Hegel's edition of Jean-Jacques Cart's Letters (Part One)

Jean-Jacques Cart (1748-1813)

This post is the first of three summarizing Hegel's German edition of Jean-Jacques Cart's Confidential Letters (French, 1793, German, 1798). Cart was a Swiss lawyer and political reformer and this annotated translation was Hegel's first publication.

Introduction (Stephen Cowley)

Hegel's edition of Jean-Jacques Cart's Confidential Letters (1793) sheds light on the origin of some of Hegel's historical and political ideas. The Letters apply the concepts of Montesquieu's Spirit of Laws (1748) and natural law theory to Swiss political debate in the wake of the French revolution. This is the earliest published writing now attributed to Hegel. It comprises an annotated German translation of Lettres de Jean-Jacques Cart à Bernard Demuralt, Trésorier du Pays de Vaud, sur le droit public de ce Pays, et sur les événements actuels [Letters of Jean-Jacques Cart to Bernard Dumuralt, Treasurer of the Vaud Country on the public law of this Country and on current events] (Paris: Cercle Social, 1793), with an introduction. The German translation is titled Vertrauliche Briefe [Confidential Letters] (Frankfurt, 1798) and appeared anonymously. 

Hegel's involvement and the scholarly response

The German edition of the letters was shown to be by Hegel by Hugo Falkenheim in an article in 1909. This article is reproduced in Hegel in der Schweiz (ed. Schneider & Waszek. 1997). Falkenheim stated that the work was attributed to Hegel in a list of German books by C.G. Kayser in 1834/35, which in turn cited Meusel's Gelehrtem Teutschland (1805). Meusel gives biographical information on Hegel. In addition, a section of the commentary very closely resembles a private letter of Hegel to Schelling on the politics of Berne. Hegel's involvement fits in with his presence in Berne and Frankfurt and interest in French politics. Remarks in the biographies of Rosenkranz and Haym on Hegel's studies of Swiss government and taxation make sense in the light of the claim of authorship. Hegel owned a French copy and three German copies at his death according to the posthumous sales catalogue (items 1143, 1219-21) of his books from 1832, though he did not acknowledge authorship publicly. One might wonder if Hegel were the sole translator, but his involvement seems pretty certain. In addition, he clearly absorbed the content of the letters deeply, so they are worth knowing something about.

Discussion of the book has been incorporated into Hegel scholarship since Franz Rosenzweig's Hegel und der Staat [Hegel and the State] (1920). Hoffmeister's Dokumente zu Hegels Entwicklung [Documents on Hegel's Development] (1936) reproduced Hegel's contributions and Meusel's brief account of Hegel's life. It was republished as Hegels erste Druckschrift (ed. Wolfgang Wieland. 1970) and is included in the recently completed Meiner edition of Hegel’s Werke (Band II, Text 70). A version of Hegel's introduction and notes is included in Miscellaneous Writings of G.W.F. Hegel (Ed. Stewart. Northwestern UP, 2002). Modern commentators such as Georg Lukács in The Young Hegel (1948, English, 1975), Jacques D’Hondt in Hegel Secret (1968), Walter Jaeschke in Hegel Handbuch (2010) and Rolf Hočevar refer to it.

Jean-Jacques Cart

Jean-Jacques Cart (1748-1813) was a public spirited Swiss lawyer from Morges, on the north shore of Lake Geneva in the Pays de Vaud. The Pays de Vaud is the French speaking area of Switzerland around Lausanne that was then controlled by the Bernese aristocracy. Cart studied law and then tutored in England for two years from 1766. He moved to Boston in America from 1768 until 1773 when he returned to Morges to work as a lawyer. He married Suzanne-Françoise Muret in 1775 with whom he had four children. Having fled to France in the wake of the French revolution, Cart went to the USA in 1793 in the service of the Girondins, remaining there for several years after their fall from power. He returned to Switzerland in 1798 when the Helvetic Republic was established and was involved in Swiss politics from then on. This Republic was sympathetic to the French and enjoyed some popular support, but did not last into the Restoration. It seems to have been broadly similar to the Confederation of the Rhine in western Germany. 

