Napoleonic France: From Republic to Monarchy
In France the revolutionary chaos also gave way to order. However, the ways in which a strong executive power triumphed and its whole meaning were very entirely different from the case of the United States of America and its constitutional history.
In France, the reemergence of a strong state was not the result of consensus expressed through a constitutional convention, but rather the result of the persistence and energy of one man with a spectacular capacity for organization: Napoleon Bonaparte (1769-1821).[773]In the French case, the reaction against republican assembly-based government came not by consensus but by force of arms and the coup d'etat carried out by Napoleon on November 9, 1799 (18 Brumaire de l’ An VIII). The Constitution was no longer written by a constitutional assembly, but was a technical prescript ratified “a posteriori” by a plebiscite, that is, a consultation in which a specific proposal was put to a vote so that the citizens could express their acceptance or rejection of it, in what we today would call a “referendum”. In addition, in France, unlike in the United States, a regime change ended up coming about as the republic was abandoned and a new regime, created ex novo, was established, one not based on the old divine right principle of kingship, but a new monarchy made possible by and created in the wake of the “clean slate” spawned by the Revolution. This new regime reflected Napoleon’s conception of legitimacy, based on a purported transfer of sovereignty from a hereditary monarch to a publicly acclaimed emperor acting on behalf of the people, enjoying their confidence, and entirely dedicated to promoting their general welfare (Bergeron 1990, 5).
15.1.1 A Genius Named Napoleon Bonaparte
The story of Napoleon is, from every point of view, positively extraordinary. First of all, he was not even of French origin, as his native Corsica was annexed by France in the year of his birth (1769).
The island’s absorption was a fateful stroke of good fortune for Bonaparte; though his family was not wealthy, young Napoleon was able to study thanks to a royal scholarship for which he was entitled thanks to his father’s belonging to the low nobility.[774]As an artillery officer, Bonaparte was swept up in the tide of history and the events of the Revolution. He would score his first great military success when he retook the Port of Toulon from the English in an audacious maneuver. Ideologically Napoleon was an adherent of Robespierre, which initially bolstered his career.[775] After the Thermidorian Reaction (July 1794), however, his political sympathies landed him in jail and almost cost him his head. And yet, not only did Bonaparte survive the political purge, but his talent as an artillery officer allowed him to save the Directory government from an attempted royalist coup d’etat in October of 1795. His actions earned him a promotion to the rank of general at the age of just 26, as he became one of the key military figures in the new government as second in command of the Army of the Interior (Dwyer 2008, 177).
However, Bonaparte was also a savvy politician (Hicks 2012, 70-814), who knew how to play his cards and strategically position himself in the new regime.
He rose to stardom after a brilliant campaign (1796-1797), which wrested all of Italy from the Austrians, despite his being far outnumbered (Boycott-Brown 2001). The Directory, wary of the young general’s surging popularity, urged to him to pursue a campaign in Egypt (1798). When the English destroyed the French fleet at Abukir Bay, however, Napoleon managed to return to France just in time to intervene. His timing was serendipitous, as he conspired to seize power just when his country was ripe for a strongman to lead it.[776]
When reaching power in November of 1799, Bonaparte found a country that was bankrupt, its people fed up and disillusioned by 10 years of political chaos.
Thus, the coup d’etat of November 9, 1799 was met with relative calm and indifference by the French people, who were willing to accept any government strong enough to stabilize the ailing country (Englund 2004, 166). The new situation was ripe for exploitation by Napoleon. In a question of weeks he had employed his ambition, pragmatism and capacity for hard work to establish his authority via the drafting of a new constitution and the reorganization of the state (Jordan 2012, 95-111).[777]15.1.2 The Peculiar “Napoleonic Constitutionalism”
When Napoleon rose to power, originally forming part of a triumvirate alongside Roger Ducos and Emmanuel Joseph Sieyes, his first initiative was to push for a new constitution.[778] This one, however, would not be the fruit of any new constitutional convention. Napoleon entrusted its drafting to Daunou (Jainchill 2008, 238), a moderate, totally Anti-Jacobin republican, who wrote it in 11 days, and the new document was promulgated on Christmas Day, 1799, just seven weeks after Bonaparte's rise to power. It is important to emphasize that the new constitution actually took effect before it was ratified on February 7, 1800 by a plebiscite in which it received more than three million votes in favor, with only 1,600 against. The 1799 Constitution was essentially a technical legal text, a matter of form aimed at providing France with a strong executive authority. It was neither democratic nor representative because, although it theoretically restored universal suffrage, it also eliminated elections, as citizens did not vote but rather presented lists of candidates (notables), who could form part of the state’s different bodies. In short, it was a “legitimized dictatorship” (Bluche 1980, 24).
The most important institution in the new Constitution of the Year VIII was its executive branch.[779] Practically nonexistent in the period from 1789-1799, it was now vested in one person: the first consul.
