The Prince, The People, and Fritz Pendleton in Between

[After much delay…]

Half a year ago, Fritz Pendleton attempted to draw lessons from Bonapartism (my response here). Most recently, he has presented us with a treatise that is strange in just how conventional and neutered it is.

Pendleton is nominally aiming to pursue the same direction as a Karl Ludwig von Haller: a comprehensive theory of a top-to-bottom anti-liberal/anti-radical statecraft. Instead, he has somehow ended up repackaging the most vanilla English (or perhaps French) constitutional monarchism imaginable. Something went off the rails along the way, and so we learn that Bishop Stubbs, rather than Whig history, actually provided a metapolitics of counterrevolution all along.

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Every once in a while, you stumble upon an obscure jurist barely anyone has heard of with visibly dated (?) ultra-royalist leanings, who turns out to be a true gem. Is there a value to pursuing this? The value, I think, lies in helping you tell the difference between a monarch and a Bonapartist. It is understandable that the left often can’t tell it, but increasingly large numbers of the people on the right are also finding themselves incapable.

Next up will be my response to Fritz Pendleton’s latest. Until then, a word from Jean-Baptiste-Victor Coquille (1820-1891), a lawyer who hated lawyers, in Les légistes: leur influence politique et religieuse (1863), p.375-9:

The doctrine which gives the right of property to the State is not so foreign to our legislation as one would be tempted to believe at first sight; admirers of our Codes can easily be convinced. Roman law, especially with regard to property, is alive again in our civil law. The gradual abolition of customs, undertaken under the combined influence of jurists and royalty, was to lead to the triumph of absolutism and the denial of the right of property. In Rome, the State alone is invested with the right of property; the Roman citizen is only a member of the political congregation. It alone has the right of ownership. This primitive communism has left many traces in the archaism of the law. Outside the sovereign city, there were only inferior and subordinate rights. Thus the provinces did not enjoy the right of property; the Roman people attributed to themselves the eminent domain, the legal property of all the conquered countries. They abandoned the property to the inhabitants only precariously. The inhabitants were only mere possessors. That is the right of which the Roman jurists have deduced the consequences with precision. Caesar, the legal representative of the Roman people, was thus invested with the total property of the submissive world. This universal confiscation was intended to weaken the subjugated nations, extinguishing in them all sentiment of personality. This system succeeds wonderfully; and when Rome, after centuries of fierce struggle, sank under the weight of the Barbarians, the provinces remained powerless and unable to govern themselves. A brilliant civilization, a perfected administration, did not save them. These advantages, indeed, do not replace, at the time of the great struggles, the energetic instincts of an independent nationality. Gaul got up with the Franks, who placed at their service a valiant and devoted sword, and soon became with the Gauls a single people. From this melee of Gallo-Romans and Franks was born, under the action of the Catholic Church, feudal France. Feudalism is the glorification of the right of property; it causes all political rights to flow from property. The hierarchy of lands corresponded to the hierarchy of functions; the land paid for the function. Royalty was the greatest of the fiefs, but it was of the same nature as the other fiefs, and was transmitted like them, from male to male and by order of primogeniture. The ancient possessions were also transformed into incommutable and perpetual fiefs. As a result of this change in the organization of the right of property, justice no longer had the autocratic character it derived from Roman law. The Roman emperors were the supreme legislators of the world; their will had the force of law, which was principally established, legis habet vigorem. To this justice emanated from the imperial arbitrariness succeeded a territorial justice based on custom. The peoples freed themselves from the Roman law, and only raised themselves, their manners, and their traditions. Caesar lost his powers as legislator and judge. This was the moderate character of feudal royalty. From the principle that the law was territorial, the consequence was that the men of every custom, of every locality, were the only interpreters of the law. This state of affairs has been undermined by two claims successfully supported by the lawyers. The first is that the fiefs were a usurpation on the royal estate; the second is that “all justice emanates from the King.” The French monarchy, by a fatal ambition, became drunk with these fatal doctrines, and demolished with its own hands the edifice of which it was the coronation. Once the foundation of the company was shaken, the ridge was soon overturned. In hatred of the Church and feudalism, the lawyers brought us back under Roman servitude. Roman law, in its application to the provinces, was a code of servitude; it choked under its cold logic all the spontaneous germs of development among the conquered nations. The jurists at an early age began to invoke royal power against customs; in the long run they relocated France under orders and good pleasure. Their triumph has made France the privileged land of bickering and procedure. But their action was above all mortal to public liberties; they have entirely sacrificed the right of property to their pagan prejudices. Almost all French soil was constituted into fiefs; if the fiefs went back to the royal authority, it followed that the right of property was a concession of royalty. Louis XIV professed this theory as clearly as the most advanced socialists of our day. “All the goods of our subjects are ours,” he wrote in his instructions to his grandson. The remains of feudalism disappear in 1789.

