Part 2
Article 15 was both theoretical and reactionary against actual abuses. If the nation was to be supreme over all of its agents, it could only hope effectually to maintain that superiority by holding all its functionaries strictly accountable. Practical experience under the monarchy in the collection and the expenditure of finances had impressed an effective lesson upon the French people of the abuses incident to irresponsible officers. The _Cour des Aides_, in its noteworthy remonstrance of 1775, reviewed the status of the financial administration. The injustice of the _ferme_, the arbitrariness of the bureaucracy, the complexity of the system, the failure of popular petitions to reach the throne, and the need of thorough reform, were clearly set forth.[39] Then, too, Necker, by the publication of his _Compte rendu_ (1781) and _L’Administration des finances_ (1785), had afforded the nation a glimpse of public finances imperfect, yet in the highest degree stimulating to its curiosity.[40] As an illustration of the status of public opinion, the Notables in 1787 demanded that some report of receipts and expenses should be published annually, and that capable men, foreign to the administration, should be called to the _conseil des finances_ for reviewing the work.[41] Here, too, the _cahiers_ were practically a unit in their demands.
“Art. 17. Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified.”
Private property under the _ancien régime_ was not sacred. De Tocqueville cites the following, which may serve us for illustration of the condition: “A royal declaration was made, suspending in time of war repayment of all loans contracted by towns, villages, colleges, communities, hospitals, charitable houses, trade corporations and others, repayable out of town dues by us conceded, though the instrument securing the said loans stipulates for the payment of interest in the case of non-payment at the stipulated time. Thus not only is the obligation of repayment at the stipulated terms suspended, but the security itself is impaired.”[42] This article, seventeenth, was also reactive against the grievous and burdensome _corvées_, military convoys, and forced transportation of convicts.[43]
The remaining seven articles are more theoretical, covering the doctrines of liberty, equality, natural and inalienable rights, national sovereignty, the social contract and the separation of powers. The views expressed were, in the main, accepted at least in theory in the American States. France was not, however, indebted to the colonies for them; although their germinal ideas had been introduced from the teachings of foreign writers, notably from the English, they had grown up in France largely as a home product.
The doctrine of national or popular sovereignty was no new conception for the French nation. It had been appealed to by the Church to check the secular power, and by the Empire to check ecclesiastical encroachments. Thomas Aquinas, the oracle of the Church, had recognized the popular will as a limitation upon the royal power, and had commended the elective form of monarchy.[44] Marsilio of Padua, in his _Defensor Pacis_, was even more pronounced in favor of popular sovereignty. “The sovereignty of the State,” he said, “rests with the people; by it properly are the laws made and to it they owe their validity. From the nation itself proceeds all rights and powers, it is the authoritative lawgiver among men.”[45] In the sixteenth century the Calvinists and the League alternately made use of the theory of popular sovereignty.[46] This theory was revived in the eighteenth century and popularized by Rousseau and his disciples.
The doctrine of natural rights has not so remote an origin for France. De Tocqueville rightly pointed out the distinction between liberty, regarded as “the enjoyment of a privilege” and liberty considered as “the exercise of a universal right”; he also showed that the Romans and the feudal aristocracy figured their liberties to themselves under the former type; and that it was not till the eighteenth century that the French nation began to conceive of liberty as a natural right.[47]
This transformation of the theory of liberty from a privilege to a natural right was chiefly accomplished after 1734. Boulainvilliers, in _L’Histoire de l’ancien gouvernement de la France_, published (1727) in Holland after his death, asserted as its fundamental thought: “Le gouvernement féodal est le chef d’oeuvre de l’ésprit humain.” To the author, all progress of royal, civil, or municipal authority is an usurpation of the rights of the nobility, who were the only heirs of the early Franks, conquerors of the Gauls.[48] This champion of the feudal aristocracy was not answered in the name of democracy, but of privileged rights. Abbé Dubois, the secretary of the French Academy, replied in “the name of Roman Gaul, semi-municipal and semi-monarchical.” This reply, entitled, “_Histoire critique de l’établissement de la monarchie française_” (1734), denied the Frankish conquest and asserted that the French monarchy had succeeded in a peaceable way to the rights of the Roman Empire over the Gauls, and that the feudal system had been established by usurpation several centuries later. Public opinion and the judgment of the _savants_, says Martin, pronounced in favor of Dubois.[49]
Saint Pierre, d’Argenson, and Montesquieu contributed to the political literature of the century, but did not formulate a new theory of rights. The Physiocrats applied the natural law to economic problems, but not specifically to political questions; this was reserved for Rousseau. In the Genevan philosopher’s writings, natural rights and kindred democratic ideas were treated in such a popular style that they were able to revolutionize the French political theories in a generation.
