The first French Republic

by Horace Mann Conaway

THE DECLARATION OF THE RIGHTS OF MAN.

The first question that naturally suggests itself in studying the Declaration of the Rights of Man is, whence did the French derive the idea of such an instrument? It has been asserted, and an attempt has been made to prove, that both the notion of such a Declaration and its content were borrowed from the early American State Constitutions.[1] This question, however, really resolves itself into a double inquiry, i. e., whence did the French receive their notion of the guaranty of individual rights against governmental intrusion, and how far did the ideas contained in the Declaration of the Rights of Man represent the political traditions and current thought of France? Only a study of the abuses and of the political theories of pre-revolutionary France and of the facts relative to this document, as they are revealed in the writings of contemporaries and in the records of the Constituent Assembly, can at all satisfactorily answer these inquiries.

The sympathetic relation between France and the colonies during and after the American Revolution, the interest in America of some of the more radical French political theorists, such as Mably and Condorcet, and the community of ideas existing between the two countries, shown by the Jeffersonian school in America, and by the publication of American writings in France, are facts well known. Hence it may be inferred that, when a few of the cahiers asked for a Declaration, their framers were acquainted with and influenced by the American Bills of Rights.[2] But not until the States General had assumed the rôle of a Constitutional Convention were the proposals of Declarations numerous. Then it was that the Frenchmen gave abundant proof of their fondness for formulating political documents.

On July 9, 1789, M. Mounier, who had been charged by the Constituent Assembly with the preparation of a scheme for a constitution, presented a report in behalf of the committee, the first article of which reads: “Tout gouvernement doit avoir pour unique but le maintien des droits des hommes; d’où il suit que pour rappeller constamment le gouvernement au but proposé, la constitution doit commencer par la déclaration des droits naturels et imprescriptibles de l’homme.”[3] July 11, Lafayette proposed the form of a Declaration of Rights, containing twelve articles, and pointed out the advantages of such an instrument.[4] M. Lally Tollendal approved this project, but argued that it was dangerous to adopt any such articles separate from the Constitution; he at the same time called the attention of the Assembly to the great difference between a new-born colonial people, who were breaking with a distant government, and an old nation extending over an immense territory, one of the first nations of the world, which for eight centuries had obeyed the same dynasty and had cherished the royal power when it had been tempered by custom. This nation, he said, will idolize this power when it shall be regulated by laws.[5] M. Lally Tollendal certainly believed that they were following the American example.

July 14, Lafayette’s motion was discussed. Some thought the Declaration should be put at the head of the Constitution, in order permanently to secure the rights of man before establishing those of society; others thought it should be placed after the Constitution. It was decided at this session that the Constitution should contain a Declaration, but its position was left for later decision.[6] Siéyès read his exposition of the Rights of Man, on July 10, to the Constitutional Committee, and on July 21, to the Assembly.[7] On July 17, M. Target presented a scheme of thirty-one articles for a Declaration, and M. Mounier one of sixteen articles.[8] On July 31, M. D. Servan, advocate to the Parlement of Grenoble, presented a project of thirteen articles. August 1, a long debate occurred upon the position to be given to the Declaration in the Constitution. M. Thouret also offered a scheme for a Declaration. The debate continued. On August 4, M. Camus proposed that the Assembly make a declaration of the rights and duties of man and of a citizen; but this motion was defeated by a vote of 570 to 433.[9] However, at the same session, it was decided almost unanimously that the Constitution should be preceded by the Declaration. On August 12, Abbé Siéyès offered a project of a Declaration of forty-two articles.[9]

During discussion in the Assembly, August 1, M. Champion de Cicé, Bishop of Auxerre, opposed a declaration as useless at that time, and said that the example of North America was not conclusive, as that country only contains proprietors, cultivators, and citizens all on the same social footing. M. De la Luzerne, Bishop of Langres, also asserted that the Constitution of an empire did not need a Declaration. M. Malouet, in making strong protest against their placing the Declaration at the head of the Constitution, portrayed the contrast between the situation of France and that of America.[10] M. Delandine spoke in agreement with M. Malouet.

