Part 3

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.

THE ORIGIN OF THE REPUBLIC.

Louis XVI., in 1789, was praised by the mass of the French nation as the best of monarchs, and as the restorer of national liberties; his name was coupled with that of Henry IV., a king about whom tradition had thrown a halo of glory. But, on September 21, 1792, the newly-chosen Convention abolished the monarchy. So rapid is the transition from the one phase of the national feeling to the other, that it occasions a surmise either that the professed loyalty to the monarch in 1789 was not sincere, or that the action of the Convention was the work of a coterie of radicals, who misrepresented the popular feeling. A review of the period intervening between 1789 and 1792 shows that both of these suppositions are unwarranted, and confirms the conclusion that there was a progressive development of hostility, first to Louis XVI. and the royal family, and then to the monarchical government.

Previous to 1789, the term _Republic_ is used by French publicists or agitators, but it is either in a sense so qualified as to be consistent with the monarchy, or as a form of government unsuited to France with its actual traditions and conditions.[93] The very nearly unanimous feeling and judgment in 1789 was that the monarchy was the best form of government for France, and that the chief need was to regenerate it. We have said that one hundred and ninety-four _cahiers_ specifically asked for the retention of the monarchy; the silence of the others upon this question must not be construed to mean that their authors were indifferent or opposed to the monarchy, but rather that they believed it unnecessary to ask for what they already had, and against which there was no strong movement. As Paris may rightly be considered the source of the anti-monarchical agitation, the attitude of the third estate in this city at the opening of the Revolution may justly be taken to represent the feeling of the radical element toward the monarchy. In their _cahier_ they said: “In the French monarchy, the legislative power belongs to the nation conjointly with the king; to the king alone belongs the executive power.”[94] The _sub-cahiers_ from the districts of the city expressed the same idea.[95] In truth, in not a single _cahier_ examined do we find a hint of any opposition to the monarchy. Hence, it is to be inferred that, if any individuals had Republican inclinations, these inclinations were not shared by any appreciable part of the nation. A few men of the reform party, Lauragnais, Lally-Tollendal, and Montlosier, ventured to say that the French monarchy had originally been elective and that the elective monarchy would consequently be not an innovation, but a restoration of their early system;[96] but the adherence of these men to the monarchy in the early days of the _Constituent Assembly_ is conclusive that by the elective monarchy they did not mean the Republic of 1792.

The Constituent Assembly, having been formed out of the States General, had to formulate a constitution for the regeneration of France, and was obliged, therefore, to specify the divisions of government, designate the organs and the functions of each division, prescribe their powers, limitations, sources and transmission; hence the debates and decrees of this national body may be taken as indicative of the public sentiment toward the monarch. Here may be traced the changes worked in the public mind, the censure or the eulogy of persons and institutions. As this national assembly itself became transformed by the withdrawal of the more conservative elements, it reflected rather faithfully the change that was taking place in the minds of the radical classes of France.

This Assembly frequently gave expression of its satisfaction with the monarch and with the monarchy. Near the close of the famous session of August 4, 1789, when feudalism had been so enthusiastically renounced by its own favored sons, M. Lally-Tollendal proposed that they should proclaim “Louis XVI. the Restorer of French liberty.” “The proclamation,” we are told, “was made immediately by the deputies, by the people, and by all those who were present, and the National Assembly resounded for a quarter of an hour with the cries ‘_Vive le roi; vive Louis XVI., restaurateur de la liberté française_.’”[97] As early as July 4, 1789, Gouverneur Morris, a careful observer of the French spirit and movements, wrote: “They wish an American Constitution, with a king in the place of a president.”[98] On August 28, 1789, Mounier presented a project of the monarchical element of the Constitution, and a member made the following statement, the verity of which was not disputed: “Here we should reflect upon the national spirit. For fourteen centuries the French, free to direct themselves by the republican spirit, preferred the peacefulness of the monarchic government to the storms of a republican government.... Louis XVI. is no more upon the throne by the chance of birth, he is there by the choice of the nation; it has raised him there, as formerly our brave ancestors raised Pharamond upon the shield. No one contests the monarchical government. All the _cahiers_ are certainly clear ... we cannot avoid the conclusion, the only government which is suitable to our manners (_moeurs_), to our climate, to the extent of our provinces, is the monarchical government.”[99] Other speeches made on the same occasion are indicative of the strong monarchical spirit that possessed the Assembly at this stage of its history.

Twenty days later, M. de Baron de Juigne proposed to consecrate the principles of the heredity of the crown and the inviolability of the king’s person. Scarcely were these principles announced, than the Assembly proclaimed them by an unanimous movement.[100] These principles were embodied in the decree of September 17, 1789.[101]

From these citations, we are warranted in the inference that the members of the Constituent Assembly in its earlier period regarded the monarchy as the natural and the most suitable form of government for France. On the question of the division of powers, the number of chambers, the elective or hereditary kingship, the absolute or limited veto, there were differences of opinion; but national tradition and personal attachment to Louis XVI. were of sufficient force to bar any discussion of other possible forms for the executive branch.

The first strong manifestation of personal displeasure toward the king reflected in the Assembly, was aroused by his attempt to escape from the country with the royal family, on June 20 and 21, 1791. Fearing to be held longer as a hostage by the revolutionary party and to be supplanted by the invading _émigrés_, the king with his family sought to reach the eastern frontier and there to be free to act independently of both factions; but at Varennes he was arrested and brought back to face the enraged Parisians. It is then that words of displeasure were first heard in the Assembly. What shall be done with the royal fugitive? was then the living question. Some contended that he was inviolable and could not be called to account; others, that his inviolability extended only to public actions, not to private; while still others maintained that he had, by his treason, forfeited his inviolability. The agitation which reigned without found some expression within the Assembly. A committee reported, July 13, that the flight of the king was not a constitutional offense, that the principle of inviolability did not permit Louis XVI. to be put on trial. For three days the discussion over the king’s inviolability was carried on. Pétion, Putraink, Vadier, Robespierre, Prieur, Grégoire, Buzot spoke against, and Larochefoucault, Liancourt, Prugnon, Duport, Goupil de Prefeln, Salles and Barnave for the inviolability. Only Condorcet attempted to show the fitness of France for a Republic.[102] The people were astir without; they met on the squares, in the public places, crowded around the Assembly, and urged the dethronement of the king or the reference of the question to the people of the eighty-three departments. Petitions, posters, and ardent declamations were instruments by which the radicals sought to turn public opinion their way.[103] On July 16, 1791, a decree of the Assembly defined the acts whereby the king should be considered as no longer inviolable. Should he, having taken the oath to the Constitution, violate it: or should he put himself at the head of an army against the nation, or should he fail to oppose such an act on the part of his generals, he should be considered to have abdicated, and might be brought to trial like any ordinary citizen. His executive functions, suspended June 25, were not to be restored till the completion of the Constitution.[104]

The Constitution was completed and reviewed, and on September 14, 1791, the king went to the Constituent Assembly, accepted the Constitution, and, amid prolonged applause, subscribed to this new instrument that was to give liberty to France. He was escorted back to the Tuileries by the entire Assembly. The flight of the monarch seemed forgotten or forgiven.[105]