The
Ranums'
Panat Times
Volume 1, redone Dec. 2014
Marie Houllemare, Politiques de la parole: le parlement de Paris au XVIe siècle (Geneva: Droz, 2011)
No essay-review about a book can be equal to actually reading the book. What follows is lengthy, and indicative of one reader's deep engagement with this book.
Marie Houllemare (henceforth shorted to "MH") thankfully spares her readers any word play on the word parler in the name Parlement, something trendy literary scholars could not keep themselves from doing. And in the same vein, readers thinking that they may find a Saussurian play on the concept parole will be disappointed.
Instead, readers will find a very strong general interpretation of the Parlement as a sphere, or raum, of discursive activities centering on the rendering of justice. The works of J.G.A. Pocock and Quentin Skinner are cited, but MH does not explore texts with their rigor and the techniques of close reading. The works of that learnedly brilliant scholar at the University of Grenoble, Francis Goyet -- e.g., Le sublime du lieu commun (Paris: Champion, 1996) -- have provided the warp to a deeply researched study of the place (sic, that word so dear to rhetoricians) that rhetoric occupied in elite Humanist legal cultures in sixteenth-century France. This is a pioneering effort to recover a dimension in legal culture that is too often noted but rarely scrutinized.
The affinities between rhetoric and history have been very very strong since the ancient Greeks. May the same be said for jurisprudence and rhetoric? Across the centuries, philosophical perspectives have challenged the place of rhetoric in legal thought. Philosophers of language are generally the first to critique techniques of persuasion as obscuring of meaning. In general, however, the synthesis and program of royalist historical and rhetorical practice set forth by Guillaume Budé would come to prevail across the sixteenth century, and most strongly in the robin culture of the law courts and universities en province. As J.H.M. Salmon put it, quoting Budé: "rhetoric required knowledge of history, together with 'a style' graceful through nature and ready invention, and the discretion and prudence to adopt what is said to the audience and the circumstances of the occasion" (Renaissance and Revolt ... Cambridge, UK: 1987, p. 31, from the American Historical Review, 1980, pp. 307-331). The Budé quotation is from Institution du Prince, ed. C. Bontems (1965), p. 87. So the program that MH discerns was in place at least from the 1520s of pursuing historical learning, and eloquence in prose and speech. Donald Kelley, the modern historian who has pioneered in discerning modern historicism, recognized in a short but emphatic statement the presence of the rhetorical (The Foundations of Modern Scholarship, New York, 1970, chap. 2); but his aim became to elucidate, through various case studies, what can only be called a contemporary philosophical perspective on the past. This was more than the recovery of antique historical thought. How to grasp history and law could become almost indistinguishable for a François Baudouin. Philosophical, not rhetorical, as J. Franklin's Jean Bodin and the Sixteenth-Century Revolution in the Methodology of Law and History, New York, 1963, a remarkably erudite and powerful reading of Bodin and Baudouin. So in reading MH, the tension between rhetoric and philosophy is evident for a reader of Kelley and Franklin.
For MH this historicist perspective on the law came to a dead end in relativism, an assertion not substantiated by sources. It is evident that in the parlementaires' search for ever more certain and convincing foundations for the authority of law, their speech began to take on the character of speech in the tower of Babel. Did rhetoric strengthen that authority in an atmosphere of intense intellectual debate, particularly theological contestation? I doubt it. In the weakening authority of the court, rhetoric may have been more of a problem than a solution.
As a place for speech, the Parlement's various chambres were very constraining, routinized and reserved for the very few besides membres de droit. Maîtres des requêtes en quartier could come in; court proceedings could not be conducted elsewhere unless ordered to do so by the crown. And with audiences à huit clos where unannounced observers secretly listened from the lanternes until the premier président signaled to open the doors, so that what he wished to announce would be communicated to those waiting in the Grande-Salle du Palais. The Arconville-Brisson case probably took place in the Tournelle because it involved a murder.
MH begins by being unwilling to let her research be framed by the corporatist discourse that is so strongly articulated in, for example, the more political speech acts made by the Parlement to the king. Françoise Autrand's attention to a "groupe d'hommes" is noted; but her corporational interpretation is not followed. Mousnier's definition of a corps is noted and rejected. Efforts to go deeper towards a political-cultural approach are most welcome to readers; but when this involves simply ignoring a major theme in the Parlement's self-identity, this historian becomes skeptical.
