Campbell P. Power and Politics in Old Regime France, 1720-1745

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remonstrances became a great deal easier when in 1750 it was established that the

remonstrances should be brought either to a plenary session or to an assembly of

commissioners for approval.

From this time on the door was open to their

modification by a well-organised opposition group.

Absences from the plenary sessions may have been frequent and regular,

because at no time during the period in question do any voting figures tally with

more than about four-fifths of the total of 257 magistrates owning offices. In 1725

during the trial of Le Blanc so many normally absent judges turned out that extra

benches were needed to accommodate them. But even then they numbered only

192, and at the end of the trial 166.

However, the system of recording votes also

reflected the extensive consanguinity of counsellors, for fathers, sons, brothers

and close relatives counted together as only one vote if they opined in the same

sense. These two factors explain why the voting figures usually record only about

160 votes.

While we still know very little about the daily workings of the courts, there is

some evidence that most normal cases were dealt with by seven or eight zealous

magistrates in each chamber, while many of the junior magistrates in the enquêtes led

frivolous and dissipated lives not entirely seemly for men of their profession. A list

drawn up by a magistrate in a local court named only eight or ten judges in each

chamber as being worth approaching on judicial business.

According to Bluche, in

the fifth chamber of enquêtes, of seventy counsellors from 1715 to 1748, more than

half took five or fewer cases a year, sixteen took between six and nine, while seven

had from ten to nineteen, while only twelve accepted between twenty and eighty

cases. The younger judges tended to be less assiduous than older ones, and only

four judges took on a really large number of cases.

In 1756 the parlement was

reduced in size, by the suppression of two chambers of enquêtes and one of the

requêtes, a move that reflected the decline in the volume of business and perhaps the

over-creation of venal offices during the seventeenth century.

There were many other venal officers working in the palais de justice. The procureur

général had fifteen substitutes at his service. The first clerk of the court was a very

highly ranked magistrate (and from 1717 until 1771 was a Gilbert de Voisins),

responsible for keeping the records of the sessions. Several clerks helped him, and

there were more clerks and secretaries for each chamber, a further forty-one ushers,

and about 400 other minor legal officers working for the clients of the various

courts.

These officers formed what was known as the basoche—an often turbulent

element owing to the presence of a large number of young men in careers with little

hope of advancement. In addition to these were the barristers, whose active number

was perhaps a hundred, though many more were qualified, and all the solicitors. It

is easy to understand that a strike by the barristers or judges was a momentous

event whose repercussions went far beyond the mere cessation of judicial business.

It threatened the very livelihood of the host of clerks and traders, who might

actually riot in support of the courts as in Paris and Brittany in 1788. If a strike went

on too long they might turn against them.

The parlement was referred to as a ‘company’, which meant that it was a

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corporate body conferring high status on its members. All the magistrates were

noblemen, because the office of counsellor carried personal nobility and ennobled

the family after twenty years’ service or death in office. In fact, over 80 per cent of

the families of magistrates from 1715 to 1771 were already noble, and many of

these were from distinguished robe families. Fathers of counsellors were

themselves mostly of robe origins rather than from finance or trade, and most

mothers also came from noble robe families. Intermarriage between the

counsellors’ families was normal practice, such that many magistrates were

related to each other—the Gilbert de Voisins to no fewer than seventy-one other

families—and the same families continued to provide magistrates over several

generations. Extreme cases of this tendency would be the Le Peletiers, with eight

counsellors and presidents; the Lamoignon with ten representatives; the Talon;

the Joly de Fleury who were gens du roi throughout the century;

the Molé.

Many others had several generations of magistrates in the parlement.

Although

the parlement was recruited from the robe nobility, it had many connections with

the military and courtly aristocracy (for example, about a quarter of counsellors’

brothers became officers in the army). The higher magistrates were often related

to ministerial families, and to the higher nobility, through sisters or daughters

(about one in eight married into the noblesse de cour). Many lawyers were

represented on the family councils of the higher aristocracy, or otherwise

attended to their legal affairs.

In an age of patronage, clientage and political

friendship sealed by marriage connections, this was significant; it provided covert

channels between the judges and the court through which faction might operate,

careers be developed and fortunes be maintained.

