FRANCE AND HER NEW CONSTITUTION.
A CAREFUL reading of the new French Constitution irresistibly establishes two conclusions' —that it marks a highly transitional thatstate of the people; and that a retrograde movement to any pre- vious state is merely impossible.
The transitional state is proved by several curious imperfections in the document. Its imperfection, indeed, is one of the most re- markable things about it : a conclave of schoolboys would not have turned out a production more full of flaws. A written con- stitution should be broad, explicit, complete in itself: this one is obscure encumbered with details, and is so far from being com- plete that it embodies by mere reference a mass of existing laws, and indicates a supplement of "organic laws" which may mate- rially affect its bearing. Instead of being really a substantive constitution, " totus teres atque rotundus,' it is in great part a "continuance bill" for keeping on various laws, subordinate ma- chineries, local corporations, &c. It touches upon great principles which have not yet been settled, nor even searched effectually. On the other hand, it confers upon the people practical powers which they are not likely to relinquish ; and it may perhaps have sufficient trial to make them grow familiar with their gains. But that very exercise of power, coupled with the discussion of the points as yet unsettled, will excite the desire for still greater improvement. It may be said that this is provided for by the articles which empower each Assembly, as its term of duration expires, to appoint the election of a body for the revision of the Constitution : but the document is far too imperfect to be merely revised ; whatever the nominal form of the Government which may ultimately be established in France, this Constitution will have to be thoroughly recast. It sets up no one power in the nation on a solid footing. In each section we find a conflict of ascertained principles with the assumption of principles not ascer- tained, as the armour with which Don Quixote started in life was pieced out with pasteboard.
The very principle of popular strength is falsely stated : "the separation of powers is the first condition of a free government," —in other words, freedom depends upon a system of checks. Now, every independent country is governed, de facto, by that which is the dominant power within it—some "order," class, or caste—or some " party ' or section of the people, distinguished by greater skill in ruling, greater energy, or better organization than the rest. No schemes can reverse that inevitable necessity. If the nation desires to be more great and more free, it would make no way by merely imposing checks on that dominant power— the first untutored impulse of revolt against an ill-conducted government : that, by crippling the flower of the national strength, can only, in its direct working, enfeeble the nation. The true process for elevating the nation would be, to cultivate the other influences, the materials for other powers—to give them strength and development, and thus to establish a better balance of national action with an increase to the aggregate strength. In order to such a process, indeed, it may be necessary to curtail the power of a party whose knowledge or opinions the nation has outgrown; but it is in the other part of the process that the real increase of the national strength is to be sought. Our Reform Bill afforded an instance of the compound process— it crippled the old " Tory " power, but gave freedom, activity, and strength to other classes, already grown to such magnitude as to claim a share in the government. That true principle of national development has not been present to the framers of the French Constitution. They have, in fact, no principle of power. They appear to presume that it is a something which lies latent where, as they think, it ought to be found, and that it is evokable by-edict. And not knowing what to do about a sovereignty, they confer it vaguely on the people, in a tissue of oddly phrased asser- tions. "The sovereignty,' they say, "resides in the universality of the French citizens": which it does not; the universality of French citizens are puppets in the bands of contending factions—which- ever faction may win, certainly the universality of French citi- zens will not. "It is inalienable and imprescriptible" : more easily said than secured. "No individual, no fraction of the peo- ple can arrogate to itself the exercise of sovereignty " : but what if he or it should ? Sovereignty cannot thus be conferred by as- sertion; it is a fact, not an arrangement. And the Republicans who speak thus "in the name of' the French people" are them- selves a fraction of that people. Proceeding to seek a balance of power rather in a system of checks than in one of developments, the Constitution literally pro- vides no representative in the Government for that sovereign power which is "proclaimed " to vest in "the universality of the French citizens." Elected by universal suffrage to the chief office in the Executive, the President of the Republic should be the representative of the sovereign power : but he is so hemmed in by checks, that his power is wholly neutralized ; insomuch that be will not be able to get along, we fear, except by means of in- trigues to eke out the powers left to him. No principle is appa- rent in the provisions regulating his position and power : they are a jumble of devices, sometimes just enough, but not falling into one intelligent whole, not guided by any master principle. The negative prevails throughout. He is elected for four Years; and the first thought is to cut off any chance of his esta- blishing a family interest, by making him, and all his relations "to the sixteenth degree inclusive," ineligible for the next term. He disposes of the army, but must not command it in person ; nor Can he make war without leave of the Assembly. He negotiates and ratifies treaties; but not without the ratification of the As-
sembly. He presides at national solemnities ; is kept and lodged at the cost of the Republic ; chooses his own Ministers : but all his acts must be countersigned by the President of the Assembly. He, as well as every other officer in his department respectively, is responsible. If he dissolve, prorogue, or hinder the meeting of the Assembly, he is guilty of high treason. He can only perform many important functions with the advice of a Council of State elected by the Assembly. In a word, the President of the French Republic will be in a position between that of an American Pre- sident, an English King, and a Venetian Doge, with more direct responsibility and less power than either. His condition perhaps will most resemble that of the Doge—more state ceremony than the American President, and less freedom ; only that his "Grand Council" will be, not a vast assemblage of nobles, but the demo- cratic Assembly of all classes, and his Signoria will be composed, not of grave Venetians absorbed in the sole object of augmenting the power of the state, but of mercurial Frenchmen, in pursuit of every object under the sun. If he observe the letter of the Constitution strictly, we do not see how the Republic can have in him an efficient officer.
