The Legal Profession and the Development of a Revolutionary Discourse

The growth of the legal profession also contributed to a heightening of tensions between lord and peasant. The number of legally trained professionals increased much faster in the eighteenth century than did the population as a whole.^[51] This increase in the number of law graduates had the effect of encouraging both more intervention and more litigation. To earn a living, legal practitioners developed a wide range of new cases that they could present on behalf of communities. With

[49] AD, C-1609, Jan. 1776: Procès-verbal, includes a letter to the intendant from the curé.

[50] Ibid., 1780: Subdelegate to intendant.

[51] Richard L. Kagan, "Law Students and Careers in Eighteenth-Century France," Past and Present 68 (Aug. 1975):38–72.

changes in legal theory, new precedents were being established that were often based on new theories and that increased the areas of possible intervention.

Legal officials (such as greffiers and notaries), with whom peasants had regular contact, were better educated than their predecessors and therefore generally possessed some background in law. Many notaries were in fact lawyers. Enterprising notaries made it their business to keep up with developments in the bailliage courts and in the parlement—hence their reputation among seigneurial officials as troublemakers. In writing up the minutes of a village assembly, a notary might include a suggestion that the inhabitants seek legal advice and question the traditional seigneurial exactions. When the inhabitants of Buffon formally denounced certain seigneurial rights, the lord quickly responded that the notary who had drawn up the denunciation must have instigated their act. Considering the agitation by the notary, he said, the community's sudden refusal to acknowledge long-standing seigneurial rights should not be surprising. He noted sarcastically, "This seems to have come out of the air, that is, if one puts aside the role of the notary." The notary, he claimed, "was able to make the poor, illiterate peasants believe whatever he wanted them to."^[52] Seigneurs and their attorneys often singled out notaries for abuse in this way.

Keeping up with developments in the field of law allowed a local notary to make himself more valuable to communities and to justify an increase in his own fees. Pride, however, also moved local notaries to keep abreast of what was happening in the courts in the provincial capital, particularly in parlement. Having a knowledge of Dijon's legal events and personalities was a way to cut a good figure in local society. To understand this we need to look at the importance of the law courts in the provincial capital of Dijon.

One thousand families (5,000 individuals, or 20 percent of Dijon's population) owned offices in eighteenth-century Dijon. Court cases were an item of concern and conversation among families that had some contact with the law. Their interest in legal

[52] "Factum pour les habitans de Buffon, défendeurs contre Messire Guillaume Languet-Robelin, seigneur de Rochefort." BM, Fonds Saverot, vol. 13, no. 21, n.d. (probably after 1704).

issues was intensified by the fact that the parlement was becoming the center of provincial consciousness. It had replaced the estates as the protector of and spokesman for provincial liberties.^[53] As members of the most prestigious provincial institution, parlementaires were some of the most influential members of the town, and they belonged to the wealthiest families in the province.^[54] The eighteenth—century residences built by the wealthy members of parlement were among the most prominent architectural additions to the city; they expressed in stone the legal profession's dramatic expansion, just as the cathedrals built in the twelfth century dramatized the church's growing wealth and authority.

Considering Dijon's position as an administrative and judicial capital, one can appreciate the stir that could be caused by a court case such as the one in 1785 between the duke of Saulx-Tavanes and the village of Lux.^[55] Five years earlier, the king had made the count of Saulx-Tavanes a duke, in recognition of one of "the greatest houses in the realm," and had incorporated his seven villages in Burgundy into a duchy. No sooner had the duke's properties acquired special judicial status as a ducal bailliage than the village of Lux refused to acknowledge or to sign the lord's recently revised terrier . Their refusal was doubly annoying to the duke because as recently as 1781, he had retained a group of lawyers to renew his titles at a cost of three thousand to four thousand livres a year.^[56] The duke's lawyers did not in-

[53] On account of their fiscal responsibilities, the estates often cooperated with the intendant, thus compromising their traditional role as guardians of provincial liberty. On that role, see H. Drouot, Mayenne et la Bourgogne, 2 vols. (Paris, 1937), 1:94–102.

