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

          Last time, I portrayed the sweep that we're concerned with of a thousand years as a period in 976 when we had no state at all.  All power was private power.  But we also had, really, no individuals, that is, no isolated individuals.  All that we had were individuals so deeply embedded in local communities, local self-sufficient communities, that their 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 and what they were doing was fulfilling their functions that they had in this interwoven community structure, which changed so slowly, that even in a long life  -- and, of course, most people in those days did not live long lives -- but even in a long life, let us say, of sixty or seventy years almost no changes would be noticed by anyone in the pattern XXXX which they had embedded inside of themselves. 

0:02:54

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

0:03:35

          Over this long period of a thousand years, the growth of the state, which is our subject, marked by the beginning of public power, the appearance of a state apparatus of a very primitive kind, made up of a king and his assistants, which eventually became a monarch and a bureaucracy.  And around this core, there gradually accumulated sufficient activities to make what we would regard as a public authority and, eventually, a state.  And the mark of that can be most clearly, I think, indicated by the development of what we call sovereignty.  Without sovereignty, I do not think we would say that a  state is much of a state, although we might call it that.  Now, there has been a great deal of talk in books about sovereignty -- not, unfortunately, in history books very much -- but no one has ever bothered to define it.  And from my study of the growth of the state, I have been able to, it seems to me, put together what sovereignty consists of, at least historically in the tradition of our Western Civilization.  It seems to me, it has eight functions or aspects, and the approximate order in which they appeared are these: 

0:05:32

          First, all human needs require that a person live and cooperate with other people for satisfaction.  Nobody, no one, none of us can satisfy any significant human needs by acting alone in a state of nature.  The two fundamental ones from the beginning are: that the group within which a community is satisfying the functions and needs must be defended from outside attack.  So the first aspect is defense.  Secondly, disputes and conflicts within the group must be settled, so that insiders do not fight with each other, but cooperate, rather than open themselves to enemy attack.  So defense is first, against outsiders; judicial activity is second, settling disputes among insiders. 

0:06:38

          The third one is very difficult to talk about.  I once years ago gave a whole course upon it:  the administrative power.  The French word for it -- i.e., in the study of French public law -- most of my study 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 the best way to define it would be to say:  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 Ages with which I began, in 976, one of the chief needs was the food supply, and by the Eighteenth Century, the early Eighteenth Century, in France, if you simply said "la police," what it meant was 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?  That the dead, dead must be buried the same day, and things of this kind.  When anyone must get a swine flu injection.  La police.  Now, notice: the, it's nothing that you can designate.  But it is a most significant power, administrative power; and, when I taught the subject, I found out 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 whatever for it in the Constitution of the United States.  

0:08:33

          And when people talk in terms of three branches of government, or three aspects of government, if they XXXX on England, they tend to call [it] -- as the Lord Chief Justice of England, Lord Hewart [of Bury], did around 1935 [actually, in 1929] --  "the headless fourth branch of government."    He wrote a book whose title was The New Despotism. The Headless Fourth Branch of the Government.  And yet I could show him that where a thousand years before his book, it had existed as one of the attributes of what is necessary to keep a community, or a group of people cooperating together, and keep it functioning.  La police.  I emphasize that the power is discretionary.  And the finest example I can give you of that is a voice cop that's directing traffic at a busy intersection: he has the power to start and stop the traffic as he judges fit, and can enforce that with the power of the state.  And it does not obey any of the rules of public authority, which the common [law] lawyers of to-day insist is necessary (But I'm not gonna speak my passion on that subject til the third lecture) when it [sic] destroyed the efforts to create administrative power in this country.  When the Interstate Commerce Commission was created, that was the first effort, in 1889, and has been absolutely paralyzed and made it impossible, a number of things, one of them was insisting that they must use the procedures of the common law courts, which is nonsense. It's the discretionary power.  That is just as if you asked a policeman, who's directing traffic down here at the Key Bridge end of M Street. should obey the common, the common law procedural requirements.   All right that is the third.

0:10:48

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

0:11:02

          The third [fifth] is legislative power.  Now, here there has always been confusion because for many centuries, and certainly back in 976, there was no legislative power, and yet there were laws and were rules.  And the reason was that in a society largely dominated by a community, in which, in which personal behavior is largely controlled by internalized controls, in such a situation the rules are not made by an outsider.  You discover what the rules are by observing how people act and, accordingly, 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.  And we haven't really yet made that transition completely in the common law countries, where we still say that the judges are finding the law, as if, by looking back to previous decisions, rather than to previous actions of people. 

0:12:14

          When originally the law was found and when the royal judges first began to go around England trying cases, they never said "This is the law."  They gathered together a group of men, sworn local people, and they said, "What do you do in a case like this?"  And they said "We generally do this".  Now in some cases they would look puzzled and say, "In the memory of no one here has there been such a case."  That they had arson or something of the kind.  And then the judges would say, "Well, In traveling around England trying cases, I have found that the most common rule is...."  And thus we established the common law.  So the common law in England was the law that the royal judges discovered going around and finding out what the  law was, and filling in gaps with what was common to England.  Notice: the common law in England was a royal creation, from true local custom. 

0:13:27

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

0:14:09

          The sixth aspect we might as well call executive, and it's of relative little importance.  it's the enforcement of laws and judicial decisions.  And the executive action became increasingly necessary.  As time went on, communities disintegrated, and peoples’ behavior became less and less subject to internalized controls and had to become invasively subject to externalized controls, such as force, duress, threats, fines, restitution, or other kinds of outside, external pressure.  To-day we think almost entirely in terms of law and order.  If someone campaigns for the Presidency on law and order, what he's saying is, he's gonna intensify the external controls upon behavior that people don't approve of.  Executive. 

