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

by Carroll Quigley Ph.D.

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

In my first lecture, I portrayed the sweep of a thousand years that we are concerned with as beginning with a period in 976 when we had no state at all. All power was private power. But we also had no individuals, that is, no isolated individuals. All we had were individuals so deeply embedded in local self-sufficient communities that the power relationships within which they functioned were in their day-to-day activities, and the controls of their behavior were almost totally internalized in their neurological and hormone systems. So they obeyed what seemed to them to be their inner compulsions while they fulfilled their functions in this interwoven community structure, which changed so slowly that even in a long life of sixty or seventy years -- and, of course, most people in those days did not live long lives -- almost no changes would be noticed by anyone in the patterns embedded inside themselves.


And at the end of the thousand year period, in the year 1976, we no longer have communities, except shattered, broken, crippled, isolated ones. Instead, we have states of monstrous power and frustrated, isolated individuals; and the state and the individuals are working together from opposite sides to destroy what we have left of communities -- local, family, or whatever they might be.


Over this long period of a thousand years, the growth of the state, which is our subject, began with the appearance of a state apparatus of a very primitive kind, made up of a king and his assistants, who eventually became a monarch and a bureaucracy. Around this core, there gradually accumulated sufficient activities to make what we would regard as a public authority and, ultimately, a state. The mark of that process can be most clearly indicated, I think, by the development of what we call sovereignty. Without sovereignty, I do not think we could say that a state is much of a state, although we might call it one. There has been a great deal of talk about sovereignty in books - -not very much, unfortunately, in history books -- but no one has ever bothered to define it. From my study of the growth of the state, I have been able, it seems to me, to put together what sovereignty consists of, historically, in the tradition of our Western Civilization. To me, sovereignty seems to have eight functions or aspects, and I will define them for you in the approximate order in which they appeared.


All human needs require that a person live and cooperate with other people for satisfaction. None of us can satisfy any significant human needs by acting alone in a state of nature. The two fundamental needs men had from the beginning are, first, that the group within which a community is functioning and satisfying the needs of its members must be defended from outside attack. So the first aspect of sovereignty is defense. Secondly, disputes and conflicts within the group must be settled, so that insiders cooperate rather than fight with one another and open themselves to enemy attack. Thus defense against outsiders is first; settling disputes among insiders is second.


The third one is very difficult to talk about. Years ago, I gave a whole course on it: the administrative power. The French word for it -- and most of my study of public authority was done in the French language and in French public law -- is la police. It does not mean "police," it rather means "policy," and I suppose it would best be defined as the power to take those discretionary actions which are necessary for the continued existence of the community. In the Middle Ages and in the Dark Age with which I began, one of the chief needs was that the food supply not be interrupted, and by the early eighteenth century, in France, if you said "la police," it meant control of the grain trade. However, in strict legal understanding it meant much more. For example, it meant, "What emergency measures would be taken and who would order them if a plague appeared? The dead must be buried the same day. Everyone must get a swine flu injection." And things of this kind. Notice: it's nothing you can designate. But administrative power is a most significant power, and when I taught the subject, I shocked the students by saying that in my opinion it is almost the most important of the eight aspects of sovereignty, and there is no provision for it whatever in the Constitution of the United States.


When people talked in terms of three branches or aspects of government, they tended to call the administrative power "the headless fourth branch of the government." Around 1930, Lord Hewart, the Lord Chief Justice of England, wrote a book entitled, The New Despotism: The Headless Fourth Branch of Government, and yet I could show him that a thousand years before his book, this power, la police, had existed as one of the attributes necessary to keep a community or a group of people cooperating and functioning together. I want to emphasize that this power is discretionary. The finest example I can give you is a police officer directing traffic at a busy intersection: he has the power to start and stop the traffic as he sees fit, and can enforce his decisions with the power of the state. This does not obey any of the rules of public authority which the common lawyers of today insist are necessary. (But I might as well keep my passion on that subject for the third lecture, which will include the period when the efforts to create administrative power in this country were destroyed. The first effort was the establishment of the Interstate Commerce Commission in 1889, but it has since been paralyzed and made impossible in a number of ways, such as the insistence that such commissions must use the procedures of the common law courts, which is nonsense in discretionary power. It's as if you asked a policeman directing traffic down here at the Key Bridge end of M Street to obey common law procedural requirements.)


The fourth is quite obvious: the taxing power, mobilizing resources for public purposes. Notice that the French government did not have the taxing power when the French Revolution began in 1789. But I'll get back to that.


The fifth is legislative power. This has always been confusing because for many centuries, and certainly in 976, there was no legislative power and yet there were laws and rules. The reason is that in a society dominated by communities, in which personal behavior is regulated largely by internalized controls, the rules are not made by an outsider. You discover the rules by observing how people act. Accordingly, in the early history of Western Civilization, the law was found and not made, and it was a very drastic innovation when we shifted from finding the law to making the law. We have not really made that transition completely in the common law countries even yet: we still say that the judges are finding the law by looking back to previous decisions.


