CHAPTER III THE MAKING OF THE CONSTITUTION

THE States-General which met in May, 1789, had in June adopted the name National Assembly. This body is also known as the Constituent Assembly, as its chief work was the making of a constitution. It had begun work upon the constitution while still in Versailles, and the first fruit of its labors was the Declaration of the Rights of Man, a statement of the rights which belong to men because they are human beings, which are not the gift of any government. The declaration was drawn up in imitation of American usage. Lafayette, a hero of the American Revolution, as now a prominent figure in the French, brought forward a draft of a declaration just before the storming of the Bastille. He urged two chief reasons for its adoption: first, it would present the people with a clear conception of the elements of liberty which, once understanding, they would insist upon possessing; and, secondly, it would be an invaluable guide for the Assembly in its work of elaborating the constitution. All propositions could be tested by comparison with its carefully defined principles. It would be a guarantee against mistakes or errors by the Assembly itself. Another orator paid a tribute to America, explaining why “ the noble idea of this declaration, conceived in another hemisphere” ought to be transplanted to France. Opponents of such a statement declared it useless and harmful because bound to distract the members from important labors, as tending to waste time on doubtful generalizations, as leading to hair-splitting and endless debate, when the Assembly’s attention

ought to be focussed on the pressing problems of legislation and administration. The Assembly took the side of Lafayette and, after intermittent discussion, composed the notable document in August, 1789. As a result of the events of October 5, described above, the King accepted it. The declaration, which has been called “the most remarkable fact in the history of the growth of democratic and republican ideas” in France, as “the gospel of modern times,” was not the work of any single mind, nor of any committee or group of leaders. Its collaborators were very numerous. The political discussions of the eighteenth century furnished many of the ideas and even some of the phrases. English and American example counted for much. The necessities of the national situation were factors of importance.

The National Assembly has often been severely criticised for devoting time, in a period of crisis, to a declaration which the critics in the same breath pronounce a tissue of abstractions, of doubtful philosophical theories, topics for everlasting discussion. “A tourney of metaphysical speculations” is what one writer calls it. But a study of the situation shows that the idea of a declaration and the idea of a constitution were indissolubly connected. The one was essential to the other in a country which had no historic principles of freedom. French liberty could not from the nature of the case, like English liberty, slowly broaden down from precedent to precedent. It must begin abruptly and with a distinct formulation. After the enunciation of the prin- ciples would naturally come their conversion into fact.

The Declaration of the Rights of Man laid down the principles of modern governments. The men who drew up that document believed these principles to be universally true and everywhere applicable. They did not establish rights — they merely declared them. Frenchmen well knew that they were composing a purely dogmatic text. But that such a text was extremely useful they believed. And the reason why they believed this was that they had a profound faith in the power of truth, of reason. This was, as Michelet pointed out long ago, the essential originality of the Constituent Assembly, this “singular faith in the power of ideas,” this firm belief that “once formed and formulated in law the truth was invincible.” These political dogmas seemed to the members of the Assembly so true that they thought they had only to proclaim them to insure their efficiency in the actual conduct of governments. These men believed that they were inaugurating a new phase in the history of humanity, that, by solemnly formulating the creed of the future, they were rendering an inestimable service, not to France alone but to the world. Though America had set an example, it was felt that France could “perfect” it for the other hemisphere and that the new declaration might perhaps have the advantage over the other of making “a loftier appeal to reason and of clothing her in a purer language.”

The seventeen articles of this creed asserted that men are free and equal, that the people are sovereign, that law is an expression of the popular will, and that in the making of it the people may participate, either directly, or indirectly through their representatives, and that all officials possess only that authority which has been definitely given them by law. All those liberties of the person, of free speech, free assembly, justice administered by one’s peers, which had been worked out in England and America were asserted. These principles were the opposite of those of the Old Regime. If incorporated in laws and institutions they meant the permanent abolition of that system.

As a matter of fact the expectation that the Declaration would constitute a new evangel for the world has not proved so great an exaggeration as the optimism of its authors and the pessimism of its critics would prompt one to think. When men wish anywhere to recall the rights of man it is this French document that they have in mind. The Declaration long ago passed beyond the frontiers of France. It has been studied, copied, or denounced nearly everywhere. It has been an indisputable factor in the political and social evolution of modern Europe. During the past century, whenever a nation has aspired to liberty, it has sought its principles in the Declaration. “It has found there,” says a recent writer, “five or six formulas as trenchant as mathematical propositions, true as the truth itself, intoxicating as a vision of the absolute.”

