181 Bourgeois, Solidarité, 86.
182 Ibid. 156.
183 This remark was made in a speech by Bourgeois in 1900, repr. in Solidarité (1904), 234. See also
p. 210.
2
Absolutism, Representation,
and the Constitution
I
‘The cause of the evil, Sire’, wrote Jacques Turgot, principal minister to the newly
crowned Louis XVI, ‘derives from the fact that your nation has no constitution.’1
The consequences, as detailed in the Mémoire sur les municipalités, were grave.
France, Turgot went on, ‘is a society composed of different orders that are badly
united and of a people in which there are few social ties between its members’.
Everyone was concerned with their own selfish interests. There was no sense of the
public good ‘because the common interest was neither visible nor known’. Taxes
were not paid. Commerce was stifled. Every town and village existed like ‘a separate
little republic’. Wherever possible the authority of the crown was circumvented,
with the result that the king was ‘forced to decree on everything’ and was thus seen
as being ‘at war with his people’.
The solutions proposed––but never implemented, as Turgot was removed from
office a year later in 1776––amounted to the introduction of a system of national
instruction designed to produce ‘an educated and virtuous people’ and, more
importantly in our context, a root and branch reorganization of municipal repre-
sentation from the level of the village upwards. The intention of the latter was to
allow a more accurate assessment of individual tax liabilities and a more efficient
provision of public works. The most striking feature of this dimension of the
proposed reforms, however, was that participation in the hierarchy of representative
assemblies was to be based not upon the traditional orders of French society but
upon a property qualification. All of those with a financial stake in society were, in
one way or another, to have their say. Similarly, it is clear that the role of these
assemblies was not to give voice to the will of the nation but rather to inform the
monarch in order that he might better make decisions. The sovereign could, if he so
chose, directly address the highest of the nation’s assemblies but were he to do so it
would only be to indicate the revenue required by the State.
The aim, then, was to give France an ordered and efficient representative
structure so as to place the kingdom upon a sound financial footing. The result
1 ‘Mémoire au Roi, sur les Municipalités, sur la hiérarchie qu’on pourrait établir entre elles, et sur les
services que le gouvernement en pourrait tirer’, Œuvres de Turgot (Osnabrück, 1844), ii. 504.
Absolutism, Representation, Constitution
67
of this new constitution would be such, Turgot assured the king, that ‘in a few
years, Your Majesty will have a new people, the first amongst peoples. In place of
the corruption, cowardice, intrigue and greed that is to be found everywhere, there
will everywhere be virtue, disinterestedness, honour and zeal.’2 We know that
Turgot’s Mémoire was never presented to Louis XVI and that in the years that
followed neither administrative nor financial reform were pursued with any success,
an impasse that led not to the emergence of Turgot’s ‘new people’ but to the
eventual disintegration and bankruptcy of the State. With the failure of the
Assembly of Notables, convened in January 1787 at Versailles, to agree to a
programme of fiscal reform, the king was left with little alternative but to convoke
the Estates-General for its first meeting since the beginning of the seventeenth
century. Financial necessity was now to drive France towards a fundamental
reappraisal of what had been understood by sovereignty, representation, and the
constitution.
‘By 1789’, William Doyle has written, ‘the universal demand was for a
constitution, a clear and inviolable body of law which set explicit limits to
governmental power and defined the rights of all citizens.’3 This assumed that
France did not have a constitution already. Was this so? Until well into the
eighteenth century what was understood by the notion of a constitution was
far from clear. Turgot, for example, took a constitution to be less a form of
government than the way in which a society was organized and structured. This
was undoubtedly one of the common usages.4 Another, which had its origin in
Roman and canon law, was an understanding of the constitution as the body
of laws, edicts, rulings, and declarations which emanated from authority, be it
emperor, monarch, or the Church. It was the latter understanding which had the
greater currency. Moreover, it was undoubtedly the case that French monarchs
felt themselves constrained by a set of fundamental laws that should not be
transgressed.5 Here we might note the complaint made by the exiled future
Louis XVIII and Charles X in September 1791 that their elder brother, Louis
XVI, had no right to concede to the destruction of the old constitution. Indeed,
it was not until 1800 that Louis XVIII abandoned his plans to restore the
‘Ancienne Constitution’. In this sense the kingdom possessed a constitution
grounded in custom and past practice, existing prior to and independently of
the will of any one individual or group of individuals.
