whole, composed of integral parts’. In short, the proposals of men such as Rabaut
Saint-Étienne and Salle would return France to the ‘chaos of customs, regulations, and
prohibitions’ that had typified the ancien régime.
What, in Sieyès’s view, was the alternative? ‘In a country that is not a democracy
(and France is not a democracy)’, Sieyès pronounced emphatically, ‘the people can
only speak and can only act through its representatives’. There were four dimensions
to this argument. The first was the recognition that all of the people, even ‘the
multitude without education’, should have a say in the framing of legislation as of
right. Next, Sieyès applied the principles of the division of labour to the political
process.64 Modern European societies, he argued, were based upon commerce,
agriculture, and production. They were ‘vast workshops’, where most people existed
at the level of ‘work machines’. Consequently, ‘the very great majority of our fellow
citizens have neither the education nor the leisure to occupy themselves directly with
the laws that ought to govern France’. At best they could choose representatives ‘more
capable’ than themselves. To this Sieyès then added the standard argument applying
to large states: ‘Since it is obvious that the five to six million active citizens, spread out
across twenty-five million leagues, can never meet together, the best that they can
aspire to is to form a legislature through representation.’ Finally, such an arrangement
would produce good decisions. Representatives would ‘deliberate’, learn the views of
others, benefit from ‘mutual enlightenment’, before taking a decision in line with the
views of ‘the majority’.
Stated thus, a key dimension of Sieyès’s argument is missing. Meaningful
deliberation amongst representatives was clearly not possible if they were mandated
61 Salle, in Archives Parlementaires, 8 (1875), 533.
62 Ibid. 592–7. This text can also be found in Furet and Halévi, La Monarchie républicaine, 406–17,
and Roberto Zapperi (ed.), Emmanuel-Joseph Sieyès: Écrits politiques (1985), 229–44. See also Bronislaw
Baczko, ‘Le Contrat social des Français: Sieyès et Rousseau’, in Baker, Political Culture, 493–513.
63 Lettres de cachet were used by the monarch to imprison individuals without trial and were taken
to be one of the most powerful symbols of arbitrary power under the ancien régime.
64 See Zapperi, Emmanuel-Joseph Sieyès, 25–90, 245–71.
Absolutism, Representation, Constitution
81
by their electors. Therefore, they should not be. The collective will of the entire
nation could not be expressed if representatives were obliged to articulate the
uninformed and partial views of their constituents. For these reasons, Sieyès
insisted that, although the deputy was elected directly by his baillage, ‘he is the
deputy of the entire nation; all the citizens are his constituents’. The representa-
tive’s job was to ‘propose, to listen, to dialogue, to modify his opinion, in order
finally to form in common a common will’. The voice of ‘the people or the nation’
had no other location than ‘the national legislature’. What mattered was not unity
of discussion but ‘unity of decision’.
Sieyès acknowledged that it was not ‘absolutely impossible’ that the nation’s
representatives should act in error but he remained convinced that they, rather than
some ‘external mechanism’, were best placed to rectify their error. The re-election
of one-third of the deputies each year would be sufficient to ensure that the
assembly could benefit from the experience of its members whilst guaranteeing
that it ‘would never become aristocratic’. On the substantive issue of the royal veto
Sieyès failed to convince his fellow deputies. Nevertheless, this speech served to
highlight dilemmas facing those framing the new constitution that refused to go
away. Again we can refer to Gueniffey’s analysis of the election systems introduced
during the Revolution for clarification. As he points out, the initial objective was
to construct a system of representation capable of ‘interpreting and voicing the
general will of the nation’.65 This was to be attained through the expression of the
individual wills of the people combined with rational deliberation. The revolution-
aries, therefore, found themselves faced by ‘the contradictory demands of number
and reason’. It was arguably the Abbé Sieyès who understood this better than
anyone else.
The reality of this contradiction came fully into view when, on 20 October
1789, the deputies began debating the questions of who should be entitled to be an
elector and who should be eligible for election.66 Five criteria were applied to settle
the first question. To be an elector one had to be a (male) French citizen, be over 25
years of age, have lived at the same address for the previous year, pay the equivalent
of three days’ unskilled labour in taxes, and not be a servant. This produced
approximately 4.4 million ‘active’ citizens. Women, minors, servants, and vaga-
bonds were excluded on the grounds that their position of dependence prevented
them from freely and independently exercising their will. The servant, for example,
would vote as instructed by his master. The decisive distinction, however, was not
between ‘active’ and ‘passive’ citizens but between electors and those eligible for
elected office. The electoral system was to be based on indirect election in two
stages. Active citizens had the right to choose a representative from electors who
paid taxes to the equivalent of ten days’ labour. These in turn were to meet in
departmental assemblies, where the deputies themselves were chosen, each of which
had to be paying at least a silver mark (le marc d’argent) in taxes. The latter was
65 Gueniffey, Le Nombre et la Raison, 36.
66 In addition to Gueniffey, Le Nombre et la Raison, see Malcolm Crook, Elections in the French
Revolution: An Apprenticeship in Democracy, 1789–1799 (Cambridge, 1996), 30–53.
