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

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deeply involved in religious policy, even without the declaration of March 1730.

This was because from 1729, through the exploitation of the system of appeals

comme d’abus by the parti janséniste, the courts were compelled to make judgements

which rested ultimately upon their view of the status of Unigenitus in France. An

examination of the records and memoirs of the parlement has revealed that in

raising these issues the clique of Jansenist lawyers and magistrates in the courts

played the crucial role.

Friction was therefore inevitable from 1730, but the general legal and traditional

arguments do not explain why the crisis was so prolonged or so intense. Many

magistrates felt that it was the privilege of the government to make policy and they

were therefore sensible to the arguments which were made in the replies to the

remonstrances. It seems inadequate simply to assume from the legal

pronouncements, as so many historians have done, that the great majority of

parlementaires were intensely ‘Gallican’ in sentiment. Without the legal position of

the parlement there would have been no crisis, that much is evident, but a full

explanation requires that a host of other factors be taken into account. When these

are investigated they provide a deeper understanding of the nature and working of

the Paris parlement, but they cannot easily be discerned by studying the legal

statements of either party. The dominance of a group of Jansenists, able to couch

their particular aims in arguments which would appeal to the mass of magistrates, is

obviously important. Their dominance was increased by the hierarchical nature of

the parlement and by the ease with which they were able to exploit procedural

issues, and they were able to turn to their advantage the traditional hot-headedness

of the members of the enquêtes. The very length of the dispute led to the fraying of

tempers and this made the courts more belligerent than they might otherwise have

been, and the mistakes or forced errors on the part of the ministry, under pressure

from Rome and the constitutionnaires, only served to exacerbate the conflict. The

progressive decline in prestige of First President Portail, whose office was usually so

important for the exercise of royal influence, meant that the parlement was left to its

own devices. In such circumstances, in the heat of debate, momentous decisions

were taken leading to direct confrontation between the courts and the central

government. Once matters had reached a head, it was necessary for the ministry to

bring about a resolution of the tensions without compromising royal prestige or

policy. This would require a whole array of techniques of bluff, negotiation and

compromise, which will be explored in the following chapter. Such techniques were

the essence of successful government during the ancien régime.

259

THE CRISIS OF 1730–2

Resolving the crisis

Clients, spies and informants; confrontation, escalation and the process of resolution; bluff and

negotiations; return and recalcitrance; resistance and exile; a compromise solution; the crisis

reassessed; role of the Jansenists; Gallicanism; defence of jurisdiction the key; the importance of

political management.

The blunt confrontation between crown and parlement was at its most serious in

May, June and July 1732. It was clear that royal authority would have been

compromised had the ministry not taken vigorous action to ensure the

submission of the parlement. Yet, the crisis appeared more insoluble than it

actually was: the judicial strike and later the mass resignations were both tactical

manœuvres by the magistrates, designed to emphasise their discontent and make

the government look arbitrary. Strikes were both embarrassing and troublesome

for the government but, given the tactical element in the decision of the

counsellors to resign, it was never really a question of accepting the resignations.

In both May and June/July a solution had to be found which would break the

escalation in the chain of attack and counter-attack, and ensure a resumption of

the dispensation of justice. The way in which the problem was tackled by the

ministry merits a close examination for the light which can thus be thrown on the

methods of government at this time.

The crown employed a variety of techniques simultaneously; these included

intimidation by the police, bluff and threats of the most dire consequences for the

recalcitrant counsellors. However, its principal recourse was to exert discreet

pressure on the courts with the help of its agents and clients inside the chambers

who were able to influence the collective decisions at the opportune moment. It is

known that the royal organisation of a ministerial parti at this time was paralleled on

other occasions by ministers or factions anxious to influence the conduct of the law

courts. This seems especially true of the 1780s.

The effective use of this policy depended upon the receipt of accurate

information about the mood of the magistrates at all times. The regular bulletins

from the procureur general to the Chancellor and the minister for Paris were

important, but he was not able to be present at the debates. Joly de Fleury’s strength

lay in proffering advice on the legal options and the informal tactics for negotiations,

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but his position was by its nature ambiguous and his contacts mostly among the

senior magistrates.

