A change followed in 1787, when the Convention drew up the

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.

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