Modern history

III THE SWAN SONG OF THE PARLEMENTS

The Assembly of the Notables was a remarkable instance of a group hand-picked for compliance discovering instead the excitement of opposition. The more vocal their complaints, the more enthusiastically they were applauded in pamphlets and broadsides. The lapdogs of the government had turned into the terriers of the people. Many of the provincial magistrates, municipal councillors and bishops who had come to Versailles at least neutral towards the cause of tax reform found that by sheer obstruction they could exert more power than they had ever imagined. Their entry into political life was thus defined as opposition rather than co-optation. And even after the Notables had been dismissed, this approach of creative truculence persisted.

The immediate stumbling block for the government’s program was the Parlement of Paris. When Brienne’s administration presented its proposals to that court in May and June 1787, the Parlement sat in its augmented form as the Court of Peers. This expansion included a number of lay peers of the realm, many of whom had been Notables – as indeed had prominent magistrates themselves. The intensity of Parlementaire opposition was not preordained, since the court (as well as the supplementary peerage) was beginning to divide within itself on the political costs of opposition. Président d’Aligre, who represented the older and professionally senior magistrates, had in fact suggested to Brienne that he could expect a degree of cooperation from the court on registering loans and some of the major items left over from the agenda of the Notables, in particular the customs union and the reestablishment of freedom of the grain trade. And so indeed it proved at the outset. Even the provincial assemblies, which were regarded with deep suspicion as dependencies of the government rather than truly free deliberative bodies, failed to rouse united opposition among the provincial Parlements. But d’Aligre and his governmentally inclined colleagues like Séguier were con-fronted with two other groups within the court who used sheer rhetorical force to seize the political initiative and to stigmatize collaboration with the government as a betrayal of Parlementaire tradition.

What made matters worse was that the more formidable of these two groups came from the highest ranks of the magistracy. It was led by Jean-Jacques d’Eprémesnil, a squat figure whose peppery eloquence more than compensated for his lack of inches. D’Eprémesnil’s position was conservative, even reactionary. But that did not compromise its popularity. On the contrary it probably strengthened it, since so much of what was to be revolutionary feeling drew its force from wounded reaction rather than high-minded progressivism. D’Eprémesnil’s rhetoric was a throwback to the resistance against Chancellor Maupeou and the Controllers-General of Louis XV. He reiterated their standard view that the Parlements had the responsibility to guard the “fundamental laws” of France against ministerial designs on the “liberties of the people.” But he had more ambitious plans for constitutional reconstruction, summarily stated as “de-Bourbonizing France.” He meant to take the argument beyond the boundary of resistance to unlawful edicts and to press instead for a positive share in the making of legislation: in effect, a redefinition of sovereignty. In 1777 he had already made it clear that this was not the role of the Parlements. Rather their opposition had to act as midwife to the Estates-General, with which such responsibility for the creation of new law truly lay. This was his position ten years later. Brienne must have supposed that the gravity of the financial crisis would persuade orators like d’Eprémesnil to suspend this doctrine at least until the emergency had passed. But the lions of the Parlement were disinclined to political mercy. On the contrary, it was precisely the plight of the government that they saw as offering a supreme opportunity to force the end of absolutism. It would indeed be a revolution but one made not in blood but law: a French edition of the Glorious Revolution of 1688.

The trouble with this prognosis was that belief in it was not shared by all those who, for the time being, rallied to d’Eprémesnil’s opposition. A younger and more aggressively radical group of advocates in the Parlements (including Hérault de Séchelles and his friend Lepeletier de Saint-Fargeau) saw the Estates-General not as an end but a beginning of a new France. This group, led by the twenty-eight-year-old Adrien Duport de Prelaville, was a minority within the senior magistrates of the Grand’ Chambre, but it commanded a much larger and noisier following among the barristers and trial lawyers of the junior courts, the maîtres d’enquêtes. Duport had himself become a councillor in the Chambre at the tender age of nineteen, was a friend of Lafayette’s and made his house on the rue du Grand Chantier a center of discussion about the political future of France. Chez Duport (he dropped the aristocratic “de Prelaville” to identify with the Third Estate in 1788), the talk was not of traditional privileges and the old Estates so much as a sovereignty vested in the citizenry. Many of these radical arguments had been set out in Saige’s Catechism of the Citizen, a widely read work that had a new edition in 1788. For Duport’s group, this new sovereignty was to be embodied in a nationalrepresentation, and by “national” they necessarily meant antithetical to privilege, differentiation and the separation of social orders.

