arrive somewhere, he must always remember that one walks on the ground and that he
no longer inhabits an ideal world.44
Before the National Assembly in August this same logic was deployed to demon-
strate the impossibility of formulating a declaration of the rights of man capable of
application to all political associations and all forms of government when those
responsible were necessarily constrained by ‘local circumstances’ and which, ‘given
a people grown old amongst anti-social institutions’, would attain nothing more
than ‘relative perfection’. Speaking on behalf of the comité des cinq Mirabeau
indicated, for example, that in their endeavour to formulate a declaration of rights
they had experienced great difficulty ‘in distinguishing between what belonged to
the nature of man and the modifications it had received in this or that particular
society’.45
Mirabeau’s own solution to what he perceived as the dangers implicit in any
declaration of rights was to argue that in these circumstances wisdom consisted in
the recognition of the virtues of a juste milieu. Others showed themselves to be
less sanguine when faced with the possibility (and the reality) of social chaos and
anarchy. During August 1789 the most resolute opponent within the National
Assembly of a declaration of rights proved to be Pierre-Victor Malouet. His
argument, in summary, was that, if in America the morals, tastes, and circum-
stances of the new nation were conducive to the existence of democracy and liberty,
this was far from the case in France, where there existed ‘a vast multitude of men
without property’ who, with good reason, at times became enflamed by ‘the
spectacle of luxury and opulence’. While such inequality might be regrettable
it nevertheless remained the case that those in a ‘dependent condition’ had to
recognize the ‘legitimate limits’ to their ‘natural liberty’. As such, there was no
purpose in telling ‘men deprived of understanding and means’ that they were ‘equal
in rights to the most powerful, to the most fortunate’. ‘Why’, Malouet proclaimed,
‘begin by transporting [man] to a high mountain in order to show him his limitless
dominion when upon descending he will find constraints at every step?’ The end
result would only be disaster.46
One dimension of this argument was that, if man had rights, as a member of
society he also had duties and obligations. The fear, voiced explicitly by the Comte
de Sinety, was that by talking only about rights men would be encouraged to
44 Œuvres de Mirabeau: Discours et Opinions (1835), i. 103.
45 Archives parlementaires, 8 (1875), 438–9, 453–5.
46 ‘Opinion de M. Malouet sur la Déclaration des droits de l’homme’, in Fauré, Les Déclarations,
161–4. For Malouet’s account of this turbulent period see Mémoires de Malouet (1868), i. 309–43.
38
Rights, Liberty, and Equality
display their ‘natural leaning’ towards egoism, to the detriment of their fellows and
of society as a whole. This ‘destructive vice’, in Sinety’s view, could be overcome if
any declaration of the rights of man was in turn accompanied by a statement of the
duties of the citizen.47 It was this contention that was supported by the Abbé
Grégoire and others in a stormy debate that took place on 4 August, with Grégoire
arguing that, when France was experiencing ‘a moment of insurrection’ by a people
for long ‘tormented by tyranny’, it was necessary that man should know ‘not only
the circle that he can traverse but also the barrier that he cannot cross’.48 On this
occasion, the motion to place duties by the side of rights was defeated by 570 votes
to 433.
Writing some three years later Rabaut Saint-Étienne was to comment that the
National Assembly had made known their rights to French citizens in much the
same way as ‘a sick father, with not long to live, hands over to his heir the title of his
possessions and of his money’. It was by no means certain, in other words, that the
assembly would survive for long enough to pass the laws which followed from the
principles outlined in the Déclaration des Droits de l’Homme et du Citoyen.49
This proved to be the case. Condorcet, for example, in a pamphlet entitled
Réflexions sur ce qui a été fait et ce qui reste à faire,50 commented upon the ‘anarchy’
and ‘hatred’ that had resulted from a vaguely worded and defective declaration of
rights. It was, he argued ‘the false impression that the people had seized of their
rights, in imagining that the tumultuous will of a town, a borough, a village, and
even a district, is a form of law and that the will of the people, in whatever manner it
was manifested, had the same authority as a will expressed in a prescribed form by a
recognized law’ that was at the heart of the problem. The people, Condorcet
remarked plaintively as the unfolding of the Revolution pushed him nearer to his
own personal tragedy, must recognize that they could not ask for more than they
had been given.
The dramatic events that followed can only be sketched in brief outline. The
declaration of rights approved by the National Assembly at the end of August 1789
was eventually to figure as a preamble to the revised monarchical constitution,
approved on 14 September 1791. Three months earlier, however, Louis XVI had
attempted to flee France, only to be intercepted with other members of his family at
Varennes and forced to return to Paris in abject humiliation.51 Although given a
second chance to prove his loyalty to the new regime, the monarch’s days were now
effectively numbered. In the spring of 1792 France (recklessly) declared war against
Austria and soon found herself being invaded, with the capital itself in danger.