The quotation that Monique Morgat-Bonnet picks up from Ernst Kantorowicz has stuck in my mind. In a remonstrance presented to Charles VIII in 1489, the Parlement defined itself as "un corps mistique meslé de gens ecclesiastiques et lais, tous en autorité de Senateurs, representant la personne du roy, car c'est le dernier ressort et la souveraine justice du royaume de France, le vray siege, auctorité, magnificence et majesté du roy." ("Le cadre institutionnel ..." in Sylvie Daubresse, Monique Morgat-Bonnet and Isabelle Storez-Brancourt, Le Parlement en exile... Paris, 2007, p. 153, quoting the French translation of the Deux corps du roi, Paris, 1989, p. 164.)
So rich in parlementaire vocabulary, this quotation might serve to convince MH regarding the ontological body of the Parlement. I am uncertain at this point whether non-corporatist framing facilitates, or does not facilitate the analysis of the weakening and the strengthening of word meanings, a key element in the three-legged stool of rhetorical studies.
Two final preparatory notes: 1) the use of the phrase bibliographie sélective may well be an honest recognition of the fact that a complete one is impossible; but it may also be sophistic. 2) Secondly, when did Sorbonne professors give up assigning topics for doctoral theses? Perhaps after 1968? In earlier decades, professors did not permit students to work on topics as close as MH's Politiques de la parole is to Daubresse, Le Parlement et la voix de la raison, Geneva: Droz, 2005. The works are very different, and it is true that the Parlement is an inexhaustible subject; but I believe that MH has had to research and write an almost meta-history of the Parlement, and this has required her to keep to a minimum the usual descriptive material that has come to the subject over the decades. And both Daubresse and MH have had to work hard to avoid Nancy Roelker's central theme in One King, one Faith, the Parlement of Paris and the Religious Reformations of the Sixteenth Century, Berkeley, 1996 -- a well-researched, engagingly-written, and important study by a late friend! And neither Daubresse nor MH were able to take into account J. Parsons's The Church in the Republic, Washington, 2004. Then, there is Eric Nelson's equally recent The Monarchy and the Jesuits, Aldershot: Ashgate, 2004. Thus the religious dimensions in the big works coming out on the western side of the Atlantic are mentioned by MH but are bracketed. As I write this, a host of other works comes to mind, notably the not-yet-published thesis by Tyler Lange on the role that canon law still played in deliberations, which is confirmed in MH's Politiques de la parole.
* * *
A discourse is not a speech act. It is an ensemble of logically related, or at least inferentially related word-thoughts. A major theme in MH's book is that the Parlement's principal duty is to render justice. She notes when the Parlement takes up political matters, and she quotes various chancellors and kings who harangue the judges about staying out of politics and to concentrate upon rendering justice. Are these two discourses, or one? The vocabularies would seem to be the same, but emotional valences and contexts could certainly differ. MH sometimes refers to discours without bringing up to the reader the constituent parts. She also has a habit of using transhistorical words, e.g. expérience and public, without contexts that make their meaning more historical.
The Parlement obliges litigants to put conflictual social situations into words, and a resolution is performed in the form of a judgment. Thus the Parlement ought not attempt to extend its sphere beyond this judging, yet believed it had the duty to counsel the king ever since the days when it emanated from the curia regis. Therefore, when the Crown exhorted the judges to stick to judging, it discursively denied the Parlement's role as counsel. When MH emphasizes the role Parlement's role as conflict resolver, she inadvertently expresses the king's views, thereby creating, throughout her work, something of a fault line or artificial distinction between judging and counseling.
The first theme is the procedure in criminal cases, where Al Soman's work is front and center. There is an emphasis on the orality in cases that actually went to trial. Litigants often spent more on cases than was actually at stake; this, of course, opens up the whole issue of honor and shame.
Quotation marks around the word "voix" are difficult to interpret. Is it a single voice or many voices? Is it the issue of whether institutions speak? Remonstrances are in the Parlement voice; ordonnances are not. The effort to speak in one voice had to be made in each judgment. Oaths taken by the conseillers, both ecclesiastical and lay, seem not to have attracted MH's attention, yet they were deemed essential to the formation of the corps, and they were used in attempts to bring about religious conformity. The divinity of laws was certainly part of the larger discursive frame that made the Monarchy divine. The notion that the Parlement was an assembly of voices is true, certainly, on one level; but the royal collective voice prevailed, even when the king was not a party.
MH observes increased participation later in the reign of Henry II, and notes the clashes with Francis I after he returned to find an enhanced political role on the part of the Parlement as a result of a Regency and royal-hostage moment. The emphasis on the clash between the conseil du roi and the Parlement has perhaps occupied historians too much; but it has been a way of evaluating the shifts in the equilibrium of royal powers. The king's need for help on matters affecting the Church, the ever-contesting prince, and Regencies, ought to be noted, to question a sort of teleological outlook that oversimplifies these relations.
