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2 Constitutionalism A Nexus of Political-Historical and Professional Values
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A Nexus of Political-Historical and Professional Values

The twin temptations to oversimplify and to interpret history from the point of view of the survivors have produced in English-speaking countries a history of France bifurcated by the Revolution; in this view the main feature of the centuries preceding the eighteenth was the absolute monarchy of Louis XIV, contrasted to the constitutional monarchy in England that triumphed just in time to rescue Europe from domination by the Sun King. In the neglected centuries before the seventeenth, French monarchs are seen as trying with varying success to centralize and to get the upper hand over feudal lords, but their efforts resembled those of Sisyphus, and their reforms were always eventually swallowed up in chaos. Except for specialists in prerevolutionary French history, of course, this distortion has yet to be fully replaced with the considerably more complex reality. The impression lingers that, lacking documents such as Magna Carta or the Bill of Rights, French constitutionalism was either a propagandistic disguise for feudal reaction or a vain dream by champions of lost causes like the Huguenot pamphleteers. Frenchmen of the sixteenth century, however, believed that in fact law was supreme in France and that there were real limitations on the king's power. The actual workings of the "Renaissance monarchy" have been analyzed most fully by J. Russell Major, who coined the phrase, with emphasis on the role of representative institutions as a check on arbitrary taxation.[1]

Theoretical formulations of French constitutionalism have drawn more attention from modern scholars, sometimes as an aspect of general European


political theory, and there have been many studies of particular thinkers such as Claude de Seyssel, François Hotman, and Jean Bodin. The most comprehensive single work is still William F. Church's study of constitutional thought, which treats all the significant figures (even the lesser ones) in relation to one another and in the context of French history, showing how the consensus of the early years—that France was governed by a complex structure of laws and institutions of which the crown was only the most important—was gradually replaced by a configuration in which the other elements were overshadowed by and subordinated to the crown, although they did not disappear.[2] The great majority of those who wrote on the subject, whether on the more conservative (constitutional) side, or tending toward absolutism, were members of the parlementaire class. To say that the Parlement of Paris was incontestably the bastion of French constitutionalism is almost a tautology, since that body was considered the guarantor and guardian of the fundamental laws and of the harmony between the crown and the bodies limiting it by their own rights and privileges, enshrined in customary law and sanctioned by long usage (history). Thus an interpretation of French history and a theoretical statement of their own professional role are both embedded in parlementaire constitutional theory.

Until the latter part of the century a delicate equilibrium between the various elements of the constitution was seen as the norm. The disruption of prolonged civil war and especially the threat of foreign invasion eroded the traditional equilibrium by discrediting the pluralistic elements. Instead of appearing as supports of the law and guardians of tradition, the distributive structures came to be seen as points of weakness to be eliminated, as is demonstrated in Bodin's argument for the indivisibility of sovereignty and the drastic reduction of limitations on the crown. The only national institution that retained public confidence at the end of the wars was the Parlement of Paris. This was because, on the one hand, few magistrates had deserted the royalist-national cause, and on the other, the strong majority that rallied to Henri IV enabled the court to become the crown's most important ally in restoring national unity, defending the Gallican church and strengthening royal power. The scars of civil war could not be eliminated and the "innocence" of earlier constitutionalism could not be recaptured, but an attempt was made to restore as much as possible, to the point—at times—of ignoring the break that had occurred.


In no respect is the coherence and consistency of parlementaire thought more striking than in its commitment to the constitutional view. As Church points out, despite differing views of Huguenots (and later, ligueurs ), which "caused the jurists to exercise greater precision," the legists, Gallican and politique virtually without exception, represented a central party and "arrived at their conclusions essentially by developing concepts long accepted by members of their own ranks."[3] Claude de Seyssel's Monarchie de France (1519) owes its influence as a statement of constitutional theory to this extraordinary continuity. In the reign of Henri IV, theorists like Guillaume Du Vair and apologists for the Parlement like Pierre de L'Estoile and Bernard de La Roche-Flavin echo Seyssel's ideas of eighty years earlier, albeit with an insistence that this was the way things ought to be and a wistfulness for Paradise lost quite different from the confident tone of Seyssel. The salient points of mainstream parlementaire constitutional thought can be summed up in a series of adjectives, each of which corresponds to a facet of the constitution: légiste, royaliste, corporatiste, parlementaire, gallican, nationaliste , and conservateur . Law determines the relation of the parts to one another and creates a whole that is greater than the sum of the parts, such that no element is outside its bonds. Church says, "throughout the century . . . legists maintained unbroken the great scale of legal values, from the eternal to earthly custom, inherited from medieval thought." The hierarchy of laws is anchored at the top in divine law, while earthly kingdoms are subordinate parts of God's universal kingdom. France has a special place of honor, and her king bears the title "Most Christian."[4]

Of the various kinds of earthly law, two were considered unique to France: the "fundamental laws" of the realm, and French customary law. Although particular thinkers argued for the inclusion of others, the traditional consensus recognized only two "fundamental" laws, the Salic law, barring succession to the crown by or through a woman, and the inalienability of the royal domain.[5]


Harro Hôpfl's recent work has pinpointed the first use of the term, "fundamental law" to Bèze's Droit des magistrats (1573). According to his interpretation, the term "gradually acquired accretions of meaning in the course of both practical political arguments and theoretical inquiry [and eventually] associations with specific constitutional theories that historians have mistakenly believed were present all along." Rather, Hôpfl believes that "these earlier references should be understood as rhetorical devices designed to identify specific rights, privileges, laws and habits." He attributes the term's widespread appeal to "the prior popularity of 'foundation-edifice metaphors' that constitute the rhetorical context of common usage out of which the term 'fundamental law' emerged." Martyn P. Thompson adds a second metaphor, "law-contract," which became an element essential to the distinction of fundamental law from nonfundamental.[6]

The circumstances of the 1570s and 1580s favored widespread acceptance of a clear, stable formulation of the fundamental laws: Huguenots after the Massacre of St. Bartholomew needed a conceptual structure of the state that imposed limits and obligations on the king, including both laws he could not violate and duties that bound him to respect the rights of the people in his actions. Subsequently, ultra-Catholics, after 1584, when the indisputable heir presumptive according to the law of succession (usually referred to as the Salic law) was a heretic, asserted the "law of Catholicity" as a fundamental law. This, in turn, evoked stronger and more elaborate justifications of the Salic law from royalist-politiques who supported Henri de Navarre. It also raised a more theoretical issue, renovation versus innova-


tion; that is, could fundamental laws be "made," and had the original ones indeed been made by past kings?[7]

Thompson admits that given "the conceptual looseness of the earlier references, it is hardly surprising that this novel term [fundamental law] was often understood as merely a matter of new words for older and more familiar concepts, and this has been the conventional wisdom of modern historians."[8]

Between Alençon's death and Navarre's conversion (1584-93) the critical political situation (the "second," Paris League) overshadowed the matter of historical origins, which was relegated to the category, "the memory of man runneth not to the contrary." Important speeches, such as those of Achille de Harlay and Guillaume Du Vair, postulated not only the existence and antiquity but also the inviolability of both the Salic and inalienability laws.

Thompson notes that still further meanings were developed in the political theory and jurisprudence of succeeding generations down to the end of the ancien régime and that "the broad linguistic and rhetorical context of earlier common usage . . . continued to color future meanings."[9] However, neither he nor Hôpfl appears to recognize the abundant evidence of constitutionalism, including explicit statement of the two fundamental laws, prior to Bèze's Droit des magistrats and throughout the sixteenth century. Parisian parlementaires believed in the existence of "mixed government"—in the Aristotelian sense, that is, the king, though absolute within his prerogatives, was limited by both fundamental and customary law, a belief closely related to the increasingly sharp distinction between the kingdom, or ongoing kingship, and any particular king, indicated by many signs and rituals, such as the wearing or not wearing of red robes by the Parlement, and specific actions and emblems in the royal entries and funerals. The laws of the former were considered unalterable; any actual king was "checked," notably by the three "bridles" or "reins" described by Claude de Seyssel in La Monarchie de France .

