Part 10

On the following day the Marquis de Lacoste proposed that the new debt should be paid out of the funds of the clergy, and that tithe should be simply abolished. He expressed a wish that no ecclesiastic should be a loser, and that the parish clergy should receive an accession of income. The clergy offered no resistance, and made it impossible for others to resist. They offered to raise a loan in behalf of the State; but it was considered that this would give them a position of undue influence, and it would not have satisfied the nobles, who saw the way to recover from the clergy the loss they had sustained. In this debate the Abbé Sieyès delivered his most famous speech. He had no fellow-feeling with his brethren, but he intended that the tithe should enrich the State. Instead of that it was about to be given back to the land, and the landowners would receive a sum of nearly three millions a year, divided in such a way that the richest would receive in proportion to his wealth. It would indemnify the laity. Not they, but the clergy, were now to bear the charge of August 4. There was one deputy who would be richer by 30,000 francs a year upon the whole transaction. The landlords who had bought their estates subject to the tithe had no claim to receive it. As all this argument was heard with impatience, Sieyès uttered words that have added no little to his moral stature: "They fancy that they can be free and yet not be just!" He had been, for three months, the foremost personage in the nation. He was destined in after years, and under conditions strangely altered, to be once more the dictator of France. More than once, without public favour, but by mere power of political thinking, he governed the fortunes of the State. He never again possessed the heart of the people.

The Assembly deemed it a good bargain to restore the tithe to the land; and the clergy knew so well that they had no friends that, on August 11, they solemnly renounced their claim. In this way the Assembly began the disendowment of the Church, which was the primitive cause of the Reign of Terror and the Civil War.

All these things are an episode. The business of the Assembly, from the end of July, was the Constitution. The first step towards it was to define the rights for which it exists. Such a declaration, suggested by America, had been demanded by the electors in several of the instructions, and had been faithfully reproduced by Mounier, July 9. It appeared, on the following day, that Lafayette had already got the required document in his pocket. Another text was produced, ten days later, by Sieyès, and another by Mounier, which was a revision of Lafayette's. Several more came out soon after.

On July 27 the archbishop of Bordeaux, in laying down the outline of the new institutions, observed that it was necessary to found them on principles defined and fixed. On the same day Clermont Tonnerre brought forward his analysis of the available ideas contained in the instructions. He went at once to the heart of the matter. Some instructions, he said, contemplated no more than the reform of existing institutions, with the maintenance of controlling tradition and the historic chain. Others conceived an entirely new system of laws and government. The distinction between the two was this, that some required a code of principles which must be the guide in preparing the Constitution; the others wished for no such assistance, but thought it possible to bind past and future together. The main conflict was between the authority of history and the Rights of Man. The Declaration was the signal of those who meant to rescue France from the ancestors who had given it tyranny and slavery as an inheritance. Its opponents were men who would be satisfied with good government, in the spirit of Turgot and the enlightened reformers of his time, who could be happy if they were prosperous, and would never risk prosperity and peace in the pursuit of freedom.

Those who imagined that France possessed a submerged Constitution that might be extracted from her annals had a difficult task. Lanjuinais desired to sail by a beacon and to direct the politics of 1789 by a charter of 864. There was a special reason, less grotesque than the archæology of Lanjuinais, which made men averse to the Declaration. Liberty, it was said, consists in the reign of the national will, and the national will is known by national custom. Law ought to spring from custom, and to be governed by it, not by independent, individual theory that defies custom. You have to declare the law, not to make it, and you can only declare what experience gives you. The best government devised by reason is less free than a worse government bequeathed by time. Very dimly, ideas which rose to power in other days and evolved the great force of nationality, were at work against a system which was to be new and universal, renouncing the influence both of time and place. The battle was fought against the men of the past, against a history which was an unbroken record of the defeat and frustration of freedom. But the declaration of rights was more needful still against dangers on the opposite side, those that were coming more than those that were going out. People were quite resolved to be oppressed no more by monarchy or aristocracy, but they had no experience or warning of oppression by democracy. The classes were to be harmless; but there was the new enemy, the State.

No European knew what security could be needed or provided for the individual from the collected will of the people. They were protected from government by authority or by minority; but they made the majority irresistible, and the plébiscite a tyranny.

The Americans were aware that democracy might be weak and unintelligent, but also that it might be despotic and oppressive. And they found out the way to limit it, by the federal system, which suffers it to exist nowhere in its plenitude. They deprived their state governments of the powers that were enumerated, and the central government of the powers that were reserved. As the Romans knew how monarchy would become innocuous, by being divided, the Americans solved the more artful problem of dividing democracy into two.