47 André-Louis-Esprit, comte de Sinety, ‘Exposition des motifs qui parasissent devoir déterminer à
reunir à la Déclaration des droits de l’homme et du citoyen, celle des devoirs du citoyen’, in Fauré, Les
Déclarations, 175–81.
48 Henri-Baptiste, abbé Grégoire, ‘Opinion sur la necessité de parler des devoirs dans la Déclaration
des droits de l’homme et du citoyen’, in Fauré, Les Déclarations, 189–90. See also de Baecque, L’An 1
des droits de l’homme, 121–5.
49 Rabaut Saint-Etienne, Précis historique, 191–2.
50 Œuvres de Condorcet, ix. 441–68.
51 See Mona Ozouf, Varennes: La Mort de la royauté (2005).
Rights, Liberty, and Equality
39
Amid mounting chaos, on 10 August the Tuileries Palace was stormed, in one
insurrectionary gesture overturning both the constitution and the king. A month
later, France was declared a republic, with Louis XVI being subsequently put on
trial and executed in January 1793.
The new legislative assembly, now known as the Convention, had therefore
both to save France from defeat and to promulgate a new constitution. To its
credit, it did both, although at a high price. In the first instance, this momentous
task fell to the group of deputies known as the Girondins, led by Brissot and
armed with the intellectual support of Condorcet. Given the dramatic circum-
stances, discussion of the rights of man received
only intermittent attention.
Nevertheless, by the time that the Girondins fell from power in early June
1793 they had secured the approval of a new declaration of rights (running to
thirty articles).52 Largely inspired by Condorcet’s proposals of February of that
year,53 this new declaration included as rights both the right to equality and the
right to what was termed ‘la garantie sociale’. There was however much agonizing
about the force to be given to both the right to property and the right to
insurrection, the Girondins showing themselves eager to protect the former and
to restrict the latter to legal means. Mounting popular discontent combined with
the ferocious assault of the Jacobins made this position increasingly difficult to
sustain. Robespierre, leading the Montagnard attack, damned the proposals of
the Girondins, denouncing a declaration of rights made ‘not for man, but for the
rich, for the monopolists, for the speculators, for tyrants’.54
A few weeks later the Girondins were removed forcibly from power, the
Jacobins losing no time in presenting their own declaration of the rights of man
and the citizen on 24 June 1793. The right to equality was now firmly established
as one of the four natural rights of man, with the right to property losing its
‘inviolable and sacred’ status. If the right to resist oppression was characterized as
a consequence of these rights, its importance was underlined with the description
of insurrection as ‘the most sacred of rights and the most necessary of duties’.
Despite this change of tone and emphasis, the definition of the right to liberty as
the right to do whatever did not infringe the rights of others remained essentially
unchanged, as did the definition of property. Indeed, property was now specified
as the right which ‘belonged to every citizen to enjoy and to dispose of his goods,
his income, the fruits of his labour and his industry as he pleases’.55 Similarly, if
the end of society was described as ‘the common good’, the egalitarian impetus
was restricted to the recognition of the ‘sacred debt’ owed by society towards its
members and the vague commitment to find work or the means of subsistence for
those without employment. Robespierre’s proposal for the progressive taxation
of income was ignored.
52 See Jaume, Les Déclarations, 262–4.
53 Ibid. 240–3.
54 Speech by Robespierre on 24 April 1793: see Œuvres de Maximilien Robespierre, ix. Discours
Septembre 1792–27 Juillet 1793 (1958), 461.
55 See Jaume, Les Déclarations, 299–303.
40
Rights, Liberty, and Equality
Beyond this, the declaration of rights that was to act as a preamble to the
republican constitution of Year 1 set out a series of individual and collective rights
intended to protect the citizen from an oppressive government. All, like the new
constitution itself, were to be suspended with the proclamation of the decree that
revolutionary government was to operate ‘until the return of peace’.
Amongst the victims of the Terror were not only both Georges Danton and
Condorcet, but also Olympe de Gouges, executed on 3 November 1793. Her crimes,
in the eyes of the Jacobins, were many, but here she merits attention because of her
remarkable text, Les droits de la femme, dedicated to Marie-Antoinette, Queen of
France, and penned in 1791. By any standards, this must be one of the most
subversive documents ever written. It bristles with irony and scorn, lampooning
the universalistic pretensions of the Revolution, parodying the seventeen articles of
the declaration of 1789. ‘Law and justice’, de Gouge proclaimed, ‘consist in restoring
all that belongs to others; thus the only limits to the exercise of the natural rights of
women are perpetual male tyranny.’ Woman, she continued, ‘has the right to mount
the scaffold; she must equally have the right to mount the rostrum’. De Gouges
claimed for women the same rights as those enjoyed by men. Property should belong
to both sexes. Careers and positions should be open to women as for men. Women
should be granted an equal share not only of wealth but of public administration.