The Declaration was, of course, only an ideal, a goal toward which society should aim, not a fulfilment. It was a list of principles, not the realization of those principles. It was a declaration of rights, not a guarantee of rights. The problem of how to guarantee what was so succinctly declared has filled more than a century of French history, and is still incompletely solved. We shall now see how far the Assembly which drafted this Declaration was willing or able to go in applying its principles in the constitution, of which it was the preamble.

The constitution was only slowly elaborated. Some of its more fundamental articles were adopted in 1789. But numerous laws were passed in 1790 and 1791, which were really parts of the constitution. Thus it grew piece by piece. Finally all this legislation was revised, retouched, and codified into a single document, which was accepted by the King in 1791. Though sometimes called the Constitution of 1789, it is more generally and more correctly known as the Constitution of 1791. It was the first written constitution France had ever had. Framed under very different conditions from those under which the constitution of the United States had been framed only a short time before, it resembled the work of the Philadelphia Convention in that it was conspicuously the product of the spirit of compromise. With the exception of the vigorous assertions of the Declaration of the Rights of Man, the document was marked by as great a moderation as was consistent with the thoroughgoing changes that were demanded by the overwhelming public opinion, as represented in the cahiers. It is permeated through and through with two principles, the sovereignty of the people, all governmental powers issuing from their consent and will, and the separation of the powers sharply from each other, of the executive, the legislative, and the judicial branches, a division greatly emphasized by Montesquieu as the sole method of insuring liberty.

The form of government was to be monarchical. This was in conformity with the wishes of the people as expressed in the cahiers, and with the feelings of the Constituent Assembly. But whereas formerly the king was an absolute, henceforth he was to be a limited, a constitutional ruler. Indicative of the pro- found difference between these two conceptions, his former title, King of France and of Navarre, now gave way to that of King of the French. Whereas formerly he had taken what he chose out of the national treasury for his per- sonal use, now he was to receive a salary or civil list of the definite amount — and no more — of 25,000,000 francs. He was to appoint the ministers or heads of the cabinet departments, but he was forbidden to select members of the legislature for such positions. The English system of parliamentary government was deliberately avoided because it was believed to be vicious in that ministers could bribe or influence the members of Parliament to do their will, which might not at all be the will of the people. Ministers were not even to be permitted to come before the legislature to defend or explain their policies.

A departure from the principle of the separation of powers, in general so closely followed, was shown in the granting of the veto power to the king. The king, who had hitherto made the laws, was now deprived of the lawmaking power, but he could prevent the immediate enforcement of an act passed by the legislature. There was much discussion over this subject in the Assembly. Some were opposed to any kind of a veto; others wanted one that should be absolute and final. The Assembly compromised and granted the king a suspensive veto, that is, he might prevent the application of a law voted by two successive legislatures, that is, for a possible period of four years. If the third legislature should indicate its approval of the law in question, then it was to be put into operation whether the king assented or not.

The king was to retain the conduct of foreign affairs in his own hands. He was to appoint and receive ambassadors; was to be the head of the navy and army and was to appoint to higher offices. The Assembly at first thought of leaving him the right to make peace and war, then, fearing that he might drag the nation into a war for personal or dynastic and not national purposes, it decided that he might propose peace or war, but that the legislature should decide upon it.

The legislative power was given by the Constitution of 1791 to a single assembly of 745 members, to be elected for a term of two years. Several of the deputies desired a legislature of two chambers, and cited the example of England and America. But the second chamber in England was the House of Lords, and the French, who had abolished the nobility, had no desire to establish an hereditary chamber. Moreover the English system was based on the principle of inequality. The French were founding their new system upon the principle of equality. Even among the nobles themselves there was opposition to a second chamber — the provincial nobility fearing that only the court nobles would be members of it. On the other hand, the Senate of the United States was a concession to the states-rights feeling, a feeling which the French wished to destroy by abolishing the provinces and the local provincial patriotism, by thoroughly unifying France. Thus the plan of dividing the legislature into two chambers was deliberately rejected, for what seemed good and sufficient reasons.

