Chapter III: The Constructions--The Constitution of 1791 (2)

Two sorts of men furnish the recruits for this dominant minority: on the one hand the enthusiasts, and on the other those who have no social position. Towards the end of 1789, moderate people, who are minding their own business, retire into privacy, and are daily less disposed to show themselves. The public square is occupied by others who, through zeal and political passion, abandon their pursuits, and by those who, finding themselves hampered in their social sphere, or repelled from ordinary circles, were merely awaiting a new opening to take a fresh start. In these utopian and revolutionary times, there is no lack of either class. Flung out by handfuls, the dogma of popular sovereignty falls like a seed scattered around, to end up vegetating in heated brains, in the narrow and rash minds which, once possessed by an idea, adhere to it and are mastered by it. It falls amongst a class of reasoners who, starting from a principle, dash forward like a horse who has had blinders put on. This is especially the case with the legal class, whose profession accustoms them to deductions; nor less with the village attorney, the unfrocked monk, the "intruding" and excommunicated curé, and above all, the journalist and the local orator, who, for the first time in his life, finds that he has an audience, applause, influence and a future before him. These are the only people who can do the complicated and constant work which the new Constitution calls for; for they are the only men whose desires are unlimited, whose dreams are coherent, whose doctrine is explicit, whose enthusiasm is contagious, who cherish no scruples, and whose presumption is unbounded. Thus has the rigid will been wrought and tempered within them, the inward spring of energy which, being daily more tightly wound up, urges them on to propaganda and to action.--During the second half of the year 1790 we see them everywhere following the example of the Paris Jacobins, styling themselves friends of the Constitution, and grouping themselves together in popular associations. Each town and village gives birth to a club of patriots who regularly every evening, or several times a week, meet "for the purpose of co-operating for the safety of the commonwealth."[2334] This is a new and spontaneous organ,[2335] an cancer and a parasite, which develops itself in the social body alongside of its legal organizations. Its growth insensibly increases, attracting to itself the substance of the others, employing them for its own ends, substituting itself for them, acting by and for itself alone, a sort of omnivorous outgrowth the encroachment of which is irresistible, not only because circumstances and the working of the Constitution nourish it, but also because its germ, deposited at a great depth, is a living portion of the Constitution itself.

For, placed at the head of the Constitution, as well as of the decrees which are attached to it, stands the Declaration of the Rights of Man. According to this, and by the avowal of the legislators themselves, there are two parts to be distinguished in the law, the one superior, eternal, inviolable, which is the self-evident principle, and the other inferior, temporary, and open to discussion, which comprehends more or less exact or erroneous applications of this principle. No application of the law is valid if it derogates from the principle. No institution or authority is entitled to obedience if it is opposed to the rights which it aims to guarantee. These sacred rights, anterior to all society, take precedence of every social convention, and whenever we would know if a legal order is legitimate, we have merely to ascertain if it is in conformity with natural right. Let us, accordingly, in every doubtful or difficult case, refer to this philosophic gospel, to this incontestable catechism, this primordial creed proclaimed by the National Assembly.--The National Assembly itself invites us to do so. For it announces that

"ignorance, neglect, or contempt of the rights of man are the sole causes of public misfortune, and of the corruption of governments."

It declares that

"the object of every political association is the preservation of natural and imprescriptible rights."

It enumerates them, "in order that the acts of legislative power and the acts of executive power may at once be compared with the purpose of every political institution." It desires "that every member of the social body should have its declaration constantly in mind."--Thus we are told to control all acts of application by the principle, and also we are provided with the rule by which we may and should accord, measure, or even refuse our submission to, deference for, and toleration of established institutions and legal authority.

What are these superior rights, and, in case of dispute, who will decide as arbitrator?--There is nothing here like the precise declarations of the American Constitution,[2336] those positive prescriptions which serve to sustain a judicial appeal, those express prohibitions which prevent beforehand certain species of laws from being passed, which prescribe limits to public powers, which mark out the province not to be invaded by the State because it is reserved to the individual.

