The first French Republic

by Horace Mann Conaway

The Conseil d’État, composed of the nobility, was, in a narrower sense, the permanent advisory council of the king. In this body the laws originated, and under its supervision the administration was accomplished. It also had judicial functions, being superior to the Parlement as a cour de cassation in civil cases.

The duties of the Parlements were primarily judicial, but in addition the Parlement of Paris possessed legislative functions, inasmuch as the laws were sent to it for registration. The Parlement by custom had come to make use of remonstrances to the king in case of laws distasteful to them. Though some monarchs, as Louis XI., XII., and Henry IV., had paid some regard to these remonstrances,[63] yet even in the sixteenth century the remonstrance did not stop the determined monarch, but the court was forced to yield to the royal wish in the lit de justice.[64] There existed, therefore, a singular balance of power between the Conseil d’État and the Parlement. The Conseil d’État, as a cour de cassation, might annul the parliamentary remonstrance, and, inversely, the Parlement might, in virtue of its power to register, check the laws originating from the Conseil d’État. It is worthy of remark, however, that even at this period, this normal distribution of functions was not so balanced and guarded as to avoid abnormal procedure. Neither the States General nor the Parlement was put wholly beyond the control of the executive.

D’Avenel, expressing a view not uncommon in the earlier days of the Revolution of 1789, asserts in his remarkable book, Richelieu et la monarchie absolue, that France had a constitution before the ministry of the politic Richelieu, yet not thereafter,[65] but it is difficult to defend such a declaration. It may be admitted that the States-General were no longer convoked after 1614, that the personnel of the nobility was altered, that the Parlement was now and then forced into acquiescence to the royal will; nevertheless the two bodies, the Conseil d’État and the Parlement, continued to function very nearly as before, and at times the Parlement emerged from its submissiveness and haughtily asserted its pretensions.

In a series of conflicts between the court and the Parlement, into which we have not space to go exhaustively, the idea of fundamental or constitutional laws, of which the Parlement declared itself the guardian, was repeatedly asserted; in the later period of this constitutional struggle, partly from the inability of the Parlement to maintain its pretensions and partly from the development of the ideas of natural rights, of the rights of the people and of the rights of the nation, the desire for some more distinct definition of the power of the executive and the rights of the nation became manifest. The Parlement, composed of an aristocracy whose office was an hereditary possession, was naturally alert to extend its political influence; this extension of necessity brought it into conflict with the absolutism of the monarch. When a vigorous monarch, or skillful, energetic minister was at the head of affairs, the Parlement was driven to humble obedience; but where there was a regency, a weak monarch, or a crisis, financial or administrative, the legal aristocracy reasserted and extended their pretensions. By a decree of February 21, 1641, Richelieu declared that the parlements had been established only for granting justice, forbade any modification of decrees, ordered that in financial matters they might remonstrate once, but in administrative matters no remonstrance was allowed. During the remainder of Louis XIII’s reign they were obedient; but on the death of the king they immediately manifested their vitality by breaking his will and fixing the regency.[66]

The Fronde was the acme of the parliamentary resistance of this period. Louis XIV. did not forget this high-handed opposition, and consequently by two decrees he reduced this recalcitrant body to a strictly subordinate position for the last forty years of his reign.[67] But on the death of the Grand Monarch, the Parlement showed its old spirit, annulled the will of the dead king concerning the regency, and for twenty years solemnly reiterated its vague constitutional claims in elaborate remonstrances. To this period of activity succeeded a time of comparative submission, in which the remonstrances are less prompt, haughty, and insistent.

In 1748, the struggle renewed itself, and soon each side showed an ardent determination to conquer. The monarch resorted to lits de justice, to exile, and to the institution of irregular courts in order to provoke the magistrates to obey, while they answered with iterative remonstrances and with refusals to dispense justice. From these remonstrances we are able to ascertain the pretensions of the Parlement, and to trace, though with much vagueness and incoherence, those principles which they called constitutional and fundamental. On the other hand, the responses of the king reveal the persistent claims of absolutism as to the royal source of law.

The magistrates based their shadowy claims upon different grounds. Frequently they appealed to precedent; as in 1718, the Parlement of Paris declared that the most absolute kings, specifically Louis XIV., had continually made use of the Parlement for registration.[68] Justice and expediency were also invoked in their support.