The ministry needed to know how the ordinary counsellors

were thinking and to encourage pro-ministerial conduct. To this end, a network of

informers within the parlement was constructed which greatly supplemented both

the activities of Hérault, whose police spies gleaned information from around the

palais de justice, and the reports of Joly de Fleury. Because the debates were in

principle secret, information obtained direct from counsellors was much more

reliable, and, as will be seen, these magistrates had other equally important roles to

play in the debates.

To judge by the letters and memoirs of the marquis d’Argenson to Chauvelin,

the latter was the minister chiefly responsible for the organisation of the system,

although chancellor Daguesseau certainly made use of his personal influence

particularly with the gens du roi. Chauvelin had spent many years in the parlement

and although he was now a minister he had retained his office of president a mortier

even if he no longer fulfilled its function. His ‘defection’ to the ministry had made

him rather unpopular with the mass of magistrates; nevertheless, to some of them

he still appeared as the natural protector or patron; the presence in the palais of his

nephew, a faithful member of the Chauvelin group, facilitated influence and

contacts with counsellors. In his work the garde des sceaux was greatly aided by two

conseillers d’état, whose role is worth considering.

The marquis d’Argenson and Luc d’Esnans de Courchetet both made extensive

use of Chauvelin’s excellent legal library and the papers of d’Argenson’s father, a

former Keeper of the Seals who had dealt with the 1718 crisis, to search out legal

precedents and forms for the ministry.

Notwithstanding the considerable

experience of Chauvelin and Daguesseau, this work was in itself useful, but at the

same time they were busy culling information from their own friends in

conversations about the prevailing sentiment in the chambers.

Since his father had been both lieutenant-general of police and later the Keeper

of the Seals, the younger d’Argenson was steeped in the principles of government

almost from birth. He first became involved in research and advice for the ministry

in September 1731 when he sent some unsolicited memoirs to Fleury who found

them sound and perspicacious.

In May 1732 Fleury called upon him to provide

further memoirs for the ministry and the conseiller d’état was pleased to receive this

mark of esteem.

In common with the other people in the strictly informal

organisation, he remained involved throughout the summer months.

Basing their opinions upon their research, their understanding of the way in which

the parlement functioned in theory and in practice, and upon their knowledge both of

traditional parlementaire attitudes and current sentiment, Courchetet and

d’Argenson provided regular memoirs on the situation in which they often discussed

possible courses of action for the ministry. Many, but not all, of these memoirs are

extant, but the historian is still not able to measure the full contribution of the two

counsellors. Much advice and information must also have been given in private

discussions with the minister, and the loss in the 1871 fire in the Louvre of the volumes

of d’Argenson’s ‘Mémoires d’état’ further reduced the written evidence available.

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Fortunately, the ministerial archives preserved the originals of those which were

presumably considered to be the most important. Some memoirs were drawn up for

specific reasons and probably served as a basis for discussion in council, such as one

entitled ‘On the ruling that it is appropriate to make on the remonstrances of the

superior courts’.

The following extract from one of d’Argenson’s letters is indicative

of the mixture of facts and opinions which he provided.

The grand banc and the parquet are attentive to the wishes of the King and

rarely let themselves be carried away by all the cabals. The counsellors of the

enquêtes are left entirely independent of the favours of the court, or at least of

those of any importance, and this creates a particular estate of men who have

renounced any hope of improving their rank, and who have become

accustomed from early on to living off their patrimony, having need of no-

one, seeing only clients who need them.

It would not be very difficult to bring about a change in their attitude by

conferring upon them, carefully and with a constant policy, various favours, a

single one of which attaches several persons, for the éclat of a favour sows the

seeds of hope and spreads the fear of losing what one still hopes for or what

one has obtained; a few places in the council on the horizon for counsellors

who will have earned the greatest reputations, some benefices for the clerics,

a few pensions aptly given, other favours for their families, the cancelling of

the dues payable on the reception [in office] of their children, some favours

that are long-term or for life, especially those which are revocable and whose

tenure would depend on the good conduct of the officer …In a word, either

the parlement must be relieved of functions that give it such close relations

with the court, or the barrier which separates and distances the voting officers

of this company from the court must be broken.