The theory of the State that owns the national soil will emerge from the discussions and events with remarkable speed. By virtue of this principle, the property of the clergy and the nobility are declared State property: the spoliation takes the air of a claim. Let’s get to the Civil Code. “Property,” says section 544, “is the right to enjoy and dispose of things in the most absolute manner, provided that they are not used in a manner prohibited by law or by regulation.” Surely all this is very strange. What is an absolute property subject to the laws and regulations that any legislator will imagine? The drafters of the Code were incapable of raising a clear notion of the principles of the legislation. They recalled the definition of Robespierre, who saw in property only the right, for every citizen, to enjoy the portion of property guaranteed to him by law. Even today collective property needs, in order to be born, a prior authorization; and the legislator would think it right to dissolve it after having authorized it. The State therefore considers the right of ownership to be a delegation, since it gives and withdraws it at will. The law of inheritance and gift gives us a striking example of the influence of this idea, that above the individual property resides the superior right of the State. Substitutions are prohibited by the Civil Code. Why, if I am the absolute master of my thing, can I not dispose of it in an absolute manner, am I a simple usufructuary, have I only a life-giving right limited to my earthly existence? The testament is sacred to all peoples, because, in spite of death, it is the expression of an ever-living will. The last wills suppose the immortality of the soul. By what right to limit the effect of our last will on the things that are ours? England has never known Roman law; it leaves the property right free. It is permissible in England to dispose of his thing in perpetuity, by means of substitutions. This is the right in its complete autonomy. The Civil Code attributes to us only a kind of usufruct. There is no exaggeration of our property tax that does not seem to attest a kind of co-ownership on the part of the State. It is about one-fifth of the income; it is about the tax formerly levied by the Roman fisc in the provinces. What will we say about the property of the communes or public institutions some of whose directors claim that the State has the right to order the sale? Is not this still an appeal to the primordial right of property which belongs to the State? The Code can not be explained dogmatically; but it is impossible not to see in the series of its provisions relating to the right of property an inspiration of Roman law, as opposed to customary law, of which the Revolution has effaced the last vestiges.

It isn’t true that “England has never known Roman law,” but overall the judgment holds up. Now many people will probably jump that the author is advocating unrestrained alienation, but read more closely the idea is that having dominium directum disconnected from territorial rulers claiming regalian rights, and instead transferred to the Crown, which let us not forget by the time of absolutism became a mere corporate fiction thanks to the doctrine of capacities, and of indivisible sovereignty (which paradoxically held that the sovereign was absolute, but not absolute enough to parcel his demesne lands into fiefs), ultimately led to the institution becoming a meaningless redundancy — with the jurists dealing the final death blow by simply formalizing Crown into the Council that it had been for so long.

Sir Robert Filmer refuted

[In which Nigel Carlsbad dons the robes of a Jesuit schoolman. All casuistry, no Aristotelianism. Also doubles as an anti-absolutist tract. I was going to devote a different essay to that, but this one might suffice.]