On August 12, two projects for a Declaration of Rights were offered to the Assembly: one of seventy-one articles, by Gonges-Carton of Quercy, and one of twenty-four articles, by the Sixth Bureau of the Assembly. On August 13, a committee of five, consisting of Desmeuniers, Bishop of Langres, M. Tronchet, Count Mirabeau and M. Rhédon, was chosen to receive the drafts of a Constitution and to recast these into one form.[11] August 14, Mirabeau, on behalf of the committee, reported a scheme of a Declaration containing nineteen articles. In speaking of the aim of the committee, he said, that from the score of plans offered them, they had sought, like the Americans, to construct a Declaration not of abstract and scientific principles, but one of political truths that would readily be comprehended by the popular mind.[12] In the debate of August 18 upon the Declaration, M. Rabaud de Saint Étienne said that the Declaration of Rights had been adopted because the cahiers had asked it, and that the cahiers had asked it because the Americans had set the example, but that this was no reason why the Declarations should be similar, for the circumstances of the two nations were different.[13]

August 19, the Assembly decided to discuss first the Declaration of the Sixth Bureau.[14] On August 21, after some debate, the Assembly adopted the preamble of the plan, somewhat modified, presented by the committee of five. M. Mounier then proposed three articles, which were adopted. August 21, on the proposal of M. Alexander de Lameth, articles four, five, and six, after discussion, were adopted.

August 21, M. de Boislander proposed a plan of seventy-four articles. August 22, after divers proposals had been made and discussed, articles seven, eight, and nine were adopted.[15] August 23, after many proposals and lengthy debate, article ten was agreed upon. August 24, a liberal discussion of the phraseology resulted in the adoption of articles eleven, twelve, and thirteen.[16] August 26, after some discussion, articles fourteen and fifteen were accepted; later in the same day, articles sixteen and seventeen were agreed upon.[17] Then the Assembly resolved that the consideration of further articles should be postponed until the Constitution should be completed.[18] October 2, the articles previously adopted were presented to the Assembly, with article four changed from “La liberté consiste à faire tout ce qui ne nuit pas à autrui,” to “La liberté consiste à pouvoir faire tout” etc. The change was accepted. The whole Constitution was presented to the king September 13, 1791, and accepted by him. In the Assembly, September 14, the king swore to obey the constitution.[19]

These are the facts of historical data relating to the formation of the Declaration of the Rights of Man purposely set forth in detail and in chronological order. What conclusions may we draw from them? The frequent reference to the American Bill of Rights, the number of Declarations proposed in cahiers and before the Assembly, differing in form and in length, but agreeing in fundamental principles, the discussions, the selections and the modifications to which this raw material was subjected in the process of constructing the Declaration finally adopted, warrant these two inferences: (1) the notion of a Declaration of Rights, separate from the Constitution proper, was suggested to the French by the American State Constitutions; (2) the contents of the articles and the language in which they were couched were original.

A study of the separate articles of the Declaration in the light of contemporary conditions gives additional reason for thinking that the ideas therein contained were not foreign to France. For convenience of consideration in the present study, the articles of the Declaration may be divided into two classes: the first class consists of those articles that were in the main reactive against certain abuses under which the French suffered; the second class comprises those articles which contained principles more especially theoretical. Less proof, perhaps, is necessary for deciding upon the originality of the former class than upon that of the latter. We shall treat these classes in the order named.

“Art. 7. No person shall be accused, arrested or imprisoned except in the cases and according to the forms prescribed by law. Any one soliciting, transmitting, executing, or causing to be executed any arbitrary order shall be punished. But any citizen summoned or arrested in virtue of the law shall submit without delay, as resistance constitutes an offense.

“Art. 8. The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law, passed and promulgated before the commission of the offence.

“Art. 9. As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all severity not essential to the securing of the prisoner’s person shall be severely repressed by law.”