82
Absolutism, Representation, Constitution
equivalent to fifty-four days labour and reduced those eligible to around 50,000. By
making this distinction between voting and function, in short, the Assembly clearly
intended to neutralize the possible negative effects of the sovereignty of number.
Those chosen to represent the nation would be men of enlightenment and of
independent means. They would also have a stake in the maintenance of society.
Having dismissed a second parliamentary chamber as a bastion of aristocracy, the
National Assembly duly introduced its own rampart against the radicalism and
ignorance of the multitude.
Sieyès was obsessed by national unity.67 If this was clear from his views on
representation, so too it was revealed in his concern to redraw the administrative
map of France in order to eradicate the vestiges of the ancien régime. Without
territorial reorganization, he announced in his Observations sur le Rapport du Comité
de Constitution concernant la nouvelle organisation de la France,68 ‘the provinces will
retain forever their sense of separateness, their privileges, their pretensions,
their
jealousies’. What followed was a plan to redivide France upon purely geometric
lines. The intention, however, was to help the Breton and the Provençal ‘to acquire
the quality of citizen’, one day ‘to carry the name of being French’. Proposals upon
similar lines were shortly afterwards placed before the National Assembly by
Sieyès’s colleague, Jacques-Guillaume Thouret.69 Despite opposition, Thouret’s
scheme was broadly approved, with the result that France found itself divided into
eighty-four departments of roughly equal size. Reform of municipal administration
soon followed. Summarized by Furet and Halévi, ‘the dominant preoccupation’
was not ‘to safeguard the liberties of the provinces with regard to central power, but
on the contrary to subordinate in a harmonious way the different parts of the realm
to the supreme law, as expressed by the National Assembly’.70
The same logic informed the conviction that legislation should not be subject to
judicial review. The framers of the new political order deliberately set out to weaken
the capacity of the judiciary to curtail the legislative and executive branches of
government on the grounds that the courts of the ancien régime––the parlements––
had restrained the monarchy in a reactionary manner. As sovereignty, one and
indivisible, was to be located in the will of the citizens as expressed in law, it came to
be seen that the National Assembly alone could give voice to the general will,
leaving the courts with the modest role of resolving private disputes. The judiciary,
as such, performed a function rather than existed as a constitutional power. As
Laurent Cohen-Tanugi explained: ‘Legislation was the supreme source of law;
judges could only apply it, not review it.’71 This hostility to judge-made law
remained in place throughout subsequent regimes and only began to change, albeit
unintentionally, with the creation of the Conseil constitutional under the Fifth
67 Jean-Denis Bredin, Sieyès: La Clé de la Révolution française (1988), 167.
68 See Zapperi, Emmanuel-Joseph Sieyès, 245–71.
69 For the three speeches made by Thouret in defence of these proposals see Furet and Halévi, La
Monarchie républicaine, 435–61.
70 Ibid. 201.
71 Laurent Cohen-Tanugi, ‘From One Revolution to the Next: The Late Rise of Constitutionalism
in France’, Tocqueville Review, 12 (1990–1), 55–60.
Absolutism, Representation, Constitution
83
Republic after 1958. Even then there were many republicans who remained deeply
suspicious of moves towards the institutionalization of an État de droit.72
Similarly, the memory of the arbitrary abuse of executive power during the
ancien régime was such that the National Assembly sought consistently to reduce
the prerogatives of the executive. If the monarch was not to possess the right to
dissolve the assembly, so he was not to have the right to convoke it or to interfere in
the manner in which it carried out its business. Although nominally head of the
executive, all orders emanating directly from the monarch had to be counter-signed
by one of his ministers. To emphasize this reduction in status, the monarch was
now said to rule ‘by the grace of God and by the constitutional law of the State’.
