Chapter I: Part 1

THE FIRST FRENCH REPUBLIC

THE FIRST FRENCH REPUBLIC:
A STUDY OF THE ORIGIN AND THE CONTENTS OF THE DECLARATION
OF THE RIGHTS OF MAN, OF THE CONSTITUTION, AND OF
THE ADOPTION OF THE REPUBLICAN FORM OF
GOVERNMENT IN 1792.

BY
HORACE MANN CONAWAY,
_Sometime Fellow in European History in Columbia University_.

SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS
FOR THE DEGREE OF DOCTOR OF PHILOSOPHY
IN THE
FACULTY OF POLITICAL SCIENCE
COLUMBIA UNIVERSITY.

New York.
1902.

PREFACE.

The present study is one of origins. Our object is to trace from the beginning the gradual development of the Declaration of the Rights of Man, of the first written constitution in France, and to follow the movement which led to the abolition of monarchy and to the adoption of the republican form of government. In view of the complex phenomena of the French Revolutionary period, it is advantageous to our understanding of that surpassingly interesting era to view the various classes of facts from different standpoints. The Revolution was social, religious, political, and economic. While the study of any one of these phases necessarily involves the others, the best results will be secured by considering the movement now as social, now as religious, now as political, and now as economic. This paper is an investigation of the early Revolution from the political point of view. Whence arose in the minds of the French the idea of a Declaration of the Rights of Man? Where did they derive the principles therein contained? How were they led to feel the need of a written constitution? Through what series of events were they brought to suspect, to denounce and to renounce royalty, and to accept the idea of an elective executive? Such questions as these are of interest to the student of political history.

Though the primary sources for the investigation of this subject are limited in our American libraries, enough has been found to lead to an interpretation suggestive and, we believe, correct.

Recently two important books upon the French Revolution have appeared. M. A. Aulard published last year his _Histoire politique de la Révolution française_. In this work he has reexamined, in the light of the voluminous material at hand in France, these same questions. Prof. William M. Sloane, of Columbia University, has treated the Revolution primarily in its ecclesiastical aspects in his _French Revolution and Religious Reform_. The manuscript of this thesis was practically completed before either of these works came into the writer’s hands. It did not seem advisable, therefore, to make any modifications in the conclusions herein reached; they are, however, in the main in accord with those arrived at by these two authors. The Declaration of the Rights of Man and the origin of the idea of a written constitution are here more fully discussed than by these writers.

H. M. C.

SHEFFIELD, PA., _August 5, 1902_.

THE DECLARATION OF THE RIGHTS OF MAN.

The first question that naturally suggests itself in studying the Declaration of the Rights of Man is, whence did the French derive the idea of such an instrument? It has been asserted, and an attempt has been made to prove, that both the notion of such a Declaration and its content were borrowed from the early American State Constitutions.[1] This question, however, really resolves itself into a double inquiry, _i. e._, whence did the French receive their notion of the guaranty of individual rights against governmental intrusion, and how far did the ideas contained in the Declaration of the Rights of Man represent the political traditions and current thought of France? Only a study of the abuses and of the political theories of pre-revolutionary France and of the facts relative to this document, as they are revealed in the writings of contemporaries and in the records of the Constituent Assembly, can at all satisfactorily answer these inquiries.

The sympathetic relation between France and the colonies during and after the American Revolution, the interest in America of some of the more radical French political theorists, such as Mably and Condorcet, and the community of ideas existing between the two countries, shown by the Jeffersonian school in America, and by the publication of American writings in France, are facts well known. Hence it may be inferred that, when a few of the cahiers asked for a Declaration, their framers were acquainted with and influenced by the American Bills of Rights.[2] But not until the States General had assumed the rôle of a Constitutional Convention were the proposals of Declarations numerous. Then it was that the Frenchmen gave abundant proof of their fondness for formulating political documents.

On July 9, 1789, M. Mounier, who had been charged by the Constituent Assembly with the preparation of a scheme for a constitution, presented a report in behalf of the committee, the first article of which reads: “Tout gouvernement doit avoir pour unique but le maintien des droits des hommes; d’où il suit que pour rappeller constamment le gouvernement au but proposé, la constitution doit commencer par la déclaration des droits naturels et imprescriptibles de l’homme.”[3] July 11, Lafayette proposed the form of a Declaration of Rights, containing twelve articles, and pointed out the advantages of such an instrument.[4] M. Lally Tollendal approved this project, but argued that it was dangerous to adopt any such articles separate from the Constitution; he at the same time called the attention of the Assembly to the great difference between a new-born colonial people, who were breaking with a distant government, and an old nation extending over an immense territory, one of the first nations of the world, which for eight centuries had obeyed the same dynasty and had cherished the royal power when it had been tempered by custom. This nation, he said, will idolize this power when it shall be regulated by laws.[5] M. Lally Tollendal certainly believed that they were following the American example.

