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Judicial Corruption and Legal Reform in Early Seventeenth-Century France

Published online by Cambridge University Press:  28 October 2011

Jeffrey K. Sawyer
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Extract

In 1614, an angry pamphleteer writing in the name of six peasants described for his French readers how the country was being taken over by lawyers. Legal officials had swelled their purses, bellies, and heads by gobbling up the rest of France; they were like a growing infestation of “leeches,” he exclaimed passionately, “that suck our blood right to the bone.” These judicial parasites were so disgusting that one should not even consider them a part of society; they were a foreign substance “born of putrefaction and living off putrescence.”

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Articles
Information
Law and History Review , Volume 6 , Issue 1 , Spring 1988 , pp. 95 - 117
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Copyright © the American Society for Legal History, Inc. 1988

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References

Notes

1. Anonymous, Advis, Remonstrances et Requestes aux Etats generaux tenus à Paris, 1614. Par six Paysans (n.p., 1614) 10. Copy in the Bancroft Library, University of California, Berkeley. (All translations from the French in this article are my own. Citations in French retain the original spelling, diacritical marks, and capitalization, except for modernizations of the v used for u, i used for j and the old-style s.)

2. Ibid. at 9. “C'est un quatriesme corps engendré de corruption, qui vit de corruption suivant la maxime des Naturalists que le corps est nourry de la mesme chose dont il est engendrè.”

3. For the view that frustration with lawyers was typical of early modern European society, see Bouwsma, William J., “Lawyers and Early Modern Culture,” American Historical Review 78 (April 1973) 303–27CrossRefGoogle Scholar.

4. The basic work on the Estates General of 1614 is Hayden's, J. M.France and the Estates General, 1614 (Cambridge, 1974Google Scholar). Important collateral studies have been brought together by Richet, Denis and Chartier, Roger in Représentation et vouloir politiques: autour des Etats-généraux de 1614 (Paris, 1982Google Scholar). On the Assemblies of Notables, see Major, J. Russell, Representative Government in Early Modern France (New Haven, 1980) 410-15, 501–18Google Scholar; Petit, Jeanne, L'Assemblée des Notables de 1626-1627 (Paris, 1936Google Scholar); and for a useful collection of primary sources, Mayer, Charles, ed., Des Etats-généraux et Autres Assemblées Nationales, 18 vols. (The Hague, 1789) xviiiGoogle Scholar. Many of the official acts of the Crown and the political assemblies of the period are published in Isambert, , Jourdan, , and Decrusy, , eds., Recueil général des Anciennes Lois Françaises depuis l'an 420 jusqu'à la Revolution de 1789, 29 vols. (Paris, 1821-1833) xv–xviGoogle Scholar.

5. A significant example of such relative neglect would be Carey's, John A. discussion in Judicial Reform in France before the Revolution of 1789 (Cambridge, Mass., 1981) 8–43Google Scholar, which moves very quickly from the legal “renaissance” of the sixteenth century to the reform movements of the eighteenth century with little analysis of seventeenth-century developments. There is nothing for France comparable to Shapiro's, Barbara “Law Reform in Seventeenth-Century England,” American Journal of Legal History 19 (1975) 280–312CrossRefGoogle Scholar, Veall's, Donald, The Popular Movement for Law Reform, 1640-1660 (Oxford, 1970Google Scholar), or Brooks's, C. W.Pettyfoggers and Vipers of the Commonwealth: The “Lower Branch” of the Legal Profession in Early Modern England (New York, 1986CrossRefGoogle Scholar).

6. On the perennial confrontations between the Crown and the Parlement of Paris, see Shennan, J. H., The Parlement of Paris (New York, 1968) 222–50Google Scholar and Hanley, Sarah, The “Lit de Justice” of the Kings of France: Constitutional Ideology in Legend, Ritual, and Discourse (Princeton, 1983) 102-59, 231–95Google Scholar. There were good reasons for mutual suspicion. The king and his ministers frequently tried to bring the sovereign courts more under the control of the chancelier and garde des sceaux (the two highest ranking legal positions in the king's council often held by energetic and capable men dedicated to expanding royal power).