The higher noblesse de robe, composed of such men as magistrates in the sovereign

courts, was distinct from but almost as well considered as the noblesse d’épée, and

ranked only a little below the noblesse de cour. It was much wealthier, better educated

and of higher social rank than most of the provincial nobility. Magistrates were no

longer looked upon as bourgeois by any but the most absurdly haughty and

obstreperous members of the court aristocracy. They were mostly educated at the

college Louis-le-Grand, or the Oratorian colleges of Beauvais or Juilly, where they

rubbed shoulders with the sons of the court nobility, acquired similar tastes and

habits and often made lasting friendships.

Forms of judicial eloquence existed, as they did for the pulpit, with, from the

later seventeenth century, their own tendency towards austerity. Fumaroli has

shown how fundamental rhetorical style and training was to ancien régime society.

Rhetoric was the basis of education and was carefully inculcated by the Jesuit

schools; it was the art of persuasion and marked the educated off from the other

orders of society. Classical Roman models were imitated, especially Cicero, and

particular attention was paid to these key elements: inventio, the tools of

persuasion; dispositio, which was the ordering of the material; elocutio, which

focused on figures of speech and expression; actio, which was the delivery itself,

using gestures. For all this the cultivation of memory was indispensable.

The

aim of rhetorical combat was to convince, sometimes through an appeal to

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sentiment, but certainly with figures of speech such as exclamation, interrogation,

and exhortation. (The parlementary remonstrances are, of course, deeply marked

by these structures.)

To this education prospective magistrates added legal

training in Roman, customary and royal law, although many escaped lightly on

this count. It must be said that the university degrees were not very arduous and

the examination for admission to the parlement was easy in the extreme: in the

eighteenth century, ignorance was common and standards often low. Much of

their education came from practice, observation and from discussions with their

elders.

If the magistrates were noble and privileged, they were also wealthy. Income

from their office was not large, consisting of the gages which equated to a low return

in terms of interest on their initial investment in the office, and the épices which were

‘gifts’ of money distributed pro rata for involvement in cases. It could not total

much more than one thousand livres a year, except for clerical counsellors who

were allowed to keep the revenue from their benefices. However, a ‘poor’ magistrate

nevertheless had an annual revenue of about 8,000 livres, which was substantial at

the time, but the majority received up to 15,000 livres, while a significant number

had over 25,000 livres. To benefit from such revenues, the poorer magistrates

therefore generally possessed a fortune of over 150,000 livres, while many had over

500,000 livres, and several were multimillionaires. This inherited wealth was often

in the form of landed estates, which tended to be in the He de France and the

Beauce—grain-producing areas—managed by stewards and by themselves during

their autumn residence at the château. Magistrates were seigneurs and rentiers,

living from income from land and from investments in rentes, and several of the most

senior magistrates were in receipt of pensions from the royal treasury. Their wealth

was displayed in ways befitting a noble lifestyle. They owned sumptuously

furnished aristocratic hôtels on the He de la cite and in the Marais, journeyed in

carriages with liveried servants (in suitably modest number and attire),

commissioned portraits of themselves and their wives from the leading artists,

bought furniture from the most renowned artisans, and often had large libraries.

They dined with aristocratic friends, gambled, visited the theatre and took part in

salon life in Paris. Counsellor Davy de la Fautrière was in the Club de l’Entresol,

President Hénault was a stalwart of the Queen’s circle and, along with President

Portail, was in the Académie Française. The material evidence suggests that

parlementaires were a distinct but important section of the nobility, ranking with the

lesser levels of court nobility, from whom they differed, however, by virtue of their

professional training.

Against the backdrop of this noble lifestyle, the self-image of the counsellors is

therefore all the more interesting to observe. They had a very strong esprit de corps:

they were proud of their honourable rank, jealous of its privileges and keen to

command respect for their dignity. It is common for them to be described as

senators imbued with love of the patrie, and for the parlement to be transmuted into

the Roman Senate, with its Catos and its Ciceros to uphold public and private

virtue.

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We know that there are some who still might catch the eye of Cinea, and fill

him with admiration for their dignity. In spite of the outward appearance of

decadence of which we complain, we have the consolation of seeing in this

senate magistrates worthy of being chosen by Cato to enter the ancient

Roman senate, senators who lament with us the woes of the magistracy—but

who, far from weeping in vain on the ruins of the sanctuary, are applying

themselves to restoring it.