Moreover, the fear of renewed ‘ministerial despotism’ led the Assembly not only to
claim the right to censure ministers but also to enforce their dismissal. In addition,
the Assembly consistently circumvented the executive by setting up its own
committee structure.73
How might these important developments be summarized? First, breaking with
the traditions and practices of the ancien régime, it was quickly established that a
constitution worth its name should have a clearly written and coherent form. Its
authors were to be the nation acting as sovereign through its representatives. Next,
although in form a constitutional monarchy, the constitution that came to be
promulgated on 3 September 1791 effectively transferred power to an assembly in
the name of the people. Moreover, it was explicitly assumed that if a people were
sovereign, then this was a sufficient condition to ensure that it was free, and
therefore that the rights of the individual would be protected. Accordingly, those
framing the constitution paid scant attention to the need for a separation or balance
of powers. There was to be one parliamentary chamber, indirectly elected upon
the basis of a broadly based male suffrage. Unease about the legitimacy of represen-
tation meant that representatives were placed under constant surveillance and were
subject to frequent reselection. A similar distrust of executive power meant that
the latter found itself weakened and in a subordinate position to the legislative
assembly.74
The Constitution of 1791 was still-born.75 The flight of Louis XVI from Paris
and his capture at Varennes saw to that. Nevertheless a set of constitutional
principles had been established that were broadly adhered to by the constitutions
of both 1793 and 1795, the former pushing these principles in a radical direction,
the latter seeking to re-establish stability following the Terror. The constitution of
1793 or Year I, for example, reaffirmed the sovereignty of the people; further
extended the suffrage (making it direct and universal for males); maintained the
practice of a single legislative assembly; reduced the power of the executive (by
conferring it upon twenty-four ministers elected by the legislative assembly and
72 See my ‘From “Imperial State” to “l’État de droit”: Benjamin Constant, Blandine Kriegel and the
Reform of the French Constitution’, Political Studies, 44 (1996), 488–504.
73 See Guy Antonetti, La Monarchie constitutionnelle (Paris, 1998), 11–36.
74 See Stéphane Rials, ‘Une doctrine constitutionnelle française?’, Pouvoirs, 50 (1989), 81–95.
75 See Jacques Godechot, Les Constitutions de la France depuis 1789 (1995), 33–67.
84
Absolutism, Representation, Constitution
drawn from names selected by primary assemblies at departmental level); disre-
garded any reference to the process of judicial review; and reduced the mandate of
assembly representatives to one year only.
However, there were two significant innovations. Such was the passion of the
Jacobins for a form of democracy that was both transparent and egalitarian that the
supremacy of the legislative assembly was to be counter-balanced by the direct
expression of the will of the people. Under the constitution this could take two
forms: the people were explicitly granted the right to insurrection as well as the right
of legislative veto.76 This itself reflected the deep, and unresolved, unease felt by the
Jacobins towards the process of representation. If within their own organization the
Jacobins made repeated resort to the practice of denunciation, this was even more
evident with regard to those who claimed to represent the people. Robespierre’s
speeches and articles in the period 1792–3 are a ceaseless tirade against those
deputies who placed private interest before the general interest.77 The people, he
argued, had not overturned ‘the despotism of the throne’ in order to witness
the
installation of a ‘privileged class’ of corrupt and venal representatives. ‘The source of
all our ills’, he proclaimed, ‘lies in the absolute independence that the representa-
tives have claimed for themselves without consulting the nation itself.’ This
‘representative despotism’ had enslaved the nation.78 There was, therefore, need
for a new assembly that would be ‘pure, incorruptible’, peopled by ‘virtuous men’,
by ‘patriots’. The infidelities arising out of the process of representation could only
be overcome if the representative shared the simplicity and honesty of morals that
characterized the people.
At times both Robespierre and Saint-Just suggested that the root of the problem
lay in the ability of corrupt, aristocratic factions to insert themselves between the
French people and their representatives––‘I dare to say’, Saint-Just commented,
‘that the Republic would soon flourish, if the people and its representatives were to
have the dominant influence, and if the sovereignty of the people was purged of
aristocrats and their agents’79––but the weight of their argument was directed
against what Robespierre himself designated as ‘the most cruel and most indestruc-
tible of all tyrannies’: ‘absolute representative government’.80 Against the represen-
tative claims of private, local, or sectional interest, in other words, were to be
deployed the counter-claims of neither number nor reason but of the sovereignty of
the moral good. Only the Jacobins themselves could speak in its name.81
The republican constitution of 1793 was approved by popular referendum during
the summer of that year. If 1.1 million electors gave their approval, 4.3 million
abstained. No sooner had this occurred than its application was suspended, as the
government of the Republic was declared to be revolutionary until the ‘return of
peace’. A year later, Robespierre, Saint-Just, and about eighty of their close supporters
76 See Jacques Godechot, Les Constitutions de la France depuis 1789 (1995), 79–92.
77 See Œuvres complètes de Robespierre, iv (1939).
78 Ibid. 328.
79 Louis-Antoine de Saint-Just, ‘Sur les personnes incarcérées’, in L’Impossible Terreur (1989), 52.
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