Cart also published Catechisme de La Constitution Helvetique [Catechism of the Swiss Constitution] (1798) and later De la Suisse avant et pendant la Révolution [Of Switzerland before and during the Revolution] (1802). He seems to have been a similar figure to the lawyer Thomas Muir in Scotland and was very active in practical politics. He died in 1813 in Lausanne. There is a monument to him in the Independence Park in Morges and a street is named after him in Lausanne. 

Bernard Demuralt

Bernard Demuralt (1737-96), the recipient of the letters, was from an aristocratic military family. He married in 1757 and served as an officer under French command during the Seven Years War and until 1772. He was a member of the Great Council of Berne from 1775 and Treasurer of the Vaud Country from 1789, where he commanded the Bernese militia from 1790-92. As a Swiss general, he was in charge of garrisons in Basel and Geneva that defended the independence of Switzerland after the outbreak of war between France and Austria in 1792. He was involved in peace negotiations with France in 1796 and died in December that year. (Source: Charles Gos, Généraux suisses, Morges, 1990).
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Further information

The Cercle Social who published the French edition were a Girondin political group associated with the magazine Minerva, which Hegel read and met a contributor to (Oelsner) in Berne in 1794. More generally, Friedrich Schiller, whom Hegel quotes at the end of the Phenomenology, wrote the play William Tell (1804) about Swiss history. Berne was also the home of Karl Ludwig von Haller, whom Hegel later criticized in the Philosophy of Right. Thus the Swiss context is significant for understanding Hegel. Whilst the ancient rights that Cart defends could themselves be oppressive, they also functioned as a legal restraint on claims of absolute right by unpopular governments. Hegel reviewed this issue in his essay on the Württemberg Constitution (1817).

The French edition is available online. The online copy is from the John Adams library in custody of Boston Public Library in the USA. Possibly this is the early US President of that name. 

I have found that Hegel’s German edition of 1798 is considerably shortened from the French original of 1793 (it is around 73% as long). In the fourth letter, the German excludes a long treatment of sovereignty in European states and adds the first significant note on two Swiss books on Swiss law and history. What is left is a much briefer account of events in Switzerland. Further material is omitted from Letter five. I mark major omissions in the text and will include the omitted passages in a separate post together with the two whole letters that are excised later on. The excisions are as significant as Hegel’s notes, as is Wieland’s comment that Hegel sometimes softens Cart’s language. The changes suggest that Hegel was trying to create a practical local reform programme in the Girondin tradition. 

There follows a summary of Cart’s first five letters, which cover the period prior to the French revolution and the arrival of the French émigrés in Berne. As we proceed, the history in the letters is increasingly accompanied by argument and general conclusions. I find the appeals to Montesquieu, natural law and English example and the references to other authors and countries interesting. There is common ground between Montesquieu's Spirit of Laws and the mature Hegel's "objective spirit", with its justification of the place of law in public life. Another interest is that the letters address particular facts and instances as well as the generalities Hegel later preferred to dwell on. 

I sometimes use “burghers” to translate “bourgeoisie”. The people referred to are described in the text as town dwellers in Berne, generally though not always well-to-do, and endowed with political privileges. The letters are addressed by Jean-Jacques Cart to Bernard Demuralt, Lord Treasurer of the Pays de Vaud [Vaud Country]. The titles of the Letters are added in Hegel’s edition. My own comments are in square brackets. The page references of direct quotations are to the French edition.

Jean-Jacques Cart
Letters to Bernard Demuralt, Treasurer of the Vaud Country
Paris: Cercle Social, 1793

Letter One – Traces of Vaud under the House of Savoy

Lyon, 20 November 1792

Cart explains to Lord Treasurer Bernard Demuralt that he is not addressing him in his official capacity, but as a man who participates in the government of his country. These are difficult times for the Pays de Vaud (Vaud Country) and Cart wishes to expound truths that may lead it back to lasting peace and happiness. [It is the immediate aftermath of the French revolution. - SC] He seeks either a response from Demuralt and at least to give him the opportunity to comment prior to publication. This letter has been preceded by a private correspondence. He wants the contract between Prince and people to be observed, not rescinded, though it is in the nature of things that such a compact may be rescinded. 