King Clothar had ordered all the churches of his kingdom to pay into his treasury a third of their revenues. But when all the other bishops, though grudgingly, had agreed to this and signed their names, the blessed Injuriosus [Bishop of Tours] scorned the command and manfully refused to sign, saying, “If you attempt to take the things of God, the Lord will take away your kingdom speedily because it is wrong for your storehouses to be filled with the contributions of the poor whom you yourself ought to feed.” He was irritated with the king and left his presence without saying farewell. Then the king was alarmed and being afraid of the power of the blessed Martin he sent after him with the gifts, praying for pardon and admitting the wrongfulness of what he had done, and asking also that the bishop avert from him by prayer the power of the blessed Martin.

— Gregory of Tours, History of the Franks, Book IV, Ch 2, illustrating the influence of sacerdotium over imperium, in contradistinction to absolutist pretensions

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The Comte de Montlosier’s swansong for the debased nobleman

For a long time [the seigniors] are very feeble against the intendant, utterly powerless to protect their parish. Twenty gentlemen cannot assemble and deliberate without the king’s special permission. If those of Franche-Comté happen to dine together and hear a mass once a year, it is through tolerance, and even then this harmless coterie may assemble only in the presence of the intendant: Separated from his equals, the seignior again is separated from his inferiors. The administration of a village is of no concern to him; he has not even its superintendence. The apportionment of taxes, the militia contingent, the repairs of the church, the summoning and presiding over a parish assembly, the making of roads, the establishment of charity workshops, all this is the intendant’s business or that of the communal officers which the intendant appoints or directs. Except through his justiciary rights, so much curtailed, the seignior is an idler in public matters. If, by chance, he should desire to act in an official capacity, to make some reclamation for the community, the bureaux of administration would soon close his mouth. Since Louis XIV., the clerks have things their own way; all legislation and the entire administrative system operate against the local seignior to deprive him of his functional efficacy and to confine him to his naked title. Through this separation of functions and title his pride increases as he becomes less useful. His self-love, deprived of its broad pasture-ground falls back on a small one; henceforth he seeks distinctions and not influence; he thinks only of precedence and not of government.

— Hippolyte Taine, The Origins of Contemporary France: The Ancien Regime (1876)

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Legitimist theory of princely rights in a nutshell (Karl Ludwig von Haller)

Indeed, everything becomes clear, all doubts vanish, as soon as one starts from the true nature of a prince, a power of his own, and his personal rights. It is easy to conceive, therefore, that such a territorial and independent lord, whose power and liberty are founded upon domains, possessions, and revenues freed from all dependence, is also the master of alienating this property.

Consequently, the power and independence derived therefrom, whether in whole or in part, as sales, exchanges, voluntary renunciations, donations, marriages, inheritances, etc, is practiced at all times without any opposition. For by such acts the princes do not alienate, transmit or exchange the rights of others, but only their personal rights. They do not sell the peoples, still less the simple individuals (which are doubtless not merchandise), but they transmit only their own domains, their houses, their possessions, their incomes and enjoyments of every kind, with the authority which is inseparable from them. In a word, with the rights and duties inherent in this possession.

The inhabitants of these domains do not lose anything of these kinds of mutations. Nothing is taken from them, their condition is not deteriorated. Therefore, they have no right to complain. The new possessor of a sovereign lordship, like that of a peculiar seigneury, merely succeeds to the property, rights, and relations of the old master. He can not acquire more than he possessed. The sovereigns in their turn can transmit only what is theirs, and in fact they have never transmitted anything else.

Thus, let us see that whenever the former treaties of peace stipulated the cession of certain provinces, as well as in the acts of sale and exchange of a sovereign principality, the natural and acquired rights of the subjects were expressly reserved; that they often recommended the continuation of certain acts of kindness, of certain favorable customs; and that, moreover, the new prince granted the subjects all sorts of facilities, in order to have regard, not only to their rigorous rights, but also to their personal attachment to such and such a prince. The subjects, the inhabitants of the ceded country, remain free as before, they are not slaves sold, as the philosophe pretends. And since when should a man be a slave, because the soil that is inhabited changes its possessor, or that, remaining the owner of the soil, we must, give for the future of John, what we owed to James?