July 14, Lafayette’s motion was discussed. Some thought the Declaration should be put at the head of the Constitution, in order permanently to secure the rights of man before establishing those of society; others thought it should be placed after the Constitution. It was decided at this session that the Constitution should contain a Declaration, but its position was left for later decision.[6] Siéyès read his exposition of the Rights of Man, on July 10, to the Constitutional Committee, and on July 21, to the Assembly.[7] On July 17, M. Target presented a scheme of thirty-one articles for a Declaration, and M. Mounier one of sixteen articles.[8] On July 31, M. D. Servan, advocate to the Parlement of Grenoble, presented a project of thirteen articles. August 1, a long debate occurred upon the position to be given to the Declaration in the Constitution. M. Thouret also offered a scheme for a Declaration. The debate continued. On August 4, M. Camus proposed that the Assembly make a declaration of the rights and duties of man and of a citizen; but this motion was defeated by a vote of 570 to 433.[9] However, at the same session, it was decided almost unanimously that the Constitution should be preceded by the Declaration. On August 12, Abbé Siéyès offered a project of a Declaration of forty-two articles.[9]

During discussion in the Assembly, August 1, M. Champion de Cicé, Bishop of Auxerre, opposed a declaration as useless at that time, and said that the example of North America was not conclusive, as that country only contains proprietors, cultivators, and citizens all on the same social footing. M. De la Luzerne, Bishop of Langres, also asserted that the Constitution of an empire did not need a Declaration. M. Malouet, in making strong protest against their placing the Declaration at the head of the Constitution, portrayed the contrast between the situation of France and that of America.[10] M. Delandine spoke in agreement with M. Malouet.

On August 12, two projects for a Declaration of Rights were offered to the Assembly: one of seventy-one articles, by Gonges-Carton of Quercy, and one of twenty-four articles, by the Sixth Bureau of the Assembly. On August 13, a committee of five, consisting of Desmeuniers, Bishop of Langres, M. Tronchet, Count Mirabeau and M. Rhédon, was chosen to receive the drafts of a Constitution and to recast these into one form.[11] August 14, Mirabeau, on behalf of the committee, reported a scheme of a Declaration containing nineteen articles. In speaking of the aim of the committee, he said, that from the score of plans offered them, they had sought, like the Americans, to construct a Declaration not of abstract and scientific principles, but one of political truths that would readily be comprehended by the popular mind.[12] In the debate of August 18 upon the Declaration, M. Rabaud de Saint Étienne said that the Declaration of Rights had been adopted because the _cahiers_ had asked it, and that the _cahiers_ had asked it because the Americans had set the example, but that this was no reason why the Declarations should be similar, for the circumstances of the two nations were different.[13]

August 19, the Assembly decided to discuss first the Declaration of the Sixth Bureau.[14] On August 21, after some debate, the Assembly adopted the preamble of the plan, somewhat modified, presented by the committee of five. M. Mounier then proposed three articles, which were adopted. August 21, on the proposal of M. Alexander de Lameth, articles four, five, and six, after discussion, were adopted.

August 21, M. de Boislander proposed a plan of seventy-four articles. August 22, after divers proposals had been made and discussed, articles seven, eight, and nine were adopted.[15] August 23, after many proposals and lengthy debate, article ten was agreed upon. August 24, a liberal discussion of the phraseology resulted in the adoption of articles eleven, twelve, and thirteen.[16] August 26, after some discussion, articles fourteen and fifteen were accepted; later in the same day, articles sixteen and seventeen were agreed upon.[17] Then the Assembly resolved that the consideration of further articles should be postponed until the Constitution should be completed.[18] October 2, the articles previously adopted were presented to the Assembly, with article four changed from “La liberté consiste à faire tout ce qui ne nuit pas à autrui,” to “La liberté consiste à pouvoir faire tout” etc. The change was accepted. The whole Constitution was presented to the king September 13, 1791, and accepted by him. In the Assembly, September 14, the king swore to obey the constitution.[19]

These are the facts of historical data relating to the formation of the Declaration of the Rights of Man purposely set forth in detail and in chronological order. What conclusions may we draw from them? The frequent reference to the American Bill of Rights, the number of Declarations proposed in _cahiers_ and before the Assembly, differing in form and in length, but agreeing in fundamental principles, the discussions, the selections and the modifications to which this raw material was subjected in the process of constructing the Declaration finally adopted, warrant these two inferences: (1) the notion of a Declaration of Rights, separate from the Constitution proper, was suggested to the French by the American State Constitutions; (2) the contents of the articles and the language in which they were couched were original.

A study of the separate articles of the Declaration in the light of contemporary conditions gives additional reason for thinking that the ideas therein contained were not foreign to France. For convenience of consideration in the present study, the articles of the Declaration may be divided into two classes: the first class consists of those articles that were in the main reactive against certain abuses under which the French suffered; the second class comprises those articles which contained principles more especially theoretical. Less proof, perhaps, is necessary for deciding upon the originality of the former class than upon that of the latter. We shall treat these classes in the order named.

“Art. 7. No person shall be accused, arrested or imprisoned except in the cases and according to the forms prescribed by law. Any one soliciting, transmitting, executing, or causing to be executed any arbitrary order shall be punished. But any citizen summoned or arrested in virtue of the law shall submit without delay, as resistance constitutes an offense.

“Art. 8. The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law, passed and promulgated before the commission of the offence.

“Art. 9. As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all severity not essential to the securing of the prisoner’s person shall be severely repressed by law.”

