Constitution. It was a period of construction, and every effort was
made, every scheme was invented, to curb the inevitable democracy. The
members of that assembly were, on the whole, eminently cautious and
sensible men. They were not men of extraordinary parts, and the genius
of Hamilton failed absolutely to impress them. Some of their most
memorable contrivances proceeded from no design, but were merely half
measures and mutual concessions. Seward has pointed out this
distinction between the revolutionary epoch and the constituent epoch
that succeeded: "The rights asserted by our forefathers were not
peculiar to themselves. They were the common rights or mankind. The
basis of the Constitution was laid broader by far than the
superstructure which the conflicting interests and prejudices of the
day suffered to be erected. The Constitution and laws of the Federal
Government did not practically extend those principles throughout the
new system of government; but they were plainly promulgated in the
Declaration of Independence."
Now, although France was deeply touched by the American Revolution, it
was not affected by the American Constitution. It underwent the
disturbing influence, not the conservative.
The Constitution, framed in the summer of 1787, came into operation in
March 1789, and nobody knew how it worked, when the crisis came in
France. The debates, which explain every intention and combination,
remained long hidden from the world. Moreover, the Constitution has
become something more than the original printed paper. Besides
amendments, it has been interpreted by the courts, modified by
opinion, developed in some directions, and tacitly altered in others.
Some of its most valued provisions have been acquired in this way, and
were not yet visible when the French so greatly needed the guiding
lessons of other men's experience. Some of the restrictions on the
governing power were not fully established at first.
The most important of these is the action of the Supreme Court in
annulling unconstitutional laws. The Duke of Wellington said to Bunsen
that by this institution alone the United States made up for all the
defects of their government. Since Chief Justice Marshall, the
judiciary undoubtedly obtained immense authority, which Jefferson, and
others besides, believed to be unconstitutional; for the Constitution
itself gives no such power. The idea had grown up in the States,
chiefly, I think, in Virginia. At Richmond, in 1782, Judge Wythe
said: "Tyranny has been sapped, the departments kept within their own
spheres, the citizens protected, and general liberty promoted. But
this beneficial result attains to higher perfection when, those who
hold the purse and the sword differing as to the powers which each may
exercise, the tribunals, who hold neither, are called upon to declare
the law impartially between them, if the whole legislature--an event
to be deprecated--should attempt to overleap the boundaries prescribed
to them by the people, I, in administering the justice of the country,
will meet the united powers at my seat in this tribunal, and, pointing
to the Constitution, will say to them: 'Here is the limit of your
authority; hither shall you go, but no further.'" The Virginian
legislature gave way, and repealed the act.
After the Federal Constitution was drawn up, Hamilton, in the
seventy-eighth number of the _Federalist_, argued that the power
belonged to the judiciary; but it was not constitutionally recognised
until 1801. "This," said Madison, "makes the judiciary department
paramount, in fact, to the legislature, which was never intended, and
can never be proper. In a government whose vital principle is
responsibility, it never will be allowed that the legislative and
executive departments should be completely subjected to the judiciary,
in which that characteristic feature is so faintly seen." Wilson, on
the other hand, justified the practice on the principle of the higher
law: "Parliament may, unquestionably, be controlled by natural or
revealed law, proceeding from divine authority. Is not this superior
authority binding upon the courts of justice? When the courts of
justice obey the superior authority, it cannot be said with propriety
that they control the inferior one; they only declare, as it is their
duty to declare, that this inferior one is controlled by the other,
which is superior. They do not repeal an act of Parliament; they
pronounce it void, because contrary to an overruling law." Thus the
function of the judiciary to be a barrier against democracy, which,
according to Tocqueville, it is destined to be, was not apparent. In
the same manner religious liberty, which has become so much identified
with the United States, is a thing which grew by degrees, and was not
to be found imposed by the letter of the law.
The true natural check on absolute democracy is the federal system,
which limits the central government by the powers reserved, and the
state governments by the powers they have ceded. It is the one
immortal tribute of America to political science, for state rights are
at the same time the consummation and the guard of democracy. So much
so that an officer wrote, a few months before Bull Run: "The people in
the south are evidently unanimous in the opinion that slavery is
endangered by the current of events, and it is useless to attempt to
alter that opinion. As our government is founded on the will of the
people, when that will is fixed our government is powerless." Those
are the words of Sherman, the man who, by his march through Georgia,
cut the Confederacy into two. Lincoln himself wrote, at the same time:
"I declare that the maintenance inviolate of the rights of the states,
and especially the right of each state to order and control its own
domestic institutions according to its own judgment exclusively, is
essential to that balance of powers on which the perfection and
endurance of our political fabric depend." Such was the force with
which state rights held the minds of abolitionists on the eve of the
war that bore them down.
