The Parlements, in their resistance to the royal power, showed, as early as the Fronde, a tendency to support each other, but it is particularly in the period of the Maupeou Parlement that the claims to unity and indivisibility became prominent.[73] These remonstrances, as well as the royal responses, were not withheld from the public, as the ordonnances which imposed upon the magistrates the duty of keeping their deliberations secret implied, but were hawked about the streets and eagerly welcomed by the people. Since in times of opposition, each Parlement aroused the sympathies of the citizens under its jurisdiction, their combination for mutual support against the crown extended the area of popular agitation. This exciting literature, issuing from the different courts, had, therefore, an educative effect upon the popular mind, rather in emphasizing the need of some limitation to royal power than in developing distinct and well-defined notions of political laws.[74] The Parlement, while professing exemplary obedience to the king, said that there were moral limits to their obedience.[75] That also took a popular turn, in professing to represent the nation or the people in the absence of the States-General. The remonstrance of the cour des aides, probably drawn up by Malesherbes, in February, 1771, indicates these popular pretensions. “The courts are to-day the only protectors of the feeble and the unfortunate: there have existed for a long time no States-General and in the greater part of the kingdom no provincial estates; all the bodies, except the courts, are reduced to a mute and passive obedience. No individual in the provinces would venture to expose himself to the vengeance of a commandant, of a commissaire du conseil, and still less to those of a minister of Your Majesty. The courts are then the only ones to whom it is still permitted to raise a voice in favor of the people, and Your Majesty does not wish to take away this last resource from distant provinces. But this decree, exiling the Parlement of Paris, tends to render this resource illusory.”[76]
Notwithstanding this avowed guardianship of the national rights, the feeling gradually grew that these ill-defined fundamental laws were too vague, that the Parlements, though persistent, stopped short of pertinacity, and that an aristocratic magistracy was not the real representation of the nation.
The first expression, so far as I have noted, of the need of a more definite political rampart against the crown was that of the Marquis de Mirabeau and his brother. In 1754, the Marquis wrote to his brother: “The more I consider the abuses of society and their remedy, the more I return to what you said to me five years ago, ... that twelve principles established in twelve lines, once written in the head of the Prince or of his minister, and exactly followed in details, would correct and regenerate everything.”[77] But this was only a solitary voice crying in the wilderness; it neither found a response in the people, nor became the determined policy of its enunciator.
The people, however, were awakening at least to the abuses of the ancien régime, and were groping after a remedy. Books, dealing with the right of insurrection, of the superiority of the nation to the crown, and with the refutation of divine rights and passive obedience, were written, read and discussed.[78] Humanitarian views, the theory of natural rights, and, consequently, a sense of the importance of the third estate, gained ground by degrees. Meanwhile the contest between the king and his Parlements continued. The Notables, called in 1787, affirmed that the imprescriptible right to determine financial questions belonged only to the representatives of the nation.[79] The States-General were called for 1789,[80] Owing to the failure of the monarch or minister, purposely or otherwise, to take the initiative, the radical element of the nation were able to secure almost universal suffrage and the union of the orders in one body. Judging from the cahier and the pamphlets of 1788 and 1789, we infer that the consciousness of the inadequacy of the old French Constitution was general.[81] The cahiers, upon the question of the French Constitution, were moreover divided; some desired the preservation of the old Constitution, some a declaration of the rights of the nation, some a charte, while one formulated a new, complete constitution; on the whole, a majority favored a more careful guarantee of the nation’s rights.[82] The cahiers, it must be remarked, show a more perfect and uniform programme of civil reform than of political.
The pamphlets of the day, being the expression of the convictions of individuals, reveal more clearly the political thought of the radical element. Count de Mirabeau’s Lettres de cachet, published in 1783, may be regarded as among the earliest of such personal expressions. Its attitude was rather negative than constructive. It attempted to show that a despotism depended not at all upon the character of the particular sovereign, but on the absence or insufficiency of laws; that France without a veritable constitution was only a despotic state, and that there is no mean between an absolute despotism and the absolute reign of law.[83] In 1787, the Count declared, “What is necessary is a constitution; France is ripe for the Revolution.”[84]
Other pamphlets of 1788 and 1789 indicate a tendency to discuss constitutional law from the historical and crudely comparative standpoint, and to apply the conclusions to the present conditions, but in the attempt to formulate their results, they are less clear and coherent. One of these drawn up in 1789 devotes one hundred and thirty-seven pages to the discussion of the influence of Montesquieu in the present Revolution, and denounces him for not declaring boldly that France was a despotism. It concluded that France has in reality no constitution.[85]
How far the king meant that the States-General should possess a constitutional character is difficult to determine. The Letter of Summons repeatedly asserts the desire to affect a “fixed and constant order in all parts of the administration.”[86] Mirabeau claimed that the king himself had recognized “the necessity of giving France a fixed method of government,”[87] and La Marck confirmed this declaration.[88] We shall perhaps have attributed sufficient meaning to these hazy avowals if we say that Louis XVI., partly from his paternal spirit, and partly from a desire for relief from financial crises, meditated, in his more liberal moods, granting the nation some sort of a charter, in the formulation of which he wished the assistance of the States-General. This resuscitated institution convened at Versailles, May 5, 1789.
The first months were occupied in the disputes over the verification of the powers of the deputies. On May 28, a representative of the nobility, Count de Crillon, said that “he was of the firm opinion that it was less for maintaining than for establishing the Constitution that they were called together.”[89] On June 15, Abbé Siéyès announced that those whose powers had been verified represented ninety-six per cent. of the nation, and suggested as a fitting name, “Assemblée des représentants.” Mirabeau, at the same session, offered a series of resolutions that provoked much discussion, one of which affirmed that their first duty was “to agree upon and to fix legally the principles for the regeneration of the kingdom, to assure the rights of the people, to adopt the basis of a wise and useful constitution, and, to secure these rights from all attempts, they shall be put under the safeguard of the legislative power of the king and of the National Assembly.” Rabaud de Saint Étienne, in another series of resolutions, expressed the same conviction.[90] Two days later, the name “National Assembly” was adopted and an oath taken “to fulfill with zeal and fidelity the duties which devolve upon us.”[91] Debarred from the place usually occupied by the Assembly by the carpenters who were at work upon it, the members of the third estate held their meeting, June 20, in the Tennis Court at Versailles, and there adopted the resolution which declared the National Assembly a Constitutional Convention, and subscribed to the following, known as the Tennis Court Oath: “The National Assembly, regarding itself as called upon to establish the Constitution of the kingdom, effect a regeneration of the state and maintain the true principles of the monarchy, may not be prevented from continuing its deliberations in whatever place it may be forced to take up its sittings. It further maintains that wherever its members are assembled, there is the National Assembly. The Assembly decrees that all its members shall immediately take a solemn oath never to be dissolved and to come together whenever circumstances may dictate, until the Constitution of the kingdom shall be established and placed upon a firm foundation.”[92] It is beyond the sphere of our inquiry to follow this Constituent Assembly in their arduous and complex task of formulating a constitution, and of legislating at the same time for the kingdom, while exposed to court intrigues and popular intrusion.
Therefore, to conclude this chapter as we began, we have shown that the resolution of June 20 was neither a political freak, nor an act of imitation of a foreign nation. The example of the American Republic may have given stimulus and precision, yet the Tennis Court Oath must be regarded as the logical consequence of a transformation, which had been in progress for more than sixty years.