Berne has participated in the fate of Vaud Country for centuries. Yet it is not as old as towns like Nyon and Lausanne. “The inhabitants of Pays de Vaud, like the Bernese, occupy the ancient land of Helvetia [Switzerland].” (7) Both were governed by the Dukes of Zeringuen: Berthold V founded Berne, but his father Berthold IV founded towns in Vaud and restored Moudon. Cart writes: 

“This dynasty died out in 1218 with the death of Berthold V: would it be possible then that Berne, which had only existed for 27 years, were then considerable, preponderant and above all dominant? This was so little the case that it passed almost immediately under the government of the Counts of Savoy, as did the Vaud Country, and under the same condition;” (8) 

Modern Berne

This period is that of the expansion of Berne from the Great Clock to the Goliath Gate. Cart comments:

“It is true that your ancestors soon broke this link, whilst the Vaud Country retained its relations with the House of Savoy, but it preserved them without ceasing to be free, and without bearing the least taint against the constitution, certainly the best that then existed in Europe.”

The Counts of Savoy never resided in Vaud, but were represented there by a bailiff, who had to be from Vaud and a patriot. No-one from Piedmont occupied this post for the 318 years we remained under the Counts of Savoy. The bailiff remained in post for two years to prevent the post being treated as a personal empire. Hence:

“Sovereign power remained in the hands of the people and those of the Count in such a manner than one could not exercise power without the assent of the other. The people were represented by a deputation from most of the towns and communities of the province, reunited as an assembled Estate. The nobility, being in no way a particular body, had no representation, nor particular chamber; it is true that some large proprietors [...] sat in the Assembly of Estates in virtue of the right of their lands and not in virtue of their birth.” (9)

Cart cites authorities for this: Quisard’s manuscript, Ruchard’s History of the Reformation, Seigneux’s Treatise of Criminal Jurisprudence and original documents of the Counts or Dukes of Savoy. [Cart was a lawyer and well versed in this subject. – SC] The Estates made the laws, the Prince or his bailiff approved them. Charters indicate that the Prince had no right to impose fines or arbitrary exactions. In 1525, the death penalty was instituted for possession of a work by Martin Luther. Cart concludes: “Now every decree whose infraction carries the death penalty is an act that can only pertain to sovereignty.” (11) The approval of the Prince does not negate the right of the people. The Duke of Savoy could not impose taxation. Cart draws a comparison:

“These proud Englishmen who vaunt themselves so much with their Magna Carta, who believe themselves to be the chosen people from its date, were very far from the progress of our ancestors towards freedom.” (11) 

When subsidies were sent, it was by special dispensation. Cart gives several examples. In one case, this was recognized by Charles, Duke of Savoy. Cart summarizes: “Our ancestors thus did not confuse Prince with Country, his ambition with their glory, his needs with their obligations: he could wage war, but they required him to recognize that he could not do so at their expense. Our ancestors were free and they deserved to be so.” Cart goes on:

“I believe, Sir, that I have proved two essential matters: one, that the Duke of Savoy could not make laws at all, but that the right of legislation belonged to the Estates of the Province conjointly with him, the other, that he could not impose on us any tax, not even to wage war, and this says it all. I thus prove that these two essential traits of sovereignty belonged to the Vaud Country in union with the Duke of Savoy.” (15)  

Sovereignty cannot be exercised immediately, but is delegated to magistrates, or to a single leader, whom it appoints. This gives rise to a secondary authority, but one which cannot exceed the purpose of its institution. It implements sovereign authority, but does not constitute it. It extends over the administration of justice and the police, the military, alliances with foreign powers, public appointments and finances. Cart explains how this operated in Vaud. He comments:

“Men were then [in the 15th century] near enough what they always are. There were then, as today, these cowardly beings who aspire only to money and favour and who through a perfidious management of business extend as much as they can the prerogatives of the Prince at the expense of those of the people.” (17)

However, the inhabitants of Vaud enjoyed the greatest personal security and did not have to fear lasting oppression or arbitrary judgment. The King did not make law or dispose of property. Military service was limited to eight days, with limited exceptions, and the banner of the Price was followed only by Geneva, Lausanne and the Bishopric of Sion. There were no political relations between Savoy and Piedmont and Vaud. No part was taken by Vaud in the wars of the Dukes of Savoy in Italy. Some think this is inconsistent with strong government, but so it was. 

