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Vichy's Sham Constitutionality

Published online by Cambridge University Press:  02 September 2013

Maximilian Koessler
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Extract

Writers on the constitutional aspect of the Vichy régime in France have now shifted the focus of their attention. In the beginning they were concerned almost exclusively with the study of how far the Constitutional Law of July 10, 1940, did or did not square with the constitution of the Third Republic. Later publications broached the question as to whether, assuming the legitimacy of the Constitutional Law of July 10, 1940, Marshal Pétain's government, by its actions under the cover of that Enabling Act, had remained within the scope of the authority conferred by that measure. Pierre Tissier, the author of the most comprehensive published study of the Vichy régime, argues that for a correct construction of the Enabling Act the ratification “by the nation” of the new constitution must be considered as a condition precedent, in the technical meaning of that term, rather than as a condition subsequent. He further points out that since this refers to a temporary change of the constitution, as well as to a permanent one, the pretended and self-styled “constitutional acts” of Marshal Pétain, even though he himself ascribed to them only an interim character, were merely “so many coups de force.” According to the same author, a comparison between the powers delegated to the Marshal by the National Assembly of Vichy and the use he made of them leads to the conclusion that his government “betrayed its own solemn engagements.” Tissier charges the Marshal also with an “abuse of power.” Similarly, another French author of a pertinent monograph makes the emphatic statement that the constitutional acts of the Pétain régime, “despite their name, were really abuses of power,” since the mandate conferred by the National Assembly “was not—despite all that has been reported—a blank check,” and the conditions for putting into effect any constitutional act have so far not been met.

Type
Foreign Government and Politics
Information
American Political Science Review , Volume 39 , Issue 1 , February 1945 , pp. 86 - 97
Copyright
Copyright © American Political Science Association 1945

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References

1 Journal Officiel, July 11, 1940, original (French) text; English version in International Conciliation, No. 364 (Nov., 1940), p. 380.

2 See, for example, Loewenstein, Karl, “The Demise of the French Constitution of 1875,” in this Review, Vol. 34, p. 867 (1940)Google Scholar; Lindsay, James, “The Legality of Vichy,” Empire Review and Magazine, Vol. 14, p. 262 (1941)Google Scholar; Cassin, René, “Vichy or Free France,” Foreign Affairs, Vol. 20, p. 102 (1941).Google Scholar

3 Tissier, Pierre, The Government of Vichy (London, 1942), pp. 53, 55, 61, 62.Google Scholar

4 Marshal, Léon, Vichy: Two Years of Deception (New York, 1943), pp. 68, 69.Google Scholar

5 Reports concerning the plea and its rejection by the Court, New York Times, Feb. 20, 1942, and New York Herald-Tribune, Feb. 22, 1942.

6 Quoted by SirIlbert, Courtenay, Methods of Legislation (London, 1912), p. 51.Google Scholar

7 What is meant by a “Republic, under the authority and the signature of Marshal Pétain”? How is “the Republic” to mix with “the French State”? How is the bombastic phrase “all power” to be reconciled with the restrictive words, “with a view to”? The full text of the law containing the words within quotation marks is given infra.

8 Cf. Huber, Ernst Rudolf, Verfassung (Hamburg, 1937), pp. 97, 98Google Scholar, and an English translation of the pertinent passages in the U. S. Department of State's official publication National Socialism, by Murphy, Raymond E. and others (Washington, 1943), p. 36.Google Scholar According to Huber, the purpose of the Volksbefragung is to give the people an opportunity not to make their own decision, but rather to express their solidarity with the Fuehrer on a point that he has already definitely decided.

9 Schuman, Frederick L., Night Over Europe (New York, 1941), pp. 516–517.Google Scholar

10 According to the Dictionnaire de l'Académie Française, 8th ed. (1935), Vol. II, p. 435, “ratification” means (rendered into English) approbation, confirmation of what has been done or promised.