[54] In 1770–1771 the parlement had 76 members and 5 honorary members. Most members were nobles and all were wealthy, for they owned both rural and urban property. In a study of 120 magistrates, Colombet found that the majority (92 percent) were either of noble birth or recently ennobled. However, 50 percent had inherited their seats in parlement from their fathers. In the second half of the eighteenth century, the parlementaires expanded and embellished their homes in Dijon. Colombet found that they also increased their rural holdings at the expense of both the nobility of the sword and the bourgeoisie. They had acquired many châteaux, parks, and large landed estates; in fact, ownership of land in the countryside became their principal form of wealth. See A. Colombet, Les parlementaires bourguignons à la fin du XVIII siècle (Dijon, 1937).

[55] AD, C-1260: "Memoire pour . . . duc de Saulx-Tavanes . . . contre . . . la communauté de Lux."

[56] See Robert Forster, The House of Saulx-Tavanes: Versailles and Burgundy, 1700–1830 (Baltimore, 1971), p. 94. Forster treats "the 'seigneurial reaction' practiced by the Duc de Saulx-Tavanes," pp. 92–108.

timidate the community and force it to quickly accept the terrier, as the duke had hoped, but rather seem to have had the opposite effect. When they offered the community several hours to review the new titles, the community demanded several months. The villagers found the majority (thirty-one) of the articles unacceptable. Could provincial society fail to notice that, shortly after he was made a duke, the wealthiest seigneur in the province was unable to bring his peasants to recognize his most fundamental seigneurial rights? What kind of example would this set for the subjects of less distinguished seigneurs? Similar rumbles of opposition were being heard in other villages.

Lawyers took both sides in these disputes. The same lawyer who helped a peasant community resist its seigneur might turn around and rewrite a terrier that enabled a lord to assert a claim to neglected seigneurial dues and to his ownership of previously communal properties.

Will an examination of their social origins help illuminate what motivated the lawyers? In the eighteenth century, most of the new lawyers had roots in urban areas. Only 2 percent of Dijon's law students came from peasant families, and sons of seigneurs seldom chose a career in law. Thus, the countryside was not well represented in the legal profession. The fathers of 50 percent of Dijon's law students were members of the legal profession, however.^[57] Lawyers, regardless of their background, stood to gain from the escalating fees charged in suits between lords and peasants. Their willingness to work for either side needs no other explanation.

Nevertheless, other explanations have been offered. A number of writers have stressed that lawyers were often destitute and resented a system that allowed few opportunities for professional success. Bouchard, a Burgundian historian writing about Burgundy, described the lawyers who worked for peasants as professionally frustrated, living a hand-to-mouth existence (like many of their clients), and willing to take up any cause. The Robespierres of late-eighteenth-century France were recruited from this group. Distinct from the high nobility of the robe, confined to subordinate work, and despised by the parlemen-

[57] Kagan, "Law Students."

taires, some of them seem to have hated privilege and the parlementary nobility as much as the peasants did. Thus the parlementary nobility and the expanding ranks of bourgeois lawyers had no community of interests. Bouchard insisted that the barrier to social mobility and the contempt of the high nobility of the robe for these lawyers weakened the solidarity of the legal profession. "The bar is now a closed career in which one feels stifled. Those who practice law no longer have anything in common with the magistrates before whom they appear, nor do they share in fortune, for theirs is modest; nor origin, for they know themselves to be sons of the people before a hereditary nobility; nor ambitions, for they know they will never be seated on fleurs-de-lys."^[58]

In pointing out the differences between non-noble legal practitioners and the magisterial elite of the parlement, Bouchard may have overemphasized the divisions within the profession as a whole. Unity of the common practitioners may have existed despite that group's alienation from the high robe. Bouchard also ignored the fact that the same lawyers often worked alternately for both seigneurs and peasants, as did Ranfer. In discussing the frustrations of poverty and the absence of opportunities for professional advancement, Bouchard ignored the frustration that comes from persistently being unable to win cases for clients. Moreover, there is no evidence that lawyers ever went hungry.

