Early in December 1791, the future Minister of the Interior of the first French Republic, Dominique Joseph Garat, published a valedictory re- port on the period he had spent reporting on the debates in the National Assembly for the Journal de Paris between 1789 and 1791. In it, he offered an assessment of what the Assembly had achieved and what the new Leg- islative Assembly would still have to do. Its chances of success, he wrote, would depend on its ability to achieve a level of debate commensurate with the political theory that Sieyès had begun to develop. That theory, Garat claimed, had its origins in the work of the seventeenth-century English political philosopher Thomas Hobbes. It was also connected to the eighteenth-century conceptual innovations made by Charles Louis de Secondat, baron de Montesquieu, in his The Spirit of Laws of 1748 and by the Genevan Republican Jean Jacques Rousseau in his Social Contract of 1763. Despotism, Garat wrote, “had ranged among its defenders the only
79Dominique Joseph Garat, Dominique Joseph Garat, membre de l’assemblée constituante,
à M. Condorcet, membre de l’assemblée nationale, seconde législature (Paris, 1791), pp. 25–6.
80Garat, A M. Condorcet, p. 26.
81Thomas Hobbes, Leviathan [1651], ed. C. B. Macpherson (Harmondsworth, Pen-
guin Books, 1968), Part 1, ch. 16, p. 220.
82Charles Louis de Secondat, baron de Montesquieu, Pensées, ed. Louis Desgraves
(Paris, Robert Laffont, 1985), No. 224, p. 253.
one, among all the political writers, who best understood the true foun- dations of societies, the rights of man, and the principles of peace among nations, Thomas Hobbes.”79But none of its more recent defenders in the
French National Assembly had come at all close to the level of sophistica- tion that Hobbes had achieved. If, Garat wrote, there had been a combat in the National Assembly between “a man like Hobbes on one side and a man like the abbé Sieyès on the other” the entitlements of the human race “after having been found again and proclaimed anew” would not “have experienced the outrage to which they had been subjected even by those who had proclaimed them.”80The need now was for a common in-
tellectual enterprise, modeled on the great French Encyclopédie of the third quarter of the eighteenth century, to build on what Garat, borrow- ing the term that Sieyès had coined, described as “the primary givens of
science sociale.” The first of these was the idea of the separation of powers
contained in Montesquieu’s The Spirit of Laws. The second was the con- ception of sovereignty as the general will set out by Rousseau in his Social
Contract. These, according to Garat, had to be the starting point for any
further developments in social science.
The line of intellectual descent running from Hobbes to Montesquieu and Rousseau and then to Sieyès and his idea of science sociale that Garat laid out was not entirely direct. Both Montesquieu and Rousseau were openly critical of the idea of representation that was the cornerstone of Hobbes’ political theory. Hobbes had described the idea most famously in Chapter 16 of his Leviathan (1651). “A multitude of men,” he wrote, “are made One Person, when they are by one man, or one Person, Rep- resented; so that it be done with the consent of every one of that Multi- tude in particular. For it is the Unity of the Representer, not the Unity of the Represented, that maketh the Person One.”81Montesquieu was not
impressed by this theory of attributed action. “Hobbes’ principle” he noted, “is very false: namely, that the people having authorized the prince, the actions of the prince are the actions of the people, so that the people cannot complain about the prince nor demand that he give any account for his actions because the people cannot complain about the people.”82
83Quentin Skinner, “Hobbes on the proper signification of liberty” now in his Vi-
sions of Politics (Cambridge, U.K., Cambridge University Press, 2002), vol. 3, Hobbes and Civil Science, ch. 7.
representative sovereign altogether. The general will, he wrote in his Social
Contract, could be represented only by itself. Quite a lot, in other words,
had to be added to turn Hobbes’ idea of representation into Sieyès’ sys- tem of representative government.
Hobbes’ theory of representative sovereignty turned largely upon the
de facto power of overwhelming force and an argument about how sub-
mission to that kind of power was still compatible with human choice. Crudely summarized, that kind of power might impede your ability to act, but it did not impede your ability to will, and if this was the case, it could be authorized to act as a purely artificial person (a state), acting as the representative of the many different members of a civil association in a single collective act.83From this perspective, a state, not a natural per-
son, was the locus of legitimate sovereign power. But since states are not human, they need to be represented by real people in order to be able to act. These representatives might be one or many, but they would still be mortal and have to be replaced. The difficult part of Hobbes’ legacy was to find a way to build a rather more obvious amount of human choice into the idea of the state as a representative of its members without falling back upon the idea of electing a sovereign, thus reviving the problems of partiality, division, and conflict that Hobbes’ theory of sovereignty was designed to overcome.
