|Kingdom of France|
- This article is about the French Ancien Régime institution. For the post-Revolutionary and present-day institution, see French Parliament. For the general governmental concept, see Parliament.
The political institutions of the Parlement in Ancien Régime France developed out of the previous council of the king, the Conseil du roi or curia regis, and consequently had ancient and customary rights of consultation and deliberation.1 In the thirteenth century, judicial functions were added. The parlementarians were of the opinion that the parliament's role included active participation in the legislative process, which brought them into increasing conflict with evolving monarchic absolutism during the Ancien Régime, as the lit de justice evolved during the sixteenth century from a constitutional forum to a royal weapon, used to force registration of edicts.2
Originally, there was only the Parliament of Paris, born out of the king's council in 1307, and sitting inside the medieval royal palace on the Île de la Cité, still the site of the Paris Hall of Justice. The jurisdiction of the Parliament of Paris covered the entire kingdom as it was in the fourteenth century, but did not automatically advance in step with the enlarging personal dominions of the kings. In 1443, following the turmoil of the Hundred Years' War, King Charles VII of France granted Languedoc its own parlement by establishing the Parlement of Toulouse, the first parlement outside of Paris; its jurisdiction extended over most of southern France.
From 1443 until the French Revolution, several other parlements were created in various provinces of France, until at the end of the Ancien Régime provincial parlements were sitting (clockwise from the north) in Douai, Arras, Metz, Nancy, Colmar, Dijon, Besançon, Grenoble, Aix, Perpignan, Toulouse, Pau, Bordeaux, Rennes and Rouen. All of them were administrative capitals of regions with strong historical traditions of independence before they were incorporated into France. Assembled in the parlements, the largely hereditary members, the provincial noblesse de robe, were the strongest decentralising force in a France that was more multifarious in its legal systems, taxation, and custom than it might have seemed under the apparent unifying rule of its kings. Nevertheless, the Parlement of Paris had the largest jurisdiction of all the parlements, covering the major part of northern and central France, and was simply known as "the Parlement".
In some regions provincial Estates also continued to meet and legislate with a measure of self-governance and control over taxation within their jurisdiction.
All the parlements could issue regulatory decrees for the application of royal edicts or of customary practices; they could also refuse to register laws that they judged contrary to fundamental law, the local coutumes, of which there were some 300 jurisdictions in France or simply as being untimely. Membership in those courts was generally bought from the royal authority; and such positions could be made hereditary by payment of the tax to the King (la Paulette).
|Provincial "parlements" or "conseils souverains" (shown in historic provinces of France) during the Ancien Régime. Dates indicate creation of the parlement.3|
The Parlement had the duty to record all royal edicts and laws. Some, especially the Parlement de Paris, gradually acquired the habit of refusing to register legislation with which they disagreed until the king held a lit de justice or sent a lettre de cachet to force them to act. Furthermore, the parlements could pass arrêts de réglement, which were laws that applied within their jurisdiction.
In the years immediately before the French Revolution, their extreme concern to preserve Ancien Régime institutions of bourgeois and noble privilege prevented France from carrying out miscellaneous reforms, especially in the area of taxation, even when those reforms had the support of absolute monarchs.
The beginning of the proposed changes in France began with the Protests of the Parlement of Paris addressed to Louis XVI in March 1776, in which the Second Estate, the nobility of France, resisted the beginning of certain reforms that would remove privileges from the Second Estate, notably their exemption from taxes. The objections made to the Parlement of Paris were in reaction to the essay, Réflexions sur la formation et la distribution des richesses ("Reflections on the Formation and Distribution of Wealth") by Anne-Robert-Jacques Turgot. The Second Estate reacted to the essay with anger and with desperation to convince the king that the nobility still served a very important role in France and still deserved the same privileges of tax exemption as well as for the preservation of the guilds and corporations put in place to restrict trade, both of which were eliminated in the reforms proposed by Turgot.
The core concerns of this parliamentary meeting were to address some of the suggested reforms proposed by Turgot, which included taxing the Second Estate depending on the amount of land that they owned; all taxes had been a duty of the Third Estate, or the common people of France.
The personal service of the clergy is to fulfill all the functions relating to education and religious observances and to contribute to the relief of the unfortunate through its alms. The noble dedicates his blood to the defense of the state and assists to sovereign with his counsel. The last class of the nation, which cannot render such distinguished service to the state, fulfills its obligation through taxes, industry, and physical labor.
The Second Estate (the nobility) of France consisted of approximately 1.5% of France's population, and was exempt from almost all taxes, including the Corvée Royale, which was a recent mandatory service in which the roads would be repaired and built by those subject to the corvée. In practice, anyone who paid a small fee could escape the corvee, so this burden of labor fell only to the poorest in France. The Second Estate was also exempt from the Gabelle, which was the unpopular tax on salt, and also the Taille, the oldest form of taxation in France, which was based upon how much land a person owned.