The very frequent, almost constant clashes over the creation of new venal offices must be considered political, no matter what the Crown's discourse was regarding the reform of justice that resulted from having more judges.
The second chapter centers on Henry II's good will in the early years of the reign, and on how remonstrances became a modality for clarifying royal legislation. Olivier's years as chancellor are briefly summarized, but little attempt is made to explain why the years of cooperation occurred. Just who in the conseil du roi supported Henry II? The assertion that the councilors were lobbied more than the parlementaires, surprises. It stands to reason, but is it true? There is some attention to clientage in this work, but more research needs to be done. N.M. Sutherland's book on Henry III's councilors is not in the bibliography.
Chapter 3 describes the ceremonial of the Parlement and, after a brief review of the issue of secrecy, concludes on the theme of the relations between the Parlement and the public. The terms repr¨¦sentation and public are used as if their meanings have remained entirely stable over the centuries. On the latter, H. Merlin's work is cited, but there is no engagement with it in the text. Do ceremonies "reflect" or constitute a royal presence? The Parlement was part of the mystical body of the Monarchy. When the Parlement condemned someone to death, it was the king who did it. May historians be making too much of the royal word? Raised in functionalist thought and not always reading Louis Marin, has MH found the ontological dimension of divine-right royalism impossible to believe?
Was a public admitted to the chambre de la Tournelle? Pasquier's account of a murder case suggests that it could be. Probably not in the Grand'Chambre. And despite the way the estates are represented in engravings, public presence would have been reserved for the Grande-Salle du Palais.
Chapter 4 breaks new ground by exploring orderings of oral and written speech. A quotation from Michelet frames the inquiry by stressing the relation between speech and identity. After briefly presenting the venerable debate about which came first, speech or writing, and Aristotle's view that one ought never be privileged over the other, MH turns to the question of authority in both. For Pasquier an avocat either had talent, or did not, his success being determined by the way he spoke, his gestures, his presence. For Achille de Harlay, an avocat's talent and success depended on his social rank and his professionalism.
The role of the greffier was to redact, in an impersonal language or style, the various constituted parts of a law case, to delete distinctive vocabularies and probably some of the argument. As more and more pleas were printed, they were resumed more briefly in the registers. Points of law and questions of procedure might be added by an avocat, perhaps even though they had not been made before the court. The special clerkly language was the Parlement's, and it probably had some Atticist inspiration, anti-rhetorical in the extreme. The Parlement, not the greffier, was the author: first-person references were very infrequent, as were self-referral in general and humor. Not translation, not transcription, the language of the Parlement constituted the State as a person.
In Fiction in the Archives, N.Z. Davis describes how plaintiffs would come together en famille with friends and clients to construct and agree upon what would be said as testimony before the court. The greffier created a different type of single narrative in its attempt to reduce potential grounds for conflict. The registers thus became the official memory of the Parlement and therefore was a key voice in the state. Judges had access to the registers (did avocats?) and made additions and deletions, probably when the greffier was absent. Peremptory royal interventions to tear out pages bearing decisions that displeased them occurred now and then throughout the Ancien Regime. A greffier might try to restore passages, but the absolute sovereign power expressed in establishing "what happened" had precedents in Roman imperial history. In the period of intense division and humiliation late in the reign of Henry III, large passages were torn out but were secretly kept. Pierre Pithou and some colleagues would eventually be commissioned to restore excised material, a process brilliantly explored by Daubresse, a work I look forward to reading and commenting upon.
In 1572, before King Henry himself, Pierre Séguier noted that his reign had already yielded seven fat volumes of edicts and ordonnances, whereas Louis XII, in his seventeen-year rule, produced only one register. What an insightful measure of governmental activity! MH occasionally considers efficacité to be an element in parlementaire history; but for this historian it is an anachronistic measure for any governmental institution prior to the attitudes expressed by projectors such as Laffemas or the men around Sully and, later, Colbert.
A final remark about chapter 4: why "mémoire institutionelle"? Why not histoire? Throughout the parlementaire speech acts there are references to "histoire," and there is argument grounded on "histoire." "Institutional memory" is more trendy, but MH does not explain why she chose "memory" over "history." When La Roche-Flavin wrote his Treize livres ... (the word histoire is not in the title), he probably held such a lofty notion of what histoire was, that the history of a mere institution, no matter how illustrious, could not come up to representative antique models, or even to Machiavelli's Ten Books .... I note that Maurice Halbachs's work on collective memory is in the bibliography, but none of the distinctions between individual, collective and institutional m¨¦moire that are important to him, are brought to bear on the construction of the Parlement of the past by the greffiers, and subsequently by historians of institutions. See my Mémoires de l'establissement des secrétaires d'Estat (which will eventually return to this post-crash site) about the pioneering works by de la Loupe, Figon et al. If MH believes that mémoire institutionelle more accurately describes the phenomenon than would histoire, it would have been interesting to have her reasons.
