The Revolution.—With the Revolution France entered the ranks of constitutional countries, in which the liberty of men is guaranteed by fixed and definite laws; from this time on, she has had always (except in the interval between two revolutions) a written constitution, which could not be touched by the ordinary legislative power. The first constitution was that of 1791; the states general of 1789, transformed by their own will, backed by public opinion, into the Constituent Assembly, drew it up on their own authority. But their work did not stop there. They abolished the whole of the old public law of France and part of the criminal law, or rather, transformed it in accordance with the principles laid down by the political philosophy of the 18th century. The principles which were then proclaimed are still, on most points, the foundation of modern French law. The development resulting from this extraordinary impetus can be divided into two quite distinct phases: the first, from 1789 to the coup d’état of the 18th Brumaire in the year VIII., was the continuation of the impulse of the Revolution; the second includes the Consulate and the first Empire, and was, as it were, the marriage or fusion of the institutions arising from the Revolution with those of the ancien régime.
On the whole, the constitutional law of the Revolution is a remarkably united whole, if we consider only the two constitutions which were effectively applied during this first phase, that of the 3rd of September 1791, and that of the The Constitutions of the Revolution. 5th Fructidor in the year III. It is true that between them occurred the ultra-democratic constitution of the 24th of June 1793, the first voted by the Convention; but although this was ratified by the popular vote, to which it had been directly submitted, in accordance with a principle proclaimed by the Convention and kept in force under the Consulate and the Empire, it was never carried into effect. It was first suspended by the establishment of the revolutionary government strictly so called, and after Thermidor, under the pretext of completing it, the Convention put it aside and made a new one, being taught by experience. As long as it existed it was the sovereign assembly of the Convention itself which really exercised the executive power, governing chiefly by means of its great committees.
The constitution of 1791 was without doubt monarchical, in so far as it preserved royalty. The constitution of the year III. was, on the contrary, republican. The horror of monarchy was still so strong at that time that an executive college was created, a Directory of five members, one of whom retired every year; they were elected by a complicated and curious procedure, in which each of the two legislative councils played a distinct part. But this difference, though apparently essential, was not in reality very profound; this is proved, for example, by the fact that the Directory had distinctly more extensive powers than those conferred on Louis XVI. by the Constituent Assembly. On almost all points of importance the two constitutions were similar. They were both preceded by a statement of principles, a “Declaration of the Rights of Man and of the Citizen.” They were both based on two principles which they construed alike: the sovereignty of the people and the separation of powers. Both of them (with the exception of what has been said with regard to the ratification of constitutions after 1793) recognized only representative government. From the principle of the sovereignty of the people they had not deduced universal suffrage; though, short of this, they had extended the suffrage as far as possible. According to the constitution of 1791, in addition to the conditions of age and residence, an elector was bound to pay a direct contribution equivalent to three days’ work; the constitution of the year III. recognized the payment of any direct contribution as sufficient; it even conferred on every citizen the right of having himself enrolled, without any other qualification than a payment equivalent to three days’ work, and thus to become an elector. Further, neither of the two constitutions admitted of a direct suffrage; the elections were carried out in two stages, and only those who paid at a higher rating could be chosen as electors for the second stage. The executive power, which was in the case of both constitutions clearly separated from the legislative, could not initiate legislation. The Directory had no veto; Louis XVI. had with difficulty obtained a merely suspensive veto, which was overridden in the event of three legislatures successively voting against it. The right of dissolution was possessed by neither the king nor the Directory. Neither the king’s ministers nor those of the Directory could be members of the legislative body, nor could they even be chosen from among its ranks. The ministers of Louis XVI. had, however, thanks to an unfortunate inspiration of the Constituent Assembly of 1791, the right of entry to, and, to a certain extent, of speaking in the Legislative Assembly; the constitution of the year III. showed greater wisdom in not bringing them in any way into contact with the legislative power. The greatest and most notable difference between the two constitutions was that that of 1791 established a single chamber which was entirely renewed every two years; that of the year III., on the contrary, profiting by the lessons of the past, established two chambers, one-third of the members of which were renewed every year. Moreover, the two chambers, the Council of Five Hundred and the Council of Ancients, were appointed by the same electors, and almost the only difference between their members was that of age.
The Revolution entirely abolished the ancien régime, and in the first instance whatever remained of feudalism. The Constituent Assembly, in the course of its immense work of settlement, wished to draw distinctions, abolishing Abolition of the “ancien régime.” absolutely, without indemnity, all rights which had amounted in the beginning to a usurpation and could not be justified, e.g. serfdom and seigniorial courts of justice. On the other hand, it declared subject to redemption such feudal charges as had been the subject of contract or of a concession of lands. But as it was almost impossible to discover the exact origin of various feudal rights, the Assembly had proceeded to do this by means of certain legal assumptions which sometimes admitted of a proof to the contrary. It carefully regulated the conditions and rate of repurchase, and forbade the creation in the future of any perpetual charge which could not be redeemed: a principle that has remained permanent in French law. This was a rational and equitable solution; but in a period of such violent excitement it could not be maintained. The Legislative Assembly declared the abolishment without indemnity of all feudal rights for which the original deed of concession could not be produced; and to produce this was, of course, in most cases impossible. Finally, the Convention entirely abolished all feudal rights, and commanded that the old deeds should be destroyed; it maintained on the contrary, though subject to redemption, those tenures and charges which were solely connected with landed property and not feudal.