When the royal judges first began to go around England trying cases, they never proclaimed or imposed the law; they gathered together a group of sworn local people and asked, "What do you do in a case like this?" Generally, the jury, as we call them, could give an answer based on local custom, but in some cases they would look puzzled and say, "No one here remembers such a case." Let's say it was arson or something of the kind. Then the judges would say, "In traveling around England trying cases, we have found that the most common rule is this --" and thus they established the common law. The common law in England was the law the royal judges discovered by going around and finding out what the local customary law was, and filling in the gaps with what was common to England. Thus the common law in England was a royal creation, through local custom.


In France, as I showed you last time, the law was the codification of local customs in all their diversity. I will say very little more about the legislative process, but the first examples of writing down the laws were not regarded as making new rules at all: they were simply promulgations of customs. It took centuries before people realized that we did have a legislative process going on and were, in fact, making new rules. That's the fifth aspect, legislation.


The sixth aspect we might as well call the executive, the enforcement of law and judicial decisions. It is of relatively little importance in the early history of a civilization. But executive action became increasingly necessary as time went on, communities disintegrated, and peoples’ behavior became less subject to internalized controls and more subject to external controls such as force, duress, threats, fines, restitution, or other kinds of outside, external pressure. Today we think almost entirely in terms of law and order. If someone campaigns for the Presidency on a platform of Law and Order, he means that he will intensify the external controls upon behavior of which people do not approve. That is executive power.


The last two aspects of sovereignty are of tremendous importance, and they are, perhaps, the most significant today. And yet they are rarely discussed in connection with sovereignty. The seventh is money control. I pointed out last time that from the beginning, back to 500 B.C., the coinage and control of money was one of the attributes of royalty. Today, of course, it includes much more than just coinage: it means the creation and control of money and credit, and in the English-speaking world these are not a part of sovereignty. They are in private hands, even though they are the most important powers that exist in a society such as ours today.


And the last aspect of sovereignty is the incorporating power; the right to say that a group of people is a single legal entity, that is, to create corporations. This did not exist in the English-speaking world until quite recently. It always existed in the Roman Law. One of the distinctive things about the Roman Law was that only the imperium -- public authority -- and individuals existed. If any other legal groups existed -- and by legal, I mean they had the right to own property and to sue and be sued in the courts -- then they had to have some kind of a charter from the Imperial power to justify this. With the fall of Rome that power of incorporation ceased entirely, and corporations of the year 970 had no charters of incorporation. There were thousands of them across Europe, many of them ecclesiastical, but other kinds as well. Because of their lack of charters, it was never quite clear, for example, whether each diocese or each parish was a corporation; generally, each monastery or convent was considered to be a corporation.


All right, those are the eight aspects of sovereignty. Once I have defined them in this way, it will be quite clear to you that when I come to the end of tonight's lecture in 1789, very few states in Europe will have all of them. Indeed, when I began the lecture tonight in 1576, almost no states in Europe had all of them. However, if a state had six or so of them, we might say it was a sovereign state or a sovereign entity.


Now, our next problem is this: How was it possible to build up a sovereign entity around the basic administrative core? Unless something of an administrative nature already existed, it could hardly be expected that the attributes of sovereignty could accumulate. Although there were a few exceptions, such as city-states like Venice, which did not have a monarch, the basic core in landed territories was a monarch and his assistants, which I will call a bureaucracy. In accumulating sovereignty, the king and his bureaucrats needed allies outside: they needed money and they needed personnel, that is, a group of people who could read, write, keep records, handle cases of justice in the courts, and keep track of the money in the treasury. These officials would have seals to indicate that they were doing their jobs by authority of the king. (The study of seals is quite interesting. I've been in archives where seals were lying around loose on the floor, and I did want to pick up a couple. One in particular was a beautiful seal of green wax -- Henry the Second, I believe it was -- but they would let me take only two that were lying there. They were papal bulls of the late medieval period that had somehow been cut off. Papal bulls are only as big as a quarter, and they're lead, with garish yellow and red silk strings attaching them to the document, which break off quite easily.)