On page 152, anent a royal suppression of twenty-six edicts in 1596, MH notes that the only evidence for opposition to this act of absolute authority is found in private archives. She does not mention which archives; but if these archives were those of a judge in the Parlement, were they in fact private? From time to time the chancellor, or the king himself, would order the confiscation of papers from the private residences of high- and low-ranking officials.
Part II of the book, "Rhétorique de l'Éthos," begins with the education and professional training of the avocats and parlementaires that gave them a common Humanist culture. Universities are listed, but little attempt is made to discern their programmatic differences. Perhaps the teaching of Cujas and his disciples has been overemphasized; but for almost anyone whom one chooses to study, one finds students moving from Bourges to Toulouse, Cahors, Valence, in pursuit of the teachings of a specific professor. The emphasis on family cohesiveness brings the study by Françoise Autrand to mind (it is cited). The corporate identity that became so strong that individual and familial comportments had to give way and become secondary to the required modes of speaking, acting and, indeed, thinking within the corps that was the Parlement. Rhetorical texts might have been taught in some collèges, but it would seem that barristers and councilors learned their rhetoric as young professionals in law courts. In MH's content-analysis of a sample of pleas, in the citations canon law comes out ahead of customary law, or even royal legislation; yet training in canon law is not noted as being part of robin culture. Of course, "l'étude est aussi un lieu de représentation" (p. 174); but the Weberian perspective, which suggests that study legimates the powers and claims of the magistracy, comes closer to what toga-wearers were doing before their colleagues and the public (J.M. Châtelain).
The number of avocats who had been admitted to the bar rose from 83 in 1522 to 409 in 1562, then fell back to 307 by 1602. The late 1550s and early 1560s, as we shall learn, was a special moment in the legal culture generally, in 1) the non-confrontational relations between the court and the conseil du roi, 2) the movement to redact customary law by Christophe de Thou and his commission of avocats, and 3) the application of philological method to the study of Roman law by Budé's disciples. The "nationalization" of the style du Parlement occurred at a time of intense reflection and anxiety by many of the clergy, over perceived contradictions between prescriptive institutional conduct and laxity, simony, and general corruption. MH scarcely mentions how perspectives that cast doubt on the conduct of churchmen might have affected the "priests of the State," that is, the royal judges who asserted the divine origins of the laws they enforced, and of the Monarchy. Why were judges anxious about the creation of new venal offices in the Parlement, through the actual doubling, or near doubling of the number of members by the creation of the semester? A Pocock or a Skinner approach to speech acts in the Parlement would reveal the vulnerability of parlementaire language grounded on a rigorous separation between rendering justice and self-serving monetary transactions - not merely bribery and office purchases but also lending money, notably to the grands; and MH considers neither religious beliefs, so often tied to a Gallican view of the court's role, nor attitudes toward wealth to be part of the ethos of the Parlement. Yet she has accomplished so much that one dare not ask for more.
The statistics on the number actually pleading before the court suggest that legal business was pretty scarce for many avocats. Yet there are assertions in MH that there was a major increase in litigation. And there was the royal boilerplate (a metaphor for langue de bois) about the need for more judges, notably by creating pr¨¦sidiaux, because the king's subjects lacked access to justice! These arguments were framed in Ciceronian or Quintilianesque rhetoric, but was anyone deceived? The prices for an office rose from 11,000 livres in 1597 to 36,000 in 1606, just two years after the crucial legislation on venality of office known as the Paulette (1604).
The corporatist frame for understanding the robins' ethos would have placed history, a body of knowledge that was perhaps mythical at times and that was centered on the dynasties of kings, the oath-taking, the vestment-wearing and the general ceremonial, as integral to a historical vision of the Parlement. The history of battles with the Papacy and of the ever-present defenders of the Papacy in the Parlement, would be central to this interpretation. If it was becoming increasingly difficult for an avocat to become a conseiller, the corporate hardening might well have strengthened and virtually codified the elements of a parlementaire's mental outlook, including religious conformity.