0:15:13

          Now, the last two [aspects of sovereignty] are of tremendous importance, and they are, perhaps, the most important to-day.  And yet they are rarely discussed in connection with sovereignty.  The seventh is money control.  I pointed out last time that from the very beginning, going back to the very earliest days, I would say more than 500 B.C., coinage, and control of money, was one of the attributes of royalty.  But, of course, to-day it includes much more than just coinage:  it means the creation and control of money and credit, and in the English-speaking world this is not a part of sovereignty.  It is in private hands, even though it is perhaps the most important power that exists in a society such as ours to-day. 

0:16:08

          And the last aspect of sovereignty, the incorporating power, i.e., the right to say that a group of people is a single legal entity, i.e., to create corporations.  This did not exist in the English-speaking world until quite late.  It existed in the Roman Law always.  One of the distinctive things different about the Roman Law was that all that existed was the imperium (public authority) and individuals.  That's all that existed.   If there existed any other legal groups -- and by legal, I mean that they had the right to own property and to sue or be sued in court -- then they had to have some kind of a charter from the Imperial power to justify this.  Now, of course, with the fall of Rome that ceased entirely, and corporations of the year 970, and there were thousands of them all over Europe, many of them ecclesiastical, but some other kinds as well.  It was never quite clear, for example, whether each diocese was a corporation, whether each parish was a corporation.  Certainly we generally knew that each monastery or convent was a corporation, and so forth.  But there were certainly thousands of them and they did not have any charter of incorporation.

0:17:48

          All right, those are the eight aspects of sovereignty.  Now once I have shown them in this way, it's quite clear that when I come to the end of to-night's lecture in 1789, very few states in Europe will have all of them.  And indeed, when I begin the lecture to-night in 1576, almost no states in Europe had all of them.  However, we could say XXXX if a state had a good try at them, and had six of them, or most of the six, we might say it was a sovereign state or a sovereign entity. 

0:18:34

          Now, the next aspect is: How was it possible to build up a sovereign entity around the basic core?  Which had to exist, because, unless there were something there of an administrative nature,....  And, in almost every case, what was there....  There are two exceptions, city-states, like Venice and so forth, which did not have a monarch.  But all landed, extensive landed territories had a monarch, and unless that monarch had assistants, which I will call a bureaucracy, then you could hardly expect that the aspects of sovereignty would accumulate.

0:19:21

          In accumulating, however, the king and his bureaucrats needed something else.  They needed allies outside; and they got, the reason they needed these allies; and, of course, they needed money.  They needed personnel, which I mentioned last time, that is people who could read, and write, and keep records, count their money, and so forth.  And these people would have the seals indicating that they were doing this by authority of the king, and so forth.  (And the collection 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 beautiful  -- Richard the Third, I believe it was -- seal of green wax, and, but they would only let me take two that were lying there.  They were papal bulls, of the late mediaeval period. They had somehow been cut off.  Papal bulls, you know, are only about as big as quarters, and they're lead, with very garish silk strings attaching them to the document, they break off quite easily.  The garish strings are either bright, they're bright yellow and red together. 

0:20:40

          So, now, the gradual development in the thousand years that we're concerned with, which we would call economic expansion and growth, and these were the result of social changes, made it possible for the monarchy to find allies.  And I don't believe I will take the time to write them on the board here, but, I will say, at the beginning, all that we had were lords and serfs, a kind of a two-class system.  

0:21:19

       Then, when the king began to appear with his bureaucracy -- and we'll put him outside the classes -- the lords separated (and that was in the Thirteenth Century, I mean the Eleventh Century, as a result of the Investiture Struggle) into the Lords Spiritual, that's the clergy, and the Lords Temporal, what we would call the nobility.  And the peasants.  We'd have a three-class system.  

0:21:48

       And eventually, the beginnings of commerce and the growth of towns gave rise to a middle class, the merchants, the burghers -- and we would put them in there -- so you now have peasants, burghers, nobles, clergy, and above it all, still the king with his bureaucracy.  That you, you would have those by the year 1300, very clearly established.  

0:22:12

          Within a hundred and fifty years, when they reached a great crisis (in fact, it's....,they reached a crisis within fifty years), you have an additional one, in the city:  craftsmen in giles, in guilds.  Woodworkers, leatherworkers, people of this kind.  

0:22:36

          And you might make a distinction, and say that not every landlord was a noble.  There were lesser landlords, who were not noble.  And, in fact, in England they were a very vitally important group.  They are frequently called the gentry.  That would be, let us say, around 1400 or certainly 1450. 

0:22:57

          And you would thus have the clergy, nobles, gentry, burghers, craftsmen, peasants.  And then, if you come up past this night's lecture, into the Nineteenth Century, past 1776, you would find that you had a new kind of bourgeoisie in the city, the industrial bourgeoisie, and this created a new kind of working class in the city, the proletariat, while craftsmen were being pushed aside.  And so forth.  I will come up to that now.

0:23:34

          Now, what the monarch had to do was to find allies down below, in order to accumulate powers when he would be 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 being resisted by them jointly.  He found then allies in the bourgeoisie, in the merchants, 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.  And in England and other places, they found allies among the gentry.  In Eastern Europe, in Eastern, in Germany, the Junker, younger sons of the landed class, and so forth.  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.  And one of the XXXX studies I have been making in the past ten years on this whole problem has been that it is of no use to have something, no matter how essential it is, and expect it will be a source of power.  If you take basic things that everyone needs, like food and, I assume, sex, maybe health, things of this kind, you will never find that possession of these has ever given the possessors or the people who supply the community with them enough power to play any rôle in political action.  So we just leave the peasants out of it. 