A starting point could be found in an idea of representation that was closely related to Hobbes’ idea of states as artificial persons. According to this idea of representation, buildings and other physical things could also be represented, either by their owners or by those responsible for their upkeep (Hobbes used the examples of bridges and hospitals to illustrate the point). Sieyès’ conception of the representative system owed a great deal to this notion of representation and the use to which it was put, first by Montesquieu in The Spirit of Laws, and then by Rousseau in his dis- cussion of government as the executive representative of the general will in the third book of his Social Contract. It opened up a way of thinking about representation that could encompass both the kind of representa- tion involved in ordinary life and the sort of representation involved in political society but still did not reduce the one to the other. This idea of representation was not connected (at least in the first instance) to anything to do with political or legal representation but referred instead to a par- ticular way of thinking about the inheritance of property that in early modern Europe was held to be a feature of ancient Roman property law.
84Hugo Grotius, De jure belli ac pacis [1625], translated by Jean Barbeyrac as Le Droit
de la guerre et de la paix (Amsterdam, 1724), Bk. II, ch. vii, § 12–37.
85Grotius, trans. Barbeyrac, II, vii, 30, note 7.
86This characterization of the rules governing the royal succession can be found in
several pamphlets bound in British Library. FR 1, particularly [Anon.], Maximes de droit et
d’état pour servir de réfutation au mémoire qui paroit sous le nom de Monsieur le duc du Maine, au sujet de la contestation qui est entre lui & Monsieur le Duc, pour le rang de prince du sang (n. p.
1716), pp. 10–12 and [Anon.], Raisons courtes et fondamentales pour les princes du sang & pour la
nation contre les princes légitimez (n. p. n. d.), p. 3.
In this account of Roman law, property passed from one generation to the next by right of representation. An individual’s surviving lineal or col- lateral descendants could inherit the goods that he (and in some circum- stances, she) had owned because they were held to be the representatives of the individual who had died and were entitled, by right of representa- tion, to a share of the property that he (or in some circumstances, she) had owned. Although there was some discussion of how literal a repre- sentative someone had to be (whether, for example, a daughter could represent her father), it was always accepted that a representative was someone standing in for someone else and, as that representative, was held to possess the goods that he or she had owned under the same entitle- ments and conditions.
The most important institution to which this idea of representation was held to apply was the French monarchy. As the seventeenth-century Dutch natural jurist Hugo Grotius described it in his The Rights of War
and Peace (1625), the French crown was successoral, lineal, and agnatic
(meaning that it passed successively only from one generation to the next, never laterally to uncles or cousins, and only through the male line), mak- ing the royal succession, as he put it, “representative.”84The system was
often associated with what were called the Salic laws, a much-interpreted body of customary law that, it was said, was followed originally by the Frankish invaders of the Roman province of Gaul and according to some interpreters contained the original principles of the French monarchy. The rules of representative succession meant that the heir to the throne could not be chosen by the incumbent king nor could he be the incum- bent’s closest blood relative but had instead simply to occupy the appro- priate position in the line of succession, coming to the throne either as the first direct male descendant of the previous king or as the representa- tive of that heir in the line of lineal, agnatic descent, so that in legal terms he was held to be exactly the same person as the previous king.85 This
meant, as it was put in the early eighteenth century, that “in facts of suc- cession, it is not he who is nearest to the throne who succeeds, but he who represents it.”86The effect of this conception of the rules governing
the royal succession was to drastically reduce the possibility of conflict be- tween rival candidates to a vacant throne. The idea of representation by lineal, agnatic descent meant that even if an incumbent king was to die childless, it was always possible to identify a single legitimate heir by going back up the line of descent to reach a point in the linear and agnatic sequence that could then be traced back down to identify a single living individual. This had the practical effect of making the distinction be- tween elective and hereditary succession nugatory, because the rules of representation meant that in the event of a vacant throne there would al- ways be only one eligible candidate.
But this feature of the rules governing the royal succession created a political and analytical conundrum when Louis XIV died in 1715. At his death, the French throne passed to his five-year-old great-grandson, Louis XV. If (as seemed quite possible) Louis XV was to die without an heir, the throne would go to Philip V of Spain (1683–1746), the second son and only surviving representative of Louis de France (1661–1711), Louis XIV’s defunct oldest son and heir, reopening the prime cause of the War of the Spanish Succession. The possibility that this might occur af- fected French domestic politics and European international relations for nearly two decades until the birth of Louis XV’s own son (Louis XVI’s fa- ther) made the question of the royal succession a practical irrelevance in both domestic politics and European diplomacy. Until then, the question generated considerable interest. Applying the rules governing the succes- sion to the French throne amounted to opting for the possibility of a uni- fied Franco-Spanish crown and the near certainty of a major European war. Dropping them meant reopening all the problems about disputed claims to vacant thrones that the system of representative succession was designed to avoid.
The title of Montesquieu’s great work, The Spirit of Laws, was in a sense an indication of a solution to the dilemma. If the law itself could not offer an acceptable course of action, then its spirit had to be taken into consideration. The problem of the royal succession had to be soluble without either war or civil war, because it was fairly obvious that the rules of representative succession were designed to prevent them both. This meant that if the rules of representative succession threatened to produce a perverse result, there had to be an alternative to a potentially divisive electoral contest. It was not hard to see that there was a signifi- cant difference between the idea of representative succession as it applied to the French throne and the notion of representation that was held to have been a feature of ancient Roman property law. In Roman law, the goods that could be transferred from one generation to the next could be divided between several representatives. The French throne, however,
87Charles Louis de Secondat, baron de Montesquieu, Pensées, ed. Louis Desgraves,
No. 1906, p. 584.