Do the lawsuits instituted at the end of the eighteenth century suggest that lawyers were becoming revolutionary activists? Or, as Bouchard and, more recently, Maurice Gresset have argued, do they reflect the resentment of a disgruntled, frustrated group of individuals blocked in its efforts to enter the magistracy?^[59] Bouchard asserted that lawyers' development of new ideas that would abet peasants in evading feudal dues was proof that the common practitioners had joined the peasants to form a class front against the seigneurs. The creation of legal theory by practitioners to serve the interests of clients was not

[58] M. Bouchard, De l'humanisme à l'Encylopédie: L'esprit public en Bourgogne sous l'Ancien Régime (Paris, 1930), pp. 554–55; see also p. 855.

[59] Maurice Gresset, Gens de justice à Besançon: De la conquête par Louis XIV à la Révolution française, 1674–1789 (Paris, 1978). Gresset argues that resentment led the middle ranks of the legal profession to embrace radical ideas in 1789.

unique to the late eighteenth century. Jonathan Dewald noted that the lawyers of the sixteenth-century Parlement of Rouen were also creating legal theory. It was not class interest but professionalism that motivated those lawyers. Dewald claimed that in developing these ideas, lawyers were not revolutionary ideologues but professionals doing what legal practitioners had always done on behalf of all of their clients—even in private law, where political considerations were minimal. Lawyers were also seeking to encourage magistrates to make their decisions more theoretically explicit. The parlement tried to keep secret the theoretical premises of its decision making and presented its decisions in nontheoretical terms so that they would be more difficult to attack. Dewald reported that magistrates were "not in the habit of giving reasons for [their] decisions."^[60] in short, by developing theory, lawyers were not attempting to foment political revolution but to overcome the judicial secrecy of the magistrates and to win points for their clients. By its very nature, litigation frequently created new viewpoints that could be used by future litigants.

The records of the court cases, however, suggest that the changes in legal theory during the late eighteenth century were reflected in the positions taken by the Constituent Assembly during the Revolution. The peasants' lawsuits established a set of categories into which the new grievances could be fitted and a vocabulary with which they could be described.

One of the first seigneurial rights to be attacked by lawyers employing the radically new kind of argumentation was the four banal . In 1765 a lawyer working for the community of Tilchâtel (in Champagne) explained: "All the authors concede that most banalités derive from the violence of seigneurs. It is these rights, which are not stipulated in the fiefs, that have always been odious and that justice has attempted to restrain as much as possible according to the maxim odia sunt restringenda [evil things are to be restrained]."^[61] Even though lawyers were questioning all seigneurial rights and privileges not stipulated in the original fief, privilege still had its powerful defenders, such as

[60] Jonathan Dewald, The Formation of a Provincial Nobility (Princeton, N.J., 1980), pp. 32–33, 67.

[61] AD, C-1976, Tilchâtel, 1765: Procès-verbal.

the seigneurial judge of Talmay who, in 1781, ordered forty-six inhabitants to demolish their private ovens and set stiff penalties for future infractions. This incensed and unified the community, which took its objection to the local bailliage court. When that court ruled in the lord's favor, the community, convinced that the lord had originally acquired this right by resorting to violence, and committed to redressing injustices of the past, hired two lawyers. They found the community's case to be sound because

1. The right of banalité is not a seigneurial right; it is not attached to the fief or to [its] justice, but it is an extraordinary right that can only subsist by virtue of an explicit convention. . . . It is a personal servitude, which, according to customary law, must be established by title.

2. Each individual who makes up a community cannot be forced by his community to obey an act that imposes a charge on him ut singule [as an individual].