0:25:30

          Not all of these XXXX groups obtained status and became a focus of political authority.  Those that did formed what is the subtitle of the lecture to-night: Estates.  And the number of Estates that exist in a community is no real criterion or sign of the number of social classes that they had.  I have given you six social classes here that many places had, let us say, in 1789.  I don't know any country with six Estates, however.  In England they had two estates, the Lords Temporal and Spiritual, and then the Commons.  And the Commons was made up of the gentry from the shires and the bourgeoisie from the municipalities.  So they had then four classes, but only two houses.

0:26:35 

          Now, the significant thing in English history, which I want to emphasize, is that England did have what you certainly would call, I think, a sovereign state very early.  Certainly by 1400.  And it had that sovereign state, however, not in the hands of the king, but instead in the hands of a joint corporation, known technically as Rex in Parlamento, the king-in-parliament.  And this possessor of sovereignty, Rex in Parlamento, or prince in parliament, if you wish, is, I'm quite sure (and I haven't investigated it as exhaustively), is quite sure, I, is not just English.  It's Northern Monarchy.  In other words, you will find the oldest parliament in the world to-day -- it's more than a thousand years old -- is in Iceland, and other old ones are in Norway and Denmark and places like this.  And this idea of a ruler having the power to do almost anything, if the parliament agrees, is the real, basic background of a tremendous political power like Gustavus Adolphus in 1630, in the Thirty Years War.  All right, that's, is in England.

0:27:58

          But if you go into France you will find there are three Estates: there's the clergy, the nobility, and the rest, called the Third.  In France there was a certain representation there for the peasants.  They did have representatives, the same as everybody else.  But, as you certainly know, the so-called Estates General did not meet for a hundred and seventy-five years.  It was not called to assemble after 1614, until it was forced to be called to meet in 1789, and that's what started the French Revolution. And the reason it wasn't called was because the king did not want more problems than he had.  And he would have had more.  

0:28:44

          All right, now, if you go farther east, you will find places where there are four, and there are some places where there are five, Estates.  And in the course of history some of them changed.  They eliminated groups, until finally they reduced the number, and so forth.  

0:29:02

          Now, the next point I have to make is extraordinarily complex.  I have to make a distinction, which I have already been developing, that as you go across Europe the situation is quite different the further east you go.  I have already showed you a tremendous difference between England and France.  But there are two other zones that we must deal [with].  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 Pribyat River, which is considerably east of Warsaw, and is the natural boundary between Europe and Asia.   And is very close to the actual boundary to-day between Russia and Poland  (It's a little further east).  Now, these four had totally different experiences, and I want to look at them a little bit.  Let me glance at my notes.  I think some of those differences. These other differences became crucial in what happened to monarchical authority and to state power, depending upon what happened to the Estates.  So I think it is perfectly justifiable to call this two hundred years [period] the Age of Estates. 

0:30:49 

       If we look at the four parts of Europe, which I've put here, a general rule which you might keep in mind is:  that the more extensive the power, i.e., the greater acreage you had, the less intense it was:  extension at the sacrifice of intension.  By intension, I mean how far down socially does the royal power go?  And you will you find that in almost no places did the royal power go down where it interfered with the behavior of peasants.  Now, which would be eighty percent of the whole population.  I won’t go. XXXX  I could give you a periodization of it, but there's no point. 

0:31:35

          Now these four sections are usually introduced by saying it's like a ham sandwich: that is to say, England and Eastern Europe are similar in certain ways, although very different in others,   The chief simularity I want to point out 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.  In the Middle Ages, if you go back to 976. no one owned the land.  People had rights of usage in the land.  But eventually some troublemaker, and according to Rousseau he should have been struck dead, or something, asked "Who owns this land?"  The question should never have been asked. That is asking "Who has proprietas in this land? 

0:32:45

          Instead they should have continued, as the Middle Ages did, "What dominia exist in this land, and who owns them?"  And that's what you'll find in the questions that William the Conqueror asked, in 1087, when he sent out people in the Domesday survey.  They asked not who own[s].  Instead "Of whom is this land held?  Who holds it?   What people live upon it?  What obligations do they have?"  And questions of this kind, which makes it possible, rather dimly, to use the Domesday survey to create a social structure of England in 1087.  Now, these changes, and you can see how drastic it is.  If England had large estates, serfdom ended in England by 1300.  By 1300 in Eastern Europe serfdom was really just beginning.  See they also had large estates.  In Eastern Europe serfdom was still there, and in Germany by 1800.  And only the defeat by Napoleon made them make up their minds they had to abolish it, in 18--, approximately 1808.

0:34:06

       As you know, if we leave Europe and go into Asia, in Russia they did not abolish serfdom until 1863, just before the time we freed our slaves.  So the history of serfdom is entirely different. It was eliminated just about totally in England, simply because people, instead of working on someone's land a couple of days a week, paid him money, a penny a day.  So 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 things to eat.  I'm going to grow wool from sheep, or something of this kind.  So you owe me two days work a week, give me two pennies a week instead."  Unfortunately, in [cases] the English judges, and I'll show you why in a moment, said [that] that payment is rent and, if it's rent, it's an indication that the lord owns the land.  Therefore the peasant had no real right in the land, though he wouldn't be paying rent. 

