Revolution and the Republic
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80 Œuvres complètes de Robespierre, iv. 146.
81 See Lucien Jaume, Le Discours Jacobin et la démocratie (1989), 255–385.
Absolutism, Representation, Constitution
85
(including Robespierre’s brother) were executed as the Jacobins were removed from
power. In the difficult days and months that followed their overthrow on 9 Thermi-
dor, constitutional issues were left in abeyance but by the following year the question
of devising a new constitution again came to the fore.
There is no need to pay detailed attention to these discussions.82 The constitu-
tion of 1793 was judged to be both unworkable and dangerous, sacrificing the
rights and liberties of individuals to the sovereign will of the assembly. What was
to replace it? There is a view that the constitution of 1795 amounted to only
a rhetorical rejection of its Jacobin predecessor.83 While this analysis has a consid-
erable element of truth––there were points of continuity with the constitutions of
both 1791 and 1793––the new constitution approved by the Convention sought to
learn from the lessons of the recent past and to establish a structure that would place
the Republic upon a secure foundation and prevent a return to revolutionary
dictatorship.84 It attempted to do this in a variety of ways. The suffrage was
reformed through the reintroduction of both a property qualification and a system
of indirect election; sovereignty was defined not in terms of the nation but ‘in
essence’ as the possession of ‘the universality of French citizens’; the right of citizens
to veto legislation was removed.
More complex were the provisions for the organization of both legislative and
executive power. For the first time, France was to possess two legislative chambers,
the Conseil des Cinq-Cents and the Conseil des Anciens, membership of which was
to be decided upon by the same electorate, even if their composition and powers
were to differ. If the first chamber had the right of legislative initiative, the second
could approve or reject, although not amend, legislation. The executive was to be
composed of a Directory of five members, each elected for five years. The Conseil
de Cinq-Cents was to nominate ten names for each position, whilst the Conseil des
Anciens selected the successful candidates by secret ballot. The Directory itself
possessed significant powers, including the right to nominate both generals and
judges. It could not, however, dissolve the legislative body nor veto legislation.
Ministers––of which there were seven––were responsible to the Directory and were
not allowed to meet as a group. The assumption that age and a family were a barrier
to radicalism was also evident in the stipulation that members of the Directory had
to be over 40 years of age. Similar age restrictions applied to the two chambers.
The committee responsible for formulating the new constitution was largely
composed of former supporters of the moderate Girondins. If the main public
advocate of the committee’s work was Boissy d’Anglas,85 by general agreement the
principal author of the Constitution of Year III was the future Idéologue, Daunou.
Sieyès refused to get involved and made known his opposition to the proposals
before the Convention. He feared, rightly, that the strict division between the
82 See Gauchet, La Révolution des pouvoirs, 125–86.
83 Michel Troper, La Séparation des pouvoirs et l’histoire constitutionnelle française (1980), 188–200.
84 See Godechot, Les Constitutions, 101–41. One notable feature of this constitution is how detailed
it was, running to 377 articles. The constitution of 1793 had only 124 articles.
85 See Gérard Conac and Jean-Pierre Machelon (eds.), La Constitution de l’an III: Boissy d’Anglas et
la naissance du libéralisme constitutionnel (1999).
86
Absolutism, Representation, Constitution
legislative and executive branches of government would quickly lead to deadlock.
He also proposed, in what was for him a significant innovation, the establishment
of a jury constitutionnaire which would annul any legislation that did not conform
to the fundamental laws of the constitution.86 However, the new constitution’s
supporters were of the opinion that it would make impossible a return to despotism
through the institutionalization of what Boissy d’Anglas did not hesitate to term
‘the balance of powers’. Herein lies the controversy. The prevailing opinion has
been that the new constitution gave only modest expression to these constitutional
principles.87 Against Sieyès’s advice, for example, no mechanism was introduced to
ascertain the constitutionality of laws. On this view, the executive remained
subordinate to the legislative, which itself was only artificially split into two
chambers for ‘technical’ reasons. However, to a certain extent the power of the
executive vis-à-vis the legislative branch was strengthened and the very introduction
of two legislative chambers marked an important shift from what had been quickly
established as an article of revolutionary faith. It thus denoted a tentative break with
the logic that located an indivisible sovereignty within a single representative
assembly. An element of equilibrium, if not strict balance, was obtained, with the
firm intention of protecting the people from the abuses of their own power.
