1Montesquieu served first as counselor then as a judge (président à mortier) during his judicial career from 1714 to 1726 at the Parlement of Bordeaux. Prior to that, much of his childhood and adolescence weas focused on providing him with the proper education to merit the office which he was to inherit from his uncle Jean-Baptiste de Secondat. Despite the fact that he “sold” his office at the early age of 37, he kept the honorific title of President the rest of his life. Given this judicial career, his subsequent literary work has often been interpreted as an apology for the parlements. Certainly the magistrates of the latter half of the 18th century helped to promote this view by drawing on his work repeatedly in their ongoing defense of their rights and privileges vis-à-vis the French Crown. Still, this view of the meaning of Montesquieu’s work harbors a degree of irony, given his remarks that he did not particularly enjoy the day-to-day demands of his judicial career, particularly the need to master the fine points of judicial procedure (Pensées, no. 213).
2 The parlements performed various functions within the institutional framework of the old regime. There were thirteen courts in France by the time of the Revolution and they were best known as the highest courts of appeal in their respective regions. The oldest court was that of Paris which was established in the 13th century as an outgrowth of the king’s council. By the 18th century it remained the most important and largest of the parlements with a jurisdiction that spanned roughly a quarter of the kingdom. The regional parlements (Toulouse, Grenoble, Bordeaux, Dijon and Rouen -- all founded in the 15th century-- as well as Aix, Rennes, Navarre, Metz, Besançon, Flanders and Nancy) were organized according to the same institutional design as Paris, but they were also seen as successors to the large seigniorial courts which were in place prior to the expansion of the king’s domain. The authority of the parlements was derived from their place in the king’s system of delegated justice (justice déléguée), but court officers often described their institutions as “sovereign”, given their function as the last court of appeal in their respective regions.
3The parlements also had the power of registration (enregistrement). This involved the formal acceptance of laws and decrees coming from the king’s council so as to have them apply within their jurisdictions. Of course, the power of acceptance also brought with it the power of refusal and hence the parlements were also seen to have a limited legislative power insofar as they could issue a remonstrance and send to the king a formal statement of their objections to the new law. The remonstrance became a common means for the magistrates of the kingdom to express their opposition to the policies of the king and his council. In response, Louis XIV had sought to limit the force of the issuing of a remonstrance, but these measures were rescinded after his death. In any case, the king always retained his ability to respond to a remonstrance with the issuing of a lettre de jussion or even the calling of a lit de justice to assure that his will was followed. In extreme cases, the king was able to send the whole parlement into exile.
4The powers of the parlements also included some local administration which they exercised through the passing of arrêts de règlement. These arrêts covered a vast array of matters ranging from the structure of municipal institutions to the maintenance of public order and regulating food provisions in times of scarcity. As there was no clear constitutional delineation of responsibilities at the local level the passing of these measures by the parlements would sometimes put them into conflict with officers at other levels of government including municipal councillors and intendants. The relative independence of the parlements was assured by the practice of venality of offices. It made the judicial office the personal property of the magistrate and allowed it to be bought and sold as well as passed down through inheritance.
5While the parlements had similar powers throughout the country, their significance within the political system of the Old Regime is subject to debate. For some, they are seen as defenders of an older and feudalistic understanding of monarchy which became increasingly incompatible with the reforms implemented by Louis XIV and his successors to enhance the powers of the crown (Cobban, Bluche). For others, despite the parlements’ vocal opposition to a variety of royal policies, they are considered to be in the main largely allies and defenders of the king (Doyle). More recently, it has been argued that the parlements shared in the exercise of the most crucial and essential aspect of sovereign power, namely the power of judgment (Krynen). Still, it is also important not to assume that all the parlements can be considered in the exact same way (Castaldo). While there is a lot more historical research to be done on the local parlements, recent findings show the real complexity of relations among these courts and other regional and central institutions (Campbell, Poumarède). As sovereign courts in a system of delegated justice they were indeed considered as voices of royal justice. As regional institutions they also had their regional interests in mind. In addition, as magistrates of these courts all were considered part of the nobility of the robe, they shared class interests. Finally, there were also institutional interests of the courts themselves which needed defending vis-à-vis local, regional and national institutions. Depending on the political context and the decision to be made the courts could balance these influences in different ways. Still, as Montesquieu clearly saw, the ongoing conflicts in all these contexts could often be traced to a broadly shared ethos of honor, although the exact nature of this principle is often disputed by interpreters of Montesquieu (Kingston 2011, Krause, Spector).
