CHAPTER XXI

THE CONSTITUTION OF THE THIRD REPUBLIC

Collapse of the Second Empire and Problem of a New Government. The Third Republic was set up under circumstances that gave promise of even less stability than was revealed by its predecessors of 1792 and 1848. Proclaimed in the dismal days following the French defeat at Sedan, it owed its existence, at the outset, to the fact that, with the capture of Napoleon III by the Prussians and the utter collapse of the Empire, there had arisen, as Thiers put it, " a vacancy of power." The proclamation was issued from the Hotêl de Ville September 4, 1870, by a self-appointed group of deputies of the Left, (led by Gambetta and Favre), when the war with Prussia had been in progress seven weeks; and during the remaining five months of the contest sovereign authority was exercised by a Provisional Government of National Defense, with General Trochu at its head. Upon the capitulation of Paris, January 28, 1871 (followed by an armistice), elections were ordered for a national assembly, whose function would be to decide whether it was possible to continue the war or necessary to submit to peace, and in the latter case, what terms of peace should be accepted. There was no time for framing a new electoral system. Consequently, the electoral arrangements of the Second Republic, established by a law of March 15, 1849, were revived; and on February 8 an assembly of 758 members, representing both France and the colonies, was chosen by manhood suffrage.

When, on February 13, this National Assembly convened at Bordeaux, it found itself the sole repository of governmental authority. The emperor, the Senate, the Corps Législatif, the ministry all were gone; never, even in 1792 and 1848, had the field been more clear of debris left by an old régime. Even the Government of National Defense, which, acting by the tacit consent of the nation, had held things together, not without glory, during the "vacancy of power," dissolved immediately after it gave the country an elected assembly, as it had pledged itself to do. In view of these facts, the Assembly found itself

at once possessed of full powers as a government. It was the only legal representative of the national sovereignty, and there was no constitution to restrict its authority. No definite restraints had been imposed by the electorate, either on what the body might do or on the duration of its power. The result was that the Assembly forthwith became the government, and it remained such for approximately five years.

At all events, it held full control of the political machinery and itself acted as the national legislature. It might have kept the executive power, too, in its own hands, by exercising it through committees, as the Long Parliament in England, the Continental Congress in America, and the French Convention of 1792-95 had done in a similar situation. On this point, however, it chose a different course, partly out of deference to the doctrine of separation of powers, partly because events had in advance designated a titulary of the executive power in the person of the historian and parliamentarian Thiers. Consequently, on February 17, the Assembly conferred on Thiers the title of "chief of the executive power," and, having voted almost unanimously for peace, instructed him to enter upon negotiations. The executive function was delegated without fixed time; it was to be exercised by the chief with the aid of ministers whom he appointed; and it was revocable at the Assembly's will. For the time being, Thiers retained membership in the Assembly.'

More perplexing than the task of arranging for the immediate management of the country's affairs was the problem of a permanent governmental system. Most people assumed not only that the Assembly was entitled to exercise constituent power but that one of its main duties was to give France a constitution; although from the first there were those who held that, in the absence of an express mandate from the nation, such a proceeding would be a sheer assumption of authority. The Assembly, as a whole, had no doubts upon its rights in the matter, although it was disposed to postpone the work until the treaty of peace should have been signed. Discussion of the subject, however, could not long be repressed, and it soon became apparent that upon the fundamental question of what form the new government should take there were two main proposals. One was monarchy, of a more

1 The earlier work of the National Assembly is fully and authoritatively described in G. Hanotaux, Histoire de la France contemporaine (Paris, 1903-08), trans. by J. C. Tarver and E. Sparvel-Bayly under the title Contemporary France (New York, 1903-09), I, Chaps. i-vi.

or less limited sort; the other was republicanism. The monarchists fell into three groups. A party of Legitimists, i.e., adherents of the old Bourbon monarchy, wanted a kingdom under the Count of Chambord, grandson of the Charles X who was deposed at the revolution of 1830. A party of Orleanists desired a restoration of the house of Orleans, overthrown in 1848, in the person of the Count of Paris, a grandson of the citizen-king Louis Philippe. A smaller group of members who, despite the discredit which the house of Bonaparte had suffered as a result of the war, remained loyal to the Napoleonic tradition, was committed to a revival of the prostrate empire of the captive Napoleon III.

The republicans, who were strong in Paris and in the southwestern parts of the country, aimed, of course, to prevent the reappearance of monarchy in any form. They were outnumbered five to two in the Assembly,' and on this account it was chiefly they who argued that the body had received a limited mandate and had no authority to frame a constitution. They said, as was true, that the members had been chosen primarily for their views as to peace rather than as to constitutional forms. Their outlook, even in the present Assembly, was, however, far from hopeless, in view of the division in the monarchist ranks; and when the triumph of the republican cause became reasonably assured, most of them acquiesced in the Assembly's exercise of constituent power.