The gradual economic expansion and growth of these thousand years, with the resulting social changes, made it possible for the monarchy to find allies. I don't believe I will take the time to write them on the board here, but, at the beginning, all we have are lords and serfs, a two-class society. Then, when the king began to appear with his bureaucracy -- and we'll put him outside the classes -- the lords separated in the eleventh century as a result of the Investiture struggle into the lords spiritual, that is the clergy, and the lords temporal, what we would call the nobility; with the peasants, we have a three-class system. Eventually, the beginnings of commerce and the growth of towns gave rise to a middle class, the merchants, the burghers -- and you would put them in there -- so you now have peasants, burghers, nobles, clergy, and above it all, the king with his bureaucracy. You would have those clearly established by the year 1300. Within fifty years, when they reached a great crisis, you have an additional one, city craftsmen in guilds: woodworkers, leatherworkers, people of this kind. You might also make a distinction in this period and say that not all landlords were noble; there were lesser landlords, who were not noble. In England they were a vitally important group that is frequently called the gentry. That would be, let us say, around 1400 or 1450, and thus you would have the clergy, the nobles, gentry, burghers, craftsmen, peasants. And then, if you come up past tonight's lecture, into the 19th century, you would find a new kind of bourgeoisie in the city, the industrial bourgeoisie, and this created a new working class in the city, the proletariat, while craftsmen were being pushed aside.


The monarch had to find allies down below, in order to accumulate powers to use when he was resisted. His first alliance was with the clergy, and he was resisted by the nobility. But soon the clergy and nobility allied together, and he was resisted by them jointly. He then found allies in the bourgeoisie, the merchants or the sons of merchants, who could read and write and count, and indeed were much more loyal to the king than any clergy had ever been. In England and other places, the kings found allies among the gentry. In Eastern Europe, the Junkers, younger sons of the landed class, became the prince's officials. Notice that at no time, at least in the period covered by the first two lectures, did the king find any allies worth talking about in what was really the most important group in society, the peasants, who were producing the food for everyone else. One of the discoveries I have made in my ten years of study on this subject has been that it is no use to be in possession of something essential and expect it to be a source of power. If you examine the basic human needs, such as food and I assume, sex, perhaps health, you will never find that those who possess these or provide others with them have been able to obtain enough power to play any role in political action. So we will leave the peasants out of our discussion.


Thus, not all of these groups obtained status and became a focus of political authority. Those that did formed the subtitle of the lecture tonight: Estates. The number of Estates in a society is no real sign of the number of social classes. I have given you six social classes that existed in many places, let us say, in 1789. However, I do not know any country with six Estates. In England they had two, the lords temporal and spiritual, and the commons. The commons was made up of gentry from the shires and the bourgeoisie from the municipalities. England, then, had four classes but only two houses. In France you will find they had three Estates: the clergy, the nobility, and the rest, called the Third, which did provide a certain representation for the peasants. But, as you certainly know, the so-called Estates-General did not meet in France for 175 years. After 1614, it was not called to assemble until the king was forced to call it in 1789, and that's what started the French Revolution. It wasn't called because the king did not want more problems than he already had, and he would have had more. If you go farther east in Europe, you will find places where there are four or five Estates, and in the course of history some of these changed: groups were eliminated until the number was reduced.


My next point is extraordinarily complex. I have to make a distinction, which I have already been developing, that as you go eastward across Europe, the situation is quite different. I have already shown you one difference between England and France. But there are two other zones with which we must deal. France goes from the English Channel to the Rhine. Western Germany goes from the Rhine to the Elbe River. Eastern Europe goes from the Elbe River to the Pinsk Marshes or the Pripet River, which is considerably east of Warsaw. It is the natural boundary between Europe and Asia and is very close to the actual boundary today between Russia and Poland. These four zones had totally different experiences, depending on what happened to their Estates, and these experiences were crucial in what happened to monarchical authority and state power. So I think it is perfectly justifiable to call these two hundred years the Age of Estates.


I usually introduced these four zones by comparing them to a ham and cheese sandwich: that is to say, England and Eastern Europe are similar in certain ways, although very different in others, while France and West Germany resemble one another more than they do England or Eastern Europe. We might say it is a ham and cheese sandwich made with one slice of white bread and one slice of rye. The chief comparison I want to make at once is this: England was an area of large estates; Eastern Europe was an area of large estates; but France and West Germany were areas of family-sized farms or peasant proprietorships. These differences of land tenure were based on a number of things: the system of justice, including the kind of law, the group in society which controlled the judges, and the method of studying the law; the history of serfdom; and the fate of towns, guild and other corporative bodies. I will discuss these in more detail in a moment.


Generally, in the period of Estates, government functions were not centralized; they were not uniform; they were assigned to different persons, different groups, different boards, different committees, on an ad hoc basis, without any rational distinctions such as we would accept, and this situation existed, in many cases, even on the low levels of villages or parishes, although peasants and parish priests were very infrequently found on these governing boards.


Well into the period we are concerned with this evening, dynastic monarchy was essentially a personal thing. In the beginnings of Western Civilization, we had feudalism with no monarchy, or no monarchy of any significance. The next period we call feudal monarchy, when allegiance and loyalty were owed to the monarch only by his vassals. Following that, we have the period we are dealing with tonight, dynastic monarchy, in which loyalty and allegiance were due to the dynasty to which the monarch belonged -- the Tudors or the Bourbons or the Hohenzollerns -- but always on a personal basis. Treason was disloyalty to a person or to the dynasty; it was not disloyalty to the state, to the community, or to the territory in which people lived. However, by the period from 1576 to 1776, loyalty was expected from all people who were active political participants. That would probably be much less than twenty percent of the population, because, as I said, it still included no peasants, who were at least eighty percent of the people in Europe. And there were other groups, too, who were not included.