The Assembly is the pet of the Constitution. The Deputies are exempt from arrest, except taken flagrante delicto; and from pro- secution, except by leave of the Assembly. A citizen under ar- rest, elected to the Assembly, is ipso facto freed. The Assembly is permanent ; the new one is returnable the day after the old one expires ; it cannot be prorogued by the President ; if it adjourns, it leaves a Committee to reconvoke it on emergency. It makes laws. We have already seen how it controls the Executive. As paid functionaries are to be ineligible to the Assembly, and its Members ineligible for office, it can have little sympathy with the Executive. The President must promulgate all laws within a month; within that term he can call for a new deliberation, but there the shadow of the veto terminates—a further affirma- tion of the law is definitive. Thus the supreme power resides in the seven hundred and fifty Deputies : with all the delays, the rashnesses, the heats, the vacillations, and the distracted councils of numerous bodies, the Assembly will completely override the Executive. The framers of the Constitution have so little under- stood their own principle of "separating" powers, that they have revoked the executive power of the President, to place it in the Assembly, and have thus confounded the law-making with the law-enforcing authority. This is not only a blending of powers, but a confusion of functions in a body very ill-suited to executive service. And that accumulated power is reposed in a body that will probably be sought as a sanctuary by fugitives from the law, as unquestionably it is an outlet for actual prisoners. The new Constitution comprises some useful ideas, especially in the inde- pendence of the Assembly as to its meeting and sitting : but although the framers of the Constitution sought to devise a sys- tem of checks, they have wholly neglected to define the power of the Assembly, which may be as absolute as the Venetian Ten became, and the more readily since it possesses the power of sitting in secret.
Similar inconsistencies are observable in the part relating to the people considered in its subject not its sovereign capacity. "The citizens may meet peaceably without arms, may petition, and may manifest their thoughts by the medium of the press and otherwise " "the exercise of these rights has for its limits only the right, the liberty of others, and public security "; and it may be suspended by a "state of siege." That is, the sovereign people may meet, speak, petition, and think aloud, so long as it is harm- lesss, inoffensive, and not forbidden by martial law. It can do one thing more—it can vote. It may meet, petition, think, speak, during the pleasure of the Assembly ; it may vote at stated intervals. Now these rights, distinctly avowed, are much—in France ; used in practice, they will accustom the people to the action of freedom, and will help to bring about another constitu- tion: they are an advance, they do not establish a resting-place. In his individual capacity, the citizen gains more : his house is inviolable ; he can only be tried according to the laws, by es- tablished tribunals, and in political or criminal cases only by a jury. Every one is equally admissible to public employment on the sole ground of merit. But he has heavy liabilities : he must serve on juries, under exorbitant penalties ; he is obnoxious to conscription for military service; he must serve the Republic, de- fend it ; and he must "love his country "—it is so enacted. The operation of the new French constitution upon " free " citizen is one of coercion rather than permission. The state indeed under- takes to provide work for those who need it, subsistence for those who cannot work, education for all ; points touched upon, but not developed either in principle or detail. The political econo- mist admits that a poor-law lurks in the preamble of the Constitu- tion ; the Communist interprets it to foreshadow a state of Socialism.
The framers of the French Constitution of 1848 have been lavish in a vague admission of general rights—too many of them, for some, if definable, are undefined ; copious in guarantees, elaborate in checks : but what we miss is a well-developed and effective power in the scheme of government corresponding to the power in the nation itself. We see a state contending, not hopelessly but very anxiously, against insolvency, yet guaranteeing labour and subsistence ; we see a body of lawgivers decreeing "liberty," without having the faculties sufficient for breaking down bureau- cratic tyrannies that would be as irksome to an Englishman or an American as a dog's collar; we see them decreeing "equality," without any probability of producing it ; we see them decreeing
." fraternity," where it is the brotherhood of Cain and Abel, and aolemnly enacting "love" as a thing to be created by statute. But how enforce these, or many more practicable enactments ? Such power as the nation possesses is frittered away in checks .dictated by the jealousy of factions newly escaped from the rule of the Monarchy ; and it is still more fatally sapped by one want which does not appear on the face of this Republican charter, but which pervades the whole nation—the utter want of faith in the Constitution, or in anything else.
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