Men and women should be equal in the eyes of the law.
Nothing came of these demands, the Jacobins effectively banning women
from public life. A decade later the Napoleonic Civil Code of 1804 reversed even
the limited improvement to the legal status of women introduced during the
Revolution. Much the same occurred with formulations of rights in general. As
Jacques Godechot has written, the Constitution of 1795, which followed the
removal of the Jacobins from power, ‘was drawn up with the aim of preventing
a return to the regime of Year II, that is, the dictatorship of a group of men
who believed themselves to be directly mandated by the “people”’.56 What this
meant has been lucidly summarized by Marcel Gauchet. ‘With Thermidor’, he
writes, ‘the hour of duties sounded’.57 Accordingly, the declaration of rights
approved by the Convention on 22 August 1795 came replete with a set of nine
specific duties, each clearly intended to encourage the individual citizen to obey
the law, respect property, and serve the patrie.58 Just as significantly, the rights
proclaimed were no longer taken to be natural but to be those enjoyed by men
in ‘society’. Reference to men being born free and equal in rights was dropped,
with equality now being defined simply as equality before the law. The right to
resist oppression was removed, as was any mention of the rights to free speech
and freedom of the press. In this way it was hoped that the revolutionary and
insurrectionary potential of the rights of man would be curbed. Four years later, the
Constitution of Year VIII, drafted with Napoleon Bonaparte in mind, simply
dispensed with a declaration of rights altogether.
56 Jacques Godechot, Les Constitutions de la France depuis 1789 (1970), 94.
57 Marcel Gauchet, La Révolution des droits de l’homme (1989), 257.
58 See Jaume, Les Déclarations, 307–9.
Rights, Liberty, and Equality
41
I I I
It was among the increasingly vociferous ranks of Catholic and monarchical
reaction that criticisms of the merits of the language of the rights of man came
most frequently to be heard. Initially supporters of the monarchical cause in the
National Assembly, such as Durand de Maillane, showed little restraint in deploy-
ing the language of natural rights to defend their position, believing that the
proclamation of rights would play an indispensable part in returning the monarchy
to its ‘pure and noble origin’.59 Quickly, however, the supporters of a constitution-
al settlement on the moderate right began to have grave doubts about the potential
dangers of this strategy. The Comte de Montlosier, future member of the Club
Monarchique, concluded his Essai sur l’art de constituer les peuples ou Examen des
opérations constitutionnelles de l’assemblée nationale de France with a forty-page
outline entitled ‘Aperçu d’un projet de constitution’, replete with its own ‘Déclara-
tion des droits de l’homme’.60 In this he had few kind words for the declaration of
26 August 1789. If, Montlosier argued, there were two types of revolution––one
which followed the dictates of reason and of nature, another which was prepared in
‘silence’ and in the ‘shadows’––so too there were two ways of formulating a
declaration of rights. The best method was ‘to take man as he is today’, within
society as it existed, in order to examine ‘the best place for him in this situation’.
The incorrect method was to look at the nature of man in isolation, abstracted from
all ‘social conventions’. The latter, ‘analytical’ process, while it might be appropriate
for a solitary thinker in the calm of his study and distanced from events, when
applied to the highly charged context of an assembly comprised of ‘twelve hundred
people’, had produced a set of ‘true, ambiguous or false maxims’ which, taken
together, lacked either ‘structure or coherence’. What sense, Montlosier remarked,
did it make to suggest that ignorance, forgetfulness, and contempt for the rights of
man were the sole causes of public misfortune? What about superstition, fear, the
desire to dominate, pride, necessity, hunger, laziness, and epidemics? In what
possible way could man be said to be born free and equal in rights? Of what sort
of liberty were they talking? Physical liberty? Moral liberty? And if man ‘were to
remain free only in this manner’, Montlosier mocked, ‘I think that of all creatures
he would truly be the greatest slave’. Moreover, it was not at all clear what was
meant by such terms as property, security, and resistance to oppression. The end
result was that a set of ‘philosophical adages’ had become a weapon used by man
against society itself.
Montlosier’s own statement of rights took on a very different complexion,
beginning with a proclamation that personal slavery was against the nature and
rights of man and that the right of property was grounded in the right of all men to
own what they had produced through their labour. It ended with the assertion that,
59 Pierre-Toussaint Durand de Maillane, ‘Opinion sur les divers plans de Constitution’, 137–50.
60 François-Dominique de Reynaud, comte de Montlosier, Essai sur l’art de constituer les peuples ou
Examen des opérations constitutionnellles de l’Assemblée nationale de France (1790).
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