Having proposed a content analysis based on the pleas selected from civil cases in ten-year slices, MH characterizes the fact and proof in pleas and their sober and measured prose. The Parlement fostered a non-Ciceronian Atticism (a mean -- Aristotle's "golden mean"? -- between non-emotional rigor and Asianism, that is, painting things with words) that was close to Erasmian ideals centered on a language of truth. The specific examples are very interesting and convincing: one spoke well, but not at the expense of gravitas; and it was frowned upon to abandon reasonableness in favor of emotional appeals. Her discussion of precedents in these cases, of proofs, and of the ambiguity of admitting guilt is capped by noting what Montaigne says about witnesses. MH carefully elucidates the oral and the written aspects of procedure; precedents seem to function similarly in both. Having recourse to a theoretical argument in a law case is, obviously, interpreted as weakness. In the 148 citations from Guillaume Poyet's pleas, 43% come from canon law, 18% from Roman law, 23% from commentators on Roman law, 6% from royal ordonnances, and 1% from customary law. In d'Alligret's pleas, customary law rises to 12%, but the percentages for canon and Roman law are roughly the same as in Poyet's pleas. In Lizet the figure for royal legislation is higher, but canon law and glossators total 24%. Dr. Tyler Lange's yet-to-be published Berkeley dissertation boldly charges historians for understating the role of canon law in the Parlement's legal proceedings; he is confirmed by MH's study of the civil pleas. Obviously, the issues before the court influence the type of law cited in the pleas. A distinct increase in evocations of Roman law developed at mid-century, as exemplified by the fact that 51% of Christophe de Thou's numerous citations in the Laval affair evoke Roman law. Within these choices, a more historical approach to Roman law would be accompanied by an apparent questioning of its applicability. There was increased recourse to feudal and customary law, but the latter would never gain prominence, despite the patriotism of jurists. Royal legislation was also challenged as religious quarrels and civil war weakened the Monarchy. Citations from the Bible and from natural law were not counted; but in his 1588 opening of Parlement, President Achille de Harlay characterized natural law as distinct from positive law. Justice, and indeed the word of a judge, was defined as above the law, thereby empowering judges to render decisions unsupported by any specific law. This does not surprise, because, if my memory serves me, justice above or outside the law is a tenet in ancient jurisprudence, especially ancient Greek.
In a thorny quarrel between artisan corporations, a statute from 1389 was deemed inapplicable because it was old! This is a wonderful illustration of the limits on historical precedentalism in the court. Only late in her work does MH note some cases that were evoked by the Crown for judgment by commission, or by the Grand Conseil. Did evocations become more frequent, or more infrequent across the century?
MH ends the chapter by pulling together comments that indicate extreme skepticism about virtually any and all sources of law, and this was partly articulated by the judges themselves. The rising influence if rhetoric had contributed to this sorry state of affairs. The learning and the richness of this chapter will take some time to be fully grasped and integrated into more general perspectives in legal history, corporatist history and the history of thought. I say Bravo!
In chapter 7, on the orators of the later sixteenth century, MH hits her stride and brilliantly recreates a mental word in which the learned magistrate strives increasingly to be eloquent, despite (or because of?) civil war and clashes over religion. J.-A. de Thou notes that the Cardinal Charles of Lorraine (I cannot recall the year) requested the Parlement to bestow the title "orateur" on him. Thanks to her ontological perspective, MH is recovering the powers of words; she might also have noted the powers of titles. For centuries, a reference to the "philosopher" referred to Aristotle. In the Humanist centuries, and perhaps earlier, references to the "orator" meant Cicero. Here Lorraine was claiming a recognition for his eloquence and his rank as homo politicus and homo ecclesiasticus. The Parlement, no doubt embarrassed and divided, declined!
MH, in the path cleared by H.-J. Martin, Françoise Lehoux and Anne Pardailhé-Galabrun, literally measures the rise of belles lettres as a percentage of books in Parisian legal libraries. Legal works remain in the majority, but the humanities gain a place above theology. The latter category contains, I suspect, works of piety such as books of hours, although these frequently were not included in inventories and are therefore difficult to measure. But the point is that these works of piety could also belong to the category "literature," strengthening MH's findings. Far more works are on ancient law, especially ancient Roman law, than on recent law or collections of ordonnances; this suggests slow change, if not lag. Volumes of extracts and commonplaces were found in both large and small libraries.
