Front Page Titles (by Subject) CHAPTER VIII: Of the Errors of the National Assembly in Regard to the Constitution. - Considerations on the Principal Events of the French Revolution (LF ed.)
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CHAPTER VIII: Of the Errors of the National Assembly in Regard to the Constitution. - Germaine de Staël, Considerations on the Principal Events of the French Revolution (LF ed.) 
Considerations on the Principal Events of the French Revolution, newly revised translation of the 1818 English edition, edited, with an introduction and notes by Aurelian Craiutu (Indianapolis: Liberty Fund, 2008).
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Of the Errors of the National Assembly in Regard to the Constitution.
In the code of liberty we have the means of distinguishing that which is founded on invariable principles from that which belongs to particular circumstances. Imprescriptible rights consist in—equality under the law, individual liberty, the liberty of the press, freedom of religion, the right of admission to public employments, and the grant of taxes by the representatives of the people. But the form of government, whether aristocratic or democratic, monarchical or republican, is but an organization of powers; and powers are themselves nothing but the guarantees of liberty. It does not enter into the natural rights of man that every government should consist of a house of peers, a house of elected deputies, and of a king, whose sanction forms a part of the legislative power. But human wisdom has not even to our days discovered any form of government which in a great country gives more security to the blessings of social order.
In the only revolution within our knowledge which was directed to the establishment of a representative government, the order of succession to the throne was changed, because the English nation were persuaded that James II would not sincerely give up his claims to absolute power in order to exchange it with a legal power. The Constituent Assembly did not go the length of deposing so virtuous a sovereign as Louis XVI, and yet it aimed at establishing a free constitution; the result of this was its considering the executive power as inimical to liberty, instead of rendering it one of its safeguards. It formed a constitution as a general would form a plan of attack.1 All the mischief proceeded from this fault; for whether the King was or was not resigned in his heart to the restraints required by the interest of the nation, they ought not to have examined his secret thoughts, but have established the royal power, independently of what might be feared or hoped from its actual possessor. Institutions, in the course of time, adapt men to themselves with more facility than men can rid themselves of institutions. To preserve the King, and to strip the office of its necessary prerogatives, was the most absurd and most reprehensible plan of all.2
Mounier, a declared friend of the English constitution, did not hesitate to make himself unpopular by professing that opinion: he declared, however, in the Assembly that the fundamental laws of the constitution did not stand in need of the royal sanction, on the broad principle that the constitution was prior to the throne, and that the king existed only by means of it.3 There must be a compact between king and people, and to deny the existence of such contract would be equally contrary to liberty as to monarchy. But as a kind of fiction is necessary to royalty, the Assembly did wrong in calling the king a public functionary: he is one of the independent powers of the state, participating in the sanction of the fundamental laws, as well as in those of daily enactment. Were he only a simple citizen, he could not be king.
There is in a nation a certain stock of feeling, which should be managed like so much physical power. A republic has its enthusiasm, which Montesquieu calls its principle; a monarchy has also its principle; and even despotism, when, as in Asia, it is a part of the religious creed, is maintained by certain virtues; but a constitution of which one of the elements is the humiliation of either sovereign or people must necessarily be overturned by the one or the other.
That controlling power of circumstances which decides so many things in France prevented the proposition of a House of Peers. M. de Lally, who wished for it, endeavored to supply it by asking at least a House of Senators holding their places for life; but the popular party was irritated at the privileged orders, who kept themselves perpetually aloof from the nation, and rejected a lasting institution from momentary prejudice.4 This was a very serious fault, not only because an upper house was a necessary medium between the sovereign and the national deputies, but because there existed no other method of quietly consigning to obscurity the nobility of the second order, so numerous in France; a nobility in no way consecrated by history or recommended by public utility in any shape—and which discovered, much more than its higher brethren, a contempt for the Third Estate because its vanity always made it fear its not attaining sufficient distinction.
The right side of the Constituent Assembly, that is, the aristocrats, could have carried the point of a House of Senators for life by joining M. de Lally and his party. But they preferred voting for a single chamber instead of two, in the hope of obtaining good by the excess of evil; a detestable calculation, which, however, made converts by its apparent depth. Many men imagine that to deceive is a greater compliment to their capacity than to adhere to truth, because the falsehood is their creation: it is, however, an author’s vanity very misapplied.
