Revolution and the Republic

by Jeremy Jennings

  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.