This quote, taken from vol. 3 of Karl Ludwig von Haller’s magnum opus Restauration der Staatswissenschaft (or of the French translation Restauration de la science politique, for in the original German it corresponds to vol. 2), subtitled “On Seigneurs and Patrimonial Princes”, Chapter XLII in total — is perhaps one of the best legal-philosophical summaries of the idea of medieval territorial-lordship there is, and really of monarchism as a whole.

From jurisdiction as freehold property, to the rights of alienation inherent in a freehold, to the dynastic principles of marriage, inheritance, purchase and conquest, and ultimately a hint toward a principle of legitimacy based not on accountability to an abstract “people” or “nation,” but on the confirmation of certain customary rights to particular estates.

These are subjects we will be discussing at great length in the future, of course (and I promise that Von Haller will get his own multi-part series some day), but this is a glimpse anyway. Such were the gentlemanly principles of foreign relations in a bygone era, as repugnant to the progressive leveller and to the blood-and-soil ethnonationalist alike.

On royal prerogative

How do the stewards of the federal government in America plan their budget? It’s not a trivial question to answer.

The President submits a budget proposal for the upcoming fiscal year. Congress, both House and Senate concurrently via the House and Senate Committees on Appropriations (in turn divided into 12 subcommittees), then proceed to draft a budget resolution. It is not considered a bill, so it is not presented for a presidential signature, nor can it be vetoed. It passes on a majority vote. There’s about 19 different budget functions, i.e. spending categories. Approx. 63% of the federal budget is dedicated to mandatory spending, including most entitlement programs, which aren’t even subject to appropriations — it’s just a public obligation.

Various hearings are scheduled, taking comments from experts, officials and perhaps laymen, too. Adopting the resolution then sets in motion various mechanisms for enforcement — discretionary spending caps, the statutory cap (a requirement that if an appropriations bill exceeds statutory limits, a sequester order must be issued by the President cutting all discretionary spending by a uniform percentage — we’re talking values like 0.0013% here; there’s no starving this beast!), and so forth.

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Joel Barlow against the Second Estate

Of the Founding Fathers, plenty has been said. Of the Founding Jacobins, less so. The Mel Bradfords, the Friedrich von Gentzes, and many others, would insist that the American Revolution was no revolution at all, but a conservative revolt for the protection of the customary rights of Englishmen. Yet even Bradford admitted that the conservative heritage of America had already faded by 1819 — presumably chosen for the banking panic of the same year, marking a cut-off between the age of the landed gentleman and the age of the commercial speculator. So, surely, in the aftermath of this calamitous derailing (Hamilton’s bank not helping matters), the Founding Jacobins would become a matter of interest.

But with a Jacobin as outrageous as Joel Barlow, one is enough. A parochial New England man whose main reading for a long time avoided speculative political philosophy; a member and associate to the literary scene known as the “Hartford Wits,” which included the High Federalist cleric Timothy Dwight. Barlow, who served as a chaplain in the American Revolutionary War, was not immunized in any way from interacting with these circles, and would become an ultra-left pamphleteer of astonishing bravado in his assertions, and largely remain so until the end of his days.

At the age of 34, in 1788, he set sail to France, shortly after immersing himself in a fiasco as the agent of a fraudulent land company selling worthless deeds (not deliberately, but out of gross mismanagement) to French colonists for lots in what would later become Ohio.

Soon to commit more fraud in the form of his ideological screeds, he met with Jefferson, Lafayette, Volney and various Girondist deputies, traveling back and forth between France and England, also meeting up with Mary Wollstonecraft and becoming a member of the proto-Chartist Society for Constitutional Information in the latter country. On February 1792, he graced the world with the first of a two-part essay: Advice to the privileged orders, in the several states of Europe, resulting from the necessity and propriety of a general revolution in the principle of government. We need only look at the first part. It was published half a year before the establishment of the National Convention in Paris, which would later grant naturalized citizenship to Joel Barlow, one of three foreigners to receive this dignity.

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