11 Duguit, Léon, “Des règlements faits en vertu d'une compétence donnée au législateur par la législation,” Revue du Droit Public et de la Science Politique, Vol. 41 (1924), pp. 313Google Scholaret seq. at p. 343. On the question as to whether and, if so, to what extent, such decrees are subject to judicial review, cf. Gaston Jèze, “Contrôle juris-dictionel des décrets-lois,” ibid., Vol. 55 (1938), pp. 829, 830.

12 Gouet, Yvon, La Question Constitutionelle des Prétendus Décrets-Lois (Paris, 1932), pp. 142, 147, 150, 153.Google Scholar

13 Cf. Kirchheimer, Otto, “Decree Powers and Constitutional Law in France Under the Third Republic,” in this Review, Vol. 34, pp. 1104Google Scholaret seq. at p. 1114 (1940).

14 Cf. Kirchheimer, ibid., at p. 1115, and Roger-Bonnard, , “Le droit public et la guerre,” Révue du droit public et de la science politique, Vol. 56 (1939), pp. 549Google Scholaret seq. at p. 565.

15 Journal Officiel, Dec. 10, 1939.

16 Duguit, Léon and Monnier, Henri, Les Constitutions (5th ed., Paris, 1932), pp. 58, 115, 129, 165, 179, 191, 277, 292, 293, 308, 309, 313.Google Scholar

17 Ibid., pp. 292, 293.

18 Ibid., pp. 58, 115, 129, 165, 179, 191.

19 At least in terms of the respective documents, whatever their actual effects may have been. This is, of course, not to ignore the realistic aspect of the almost proverbial “Bonapartist plebiscites,” as commented on by Burnham, James in The Machiavellians (New York, 1943), p. 164Google Scholar, and by some others.

20 Montigny, Jean, Toute la Vérité: Un Mois Dramatique de Notre Histoire (Clermond-Ferrand, 1940).Google Scholar

21 On the day before the meeting of the National Assembly, i.e., on July 9, 1940, Laval, in the Chamber of Deputies, referred to this session as a preliminary general meeting (réunion générale préliminaire), whereas in the Senate M. Boivin-Champeaux called it the semi-official session (réunion officieuse).

22 Journal Officiel, July 11, 1940.

23 The English version in the text is the writer's translation of the original French wording that appeared in La Dépêche (Toulouse), July 9, 1940.

24 French text in La Dépêche (Toulouse), July 10, 1940; English version in International Conciliation, No. 364 (Nov. 1940), p. 378.

25 According to Montigny, op. cit., p. 61.

26 The preamble, in connection with the authority to be conferred on the Marshal, uses the words “Président du Conseil” which were contained in Laval's original bill, but were eliminated from the revised text, as will be shown later in this discussion. Note also that the preamble neither expressly nor by implication mentions the requirement of a ratification of the new constitution by the nation, obviously because this requirement was not contained in the text of the bill to which the preamble refers.

27 Writer's translation. For the French text, cf. Montigny, op. cit., p. 71.

28 The most important point of difference may be summarized as follows: According to Laval's original bill, the new constitution was to be ratified by what may properly be called the government's dummies; the counter-bill required the “acceptance” of the constitution by the nation.

29 Allusion to the “Caesar of the Republic,” as Napoleon Bonaparte called himself.

30 This fact, recorded by Montigny, op. cit., p. 72, is of the highest importance since it rendered the declarations which Laval made subsequently binding upon Pétain's government as such rather than upon Laval personally. These declarations constitute official commitments to be read into the text of the Enabling Act, as will be expounded infra.