0:35:16

          Now in France those obligations to work and to do other things, what we call manorial dues, still existed in the French Revolution.  And they're not abolished until the Fourth of August of 1789.  But they were not of great significance; they weren't....They were a nuisance.  And they did not involve week work or things of that kind.  That all had been paid off, and.... Had been paid off by money, which had, because of the inflation (And the whole history of France is the history of inflation), showed that the value of money had become so small, that the payment that had been agreed upon was hardly worth collecting.

0:36:02

       Now, let us look at a number of things.  What law existed in the....?  In England.  The Common Law, I told you.  It was the law that was "found."  In France.  It was the local customs which had been "written down."  Ah, in Germany, West Germany.  A totally different situation.  We had, in the western part of Europe in the Sixteenth Century, what we called "Ren and Ref" ("Renaissance and Reformation").  But in Germany they had "Ren and Ref and Rec"  (the "Reception"), because they generally took over the Roman law in the Sixteenth Century.  And this meant that the prince became the head; and, if he can make Roman law be obeyed, he becomes sovereign in that way.  And he used that power to protect the landholding of the peasantry, rather than to protect the rights of the nobles or the clergy.  Furthermore, as a result of the Renaissance [sic, should be Reformation], the prince in Western Germany also became head of the Church.  Well that's the way it was in Roman law:  the Roman Emperor was Supreme Pontiff, Pontifex Maximus, the head, chief of all the priests in the Roman system, and so forth. 

0:37:39

       So, by the "Reception" of the Roman law, Western Germany became sovereign.  XXXX The king became, or the prince, because most of them were not kings.  The reason they were not kings is that you couldn't adopt the title of king in the Holy Roman Empire except with the permission of the Emperor, and the Emperor would not generally allow that, unless you paid him off or were somebody....  For instance, the Wittelsbach family he could trust.  That's in Bavaria, so he allowed them to be called King of Bavaria.  But he, he couldn't trust the Hohenzollems up in the north, in Prussia, so he, they could not become King of Brandenburg.  They were Elector of Brandenburg, but when they wanted to take the title of king in 1701, they could not take it in the Holy Roman Empire, so they took it in Prussia, which was outside the Holy Roman Empire, to the east.  And the correct name was not King of Prussia, although that, within 100 years, that was adopted.  It was King in Prussia, though he was Elector of Brandenburg and King in Prussia without the Habsburg -- because they were, mostly the emperors were Habsburgs -- without their permission.

0:38:56

          Now, the, if you go further east, what happened is, the rulers did not have the money, and above all, could not find the skilled personnel to keep his records.  He couldn't build up a bureaucracy.  He did not want to build up 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 around, right in the Renaissance period, certainly by 1500.  So what they did generally, the princes in Eastern Europe, is that they used for their bureaucracy the younger sons (that's where the word Junker comes from) or the nobility themselves and the gentry themselves.  And they used them as their administrators.  But they did not pay these, so they were not paid officials,  And, naturally, as administrators, they would be administrating only in their own localities, where they would systematically administer to their own benefit and not necessarily to the benefit of the ruler, the prince. 

0:40:13

          Now, as a result of this, all the earlier monarchs in that period, in that area, in Eastern Europe vanished; and, generally, the state that they represented vanished with them.  It's worth pointing this out.  Why did these kingdoms, Lithuania, or principalities, Transylvania, kingdom of Bohemia, above all, the kingdom of Poland, why did they vanish?  And the answer is:  they vanished because the prince or king found himself facing an Estate that was made up very largely of landlords.  And he could not get the money or the skilled bureaucracy or the other things he needed; he really couldn't even get the army, because without money he couldn't hire mercenaries.  And, as a result, they were able to destroy him.  Now, how they destroyed him is this, in most cases: they refused to admit that his family had any hereditary right to the throne.  (And it is correct that kingship originally was not a hereditary title; it was an elective title.  And by only, it was only after years that it gradually became accepted that the kingship should be inherited -- and inherited by fundamental laws of the monarchy)

0:41:54

          These elective kingships were suicidal, not just for the king here, but for the country itself.  The reason is that the,XXXX the Estates would elect as king only that man who promised to reduce the royal power the most.  We almost got a competition in this in the 1976 election.  If we had Ford and Reagan running against each other -- and I guess I would like to see that, except you would have to take one or the other, I suppose, and there is not really any choice -- but they would be XXXX saying, "I will govern less.  I will cut back taxes.  I will cut back big government.  I will do all these kinds of things to reduce the government."

0:42:48 

          Now this is what the elected monarchs of Eastern Europe did; and, as they did this, they eventually had no powers at all.  And at that point you got the military revolution, which began about 1440 and which 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 1500, and certainly after 1400, these were not successful.  Infantrymen with spears, such as the Swiss pikemen, or infantrymen (if they could be protected by spearmen or by obstacles of various kinds), who had missile weapons, such as guns, arquebusiers, and, above all, artillery, which could smash down the castles of nobles, were necessary.  Not only to control the nobles in your own country, as the king of France did and the king of England did, but it was also necessary to protect your country against outside invaders.  

0:44:15 

          And the Estates controlled by landlords in Eastern Europe refused to permit that military revolution.  They would rather go down to defeat as an obsolete system of weaponry, if they could be certain that they would retain control of all the people who lived on their estates, which the king had already granted to them. 

 0:44:47 

          And this is why you got in Eastern Europe large estates, increasingly troubled, and abject serfdom, the domination of a landed group, and even one....  Because, as you know, in Poland they even established that if even a single landlord said no, it couldn't be done.  The "free veto."   It's as if we had a parliamentary body that, any time it made a decision, it had to be unanimous.  And the reason is because they were going to stick together and they would get what they could in their own little areas.  

