As time would show, Malesherbes was no revolutionary. The sharp tone of his onslaught on “despotism” and “ministerial tyranny” would have been unthinkable had it not been sanctioned by long use in the polemics of the Parlements. Since the 1750s, the tone of Parlementaire resistance to royal policy had been irate vehemence. The more desperately the crown sought remedies for its financial plight in taxes imposed on privileged and unprivileged alike, the more infuriated the Parlements became. And their belligerence was much more than a fit of collective bad temper. It represented a concerted effort to replace the unconfined absolutism of Louis XIV with a more “constitutional” monarchy. In that new regime they were to be the arbiters of legitimate power, the virtual representatives of the “Nation” patrolling any and every excess of governmental authority.
In this process of mutation from an absolute to a “mixed” monarchy, the Parlements were assisted by a change of emphasis in the self-definition of government. In keeping with the eighteenth century’s invention of a theory of administration (principally, but not exclusively, in Germany), officers of the crown had become accustomed to expressing their loyalty not to the person of the King but the impersonal entity of the State. Intendants, who were referred to as the commissaires départis of the central government, thought of themselves essentially as the administrative organs of the royal council rather than as emanations of the dynastic power. This alteration was noticed by Turgot’s friend the Abbé Veri. “The commonplaces of my youth,” he remarked, “[like] ‘serve the King’ are no longer on the lips of Frenchmen… Dare one say that for ‘serve the King’ we have substituted ‘serve the State,’ a word which, since the time of Louis XIV, has been blasphemy?”
This subtle but important distinction cannot be blamed on any indecisiveness on the part of Louis XV. As the disputes with the Parlements over religious and tax policies at the end of his reign became more acrimonious, so the King became more adamantly absolutist. The premature death of the Dauphin in 1765 created a distinct possibility of another period of political uncertainty while Louis’ grandson grew to maturity. In these circumstances it may have seemed especially important to reiterate unequivocally the irreducible principles on which the monarchy rested. In a rebuttal to the Parlement of Rouen’s claim that on his coronation he had taken an oath to the nation, Louis interrupted the reading of their remonstrance to affirm, with some indignation, that he had taken an oath only to God. In the document written for him by Gilbert de Voisins early in 1766 and used as the instrument of mortification against the Paris Parlement on the third of March, he developed the traditional view of absolutism with uncompromising clarity. “In my person alone resides the sovereign power,” he insisted,
and it is from me alone that the courts [the Parlements] hold their existence and their authority. That… authority can only be exercised in my name… and can never be turned against me. For it is to me exclusively that the legislative power belongs without any qualification or partition [partage]. The whole public order emanates from me since I am its supreme guardian. My people and my person are one and the same, and the rights and the interests of the nation that some presume to make a body separate from the monarch are necessarily united with my own and can only rest in my hands.
Louis XV’s utterance radiated cool infuriation with the pretensions of Parlementaire ideology. But the defensiveness of his counterclaims concerning the indivisibility of the legislative power was an implicit recognition that this axiom was indeed threatened. For at least fifteen years it had been the Parlements that had taken the initiative in developing something like a constitutional theory of government that all but replaced absolutism with a much more constrained and divided version of monarchy.
What were the institutions responsible for this transformation? The Parlements were not, as their name might suggest, French counterparts of the British Houses of Parliament. They were thirteen sovereign courts of law, sitting in Paris and provincial centers, each comprising a body of noble judges that, in different Parlements, numbered from 50 to 130. The area of their jurisdiction varied dramatically with some in the more remote regions like the Béarn in the southwest and Metz on the eastern frontier acting as regional courts. The Parlement of Paris, on the other hand, exercised jurisdiction over an enormous area of central and northern France stretching from northern Burgundy through the Ile-de-France and the Orléannais up to Picardy on the Channel coast. The scope of their office was equally broad, hearing both appellate cases and a wide variety of first-instance cases – the cas royaux – ranging from charges of lèse-majesté, sedition and highway robbery to unlawful use of the royal seal, debasement of currency to other kinds of forgery and tampering with documents (in a society where bureaucratic writ was all-important, a capital crime). In addition they exercised jurisdiction over most criminal and civil cases concerning the privileged orders; acted as censors of theater and literature, and as guardians of social and moral propriety. But what made their power especially difficult to circumscribe was that they also shared with the King’s bureaucrats – the intendants and the governors – administrative responsibility for provisioning cities, setting prices in times of dearth and policing markets and fairs.