Going deeper, MH does a content analysis to determine just how Antoine Séguier read, a superb study that reveals how the parlementaire engaged with a text, removing double negatives as he copied it out, or changing the sense from negative to affirmative. Of the 140 citations from the Essais, 69 are exact, 19 approximate, 17 truncated, 15 summed up, 11 have introductory remarks, 7 have changed syntax, and 1 is unidentifiable. Thirty notations, almost a quarter of the total, derive from the Apologie de Raimond Sebond! Thus, not only what a judge read, but also how he read. As Séguier aged, he repeated almost-incantatory formulas such as "j'ai dis vouloir conserver la loi." During the intense religious storms of the League, Séguier, like de Thou, turned to reading Jerome, Augustine, Tertullian and Cyprian, as well as works by his contemporaries, Mornay, du Perron and Grenade. In 1589 Séguier read and reread Livy, as he sat on rocks near the Seine. There is much more here that confirms the remark that later-generation humanist judges read widely beyond legal studies. Anne Robert's reading and note-taking reveal just how activist rhetoric could be - not just a body of rules to be applied in written or oral pleas. Faced with increasing divisions within his law court and society, and with violence in political discursive conflict, S¨¦guier gave himself over to resignation, yet continued to read and comment upon works on ancient history that shed light on the political.
A close reading of a plea by Robert for a case involving the physicians of Orl¨¦ans, raised the issue of possible enchantement. While in no way excluding the possibility that a doctor may have divine knowledge, he resolutely refutes the possibility that the diabolical might yield medical knowledge, thereby confirming R. Mandrou's thesis (not cited). At his death, Robert left a library of 495 titles and 1445 volumes, more of them in Paris than in his country house.
There is a very rich discussion here of the rise of the use of citations, and the subsequent decline of the practice. Variety of expression is sought (there is a rhétorique du chiffre!), as the discourse of friendship increases in use among fellow jurists. Opening speeches, eulogies, and speeches welcoming guests or new colleagues become frequent and florid. Pibrac is presented at some length, to exemplify just how deeply and subtly rhetoric had permeated the judges' thinking, speaking and writing in the reign of Henry III. The conclusion to the chapter becomes apparent: the oratorical art had become more important to the parlementaires than expertise in the law! And this occurred during the decades of intense division, violence and general political upheaval. I wish MH had explored a possible relation between these two major historical movements.
It might also be noted that, thanks to philology, the reception of
antique thought had reached a level of historicity, and that editions of
all the known major texts texts -- juridical, medical, theological,
literary, philosophical -- had generally been edited and published by
1600. Not a few of them having been worked on by parlementaires, these
editions would not be superseded until the later-eighteenth-century
Scottish and the nineteenth-century German scholars emended and
republished them. Budé's program of learning and eloquence had
been fulfilled. The learning side of the equation would weaken in the
last two centuries of the Ancien Régime. Legitimation by learning
inevitably declined.
MH does not quite say this, but the learning
side also suffered from the increased number of pleas that were written
in order to be printed. Although still in legal language, and very
probably still written with the aim of attracting readers from the legal
profession, a certain dumbing-down would be inevitable, even while the
reading public increased. Resorting to printing one's pleas coincided
with increased emphasis on eloquence and on the ability to extend an
argument beyond the court, to the public.
Chapter 8 explores the origins of what would become the "causes célèbres" of the eighteen century, as Sara Maza has studied them. Private-life litigation comes into the public sphere, sowing skepticism about legal procedures and justice itself. MH stresses how publication led avocats to individualize their writing and vocabulary: as avocats became authors who published, appeals were increasingly grounded on emotion. MH uses the hoary term "naturalization" to describe the various poses a writer might assume: for example, he could refer to himself as a rapporteur, thus appearing to be more "objective," more detached from the case. MH wants her readers to think of Barthes here, as legal discourse increasingly became everyday discourse. Printed factums and volumes of arrêts opened the doors, as it were, of the Parlement and permitted readers almost to participate vicariously in its proceedings. There would be a slow but certain rise in the use of the first person, and refinement of all the techniques of mise en page as well as the use of italics to enhance the authority of texts. The parlementaires remained reluctant to follow the lead of the avocats, whose corporatist sense and "collective mémoire" became more overt in the decades when the magistrates remained divided, humiliated and uncertain of their status with the public.
In Part III, "Penser l'institution," emphasis is placed on the conceptual frames used by the parlementaires in their effort to add luster and legitimacy to their corps. The four succeeding chapters explore what are often considered to be metaphors, but they are really historical parallels. The ancient Roman senate (Republican or Imperial?) is introduced. Parlementaires and crown officials alike frequently referred to the Parlement as a Sénat. Chancellor François Olivier, in 1549, offered a powerful historicist and destructive critique of what was, essentially a Weberian strategy to legitimate the Parlement. While Henry II's relations with the court were cooperative, references to the Parlement as "senate" ceased in the discourse that emanated from the conseil du roi. MH's emphasis on the moment of cooperation, including accepting non-confrontational remonstrances by the conseil, reminds us that the telos in Parlement-conseil relations really dates from the eighteenth century and that there were therefore, off and on, years of good relations throughout the "modern" centuries. See A. Hamscher, The Conseil Privé and the Parlements in the Age of Louis XIV (Philadelphia: American Philosophical Society, 1987.) After 1551, relations soured, until the explosion of 1558 when Henry came to the Grand'Chambre and interrupted its proceedings. The years of Chancellor de l'Hospital's service were therefore stormy, and there was a sort of intellectualization of the clash, partly because the chancellor firmly insisted on the hierarchies of divided powers, making the Parlement feel curbed and excluded from the political sphere it had come to occupy ever since the regency of Francis I. References to laws -- for example, the lois fundamentales -- became more rhetorical and political, as part of the Parlement's defense.