0:45:28 

          But they were anti-cities.  They did not want people in cities who were trading.  If any trading went on, they wanted it [for] themselves, and they wanted foreigners, such as the Dutch, or the Swedes, or others, to come, or the Germanic cities, or the Hanseatic cities, to come right into their estates in the Vistula River and others, and they would then trade to them the goods that they were producing with serf labor, i.e., grain, wool, hides, lumber, things of this kind.  So, as a result, Eastern Europe fell backward into a colonial area.  Its trade and its middle class more or less vanished.  The cities became more and more [insignificant], and the trade in the cities was largely taken over by foreigners and aliens, many of them Jews.  And this is where the ghettos and pales of Eastern European cities came.  Incidentally, this is not unique, just in Poland.  It went on in many other places, because this was a regular problem.  Where you have a landed group in control of a society, they are very likely to destroy commercial activity and allow it to fall into the hands of foreigners and aliens, like the Ottoman Empire allowed it to fall in the hands of French and Greeks and various others. The people in Russia allowed it to fall in the hands of Greeks and various others, and so forth.  This is a largely prevalent system. 

0:47:12 

          Another area XXXX that marks a difference here, XXXX  all of the differences, is corporation bodies ceased to be of much significance.  In other words, guilds ceased to be important, the same way that towns, and these were two chief secular corporate bodies that we would find.  And, indeed, the Church as corporate body tended to become part of the landlord system also, so that a prince or a [member of a] princely family would also be the archbishop and the bishop.  And in some cases, as in Prussia, Albert of Brandenburg, who was bishop of at least three different places and archbishop, I believe, in two places, became the Prince, the Hohenzollern Prince of Prussia.  Which meant that he was taking over the corporation.  On the other hand, in Western Europe, corporations, XXXX the guilds and, above all, the towns, had a vitality and life of their own, and an independent rôle in law, in spite of the fact that in a truly sovereign state you would not have corporations unless they had an incorporating charter, as I've indicated to you. 

0:48:40 

       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, and on an ad hoc basis, without any rational distinctions such as we would accept; and this system XXXX went down, in many cases, to the low levels of villages or parishes, although I can guarantee that there were infrequently peasants and, almost as infrequently, parish priests found on these governing boards. 

0:49:24 

       In this period, right through, up to XXXX period we're concerned with this evening, dynastic monarchy was essentially a personal thing.  If you go back to the beginning, you had feudalism with no monarchy, or no monarchy of any significance.  The next period we call feudal monarchy.  There allegiance, and loyalty, was owed to the monarchy only by his vassals.  But then you have the period we are dealing with to-night, dynastic monarchy, where loyalty, and allegiance, was due to the dynasty in which the monarch belonged, but it's always on a personal basis.  Your allegiance is owed to the existing member of that family -- the Tudors or the Bourbons or the Hohenzollerns or whatever it is -- and it's a personal one.  

0:50:22 

          However, by the period we're dealing with to-night, from 1576 to 1776, the loyalty was expected from any people who are active political participants.  Now that would still be much less than twenty percent of the population roughly, because, XXXX that as I said, it still included no peasants, and they were probably at eighty percent at least.  And there were others too.  So it was a personal thing.

0:50:56 

          Treason was disloyalty to the person or to the dynasty; it was not disloyalty to the state, to the community, or to the territory in which people lived.  XXXX we looked very briefly at these.  Now, XXXX

0:51:22

          In England, sovereignty was achieved early.  Rex in Parlamento.  Why the state used the judiciary for unpaid services.   And the gentry were unpaid members of Parliament.  They were also unpaid local justices, the justices of the peace, and so forth.  The law that was practiced was the Common Law.   Now, there are things that are important here.  [One] is, how do you become a judge?  You have to know the law.  And if you have to know the law, how do you learn it?

0:52:09

          The local justice of the peace in England, which was the local, the lowest level of justice throughout all this period and even later, right up into the Twentieth Century, was the justice of the peace.  He was not expected to know the law.  He was unpaid.  And he was the local magistrate.  Now, if he was to learn the law, he did not go to a law school, really, and certainly not to a university, because the common law was not taught in universities.  Instead 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] so forth.  Inner Temple.  The four Inns of Court.  And these were expensive.  You had to eat meals there, you had to listen to the lawyers talking about....  You see, they were there, they were the places where the judges and lawyers who were trying cases in Westminster spent the evening[s] during the judicial sessions.  And they not only discussed 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 would be.  And in this way you would pick up the necessary knowledge of the law.

0:53:29

       But this was expensive.  To join the Inns of Court, it required, oh, hundreds and hundreds of guineas, which would mean hundreds and hundreds of dollars in our language.  Only the landed oligarchy could afford it; and this, only people who were lawyers, and had passed the bar through this process, could become judges.  So what you had was, which is true of much of English history, a very small hole through which circulation was allowed for people to work their way up.  But it was an educational loophole that they had to squeeze their way through, and it was expensive in most cases.  And the result was that only those people who had affluent parents [could become lawyers and judges], and for much of English history, at least up until the period we're concerned with at the end of this lecture to-night, i.e., to 1776, the only affluent parents that most people had would be the gentry, landlord class.  So your eldest son would take over the estate; your second son would, perhaps, go into the navy or the army, or you would find him a place in the Church, a living, as they called it; and then the third son would. perhaps, go to the Inns of Court and try to become a lawyer. 