That these three articles were aimed at no imaginary or very distant wrongs is evident from a cursory survey of the administration of the laws of France, and from the protests of French authors. _Lettres de cachet_, arbitrary imprisonments, retroactive laws, and cruelly exaggerated penalties were not uncommon. Mirabeau and Voltaire had both suffered under arbitrary laws and had painted the injustice of such laws in lurid colors. Mirabeau’s _Lettres de cachet_ and his _Essai sur le despotisme_ bristle with protests against the abuses of the old _régime_. The following gruesome picture is a suggestive statement of the way in which justice was administered in France in the eighteenth century:

“The disproportion of crimes and of penalties was flagrant. A house thief was hung in 1733; an ecclesiastic, guilty of having found fault with the expulsion of the Jesuits, was also hung in 1762. The procedure was unjust and inhuman. The accused, assumed to be guilty in advance, ignorant of the crime with which he was charged, without counsellor or advocate, interrogated _à huis clos_, submitted to the preparatory question, was judged secretly. Once condemned, he was tortured before undergoing his punishment. And what punishment! For imprisonment, transportation or hanging was in vogue. The burning at the stake had fallen into desuetude, but the lash, branding with red-hot iron, the galleys, quartering, the rack, still did their savage work.”[20]

Protests against these enormities were raised by the philosophers, and later by enlightened magistrates, such as Montesquieu, Servan, Linguet, and Malesherbes. In 1780, the “preparatory question” was abolished.[21]

Mirabeau, in denouncing retroactive laws, says: “Nulle puissance humaine, ni surhumaine ne peut justifier l’effet rétroactif d’aucune loi.”[22]

“Art. 10. No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.”

Since the sixteenth century, France had been wrestling with the problem of how to adjust two hostile faiths to each other. Farther to complicate the matter, a schism occurred in the seventeenth century within the Catholic Church, which aroused between Jesuits and the Jansenists a feeling of intolerance, well-nigh as violent and determined as that which already existed between the Catholics and the Huguenots. Even in the eighteenth century intolerance, held in partial abeyance, frequently broke out in overt acts, which displayed the vindictiveness of the hostile parties. The philosophers, more interested in humanity than in the prejudices of any faction, championed in the name of tolerance the party persecuted. The new spirit gained support. The writings of the latter half of the eighteenth century abound with denunciations of intolerance and with pleas for tolerance.[23] By and by the movement was fruitful, and on January 19, 1788, the _Parlement_ of Paris registered a decree giving civil rights to Protestants.[24]

“Art. 11. The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for the abuse of this freedom as shall be defined by law.”

Here too is an attempt to secure permanently that for which a long struggle had taken place. Two powers, the Church and Royalty, had labored, now singly and now together, to regulate the expression of ideas. The writing and the writer had been equally the object of royal inclemency—the one being consigned to the flames, the other to prison. But in spite of royal decrees, public sentiment gravitated towards liberty of expression. In 1776, Malesherbes secured the opening of the prisons of Vincennes and the Bastille for the release of prisoners held under _Lettres de cachet_.[25] Again, in 1784, in response to Mirabeau’s “_Lettres de cachet_,” the dungeons of Vincennes were opened.[26]

“Art. 12. The security of the rights of man and of the citizen requires a public _force_. This _force_ is, therefore, established for the good of all and not for the personal advantage of those to whom it shall be entrusted.”

This twelfth article was at the same time the expression of a political theory and reactionary against past practices. It was the theory of the framers of the Declaration of the Rights of Man that the nation was supreme, the monarch only an hereditary administrative agent. To maintain this status, the power of military force must be employed only for the advantage of the nation. d’Argenson, in 1754, had complained that “Le roi n’emploie plus ses forces que contre ses sujets.”[27] In 1771, when the obstinate _parlement_ had been replaced by the _Grand Conseil_, troops were used to guard this substitute which was designated “Maupeou’s parlement,” and the people considered the whole procedure as contrary to the French Constitution.[28] Mirabeau had also denounced the royal army in these plain words: “Je dis que les troupes réglées sont l’instrument du despotisme, comme leur institution en fut le signal. L’exemple de nos voisins n’est pas une preuve contradictoire; et ne voit on pas en effet que toute constitution en Europe est dégénérée en arbitraire et s’accélère vers le despotisme; Les troupes réglées ont été et seront toujours le fléau de la liberté; mais ce fléau est intolérable quand il devient le rempart des déprédations.”[29]

The people in several of the _cahiers_ manifested fear lest the monarch might endanger, by the use of an army, the national rights, and consequently asked for the dismissal of foreign troops, for a new constitution for the army, and for the destruction of internal forts.[30]

“Art. 13. A common contribution is essential for the maintenance of the public forces and for the cost of administration. This should be equitably distributed among all the citizens in proportion to their means.”

The inequality of taxes was, in France, an abuse recognized and condemned for centuries. Bodin, in his _République_, written in the sixteenth century, criticised the exemption of the clergy and of the nobility.[31] Already under Louis XIII., throughout two-thirds of France, where the _taille_ was a personal tax, 2,000,000 of richer persons were exempt from the _taille_, while 8,000,000 were taxable. D’Avenel says that the workmen paid under Louis XIII. four and a half times as much as to-day, though they earned much less.[32] The grievous exemptions continued so that the Third Estate during the eighteenth century supported the chief burden of royal taxes and was subjected to onerous feudal dues besides.[33]

The Physiocrats advocated as a remedy for this injustice a system which should make the taxes proportionate to each one’s productive riches. Turgot, taking the first step towards the realization of this idea, said, in defense of his proposal for the abolition of _corvées_, February, 1776: “The expenses of government having for their object the interest of all, all should contribute to them; and the more one enjoys the advantages of society, the more one should regard himself honored in sharing the expenses.[34] But his efforts were vain; for the privileged classes esteemed their exemptions too highly to submit tamely to a burdensome reform; hence they stubbornly persisted in their resistance to innovations in the customary methods of collecting taxes. Nevertheless there was a growing sentiment in favor of reform;[35] so that when the _cahiers_ of 1789 were prepared, the majority of those of the higher orders acceded to an equal partition in the burdens of the fisc.[36]

“Art. 14. All the citizens have a right to decide, either personally or by their representatives, upon the necessity of the public contribution; to grant this freely; to know to what uses it is put, and to fix the proportion, the mode of assessment and of collection, and the duration of the taxes.”