There were defensive alliances between Lutry, Lausanne, Berne, Fribourg and other towns. These were self-governing towns under a republican form, although protected by a neighbouring Prince. This operated similarly to the Hanseatic League, or to the Swiss arrangements of Zurich, Lucerne, Zug and others. Bernese writers themselves state that Berne passed under the protectorate of the Counts of Savoy following the death of the last Duke of Zeringuen. So it was with the Vaud Country. 

Cart describes the public finances of Vaud. Finances were raised to maintain public roads and otherwise for the benefit of the inhabitants. Church monies were used to maintain a local clergy of Vaud origin. Public funds were raised for distribution to the poor and to fund hospitals. A multitude of towns and villages, about two miles apart, grew up by the lakeside. Wealth increased, but the situation was not to last. 

[Hegel omits Cart’s concluding summary. – SC]

Letter Two – The Possession of Vaud by Berne and Berne’s Confirmation of its Rights
Lyon, 25 November 1792

In time, Berne succeeded the House of Savoy in its rights over the Vaud Country. We will try to avoid too much detail on this. The shameful disorders of churchmen, their consequent discredit and the wish for reformation were at work. There was mutual defence, but also recognition of feudal rights. The Swiss fought successfully against Austria. François I waged war against Savoy. 

In 1474, the French king Louis XI made a treaty with the Swiss to assist them in war, particularly against the Duke of Burgundy, for which he paid them. [For a while, the House of Burgundy rivalled France in might and ambition. This is described in Walter Scott’s novel Quentin Durward (1823). – SC] The Swiss were sought as allies by many European monarchs and even the Papacy. The Swiss had a strong massed infantry, who fought in tight formation. Cart cites Garnier’s History of France and Ruchat’s History of the Reformation. He says:

“Their alliance was also sought by Charles VIII, Louis XII, François I, Charles V [of Spain] and the Pope, seconded by Cardinal Schinner. It must be noted that they then sold themselves to who could pay best, and more than once a treasury made the pike of one brother turn against the bosom of another.” (33)

Charles V of Spain (1500-58)

The Duke of Savoy, forced to choose, sided with Charles V (of Spain) over François I (of France). Savoy was reduced to distress and the Vaud Estates refused to march against Geneva on orders from the Duke of Savoy, which was of an independent spirit at the time of the Reformation. [Geneva was the adopted town of Jean Calvin. Cart notes the use of local archives by Ruchat, whose account he relies on. – SC] The Bernese occupied the Vaud Country from January to February 1536. The Vaud Country was defenceless, no battle took place and its rights were acknowledged. In short, Cart argues, the Vaud Country preserved its constitution, which was guaranteed by the treaty of Saint-Julien whose breach had provoked the Bernese incursion. Cart summarizes: “We became subjects of the state of Berne because and in as much as it will keep us in our privileges, freedoms and customs such as we possessed under the House of Savoy.” (40) The Bernese (“our equals, our ancient Helvetian brothers”) had just fought for their own rights as Swiss against Austria. “That is our title, our principal title deed, it is in all our archives, it is printed equally in our memory and in our hearts.” (41). 

This is Cart’s starting point for his later inquiries. He seeks the good of his country, as Demuralt that of the government. There is no conflict of interest.

Letter Three – Berne takes over the Church Funds of Vaud
Lyon, 9 December 1792

[Omitted by Hegel: If wealth sometimes accompanies private virtues, it hardly ever does so with public virtues. Cart says; “The rich man finds too many means of happiness in his fortune to extend the circle beyond himself. [...] The poor man is nearer to the state of nature and thereby to that of freedom; he has little to lose and all to gain...” (43) In such a spirit many battles were fought by the Swiss. Surrounded by mountains, isolated from their neighbours, with no means of commerce, they were the poorest, but most valorous people of Europe. Over time, their character changed.]