That these three articles were aimed at no imaginary or very distant wrongs is evident from a cursory survey of the administration of the laws of France, and from the protests of French authors. Lettres de cachet, arbitrary imprisonments, retroactive laws, and cruelly exaggerated penalties were not uncommon. Mirabeau and Voltaire had both suffered under arbitrary laws and had painted the injustice of such laws in lurid colors. Mirabeau’s Lettres de cachet and his Essai sur le despotisme bristle with protests against the abuses of the old régime. The following gruesome picture is a suggestive statement of the way in which justice was administered in France in the eighteenth century:

“The disproportion of crimes and of penalties was flagrant. A house thief was hung in 1733; an ecclesiastic, guilty of having found fault with the expulsion of the Jesuits, was also hung in 1762. The procedure was unjust and inhuman. The accused, assumed to be guilty in advance, ignorant of the crime with which he was charged, without counsellor or advocate, interrogated à huis clos, submitted to the preparatory question, was judged secretly. Once condemned, he was tortured before undergoing his punishment. And what punishment! For imprisonment, transportation or hanging was in vogue. The burning at the stake had fallen into desuetude, but the lash, branding with red-hot iron, the galleys, quartering, the rack, still did their savage work.”[20]

Protests against these enormities were raised by the philosophers, and later by enlightened magistrates, such as Montesquieu, Servan, Linguet, and Malesherbes. In 1780, the “preparatory question” was abolished.[21]

Mirabeau, in denouncing retroactive laws, says: “Nulle puissance humaine, ni surhumaine ne peut justifier l’effet rétroactif d’aucune loi.”[22]

“Art. 10. No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.”

Since the sixteenth century, France had been wrestling with the problem of how to adjust two hostile faiths to each other. Farther to complicate the matter, a schism occurred in the seventeenth century within the Catholic Church, which aroused between Jesuits and the Jansenists a feeling of intolerance, well-nigh as violent and determined as that which already existed between the Catholics and the Huguenots. Even in the eighteenth century intolerance, held in partial abeyance, frequently broke out in overt acts, which displayed the vindictiveness of the hostile parties. The philosophers, more interested in humanity than in the prejudices of any faction, championed in the name of tolerance the party persecuted. The new spirit gained support. The writings of the latter half of the eighteenth century abound with denunciations of intolerance and with pleas for tolerance.[23] By and by the movement was fruitful, and on January 19, 1788, the Parlement of Paris registered a decree giving civil rights to Protestants.[24]

“Art. 11. The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for the abuse of this freedom as shall be defined by law.”

Here too is an attempt to secure permanently that for which a long struggle had taken place. Two powers, the Church and Royalty, had labored, now singly and now together, to regulate the expression of ideas. The writing and the writer had been equally the object of royal inclemency—the one being consigned to the flames, the other to prison. But in spite of royal decrees, public sentiment gravitated towards liberty of expression. In 1776, Malesherbes secured the opening of the prisons of Vincennes and the Bastille for the release of prisoners held under Lettres de cachet.[25] Again, in 1784, in response to Mirabeau’s “Lettres de cachet,” the dungeons of Vincennes were opened.[26]

“Art. 12. The security of the rights of man and of the citizen requires a public force. This force is, therefore, established for the good of all and not for the personal advantage of those to whom it shall be entrusted.”

This twelfth article was at the same time the expression of a political theory and reactionary against past practices. It was the theory of the framers of the Declaration of the Rights of Man that the nation was supreme, the monarch only an hereditary administrative agent. To maintain this status, the power of military force must be employed only for the advantage of the nation. d’Argenson, in 1754, had complained that “Le roi n’emploie plus ses forces que contre ses sujets.”[27] In 1771, when the obstinate parlement had been replaced by the Grand Conseil, troops were used to guard this substitute which was designated “Maupeou’s parlement,” and the people considered the whole procedure as contrary to the French Constitution.[28] Mirabeau had also denounced the royal army in these plain words: “Je dis que les troupes réglées sont l’instrument du despotisme, comme leur institution en fut le signal. L’exemple de nos voisins n’est pas une preuve contradictoire; et ne voit on pas en effet que toute constitution en Europe est dégénérée en arbitraire et s’accélère vers le despotisme; Les troupes réglées ont été et seront toujours le fléau de la liberté; mais ce fléau est intolérable quand il devient le rempart des déprédations.”[29]

The people in several of the cahiers manifested fear lest the monarch might endanger, by the use of an army, the national rights, and consequently asked for the dismissal of foreign troops, for a new constitution for the army, and for the destruction of internal forts.[30]

“Art. 13. A common contribution is essential for the maintenance of the public forces and for the cost of administration. This should be equitably distributed among all the citizens in proportion to their means.”

