Legitimacy is “that which gives power its justification and validity”. (Simone Goyard-Fabre, ” Légitimité “, Dictionnaire de culture juridique, P.U.F., 2003, p. 929.) First appearing in the XVI century, this notion is, by definition, heterogenous and – above all – always in evolution. To put it another way, the foundations of a power – or rather the capacity to impose upon someone else a way of behaving, either by action or by abstention – change as the recognised political ideas of each period change. This is why one can crudely say that the factors legitimising power are dependant upon the force of the ideas in vogue at any given moment. Prehistoric man made his club and his physical strength the foundations of his power over others. Later the gods gave the sovereigns of antiquity the right to impose their power on others, etc. The French monarchy itself developed and completed the concept of divine right from customary practices, practices which were grouped in a well-established corpus and recognised as the kingdom’s fundamental laws. (See Jean Barbey, Stéphane Rials and Frédéric Bluche, Lois fondamentales du royaume et succession de France, D.U.C., 1984.) When Revolution came, the demands of legitimacy changed under pressure from the idea of “popular” sovereignty, which itself disappeared behind the mysterious and still today ill-defined concept, of the “Nation”, the “Holy Spirit” of democracy, whereby votes counted were replaced by the idea of representation, which itself merged into what was called “general will” (“volonté générale”), in other words, something “higher” and more immaterial than the multiplicity of votes. And it is as a result of this theory of national representation that the ‘vote censitaire’, the exclusion of women from the right to vote and, today, election by indirect suffrage (like that of the senators of the 5th Republic who are no less than representatives of the nation) can be justified.
Political and juridical theory are not the only channels for the legitimisation of a power. But they do act as a sort of atmosphere which acts as a brake and which forces a power to justify itself, whatever the historical period. What is left is called “circumstances” or “necessities”, “opportunities to be seized” or “virtue”, as Machiavelli called it, a term which brings in the human factor, personal ambition or the desire to act (what could be called a “project”). With Napoleon more than with any other, actions are sovereign. “I am entirely at the whim of the dictatorship of the event” he used to say. But this did not stop him from seeking in law and principles the justification for his presence in government and, for his descendants, the continuation of his dynasty. He did not get away with not having to justify his rule. (On Napoleon’s legitimacies: Charles Durand, ” Le pouvoir napoléonien et ses légitimités “, Annales de la faculté de droit et de science politique d’Aix-Marseille, n° 58, 1972, p. 7-33; Frédéric Bluche, Le Bonapartisme. Aux origines de la droite autoritaire (1800-1850), N.E.L., 1980, p. 26-33; Thierry Lentz, Nouvelle histoire du Premier Empire. I. Napoléon et la conquête de l’Europe, Fayard, 2002, p. 98-101.) And since this man of the 18th century was at the crossroads of two epochs, he called upon all the forms of legitimacy available. Nor should this be seen as a sign of hesitation or weaknesss: this was how he had to act in order to be able to continue to claim that he was the “rassembleur” (gatherer), the man of the national fusion desired at Brumaire. In 1804, he therefore founded his power on several theories at once, all of which came to the fore at different times, depending upon the stage of the creation and development of the French Empire.
This form of legitimacy consisted in saying: I am in power because I am the most suitable candidate, the one who best deserves to be there. Bonaparte never stopped saying this all throughout the Consulate, even stating that no one else, “not even Louis XIV”, could govern France in current circumstances. It is clear that such a legitimacy, because of its contingency, is in essence rather fragile. Opponents of the Prince can claim that they are “the best”, or the most appropriate, especially when circumstances change and the general situation, considered chaotic at the beginning, gets better… which was certainly the case for the First Consul.