88Charles Louis de Secondat, baron de Montesquieu, De l’esprit des lois [Geneva,
1748], Bk. 2 Ch. 4.
was indivisible, and the notion of representation that applied to inheriting the French crown was considerably narrower than anything in Roman law (most obviously because women could not inherit the throne). For Montesquieu the interesting question seems to have been the question of how the Roman idea of representative succession had become the basis of the French system of indivisible, hereditary monarchy. By identifying the reasons for this change, it might then be possible to identify the reasons for making a less than literal interpretation of the laws governing the suc- cession to the French throne.
Montesquieu’s answer was based upon three passages in the Roman historian Tacitus’ Germania, the classical source of information about the Germanic invaders of Roman Gaul. These passages described three fea- tures of the system of government of the Franks, the Germanic people whose king, Clovis, was usually held to be the first king of France. The first passage stated that “the power of their kings is neither unlimited nor arbitrary” (Nec regibus infinita aut libera potestas). The second stated that “minor affairs were submitted for discussion to the chiefs; major affairs were discussed by all” (De minoribus rebus principes consultant, de maioribus
omnes). The third passage—“kings were chosen in terms of their nobility,
generals in terms of their valour” (Reges ex nobilitate, duces ex virtute
sumunt)—was particularly significant. As Montesquieu interpreted it, it
meant that the civil and the military powers were exercised by two differ- ent representatives. This, he noted, was “the key to the beginnings of the French monarchy.”87The reason why it was “the key to the beginnings
of the French monarchy” was because when it was combined with the two other features of Germanic society that Tacitus had described, and was applied not to the original Frankish peoples who did not cultivate the land but to the conquering Frankish people who had all the land of Roman Gaul at their disposal, it became the basis of a type of monarchy that had no counterpart in the ancient world. By showing how the Roman idea of representative succession had come to be grafted on to the feudal system of fiefs, Montesquieu was able to describe the outcome as a kind of monarchy in which, as he put it, “intermediate, subordinate, and de- pendent powers constitute the nature of monarchical government, that is, of the government in which he alone governs by fundamental laws.” The “most natural” of these “intermediate, subordinate, and dependent pow- ers,” he added immediately, was a nobility.88Monarchy, as Montesquieu
defined it, was a dual system. In it, the sovereign (the king) could be dis- tinguished from the government (the subordinate, dependent, and inter- mediate powers), or to use his language, the prince could be distinguished from the state.
Montesquieu had, in short, made a distinction between a state and its government by showing how their respective powers might be separated without using the historically implausible idea of a social contract and without equating the separation of powers with either a mixed system of government or solely with the peculiar system of government that had grown up in post-Reformation England, the system that he described with such skill in two famous books of The Spirit of Laws. By making this distinction, he also showed how it might be possible to identify a connec- tion between representatives and represented that made it easier to see how a government representing a sovereign state could also actually rep- resent the interests of the members of that state rather than, as with Hobbes, simply make decisions in their name. The connection between representative and represented was formed by indivisible hereditary prop- erty. By showing how the old Roman idea of representative succession had, during the first three dynasties of Frankish rule, been transformed into a combination of hereditary monarchy and hereditary fiefs (a process culminating in the election of Hugues Capet to the throne when “the owner of the greatest fief ” became the reigning king), Montesquieu was able to claim that the modern French monarchy was based not, as might intuitively be thought, upon some original set of founding political laws, but instead upon a congeries of civil laws (notably the Roman law of suc- cession and the Frankish Salic laws), which, over the course of time, had acquired a political and institutional character. (Montesquieu was ex- tremely proud of this demonstration of the paradoxical way that a civil law could be seen to have been the cause of a form of government that did not yet exist, when logic suggests that the relationship between cause and effect ought to be the reverse.) One implication of this claim was that if the rules governing the royal succession seemed likely to produce a po- tentially perverse outcome (as with the case of Philip V’s right to inherit the French throne if Louis XV had died without an heir), it was then pos- sible to refer not to the law but to the spirit of the law and apply the orig- inal civil law principle affecting the inheritance of fiefs to the inheritance of the throne, so that once again the owner of the greatest fief (which, necessarily, would be situated within the kingdom) would be the only eligible candidate to fill a vacant succession.
A second and equally important implication of this claim was its bear- ing upon the relationship between a state and its members. Unlike the old Roman system of representative succession, the feudal version, as it
applied to the inheritance of the throne and the inheritance of fiefs, stipu- lated a single representative heir to either a throne or a fief. The language in which this notion of representation was couched was indisputably feu- dal, not Roman. It used the terminology of entails and substitutions to explain how it was possible for either a fief or a throne to pass from a sin-