public affairs, and by educating them in the discharge of public duties, has in France been wanting for centuries; and this may not unreasonably be regarded as the chief cause of the repeated failures of the French nation to establish a system of constitutional government. If these propositions are true and can be established by historical evidence, they appear to us to throw a beam of light upon the history of France, and more especially upon the history of her great Revolution from 1789 to the present day. The Commune of Paris of 1871 is no novelty in the annals of France. It is the recurrence of a well-known drama-burlesque, arbitrary, desperate-when acts of government become the acts of maniacs, and all the horrors of bloodshed, ruin, fire, proscription, anarchy, are let loose upon the great city by those who call themselves her chief magistrates. We propose to trace the mischief to what we conceive to be its source.

The municipal law of France, as described by M. Raynouard, was based upon the ancient right, established by the legislation of the Roman Empire, which authorised the inhabitants of a city to choose their magistrates and to administer their affairs. The oldest cities of France were in fact the municipalities of Gaul. They were copies on a small scale of Imperial Rome; and in this shape they were anterior to the grant of any municipal charters by the Crown, though such charters were subsequently granted in and after the twelfth century to define their powers or confirm their privileges. Thus the cities of Perigueux, Bourges, Marseilles, Arles, Toulouse, Narbonne, Nîmes, Metz, Paris, and Reims were all undoubtedly Roman civitates governed by consuls, or a senate of boni homines, elected by their fellow-citizens. But their rights far exceeded what are now understood by municipal or civic franchises: they were in many respects sovereign communities; they levied troops, made peace and war, concluded treaties, and administered justice in their own name. Thus, for example, it was provided by the constitution of Perigueux that the civitas sit libera, et nullius jurisdictioni subjecta,' and that ad voluntatem vel dispositionem con'sulatûs ibit universitatis exercitus et ducetur.' The earliest act of homage of the citizens of Perigueux to the kings of France took place in 1204.

The city of Paris never solicited or accepted any charter of incorporation, and M. Raynouard argues (we think unwisely) that she stood in no need of any such safeguard. Before Cæsar's conquest,' says he, Paris had enjoyed municipal liberty. Her Nauta authorised or at least protected by the

'institutions of Rome became her most useful citizens. They had influence enough to unite the rights and interests of the 'municipal magistracy to the interest and right of their 'powerful company, and the symbolical Galley, which still 'figures in the city arms, as well as the old title of Provost of 'the Water Traders (Procurator mercatorum aqua), borne by 'the chief magistrate, attested this change.' Most of the 'cities of France,' he adds, never had charters of incorpora'tion. Their own municipal right sufficed to them. They claimed no other safeguard.' It was a jus ante omnia jura natum, or, to use an English expression, it was the common law of the country.

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From this definition of the municipal rights of France we draw two inferences: First, the Crown, when not bound by charter, could, and did, revoke the municipal liberties of the people, when a city happened to displease the court, as for instance, Philippe de Valois suppressed the corporation of Laon, and Charles VI. suspended the municipal government of Paris in 1382. Secondly, the powers of corporations not being defined by charter but by usage, were, so to speak, selfevolved; they were sometimes narrowed and sometimes extended to excess; they were not under the control of a judicial authority or even of the legislature; therefore in times of subjection they were contracted within the limits of servitude, in times of revolution they expanded to absolute Sovereignty.

It might be shown, by a careful examination of the principles and history of the Gallo-Roman and the Teutonic or AngloSaxon municipalities, that there is this radical difference between them-the former tending to a partition of sovereignty, and consequently to the alternative of federalism or civil war, as was exemplified by the Italian republics of the Middle Ages and by the cities and provinces of France until they were overpowered and absorbed by the Crown-the latter aiming at no sovereignty at all, but confined to the discharge of strictly municipal functions in loyal subordination to the State from which they drew their powers. Dr. Brady has shown, in his Essay on English Boroughs (which is the best authority on the subject) that all free-burghs in England had their begin'ning from charter; for a free-burgh, in the true sense of the 'word, was only a town of free-trading, with a merchant guild or community, without paying toll, pontage, or other royal 'dues.' The English borough charters first made the citizens free men; then conferred liberty of trade, fairs, and markets; then acknowledged the power of assessing the tenths or fif

VOL. CXXXIV. NO. CCLXXIII.

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teenths granted to the Crown by Parliament; and they were called upon in many cases to elect and return members to Parliament--a privilege which was regarded as onerous. But of direct political or executive power there is no trace whatever in their history; and this essentially distinguishes them from the communes of France.