6Montesquieu drew on many sources for his understanding of the working of these institutions. Not only could he draw from his own career as a magistrate, for which he had undergone many years of preparation from his entry to the Oratorian school in Juilly to his legal studies in Paris and Bordeaux, but there is also evidence that he took time to study the origins and historical development of these institutions. In his Spicilège (n. 315, prior to 1731) he lists a number of texts on this subject which he intended to read, including La Roche-Flavin’s Des parlements de France [read]. The fruit of this historical reflection is most evident in Book XXVIII of L’Esprit des lois where he explores the complex history of French law and the spread of royal justice in place of the traditional judicial power of the nobility of the sword.
7By the eighteenth century many began to fear that the parlements, as major dispensers of royal justice, were in a state of decline. In 1721 Montesquieu reflected on this through Usbek in the Persian letters (Letter 89):The parlements are like those ruins that one treads upon, but which always make one think of some famous temple of an ancient religion of the people. They do little more now than dispense justice, and their power is constantly waning, unless some unexpected event revives their vivacity and strength. These great institutions have followed the destiny of human affairs: they have yielded to time, which destroys everything, to the corruption of morals, which has weakened everything, to the supreme authority, which has cast everything down.(Les parlements ressemblent à ces ruines que l’on foule aux pieds, mais qui rappellent toujours l’idée de quelque temple fameux par l’ancienne religion des peuples. Ils ne se mêlent guère plus que de rendre justice, et leur autorité est toujours languissante, à moins que quelque conjoncture imprévue ne vienne lui rendre la force et la vie. Ces grands corps ont suivi le destin des choses humaines: ils ont cédé au temps, qui détruit tout, à la corruption des mœurs, qui a tout affaibli, à l’autorité suprême, qui a tout abattu.)
8Written when Montesquieu was still a practicing magistrate, these comments are fueled in particular by grave concern over the policies of Louis XIV (the autorité suprême) who sought in his latter years to limit the effectiveness of the parlements’ power to issue remonstrances by forcing registration of laws prior to the voicing of their objections. While the Regent, in the aftermath of the death of Louis XIV, revoked these provisions, in this same letter from Usbek Montesquieu leaves us with the impression that the damage had already been done, and that the fate of the parlements was now irrevocably tied to the whim of the monarch.
9On the surface, the spirit of Usbek’s comments might seem to clash with the oft cited passages of L’Esprit des lois in which Montesquieu is insistent on the indispensability of the parlements for a well-functioning monarchy. Of all the intermediary, subordinate and dependent powers (“pouvoirs intermédiaires, subordonnés, et dépendants”) that make up the nature of the monarchical regime where a single ruler governs in conjunction with fundamental laws (“un seul gouverne par des lois fondamentales”), the parlements are generally regarded as the most significant (II, 4). It would seem that after Montesquieu had “sold” his office to d’Albessard in 1726 he came to have a somewhat more positive appreciation for the effectiveness of the parlements and their ability to provide a bulwark against the incursions of royal power.