7. An original published version at the Center for the Study of Roman, Medieval, and Canon Law, University of California, Berkeley carries the full title, Ordonnance du Roy Louis XIII: Roy de France et de Navarre, Sur les plaintes et doleances faittes par les Deputez des Estats de son Royaume convoquez et assemblez en la ville de Paris en l'année 1614 et sur les Advis donnez à sa Majesté par les Assemblées des Notables tenuës à Roüen en l'année 1617 et à Paris en l'année 1626 (Paris, 1629Google Scholar). Little work has been done recently on the content of this code, but two older works are still useful: Desjonquères, Lèon, Garde des Sceaux Michel de Marillac et son Oeuvre Legislative (Paris, 1908) esp. 100–201Google Scholar; and Everat, Edouard, Michel de Marillac; sa vie, ses oeuvres (Riom, 1894) esp. 68–89Google Scholar. Major gives à brief summary, supra note 4 at 512-14.

8. The extent of the “privilege” or “right” of remonstrance was much debated by the jurists of the period, see esp. de la Roche Flavin, Bernard, Treize Livres des Parlemens de France… (Geneva, 1631) 920–37Google Scholar.

9. For an interpretation of this confrontation based on Cardinal Richelieu's later recollections, see Hanotaux, G. and the de la Force, Duke, Histoire du Cardinal Richelieu, 6 vols. (Paris, 1933-1947) iv: 113–14Google Scholar. Michel de Marillac (Garde des Sceaux at the time) mistakenly lectured the Parlement of Paris in the strongest terms on its duty to respect the absolute sovereignty of the king by registering the Code without objections, Mercure François, xv (Paris, 1631) 7–28Google Scholar. From that point forward, the Parlement of Paris and the regional parlements obstructed the implementation of the Code as much as possible. Although technically it was registered and became “law” the parlements remained determined to ignore it, giving it the pejorative nickname “Code Michau” (or “Michaud”) in à sarcastic rendition of Marillac's Christian name. The defeat marked the end of Marillac's career; see Pagès, Georges, “Autour du ‘grand orage’: Richelieu et Marillac, deux politiques,” Revue historique 179 (1947) 63–97Google Scholar; and Mongrédien, Georges, Les Journées des Dupes (Paris, 1961Google Scholar).

10. Mousnier, Roland, La Vénalité des Offices sous Henri IV et Louis XIII (Rouen, 1945Google Scholar); Ford, Franklin L., Robe and Sword: The Regrouping of the French Aristocracy after Louis XIV (Cambridge, 1953Google Scholar).

11. Moote, A. Lloyd, The Revolt of the Judges (Princeton, 1971) 36–63Google Scholar; Bonney, Richard, Political Change in France under Richelieu and Mazarin, 1624-1661 (Oxford, 1981Google Scholar) passim; Mousnier, , La Venalité des Offices, 2nd. revised ed. (Paris, 1971Google Scholar) passim; and Giesey, Ralph E., “State-Building in Early Modern France: The Role of Royal Officialdom,” Journal of Modern History 55 (1983) 191–207CrossRefGoogle Scholar.

12. Kettering, Sharon, Patrons, Brokers, and Clients in Seventeenth-Century France (New York and Oxford, 1986) 192–206Google Scholar.

13. Harding, Robert, “Corruption and the Moral Boundaries of Patronage in the Renaissance,” in Patronage in the Renaissance ed. Lytle, Guy Fitch and Orgel, Stephen (Princeton, 1981) 47–64Google Scholar, esp. 54, 61; and Keohane, Nannerl O., Philosophy and the State in France: The Renaissance to the Enlightenment (Princeton, 1980) 111–212CrossRefGoogle Scholar. In Judicial Reform, supra note 5, esp. 1-4, Carey argues that before the eighteenth century, legal “reform” often signaled an idealistic desire to go back to the “good old days.” This was certainly one prevalent attitude, but in the context of 1614 it would appear to have shaped the thinking of the clergy and the nobility more than that of professional lawyers of the Third Estate. Cf. Sylvia Neely on the rhetoric of “judicial reform,” “Michel de L'Hospital and the Traité de la Réformation de la Justice: A Case of Misattribution,” French Historical Studies 14/3 (1986) 341–66Google Scholar, esp., 358-66.