“The battle of Morat, so glorious for the Swiss, changed the simplicity of their character through its effects. Princes then, made war like the Orientals have continued to do since; they were ordinarily accompanied by their chancellor and their treasures. [...] The gold of Austria and France spread afterwards through all the Cantons.” (45-46) 

The Swiss received money to supply troops, or not to supply them to an enemy. They became as greedy as they had been poor. The proverb “No money, no Swiss” reflected their custom. The intention is not to defame the people of that time, but to understand why the treaty that brought the Vaud Country under the government of Berne was swiftly broken. 

“The thirst for riches did not permit them [the Bernese] to be either moderate or just. They would have drawn little profit from governing the Vaud Country according to its constitution; the Baron of Vaud [a title of the Duke of Savoy], as we have seen, drew little for himself, and what was enough for the ambition of a Prince could not satisfy a town where everyone wished to be one.” (46-47)

[Omitted by Hegel: Montesquieu states that it is against the nature of a federative constitution for one confederated state to conquer another (L’Esprit des lois, book 9, chapter 6). However, there are examples of this in Swiss history.]

The troubles of the Genevans with their Bishop and the Duke of Savoy were the pretext for the Bernese incursion of 1536. The Duke however, did nothing to provoke it and the Bishop had long since taken flight. The Bernese however, claimed by right of conquest the rights of both the Bishop and the Duke. The Genevans they claimed to defend were to become their subjects. Geneva only regained its independence by a treaty involving a payment and agreement to receive a Bernese garrison. The towns of Avanches, Payerne and Lausanne were less fortunate. Lausanne wished to throw off its Bishop, but the Bernese wished to give only a fraction of its church goods back to them. Its Estates have not met since. 

The debts of the Dukes of Savoy were not those of Vaud. Those parts of Vaud that were not allied with Berne fared even worse. They were obliged to embrace the Reformation under conditions not of their choosing. 

“The true cause of the Reformation lay in the rich pickings that it promoters promised themselves. [...] Our ecclesiastical benefices were secularised to be made into aristocratic benefices. The sacred vases, the effects, the metallic saints, the precious decorations of the episcopal church and those of the monasteries were carried to Berne; and these offerings, that the piety of our ancestors had made to God, were converted into long gold chains and other worldly uses, that have long served the luxury of Bernese families. They took the place of ministers of religion.” (49-50)

The Bernese call this the "Blessed Reformation". it was a blessing for them, not for Vaud. Payments that even under Catholicism were an abuse are now made to Berne. Cart writes: “we pay today all that we paid under Catholicism, and perhaps more”. (51) Barrels of wine intended for prayers for souls in purgatory are now demanded by the Bailiff. There are Catholic countries where such abuses have been reformed; in Vaud, they continue. We pay for monasteries converted into chateaus. 

Doctors of canon law agree that ecclesiastical benefices are divided into three parts: the least is for maintenance of church ministers, the largest for relief of the poor, and the reminder for the upkeep and reconstruction of church buildings. The ministers are paid, but the poor may not receive five parts in a hundred of these funds. Church buildings are kept up by congregations. The town of Berne takes a quarter of the church funds, the lion’s share, though we are not calling their 13 bailiffs lions.

History gives two examples of a people forced to change government and religion in a year. One was the work of Mohammed (“a saint, a prophet sent by God” (55)); the other that of Berne. Mohammed was less demanding. The tyrannical Henry VIII, who killed three of his wives, did not touch the clerical hierarchy or their revenues. The monasteries were suppressed, but not in favour of the Barons. The seven provinces of Holland were most like Berne. They threw of the yoke of the House of Austria and became republics, democratic in law, aristocratic in fact. Like Berne, they confederated, adopting Calvin’s doctrine, but they have not handed church benefices over to an aristocracy. The House of Austria was not so bold. The wound inflicted in 1536 has not healed, but worsened. 

