Читать книгу Considerations on the Principal Events of the French Revolution - Germaine de Stael - Страница 23

CHAPTER XI

Did France Possess a Constitution Before the Revolution? ¹

Of all modern monarchies, France was certainly the one whose political institutions were most arbitrary and fluctuating; and the cause is probably to be sought in the incorporation, at very different periods, of the provinces that compose the kingdom. Each province had different claims and customs; the government skillfully made use of the old against the new ones, and the country became only gradually a whole.

Whatever may be the cause, it is an undoubted fact that there exists no law in France, not even an elementary law, which has not, at some time or other, been disputed—nothing, in short, which has not been the object of difference of opinion. Did, or did not the legislative power reside in the kings? Could they, or could they not impose taxes in virtue of their prerogative and will? Or, the Estates General, were they the representatives of the people, to whom alone belonged the right of granting subsidies? In what manner ought these Estates General to be composed? The privileged classes, who possessed two voices out of three, could they consider themselves as essentially distinct from the nation at large, and entitled, after voting a tax, to relieve themselves from its operation, and to throw its burden on the people? What were the real privileges of the clergy, who at one time held themselves to be independent of the king, at another independent of the pope? What were the powers of the nobles, who, at one time, even down to the minority of Louis XIV, asserted the right of maintaining their privileges by force of arms in alliance with foreigners, while, at another time, they would acknowledge that the king possessed absolute power? What ought to be the situation of the Third Estate, emancipated by the kings, introduced into the Estates General by Philip the Fair,² and yet doomed to be perpetually in a minority, since it had only one vote in three, and since its complaints could carry little weight, presented as they were to the monarch on the knee?

What was the political influence of the parlements, these assemblies, which declared at one time that their sole business was to administer justice, at another that they were the Estates General on a reduced scale, that is, the representatives of the representatives of the people? The same parliaments refused to acknowledge the jurisdiction of the intendants, who were the provincial administrators of the Crown; and the cabinet, on the other hand, contested with the pays d’états the right, to which they pretended, of acquiescing in the taxes. The history of France would supply us with a crowd of examples of similar want of consistency in small things as in great; but enough of the deplorable results of this want of principles. Persons accused of state offenses were almost all deprived of a fair trial; and many of them, without being brought before a court at all, have passed their lives in prisons, to which they had been sent by the sole authority of the executive power. The code of terror against Protestants, cruel punishments, and torture, still existed down to the Revolution.³

The taxes, which pressed exclusively on the lower orders, reduced them to hopeless poverty. A French jurist, only fifty years ago, continued to call the Third Estate, according to custom, the people taxable, and liable at mercy to seignorial service (la gent corvéable et taillable à merci et miséricorde). The power of imprisoning and banishing, after being for some time disputed, became a part of the royal prerogative; and ministerial despotism, a dexterous instrument for the despotism of the Crown, at last carried matters so far as to admit the inconceivable maxim, Si veut le roi, si veut la loi (as wills the king, so wills the law), as the only political institution of France.⁴

The English, proud, and with reason, of their own liberty, have not failed to say that if the national character of the French had not been adapted to despotism, they could not have borne with it so long; and Blackstone,⁵ the first of the English jurists, printed in the eighteenth century these words: “Kings might then, as in France or Turkey, imprison, dispatch, or exile, any man that was obnoxious to them, by an instant declaration that such is their will and pleasure.”^* I postpone, till the end of the work, a view of the national character of the French, too much calumniated in these times; but I cannot avoid repeating what I have already said, that the history of France will be found to exhibit as many struggles against despotic power as that of England. M. de Boulainvilliers, the great champion of the feudal system, asserts repeatedly that the kings of France had neither the right of coining money, of fixing the strength of the army, of taking foreign troops into their pay, nor, above all, of levying taxes, without the consent of the nobles. He is, indeed, somewhat concerned, that there should have been formed a second order out of the clergy, and, still more, a third out of the people; and he loses all patience with the kings of France for assuming the right of granting patents of nobility, which he calls enfranchisements; and with reason, because according to the principles of the aristocracy it is a discredit to be recently ennobled: neither is it less offense to the principles of liberty.