14. American Bar Association, Center for Professional Responsibility, Problems and Recommendations in Disciplinary Enforcement: “The Clark Report” (Chicago, 1970Google Scholar) calls attention to a scandalous need for reform in the legal profession in the United States (a problem now being addressed with various results by newly constituted review boards in many states). Corruption has been a recurring theme for research in the social sciences since the 1950s. For a thoughtful analysis with useful references, see Scott, James C., Comparative Political Corruption (Englewood Cliffs, 1972Google Scholar) or Rose-Ackerman, Susan, Corruption: A Study in Political Economy (New York, 1978Google Scholar). Historians have used social science models with mixed results; see Jean-Claude Waquet's interesting but unsatisfying exploration of a “functionalist” approach in De la corruption: morale et pouvoir à Florence aux XVIIe et XVIIIe siècle (Paris, 1984Google Scholar). Some of the most interesting work on corruption by historians of early-modern Europe has been on Stuart England; see Hurstfield, Joel, Freedom, Corruption and Government in Elizabethan England (London, 1973Google Scholar) passim; and Linda Levy Peck, “Court Patronage and Government Policy: The Jacobean Dilemma,” in Lytle and Orgel, eds., supra note 13 at 27-46. Noonan's, John T.Bribes (New York, 1984Google Scholar) provides a very useful perspective on the problem.

15. French legal procedure, especially the civil law, depended heavily upon written depositions, briefs, and opinions. Partly as compensation for processing this paperwork the French courts extracted fees from litigants and defendants called épices (“tips”); cf. Marion, Marcel, Dictionnaire des Institutions de la France aux XVIIe et XVIIIe Siècle, 2nd rev. ed. (Paris, 1969) 212Google Scholar. Clerks were also permitted to charge fees for making copies of judgments and other official documents. On the history of French law generally during this period, see Traer, James F., “From Reform to Revolution: The Critical Century in the Development of the French Legal System,” Journal of Modern History 49 (1977) 73–88CrossRefGoogle Scholar; Dawson, John P., A History of Lay Judges (Cambridge, Mass., 1960) 69–94CrossRefGoogle Scholar, and The Oracles of the Law, 2nd ed. (Westport, Conn., 1978), 261–373Google Scholar; Langbein, John H., Prosecuting Crime in the Renaissance: England, Germany, and France (Cambridge, Mass., 1974) 223–48CrossRefGoogle Scholar. Note that in England as well judges received their “salaries” from the Crown, but “made up much of their income from court fees”; Baker, J. H., An Introduction to English Legal History, 2nd ed. (London, 1979) 143Google Scholar.

16. Loyseau, Charles, Les Cinq Livres du Droit des Offices (Cologne, 1613Google Scholar), “Avant-Propos,” 3. The earliest full-scale legal analysis of venality, first published in 1610.

17. Major, Representative Government, supra note 4 at 487-672; Kettering, supra note 12 passim; and Beik, William, Absolutism and Society in Seventeenth-Century France: State Power and Provincial Aristocracy in Languedoc (Cambridge, 1985) esp. 3–33CrossRefGoogle Scholar.

18. Although the pamphlet wars of these years focused primarily on revolts of the great nobility, political assemblies received considerable attention; see Sawyer, Jeffrey, “Printed Propaganda and Political Power in Early Seventeenth-Century France, 1614-1617,” Ph.D. diss., University of California, Berkeley, 1982Google Scholar. Cf. Hayden, supra note 4 at 107-13, and his recent article “The Uses of Political Pamphlets: The Example of 1614-1615 in France,” Canadian Journal of History 21 (Aug. 1986) 143–65CrossRefGoogle Scholar.

19. Hayden, supra note 4 at 174-218; Richet, “Paris et les Etats de 1614,” in Représentation et Vouloir Politiques, supra note 4 at 63-88; and Chartier with Jean Nagle, “Doléances Rural…” id. at 89-111.

20. Hayden, supra note 4 at 80-97.

21. Ibid. at 74-86. See note 19 supra, and Roger Chartier, “La Convocation aux Etats de 1614: Note sur les Formes Politiques,” in Représentation et vouloir politiques, 53-61; and Claude Grimmer, “Conflits et Doléances en 1614: le Cas de la Haute-Auvergne,” in Représentation et vouloir politiques, 53-61; and Claude Grimmer, “Conflits et Doléances en 1614: le Cas de la Haute-Auvergne,” in Représentation et vouloir politiques, 127-47. One finds the use of such code phrases for political loyalty in the letters to and from various local officials the summer of 1614, for example, Bibliothèque Nationale, Collection Clairambault, 364.

22. My analysis of the professional status of the deputies is based on the data in Hayden, supra note 4 at 80-97, and 234-83 (a detailed appendix with information about all 474 deputies to all three estates). Hayden's concern with the relationship between royal control of the Estates and office holding among deputies prompted him to undertake an enormously detailed analysis of the social rank and professional standing of the deputies.