The first bridle was religion, but in the context of 1519 this meant merely that the king should be a "good Christian." The situation changed drasti-


cally, of course, with the threat of Protestantism, especially in the second half of the century. The other two bridles were essential to the constitution, and had been so traditionally, according to Seyssel and in parlementaire mentalité . Chapter 10 of La Monarchie de France begins,

The second bridle is justice, which beyond any doubt is in greater authority in France than in any other country of the world that we know of, especially on account of the Parlements, which were instituted chiefly to bridle the absolute power that the kings might want to use. From the very outset they were staffed with such great persons . . . and of such power that the kings have always been subject to them with respect to distributive justice. So one can have justice and right against kings as well as against subjects. . . .

This justice is the more authoritative because the officers deputed to administer it are permanent; and it is not in the power of the king to depose them except for malfeasance, of which the cognizance is reserved to the sovereign courts. . . . Truly, as has been said, this rein and bridle is greater and more praiseworthy in France than in any other land, and has been maintained for so long that it scarcely can be broken, although it may be bent.

Chapter 11 deals with the third bridle, police , which designates "the many ordinances, made by the kings of France and . . . confirmed from time to time, which tend to the conservation of the realm. . . . The princes never undertake to derogate from them; and if they wanted to do so, their commands would not be obeyed, especially as to their domain and royal patrimony, which they cannot alienate except in case of necessity. Such alienation must come under the cognizance of and be approved by the sovereign courts of parlement and by the chambers of accounts."

Chapter 12 explains "How this Moderation and Bridling of the Absolute Power of Kings Is to Their Own Great Honor and Profit," namely that it makes their authority "greater and more perfect and also more firm and lasting."[10] The willingness of French kings to obey the law is frequently cited as their most praiseworthy trait and was strongly emphasized by the constitutionalist politiques of the later sixteenth century in reaction to the growing absolutist tendencies.

Both Church and Quentin Skinner show that absolutist tendencies characterize the thought and writings of the latter part of François I's reign (by Chasseneuz, Grassaille, Rebuffi) and that there was a resurgence of constitutionalism, elaborated in response to the circumstances, starting with Pas-


quier's first edition of his Recherches de la France (1560) of which book II, issued in 1565, constitutes an extensive structural analysis of the constitution, reasserting its "normative character." "The main legal check on the monarchy is said to be constituted by the authority of the courts, and in particular by the Parlement of Paris, the highest court in the land. All these [later] writers insist that the duty of the king to take counsel from the Parlement is not an optional but an essential feature of the existing constitution of France"; it is "the chosen alembic for reducing the king's will to justice." These words of Skinner's effectively summarize the belief in a constitutional "structure," with limits on the king that include some aspects of "consent," or "contract," that cannot be dismissed as "metaphorical."[11]

Customary law contrasted with Roman law by its diversity and fluid character, as compared to the more coherently organized codes of Justinian. There were many regions of coutume and some were quite small, for instance in the Beauvaisis: there was a coutume for Amiens, another for Péronne, Mondidier, and Roye, and still another for Senlis. In earlier generations, when praticiens were faced with cases that fell between or involved conflicts between particular customs, they were obliged to choose, to attempt to reconcile, or to refer to the only preexisting standard, Roman law. In the sixteenth century, however, a succession of innovative and influential Parisian jurists who were also practitioners, developed a new system. Decisions of principle based on comparison and detailed analysis led to the establishment of the coutume of Paris as another standard of reference.

Michel Reulos, a specialist in these matters, explains the preeminence of the Parisian coutume "because it was particularly well-formulated and because it reflects the arrêts of the Parlement of Paris."[12] As previously


noted, the Paris court was not only the oldest and most prestigious court in France; its ressort was much the largest, encompassing the greater part of northern France. Leading mainstream spokesmen like Christophe de Thou and Antoine Loisel were among the major figures in the redaction and consequent domination of the Parisian custom.

Parlementaires regularly compared the court to the Roman senate, which shared authority with the emperor under the constitution of 27 B.C.E. established by Augustus. Like the senate, Parlement exercised a double capacity, judicial and administrative. Reulos goes even further:

These magistrates who compared themselves to Roman senators . . . were making law like [Roman senators] and they constituted in themselves the living law . . . reminding us that "justice in French juridical language designates not only decisions between litigants, but also preventive justice . . . measures taken to avoid litigation. . . . A true legislative activity is involved . . . the link between the two aspects is contained in the regulatory arrêts as well as those rendered in red robes.

It is especially significant that Reulos applies the phrase "living law" to Parlement; it regularly describes the king in the speeches of sixteenth-century royal spokesmen. But the king was expected to respect the coutume , which contained the rights and privileges of individuals and all important intermediary institutions. Indeed, "the domain of the coutume entirely escaped the power of the king, who could not modify [a customary law] except in exceptional cases where the public interest was at stake."[13]

A large body of law that had originated with the crown over time, including general laws called ordinances, tended to merge with the coutume , as the crown pushed aside the limiting bonds and encroached on other elements of the constitution, as Church points out, and the king was increasingly acting as (and being perceived as) the legislator. Seyssel, while conceding that such laws had originated in particular acts of former kings, distinguished sharply between "the king's two bodies" and stressed the overriding obligation on the monarch to obey the law. What Church calls "exaggerated paternalism" opened the way for the belief that the king could alter or dispense with the law, with few exceptions. This was one of the most important ways in which the constitutional "equilibrium" of Seyssel


and the parlementaires broke down. Nevertheless, however understanding of the content changed, for jurists, "the supremacy of law," as a principle, was never abandoned or even doubted.[14]

Of all the constituent institutions, held together by law, the crown was indisputably the most important. Even for constitutionalists, the king was "emperor in his empire." The king's obligation to God, and to his people, was to supervise (veiller ) all aspects of the kingdom—this is what is meant by "paternal"—and to provide redress (trouver remède ) for its ills.

France, in constitutionalist eyes, was a congeries of separate corps , each with its own vested privileges, protected by law from violation by others, including the crown. The Parlement of Paris was the chief embodiment of the nation's corporatist character and the sole reliable defender of all the other corps . By the same token, the administrative autonomy of the French church—the Gallican liberties—was also the Parlement's special charge, to defend even, or perhaps especially, against the king, as attested in the fight over the Concordat of 1516, with which our study of religious opinion begins (chapter 5). The vulnerability of the French church to "verbal aggression" from Rome constituted, in time of peace, the greatest threat to France. The Gallican liberties therefore became the touchstone of French national autonomy, to be defended at the least suggestion of danger. At the same time, Gallicanism was a vehicle of French cultural nationalism on the offensive. The Gallican liberties were both the shield of the French nation and the sign of its superiority. Law, crown, Parlement, Gallican church, French independence and superiority—all these elements of constitutional thought, separately and together, were thought to have originated many centuries earlier, some as early as Charlemagne's time, and all at least by the fourteenth century. Analysis of the special relation of Parlement to each should enable us to enter into the political and professional mentalité of the parlementaires.

Law, Crown, and Parlement

The relationship of Parlement to the law(s) cannot be separated from its relationship to the crown, since royal action usually provoked Parlement's invocation of the law. The interrelations of the three constitute the essence of constitutionalism, and their joint product is justice. To dispense justice according to law is the most important function of the king and of the court.


In the words of Étienne Pasquier, the king is the fountain of justice that "usually flows to the people through the sovereign courts." The law prescribes the functions, rights, and duties of each component part of the constitution, starting with the crown; it establishes the proper relations amongst them. When this condition prevails, there is justice. A particular king is only a mortal individual; "the crown" is the king's second, permanent body. If a particular king violates the law, his acts are not legal as he has violated his trust.[15]

From this series of postulates stems the role of Parlement as both a partner of the king and a check on his power. In the eyes of Parlement, the court is, in essence, identical with the crown, pars corporis principis .[16] When Parlement speaks, it speaks for the true king; when it claims to limit a particular king, it does so by virtue of its position as the alter ego of the ongoing body. The "independence" of Parlement derives from this function, not from any independent source of authority. The insistence of constitutionalists like Seyssel on the independence of Parlement, therefore, is not a matter of checks and balances. It is "simply a declaration by the court of the rights of a given party according to law. The law provides limits on the king and the people respectively and the court merely applies the law."[17] This is the frein [rein or check] de justice in the scheme of Seyssel.