The Constitution directly named three consuls (along with Napoleon: Jacques-Regis de Cambaceres, a former member of the Convention; and Charles Francois Lebrun, a moderate monarchist) for a period of 10 years. The three were indefinitely eligible for reelection by the Senate. In reality it was Napoleon who governed, as the other two consuls limited themselves to giving their opinions. In fact, Bonaparte wielded a remarkable amount of power, as not only could he could name and dismiss ministers and officers, accountable to nobody, but also had extraordinary legislative power; in accordance with article 44 of the constitution the executive—called “the government” in the text— proposed the laws and enacted “the regulations necessary to assure their execution”. The result was that, for the first time since the Revolution, the executive had an extraordinarily expansive “regulatory power” (Jainchill 2008, 239).The legislative branch, in contrast, was even weaker than it had been under the Directory. Instead of two there were three chambers: the Senate (in reality an assembly of notables), whose role was to designate the consuls and the main officials in the new regime, the Tribunate, and the Legislative Body (Corps Legislatif). The legislative assemblies were not democratically elected and the scope of their authority was severely limited. The function of the Tribunate was to discuss bills, and that of the Legislative Body to endorse or reject the proposed legislation it received from the Tribunate. These chambers, nevertheless, had neither legislative initiative nor the power to draft and pass laws. The final proposal of laws lay with the first consul, and their drafting with a high consultative organ created by him: the Council of State (Conseil d’Etat).[780]
15.1.3 A Return to the Roman Model?
Conscious of the fact that he was not installing a representative government legitimized by elections, Napoleon looked to history, and far back, prior to the French monarchy, for a model justifying his regime, and was inspired by institutions taken, at least formally, from the Roman political tradition.
Power was vested in magistrates, consuls, and an assembly of nobles referred to, tellingly, as the Senate.In reality, power in the new model of the Napoleonic State rested in the hands of the first consul. Despite appearances, the Roman model had not been copied exactly. There were not two consuls with equal powers like there were in the Roman Republic, but rather three, and only one wielded real power. In theory, the consuls were named by the Senate, but in the French case the consuls were named directly in the constitution itself. The first consul saw his power reinforced even further by the fact that he presided over the new state’s key assembly: the Senate. In this regard it was clear that Napoleon was indeed inspired by the model of the Roman Principate (Englund 2004, 214-215). The Senate was an aristocratic assembly that, in addition to choosing its own members from lists of notables, also chose the members of the legislative assemblies, the Tribunate, the Legislative Body, and the three consuls. Moreover, it was authorized to annul acts contrary to the Constitution. The Senate, however, was not an independent institution. Bonaparte’s involvement in the election of the first Senate was decisive in assuring his control of an assembly that, theoretically, was to function as the state’s most powerful body.[781]
To govern Napoleon relied upon a restricted technical entity: the State Council. Paradoxically, this institution had actually been salvaged from the Ancien Regime, as it was the equivalent of the old King’s Council, which during the era of absolute monarchy wrote up bills, was authorized to interpret laws, and wielded supreme jurisdiction in administrative affairs. The revival of the State Council is perhaps the most tangible proof that the First Consul had intended from the outset to reestablish monarchy as France’s new form of government.[782]
15.1.4 A New Monarchy for a New Regime
Napoleon, as an heir to the Revolution, categorically rejected the restoration of traditional absolute monarchy.
From the very beginning, however, he found monarchical power the most expedient for the establishment of order and the development of a strong state. Thus, he proceeded to lay foundations which would allow him to institute a new form of monarchy,[783] which he carried out in three phases; during the first stage, as we know, he seized control of the executive branch (through the 1799 Constitution), which would be followed up by constitutional reform in 1802 and 1804.The first step towards the “monarchization” of the regime came on August 2, 1802 when, by means of another plebiscite, the French voted in favor of naming Napoleon sole Consul for Life. Two days later (August 4,1802), a new Constitution entered into effect by means of a Senate decree (senatus-consulte), which was not put to a plebiscite.[784]
The regime’s transformation came to a head with the third “Napoleonic Constitution”, that of May 18, 1804 (28 Floreal, An XII), in which Napoleon directly established a new monarchy, the new constitution’s first article stating that “the government of the Republic is entrusted to an emperor, who takes the title of ‘Emperor of the French’” (P. Smith 2005, 36). Its second article directly designated Napoleon as said Empereur des Frangais. This third constitution was written up, like that of 1802, by the Senate and at Napoleon’s request, although it was legitimized a posteriori, via plebiscite on November 6, 1804.[785]
In this third phase, Napoleon abandoned the republican model of government—in effect since September 22, 1792—and replaced it with the implementation of a new regime formally designated an “empire”, but which for all intents and purposes was a monarchy, albeit a new kind of one that did not rely upon the Ancien Regime model and which purported to derive its legitimacy from the French people and the Revolution.[786]
15.2