M. de Boulainvilliers is an aristocrat of the true kind, that is, without any mixture of the temper of a courtier, the most degrading of all. He considers the nation as confined to the nobility and reckons that, in a population of more than twenty-four million, there are not above one hundred thousand descendants of the Franks; for he excludes, and rightly, according to his system, all families ennobled by the Crown, as well as the clergy of the second rank; and, according to him, these descendants of the Franks being the conquerors, and the Gauls the conquered, the former alone can participate in the management of public business. The citizens of a state have a right to share in making and preserving the laws; but if there are only one hundred thousand citizens in a state, it is they alone who possess this political right.⁶ The question, therefore, is, whether the 23,900,000 souls at present composing the Third Estate in France are, in fact, vanquished Gauls, or willing to be treated as such.

So long as the degraded condition of serfs allowed things to go on in this manner, we find everywhere governments in which liberties, if not liberty, have been perfectly acknowledged; that is, where privileges have obtained respect as rights. History and reason concur in showing that if, under the first race of the kings of France, those who possessed the right of citizens had a right to sanction legislative acts; if, under Philip the Fair, the free men of the Third Estate (far from numerous in that age, as the mass of the population still were serfs) were associated to the two other orders, it follows that the kings could not make use of them as a political counterpoise without acknowledging them for citizens. The inference is that these citizens were entitled to exercise the same powers, in regard to laws and taxes, as were at first exercised only by the nobles. And when the number of those who have acquired the right of citizens becomes so great that they cannot personally attend at public deliberations, this is when representative government is born.

The different provinces stipulated for certain rights and privileges as they became united to the Crown; and the twelve provincial parlements were successively established, partly for the administration of justice, but particularly for ascertaining whether the royal edicts, which they had the right to promulgate or not, were or were not in unison with the provincial privileges, or with the fundamental laws of the kingdom. Yet their authority in this respect was very precarious. In 1484, when Louis XII, then Duke of Orléans, made a complaint to them of want of attention to the demands of the last Estates, they answered that they were men of study, whose business related not to matters of government, but to the administration of justice. They soon after, however, advanced much higher claims, and their political power was such that Charles V sent two ambassadors to the parlement of Toulouse, to ascertain if they had ratified his treaty with Francis I.⁷ The parlements seemed therefore to have been intended as a habitual limitation of the royal authority; and the Estates General, being superior to parlements, should be considered as a still more powerful barrier. It was customary, in the Middle Ages, to mix the judicial with the legislative power; and the double power of the English peers, as judges in some cases, and legislators in all, is a remnant of this ancient conjunction. Nothing can be more natural in an uncivilized age, than that particular decisions should be antecedent to general laws. The respectability of the judges was in these days such as to make them considered the fittest persons to mold their own decisions into general laws. St. Louis was the first, as is believed, who erected the parlement into a court of justice;⁸ before his time it appears to have been only a royal council; but this sovereign, enlightened by his virtues, felt the necessity of giving strength to the institutions which could serve as a guarantee of the rights of his subjects.

The Estates General had no connection with the administration of justice: we thus recognize in the monarchy of France two powers, which, though badly organized, were each of them independent of the royal authority: the Estates General and the parlements. The ruling policy of the third race of kings was to extend immunities to the towns and to the inhabitants of the country, that they might gradually bring forward the Third Estate as a counterpoise to the great lords. Philip the Fair introduced the national deputies into the Estates General as a third order; because he stood in need of money, and because he dreaded the ill-will which his character had produced, and felt the want of support, not only against the nobles, but against the pope, by whom he was then persecuted. From this time forward (in 1302), the Estates General had, in right if not in fact, equal legislative powers with the English parliament. Their decrees (ordonnances) of 1355 and 1356⁹ were as much in the spirit of liberty as the Magna Charta of England; but there was no provision for the annual convocation of this assembly, and its separation into three orders, instead of into two chambers, gave the King much greater means of setting them in opposition to one another.

