"Treason is a crime
which has a vague circumference and more than one center.
F. Polack
and F.W. Maitland,
The History of English Law (Cambridge, 1985), II, 503
"J'attendray à vous
mander au long mes pensées sur ce sujet après avoir veu
celles que vous aurez puisées dans l'abisme judiciaire dont les
chanceliers
sont joujours pourveus."
Richelieu
to Chavigny and Sublet de Noyers, August 2, 1642,
Avenel, VII, letter xxxvii
Introduction
Although reading Joël
Blanchard's Commynes et les procès politiques de Louis XI (Paris:
Picard, 2008), and Hélène Fernandez-La Côte's Les Procès de Richelieu
(Paris: Champ Vallon, 2010) will be our first centers of attention, William
Farr Church's notes on the history of lèse-majesté will be the more
personal and precise focus for this writing. I humbly dedicate what follows
to Church. In a conversation about whether or not Montesquieu was a jurist,
Church remarked to me: "The work of the jurist always supports the crown."
He did not say whether he thought Montesquieu was a jurist! Answering the
question, as stated, could become the work of a lifetime.
We shall find that
Nancy Roelker and Donald Kelley carefully went over Church's notes and
eventually decided that little could be made of them. In Le Bret on Lèse
Majesty, Ralph Giesey, Lanny Haldy and James Millhorn describe the
Church research notes, as described to them by Mrs. Martha Mitchell, the
then University archivist at Brown University. As we shall explore later,
Giesey, Haldy and Millhorn wished to know whether or not Church had studied
the very interesting additions and omissions in Le Bret's De la
Souveraineté du Roy, first published in 1632, and the "four levels of
composition of the work" that appear by the time of the third printing
(edition?) of 1642 by Le Bret himself. The study of Le Bret by Giesey and
his students will be presented much more fully, as a preface to our thoughts
about Church's approach to the study of lèse-majesté, notably by M.
Sbriccoli (1971) and J. Chiffoleau (1993, 2006). References to these and
other specialized works on the topic may be found in the bibliographies of
Blanchard and Fernandez-La Côte.
But before turning to
these last two works, in the manner of the fifteenth-century portrait with a
window toward the outside, let us mention Florentine late-medieval political
culture, that world that gave us the modern state, Bruni, Valla,
Machiavelli, Savonarola and Guicciardini, in order to slow down any and all
claims to uniqueness in the experience of ruthless, bloody politics. Nicolai
Rubenstein's classic, The Government of Florence under the Medici
(1434-1494) (New York: Oxford University Press, 1966), exposes what
humans can do in order to gain power in a statist political culture that was
decreasingly domestic. N.S. Baker, in "For Reasons of State: political
executions, Republicanism and the Medici in Florence," Renaissance
Quarterly 62 (2009): 444-78, counts the numbers of executions of men
belonging to the wrong political party or clientele. There were 80 in the
years just after the Pazzi Conspiracy, for "reasons of state" (p. 456). In
the more republican era, exile of enemies prevailed; in the more Medici era,
executions for reasons of state occurred very frequently, and without
complicated legal proceedings. Reason of state was a sufficient accusation
or charge. In the light of this fact, and the presence of prominent
Florentines all through the sixteenth and seventeenth centuries at the
highest level of government, the semantic field of the phrase raison
d'État cannot be restricted to its strictly French range of meanings.
Joël Blanchard's Commynes
et les procès politiques de Louis XI
Joël Blanchard's
Commynes et les procès politiques de Louis XI is a very thoughtful and
highly analytical study of how Commynes navigated the allegiances and
parties in the last years of the great nobility's struggle with Louis XI.
Blanchard is not a legal historian, and so much the better for it, because
his findings and reflections derive from the mémoires of his hero
and the "memoranda" (which the French likewise call mémoires!),
that is, the documents surviving from lèse-majesté trials that were
in effect prosecuted by Louis XI. The latter may not have been in the
chamber with his hand-picked commissaires, but the dessein
or "plan" of the prosecutions' (that is Richelieu's
seventeenth-century term) was drafted and revised in the royal presence.
Blanchard concentrates on two famous trials: that of Louis de Luxembourg,
seigneur de Saint Paul, the ex-connétable, and that of the Duc de Nemours.
Blanchard has
assumptions about how legal cultures mature and, in the process, diminish
the role or "place" of individuals in the development of procedures in
courts of law. He understands fifteenth-century French legal culture as
developing toward this de-personalization, but that it still had a long way
to go. Similarly, he sees the law of lèse-majesté as being, as yet,
barely distinct from the general legal culture. He suggests that only when
combined with ideas of sovereignty in the sixteenth century, will it become
the institut that we know in the seventeenth century.
Blanchard is very
interested in the character of the mémoires that emerge from state
trials. They are not quite juridical texts; nor are they mémoires
of the sort written by Commynes, though there would seem to be passages in
Commynes that strongly resemble these mémoires. The boundary
between the juridical and the un-juridical would change post-Louis XI,
perhaps as the law became more professional. Hélène Fernandez-La Côte's
Les Procès du Cardinal de Richelieu is also interested in the character
of the mémoires generated about the state trials of the 1630s.
Alfred Soman thought of them as a genre, and the point may be well taken;
but where does it lead?
Blanchard's
characterization of ordinary, as compared with extraordinary procedures,
might well yield interesting insights about the general evolution of
procedure over the centuries; but I am not going to pursue this direction.
One point, however,
merits attention: the status of justice by commission. Louis XI, in very
hands-on ways, kept the same handpicked commission for two major treason
trials. He was also very much in contestation with the Parlement, to the
point that he considered dismissing all the judges or exiling them in some
way! Royal letters of indictment were revised again and again, probably with
Louis XI's supervision. And the king wanted speedy action. There was
apparently little objection to the commissions, because no parlementaire
"ideology" had yet developed.
The laws of
lèse-majesté have, for Blanchard, two quite distinct parts. The first
consisted of quite specific crimes such as minting coins that lacked the
stated quantity of precious metal; the second consisted of something that
resembled the Roman law of treason, something that was more intimate and
personal, such as oath-breaking, breach of confidence, betrayal.
