Revolution and the Republic
Page 35
incapable of lasting emotion. Our enthusiasm was tempered by reflection and
experience. Nonetheless, Constant’s argument was that we could not ‘turn free
men into Spartans’. This, he believed, had been the important truth overlooked by
those at the end of the previous century who had seen themselves as ‘charged with
68 Ibid. 164–71.
69 Ibid. 172–4.
70 Ibid. 174.
71 Ibid. 182–5.
72 The same argument was advanced by Madame de Staël in her text of 1796, Circonstances actuelles
qui peuvent terminer la révolution (Geneva, 1979).
162
Commerce, Usurpation, and Democracy
the regeneration of the human race’. These reformers, Constant wrote, had mistak-
enly imagined ‘that everything should give way before collective authority and
that all restrictions of individual rights would be compensated by participation in
the social power’.73 It was in the name of liberty, Constant wrote, that the French,
‘a people grown old in pleasure’, had been given ‘prisons, scaffolds, and countless
prosecutions’.
Constant drew several conclusions from this experience.74 First, Napoleon was
guiltier than were the barbarous conquerors of the past. Unlike them, ‘he had
chosen barbarism’. Next, usurpation had to be understood as a system, the blame
for what had occurred being attributable to usurpation itself, rather than to an
‘exceptional individual, made for evil, and committing crimes neither out of
necessity nor self-interest’. Finally, Constant, now writing in the context of Resto-
ration France, was led to recognize two forms of political legitimacy: the one,
‘positive’, derived from free election; the other, ‘tacit’, derived from hereditary
possession. The first, Constant wrote, ‘is more seductive in theory’ but it had the
drawback that it could be counterfeited: as it had been in England by Cromwell and
in France by Bonaparte.
The next move was to sketch out a form of government which would be
legitimate and which could not be counterfeited. This Constant attempted most
systematically in his Principes de politique, first published in 1815.75 At the heart
of his response was the conviction that the task would be accomplished not
by attacking the holders of power but rather by attacking power itself, by placing
guaranteed restrictions upon the possible abuse of power, by limiting not a
particular form of sovereignty but sovereignty itself. No monarch, Constant
wrote, even if his claim to legitimacy derived from ‘the assent of the people’,
possessed ‘a power without limits’. Similarly, the sovereignty of the people should
be ‘circumscribed within the limits traced by justice and by the rights of indivi-
duals’. No authority, whatever its source, could call these rights into question.
More precisely, the limitation of sovereignty could be made into a reality ‘through
the distribution and balance of powers’.76
As Constant sought to give institutional form to these basic principles, he turned
unfailingly towards England as an example. ‘Since it is always useful to move away
from abstractions and turn to facts’, he wrote, ‘we shall refer to the English
constitution.’77 The particular strength of a constitutional monarchy, Constant
therefore argued, was not that it was separated into three branches, as Montesquieu
had believed, but into five branches: royal power, executive power, the power that
represented permanence (i.e. the hereditary assembly), the power that represented
opinion (i.e. the elected assembly), and judicial power. Constant’s innovation here
was to make the distinction between ‘royal power’, which he described as a ‘neutral
power’, and ‘executive power’, which he described as a active power. If one looked
at the English system of government, Constant argued, one would see not only that
73 Constant, De la liberté, 189.
74 Ibid. 253–61. This part of the text was added to the 4th edn.
75 Ibid. 263–427.
76 Ibid. 269–78.
77 Ibid. 281.
Commerce, Usurpation, and Democracy
163
laws were made with the consent of both assemblies, that executive acts needed the
signature of a minister, and that judgments were made by independent courts of
law, but also that the monarch exercised the essential function of ensuring that the
whole system worked in harmony. The function of ‘royal power’ as neutral power
was that of putting an end to any ‘dangerous conflict’ that might take place between
the other powers. If the actions of the executive were unsound, the monarch could
dismiss his ministers; should the hereditary chamber be unduly troublesome, the
monarch could simply create new peers; and so on. ‘The royal power’, Constant
wrote, ‘is in the middle, yet above the four others, a superior and at the same time
intermediate authority, with no interest in disturbing the balance, but on the contrary
having a strong interest in maintaining it.’78 Accordingly, Constant accredited the
English monarch not only with the function of preserving the constitution but also of
acting as the guarantor of all political liberties. The monarch performed this role
through his capacity to ensure that all authority at any one time did not reside in one
of the active powers. ‘In a free country’, Constant concluded, ‘the king is a being apart,
superior to differences of opinion, having no other interest than the maintenance of
order and liberty.’79
Constant perceived other distinct advantages to this system of government, all of
which, he believed, aided the preservation of liberty. The first derived from the
practice of ministerial responsibility.80 Constant spent considerable time outlining
the manner in which this operated within the English system. The key issue was
whether a minister’s responsibility was penal or political, Constant recognizing that
within the English system a minister’s responsibility was increasingly seen to be
political. This meant that ministers were no longer seen solely as the monarch’s
functionaries and therefore that ministers could be removed from power as a result
of a loss of political support. This not only made the transfer of power all the easier
to achieve but also led to the development of an ‘animated sentiment of public life’.