A general rule you might keep in mind is that the more extensive the power -- that is, the greater acreage you had -- the less intense it was: extension at the sacrifice of intention. By intention I mean how far down into the society the royal power could go. In the period we are covering tonight, you will find almost no country in Europe in which the royal power interfered with the behavior of peasants. I won’t go further with this subject. I could give you a periodization of it, but there's no point in it.


Now we will look at these four zones in more detail.


In England, sovereignty was achieved early. I want to emphasize that England, by 1400, did have what I would call a sovereign state. That state, however, was not in the hands of the king, but instead was controlled by a joint corporation known technically as Rex in Parliamento, the king in parliament. And this possessor of sovereignty was, I am quite sure, although I haven't investigated it exhaustively, not just English, but an aspect of Northern Monarchy. You will find, for example, the oldest parliament in the world today -- more than a thousand years old -- is in Iceland, and others are in such places as Norway and Denmark. This idea of a ruler having the power to do almost anything, if the parliament agrees, is also the basic background of a tremendous political power like that of Gustavus Adolphus in 1630, in the Thirty Years War.


Serfdom ended in England by 1300, simply because the peasants, instead of working on the lord's land a couple of days a week, began to pay him money, say a penny a day. They made an agreement: "You won't have to work for me any more -- and I'm just as glad because I'm not going to grow food, I'm going to raise sheep for wool, or something of this kind. So if you owe me two days work a week, give me two pennies a week instead." This ultimately ended serfdom, but it also meant that, through judicial interpretation, the peasants lost their rights in the land they worked, and that land became the large estates of the English aristocracy.


In the Middle Ages, if we go back for a moment to 976, no one owned the land; people had rights of usage in the land. When William the Conqueror, in 1087, sent out his officials for the Domesday survey, they asked, "Of whom is this land held? Who holds it? What people live upon it? What obligations do they have?" But eventually some troublemaker -- and, according to Rousseau, he should have been struck dead -- asked, "Who owns this land?" That is, who has proprietas in this land? The question should never have been asked. They should have continued to ask, "What dominia exist in this land, and who owns them?" But when the question, "Who own this land?" was asked in England, the judges -- and I will show you why in a moment -- answered that the peasants' payment to the lords was rent, and from that they reasoned that the lords must own the land and the peasants had no rights in it.


Clearly, how judges were recruited was of the utmost importance. How did an Englishman become a judge? Did he have to know the law? And if he had to know the law, how did he learn it? The gentry were unpaid members of Parliament; they were also unpaid local magistrates, the Justices of the Peace and so forth. The local Justice of the Peace in England, which was the lowest level of justice throughout this period and into the twentieth century, was not expected to know the law. But royal judges were expected to know the common law, the law that was found. If an English gentleman wanted to learn the law, he did not go to a law school and certainly not to a university, because the common law was not taught in universities. It was taught in four very expensive eating clubs in Westminster, the Inns of Court: the Inner Temple, the Middle Temple, Lincoln's Inn, and Grey's Inn. These were the places where the judges and lawyers who were trying cases in Westminster spent the evenings during the judicial sessions. Not only did they discuss the cases that were going on each day, but men who were regarded as authorities gave discussions afterwards in the lounge in regard to contracts or whatever it might be, and by eating meals there, it was possible to pick up the necessary knowledge of the law. But this was expensive; it required hundreds of guineas, which would be hundreds of dollars in our language. Only the landed oligarchy could afford it, and only people who were lawyers and had passed the bar through this process could become judges. So in much of English history, there was a very small and expensive educational loophole through which people could work their way to positions of power, and the result was that only those men who had affluent parents could become lawyers and judges. And until the end of this lecture, at least until 1776, the only affluent people would be the gentry landlord class. Their eldest son took over their estates; the second son went, perhaps, into the army or the navy, or found a place in the Church, a living, as they called it; and the third son would go to the Inns of Court and try to become a lawyer.


By 1776 -- and this will conclude my discussion of England, which is very brief, and as you can see, inadequate -- there was a landed oligarchy in England. That landed oligarchy controlled the Parliament: it had taken it away from the king in the civil wars of the seventeenth century. It also controlled the court system and the interpretation of the law. Naturally, when any dispute arose, "What rights does someone have in this piece of land?" they invariably decided in favor of the landlord group and against any other group, above all, any peasants. As a result, England's rural areas became depopulated. In the early eighteenth century, Goldsmith wrote "The Deserted Village." " Sweet Auburn, loveliest village of the plain..." -- but there's no one there. Or if you read "Elegy in a Country Churchyard," once again, there's no one around. The whole countryside was deserted by the eighteenth century. The people came to America, or they went to other places, and this eventually gave us the British Empire.