In order for Parlement to fulfill the functions of judicial check and preserver of the fundamental laws, its members had to be irremovable and possess the powers of registration and remonstrance.[18] The royal domain, which could not be alienated, was defined so as to include royal prerogatives as well as lands and revenues. Any attempt to transfer these to other persons could be blocked by the court's refusal to register, accompanied by remonstrances. For example, letters of nationalization could be issued by the king without verification because to issue them was an undoubted royal prerogative, but if the authority to issue such letters were transferred by a particular king to somebody else, this would constitute alienation of the royal domain; Parlement's defense of fundamental law would require its refusal. Étienne Pasquier, Bernard Du Haillan, René Choppin, and Charles Loyseau were among the theorists who emphasized the legal distinction between acts committed by a king in the exercise of his personal lifetime authority—whose validity ended with his death—and those that conformed to law and


were sanctioned by custom. Pasquier went so far as to claim that Parlement's right to censure the king was itself a fundamental law.[19] Without going that far, leading practitioners like premier président Christophe de Thou followed the same basic reasoning: royal edicts and ordinances required Parlement's registration if they were to carry the force of law.

As is well known, repeated refusals to register accompanied by remonstrances frequently marred relations of the court with the crown in the early modern period. Attempts by successive monarchs to eliminate the right of remonstrance were repudiated by Parlement. The result was that confrontation was a main theme of every reign from that of François I to that of Henri IV. Clashes involving religious policy are analyzed in parts 2 and 3. Letters ordering registration (lettres de jussion ) usually accompanied the king's response to repeated refusals. If the disagreement escalated to the point of deadlock the king would appear in person in Parlement and command registration in his presence. This last resort, traditionally called the lit de justice , has come to symbolize the ultimate power of the crown to dominate the court and even the law. An important recent study of this ceremony in our period interprets the lit de justice in a new way. Through extensive archival research and iconographic analysis, Sarah Hanley has revised the traditional account of both the origins and the nature of this peculiar French institution, claiming that in the medieval period the phrase lit de justice signified merely a set of ceremonial paraphernalia (scaffold, canopy, and pillows of blue velvet embroidered with gold fleurs de lis) rather than the occasion on which they were used, which she therefore designates a lit de justice assembly . This latter she believes originated in the reign of François I in "a peculiar mode of constitutional discourse," in the context of the rivalry between France and the emperor Charles V. Subsequently, antiquarian-historians projected the origins back into the Middle Ages and attributed to the occasions a special character that differentiated them from ordinary royal séances when the king visited the court. Thus was born "the legend of the lit de justice assembly in the ancient French constitution."[20]

Our concern here is with the "peculiar mode of constitutional discourse"


and what it reveals of the mentalité of the legend-makers with regard to the relations of the crown and Parlement. Not surprisingly, the parlementaires' conceptual vocabulary presents these in a way most favorable to Parlement in the actual historical situation in the sixteenth century, even if they thought they were reviving medieval tradition.

During most of the fifteenth century, with its many upheavals and royal displacements, the prerogatives and preeminence of the Paris court were in eclipse. But renovation of the Grand' Chambre of the Palais de Justice by Louis XII did much to revive attention. The Grand' Chambre had become "a stunning gilded chamber with finely carved oak ceilings, and featured walls and benches covered with blue velvet and golden fleurs de lis," thus shifting the visual focus from the thronal apparatus itself to the larger spatial complex containing it. In this setting "the combined pressures of Renaissance ceremonial splendor, Franco-Imperial rivalry and antiquarian historical visions brought into being the extraordinary, new lit de justice assembly ," which was soon invested with constitutional credentials.[21]

Hanley believes that the first ever lit de justice assembly constituted a posthumous trial of Charles, constable de Bourbon, for lèse-majesté committed by his defection to the Hapsburgs. His high rank and wide possessions endowed the proceedings with exceptional importance, encroaching on the power of the crown itself. The trial was spread over three days in July 1527 and the condemnation did not come until the third day. The setting was impressive, as described in the registers, with the king enthroned on a dais, under a canopy, atop a set of seven steps strewn with pillows to match the canopy, and surrounded by a great entourage of peers, lay and ecclesiastical, and the chancellor, as well as members of the court. François had granted Parlement's request to address the assembly at the outset and the fourth président, Charles Guillart, was an appropriate spokesman.

He hailed the king as "living and animate law," whose principal duty was to render justice, and took the opportunity to assert Parlement's prerogatives and to attack evocations to the Grand Conseil. Drawing on the history of Parlement to support his argument, he located its origins as a separate body in the decision of Philip IV, the Fair (1285-1314), to replace ad hoc itinerant judges, functioning irregularly, by a single court, stationary in the capital and staffed with appointed, professional members. It then developed its own procedures, which prevailed until the reign of Louis XI,


who violated them, in contrast to Louis XII, who scrupulously observed them. The heart of the speech was a strong attack on the two most offensive current violations, evocations and the sale of judicial offices by the crown, which violated the autonomy of Parlement with regard to its own composition.[22]

François I stormed out of the Grand' Chambre at the conclusion of Guillart's speech and issued an edict later in the day (in a different chamber) prohibiting Parlement from "interfering in matters of state" and commanding its immediate registration. Historians before Hanley interpreted the event as a radical assertion of Parlement's independent power on the one hand, and retaliatory humiliation of the court by the king, on the other. Dissenting, Hanley concludes that while he was ostensibly talking about general practices, Guillart was in fact attacking the procedural legitimacy of the present assembly. "It is Guillart's stony silence, not his rhetoric, which accounts for the precipitate action of the king in proroguing the Lit de justice," a silence implying that "a type of assembly called 'lit de justice ' was unknown in the annals of parlementary history." Only the royal séance was proper for a Grand' Chambre session attended by the king. While the court refused to recognize the lit de justice assembly—to the point of refusal to pronounce the words—Hanley postulates that the king determined to assert a distinction from other royal sessions and to establish the lit de justice assembly as a special tool to be used when the highest matters of state were in question. Because the disciplinary edict was registered outside the Grand' Chambre, and because the king departed before registration, Hanley believes that he was deliberately dissociating it from the lit de justice assembly. She thus denies both the identification of forced registration with the lit and its interpretation as a humiliation of Parlement. Rather, "one should envisage the first lit de justice assembly . . . as a magnificent ceremonial event . . . in the wake of Franco-Imperial rivalry and constitutional antiquarianism." Guillart was reacting against the unauthorized additions of personnel and the new ostentatious apparatus designed for the first time as a "royal throne," which isolated the king from all others.[23] It was a dramatic contrast to traditional references to Parlement as "the true tribunal and throne of the king," a metaphorical conception we will meet in the works of mainstream parlementaires throughout the century. An added sore point was the elevation of the hated chancellor, Antoine Duprat, seated


at the foot of the royal dais in a chair decorated to match the thronal paraphernalia, so that he appeared to be the chief representative of royal justice rather than the red-robed présidents of the Parlement, seated below.

Other scholars concerned with constitutional controversy in the 1520s are troubled by elements of Hanley's thesis: most important is the assertion that the July 1526 séance was an innovation by François I for the purpose of differentiating constitutional from routine cases, and the corollary that all previous sessions described as lits lacked such theoretical, political significance, the phrase merely designating the ceremonial paraphernalia. In the opinion of R. J. Knecht, she thus transforms her hypothesis into historical fact. He then elaborates what seems the most serious reservation—at least for the question of parlementaire argument—on the thrust of Guillart's speech: "She overlooks completely the sequence of events—political, constitutional and religious—which immediately preceded the lit de justice under discussion." What happened in the Grand' Chambre on July 24, 1527, only makes sense if all the contemporary circumstances are taken into account. "Guillart's speech, the King's anger and the contents of the edict are immediately intelligible if they are seen as the culmination of a serious jurisdictional conflict between the crown and the Parlement ."

Knecht's analysis of the court's conflicts of 1525-26 with Louise de Savoie, regent for her son in prison in Spain, matches that in chapter 6 of the present work. Opposition to the Concordat, leniency toward heresy, and the use of evocations to the Grand Conseil to cut down Parlement's prerogatives were all involved. As the court had exploited the king's absence to assert its grievances, so after his return, François was taking the opportunity to put it in its place, according to royal theory, that is, confined to application of the law among subjects, ex cluding "matters of state."[24]

Hanley continues the development of her thesis in her analysis of the sessions of December 1527 and January 1537, which she considers the second and third "lit de justice assemblies," and cites speeches of premier président Jean de Selve and avocat général Jacques Cappel.[25] In my opinion she is correct in interpreting the strategy of the Parisians: to assert their superiority and uniqueness in order to claim a unique constitutional role. Their maneuvers, both inside and outside the Grand' Chambre, were aimed at attaining official recognition as coguardian with the king of the French


constitution. She notes the "resonance" of the royal and parlementaire positions; both are constitutional, recognizing the distinction between the king's "two bodies" and the role of consent—quod omnes angit —but the procedural aspects diverge. In her view, the crown was the innovating force and the lit de justice assembly was its new instrument. The parlementaires were of necessity conservative; the only way to maintain the position of their court as the "true throne" of the king, pars corporis principis , was to ignore royal innovations and insist on undeviating observance of past procedure.