The chapter on the Parlement as theater, playing on the meaning of the space, and the activity within it, turned out not to be what I expected. At no point does MH delineate the "roles" of the gens du roi, nor does she lift the veil and show exactly what the judges or the king and his councilors, expected from the chancellor. Just what were the premier président's duties? How could he influence his colleagues by arranging schedules and agendas? In the seventeenth century (e.g., Molé), the royal councilors expected the premier président to "manage" the court and to be coercive, if necessary.
Instead, MH explores what is only a parallel on a word for a discursive space or scene of action such as a battle. She reaches beyond the Grand'Chambre to other institutions, to illustrate her point; but the only theater that both the "public" and the gens sans aveu would have been watching was a procession in the street, not the proceedings in the Grand'Chambre. True, the parlementaires were the public, as were the avocats, the greffiers, the notaries, the scribes, the nobles and the clergy - and possibly some bourgeois de Paris; but very few of these people would have had access to the lanternes, those screened spaces that permitted a handful of public persons to watch (not attend) proceedings in the Grand'Chambre. I am surprised that nothing is said about the lanternes. Could they have been added to the Grand'Chambre in the seventeenth century? The 1651 engraving reproduced in S. Berti¨¨re's edition of Cardinal Retz's M¨¦moires (Paris: Garnier, 1997, plans and illustrations, n.p.) depicts a lanterne with a classical pediment over the doors, hardly consistent with the style of Louis XII. Once an arr¨ºt had been voted, the doors would be opened and a huissier would be charged to convey the results to any and all in the great hall.
MH has pulled together a great deal of interesting material about emotional valences, narrative, anti-femininsm, justice, injustice, orality and writing, as well as Bodin's neo-Platonist analogies between mathematics and social harmony and music. Did the decline of the authority of Roman law, medieval law, and presumably even the Bible, enhance the theatricality of the court? The intensification of the rhetorical -- not even natural law but divine law -- agreements appealed in a pervasive atmosphere of intense division, intimidation and panic.
In a chapter on the Parlement as a temple, MH finds that under the scrutiny of the League, and owing to general religious reform, the "motif" of the temple came to be more frequently employed, as those of the senate and the theater declined. She describes the sacred space and iconography of the temple, and the goddess Justice with her scales and blindfold. In this atmosphere of intensified scrutiny of each judge by religious zealots in the Parlement, increased individualization of the Gallican church became inevitable, and the divine origins of law and the sanctity of arr¨ºts were emphasized. Did judges have to give personal testimonials about their beliefs, to satisfy their zealous colleagues? MH draws on works by Nancy Roelker and Colin Kaiser to capture the coercive atmosphere and intimidation that came over the Parlement. Judges were scrutinized for their moral uprightness and their doctrinal correctness, as if the sacred atmosphere of the Grand'Chambre could be extended to the street. There is little discussion of oaths, yet the presidents sought to enforce uniformities by requiring them. Oath-taking is a feature of the État de droit. There seems to have been more focus on overt conformity on matters of faith, unlike the radicalization of the Parlement during the Fronde, with its discourse about bribes, large dowries, high office prices, and general "corruption." MH suggests that, during the lasts decades of the century, there was still further slippage toward the political, at the expense of the judicial.
Given that Huguenots called their houses of worship "temples," did the "motif" temple, to signify the Parlement, have less metaphorical force?
In the clashes of civil war and religious partisanship during the last decades of the century, the avocats tended to pepper their pleas with more and more specific allusions to current political, cultural and religious issues; thus the Parlement became like the ancient Roman forum, that is, a site of public debate around the rostra.