How was this legislature to be chosen? Here we find a decided departure from the spirit and the letter of the Declaration, which had asserted that all men are equal in rights. Did not this mean universal suffrage? Such at least was not the opinion of the Constituent Assembly, which now made a distinction between citizens, declaring some active, some passive. To be considered an active citizen one must be at least twenty-five years of age and must pay annually in direct taxes the equivalent of three days’ wages. This excluded the poor from this class, and the number was large. It has been estimated that there were somewhat over 4,000,000 active citizens and about 3,000,000 passive.

The active citizens alone had the right to vote. But even they did not vote directly for the members of the legislature. They chose electors at the ratio of one for every 100 active citizens. These electors must meet a much higher property qualification, the equivalent of from 150 to 200 days’ wages in direct taxes. As a matter of fact this resulted in rendering eligible as electors only about 43,000 individuals. These electors chose the members of the legislature, the deputies. They also chose the judges under the new system. Thus the Constituent Assembly, so zealous in abolishing old privileges, was, in defiance of its own principles, establishing new ones. Political rights in the new state were made the monopoly of those who possessed a certain amount of property. There was no property qualification required for deputies. Any active citizen was eligible, but as the deputies were elected by the propertied men, they would in all probability choose only propertied men — the electors would choose from their own class.

The judicial power was completely revolutionized. Hitherto judges had bought their positions, which carried with them titles and privileges and which they might pass on to their sons. Henceforth all judges, of whatever rank in the hierarchy, were to be elected by the electors described above. Their terms were to range from two to four years. The jury, something hitherto absolutely unknown to modern France, was now introduced for criminal cases. Hitherto the judge had decided all cases.

For purposes of administration and local government a new system was established. The old thirty-two provinces were abolished and France was divided into eighty-three departments ofnearly uniform size. The departments were divided into arrondissements, these into cantons,and these into municipalities or communes. These are terms which have ever since been in vogue.

France, from being a highly centralized state, became one highly decentralized. Whereas formerly the central government was represented in each province by its own agents or office-holders, the intendants and their subordinates, in the departments of the future the central government was to have no representatives. The electors were to choose the local departmental officials. It would be the business of these officials to carry out the decrees of the central government — but what if they should disobey? The central government would have no control over them, as it would not appoint them and could neither remove nor discipline them.

The Constitution of 1791 represented an improvement in French government; yet it did not work well and did not last long. As a first experiment in the art of self-government it had its value, but it revealed inexperience and poor judgment in several points which prepared trouble for the future. TIF executive and the legislature were so sharply separated that communication between them was difficult and suspicion was consequently easily fostered. The king might not select his ministers from the legislature, he might not, in case of a difference of opinion with the legislature, dissolve the latter,as the English king could do, thus allowing the voters to decide between them. The king’s veto was not a weapon strong enough to protect him from the attacks of the Assembly, yet it was enough to irritate the Assembly, if used. The distinction between active and passive citizens was in plain and flagrant defiance of the Declaration of the Rights of Man, and inevitably created a discontented class. The administrative decentralization was so complete that the efficiency of the national government was gone. France was split up into eighty-three fragments, and the co- ordination of all these units, their direction toward great national ends in response to the will of the nation as a whole, was rendered extremely difficult, and in certain crises impossible. The work of reform carried out by the Constituent Assembly was on an enormous scale, immensely more extensive than that of our Federal Convention. We search history in vain for any companion piece. It is unique. Its destructive work proved durable and most important. Much of its constructive work, however, proved very fragile. Mirabeau expressed his opinion in saying that “The disorganization of the kingdom could not be better worked out.”

There were other dangerous features of the situation which inspired alarm and seemed to keep open and to embitter the relations of various classes and to foster opportunities for the discontented and the ambitious. The legislation concerning the church proved highly divisive in its effects. It began with the confiscation of its property; it was continued in the attempt profoundly to alter its organization.

The States-General had been summoned to provide for the finances of the country. As the problem grew daily more pressing, as various attempts to meet it proved futile, as bankruptcy was imminent, the Assembly finally decided to sell for the state the vast properties of the church. The argument was that the church was not the owner but was merely the administrator, enjoying only the use of the vast wealth which had been bestowed upon it by the faithful, but bestowed for public, national purposes, namely, the maintenance of houses of worship, schools, hospitals ; and that if the state would otherwise provide for the carrying out of the intentions of these numerous benefactors, it might apply the property, which was the property of the nation, not of the church as a corporation, to whatever uses it might see fit. Acting on this theory a decree was passed by the Assembly declaring these lands national. They constituted perhaps a fourth or a fifth of the territory of France and represented immense wealth, amply sufficient, it was believed, to set the public finances right.