The French monarch, as in other European countries, from the time that the royal domains were found insufficient to meet the governmental expenses, was engaged in a continual struggle with the nation over the right to grant subsidies. The nation asserted only sporadically and incoherently its right to vote these supplies. For the French did not manifest that persistent and determined resistance to appropriations, unrequited by redress of political grievances, which their English neighbors exhibited so often and in such a marked degree. Nevertheless, during a minority or under a weak monarch, when able popular leaders flourished, the cause of the people was more stubbornly maintained. The States General claimed this guardianship in earlier days; but in the two centuries previous to the Revolution it was the _Parlement_ of Paris that contended with increasing vigor and obstinacy against the arbitrary exactions of the king. As a final resort, it asserted, July 30, 1787, that “le principe constitutionnel de la monarchie française était que les impôts fussent consentis par ceux qui devraient les supporter.”[37] The continued and inextricable confusion of finances was the immediate cause of the calling of the Notables, and later of the States General. So far had the public sentiment reacted against the actual fiscal mismanagement, that the _cashier_ were well-nigh unanimous in seeking for the nation the right to grant subsidies.[38]

“Art. 15. Society has a right to require of every public agent an account of his administration.”

Article 15 was both theoretical and reactionary against actual abuses. If the nation was to be supreme over all of its agents, it could only hope effectually to maintain that superiority by holding all its functionaries strictly accountable. Practical experience under the monarchy in the collection and the expenditure of finances had impressed an effective lesson upon the French people of the abuses incident to irresponsible officers. The _Cour des Aides_, in its noteworthy remonstrance of 1775, reviewed the status of the financial administration. The injustice of the _ferme_, the arbitrariness of the bureaucracy, the complexity of the system, the failure of popular petitions to reach the throne, and the need of thorough reform, were clearly set forth.[39] Then, too, Necker, by the publication of his _Compte rendu_ (1781) and _L’Administration des finances_ (1785), had afforded the nation a glimpse of public finances imperfect, yet in the highest degree stimulating to its curiosity.[40] As an illustration of the status of public opinion, the Notables in 1787 demanded that some report of receipts and expenses should be published annually, and that capable men, foreign to the administration, should be called to the _conseil des finances_ for reviewing the work.[41] Here, too, the _cahiers_ were practically a unit in their demands.

“Art. 17. Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified.”

Private property under the _ancien régime_ was not sacred. De Tocqueville cites the following, which may serve us for illustration of the condition: “A royal declaration was made, suspending in time of war repayment of all loans contracted by towns, villages, colleges, communities, hospitals, charitable houses, trade corporations and others, repayable out of town dues by us conceded, though the instrument securing the said loans stipulates for the payment of interest in the case of non-payment at the stipulated time. Thus not only is the obligation of repayment at the stipulated terms suspended, but the security itself is impaired.”[42] This article, seventeenth, was also reactive against the grievous and burdensome _corvées_, military convoys, and forced transportation of convicts.[43]

The remaining seven articles are more theoretical, covering the doctrines of liberty, equality, natural and inalienable rights, national sovereignty, the social contract and the separation of powers. The views expressed were, in the main, accepted at least in theory in the American States. France was not, however, indebted to the colonies for them; although their germinal ideas had been introduced from the teachings of foreign writers, notably from the English, they had grown up in France largely as a home product.

The doctrine of national or popular sovereignty was no new conception for the French nation. It had been appealed to by the Church to check the secular power, and by the Empire to check ecclesiastical encroachments. Thomas Aquinas, the oracle of the Church, had recognized the popular will as a limitation upon the royal power, and had commended the elective form of monarchy.[44] Marsilio of Padua, in his _Defensor Pacis_, was even more pronounced in favor of popular sovereignty. “The sovereignty of the State,” he said, “rests with the people; by it properly are the laws made and to it they owe their validity. From the nation itself proceeds all rights and powers, it is the authoritative lawgiver among men.”[45] In the sixteenth century the Calvinists and the League alternately made use of the theory of popular sovereignty.[46] This theory was revived in the eighteenth century and popularized by Rousseau and his disciples.

The doctrine of natural rights has not so remote an origin for France. De Tocqueville rightly pointed out the distinction between liberty, regarded as “the enjoyment of a privilege” and liberty considered as “the exercise of a universal right”; he also showed that the Romans and the feudal aristocracy figured their liberties to themselves under the former type; and that it was not till the eighteenth century that the French nation began to conceive of liberty as a natural right.[47]

This transformation of the theory of liberty from a privilege to a natural right was chiefly accomplished after 1734. Boulainvilliers, in _L’Histoire de l’ancien gouvernement de la France_, published (1727) in Holland after his death, asserted as its fundamental thought: “Le gouvernement féodal est le chef d’oeuvre de l’ésprit humain.” To the author, all progress of royal, civil, or municipal authority is an usurpation of the rights of the nobility, who were the only heirs of the early Franks, conquerors of the Gauls.[48] This champion of the feudal aristocracy was not answered in the name of democracy, but of privileged rights. Abbé Dubois, the secretary of the French Academy, replied in “the name of Roman Gaul, semi-municipal and semi-monarchical.” This reply, entitled, “_Histoire critique de l’établissement de la monarchie française_” (1734), denied the Frankish conquest and asserted that the French monarchy had succeeded in a peaceable way to the rights of the Roman Empire over the Gauls, and that the feudal system had been established by usurpation several centuries later. Public opinion and the judgment of the _savants_, says Martin, pronounced in favor of Dubois.[49]

Saint Pierre, d’Argenson, and Montesquieu contributed to the political literature of the century, but did not formulate a new theory of rights. The Physiocrats applied the natural law to economic problems, but not specifically to political questions; this was reserved for Rousseau. In the Genevan philosopher’s writings, natural rights and kindred democratic ideas were treated in such a popular style that they were able to revolutionize the French political theories in a generation.