The apprehension of the magistrates is evident in a move made at the start of the reign of Henri II; they engaged a clerk to keep a record of the court's proceedings separate from that of Jean Du Tiller, the official clerk who took his orders from the crown. In 1548, Henri II asked Du Tillet to research the history of the special assemblies convened by his predecessors. Du Tillet's orders read, in part,

you are to copy faithfully from those registers extracts of sources which verify [all great and solemn assemblies], especially those which mention specifically the quality of the assembly and whether or not it was solemn, [that is] in the form of Estates or Entrées of previous kings into their cities, or convocations of the lit de justice [assembly] or other solemn assemblies where rank and order was observed and assigned to each.

The clerk was to turn over the results of his research to Chancellor François Olivier. Du Tiller concluded that, starting in the fourteenth century, there existed two traditional types of parlementaire assemblies attended by the king, royal séances, which were "honorary," and lit de justice assemblies. There had been twelve of the latter, all held in the Grand' Chambre of the Paris court, and with one exception they dealt with constitutional issues, either the trial of a peer (as in 1527) or, for the purpose of obtaining advice on matters of state (as in 1537). Thus Hanley adduces the establishment of the concept of two categories of royal-parlementaire assemblies as well as "the legend of the lit de justice assembly in the ancient French constitution," which would persist throughout the ancien régime, with considerable influence.[26]


Henri II first attended a session of the Paris Parlement on July 2, 1549. Drawing on materials provided by Du Tillet, Chancellor Olivier outlined a view of the history of Parlement that featured a "separation of powers" in the fourteenth century:

[King Jean II (1350-64)] decided to limit the cognizance and jurisdiction of Parlement. He ordained that it would rule thenceforth only on cases of the peers of France . . . and of persons [whose cases fell in the sphere of the royal domain]. . . . From that time on there were no affairs of state treated in the court except by special commission .

The lit de justice assembly in the Grand' Chambre was the formalization of the special commission.[27]

Premier président Pierre Lizet took direct issue with the chancellor, refusing to accept the Du Tillet-Olivier version of Parlement's history. He broke the former silence of Parlement's spokesmen by uttering the phrase lit de justice , but in a special—and quite different—way. After congratulating the king on his decision to follow his predecessors in visiting the court—he welcomed him

to this sovereign consistory, which is your humble and obedient court of Parlement, in order to sit in your true royal throne. When great assemblies or convocations of the peers of France were held, your predecessors called it [the court of Parlement] the lit de justice , indicating by that reference the presence of both the royal Majesty and their subjects.

Otherwise put, the lit de justice was a metaphor for the Parlement, with the king and the princes joined with the court in the Grand' Chambre.[28] Thus, Hanley states, after refusing for two decades to recognize the institution, Parlement accepted it as a mere figure of speech describing their own most solemn of traditional royal séances.

While it was entirely in character for mainstream leaders like Charles Guillart and Jean de Selve to hold very traditional views, the eloquent expression of these by Pierre Lizet and Jacques Cappel is striking testimony to the strength of constitutionalism in the Parlement. Lizet was a Romanist, and as we shall see, an ultra on the religious spectrum; Cappel was a literary


man in a family with a strong unorthodox streak, and some members of his family became Protestants; but both rallied wholeheartedly to the defense of Parlement's preeminence and prerogatives.

The significance of relations between the crown and the court, and of changes in those relations is strikingly revealed in the role played by Parlement in processions marking royal funerals and entries into the capital. Ralph Giesey's distinguished work on the funeral ceremony initiated recent scholarly attention to this kind of ritual as an indication of values and social thought. Lawrence Bryant has since produced another relevant study showing how the royal entry, formerly a municipal occasion wherein the guilds and city officials obtained a renewal of their privileges, was transformed into a national occasion, in which Parisians came to represent all the king's subjects in declaring their loyalty and obedience.[29] The shift came while Paris was under the domination of the English after the devastating Treaty of Troyes (1420). In 1431, at the entry of the English king, Henry VI, Parlement, and the Paris clergy as a corps , joined the procession of urban corps that met the king outside the city for the first time. (In 1422, at the funeral of Charles VI, the four présidents of Parlement had carried the pall, in their red robes—showing that their authority did not depend on the particular king, now dead, but on the immortal king—marching between the king and the citizens.) In earlier reigns the clergy had waited at Notre-Dame and the Parlement at the Palais de Justice to greet the king; the procession was confined to the officers and guilds of the municipality. The new practice became the norm, however, and it symbolized the eclipse of the business community and the ascendancy of the Parlement as the major authority in the capital.[30]

Bryant believes that Parlement was prompted to undertake this new initiative because the English king and his council had responded unsatisfactorily to earlier requests by the magistrates for payment of back salaries and confirmation in office, promising to remedy the situation when Henry


VI came to Paris. The Parlement thus adapted for its own purposes the age-old practice of the municipality. In so doing it arrogated to itself the ordering of the procession, giving magistrates the most prominent position, emphasized by their red costume, and by having the fur hat of the premier président carried in a place of honor. Bryant says, "The English quid bound the top echelon of the French administration to the English succession, while the Parlement's quo gained for the court judicial power over the corps of Paris and an acknowledged special position in the French government."[31]

In refusing to participate in the entry of Anne de Beaujeu as regent for the dauphin, later Charles VIII, in 1483, Parlement stated boldly its claim, mentioned above, to represent the very person of the king. The same is true of the remonstrance of 1489, in which the court is described as "the sovereign justice of the realm, the true throne, authority, magnificence, and majesty of the king himself." The key function of justice in the French constitution was further underlined by the position of the chancellor and the seal, which had come to preempt the ceremonial place formerly occupied by the sword in the royal part of the procession. Beginning with 1484, "the juridical basis of [royal] authority was given major billing: the parlementaires asserting their superiority in the urban cortège and their administrative head performing the same function in the royal one." In the 1571 entry of Charles IX, the chancellor, Michel de L'Hôpital, was out of favor, and in his absence Parlement sought to have the seal carried before the court, "in which no one speaks but you alone." The king refused, however. What might seem a minor matter of ceremony, Bryant says, was in fact "a maneuver whose success would have had considerable constitutional importance," in that agreement to Parlement's assertion to substitute itself for the chancellor would for all practical purposes have acknowledged it as the legislative body of the kingdom.[32]

The parlementaires of the fifteenth and sixteenth centuries had manifested in their order of march "a metaphysics of government favorable to the parlementaires," in Bryant's felicitous phrase. Though they were blocked from carrying it further in 1571, one last manifestation occurred at the start of the reign of Louis XIII. His 1610 entry, after the coronation, was attended only by the municipality; not until after he was declared of age in 1614, with the Parlement participating, was he greeted as truly king.


The realities of power as between the court and the crown would soon change dramatically, of course, with the advent of Richelieu, and the Fronde was unable to reverse the trend. Nevertheless, as late as the 1780s, Parlement was still claiming to represent liberty and the people's rights against an encroaching crown, although by then in fact it represented primarily its own privileges.[33]

One result of the double relationship of Parlement to the crown, as partner but also as frein , was that the most ardent defenders and eloquent spokesmen of the monarchy as well as its harshest critics were both to be found amongst the parlementaires; frequently they were the same parlementaires, fulfilling opposing functions. We have seen this seeming paradox in the writings of Seyssel. Premier président Jean de Selve was a passionate royalist who vigorously protested royal evocations and who spoke for the court in its conflict with Louise de Savoie during her regency; Thibault Baillet spoke for the crown against the constable de Bourbon, and François I was said to have stood in his presence, but he opposed the same king on the Concordat and on the appointment of laymen to clerical seats on the court; Charles Guillart resigned his presidency in protest against venality, after rendering signal service to the crown and earning the reputation of bon président . The outstanding spokesmen of our last generation, Jacques-Auguste de Thou and Achille de Harlay, were at once Henri IV's strongest supporters and the leaders of resistance to registration of the Trent decrees, which he was pressing to the utmost of his powers.