But such property could only be used if converted into money and that would be a slow process, running through years. The expedient was devised of issuing paper money, as the government needed it, against this property as security. This paper money bore the name of assignats. Persons receiving such assignats could not demand gold for them, as in the case of our paper money, but could use them in buying these lands. There was value therefore behind these paper emissions. The danger in the use of paper money, however, always is the inclination, so easy to yield to, to issue far more paper than the value of the property behind it. This proved a temptation that the revolutionary assemblies did not have strength of mind or will to resist. At first the assignats were issued in limited quantities as the state needed the money, and the public willingly accepted them.

But later larger and larger emissions were made, far out of proportion to the value of the national domains. This meant the rapid depreciation of the paper. People would not accept it at its face value, as they had at first been willing to do. The value of the church property was estimated in 1789 as 4,000,000,000 francs. Between 1789 and 1796 over 45,000,000,000 of assignats were issued. In 1789 an assignat of 100 francs was accepted for 100 francs in coin. But by 1791 it had sunk from par to 82, and by 1796 to less than a franc. This was neither an honest nor an effective solution of the perplexing financial problem.

It was evasion, it was in its essence repudiation. The Constituent Assembly did nothing toward solving the problem that had occasioned its meeting. It left the national finances in a worse welter than it had found them in.

Another piece of legislation concerning the church, much more serious in its effects upon the cause of reform, was the Civil Constitution of the Clergy. By act of the Assembly the number of dioceses was reduced from 134 to 83, one for each department. The bishops and priests were henceforth to be elected by the same persons who elected the departmental officials. Once elected, the bishops were to announce the fact to the Pope, who was not to have the right to approve or disapprove but merely to confirm. He was then to recognize them. If he refused, the ordinary courts could be invoked. The clergy were to receive salaries from the state, were, in other words, to become state officials. The income of most of the bishops would be greatly reduced, that of the parish priests considerably increased.

This law was not acceptable to sincere Catholics as it altered by act of politicians an organization that had hitherto been controlled absolutely from within. Bishops and priests were to be elected like other officials — that is, Protestants, Jews, free-thinkers might participate in choosing the religious functionaries of the Catholic Church. Judges, who might be infidels, might yet play a decisive part. The Pope was practically ignored. His nominal headship was not questioned. His real power was largely destroyed. He would be informed of what was happening; his approval would not be necessary.

The Assembly voted that all clergymen must take an oath to support this Civil Constitution of the Clergy. Only four of the 134 bishops consented to do so. Perhaps a third of the parish priests consented. Those who consented were called the juring, those who refused, the non-juring or refractory clergy. In due time elections were held as provided by the law and those elected were called the constitutional clergy. France witnessed the spectacle of two bodies of priests, one non-juring, chosen in the old way, the other elected by the voters indirectly. The scandal was great and the danger appalling, for religious discord was introduced into every city and hamlet. Faith supported the one body, the state supported the other — and the state em- barked upon a long, gloomy, and unsuccessful struggle to impose its will in a sphere where it did not belong.

Most fatal were the consequences. One was that it made the position of Louis XVI, a sincere Catholic, far more difficult and exposed him to the charge of being an enemy of the Revolution, if he hesitated in his support of measures which he could not and did not approve. Another was that it provoked in various sections, notably in Vendee, the most passionate civil war France had ever known. Multitudes of the lower clergy, who had favored and greatly helped the Revolution so far, now turned against it for conscience’ sake. We cannot trace in detail this lamentable chapter of history. Suffice it to say that the Constituent Assembly made no greater or more pernicious mistake. The church had, as , the issue proved, immense spiritual influence over the peasants, the vast bulk of the population. Henceforth there was a divided allegiance — allegiance to the state, allegiance to the church. Men had to make an agonizing choice. The small counter-revolutionary party of the nobles, hitherto a staff of officers without an army, was now reinforced by thousands and millions of recruits, prepared to face any sacrifices. And worldly intriguers could draw on this fund of piety for purposes that were anything but pious. The heat generated by politics is sufficient. There was no need of increasing the temperature by adding the heat of religious controversy. French Revolution or eternal damnation, such was the hard choice placed before the devout.