23. Ibid. at 266-83. I have subjected this data on the Third Estate to somewhat different categories of analysis in order to emphasize even further the professional involvement of the deputies with the law. The terms for offices are very difficult to translate accurately into Anglo-American terminology; I have rendered their meaning into contemporary American English based on analogies of function. The officials were major and minor judges from jurisdictions below the level of the parlements (i.e., presidents, lieutenants, prévôts, and syndics); barristers (avocats); district attorneys (procureurs du roi and avocats du roi prosecuted some criminal cases and represented the interests of the Crown); attorneys (simple procureurs in various jurisdictions); and clerks. Judges in the parlements considered themselves too far above the other members of the Third Estate to serve as deputies of that order.

24. The “sovereign courts” included all the important royal courts below the judicial branches of the king's councils—parlements, présidiaux, bailliages and sénéchaussées, and several special sièges. The lower royal jurisdictions were generally prévôtaux jurisdictions in the municipalities or connected with the military. For a useful summary of these legal jurisdictions, see Ruff, Julius R., Crime, Justice and Public Order in Old Regime France: The Sénéchaussées of Libourne and Bazas, 1696-1789 (London, 1984) 24–43Google Scholar.

25. On the history of these ordonnances see Chénon, Emile, Histoire générale du Droit Français Public et Privé des Origines à 1815, 2 vols. (Paris, 1910) II: 356–58Google Scholar. A clear distinction must be made between the regional and provincial “estates” that met regularly in certain regions of France and the national convocations of the Estates General that met infrequently after 1500 except during the 1560-1615 period.

26. Hayden, supra note 4 at 74-97, demonstrates that the Crown was successful in obtaining the “election” of deputies who were politically loyal, and that this accounts in part for the high number of royal officials at the assembly. Cf. Chartier and Nagle, supra note 19 at 89-100; Richet, supra note 19 passim.

27. Hayden, supra note 4 at 98-173, shows that the Crown was successful in its efforts to manipulate the proceedings of the assembly in general political terms, but not particularly successful at controlling the content of the cahiers.

28. Hayden supra note 4 at 174-218. Lalourcé, and Duval, , eds., Recueil des cahiers généraux des trois ordres aux Etats-Généraux, 4 vols. (Paris, 1789) ivGoogle Scholar (contains the complete cahiers from 1614).

29. This general description follows Hayden, supra note 4 at 174-97.

30. My figure corresponds to the number of specific complaints rather than to the number of “paragraphs” cited by Hayden; some paragraphs contained more than one distinct grievance and some pertaining to other matters (e.g., financial officials) were omitted. My source thoughout for the cahiers is Lalourcé and Duval, 118-37 (clergy), 205-22 (nobles), 323-73 (Third Estate).

31. To facilitate a quantitative analysis of these grievances, the principal features of each article on justice were entered into a data base on a microcomputer in which each complaint corresponded to a “record” described by ten variable fields. There were two fields for “jurisdiction,” either of which could contain one of eighteen designated jurisdictions, and two fields for the various types of “problems,” either of which could contain one of thirty-two designated problems. Even this rather painstaking procedure leaves a significant (though small) margin of uncertainty in two ways. First, in some cases the vague wording or complexity of many articles made categorization difficult, and in addition many articles contain multiple grievances. Second, grievances elsewhere in the cahiers touching on the legal system were left out of the data base, and although their content was generally repeated in the sections on justice, their appearance elsewhere marks a level of concern that should probably have been taken into account. Hayden's general discussion of “justice” provided a useful orientation, supra note 4 at 181 (on the clergy), 185-86 (on the nobles), and 191-94 (on the Third Estate).

32. Lalourcé and Duval, supra note 28, vol. 4 at 119, 120, 127, 132-33 (a detailed article from the clergy on irregular procedures), 323-26, 335. There are occasional ambiguities here because évocations could also remove cases to the parlements and transfer them among parlements.

33. Lalourcé and Duval, supra note 28, vol. 4 at 126 (abduction), 215 (sorcery), 217 (executions).

34. Ibid. at 366-72.

35. Ibid. at 366.

36. Hayden noted this, supra note 4 at 185-88. For an overview of the issues involved in seigniorial justice, see Mackrell, John, “Criticism of Seigniorial Justice in Eighteenth-Century France,” in French Government and Society, 1500-1850, ed. Bosher, J. F. (London, 1973) 123–44Google Scholar. This conflict ought to be investigated more thoroughly than I have done here.