These are but a few outstanding examples. Analysis shows that the paradox is only apparent; the castigations and reproaches were of particular mortal kings; Parlement's loyalty was to the immortal body. When the two bodies were united, légiste was inevitably also royaliste .

A Corporatist Society

French constitutionalists of the sixteenth century, beginning with Claude de Seyssel, saw the nation as a hierarchical complex of mutually dependent structures, corporations, estates, traditional groups, each of which had its own place established by custom, with concomitant rights and privileges sanctioned by customary law. Taken all together they constituted "the people"; the people plus the crown formed a mystical unity, usually conceived metaphorically as a body, with a special place under God, the kingdom of France. The aggregate of rights of the people were included in la police ,


one of Seyssel's three freins on royal power. The well-being of the kingdom and of every component part depended on each functioning in its own sphere and none encroaching on others. We have already seen how the monarch fits into this scheme, "emperor in his empire," and limited by law, divine, fundamental, and customary, to his legal functions. It was an axiom of constitutional thought that any violation of the traditional equilibrium risked the disintegration of the entire system.[34]

The overall configuration of such a society, basically medieval, contrasts sharply with modern societies, in which masses of individuals stand in the same relation to the sovereign power ("subjects" in the absolute monarchies of the seventeenth century, "citizens" in centralized nation-states of our own time) regardless of socioeconomic, educational, or other distinctions between them. Since its triumph in the seventeenth century, much has been written about the modern state, and an atypical robin , Jean Bodin, was influential among the formulators of its definition.[35] The chaos of the civil war made recourse to increased royal power seem the obvious remedy to Frenchmen. The appearance of Bodin's République (1576) coincided with the dawning, but reluctant, recognition of the failure of the constitutional system to assure an ordered society. In 1576, the latest in a series of truces found Henri III, last of the Valois kings, helpless to control not only a rebellious faction (the Holy League) but even his own brother, heir-presumptive to the throne, François, duc d'Alençon, and his eventual successor, Henri de Navarre, who was as yet only second in line. In the spring of 1576 Navarre escaped from court (where he had been under a kind of house arrest since the Massacre of St. Bartholomew, four years earlier) and reassembled the Huguenot armies. The king was obliged to make concessions both to the League and to Alençon. Twenty-two years would elapse before a French king, Henri IV, would again be really "emperor in his empire," nine of them after his formal accession to the throne.

Yet the mainstream parlementaires clung to the earlier view of society as the norm and insisted that the unraveling of the system, since the outbreak of civil war in 1562, was both exceptional and temporary, to be blamed on the violations of the natural order by the constituent parts: nobles


taking arms against the king; cities rebelling against and manipulating the crown; clerics exploiting national troubles to further their own ambition or, in other cases, to exalt the papacy at the expense of the Gallican church; the "people" abandoning their obedience and seeking to overthrow authority—even the king, in the case of Henri III who, defaulting in his duty and exhibiting "excesses" beyond the moral and legal limits, appeared a tyrant, notably in the assassination of the Guise brothers.

The persistence of diehard constitutionalism is partly attributable to the hold of the fundamental laws in légiste mentalité . Rather than fade into antiquarianism, a scenario one might imagine in the day of emerging "divine right," insistence on both the Salic law and the inalienability of the domain grew ever more shrill in the 1590s, as the armies of Spain and the League threatened to dismember France. Simultaneously, the prospect loomed that the infanta of Spain—daughter of Philip II and granddaughter of Henri II of France through her mother, Élisabeth de Valois—would be imposed as sovereign by an illegal body, calling itself an Estates General, which had already set aside the Salic law.

If the fundamental laws were at stake in the most dramatic events, involving foreign policy, the coutume was no less important in maintaining the constitutional equilibrium in the domestic sphere, for the concrete substance of la police was embedded in customary law. The magistrates were responsible for the maintenance of customary law as le droit commun , as against Roman law (which tended to exalt the ruler). The supremacy claimed for customary law was an expression of the belief that law reflects social values and behavior, and that its own native law is best for each nation.[36] Légistes also distinguished sharply between royal ordinances and the coutume , characterizing the former as mere regulatory power like that possessed by every baron in his own jurisdiction. Even as the lines between ordinance and coutume became blurred, with the former tending to dominate in proportion to the enlarged sphere of the crown, important jurists such as Du Haillan and Le Caron continued to maintain the separation.[37]

Corporatist principles were firmly embedded in the Paris coutume . To Parlement's magistrates, the vast complex that made up the French nation was a pluralistic network of personal, feudal, ecclesiastical, and professional relations. Donald Kelley points out that all facets of the complex were of interest to Pithou, Pasquier, and others in the "historical school of law,"


even if their motivation was to reduce the rich variety to uniformity under the crown.[38] These writers were important, but it was Christophe de Thou, premier président of Parlement in the crucial years, 1562-82, who made the greatest single contribution to the development of le droit commun coutumier , in his leadership of the redaction, completed in 1580. In contrast to theorists, writing in the study, de Thou was active on the bench, obliged first to learn and then to choose among the multiplicity of precedents and practices, often mutually contradictory and always encrusted with the cake of custom. The task was one of synthesis and reconciliation: "un travail . . . aboutissant à une généralisation par voie de synthèse, n'ayant rien de commun avec une unification de droit par voie d'autorité."[39] To create out of the many a one that would hold together without violating the integrity of the component parts, this was the achievement of a légiste mentalité that was corporatiste rather than monolithic.

The Parlementaire View of Parlement

According to président de Lavie, whose treatise Des corps politiques et leurs gouvernements (Lyon, 1766) Olivier-Martin cites as the best expression of the corporatist conception of France, the defining characteristic of a true corps is that it combines private interests with public, the latter being primary: "'Par leur moyen, la religion prospère, la justice s'administre, la police se règle, les finances se perçoivent, l'enfance est éduquée.' Most important are the corps of magistrates because their jurisdiction is general whereas all others are limited to particular matters."[40]

For the parlementaires, the corporate institution par excellence was the Parlement itself. Guardian of the laws, Parlement alone could apply the check of justice to the crown and maintain the constitutional equilibrium: Parlement alone could carry the tradition from the past into the future in spite of disruptive circumstances that threatened repeatedly to turn everything upside down during the civil wars, and especially in the decade between the mid-1580s and the mid-1590s. It alone defended the Gallican church at the height of the League and blocked the loss of French autonomy in 1593. The Parlement's view of the court was at the heart of parlementaire mentalité , both political and professional.

At the outset of François I's reign, parlementaire concern was directed chiefly to its composition as a corps mixte , that is, half lay and half clerical.


Le roi chevalier more than lived up to his soubriquet in the insouciance, even flippancy, with which he broke the rules, tossed out promises to reform, failed to carry them out, and violated the same procedures again, at the very moment of promising to reform—again. Remonstrances on the provision of laymen to ecclesiastical seats and on royal dispensation from celibacy and clerical duties for clerical conseillers already in office outnumber all others. By 1521, Parlement's remonstrances noted that there were only eight clerics among the conseillers of the Chambre des Enquêtes instead of the twenty-four decreed by precedent, and in 1544, there were only nine clerics in all the Chambres des Enquêtes combined. Demands for favors by persons who had some claim on the king, ranging from members of his immediate family to personal servants, was one cause. But Parlement itself also compounded the abuse, by obliging its members in consideration of their services. By the 1540s, Parlement was becoming for many a steppingstone either to a bishopric or to a more lucrative lay office, and there was a constant turnover as a result, as Mark Cummings notes. François de Saint-André was among the best-known parlementaires who played this game. The scandal in presidencies was particularly flagrant, the imbalance between lay and clerical being especially conspicuous among their small numbers; at times there were no genuine ecclesiastical présidents whatever in some chambers.[41]

In the long struggle with François I, Parlement was often in the humiliating position of having to register violations and issue remonstrances on this subject in the same hour. Such was the case on April 8, 1546, with the submission of the oft-promised judicial reform edict—thirty-one years late—along with dispensations for existing clerical conseillers to marry, "ce qui résume la moralité du règne . . . avec une singulière éloquence," remarks Édouard Maugis.[42]

