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.
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.