The intendant reviewed the case, but before approving the community's petition to sue, he ordered the subdelegate to convoke a meeting of the village assembly to determine whether a majority favored bringing suit. In that meeting, 129 of 157 inhabitants voted to sue. The intendant then authorized the suit, commenting that "one could not desire a more numerous or unanimous deliberation." It is interesting to note that although only 46 inhabitants had ovens, 129 inhabitants favored instituting suit.^[62]

The argument used against seigneurial banalité had implications for the droit d'indire as well. There was good reason to believe that it did not derive from the original fief either. In the most recent compilation of Burgundian customs (1740–1742), precedents for indire had been cited dating back to 1333.^[63] As a

[62] AD, C-833, Talmay, 1782, Jan. 1783–1786: Procès-verbal, includes délibération of the community, sentence of the bailliage court, and correspondence between the intendant and the subdelegate.

[63] M. Bouhier, Les coûtumiers du duché de Bourgogne avec les anciens coûtumes et observations de M. Bouhier, président à mortier, 2 vols. (Dijon, 1742, 1746), 2:287–89, 319–20; Taisand, Coûtumes générales du pays et duché de Bourgogne (Dijon, 1698). Taisand and Bouhier, chroniclers of Burgundian customs, had different explanations of indire, but both supported seigneurial rights. Taisand argued that indire was an attribute of seigneurial justice; Bouhier viewed indire as originating in the charters of enfranchisement. In Taisand's interpretation, it was a personal obligation of all those subject to high justice. A seigneur could request indire from all who, "being his men were subject to his justice." Thus vassal, mainmortable censitaire, and homme coûtumier must all pay as subjects of high justice. Bouhier pointed out, however, that "there is not the least mention of indire in our oldest custom; it would seem that in the Custom of 1459, indire was introduced in the interest of lords of high justice." To explain this absence from the earlier compilation of customs, Bouhier asserted that indire was not an original seigneurial right but the result of a later contract between lords and peasants. Assuming that all Burgundian peasants had once been mainmortables, Bouhier argued that all were subject to indire . In application, there was little difference between the theories of the two authors. The parlement could cite both to defend seigneurial rights against peasant rights.

right possessed by lords of high justice, however, it was not generally recognized or regulated until the late seventeenth century. The speculation of jurists was that the right had originated in the charters of enfranchisement. Serfs were not subject to indire, but the Burgundian charters referred to the enfranchised peasants as vassals, and it is possible that lords began to collect indire from the community on the grounds that as their vassals, these newly enfranchised serfs should bear the obligations of liberty. But peasants now claimed that, as a responsibility associated with liberty, indire should not be forced: it should flow from generosity alone. Its mandatory collection was extortion. A group of lawyers arguing for their client, the village of Arc-sur-Tille, advanced the position that indire was "at its origin purely voluntary, offered in certain cases by vassals to their lords." Moreover, they argued that the practice did not derive from the charters of enfranchisement and that not all peasants had been mainmortables .^[64] Evidently, lords and peasants now disagreed on a very fundamental quesion—the meaning of the word "vassal."

In 1785 a curé in the village of Thorey-sous-Charny wrote to the intendant to protest the claim of the local seigneur, the Comtesse de Brionne, for indire . Actually, it was a request for a double indire: one for her daughter's marriage and one for her dead husband's promotion to a chivalric order in 1758. The curé appealed to the intendant to help the community resist the lord's efforts "to extort such an unjust tribute." He described indire as an "onerous and baroque imposition" and suggested that "it would be interesting, perhaps, to investigate the origin of the droit d'indire and to go back to the heart of the Republic of Rome to discover it. It would be surprising, perhaps, to find a simple tribute of gratitude from the clients of the Republic

[64] AD, E-1743 and C-459: "Débat avec le seigneur pour le droit d'indire."

transformed into a very onerous duty for the French peasant."^[65] The argumentation is somewhat fanciful, but the point is that indire was resented on the grounds that, although it had originated as a courtesy, it had become arbitrary and the amounts exorbitant.