The "law" of September
22, 1477, ordered or established by Louis XI, made anyone with knowledge of
a conspiracy just as guilty as the actual conspirator. It met the needs for
prosecuting individuals who were "go betweens," that is, who were
negotiating between rebellious princes of the blood regarding such actions
against the crown as they could agree upon. Blanchard's use of quotation
marks around the word loy leaves the reader open to infer what
Blanchard considers to be the limits of royal power in the late fifteenth
century. This is all very insightful for suggesting continuities with the
fates of such seventeenth-century persons as Fontrailles, Saint-Ibar, and
Montrésor, who traveled back and forth between the Duc of Soissons, the
Épernons, and Gaston d'Orléans. And Chalais? Cinq-Mars? De Thou?
The procedure varied
according to the rank of the person or persons charged. Blanchard sums up:
"Avec Commynes, Nemours, Saint Pol, nous sommes plutôt encore dans une
rhétorique d'indignation, voire de la peur royale, qui justifie le recours à
la lèse-majesté" (p. 61).
There is a delicacy in
Blanchard's silence about the actual executions of those convicted of
lèse-majesté in the reign of Louis XI. Blanchard's approach here is to
work out key aspects of Commynes's life. The work suggests how the
biographer must go to great lengths in his research, in order to comprehend
his subject. Commynes kept litigating his entire life, and beyond; Blanchard
finds this difficult to understand, and rightly so — unless one spends a few
decades with a much more recent representative of the French aristocracy,
Comte d'Adhémar de Panat! With a cutting gesture of his right hand, anent
some challenge over a piece of property barely bigger than a postage stamp,
he would say, "Je lui ferai un de ces procès ..."
What follows now is a
running commentary on a book that, were I to review it formally, would
devastate the writer. I wish to avoid that, because the result would be to
discourage further research. I have learned from the book. There is learning
and energy, a telos about the increase of state power; but the
themes are put together in a confused way that requires much repetition. If
I seem oblique, read the book!
Hélène Fernandez-La Côte's Les Procès
du Cardinal de Richelieu
Hélène Fernandez-La
Côte begins her study of Les Procès du Cardinal de Richelieu with a
jargon-peppered review of the sources. She notes the numerous copies of the
mémoires drafted about the major state trials during the reign of
Louis XIII, found in the collected papers of Godefroy, Dupuy, Loménie de
Brienne, Achille de Harlay, Conrart, Séguier, and others (Dubuisson-Aubenai
on Cinq-Mars might have been added). Thanks to her participation in the
Groupe de recherches interdisciplinaires sur l'histoire de la littérature
(known as the GRIHL), there is a welcome sensitivity about why, and in
what contexts, these sources were produced, and for what purpose. As with
Blanchard, the mémoires pose particular questions that derive
fundamentally from the nearly absent institutional support for preserving
and classifying archives. Royal officials, or would-be sometime royal
officials, thus assembled their own archives. And cas royaux by
commission seemed to have generated records that were not always, if rarely
ever, integrated into the registers of the Conseil du Roi, the
Chambre des Comptes, or the Parlement. The question of the fate of the
sources from commissions merits a detailed answer.
A complementary reason
would develop over the seventeenth century and become very strong in the
eighteenth, namely the collections of pièces curieuses. As Baluze
and Clairambault worked to collect originals for the royal library, or have
copies made, collectors strove to add to their own collections documents
about major political events, and documents about private life, major
examples being Gaignières, and then Joly de Fleury, Châtre de Cangé, and
Morel de Thoisy. Godefroy included in his collection Strafford's last speech
in his own defense! Morel de Thoisy was not alone in digging out cases of
nobles prosecuted for lèse-majesté, but his list is revealing of
the search for precedents. He found 5 cases in the fourteenth century, 7 in
the fifteenth, 10 in the sixteenth, and in the seventeenth century 15 up to
1652. He lists them (BN, Coll. Morel de Thoisy, 115, fol. 205).
The collections at the
royal library that grew out of the de Thou library, and thanks to Nicolas
Rigault's efforts they would expand rapidly under the Dupuy brothers.
Collecting documents for the royal library not only had, but would
increasingly have practical utility for "applied" research on such matters
as treaty preparation and, above all, negotiations with the Papacy. Perhaps
recent scholars, notably Jérôme Delatour, have found direct correspondence
links between Pierre Dupuy and Richelieu over the former's great research
and publication project on Gallican liberties; I once tried to find such
links and failed. Certainly Dupuy would have attempted to answer, with
specific historical facts, any question the Cardinal might have asked him,
but he would have done the same thing for Loménie de Brienne or any other
high-ranking official. We know he did that with Séguier. The Dupuys and the
Godefroys were charged with answering questions posed by ministers. They
considered themselves to be royal officials. Their offices as librarians and
historiographer gave them dignity and authority.
When a high-ranking
official lost his post (I prefer not to use the term "disgraced," except for
those who held household appointments), his papers were often seized under
quite brutal — in the middle of the night — circumstances. Just where did
these papers go? Only some épaves of Marillac's and Châteaneuf's
papers seem to have ended up in the royal library, and at a later date.
Recent work by Françoise Hildesheimer clarifies what parts of the Séguier
archives are in the Fonds Doubrovsky in Russia. Over the decades, whenever
something seems to be missing from the Séguier papers, my immediate
reaction, as a former Mousnier student, has been to wonder if it is in
Russia! What is missing from Séguier's papers at the BN concerning the great
treason trials of the 1630s remains puzzling.
Fernandez-La Côte
recognizes the monumental work of Martial Avenel in his edition of
Richelieu's correspondence, and she is right about the weaknesses of Pierre
Grillon's edition; but she does not point out the errors she found, which
would have been useful.
