more powerful feudal lords who surrounded the Capetians (the duke of France, originally) did not have so much luck.  For one thing, they took a lot risks.  They went off to the Crusades, and things like that.

1:04:33

          And as they, their families, died out, they have no heirs, a right that existed with the king as suzerain was exercised.  This is the right of escheat.  That if a territory, a group of dominia, has no heirs, it comes back to the king, who can give it out to someone else.  In this way, the kings were able gradually, and it took them to 1493, to obt[ain], get the territorial unity of France.  But in get, getting the territorial unity in France, they didn't get the power in those territories.  They simply replaced the existing lords; and, because they were king, because they were under the obligations to preserve everyone's dominia, they were even less powerful when they became duke of Normandy, count of Flanders, count of Anjou, duke of Burgundy, or any of these other places that they were gradually accumulating.  They were less powerful in those apanages (they called them), those territories, than the rulers they were replacing, who had not been under obligation to be that law-abiding and that subject to the rules of what is right.

1:06:03

          There grew up then, gradually, a legalized confusion of extremely limited sovereignty, because each, any act  that a person did which was profitable or advantageous to him, if he could, did it long enough, he acquired a right to do it.  We have in this, in English law, this is called the right of prescription.  But in English law the right of prescription does not go against the state.  Now if you do something, and you do it for thirty years, you may have the right to do it against a private person who has private property, but you do not have this right against the state.  You may notice that every few years in there in Rockefeller Center in New York City is roped off and you are not allowed to walk between the buildings. This is to break your prescriptive right to walk across, between the buildings and XXXX. 

1:07:20

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1:07:21

XXXX 1338 to 1453.  And in this the king obtained royal taxation, a royal army, and a royal system of justice.

1:07:37

          We got something which is typical of the West:  the rule of lawyers and judges.  And there were three periods in the history of the West in which we have been overwhelmed by lawyers and judges, who tell us again and again that you cannot do certain things because they are illegal, even if these things are absolutely essential to be done.  That would be in 1315 to about 1480 or so (that's the first period); again, from about 1690 to the French Revolution, 1789, which was a revolt against this mass of confused, legalistic rigidity.  You couldn't do anything.  And then the third [period] is our own day, when judges and lawyers are running everything and we are obsessed by it.  But it is part of the tradition of the West, and it goes back.  And the French Revolution is, of course, the violent response to such a situation.

1:08:53

          Now, after about 1370.  Let me, much more briefly.  The English attempt to conquer France was hopeless.  They could win battles, but they could not control territory.  Eventually all they did was go out and plunder, killing people, burn villages, seize rich people and demand ransoms, and so forth and so forth.  Living off the country.  And they  believed that if they would punish the French people in this way, the French people would realize that the king of France could not protect them, and therefore they should turn their allegiance to the king of England, and not give allegiance to the king of France.  But the English were quite mistaken in this, because what the French people up to that point had been thinking was the local lords should protect them; and, when they were unable to protect them, instead of shifting their allegiance to the king of England, they shifted their allegiance from the local lords to the king of France.  This reached its peak in such things as Joan of Arc, 1429, who summoned the whole religious loyalty and allegiance of France, to a very considerable degree, to focus it on this pious, weakling (I suppose, in many ways), retiring man, the so-called Dauphin.  She insisted that he must go to Rheims and be coronated; and she insisted that everybody rally to throw out the English.  And the English were thrown out, in about 25 years. 

1:10:50

          That king, Charles VII, I think was one of the most important of French kings, although this is not widely recognized.  Two years ago, a new biography of him appeared in English and it is almost worthless,   By a, by XXXX at Yale [M. G. A. Vale, 1974].  Notice he is king technically, I suppose, from 1422 to 1461, and the war ended in 1453, although they didn't have a peace treaty until 1492, I believe it was.   So he had a number of years after the war ended a, in which he was king.  And what he did, he tried to solidify the dominia of France in a way that they should be kept, because that was the custom,  And that is the rights of everyone.  To do this he did a number of things,  He established a royal army with a systematic system of taxation to support it.  But two other things were much more important.  In the Pragmatic Sanction of Bourges, 1438, he codified the rights of the Church in France; and these were the rights of the Church in France against the king as well as against the Pope.  An autonomous Church, electing its own members, its own bishops, controlling its own property, and so forth.  That's 1438, while the war was still going on.  

