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


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