With feudalism had been abolished serfdom. Further, the Constituent Assembly suppressed nobility; it even forbade any one to assume and bear the titles, emblems and arms of nobility. Thus was established the equality of citizens before the law. The Assembly also proclaimed the liberty of labour and industry, and suppressed the corporations of artisans and workmen, the jurandes and maîtrises, as Turgot had done. But, in order to maintain this liberty of the individual, it forbade all associations between workers, or employers, fearing that such contracts would again lead to the formation of corporations similar to the old ones. It even forbade and declared punishable, as being contrary to the declaration of the rights of man and the citizen, combinations or strikes, or an agreement between workmen or employers to refuse to work or to give work except on given conditions. Such, for a long time, was French legislation on this point.
The Constituent Assembly gave to France a new administrative division, that into departments, districts, cantons and communes; and this division, which was intended to make the old provincial distinctions disappear, had to serve all Administrative reorganization. purposes, the department being the unit for all public services. This settlement was definitive, with the exception of certain modifications in detail, and exists to the present day. But there was a peculiar administrative organism depending on this arrangement. The constitution of 1791, it is true, made the king the titulary head of the executive power; but the internal administration of the kingdom was not actually in his hands. It was deputed, under his orders, to bodies elected in each department, district and commune. The municipal bodies were directly elected by citizens duly qualified; other bodies were chosen by the method of double election. Each body consisted of two parts: a council, for deliberative purposes, and a bureau or directoire chosen by the council from among its numbers to form the executive. These were the only instruments for the general administration and for that of the direct taxes. The king could, it is true, annul the illegal acts of these bodies, but not dismiss their members; he could merely suspend them from exercising their functions, but the matter then went before the Legislative Assembly, which could maintain or remit the suspension as it thought fit. The king had not a single agent chosen by himself for general administrative purposes. This was a reaction, though a very exaggerated one, against the excessive centralization of the ancien régime, and resulted in an absolute administrative anarchy. The organization of the revolutionary government partly restored the central authority; the councils of the departments were suppressed; the Committee of Public Safety and the “representatives of the people on mission” were able to remove and replace the members of the elected bodies; and also, by an ingenious arrangement, national agents were established in the districts. The constitution of the year III. continued in this course, simplifying the organization established by the Constituent Assembly, while maintaining its principle. The department had an administration of five members, elected as in the past, but having executive as well as deliberative functions. The district was suppressed. The communes retained only a municipal agent elected by themselves, and the actual municipal body, the importance of which was considerably increased, was removed to the canton, and consisted of the municipal agents from each commune, and a president elected by the duly qualified citizens of the canton. The Directory was represented in each departmental and communal administration by a commissary appointed and removable by itself, and could dismiss the members of these administrations.
The Constituent Assembly decided on the complete reorganization of the judicial organization. This was accomplished on a very simple plan, which realized that ideal of the two degrees of justice which, as we have noticed, was Judicial system. that of France under the ancien régime. In the lower degrees it created in each canton a justice of the peace (juge de paix), the idea and name of which were borrowed from England, but which differed very much from the English justice of the peace. He judged, both with and without appeal, civil cases of small importance; and, in cases which did not come within his competency, it was his duty to try to reconcile the parties. In each district was established a civil court composed of five judges. This completed the judicial organization, except for the court of cassation, which had functions peculiar to itself, never judging the facts of the case but only the application of the law. For cases coming under the district court, the Assembly had not thought fit to abolish the guarantee of the appeal in cases involving sums above a certain figure. But by a curious arrangement the district tribunals could hear appeals from one another. With regard to penal prosecutions, there was in each department a criminal court which judged crimes with the assistance of a jury; it consisted of judges borrowed from district courts, and had its own president and public prosecutor. Correctional tribunals, composed of juges de paix, dealt with misdemeanours. The Assembly preserved the commercial courts, or consular jurisdictions, of the ancien régime. There was a court of cassation, the purpose of which was to preserve the unity of jurisprudence in France; it dealt with matters of law and not of fact, considering appeals based on the violation of law, whether in point of matter or of form, and if such violation were proved, sending the matter before another tribunal of the same rank for re-trial. All judges were elected for a term of years; the juges de paix by the primary assembly of the canton, the district judges by the electoral assembly consisting of the electors of the second degree for the district, the members of the court of cassation by the electors of the departments, who were divided for the purpose into two series, which voted alternately. The Constituent Assembly did, it is true, require professional guarantees, by proof of a more or less extended exercise of the profession of lawyer from all judges except the juges de paix. But the system was really the same as that of the administrative organization. The king only appointed the commissaires du roi attached to the district courts, criminal tribunals and the court of cassation; but the appointment once made could not be revoked by him. These commissaries fulfilled one of the functions of the old ministère public, their duty being to demand the application of laws. The Convention did not change this general organization; but it suppressed the professional guarantees required in the case of candidates for a judgeship, so that henceforth all citizens were eligible; and it also caused new elections to take place. Moreover, the Convention, either directly or by means of one of its committees, not infrequently removed and replaced judges without further election. The constitution of the year III. preserved this system, but introduced one considerable modification. It suppressed the district courts, and in their place created in each department a civil tribunal consisting of twenty judges. The idea was a happy one, for it gave the courts more importance, and therefore more weight and dignity. But this reform, beneficial as it would be nowadays, was at the time premature, in view of the backward condition of means of communication.
