Patronage, Politics, and the "Rule of Law" in Early Modern France Michael P. Breen Reed College Old Regime France, David Bell has observed, was a "judicial society" where "the experiences of the law courts were central to the way in which political action was conceptualized."1 Theorists distinguished the king's "absolute power" from the rule of a tyrant by emphasizing that monarchs governed according to the law and the public good, not their personal will.2 "The best kind of Commonweal," Jean Bodin wrote in his epochal Six Books of a Commonweale (1576), "is that wherein the sovereign holdeth what concerneth his majesty, the Senate maintaineth the authority thereof, the magistrates execute their power, and justice hath her ordinary course."3 From 1 David A. Bell, "The 'Public Sphere,' the State and the World of the Law in Eighteenth-Century France," French Historical Studies 17:4 (1992): 933. 2 This was perhaps best expressed by the oft-cited Roman Law principle digna vox maiestate regnantis legis alligatum se principem profiteri. ("It is a statement worthy of the ruler's majesty for the Prince to profess himself bound by the laws.") Codex 1.14(17). 4. For a further discussion, see Kenneth Pennington, The Prince and the Law, 1200- 1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley: University of California Press, 1993), 78-83. 3 Jean Bodin, The Six Books of a Commonweale, ed. Kenneth Douglas McRae, trans. Richard Knolles (New York: Cambridge University Press, 1962), 4:6; and David Parker, "Law, Society and the 95 96 Michael P. Breen local courts to the royal council, law provided the principal linguistic, cultural, and procedural framework through which individuals and corporations articulated, contested, and resolved disputes over the allocation of resources, status, authority, and power, even at the height of the so- called "administrative monarchy" of the late seventeenth and eighteenth centuries. Indeed, if we accept Keith Michael Baker's definition of political culture as "the set of discourses or symbolic practices" through which individuals and groups "articulate, negotiate, implement and enforce the competing claims they make upon one another and upon the whole," then law was clearly a central element of early modern French political culture. It was the law which constitut[ed] the meanings of the terms in which these claims [were] framed, the nature of the contexts to which they pertain[ed], and the authority of the principles according to which they [were] made binding. It shap[ed] the constitutions and powers of the agencies and procedures by which contestations [were] resolved, competing claims authoritatively adjudicated, and binding decisions enforced.4 While David Parker and others have emphasized the "all-pervasive legalism" of Old Regime society, historians still struggle to understand how the law shaped politics and State in the Thought of Jean Bodin," History of Political Thought 2 (1981): 273-5. 4 Keith Michael Baker, Inventing the French Revolution: Essays on French Political Culture in the Eighteenth Century (New York: Cambridge University Press, 1990), 4-5. Proceedings of the Western Society for French History Patronage, Politics, and the 'Rule of Law' 97 governance in early modern France.5 Indeed, it has been over fifteen years since Parker pointed out our need to better understand how French law and the legal system worked in practice.6 While a number of recent studies have helped to shed much needed light on the subject,7 we are 5 David Parker, La Rochelle and the French Monarchy: Conflict and Order in Seventeenth-Century France (London: Royal Historical Society, 1980), 19. 6 David Parker, "Sovereignty, Absolutism and the Function of the Law in Seventeenth-Century France," Past and Present 122 (1989): 36- 74. 7 Studies of criminal justice have dominated work on early modern law courts and justice. Some examples include Richard Mowery Andrews, Law, Magistracy and Crime in Old Regime Paris, 1735-1789 (New York: Cambridge University Press, 1994); Alfred Soman, Sorcellerie et justice criminelle: le parlement de Paris, XVIe-XVIIIe siècles (Brookfield, VT: Variorum, 1992); Malcolm R. Greenshields, An Economy of Violence: Crime and Justice in the Haute-Auvergne, 1587-1664 (University Park: Pennsylvania State University Press, 1994); Steven Reinhardt, Justice in the Sarladais, 1770-1790 (Baton Rouge: Louisiana State University Press, 1991); and Christiane Plessix- Buisset, Le Criminel devant ses juges en Bretagne au XVIe et XVIIe siècles (Paris: Maloine, 1988). James R. Farr has recently traced the workings of a noted case in seventeenth-century Dijon, exploring both the legal and extra-legal maneuvering that surrounded the so-called "Giroux affair." See A Tale of Two Murders: Passion and Power in Seventeenth-Century France (Durham: Duke University Press, 2005). Recently, scholars have begun to explore the workings of civil courts, which accounted for the vast majority of cases under the Old Regime. Some examples include Julie Hardwick, "Women 'Working' the Law: Gender, Authority and Legal Process in Early Modern