Security in office was a continuing concern, involving methods of acquisition and tenure alike. Here too the reign of François I was a time of special tension because the king's bon plaisir and his financial needs affected the membership and procedures of the court in a number of ways. The Parlement naturally preferred the election process but had long accepted a compromise by which the king selected from names it put before him. We have noted the restoration of election in the late fifteenth century as a


means of winning the court's support for the restored royal power. The new partnership with the crown enjoyed by Parlement as a result increased the desirability of judicial office, with the consequence that Parlement sought ways to foster an individual's control over his office and enable him to pass it on to a successor of his own choosing. The device of resignatio in favorem served the purpose and introduced the principle of heredity into the system. By the third quarter of the sixteenth century it had triumphed to the point that the third generation of certain parlementaire dynasties was already exercising particular offices in the sovereign courts, with the confidence of passing them on. Another factor was, of course, venality. Offices were valuable; those who possessed them wished to profit as much as possible from the transaction of passing them on, while the purchaser looked upon the office at least in part as an investment. Thus private venality took hold.[43]

However, Parlement was one of the major instruments of government, and no king could afford to lose control of such valuable assets. The sale of offices rapidly became the most successful means of raising revenue in the reign of François I. Royal venality became established alongside private venality and came to be the most usual form of acquisition. The office belonged to the king; a kind of rent to be paid with each transfer was finally regularized (la paulette ) in 1604. Until then, the new possessor was not secure in the office until forty days had passed during which the (former) possessor was still alive.

Although venality was not without some redeeming features when combined with heredity, as Giesey shows, there were nevertheless some unfortunate effects on the nature of the court and the mentalité of its members. One was the multiplication of subtle maneuvers and evasive formulae masking the ulterior motives of private interest, which seemed to champions of the old morality evidence of hypocrisy, chicanerie, and general moral corruption, a shameful contrast to the public-spirited service of "the good old days." Another was a widening gap between the upper levels of the robe, where the most successful families had established their dynasties, and those who were less successful (though some of their members held comparable offices). The gap between le gratin and the rest was not new, but it was greatly exacerbated and would have historically fateful effects late in the century.[44]


A more positive effect was Parlement's increased sensitivity to the matter of personal, intellectual, and professional qualifications for office. Fearing that royal sales of office would swamp their ranks with moneyed men useful to the crown but without suffisance for their judicial responsibility, Parlement began holding oral examinations to determine the suitability of all would-be purchasers. The first such interrogation took place in 1523, as an immediate response to the quantum jump in creation of new venal offices in 1522. Nicolas Hurault, a layman, named by the king as a clerical conseiller, was summoned to a plenary session and presented with "an old Digest," from which he read and interpreted parts of ten laws, arguing the fine points with members of the court. The gens du roi , the legal staff of the crown, were particularly apprehensive and demanded that candidates pass a written examination as well and that they be of suitable age, as well as having "grant savoir et vertu, et que ceux qui sont reçus sans être expérimentés prennent la peine d'apprendre."[45] In many cases however, these rules were modified in consideration of services rendered by other members of their families. The examinations were often perfunctory, or rushed through at the end of a séance. In the case of really prominent families, both the professional and the age requirements were overlooked entirely. These acts of hypocrisy and complaisance , occasionally accompanied by fulsome tributes to the suffisance of a young man by mere osmosis, called forth the scorn of self-appointed parlementaire critics like Pierre de L'Estoile, in the last of our generations. Paradoxically, some of Parlement's greatest representatives were beneficiaries of such indulgence.[46] (Students of English history will remember that William Pitt was elected to Parliament from a rotten borough.)

Qualifications, acquisition, tenure, these conditions of membership were natural parlementaire concerns. Scarcely less vital was the defense of Parlement's various kinds of jurisdiction from erosion or usurpation by other courts. Everybody recognized the king's right to create courts. Parlement's case, therefore, was necessarily based on the argument that the king lessened his own power every time he substituted any other jurisdiction for that of the Parlement, his alter ego. Much of the argument depended on precedent—the antiquity, continuity, and intimate relationship between Parlement and the crown, which no other court could match. In a society that


idealized the past with an almost religious awe, no stronger case could be made.

As we have seen in Guillart's speech of July 1527 the principal threat to Parlement's judicial supremacy arose from the king's "evocation" of important cases to the Grand Conseil, a much smaller and less independent body. A king had no trouble imposing his will on its members, who were his creatures. Though powerful, this conseil lacked a corporate identity. François I transferred some important ecclesiastical establishments (including the archbishopric of Sens and the abbey of St-Benoît-sur-Loire) from the traditional jurisdiction of Parlement to that of the Grand Conseil, in the 1520s, in order to facilitate appointments that he knew Parlement would not accept. This was a corollary to the quarrel over the Concordat. The Parlement adroitly chose the period of Louise de Savoie's regency (during the king's imprisonment in Spain in 1525) as the opportune moment to push the case against evocation. Pierre Lizet, then avocat du roi, declared the Parlement to be

the first, principal and preeminent [court] in this kingdom, in which the kings have established their seat and solemn sceptre. It is the court of the princes of the blood . . . and represents . . . the res publica under command . . . of the king our sovereign lord, who thus established and ordained it by a great and mature counsel to be the principal refuge of the justice of this kingdom.

This anticipation of his 1549 reply to Olivier shows that Lizet's view of the court did not originate on that later occasion. He also invoked the authority of Plutarch to claim for Parlement the representation of the few, to supplement the one (the monarch), and the many (the people), essential to a perfectly balanced constitution.

By midcentury the constitutional debate was focused on the problem delineated in the exchange between Olivier and Lizet: was Parlement restricted to judicial functions and excluded from "matters of state"—unless the king called on it in an advisory and ad hoc capacity only—or, was Parlement the crown's essential partner, without whose active cooperation no royal act was constitutionally valid?

In the crisis generation, the struggle was complicated by some new factors. Charles IX was a minor, and the regent, his mother Catherine de Médicis, was beset by two rival factions, each willing to resort to force and risk destruction of the national fabric in order to prevail. Furthermore, the weakened crown's spokesman was an unusually able chancellor, Michel de


L'Hôpital, who had spent seventeen unhappy years in Parlement. His former colleagues fully reciprocated his lack of sympathy and his dislike.[47]

The chancellor's task was to strengthen the royal government in any way possible, and he needed to exploit any device that would damage its opponents. If he could co-opt one of their weapons, all the better. One of his first decisions was to carry out the proposal to convoke the Estates General. This entailed considerable risk. To be sure, those who had been foremost in demanding it, in the reign of François II, dominated by the Guises, were partisans of the Bourbons, the leaders mostly Protestant, who could be expected to welcome the policies of the crown, but in the changed circumstances of a minor king with a foreign regent whose ideas were considered "un-French," a meeting of the Estates appealed to the Catholic faction as a possible means of obstruction. Like other institutions (and theories), the Estates General were able to serve the purposes of one faction at one time, and of its enemies at another, in different phases of the religious wars.

With a struggle against Parlement a certainty, L'Hôpital sought to counter the court by reinforcing the institutional prestige of the Estates. He argued that whereas the name Parlement had originally applied to representatives of all the king's subjects, convoked by him to seek advice (as it still did in the British Isles), in France private matters had been detached from general, public matters, and the former delegated to the Parlement, a permanent court composed of professional judges. Since which time subjects summoned for "matters of state reserved for the king's cognizance" have been called representatives of "the Estates." We recognize the elaboration of an argument advanced by earlier royal spokesmen.

Gerald Denault demonstrates that no single position on the relations between the Parlement and the Estates General prevailed during the sixteenth century. Owing to the presumption of a common origin in the Frankish assemblies, some individuals cited Parlement's continuous operation to hold that the court represented the Estates between sessions; others claimed that the court had replaced the Estates entirely. Within parlementaire circles, it was generally believed that their court was the sole true descendant of the original assemblies, whose unbroken continuity and sedentary nature guaranteed it as the central locus of justice and law in France.[48]


Étienne Pasquier was working on the second book of his Recherches de la France in the early 1560s, the very years that hostility between the chancellor and the Parlement was most acute. In Pasquier's opinion, Parlement had really enabled the kings of France to acquire mastery of the kingdom and subsequently to rule it well through continuity of institutions and counsel. The "assembly" of the Parlement, an accretion of Gallic, Merovingian, and Carolingian institutions, was the "bearer of justice" and to it were submitted disputes between the king and his subjects.