A critical student cannot attribute complete originality to Rousseau; the similarity of his views to those of Locke is too striking. He borrowed from his English predecessor psychological, philosophical and political conceptions.[50] The _Contrat Social_ (1762), however, according with the nascent political _Zeit-Geist_ of France, found conditions favorable to the ready acceptance of its ideas. The philosophers had shaken the authority of dogma, humanitarian views were gaining prominence, men were tired of arbitrary imprisonments and of useless privileges, moreover, the long struggle between the monarch and the _parlements_ was still unsettled, the theory of the right of _parlement_ to refuse to record decrees was found to need a firmer basis than custom. The sympathies of even the nobles were awakened in behalf of the peasants and the curates. The Physiocrats hoped for tax reform, to be effected by a strong sovereign, though, when attempted by Turgot, it had failed. Amid such conditions the _Contrat Social_ was being read. Its striking, stimulating apothegms furnished apt quotations. Its effect was revolutionary. Even philosophers and magistrates were not insensible to its stimulus.[51] When the nation was called to speak, on the eve of the Estates General, in pamphlets and in _cahiers_, the influence of Rousseau was patent. The speeches made in the National Assembly were constantly interlarded with quotations and ideas from _Contrat Social_.[52]

After this general introduction to the political theories of the Revolution, we are ready to examine the remaining articles of the Declaration of the Rights of Man. We shall place in parallel with these some quotations from the _Contrat Social_ that will serve to indicate the similarity of their ideas.

“1. Men are born and remain | “It is agreed that anything of
free and equal in rights. Social | power or property or liberty
distinctions may only be founded | which is alienated by the social
upon the general good.” | compact, is only a part of all
| the use of which is of importance
| to the community.”[53]
|
“2. The aim of all political | “To find a form of association
associations is the preservation | which shall defend and protect
of the national and imprescriptible | with the public force the person
rights of man. These rights are | and property of each associate,
liberty, property, security, and | and by means of which each,
resistance of oppression.” | uniting with all, shall obey
| however only himself, and remain
| as free as before; such is the
| fundamental problem of which the
| _Social Contract_ gives the
| solution.”[54]
|
“3. The principle [principe] of all | “I say then that the sovereignty,
sovereignty resides essentially in | being only the exercise of the
the nation. No body nor individual | general will, can never alienate
may exercise any authority which | itself, and that the sovereign,
does not proceed directly from the | who is not a collective being,
nation.” | can be represented only by
| himself; power can transmit
| itself, but not will.”[55]
|
“4. Liberty consists in being able | “Any service that a citizen can
to do everything which injures no | render the State is due from him
one else; hence the exercise of the | whenever the sovereign demands it;
natural rights of each man has no | but the sovereign, for his part,
limits except those which assure to | cannot place any burden upon his
the other member of the society the | subjects which will not be useful
enjoyment of the same rights. These | to the community; he can not even
limits can only be determined by | desire to do so, for, under the
law.” | law of reason as under the law of
| nature, there is nothing done
| without a purpose.”[56]
|
“5. Law can only prohibit such | “When I say that the object of
actions as are hurtful to society. | laws is always general, I mean
Nothing may be prevented which is | that the law considers subjects
not forbidden by law, and no one | in a body, and actions as
may be forced to do anything not | abstract; a man is never
provided for by law.” | considered as an individual
| nor an action as an individual
| action.”[57]
|
“6. Law is the expression of the | “By whatever path we return to
general will. Every citizen has a | the principle, we always reach
right to participate personally | the same conclusion; that the
or through his representatives in | social compact establishes
its formation. It must be the same | among citizens such an equality
for all, whether it protects or | that they all engage under the
punishes. All citizens, being | same conditions, and should
equal in the eyes of the law, are | enjoy the same rights. Thus by
equally eligible to all dignities | the nature of the agreement,
and to all public positions and | an act of sovereignty, that is,
occupations, according to their | any authentic act of the general
abilities and without distinction | will, obliges or favors equally
except that of their virtues and | all citizens; so that the
talents.” | sovereign knows only the body of
| the nation and distinguishes no
| one of those composing it.”[58]

The Physiocrats also had, in a measure, advocated these principles. Both Quesnay and Turgot expressed themselves unequivocally for the protection of private property.[59] Let it be asserted with the strongest emphasis that these six articles were not merely the expression of theories. They had an intensely practical genesis, for they were the slowly-matured product of a reaction against a long-felt vexatious regime. That regime had interfered with private property and with individual action in such ways as to be grievous, yes, intensely grievous to the people.

“Art. 16. A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.”