The inequality of taxes was, in France, an abuse recognized and condemned for centuries. Bodin, in his République, written in the sixteenth century, criticised the exemption of the clergy and of the nobility.[31] Already under Louis XIII., throughout two-thirds of France, where the taille was a personal tax, 2,000,000 of richer persons were exempt from the taille, while 8,000,000 were taxable. D’Avenel says that the workmen paid under Louis XIII. four and a half times as much as to-day, though they earned much less.[32] The grievous exemptions continued so that the Third Estate during the eighteenth century supported the chief burden of royal taxes and was subjected to onerous feudal dues besides.[33]

The Physiocrats advocated as a remedy for this injustice a system which should make the taxes proportionate to each one’s productive riches. Turgot, taking the first step towards the realization of this idea, said, in defense of his proposal for the abolition of corvées, February, 1776: “The expenses of government having for their object the interest of all, all should contribute to them; and the more one enjoys the advantages of society, the more one should regard himself honored in sharing the expenses.[34] But his efforts were vain; for the privileged classes esteemed their exemptions too highly to submit tamely to a burdensome reform; hence they stubbornly persisted in their resistance to innovations in the customary methods of collecting taxes. Nevertheless there was a growing sentiment in favor of reform;[35] so that when the cahiers of 1789 were prepared, the majority of those of the higher orders acceded to an equal partition in the burdens of the fisc.[36]

“Art. 14. All the citizens have a right to decide, either personally or by their representatives, upon the necessity of the public contribution; to grant this freely; to know to what uses it is put, and to fix the proportion, the mode of assessment and of collection, and the duration of the taxes.”

The French monarch, as in other European countries, from the time that the royal domains were found insufficient to meet the governmental expenses, was engaged in a continual struggle with the nation over the right to grant subsidies. The nation asserted only sporadically and incoherently its right to vote these supplies. For the French did not manifest that persistent and determined resistance to appropriations, unrequited by redress of political grievances, which their English neighbors exhibited so often and in such a marked degree. Nevertheless, during a minority or under a weak monarch, when able popular leaders flourished, the cause of the people was more stubbornly maintained. The States General claimed this guardianship in earlier days; but in the two centuries previous to the Revolution it was the Parlement of Paris that contended with increasing vigor and obstinacy against the arbitrary exactions of the king. As a final resort, it asserted, July 30, 1787, that “le principe constitutionnel de la monarchie française était que les impôts fussent consentis par ceux qui devraient les supporter.”[37] The continued and inextricable confusion of finances was the immediate cause of the calling of the Notables, and later of the States General. So far had the public sentiment reacted against the actual fiscal mismanagement, that the cashier were well-nigh unanimous in seeking for the nation the right to grant subsidies.[38]

“Art. 15. Society has a right to require of every public agent an account of his administration.”

Article 15 was both theoretical and reactionary against actual abuses. If the nation was to be supreme over all of its agents, it could only hope effectually to maintain that superiority by holding all its functionaries strictly accountable. Practical experience under the monarchy in the collection and the expenditure of finances had impressed an effective lesson upon the French people of the abuses incident to irresponsible officers. The Cour des Aides, in its noteworthy remonstrance of 1775, reviewed the status of the financial administration. The injustice of the ferme, the arbitrariness of the bureaucracy, the complexity of the system, the failure of popular petitions to reach the throne, and the need of thorough reform, were clearly set forth.[39] Then, too, Necker, by the publication of his Compte rendu (1781) and L’Administration des finances (1785), had afforded the nation a glimpse of public finances imperfect, yet in the highest degree stimulating to its curiosity.[40] As an illustration of the status of public opinion, the Notables in 1787 demanded that some report of receipts and expenses should be published annually, and that capable men, foreign to the administration, should be called to the conseil des finances for reviewing the work.[41] Here, too, the cahiers were practically a unit in their demands.

