The Changing Conception of the Executive in Constitutions

The Changing Conception of the Executive in Constitutions

If we speak about constitutions of famous French revolution, we can see four of them, gradually from 1791, over 1793 and 1795 until the last one of 1799. We are going to focus on changing role of the executive power, but it was not the only important aspect, which was changing throughout the years and various constitutions.

However, the executive power is more than significant, especially because of the fact that the Constitution of 1791 gave a first cadre to nearly unlimited and absolute power of the king and monarch, in order to allow Napoleon Bonaparte to acquire a similar position 8 years later with the Constitution of 1799. Therefore is interesting to follow the way of change during the years, starting with limiting Executive which led into limiting Legislative and as in a circle flew into unlimited Executive.

First Constitution - 1791 - Enthusiasm

Hope, enthusiasm and faith in better future were connected with the creation and endorsement of that fundamental law. Long debates went together with the preparations and some of the most important referred to Executive power. After the fall of absolute monarchy it was necessary to discuss the future form of government. On one hand, king Louis XVI. disposed still of huge authority among people and also deputies. On the other, deputies knew that for the success of a new regime is important to think ahead. So great debates took place over the themes like the king´s veto or condition of king´s abdication and succession.

As a whole the Executive was restricted by the Constitution. One important part of it was the separation of powers and certain prerogatives of the Legislative body. In comparison with the pre-constitutional situation the king was supposed to obey many restrictions.
The Sovereignty belonged to the nation, did not reside in the king. The king was “only” one of representatives of the Nation.
According to the Constitution, whole Executive power was delegated to the King, to be exercised by him, his ministers and other responsible agents in the defined manner.

The king concentrated in his role the power of president and government at the same time. Except the sanctioning laws, he was a head of Executive. All the ministers of government were subjected to the king and his choice. In contrast to the king, ministers were responsible for their decisions. Every order of the king had to be countersigned by the minister of the department. At the same time, minister was responsible for all offences committed by him against national security and the Constitution.

As a head of the general administration of the kingdom, the question of maintaining of public order was in the hands of the King, as well as providing the external security of the kingdom. In connection with the security, the command of armies and fleets was also entrusted to him.
The executive power had a duty to promulgate law which was sanctioned and sealed with the seal of the State. Simultaneously, the executive power could not make laws, even provisional laws, only allowed thing was to make proclamations in conformity with the laws. Whole internal administration was then subordinated to the supervision and authority of the king. He could annual acts of departmental administration in case of inconsonance with law or his orders, he could also suspend clerks from their offices. However, this suspension should be confirmed by the legislative body. The king was allowed to maintain political relations abroad, but in all types of treaties the final consent rested on Legislative body.

Second Constitution – 1793 - Wave of liberty

If the Constitution from 1791 meant for the king weakening of his position and power in comparison with the status before 1789, the Constitution of 1793 represented enormous breakage. Fall of the monarchy and rise of republic. For the first time this constitution provided for France democratic republican form of government. The essential problem of that Constitution was in the fact that it was never put into effect.
For that reason is studying such a document only theoretical, not verified by experience. But it is more than evident that this constitution was very democratic and radical, which had been one of the reason, why it was postponed for ever.

The Executive power should reside in the hands of twenty-four members of Executive Council. Candidate for the council should be chosen by electoral assembly of each and every department. The Legislative Body then would choose the members from the list of candidates.
One-half of the council should be renewed at every legislature, during the last months of its session. The Executive Council would be the head of administration as the king in the first constitution but with such a difference that it was the only area of influence and authority of the executive. The council also should negotiate the treaties of all kind. However, in this constitution there is a distinct shift in favour of Legislative body and his power.

Third attempt – 1795 – Carefulness and Self-Preservation

The third constitution of the French state is often called Constitution of the 3rd year, following the revolutionary calendar. The Executive is embodied in the Directory, composed of 5 members. The candidates for these posts are proposed by the Council of 500 (the lower chamber of the Legislative body) and chosen by the Council of Elders (the upper chamber of the Legislative body). The members have to be chosen from the deputies of Legislative body and have to be older than 40 years. Every year is one of the members renewed by the Legislative body. The directory disposed army forces, not individually, but altogether. The directory also appointed and suspended ministers and also other members of administration. The members of the Directory were relatively independent on the Legislative body. The directors had no voice in legislation or taxation. The regime was stricter - even it guaranteed freedom of religion, of the press or of labour, armed assemblies or public meetings of political societies were banned.

The constitution was written a little bit according to the wishes and hopes of the Convention, which was afraid of instability and maybe also personal security. This is also the reason for higher age of directors and mainly the Decree of Two-Thirds which guaranteed that two-thirds of new deputies of the Legislative body will be from the Convention. As the constitution was a result of certain anxieties, also the functioning of the document in practise was subjected to it. Because the deputies of the former Convention were aware of the fact that the majority of Frenchmen wanted to be rid of them, they had to use only extraordinary means to achieve their aims. The Directory became very strong, especially because it was supported by the army. But the atmosphere started to complicate and the danger of coup was rising. Officially, meant according to the Constitution, legislature was too strong and executive too weak. In practise, it did not work like that and Directory controlled and dominated the Councils, but only by electoral manipulations and purges. In fact, the constitution of the Year III was never given the chance to work properly. First elections were meaningless thanks to the Two-Third law, and all subsequent ones were sooner or later discounted.

Way back in time, the circle is closed

The situation of uncertainty, discontent and disquiet led into the final coup of 18 Brumaire (9 November 1799) and the Constitution of the Year VIII, which in fact means the Bonaparte´s way to absolute power. The Constitution was only a result and confirmation of all the events happening from the November to December.According to the constitution and its use, the legislative power is very limited. Only government can propose new projects, which then would make a base for new law. The constitution was written in a really vague way and in comparison with previous ones it was quite short and made very quickly (in one month).

It meant a return to strong executive, which was much stronger than the rest of the powers. Legislative power was composed of Tribunate and Legislative body. Tribunate could discuss the proposals, but not voted really, only expressed consent or rejection. The Legislative body could not discuss the proposals, only vote through secret ballot. The session of Legislative body endured only for 4 months. In the rest of the time, it could be convoked only by the government.

The Executive power was confined to 3 consuls, from who only the first one was in fact important. The first Consul (Napoleon Bonaparte appointed by the Constitution) promulgated the law, appointed ministers, ambassadors, etc. Some parts of the constitution ensured to first consul nearly unlimited power, especially in connection with Napoleon’s position in the army. We can quote article 6th of Title IV : “The government proposes the laws and makes the regulations necessary to secure their execution.” But what does it mean? What exactly are necessary regulations? It could be everything. And that was the charm and danger of the constitution, which reinforced a lot the position of the Executive. A similar example was one concerning possible conspiracy against the state. It allowed to government to do anything to prevent it. Even foreign political relations, conducting of negotiations and signing all treaties were in competence of the government.

In a way, these constitutions were similar to each other, maybe except the last one. The important difference resided in practise, in real using of the constitution. The words written on the paper can sound good, but their fulfilling is more important. Therefore the Directory was stronger than it should be. Therefore the constitution of 1793 never came into effect. But still every constitution belongs to important documents of every state. We followed the development of executive and finding the ideal balance of powers. It is interesting that such a way finished in a circle, what is concerning the Executive – from limiting it to unlimited.