0:55:02

          By 1776 -- and this will end my discussion of England, which is very brief, and, as you can see, inadequate -- you had a landed oligarchy in England.  And that landed oligarchy controlled the Parliament.  It had taken it away from the king, so you now had sovereignty in [Rex in] Parlamento,  It had taken it away in the civil wars of the Seventeenth Century.  And that same land oligarchy had control of the court system and the interpretation of the law.  And, naturally, when any occasion arose when there was a dispute, "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.  And the result was, England's rural areas became depopulated.  And that's why, in the early 1700s, 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 is deserted by the Eighteenth Century.  And they came to America, and this, or they went to other places, and this gave us eventually the British Empire.

0:56:25 

          Now, France I'm saving, because I want to end up with France. 

0:56:29 

          In West, West Germany, there had been originally, much later [earlier] than in France, an emperor.   But because the emperor was elective, the same thing occurred to him which occurred, happened to all elected kings and princes, i.e., he had to make concessions, go into debt to get the necessary money and necessary votes, in order to be elected Emperor.  And the empire thus disintegrated into principalities which the emperor could not control.  However, the emperor, as long as he continued to exist, and technically he continued to exist until 1806, when his name was changed, from Holy Roman Emperor to Habsburg Emperor of Austria, by Napoleon.  If you want an imperial title, you can have one for Austria, but you can't have it for the Holy Roman Empire, and so forth.   The imperial title still existed, but all the rights and powers of the Hapsburgs were the powers of the hundreds of other inheritances which they had.  The most significant, of course, were they were Archdukes of Austria, but they were Kings of Hungary, Kings of Bohemia, and many, many other things, as you know. 

0:57:55  

       Now, as a result of this disintegration, what you got what you got was 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 period of European history in the post-mediaeval period, certainly up until 1800, up to the time of Napoleon, was Western Germany in the late Eighteenth Century.  And 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 won't attempt to do it, but think of the greatest mathematician.  Now, Englishmen will always say Newton, but it was a German in that period.  The greatest musician -- or, if you dispute it, there were three great musicians.  Great philosopher.  It was a very great period, and a period much worth studying.

0:59:10 

          Now when they received the Roman law back at the time of the Reformation, and made themselves also heads of the Church, they got the following things:  the prince is at the top and, legally, beneath him are individuals.  Corporations must have a charter.  Judges are agents of the prince: he names them, he can fire them, he should pay them.  The prince is, in most cases, the head of the Church, even though in many cases he wasn't that religious, so you had Lutheran kings who, or you mean you had Calvinist kings who were heads of the Lutheran Church, and things like this.  Law was studied in the universities.  That's where you studied the Roman law.  In England that's where you studied the Roman law.  They called it the Civil Law.  In the universities.   And the prince controlled the army, the armed forces.  And that gave him; in fact, it meant that Germany was decentralized into hundreds of principalities.  And even after Napoleon, it still consisted of dozens of principalities.  But that does not mean it wasn't a good place. 

1:00:33

          Eastern Europe I have discussed.

1:00:37

          All right. Now, France.  France is the most interesting case.  It did not achieve sovereignty; and, I explained to you last time, it did not because the king was going to rule according to law.  That meant he was going to protect dominia and not insist proprietas; but it meant that he did not have the powers to be effectively a king.  He had enormous incomes around; but, even in total, they were not enough for what was demanded of him.  And what he did was, instead of collecting the money from all of them into a treasury, and then paying out what was necessary, and having some kind of a budget or a system of account, or knowing where he was, what he did was, he promised people or got people to promise they would do something for him that he needed done, whatever it would be, XXXX a royal printer or something of this kind, and XXXX then he said, "All right.  Oh, here is a free income: it is the Octrois, [i.e., the tolls paid going into a city, somewhere. -- It might be Rheims, or a number of cities]  All right, I will divert these tolls to you, that will pay you for being my printer to publish my ordonnances" and so forth.  Generally, at least sixty to eighty percent of his income were committed to these different purposes, and the only funds that he had available in any particular year would be the funds that would come free for some reason.  For example, if he gave it for life, when the person died, then it would come back to him; if he gave it for ten years, it would then come back.

1:02:32

          Now, this was not sufficient.  To raise money, he had to do other things.  I indicated to you last time, he did not have credit, because he couldn't alienate anything that the monarchy owned, because it wasn't his.  It was the monarchy's.  Therefore, he did not have credit.  But there was another restriction.  If he did have credit and borrowed money, because he obeyed the law, the laws of usury against interest were still in force, and remained in force until the French Revolution.  Now, they got around that in two ways.  One way is they said that certain moderate payments on borrowed money are necessary.  This is insurance against loss, and is not interest for use of the money.  But that limit, in most cases, was five and a half percent, which was not sufficient because you could get ten percent quite easily for money, let us say, in the Seventeenth Century or in the....  In the early Eighteenth Century, there were occasions where you could certainly get twelve percent.  Instead, they devised a system called les rentes, the incomes, and what it is is this:  Here is an income.  All right, that would be the interest.  But we won't call it that.    How would you like to buy an income?  All right, here is an income which yields 50,000 a year.  If you will give me 100,000, I'll let you have it for a year.  That's fifty percent.  Then at the end of the year, I won't be able to give you back the money, the 100,000, so if you want the money back, sell it to somebody else.  So rentes became claims upon incomes which could be sold almost like stock exchange certificates of some kind.  And this is what became one of the chief sources, but they built up fantastic burdens of debt in this way. 