The confusion of the political authority of the parlement, which was perpetual, and of that of the Estates General, which approached more to the elective form, is conspicuous in every reign of the kings of France of the third race. During the civil wars which took place, we find the king, the Estates General, and the parlement, each bringing forward different pretensions; but whatever were the avowed or concealed attempts of preceding monarchs, no one before Louis XIV ever openly advanced the doctrine of absolute power. All the strength of the parlements lay in their privilege of registry, since no law could be promulgated or subsequently executed without their consent. Charles VI was the first king who attempted to change the lit de justice, which formerly meant nothing but the presence of the king at a parlementary sitting, into an order to register, by express command, and in spite of remonstrance. The Crown was soon after obliged to cancel the edicts which the parlement had been made to accept by force; and a counselor of Charles VI, who, after having approved of these edicts, supported the canceling of them, being asked by a member of parlement his motive for such a change, replied: “Our rule is to desire what the King desires; we are regulated by the circumstances of the time; and find, by experience, that, in all the revolutions of courts, the best way to maintain our footing is to range ourselves on the stronger side.” Really, in this respect, one could deny the perfectibility of the human species.

Henri III put a stop to the practice of inserting at the top of official edicts, “by express command,” lest the people should refuse to obey them. Henri IV, who came to the crown in 1589, declared, himself, in one of his speeches, quoted by Joly, that parlementary registration was necessary for the validation of royal edicts. The Parlement of Paris, in its remonstrances against Mazarin’s ministry, recalled the promises made by Henri IV and quoted his own words upon the subject: “The authority of kings destroys itself in endeavoring to establish itself too firmly.”

Cardinal Richelieu’s political system entirely consisted in overthrowing the power of the nobles by aid of the people; but before and even during his ministry, the magistrates of parlement always professed the most liberal maxims. Pasquier, under Henri III, said that monarchy was one of the forms of the republic; meaning, by that word, the government whose object is the welfare of the people. The celebrated magistrate Talon thus expressed himself under Louis XIII: “In former years, the orders of the king were not received or executed by the people, unless signed in the original by the grandees of the kingdom, the princes, and higher officers of the crown. This political jurisdiction has now devolved on the parlements. We enjoy this second power, which the authority of time sanctions, which subjects suffer with patience, and honor with respect.”¹⁰

Such were the principles of the parlements; they admitted, like the constitutionists of the present day, the necessity of the consent of the nation; but they declared themselves its representatives, without, however, having the power to deny that the claims of the Estates General were, in this respect, superior. The Parlement of Paris took it amiss that Charles IX should have declared himself arrived at majority at Rouen, and that Henri IV should have convened the Notables. This parlement, being the only one in which the peers of France occupied seats, could alone allege a title to political interference; yet every parlement in the kingdom made similar claims. A strange idea, that a body of judges, indebted for their office either to the king’s appointment or to the practice of purchasing their situations, should come forward and call themselves the representatives of the nation! Yet, singular as was the foundation of their claims, its practical exercise sometimes served as a check to arbitrary power.

The Parlement of Paris had, it must be confessed, all along persecuted the Protestants: horrible to say, it had even instituted an annual procession of thanks for the dreadful day of St. Bartholomew: but in this it was the instrument of party; and no sooner was fanaticism appeased, than this same parliament, composed of men of integrity and courage, often resisted the encroachments of the throne and the ministers. But of what avail was their opposition, when, after all, silence might be imposed on them by a lit de justice held by the king? In what, then, could the French constitution be said to consist? in nothing but the hereditary nature of the royal power. Undoubtedly this is a very good law, since it is conducive to the tranquillity of nations, but it is not a constitution.¹¹