“I would rather be King of Metz than remain King of France in such a position,” said Louis XVI, as he signed the decree requiring an oath to the Civil Constitution of the Clergy, “but this will end soon.” The meaning of which remark was that the King was now through with his scruples, that he was resolved to call the monarchs of Europe to his aid, that he was determined to escape from this coil of untoward events that was binding him tighter and tighter, threatening soon to strangle him completely. The idea of a royal flight was not new. Marie Antoinette had thought of it long before. Mirabeau had counseled it under certain conditions which, however, were no longer possible. The nobles who had fled from France, some of them after the fall of the Bastille, more of them after the war upon the chateaux, hung upon the fringes of the kingdom, in Belgium, in Piedmont, and particularly in the petty German states that lined the fabled banks of the Rhine, eager to have the King come to them, eager to embroil Europe with France, that thus they might return to Paris with the armies that would surely be easily victorious, and set back the clock to where it stood in 1789, incidentally celebrating that happy occurrence by miscellaneous punishment of all the notable revolutionists, so that henceforth imaginative spirits would hesitate before again laying impious hands upon the Lord’s anointed, upon kings by divine right, upon nobles reposing upon rights no less sacred, upon the holy clergy. The Count of Artois, the proud and empty-headed brother of the King, one of the first to emigrate, had said: “ Weshall return within three months.” As a matter of fact he was to return only after twenty-three years, a considerable miscalculation, pardonable no doubt in that extraordinary age in which every one miscalculated.

Louis XVI, wounded in his conscience, now planned to escape from Paris, to go to the eastern part of France, where there were French troops on which he thought he could rely. Then, surrounded by faithful adherents, he could reassume the kingly role and come back to Paris, master of the situation.

Disguised as a valet the King, accompanied by the Queen, disguised as a Russian lady, escaped from the Tuileries in the night of June 20, 1791, in a clumsy coach. All the next day they rolled over the white highways of Champagne under a terrible sun, reaching at about midnight the little village of Varennes, not far from the frontier. There they were recognized and arrested. The National Assembly sent three commissioners to bring them back. The return was for these two descendants of long lines of kings a veritable ascent of Calvary. Outrages, insults, jokes, ignominies of every kind were hurled at them by the crowds that thronged about them in the villages through which they passed — a journey without rest, uninterrupted, under the annihilating heat, the suffocating dust of June. Reaching Paris they were no longer overwhelmed with insults, but were received in glacial silence by enormous throngs who stood with hats on, as the royal coach passed by. The King was impassive, but “ our poor Queen,” so wrote a friend, “ bowed her head almost to her knees.” Rows of national guards stood, arms grounded, as at funerals. At seven o’clock that night they were in the Tuileries once more. Marie Antoinette had in these few days of horror grown twenty years older. Her hair had turned quite white, “like the hair of a woman of seventy.”

The consequences of this woeful misadventure were extremely grave. Louis XVI had shown his real feelings. The fidelity of his people to him was not entirely destroyed but was irremediably shaken. They no longer believed in the sincerity of his utterances, his oaths to support the constitution. The Queen was visited with contumely, being regarded as the arch-conspirator. The throne was undermined. A republican party appeared. Before this no one had considered a republic possible in so large a country as France. Republics were for small states like those of ancient Greece or medieval Italy. Even the most violent revolutionists, Robespierre, Danton, Marat, were, up to this time, monarchists. Now, however, France had a little object-lesson. During the absence of the King, the government of the Assembly continued to work normally. In the period following, during which Louis XVI was suspended from the exercise of his powers, government went on without damage to the state. A king was evidently not indispensable. It has been correctly stated that the flight to Varennes created the republican party in France, a party that has had an eventful history since then, and has finally, after many vicissitudes, established its regime.

But this republican party was very small. The very idea of a republic frightened the Constituent Assembly, even after the revelation of the faithlessness of the King. Consequently, in a revulsion of feeling, the Assembly, after a little, restored Louis XVI to his position, finished the constitution, accepted his oath to support it, and on September 30, 1791, this memorable body declared its mission fulfilled and its career at an end.

The National Assembly before adjournment committed a final and unnecessary mistake. In a mood of fatal disinterestedness it voted that none of its members should be eligible to the next legislature or to the ministry. Thus the experience of the past two years was thrown away and the new constitution was intrusted to hands entirely different from those that had fashioned it.

If you find an error please notify us in the comments. Thank you!