After the cause of the two chambers was lost, the discussions proceeded to the question of the royal sanction to legislative acts.5 Was the veto about to be given to the King to be suspensive or absolute? The word “absolute” resounded in the ears of the vulgar, as if despotism were in question; and we now begin to see the disastrous effect of popular clamor on the decisions of enlightened men. It is scarcely possible for a reflecting mind to exercise sufficient deliberation to understand all the questions relative to political institutions; what, then, can be more fatal than to submit such questions to the arguments, and, above all, to the sarcasms of the multitude? They spoke of the veto in the streets of Paris as of a monster that would devour little children. Not that we are to draw from this the inference suggested to some persons by a contempt for their species—that the people are unfit to judge of what relates to their concerns. Governments have on their part given surprising proofs of incapacity; and checks are necessary to authority in every shape.
The popular party desired only a suspensive instead of an absolute veto: that is, that the King’s refusal to sanction a law should, of itself, fall to the ground in the next Assembly, if the same law were again insisted on. The debates became heated: on one side it was argued that an absolute veto on the part of the King would be a bar to all improvements proposed by the Assembly: on the other, that the suspensive veto would reduce the King, sooner or later, to the necessity of obeying in all points the representatives of the people. M. Necker, in a report in which he treats with uncommon sagacity the most important constitutional questions, pointed out, as a means of accommodation, three stages in legislative progress instead of two; that is, that the King’s veto should not fall to the ground till after a demand reiterated by the third Assembly. His reasoning on this subject was as follows.
In England, he said, the king very seldom makes use of his right to the veto, because the House of Peers almost always spares him that pain; but as it has been unfortunately decided in France that there should be but one chamber, the King and his council find themselves under the necessity of discharging at once the functions of an upper house and of the executive power. The obligation of making a habitual use of the veto implies the necessity of rendering it more flexible, just as we require lighter weapons when obliged to employ them frequently. We may also be assured that by the time of a third legislative assembly, that is, three or four years after the vivacity of the French, on whatever subject, will be always calmed; and, in the contrary event, it is equally certain that if three representative assemblies should successively demand the same thing, the public opinion must be too strong to render it advisable for the King to oppose it.
It was improper under existing circumstances to irritate the public by the expression “an absolute veto,” when, in fact, in every country, the royal veto gives way, more or less, before the national wish. The pompous nature of the word might be regretted; but the danger of it also was to be dreaded when the King was placed alone in the presence of a single assembly, and when, being deprived of the gradations of rank, he seemed, if I may so say, face-to-face with the people, and forced to put incessantly in the balance the will of one man against that of twenty-four million. Yet M. Necker in a manner protested against this plan of conciliation even in proposing it: for, while showing how the suspensive veto was the necessary result of having only one legislative chamber, he repeated that a single chamber was wholly incompatible with anything sound or permanent.
[1. ] In its original form, the principle of the separation of powers (Article 16 of the Declaration of the Rights of Man) had a strong antimonarchical character insofar as it sought to transform the king into a simple magistrate—the head of the executive—entirely dependent on legislative power. At the same time, the skeptical attitude toward the executive power was accompanied by the extreme confidence in the virtues of legislative power.
[2. ] In Du pouvoir exécutif dans les grands états (1792), Necker reevaluated the role of executive power and the balance of powers in modern society. Following in the footsteps of her father, Madame de Staël argued that in spite of the controversy surrounding the division of powers the most difficult problem was not their separation but their proper union.
[3. ] Sieyès, otherwise a critic of Mounier, also defended the theory of the superiority of the constituent power vis-à-vis the authority of the monarch.
[4. ] Lally-Tollendal’s report recommending bicameralism was rejected by the Constituent Assembly on September 10, 1789. His colleague, Mounier, was also an eloquent defender of two chambers. For more information, see Furet and Halévi, eds., Órateurs de la Révolution français, vol. 1, 882–83.
[5. ] The royal veto was discussed on August 31, September 4, and September 11, 1789. The monarchiens and Mirabeau argued in favor of an absolute royal veto. Sieyès opposed any form of royal veto, and Abbé Grégoire opposed the absolute veto and defended the suspensive (provisional) one. The representatives finally voted in favor of a suspensive royal veto on the Assembly’s decrees during two legislative sessions. Grégoire’s and Mirabeau’s speeches of September 4, 1789, can be found in Beik, ed., The French Revolution, 97–112. Also see Furet, Revolutionary France, 76–78. For an overview of the constitutional debates of the summer of 1789, see Acton, Lectures on the French Revolution, 95–109.