31 Cf. on this point Tissier, op. cit., p. 36; Bois, Elie J., Truth on the Tragedy of France (London, 1941), p. 367Google Scholar; Guérard, Albert, The France of Tomorrow (Cambridge Mass., 1942), p. 133Google Scholar; Kraus, René, Europe in Revolt (New York, 1942), pp. 368, 372Google Scholar; Guedalla, Philip, The Two Marshals: Bazaine, Pitain (London, 1943), p. 359Google Scholar; SirPollock, John, “The Legend of Marshal Pétain,” Quarterly Review, Vol. 280 (1943), pp. 1et seq.Google Scholar

Practically all members of the National Assembly, regardless of their political belief, were under the magic spell of Pétain's name. Even Jeanneney and Herriot, who, however, soon recognized their mistake, emphasized in their solemn allocutions as presidents of the Senate and the Chamber respectively, on July 9, 1940, the reverential allegiance due to the Marshal from the nation. Another psychological factor, which must not be ignored in any analysis of these events, was the total breakdown of the French fighting morale, that general atmosphere which can best be described by the French idiomatic term cafard. Even according to Madame Tabouis' testimony, practically everybody in France at that time believed in the final victory of the Axis. Cf. Geneviève Tabouis' remarks on page 250 of the collective publication, The Sixth Column (New York, 1942).

32 Questions and answers are recorded at length by Montigny, op. cit., pp. 81, 82.

33 Montigny, op. cit., p. 86.

34 Upon the subsequent outcome of the vote, this issue concerning the method of computation became an academic question, since the number of pros actually received (569) was sufficient on any of the suggested principles.

35 Journal Officiel, July 11, 1940.

36 International Conciliation, No. 364 (Nov., 1940), p. 380.

37 Officially recorded in the Journal Officiel, July 11, 1940.

38 Journal Officiel, July 11, 1940.

39 Montigny, op. cit., pp. 92, 93.

40 He was one of those who voted pro in the National Assembly.

41 Montigny, op. cit., p. 95.

42 Even the Gaullist writers have so far failed to notice this manipulation.

43 Civilis, , “French Democracy Underground,” Virginia Quarterly Review, Vol. 18, pp. 14et seq., at p. 16 (1942).Google Scholar

44 Including, e.g., Monsieur Camille Chautemps (now in this country) who, in a letter to the editor of the New York Times (Sept. 18, 1942), observed that his “compatriots … could never have conceived … the suppression of the Republic.”

45 Including Edouard Herriot, who, unlike Jeanneney, the chairman of the National Assembly, was not excluded from voting.

46 Included in the contra voters, among many others, were Paul Boncour, Léon Blum, Marius Moutet, the Marquis de Chaubrun. The latter, great-grandson of the Marquis de Lafayette, was the only one who had voted contra in the session of the Senate on the previous day (July 9, 1940). To be sure, the Senate was then concerned only with the question of whether there should be any revision of the constitution by the National Assembly. Concerning this attitude of the Marquis de Chaubrun, see Kernan, Thomas, France on Berlin Time (New York, 1941), pp. 211, 212.Google Scholar

47 This term is here applied in a general sense rather than in the narrow meaning of a vote to ascertain community sentiment in the matter of transfer of territory. It would seem that for the latter conception the term “plebiscite” is more appropriate. Cf. Wambaugh's, Sarah monograph, Plebiscites (New York, 1920)Google Scholar, and her article, “Plebiscite,” in Encyclopedia of the Social Sciences, Vol. XII, p. 163 (1935).

48 The point may be raised, however, as to whether “organic” laws, which in French constitutional language are somewhat different from “constitutional” laws proper, belong to those that the Marshal had the authority to change without the approval of the nation. On the technical meaning of the term “organic” law in France, cf. Ogg, Frederic A., European Governments and Politics (2nd ed., New York, 1939), pp. 431–432.Google Scholar Incidentally, whether the Declaration of Rights of Sept. 3, 1791, remained in force under the Third Republic and, if so, whether as part of the constitution, has never been settled. On this controversy, see Ogg, op. cit., p. 436, and Loewenstein, loc. cit., pp. 890–891.

49 E.g., in Art. 1 of the constitutional act of January 22, 1941, concerning the creation of a National Council. Journal Officiel, Jan. 24, 1941.

50 Tissier, op. cit., p. 62.

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