France," Journal of Women's History 9 (1997): 28-49; idem., "Seeking Separations: Gender, Marriages and Household Economies in Early Modern France," French Historical Studies 31 (1998): 157-80; Jeremy Hayhoe, "Illegitimacy, Inter-Generational Conflict and Legal Practice in Eighteenth-Century Northern Burgundy," Journal of Social History 38 (2005): 673-84; and Zoë A. Schneider, "The Village and the State: Volume 33 (2005) 98 Michael P. Breen still a long way from fully comprehending why the legal institutions, legal processes, and the very language and concepts of the law itself were so pervasive in early modern French government, politics, and society.8 Most studies of early modern France tend to downplay the law's role in understanding the state's operations. Instead, they focus on patronage networks and personal ties as determining the flows of power and authority among the panoply of local, regional, and national authorities that collectively made up the French state.9 While a number of Justice and the Local Courts in Normandy, 1670-1740" (Ph.D. diss., Georgetown University, 1997). For a more general overview, see Arlette Lebigre, La Justice du roi: La vie judiciaire dans l'ancienne France (Paris: Albin Michel, 1988). 8 David A. Bell, Lawyers and Citizens: The Making of a Political Elite in Old Regime France (New York: Oxford University Press, 1994); Sarah Maza, Private Lives and Public Affairs: The Causes Célèbres of Prerevolutionary France (Berkeley: University of California Press, 1993); David Parker, Class and State in Ancien Régime France: The Road to Modernity? (New York: Routledge, 1996); Sarah Hanley, "Social Sites of Political Practice: Lawsuits, Civil Rights and the Separation of Powers in Domestic and State Government, 1500-1800," American Historical Review, 102 (1997): 27-52; idem., "The Jurisprudence of the Arrêts: Marital Union, Civil Society and State Formation in France, 1550-1650," Law and History Review 21 (2003): 1-40; and Hilary Bernstein, Between Crown and Community: Politics and Civic Culture in Sixteenth-Century Poitiers (Ithaca: Cornell University Press 2004). 9 Beik, Absolutism and Society in Seventeenth-Century France: State Power and Provincial Aristocracy in Languedoc (New York: Cambridge University Press, 1985); Sharon Kettering, Patrons, Brokers and Clients in Seventeenth-Century France (New York: Oxford University Press, 1986); Katia Béguin, Les Princes de Condé: rebelles, courtisans et mécènes dans la France du Grand Siècle (Seyssel: Champ Vallon, 1999); Jay M. Smith, The Culture of Merit: Nobility, Royal Service, and the Making of Absolute Monarchy in Proceedings of the Western Society for French History Patronage, Politics, and the 'Rule of Law' 99 recent studies have argued that clientage ties and networks of informal personal influence became more impersonal, administrative, and bureaucratic over time,10 historians of the Old Regime still tend to minimize the role of law: its procedures, institutions, and concepts.11 France, 1600-1789 (Ann Arbor: University of Michigan Press, 1996); Sara E. Chapman, Private Ambition and Political Alliances: The Phélypeaux de Pontchartrain Family and Louis XIV's Government, 1650-1715 (Rochester: University of Rochester Press, 2004); Robert Descimon, "Power Elites and the Prince: The State as Enterprise," in Power Elites and State Building, ed. Wolfgang Reinhard (New York: Oxford University Press, 1996), 100-21. Among those who consider the interplay between law and patronage are David Parker and James B. Collins. On Parker, see below, note 11. Collins sees "law," which he defines primarily in terms of the monarch's unfettered right to promulgate positive law, as an instrument of royal power. He distinguishes this from "custom" or "contractual agreements" that served as guarantees against arbitrary behavior by the king and his officials. See Classes, Estates and Order in Early Modern Brittany (New York: Cambridge University Press, 1994), 24-5. Old Regime legal thinkers, however, considered "custom" to be a basic component of the law. For this reason, I do not follow Collins's distinction here, but rather see custom and positive law as two elements of the larger network of institutions, procedures, principles, and texts that comprised the "law" in early modern France. 10 Jay M. Smith; Michael Kwass, Privilege and the Politics of Taxation in Eighteenth-Century France: Liberté, Egalité, Fiscalité (New York: Cambridge University Press, 2000); David Kammerling Smith, "Structuring Politics in Early Eighteenth-Century France: The Political Innovations of the French Council of Commerce," Journal of Modern History 74 (2002): 490-537; and Beth Nachison, "Provincial Government in the Ancien Régime: The Princes of Condé in Burgundy, 1660-1730 (Ph.D. diss., University of Iowa, 1992). 11 One exception is Parker, who has described the legal system as "a mechanism for the mediation and resolution" of "factional, patrimonial, and corporate" conflicts between families and clans who had purchased their positions in the state's administrative system. See Volume 33 (2005) 100 Michael P.