Origins of a Cabinet System: the Rivet Law. After the treaty of Frankfort was signed, on May 10, the primary object for which the Assembly was elected could be regarded as attained. Despite republican demands that the body declare its task completed and give way to a new agency specially chosen for the work of constitution-framing, there was, however, no indication of purpose to pursue such a course. Already the body was actively instituting measures to aid the country's recovery from the effects of the war; it had transferred its seat from Bordeaux to Versailles, and had taken vigorous and effective steps to suppress the communard uprising of April and May in Paris. Far from relinquish

1 Of avowed Legitimists there were about 150; of Bonapartists, not over 30; of Republicans, about 250. The remaining members were Orleanists or men of uncertain views. At no time was the full membership of the Assembly in attendance. See G. Weill, Histoire du parti républicain en France de 1814 à 1870 (Paris, 1900).

2 The Commune was a movement in protest against a centralized form of government, whether monarchist or republican. The communards wanted a system based on a federation of communes.

ing power, it gave every evidence of intention to keep its hand on the situation indefinitely, and to give the country the strong government that it needed while the work of constitution-making was going forward deliberately, and even leisurely.

A practical difficulty in the existing arrangements was the anomalous position of Thiers as chief executive, and of the ministers. With a view to organizing the government on a more definite basis, Charles Rivet, deputy for the Corrèze and friend of Thiers, introduced, on August 12, a resolution to the effect that Thiers should be given the title of president of the republic, that he should retain office for three years unless the Assembly should sooner be dissolved, and that the ministers should be made directly and completely responsible to the Assembly. The obvious intention was to introduce a cabinet system on the English model; the president, being immovable, would cease to be responsible, and the ministers would become the working, responsible executive. Although inclining strongly to the cabinet type of government, the Assembly was not ready to go as far as Rivet proposed, and the program was considerably altered before being adopted. As passed on August 31 (by a vote of 491 to 94), the Rivet law gave Thiers the title of president and declared the ministers responsible to the Assembly, yet reiterated the responsiblity of the president himself to that body and indicated that his powers, which were increased in several directions at this time, were to be construed as having been conferred for as long as the Assembly itself should last.'

This legislation was of some benefit. The title of president had a certain definiteness; the important principle of ministerial responsibility had been clearly proclaimed. Fundamentally, however, the new arrangements were less satisfactory than those which they supplanted. The Assembly had attempted the feat of making parliamentary responsibility reside at the same time in the titulary executive and in the ministers, and little experience was needed to prove that this was impossible. What actually happened was that Thiers kept up his close working relations with the Assembly, took a personal and active part in its deliberations, and bore direct responsibility to it, while ministerial responsibility was hardly more than a name.

To the general demand for further reconstruction of the system, Thiers added the weight of his voice in a message of November 13, 1872; and on March 13, 1873, a new and signif

1 Duguit et Monnier, Les constitutions, 315-316; Anderson, Constitutions, 604-606; Hanotaux, Contemporary France, I, Chap. iv.

icant law was passed. The original object of the measure was to restrict the personal intervention and influence of the president in the Assembly's proceedings. This might have been done by excluding him from membership. But Thiers objected so vigorously that the idea was not pressed. It might also have been accomplished by relieving the president of responsibility to the body. But the Assembly did not desire to do this. It believed, with the Duc de Broglie, that while in a constitutional monarchy the titulary head may be immune from responsibility, the president, or other head, of a republic must be responsible, by virtue of the very principle of republicanism. Thus far in the world's experience the cabinet system had been confined to monarchies, and the French lawmakers of 1873 must not be too severely criticized for failing to see that the system can, indeed must, work under the same principles, whatever title the nominal head of the state may bear. As finally passed, therefore, the law of 1873 did not go farther than to define the conditions under which the president might address the Assembly and to throw special safeguards around the right of the body to deliberate on his proposals in his absence; although, by way of compensation, it bestowed on him a weak form of veto.

Failure of the Monarchist Programs. Meanwhile Thiers, who began as a constitutional monarchist, came to the view that a republican form of government would be most likely to win the general support of the people, and late in 1872 he put himself definitely among the adherents of the republican program. This naturally aroused the monarchists; and when, on May 19, 1873, Dufaure (vice-president of the council of ministers, and an appointee of Thiers) submitted to the Assembly the draft of a republican constitution, they buried their differences long enough to defeat the plan, and force the president's resignation. They now felt that the time had come to end a régime which they had assumed from the first to be temporary, and for a short while the tide ran strongly in their favor. They elected to the presidency Marshal MacMahon, who not only was a monarchist, but, being a soldier rather than a parliamentarian and orator, did not care to take an active part in politics; besides, he was not a member

1 Esmein, Éléments de droit constitutionnel (4th ed.), 515 2 Journal officiel, May 20, 1873, p. 3208.

3 Anderson, Constitutions, 622-627; A. Lefèvre Pontalis, "L'Assemblée nationale et M. Thiers," in Le Correspondant, Feb. 10, 1879; Hanotaux, Contemporary France, I, Chap. x; II, Chap. i; A. Thiers, Notes et Souvenirs de 1870 à 1873 (Paris, 1903); J. Simon, Le gouvernement de M. Thiers (Paris, 1878); E. de Marcère, L'Assemblée nationale de 1871 (Paris, 1904).