At the Revolution there were many Frenchmen who saw in federalism the
only way to reconcile liberty and democracy, to establish government
on contract, and to rescue the country from the crushing preponderance
of Paris and the Parisian populace. I do not mean the Girondins, but
men of opinions different from theirs, and, above all, Mirabeau. He
planned to save the throne by detaching the provinces from the frenzy
of the capital, and he declared that the federal system is alone
capable of preserving freedom in any great empire. The idea did not
grow up under American influence; for no man was more opposed to it
than Lafayette; and the American witness of the Revolution, Morris,
denounced federalism as a danger to France.
Apart from the Constitution, the political thought of America
influenced the French next to their own. And it was not all
speculation, but a system for which men died, which had proved
entirely practical, and strong enough to conquer all resistance, with
the sanction and encouragement of Europe. It displayed to France a
finished model of revolution, both in thought and action, and showed
that what seemed extreme and subversive in the old world, was
compatible with good and wise government, with respect for social
order, and the preservation of national character and custom. The
ideas which captured and convulsed the French people were mostly
ready-made for them, and much that is familiar to you now, much of
that which I have put before you from other than French sources, will
meet us again next week with the old faces, when we come to the
States-General.
III
THE SUMMONS OF THE STATES-GENERAL
The condition of France alone did not bring about the overthrow of the
monarchy and the convulsion that ensued. For the sufferings of the
people were not greater than they had been before; the misgovernment
and oppression were less, and a successful war with England had
largely wiped out the humiliations inflicted by Chatham.
But the confluence of French theory with American example caused the
Revolution to break out, not in an excess of irritation and despair,
but in a moment of better feeling between the nation and the king. The
French were not mere reckless innovators; they were confiding
followers, and many of the ideas with which they made their venture
were those in which Burke agreed with Hamilton, and with his own
illustrious countrymen, Adam Smith and Sir William Jones. When he said
that, compared to England, the government of France was slavery, and
that nothing but a revolution could restore European liberty,
Frenchmen, saying the same thing, and acting upon it, were unconscious
of extravagance, and might well believe that they were obeying
precepts stored in the past by high and venerable authority. Beyond
that common ground, they fell back on native opinion in which there
was wide divergence, and an irrepressible conflict arose. We have to
deal with no unlikely motives, with no unheard of theories, and, on
the whole, with convinced and average men.
The States-General were convoked because there was no other way of
obtaining money for the public need. The deficit was a record of bad
government, and the first practical object was the readjustment of
taxes. From the king's accession, the revival of the old and neglected
institution had been kept before the country as a remedy, not for
financial straits only, but for all the ills of France.
The imposing corporation of the judiciary had constantly opposed the
Crown, and claimed to subject its acts to the judgment of the law. The
higher clergy had raised objections to Turgot, to Necker, to the
emancipation of Protestants; and the nobles became the most active of
all the parties of reform. But the great body of the people had borne
their trouble in patience. They possessed no recognised means of
expressing sentiments. There was no right of public meeting, no
liberty for the periodical press; and the privileged newspapers were
so tightly swaddled in their official character that they had nothing
to say even of an event like the oath in the Tennis Court. The
feelings that stirred the multitude did not appear, unless they
appeared in the shape of disorder. Without it France remained an
unknown quantity. The king felt the resistance of the privileged and
interested classes which was the source of his necessity, but he was
not apprehensive of a national opposition. He was prepared to rely on
the Third Estate with hopefulness, if not with confidence, and to pay
a very high price for their support. In a certain measure their
interest was the same. The penury of the State came from the fact that
more than half the property of France was not taxed in its proportion,
and it was essential for the government to abolish the exception, and
to bring nobles and clergy to surrender their privilege, and pay like
the rest. To that extent the object of the king was to do away with
privilege and to introduce equality before the law. So far the Commons
went along with him. They would be relieved of a heavy burden if they
ceased to pay the share of those who were exempt, and rejected the
time-honoured custom that the poor should bear taxation for the rich.
An alliance, therefore, was indicated and natural. But the extinction
of privilege, which for monarchy and democracy alike meant fiscal
equality, meant for the democracy a great deal more. Besides the money
which they were required to pay in behalf of the upper class and for
their benefit and solace, money had to be paid to them. Apart from
rent for house or land, there were payments due to them proceeding
from the time, the obscure and distant time, when power went with
land, and the focal landholder was the local government, the ruler and
protector of the people, and was paid accordingly. And there was
another category of claims, proceeding indirectly from the same
historic source, consisting of commutation and compensation for
ancient rights, and having therefore a legal character, founded upon
contract, not upon force.