10Still, further reflection on the two texts shows strong continuity as well from one text to another. Both the passages from the Lettres persanes and those from the first books of L’Esprit des lois share an understanding that the parlements are integral, but subordinate, institutions in a monarchical regime. In the tradition of political thinkers of absolute monarchy, such as Bodin and Seyssel (before this tradition was subject to caricature in revolutionary debates), Montesquieu recognizes both the sovereign power of the king and the existence of fundamental laws which protect the powers of traditional social corps and courts. The sovereign is considered as the source of the political authority of the parlements which exercise justice déléguée of the king (“the ruler is the source of all political and civil power […]” [“le prince est la source de tout pouvoir politique et civil […]”]). At the same time, the parlements as one of many subordinate institutions underlie and provide the structural conditions for royal authority. In this way, the relation of subordination is still also a relation of interdependence: “No monarchy, no nobility; no nobility, no monarchy […]” (“Point de monarque, point de noblesse; point de noblesse, point de monarque […]”, II, 4).
11But the parlements of L’Esprit des lois are not only considered as “subordinate” and “dependent” but also as “intermediary” (ibid.). This implies some level of negotiation or communication between the sovereign, the kingdom and the various corps. This is a form of politics which has not yet conceived of the modern notion of representative government, and thus, while the parlements are to be seen as exercising an indispensable role, their legitimacy could never equal that of the king. In Book V, Montesquieu makes a parallel between the French parlements and the tribunes of ancient Rome (V, 11). It is a curious parallel given the importance of those tribunes in the working of a distinctly different republican regime. Still, by their power to block, but not to initiate legislation, the tribunes, like the parlements were able to influence the political process without directing it.
12This characterization explains the possibility of how the parlements can be seen as both indispensable to monarchy, yet subject to historical decline. He notes in Pensées, no. 589, before 1734): “Although the parlements of France do not have a great deal of power, they still do some good. Neither the government nor the ruler wants to be censored by them, because they are respected. Kings are like the ocean, the impetuosity of which can often be stopped, sometimes by grass or stones.” (“Quoique les Parlements de France n’aient pas grande autorité, ils ne laissent pas de faire du bien. Le ministère ni le prince ne veulent pas en être désapprouvés, parce qu’ils sont respectés. Les rois sont comme l’Océan, dont l’impétuosité est souvent arrêtée, quelquefois par des herbes, quelquefois par des cailloux.”) The workings of the monarchical regime infused with the principle of honor allows even those subordinate institutions with waning power the ability to remain necessary and effective restraints on the sovereign power. The restraint works by delaying the implementation of the decisions of the king and his Council as well as by subjecting these decisions to review and thereby forcing the king to justify and defend his policies through public reasoning. “The institutions that are repositories of the laws never obey better than when they advance slowly, and when they bring to the prince’s business a kind of reflection that is not generally to be expected from the lack of insight in the court concerning the laws of state, nor from the haste of his councils.” (“Les corps qui ont le dépôt des lois n’obéissent jamais mieux que quand ils vont à pas tardifs, et qu’ils apportent, dans les affaires du prince, cette réflexion qu’on ne peut guère attendre du défaut de lumières de la cour sur les lois de l’État, ni de la précipitations de ses Conseils”, V, 10). Thus, Montesquieu considers the parlements as a form of loyal opposition, subordinate but indispensable for the well-functioning of a monarchical regime.
13This important role of the parlements is invoked again by Montesquieu several years after the publication of L’Esprit des lois. The magistrates of Paris had gone on strike in 1753 to protest their exile to Bourges. Montesquieu suggested that the magistrates return to their duties (Ehrard 1989/1998, p. 106). From this it is clear that Montesquieu cannot be considered to be a partisan of the aristocratic reaction in Enlightenment France. Unlike Boulainvilliers and others he does not seek to raise the power of the nobility on a par with or above that of the king; rather he can be considered as a defender of what some have called “modern” monarchy (Ellis, 1989). It is a monarchy where the sovereign is expected to respect subordinate institutions and to take their positions into account as dictated by the fundamental laws of the regime.