The Parlements, then, were both an institution and an ethos. In the more dynamic commercial centers of France – like Bordeaux – they represented the means through which raw wealth became translated into legal status and political dignity. In sleepier provincial towns like Dijon, Grenoble and Besançon, the whole economy and society of the region revolved round their presence – regiments of scribes, amanuenses, petty advocates and pleaders, booksellers, not to mention the ancillary trades that supported their aristocratic style of life: coach makers, tailors, wig makers, traiteurs, cabinetmakers, dancing masters and liveried domestics. And this sense of social solidarity between the robins – the judicial nobility of the “robe” – and their co-citizens was played out every November in the elaborate spectacles that greeted their return to sessions from country vacation. For this “red Mass” they would don scarlet robes in place of their habitual black; parade through the streets of the city attended by militia and music; receive the benediction of the clergy for their new year; and only after more grave mummery, shuffling to and fro in the stylized mutual obeisances (often known as the “dance of the Presidents”), would they finally take up their seats.
In many of the Parlementaire residences, the building that housed their court was known as a palais de justice. But it was in Paris that the additional title of the residence, Capitole de la France, most aptly symbolized their senatorial pretensions. Cheek by jowl with Notre Dame and the Tuileries, the immense pile housed what contemporaries described as virtually a miniature city in itself. Its courtyard was a bazaar echoing with the din of criers and hawkers, swarming with trades of every kind – ribbon sellers and lemonade vendors as well as booksellers. Many of its stall holders specialized in the cheap prints and satires, very often directed against the government, that were protected from the police in this inner sanctum of justice. It was a place where rich and muddy currents of gossip, rumor and scandal converged to make a thick river of suggestion issuing out of the Palais towards the islands of journalists and libel-mongers waiting on the banks of the Seine for their news of the day.
Within the chambers of the Palais, the presidents and councillors of the court asserted their status in the realm by all manner of symbolic expressions. The mere appearance of the great “gilded chamber” was designed to intimidate, dripping with crested ceiling bosses and finials, emblazoned with arms, and the walls adorned with royal portraits and history paintings representing the majesty of judgment. The robins sat on the fleur-de-lis benches which were expressly denied to mere dukes and other members of the peerage of “the sword” (the military nobility) and “the blood” (the royal dynasty and its cadets) entering the court. Since 1681, when Président Potier de Novion had the audacity and sang-froid to keep his hat on in the presence of dukes of the blood royal, they had preserved this right, a matter that may seem picayune to us, but which in the eighteenth century proclaimed aloud that deference was due to them from the nobility of the sword and not the other way about. Even the nature of their headgear, the black mortarboard, beribboned in gold tassels, was suggestive of a direct, unmediated relationship with the crown since it was held, by the Parlements’ antiquaries, to be the mark of the coiffe royale specially granted by Philip the Fair to his sovereign courts.
Not surprisingly, then, the robins were intensely conscious of their collective dignity and jealous of any attempts to encroach on their local authority. Inescapably, the Parlements became a forum for political statements articulated through their remonstrances, entered when royal edicts required registration in the Parlements before becoming enforceable. It was in this requirement that their ideologues saw the principle of assent that they claimed made the monarchy conditional rather than absolute. The basis of that argument was historical. For although the truth of the matter was that the Parlements only went back to the thirteenth century they proposed a much more hoary pedigree. Already in 1740 the Abbé Laboureur in his History of the Peerage had asserted that “the Parlement represents the French nation in its ancient state,” and a whole phalanx of earnest antiquarians combed antique charters and capitularies to prove that it was directly descended from the Frankish assemblies of the early Middle Ages. Their ancestry was, then, not only contemporary with, but possibly anterior to the founding of the Frankish monarchy. As with so many other usable pasts invented by constitutional theorists in the seventeenth and eighteenth centuries, French antiquarians located the birth of liberty in the Teutonic forest where the Frankish hosts had assembled, with spear and horse, in primitive gatherings. It was these tribal assemblies which delegated power to the chiefs who became the “Kings of the First Race” – the Merovingians.