How true this rhetoric actually was is, of course, open to considerable doubt, and

the first to cast a stone was usually a magistrate himself. Most such descriptions

come from the homilies delivered by the avocat général at the opening of the session

each year on 11 November, Saint Martin’s day. Their tenor is that the magistrate

should be content with his honourable rank in society, be frugal and austere, of

good morals, firm but without prejudices. Neo-stoic virtues, then, were the aim, and

love of the patrie the end. But alas! This was an age of decadence, of declining

standards. Ignorance, Daguesseau would usually go on to say, was rife; young

magistrates paid little attention during audiences, carried on frivolous conversations

with one another; discipline was slack and morals at risk. Nevertheless, the

company was an august one, its task grandiose:

Judges of this earth, how great is your ministry, but how difficult! How little it

is to you to be the arbiters of families, the peacemakers in private wars that

every passion starts. Placed between Church and State, and, so to speak,

between Heaven and Earth, you hold the balance between the priesthood

and the empire…Your task is to watch over and preserve these more

immutable limits, that the hand of God has traced between two powers each

of which bears the character of his own authority…The Church must find its

protectors in you.

The laws duly registered, tradition and precedent were guides to present conduct,

and these guides were to be found in the codes, the famous speeches and the

previous (and sometimes forgotten) rulings and pronouncements of the courts over

the preceding centuries. Several leading magistrates had enormous private

collections of documentation, often not easily available to the King’s ministers,

which could be researched for precedents and justifications. As will soon be seen,

there were indeed some extraordinarily erudite counsellors and distinguished

orators among the judges.

Although many judges had a sense of duty and dignity, their career prospects

clearly must also have influenced their conduct. For the majority, these were not

particularly hopeful. More than a two-fifths spent their whole career in the same

chamber with no advancement; only one in four attained a seat in the grand’chambre;

and about one-third were promoted outside the court to other posts of responsibility

such as First President of another prestigious court, master of requests, intendant,

councillor of state or even, in a very few cases, minister. No new robe family could

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hope for advancement, but the older robe dynasties sometimes did well. According to

the cardinal de Bernis, reflecting on the management of the courts, it was very much

in the government’s interest to open routes to advancement for the ambitious:

A counsellor in the parlement who has some merit, and who knows that he has,

has nothing to hope from fortune: his fate is fixed for ever. Neither fear nor

hope can act upon him; he is protected by the parlement who is his only judge,

which protects him in his disgrace and demands his return from exile. His office

subjects him to a hard, laborious and retiring life, for there is no distinction

attached to his work: he must of necessity seek to recompense himself with

reputation…and this reputation is never so bright as when he determines his

company to resist the court, on those occasions when the interests of religion or

the wellbeing of the people are at stake. Consequently, every magistrate of

talent must range himself with the parti of opposition, until it pleases the

government to open to these counsellors and presidents a door to which His

Majesty will keep the key. Thus the King… would be able to have those

eloquent orators speak in favour of his authority, who now seek to restrict it.

THE HISTORIOGRAPHY OF THE PARLEMENT

Up to the 1950s, analyses of the parlements generally fell into two camps. On the

one hand, the Parisian court was considered to be a major obstacle to the

government’s reforms: a selfish corps of noblesse de robe entrenched behind its class

privileges, determined to preserve its immunities and anxious to dominate the

monarchy. The magistrates would therefore have been developing a theory of

parlementary sovereignty to buttress their claims.

The defence of the people in

their remonstrances would have been mere populism (for the true interests of the

people were to be found in an alliance of monarchy and Third Estate). It follows

from this view that the abolition of the parlement in 1771 was a good thing and its

recall in 1774 a mistake.

This argument still has its supporters and has most

recendy been reiterated by M.Antoine in his life of Louis XV.

In English, the most

comprehensive statement along these lines came from Franklin Ford in 1953, who

saw the parlementaires as the political leaders of a century-long ‘aristocratic

reaction’ which precipitated the crisis of the 1780s.

Accepting the existence of such

a reaction, he set out to explain how the nobility of the robe and sword fused

together while the parlement took over the ideological leadership of the noble

reaction.