On the contrary, in the declaration of the national Assembly, most of the articles are abstract dogmas,[2337] metaphysical definitions, more or less literary axioms, that is to say, more or less false, now vague and now contradictory, open to various interpretations and to opposite constructions, These are good for platform display but bad in practice, mere stage effect, a sort of pompous standard, useless and heavy, which, hoisted in front of the Constitutional house and shaken every day by violent hands, cannot fail soon to tumble on the heads of passers by.[2338]--Nothing is done to ward off this visible danger. There is nothing here like that Supreme Court which, in the United States, guards the Constitution even against its Congress, and which, in the name of the Constitution, actually invalidates a law, even when it has passed through all formalities and been voted on by all the powers; which listens to the complaints of the individual affected by an unconstitutional law; which stays the sheriff's or collector's hand raised against him, and which above their heads gives judgment on his interests and wrongs. Ill-defined and discordant laws are proclaimed without any provision being made for their interpretation, application or sanction. No means are taken to have them specially expounded. No district tribunal is assigned to consider the claims which grow out of them, to put an end to litigation legally, peacefully, on a last appeal, and through a final decision which becomes a precedent and fixes the loose sense of the text. All this is made the duty of everybody, that is to say of those who are disposed to charge themselves with it,--in other words, the active minority in council assembled.--Thus, in each town or village it is the local club which, by the authorization of the legislator himself, becomes the champion, judge, interpreter and administrator of the rights of man, and which, in the name of these superior rights, may protest or rebel, as it seems best, not only against the legitimate acts of legal powers, but also against the authentic text of the Constitution and the Laws.[2339]

Consider, indeed, these rights as they are proclaimed, along with the commentary of the speaker who expounds them at the club before an audience of heated and daring spirits, or in the street to the rude and fanatical multitude. Every article in the Declaration is a dagger pointed at human society, and the handle has only to be pressed to make the blade enter the flesh.[2340] Among "these natural and imprescriptible rights" the legislator has placed "resistance to oppression." We are oppressed: let us resist and take up arms. According to this legislator, "society has the right to bring every public agent of the Administration to account." Let us away to the Hôtel-de-Ville, and interrogate our lukewarm or suspected magistrates, and watch their sessions to see if they prosecute priests and disarm the aristocrats; let us stop their intrigues against the people; let us force these slow clerks to hasten their steps.--According to this legislator "all citizens have the right to take part in person, or through their representatives, in the formation of the law." There must thus be no more electors privileged by their payment of a three-franc tax. Down with the new aristocracy of active citizens! Let us restore to the two millions of proletarians the right of suffrage, of which the Constitution has unjustly defrauded them!--According to this legislator, "men are born and remain free, and equal in their rights." Consequently, let no one be excluded from the National Guard; let everybody, even the pauper, have some kind of weapon, a pike or gun, to defend his freedom!--In the very terms of the Declaration, "the law is the expression of the universal will." Listen to these clamors in the open streets, to these petitions flowing in from the towns on all sides; behold the universal will, the living law which abolishes the written law! On the strength of this the leader of a few clubs in Paris are to depose the King, to violate the Legislative Assembly and decimate the National Convention.--In other terms, the turbulent, factious minority is to supplant the sovereign nation, and henceforth there is nothing to hinder it from doing what it pleases just when it pleases. The operation of the Constitution has given to it the reality of power, while the preamble of the Constitution clothes it with the semblance of right.

VI.--Summary of the work of the Constituent Assembly.