What this all meant was that in their view the Parlements had never been a dependent creation of the monarchy (as Louis XV claimed). As a condition of its foundation, and throughout the Middle Ages, the crown had acknowledged that its power was limited by legal accountability. The watchdogs of that accountability were the Parlements and they alone were the arbiters of when and whether creeping despotism threatened to overrun legitimate royal authority. This was not an esoteric view confined to antiquarian quibbles. Drawing on previous historical work Montesquieu’s Esprit des Lois, first published in 1748, lent it enormous political respectability and wide currency. Montesquieu was himself a president of the Parlement of Bordeaux, and at a time when Parlements were claiming to protect the “liberties of Frenchmen” from the tax policy of the crown, the book became an overnight best-seller, going through twelve editions in six months. In April 1750 the Chevalier de Solar congratulated Montesquieu on what he said was the twenty-second edition of that work. “Since the creation of the sun,” a bel esprit of Baillon wrote, “this work will do most to illuminate the world.”
In 1762 the ultimate accolade was bestowed on the work when Alexandre Deleyre produced a handbook of edited extracts, the Génie de Montesquieu, designed for polemical use. Well before this the kind of historical arguments embedded in it had become not just theory but the ammunition in political crossfire. When their remonstrances were overruled and the monarchy sought to enforce an edict by command, the magistrates responded with a judicial strike. In return they were threatened with exile if they refused the crown’s bidding. Bludgeoned in this way, the presidents of the Parlements of Aix and Dijon both invoked Montesquieu’s assertion that the magistracy formed an intermediate body between the King and his people that was not removable without bringing down the constitution of France itself. In 1760, the remonstrance of the Parlement of Toulouse warned still more dramatically:
Woe betide the power established on the ruin of the laws… the Prince will be forced to reign over his state as he would over a conquered land.
Nor were the partisans of this view confined to the robins. One of the most committed of their allies among the nobility of the sword was the Prince de Conti, the King’s own cousin and a powerful and articulate spokesman. It was his archivist, Le Paige, who was the most resourceful and uncompromising of all the Parlementaire propagandists. At the other end of the spectrum of aristocratic fashion, deep in the backwaters of rural Poitou, a retired cavalry officer, the Baron de Lezardière (after some initial misgivings), encouraged his seventeen-year-old daughter Pauline in her ambitions to become a medieval historian and political theorist. From long hours spent with dusty charters and annals, she eventually constructed an immense multivolume account of the founding of the Frankish monarchy and its relationship with the early medieval assemblies. This was more than chronicle. In its completed version it presented itself as a worked-up theory of the legitimacy of French political institutions. But by the time Mlle de Lezardière put the finishing touches to her work, its authority had been overwhelmed by the Revolution and her family scattered to their several tragic resting places: in British exile, in a royalist army and among the bloody cadavers of the Paris prison massacres.
Compared with what was to come, the issues that provoked this intense conflict over the nature of the monarchy seem arcane or wildly paradoxical. The government was first stigmatized as “despotic” in the 1750s when it tried to enforce the Papal BullUnigenitus denying the sacraments of baptism, marriage and last rites to anyone not able to prove impeccable orthodoxy. This was a measure designed to root out the Catholic heresy of Jansenism, which took a much more austere view of salvation than the acceptable norm, and which had adherents at high levels of the Parlements, especially in Paris. But when it came to the practical matter of priests actually refusing sacraments to persons who had lived apparently exemplary lives, the Parlements were able to go on the offensive in the name of both “the people” and the “nation.” Jesuits, they said, were determined to capture the national “Gallican” church for international Romish designs and in so doing turn the monarchy into a foreign despotism. And they were successful enough to force the government into a complete reversal of position that culminated in the liquidation of the Jesuit order in France in 1762. Similarly, it was when taxes threatened to affect the privileged classes, for example, that the Parlements posed as the protectors of the nation’s “liberties” – an irony not lost on Voltaire, who thought them hypocrites.