This was how other ambitious generals saw one of their colleagues running the country. “Why him and not us?”, they said. Furthermore, what is true at one point is not necessarily true at another. Many of the actors in French politics at the time willingly accepted Brumaire because they saw no other solution than to ask the victor of Italy to come and help extricate them from the institutional cul-de-sac of the Directory, but later they found him an encumbrance and that his time had passed. Since everything was going better (national reconciliation, religious peace, peace abroad), there was no longer any need for the dictator of public safety which the First Consul had been at the start. It is often forgotten that Bonaparte had to fight hard to preserve his power. He had to fight the generals (whom he isolated one by one in embassies or commands in foreign parts), the ideologues (whom he confined to the Tribunat), the chambres (whose guns he spiked with the reforms of 1802), and the royalists too, who thought that the stabilisation of the country would open the door to a return of an appeasing monarchy. Bonaparte restrengthened his natural legitimacy with the Life Consulship. (See for example my book Le Grand Consulat, Fayard, 1999.) The return of war made it also possible for him to re-gild the statue of himself as the man sent by providence. But what had been true before the breakdown of the Peace of Amiens could also become true again, as Moreau’s involvement in the Cadoudal-Pichegru conspiracy shows. What would happen in the case of military defeat?
In short, natural legitimacy was necessary but insufficient in the “reach for Empire”.
With the Revolution, France had entered into a period of written constitutions. You could almost say the Revolutionaires liked them so much they wrote four (1791, 1793, 1795, 1799)! (See Jacques Godechot, Les institutions de la France sous la Révolution et l’Empire, P.U.F., 1st edition, 1951. The Constitution of 1793 was never applied because it was replaced by the Revolutionary government.) That being said, Bonaparte benefited from this juridical instrument which completely changed the process of the devolution of power and gave him a very powerful legitimacy. Once written into the constitution, his presence at the head of the state was less contestable. Indeed, is was written in stone.
And so, during the proclamation of the Empire, Napoleon proceeded according to the constitution and scrupulously respecting the written texts. Formally, the initiative belonged entirely to the chambres, although the manoeuvres, the discussions in the corridors (during which Fouché re-emerged), the threats (particularly that of having recourse to the army, as the correspondence between Napoleon and Soult shows) and the pretences which continued – and even developed – in the background, were known to many. In the end, the French Empire was proclaimed fully respecting all the fundamental texts that were then in vigour (namely the Constitution of An VIII modified in An X), through a motion at the Tribunat (that by Curée) and, above all, by a Sénatus-consulte which was discussed, voted and promulgated in the forms specified by law. In this sense, and without in the least being sophistic, the transformation of the Consular Republic to the Imperial regime took place in the most regular fashion possible.
Everyone knows that the first article of the Sénatus-consulte founding the Empire stipulated: “The government of the Republic is handed over to an Emperor”. In creating a new title for the head of state, the Sénat however did not put an end to the République proclaimed in September 1792. The debates over this point which took place both in the Tribunat and in the Sénat (The text of the speeches given at the Tribunat and at the Sénat have been published by the Fondation Napoléon: La proclamation de l’Empire, coll. Bibliothèque Napoléon, Nouveau Monde Editions, 2002.) clearly show that the green light shown to constitutional modifications was in a certain sense conditional: the Empire was to respect the principles gained by the Revolution (models 1789 and 1795), namely, liberty, equality, the legislative origin of of taxes and of course (once a bourgeois always a bourgeois) the respect of the sale of the “biens nationaux”. Napoleon accepted these princples, and they were formulated in the constitutional oath which Napoleon swore on 2 December at Notre-Dame, during his annointing and coronation which, originally, was simply to be a civil ceremony designed to give greater solemnity to the swearing of the oath. (It should be noted in passing that this is remarkable, since the Emperor had not respected this oath when the Sénat voted his deposition, in April 1814.)
Popular and representative legitimacy
Napoleon always considered himself the “representative” of the “Nation”. He derived this claim from the plebiscites which, on every step in his path to the throne, validated the decision of the constitutional bodies. This was the case after Brumaire, when the Corps électoral accepted the new organisation of the public powers, despite a relative failure in this case where only about 20 % of voters turned out to vote. Learning from this and wishing to strengthen his legitimacy by electoral means, Napoleon took great care in organising the following plebiscites. That of An X was a clear success, with more than 40 % voting. That which followed the Sénatus-consulte establishing the Empire had similar results. Furthermore – even though, as Frédéric Bluche noted, plebiscites as such were put away and seen as accessories until 1815 -he denied anyone else the right to claim to be the representative of the nation, as is shown by his angry reproach to Josephine in 1808 who (in an article in the Moniteur) addressed the legislators as a delegation of “representatives of the nation”. (Jean Tulard, Napoléon Bonaparte. Œuvres littéraires et écrits militaires, Les Introuvables, 2001, t. III, p. 81.)