Many Frenchmen were convinced that Federalism would be the really liberal policy for them. But the notion was at once pushed aside by Mounier, and obtained no hearing. And the division of powers, which he substituted, was rejected in its turn. They would not admit that one force should be checked and balanced by another. They had no resource but general principles, to abolish the Past and secure the Future. By declaring them, they raised up an ideal authority over the government and the nation, and established a security against the defects of the Constitution and the power of future rulers. The opponents of the Declaration fought it on the proposal to add a declaration of duties. The idea was put forward by the most learned of the deputies, the Jansenist Camus, and the clergy supported him with energy. The Assembly decided that a system of rights belonged to politics, and a system of duties to ethics, and rejected the motion, on the morning of the 4th of August, by 570 to 433.

This was the deciding division on the question of the Rights of Man. After some days, absorbed by the crisis of aristocracy, the distracted and wearied Assembly turned again from the excitement of facts and interests to the discussion of theory. A new committee of five was appointed to revise the work of the committee of eight, which dealt with the entire Constitution.

On August 17 Mirabeau reported their scheme. His heart was not in it; and he resented the intrusion of hampering generalities and moralities into the difficult experimental science of government. He advised that the Constitution should be settled first, that the guide should follow instead of preceding. The Assembly rejected the proposals of its committees, and all the plans which were submitted by the celebrities. The most remarkable of these was by Sieyès, and it met with favour; but the final vote was taken on a less illustrious composition, which bore no author's name. The selected text was less philosophical and profound, and it roused less distant echoes than its rival; but it was shorter, and more tame, and it was thought to involve fewer doubtful postulates, and fewer formidable consequences. Between the 20th and 26th of August it was still further abridged, and reduced from twenty-four propositions to the moderate dimension of seventeen. These omissions from a document which had been preferred to very remarkable competitors are the key to the intentions of the National Assembly, and our basis of interpretation.

The original scheme included a State Church. This was not adopted. It distinguished the inequality of men from the equality of rights. This was deemed self-evident and superfluous. It derived the mutual rights of men from their mutual duties--and this terrestrial definition also disappeared, leaving the way open to a higher cause. The adopted code was meagre and ill-composed, and Bentham found a malignant pleasure in tearing it to pieces. It is, on the whole, more spiritual than the one on which it was founded, and which it generally follows; and it insists with greater energy on primitive rights, anterior to the State and aloof from it, which no human authority can either confer or refuse. It is the triumphant proclamation of the doctrine that human obligations are not all assignable to contract, or to interest, or to force.

The Declaration of the Rights of Man begins with an appeal to heaven, and defines them in the presence, and under the auspices, of Almighty God. The Preamble implies that our duties towards Him constitute our rights towards mankind, and indicates the divine origin of Law, without affirming it. The Declaration enumerates those rights which are universal, which come from nature, not from men. They are four: Liberty, Property, Security, and Self-defence. Authorities are constituted, and laws are made, in order that these original, essential, and supreme possessions of all mankind may be preserved.

The system of guarantees is as sacred as the rights which they protect. Such are the right of contributing by representatives to legislation and taxation, religious toleration, the liberty of the press. As the rights are equal, the power of ensuring them must be equal. All men alike have a share in representation, all alike are admissible to office, all must be taxed in the same proportion. The law is the same for all. The principle of equality is the idea on which the Declaration most earnestly insists. Privilege had just been overthrown, and the duty of providing against indirect means for its recovery was the occupation of the hour. That this may be secured, all powers must be granted by the people, and none must be exercised by the people. They act only through their agents. The agent who exercises power is responsible, and is controlled by the sovereign authority that delegates it. Certain corollaries seem to follow: restricted suffrage, progressive taxation, an established church, are difficult to reconcile with equality so profoundly conceived. But this is not explicit. Questions regarding education, poverty, revision, are not admitted among the fundamentals and are left to future legislation. The most singular passage is that which ordains that no man may be molested for his opinions, even religious. It would appear that Toleration was that part of the liberal dogma for which the deputies were least prepared.

The Declaration passed, by August 26, after a hurried debate, and with no further resistance. The Assembly, which had abolished the past at the beginning of the month, attempted, at the end, to institute and regulate the future. These are its abiding works, and the perpetual heritage of the Revolution. With them a new era dawned upon mankind.

And yet this single page of print, which outweighs libraries, and is stronger than all the armies of Napoleon, is not the work of superior minds, and bears no mark of the lion's claw. The stamp of Cartesian clearness is upon it, but without the logic, the precision, the thoroughness of French thought. There is no indication in it that Liberty is the goal, and not the starting-point, that it is a faculty to be acquired, not a capital to invest, or that it depends on the union of innumerable conditions, which embrace the entire life of man. Therefore it is justly arraigned by those who say that it is defective, and that its defects have been a peril and a snare.

It was right that the attempt should be made; for the extinction of privilege involved a declaration of rights. When those that were exclusive and unequal were abandoned, it was necessary to define and to insist on those that were equal and the property of all. After destroying, the French had to rebuild, and to base their new structure upon principles unknown to the law, unfamiliar to the people, absolutely opposed to the lesson of their history and to all the experience of the ages in which France had been so great. It could not rest on traditions, or interests, or any persistent force of gravitation. Unless the idea that was to govern the future was impressed with an extreme distinctness upon the minds of all, they would not understand the consequences of so much ruin, and such irrevocable change, and would drift without a compass. The country that had been so proud of its kings, of its nobles, and of its chains, could not learn without teaching that popular power may be tainted with the same poison as personal power.