Record-keeping and
pamphlet-writing is rightly placed under the theme fama, that is,
the account of an individual's ignominy or gloire in history. I
very much like this approach, because it goes to the heart not only of
action but also of a lot of writings. At once primordial and always present,
it nonetheless is stronger and more of a concern or passion in some periods
than in others. I am not sure how this theme squares with the assertion that
the lateness of the Mercure François's publication makes it less
interesting as a source (p. 53). The deaths of so many of the principals
might actually have given "editors" greater latitude regarding controversial
events that occurred earlier.
While it is very
tempting to put Paul Hay du Châtelet's propagandistic texts together with
those of Mathieu de Morgues, and to give them the same critical valence, de
Morgue does not contain the same high level of information that Hay du
Châtelet does, be it in favor of Richelieu's policies or against them.
The chapter on
executions for treason grows right out of the critique of the sources. As a
result, we could not be further from the older approaches to the history of
law. But having decided that lèse-majesté divine was in decline,
Fernandez-La Côte may have not have explored some of the elements in the
different narratives of executions, searching for their full
religious-mythical interpretations. Her reaching back to the Biron trial
does not surprise, but the absence of any reference to the Concini trial
does. Indeed, she confirms that on the level of legal titles and procedure
in the great treason trials, 1626-1642, little if any of the diabolical or
supernatural appears (astrology is a different matter!). In this way she
confirms Robert Mandrou's thesis (which she does not cite) about the decline
of witchcraft trials owing to the education of legal professionals. This
became manifest in the rules of evidence. Fernandez-La Côte writes about
ritual without putting aside her rationalist perspective. As a result, the
executions are narrated with little comparative analysis of the sources.
Using the same sources, Denis Crouzet and Natalie Zemon Davis could each
write a remarkable book and really deepen our understanding of legal culture
in the 1630s.
The extravagant
who stopped Saint-Preuil on the way to the scaffold may have been only
aberrant in his belief in his own powers to save the victim; others waited
for divine intervention in the form of lightning or a broken ax-handle
before they rushed up to release the condemned. We are still horrified by
the blundering during the Chalais execution. Like the Florentines who, while
Savonarola was among them, would execute for nothing more than reasons of
state, the French commissaires delimited their categories about
accusation and persecution. Bodin did not write about demons in his Six
Books on the Republic; he reserved them for an entire book on the
subject. We know that the de Thou library included Bodin's books on demons,
because their copy survives in the Gordon Collection of the University of
Virginia Library, beautifully bound with the characteristic de Thou arms in
gold leaf. Why would a jurist have such a book in his library?
In the major treason
trials under Richelieu, divine grace did not intervene to save the victim.
Did this fact contribute to the secularization of politics in the Ancien
Régime? It is Augustus's support from "le ciel" that fosters his
maturation into the princeps, the consecration being the pardon in
Pierre Corneille's Cinna. The "grands Dieux" so frequently
evoked are, of course, pagan; but when Maxime says to Émilie, "Mais apprenez
le soin que le ciel a de vous," (Cinna, IV, 5), the emotional
valence blurs the historical, to the point that listeners perceived this as
evoking a Christian cosmos. Like the judicial mémoires, the
relations of executions await their historian. Fernandez-La Côte notes
the prodiges (an impetuous wind, p. 98) as Saint-Preuil went to his
death, but she does not distract her reader by noting divine expression
through nature.
But Fernandez-La Côte
is also interested in the diffusion of information about trials and
executions, in order to address the question (Christian Jouhaud) of whether
or not there was a "public" in the 1630s. Fernandez-La Côte does not give an
emphatic answer to this question, but she goes on to note the large amount
of information about high politics that went out to someone who was being
informed, the back and forth of writings about Richelieu and his policies,
and the formal objections to trial by commission that were carefully stated
by a president of the Parlement. She quotes well and frequently from Arnauld
d'Andilly's letters to Barillon.
Fernandez-La Côte
explores the terms "ordinary justice" and "extraordinary justice" and
concludes that trials by royal commission were ordinary. Blanchard notes
that the procedure was extraordinary if the accused was a prisoner and was
being questioned without having been informed of the charges against him
(Blanchard, p. 30). I shall not explore all the similarities and differences
in how these two scholars understand procedures; but I will infer that,
across the centuries, the commissioners continued to have a great deal of
flexibility, based on general accord within a particular commission. And
most important, the procedure varied according to the accused's rank.
Fernandez-La Côte links
the workings of procedures to precedents and the search for them. This
places history at the heart of jurisprudence. Blanchard suggests that the
late-medieval jurists had a difficult time, or were reluctant to construct
the laws of the cas royaux — an interesting suggestion. The status
or force of Roman law, notably the lex Julia and the law of
exemplarity about procedure (Fernandez-La Côte, p. 92) may well have been
greater in the late sixteenth century, as a result of Humanist legal
scholarship and its teaching at Bourges by Cujas and others. The world of
precedentalism would remain very complex and contradictory; and it remained
subject to the usual influential contexts — particularly the office and
authority of the person who cited a precedent and his ability to influence
action. Fumaroli has worked out the significance of the Attic approaches to
interpreting texts literally, and its decline. See his L'Éloquence et
"res litteraria"... (Geneva and Paris: Droz, 1980), and the paperback
editions.
The public nature of
most, but not all, executions for lèse-majesté (the duc de
Montmorency's execution was an exception) subjected not only the guilty but
also the bourreau, the guards, and yes the king, — all of them
parties to the trial — to an extreme test. Would a royal pardon arrive at
the last minute? Would God intervene by lightning or a broken sword or rope?
Why did onlookers unfailingly scrape up the blood or tear some bloody
slivers from the planks?
And very importantly,
the guilty had to die convincingly as Christians. As with her decision not
to give the history of lése-majesté, Fernandez-La Côte gives us
quite a sanitized, secularized and elite account of state executions, and
this fact bears on her characterization of the "public." The result is a
series of narratives of the sort a parlementaire might make; and he, of
course, firmly believed that he and his ilk were the public! In many
respects he would have been profoundly and historically correct.