The theory of the separation of powers was one idea taught by Montesquieu[60] that had been gradually accepted by his countrymen. He was studied by the would-be-publicists of the Revolutionary era, and much stress was put upon this constitutional principle. The Constitution which they formed is the best example of the thorough application of this impracticable doctrine.[61]

In this discussion we have shown that while the suggestion of a Declaration of Rights came from the early American State Constitutions, its content was French. Its internal resemblance to the American instruments is attributable to the fact that the abuses to be feared and the recognized political theories were the same in both countries. In truth, France had greater reason to apprehend the return of the long-endured abuses, from which she was even then endeavoring to extricate herself, than had America. Likewise the fact that each country had derived its democratic views from a common source—the teachings of the English Puritans—largely explains the identity of the existing political theories.

CONSTITUTION.

The States-General which met at Versailles, May 5, 1789, assumed in the following June the name of National Assembly, and undertook the formulation of a written constitution. According to the current views, this epochal transformation was either a political freak of an old monarchy, newly leavened with democratic ideas, or a manifestation of the rare phenomenon of a nation’s being carried sympathetically in the wake of a distant and new-born republic. But a careful consideration of the events, institutions, and conditions of France previous to the action of the National Assembly proves conclusively that the traditional interpretations are not correct.

It is foreign to the province of the present paper to explore minutely the shadowy historical region, whence arose the political institutions of monarchical France, or to analyze exhaustively those institutions themselves. It is sufficient to note that already at the beginning of the XVII. century there had developed certain institutions with a normal mode of procedure, that may justly be called a constitution, not embraced in written documents, but one implied in the institutions and usages. The leading features of that constituted government were four: the King, the States-General, the _Conseil d’État_ and the _Parlements_.

The king was not only the executive, but the initiator of laws, and the source of justice.

The States-General, judged by precedents, was an advisory body to the king, about which there existed much uncertainty as to its composition, its powers and its period of assembling. It was dependent upon the monarch for convocation, and for the promulgation of the results of its deliberations.[62]

The _Conseil d’État_, composed of the nobility, was, in a narrower sense, the permanent advisory council of the king. In this body the laws originated, and under its supervision the administration was accomplished. It also had judicial functions, being superior to the _Parlement_ as a _cour de cassation_ in civil cases.

The duties of the _Parlements_ were primarily judicial, but in addition the _Parlement_ of Paris possessed legislative functions, inasmuch as the laws were sent to it for registration. The _Parlement_ by custom had come to make use of remonstrances to the king in case of laws distasteful to them. Though some monarchs, as Louis XI., XII., and Henry IV., had paid some regard to these remonstrances,[63] yet even in the sixteenth century the remonstrance did not stop the determined monarch, but the court was forced to yield to the royal wish in the _lit de justice_.[64] There existed, therefore, a singular balance of power between the _Conseil d’État_ and the _Parlement_. The _Conseil d’État_, as a _cour de cassation_, might annul the parliamentary remonstrance, and, inversely, the _Parlement_ might, in virtue of its power to register, check the laws originating from the _Conseil d’État_. It is worthy of remark, however, that even at this period, this normal distribution of functions was not so balanced and guarded as to avoid abnormal procedure. Neither the _States General_ nor the _Parlement_ was put wholly beyond the control of the executive.

D’Avenel, expressing a view not uncommon in the earlier days of the Revolution of 1789, asserts in his remarkable book, _Richelieu et la monarchie absolue_, that France had a constitution before the ministry of the politic Richelieu, yet not thereafter,[65] but it is difficult to defend such a declaration. It may be admitted that the States-General were no longer convoked after 1614, that the _personnel_ of the nobility was altered, that the _Parlement_ was now and then forced into acquiescence to the royal will; nevertheless the two bodies, the _Conseil d’État_ and the _Parlement_, continued to function very nearly as before, and at times the _Parlement_ emerged from its submissiveness and haughtily asserted its pretensions.

In a series of conflicts between the court and the _Parlement_, into which we have not space to go exhaustively, the idea of fundamental or constitutional laws, of which the _Parlement_ declared itself the guardian, was repeatedly asserted; in the later period of this constitutional struggle, partly from the inability of the _Parlement_ to maintain its pretensions and partly from the development of the ideas of natural rights, of the rights of the people and of the rights of the nation, the desire for some more distinct definition of the power of the executive and the rights of the nation became manifest. The _Parlement_, composed of an aristocracy whose office was an hereditary possession, was naturally alert to extend its political influence; this extension of necessity brought it into conflict with the absolutism of the monarch. When a vigorous monarch, or skillful, energetic minister was at the head of affairs, the _Parlement_ was driven to humble obedience; but where there was a regency, a weak monarch, or a crisis, financial or administrative, the legal aristocracy reasserted and extended their pretensions. By a decree of February 21, 1641, Richelieu declared that the _parlements_ had been established only for granting justice, forbade any modification of decrees, ordered that in financial matters they might remonstrate once, but in administrative matters no remonstrance was allowed. During the remainder of Louis XIII’s reign they were obedient; but on the death of the king they immediately manifested their vitality by breaking his will and fixing the regency.[66]

The _Fronde_ was the acme of the parliamentary resistance of this period. Louis XIV. did not forget this high-handed opposition, and consequently by two decrees he reduced this recalcitrant body to a strictly subordinate position for the last forty years of his reign.[67] But on the death of the _Grand Monarch_, the _Parlement_ showed its old spirit, annulled the will of the dead king concerning the regency, and for twenty years solemnly reiterated its vague constitutional claims in elaborate remonstrances. To this period of activity succeeded a time of comparative submission, in which the remonstrances are less prompt, haughty, and insistent.