The Second Estate was going to have to pay the Taille, and all those who had to pay the Taille, by law, were also (theoretically) subject to the Corvee. The nobles saw this tax as especially humiliating and below them, as they took great pride in their titles and their lineage, many of whom had died in defense of France. They saw this elimination of tax privilege as the gateway for more attacks on their rights and urged the Louis XVI throughout the Protests of the Parlement of Paris not to enact the proposed reforms.
These exemptions, as well as the right to wear a sword and their coat of arms, encouraged the idea of a natural superiority over the commoners that was common through the Second Estate, and as long as any noble was in possession of a fiefdom, they could collect a tax on the Third Estate called Feudal Dues, which would allegedly be for the Third Estate's protection (this only applied to serfs and tenants of farmland owned by the nobility). Overall, the Second Estate had vast privileges that the Third Estate did not possess, which in effect protected the Second Estate's wealth and property, while hindering the Third Estate's ability to advance. The reforms proposed by Turgot and argued against in the Protests of the Parlement of Paris conflicted with the Second Estates’ interests to keep their hereditary privileges, and was the first step toward reform that seeped into the political arena. Ironically, Turgot's reforms were unpopular among the commoners as well, who mistakenly saw the parlements as their best defense against the power of the monarchy.
This behavior of the parlements is one of the reasons that since the French Revolution, French courts have been forbidden by Article 5 of the French civil code to create law and act as legislative bodies, their only mandate being to interpret the law. France, through the Napoleonic Code, was at the origin of the modern system of civil law in which precedents are not as powerful as in countries of common law. The origin of the weakness of the French court system, with no rule of precedent, no single supreme court and no constitutional review of statutes by courts, is usually traced to that hostility towards "government by judges".456
In civil trials, judges had to be paid épices (literally "spices" – fees) by the parties. Civil justice was out of reach of most of the population, except the wealthiest and best connected.
Regarding criminal justice, the proceedings were markedly archaic. Judges could order suspects to be tortured in order to extract confessions or induce them to reveal the names of their accomplices: there were the question ordinaire ("ordinary questioning"), the ordinary form of torture, and the question extraordinaire ("extraordinary questioning"), with increased brutality. There was little presumption of innocence if the suspect was a mere poor commoner. The death sentence could be pronounced for a variety of crimes including mere theft; depending on the crime and the social class of the victim, death could be by decapitation with a sword (for nobles), hanging (for most of the secondary crimes by commoners), the breaking wheel (for some heinous crimes by commoners), and even burning at the stake (for heresy, or advocacy of atheism). Some crimes, such as regicide, exacted even more horrific punishment. With the spread of enlightenment ideas throughout France, most forms of judicial torture had fallen out of favor, and while they remained on the books, were rarely applied after 1750.
Since in current French language usage, parlement means parliament q.v., as in the English expression Parliament of France, there is confusion about the historical role of the parlements under the Ancien Régime.
The following articles deal with certain of the former parlements of the provinces of France:
- (French) Bluche, François. L'Ancien régime: Institutions et société. Collection: Livre de poche. Paris: Fallois, 1993. ISBN 2-253-06423-8
- (French) Jouanna, Arlette and Jacqueline Boucher, Dominique Biloghi, Guy Thiec. Histoire et dictionnaire des Guerres de Religion. Collection: Bouquins. Paris: Laffont, 1998. ISBN 2-221-07425-4
- (French) Pillorget, René and Suzanne Pillorget. France Baroque, France Classique 1589-1715. Collection: Bouquins. Paris: Laffont, 1995. ISBN 2-221-08110-2
- (French) Saint-Bonnet, François. “Le contrôle a posteriori : les parlements de l’Ancien Régime et la neutralisation de la loi”. Les Cahiers du Conseil constitutionnel, N° 28 (2010).
- The first coherent modern history of the Parlement is Félix Aubert, Histoire du parlement do Paris de l'origine à François I, 1894, extensively reviewed and epitomized by G. W. Prothero, "The Parliament of Paris", The English Historical Review, 13, No. 50 (April 1898), pp. 229-241.
- Mack P. Holt, "The King in Parliament: The Problem of the Lit de Justice in Sixteenth-Century France" The Historical Journal 31.3 (September 1988:507-523).
- Dates and list based on Pillorget, vol 2, p. 894 and Jouanna p. 1183.
- Michael H. Davis, The Law/Politics Distinction, the French Conseil Constitutionnel, and the U. S. Supreme Court, The American Journal of Comparative Law, Vol. 34, No. 1 (Winter, 1986), pp. 45-92
- James Beardsley, Constitutional Review in France, The Supreme Court Review, Vol. 1975, (1975), pp. 189-259
- Denis Tallon, John N. Hazard, George A. Bermann, The Constitution and the Courts in France, The American Journal of Comparative Law, Vol. 27, No. 4 (Autumn, 1979), pp. 567-587
- Abstract of dissertation "'Pour savoir la verité de sa bouche': The Practice and Abolition of Judicial Torture in the Parlement of Toulouse, 1600-1788" by Lisa Silverman.