1:12:47

          And then in 1457 [actually, 1454], four years after the war, he issued -- this is amazing -- he issued an edict, Montils-le-Tours -- m-o-n-t-i-l-[s]    l-e-[s]    t-o-u-r-[s].  I don't find it mentioned in most history books.  It certainly is the most important edict, probably, that was in of the Old, Old Regime.  It was an order for every locality to write down the local customs.   It took a hundred and fifty years to do it, and then to revise it, but by 1580, which is where we're talking, there were 365 law codes of the local customs in France; and these were the binding laws, which meant he had condemned France to what we would call legal dis-unity.  So although he had territorial unity, he had every other kind of legal dis-unity.  Taxes were different everywhere, because [of] the way it was customary to do it.  There were tolls preventing commerce from moving everywhere. There was no unity of the judicial system:  at one time there were fourteen supreme courts. 

1:14:28

          And this dis-unified condition was the condition which led inevitably to the French Revolution, although it took hundreds of years to reach that inevitable fact.  Inevitable fact is simple.  No modern state in 1789 could survive which had different systems of weights and measurements for every commodity, even every miller's sack (with a miller in every district), which had different laws (so that Voltaire said you changed laws every time you changed your post horse), which had conflicting jurisdictions; which had different rates of pay[ing taxes] (so the rich paid nothing in taxes and the poor paid a great deal, and in other places the rich paid a great deal).  I mean it was just chaos, because whatever was, was custom; and, under the prescriptive rights, that custom was dominia.  And dominia was the law. 

1:15:35

          And as a result, in 1789 we find a solution to a problem which, when I was younger than even the students who are here, struck me right in the face (I always had the eyes of a child).  I said:  "If the king of France was absolute in 1789, and all the books say so, how could he be bankrupt, unless the country was bankrupt?"  And no one claims that France was bankrupt in 1789; France was among the wealthiest countries of Europe.  So if the king was absolute, there was no reason why he couldn't use his absolute power to raise the money he needed from a wealthy economic system such as existed in France.  This is one of the reasons I studied this subject; and what I found was that the king of France was not absolute -- he was not even sovereign.  And, indeed, he had reached perhaps the peak of his power around 1520; and by 1576, when we are ending this lecture, already his power was collapsing.   And it collapses into a growing morass of increasingly rigid restraints.  I'll give you one example, and then you can leave, although you've been very patient.

1:17:07

          The king could not borrow, because he had no collateral.  If anything he had belonged to the monarchy, it doesn't belong to him, then he can't put up any of these royal possessions as collateral on loans.  Because, if I like to borrow 100,000 livres, and someone says I'd have to put up collateral, maybe I could get a necklace or something of the Queen, which wasn't part of the royal dominia, that XXXX means it would be all right.  But he had to borrow millions.  So he had no credit.  What he did was, for centuries, he, he couldn't alienate properties, so he alienated incomes.  And by 1789 every income that he had coming in had already been committed to some extent.   So when he, his ancestors said to someone, "I want you to do this, and if you do this, you will make this income from this place".  And maybe you can buy XXXX So when he wanted to borrow money, he could say:  "All right, there's little money.  He would pay, I wouldn't pay it back , but I will pay you the interest on it.  And in just the interest on this income, that has just come free (because the family who has been getting it for three hundred years has died out).  And now that it's become free, it leaves, yields, let us say, 100,000 a year, and at ten percent interest you will give me a million.  And then you'll have 100,000 a year  And if you ever want your money, you can always sell an income of 100,000 a year to anybody for a million."

1:19:09

          Now, he had to find in 1561 enormous sums of money.  (I won't explain how he got so badly in debt, to save time.)   And what he did was, the city of Paris said that they would do it.  They would guarantee these loans that were given to him, but they needed a guarantee that the interest would be paid.  And the Church of France volunteered to pay the interest.  These are les Rentes sur l'Hotel de Ville de Paris.  This made within a hundred years, a hundred fifty years, the Church of France stronger, and more of a sovereign political entity, than the monarchy itself.  But we'll have to save that for next Wednesday. 

1:20:10

Thank you, Ladies and Gentlemen. 

1:20:12

Next Section - II: "The State of Estates," A.D. 1576 - 1776