As long as it was the Parlement itself that seemed to be the focus of resistance and thus the target of government force, the two groups would come together in a show of solidarity. Both had an interest in denying the government any possibility of carrying out its programs without paying the price of constitutional devolution. But as soon as that price had been conceded, and the issue of representation came to the fore, the differences would emerge with sudden and brutal clarity. In the end it would distinguish citizens from nobles, revolutionaries from conservatives. The British Ambassador in Paris saw that, one way or another, the current campaign would be ultimately self-defeating. Either the Parlementaires would provoke the government into drastic repression or the Parlements would yield to more genuinely representative institutions. In any event it was “the last gasp of the Sovereign Courts.” And not all of the magistrates were themselves oblivious to what was in store. Etienne Pasquier, who was to end up a chancellor of the Napoleonic Empire but who in 1788 was an impressionable young lawyer, recalled in his memoirs that

the sober heads of the Grand’ Chambre were troubled at the prospect. I could never forget what one of those old judges said to me as he passed behind my bench and saw how enthused I was. “Young man, a similar idea was brought forward in your grandfather’s time.” This is what he said then: “Messieurs, this is not a game for children; the first time that France sees the Estates-General she will also see a terrible revolution.”

Any such reservations were drowned out by the inspirational power of d’Eprémesnil’s rhetoric. Brienne’s scheme to supplement the revenues of the land tax with a stamp duty played straight into d’Eprémesnil’s hands. Not only was it an immediate reminder of the tax that had triggered the “sacred cause” of liberty in America, but the Parlementaire orator was able to represent it as an imposition that would strike the great and humble alike, festooning tradesmen, booksellers, shopkeepers and guildsmen in reams of paper, and which would furnish yet another pretext for the heavy hand of government to press on the shoulder of defenseless citizens. On the subject of the fines to be meted out to those discovered leaving their papers unstamped, d’Eprémesnil produced a cascade of oratorical melodrama:

It is cruel to imagine the lonely citizen living in the most profound solitude, the tranquil merchant working to increase the national commerce… the wise practitioner consecrating his labors to the repose of families – all face the appalling prospect of finding themselves linked together by a common chain and subject at the moment they least thought themselves vulnerable… to fines whose weight would swallow up… the innocent along with the guilty…

Relishing its role as defender of the weak and puny, Parlement rejected the stamp duty outright on July 2. Two weeks later the amended land tax met the same fate. It was apparent to the government by now that the majority of the Parlement was bent on thwarting any measures that would recover freedom of action for the state. So a collision became inevitable. On the sixth of August, the King convened a lit de justice at the Parlement. The Grand’ Chambre was jammed with hundreds of magistrates and peers sweating into their robes in the broiling summer heat. Despite the drama of the occasion Louis XVI took the presence of the ceremonial “bed” too literally by falling asleep early in the proceedings, forcing Lamoignon to raise his voice above the powerful royal snoring coming from beneath the corner canopy. He was gratified, he said, that the Parlement accepted the principles set out by the Notables (for it had indeed registered edicts on the grain trade, the corvée tax and the customs union). The tax laws were then to be registered, in the traditional form, since le roi le veult.

A day later, d’Eprémesnil declared the enforcement of the edicts to be illegal and thus null and void, a view which was formalized in a grand remonstrance. “The constitutional principle of the French monarchy,” it flatly stated, “was that taxes should be consented to by those who had to bear them.” And on August 10 the Parlement took the counter-attack further by instigating criminal proceedings against Calonne (who, by this time, was safely in England). Duport took the opportunity to launch a ferocious attack on the discredited Minister. He was declared to be the fountainhead of infamy and corruption – pecuniary, political and sexual. Indeed, he was said to be so obnoxious that merely to refrain from proscription constituted a kind of tacit endorsement. Duport’s vituperation, which drew on violent polemics then circulating written by the publicists Bergasse and Carra, was an important moment in the history of revolutionary rhetoric. It was the first time that the prosecution of a particular politician was worked into a general indictment of the sitting administration, even if that administration had no part in his conduct. This incrimination by association was to be a standard tool of opposition groups exploiting the public need for villains on whom whatever disaster was in the offing could be blamed. During the Revolution these campaigns would produce not just scoundrels but traitors, and they would be not merely disgraced but guillotined.