There is some interesting material drawn from G. Brunelle's study of merchants in Rouen (Kirksville, 1991), regarding the parlementaires' unadaptability to meet the need for rapid judicial decisions in commercial matters; but the major Parisian case explored is the squaring off of Pasquier and Versoris in 1564 over whether the Jesuits would be authorized to have a collège in Paris. (J. Parsons wrote his senior thesis about it at Harvard, cf. his Church in the Republic.) MH seems somewhat surprised at the intensity of Pasquier's Gallicanism and his appeal to a civic general interest. This shift to issues of general principles of governance is what makes the case worthy of being paralleled with the discursive strategies used by Cicero, for example, in the Forum. Versoris as well would be forced to move to a level of general principle, thereby leaving the facts of the case pretty much behind. In its actions, the Parlement sought a middle ground -- or, as we say now in the U.S., "kicked the can down the road." I would have liked some comment about the divisions among the judges over the issues at hand. An equally tough case involved the Pré-aux-Clercs in 1548, but in that instance, as de Thou remarks, the judgement was accepted by all. Rare indeed are references in this book to the conseil du roi; but in the case involving the Jesuits, the parlementaires turned to the conseil owing to their own failures, and not because the avocats were resorting to general principles.
References to the ancient Forum were rare (only La Roche-Flavin makes them), because the robins comprehended the nature of classical republicanism and wanted none of the dangers associated with popular powers or with judges conducting themselves as tribunes. But MH misses the nuances in classical thought about the forms of government. Within the sixteenth-century French Monarchy --characterized elsewhere as a "mixed monarchy" -- there could be (and were) oligarchic and even democratic political institutions and collective actions. To which senate, the republican one or the wobbly survivor under the princeps, did the judges allude? And references to France as a "république" or a "chose publique" to characterize the very nature of the Monarchy, may be found in many texts across the sixteenth century.
There is a brief narrative over the 1594 case involving the Jesuits, and the role that Arnauld played by not hesitating to mobilize public opinion. (But see his son's account of the popular response at his funeral.) Forum, the Parlement therefore became; and magistrates would seem less politicized than avocats, but this may be an illusion. The pleas of the avocats have survived; the deliberations in the Grand'Chambre have not (but see Jean Le Boindre's Débats du Parlement dating from the Fronde years). From W. Bouwsma's article of 1973 and L. Berlanstein's Barristers of Toulouse (Baltimore, 1975) and on to M. Fitzsimmons of 1987 and D.A. Bell's work of 1994, the avocats have been singled out as generators of civic discourse and action. MH contributes mightily to these findings by insisting on the "coming out," through published pleas, of the avocats, to create or constitute a public more by discourse than by rank. Nobles and magistrates, that is, the lay public, over the centuries found themselves being swept along into the world-view being articulated slowly but surely by the avocats. The Pierre Corneille of H. Merlin would construct worlds and historical-mythical moments, with coherent historical morals, that plea-readers would find exciting.
In the end, MH's general statements about the Parlement as an institution remind this reader of Roland Mousnier's characterization of an institution that earlier in the book was dismissed as "anachronistic." True, Mousnier does not try to measure the degree of ceremonialization and corporate solidarity in the Parlement over time, but I do not think his studies of the Ancien Régime were made to anchor a republican (or royalist) version of French history. Like MH's, Mousnier's intention was to renew institutional history, in this case not by simply re-stating Olivier-Martin or Maugis or von Gierke. It could be argued that Autrand had the same intentions, though she seems less concerned about seeking to impose a new vocabulary. Mousnier's definition also includes "procédures imposées," that is, kings and the conseil du roi legislated coercively, thereby partly constructing the Parlement over the centuries -- which is, of course, correct. But the phrase "[la] construction conceptuelle précède la construction concrète" and the citing of Cosandey and Descimon brings Mousnier's "idée directrice" to mind. To be sure, Mousnier was a royalist, but he was also a professional historian.
When I reviewed M. Fumaroli's Éloquence et "res literaria," I concluded by saying: "Fumaroli has published a work of great erudition in the service of a personal quest for understanding what discourse can do, and cannot do. Some years of reflection will have to pass before his contribution can be assessed." Over the last twenty-five years, I have come to realize that it is a monumentally great book. When faced with discourse and within the rhetorical in general, historians step back and wait, especially when rhetoric is employed anachronistically to bring out the not-thought, or the no-longer-thought to the surface of empowered speech. If "history" as argument in a plea failed to persuade, why did Quintilian's rules seem to be the only recourse?
MH's work humbles this plain-old historian who can still laugh at the scenes from the ancient Roman court in Uderzo and Goscinny's Les lauriers de César. To their consternation, two lawyers find that they had planned to use the same citation from Cato the Elder, the subject of which has nothing to do with the case before the court. Not all the robins were superbly trained and eloquent. But the routine humdrum of deliberations in a law court cannot be heard; they are like lawyers who have never pled a case and who remain in the shadows, praying in the Sainte-Chapelle or drinking at the buvette.