John Calvin (1509-64)

A choice of religion was made for Calvin and against the Pope in a debate in Lausanne cathedral. Cart does not dispute it. Some say, “What does it matter to you, provided it costs you nothing?”, but the cost has been great. There are 131 ministers of the Gospel in the Vaud Country, including Lausanne Academy who receive around 1,100 francs per year each. This comes to £189,100 per year. [Two different currencies are at work here. Cart does not complete the comparison. – SC] Cart says; “I will say it a hundred times: these families enjoy an income from a property as usufruct which belonged to our fathers.” (62) 

The Duke of Savoy would not have taken liberties like those of the Bernese: “When you eat your neighbour’s roast, do not at least throw the bones at his head.” The Bernese have complained about the sale of national church goods, but are guilty themselves. “However, there is a difference between a nation that sells its own goods to pay its own debts and the bourgeoisie of a town who take hold of the church goods of a whole province to gain revenues from them for a few of its families.” (63)  

The Duke of Savoy promised a payment of 60,000 ecus [a currency unit – SC] to Berne, mortgaging as security his rights in the Vaud Country. The Bernese required payment of this from our ancestors, but the debt was not ours. The Duke could mortgage his lands in Vaud, but not the country itself, which did not belong to him, To take the mortgage and require the capital is to ask too much. 

If Cart is right, he asked Demuralt’s assistance in righting the wrong. If he is not, the error is shared by most of his countrymen and they require better instruction.

Letter Four – Berne admits the Provinces and exercises legislative Power

Lyon, 18 December 1792

Deprived of our ecclesiastical property, we were to be deprived of our freedom. 

[Omitted by Hegel: Cart writes: “The free man is he who is subject only to laws and taxation to which he has consented, either individually or through his representatives.” (67) This was the original state of the Vaud Country.]

Cart rejects “this extravagant idea that one alone has the right to make the law, that some millions of men were created to submit to the will of this sole person, sometimes a woman, child or imbecile and always poorly brought up.” (67-68) He continues: 

“This idea has but rarely been adopted by peoples, it is repugnant to the dignity of man and his reason, as much as the thing itself goes against his happiness. This other idea, that the burghers of a small town has the right to exercise an absolute authority over entire provinces, to dictate laws to them and to require taxation from them, is perhaps more revolting still.” (68)

These burghers include wigmakers, butchers, shoemakers and tailors, as well as distinguished families, but as a whole they are overbearing as rulers. The ideas of empire and equality are not compatible. The same disparities in birth, education and wealth exist both in Vaud and Berne. Such disparities pale next to the splendour of a monarchy which even the greatest have to recognize and under which all careers are open to talents, virtues and ambition. The son of a labourer or artisan may become a minister of state and leave the king only the shadow of authority. 

Cart expounds a principle that he goes on to illustrate extensively: “Besides, there are few, or rather, there is no king in Europe whose authority is not so limited by constitutional laws that sovereignty is placed in the hands of the nation and that the king is left to exercise it by commission.” (69-70) This is the case in Spain, Portugal, France, Brabant, England, Bohemia, Hungary, Austria, Denmark and Sweden.

[A long section on European politics is omitted by Hegel at this point and represented only by the above brief summary. I include the omitted section in a separate post. - SC]

Cart summarizes: “I wished to prove that few or no kings in Europe had, by the constitution of the kingdoms, absolute power.” (89) The peoples have shared power with their kings. The House of Bourbon, the House of Austria and the King of Prussia have done so. 

Is it not then odious that the burghers of Berne have not only snatched the church goods of the Vaud Country, but deprived it of the right of a National Assembly? “Before 1536, it was called every year: since 1536 it has been called only once. Before this era, our ancestors recognized no laws but those they had made for themselves; and, since this era began, the Councils of the Bernese burghers have made our laws for us;” (90) They make so many it is as if they wish to savour our humiliation and their power. Some people, who do not know our history or public law, would have us believe that we have a solid and harmonious political machine. In fact, the Chancellery cannot provide copies of its own ordinances, even recent ones. The same law is issued several times, sometimes in conflicting versions. 