Fernandez-La Côte's
explorations of how specific royal intendants acted when confronted with
possible indictments for treason, support Blanchard's view of the
limitations, coherence, and professionalism in state criminal law. Paul Hay
du Châtelet in effect negotiated with the duc de Bellegarde. Again, as in
the Biron trial, admission of guilt remained key to the terms of a possible
pardon or grâce. Fernandez-La Côte might have reflected a bit more
on this "structure" of admission-of-guilt and pardon that was at the center
of the actual trials and of less formal negotiations. She is rightly
attentive to the clouds of suspicion about how his previous crimes hung over
the accused.
Intendant d'Argenson,
whom we know from other contexts, was given the mission to inquire and, if
necessary, prosecute in conjunction with local judges in the western
provinces, the "go-betweens" (Blanchard's term), the negotiators between the
conspiring princes — for example, Fontrailles, whom he found guilty, and
Montrésor, whom he found innocent. We shall see below that Cinq-Mars was
more than a "go-between." Fernandez refers to him as playing a rôle
moteur.
Intendant Machault, in
the Velay, had the problem of finding out just who supported Gaston and
Montmorency in their rebellion, and of prosecuting them. A Grands-Jours
procedure was used by justices who went deep into the Velay and other remote
regions, and the results varied considerably from what d'Argenson carried
out. For Machault, rebellion, criminality, and heresy tended to be bundled
together; as a result, a considerable number of executions were conducted,
some in effigy and some not. Seigneurial chateaux, and other chateaux as
well, were torn down here and there (this was a recommendation that goes
back at least as far as the Estates General of 1614); but lèse-majesté
turned out not to be the most frequently prosecuted crime.
On the very important
topic of confiscation des biens, see Jean du Tillet's "Mémoire
envoyé au Roi pour le jugement des Rebelles," ed. by E. Brown in Jean du
Tillet and the French Wars of Religion; Five Tracts, 1562-1569 (Binghampton,
Medieval and Renaissance Texts, 1994), passim. Here we see du
Tillet carrying out the role that would be played by the Dupuys and the
Godefroys in the 1630s: as suppliers of precise information to the crown. As
councilor to Charles V, were some of Oresme's researches and writings all
that different? Séguier included a transcription of Du Tillet's text on the
subject (BN, ms. 17318, fol. 71), so he did not consider it to be in decline
as a title under which one could be prosecuted.
At various points in
the book, Fernandez-La Côte brings up maître des requêtes and
intendant Isaac Laffemas, mentions Georges Mongrédien's book on him, and
then rather assumes that the reader is informed about Laffemas. His roles in
judicial matters in Champagne are also noted, as is his prosecution of the
chevalier de Jars; but we are not given an account of just how the charges
of peculation in the trial of maréchal de Marillac appear in the sequence of
changes in the commissions [sic] that tried him. The case is
well-known, albeit in a brief way, as a brutal and violent miscarriage of
justice. We learn that Richelieu liked to appear distant from the
proceedings, but that he followed them and probably intervened. We know that
Laffemas wrote longer reports than some other intendants. Was it his idea to
bring the charge of peculation? Or was it Richelieu's? If it is impossible
to elucidate the roles, then that too might have been mentioned.
Although earlier in the
book she took a strong position on the procedural legality of commissions,
Fernandez-La Côte explores the issue more generally after reviewing just how
broad and varied the powers of intendants de justice might be. In a
quotation from Bellièvre that argues that exemplary justice would be all the
stronger if ordinary courts were the only ones used, we see how an argument
fails to become a precedent. Rightly so, the institutio of a
commission gave it considerable powers and autonomy. Their members had the
task of grounding their own legitimacy, which usually meant carrying out the
king's will. As noted above, Louis wrote Richelieu about the Maréchal's
alleged "insolent letters" concerning the Cardinal (p. 39). Had not
slandering a royal minister sufficed to make a commission find Marillac
guilty? Hay du Châtelet wondered whether the king, not the Cardinal, would
be satisfied with less than the death penalty (p. 275). It was also Louis
who overruled Richelieu's arrêt pardoning Vendôme. (p. 295).
Fernandez-La Côte notes
that Richelieu asked for the names of the two commissioners who did not vote
with the majority that condemned Cinq-Mars (p.221). If I recall correctly,
the Cardinal wrote the king about the judgment and asserted that it was
unanimous! He knew better, and he seems to have been caught in an outright
lie. I shall let others verify this incident. Perhaps I am confusing the
Cinq-Mars and the de Thou judgments; but then again, my recollection may be
accurate.
There is a brief
exploration of the workings of the Chambre de l'Arsenal, and presentations
of astrology, Madame du Fargis, and the duc de Roannez. Owing to his
writings on religion and his distribution of pamphlets against Richelieu,
Mathieu de Morgues would be found guilty of lèse-majesté divine et
humaine! The summary of Laffemas's duties, and those of the Conseil de
Guerre, confirms the emanationist and personal nature of monarchical
justice. Had the anachronistic concept we call "le pouvoir" not
been at work in Fernandez-La Côte's analysis, we might have learned more
about the king's personal role in some of the cases. But she is content to
confirm the "proto-public" view that it was always Richelieu who, through
Laffemas and others, drove these "extraordinary" courts toward what Mousnier
aptly referred to as "le pouvoir totalitaire d'un gouvernement de guerre" (Institutions,
I, p. 514). At other points, she notes that it is often the king's person,
in itself, that is involved in charges of lèse majesté; but then
she carries on, obfuscating about le pouvoir while implying that
Richelieu was totally in charge.
A particularly
revealing series of cas royaux regarding treason on the part of
commanders such as Belleforière de Soyecourt (who surrendered Corbie)
resulted from the anxiety over defeat as manifested in the Conseil de
Guerre, and from the literal interpretation of a Roman law on cowardice. La
Valette's fate after Fontarabie would scarcely be different, as he too
headed for England. The late Elizabeth Marvick found the contradictions in
the command structure — really, a quarrel between Condé and Épernon — to be
the reason for the defeat. When Richelieu wrote about La Valette, he was
writing as a prosecutor. Fernandez-La Côte wonders whether La Valette had
participated in the 1636 plot to kill Richelieu. We know from Montrésor that
he, Montrésor, had tried to convince Épernon to join Gaston and Soissons in
the conspiracy, but that the old governor of Bordeaux merely mentioned
Chalais's fate! Ah, this is exemplarity at work, as Richelieu hoped it would
work! Still, perhaps La Valette conspired at a later date.