14Passages from Montesquieu’s work were often invoked by the magistrates in the second half of the eighteenth century in their various disputes with the king (Shennan, p. 308). They used these constitutionalist arguments as a means to justify various checks on the powers of the king and to defend the traditional powers and privileges of the parlements. There is clear inspiration from Montesquieu’s L’Esprit des lois in the language of the Grandes Remontrances of 1753 written by the Paris magistrates after their exile from the city.
15At a more general level, the logic of the argument in L’Esprit des lois served to support a longer-term defense of tradition and the nature of things over and against more radical change as advocated by various eighteenth-century schools of thought such as the physiocrats. This same logic was again invoked by the magistrates in 1788 to appeal to the precedent of 1614 in determining a formula of representation to govern the new convocation of the Estates General. This time the strategy failed, and through these debates the magistrates began to lose the confidence of the public. The work of Montesquieu, whose popularity had become clearly linked to that of the magistrates, also fell out of favor. It was not until the excesses of the Revolution had run their course that political leaders began to look back to Montesquieu’s writings for some guidance (Ehrard, 1998, p. 307-325).
Alfred Cobban, “The Parlements of France in the Eighteenth Century,” History 35(1950), p. 64-80.
François Bluche, Les Magistrats du Parlement de Paris au XVIIIe , Paris: Les Belles Lettres, 1960.
J. H. Shennan, The Parlement of Paris, London: Eyre and Spottiswoode, 1968.
William Doyle, “The Parlements”, in The Political Culture of the Old Regime, Keith Michael Baker ed., Oxford: Pergamon Press, 1987.
Henri Duranton, “Fallait-il brûler L’Esprit des lois?”, Dix-huitième siècle 21(1989), https://www.persee.fr/doc/dhs_0070-6760_1989_num_21_1_1685.
Jean Ehrard, “Montesquieu et La Fronde”, in La Fronde en question, R. Duchêne et P. Ronzeaud ed., Université de Provence, 1989; reprinted under the title “La Fronde” in Jean Ehrard, L’Esprit des mots: Montesquieu en lui-même et parmi les siens, Geneva: Droz, 1998, p. 95-107.
Harold Ellis, “Montesquieu’s Modern Politics: ‘The Spirit of the Laws’ and the Problem of Modern Monarchy in Old Regime France”, History of Political Thought 10 (1989), p. 665-700.
André Castaldo and Pierre-Clément Timbal, Histoire des insitutions publiques et des faits sociaux, 8th edition, Paris: Dalloz, 1990, p. 523-524.
Peter Campbell, Power and Politics in Old Regime France, 1720-1775, London and New York: Routledge, 1996.
Jacques Poumarède and Jack Thomas, Les Parlements de province, Toulouse: Framespa, 1996.
Rebecca Kingston, Montesquieu and the parlement of Bordeaux, Geneva: Droz, 1996.
Jean Ehrard, « 1795, “Année Montesquieu” ? », in La République directoriale, Philippe Bourdin and Bernard Gainot ed., Société des études robespierristes / Centre d’histoire des entreprises et des communautés / Centre de recherches révolutionnaires et romantiques, 1998, reprinted in Jean Ehrard, L’Esprit des mots, p. 307-325.
Jean Bart, “Le réveil des prétentions parlementaires à la mort de Louis XIV”, Cahiers Saint-Simon 27 (1998), p. 29-36.
Michael Mosher, “Monarchy’s Paradox: Honor in the Face of Sovereign Power”, Montesquieu’s Science of Politics: Essays on “The Spirit of Laws”, David W. Carrithers, Michael A. Mosher and Paul A. Rahe ed., Lanham: Rowman & Littlefield, 2001, p. 159-229.
Sharon Krause, Liberalism with Honor, Cambridge MA: Harvard University Press, 2002.
Céline Spector, Montesquieu. Pouvoirs, richesses, sociétés, Paris, PUF, 2004.
Jacques Krynen, L’Idéologie de la magistrature ancienne, Paris: Gallimard, 2009.
Rebecca Kingston, Public Passion, Montreal: McGill Queen’s University Press, 2011.