The Sovereign Council of the Bernese burghers has 27 departments. Vaud no longer distinguishes the orders of the Two Hundred from those of the least of these departments: they all come from Berne. They are read, but often no attention is paid. There is a law on when potatoes can be eaten. The French cannot believe it. It is not that there is no reason in terms of economy or health. Formerly a book against our established faith could not be banned without our consent. Now there are laws on dancing, on playing bowls, on fly fishing. There was never consent for such an abandonment of sovereignty. Four towns retained some representation, but the Bernese abolished even this in the current century. 

One observation may be made. The seizure of the church goods inevitably led to the political oppression, for without it there would have been effective pressure to return them. The first step led to the later ones. Cart will develop this point in further letters. A state of justice must be restored and it is practical to do so. [Hegel adds the first of his notes at this point. This relating of religious, economic and political factors is noteworthy for Hegel’s later view of history. – SC]

Letter Five – The Case of Morges and the Right of Taxation
Lyon, 25 December 1792

Montesquieu says: “If the executive power rules on the raising of public money, other than by the consent of the people, there is no freedom.” (L’Esprit des lois, I, 267). Our experience in Vaud has taught us the same lesson. Despite the frequent statements of the Duke of Savoy, the constitutional contract of 1536 and ancestral vows, we have lost everything. The loss of church goods was followed by loss of local Assemblies of Estates. The right of making our own laws and the advantage of knowing by ourselves our public needs and of determining the means of providing for them have been lost. “In a word, the Councils of the Bernese burghers claim a right no European potentate did, or does, claim: that of setting taxes for us at will.” (98)

Montesquieu (1689-1755)

The Bernese burghers required payment from Vaud of 60,000 ecus [local currency unit] owed to them as a mortgage by the Duke of Savoy. It was promised that this would not be required as taxation and this promise was reiterated by a governmental decree in 1676. This applies to direct taxation, but Vaud is weighed down by indirect taxation. “I will limit myself to demonstrating that one cannot tax our properties and persons without committing a new infraction of our immunities.” (98-99)

The state of Berne wanted roads repaired and required contributions towards this in an irregular way. Related compensation was also irregular. Work proceeded slowly. The turn of the bailiwick of Morges came in 1781. The government required a register of properties and values from the communes of Morges. [Morges was Cart’s home town. He explains that he uses singular terms to reflect how the Bernese authorities are seen in Vaud. - SC] In April 1782, it used this to impose a tax on its own authority. The duration of frequency of payments was not fixed. Nothing was done by the Bailiff, as is usual in such cases, to sugar the pill. The town of Morges resisted this innovation and associated threats. It sent two deputies to Berne to explain the public law involved. Under an arrangement (titre) of 1430, tolls were paid to the former barons in exchange for road maintenance and to ensure the safety of travelers. This arrangement was recognized by Berne in 1575. The response: “Pay, and give us your reasons later.” 

The law tells us that no possessor can be dispossessed without justification and a hearing. Cart comments: “I do not know what happens in a state of nature, it is too far from us, but I know that savage peoples, those at least who have reached the first level of sociability, follow this law by a kind of instinct, respecting it by respecting the right of first occupation.” (102-03)

The deputies were sent back to Berne to demand justice. They did not receive it. Eight years went by, 9,894 florins were paid as an advance by the town and the road was finished before a hearing was held. The Bernese Senate issued a decree in February 1790 deferring judgment. Then the Councils of Morges issued a statement reasserting their rights. Public attention was elsewhere at this time. Cart argues that Berne must judge according to the law, not make the law. He who makes a legal demand thereby becomes an actor and must make this demand before a judge at the location of his adversary. Cart has pleaded many such causes between towns. The same procedure should apply in this case, he thinks. Instead, the Bernese Senate charged its Lord Treasurers to give the Morges deputies an audience. This reverses the proper legal order. Morges and Berne should be tried before a neutral jury. Berne is judge in its own case. 

“Allow me, Sir, to make one further observation. You will see here how, in your government all principles are at times overthrown, how authority vaunts itself and takes in the interim a character of absolute sovereignty under which one no longer knows where one is.” (12) Let us set aside the constitution and suppose that Berne is sovereign, that it has delegated its sovereignty to the Council of 200. The Senate has made exceptions to the law and hence taken a higher place than the Council.  “I believed that the government, vested with so many powers, had to set them aside in its own cause and recognize that it is subject to the law., like the least of its subjects” (113) The father of a family or a community is already weaker than a Prince, without having to recognize his judge in his own case.

