After the Federal Constitution was drawn up, Hamilton, in the seventy-eighth number of the Federalist, argued that the power belonged to the judiciary; but it was not constitutionally recognised until 1801. "This," said Madison, "makes the judiciary department paramount, in fact, to the legislature, which was never intended, and can never be proper. In a government whose vital principle is responsibility, it never will be allowed that the legislative and executive departments should be completely subjected to the judiciary, in which that characteristic feature is so faintly seen." Wilson, on the other hand, justified the practice on the principle of the higher law: "Parliament may, unquestionably, be controlled by natural or revealed law, proceeding from divine authority. Is not this superior authority binding upon the courts of justice? When the courts of justice obey the superior authority, it cannot be said with propriety that they control the inferior one; they only declare, as it is their duty to declare, that this inferior one is controlled by the other, which is superior. They do not repeal an act of Parliament; they pronounce it void, because contrary to an overruling law." Thus the function of the judiciary to be a barrier against democracy, which, according to Tocqueville, it is destined to be, was not apparent. In the same manner religious liberty, which has become so much identified with the United States, is a thing which grew by degrees, and was not to be found imposed by the letter of the law.
The true natural check on absolute democracy is the federal system, which limits the central government by the powers reserved, and the state governments by the powers they have ceded. It is the one immortal tribute of America to political science, for state rights are at the same time the consummation and the guard of democracy. So much so that an officer wrote, a few months before Bull Run: "The people in the south are evidently unanimous in the opinion that slavery is endangered by the current of events, and it is useless to attempt to alter that opinion. As our government is founded on the will of the people, when that will is fixed our government is powerless." Those are the words of Sherman, the man who, by his march through Georgia, cut the Confederacy into two. Lincoln himself wrote, at the same time: "I declare that the maintenance inviolate of the rights of the states, and especially the right of each state to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of powers on which the perfection and endurance of our political fabric depend." Such was the force with which state rights held the minds of abolitionists on the eve of the war that bore them down.
At the Revolution there were many Frenchmen who saw in federalism the only way to reconcile liberty and democracy, to establish government on contract, and to rescue the country from the crushing preponderance of Paris and the Parisian populace. I do not mean the Girondins, but men of opinions different from theirs, and, above all, Mirabeau. He planned to save the throne by detaching the provinces from the frenzy of the capital, and he declared that the federal system is alone capable of preserving freedom in any great empire. The idea did not grow up under American influence; for no man was more opposed to it than Lafayette; and the American witness of the Revolution, Morris, denounced federalism as a danger to France.
Apart from the Constitution, the political thought of America influenced the French next to their own. And it was not all speculation, but a system for which men died, which had proved entirely practical, and strong enough to conquer all resistance, with the sanction and encouragement of Europe. It displayed to France a finished model of revolution, both in thought and action, and showed that what seemed extreme and subversive in the old world, was compatible with good and wise government, with respect for social order, and the preservation of national character and custom. The ideas which captured and convulsed the French people were mostly ready-made for them, and much that is familiar to you now, much of that which I have put before you from other than French sources, will meet us again next week with the old faces, when we come to the States-General.
III
THE SUMMONS OF THE STATES-GENERAL
The condition of France alone did not bring about the overthrow of the monarchy and the convulsion that ensued. For the sufferings of the people were not greater than they had been before; the misgovernment and oppression were less, and a successful war with England had largely wiped out the humiliations inflicted by Chatham.
But the confluence of French theory with American example caused the Revolution to break out, not in an excess of irritation and despair, but in a moment of better feeling between the nation and the king. The French were not mere reckless innovators; they were confiding followers, and many of the ideas with which they made their venture were those in which Burke agreed with Hamilton, and with his own illustrious countrymen, Adam Smith and Sir William Jones. When he said that, compared to England, the government of France was slavery, and that nothing but a revolution could restore European liberty, Frenchmen, saying the same thing, and acting upon it, were unconscious of extravagance, and might well believe that they were obeying precepts stored in the past by high and venerable authority. Beyond that common ground, they fell back on native opinion in which there was wide divergence, and an irrepressible conflict arose. We have to deal with no unlikely motives, with no unheard of theories, and, on the whole, with convinced and average men.
The States-General were convoked because there was no other way of obtaining money for the public need. The deficit was a record of bad government, and the first practical object was the readjustment of taxes. From the king's accession, the revival of the old and neglected institution had been kept before the country as a remedy, not for financial straits only, but for all the ills of France.
The imposing corporation of the judiciary had constantly opposed the Crown, and claimed to subject its acts to the judgment of the law. The higher clergy had raised objections to Turgot, to Necker, to the emancipation of Protestants; and the nobles became the most active of all the parties of reform. But the great body of the people had borne their trouble in patience. They possessed no recognised means of expressing sentiments. There was no right of public meeting, no liberty for the periodical press; and the privileged newspapers were so tightly swaddled in their official character that they had nothing to say even of an event like the oath in the Tennis Court. The feelings that stirred the multitude did not appear, unless they appeared in the shape of disorder. Without it France remained an unknown quantity. The king felt the resistance of the privileged and interested classes which was the source of his necessity, but he was not apprehensive of a national opposition. He was prepared to rely on the Third Estate with hopefulness, if not with confidence, and to pay a very high price for their support. In a certain measure their interest was the same. The penury of the State came from the fact that more than half the property of France was not taxed in its proportion, and it was essential for the government to abolish the exception, and to bring nobles and clergy to surrender their privilege, and pay like the rest. To that extent the object of the king was to do away with privilege and to introduce equality before the law. So far the Commons went along with him. They would be relieved of a heavy burden if they ceased to pay the share of those who were exempt, and rejected the time-honoured custom that the poor should bear taxation for the rich. An alliance, therefore, was indicated and natural. But the extinction of privilege, which for monarchy and democracy alike meant fiscal equality, meant for the democracy a great deal more. Besides the money which they were required to pay in behalf of the upper class and for their benefit and solace, money had to be paid to them. Apart from rent for house or land, there were payments due to them proceeding from the time, the obscure and distant time, when power went with land, and the focal landholder was the local government, the ruler and protector of the people, and was paid accordingly. And there was another category of claims, proceeding indirectly from the same historic source, consisting of commutation