VIII
THE CONSTITUTIONAL DEBATES
When the Assembly passed the Rights of Man, they acted in harmony for the last time. Agreement on first principles did not involve agreement in policy, and in applying them to the Constitution, a week later, the division of parties appeared.
From the tennis court to the great constitutional debate, the Moderates, who may be called the Liberals, were predominant. Mounier was their tactician, Clermont Tonnerre and Lally Tollendal were their orators, Malouet was their discreet adviser. They hoped, by the division of powers and the multiplication of checks, to make their country as free as England or America. They desired to control the Representatives in three ways: by a Second Chamber, the royal veto, and the right of dissolution. Their success depended on the support of Ministers and of reconciled Conservatives. Whilst the Constitution for them was a means of regulating and restraining the national will, it was an instrument for accomplishing the popular will for their rivals rising to power on the crest of the wave.
The Democrats refused to resist the people, legitimately governing itself, either by the English or the American division of power. There was little concentration yet of the working class in towns, for the industrial age had hardly dawned, and it was hard to understand that the Third Estate contained divergent interests and the material of a coming conflict. The managers of the democratic party were Duport, Lameth, and Barnave, aided sometimes by Sieyès, sometimes by Talleyrand, and by their sworn enemy Mirabeau.
The nobles, weak in statesmanship, possessed two powerful debaters: Cazalès, who reminded men of Fox, but who, when not on his legs, had little in him; and Maury, afterwards Cardinal and Archbishop of Paris, a man whose character was below his talents. Numbering nearly a third of the Assembly, and holding the balance, it was in their power to make a Constitution like that of 1814.
How these three parties acted in that eventful September, and what in consequence befell, we have now to consider.
The five weeks from August 27 to October 1 were occupied with the constitutional debates. They were kept within narrow limits by the Rights of Man, which declared that the nation transmits all powers and exercises none. On both sides there were men who were impatient of this restriction, and by whom it was interpreted in contrary ways. Some wished for security that the national will should always prevail, through its agents; the others, that they should be able to obstruct it. They struggled for an enlarged construction, and strove to break the barrier, in the republican or the royalist direction.
The discussion opened by a skirmish with the clergy. They observed the significant omission of a State church in the Declaration of Rights, and feared that they would be despoiled and the Church disestablished. The enthusiasm of the first hour had cooled. One after another, ecclesiastics attempted to obtain the recognition of Catholicism. Each time the attempt was repulsed. The clergy drifted fast into the temper which was confessed by Maury when he said, "The proposed measure would enable the Constitution to live: we vote against it."
The scheme of the Committee was produced on August 31, and was explained by Lally in a speech which is among the finest compositions of the time. He insisted on the division of the legislative, and the unity of the executive, as the essentials of a free government. On the following day Mirabeau spoke on the same side. He said that the danger was not from the Crown, but from the representatives; for they may exclude strangers and debate in secret, as the English law allows, and these may declare themselves permanent, and escape all control. Through the king, the public possesses the means of holding them in check. He is their natural ally against usurping deputies, and the possible formation of a new aristocracy. The legislature enjoys a temporary mandate only. The perpetual representative of the people is the king. It is wrong to deny him powers necessary for the public interest. It is the partial appearance of a view that was expanded by Napoleon.
Mounier defended his plan on September 4. On several points there was no large variety of opinion. It was practically admitted that there could be no governing without Parliament, that it must meet annually, that its acts require the royal assent, that it shall be elected indirectly, by equal districts, and a moderate property franchise. Mounier further conceded that the Constitution was not subject to the royal veto, that Ministers should not be members of the Assembly, that the Assembly, and not the king, should have the initiative of proposing laws, and that it should have the right of refusing supplies. The real question at issue was whether the representatives of the people should be checked by an Upper House, by the king's power of dissolution, and by an absolute or a temporary veto.
Mounier had private friends among his opponents, and they opened a negotiation with him. They were prepared to accept his two Houses and his absolute veto. They demanded in return that the Senate should have only a suspensive veto on the acts of the representatives, that there should be no right of Dissolution, that Conventions should be held periodically, to revise the Constitution. These offers were a sign of weakness. The Constitutional party was still in the ascendant, and on August 31 the Bishop of Langres, the chief advocate of a House of Lords, was chosen President by 499 to 328. If the division of the legislature into two was sure of a majority, then the proposed bargain was one-sided, and the Democrats would have taken much more than they gave. Mounier, counting on the support of those whose interest was that he should succeed, rejected the offer. He had already been forced, by the defection of friends, to abandon much that he would have wished to keep; and the plan which he brought forward closely resembled that under which France afterwards prospered.