The Estates General were convened only eighteen times between 1302 and 1789: that is, during nearly five centuries. Yet with them alone rested the power of sanctioning a tax; and if all had been regular, their assembling should have taken place each time that new taxes were imposed, but the kings often disputed their power in this respect, and acted in an arbitrary manner without them. The parlements intervened in the sequel between the kings and the Estates General—not denying the unlimited power of the Crown, and yet maintaining that they were the guardians of the laws of the kingdom. But what law can there be in a country where the royal power is unlimited? The parlements made remonstrances on the edicts laid before them; the king then sent them a positive order to register these edicts, and to be silent. To have disobeyed would have been an inconsistency; since, after acknowledging the supremacy of the royal power, what were they themselves, or what could they say, without the permission of that very monarch whose power they were supposed to limit? This circle of pretended oppositions always ended in servitude, and its fatal mark has remained on the face of the nation.

France has been governed by custom, often by caprice, and never by law. There is not one reign like another in a political point of view; everything might be supported, and everything forbidden, in a country where the course of circumstances alone was decisive of what everyone called his right. Will it be alleged that some of the pays d’états maintained their treaties with the Crown? They might found a course of argument on such treaties, but the royal authority cut short all difficulties, and the remaining usages were little else than mere forms, maintained or suppressed according to the will and pleasure of ministers. Did the nobles possess privileges beyond that of exemption from taxes? Even that privilege a despotic king had it in his power to abolish. In fact, the nobles neither could nor ought to boast the possession of a single political right: for, priding themselves in acknowledging the royal authority to be unlimited, they could not complain, either of those special commissions which have sentenced to death the first lords in France, or of the imprisonment, or the exiles which they suffered.¹² The king could do everything, what objection was it then possible to make to anything?

The clergy who acknowledged the power of the pope, and derived from it the power of the king, were alone entitled to make some resistance. But it was themselves who maintained the divine right on which despotism rests, well knowing that this divine right cannot be permanently supported without the priesthood. This doctrine, tracing all power from God, interdicted men from attempting its limitation. Such certainly are not the precepts of the Christian faith; but we speak at present of the language of those who wish to convert religion to their own purposes.

We thus see that the history of France is replete with attempts on the part of the nation and nobles, the one to obtain rights, the other privileges; we see in it also continual efforts of most of the kings to attain arbitrary power. A struggle, similar in many respects, is exhibited in the history of England; but as, in that country there all along existed two houses of Parliament,¹³ the means of resistance were better, and the demands made on the Crown were both more important in their objects and more wisely conducted than in France. The English clergy not being a separate political order, they and the peers together composed almost half of the national representation, and had always much more regard for the people than in France. The great misfortune of France, as of every country governed solely by a court, is the domineering influence of vanity. No fixed principle gains ground in the mind; all is absorbed in the pursuit of power, because power is everything in a country where the laws are nothing.

In England, the Parliament combined in itself the legislative power, which, in France, was shared between the parlements and the Estates General. The English Parliament was considered permanent, but as it had little to do in the way of the administration of justice, the kings abridged its session or postponed its meeting as much as possible. In France the conflict between the nation and the royal authority assumed another aspect: resistance to the power of ministers proceeded with more constancy and energy from those parlements which did the duty of judicial bodies, than from the Estates General. But as the privileges of French parlements were undefined, the result was, that the king was at one time kept in tutelage by them, and they, at another, were trampled underfoot by the king. Two houses, as in England, would have done much less to clog the exercise of the executive power, and much more to secure the national liberty. The Revolution of 1789 had then no other object than to give a regular form to the limitations which have, all along, existed in France.¹⁴ Montesquieu pronounced the rights of intermediate bodies the strength and freedom of a kingdom. Now what intermediate body is the most faithful representative of all the national interests? The two houses of Parliament in England; and even, were it not absurd in theory to entrust a few privileged persons, whether of the magistracy or nobles, with the exclusive discussion of the interests of a nation which has never been able to invest them legally with its powers, the recent history of France, presenting nothing but an almost unbroken succession of disputes relative to the extension of power and of arbitrary acts committed in turn by the different parties, sufficiently proves that it was high time to seek an improved form of national representation.