Every thinking politician knew that the first of these categories, the
beneficial rights that were superfluous and oppressive, could not be
maintained, and that the nobles would be made to give up not only that
form of privilege which consisted in exemption from particular taxes,
but that composed of superannuated demands in return for work no
longer done, or value given. Those, on the other hand, which were not
simply mediaeval, but based upon contract, would be treated as lawful
property, and would have to be redeemed. Privilege, in the eyes of the
state, was the right of evading taxes. To the politician it meant,
furthermore, the right of imposing taxes. For the rural democracy it
had a wider significance. To them, all these privileges were products
of the same principle, ruins of the same fabric. They were relics and
remnants of feudalism, and feudalism meant power given to land and
denied to capital and industry. It meant class government, the
negation of the very idea of the state and of the nation; it meant
conquest and subjugation by a foreign invader. None denied that many
great families had won their spurs in the service of their country;
everybody indeed knew that the noblest of all, Montmorency, bore the
arms of France because, at the victory of Bouvines, where their
ancestor was desperately wounded, the king laid his finger on the
wound and drew with his blood the lilies upon his shield. When we
come, presently, to the Abbe Sieyes, we shall see how firmly men
believed that the nobles were, in the mass, Franks, Teutonic tyrants,
and spoilers of the Celtic native. They intended that feudalism should
not be trimmed but uprooted, as the cause of much that was infinitely
odious, and as a thing absolutely incompatible with public policy,
social interests, and right reason. That men should be made to bear
suffering for the sake of what could only be explained by very early
history and very yellow parchments was simply irrational to a
generation which received its notion of life from Turgot, Adam Smith,
or Franklin.
Although there were three interpretations of feudal privilege, and
consequently a dangerous problem in the near future, the first step
was an easy one, and consisted in the appeal by the Crown to the
Commons for aid in regenerating the State. Like other princes of his
time, Lewis XVI. was a reforming monarch. At his accession, his first
choice of a minister was Machault, known to have entertained a vast
scheme of change, to be attempted whenever the throne should be
occupied by a serious prince. Later, he appointed Turgot, the most
profound and thorough reformer of the century. He appointed
Malesherbes, one of the weakest but one of the most enlightened of
public men; and after having, at the Coronation, taken an oath to
persecute, he gave office to Necker, a Protestant, an alien, and a
republican. When he had begun, through Malesherbes, to remove
religious disabilities, he said to him, "Now you have been a
Protestant, and I declare you a Jew"; and began to prepare a measure
for the relief of Jews, who, wherever they went, were forced to pay
the same toll as a pig. He carried out a large and complicated scheme
of law reform; and he achieved the independence of revolted America.
In later days the Elector of Cologne complained to an _emigre_ that
his king's policy had been deplorable, and that, having promoted
resistance to authority in the Colonies, in Holland, and in Brabant,
he had no claim on the support of European monarchs.
But the impulse in the direction of liberal improvement was
intermittent, and was checked by a natural diffidence and infirmity of
purpose. The messenger who was to summon Machault was recalled as he
mounted his horse. Turgot was sacrificed to gratify the queen.
Necker's second administration would have begun a year and a half
earlier, but, at the last moment, his enemies intervened. The war
minister, Saint Germain, was agreeable to the king, and he wished to
keep him. "But what can I do?" he wrote; "his enemies are bent on his
dismissal, and I must yield to the majority." Maurepas, at his death,
left a paper on which were the names of four men whom he entreated his
master not to employ. Lewis bestowed the highest offices upon them
all. He regarded England with the aversion with which Chatham, and at
that time even Fox, looked upon France, and he went to war in the just
hope of avenging the disgrace of the Seven Years' War, but from no
sympathy with the American cause. When he was required to retrench his
personal expenditure, he objected, and insisted that much of the loss
should be made to fall on his pensioners. The liberal concessions
which he allowed were in many cases made at the expense, not of the
Crown, but of powers that were obstructing the Crown. By the abolition
of torture he incurred no loss, but curbed the resources of opposing
magistrates. When he emancipated the Protestants and made a Swiss
Calvinist his principal adviser, he displeased the clergy; but he
cared little for clerical displeasure. The bishops, finding that he
took no notice of them, disappeared from his _levee_. He objected to
the appointment of French cardinals. English travellers at Versailles,
Romilly and Valpy, observed that he was inattentive at mass, and
talked and laughed before all the court. At the Council he would fall
asleep, and when the discussion was distasteful, he used to snore
louder than when he slept. He said to Necker that he desired the
States-General because he wanted a guide. When, in 1788, after
skirmishing with magistrates and prelates, he took the memorable
resolution to call in the outer people, to compel a compromise with
the class that filled his court, that constituted society, that ruled
opinion, it was the act of a man destitute of energy, and gifted with
an uncertain and indistinct enlightenment. And Necker said, "You may
lend a man your ideas, you cannot lend him your strength of will."