1:04:54

          I will not go into the details of it.  What they were doing became eventually, with every act they were doing -- much worse than our Watergate, everything they were doing in the financial world was illegal.   And they exempted supervisors and accounting, accountants who had to be sweared, so in order to do this they had to create thousands and thousands of fraudulent and forged documents to indicate that they were only getting five and a half percent and that the money was being repaid, when it wasn't at all.  Because they would make a document saying it was repaid, and then they would make another document saying that someone else had got it -- and that somebody else is your brother-in-law, and so no change was being made at all.  This is a most fantastic story, and there's an adequate book on it, which I will recommend, by a man named Julian Dent,  it's quite a recent book.  Crisis in Finance: Crown Financiers and Society in Seventeenth Century France.  It was published in 1973.  It is an extraordinary, hair-raising book.  The result was that the king of France was over the edge of bankruptcy most of the period, in fact, all of the period, covered by this lecture to-night, for two hundred years.   By that I mean, that his income, in gross, was smaller than the interest payments that he owed, in gross.  And to figure this out, now, I don't, Mr. Dent, Dent, I throw a French accent in there, but I can't, he's an American, spent years working in this before he discovered what it was that was going on. 

1:06:50

          All right.  Now, let's look at the situation in France.  Because of this, the king could not pay officers.  So he couldn't have officers.  What he had to do was to let people take positions in the government and use those positions to get money from fees.  And if the fees are not adequate, then they can take several XXXX positions, and they can then neglect all of them and spend a good deal of time working at something else, as a jeweler, or something.  (The Near East is like this, as you know, now.  Everyone in the Near East has five jobs and they don't appear at any of them except briefly, to say, "How is everything to-day?"  And they duck off again and they go to another job.  And so forth.  If you put it all together, it barely gets them by.)  XXXX The king didn't have agents.  Now. he discovered that people were willing to pay to get jobs like this, so he began to sell offices that were totally unnecessary.  For example, they had, say, six or eight inspections to make sure that the quality of textiles was up to the rules that had been established.  And every time anybody inspected -- now he only inspected one bolt out of a thousand, XXXX whenever he passed around, but he then sold you a tag for the thousand.  But he only looked at one, if he looked at that.   Generally, he came in and they said, "Oh, let's go over and have a drink."  They sat in the café and now he said, “How many do you want?"  And the fellow said, "I got a thousand bolts."  "All right, here's a thousand tags, and at fifty cents each, that's five hundred dollars."  And they would attach each one.  There were six inspections, originally.  But the king discovered that he could name dozens or more inspectors who would go around and would pay money to go around and sell inspection tickers, stickers, so they now had not six inspection stickers on each bolt of cloth, but you might easily have eight, and the fellow had to pay for those.  Now. this is part of this insane situation.  This is a totally irrational society, which is obviously crippled in its ability to satisfy basic hunan needs, and which is, almost as obvious, I think, explosive, in the sense that a revolution is bound to come unless there are drastic changes made in a hurry. 

1:09:25

          He lost the legislative power.  The reason is that all the judges owned their seats.  This appeared, all this appeared in the Seventeenth Century, when we have the beginning of it.  That is the sales of offices, the restrictions, the issue of rentes, all of these things I am telling you about now as examples of corruption, if you wish  The private ownership of government offices, including judgeships.  Now a judgeship thus became almost exactly what a seat on the stock exchange is here.  That is, you had a judicial seat, as a result of the judicial activity you imposed fees on cases, and these fees become your income.  The value of the seat is the annual average income capitalized at the rate of interest.  So if you made 10,000 a year out of this job, and people thought ten percent was a fair return on investment, then you could probably sell the seat for 100,000.  And thus the seats, the judicial seats, became the possession of a new class in society, the noblesse de la robe longue, i.e., the nobility of the robe, the nobility of the long robe.  A hereditary nobility, nobility not in the sense that the nobleness went from father to son so much, as the possession of his seat did.  And you may remember that Montesquieu, who wrote L'Esprit des Lois, had inherited from an uncle a seat, and when his book was such a success, he decided he was better as a popular writer, so he sold the seat. 

1:11:16

          Now what this meant was that the king could not really control judicial cases: they would decide cases against him.  And this was the group who decided that the peasants in France owned the land, but they still owed manorial dues, which had to be abolished in the Revolution.  But as a result, you had France all broken up into small little holdings, as you had in the Nineteenth Century. 

1:11:48

          Now, this meant also that the king could not legislate, because, if he passed a law, an ordonnance, a decree, or something of this kind, the judges claimed they never heard of it.  So they never enforced it.  In order to have it enforced, he had to send it to them and say, "Register it."  Well, they would look at it and say "We don't like it." XXXX "Now."  "We won't register it; we'll send it back."  Now, I won't go into the details, but it became a long and involved ritual.  But the king would send the chancellor to order it written; they would refuse.  The king himself would appear, and the chancellor was in the presence of the king; this was called a lit de justice, a bed of justice, because the king was reclining (He couldn't sit up straight, I guess.  Probably a delinquent of some kind.)  But in any case, in a lit de iustice, the judges admitted that, in the presence of the king, they became clerks.  So they wrote it down in their books, and registered it.  But then they wrote, in the margin, in big letters: “Inscribed in the presence of the king" -- "coram rege" -- "In the presence of the king," and they never enforced it.

1:13:15

          Now, what this meant, is that not only did they not, did the king not have the legislative power, but he did not did not have either the taxing power or the ability to reform the tax system.  And since everything was the result of centuries of custom, everything was extraordinarily inequitable.  That is, people who were not wealthy paid heavy taxes, people who were quite wealthy paid very little -- just as we do to-day, only they were much more excited about it, although it was probably no more inequitable than our system to-day is, which is very inequitable, if you know anything about it.  And, but nothing could be done.  Now, what the king wanted to do was not only to be able to tax XXXX ; but they 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 mean by "graduated;" so this is a graduated income tax.  Again and again, the king tried to register a graduated income tax in the Eighteenth Century; and again and again it was refused.  And he came and ordered it, and they inscribed it, but they would not permit it.  Now the way they prevented it was not by saying, "We will not enforce it."  They issued an order that any Frenchman who answered any questions about his income to anyone was in contempt of court. That's the kind of Supreme Court we need here! 