In 1748, the struggle renewed itself, and soon each side showed an ardent determination to conquer. The monarch resorted to _lits de justice_, to exile, and to the institution of irregular courts in order to provoke the magistrates to obey, while they answered with _iterative_ remonstrances and with refusals to dispense justice. From these remonstrances we are able to ascertain the pretensions of the _Parlement_, and to trace, though with much vagueness and incoherence, those principles which they called constitutional and fundamental. On the other hand, the responses of the king reveal the persistent claims of absolutism as to the royal source of law.

The magistrates based their shadowy claims upon different grounds. Frequently they appealed to precedent; as in 1718, the _Parlement_ of Paris declared that the most absolute kings, specifically Louis XIV., had _continually_ made use of the _Parlement_ for registration.[68] Justice and expediency were also invoked in their support.

Already in the period of the regency, following closely after their submissiveness under Louis XIV, we find a hazy but general distinction between statutory and constitutional laws: “While we recognize, Sire, that you alone are lord and master and the sole lawgiver, and that there are laws which changing times, the needs of your people, the maintenance of order and the administration of your kingdom may oblige you to modify, substituting new ones according to the forms always observed in this state, we nevertheless believe it to be our duty to call to your attention the existence of laws as old as the monarchy, which are permanent and invariable, the guardianship of which was committed to you along with the crown itself.... It is by reason of the permanence of such laws that we have you as lord and master. It is this permanence which leads us to hope that the crown, having rested upon your head during a long, just, and glorious reign, will pass to your posterity for all time to come. In recent times [the _Parlement_ adds] it has been clearly shown how much France owes to the maintenance of these original laws of the state, and how important it is in the service of your Majesty that your _Parlement_, which is responsible to you and to the nation for their exact observations, should assiduously guard them against any encroachment.”[69] Here then is found in embryo the programme which the magistrates pursued in their legislative opposition to the crown. Nevertheless there is, judging from a comparison of these earlier remonstrances and those emitted later, some progress in the distinction of organic and of statutory law, and in the enumeration of the fundamental principles.

The _Parlement_ of Brittany, in a remonstrance of July, 1771, said: “There is an essential difference between the transitory regulations which vary with the times, and the fundamental laws upon which the Constitution of the monarchy rests. In respect to the former [that is the transitory regulations] it is the duty of the courts to direct and enlighten the ruling power (l’autorité), although their opinions must, in the last instance, yield to the decision of your wisdom, since it appertains to you alone to regulate everything relating to the administration. To administer the state is not, however, to change its constitution.... It is, therefore, most indispensable to distinguish or to except the cases where the right of expostulation suffices to enlighten the ruling power in an administration which, in spite of its wide scope, still has its limits, and those cases where the happy inability [of the monarch] to overstep the bounds established by the constitution implies the power necessary legally to oppose what an arbitrary will cannot and may not do.”[70] To determine accurately the content of the _lois fondamentales_ of which the _Parlements_ asserted themselves to be protectors, is difficult. The _Parlements_ themselves did not deem it expedient, either for their own claims or for those of the monarch, to attempt a too explicit formulation of these laws; vagueness was regarded a political virtue. A remonstrance of the _cour des comptes, aides et finances_ of Normandy, openly admitted the disadvantage of such an enumeration: “Deign, Sire, to examine for yourself to what the decree of December tends; it seems destined to draw the line between the power of the sovereign and the liberty of his subjects; this line always undetermined, which no hand has been bold enough to fix, which a salutary veil covers with useful shadows; the tenderness of princes for their people and the love of the people for their princes draw or withdraw these shadows according to the times or the reigns. Those who dare to-day to fix these limits and to say to France: There ends the legitimate liberty of the people, serve your interests badly, even politically.”[71]

The most precise formulation of the organic law of the French monarchy which I have found is the protest of the princes, signed April 4, 1771, and directed against the _Maupeou Parlement_: “We, the undersigned, consider that the French monarchy has been sustained, together with the glory, the splendor, and the power which it has enjoyed for so many centuries only by the maintenance of the primitive laws which are inherent in it, and form its title (droit) and essence; that the liberty belonging to every Frenchman, the title and the ownership of his property, that of inheriting from fathers or of receiving from relatives or friends, without being able to be deprived or hindered, otherwise than by the legal application of law for some crime previously and competently judged, and not by arbitrary and absolute will, are not the only rights of the nation and of the subjects nor the only fundamental laws of the monarchy; that the right of Frenchmen, one of the most useful to the monarch and one of the most precious to his subjects, is to have certain bodies of citizens, perpetual and irremovable, acknowledged in all times by the kings and by the nation, who under whatever form and name they have existed, concentrated in themselves the general right of every subject to invoke the laws, to demand their rights, and to have recourse to the Prince; whose most important functions have always been to be charged with watching over the maintenance of the established laws, to weigh in new laws their utility or the dangers of contradictions which might occur with the old laws, to verify them, and to represent to the sovereign all that is prejudicial to the rights of his subjects or to the primordial and constitutive laws of his kingdom ...; that this necessary surety cannot exist without irremovability of the title of those to whom are confided so important functions, that they have always been regarded as one of the principal safeguards of public liberty against the abuse of arbitrary power; that they are an integral part of the constitution of the State, and are found as much as any other law in the order of the fundamental laws of the monarchy.”[72] However, the apparent attempt to be explicit here originates primarily, not in a desire to state distinctly the constitutional law, but rather to protect the prerogatives of the _Parlements_ by coupling them with certain principles generally recognized as inviolable.