VIII

THE CONSTITUTIONAL DEBATES

When the Assembly passed the Rights of Man, they acted in harmony for the last time. Agreement on first principles did not involve agreement in policy, and in applying them to the Constitution, a week later, the division of parties appeared.

From the tennis court to the great constitutional debate, the Moderates, who may be called the Liberals, were predominant. Mounier was their tactician, Clermont Tonnerre and Lally Tollendal were their orators, Malouet was their discreet adviser. They hoped, by the division of powers and the multiplication of checks, to make their country as free as England or America. They desired to control the Representatives in three ways: by a Second Chamber, the royal veto, and the right of dissolution. Their success depended on the support of Ministers and of reconciled Conservatives. Whilst the Constitution for them was a means of regulating and restraining the national will, it was an instrument for accomplishing the popular will for their rivals rising to power on the crest of the wave.

The Democrats refused to resist the people, legitimately governing itself, either by the English or the American division of power. There was little concentration yet of the working class in towns, for the industrial age had hardly dawned, and it was hard to understand that the Third Estate contained divergent interests and the material of a coming conflict. The managers of the democratic party were Duport, Lameth, and Barnave, aided sometimes by Sieyès, sometimes by Talleyrand, and by their sworn enemy Mirabeau.

The nobles, weak in statesmanship, possessed two powerful debaters: Cazalès, who reminded men of Fox, but who, when not on his legs, had little in him; and Maury, afterwards Cardinal and Archbishop of Paris, a man whose character was below his talents. Numbering nearly a third of the Assembly, and holding the balance, it was in their power to make a Constitution like that of 1814.

How these three parties acted in that eventful September, and what in consequence befell, we have now to consider.

The five weeks from August 27 to October 1 were occupied with the constitutional debates. They were kept within narrow limits by the Rights of Man, which declared that the nation transmits all powers and exercises none. On both sides there were men who were impatient of this restriction, and by whom it was interpreted in contrary ways. Some wished for security that the national will should always prevail, through its agents; the others, that they should be able to obstruct it. They struggled for an enlarged construction, and strove to break the barrier, in the republican or the royalist direction.

The discussion opened by a skirmish with the clergy. They observed the significant omission of a State church in the Declaration of Rights, and feared that they would be despoiled and the Church disestablished. The enthusiasm of the first hour had cooled. One after another, ecclesiastics attempted to obtain the recognition of Catholicism. Each time the attempt was repulsed. The clergy drifted fast into the temper which was confessed by Maury when he said, "The proposed measure would enable the Constitution to live: we vote against it."

The scheme of the Committee was produced on August 31, and was explained by Lally in a speech which is among the finest compositions of the time. He insisted on the division of the legislative, and the unity of the executive, as the essentials of a free government. On the following day Mirabeau spoke on the same side. He said that the danger was not from the Crown, but from the representatives; for they may exclude strangers and debate in secret, as the English law allows, and these may declare themselves permanent, and escape all control. Through the king, the public possesses the means of holding them in check. He is their natural ally against usurping deputies, and the possible formation of a new aristocracy. The legislature enjoys a temporary mandate only. The perpetual representative of the people is the king. It is wrong to deny him powers necessary for the public interest. It is the partial appearance of a view that was expanded by Napoleon.

Mounier defended his plan on September 4. On several points there was no large variety of opinion. It was practically admitted that there could be no governing without Parliament, that it must meet annually, that its acts require the royal assent, that it shall be elected indirectly, by equal districts, and a moderate property franchise. Mounier further conceded that the Constitution was not subject to the royal veto, that Ministers should not be members of the Assembly, that the Assembly, and not the king, should have the initiative of proposing laws, and that it should have the right of refusing supplies. The real question at issue was whether the representatives of the people should be checked by an Upper House, by the king's power of dissolution, and by an absolute or a temporary veto.

Mounier had private friends among his opponents, and they opened a negotiation with him. They were prepared to accept his two Houses and his absolute veto. They demanded in return that the Senate should have only a suspensive veto on the acts of the representatives, that there should be no right of Dissolution, that Conventions should be held periodically, to revise the Constitution. These offers were a sign of weakness. The Constitutional party was still in the ascendant, and on August 31 the Bishop of Langres, the chief advocate of a House of Lords, was chosen President by 499 to 328. If the division of the legislature into two was sure of a majority, then the proposed bargain was one-sided, and the Democrats would have taken much more than they gave. Mounier, counting on the support of those whose interest was that he should succeed, rejected the offer. He had already been forced, by the defection of friends, to abandon much that he would have wished to keep; and the plan which he brought forward closely resembled that under which France afterwards prospered.