On the other hand, the parlement has been seen as the nearest approach

in eighteenth-century France to a body representative of the interests of both the

constitution and the people confronted by an oppressive monarchical state.

Such

arguments depended very much upon taking the statements to be found in the

court’s remonstrances, conveniently published by Flammermont, at face value.

Most historians have now come to hold views that recognise some of the

nuances. Egret, the doyen of modern historiography of the parlements, was more

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realistic and subtle in his appraisal, as he had made a close study of the parlement of

Grenoble before producing his interpretative work in 1970.

He emphasised that

even though the judges tended to defend their own corporate rights and privileges,

they also attempted to restrain the abuses of power by the administrative and

authoritarian monarchy and to defend the rights of the unrepresented nation and

provinces. What he does not tell us is how their position could be so all-embracing

and remain legitimate. It could be argued that Egret, by structuring his survey in

terms of the magistrates’ response to issues—religion, administration and

despotism—has accepted the magistrates’ own justifications too readily, thus

adopting the idea that the courts were ‘in opposition’ and motivated by issues of

political principle, the servants of ‘public opinion’. A differently structured narrative

might not confirm this so readily.

Important studies by Bluche and Shennan carried out in the 1950s and early

1960s combined to present the parlementaires in an even more favourable light.

Myths were undermined and the consistency of parlementaire social and legal

attitudes was revealed, together with their often high sense of duty. The parlement

came to be seen as a conservative corporate body whose concern with politics was

almost exclusively the product of its legalist view of itself as guardian of the law.

Shennan wrote that it ‘attempted, by defending established law and legal

procedures against the arbitrary, vacillating conduct of (the government), to prevent

absolute authority from degenerating once again into tyranny’.

Thus the

magistrates were not merely selfish spokesmen of an ambitious aristocratic elite,

they were morally respectable defenders of the ‘ancient constitution’. This view

bears a remarkable similarity to the magistrates own self-justifications.

The parlement was indeed first and foremost a court of law. It was not primarily

a political forum, although on occasion it had that role because in the absence of a

national representative institution the parlement could with some plausibility claim,

on the grounds that it was the supreme appeal court, to speak for the interests of the

nation—provided that its arguments were sufficiently populist. It was also a

corporate institution and therefore much more likely to express legal views and

defend its corporate jurisdiction and status than to engage in the expression of clear

political views. Neither characteristic necessarily prevented it from becoming a

forum for political agitation organised within its ranks by outsiders, as in the case of

religious or political faction. Nevertheless, historians have long been drawn to the

role of the parlement in the socio-political crisis of the monarchy. It has been seen as

a political institution in its own right, as an institution having its own views on

national policy.

But the parlement was not, in fact, political in the accepted sense of having, as an

institution, specific and homogeneous views on policy, in the way the council of

state did. Indeed, its magistrates came to be divided between themselves over the

radical tendencies that some wished to impose upon its corporate, statements. The

fact that for a long time these magistrates succeeded should not blind us to the fact

that the magistrates differed as individuals. Yet the parlement had always expressed

widely held views on its place and role in the state, and was accustomed to use these

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to justify its interference with royal edicts and council decisions. As so often under

the ancien régime, the distinctions were blurred, the boundaries ill-defined.

Consequently, the issue of what motivated the parlement’s interference in affairs of

religion and state is a very difficult one to fathom.

In an attempt to address this problem, a new dimension has recently been

added to the study of the Paris parlement in its relations with the crown. This has

been expressed in the work of Doyle, Rogister and Hamscher.

Studying brief

periods and crises in minute detail, rather than a broad sweep of history, their

emphasis has been much less on the theoretical pronouncements of the two sides

and more on the actual workings of the strategies and tactics employed in the

relations between crown and parlement. Having had access to the evidence of

daily practice, they have placed a good deal of emphasis on the process of bluff,

negotiation and compromise that led to the resolution of the crises; or, as in the

case of 1770, on the ministerial intrigue which led to the escalation of a crisis and

the probably reluctant step of remodelling the courts by a ministry which could

find no other solution fitting to defend its own authority and prestige. The article

by Doyle on ‘The parlements of France and the breakdown of the Old Regime’

provides a vibrant picture of politics and makes a convincing attack on the view

that the parlements in late eighteenth-century France conducted a running war

with the crown.