Nevertheless, the failure of that negotiation is a fatal date in constitutional history. With more address, and a better knowledge of the situation, Mounier might have saved half of the securities he depended on. He lost the whole. The things he refused to surrender at the conference were rejected by the Assembly; and the offers he had rejected were not made again. When the legislature was limited to two years, the right of dissolution lost its value. The right of revision would have caused no more rapid changes than actually ensued; for there were fourteen Constitutions in eighty-six years, or a fundamental revision every six or seven years. Lastly, the veto of the Senate had no basis of argument, until it was decided how the Senate should be composed.
The disastrous ruin of the cause was brought on by want of management, and not by excess of conservatism. Mounier inclined to an hereditary House of Peers; and that, after August 4, was not to be thought of. But he knew the difficulty, and, however reluctantly, gave way. And he attached undue importance to the absolute veto; but that was not the point on which the conference broke up. He was supported by Lafayette, who dreaded as much as he did the extinction of the royal power; at times by Mirabeau, whom he detested. Even Sieyès was willing to have two Houses, and even three, provided they were, in reality, one House, deliberating in three divisions, but counting all the votes in common. He also proposed that there should be a renewal of one-third at a time; so that there would be three degrees of the popular infusion and of proximity to Mother Earth.
Mounier, with some of his friends, deserves to be remembered among the men, not so common as they say, who loved liberty sincerely; I mean, who desired it, not for any good it might do them, but for itself, however arduous, or costly, or perilous its approach might be. They subordinated the means to the end, and never regarded conditional forms as an emanation of eternal principles. Having secured the Rights of Man, they looked with alarm at future legislation, that could not improve, and might endanger them. They wished the Constituent Assembly to bind and bar its successors as far as possible; for none would ever speak with so much authority as the genuine voice of the entire people.
By an extraordinary fortune, the nation, this time, had responded wisely. It was certain that it would not always do so well. It had passions; it had prejudices; it was grossly ignorant; it was not disinterested; and it was demoralised by an evil tradition. The French were accustomed to irresponsible power. They were not likely to consent that the power in their hands should be inferior to that which had been exercised over them, or to admit that an entire people is not above the law which it obeys. It was to be expected that they would endeavour by legislation to diminish those securities for the minority and the weaker cause which were appointed by the Rights of Man. Opinion was changing rapidly, and had become more favourable to violence, more indulgent to crime. A draft project of the Rights of Man had appeared, in which the writer avowed that, by the law of nature, a man may do what he likes in the pursuit of happiness, and, to elude oppression, may oppress, imprison, and destroy.
The man who wrote thus quickly acquired a dread ascendancy over the people, and was able to defy police and governments and assemblies, for it was the beginning of Marat. Lists of proscription were circulated; threatening letters poured in on the deputies; and Paris, at the end of August, was preparing to march upon Versailles, to expel obnoxious members, and, when they ceased to be inviolable, to put them on their trial. These were first-fruits of liberty, and the meed and reward of Liberals. No man can tell in what country such things would remain without effect. In France it was believed that civic courage was often wanting. De Serre, the great orator of the Restoration, once affirmed, from the tribune, that the bulk of the representatives had always been sound. He was interrupted by a furious outcry, and challenged by his legitimist audience to say whether he included the Convention, which, by a majority, condemned the king to death. His answer, very famous in parliamentary history, was, "Yes, even the Convention. And if it had not deliberated under poniards, we should have been spared the most terrible of crimes."
The opposition presented a united front, but was rent by many stages of gravitation towards Democracy. They also were generally anxious to establish political freedom, even by the greatest sacrifices. By freedom they meant, first, deliverance from known and habitual causes of oppression. True, there might be others; but they were less clear and less certain. All European experience proclaimed that the executive constantly masters the legislative, even in England. It was absurd to suppose that every force that, for centuries, had helped to build up absolutism, had been destroyed in two months. They would rise again from the roots, and the conflict would be constantly renewed.
The salvation seemed to lie in the principle that all power is derived from the people, and that none can exist against the people. The popular will may be expressed by certain forms; it cannot be arrested by obstacles. Its action may be delayed; it cannot be stopped. It is the ultimate master of all, without responsibility or exemption, and with no limit that is not laid down in the Rights of Man. The limits there defined are sufficient, and individual liberty needs no further protection. Distrust of the nation was not justified by the manner in which it had chosen and instructed its deputies.