1:15:07

          Thus the king lost the taxing power, the legislative power. His loss of the judicial power I've already indicated to you:  he couldn't control the judges.  Here again in the Eighteenth Century was a terrific explosion.  They said:  "We are all members of a single corporation" and they debated that endlessly for two centuries.  He said:  "No, there is no judicial corporation"  They said:  "Yes, there is," and so forth.  It doesn't matter.  Finally, in 1770, December 1770, the king realized he was bankrupt.  He was engaged in great wars with Britain for control of India, in North America, and the world, and so forth.  He was eventually, in seven years, 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, in December 1770, he abolished the court system and established a new court system.  It wouldn't work.  Why?  Because he was not going to be an illegal, criminal; and he admitted that those judges, whose seats he had abolished, were private property; and, therefore, having abolished the seats, he had to pay them the value of the seats.  And he could not get that, because he could not tax.  Furthermore, no one would take cases to the new courts that he set up. The new courts he paid.  They didn't work for fees.  They were named by him, and paid by him, and much simplified.  But no one would take a case, because they said:  "Well, we know he has no money.  He can't pay the value of the judicial seats to the judges, so eventually he is going to have to put them back."  And eventually, in 1776, he put them all back.  Now it was a different king,  because Louis XV died in 1774 and it was his, Louis, his successor, Louis XVI, the one who eventually had his head chopped off.  And he had his head chopped off in the French Revolution because he was so law-abiding, and unable to restore and pay for the seats that he had taken over, to establish what we would have regarded a more modern judicial system.  He put it all back.  And the result, when he called the Estates General after a hundred and seventy-five years in 1789, he did it because the Parlement (i.e., the Supreme Court of Paris) insisted that he must consult the nation.  The Estates General.

1:18:04

          Now, one last thing that I should mention, the incorporating power.  I said 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, but they had existed through all eternity.  Some of them had been there much before there was ever any king of France,  The Cathedral of Rheims, and others like this.  [Al]so there were churches, towns, universities, guilds, innumerable ones.  Furthermore, they, litigation between these corporations was endless, just as to-day -- although we have this in medical science more even than in law to-day: they keep the thing going forever.  The case must be kept going because it's a source of income.  When the Estates General assembled in 1789 and abolished the judicial system of France, there was before the court a case that had been before the court 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; and it had been going on for three hundred and thirty-some years, because it was such a juicy plum for the law firm and they could keep, and the judges too, that they kept it going and never settled it.  (We're moving in this direction, both in medicine and law, and, I hope not, in higher education, in the United States.)  Eventually, as a step in this direction, in 1776 Turgot abolished the guilds.  Once again, it couldn't be done.  He would have to pay off all of their debts, and they had enormous, millions and millions and millions of debts. And it couldn't be done.

1:20:23

          Now, when the Revolution came, it was a tremendous earthquake.  It wiped out just about everything. You cannot believe it.  When I was in Paris in 1937, I went over there, very much devoted to this kind of thing, I found that there were hundreds and hundred and hundreds of tons of not only law books, but 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 they set up a new system of law, a single book, the Code Napoléon, about 1802; and if you hold it in your hands, it's smaller than an ordinary Bible.  The ordinary Old Testament.  And that's what, all you do, have to go back to that.  You don't have to go back any further.

1:21:27

          Now, what the French Revolution did, it created a fully sovereign state, which had all power.  That sovereignty was embodied not in the monarchy, but in the nation.  That means that the residents are no longer subjects, they are citizens.  These are revolutionary changes.  They are participants in this entity, now which is the, la patrie, in French.  All restraints, or all legal restraints, on public action are replaced by acts of sovereignty.  Now, the sovereign power in France after the French Revolution can do anything, the only restraint is it must be done according to the rules of the sovereign power.  And XXXX It did become and remain a Western Civilization government under the rule of law, but it was procedural rules and no longer substantive rules of limits upon what could be done. 

1:22:46

          The polity was transformed, and this, to me, is the most utmost importance, because it leads to next week's lecture:  was transformed from a hierarchical system of subjects in communities and corporations and chaos, really, all interwoven together into a hierarchy.  It was wiped away and replaced by a system which is a naked dualism: 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 for you:  "A state truly free will not suffer in its bosom any corporation, not even those which, because they are devoted to public education, or other well-deserved things favored of the [father]land."  In other words, that's the 18th of August 1792, the French proclaimed, "There are no groups in our society."  If you want to make a group, you make a voluntary group, it has no legal existence.  If you want it to have a legal existence, you must get a charter.

1:24:16

          In other words, this is really Roman.  But, this raises future problems: it says that men are equal before the law.  If men are equal, legally equal, and are equal participants in the polity, why should they not be politically equal?  Full democracy, which the French did not get, you know, until 1848.  And, eventually, why should they not be economically equal?  That is, use their sovereign power, as the nation embodied under..., to share the wealth, equally or any way.  If sovereignty can do anything, and law is merely an act of sovereignty, why should not the wealth be divided?  All right, that is the problem we're going to come up with in the last two centuries, next week. 

1:26:22

          Thank you, Ladies and Gentlemen. 

1:26:25

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