The _Parlements_, in their resistance to the royal power, showed, as early as the Fronde, a tendency to support each other, but it is particularly in the period of the _Maupeou Parlement_ that the claims to _unity_ and _indivisibility_ became prominent.[73] These remonstrances, as well as the royal responses, were not withheld from the public, as the _ordonnances_ which imposed upon the magistrates the duty of keeping their deliberations secret implied, but were hawked about the streets and eagerly welcomed by the people. Since in times of opposition, each _Parlement_ aroused the sympathies of the citizens under its jurisdiction, their combination for mutual support against the crown extended the area of popular agitation. This exciting literature, issuing from the different courts, had, therefore, an educative effect upon the popular mind, rather in emphasizing the need of some limitation to royal power than in developing distinct and well-defined notions of political laws.[74] The _Parlement_, while professing exemplary obedience to the king, said that there were moral limits to their obedience.[75] That also took a popular turn, in professing to represent the nation or the people in the absence of the States-General. The remonstrance of the _cour des aides_, probably drawn up by Malesherbes, in February, 1771, indicates these popular pretensions. “The courts are to-day the only protectors of the feeble and the unfortunate: there have existed for a long time no States-General and in the greater part of the kingdom no provincial estates; all the bodies, except the courts, are reduced to a mute and passive obedience. No individual in the provinces would venture to expose himself to the vengeance of a _commandant_, of a _commissaire du conseil_, and still less to those of a minister of Your Majesty. The courts are then the only ones to whom it is still permitted to raise a voice in favor of the people, and Your Majesty does not wish to take away this last resource from distant provinces. But this decree, exiling the _Parlement_ of Paris, tends to render this resource illusory.”[76]

Notwithstanding this avowed guardianship of the national rights, the feeling gradually grew that these ill-defined fundamental laws were too vague, that the _Parlements_, though persistent, stopped short of pertinacity, and that an aristocratic magistracy was not the real representation of the nation.

The first expression, so far as I have noted, of the need of a more definite political rampart against the crown was that of the Marquis de Mirabeau and his brother. In 1754, the Marquis wrote to his brother: “The more I consider the abuses of society and their remedy, the more I return to what you said to me five years ago, ... that twelve principles established in twelve lines, once written in the head of the Prince or of his minister, and exactly followed in details, would correct and regenerate everything.”[77] But this was only a solitary voice crying in the wilderness; it neither found a response in the people, nor became the determined policy of its enunciator.

The people, however, were awakening at least to the abuses of the _ancien régime_, and were groping after a remedy. Books, dealing with the right of insurrection, of the superiority of the nation to the crown, and with the refutation of divine rights and passive obedience, were written, read and discussed.[78] Humanitarian views, the theory of natural rights, and, consequently, a sense of the importance of the third estate, gained ground by degrees. Meanwhile the contest between the king and his _Parlements_ continued. The Notables, called in 1787, affirmed that _the imprescriptible right to determine financial questions belonged only to the representatives of the nation_.[79] The States-General were called for 1789,[80] Owing to the failure of the monarch or minister, purposely or otherwise, to take the initiative, the radical element of the nation were able to secure almost universal suffrage and the union of the orders in one body. Judging from the _cahier_ and the pamphlets of 1788 and 1789, we infer that the consciousness of the inadequacy of the old French Constitution was general.[81] The _cahiers_, upon the question of the French Constitution, were moreover divided; some desired the preservation of the old Constitution, some a declaration of the rights of the nation, some a _charte_, while one formulated a new, complete constitution; on the whole, a majority favored a more careful guarantee of the nation’s rights.[82] The _cahiers_, it must be remarked, show a more perfect and uniform programme of civil reform than of political.

The pamphlets of the day, being the expression of the convictions of individuals, reveal more clearly the political thought of the radical element. Count de Mirabeau’s _Lettres de cachet_, published in 1783, may be regarded as among the earliest of such personal expressions. Its attitude was rather negative than constructive. It attempted to show that a despotism depended not at all upon the character of the particular sovereign, but on the absence or insufficiency of laws; that France without a veritable constitution was only a despotic state, and that there is no mean between an absolute despotism and the absolute reign of law.[83] In 1787, the Count declared, “What is necessary is a constitution; France is ripe for the Revolution.”[84]

Other pamphlets of 1788 and 1789 indicate a tendency to discuss constitutional law from the historical and crudely comparative standpoint, and to apply the conclusions to the present conditions, but in the attempt to formulate their results, they are less clear and coherent. One of these drawn up in 1789 devotes one hundred and thirty-seven pages to the discussion of the influence of Montesquieu in the present Revolution, and denounces him for not declaring boldly that France was a despotism. It concluded that France has in reality no constitution.[85]

How far the king meant that the States-General should possess a constitutional character is difficult to determine. The Letter of Summons repeatedly asserts the desire to affect a “fixed and constant order in all parts of the administration.”[86] Mirabeau claimed that the king himself had recognized “the necessity of giving France a fixed method of government,”[87] and La Marck confirmed this declaration.[88] We shall perhaps have attributed sufficient meaning to these hazy avowals if we say that Louis XVI., partly from his paternal spirit, and partly from a desire for relief from financial crises, meditated, in his more liberal moods, granting the nation some sort of a _charter_, in the formulation of which he wished the assistance of the States-General. This resuscitated institution convened at Versailles, May 5, 1789.