France I will save, because I want to end up with France.


Now let us look at West Germany, where there was a totally different situation. In the western part of Europe they had what in my day at Harvard we called "Ren and Ref," Renaissance and Reformation. But in Germany they had "Ren and Ref and Rec" -- the Reception -- because they generally adopted the Roman law in the sixteenth century. This meant that if the prince could make Roman law be obeyed, he became sovereign, and he used his power to protect the landholdings of the peasantry, rather than to protect the rights of the nobles or the clergy, although serfdom still existed in Germany in 1800, and only the defeat by Napoleon made them decide to abolish it, in approximately 1808. Furthermore, as a result of the Renaissance, the prince in Western Germany became head of the Church, which was also an imitation of Roman law: the Roman Emperor was the Supreme Pontiff, Pontifex Maximus, the head of all the priests in the Roman religious system.


Most of the princes of Germany were not kings, because they could not adopt the title of king in the Holy Roman Empire without the permission of the Emperor, and the Emperor would not allow that unless he was bribed or was sure he could trust the family of the prince. He could trust the Wittelsbachs, so he allowed them to be kings of Bavaria. But he could not trust the Hohenzollems, who were Electors of Brandenburg, so when they wanted to take the title of king in 1701, they could do so only in Prussia, which is outside the Holy Roman Empire. And the correct title was not King of Prussia, although that was adopted within 100 years; it was King in Prussia.


In West Germany the Emperor was elective, and so the same thing happened to him as happened to all elected kings and princes: he had to make concessions and go into debt to get the money and votes he needed in order to be elected Emperor. Thus the Empire disintegrated into principalities which the Emperor could not control. The Emperor continued to exist until 1808, when his title was changed by Napoleon from Holy Roman Emperor to Hapsburg Emperor of Austria, but all the rights and powers of the Hapsburgs were the powers of the hundreds of inheritances they had. The most significant of these, of course, were those of the Archdukes of Austria, but they were Kings of Hungary, Kings of Bohemia, and many other things, as you know.


The result of this disintegration and the Reception of Roman law was a large number of small sovereign principalities, some of them so small that we are told you could walk around the circumference of the principality before breakfast. And without spending any time upon it, I want to point out that, in my opinion, the greatest age of European history in the post-medieval period, certainly up to the time of Napoleon, was Western Germany in the late eighteenth century. I think you will see, if you make a list of the great geniuses in the history of Europe, that they are clustered in that period. I will not attempt to do it, but think of the greatest mathematician. Englishmen will always say it was Newton, but it was a German who lived in that period, Gauss. The greatest musician, Beethoven -- or, if you dispute it, two or three great musicians. Great philosophers and poets, Herder, Goethe and others. It was a very great period, a period much worth studying.


When the German princes received the Roman law at the time of the Reformation, and also made themselves heads of the Church, they established the following things: the prince was at the top and beneath him, in law, were individuals. Corporations must have a charter. Judges were agents of the prince: he named them, he could fire them, he should pay them. The prince was, in most cases, the head of the Church, although often he was not aggressively orthodox, so there could be Calvinist princes who were heads of the Lutheran Church in their principalities. The Roman or civil law was studied in the universities. The prince controlled the armed forces, and that meant Germany was decentralized into hundreds of principalities. But that does not mean it wasn't a good place.


Now, moving on to the next zone, in Eastern Europe, the rulers did not have the money, and above all, could not find the skilled personnel to keep records, so they couldn't build up a bureaucracy. They did not want to create a bureaucracy out of townspeople, and the towns were few and far between. Furthermore, the towns in Germany were collapsing into a long period of depression beginning in the Renaissance or certainly by 1500. Therefore, in general, the princes of Eastern Europe used the nobility and gentry or their younger sons in their bureaucracy. But they were not paid officials because the princes could not afford to pay them, and, naturally, they were administrators only in their own localities, .where they would administer for their own benefit and not necessarily in the interests of the prince, the ruler.


As a result of this, all the earlier monarchs of Eastern Europe vanished, and generally, the state they represented vanished with them. It's worth pointing this out. Why did the kingdoms of Lithuania and Bohemia, or principalities such as Transylvania, or, above all, the kingdom of Poland disappear? They disappeared because the king or prince found himself facing an Estate made up very largely of landlords, and he could not get the money or the skilled bureaucracy or the other things he needed; he could not even get an army, because he couldn't hire mercenaries without money. As a result, the nobles were able to destroy him; in most cases, they did so by refusing to admit that his family had any hereditary right to the throne. (It is correct that Kingship originally was an elective, not a hereditary title; it was only after years of dispute that hereditary kingship -- inherited by fundamental laws of the monarchy -- gradually became accepted in Western Europe.) These elective kingships were suicidal, not just for the monarchy, but for the country itself, because the Estates would elect as king only that man, who promised to reduce the royal power the most. We almost had such a competition in the 1976 election. If we had Ford and Reagan running against each other -- in a way, I would like to have seen that, except you would have to vote for one or the other, I suppose, and there really is no difference between them -- they would be saying, "I will govern less. I will cut taxes. I will cut back big government. I will do all kinds of things to reduce the government if you elect me." This is what the elected monarchs of Eastern Europe did, and eventually they had no powers at all.