The Constituent Assembly suppressed the militia and maintained the standing army, according to the old type, the numbers of which were henceforth to be fixed every year by the Legislative Assembly. The army was to be recruited by voluntary enlistment, careful rules for which were drawn up; the only The army. change was in the system of appointment to ranks; promotion went chiefly by seniority, and in the lower ranks a system of nomination by equals or inferiors was organized. The Assembly proclaimed, however, the principle of compulsory and personal service, but under a particular form, that of the National Guard, to which all qualified citizens belonged, and in which almost all ranks were conferred by election. Its chief purpose was to maintain order at home; but it could be called upon to furnish detachments for defence against foreign invasion. This was an institution which, with many successive modifications, and after various long periods of inactivity followed by a revival, lasted more than three-quarters of a century, and was not suppressed till 1871. For purposes of war the Convention, in addition to voluntary enlistments and the resources furnished by the National Guards, and setting aside the forced levy of 200,000 men in 1793, decided on the expedient of calling upon the communes to furnish men, a course which revived the principle of the old militia. But the Directory drew up an important military law, that of the 6th Fructidor of the year VI., which established compulsory military service for all, under the form of conscription strictly so called. Frenchmen aged from 20 to 25 (défenseurs conscrits) were divided into five classes, each including the men born in the same year, and were liable until they were 25 years old to be called up for active service, the whole period of service not exceeding four years. No class was called upon until the younger classes had been exhausted, and the sending of substitutes was forbidden. This law, with a few later modifications, provided for the French armies up to the end of the Empire.
The Constituent Assembly abolished nearly all the taxes of the ancien régime. Almost the only taxes preserved were the stamp duty and that on the registration of acts (the old contrôle and centième denier), and these were Taxation. completely reorganized; the customs were maintained only at the frontiers for foreign trade. In the establishment of new taxes the Assembly was influenced by two sentiments: the hatred which had been inspired by the former arbitrary taxation, and the influence of the school of the Physiocrats. Consequently it did away with indirect taxation on objects of consumption, and made the principal direct tax the tax on land. Next in importance were the contribution personnelle et mobilière and the patentes. The essential elements of the former were a sort of capitation-tax equivalent to three days’ work, which was the distinctive and definite sign of a qualified citizen, and a tax on personal income, calculated according to the rent paid. The patentes were paid by traders, and were also based on the amount of rent. These taxes, though considerably modified later, are still essentially the basis of the French system of direct taxation. The Constituent Assembly had on principle repudiated the tax on the gross income, much favoured under the ancien régime, which everybody had felt to be arbitrary and oppressive. The system of public contributions under the Convention was arbitrary and revolutionary, but the councils of the Directory, side by side with certain bad laws devised to tide over temporary crises, made some excellent laws on the subject of taxation. They resumed the regulation of the land tax, improving and partly altering it, and also dealt with the contribution personnelle et mobilière, the patentes, and the stamp and registration duties. It was at this time, too, that the door and window tax, which still exists, was provisionally established; there was also a partial reappearance of indirect taxation, in particular the octrois of the towns, which had been suppressed by the Constituent Assembly.
The Constituent Assembly gave the Protestants liberty of worship and full rights; it also gave Jews the status of citizen, which they had not had under the ancien régime, together with political rights. With regard to the Religious liberty. Catholic Church, the Assembly placed at the disposal of the nation the property of the clergy, which had already, in the course of the 18th century, been regarded by most political writers as a national possession; at the same time it provided for salaries for the members of the clergy and pensions for those who had been monks. It abolished tithes and the religious orders, and forbade the re-formation of the latter in the future. The ecclesiastical districts were next reorganized, the department being always taken as the chief unit, and a new church was organized by the civil constitution of the clergy, the bishops being elected by the electoral assembly of the department (the usual electors), and the curés by the electoral assembly of the district. This was an unfortunate piece of legislation, inspired partly by the old Gallican spirit, partly by the theories on civil religion of J.J. Rousseau and his school, and, together with the civic oath imposed on the clergy, it was a source of endless troubles. The constitutional church established in this way was, however, abolished as a state institution by the Convention. By laws of the years III. and IV. the Convention and the Directory, in proclaiming the liberty of worship, declared that the Republic neither endowed nor recognized any form of worship. Buildings formerly consecrated to worship, which had not been alienated, were again placed at the disposal of worshippers for this purpose, but under conditions which were hard for them to accept.