As the Parlement rode high on foamy waves of oratory, it was carried along by powerful and noisy public support. Beyond the Grand’ Chambre itself, the basoche of the law – scribes, pleaders, sedan-chair carriers, printers and colporteurs: the entire commonwealth of the Palais de Justice – constituted a perpetual and noisy claque cheering their heroes, booing villains (like the Comte d’Artois) and urging the magistrates on to greater shows of defiance. In their turn they took this theater outside to the Pont Neuf, the Palais-Royal and the cafés, and to a pamphlet press that was growing daily more uninhibited in its denunciations of government “despotism.” Government affiches were torn down as soon as they were posted; effigies of Lamoignon were burned in the streets. And as resistance became more daring, so Brienne and Lamoignon collapsed back onto the stereotypes prepared for them by acting as counterrevolutionaries. There was a kind of surgical deliberateness on their part that uncannily anticipated the systematic counter-revolutionary tactics of the nineteenth century. First they acted to close the “theater” and deport the actors – Parlement was exiled to Troyes on August 15. On the seventeenth the Palais de Justice was itself invested by Swiss guards who sealed off the entrance and exits of the chambers to prevent the physical disruption of the enforced edicts. This was followed by a mopping-up campaign to silence the opposition. Printers were raided, journals closed down and, most strikingly, any club or assembly that might be suspected of fomenting opposition was closed down. This included those notorious nests of subversives, chess clubs.

The exile at Troyes together with the sudden and heavy use of force did little to silence the uproar in the streets. But it undoubtedly sobered the magistrates themselves. It did, at any rate, dispose some of the less courageous among them to listen to the prudent counsels offered by the older magistrates like d’Aligre and Séguier. At the same time, during August, an interesting transformation was taking place. Provincial assemblies were being inaugurated with a great patriotic fanfare by the intendants, who ostentatiously declared them to be a transfer of power from the King’s servant to the People. Since the assemblies were recruited from the lower levels of the legal profession, from functionaries and physicians as well as from the loyal nobility – in other words, from the reading classes – they were deliberately designed to undercut the claims of the Parlements to represent the Nation, especially in matters of taxation. The formal adieux of the intendants emphasized this peaceful revolution. “The Nation has summoned you,” declared Bertier de Sauvigny, opening the assembly of the Ile-de-France on the eleventh of August; “… enlightened by your own interest and excited by the spirit of patriotism you will show no less zeal than I in establishing a just proportion for taxes… you will be moved to tears by the enormous burden of the taxable.”

De La Galaizière, in Alsace, in a remarkable speech on the twentieth of August, was even more self-conscious about the significance of the moment. It was, he told the assembly,

a memorable epoch in the history of our century and nation… Time, the progress of knowledge, the change of manners and opinions have brought about and necessitated revolutions [his word exactly] in the political system of governments. Over thirty years we have seen patriotic ideas sow themselves invisibly in every head. Every citizen today desires to be called to support the general good. This disposition cannot be too much encouraged. The King wishes above all the happiness of his subjects.

Elsewhere, intendants competed with each other in expressions of zeal for the common good. At Caen, for example, Cordier de Launay compared Louis XVI with Solon and Lycurgus and claimed that his own heart was “burning with new patriotism.”

The authorized encouragement of this kind of language clearly represented an attempt by the government to come between the Parlements and people. By stressing the social equity of the work of tax assessment and by co-opting personnel who might otherwise have been expected to belong to the Parlementaire camp, the government was trying to show that the reforms were popular rather than bureaucratic. And its efforts were by no means wasted. During the autumn all the evidence suggests that the provincial assemblies did in fact begin their work in earnest and that Parlementaire protests became desultory and ineffective. And this development may well have prompted a more conciliatory attitude in the Court of Peers in Paris.