“Art. 17. Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified.”

Private property under the ancien régime was not sacred. De Tocqueville cites the following, which may serve us for illustration of the condition: “A royal declaration was made, suspending in time of war repayment of all loans contracted by towns, villages, colleges, communities, hospitals, charitable houses, trade corporations and others, repayable out of town dues by us conceded, though the instrument securing the said loans stipulates for the payment of interest in the case of non-payment at the stipulated time. Thus not only is the obligation of repayment at the stipulated terms suspended, but the security itself is impaired.”[42] This article, seventeenth, was also reactive against the grievous and burdensome corvées, military convoys, and forced transportation of convicts.[43]

The remaining seven articles are more theoretical, covering the doctrines of liberty, equality, natural and inalienable rights, national sovereignty, the social contract and the separation of powers. The views expressed were, in the main, accepted at least in theory in the American States. France was not, however, indebted to the colonies for them; although their germinal ideas had been introduced from the teachings of foreign writers, notably from the English, they had grown up in France largely as a home product.

The doctrine of national or popular sovereignty was no new conception for the French nation. It had been appealed to by the Church to check the secular power, and by the Empire to check ecclesiastical encroachments. Thomas Aquinas, the oracle of the Church, had recognized the popular will as a limitation upon the royal power, and had commended the elective form of monarchy.[44] Marsilio of Padua, in his Defensor Pacis, was even more pronounced in favor of popular sovereignty. “The sovereignty of the State,” he said, “rests with the people; by it properly are the laws made and to it they owe their validity. From the nation itself proceeds all rights and powers, it is the authoritative lawgiver among men.”[45] In the sixteenth century the Calvinists and the League alternately made use of the theory of popular sovereignty.[46] This theory was revived in the eighteenth century and popularized by Rousseau and his disciples.

The doctrine of natural rights has not so remote an origin for France. De Tocqueville rightly pointed out the distinction between liberty, regarded as “the enjoyment of a privilege” and liberty considered as “the exercise of a universal right”; he also showed that the Romans and the feudal aristocracy figured their liberties to themselves under the former type; and that it was not till the eighteenth century that the French nation began to conceive of liberty as a natural right.[47]

This transformation of the theory of liberty from a privilege to a natural right was chiefly accomplished after 1734. Boulainvilliers, in L’Histoire de l’ancien gouvernement de la France, published (1727) in Holland after his death, asserted as its fundamental thought: “Le gouvernement féodal est le chef d’oeuvre de l’ésprit humain.” To the author, all progress of royal, civil, or municipal authority is an usurpation of the rights of the nobility, who were the only heirs of the early Franks, conquerors of the Gauls.[48] This champion of the feudal aristocracy was not answered in the name of democracy, but of privileged rights. Abbé Dubois, the secretary of the French Academy, replied in “the name of Roman Gaul, semi-municipal and semi-monarchical.” This reply, entitled, “Histoire critique de l’établissement de la monarchie française” (1734), denied the Frankish conquest and asserted that the French monarchy had succeeded in a peaceable way to the rights of the Roman Empire over the Gauls, and that the feudal system had been established by usurpation several centuries later. Public opinion and the judgment of the savants, says Martin, pronounced in favor of Dubois.[49]

Saint Pierre, d’Argenson, and Montesquieu contributed to the political literature of the century, but did not formulate a new theory of rights. The Physiocrats applied the natural law to economic problems, but not specifically to political questions; this was reserved for Rousseau. In the Genevan philosopher’s writings, natural rights and kindred democratic ideas were treated in such a popular style that they were able to revolutionize the French political theories in a generation.