At that point occurred the military revolution, which began about 1440 and was well established by 1579. By the military revolution I mean this: The previous weaponry, particularly in Eastern Europe, was mounted nobles on horseback with spears, in other words, what we would call knights. But after 1400, these were not successful. Infantrymen with spears, such as the Swiss pikemen, or infantrymen with missile weapons such as arquebusiers -- guns-- protected by spearmen or obstacles of various kinds, and, above all, artillery became necessary for the control of the nobles inside a country. They were used for this purpose by the kings of France and of England. But they were also necessary to protect the country against outside invaders. And the Estates controlled by landlords in Eastern Europe refused to permit that military revolution. They preferred going down to defeat with an obsolete system of weaponry if they could be certain that they would retain control of the people who lived on their estates: serfdom had begun only about 1300 in Eastern Europe. This is why large estates, abject serfdom, and the domination of a landed group became increasingly prevalent in Eastern Europe. As you know, in Poland the "free veto" meant that nothing could be done if even a single landlord dissented. That is as if we had a parliamentary body whose every decision had to be unanimous. All of this happened because the nobles wanted to stick together in order to get what they could in their own little areas.


These landlords were opposed to cities and to traders in cities. They wanted the trade for themselves, or they wanted foreigners, such as the Dutch, the Swedes, or the Hanseatic League, to come to their estates on the Vistula River, for example, and buy the goods they produced with serf labor, that is, grain, wool, hides, lumber, and things of this kind. As a result, Eastern Europe fell backward into a colonial area. Its trade and its middle class more or less vanished. The cities became insignificant, and trade in the cities was largely taken over by foreigners and aliens, many of whom were Jews: this is the origin of the ghettos and pales of Eastern European cities. Incidentally, this process is not unique in Poland. It is very common in history for a landed group in control of a society to destroy commercial activity and allow it to fall into the hands of aliens, as the Ottoman Empire and the Russians allowed their commerce to be controlled by Frenchmen and Greeks and various others. This is a widely prevalent system.


Another difference between Eastern Europe and the other zones is that corporate bodies ceased to be of much significance. Guilds and towns became unimportant, and these are the two chief secular bodies we would find in Western Europe. Indeed, the Church as a series of corporate bodies also tended to become part of the landlords system, so that a prince or a member of a princely family would be the local bishop or archbishop. In Prussia, for example, Albert of Brandenburg, who was bishop of at least three places and archbishop, I believe, of two, became the Hobenzollern Prince of Prussia. On the other hand, in Western Europe, the guilds and, above all, the towns had great vitality and a life of their own, as well as an independent role in law, in spite of the fact that in a truly sovereign state there would be no corporations without a charter, as I've indicated to you.


Now we will return to France. France is the most interesting case: it did not achieve sovereignty, as I explained to you last time, because the king felt obliged to rule according to law. That meant he had to protect dominia and not insist on proprietas, but it also meant that he did not have the powers to be an effective king. He had enormous incomes, but, even in total, they were not enough for what was demanded of him. Therefore, instead of collecting the money from all of them into a treasury and then paying out what was necessary, and having some kind of budget or system of accounts, he got people to promise they would do something for him, such as a royal printing or something of the kind, and then he said, "Here is a free income: it is the Octrois, the tolls going into a city. (It might be Rheims, for example, or a number of cities.) I will divert these tolls to you, and that will pay you for being my printer and publishing my ordinances and so forth." Generally, at least sixty to eighty percent of the royal incomes were committed to such purposes, and the only funds available in any particular year were the incomes that came free for some reason. For example, if he gave an income for life, it would come back to him when the person died, or if he gave it for ten years, it would come back at the end of that period.


Since even this was not sufficient to raise money, he had to do other things. As I indicated to you last time, he did not have credit, because he couldn't alienate anything the monarch owned: it wasn't his. Therefore, he did not have credit. But there was another restriction. If he could get credit and borrowed money, the laws against usury were still in force and remained so until the French Revolution. The royal officials got around that in two ways. One was by saying that certain moderate payments on borrowed money were necessary as insurance against loss and were not interest for the use of the money. But that limit, in most cases, was 5 1/2 percent, which was not sufficient because it was easy to get ten percent for money in the seventeenth or the early eighteenth century, and there were occasions when you could certainly get twelve percent. Instead, they devised a system called les rentes, the incomes, which worked in this way: "How would you like to buy an income? Here is an income that yields 50,000 a year. That will be the interest, but we won't call it that.