It is a truly great thing, and worthy of the majesty of a prince, that our Kings (to whom God has given all absolute power) have from the time of their ancient institution wanted to subject their wills to the forms prescribed by law; . . . and it is again a thing of wonder, that as soon as any ordinance is published and verified in the Parlement, the French people all at once obey it without a murmur as if such a body were the link that connected the obedience of the subjects to the commands of their prince.[49]

Parlement was the successor of the original assembly and only if the king ruled through it could his acts be legal, according to Pasquier, who placed the origin of the Estates General in the fourteenth century only and that of the Grand Conseil in the fifteenth. This interpretation was opposed by those, like the Huguenot apologists, who exalted the Estates General and regarded the Parlement as a mere special creation. Le Caron, an effective mainstream spokesman for the latest of our generations, denied Parlement's authority as the continuous representative of the (intermittent) Estates General, to modify royal ordinances, while conceding that it sometimes did so in particular circumstances.[50]

In the grave crisis of 1588, with Paris leading a national revolt against the crown and the last Valois king, Henri III, trying—in vain—to rally the country, a session of the Estates General was held, and parlementaires were obliged to recognize some kind of structural constitutional relationship between the Estates and the court. Guillaume Du Vair (whom we shall meet at length in the latest generation) took the position that Parlement repre-


sented the Estates when they were not in session, referring to the court as "an abridgement," which had evolved because of the difficulties—of time and expense—in convoking the Estates. Nicolas Quélain took the stronger line: in the course of time Parlement had become a replacement for the Estates, partly owing to those difficulties, but mostly because of continuity and professional competence. Denault points out that these newer ideas developed in the reigns of weak kings. The basic, ongoing view remained that of Pasquier, that Parlement was the heir of the original Frankish assemblies, product of "no history but its own," in the words of Guillaume Budé in the earliest generation, echoed by Bernard de la Roche-Flavin a century later.[51]

In the euphoric period after the restoration of royal power, when premier président Achille de Harlay remarked to Henri IV that God had given justice to the Parlement, for which it was responsible to Him, the king retorted that God had given justice to the king, who deputed it, within limits set by himself, to the magistrates. The royal claim prevailed, of course, and grew ever stronger in the seventeenth century. The Estates General were fading into historical obscurity, as the record of their last meeting in 1614 makes very clear. In desperate circumstances an attempt to revive the institution 175 years later failed utterly. Under the leadership of the delegates of the Third Estate, a National Constituent Assembly emerged instead as the first fruit of the Revolution.[52]

Inevitably, convoking the Estates in the middle of civil war presented even more than the usual problems. Michel de L'Hôpital did not risk doing so in the 1560s. When a different method was needed to bypass the hostile Parlement of Paris, controversial royal edicts were sent to other courts to be registered. Recourse to lesser courts as a way of evading Parlement's jurisdiction was not a new royal tactic, but the Rouen lit de justice assembly of August 1563, in which Charles IX was declared of age, set off a major crisis between king and Parlement. Conflicting views of the constitution were entangled with topical political conflicts in such a way that it seems best to discuss them in the immediate historical context.


The Liberties of the Gallican Church

With the exception of the defense of the Salic law in the 1590s prior to the conversion of Henri de Navarre, no issue could compete with the Gallican liberties in arousing parlementaire passions. Despite differences between "episcopal" and "royal" variations of Gallican theory, there had been a consensus for generations that only doctrinal matters lay in papal jurisdiction, while administrative control of the church of France lay in France. Moreover, both the distinction between the two aspects and the autonomy of the national church were assumed to have existed from the earliest times. Indeed, in apostolic times, the church was believed to have been a collection of discrete autonomous institutions, and the pope (bishop of Rome) merely primus inter pares. In the course of the centuries, the imperial papacy had gradually succeeded in dominating others, the French church alone having been "restored," starting in the reign of Louis IX and culminating in the Pragmatic Sanction of 1438. As a result, it was a model for the "restoration" of the rest. The Gallican liberties were parallel to the fundamental laws as uniquely French institutions, and the Parlement was the guardian of both.[53]

The basic tenets were, first, that popes could not command anything whatever concerning temporal matters in the realm of the Most Christian King—if they did, no subjects of the king, even members of the clergy, should obey them; second, that although the pope is recognized as sovereign in spiritual matters, nevertheless, "in France this power is limited by the canons and rules of the ancient councils of the church that have been accepted in this kingdom. " This formulation, featured in many treatises in the latter decades of the century, is found earlier in the works of the royal archivist, Jean Du Tillet, whose large staff compiled a formidable collection of royal and institutional records, that could provide knowledge of precedent and "represent the past as in a mirror . . . in order to make use of a thousand years of experience." The end result was the impressive collection of Recueils des Roys de France .[54]


A reinterpretation of the European past was required to support this position. The Romanist view of the pope's powers as transferred from the Roman emperor was demolished by Charles Du Moulin in his Conseil sur le faict du Concile de Trente (1564). In its stead he postulated a "translation of empire," in a chain of which Charlemagne was the most important link, from the Roman emperor to the king of France, who thus had supervisory power over the church in his kingdom. At this point disagreement arose among Frenchmen: was the church directly under royal control—as royalist Gallicans held—or, was the crown confined to a "supervisory" role, with the real administration in the hands of French bishops? The latter view was held by churchmen prior to the Concordat (and by some later as well) and by the mainstream parlementaires. This episcopal-parlementaire version of Gallican theory was reasserted and strengthened in the battle over the Concordat of Bologna.[55] Parlement's relation to the church, its position on ecclesiastical appointments, and its claim that no general law was valid without its registration were all involved. The king (François I) was able to impose his will but not to persuade the Parlement to his view. A backlog of mutual recriminations over these issues, built up in the 1520s, vitally affected relations between the crown and Parlement in the decades ahead, over a new central issue, religious dissent and heresy. Until the mid-1520s, however, François I was the protector and patron of the "new learning" whose leaders were intent on reform of the church from within. It is important for our purposes to understand that within the Catholic fold there arose crucial differences between the crown and the court, which later became (temporarily) obscured by the challenges of reformers who could not be contained within the church. The belief that religion was a necessary reinforcement of national unity, a sort of cement of the state—un roi, une loi, une foi —was a fundamental conviction that proved a stumbling block to any movement that would lead to a pluralistic religious settlement. We shall see that the struggle over the Concordat was a prologue to the reaction of the Parlement at the first appearance of serious religious dissent.

The Gallican issue was never long out of sight during the period of this study, the better part of a century. Like a powerful river that runs for considerable stretches underground, invisible, it was easily ignored, only to surface in periods of tension with varying degrees of force. If the tension involved conflict between the crown and the papacy, or among the French


prelates, it could explode violently, to disrupt or even destroy apparently stable policies and institutions, as a rampaging river tears up the landscape. Guardian and defender of the Gallican liberties, Parlement was always affected. In quiet periods the court was sensitive even to the shadow of ecclesiastical encroachment on secular jurisdiction. The weapon on which royal, parlementaire, and national jurisdiction chiefly depended was l'appel comme d'abus , which allowed any Frenchman to appeal to appropriate national (secular) authority against a judgment of ecclesiastical authorities, be it the local church court, the bishop, a Church council or decree not "received in this kingdom," or the pope himself. One of the root causes of French resistance to the Trent decrees was that they would have eliminated this valuable recourse.[56]

Authorization and official reception in the kingdom of papal legates, nuncios, and other agents had to be registered by the Parlement of Paris, which often caused an uproar and sometimes outright rejection, especially during an aggressive pontificate. When the crown pursued policies that involved papal cooperation, as in the crisis over the Concordat (1517-19; chapter 5) and over the appointment of Chancellor Duprat as abbot of St-Benoit in violation of the rights of the monks who had made another choice (1525-26; chapter 6), Parlement would sound the Gallican alarm, much in the way of the 1790s revolutionary cry, La patrie en danger! In 1551, there was an aborted Gallican crisis, when Henri II threatened to call a "national [church] council" in protest against Julius III's convocation of the second session of the Council of Trent—counter to French interests. The flow of money from France to Rome was arrested and the ultimate step—"the withdrawal of obedience"—was threatened, though not carried out.