A critical student cannot attribute complete originality to Rousseau; the similarity of his views to those of Locke is too striking. He borrowed from his English predecessor psychological, philosophical and political conceptions.[50] The Contrat Social (1762), however, according with the nascent political Zeit-Geist of France, found conditions favorable to the ready acceptance of its ideas. The philosophers had shaken the authority of dogma, humanitarian views were gaining prominence, men were tired of arbitrary imprisonments and of useless privileges, moreover, the long struggle between the monarch and the parlements was still unsettled, the theory of the right of parlement to refuse to record decrees was found to need a firmer basis than custom. The sympathies of even the nobles were awakened in behalf of the peasants and the curates. The Physiocrats hoped for tax reform, to be effected by a strong sovereign, though, when attempted by Turgot, it had failed. Amid such conditions the Contrat Social was being read. Its striking, stimulating apothegms furnished apt quotations. Its effect was revolutionary. Even philosophers and magistrates were not insensible to its stimulus.[51] When the nation was called to speak, on the eve of the Estates General, in pamphlets and in cahiers, the influence of Rousseau was patent. The speeches made in the National Assembly were constantly interlarded with quotations and ideas from Contrat Social.[52]

After this general introduction to the political theories of the Revolution, we are ready to examine the remaining articles of the Declaration of the Rights of Man. We shall place in parallel with these some quotations from the Contrat Social that will serve to indicate the similarity of their ideas.

“1. Men are born and remain free and equal in rights. Social distinctions may only be founded upon the general good.”	“It is agreed that anything of power or property or liberty which is alienated by the social compact, is only a part of all the use of which is of importance to the community.”[53]
“2. The aim of all political associations is the preservation of the national and imprescriptible rights of man. These rights are liberty, property, security, and resistance of oppression.”	“To find a form of association which shall defend and protect with the public force the person and property of each associate, and by means of which each, uniting with all, shall obey however only himself, and remain as free as before; such is the fundamental problem of which the Social Contract gives the solution.”[54]
“3. The principle [principe] of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.”	“I say then that the sovereignty, being only the exercise of the general will, can never alienate itself, and that the sovereign, who is not a collective being, can be represented only by himself; power can transmit itself, but not will.”[55]
“4. Liberty consists in being able to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other member of the society the enjoyment of the same rights. These limits can only be determined by law.”	“Any service that a citizen can render the State is due from him whenever the sovereign demands it; but the sovereign, for his part, cannot place any burden upon his subjects which will not be useful to the community; he can not even desire to do so, for, under the law of reason as under the law of nature, there is nothing done without a purpose.”[56]
“5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.”	“When I say that the object of laws is always general, I mean that the law considers subjects in a body, and actions as abstract; a man is never considered as an individual nor an action as an individual action.”[57]
“6. Law is the expression of the general will. Every citizen has a right to participate personally or through his representatives in its formation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities and without distinction except that of their virtues and talents.”	“By whatever path we return to the principle, we always reach the same conclusion; that the social compact establishes among citizens such an equality that they all engage under the same conditions, and should enjoy the same rights. Thus by the nature of the agreement, an act of sovereignty, that is, any authentic act of the general will, obliges or favors equally all citizens; so that the sovereign knows only the body of the nation and distinguishes no one of those composing it.”[58]

The Physiocrats also had, in a measure, advocated these principles. Both Quesnay and Turgot expressed themselves unequivocally for the protection of private property.[59] Let it be asserted with the strongest emphasis that these six articles were not merely the expression of theories. They had an intensely practical genesis, for they were the slowly-matured product of a reaction against a long-felt vexatious regime. That regime had interfered with private property and with individual action in such ways as to be grievous, yes, intensely grievous to the people.

“Art. 16. A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.”

The theory of the separation of powers was one idea taught by Montesquieu[60] that had been gradually accepted by his countrymen. He was studied by the would-be-publicists of the Revolutionary era, and much stress was put upon this constitutional principle. The Constitution which they formed is the best example of the thorough application of this impracticable doctrine.[61]

In this discussion we have shown that while the suggestion of a Declaration of Rights came from the early American State Constitutions, its content was French. Its internal resemblance to the American instruments is attributable to the fact that the abuses to be feared and the recognized political theories were the same in both countries. In truth, France had greater reason to apprehend the return of the long-endured abuses, from which she was even then endeavoring to extricate herself, than had America. Likewise the fact that each country had derived its democratic views from a common source—the teachings of the English Puritans—largely explains the identity of the existing political theories.