The book might have
ended at this point. Fernandez-La Côte's characterization of
lèse-majesté and its extension in and through a legal culture that was
grounded on Roman law and French precedents, embodied royal powers partly
through condemning often very elite subjects for treason. Her concern for
the semantic fields of such words as procès, politique,
and public suggests that she is pursuing a distinct type of justice
from a distinct view on politics. While this aim certainly is lofty, there
is something anachronistic about the pursuit itself. The recent legal
problems of Messieurs de Villepin and Pasqua come to mind! The use of the
legal system for political ends may involve respect for some civil rights —
for example, the right to counsel and the right to be released after a
specific number of hours if no charges are brought — but the potential
remains for destroying one's political enemies by posing public questions
about their conduct, and then having them charged and tried. At least the
penalties are lighter.
I confess to
approaching the final part of the book with some trepidation. By that point,
we have been through the major trials over and over again. The declared aim
is to "comprendre quelle place occupe le procès d'État dans une logique
politique plus vaste" (pp. 307ff). As I read this, I thought the principal
theme would be to analyze the relations between the highest aristocracy and
their households, along the lines of Arlette Jouanna's Devoir de révolte,
but more precisely, an analysis of the role that physical violence played in
the dialogue between the state and the grands. What were the
cultural foundations that released the norms of the society, veritable
taboos against murder, and in particular the murder of a cleric? Overcoming
the resort to physical violence unleashed during the Wars of Religion would
be one of Richelieu's aims. And not only on moral and religious grounds.
Peace, repos, in the interior, le dedans, was a
prerequisite to war on the international stage. In the Assembly of Notables
of 1626, Richelieu listed thirteen articles under the heading
lèse-majesté. Marillac would include them almost verbatim in the Code
Michaud of 1629.
One can argue about
whether there was a public in France under Louis XIII, but no one can
challenge a conscious effort on the Ministry's part to inform the political
elites about the repression of duelling and about specific crimes of
treason. "Le roi a besoin de faire les exemples," the Cardinal would say
about the royal officials who joined rebellions in Normandy in 1639. A
program of pacification started, in a sense, by making criminal behavior
known through accounts of judgments, executions, and such extraordinary
measures as cutting down the tall trees on Belleforière de Soyecourt's
estates near Roye, and strewing salt in the furrows of his fields. What, in
fact, were the precedents in France for applying Roman law to someone deemed
to be a coward?
On Maximilien-Antoine
marquis de Belleforière de Soyecourt, see A. Huguet, "Le Marquis de
Soyecourt, Bulletin de la Société de'Emulation d'Abbeville (1940):
1-64. Moréri (1743 edition) does not mention his defeat at Corbie in 1636.
On his trial, see "Extrait des registres du Conseil de Guerre," Oct. 25,
1636, signed by Sublet de Noyers, BN, Coll. Cinq Cents Colbert, 220, fol.
341.
Where does one begin,
if one wishes to study the political consequences of Richelieu's using the
legal system for political purposes? Probably with the chambre de
justice established on his recommendation, that ended up pronouncing a
death sentence for La Vieuville, the principal minister whom the Cardinal
was seeking to destroy, in complicity with Marie de Médicis. La Vieuville
had ordered the arrest of d'Ornano, Gaston's governor, because d'Ornano had
pressed for the prince's admission to the Council of State — something that
neither Louis nor La Vieuville wanted, because they thought that the prince
would merely be a point person for Marie and the householders around the
prince. Upon coming to power, Richelieu had d'Ornano released; and at
Gaston's request he supported making d'Ornano a maréchal de France.
In February 1626, a new
edict against dueling was promulgated. It actually lessened the punishment
for some aspects of the practice; but it made others harsher, and it placed
strong emphasis on enforcement.
Working through
d'Ornano in the spring of 1626, Gaston again asked to be appointed to the
Council of State. D'Ornano was arrested on May 4, 1626; he would die in the
Bastille, presumably purportedly of "natural causes." Richelieu had
perceived Arnauld d'Andilly's disgrace from the prince's household as
d'Ornano's doing, a signal that d'Ornano wished to be the sole influential
person around the heir apparent. The Montmorency-Bouteville duel, with
seconds, took place in June of that same year, a true test of whether royal
legislation would be enforced. It was. D'Ornano had been protected by Marie
de Médicis.
The duc d'Elbeuf, on
Marie's urging, encouraged Gaston to be more attentive to Mademoiselle de
Montpensier, with whom the Queen Mother was arranging Gaston's marriage. The
king opposed the betrothal. Richelieu did not yet dare separate himself from
Marie's protection. The marriage proposal became a subject of court gossip,
and high-ranking nobles began to take sides for and against it. Marie was
determined, indeed she was unwilling to give it up in deference to the
wishes of her older son and sovereign. The negotiators for the "English
match (Henriette-Marie and Charles I) had probably pushed the issue of royal
marriages to the forefront.
The second arrest of
d'Ornano had changed the atmosphere in Gaston's household. The party of
aversion to the marriage, and of animosity over d'Ornano, might eventually
have quieted down; but the Vendômes and their hungry householders were not
far off. Chalais belonged to the young nobles who were ready to duel over
the slightest point of honor. I seem to recall that he had already killed
someone when talk began about a plan to kill Richelieu at his residence at
Fleury-en-Bière (which he had purchased with money given to him by Marie). A
"go-between," and little if anything more than that, Chalais did not realize
that he should have stayed on one side - what was now the side of Richelieu
and Louis XIII! Fernandez-La Côte has frequently, and brilliantly,
elucidated the fates of individuals who thought they could talk their way
out of difficult situations. That is where the judicial may easily be
distinguished from the social, courtly banter or slander. The Vendômes knew
how to avoid self-incrimination. Where did they learn this? Who were their
tutors and governors? I do not recall ever reading their names. Was it his
bastard royal blood, or his ability to incriminate others, that led the
Grand Prieur to merely to prison for a few years, rather than to the
executioner's block?