If you will give me 100,000, I'll let you have it for a year. That's fifty percent interest. Then at the end of the year, I won't be able to give you back the 100,000, so if you want it back, sell the income to someone else." So rentes became claims upon incomes which could be sold almost as we sell stock exchange certificates. They became one of the chief sources of royal income, but the royal bureaucracy built up fantastic burdens of debt in this way.


I won't go into the details of it, but eventually everything they were doing in the financial world was illegal -- much worse than Watergate. In order to satisfy the supervisors and accountants, they had to create thousands of forged and fraudulent documents to indicate that they were getting only 5 1/2 percent and that the money was being repaid. They would make a document saying it had been repaid, and then they would make another document saying that someone else had bought it -- and that someone else was your brother-in-law, and so no change had been made at all. This is a most fantastic story, and if you're interested, I will recommend a book by a man named Julian Dent, Crisis in Finance: Crown Financiers and Society in Seventeenth Century France. It was published in 1973. It is an an extraordinary, hair-raising book. The result of this system was that the king of France was over the edge of bankruptcy: for two hundred years, during all of the period covered by this lecture tonight, his incomes, in gross, were smaller than the interest payments he owed, in gross. And Mr. Dent had to spend years working on this before he was able to discover what was going on.


Because of this, the king could not pay officials. He had to let people take positions in the government and use those positions to get money as fees. If the fees were not adequate, they could take several positions, and then neglect all of them and spend a good deal of time working at something else, as a jeweler perhaps. (The Near East is like this, as you know, today. Everyone in the Near East has five jobs and they appear at each of them briefly, to say, "How is everything today?" And then they go off to another job. And if you put it all together, it barely gets them by.) The king of France discovered that people were willing to pay to get jobs like this, so he began to sell offices that were totally unnecessary. For example, there were inspections to make sure that the quality of textiles was up to the established rules. And every time an official inspected, he examined only one bolt out of a thousand, if that, and then sold you a tag for each of the thousand. Generally, he would come in and say, "Let's go over and have a drink." So they sat in the café and he said, “Now, how many is it that you want?" And the merchant answered, "I have a thousand bolts." "All right, here's a thousand tags, and at fifty cents each, give me five hundred dollars." And they would attach each one to a bolt. Originally there were six inspections. But the king discovered that he could name dozens more inspectors who would pay him money to go around selling inspection stickers, so they might then have eight stickers on each bolt of cloth, and the merchant had to pay for all of them. Now this is only part of an insane situation. This is a totally irrational society, which is obviously crippled in its ability to satisfy basic human needs, and is, I think, almost as obviously explosive, in the sense that a revolution is bound to cane unless drastic changes are made in a hurry.


The king also lost the legislative power, because all the judges owned their seats. A judgeship became almost exactly what a seat on the stock exchange is now. That is, if you had a judicial seat, you imposed fees on cases as a result of your judicial activity, and those fees became your income. The value of the seat was the average annual income capitalized at the rate of interest. So if you made 10,000 a year out of your job, and ten percent was considered a fair return on investment, then you could probably sell the seat for 100,000. Thus the judicial seats became the possession of a new class in society, the noblesse de la robe longue, the nobility of the long robe. This was an hereditary nobility in the sense that the possession of the judicial seat went from father to son. You may remember that Montesquieu, who wrote L'Esprit des Lois, had inherited a seat from an uncle, and when his book was such a success, he preferred to be a popular writer, so he sold the seat.


The existence of this independent judicial class meant that the king could not control judicial cases: the judges would decide them against him. And this was the group who decided that the peasants in France owned the land but still owed manorial dues, which continued to exist up to the French Revolution and were not abolished until 4 August 1789. But they were not of great significance; they were simply a nuisance. They did not involve week work or things of that kind; they were paid off in money whose value, because of the inflation, had become so small that the payment was hardly worth collecting. (We could say that the whole history of France is the history of inflation.) As a result, France was all broken up into small holdings into the nineteenth century.


This judicial system also meant that the king could not legislate, because if he issued an ordinance, a decree, or something of the kind, the judges could claim they had never heard of it. In order to have it enforced, the king had to send it to them and say, "Register it." Then they would answer, "We don't like it. We won't register it; we'll send it back." I "won't go into the details, but it became a long and involved ritual. The king would send the chancellor to order it written down, and the judges would review it. The king himself would then appear; this was called a lit de justice, a bed of justice, because the king was reclining. In a lit de justice, the justices admitted that in the presence of the king they became clerks, so they wrote the decree in their books and registered it. But then they wrote on the margin, “Inscribed in the presence of the king -- coram rege -- and they never enforced it.