The enterprise was far beyond the power and quality of his mind, but
the lesson of his time was not lost upon him, and he had learnt
something since the days when he spoke the unchanging language of
absolutism. He showed another spirit when he emancipated the serfs of
the Crown, when he introduced provincial and village councils, when he
pronounced that to confine local government to landowners was to
offend a still larger class, when he invited assistance in reforming
the criminal code in order that the result might be the work, not of
experts only, but of the public. All this was genuine conviction. He
was determined that the upper class should lose its fiscal privileges
with as little further detriment as possible. And, to accomplish this
necessary and deliberate purpose, he offered terms to the Commons of
France such as no monarch ever proposed to his subjects. He declared
in later days, and had a right to declare, that it was he who had
taken the first step to concert with the French people a permanent
constitution, the abolition of arbitrary power, of pecuniary
privilege, of promotion apart from merit, of taxation without consent.
When he heard that the Notables had given only one vote in favour of
increased representation of the Third Estate, he said, "You can add
mine." Malouet, the most high-minded and sagacious statesman of the
Revolution, testifies to his sincerity, and declares that the king
fully shared his opinions.
The tributary elements of a free constitution which were granted by
Lewis XVI., not in consultation with deputies, not even always with
public support, included religious toleration, Habeas Corpus, equal
incidence of taxes, abolition of torture, decentralisation and local
self-government, freedom of the press, universal suffrage, election
without official candidates or influence, periodical convocation of
parliament, right of voting supplies, of initiating legislation, of
revising the constitution, responsibility of ministers, double
representation of the Commons at the States-General. All these
concessions were acts of the Crown, yielding to dictates of policy
more than to popular demand. It is said that power is an object of
such ardent desire to man, that the voluntary surrender of it is
absurd in psychology and unknown in history. Lewis XVI. no doubt
calculated the probabilities of loss and gain, and persuaded himself
that his action was politic even more than generous. The Prussian
envoy rightly described him in a despatch of July 31, 1789. He says
that the king was willing to weaken the executive at home, in order to
strengthen it abroad; if the ministers lost by a better regulated
administration, the nation would gain by it in resource, and a limited
authority in a more powerful state seemed preferable to absolute
authority which was helpless from its unpopularity and the irreparable
disorder of finance. He was resolved to submit the arbitrary
_government of his ancestors to the rising forces of the_ day. The
royal initiative was pushed so far on the way to established freedom
that it was exhausted, and the rest was left to the nation. As the
elections were not influenced, as the instructions were not inspired,
the deliberations were not guided or controlled. The king abdicated
before the States-General. He assigned so much authority to the new
legislature that none remained with the Crown, and its powers, thus
practically suspended, were never recovered. The rival classes, that
only the king could have reconciled and restrained, were abandoned to
the fatal issue of a trial of strength.
In 1786 the annual deficit amounted to between four and five millions,
and the season for heroic remedies had evidently come. The artful and
evasive confusion of accounts that shrouded the secret could not be
maintained, and the minister of finance, Calonne, convoked the
Notables for February 1787. The Notables were a selection of important
personages, chiefly of the upper order, without legal powers or
initiative. It was hoped that they would strengthen the hands of the
government, and that what they agreed to would be accepted by the
class to which they belonged. It was an experiment to avert the evil
day of the States-General. For the States-General, which had not been
seen for one hundred and seventy-five years, were the features of a
bygone stage of political life, and could neither be revived as they
once had been, nor adapted to modern society. If they imposed taxes,
they would impose conditions, and they were an auxiliary who might
become a master. The Notables were soon found inadequate to the
purpose, and the minister, having failed to control them, was
dismissed. Necker, his rival and obvious successor, was sent out of
the way, and the Archbishop of Toulouse, afterwards of Sens, who was
appointed in his place, got rid of the Assembly. There was nothing
left to fall back upon but the dreaded States-General. Lafayette had
demanded them at the meeting of the Notables, and the demand was now
repeated far and wide.
On August 8, 1788, the king summoned the States-General for the
following year, to the end, as he proclaimed, that the nation might
settle its own government in perpetuity. The words signified that the
absolute monarchy of 1788 would make way for a representative monarchy
in 1789. In what way this was to be done, and how the States would be
constituted, was unknown. The public were invited to offer
suggestions, and the press was practically made free for publications
that were not periodical. Necker, the inevitable minister of the new
order of things, was immediately nominated to succeed the Archbishop,
and the funds rose 30 per cent in one day. He was a foreigner,
independent of French tradition and ways of thought, who not only
stood aloof from the Catholics, as a Genevese, but also from the
prevailing freethinkers, for Priestley describes him as nearly the
only believer in religion whom he found in intellectual society at
Paris. He was the earliest foreign statesman who studied and
understood the modern force of opinion; and he identified public
opinion with credit, as we should say, with the city. He took the
views of capitalists as the most sensitive record of public
confidence; and as Paris was the headquarters of business, he
contributed, in spite of his declared federalism, to that predominance
of the centre which became fatal to liberty and order.