Returning now to
Fernandez-La Côte, I shall no doubt discover how much I have forgotten. Oh,
I did read somewhere, years ago, that Montmorency resigned his office as
admiral because he had information about the Chalais conspiracy. He did not
inform the king, thereby committing treason. I have read that the Duc
supported Richelieu in the Grand Orage. But that clash between mother and
son seems so elusive that a duke playing such a role surprises.
La Vieuville's fate,
and that of his rich relatives, calls to mind the terrible precedent set
when de Beaune de Samblançay, the argentier of Francis I (he never
was surintendant des finances), was tried for treason, sentenced to
death, and executed. There were other famous cas royaux under
Francis I that can be compared with La Vieuville's, but none quite like
Samblançay's. Marillac's alleged peculation was small potatoes compared with
these trials of financiers, the precedents for the Fouquet trial.
From Jacques Coeur to Nicolas Fouquet. Fernandez-La Côte begins her final
reflection — on the Chalais conspiracy — by emphasizing how divided the
government was. Marie had brought considerable pressure to bear, in order to
have Richelieu appointed to the Council. As soon as he was appointed, he of
course began pushing others out, or coerced them into silence. This ruffled
anti-Marie survivors from the days of Luynes's ministry. Hervé Drévillon, in
Croiser le fer (Paris: Champs Vallon, 2002), has discerned
affinities among the duellers, the "parti de l'aversion" to the
marriage, and some Vendôme householders.
The May 1626 arrests of
d'Ornano and several of his "clients" was designed to break the parti de
l'aversion. It therefore seems that Richelieu was carrying out Marie's
wishes. The material on Chaudebonne would seem to have been assembled with a
view to charging him with slander; but for one reason or another, he was
allowed to keep a low public profile. The "édit d'union" of May 31,
1626, was Richelieu's work; but it would fail, because Gaston came up with
pretexts to break it. With all his authority as a cardinal, Richelieu would
attempt, again and again, to keep the two brothers and their mother on terms
of reasonable confidence. His greatest failure.
Fernandez-La Côte's
account of the Vendôme arrests clarifies much that was previously
mysterious: for example, the Grand Prieur was on Gaston's council. And the
king seems not to have forgotten the duc de Vendôme's previous attempt to
increase his powers in Brittany: Louis abrogated all official duties for the
Vendômes in that province. This eventually opened the way for Richelieu to
become governor of the province!
Chalais would seem to
have been much more of a "go-between" than a "rôle moteur." He may
have been ambitious, but he was soon out of his depth, to the point that
Richelieu could infer that Chalais was betraying, not serving — a
devastating consequence.
Fleeing to Metz would
not have meant leaving the realm. Metz became more a part of the realm once
a parlement was established there in 1633. But could an Épernon son give
assurances that the venerable ex-mignon to Henry III and current
governor of Metz would agree to Gaston's staying there? His support for
Marie during an earlier round of fighting between the king and his mother
had not turned out well!
Some of Fernandez-La
Côte's final remarks about the Chalais trial have a proto-historical tone.
How "necessary" was an "espace de publicité" for a major trial?
Richelieu and Louis XIII both believed firmly in exemplary justice; but I
suggest that the scheduling, the geography (e.g., would the king himself
seek to be present), and the rank of the indicted, tended to combine with a
sense of religious duty that justice must be done, and now. Indeed,
historically, the procedures for lèse-majesté trials required very
prompt executions. The timing had nothing to do with giving copy to Renaudot,
who was, it seems, never low on copy. And as for Richelieu's seeming so
frequently to stay in the background, he and the king were rarely together
for more than a few hours at a time during the entire period 1624-1642. He
therefore wielded his powers through letters and his creatures.
And to be sure, Louis
had an older brother, Vendôme (p. 337); but he had been raised always to
keep his bastard brother far below himself, by being discourteous to all the
bastards; and it was never a question of Vendôme's occupying a place in the
succession to the crown. The Condés, father and son, saw to that! But was
the talk of assassination just that? Talk. Evidently Omer Talon did not
believe that the law of lèse-majesté applied to royal officials
such as the Cardinal. What was in Tiberius's mind as he had his powerful
minister-favorite, Sejanus, murdered? The parallel with Louis XIII and
Concini did not go unexplored by pamphlet writers, because the king very
probably followed the posthumous trial of his mother's favorite. But talk
was actionable for a king who claimed not to be familiar with the technical
aspects of "his" law. And we shall learn that, from Richelieu's perspective,
a gentilhomme would prefer to be in l'autre monde than to
be humiliated and dishonored.
Fernandez-La Côte
explores the difference between the understandings about prisoners of war
and prisoners who held commands in the royal army and had rebelled. The duc
d'Elbeuf, who was in Gaston's household, wrote the duc de La Force,
commander of the army, to make the case for considering the vicomte de
l'Estrange a prisoner of war rather than a rebellious officer. It did not
work, and it would seem that Intendant Machault, on orders in the king's
name, proceeded toward a rapid condemnation and execution. It is beside the
point to quote Michel Foucault anent using executions to consolidate
sovereignty. Louis the Just, with divinely-granted and sustained authority,
did not need executions to increase his power! And the special status of
l'Estrange as a rebellious officer in the royal army, is not unlike a royal
army officer's instant execution for theft. Fernandez-La Côte includes among
her quotations the words "repos de l'État," as the great
justification for exemplary justice. I don't think that the l'Estrange
arrêt was precedent-setting, but the specific language, even the style,
may have led Dupuy to keep a copy. Did he do the same for those whom Séguier
ordered hanged after the Nu-pied Revolt? What is paradoxical is that some
types of royal officers, for example judges, could avoid being executed,
while rebellious army officers might not.