Not only did the king have neither the judicial nor the legislative power, he also did not have either the taxing power or the ability to reform the tax system. Since everything was the result of centuries of custom, the taxes were extraordinarily inequitable. That is, people who were not wealthy paid heavy taxes, people who were quite wealthy paid very little -- just as we do today, only they were much more excited about it, although it was probably no more inequitable than our system, which is very inequitable, if you know anything about it. The judges refused to allow any new taxes, and above all, they would not allow one thing -- I'm making this very simple -- the so called taille tariffé. A taille was a direct tax assessed upon people; tariffé is what we call "graduated;" so this is a graduated income tax. Again and again in the eighteenth century, the king tried to register a graduated income tax; and again and again it was refused by the judges. And he went and ordered it, and they inscribed it, but they would not allow it to be collected. They did not prevent it by saying, "We will not enforce it;" they issued an order that any Frenchman who answered any questions about his income would be in contempt of court. That's the kind of Supreme Court we need today!


Thus the king lost the taxing power, the legislative power, the judicial power. Finally, in December 1770, the king realized he was bankrupt. He was engaged in great wars with Britain for control of India, North America, and the world and so forth; in seven years he was going to come to the rescue of the United States in the American Revolution. He had to do something about the court system, so in December 1770 he abolished it and established a new one, in which the judges were named and paid by the king, and the rules were greatly simplified. It wouldn't work. Why? Because he refused to act illegally, and he admitted that those judicial seats he had abolished were private property and therefore he had to pay the judges the value of their seats. And he could not get the money because he could not tax. Furthermore; no one would take cases to the new courts because they said, "Well, we know he has no money. He can't pay the value of the old judicial seats to the judges, so eventually he will have to put them back." And, in 1776, the new king, Louis XVI, put them all back. As a result, when the king called the Estates General in 1789, it was at the insistence of the Parliament, the Supreme Court of Paris.


Now I should mention one last thing, the incorporating power. I said that very few governments at that time had the incorporating power; certainly the king of France and his government did not. France was filled with corporations that had no charters. Some, such as the Cathedral of Rheims, had been there long before there was a king of France, and there were churches, towns, universities, guilds, innumerable ones. Furthermore, the litigation among these corporations was endless, just like today -- although we have this in medical science even more than in law today: they keep the thing going forever because it's a source of income. When the Estates General assembled in 1789 and abolished the judicial system of France, there was a case that had been before the courts for more than three hundred years. It was a lawsuit between the second-hand clothing dealers guild and the guild of the tailors of the City of Paris; it had been going on for so long because it was such a juicy plum for the lawyers and the judges. (We're moving in this direction in both medicine and law, and I hope not in higher education, in the United States today.) In 1776, as a step toward gaining the incorporating power, Turgot abolished the guilds. Once again, it couldn't be done. He would have had to pay off all their debts, and they had enormous debts.


When the revolution came, it was a tremendous earthquake. It wiped out just about everything. When I was in Paris in 1937, I found that there were thousands of tons of law books and legal papers of all kinds, and no one had to look at them after the French Revolution because they pulled down the curtain: they said, "What was, is over." And in 1802 they set up a new system of law, a single book, the Code Napoleon, that's smaller than an ordinary Bible.


The French Revolution created a fully sovereign state, which had all power. That sovereignty was embodied not in the monarchy, but in the nation, meaning that the residents are no longer subjects, they are citizens, they are participants in this new entity, la patrie. These are revolutionary changes. All legal restraints on public action are replaced by acts of sovereignty. The sovereign power in France after the French Revolution can do anything, the only restraint is that it must be done according to the rules of the sovereign power. It did remain a Western Civilization government, under the rule of law, but the law was procedural rules and no longer substantive limits on what could be done. This, to me, is of the utmost importance, because it leads to next week's lecture: the polity was transformed from an interwoven, chaotic, hierarchical system of subjects in communities and corporations to a system that is a naked dualism of supreme state power and individuals. I hope you'll pardon my bad French: "Un État vraiment libré ne doit souffrir dans son sein aucune corporation pas même celles qui vouée à l'enseignement public bien merité de la patrie." I'll translate it: "A state truly free will not suffer within its bosom any corporation, not even those devoted to public education, which is well deserved by the fatherland." In other words, on the 18th of August 1792, the French proclaimed, "There are no groups in our society. If you want to form a group, it must be voluntary, it has no legal existence. If you want it to have a legal existence, you must get a charter."


This is a return to the Roman system. But it raises future problems: it says that men are equal before the law. If men are legally equal and are equal participants in the polity, why should they not be politically equal? And, eventually, why should they not be economically equal? If sovereignty can do anything, and law is merely an act of sovereignty, why should wealth not be divided? That is the problem we will meet next week in the last two centuries.


Thank you, Ladies and Gentlemen.

Next Section - III: “The State of Individuals,” A.D. 1776 - 1976