It was in the last years of the reign of Louis XV that this bitter dispute boiled over. In 1770 Chancellor Maupeou decided to short-circuit Parlementaire resistance by doing away with the entitling offices that allowed the magistrates their jurisdiction, and at the same time he created new tribunals directly responsible to the crown. Resisting Parlements were exiled. This did not mean some sort of ancien régime Siberia. In most cases the magistrates were packed off to a well-upholstered rural retreat where (their banqueting inventories suggest) they did not go short of the twelve-course amenities of life. In some cases, though, their leaders did suffer the real discomforts of imprisonment through lettres de cachet. Even before the crise Maupeou, the most eloquent of all Parlementaire spokesmen, the Breton La Chalotais, had suffered without due process an imprisonment that would endure nine years before his release.
The initial response to the Maupeou coup was a storm of polemical fury describing these policies as the introduction of “oriental despotism” into France. In 1771, no fewer than 207 pamphlets violently attacking the Chancellor and the Ministry were published, and the philosophe Denis Diderot wrote to a friend in Russia that the crisis “had made the constitution teeter on the brink… It will not finish with remonstrances this time… this fire will spread by degrees until it has consumed the kingdom.”
He was wrong. For all the apparent unanimity of their outrage, the judicial nobility was in fact deeply divided in their conduct. They had much to lose: their offices, status, titles and some not inconsiderable perquisites that went with them. Not surprisingly, then, as the volume of opposition polemics abated in 1772 and 1773, many of them quietly signed up for the new tame “Maupeou” courts and risked the ostracism of their former colleagues. It was only the sudden death of the King in 1774 that brought an abrupt end to the experiment in unimpeded bureaucratic government.
The prospect of their emasculation, however, had forced the Parlements into even more radical defense of their constitutional position. In particular it generated a solidarity by which, in the work of their most formidable propagandist, Le Paige, they claimed to reflect an historical unity. The thirteen Parlements, he argued, were the arbitrarily divided descendants of the one body that exercised legal constraints on the monarchy. And their right of remonstrance became progressively converted into something like a right of representation. In 1771, the Parlement of Rennes in Brittany was the first to call explicitly for the convening of the Estates-General as the only possible check on the overweening ambitions of ministerial despotism, an appeal repeated by Malesherbes.
Even in this heated political climate it was possible for oppositional rhetoric to overreach its own boundary of prudence. In 1775, after the Parlements had been restored by Louis XVI, a young lawyer, Martin de Marivaux, seeking to ingratiate himself with the Paris court, addressed copies of his tract L’Ami des Lois to the magistrates. With the memory of their crisis still brutally recent he could have expected to be encouraged in his commonplaces about ministerial despotism. But the grounds on which he criticized arbitrary power were dangerously novel: not those of historical precedent or the “fundamental laws” of the constitution, but of natural equality:
Man is born free. No man has any natural authority over his peer; force alone confers no such right; the legislative power belongs to the people and can belong only to the people…
The Parlement immediately recognized what was a thinly disguised version of Rousseau’s Social Contract, drew the logical conclusions and instead of congratulating the young zealot, ordered his book to be burned by the public executioner.
There were other risks involved in taking on the crown – risks not of incurring official retaliation but rather of unleashing a dangerous popular outburst. At the height of the Maupeou crisis, popular placards appeared threatening some sort of general insurrection. The most notorious was “Paris à louer; Chancelier à rouer; Parlement à rappeler ou Paris à brûler” (Paris to let; Chancellor to break on the wheel; Parlement to recall or Paris to burn). But there were others of an even more ominous character directly connecting anger with hunger, politics with subsistence:
Bread at 2 sous; [bring back] the Parlement; death to the Chancellor or revolt.