This distinction has in fact been drawn with prodigious erudition and searching discrimination by M. Augustin Thierry in his well-known letters on the History of France and in the Tableau de l'ancienne France municipale,' annexed to his 'Histoire du Tiers Etat '-a work which well deserves to be studied as a master-piece of historical criticism. M. Thierry has shown in his writings that the municipal constitutions of the towns of France were extremely diversified. They retained traces of the ten or twelve states which were ultimately absorbed in the unity of France; and he divides them into distinct classes or zones. In the towns of the south the municipal institutions were of Roman origin; their magistrates were styled Consuls; and they enjoyed a very high degree of sovereignty and independence, extending, says Thierry, even to the plenitude of a republican constitution." In the north the cities were formed by the association of guilds, under the pledge of a civic oath; and their condition resembled that of the free towns of Flanders. In the central regions of France the sovereignty of the communes was more limited. In Normandy and Maine they resembled the early municipalities of England. In the cities of Eastern France, which had formed part of the Germanid Empire, the Teutonic form prevailed-that is, their powers were restricted, because, says Thierry, the emperors of Germany were systematically • hostile to municipalities created by the revolutionary mode of insurrection or by that of mutual associations.' They were in fact corporations like our own, exercising no powers but those which had been conceded to them by the Crown. They were expressly inhibited from framing or claiming any rights 'sine domini sui assensu.'* It is impossible for us, in this place, to follow out in detail this very intricate subject. For our present purpose, it suffices to point out, in the words of Thierry, in his essay on the Affranchissement des Communes," that les plus anciennes et les plus considérables s'établirent spontanément, par insurrection, contre le pouvoir seigneurial;' their very basis was insurrection; and so it has been through

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* See the 'Henrici regis sententia contra communiones civitatum,' in Pertz' Monumenta Germanica, tome ii. p. 279.

out the history of France. It is obvious that this fact explains, on the one hand, the tendency of the communes to disintegrate the State, and, on the other, the extreme jealousy and hostility of the State towards municipal institutions of so formidable a character. These two conflicting elements appear to subsist down to the present day, and the recent civil war between the Commune of Paris and the representatives of the nation is the last manifestation of them.

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To quote at once a striking example of this French conception of municipal liberties:-at the very outset of the Revolution, on the 23rd July, 1789, when the name of the city of Paris was heard for the first time in the Assembly after the taking of the Bastille, Mirabeau exclaimed:- Municipalities are the more important as they are the true basis of public 'happiness, the most useful element of a good constitution, the every-day resource of society, the safeguard of every home, and in short, the only mode of interesting the whole people in the government, and of extending rights to all classes of 'the community.' But upon Mounier's asking whether he proposed to leave each town to frame its own municipal institutions (de se municipaliser à sa manière),-adding that he thought it would be too dangerous for the Assembly to create states within the State, and to multiply sovereignties,-Mirabeau replied emphatically that his intention was that the Assembly should not organise the municipalities; that every corporation ought to be subject to the great principles of national representation; but, provided these were complied with, the details of municipal government ought to be left to the townspeople to settle for themselves, as they please. shall shortly see the fruits of this principle.

We

It should also be borne in mind, though this part of the subject is too extensive to form part of our present inquiry, that the old constitution of France was remarkable for its provincial Estates and provincial Parliaments. In thirty provinces which were successively annexed to the Crown of France in six centuries and under fifteen kings, the old constitutional representation of the people by the three Estates existed. These assemblies all survived till the sixteenth century; it was not until the middle of the seventeenth century that the system of government by royal intendants was established over the ralities of France; and down to 1789, eight provinces, comprising a quarter of the kingdom, were still Pays d'Etats and had preserved some traces of provincial independence. But this fact, though of great importance to the history of France, is distinct from the proper civic or municipal rights of the

towns, to which we are now addressing ourselves. In the plan de réforme, secretly prepared by Fénelon in 1711 for the Duc de Bourgogne, the revival of the Provincial Estates, on the model of the Assembly then still subsisting in Languedoc, was proposed for the regeneration of the country. Upon the accession of Turgot to office the same idea was resumed in his Mémoire au Roi sur les Municipalités' with greater precision. Each parish was to have had an elective board for the purposes of rating, roads, and the relief of the poor; the votes were to be in proportion to the rateable income of the tax-payers. Necker, who succeeded him in office in 1776, zealously adopted and partially applied these views, and in 1778 an edict was passed to revive the provincial Assembly of the province of Berri. It was afterwards extended to Dauphiné, Montauban (Haute-Guienne), and the Bourbonnais. These experiments were highly successful; but it did not escape the penetration of Necker that there was great danger of these bodies aiming at political power, and in a secret memoir to the king written in 1778 he used these remarkable words: Ils s'y prennent comme tous les corps qui veulent 'acquérir du pouvoir, en parlant au nom du peuple, en se 'disant les défenseurs des droits de la nation. . . . il faut

donc se préparer à des combats qui troubleront le règne 'de votre Majesté, et conduiront successivement ou à une dégradation de l'autorité ou à des partis extrêmes dont on ne 'peut mesurer au juste les conséquences.'*

In our own political constitution there never was anything corresponding to these provincial assemblies. England was represented and taxed from an early period of her history by the Parliament of the realm for affairs and charges of state, and by chartered civic corporations for municipal purposes. The Provincial Estates of France were an intermediate representative power; they were long of great utility and importance to the freedom of the nation; but they never acquired the authority of the Parliament of England, because the StatesGeneral of the kingdom (which consisted of delegates from the Provincial Estates), were rarely convoked; nor did they

* See M. de Lavergne, 'Assemblées provinciales sous Louis XVI,' a book of extraordinary originality and interest, which gives from authentic sources a most accurate picture of the provincial and municipal condition of France just before the Revolution.

An excellent Memoir on the History and Organisation of the Provincial Estates of France was also read by M. Laferrière to the Académie des Sciences morales et politiques in 1860, and is published in the eleventh volume of the Transactions of that Academy.