Roots in the past or historical legitimacy
Since it based itself of the forms of legitimacy derived from the Revolution, the Empire could not be stripped of its historical roots, above all in a society in which history was the fundamental pillar of all thought. Here, Napoleon took much from Roman style. Prefects, cohorts, consuls, codes, etc., all show the same appeal to antiquity. The First Consul and emperor would not have been men of their time if they had not thought like this. Lucien Bonaparte, in 1801, wrote a parallel between his brother and Caesar. But this Caesar would go much further than his ancient predecessor: he would really become a king because he would escape from the assassination planned by Cadoudal and his accomplices.
However, even though it was essential and indeed visible in the nomenclature of the institutions and even customs, the Roman reference was not enough. The specificity of the Emperor and the Empire was also sought in the continuation of the work of Charlemagne. And it was to the Emperor of the West that Napoleon turned when he chose his imperial solution. The evidence is not lacking, from the statue of Charlemagne which was to crown the “à la Trajan’s” column in the Place Vendôme to the solemn voyage of the new emperor to Aix-la-Chapelle (Aachen), in September 1804. Furthermore, it was the “honours of Charlemagne” which were borne by the honorary marshals in Notre-Dame, and Ingres took his inspiration from Charlemagne for his celebrated painting of Napoleon on his throne. As in 800, it was a pope who would anoint (but not crown) the emperor. Indeed, as Napoleon was soon to remark to his uncle Cardinal Fesch: “Say that I am Charlemagne “. A suitable reference this, given that not much was known about the son of Pépin le Bref at the beginning of the 19th century. So the renowned exemplar could be exploited broadly and in almost complete liberty.
Eleven years earlier, with the decapitation of the king, the ‘national razor’ had deconsacrated the monarchy. Napoleon could not pretend to succeed to Louis XVI since the Revolutionaries had called that monarch the “last” king. So Napoleon chose the dignity of emperor which, at that time, frightened no-one in a society riven to the core with (and admiring of) Roman antiquity. The term “empire” did not have the pejorative implication as regards the nature of the power which it carries today. It was both an institutional (although there was no emperor at the head of the Ottoman empire) and territorial reference (domination of a certain territory). (This definition has lasted to today. Is it not true that in the 1950s we spoke of the “French colonial empire” whilst of course neither René Coty nor Vincent Auriol were emperors.) During the Fête de la Fédération, there were even some respectable Revolutionaries who proposed calling Louis XVI “empereur des Français” (furthermore the song, ‘Veillons au salut de l’Empire’ (‘Let us guard the safety of the Empire’) dates from that period). Finally, there was hardly any objection to the title emperor, which was in itself almost simply the logical conclusion of calling the state an empire. All that remained was to define the nature of this monarchy. It was first and foremost Republican, almost Roman: the Sénat (Sénatus-consulte) and the people (plebiscite) – SPQ or senatus populusque was how the ancients put it – played a premier role. However, the content of the text of An XII repeated many rules from the old Capetian monarchy (notably those referring to the imperial succession and the return of the Salic law which excluded women and their descendants perpetually from the succession). The Sacre (anointing and coronation) – even though it only resembled very vaguely that of Rheims (See Peter Hicks, “Un sacre sans pareil “, in Le Sacre de Napoléon, Nouveau Monde Editions, 2003, p. 101-137.) – was a sort of return to the sacralised image, emphasised by the exhibition at the salon of Gros’ painting, the Pestiférés de Jaffa, itself the evocation of the miracle working, future emperor. What is more, in the official style, Napoleon was emperor “by the grace of God and the constitutions of the Republic”, a sentence which was in itself a programme of national reconciliation, indeed a synthesis of the periods.
In 1804, Napoleon wished to recuperate to his advantage this ancient legitimacy and alloy it with the new.
People may think that the free ideas sketched out here are simply intellectual and anachronistic. Nothing of the sort. Napoleon and his collaborators thought long and hard about all these aspects. In that year of 1804, each stage of the transformation from the Life Consulate to the Empire was measured and re-measured with respect to these questions. But even more importantly than that the Empire should occur immediately, was that it should be accepted, and that it should provide deep roots for the success of the fourth dynasty.