Beginning in 1563, the Counter-Reformation went into high gear. The papacy took the offensive by condemning eight French bishops and the Calvinist queen of Navarre for heresy and summoning them before the Inquisition, thus greatly encouraging the ultramontane party in France. In this situation king and Parlement stood together and the ultras were defeated. In that same year, however, Parlement lost an important battle (the issue was the proclamation of his majority by Charles IX, who was about to be fourteen years old) when it was definitively forbidden to "interfere in matters of state." This, of course, included foreign policy, with which the Gallican liberties were inevitably connected (chapter 10).

Papal audacity reached its height when Sixtus V presumed to declare


Henri de Navarre ineligible for the crown (1585; chapter 11). During the final phase of the wars of religion—more precisely, the civil war between the Catholic League and the supporters of Navarre (1588-94; chapters 11-14)—Parlement, like the country, was sharply divided and conflict was endemic, though not always at fever pitch. As early as 1564 the core issue was the refusal of both crown and Parlement to accept (register and publish) the decrees of the Council of Trent, and this was the Gordian knot that even Henri IV could not cut. He could end the war, bribe or conciliate the leaders of the League, make peace with Spain, and free France of foreign troops, even force the parlements to register the Edict of Nantes (all in 1598), but he could only ignore, delay, evade, or prevaricate in the face of intensive and increasing pressures by several popes to force French acceptance of the decrees. The papacy lost in the long run, and the crown and Parlement both had a hand in the victory, but never were "allies" less united; indeed, their explicit positions were diametrically opposed, the king pushing compromise, because he needed papal cooperation in other areas, and the court adamant in opposition. The courageous speech of président Jacques-Auguste de Thou, defiant to the king's face, as he explicitly reiterated the court's adherence to the Pragmatic Sanction of Bourges, is the ultimate expression of Parlement's stubborn defense of the Gallican liberties (see epilogue, 1600-1605).

"Juridical Nationalism"

Parlement's role as standard-bearer of Gallicanism dates from the Pragmatic Sanction (1438) and it was never lowered. For the French kings, however, as Strayer's seminal essay demonstrates, the roots of Gallicanism as an expression of French "nationalism"—in the premodern sense—lie deep in the Middle Ages, even before the dramatic conflict between Boniface VIII and Philip IV (the Fair) at the turn of the fourteenth century.

The most Christian King ruled a chosen people, who lived in a kingdom which was the principal support and eternal defender of the faith. Loyalty to France was bound to be loyalty to the Church, even if the Church occasionally doubted it. . . .

In France the religion of nationalism grew early and easily out of the religion of monarchy, and although neither the degree of French unity nor the depth of French nationalism should be exaggerated, both were strong enough to give France a clear advantage over her neighbors for many centuries.[57]


Myriam Yardeni uses the felicitous phrase conscience nationale to describe this protonationalism, which manifested itself in other, non-Gallican, contexts, among which threats of (or actual) foreign invasion, naturally figured.[58] When François I was defeated at Pavia, there was considerable fear in Paris that imperial troops would follow up that victory by an attack from the northeast, via the classic invasion route, because the Low Countries were under the rule of Charles V. Even before the regent's appeal to Parlement to help her organize the national defense, leading magistrates were rushing to do so. Président Antoine Le Viste is described as "un des premiers qui offrirent non seulement leurs biens, mais aussi leurs propres personnes pour la conservation du sol et de l'autorité royale . . . [il] offrit de garder en personne la porte St-Antoine, ce qu'il exécuta le 7 mars 1524."

Le Viste became one of the most influential members of a municipal council established for the national defense that raised troops, set up new fortifications, borrowed money, and in general took charge of the nation—thus ironically fulfilling the political role that François I had strenuously denied Parisian magistrates during the struggle over the Concordat.[59] This action was quite in character for mainstream parlementaires. They did not press their advantage in the king's absence to the point of endangering the country, even at the moment they were exploiting it in the matter of St-Benoît. It was consistent with parlementaire values: opposition to the crown's violation of the Gallican liberties was a matter of national defense, on the highest level. Leaders of the court throughout the century figured as patriotic activists on the political scene, from Jean de Selve's repudiation of the Treaty of Madrid in 1526 to Guillaume Du Vair's defense of the Salic law in 1593.[60]

The role of the magistrates is repeatedly underlined by Yardeni: "Aside from the clergy, education (culture ) became essentially the patrimony of the conquering robins ; they formed the intellectual elite of the nation. History and historiography were a part of this patrimony and consequently these [disciplines] were connected to a strongly juridical conception of the world."[61]

This facet of parlementaire mentalité was christened "juridical nation-


alism" by Vittorio de Caprariis and has been fully analyzed by him and by Donald Kelley. Starting with Seyssel's Monarchie , where France is described as le coeur du monde, légiste writers exalted the French constitution above all others, for uniqueness, antiquity, and continuity (sometimes straining this last to make a case). Coincident with the civil wars and certainly not by chance, fresh works on French history and politics poured from the presses. Du Moulin was a major contributor to the argument that the legal independence and individuality of the French monarchy was expressed not only in the Gallican liberties but also in the customary law, the fundamental laws, the Estates General, and the Parlement. Anything that diminished French unity or infringed upon its integrity—cultural or institutional—was interpreted as a violation of history and of the nation. The needs of a nation torn by civil war for something to bolster national pride were met by recourse to history—sometimes "edited" to make a point. The French monarchy was held to be "bound by no past but its own . . . the product of a unique historical experience," as Kelley puts it. Commenting on the contribution of feudal law to the development of historiography, he notes that the insistence of the "school of French historical law" (mos gallicus ) on French legal independence was both a manifestation of Renaissance scholarship and an anticipation of sociology, by placing political institutions in the context of geographical and economic conditions—a fresh approach often attributed to Jean Bodin. Handbooks on French institutions, usually comparing them to Roman, constituted a new genre of historical writing in the second half of the century. Kelley considers Du Haillan's Histoire de France (1576) the best example because it summarizes the state of scholarship and draws on Du Tillet as well as the legists.[62]

The climax of juridical nationalism was reached by the scholarly Pléiade, whose members showed greater intellectual sophistication and whose examination of the national heritage was more critical—but they more than ever spoke for the Parlement. Antoine Loisel's "Dialogue des Avocats du Parlement de Paris," the most self-conscious expression of parlementaire mentalité (to be discussed in chapter 4), honors Pasquier with the role of Plato's Socrates. Loisel glorifies the "historical school of the Parlement of Paris," tracing its traditions from the great parlementaires of the late medieval period. Pasquier himself regarded the Parlement as the meeting place of king and people, "the basis of all the grandeur of France."[63]

This group had much in common with the better-known Pléiade; both


were champions of the vernacular and partners in the first of many waves of French cultural nationalism. Du Bellay's Deffense et Illustration de la langue françoise was published in 1549, the early edition of Pasquier's Recherches de la France about a dozen years later. Yardeni devotes a chapter to the role of language in the inclusive scope of national and patriotic sentiment in the sixteenth century. "La langue est le patrimoine de tous . . . l'élément de base de toute propagande."[64]

A Conservative Mind-Set

Much that was new would emerge from these writings, but their authors were all institutionally oriented to past ideals. Reverence for precedent is to be expected in legal minds, and antiquity and continuity were among the highest values. Immortality was even more revered, and the more closely a human being's works were modeled on God's the better. Church notes that "the law upon which [the social structure] rested was considered permanent." Change usually signified decay and innovation was always dangerous. Yet the Paris practitioners were realistic, even pragmatic in many respects, and tradition allowed leeway for variations. The ablest thinkers reevaluated accepted law and drew conclusions that could receive wide recognition, "but which nevertheless constituted specific innovation." Lesser thinkers often made important contributions by isolating particular points from the whole and giving them a somewhat new meaning. Thus the great majority of the legal profession—those I call the mainstream—from the leaders to the obscure, subscribed to "legal concepts . . . believed to form the permanent foundations of the state . . . the essentials of sixteenth-century constitutional thought." The parlementaire mentalité , essentially conservative, had yet to become aware that the ancient constitution was not always adequate to the demands of new conditions.[65] The new conditions that most upset the parlementaires, that violated the "ancient constitution" most threateningly, were the increasing power of the crown with its concomitant assaults on the privileges and prerogatives of the court.


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