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, theConseil d’Étatand theParlements.
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]
TheConseil 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 administrationwas accomplished. It also had judicial functions, being superior to theParlementas acour de cassationin civil cases.
The duties of theParlementswere primarily judicial, but in addition theParlementof Paris possessed legislative functions, inasmuch as the laws were sent to it for registration. TheParlementby 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 thelit de justice.[64]There existed, therefore, a singular balance of power between theConseil d’Étatand theParlement. TheConseil d’État, as acour de cassation, might annul the parliamentary remonstrance, and, inversely, theParlementmight, in virtue of its power to register, check the laws originating from theConseil 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 theStates Generalnor theParlementwas 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 thepersonnelof the nobility was altered, that theParlementwas now and then forced into acquiescence to the royal will; nevertheless the two bodies, theConseil d’Étatand theParlement, continued to function very nearly as before, and at times theParlementemerged from its submissiveness and haughtily asserted its pretensions.
In a series of conflicts between the court and theParlement, into which we have not space to go exhaustively, the idea of fundamental or constitutional laws, of which theParlementdeclared itself the guardian, was repeatedly asserted; in the later period ofthis constitutional struggle, partly from the inability of theParlementto 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. TheParlement, 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, theParlementwas 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 theparlementshad 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]
TheFrondewas 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 theGrand Monarch, theParlementshowed its old spirit, annulled the will of the dead king concerning the regency, and for twenty years solemnly reiterated itsvague 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 tolits de justice, to exile, and to the institution of irregular courts in order to provoke the magistrates to obey, while they answered withiterativeremonstrances and with refusals to dispense justice. From these remonstrances we are able to ascertain the pretensions of theParlement, 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, theParlementof Paris declared that the most absolute kings, specifically Louis XIV., hadcontinuallymade use of theParlementfor 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 [theParlementadds] it has been clearly shown how muchFrance owes to the maintenance of these original laws of the state, and how important it is in the service of your Majesty that yourParlement, 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.
TheParlementof 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 thelois fondamentalesof which theParlementsasserted themselves to be protectors, is difficult. TheParlementsthemselves 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 thecour des comptes, aides et financesof Normandy, openly admitted the disadvantage of such an enumeration: “Deign, Sire, to examine for yourself to what the decree of Decembertends; 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 theMaupeou 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 necessarysurety 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 theParlementsby coupling them with certain principles generally recognized as inviolable.
TheParlements, 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 theMaupeou Parlementthat the claims tounityandindivisibilitybecame prominent.[73]These remonstrances, as well as the royal responses, were not withheld from the public, as theordonnanceswhich 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, eachParlementaroused 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]TheParlement, 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 representthe nation or the people in the absence of the States-General. The remonstrance of thecour 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 acommandant, of acommissaire 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 theParlementof 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 theParlements, 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 regenerateeverything.”[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 theancien 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 hisParlementscontinued. The Notables, called in 1787, affirmed thatthe 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 thecahierand the pamphlets of 1788 and 1789, we infer that the consciousness of the inadequacy of the old French Constitution was general.[81]Thecahiers, 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 acharte, while one formulated a new, complete constitution; on the whole, a majority favored a more careful guarantee of the nation’srights.[82]Thecahiers, 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’sLettres 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 givingFrance 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 acharter, in the formulation of which he wished the assistance of the States-General. This resuscitated institution convened at Versailles, May 5, 1789.
The first months were occupied in the disputes over the verification of the powers of the deputies. On May 28, a representative of the nobility, Count de Crillon, said that “he was of the firm opinion that it was less for maintaining than for establishing the Constitution that they were called together.”[89]On June 15, Abbé Siéyès announced that those whose powers had been verified represented ninety-six per cent. of the nation, and suggested as a fitting name, “Assemblée des représentants.” Mirabeau, at the same session, offered a series of resolutions that provoked much discussion, one of which affirmed that their first duty was “to agree upon and to fix legally the principles for the regeneration of the kingdom, to assure the rights of the people, to adopt the basis of a wise and useful constitution, and, to secure these rights from all attempts, they shall be put under the safeguard of the legislative power of the king and of the National Assembly.” Rabaud de Saint Étienne, in another series of resolutions, expressed the same conviction.[90]Two days later, the name “National Assembly” was adopted and an oath taken “to fulfill with zeal and fidelity the duties which devolve upon us.”[91]Debarred from the place usually occupied by the Assembly by the carpenters who were at work upon it, the members of the third estate held their meeting,June 20, in the Tennis Court at Versailles, and there adopted the resolution which declared the National Assembly a Constitutional Convention, and subscribed to the following, known as the Tennis Court Oath: “The National Assembly, regarding itself as called upon to establish the Constitution of the kingdom, effect a regeneration of the state and maintain the true principles of the monarchy, may not be prevented from continuing its deliberations in whatever place it may be forced to take up its sittings. It further maintains that wherever its members are assembled, there is the National Assembly. The Assembly decrees that all its members shall immediately take a solemn oath never to be dissolved and to come together whenever circumstances may dictate, until the Constitution of the kingdom shall be established and placed upon a firm foundation.”[92]It is beyond the sphere of our inquiry to follow this Constituent Assembly in their arduous and complex task of formulating a constitution, and of legislating at the same time for the kingdom, while exposed to court intrigues and popular intrusion.
Therefore, to conclude this chapter as we began, we have shown that the resolution of June 20 was neither a political freak, nor an act of imitation of a foreign nation. The example of the American Republic may have given stimulus and precision, yet the Tennis Court Oath must be regarded as the logical consequence of a transformation, which had been in progress for more than sixty years.