Through the watchfulness of parliamentary representatives and the openness of
their debates, there would be engendered ‘a spirit of examination, an habitual
interest in the maintenance of the constitution of the State, a constant participation
in public affairs’. Protection against the arbitrary abuse of power, in short, would be
enhanced through ‘a lively sense of public life’.81
Constant identified four other major guarantees of liberty within a system of
constitutional monarchy drawing upon the English model. The first derived from
one aspect of the separation of powers: namely, the independence of the judiciary.
Constant not only strongly recommended the practice of the non-removability of
judges but also the English jury system, both of which he felt were indispensable for
the preservation of judicial independence. In response to the claim that juries could
not be trusted to carry out their duties properly, Constant was brutally to the point.
‘In England’, he wrote, ‘I have seen a jury find a young girl guilty of stealing muslin
to the value of thirteen shillings. They knew that the sentence would be death.’82
78 Ibid. 280.
79 Ibid. 282.
80 Ibid. 332–49.
81 Ibid. 346.
82 Ibid. 420.
164
Commerce, Usurpation, and Democracy
The second guarantee derived from freedom of the press. In Constant’s opinion,
liberty of the press was essential if the government of the day was to be subject to
informed criticism and publicity. Censorship, he believed, tended to do more harm
than good, as liberty of the press and veracity went hand in hand. England was here
cited as ‘la terre classique’ of freedom of the press.83
Third, Constant believed that constitutional monarchy provided the means of
reducing the role of the army to that of its one, proper function: repelling foreign
invaders. Internal dissent and lawlessness could be dealt with by ‘salaried officers’.
They would content themselves with ‘pursuing’ and ‘supervising’ rather than
‘fighting’ and ‘conquering’, posing no threat to either the authority of the State
or the ‘imprescriptible rights’ of the citizen.
The final guarantee sprang from the independence of municipal and local
authorities. In this we touch upon one of the central themes of French liberalism
in the nineteenth century: the preservation of local independence as a means of
restricting the power of despotic, central government. This argument was an
updated supplement to Montesquieu’s defence of the rights of the provincial
nobility. The French liberals as a whole became obsessed by what they saw as the
systematic destruction of all intermediary powers and the consequent subjection of
an undifferentiated and amorphous population at the hands of a highly organized,
centralized bureaucratic power. Constant, for example, spoke of ‘individuals, lost in
an unnatural isolation, strangers to the place of their birth, without any contact
with the past, living only in a hurried present, scattered like atoms on a vast plain’.84
Constant voiced a series of largely theoretical justifications of local liberty and of
what he did not hesitate to describe as federalism.85 In France, he commented, local
power had always been regarded as a ‘dependent branch of executive power’, with
the result that laws were badly implemented and partial interests were poorly
protected. It was only proper, Constant argued by way of response, that issues of
a purely local interest should be decided at local level. The various authorities––
commune, arrondissement, and national government––should only act within their
proper sphere of competence. Such a system was not only conducive to the
preservation of liberty but also to the most efficient use of resources. ‘[J]ust as in
individual life that part which in no way threatens the social interest must remain
free’, Constant remarked, ‘similarly in the life of groups, all that does not damage
the whole collectivity must enjoy the same liberty.’86 This system would have the
added, and very important, advantage of fostering sentiments of local attachment
and ‘communal honour’. Such attachments, in Constant’s view, drew upon feelings
which were ‘disinterested, noble and pious’.
Towards the end of the Principes de politique Constant made the following, acute
observation: all of the constitutions which had been given to France had guaranteed
the liberty of the individual but all of them had violated this liberty. Declarations of
principles, in other words, were not enough. Positive safeguards, powerful enough
to protect the interests of the oppressed, were required. This was the case, he went
83 Constant, De la liberté, 389.
84 Ibid. 366.
85 Ibid. 361–6.
86 Ibid. 365.
Commerce, Usurpation, and Democracy
165
on, because ‘political institutions are simply contracts; and it is in the nature of
contracts to establish fixed limits’.87 Thus, arbitrariness was incompatible with the
existence of any government considered as a set of political institutions: it under-
mined their very foundations.