I simply do not agree
that the royal letter condemning Montmorency is "violent et brutal" (p.
353). Every phrase follows what the Duc could have written himself. And
unlike Augustus, who pardoned his friend Cinna so that his authority would
be legitimated by this act of clemency, Louis XIII placed the "repos de nos
sujets" above clemency. If Kantorowicz's theory of the king's two bodies had
perhaps been considered on the point of whether justice can be granted to
one's enemy, more emphasis might have been placed on the vote in the
Parlement of Toulouse - the king's institutional body. After all, when Biron
was brought before the Parlement of Paris to be charged, none of the peers
showed up. And the grâce that Montmorency received was a non-public
execution. This was a major grâce as Louis XIII defined grâces.
Montmorency would be buried only briefly at Saint-Sernin. Later his heart
was transferred to the Jesuit professed house in Toulouse, and his body to
the chapel of the Visitation at Moulins, where his wife eventually became a
nun. Yes, it is correct to mention (p. 334) that Henri II de Condé's
accommodation with Richelieu consolidated the latter's power; but Louis XIII
would not forget the prince's early rebellion and prison stay. And we have
to recall that the condemned duc de Montmorency's sister, Charlotte, was the
princesse de Condé, having married Condé and having given birth to the
future Grand Condé; and that she also was the last woman to pull on Henri
IV's heartstrings. Did Condé plead for his brother-in-law before Louis XIII?
Probably not.
Turning to the Cinq-Mars/de
Thou trials, Fernandez-La Côte gleaned some important and ancillary material
from going through the séries France, that is, Richelieu's papers
at the Ministry of Foreign Affairs. Grotius's correspondence is also of very
high interest. There is also reference to Jean-Marie Constant's emphasis on
friendship as a key social and political relation; but little is
done with this after it is mentioned.
On the
religious-institutional side of the "storm," see Urban VIII's brief
authorizing a commission headed by the archbishop of Arles, et al.,
to "inform" on the "prelates and other ecclesiastics" who had conspired
against the person and the state of the king of France (Dupuy), BN, ms. n.a.
fr. 2398, fol. 59, Oct. 8, 1632.
Cinq-Mars was not just
a go-between, he was a "rôle moteur," especially in working out, or
trying to work out, the timing for combining French rebel troops with
Spanish ones, and for assassinating the Cardinal. Cinq-Mars most definitely
believed that he had the abilities to carry out Richelieu's duties, and
especially to make peace with Spain. This aim may be one of the principal
motivating forces in the anti-Richelieu plots, at least since the beginning
of declared war in 1635. Montrésor is very eloquent on this point:
see my study of the vocabulary regarding
the plot to assassinate Richelieu in 1636.
Louis XIII's affections
ranged from intense love for Cinq-Mars to the need to be persecuted by him.
His complaints to Richelieu about Cinq-Mars must be set against Chavigny's
and Sublet de Noyers's obvious pressure to have the king disgrace him. The
great nobles, including the king, had as part of their grandeur a belief
that they could "manage" any of their householders. Gaston d'Orléans would
show similar patterns: he would want to disgrace Montrésor but then would
want him back; but he was too proud to say so directly, which left the
negotiations to Mazarin.
Yes, Richelieu held
before the king a lofty idea of his role, and he did all he could to help
Louis fulfill that role. It was tiring, trying, and condescending to be the
king that Richelieu wanted him to be, but Louis soldiered on.
Didn't Bouillon have
the rank of prince étranger? Trying him would have posed difficult
legal questions. On page 379, I should have liked a more detailed
presentation of the interrogation proceedings. Blanchard evokes the future
professionalized and rational legal proceedings. In Fernandez-La Côte we
find "constraint" used about rules of evidence, almost in a negative sense.
I find such rules to be desirable, and I think that that more carefully
articulated rules to frame cases and to establish procedures for both
prosecutors and judges, were "modernizing," and that the Inquisition
developed some proto-modern features about the rules of evidence. If there
were indeed more rationally grounded rules of evidence by the 1630s, then
the professionalization of justice had advanced. The unstructured non-system
was still there in the 1770s. On "lèse-majesté verbale," see Dale
K. Van Kley, The Damiens Affair (Princeton: Princeton University
Press, 1984), pp. 255-65. For the later general picture, see R.M. Andrews,
Law, Magistracy in Old Regime Paris, 1735-1789 (Cambridge:
Cambridge University Press, 1994). Robert Mandrou's work on witchcraft
demonstrated that the very lack of evidence that witches did in fact exist,
finally (except in Massachussets!) led to a decline in the phenomenon.
Marillac had argued
that being charged with peculation was beneath his dignity; and Gaston
argued that it was beneath his own dignity to testify as anyone else might
do. He successfully made his case, but Marillac did not. Awareness of rank
was so strong that, in confrontations, it rarely came up so explicitly in
the testimony, but it did in modes of greeting. His dignity may have made it
highly unlikely that Gaston would testify against some of his own
fidèles; but in fact he did just that, although in the end his
testimony was excluded. Montrésor accused Gaston, through La Rivière, of not
lifting a finger for de Thou; but Cinq-Mars's testimony was so incriminating
that perhaps all the effort was placed on saving others.
I have not read
Delatour or some of the other recent works cited by Fernandez-La Côte, so
the most interesting new material that she cites about the Cinq-Mars/de Thou
trial is Dupuy's arguments in defense of his late colleague. First, the
ordonnance of Louis XI promulgated in 1477 and registered by the
Parlement in 1479 had not been included in various collections of royal
legislation; and its Roman-law antecedent had been promulgated by a
tyrannous emperor influenced by a tyrannical minister! Dupuy was grasping at
straws. Interesting straws! He certainly knew how high an ordonnance
was in the hierarchy of royal instruments. Had it really been registered by
the Parlement? He also knew that the various collections of royal laws
published during the interval had no legal standing or accepted status, as
would a code or a body of general royal legislation. He also knew that
despite an increased professionalization of the parlementaires, these august
senators could turn precedents on their heads and declare null and void
anything but the so-called lois fondamentales. And he was aware
that the commissaires had not read all of Louis XI's ordonnance!
