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 ,

[33] . Bryant, King and City , 115-117.

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

[34] . Church, Constitutional Thought , 32, 98; and François Olivier-Martin, L'Organisation corporative de la France d'ancien régime (Paris, 1938), 478-509.

[35] . Within the vast bibliography on Jean Bodin are excellent introductory treatments that place him in relation to other thinkers of the period and indicate specialized studies of relevance to our study: Church's work; Kelley, Foundations , 136-138; Skinner, Modern Political Thought , esp. 213-242.

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,"

[36] . Kelley, Foundations , 289-291.

[37] . Church, Constitutional Thought , 112.

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.