This was the message that Constant believed that Bonaparte had been ready to
hear and which he tried to give constitutional embodiment in the Acte additionnel.
With Louis XVIII’s return, Constant was again forced into exile, returning to Paris
at the end of 1816. After this, and until the end of his life in 1830, he embarked
upon a new phase of his career, as both a journalist (writing voluminously for both
the Mercure de France and the Minerve Français)88 and a parliamentary deputy. He
quickly adapted the fundamentals of his thought to the new circumstances of the
restored monarchy––later he was to write that ‘I have always believed, and this
belief has been the rule of my conduct, that as far as government is concerned, we
must set out from the point where we are’89––and sought to defend the guarantees
of individual liberty provided by the new constitutional settlement. In De la
Doctrine politique qui peut réunir les parties en France,90 for example, he counselled
the dominant royalist party against seeking to overturn what he termed ‘the moral
interests of the revolution’––‘equality of citizens before the law, liberty of con-
science, security of the person, the responsible independence of the press’––whilst
as a member of the parliamentary opposition he proved to be an indefatigable
defender of constitutional liberties.
In 1822 Constant published his Commentaire sur l’ouvrage de Filangieri,91 a work
which restated many of his by-now standard arguments linking the age of commerce
with the need for constitutional government. When offered legislative improvement
by government, he argued, the people should demand ‘constitutional institutions’.
In conclusion he argued that ‘the functions of government are negative: it should
oppress evil and leave good to operate by itself ’. The general motto of all govern-
ments should be ‘laissez passer et laissez faire’. Finally, the publication of Mélanges
de littérature et de politique shortly before his death provided Constant with the
opportunity to summarize what he took to be the overall significance of his work.
‘For over forty years’, Constant wrote, ‘I have defended the same principle: liberty
in everything; in religion, in philosophy, in literature, in industry, in politics,
and by liberty I mean the triumph of individuality, as much over authority
which would wish to govern through despotism as over the masses who claim the
right to enslave the minority.’92 Constant was in little doubt that it was towards this
end that society was moving.93
This, of course, had been the theme of Constant’s most famous text, De la liberté
des anciens comparée à celle des modernes, first given as a lecture before the Athénée
87 Ibid. 410.
88 See Ephraïm Harpaz (ed.), Constant: Receuil d’articles, 2 vols. (Geneva, 1972).
89 Constant, Mémoires, part 1, p. 61.
&n
bsp; 90 Constant, De la Doctrine politique qui peut réunir les parties en France (1816).
91 Constant, Commentaire sur l’ouvrage de Filangieri (1822–4).
92 Constant, Mélanges de littérature et de politique (1829), p. v.
93 See here ‘De la perfectibilité de l’espèce humaine’, 387–415.
166
Commerce, Usurpation, and Democracy
Royal in Paris in 1819.94 ‘Since we live in modern times’, Constant told his
audience, ‘I want a liberty suited to modern times.’ As the aim of the moderns
was ‘the enjoyment of security in private pleasures’, it followed that liberty should
be defined in terms of ‘the guarantees accorded by institutions to these pleasures’.
Specifically, liberty consisted of
the right to be subjected only to the laws, and to be neither arrested, detained, put to
death or maltreated in any way by the arbitrary will of one or more individuals. It is the
right of everyone to express their opinion, choose a profession and practice it, to
dispose of property, and even to abuse it; to come and go without permission, and
without having to account for their motives or undertakings. It is everyone’s right to
associate with other individuals, either to discuss their interests, or to profess the
religion which they and their associates prefer, or even simply to occupy their days
and hours in a way which is most compatible with their interests or whims.95
This contrasted with the liberty of the ancients under which, according to Constant,
‘all private actions were submitted to severe surveillance’.
It is in this light that Constant’s great lecture has been understood. He has been
seen to espouse a purely negative conception of liberty. As ever, Constant’s thinking
merits a more complex reading. ‘From the fact that modern liberty differs from
ancient liberty’, Constant explained, ‘it follows that it is threatened by a different
sort of danger.’ That danger was none other than ‘that, absorbed in the enjoyment
of our private independence, and in pursuit of our particular interests, we should
surrender our right to share in political power’. The temptation, in other words,
was that we would turn our backs completely upon what Constant saw as the ‘active
and constant participation in public power’ exercised by the ancients, thereby
reducing our relationship with government to that of obeying and paying. This,