Already in the period of the regency, following closely after their submissiveness under Louis XIV, we find a hazy but general distinction between statutory and constitutional laws: “While we recognize, Sire, that you alone are lord and master and the sole lawgiver, and that there are laws which changing times, the needs of your people, the maintenance of order and the administration of your kingdom may oblige you to modify, substituting new ones according to the forms always observed in this state, we nevertheless believe it to be our duty to call to your attention the existence of laws as old as the monarchy, which are permanent and invariable, the guardianship of which was committed to you along with the crown itself.... It is by reason of the permanence of such laws that we have you as lord and master. It is this permanence which leads us to hope that the crown, having rested upon your head during a long, just, and glorious reign, will pass to your posterity for all time to come. In recent times [the Parlement adds] it has been clearly shown how much France owes to the maintenance of these original laws of the state, and how important it is in the service of your Majesty that your Parlement, which is responsible to you and to the nation for their exact observations, should assiduously guard them against any encroachment.”[69] Here then is found in embryo the programme which the magistrates pursued in their legislative opposition to the crown. Nevertheless there is, judging from a comparison of these earlier remonstrances and those emitted later, some progress in the distinction of organic and of statutory law, and in the enumeration of the fundamental principles.

The Parlement of Brittany, in a remonstrance of July, 1771, said: “There is an essential difference between the transitory regulations which vary with the times, and the fundamental laws upon which the Constitution of the monarchy rests. In respect to the former [that is the transitory regulations] it is the duty of the courts to direct and enlighten the ruling power (l’autorité), although their opinions must, in the last instance, yield to the decision of your wisdom, since it appertains to you alone to regulate everything relating to the administration. To administer the state is not, however, to change its constitution.... It is, therefore, most indispensable to distinguish or to except the cases where the right of expostulation suffices to enlighten the ruling power in an administration which, in spite of its wide scope, still has its limits, and those cases where the happy inability [of the monarch] to overstep the bounds established by the constitution implies the power necessary legally to oppose what an arbitrary will cannot and may not do.”[70] To determine accurately the content of the lois fondamentales of which the Parlements asserted themselves to be protectors, is difficult. The Parlements themselves did not deem it expedient, either for their own claims or for those of the monarch, to attempt a too explicit formulation of these laws; vagueness was regarded a political virtue. A remonstrance of the cour des comptes, aides et finances of Normandy, openly admitted the disadvantage of such an enumeration: “Deign, Sire, to examine for yourself to what the decree of December tends; it seems destined to draw the line between the power of the sovereign and the liberty of his subjects; this line always undetermined, which no hand has been bold enough to fix, which a salutary veil covers with useful shadows; the tenderness of princes for their people and the love of the people for their princes draw or withdraw these shadows according to the times or the reigns. Those who dare to-day to fix these limits and to say to France: There ends the legitimate liberty of the people, serve your interests badly, even politically.”[71]

The most precise formulation of the organic law of the French monarchy which I have found is the protest of the princes, signed April 4, 1771, and directed against the Maupeou Parlement: “We, the undersigned, consider that the French monarchy has been sustained, together with the glory, the splendor, and the power which it has enjoyed for so many centuries only by the maintenance of the primitive laws which are inherent in it, and form its title (droit) and essence; that the liberty belonging to every Frenchman, the title and the ownership of his property, that of inheriting from fathers or of receiving from relatives or friends, without being able to be deprived or hindered, otherwise than by the legal application of law for some crime previously and competently judged, and not by arbitrary and absolute will, are not the only rights of the nation and of the subjects nor the only fundamental laws of the monarchy; that the right of Frenchmen, one of the most useful to the monarch and one of the most precious to his subjects, is to have certain bodies of citizens, perpetual and irremovable, acknowledged in all times by the kings and by the nation, who under whatever form and name they have existed, concentrated in themselves the general right of every subject to invoke the laws, to demand their rights, and to have recourse to the Prince; whose most important functions have always been to be charged with watching over the maintenance of the established laws, to weigh in new laws their utility or the dangers of contradictions which might occur with the old laws, to verify them, and to represent to the sovereign all that is prejudicial to the rights of his subjects or to the primordial and constitutive laws of his kingdom ...; that this necessary surety cannot exist without irremovability of the title of those to whom are confided so important functions, that they have always been regarded as one of the principal safeguards of public liberty against the abuse of arbitrary power; that they are an integral part of the constitution of the State, and are found as much as any other law in the order of the fundamental laws of the monarchy.”[72] However, the apparent attempt to be explicit here originates primarily, not in a desire to state distinctly the constitutional law, but rather to protect the prerogatives of the Parlements by coupling them with certain principles generally recognized as inviolable.