There were, then, serious limits to the ability of the Parlements to act as the vanguard of a general rebellion against the crown. If they were oppositional orators, they were also hanging (and burning and torturing) judges: the upholders of civic peace and the scourge of sedition. Lest it be imagined they lived up to their self-designation as apostles of liberty, it should be recalled that it was in a Parlement that a sentence of burning at the stake was handed down to a young nobleman convicted of sacrilege and there that other similar judicial atrocities were committed which received less glaring publicity. This was precisely Voltaire’s objection. He wrote a stinging parody of their remonstrances which upheld “‘fundamental laws,” the fundamental laws of venal office… the fundamental law which allows them to ruin the province and turns over to lawyers the property of widows and orphans.”
On their return in 1775 the Parlements were bound to object to the modest abridgments that Turgot placed on their ability to hold up royal legislation. But for the most part they avoided the all-out collisions with the crown that in 1771 had forced them to choose between rebellion and extinction. Instead, the ceremonies that marked their return were demonstrations of the myths of harmony – between crown and magistrates and between magistrates and people. Sometimes these celebrations were implausibly inclusive. In Metz, for example, the Jewish community (which had to endure much from the local nobility) gave a special fête, in which the major illumination was a Hebrew device from the book of Isaiah: “He will restore your Judges, your Magistrates as they were before and your City will be called City of Justice and Faithful Town.” In Bordeaux the returning nobles of the robe received delegations of gratitude from tradesmen, including the city’s fishwives, among whom the President moved with condescending graciousness.
At the Pyrenean city of Pau (where the robins had been most bitterly divided in their loyalties) there was the most extraordinary demonstration of all. For in addition to the conventional speeches, congratulatory odes and bouquets, the cradle of King Henri IV, who was born in the town, was carried aloft in a procession through the streets. The local governor, in conjunction with the Parlement, did his best to make the procession as innocuous as possible but it very rapidly turned into an occasion for acts of spontaneous popular piety. As the procession bearing the cradle passed by, people dropped to their knees in reverent silence, and it was carried to a specially constructed dais beneath a portico at the city gates. There the commissioners of the crown listened as homage was paid to the memory of Henri IV and gallant efforts were made to connect the memory of the best loved of the Bourbons with their latest incarnation.
The Parlements went into the critical years of the mid-1780s with a mixed inheritance. On the one hand, their position as an indispensable constitutional constraint on arbitrary royal power had become unchallengeable. Radicalized by the years of the Maupeou crisis, their propagandists and historians had to all intents and purposes succeeded in persuading the political reading public of the basic justice of their cause. If they acted more politely towards Louis XVI and his ministers than they had to his grandfather, it was because greater pains were taken to avoid their displeasure. When that was broached, they could show themselves to be dangerous, as their part in the fall of Turgot amply demonstrated. But if they had inflicted irreversible damage on the credibility of absolutism, their own ascendancy was not invulnerable or risk-free. The excessive zeal of some of their hack writers, the violence of the polemical language that they now embraced and the occasionally visceral forms in which popular enthusiasm for their cause was expressed suggested a narrowing room for maneuver. Their eagerness to present themselves as a quasi-representative body left some questions hanging dangerously in the air. If there was to be some sort of national representation, how was that to be constituted? And for how long would they be able to defend privilege and liberty as interchangeable? It was on these awkward issues (and specifically on the composition and procedure of the Estates-General) that the unity of noble opposition to crown policy broke apart in 1788 and 1789, so that colleagues who had stood shoulder to shoulder in a campaign against “despotism” suddenly found themselves divided by a choice of unprecedented painfulness: be a traditionalist or be a revolutionary. Among the black-robed orators of the Paris Parlement this would send their presidents like d’Aligre and Joly de Fleury to an early emigration, their most outspoken firebrands like Adrien Duport to a revolutionary career and constitutionalists like d’Eprémesnil to the guillotine.