His analysis demonstrates that the often satisfactory relations

between the ministry and the courts were most affected by the strength and

stability of the government, and that a crisis might be provoked as a result of

factional rivalry among the ministers. He therefore endorses the observation

made by Talleyrand in his memoirs that ‘intrigue permeated the parlement.

M.Necker, M. de Calonne, and M.de Breteuil each had their creatures in it who

would defend or attack the measures of the minister they wanted to either support

or undo.’

According to this view, the parlement must be integrated into the wider

processes of politics and less emphasis should be placed upon its autonomous

institutional characteristics. That this was a contemporary assessment has been

shown by the reflections of a young parlementaire for 1737, to which Register has

drawn attention, the recollections of Ferrand and Sallier on the 1780s and the

unpublished memoirs of Robert de Saint-Vincent that have only recently come to

light.

More recently, Stone has focused on the parlement during that crucial period

from 1774 to 1789, and used details of judicial activities to add further life to the

broader sociological picture Bluche had painted. He argues for a parlement that was

basically traditional in its attempts to preserve both the corporate and privileged

structure of the monarchy and its own jurisdiction. But he also reveals its

ambivalence on many issues, as well as its internal differences, which the broader

sociological brush inevitably glosses over. These differences were the result of the

clash between age and youth, experience and rashness, corporate solidarity and

faction or intrigue. Although Stone’s approach eschews the history of the ‘long

term’ so much in evidence in Bluche’s study, he does by contrast show how far the

close examination of the detail of events can take us in understanding mentalités as

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well as generalities. Above all, his picture is a suitably complex one. In this he

endorses the conclusions of the most nuanced and comprehensive study of any

parlement, by Doyle on the parlement of Bordeaux.

This body of work on the eighteenth century has been augmented and put into

a wider perspective by a study of the parlement from 1653 to 1673.

In what is a

very significant contribution, Hamscher has revealed the interrelations between the

ministry and the parlement. Most importantly, he has uncovered much of the

process by which the crown negotiated with the parlement, and has shown that

Louis XIV, while preserving an illusion of complete domination over the courts,

actually treated them with careful, attentive respect—rather than riding over them

roughshod, as the older studies tended to suggest. Often it was more fruitful for the

crown to avoid conflict and to work with the parlement because, if the courts had

proved that they could at times be dangerous enemies, they could also be helpful

allies. Indeed, in the 1660s the ministry found them very useful in the development

of a Gallican policy designed to intimidate Rome and their jurisdictional concern

for appeals comme d’abus was nicely exploited against the Jansenists!

Far from being

natural enemies, the crown and the parlement were able to co-operate on many

issues (notably judicial reform) until the King’s rapprochement with Rome reached its

climax with the Unigenitus controversy in 1713. The important implication of

Hamscher’s book is that, if the parlement was not a problem from 1661 to 1713

when the issue of Unigenitus arose, it was not so much because the resistance of the

courts had been crushed in 1673 (and it had not been) as because the crown had

been diligent in not providing opportunities for a crisis. Careful management was a

crucial element in bringing about this situation. This in turn suggests that it may be

less profitable, when trying to explain the developing conflict, to search for a change

in the attitude of the magistrates after 1715 than it is to undertake a close analysis of

the role of the ministry in dealing with the parlement. This is an approach that has

yet to be put into practice for the eighteenth century. That premise lies behind the

present study.

There is no simple answer to the problem of the parlements, as we shall see, for

clearly some magistrates did develop different views, but it does emerge that the

jurisdictional concerns of the courts were of paramount importance. Jurisdiction,

not constitutionalism, was the force behind most of their opposition. In that sense,

the magistrates were for the most part not behaving ‘politically’, and the parlement

had no ‘politics’—in the modern constitutional sense at least. It is precisely the aim of

much new work to recover the ‘politics’ within the courts in a true ancien régime sense

of manœuvres for position, links with courtly factions and the defence of

jurisdiction. The new factor that does most to explain the sense of mounting crisis,

is the relationship between small, well-organised cliques of the magistrates

motivated by religion or faction and cleverly manipulating the concerns of the

majority of the judges to their own ends. Opposition of this kind to specific

ministerial policies certainly did exist, and it required careful management by the

ministry if crisis was to be avoided. Tensions were normal, but crises could grow out

of them and threaten place or policy. A full understanding of the parlement requires

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a close examination of both the magistrates, their careers, factions and procedures,

and the ministry, with its factions, problems and strategies.