In regard to the right of the nation to be represented, this right has, ever since France existed, been acknowledged by the kings, the ministers, and the magistrates, who have merited the national esteem. The claim of unlimited royal power has had, undoubtedly, a number of partisans; so many personal interests are involved in that opinion! But what names stand averse to each other in this cause! Louis XI must be opposed to Henri IV; Louis XIII to Louis XII; Richelieu to De l’Hôpital; Cardinal Dubois to M. de Malesherbes; and, if we were to quote all the names preserved in history, we might assert at a venture that, with few exceptions, wherever we meet with an upright heart or an enlightened mind, no matter in what rank of society, we shall there find a friend to liberty; while unlimited power has hardly ever been defended by a man of genius, and still less by a man of virtue.

The Maximes du Droit public François,¹⁵ published in 1775 by a magistrate of the Parlement of Paris, are perfectly accordant with those of the Constituent Assembly on the expediency of balancing the different powers of the state, on the necessity of obtaining the consent of the people to taxes, on their participation in legislative acts, and on the responsibility of ministers. In every page the author recalls the existing contract between the king and the people, and his reasonings are founded on historical facts.

Other respectable members of the French magistracy maintain that there once were constitutional laws in France, but that they had fallen into disuse. Some say that they have ceased to be in vigor since the time of Richelieu, others since Charles V, others since Philip the Fair, while a last party go as far back as Charlemagne. It was assuredly of little importance that such laws had ever existed, if they had been consigned to oblivion for so many ages. But it is easy to close this discussion. If there are fundamental laws, if it be true that they contain all the rights secured to the English nation, the friends of liberty will then be agreed with the partisans of the ancient order of things; and yet the treaty seems to me still a matter of difficult arrangement.

M. de Calonne, who had declared himself averse to the Revolution, published a book to show that France had no constitution.¹⁶ M. de Monthion, chancellor to the Comte d’Artois, published a reply to M. de Calonne and entitled his work A Report to His Majesty Louis XVIII in 1796.

He begins by declaring that if there were no constitution in France, the Revolution was justified, as every people possess a right to a political constitution. This assertion was somewhat hazardous, considering his opinions; but he goes on to affirm, that by the constitutional statutes of France, the King did not have the right of making laws without the consent of the Estates General; that Frenchmen could not be brought to trial but before their natural judges; that every extraordinary tribunal was contrary to law; that, in short, all lettres de cachet, all banishments, and all imprisonments founded merely on the King’s authority were illegal. He added that all Frenchmen had a right to be admitted to public employments, that the military profession conferred the rank of gentleman on all who followed it; that the forty thousand municipalities of the kingdom had the right of being governed by administrators of their choice, with whom rested the assessment of the taxes imposed; that the King could order nothing without his council, which implied the responsibility of ministers; that there existed a material distinction between the royal ordinances (ordonnances) or laws of the King and the fundamental laws of the state; that the judges were not pledged to obey the King’s orders if at variance with the latter; and that the military force could not be employed in the interior, except to put down insurrection or in fulfillment of the mandates of justice. He added that the assembling at stated periods of the Estates General forms part of the French constitution, and concluded by saying, in the presence of Louis XVIII, that the English constitution is the most perfect in the world.

Had all the adherents of the old government professed such principles, the Revolution would have been without apology, since it would have been unnecessary. But the same writer has inserted in his work, in a solemn address to the King, the following sketch of the abuses existing in France before the Revolution.^*

The most essential right of citizenship, the right of voting on the laws and taxes, had, in a manner, become obsolete; and the Crown was in the habit of issuing, on its sole authority, those orders in which it ought to have had the concurrence of the national representatives.

The right in question, though belonging essentially to the nation, seemed transferred to the parlements; and the freedom even of their suffrages had been encroached on by arbitrary imprisonments and lits de justice.