The Directory has had few friends or admirers, even if historians are now
inclining to see it in a more positive light.88 Determined to hold on to power,
the Thermidorians, as the dominant group of deputies were now known, not only
(illegally) removed royalist deputies from the legislative chambers in September
1797 but repeated the manuvre a year later when newly elected Jacobin deputies
were purged before they had the opportunity to take up their seats. Even the
regime’s initial supporters began quickly to doubt that it could survive. The early
enthusiasm to be found in Madame de Staël’s Rélexions sur la paix intérieure,89
penned in 1795 in the confident expectation that the Thermidorian Republic
would overcome divisions between royalists and republicans and bring ‘repose’ to
France, gave way to the more sober appraisal evident in her Des circonstances
actuelles qui peuvent terminer la Révolution et des principes qui doivent fonder la
République en France published three years later, where she recognized that this ‘bad
constitution’ was inadequate to the tasks demanded of it. The Directory, she
commented, might ‘save the vessel from shipwreck but it could not navigate it to
port’. Like many others, she concluded that a regime that could only remain in
existence by flouting the constitution had to be reformed. Above all, the executive
needed to be given the means to govern.90
86 See Pasquino, Sieyès et l’invention de la constitution, 181–96.
87 See Michel Troper, Terminer la Révolution: La Constitution de 1795 (2006).
88 See James Livesey, Making Democracy in the French Revolution (Cambridge, Mass., 2001); Howard
G. Brown, Ending the French Revolution (Charlottesville, Va., 2006) and Andrew Jainchill, Reimagining
Politics after the Terror: The Republican Origins of French Liberalism (Ithaca, NY, 2008). For an overview of
historiographica
l debates associated with the Directory see Malcolm Crook, Napoleon Comes to Power:
Democracy and Dictatorship in the Revolutionary Era (Cardiff, 1998).
89 See Œuvres complètes de Mme La Baronne de Staël (1820), ii. 95–172.
90 De Staël, Des circonstances actuelles, 155–221. See also Benjamin Constant, Des Suites de la contre-
révolution de 1660 en Angleterre (1799).
Absolutism, Representation, Constitution
87
This was also the opinion of the Abbé Sieyès. Elected to the Directory in
June 1799, he began immediately to plot its downfall, turning first to the young
general Barthélemy Joubert and then, after the former’s death in Italy, to Napoleon
Bonaparte.91 The latter’s triumphant, if mysterious, return from his military campaign
in Egypt set the scene for what was later to be known as the coup d’état of 18 Brumaire.
At the time, the dissolution of the Directory under the threat of force was seen as
something both necessary and inevitable and broadly to be welcomed.
Sieyès (on this occasion, incorrectly) imagined that he would now have the chance
to provide France with the constitution he believed that she had long required. Power
was immediately handed over to an ‘executive consulate’ composed of Sieyès, the
regicide Roger Ducos, and Bonaparte himself. Their task was to provide France with
yet another new constitution, something they did in approximately one month.
Universal male suffrage was restored but in such a manner as to make its operation
almost meaningless. Sieyès got his way over the introduction of a ‘Sénat conservateur’,
membership of which was for life and whose function was to scrutinize the legality of
all laws and all actions by government. The legislative was to be divided into two
chambers, one of which would discuss legislation whilst the other would vote upon it.
Neither possessed the right of legislative initiative. Where Sieyès was rebuffed was in the
matter of executive power. Granted extensive authority, there were to be three Consuls,
each serving for ten years, but of these one––Bonaparte––was to be designated as First
Consul. It was to be in this office that real power was to be located.92
‘Citizens’, it was immediately declared, ‘the revolution is established on the
principles with which it began. It is finished.’ Technically, the Republic still existed,
although in 1802 Bonaparte had himself proclaimed Consul for life, further
extending his already considerable powers and reducing the powers of the legislative
branch (which was now to assemble only at the behest of the government). At this
point, as Jacques Godechot remarked, ‘Napoleon was already more powerful than
Louis XIV’.93 Two years later, at a ceremony held in the cathedral of Notre-Dame
and attended by Pope Pius VII, Napoleon crowned himself emperor, a scene
immortalized by the painter David. The emperor’s crown was to be passed on by
hereditary succession, through the male line. Should there be (as seemed likely) no
male successor, Bonaparte granted himself what no monarch of France had ever
possessed: the right of adoption.
In this way the experiment of the First Republic came to its sorry conclusion.
Chateaubriand, writing at his most royalist in his text De Buonaparte, Des Bourbons,
reached the following conclusion.94 The French, in seeking to create ‘a society
without a past and a future’, had tried ‘various forms of republican government’,
only in the ‘light of experience’ to conclude that monarchy was the most appropri-
ate form of government for the country. Yet, he continued, ‘we believed our faults
91 Isser Woloch, Napoleon and his Collaborators:The Making of a Dictatorship (New York, 2001).
92 See Godechot, Les Constitutions, 151–62.
93 Ibid. 166.
94 François-René de Chateaubriand, De Buonaparte, des Bourbons, et de la nécessité de se rallier à nos
princes légitimes pour le bonheur de la France et celui de l’Europe, in Grands Écrits politiques (1993),
i. 49–129.