The first of these fundamental laws concerned the dynastic right to the French
throne. Succession was secured not by election but through the direct male line,
excluding women and illegitimate offspring. When Louis XIV sought to overturn
this command in the so-called ‘affair of the bastards’ it was seen as a gross violation
2 Ibid. 549.
3 William Doyle, ‘The Parlements’, in Keith Michael Baker (ed.), The Political Culture of the
Old Regime (Oxford, 1987), i. 157.
4 Marina Valensise, ‘La Constitution française’, in Baker, Political Culture, 441–67.
5 Doyle, ‘The Parlements’, 157.
68
Absolutism, Representation, Constitution
of the fundamental laws of the realm––the king was not free to dispose of the crown
as he wished––and was quickly reversed by Louis XV in 1717.6 The second
fundamental law stipulated that the royal domain was inalienable. As the kingdom
was not the personal property of the monarch he had no right to give any part of it
away. Over time this sentiment hardened into the more formal distinction between
the person of the king and the institution of the State, with the former seen
increasingly as the administrator rather than the proprietor of the latter.7 This
carried with it the connotation that the monarch should seek to live off his own
means and resources. He could not tax at will. However, the costly wars embarked
upon by Louis XIV, followed by the financially ruinous involvement in the Seven
Years War and French intervention in the American War of Independence,
transformed taxation from a gift granted to the king by his grateful subjects into
an unwelcome and increasingly onerous imposition from above. It seemed increas-
ingly as if the monarch was serving his own interests rather than the general welfare
&nb
sp; of his people.
Similarly, the fundamental laws of the kingdom dictated not only that the
monarch should act justly and in accordance with the dictates of the Catholic
Church but that he should also respect the customs of the realm. In particular, the
sovereign was bound to acknowledge the privileges and ‘liberties’ enjoyed by the
innumerable bodies, corporations, and organizations that patterned French society.
The extension of royal authority, therefore, could only be obtained by challenging
and destroying these legal and fiscal privileges, a process intensified by the search for
ever-increasing sums of revenue. This long-drawn-out conflict arguably came to a
head with the so-called Maupeou Revolution of 1771 when the king’s chancellor
sought to break the opposition of the French parlements, and especially that of
Paris, to his proposed reforms. By exiling the magistrates of the Paris parlement,
Maupeou demonstrated that the powers of even the most exalted intermediary
bodies could be ignored and that monarchs could act without restraint. ‘It was now
clear to everybody’, Doyle writes, ‘that subjects of the French king had no rights,
and no institutions, that the monarch was not able, or prepared, to violate.’8
There were at least two possible responses to this situation. The first was to
attempt to reverse the decomposition of the ancient constitution by making a
return to what were seen as its primitive origins. The second, and more compelling,
response was to acknowledge the need, as Keith Baker comments, ‘for a restatement
of the principles of the political order, a reconstitution of the body politic’.9 It was
6 The principles governing occupancy of the French throne were known as those of representative
succession. This meant that, in legal terms, the new monarch was taken to be the same person as the
previous king. Louis XIV went to such lengths to subvert this principle because he knew that if the boy
king Louis XV died without an heir, the throne would pass to Philip V of Spain, thus reopening the
prime cause of the war of the Spanish Succession.
7 See Herbert H. Rowan, The King’s State (New Brunswick, NJ, 1980). Rowan’s argument is that
French monarchs never entirely abandoned the practices of ‘proprietory dynasticism’, continuing to
the end to conflate their own and their family’s interests with those of the State.
8 Doyle, ‘The Parlements’, 164.
9 Keith M. Baker, ‘French Political Thought at the Accession of Louis XVI’, Journal of Modern
History, 50 (1978), 283.
Absolutism, Representation, Constitution
69
in this context that the meaning attributed to the idea of a constitution changed
irrevocably, and with radical implications. Henceforth it was to be understood as
the arrangements determining the manner in which the institutions of the State and
of public authority operated. More than this, given the descent of the monarchy
into what was widely perceived to be despotism, the demand was increasingly made
and heard that these arrangements should correspond to the deliberate choice of the
nation. For some this was perceived in terms of a foundational contract between
monarch and citizen but at a minimum it denoted an acceptance that individuals
‘had the right to modify or to recreate the legal forms of their common existence’.10
What form was this to take? How could the deliberate choice of the nation be
expressed and represented? The traditional argument was that it was the monarch
in his own person who represented the people.11 That same logic denied all other
claims. However, with each crisis, the crown seemed less and less to serve the
general welfare and this understanding of representation became increasingly
untenable. The strongest rival claim came from the parlements. These were not
parliaments in the conventional sense but rather courts of law which, in addition,
had the important function of registering, if not initiating, all new laws. Although
they could not reject legislation, they had the right to ‘remonstrate’, to point out
deficiencies and defects in what was being proposed. As they defiantly pursued this
role, they came more and more to see themselves as acting as a restraint upon the
abuse of royal authority. In the process a significant transformation occurred. In
original conception, the function of the parlements was to represent the king to the
nation and, in return, to inform the monarch if his subjects were in distress. As a
consequence of their almost interminable conflicts with the crown during the
eighteenth century, the parlements now presumed to speak to the monarch on
behalf of and as the representatives of the nation. ‘The parlementary opposition’,
Daniel Roche writes, ‘developed four themes . . . : the right of the sovereign courts
to represent the nation; the nation’s right to accept or reject taxes; individual rights;
and the separation of powers.’12 None of these themes, and least of all the first, was
accepted by the crown, which repeatedly restated its representative prerogatives.
