1The years 1714-1726 when Montesquieu served as a magistrate in the Parlement of Bordeaux mark an important stage in his life. His earlier years of education at both the Oratorian school in Juilly and at the Faculty of Law in Bordeaux were planned so as to train him for the position of président à mortier which he was to inherit from his uncle Jean-Baptiste de Secondat. Even after his resignation and the selling of his office in 1726 he continued to keep the honorific title of Président. While he put aside his judicial responsibilities with little regret, his persona was inexorably linked to the Parlement of Bordeaux.
2At the beginning of the eighteenth century the Parlement of Bordeaux was one of twelve regional courts (parlements) which exercised the delegated justice of the king. It was sovereign in its jurisdiction as the last court of appeal for all royal and seigneurial courts in the larger region covering a population of roughly two million (Kingston 1996, p. 59). All the parlements of France shared a similar institutional structure, which included a grand’chambre for the discussion of the most important cases and political matters, a chambre de la tournelle for all criminal cases, and chambres des enquêtes and des requêtes for dealing with various cases of civil law. At the time of Montesquieu’s service the court was comprised of 117 titled officials including the first president Gillet de Lacaze, as well as 137 lawyers and 60 prosecutors (ibid.). The principle of venality ensured that most officials owned their offices and could transfer them to their heirs.
3The parlement had been established in the 15th century in the aftermath of the French conquest of the province of Aquitaine, and succeeded to the work of the cour supérieur of Guyenne. Despite its tie to an act of royal conquest, the parlement itself lived a sometimes difficult relation to the Crown (for a somewhat different view, see Powell). A history of popular protest in the region, most evident during the Fronde, sometimes led the magistrates to oppose royal policies more vocally, particularly in the area of fiscal policy. This history of selective opposition culminated in the Bordeaux Parlement’s fifteen-year exile from the city starting in 1675 after a riot protesting new taxes on tobacco and tin. Three years into this period of exile, Montesquieu’s uncle Jean-Baptiste began his career as a président à mortier (Kingston 1996, p. 65). Montesquieu admired his uncle greatly and even recopied by hand one of his uncle’s speeches (forthcoming in Extraits et notes de lectures, OC, t. XVII). He also complemented his education by analyzing various matters that came before the Bordeaux parlement, as shown by Collectio juris.
4Montesquieu began his judicial career at the court in 1714 as a counselor, following several years of judicial study. He was employed with special dispensation (a common practice at the time) given that his uncle was still serving on the court, as it was against the law for close relatives to serve together. The dispensation ordered that in the event that Montesquieu and his uncle would be in the situation of ruling together on a case, their two votes could only count as one (Archives Départementales de la Gironde, 1B40). In 1716, with the death of his uncle, Montesquieu inherited his office to become one of nine présidents à mortier. Given that Montesquieu had not yet reached the age of 40, he again had to be given special dispensation to hold the office. Still, the court did not grant him full rights and privileges to preside and report cases until 1723.
5The pattern of court assignments during the years Montesquieu served shows that he was appointed for over ten years in a row to serve on the criminal court chamber (la Tournelle) of the parlement. Like other magistrates, Montesquieu was not always exemplary in his attendance at the court. In addition to the attention devoted to his vineyards as an essential source of income (an occupation which kept many court officials away in the fall and early winter), Montesquieu made numerous trips to Paris, where he enjoyed the company of the literary elite.
6Montesquieu’s name does not figure prominently in the court’s legal records, given that he was given limited responsibilities until 1723. The most prominent case with which he was associated is that concerning the cagots of Biarritz. The cagots were a class of people in the southwest who suffered systematic discrimination in all aspects of life due to their reputed lineage from lepers. The Bordeaux court found no justified basis for their segregation and ordered their admittance into public assemblies and general pews of the churches. Montesquieu’s ruling in November 1724 called for the continued enforcement of the court’s decisions despite protests from the local citizenry (Archives Départementales de la Gironde, B 1724). It shows that both the court and Montesquieu himself were not blind defenders of tradition.