88
Absolutism, Representation, Constitution
to be too great to be pardoned’. Some feared for their lives. Others feared for their
newly acquired wealth. Above all, human pride prevented people from accepting
that they had made a mistake. And so they chose Napoleon Bonaparte to rule them.
The republicans believed him to be one of their own, ‘the popular leader of a free
State’. The royalists saw him as the French George Monk who would restore the
monarchy. Everyone believed in him. Everyone was to have their hopes dashed.
‘Never’, Chateaubriand wrote, ‘did a usurper have such an easy or more brilliant
role to play.’ He was, Chateaubriand concluded, ‘a false great man’, leaving France
impoverished and weakened by political incompetence and reckless wars.
To this criticism of Napoleon we will return but, at this point, we might pause to
reflect upon the dramatic and momentous changes and developments that had
taken place in the decade after 1789. The fragile and beleaguered constitutional
structure of the ancien régime had been comprehensively dismantled, at times
almost by accident and chance, the monarchy quickly being replaced by a republi-
can system that few had considered to be a workable or practical alternative. In
revolutionary circumstances, driven as much by disturbance in the streets and in
the countryside as by debates within the National Assembly and subsequent
assemblies, those representing what was now indisputably conceived of as the
French nation had grappled (in some cases, at the cost of their own lives) with a
set of fundamental issues stubbornly resisting resolution. Once the modest propo-
sals for constitutional reform of the monarchiens had been ditched by the late
summer of 1789, the Revolution found itself in the grip of a set of doctrines relating
to sovereignty and representation that eluded their implementation into a stable
republican institutional form. Only the Abbé Sieyès seems to have grasped what
was required in this novel situation––his thinking steadily evolving over the decade
towards a fuller appreciation of the need for representative deliberation, a strong
executive, and judicial review––but even he, for all his reputation as the constitu-
tional ‘oracle’, could not prevent the slide into Bonapartist dictatorship.
For the time being, therefore, the Republic remained curiously without content.
When the monarchy was abolished in September 1792, nothing was said about the
character of the regime that would follow. By default, therefore, it came to be
associated with violence and terror.95 Attempts to stabilize the Republic proved
fruitless. Yet a conceptual revolution of immense significance had taken place. This,
at least, could not be reversed.
I I I
When Napoleon Bonaparte’s Empire came to an ignominious end in 1814, very
few people, if any, contemplated a return to the Republic.96 The monarchy was
95 This was the view of Georges Weill in his classic study, Histoire du parti républicain en France de
1814 à 1870 (1900).
96 See Pamela Pilbeam, Republicanism in Nineteenth-Century France, 1814–1871 (London, 1995),
60–154.
Absolutism, Representation,
Constitution
89
restored, only for it to be briefly overturned after Napoleon’s escape from Elba, and
then restored again with his defeat at Waterloo by Wellington’s army. Louis XVIII,
it was said, had returned to France in ‘the baggage train of the enemy’. A legal and
illegal White Terror followed. If the former was extensive (between 50,000–80,000
public officials were expelled from their posts and 5,000 people put on trial for
political crimes), the latter was particularly murderous and brutal (especially in
the south where religious differences between Catholics and Protestants added fuel
to the fire). The persecution of opponents of the Restoration did much to forge a
bond between republicans and Bonapartists.
Nevertheless, in the years that immediately followed, republicanism was largely
reduced to an inchoate existence among shadowy conspiratorial groups and socie-
ties, many of whom translated their marginality into a belief in an insurrectionary
route to power. A more coherent republican movement began to emerge after the
Revolution of 1830 and the inauguration of the July Monarchy. The republicans
were idealists, patriots, believers in justice, and saw themselves as the true heirs
of the Revolution of 1789. Ominously, to cite Pamela Pilbeam, ‘they could not
agree on a precise model’, some appealing to the National Assembly, others to the
Convention, whilst some retained a thinly disguised admiration for Robespierre.97
The protests that erupted in February 1848, leading to the hasty abdication of
Louis-Philippe and the birth of the Second Republic, found the republicans not
only weak but divided, both ideologically and organizationally. It was to these
individuals, however, that (quite expectedly) was to fall the task of steering France
towards yet another constitution.
One of the first decisions of the Provisional government of the Second Republic
was to declare elections (by universal male suffrage) for a Constituent Assembly,
thereby reviving the constitutional practices of 1789 and 1792. Nearly 8 million
votes (out of an electorate of 9.4 million) were cast, with the result that the radical
wing of the republican movement found itself a minority in the new assembly. If
members of the legal profession comprised by far the largest single group, among the