If this memoir contains mainly general considerations, other letters provided

detailed information. One hastily written missive relays the opinion of an old friend

and counsellor in the parlement in June 1732. It contains a clear statement of the

views of the non-Jansenist magistrates during the crisis.

The parlement is convinced that the King wanted to deprive it of all

ecclesiastic affairs, of all appeals comme d’abus and make the bishops into

absolute masters in their dioceses without any opportunity for recourse to the

prince when justice, the canons and the laws of the Kingdom are infringed; I

realised from what he said that all negotiation with the parlement is useless

and damaging, that at present order cannot be re-established, that these

magistrates are in a state of fanatical determination as a matter of honour and

religion not to return to their functions, not only until Messieurs Pucelle and

Titon have been returned to them, but also not before they have had a

satisfactory explanation about what, they claim, there is a wish to deprive

them of, and not even before the restoration of that which has been

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withdrawn from their jurisdiction according to the latest orders of His

Majesty. They believe that everyone approves of them, from the curés of the

parti they know the disposition of the people…If their prevarication is not

punished in such a way that authority is avenged and remains the master, I

have no hesitation in saying that the bad example may go a long way and

enter into the other orders of the state.

The reports from Joly de Fleury, Hérault, d’Argenson and Courchetet must have

been invaluable when decisions were taken in council during the heat of the crisis.

At least of equal importance, especially in late June, was information provided by

several parlementaires. For reasons of secrecy many letters must have been burned

but some survive from counsellors Pasquier,

Montullé,

Paris de la Brosse

and

Glucq,

while some others are unsigned.

For the ministry the function of these counsellors was not simply to send reports

but also to act as a pressure group in the debates at the critical moment. It is clear

that Chauvelin’s nephew was relaying orders from his uncle and that the abbé de

Salaberry, who did not write, was an active agent of the wishes of the ministry.

This small organised group therefore appears to have numbered in June about half

as many as the extremists in the chambers. But if the parti janséniste could count on

the impetuosity of the younger counsellors, the loyalists could expect the more

senior or more frightened judges to follow their lead.

The letters provide some insight into the motives of these clients. Some were acting

from fear of royal wrath and from a feeling that in a crisis their first loyalty was to their

king and not to the corps of the parlement. This became particularly apparent in June

after the royal announcement that the ‘démissionaires’ would be regarded as rebels if

they did not retract. Glucq, on the other hand, appears already to have had patronage

links with Chauvelin. He wrote on 22 June 1732 at two o’clock:

I shall always be ready to show my attachment to you at every opportunity.

This morning I called on several of my colleagues and presidents. I impressed

upon them how dangerous it would be to disobey the King’s orders and be

regarded as rebels. They seemed ready to go back for fear of being regarded

as rebels, and I can assure you of half the members of the fifth [enquêtes]. This

afternoon I shall persuade others. I flatter myself that I shall succeed. You will

use this as it suits you. It is however of the greatest consequence that nobody

knows that I have had the honour of writing to you. I should be unable to do

what I would wish to prove my attachment to you and the gratitude I feel for

your kindnesses on this occasion, which I shall never forget. I am Sir, etc.

As d’Argenson suggested, hope of reward could be an equally persuasive argument

for ambitious magistrates. One unidentified counsellor was unusually explicit

about his motives:

I hope that when possible, it will be found appropriate that my colleagues and

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I should have some share in obtaining more complete and more general

favours such as we desire. We could scarcely receive too many if it is wished

that we might re-establish the credit and confidence needed to be of service,

and that [service] is of course the most desired recompense we could receive

for our labours and attentions of every kind.

There were recompenses—the most immediate being the easing of the unavoidable

exile of September 1732 by transference to one’s own estates. Montullé was promoted

to the grand’chambre, but in the long run Pasquier de Coulans had the most strikingly

successful career as a magistrate. He later became a member of the grand’chambre and

a councillor of state in the 1750s.