Such is the work of the Constituent Assembly. In several of its laws, especially those which relate to private interests, in the institution of civil regulations, in the penal and rural codes,[2341] in the first attempts at, and the promise of, a uniform civil code, in the enunciation of a few simple regulations regarding taxation, procedure, and administration, it planted good seed. But in all that relates to political institutions and social organization its proceedings are those of an academy of Utopians, and not those of practical legislators.--On the sick body entrusted to it, it performed amputations which were as useless as they were excessive, and applied bandages as inadequate as they were injurious. With the exception of two or three restrictions admitted inadvertently, and the maintenance of the show of royalty, also the obligation of a small electoral qualification, it carried out its principle to the end, the principle of Rousseau. It deliberately refused to consider man as he really was under its own eyes, and persisted in seeing nothing in him but the abstract being created in books. Consequently, with the blindness and obstinacy characteristic of a speculative surgeon, it destroyed, in the society submitted to its scalpel and its theories, not only the tumors, the enlargements, and the inflamed parts of the organs, but also the organs themselves, and even the vital governing centers around which cells arrange themselves to recompose an injured organ. That is, the Assembly destroyed on the one hand the time-honored, spontaneous, and lasting societies formed by geographical position, history, common occupations and interests, and on the other, those natural chiefs whose name, repute, education, independence, and earnestness designated them as the best qualified to occupy high positions. In one direction it despoils and permits the ruin and proscription of the superior class, the nobles, the members of Parliament, and the upper middle class. In another it dispossesses and breaks up all historic or natural corporations, religious congregations, clerical bodies, provinces, parliaments, societies of art and of all other professions and pursuits. This done, every tie or bond which holds men together is found to be severed; all subordination and every graduated scale of rank have disappeared. There is no longer rank and file, or commander-in-chief. Nothing remains but individual particles, 26 millions of equal and disconnected atoms. Never was so much disintegrated matter, less capable of resistance, offered to hands undertaking to mold it. Harshness and violence will be sufficient to ensure success. These brutal hands are ready for the work, and the Assembly which has reduced the material to powder has likewise provided the mortar and pestle. As awkward in destruction as it is in construction, it invents for the restoration of order in a society which is turned upside down a machine which would, of itself, create disorder in a tranquil society. The most absolute and most concentrated government would not be strong enough to effect without disturbance a similar equalization of ranks, the same dismemberment of associations, and the same displacement of property. No social transformation can be peacefully accomplished without a well-commanded army, obedient and everywhere present, as was the case in the emancipation of the Russian serfs by Emperor Alexander. The new Constitution,[2342] on the contrary, reduces the King to the position of an honorary president, suspected and called in question by a disorganized State. Between him and the legislative body it interposes nothing but sources of conflict, and suppresses all means of concord. The monarch has no hold whatever on the administrative departments which he must direct; the mutual independence of the powers, from the center to the extremities of the State, everywhere produces indifference, negligence, and disobedience between the injunctions issued and their execution. France is a federation of forty thousand municipal sovereignties, in which the authority of legal magistrates varies according to the caprice of active citizens. These active citizens, too heavily loaded, shy away from the performance of public duty; in which a minority of fanatics and ambitious men monopolize the right to speak, to vote, all influence, the power and all action. They justify their multiple ursurpations, their unbridled despotism, and their increasing encroachments by the Declaration of the Rights of Man. The masterpiece[2343] of ideal abstractions and of practical absurdities is accomplished. In accordance with the Constitution spontaneous anarchy becomes legalized anarchy. The latter is perfect; nothing finer of the kind has been seen since the ninth century.

*****

[Footnote 2301: The name for the dreaded secret Royal warrant of arrest. (SR.)]

[Footnote 2302: The initiative rests with the King on one point: war cannot be decreed by the Assembly except on his formal and preliminary proposition. This exception was secured only after a violent struggle and a supreme effort by Mirabeau.]

[Footnote 2303: Speech by Lanjuinais, November 7, 1789. "We determined on the separation of the powers. Why, then, should the proposal he made to us to unite the legislative power with the executive power in the persons of the ministers?"]

[Footnote 2304: See the attendance of the Ministers before the Legislative Assembly.]

[Footnote 2305: "Any society in which the separation of the powers is not clearly defined has no constitution." (Declaration of Rights, article XVI.)--This principle is borrowed from a text by Montesquieu, also from the American Constitution. In the rest the theory of Rousseau is followed.]

[Footnote 2306: Mercure de France, an expression by Mallet du Pan.]

[Footnote 2307: Constitution of 1791, ch. II. articles 5, 6, 7.--Decree of September 25--October 6, 1791, section III. articles, 8 to 25.]

[Footnote 2308: Speeches by Barnave and Roederer in the constituent Assembly.--Speeches by Barnave and Duport in the Jacobin Club.]