At the same time, more moderate voices in the government itself were trying to work out a compromise that would enable revenue to be collected without political confrontation. The addition of Malesherbes in August was especially significant since no one knew better than he to take remonstrances seriously. He reminded his colleagues that, whether they liked it or not, “the Parlement of Paris is at this moment the echo of the public of Paris… and that of Paris is the echo of the entire Nation… So we are dealing with the entire Nation and it is to the Nation that the king responds when he answers the Parlement.” Malesherbes was also unafraid of the prospect of the Estates-General. In fact he envisioned it as a way for the authority of the monarchy to be enhanced rather than diminished.

There was, then, some room for negotiation on both sides. But in the compromise that emerged in September, it was Brienne who appeared to have gone more than halfway. The new land tax that all along had been at the heart of the reform program and on which a major reconstruction of public finance depended was rescinded. With it went the unlamented stamp duty. In their place, Brienne asked for exactly the kind of palliative he and Calonne had hoped to avoid: a second, traditional vingtième tax (imposed, like past vingtièmes, on all sections of the population). This was to be collected for five years, by the end of which the Estates-General would be summoned. The edict of suspension on the Parlements was also withdrawn. By abandoning confrontation, the government hoped to buy five years of political peace during which the finances of the state could be repaired. There would not only be light at the end of the tunnel but a blaze of royal sunshine. To the Cour des Pairs on the nineteenth of November Lamoignon held out the alluring prospect of 1792:

His Majesty in the midst of his Estates, surrounded by his faithful subjects, confidently presenting to them the comforting picture of order restored to finances, of agriculture and commerce mutually encouraged under the auspices of freedom, of a formidable navy, the army regenerated by a more economical and military constitution, of abuses eliminated, a new port built on the English Channel to insure the glory of the French flag [Cherbourg!], of laws reformed, public education perfected…

Though the more radically minded among the magistracy were reluctant to accept anything the government had to offer, opinion was divided on the degree of obstruction the court should place in its way. As a result, the outcome of the proceedings of November 19 was uncertain. The government still lacked tact. Anxious about the intimidation of the moderate magistrates, it had again invested the Palais de Justice with guards. Under this military presence tempers frayed. D’Eprémesnil and the Comte d’Artois nearly came to blows over the serious issue of parking for their respective carriages in the courtyard. But the form the assembly took was meant to be reassuring: a séance royale in which opinions of all sorts were permitted to be aired, and the King sat on a dais rather than beneath the ominous canopy that betokened the compulsion of the lit de justice.

After a long day of rambling speeches it seemed likely that the Parlement would in fact register the new edicts. But a completely unpremeditated turn of events shattered the grudging consensus. The King himself, perhaps irritated by repeated calls for the Estates-General to be summoned earlier than 1792, was determined to avoid a vote and ordered the registration of the edicts. He had, in effect, impulsively converted the more informal séance royale into a coerced lit de justice. The response to this brusque proceeding was an appalled silence, finally broken from the unlikeliest quarter. The King’s cousin Philippe, Duc d’Orléans, got to his feet. This was, to say the least, unexpected. The entire royal family – Bourbon, Condé, Orléans – (the Conti excepted) were famous for their conspicuous inability to articulate anything in public that was not prescribed by ceremony. Artois, who could fulminate impressively in private, several times struggled to defend the royal will in the Cour des Pairs but invariably collapsed either into stuttering incoherence or sulky silence. Orléans, the great proprietor-patron of the Palais-Royal, liked to surround himself with wits and intellects. The teams of literary drones (including Mirabeau and Choderlos de Laclos) who all produced polemics on his behalf gave Orléans an undeserved reputation for political outspokenness. But his intervention on November 19 was nonetheless an immense shock to detractors and admirers alike. Turning directly to the King he remarked, “Sire, I beg Your Majesty to allow me to place at your feet and in the heart of this court [the view] that I consider this registration illegal.”

It was one of those theatrical moments that, frozen in time and embellished in his son’s memoirs, would be represented as the first revolutionary tableau. The King’s response unerringly struck the worst possible note – petulance followed by facetiousness. “The registration is legal because I have heard the opinions of everyone.” He then followed this strange non sequitur with an offhand, bantering jest at Orléans: “Oh well, I don’t care, you’re the master, of course.” The effect of this peculiar performance could not have been more damaging: despotism that failed to have the courage of its convictions.

