previous chapter
2 Constitutionalism A Nexus of Political-Historical and Professional Values
next sub-section

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 .

previous chapter
2 Constitutionalism A Nexus of Political-Historical and Professional Values
next sub-section