[Footnote 2309: Principal texts. (Duvergier, "Collection des Lois et Decrets.")--Laws on municipal and administrative organization, December 14 and 22, 1789; August 12-20, 1790; March 12, 1791. On the municipal organization of Paris, May 21st, June 27, 1790.--Laws on the organization of the Judiciary, August 16-24, 1790; September 16-29, 1791; September 29, October 21, 1791.--Laws on military organization, September 23, October 29, 1790; January 16, 1791; July 27, 28, 1791--Laws on the financial organization, November 14-24,.1790; November 23, 1790; March 17, 1791; September 26, October 2, 1791.]

[Footnote 2310: The removal of such managerial authority has since the second World war taken place inside the United Nations and other Western public administrations and seems to be the aim of much communist trade union effort. The result has everywhere been added cost and decreased efficiency. (SR.)]

[Footnote 2311: This principle has been introduced in Western educational systems when clever self-appointed psychologists told parents and teacher alike that they could and should not punish their children but only talk and explain to them. (SR.)]

[Footnote 2312: This description fits the staff regulations of the United Nations secretariat in which I served for 32 years. (SR.)]

[Footnote 2313: Decrees of December 14 and December 22, 1789: "In municipalities reduced to three members (communes below five hundred inhabitants), all executive functions shall belong to the mayor alone."]

[Footnote 2314: Could it be that Lenin took note of this and had it this translated in Russian and made use of it in his and later in Stalin's schools for international revolutionaries. It would in any case have weakened the Bourgeois Capitalist countries. In any case such measures have been introduced both in the international organizations and in most Western Democratic Governments after World War II. (SR.)]

[Footnote 2315: This was in the United Nations called 'Rotation' and made the administration of missions and forces difficult, expensive and inefficient. This rotation was also used in the Indian and other armies in order to prevent the officers to reach an understanding or achieve any power over the troops under their command. (SR.)]

[Footnote 2316: Laws of September 23--October 29, 1790; January 16, 1791. (Titles II. And VII.)--Cf. the legal prescriptions in relation to the military tribunals. In every prosecuting or judicial jury one-seventh of the sworn members are taken from the non-commissioned officers, and one-seventh from the soldiers, and again, according to the rank of the accused, the number of those of the same rank is doubled.]

[Footnote 2317: Law of July 28th, August 12, 1791.]

[Footnote 2318: Laws of November 24, 1789 (article 52), August 10-14, 1789.--Instruction of August 10-20, 1790; § 8--Law of October 21, November 21, 1789.]

[Footnote 2319: Laws of November 14 and 23, 1790; January 13th, September 26th, October 9, 1792.]

[Footnote 2320: Albert Babeau, I. 327 (Féte of the Federation, July 14, 1790).--"Archives Nationales," F7, 3215 (May 17,1791, Deliberation of the council-general of the commune of Brest. May 17 and 19, Letters of the directory of the district).--Mercure, March 5, 1791. "Mesdames are stopped until the return of the two deputies, whom the Republic of Arnay-le-Duc has sent to the representatives of the nation to demonstrate to them the necessity of keeping the king's aunts in the kingdom."]

[Footnote 2321: Moniteur, X. 132. Speech by M. Labergerie, November 8, 1791.]

[Footnote 2322: At Montauban, in the intendant's salon, the ladies of the place spoke patois only, the grandmother of the gentleman who has informed me of this fact did not understand any other language.]

[Footnote 2323: Moniteur, V.163, sitting of July 18, 1791. Speech by M. Lecoulteux, reporter.]

[Footnote 2324: Moniteur, XI. 283, sitting of February 2, 1792. Speech by Cambon: "They go away thinking that they understand what is explained to them, but return the following day to obtain fresh explanations. The attorneys refuse to give the municipalities any assistance, stating that they know nothing about these matters."]

[Footnote 2325: The same may happen when a subordinate is promoted to be placed in charge of his or her former equals and colleagues. This is why it is often preferably to transfer someone who is recognized as being of superior talent whenever a promotions is to take place. (SR.)]