The inhabitants of Buffon used a similar argument in a case concerning guet et garde . They asserted that "the right of personal guet et garde is one that was introduced by the necessity of wars, and by the need that seigneurs had for the villagers to defend and to guard their châteaux, and the need that villagers had to find in the châteaux of their seigneurs a sure haven for their effects and for their persons." The seigneurs' use of force had transformed what had begun as a voluntary and reciprocal agreement into an onerous and mandatory imposition. The community's lawyers asserted that "because its original motivation was only a sort of tacit agreement between seigneurs and villagers, founded on the reciprocal need they had of each other in case of imminent peril, it follows that everything that tends to charge or inconvenience the latter [villagers], without bringing them any utility, is regarded as having been usurped by violence and in consequence odious."^[66] Just as in the arguments against the four banal and indire, the peasants were arguing that this seigneurial right had originated in times of disorder and when weak kings permitted lords to resort to violence.

Lawyers working for communities also began insisting that seigneurial rights had to be uniform throughout the province. Rights that were not uniform were préscriptibles . Despite their antiquity, they could be curtailed simply because they were inconsistent with provincewide custom. This was exactly what the lawyers of Lux were claiming in that community's dispute with the duke of Saulx-Tavanes: "The seigneurial rights that exceed [custom] in one territory that which custom authorizes in the others must be restrained." In effect, lawyers were arguing that, regardless of a previous contract, peasants were not bound to honor rights exceeding or contradicting principles established for the province as a whole. In his defense, the duke's lawyers

[65] AD, C-1709: Letter from the curé dated 25 Nov. 1785, pp. 1–2.

[66] BM, Fonds Saverot, vol. 13, no. 21.

insisted that "because these rights are based on an individual contract, it is fair to abide by the titles that establish them."^[67] The community's position was novel, but premature; it did not influence the outcome of the case. Although communities were losing most of the cases, the important point is that having gotten seigneurial lawyers to address their claims, the peasants and their lawyers were able to define the terms of the dialogue, and they extended the range of discourse to include concepts whose implications would be detrimental to seigneurial rights.

More important than the attack on any single seigneurial right was the fact that the lord's terrier, the juridical basis of his traditional right to collect seigneurial dues, was being challenged. Lawyers working for peasant communities insisted that provincial and national laws should take precedence over the lord's terrier in court. Just as the National Convention would later claim that it could override particular and historic privileges in making laws for all of France, lawyers after the 1770s claimed that the particular rights of seigneurs stated in their terriers could be contradicted by laws that applied to the entire province. Although lords were still able to defend most of their rights and privileges, they had to agree to a discussion of terms and concepts developed by the opposition. Thus, the status of seigneurial titles had shifted dramatically—their validity could now be challenged. The new legal battles were important because what had been based on custom and tradition now became a problem to be discussed.

In the legal briefs one cannot easily distinguish the lawyers' attitudes from those of their peasant clients. Lawyers and peasants had different reasons for challenging seigneurial authority, however. Lawyers could increase their fees; peasants could hope to reduce their feudal dues. Invoking the idea of a class alliance to account for their collaboration is gratuitous; advancing the notion that hostility to privilege motivated the lawyers is likewise gratuitous. Lawyers were being paid to do a job and utilized whatever legal arguments were at hand.

The assault on seigneurial rights had only just begun when

[67] AD, C-1260: "Mémoire pour Charles-François Casimir, duc de Saulx-Tavanes, . . . le 27 Août 1785."

the Constituent Assembly attacked the entire seigneurial system in 1789. The Revolution accomplished in months what lawyers might have taken decades to achieve in the courts. But the language used by the Constituent Assembly to dissolve the feudal system in 1789 was already being used with increasing regularity in court cases that pitted lord against peasant during the last half of the eighteenth century. The lawsuits of the 1770s and 1780s introduced the language used on the night of August 4, 1789.^[68]