Pasquier must have been acquainted with

Chauvelin when he was still a president a mortier attending the parlement, as he refers to

this connection in his first letter to the minister, on 17 May 1732.

You led me to hope that on important occasions you would deign to honour

me with your orders. This idea comforted me and led me to break the rules of

conduct that I would have joyfully observed, sure of finding in them the

means to reconcile the duties of a magistrate with obedience; your great

occupations have surely not left you the time to remember me. Will you

forgive me for coming to you to beg you to enlighten me in the most difficult

situation I could ever find myself. I shall not try to justify the company to

which I have the honour of belonging, you are accustomed to protecting it,

you know its upright intentions; you are too enlightened to dwell upon those

accusations of Jansenism that cannot apply to most of us, and from which I

believe it unnecessary to seek to exculpate myself; but allow me to represent

to you our woeful situation. Is there any more unfortunate state for a subject

to be in than to run the risk of incurring the wrath of his sovereign; is there

any more painful situation for a magistrate than to see himself forbidden [the

exercise of] his principal functions at a time when no action on his part should

have made him fear this affliction. I know that the crime itself is more

dishonourable than its punishment, but when [this punishment] comes from

the sovereign, the idea of justice that we hold does not permit us to believe

that anyone he punishes is innocent. Thus is the magistracy marked and its

honour stained, its honour that stood in lieu of salary and which alone

recompensed it for the difficult and thankless duties which it is entrusted

with. I shall be careful not to encroach upon the basis of the matter; I know

my weakness, but it does seem to me that the sort of interdiction which his

majesty has put us under shakes the foundations of the parlement, not so

much for the parlement in itself, as for the best interests of the state and the

maxims of the Kingdom…

Equally incapable of calling attention to myself in face of the uniformity of

the parlement, nor of seeking to foment singular resolutions, I await with

respect your orders, which alone might teach me how to reconcile so many

different duties. Forgive my indiscretion…

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This letter rather annoyed Chauvelin by its, albeit subtle, defence of the parlement.

The threat of disfavour was indeed a powerful persuasion for anyone devoted to a

career in the royal service. The next letter from Pasquier was much more

committed.

For a variety of motives, several counsellors therefore offered their services to

the ministry and were prepared to carry out its instructions. The evidence of the

network of informers is all the more interesting in the light of the ministerial

attitude to negotiations with the parlement. The official view was that any

appearance of negotiation with rebellious subjects was quite out of the question as

it would be damaging to the prestige of the monarchy. Yet, behind the scenes

agents were at work trying to find out what would be an acceptable solution and

how to arrive at it. This is a situation which was typical of the conduct of politics

during the ancien régime: apparent confrontation mitigated by clandestine

manœuvres.

The apparent position of stalemate from 20 June 1732 was really a slow but

steady progress towards a solution, although there was always the possibility that

the situation would worsen.

The ministry had a great advantage in that the

grand’chambre had not resigned and so the parlement was from the first disunited.

It was decided to exploit this situation by using the grand’chambre as a moderating

influence. On 21 June a stern royal statement was made: ‘At your request, I am

willing to give a few days to those whose resignations I have to return to their

duty; if not there is no hope of pardon, they will feel the effects of my indignation

for the rest of their lives’.

The suggestion that the counsellors were liable to be

considered as rebels had its effect and waverers began to reconsider. However, the

first reply of the chamber to this was a resolution taken on 23 June, in which they

protested that they were faithful subjects of the King but that they would not

consider taking up their tasks again until the granting of the return of the exiled

magistrates, liberty of speech and the revoking of the orders of 10 and 14 May

which had removed from the parlement its competence in religious affairs. On 24

June Courchetet reported that a counsellor by the name of de Chaillon had told

him that ‘they are resolved not to make any overtures; according to them it is for

you to make the first ones, they claim to fear nothing. But behind all this one can

see that they are persuaded that you will not be able to decide to punish all the

counsellors of the enquêtes and the requêtes. All their secret assemblies and activities,

prove that it would be inappropriate to delay the decision that is to be taken’.