37. Lalourcé and Duval, supra note 28, vol. 4 at 219. “Prévention” provided that a royal judge could hear a case in anticipation of the seigniorial judge's failure to do so. The Third Estate wanted this right enforced. Ibid. at 348-49.

38. Ibid. at 130.

39. Ibid. at 346-53.

40. Ibid. at 352-53; 350-51.

41. Ibid. at 346.

42. Ibid. at 124 and 132, clergy on commissaires; 212, nobles on commissaires; 215 and 217, nobles on commissions; 324-27, 332, 337, 354, Third Estate on commissions and other jurisdictional disputes; 331, 333-34, Third Estate on évocations; 335-37, Third Estate on lettres de committimus. Lettres de committimus provided certain litigants with the privilege of having their cases tried in the first instance by superior courts—such as the Parlement of Paris or one of the special jurisdictions of the King such as the hôtel du roi. “Commissions” were grants of power to a particular official allowing him to judge independently a specific case or group of cases. They originated from either the Crown, in which case the officials were often called commissaires, or from the presiding judges of sovereign courts.

43. Lalourcé and Duval, supra note 28, vol. 4 at 209 (italics in the original).

44. Ibid. at 340-41.

45. Ibid. at 326, 339-40.

46. Ibid. at 120-21.

47. Ibid. at 206.

48. Ibid. at 329; “Let it please your Majesty to discontinue the venality of judicial offices, in order that they be filled in the way prescribed by the long-established laws, and to provide salaries sufficient for your judges, prosecutors, and royal attorneys, in the sovereign courts as well as inferior jurisdictions, in order to put an end to and to punish as bribery or extortion (“concussion”) every kind of fee paid to judges by litigants, and to eliminate leaves of absence for any kind of business. Also see that all ecclesiastical or secular seigneurs with legal jurisdictions are dealt with in the same way with regard to their offices.”

49. Ibid. at 125-26; see also the broad complaint about excessive fees, 123-24, in which the clergy also demand that officers of justice be paid sufficient salaries.

50. Ibid. at 214, 339.

51. Ibid. at 342 (paper cost much less than parchment).

52. Ibid. at 326-27.

53. Ibid. at 338-40; see similar requests from the clergy, ibid. at 125-26, 130.

54. Ibid. at 330, 331, 338, 342-43, 356. See similar requests from the nobles concerning the withholding of judgments for the payment of épices, ibid. at 209.

55. Ibid. at 339.

56. Ibid. at 340.

57. Ibid. at 334-35, 353-54.

58. Ibid. at 121-23, 213, 218, 328-29 (page misnumbered as 228), 334.

59. Ibid. at 128-29, 205.

60. Ibid. at 124. In a similar complaint from the nobles: “Let decisions by the superior courts not be issued earlier than 6 a.m., let them be read and signed within twenty-four hours after the judgements have been made,… and see that similar measures are adopted in the lower courts.” Ibid. at 210.

61. Ibid. at 349-50.

62. Ibid. at 120-21, 206.

63. Ibid. at 121 (clergy, back to the end of Louis XII's reign, i.e., 1515); 208-09 (nobles, back to the reign of François I [1515-47]). The reign of Henri II (1547-59) was widely regarded as the time when the number of officers began to multiply out of control, partly because Henri created the présidiaux jurisdictions. The Third Estate asked that no new jurisdictions be created, ibid. at 348.

64. Ibid. at 359.

65. Ibid. at 129, 212.

66. For the jurists' attachment to this concept of justice, see Kelley, Donald R., “Murd'rous Machiavel in France: a Post Mortem,” Political Science Quarterly 85 (Dec. 1970) 545–59CrossRefGoogle Scholar.

67. Mousnier, supra note 10 at 631-58.

68. Chartier and Nagle, supra note 19 at 92, 108-9, based to a large extent on the published edition of local cahiers by Durand, Yves, Cahiers de Doléances des Paroisses du Bailliage de Troyes pour les Etats Généraux de 1614 (Paris, 1966Google Scholar).

69. Richet, supra note 19 at 72.

70. Ibid. at 75-81.

71. Stocker, Christopher, “Judicial Reform and Renaissance Monarchy,” Proceedings of the Western Society for French History 3 (1975) 13–22Google Scholar.

72. Hamscher, Albert N., The Parlement of Paris after the Fronde, 1653-1673 (Pittsburgh, 1976) 155–95Google Scholar.

73. Cary, supra note 5 at 44-132.