A critical student cannot attribute complete originality to Rousseau; the similarity of his views to those of Locke is too striking. He borrowed from his English predecessor psychological, philosophical and political conceptions.[50] The _Contrat Social_ (1762), however, according with the nascent political _Zeit-Geist_ of France, found conditions favorable to the ready acceptance of its ideas. The philosophers had shaken the authority of dogma, humanitarian views were gaining prominence, men were tired of arbitrary imprisonments and of useless privileges, moreover, the long struggle between the monarch and the _parlements_ was still unsettled, the theory of the right of _parlement_ to refuse to record decrees was found to need a firmer basis than custom. The sympathies of even the nobles were awakened in behalf of the peasants and the curates. The Physiocrats hoped for tax reform, to be effected by a strong sovereign, though, when attempted by Turgot, it had failed. Amid such conditions the _Contrat Social_ was being read. Its striking, stimulating apothegms furnished apt quotations. Its effect was revolutionary. Even philosophers and magistrates were not insensible to its stimulus.[51] When the nation was called to speak, on the eve of the Estates General, in pamphlets and in _cahiers_, the influence of Rousseau was patent. The speeches made in the National Assembly were constantly interlarded with quotations and ideas from _Contrat Social_.[52]
After this general introduction to the political theories of the Revolution, we are ready to examine the remaining articles of the Declaration of the Rights of Man. We shall place in parallel with these some quotations from the _Contrat Social_ that will serve to indicate the similarity of their ideas.
“1. Men are born and remain | “It is agreed that anything of free and equal in rights. Social | power or property or liberty distinctions may only be founded | which is alienated by the social upon the general good.” | compact, is only a part of all | the use of which is of importance | to the community.”[53] | “2. The aim of all political | “To find a form of association associations is the preservation | which shall defend and protect of the national and imprescriptible | with the public force the person rights of man. These rights are | and property of each associate, liberty, property, security, and | and by means of which each, resistance of oppression.” | uniting with all, shall obey | however only himself, and remain | as free as before; such is the | fundamental problem of which the | _Social Contract_ gives the | solution.”[54] | “3. The principle [principe] of all | “I say then that the sovereignty, sovereignty resides essentially in | being only the exercise of the the nation. No body nor individual | general will, can never alienate may exercise any authority which | itself, and that the sovereign, does not proceed directly from the | who is not a collective being, nation.” | can be represented only by | himself; power can transmit | itself, but not will.”[55] | “4. Liberty consists in being able | “Any service that a citizen can to do everything which injures no | render the State is due from him one else; hence the exercise of the | whenever the sovereign demands it; natural rights of each man has no | but the sovereign, for his part, limits except those which assure to | cannot place any burden upon his the other member of the society the | subjects which will not be useful enjoyment of the same rights. These | to the community; he can not even limits can only be determined by | desire to do so, for, under the law.” | law of reason as under the law of | nature, there is nothing done | without a purpose.”[56] | “5. Law can only prohibit such | “When I say that the object of actions as are hurtful to society. | laws is always general, I mean Nothing may be prevented which is | that the law considers subjects not forbidden by law, and no one | in a body, and actions as may be forced to do anything not | abstract; a man is never provided for by law.” | considered as an individual | nor an action as an individual | action.”[57] | “6. Law is the expression of the | “By whatever path we return to general will. Every citizen has a | the principle, we always reach right to participate personally | the same conclusion; that the or through his representatives in | social compact establishes its formation. It must be the same | among citizens such an equality for all, whether it protects or | that they all engage under the punishes. All citizens, being | same conditions, and should equal in the eyes of the law, are | enjoy the same rights. Thus by equally eligible to all dignities | the nature of the agreement, and to all public positions and | an act of sovereignty, that is, occupations, according to their | any authentic act of the general abilities and without distinction | will, obliges or favors equally except that of their virtues and | all citizens; so that the talents.” | sovereign knows only the body of | the nation and distinguishes no | one of those composing it.”[58]
The Physiocrats also had, in a measure, advocated these principles. Both Quesnay and Turgot expressed themselves unequivocally for the protection of private property.[59] Let it be asserted with the strongest emphasis that these six articles were not merely the expression of theories. They had an intensely practical genesis, for they were the slowly-matured product of a reaction against a long-felt vexatious regime. That regime had interfered with private property and with individual action in such ways as to be grievous, yes, intensely grievous to the people.
“Art. 16. A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.”
The theory of the separation of powers was one idea taught by Montesquieu[60] that had been gradually accepted by his countrymen. He was studied by the would-be-publicists of the Revolutionary era, and much stress was put upon this constitutional principle. The Constitution which they formed is the best example of the thorough application of this impracticable doctrine.[61]
In this discussion we have shown that while the suggestion of a Declaration of Rights came from the early American State Constitutions, its content was French. Its internal resemblance to the American instruments is attributable to the fact that the abuses to be feared and the recognized political theories were the same in both countries. In truth, France had greater reason to apprehend the return of the long-endured abuses, from which she was even then endeavoring to extricate herself, than had America. Likewise the fact that each country had derived its democratic views from a common source—the teachings of the English Puritans—largely explains the identity of the existing political theories.
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, 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.