Given the current debate on the breakdown of institutions at the end of the ancien

régime, the mechanism of the successive crises that led to its fall is well worth

investigating in itself. Studies of the long term have not given us a sufficiently

accurate basis from which to interpret events, and no one has addressed the

problem of the similarity of structure in the parlementary crises that recurred from

1730 to 1788. There are, therefore, distinct advantages in studying a conflictual

period of relations between institutions rather than a more general study over a

longer period, particularly if the study is of a relatively quiet and typical period.

Although it can be argued that the state of crisis was not typical of everyday

relations, it need hardly be pointed out that neither was the fall of the régime, which

grew out of the struggles of 1787–8. It was during periods of open conflict that both

the monarchy and the parlement made their most extreme theoretical claims and it

is therefore interesting to know in detail how it was that such a state of affairs could

be reached. Georges Duby pointed out that the focus on a particular event can

provide a point of entry for the historian into a wider kind of history that goes

beyond the merely political. ‘It is possible, by analysing the details of certain

explosive events, which expose a large number of hidden features, and which give

rise to a sudden increase in testimonies, to advance the history of structures and to

determine more exactly those forces which move it forward.’

From a documentary point of view there are certainly advantages because there

is a greater concentration of information to be obtained on a period of conflict than

is usually available for the times of quieter relations. In addition, this concentration

of evidence tends to be of a more instructive nature, since the parlementary

discussions and administrative memoranda often make explicit points of view

which were perhaps generally held but were rarely expressed. It thus becomes

possible to test the generalisations which have been made about both the parlement

and the ministry. All the confrontations of 1730–2, 1753–4, 1756, 1770–1 and 1787–

8 have recurrent features whose explanation requires an understanding of the

political structures (in the very widest sense of ‘political’) and their limitations.

237

THE CRISIS OF 1730–2

The genesis of the crisis

Account of the crisis; historiography and evidence; ministerial perceptions of Jansenism; the

constitutionnaires; royal policy towards the parlement; motives for opposition; role of the parti

janséniste; hierarchy, youth and corporate honour; errors of management and growing tensions;

lawyers; role of First President; the conflict escalates; summary of the causes of the 1732 crisis.

The period from March 1730 to December 1732 gave rise to particularly troubled

relations between the crown and the magistrates of the Paris parlement. The

drama of the situation rivals that of the crisis over the refusal of the sacraments

from 1752 to 1754 and the opposition to royal policy in 1787–8. The lengthy crisis

began with a lit de justice in which the papal Bull Unigenitus was registered as a law

of state. As the courts began to wage a running battle against the status of the

Bull, numerous royal decrees in council quashed parlementary rulings or evoked

cases before the council. In 1731 alone there were no fewer than three sets of

remonstrances, with a fourth set of iterative remonstrances; in September 1731

the courts defiantly voted an arrêt reminiscent of royal legislation, that stated their

view of the gallican maxims of state. It was, of course, immediately annulled by

the council of state, but not before its illegal publication. From November 1731

until January 1732 the parlement struggled to be allowed to debate the royal

decision, and in a dramatic gesture fifty magistrates journeyed to Marly to

petition the King in person—but were refused access. In May 1732, after the courts

had repeatedly defied royal commands not to deliberate upon a mandement issued

by the archbishop of Paris, two counsellors were arrested. This provoked a

judicial strike in which the magistrates were joined by the barristers. When, after

the end of the strike, the parlement still condemned the troublesome mandement,

four magistrates were sent into exile, which led all members of the seven

chambers of the enquêtes and requêtes to resign their offices. Their resignations had

hardly been withdrawn before the parlement issued another set of remonstrances.

The royal response was harsh. A disciplinary declaration was issued, and

registered in a lit de justice at Versailles on 3 September 1732. The parlement still

refused to recognise it, and 139 counsellors were exiled until 11 November.

Although the affair ended with a compromise in December, the conduct of

judicial business had virtually ceased for several months, royal authority had