It frequently happened that the laws, regulations, and general decisions of the King, which ought to have been deliberated in council, and which made mention of the concurrence of the council, had never been laid before that body: and in several departments of business this official falsehood had become habitual. Several clerical dignitaries infringed the laws, both in letter and spirit, by holding a plurality of livings, by non-residence, and by the use that they made of the property of the church. A part of the nobles had received their titles in a manner unbecoming the institution; and the services due by the body had not for a length of time been required.

The exemption of the two first orders from taxes was sanctioned by the constitution, but was certainly not the proper kind of return for the services of these orders.

Special commissions in criminal cases, composed of judges chosen in an arbitrary manner, certainly might alarm the innocent.

Those unauthorized acts which deprived individuals of liberty, without a charge and without a trial, were so many infractions on the security of the rights of citizens. The courts of justice, whose stability was all the more important as, in the absence of a national representation, they constituted the only defense of the nation, had been suppressed and replaced by bodies of magistrates who did not possess the confidence of the people: and, since their re-establishment, innovations had been attempted on the most essential points of their jurisdiction.

But it was in matters of finance that the law had been most glaringly violated. Taxes had been imposed without the consent of the nation, or of its representatives.

They had also been collected after the expiration of the time fixed by government for their duration.

Taxes, at first of small amount, had been carried by degrees to an irregular and prodigious height; a part of the taxes pressed more on the indigent than the rich.

The public burdens were assessed on the different provinces without any correct idea of the relative means of each. There was reason sometimes to suspect that deductions had been made in consequence of the resistance opposed to them; so that the want of patriotism had proved a cause of favorable treatment.

Some provinces had succeeded in obtaining tax settlements,¹⁷ and, bargains of this kind being always in favor of the provinces, it was an indulgence to one part of the kingdom at the expense of the rest.

The sums stipulated in these tax settlements remained always the same, while the other provinces were subject to official inquiries which annually increased the tax: this was another source of inequality.

Another abuse consisted in assessing by officers of the Crown, or even by their commissioners, taxes of which the assessment should have been left to persons chosen from among those who were to pay them.

Of some taxes the kings had made themselves judges in their council: commissions were to be established to decide on fiscal questions, the cognizance of which belonged properly to the courts of justice. The public debt which bore so hard on the nation had been contracted without its consent; the loans, to which the parlements had given an assent which they had no right to give, had been exceeded by means of endless irregularities, which were so many acts of treachery at once to the courts of justice, whose sanctions were thus illusory; to the public creditors, who had competitors of whose existence they were ignorant; and to the nation, whose burdens were increased without its knowledge. The public expenditure was in no respect fixed by law.

The funds meant to cover the personal expenses of the king, the funds intended for the payment of the public dividends, and the expenses of government were distinguished only by a particular and secret act of the king’s will.

The personal expenses of our kings had been carried to an enormous amount; the provisions made for guaranteeing some portions of the public debt had been eluded; the king might quicken or delay, as he thought proper, the payments in various parts of the expenditure.

In the pay of the army the sum appropriated to the officers was almost as great as that appropriated to the soldiers.

The salaries of almost all government officers, of whatever description, were too high, particularly for a country where honor ought to be the principal, if not sole reward of services rendered to the state.

The pension list had been carried to a much higher amount than that of other countries in Europe, keeping in view the relative amount of revenue.

Such were the points on which the nation had just ground of complaint, and if we are to censure government for the existence of these abuses, we are likewise to censure the constitution which made their existence possible.

If such was the situation of France, and we can hardly refuse the evidence of a chancellor of the Comte d’Artois, especially when laid officially before the King; if, then, such was the situation of France, even in the opinion of those who asserted that she possessed a constitution, who can deny that a change was necessary, either to give a free course to a constitution hitherto perpetually infringed; or to introduce those guarantees which might give the laws of the state the means of being maintained and obeyed?¹⁸