Modern Morges

The treatment of the magistrates from Morges made the blood boil. They were told by a former Bailiff that in former times their heads would have been chopped off if they questioned the Great Council’s right to raise taxes. This logic was set against natural and public law and respected charters. There was public interest in the Vaud towns, which looked out their own old charters. This resurgence of public spirit was feared: 3,000 bayonets, 60 pieces of cannon and commissioners were sent. If this is the art of governing, Cart would retire to the forests. He will pass over the doleful days that followed. As St Bartholomew's day [i.e the anti-Huguenot violence of French Catholics in 1572] was more remembered than feared at the time, so may it be with 2 September that year. 

Justice can do nothing against brute force, but as reason overwhelmed reasserts its empire, Cart will prove again that Berne has no rights to impose taxes. “The prerogative of the citizen is civil liberty. It consists, for each of us, in security of the person and in that of property; from which it follows that no-one has the power to dispose of it but the proprietor himself. All laws to the contrary are no longer laws, but an exercise of force.” (116) No individual can ensure these rights save by surrendering them in part to the society in which he lives. If rulers recognized this and treated those they rule as a society rather than a herd, many problems would not arise. Society offers advantages and has needs, but these needs are best known to the society itself. It balances its needs against its means. If a weight is heavy and yet constraint is used, it is the constraint that draws attention. Cart says:

“It is a very great error to measure the worth of a government by the greater or lesser taxes that are paid to it. In that case, that of England would be the worst of all, for nowhere else does one pay so many taxes. However, there is no people in Europe that enjoys more [good] fortune, apparent prosperity and as much individual and national consideration. The Englishman is a man, for one is only a man in so far as one is free; that is, as far as he enjoys the rights inherent in this quality; that is, in a word, as he taxes himself.” (118)

As for us, if today we are taxed for roads, tomorrow it will be for repairing a castle, casting cannons, making war, increasing the public treasury, pensions for church ministers and maybe for bailiffs. As in other affairs, it’s the first step that counts. “It is thus evident, according to the principles of common law, supporting our own security, that the Bernese burghers, who can tax themselves, cannot tax the inhabitants of the Vaud Country.” (118-19) Only a people gone mad would concede such a right beyond their bounds to the Bernese Grand Council. Such a concession could no bound posterity and was never made. In fact, the contrary was asserted in the contract of 1536 that submitted Vaud as a province to the government of Berne, with the essential condition of maintaining us in our privileges, freedoms and immunities as they were under the House of Savoy. The highest fine was five florins. When subsidies were given, it was recognized to be by the grace and good will of the inhabitants. When Moudon was the only bailiwick of Vaud, they were deemed exempt from deductions. Even in time of war, a subsidy was asked for and granted. 

Cart reiterates the limited rights of the Duke of Savoy, Baron of Vaud that were transferred to Berne. Only in a state of need and with the consent of the Vaud Country can taxes be imposed. No taxes can be raised for needs beyond our province, including those of Berne and the German Country. The riches of the Bernese treasury have been well managed, but they came originally from the church goods of Vaud. The Bernese speak casually of Vaud as their property; public funds should not be considered the private property of the ruling burghers. 

It is said that the Bernese have bought lands in Vaud. This is true, but not with their own wealth, rather with money from Vaud itself. The treasury of Berne does not belong to Berne alone. Misunderstandings arise by dint of confounding the Bernese burghers with the government and the government with the state. When in times of dearth, wheat is bought at a high price and sold at a low price, the treasury loses money. This is not a gift of the burghers, but a proper use of the common funds. This treasury has many loans, assets and sources of revenue; its total accrued wealth is unknown. These founds could be used to construct public roads without recourse to taxation. 

It seems that Berne has required only two fifths of the funds required for rebuilding roads, but we do not know how this proportion was arrived at. There is no rule to appeal to. Is it arbitrary? Cart confesses that the more he writes, the more considerations occur to him.   

Continued.