[Footnote 2326: Law of May 11-15, 1791.]

[Footnote 2327: Minutes of the meeting of the Electoral Assembly of the Department of Indre-et-Loire (1791, printed).]

[Footnote 2328: De Ferrières, I. 367.]

[Footnote 2329: Suzay, I, 191 (21,711 are eligible out of 32,288 inscribed citizens).]

[Footnote 2330: Official report of the Electoral Assembly of the Department of Indre-et-Loire, Aug. 27, 1791. "A member of the Assembly made a motion that all the members composing it should be indemnified for the expenses which would be incurred by their absence from home and the long sojourn they had to make in the town where the Assembly was held. He remarked that the inhabitants of the country were those who suffered the most, their labor being their sole riches; that if no attention was paid to this demand, they would be obliged, in spite of their patriotism, to withdraw and abandon their important mission; that the electoral assemblies would then be deserted, or would be composed of those whose resources permitted them to make this sacrifice."]

[Footnote 2331: Sauzay, I. 147, 192.]

[Footnote 2332: For the detail of these figures, see vol. II. Book IV.]

[Footnote 2333: De Ferrières, I. 367. Cf. The various laws above mentioned.]

[Footnote 2334: Constant, "Histoire d'un Club Jacobin en Province" (Fontainebleau) p.15. (Procés-verbaux of the founding of the clubs of Moret, Thomery, Nemours, and Montereau.)]

[Footnote 2335: Later to change and become socialist and communist parties everywhere. (SR.)]

[Footnote 2336: Cf. The Declaration of Independence, July 4, 1776 (except the first phrase, which is a catchword thrown out for the European philosophers).--Jefferson proposed a Declaration of Rights for the Constitution of March 4, 1789, but it was refused. They were content to add to it the eleven amendments which set forth the fundamental rights of the citizen.]

[Footnote 2337: Article I. "Men are born and remain free and equal in rights common to all. Social distinctions are founded solely on public utility." The first phrase condemns the hereditary royalty which is sanctioned by the Constitution. The second phrase can be used to legitimate hereditary monarchy and an aristocracy.--Articles 10 and 11 bear upon the manifestations of religious convictions and on freedom of speech and of the press. By virtue of these two articles worship, speech, and the press may be made subject to the most repressive restrictions, etc.]

[Footnote 2338: The International Bill of Human Rights of 1948 is quite different from the one approved in 1789. In 1948 there is no more any mention of any "right to resistance to oppression", there is a softening of the position on the right of property and new rights, to free education, to a country, to rest and leisure, to a high standard of health and to an adequate standard of living have been introduced. (SR.)]

[Footnote 2339: Stalin and his successors organized such a system of "clubs" world-wide which even today remain active as "protectors" of the environment, refugees, prisoners, animals and the environment. (SR.)]

[Footnote 2340: Buchez and Roux, XI. 237. (Speech by Malouet in relation to the revision, August 5, 1791.) "You constantly tempt the people with sovereignty without giving them the immediate use of it."]

[Footnote 2341: Decrees of September 25--October 6, 1791; September 28--October 6, 1791.]

[Footnote 2342: Impartial contemporaries, those well qualified to judge, agree as to the absurdity of the Constitution. "The Constitution was a veritable monster. There was too much of monarchy in it for a republic, and too much of a republic for a monarchy. The King was a side-dish, un hors d'oeuvre, everywhere present in appearance but without any actual power." (Dumont, 339.) "It is a general and almost universal conviction that this Constitution is inexecutable. The makers of it to a man condemn it." (G. Morris, September 30, 1791.) "Every day proves more clearly that their new Constitution is good for nothing." (ibid. December 27, 1791.) Cf. The sensible and prophetic speech made by Malouet (August 5, 1791, Buchez and Roux, XI. 237).]

[Footnote 2343: Taine's vivid description is likely to have encouraged any radical revolutionary having the luck to read his explicit description of how to proceed with the destruction of a naïve corrupt capitalist, bourgeois society. (SR.)]

BOOK THIRD. THE APPLICATION OF THE CONSTITUTION. [3101]