In studying this group of public men, men to whom the future belonged, we are forced to admit the element of national character. No philosophy is cheaper or more vulgar than that which traces all history to diversities of ethnological type and blend, and is ever presenting the venal Greek, the perfidious Sicilian, the proud and indolent Spaniard, the economical Swiss, the vain and vivacious Frenchman. But it is certainly true that in France the liberty of the press represents a power that is not familiar to those who know its weakness and its strength, who have had experience of Swift and Bolingbroke and Junius. Maury once said, "We have a free press: we have everything." In 1812, when Napoleon watched the grand army crossing the Niemen to invade Russia, and whistled the tune of Malbrook, he interrupted his tune to exclaim, "And yet all that is not equal to the songs of Paris!" Chateaubriand afterwards said that, with the liberty of the press, there was no abuse he would not undertake to destroy. For he wrote French as it had never been written, and the magnificent roll of his sentences caught the ear of his countrymen with convincing force. When, in 1824, he was dismissed from the Foreign Office, his friend, the editor of the Journal des Débats, called on the Prime Minister Villèle and warned him, "We have overthrown your predecessor, and we shall be strong enough to overthrow you." Villèle replied, "You succeeded against him by aid of royalism: you cannot succeed against me but by aid of revolution." Both prophecies came true. The alliance of Chateaubriand with the newspaper turned out the Ministry in 1827, and the Monarchy in 1830.
In September 1789, the liberty of the press was only four months old, and the reign of opinion was beginning on the Continent. They fancied that it was an invincible force, and a complete security for human rights. It was invaluable if it secured right without weakening power, like the other contrivances of Liberalism. They thought that when men were safe from the force above them, they required no saving from the influence around them. Opinion finds its own level, and a man yields easily and not unkindly to what surrounds him daily. Pressure from equals is not to be confounded with persecution by superiors. It is right that the majority, by degrees, should absorb the minority. The work of limiting authority had been accomplished by the Rights of Man. The work of creating authority was left to the Constitution. In this way men of varying opinions were united in the conclusion that the powers emanating from the people ought not to be needlessly divided.
Besides Sieyès, who found ideas, and Talleyrand, who found expedients, several groups were, for the time, associated with the party which was managed by Duport. There were some of the most eminent jurists, eager to reform the many systems of law and custom that prevailed in France, who became the lawgivers of successive Assemblies, until they completed their code under Napoleon. Of all the enemies of the old monarchical régime, they were the most methodical and consistent. The leader of the Paris Bar, Target, was their most active politician. When he heard of a plan for setting the finances in order he said, "If anybody has such a plan, let him at once be smothered. It is the disorder of the finances that puts the king in our power." The Economists were as systematic and definite as the lawyers, and they too had much to destroy. Through Dupont de Nemours their theories obtained enduring influence.
There were two or three of the future Girondins who taught that the people may be better trusted than representatives, and who were ready to ratify the Constitution, and even to decide upon the adoption of laws, by the popular vote. And there were two men, not yet distinctly divided from these their future victims, who went farther in opposition to the Rights of Man, and towards the confusion of powers. In their eyes, representation and delegation were treason to true democracy. As the people could not directly govern itself, the principle exacted that it should do so as nearly as possible, by means of a perpetual control over the delegates. The parliamentary vote ought to be constantly brought into harmony with the wish of the constituency, by the press, the galleries and the mob. To act consciously in opposition to the delegating power was a breach of trust. The population of Paris, being the largest collected portion of sovereign power, expresses its will more surely than deputies at second hand. Barère, who was one of these, proposed an ingenious plan by which every law that passed remained suspended until after the next elections, when the country pronounced upon it by imperative mandate. Thus he disposed of royal veto and dissolution.
Robespierre would not suspend the law, but left it to the next legislature to rectify or revoke the errors of the last. He argued that powers require to be checked in proportion to the danger they present. Now the danger from a power not representative exceeds that from a power that represents, and is better acquainted with the needs and wishes of the mass. A nation governs itself, and has a single will, not two. If the whole does not govern the part, the part will govern the whole. Robespierre conceived that it was time to constitute powers sufficient to conquer the outward foe, and also the inward; one for national safety, and one for national progress, and the elevation of the poor at the expense of the minorities that have oppressed them. He stands at the end of the scale, and the idea of liberty, as it runs through the various sets of thought, is transformed into the idea of force. From Sieyès to Barnave, from Barnave to Camus, from Camus to Buzot, and from Buzot the Girondin to Robespierre the Jacobin who killed the Girondins, we traverse the long line of possible politics; but the transitions are finely shaded, and the logic is continuous.