The crown was not alone in rejecting the presumptions of the parlements.
For some, the parlements were to be distrusted because they represented not the
interests of the nation but the corporate order. For others, the ease with which the
crown had dissolved and humbled the parlements demonstrated that they were not
capable of representing the nation effectively or of defending the people’s interests.
Moreover, there was a body which, for all its imperfections, had superior claims to
fulfil this function: the Estates-General.
On 8 August 1788 the king, bowing to increasing pressure, convoked the
Estates-General for 1 May of the following year. As this indicates, the Estates-
General was summoned to assemble only at the will of the monarch. Keith Baker
makes clear that in its traditional role it represented the nation not ‘as a separate
10 François Furet and Ran Halévi, La Monarchie républicaine: La Constitution de 1791 (1996), 56.
11 See Keith M. Baker, ‘Representation’, in Baker, Political Culture, 469–92.
12 Daniel Roche, France in the Enlightenment (Cambridge, Mass., 1998), 470.
70
Absolutism, Representation, Constitution
entity apart from the king, but as a multiplicity of orders and Estates made one only
by (and in) the royal presence’.13 It had no legislative function because it exercised
no public will. This explains why the members of the Estates-General were called
upon to present cahiers de doléances before the king. They could not act on behalf of
the communities or corporate bodies which had chosen them but could simply
make known their grievances. Furthermore, respect for the traditional form of their
convocation meant that the Estates-General would meet not as one body but as
three separate orders.
How then might this complex, and changing, pattern of representation be
summarized? Again we can refer to Keith Baker. The traditional logic of represen-
tation, he writes, derived from ‘the essential relationship’ between the monarch and
a particularistic social order. Neither the parlements nor the Estates-General could
stand for or speak on behalf of the whole: the latter in particular could be no more
than mandatories of their community. ‘Representation from above, deputation
from below’, Baker states, ‘such is the traditional juridical formula of the Old
Regime’.14 The problem was that each successive crisis of government heightened
the sense of a crisis of authority, leading this whole theory of representation to
unravel bit by bit, such that if the king might plausibly claim to represent the
(bankrupt) State he could no longer claim to represent the nation as a whole. The
question thus became: who, if not the monarch, could speak on behalf of the nation
and by what mechanism could the nation, if at all, be represented?
This question went to the heart of the theoretical structure of the monarchy, for
the simple reason that it challenged the claim that the king alone embodied the
sovereign public will. This is how, with extreme clarity and vigour, Louis XV
defined his understanding of his own sovereignty in the discours de la flagellation of
3 March 1766:
It is in my person that sovereign power resides. . . . It is from me alone that my courts
derive their authority; and the plenitude of this authority, which they express only in my
name, remains always in me . . . It is to me alone that legislative power belongs, without
any dependence and without any division. . . . The whole public order emanates from
me, and the rights of the nation . . . are necessarily joined with mine and rest only in my
hands.15
Remarkably, Louis XVI repeated this formula almost word for word as late as 1787.16
How could this theory of sovereignty be justified?
Writing in Philosophy and the State in France17 Nannerl Keohane has argued
that, in the context of the absolutist theory of the ancien régime, ‘Frenchmen who
welcomed consolidation of power in the monarchy were . . . not unconcerned with
the securities and liberties of subjects. They believed that concentrated power
13 Baker, ‘Representation’, 471.
14 Ibid.
15 Quoted inWilliam Doyle, The Oxford History of the French Revolution (Oxford, 1989), 38.
16 See Michel Antoine, ‘La Monarchie absolue’, in Baker, Political Culture, 8, and Ruth Scurr, Fatal
Purity: Robespierre and the French Revolution (London, 2007), 57.
17 Nannerl O. Keohane, Philosophy and the State in France (Princeton, NJ, 1980), 7.
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