power to overcome all resistance and attempted prevention. Now one of three could have had such power only when supported by the people in sufficient force and with sufficient determination to overcome the rest; and that would signify that the people were the sovereign, the state, and had rejected the other forms of organization. My view is, therefore, that the German people resident within the twenty-two purely German states had, by 1866, reached a point in their national development where the ethnical unity was bound to pass over into political unity; that the German state had become existent subjectively, as idea in the consciousness of the people, and that the impulse to objectify the idea in institutions and laws was the force which employed the customary forms of legality in the attainment of the result; but the original power was in that force, not in those forms. It was fortunate for the continued existence of these that they proved elastic enough to permit the entrance of that force. It was not compelled, thus, to cast them aside and create its own more natural forms. The task of the commentator, however, is made much more difficult on account of this fact. He, and those who read him, are obliged to preserve a constant tension of mind in distinguishing these forms when filled with the new power, from the same as containing only the old power. Both he and they almost inadvertently glide into the juristic processes, and, delighted with a show of logical exactness, forget that the juristic theory will not contain the demonstrations of war and violence and the evolutions of power with which the birth moment of the new state was attended.1

1 Jellinek, Die Lehre von den Staatenverbindungen, S. 262.

CHAPTER IV.

THE HISTORY OF THE FORMATION OF THE FRENCH CONSTITUTION.

ance.

THE Carolingian constitution is again the point of departure in tracing this development. The dissolution of the theocratic imperium in 843 gave to the French state its substantial territorial and ethnical basis, but left it disorganized politically. The King, the marquises, the counts and the bishops remained; but they were only officers, government, not the state, not the sovereign. The Emperor alone was the state, for the real monarchic state must rest upon a theocratic foundation, must be jure divino. When the state is purely secular, it can never be monarchic except in appearIt may have a monarchic government, but it itself is either aristocratic or democratic. The theocratic principle, as we know, was wanting in the kingship; and although the post-Carolingian King claimed the rights, powers and prerogatives of the Emperor, the marquises, counts and bishops denied and successfully resisted the claim under the principle, as we of to-day would express it, that they had derived their offices and powers from the same source as the King himself, viz; from the Emperor, the state, and that therefore their tenures and prerogatives were equally sacred with those of the King.

The officials of the Empire now laid claim, in the period of the dissolution of the Empire, to the rights and powers of princes; i.e. of autonomous government in their respective seigneuries. Thus the dissolution of the imperial sovereignty left immediately the federal form of government without any

objective organization of the state, but with the unorganized material of an aristocratic state. The powerlessness of the King to meet successfully the Norman invasions furnished. the occasion, in fact, made it necessary, for the aristocratic state to give itself objective organization. This was finally accomplished in the assembly of the princes, both ecclesiastical and secular, at Senlis, in the year 987, where they in union constituted themselves as sovereign, as state, discarded the claims of a Carolingian pretender and elected Hugh Capet, duke of the Isle de France, King.1

The royal government was more fortunate in France than in Germany. The tendency of the aristocratic state towards excessive decentralization in government met with a far more decided and permanent check in France through the development of the democracy, than in Germany through the re-establishment of the imperium. For the first hundred years, however, the Capetians merely held their own. About all the advance they can be said to have made was their successful defence of the royal tenure against republicanization. The crusades of the eleventh century relieved the King of the hostile presence of a large part of the seigneurs, who went forth upon those eastern campaigns never to return.2 The confiscations of the territories of the Duke of Normandy and the Count of Toulouse at the beginning of the thirteenth century, increased immensely the power of the crown. The King followed the policy of union with the bourgeoisie against the seigneurs. The democracy was becoming conscious of itself and was seeking its first form of organization about the royal centre. In the first decades of the fourteenth century the union of the King and people seemed on the point of consummation. The King, however, pressed forward too rapidly and recklessly. The people needed a longer training, a

1 Martin, Histoire de France, Tome II, pp. 547 ff.

2 Ibia. Tome III, p. 193.

3 Ibid. Tome III, p. 585; Tome IV, p. 150.

more gradual development. The reaction began before the death of Philip the Fair. His own inconstancy to the popular cause, the misfortunes of his family, and the descent of the crown to the Valois branch of the Capetians in 1328, checked the organization of the democratic state about the King as the sole and exclusive organ of government; i.e. checked the development of what is termed by the publicists the absolute monarchy, which is, as I have already demonstrated, the democratic society with monarchic government. In consequence of this check the aristocratic state revived in France. The Valois Kings turned their backs upon the bourgeoisie and restored to the seigneurs the autonomy of which the older line had with so much pains and persistence succeeded in partially depriving them.2 The decentralization of the government was of course the result. In this condition of weakness the French state came to meet the century of war with England. The aristocratic state was on the point of dissolution when the democracy of France came to the rescue. This was the political significance of the appearance of the Pucelle in 1429.3 The King, Charles VII, did not comprehend it, but his successor, Louis XI, did. Louis XI cultivated the democracy with great assiduity and made the crown the bearer of its power against the aristocracy. From Louis XI to Louis XVI, i.e. for three hundred years, the political system of France was the unorganized democratic state, i.e. the democratic society, with monarchic government, i.e. the democratic society under monarchic organization. It was this which preserved France from the disunity of Germany during the period when the French democracy was coming to the consciousness of the state, and was passing through the school of preparation necessary to develop the capacity for the democratic organization of the state.

1 Martin, Histoire de France, Tome IV, p. 512.

2 Ranke, Französische Geschichte, Bd. I, S. 37 ff.

3 Ibid. S. 44; Kitchin, History of France, Vol. I, pp. 522 ff.

4 Kitchin, History of France, Vol. II, p. 100.

At length, in 1789, the moment for this organization of the state arrived. The body called together by the King as "États generaux" transformed itself into a national constituent assembly; i.e. the democratic state gave itself its natural form of organization. The first written constitution of democratic France, vis; that of 1791, was framed and ordained by this body. This body was, therefore, the ultimate and sovereign organization of the state. The acceptance of this constitution by the King was in fact but an appearance-saving form. It could still, however, be claimed. by the royal jurists that the assembly only framed the constitution, while the act of the King was the real ordaining, i.e. sovereign, act. This claim, thrown in the face of the people, had no small influence in developing the idea and feeling that the King must necessarily be made away with, before the sovereignty of the democratic state, under its own chosen form of organization, could be placed beyond dispute. This was the scientific meaning of the dethronement and execution of the King. The second convention, vis; that of 1792, represented the jacobinistic view, i.e. the extreme democratic view of the state. It did not regard itself as a constituent, but only as an initiating, body. It submitted the constitution which it drafted to the direct universal suffrage of the people. It thereby recognized the people, organized in their respective electoral districts, as the sovereign, the state. This is the doctrine of the plébiscite pure and simple. The introduction of this principle into the French practice cannot then be charged upon Bonaparte. He found it there. It was the legacy of jacobinism to the Empire, and the successful use which Bonaparte made of it demonstrates the near approach in principle of the extreme democracy to real Cæsarism. The constitution of 1793, framed by the convention and ordained by the plébiscite, was never put in

1 Lebon, Das Staatsrecht der französischen Republik, S. 12.