Compulsory Registration and Its Limits, 1665–1671

1 Compulsory registration and its limits, 1665–1671 Every student of French history knows that Louis XIV deprived the parlements of their most important power and function – that of opposing new legislation, especially fiscal legislation, when it first appeared before them. Given the ten- dency of the parlements to obstruct new legislation, frequently under Henry IV and Louis XII and periodically under Louis XV and Louis XVI, the reign of Louis XIV stands in sharp contrast in this regard. Curiously, however, even the most recent studies offer little in the way of narrative, analysis or background to explain how, why and under what circumstances the parlements lost their powers to obstruct new laws for the first time in their history. In treating this subject, most historians point to the ordinance of civil procedure of 1667, which curtailed the use of remonstrances by the parlements, and the declaration of February 1673, which regulated the procedure by which the tribunals registered the laws. But other kings had restricted remonstrances in ways that resembled the provisions of the ordinance; and few historians have appreciated the original features of the declaration, let alone explained why the government needed to enact it, once it had issued the ordinance. In any event, the mere cita- tion of the laws of 1667 and 1673 cannot tell us how and why, or much about when, the government of Louis XIV, in contrast with both its predecessors and its successors, imposed its will upon the parlements in the registration of laws.1 The issue merits a fresh examination. Like his predecessors, Louis XIV had to deal with two essential questions, those involving extraordinary and ordinary registration: 1) whether the king could resolve legislation disputes by the extraordinary method of compulsory registration, as in a lit de justice or its provincial counterpart; and 2) whether the king could make the parlements stop modifying and delaying laws that they received in the ordinary way, by mail or by courier. In 1667, Louis XIV tried to deal with both these issues in title I of his new ordinance on civil procedure. He succeeded only with the first, although that success amounted to a big step forward. Unlike any of his predecessors, this king made the lit de justice and the provincial forced registration into effective ways to get his laws registered, once 17 John J. Hurt - 9781526137487 Downloaded from manchesterhive.com at 09/29/2021 12:37:36PM via free access Louis XIV and the parlements and for all. He made compulsion work. This chapter explains the circumstances and the process by which Louis XIV achieved that result. Even so, the ordinance did not enable the king to gain full control over the registration powers of the tribunals, especially those of modification and delay, the second part of the question. For that, he would have to exert himself all over again, as the next chapter explains. When Cardinal Mazarin, his only prime minister, died on 9 March 1661, Louis XIV came into his own as ruler of France. In the beginning, the king governed with the ministers he inherited from Mazarin, but he did make an important new appointment. Jean-Baptiste Colbert (1619–1683), a descendant of a family of judicial and financial officials who rose in the service of Mazarin, gained Louis’s confidence soon after the cardinal’s death. Realizing that the monarch disliked and feared Nicolas Fouquet, the superintendent of finances, Colbert helped bring about Fouquet’s arrest on 5 September 1661, dislodging the rival who had blocked his personal ascent. The king made Colbert a royal minister (ministre d’état), or member of the High Council, the cabinet in whose sessions the monarch adopted, administered and enforced his policies. Colbert also served on the Council of Dispatches and the new Royal Council of Finances, the other bodies that together with the High Council enjoyed the status of governing councils. By virtue of these positions Colbert exerted con- siderable influence over policies affecting the parlements. In addition, he pre- sided at sessions of an important administrative council, the Conseil d’État et des Finances, which also issued decrees concerning the tribunals. Even before he became controller general of finances in 1665, Colbert had taken over all polit- ical and financial relations with the law courts, having driven the aging Chancellor Séguier out of most areas of domestic administration, a sharp break with traditional practice.2 For the most part, Colbert approached the Parlement of Paris and the provincial tribunals with firmness but with no a priori intention of reducing their role in French public life, let alone in the registration of laws. He did not at first envision a future in which the parlements would passively accept involuntary registrations or register new legislation automatically, without modification or delay. Surprisingly, Colbert did not even take a particularly strong stand when the government first addressed registration issues. In his memorandum of 1665 for the new Council of Justice, appointed to draw up an ordinance on civil procedure, he was resolutely moderate, urging restraint in dealing with the parlements and opposing any resort to ‘a single blow’ in the form of some harsh new law contrived to curb their excesses. Only weak kings, such as Charles IX or Louis XIII, resorted to shock therapy, he maintained; and once they died, the parlements quickly recovered any ground that the monarchy had gained. Instead of some bold stroke, Colbert wanted to apply moderate pressure over a long term, hoping to improve the behaviour of the parlements step by gradual 18 John J. Hurt - 9781526137487 Downloaded from manchesterhive.com at 09/29/2021 12:37:36PM via free access Compulsory registration step and for all time. Although Colbert would eventually change his mind, he was, as the Council began its work, a dove among hawks. His moderation is even a bit surprising since his father, the financier Nicolas Colbert, once went bankrupt with a traité owing to difficulties created by the Parlement of Rouen.3 In addition to Colbert, members of the Council of Justice included Chancellor Séguier and veteran councillors of state, masters of requests and prominent Parisian barristers. Henri Pussort, Colbert’s choleric uncle, who had newly risen to prominence, also secured an appointment. Pussort advocated a much firmer line on the parlements than Colbert and advanced his views when the Council deliberated on appropriate procedure for the registration of laws, the first item on its agenda. On 25 October 1665, the Council finished title I, the king himself having participated in its sessions. Three articles of this title treated registration procedure.4 Of these, the most important was certainly article iv, which dealt with compulsory registration, even though this article has not received much historical attention. The article applied to lits de justice, in which the king himself brought legislation to a tribunal, ordinarily the Parlement of Paris. The words ‘persons whom we have commissioned for this task’ extended its scope to include forced registrations conducted in the other high courts of Paris by members of the royal family and in provincial parlements by governors and intendants. Article iv provided that all laws registered in the presence of the king or at the hands of his representatives should be ‘kept and observed’ from that very day forward. This operative phrase required the parlements to implement at once, and without any further deliberations or decrees, any laws registered under duress, a change that previous monarchs had tried unsuccessfully to introduce on several occasions.5 In other words, article iv intended to make compulsory registration that final word in the registration process which constitutional theory and parlementary precedent had so carefully avoided for so long. It proclaimed that the king could register laws on his own authority and that once he had done so, the parlements lacked any further recourse. The members of the Council of Justice drafted the article for this very purpose, as the procès-verbal, the summary of their discussions, revealed. Pussort, who spoke often and at length, explained that the words ‘published in our presence’ were intended to override the magistrates’ contentions that laws took effect as a result of their deliberations and their liberté de suffrages. To the contrary, Pussort argued, the king made the laws valid when he issued them, as the ‘only sovereign’ and ‘only legislator’. The way in which the parlements registered laws did not affect those laws at all. One could not distinguish between laws certified by the parlements as a result of a free vote and laws registered by the will of the king alone, as though the former were morally and legally superior to the latter. Pussort thus led a verbal assault upon the fortress of constitutionalist thought, but he did not attack the bastions alone; other members of the Council endorsed his views.6 19 John J. Hurt - 9781526137487 Downloaded from manchesterhive.com at 09/29/2021 12:37:36PM via free access Louis XIV and the parlements François Verthamont, a councillor of state, agreed that the Parlement must implement any laws registered in a lit de justice without delay, any further deliberations on its part being out of order once a compulsory registration had occurred. Vincent Hotman, an intendant des finances, denounced the notion that the king somehow compromised the laws by asserting his authority in a lit de justice. Nicolas de La Reynie, the future lieutenant général de police of Paris, summed it up when he said that once the king had expressed his will, it became irrelevant whether or not the parlements verified laws.

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