At that point Louis and his brothers left the Parlement; Orléans remained to recite a text that had obviously been prepared for him confirming the illegality of the proceedings. His strategy to turn himself into a popular hero was further gratified by arrest and exile to his estate at Villers-Cotterets, where he reveled in the reputation of a martyr for the cause of liberty. His château even began to take on the character of an alternative court. Two other Parlementaires, deemed to have spoken insolently, were also arrested.

Orléans’ intervention proved to be another turning point in the sabotage of any kind of collaborative reform between government and Parlements. Resigned to a more systematic show of force, Brienne decided he had little to lose by pressing the tax issue further than his September agreement with the Parlements had suggested. The vingtième was deemed not to be an open-ended tax but one which was required to meet a specific revenue figure of the government. Any shortfall was to be made up by so-calledabonnements – in effect, supplements levied through the provincial assemblies. This looked suspiciously like the abandoned land tax promulgated by stealth.

As a result of this maneuver, the plausibility of the provincial assemblies as bulwarks of the people’s welfare was fatally damaged. Their members either began to resist the intendants or else abandon cooperation with the government and offer expressions of support instead to the Parlements. In January 1788, Lafayette reported to Washington his own pleasure in the assembly of the Auvergne at Riom, where he succeeded in obstructing attempts to collect additional revenue. “I had the good fortune,” he wrote, rather smugly, “to please the people and the misfortune to displease the government to a very high degree.” Moreover, the doctrine allowing that the thirteen Parlements were in reality one unified body vested with the protection of French liberties had made such headway that the Parlement of Paris spent the spring of 1788 issuing a series of pronunciamentos, in effect declaring this to the King. On April 11 the Parlement of Paris told the King that “the will of the King alone is not enough [to make] law”; on the twenty-ninth of April it formally refused to endorse any further collection of revenues and on May 3 it insisted that the Estates-General was a precondition of future taxation and that lettres de cachet and other arbitrary arrests were unlawful.

For its part, the government was now disinclined to sit still. On the seventeenth of April, in a speech written for the King, Lamoignon had represented royal authority as a shield against sectional interests. If the courts could coerce the royal will, “the monarchy would be nothing but an aristocracy of magistrates, as contrary to the rights and interests of the nation as to those of the sovereign.” But this tactic of “popular absolutism” was not confined to rhetorical rebuttals. Its most powerful weapon was a set of judicial reforms of breathtaking sweep and boldness. They were plainly intended to destroy the oppositional power of the Parlements once and for all. But the stripping exercise was meant as a precondition for a wholly new system of justice that could plausibly bid for public support. Once again the government shrewdly targeted lawyers lower down in the legal hierarchy (and blocked from advancement by the high magistracy) for co-optation. The minor courts of the provinces were suddenly to be exalted to the status ofgrands bailliages and it was these courts which would henceforth deal with the vast majority of criminal and civil cases. The Parlements would be restricted to cases concerning the nobility and civil actions over twenty thousand livres. They would, in effect, be reduced to an intra-elite arbitration bureau. They were also to be stripped of their political power to register edicts before they became enforceable. This power would belong instead to one central “plenary court” appointed by the government. With this drastically reduced volume of business, many of the offices currently required by the Parlement ceased to serve any purpose and would be eliminated. And the deliberately antiaristocratic bias of the reforms was further emphasized by abolishing the “seigneurial courts” through which the nobility administered personal justice to their peasant dependents.

Together with its new provisions concerning prisons and procedure in capital sentences, Lamoignon’s revolutionary program was intended to create “enlightened justice”: swift, impartial, accessible to the majority of Frenchmen and free from the clutches of the venal aristocracy. In keeping with many other reforms of the period, it was a direct attack on corporate institutions and the most dramatic example of the ancien régime slain by its own government. It was for this reason that many members of the liberal intellectual elite, like the Marquis de Condorcet, found it hard to deny the value of the reforms. In a similar spirit Lally-Tollendal believed that the “plenary court” would be more likely than the Parlement to produce a “Magna Carta” for France.

Any rational appraisal of the reforms was, however, drowned out by the howl of rage against the way they were introduced. They also had geopolitical implications that provoked more opposition than assent. The demotion of the old Parlementaire centers meant the loss of their monopoly over justice to neighboring towns of the province, and stirred up a hornet’s nest of local jealousies. In Brittany, for example, Rennes would see its privileges devolved to rival centers like Nantes and Quimper. Throughout France there were countless small-town competitions to be new administrative and legal centers – organized by precisely the professional classes who stood to gain from the transfer of authority. And these battles of provincial clerks continued with a vengeance – sometimes literally – throughout the Revolution.