In the second week of September the Constitution of Mounier was defeated by the union of these forces. The main question, the institution of a Senate, was not seriously debated. It was feared as the refuge of the defeated classes, and was not defended by those classes themselves. They were not willing that a new aristocracy should be raised upon their ruins; and they suspected that Government would give the preference to that minority of the nobles who went over in time, and who were renegades in the eyes of the rest. It was felt that a single Chamber is stronger in resistance to the executive than two, and that the time might come for a senate when the fallen aristocracy had ceased to struggle, and the Crown was reconciled to its reduced condition.
On September 9 the President of the Assembly, La Luzerne, bishop of Langres, was driven by insult to resign. The next day the Assembly adopted the single Chamber by 499 to 89, the nobles abstaining.
On September 11 the decisive division took place. Mounier had insisted on the unlimited right of veto. The debate went against him. It was admitted on his own side that the king would, sooner or later, have to yield. The others agreed that the king might resist until two elections had decided in favour of the vetoed measure. He might reject the wish of one legislature, and even of two; he would give way to the third. The Ministers themselves were unable to insist on the absolute veto in preference to the suspensive thus defined. A letter from the king was sent to the Assembly, to inform them that he was content with the temporary veto. Mounier did not allow the letter to be read, that it might not influence votes. He was defeated by 673 to 325. The Conservatives had deserted him when he defended the Upper House; and now the king deserted him when he defended the rights of the Crown. It was a crushing and final disaster. For he fell, maintaining the cause of aristocracy against the nobles, and the cause of prerogative against the monarch. The Democrats triumphed by 410 votes one day, and 350 the next. The battle for the Constitution on the English model was fought and lost.
On September 12 Mounier and his friends retired from the Committee. A new one was at once elected from the victorious majority. At this critical point a secret Council was held, at which the royalists advised the king to take refuge in the provinces. Lewis refused to listen to them. The majority, elated with success, now called on him to sanction the decrees of August 4. His reply, dated September 18, is drawn up with unusual ability. He adopted the argument of Sieyès on the suppression of tithe. He said that a large income would be granted to the land, and that the rich, who ought to contribute most, would, on the contrary, receive most. Small holders would profit little, while those who possessed no land at all would now be mulcted for payment of the clergy. Instead of relieving the nation, it would relieve one class at the expense of another, and the rich at the expense of the poor.
The Assembly insisted that the abolition of feudalism was part of the Constitution, and ought to receive an unconditional sanction. But they promised to give most respectful attention to the remarks of the king, whenever the decrees came to be completed by legislation. The royal sanction was accordingly given on the following day. Thereupon the Assembly made a considerable concession. They resolved, on September 21, that the suspensive veto should extend over two legislatures. The numbers were 728 to 224.
The new Committee, appointed on the 15th, took a fortnight to complete their scheme, on the adopted principles that there should be one Chamber, no dissolution, and a power of retarding legislation without preventing it. On the 29th it was laid before the Assembly by their reporter, Thouret. The voice was the voice of Thouret, but the hand was the hand of Sieyès. At that juncture he augured ill of the Revolution, and repented of his share in it. His Declaration of Rights had been passed over. His proposal to restore the national credit by the surrender of tithe had been rejected. His partition of the Assembly, together with partial renewal, which is favourable to the executive, by never allowing the new parliament to rise, like a giant refreshed, from a general election, had encountered no support. It remained that he should compose the working machinery for his essential doctrine, that the law is the will of him that obeys, not of him that commands. To do this, the Abbé Sieyès abolished the historic Provinces, and divided France into departments. There were to be eighty, besides Paris; and as they were designed to be as nearly as possible equal to a square of about forty-five miles, they differed widely in population and property. They were to have an average of nine deputies each: three for the superficial area, which was invariable; three, more or less, for population; and again three, more or less, according to the amount which the department contributed to the national income. In this way territory, numbers and wealth were represented equally.
Deputies were to be elected in three degrees. The taxpayers, in their primary assemblies, chose electors for the Commune, which was the political unit, and a square of about fifteen miles; the communal electors sent their representatives to the department, and these elected the deputy. Those who paid no taxes were not recognized as shareholders in the national concern. Like women and minors, they enjoyed the benefit of government; but as they were not independent, they possessed no power as active citizens. By a parallel process, assemblies were formed for local administration, on the principle that the right of exercising power proceeds from below, and the actual exercise of power from above.
This is mainly the measure which has made the France of to-day; and when it became law, in December, the chief part of the new Constitution was completed. It had been the work of these two months, from August 4 to September 29. The final promulgation came two years later. No legislative instrument ever failed more helplessly than this product of the wisdom of France in its first parliamentary Assembly, for it lasted only a single year.