Nevertheless, the resistance in the chambers was still very strong. When Pasquier

proposed remonstrances he was whistled at: ‘the only result of my objections was

uncertainty’.

Meanwhile the ministry was at least preparing for the worst: Courchetet was

required to draw up a project for the suppression of the offices of those who had

resigned.

The punishment of the twenty most fanatical, which was another course

being considered, was counselled against by d’Argenson because it would only add

to the fury of the others.

Between 25 June and 1 July the ministry tried to put

pressure on the First President to bring his company to heel, but after a few days it

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became apparent that he was in no position to act as anything other than a

messenger, as he was now entirely isolated from his company. A counsellor noted,

in his journal on 28 June 1732, that

The lack of credit he was known by the ministry to have in the parlement

meant that they hardly thought of him. This general lack of regard for him

was almost unthinkable. It was all the more marked in the company

because it was based on a distrust that they hardly troubled to hide from

him. The enquêtes and requêtes were saying quite openly that they were

formally resolved not to have recourse to him without [imposing]

restrictions. Thus he could not have chosen a less favourable time to take

the lead.

Outwardly, the ministry was still taking the most uncompromising line. On 30

June Portail reported to the presidents of the various chambers the royal decision

on the attitude of the courts. The gist was that if they intended to use their return

to duty to declare remonstrances on the return of the exiled members and on free

speech, such conduct could never be tolerated and would be regarded as a further

insult to the King. They must therefore resume their functions, giving some

strong indication of their repentance and their zeal to conduct themselves better.

‘Without which, neither conditions nor negotiations are admissible in the present

situation, and the only course that those who have sent in their resignations can

take, if they want to appease the King, is to put themselves in a suitable position to

receive his signs of clemency.’ After their submission they might be permitted to

supplicate for the return of the exiles. The King gave the chambers until 3 July to

return to work, and if they did not, then a gmnd’conseil would be held to enforce

harsh penalties.

The next day the chambers decided to remain as they were, but on 2 July

Portail surprised them by saying that he thought that the court might not be so

determined on the two points of the return of the exiles and free speech. The

chambers wanted some positive assurances, as Portail told the ministers the same

day. Fleury replied that that smacked too much of negotiations, unworthy of a

king with a subject.

On Wednesday, which was to have been the final day of clemency, the

grand’chambre wrote to ask for a further twenty-four hours’ grace. This was a

clever move to resolve the crisis, for it must have noticeably heightened the

tension among the counsellors at a critical moment and it gave them a definite

time limit. A magistrate recorded the effect of this and the feeling among his

colleagues at that time.

The reply made in the King’s name the day before, and the dark threats that

for some days had been artfully spread about, that they would come down

hard on them, suppress three chambers, exile their members to fifty leagues

from Paris, deprive them of their nobility, make them subject to the tithe, etc.

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did not fail to sway some minds. Then the necessity of making an end of it,

other than by this sort of coup, led some of the moderate and pacific heads to

look for a less harsh and less humiliating way out… Thanks to the step taken

by the grand’chambre, there was nothing for it but to retreat.

On Friday, 5 July, the First President received a letter from Fleury saying that the

chambers had until 3 p.m. that day to return to work. Portail immediately went to

Versailles and was told that obedience must be a first priority but that later, as

their demands appeared just, there was reason to believe that they might be

accorded. However, they must return on the following Monday (8 July). This

statement left the magistrates the weekend during which to make a decision. It

was at this time that the agents were particularly useful in the discussions. A letter

from Glucq on the Friday evening reveals him engaged in what was probably the

sort of activity that other informers were doing: ‘We have done what we can to

persuade some of our colleagues to change [their minds]. Mr.the abbé de

Salaberry has said everything that was most pressing, and for myself, I made

them realise that it [not voting to return] would be the greatest misfortune for the

company, because in that case the King would decide for us [the chamber being

divided on what course to take]’.