7Montesquieu’s renown was firmly established in November 1725 when he was asked to deliver a speech to open the annual session of the parlement. The Discours prononcé à la rentrée du Parlement de Bordeaux was little known until much later : according to the Bordeaux chronicler Bernadau, the text was sold at each opening of the parlement, but it was not published until 1771 (OC, t. VIII, p. 464-470). In it Montesquieu addresses the duties particular to each of the officials at the court. He discusses the various qualities which were essential for an effective dispensing of justice, including self-knowledge, efficiency, a sense of humanity and probity in both public and private life. He develops a simple typology to highlight the requirements of justice in his own era. At the time of its founding in a simply pastoral society, the French monarchy required only a handful of laws. Methods of regulating disputes through ordeals were equally a reflection of the simple-mindedness of the people. In contrast, modern monarchy, with all the virtues and vices of a more developed and complex society, required a more specialised practice of regulating disputes in which the just response is not always clear. All this made the work of a magistrate a special art.
8In this text Montesquieu shows particular sensitivity to the abuses and defects of the court system, such as the deliberate lengthening of trials by judges to reap more fees, the refusal of judges to show compassion, and the lack of exemplary behavior of judges in their daily lives. He calls on lawyers to avoid the unnecessary impugning of the honor of their adversaries, and on prosecutors always to seek to enlighten the judges rather than obscure the truth. The speech must be read in the context of a tradition of mercuriales, or a sort of professional development exercise reminding practising officials of their duties (Rétat, OC, t. VIII). Still, in contrast to d’Aguesseau, a public prosecutor at the parlement of Paris, future chancellor and the author of a famous series of mercurial speeches, Montesquieu does not in this speech paint the picture of the character and soul of the ideal magistrate, but rather focuses on the consequentialist justifications for good and honest legal practice (Kingston 2013). Montesquieu does not demand that the magistrate lead an exemplary life, as did d’Aguesseau, but only that his personal life not undermine the credibility of responsible public officials. In the logic of Montesquieu, the public gaze is now turned back onto the judge and it is the good reputation of the magistrate (and not necessarily their character) that is seen as the key to the proper functioning of the judicial institutions. Along with a refreshingly modern defense of the need for compassion in criminal prosecution, the speech reflects Montesquieu’s deep knowledge of the professional weaknesses of his colleagues, perhaps a factor in his decision a year later to leave the parlement of Bordeaux.
9In June of 1726 Montesquieu asked his friend Barbot to arrange for the selling of his office. On 7 July the “sale” was made to Jean-Baptiste d’Albessard with the provision that on d’Albessard’s death it would be transferred back to Montesquieu or to Montesquieu’s own son. The immediate reason for his selling his office at this time remains unclear. While it is said that Montesquieu was often frustrated with his position given that he was denied full privileges for much of his career as judge (Dalat, 71), it is also the case that three years before selling the office he was granted full privileges as well as greater status as first president of la Tournelle, with possibilities for a larger share of court fees. It may be that his continued absences as judge reflected a growing need to reach beyond his provincial station for intellectual growth and social recognition. It is certainly the case that soon after this sale Montesquieu spent over a year in Paris before embarking on his tour of Europe, which would not bring him back to Bordeaux until 1731.
I. Eighteenth Century Sources.
Archives départementales de la Gironde, fonds du Parlement, 1B40, fol. 25-26.
Archives départementales de la Gironde, fonds du Parlement, série B, 1724, reprinted in Archives historiques de département de la Gironde 19 (1897), p. 284-287.
Montesquieu, Collectio juris, OC, t. XI-XII, 2003 ; Discours sur l’équité [delivered at the opening of the Bordeaux parlement], 1725], OC, t. VIII, 2006, p. 461-487.
II. Secondary Sources.
Jean Dalat, Montesquieu magistrat, Paris: Minard, Archives des lettres modernes, 1971.
Rebecca Kingston, Montesquieu and the Parlement of Bordeaux, Geneva: Droz, 1996.
Iris Cox and Andrew Lewis, “Montesquieu observateur et étudiant en droit, Paris et Bordeaux, 1709-1721”, in Montesquieu: les années de formation (1689-1720), Catherine Volpilhac-Auger ed., 5 (1999), p. 31-54.
Caroline Le Mao, Parlement et parlementaires:Bordeaux au Grand Siècle, Seyssel: Champ Vallon, 2007.
Douglas Powell, “Magistrates and Municipal Politics”, PhD thesis, Emory University, 2009.
______, “Réflexions sur le ‘Discours prononcé à la rentrée du Parlement de Bordeaux”, un Actes du colloque du 15-17 novembre 2012 pour commémorer le 550e anniversaire du parlement et du barreau de Bordeaux, Bertrand Favreau ed., forthcoming 2013.