Many things had meanwhile occurred which made the constructive design of 1789 unfit to meet the storms of 1792. The finances of the State were ruined; the clergy and the clerical party had been driven into violent opposition; the army was almost dissolved, and war broke out when there was not a disciplined force at the command of Government. After Varennes, the king was practically useless in peace, and impossible in times of danger and invasion; not only because of the degradation of his capture and of his imprisonment on the throne, but because, at the moment of his flight, he had avowed his hostility to the institutions he administered.
The central idea in the plan of September 29, the idea of small provinces and large municipalities, was never appreciated and never adopted. Sieyès placed the unit in the Commune, which was the name he gave to each of the nine divisions of a department. He intended that there should be only 720 of these self-governing districts in France. Instead of 720, the Assembly created 44,000, making the Commune no larger than the parish, and breaking up the administrative system into dust. The political wisdom of the village was substituted for that of a town or district of 35,000 inhabitants.
The explanation of the disastrous result is as much in the Court as in the Legislature, and as much in the legislation that followed as in the policy of the moment in which the great issues were determined, and with which we are dealing. No monarchical constitution could succeed, after Varennes; and the one of which we are speaking, the object of the memorable conflict between Mounier and Sieyès, is not identical with the one that failed. The repudiation of the English model did not cause the quick passage from the Constitution of 1791 to the Republic. Yet the scheme that prevailed shows defects which must bear their portion of blame. Political science imperatively demands that powers shall be regulated by multiplication and division. The Assembly preferred ideas of unity and simplicity.
The old policy of French parliaments nearly suggested a court of revision; but that notion, not yet visible in the Supreme Court of the United States, occurred to Sieyès long after. An effective Senate might have been founded on the provincial assemblies; but the ancient provinces were doomed, and the new divisions did not yet exist, or were hidden in the maps of freemasonry.
Power was not really divided between the legislative and the executive, for the king possessed no resource against the majority of the Assembly. There was no Senate, no initiative, no dissolution, no effective veto, no reliance on the judicial or the Federal element. These are not defects of equal importance; but taken together, they subverted that principle of division which is useful for stability, and for liberty is essential.
The reproach falls not only on those who carried the various measures, but also on the minority that opposed them. Mounier encouraged the suspicion and jealousy of Ministers by separating them from the Assembly, and denying to the king, that is to them, the prerogative of proposing laws. He attributed to the absolute veto an importance which it does not possess; and he frustrated all chance of a Second Chamber by allowing it to be known that he would have liked to make it hereditary. This was too much for men who had just rejoiced over the fall of the aristocracy. In order to exclude the intervention of the king in favour of a suspensive veto, he accepted the argument that the Constitution was in the hands of the Assembly alone. When Lewis raised a just objection to the decrees of August 4, this argument was turned against him, and the Crown suffered a serious repulse.
The intellectual error of the Democrats vanishes before the moral error of the Conservatives. They refused a Second Chamber because they feared that it would be used as a reward for those among them to whose defection they partly owed their defeat. And as they did not wish the Constitution to be firmly established, they would not vote for measures likely to save it. The revolutionists were able to count on their aid against the Liberals.
The watchword came from the Palace, and the shame of their policy recoils upon the king. Late in September one of his nobles told him that he was weary of what he saw, and was going to his own country. "Yes," said the king, taking him aside; "things are going badly, and nothing can improve our position but the excess of evil." On this account Royer Collard, the famous Doctrinaire, said, in later times, that all parties in the Revolution were honest, except the Conservatives.
From the end of August the Paris agitators, who managed the mob in the interest of a dynastic change directed a sustained pressure against Versailles. Thouret, one of the foremost lawyers in the Assembly, who was elected President on August 1, refused the honour. He had been warned of his unpopularity, and gave way to threats. Yielding to the current which, as Mirabeau said, submerges those who resist it, he went over to the other side, and soon became one of their leaders. The experience of this considerable man is an instance of the change that set in, and that was frequent among men without individual conviction or the strength of character that belongs to it.
The downward tendency was so clearly manifest, the lesson taught by successful violence against the king and the aristocracy was so resolutely applied to the Assembly, that very serious politicians sought the means of arresting the movement. Volney, who was no orator, but who was the most eminent of the deputies in the department of letters, made the attempt on September 18. He proposed that there should be new elections for a parliament that should not consist of heterogeneous ingredients, but in which class interests should be disregarded and unknown. He moved that it should represent equality. They reminded him of the oath not to separate until France was a constitutional State, and the protest was ineffectual. But in intellectual France there was no man more perfectly identified with the reigning philosophy than the man who uttered this cry of alarm.