Over the weekend the chambers individually debated their course of action. On

Saturday they were split three-and-a-half for a return, to three-and-a-half, all of them

enquêtes, to stay out. It was the fifth chamber of enquêtes that was divided equally on

the conditions of a return to duty. Finally, during the Sunday, the general decision

was that a return was acceptable on condition that remonstrances should be

decreed.

During the following week, after the plenary assembly held on Monday, the

King returned the resignations and Portail asked for pardon for the parlement,

although he was unauthorised by his colleagues to do so. The words spoken by the

King, that he preferred to pardon than to punish and warning them not to abuse his

indulgence, mortally offended the chambers.

The royal attitude seemed to indicate that the ministry would renege on the tacit

agreement which had been made, because, whereas the magistrates had

reassembled on the condition that they would be given justice, the King seemed to

regard them as culpable and criminal. A new vote to return had to be taken, and the

split was so narrow that the balance was was tipped by a certain Chevallier of the

fifth enquêtes who changed his mind. Consequently the chambers voted four to three

for a return to duty.

However, far from exhibiting any signs of having been chastened by the

experience of recent weeks, the parlement immediately decreed remonstrances on

four points: the return of the exiles, freedom of debate, a protest against the royal

arrêt of 16 June and a justification of its own activities. By 30 July the remonstrances

were ready and were read to the chambers on 2 August; the King received them on

4 August.

The parlement wished for a speedy reply, but one was not forthcoming

so soon as some would have liked. A noted Jansenist, Carré de Montgeron,

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attempted to have a motion passed which would keep the courts in plenary session

until the reply was made. This would, in effect, have been a renewed strike, but he

failed to get a majority.

Evidently, most of the magistrates were a little chastened.

Finally, on 19 August the royal reply was presented to the deputation from the

parlement in a speech made by the Chancellor, followed by a declaration that

required immediate registration. It was a dramatic moment.

The declaration was a stern disciplinary measure clearly designed to

reemphasise royal authority over the parlement and to prevent the recurrence of

the recent crisis. It makes interesting reading because it plainly states that false

rumours of a royal design to deprive the parlement of appeals comme d’abus were

being used to excite the judges, and its provisions constitute a reply to the forms of

manipulation which had been exploited by the Jansenists. It insisted that the

parlement should put its particular interests second to the ‘general and superior

views’ of the King. The declaration’s six points limited cognisance of appeals

comme d’abus and other matters related to royal authority to the grand’chambre

alone; it permitted debates on such matters to take place only at the express

request of the gens du roi or with the permission of the First President, and only in

a plenary assembly. Debate in the other seven chambers, conferring between

chambers by means of commissioners, and the keeping of any register, were

forbidden ‘sous peine de désobéissance’. All laws published in a lit de justice were to

be observed immediately, notwithstanding any projected remonstrances, and

there was to be no future cessation of justice.

A report from d’Argenson to Chauvelin points out that the courts proceeded to

disobey the declaration on three of the six counts. They decided without royal

permission upon iterative remonstrances requesting the return of the exiles, refused

to register the declaration despite the positive order of the King, and finally they

abandoned their duties by remaining in plenary session.

A session of the conseil was

held to prepare the response to this defiance of the royal will. Villars attempted

discreet negotiations:

On the evening of the 31st, a council of dispatches was held, mainly for the

affairs of the parlement…I had offered to go to the parlement, [but] the

cardinal de Fleury told me that it would be better to speak to some of its

leaders, which I did on the last days of the month. But, whatever good

reasons I put to them, tempers were so frayed that it would not have been

possible to win over the entire corps, even though the most reasonable ones

agreed that nothing was so heinous as to fail in one’s duty to God, to the

King, to one’s oaths, to the patrie and to oneself, by abstaining from one’s

most essential duty, which for them was to dispense justice. In the council of

the 31st, it was decided that the King would hold a lit de justice at Versailles; it

was set for the third of September.

The lit de justice was held in a hall made to resemble the grand’chambre, with the King

presiding on a dais, in an assembly that was ‘magnificent by the quality of the