In the pamphlet campaign against Lamoignon, he was commonly said to have been possessed by the spirit of Chancellor Maupeou, who had engineered the last assault on the Parlements. The more extreme of these polemics featured Brienne and Lamoignon in compact with an even more formidable power of darkness – the Devil – to destroy the liberties of France. In the Dialogue Between M. the Archbishopand M. the Keeper of the Seals, Brienne confesses that the grands bailliages were meant to deceive the people into believing that justice would remain. But once the Parlements had gone, he would “deprive them [the new courts] of the slightest breath of life.”

LAMOIGNON: But justice will be very badly dispensed.
BRIENNE: What does that matter…? And if someone screams, the cries of individuals don’t concern me at all. We have only to fear the Remonstrances of the Parlements… but soon (a delicious prospect) the Sovereign Courts will neither be able to write nor to speak. My genius will be able to proceed without finding my steps dogged by inconvenient nay-sayers…

The sheer volume and audacity of the antigovernment polemics guaranteed that whatever concessions to the “public good” were embodied in Lamoignon’s reforms, they would be preempted by their political repercussions. And the government could hardly have been confident about their reception since it determined to enact the program with swift and overwhelming force. On May 6, d’Eprémesnil and Goislard, the two leaders of the resistance in Paris, were arrested. Two days later Lamoignon himself braved the sullen but implacable hostility of the Parlement to enforce the edicts in a lit de justice. Throughout France, this scenario of military determination was repeated at the twelve other centers of the sovereign courts, where troops had been posted to persuade the magistrates to depart peacefully on their obligatory “vacation.”

None of this worked. Neither the official publicity about the salutary effects of the reforms nor the military planning with which they were enacted could allay the immense outpouring of public wrath. It extended from the legal proletariat of sedan-chair carriers, wig makers, scribes and stall holders through the corps of working advocates and barristers all the way up to the high nobility and clergy. And the din was heard from one end of France to the other. What was especially ominous for the government was that resistance to the decrees actually appeared more intense in the provinces than in Paris. In Pau in the Pyrenees, a violent demonstration on June 19 broke open the doors of the Palais de Justice to demand the reinstatement of the Parlement. Unable to summon troops to so remote a province with the necessary speed, the royal governor had no alternative but to let the magistracy remain and calm the situation – openly contravening the orders of the Versailles government. In the Breton city of Rennes, the intendant, Bertrand de Moleville, barely escaped being stoned. In early June, when the Parlementaires were required to leave by letters de cachet, it was the intendant, not the magistrates, who beat a hasty retreat. It took an investment of some eight thousand troops in the city before the situation was calmed in July. In Besançon, Metz, Dijon, Toulouse and Rouen there was enough organized protest for the government to order the recalcitrant magistrates into exile. And in Bordeaux, Aix and Douai – as well as in the oddly subdued Paris Parlement – the courts remained in being, but declared the edicts to be the work of unrestrained despotism.

It seemed as though the Parlements had indeed become what they had always pretended to be: the tribunes of the people. Yet at the very moment of their triumph, they hesitated to enjoy it. The rowdy physicality of the popular support they had invited took many of the magistrates by surprise. And the surprise was not always agreeable. Impromptu invasions of the Palais de Justice or of the local town hall and the willingness of crowds in the street to confront troops opened up questions of public order, which, as the accustomed guardians of the civil peace, made the magistrates apprehensive. The Parlement of Pau, which had seen some of the most violent manifestations, duly protested against the May edicts but went on to justify its protest on the grounds that they had led to incessant tumult and the destruction of property against which, it was now apparent, “the regular police is impotent.”

To those sensitive to such things, there were even more worrying signs that the crisis was rapidly ceasing to be a civil war among the elite. In Rennes, the British Ambassador was told, alarming auguries of the fall of the monarchy were circulating among the common people. On the equestrian statue of Louis XVI, it was said, the scepter held in his hand had begun to droop, perhaps by as much as six inches over a few months. By early July there was even worse news. A witness was putting it about that one hot midsummer night he had personally, definitely, seen the stone horse on which the King was seated sweat fat, viscous drops of blood.

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