By the time Dupuy redacted his text, the Cardinal was in his grave, and
Louis XIII probably was also in his. A solemn Parlement had firmly accepted
the king's will regarding the Regency, and then it promptly turned that same
legal instrument into a royal act that was null and void. The fact that
Dupuy took his time, and that the London lodging houses were emptying as
Frenchmen returned to France, must be stressed in order to understand not
only Dupuy's defense of de Thou but also his probably later writing of the
posthumously published Histoire des Favoris.
He also sought to
challenge accepted understandings of the Latin term conscius. De
Thou had admitted under pressure that he knew about the treaty with Spain;
but what did it mean to "know"? Dupuy had the records of the trial before
him, and he sensed a breach here that a prosecutor might have erased with
another admission or two, to emphasize having "certain knowledge."
Fernandez-La Côte and Delatour have opened a Pandora's box of new questions
about cases that have already inspired much research and reflection. I, for
one, would like to know about earlier efforts to set royal legislation
aside, in the way Dupuy did, and whether there were some cases in which his
arguments succeeded as defenses.
The authoritative
narrative for what was going on in 1643 and beyond is by J. Delatour,
"Jacques-Auguste II de Thou, ou l'impossible héritage," in Cahiers V.L.
Saulnier, 24 (Paris: Presses de l'Université Paris-Sorbonne,
2007): 175-209.
Reading Fernandez-La
Côte's book has been a very stimulating experience for me. My hope is that
others will read these lines and turn to the book itself. Here is a learned
and engaging work, in the genre of political history. The use of the phrase
"le pouvoir" — and indeed the general concept — has impeded a still
more fundamental, and indeed biographical analysis of intentions and
actions. In The Republic Bodin remarks that kings may hide their
actions behind the actions of their ministers, who receive the criticism for
those actions. But then, did Richelieu have the king almost "programmed"?
Writing to Chavigny, he insisted that the letters must also be shown to the
chancellor and, to be sure, the surintendant: "Il n'y a rien qui
puisse préjudicier au dessein qu'on a" (p. 378). Should we be taken in by
the "on"? Was it Richelieu who created the "dessein" and
saw to its execution? It is such a wonderful word, it is so Richelieu!
Giesey and Cardin Le Bret
Ralph Giesey and I
exchanged theses at some point in the early 1960s. He sent me is Royal
Funeral Ceremony with this comment: "... a bit Cro-magnon for a
Richelieu specialist." In 1986 he co-authored "Cardin Le Bret and Lese
Majesty," with Lanny Haldy and James Millhorn, two of the remarkable members
of the Giesey Seminar at the University of Iowa, published in Law and
History Review, 4 (1986): 23-54. It is dedicated to William F. Church.
The article is a close
reading of Cardin Le Bret's De la Souveraineté du Roy. First
published in 1632, it is the first major systematic treatment of the subject
since Bodin's Six Livres de la République. Having noted how the
turmoil of the Wars of Religion had influenced Bodin's thought, Giesey makes
the important point that Le Bret, born in 1558, had lived through those same
disorders. Le Bret became a royal official in 1594, thus he was very much a
senior subject by the 1630s. While his thought was mature, it was not
unchanging: indeed, there were actually four levels of composition between
the royal privilege of 1630 and the third printing in 1642. The events of
the 1630s were "shaping his ideas" toward the recognition of the need for
ever greater precision about lèse-majesté, especially as it
regarded les officers royaux. Readers, turn to your memory files
and recall only that maréchal de Marillac (and earlier, La Vieuville) were
charged with peculation. Chalais, Montmorency, L'Estrange, Cinq-Mars, and de
Thou were charged with treason!
Le Bret presents the
law of treason under three headings: a) speaking ill of the prince's acts;
b) making an attempt on his life; and c) making plots and conspiracies
against his estate. (I have kept Giesey's terms.) Le Bret places slander (calomnie)
before attempted assassination, because it is the "avant-coureur de la
rébellion et de l'attentat contre la vie du Prince." There are many
interesting possibilities for exploring in depth the relations that Le Bret
sees between language and other actions. He mentions various examples of
Roman emperors who declined to prosecute for slander; and on attempted
assassination he notes numerous abuses by emperors and French kings,
including Louis XI and his "excessive cruelty." Giesey does not comment on
how all this material might have been read by the commissaires who
were judging cases of presumed lèse-majesté during the 1630s -
something certainly interesting to do.
Le Bret's third
category, conspiracy, is grounded on the lex quisquis and the terms
used in the Ordonnance of Blois of 1579: giving criminal intelligence to
foreigners, leaving the realm without royal permission, and raising troops
without a royal commission to do so. Another clause involves attempts on the
lives of magistrates and officials. We recall that Omer Talon (Fernandez-La
Côte, p. 294) did not consider this last clause to be part of the law. In Le
Bret's first edition, the chapter on lèse-majesté, as quoted by
Giesey, ends with this sentence: "One most often sees that those who would
make war on their king and conspire against his state make the first daring
attempt against officials and magistrates, who we can say are the living
image of the Majesté of the Prince."
In the
marks-of-sovereignty chapter of the République, Bodin includes
injury to a "magistrate in the exercise of his office"; but this is not
frequently mentioned by other jurists. Le Bret did not follow simple rules
of precedent to propose what we might call "case law." References to works
by previous jurists are rare. Instead, he deliberately develops his views by
grounding them on ancient, chiefly Roman sources and principles. Giesey
notes that by the last edition in his life time, 1642, half the pages in the
chapter on lèse-majesté are about contemporary events. In these
pages there is an echo of the Code Michaud regarding royal officials who
leave the realm without permission. Giesey suggests that the elaboration of
Le Bret's views may well derive from Marie de Médicis's and Gaston's flights
to the Spanish Netherlands. It would be worthwhile sometime to try to find
the reasons why exiles — especially Gaston's erstwhile householders —
chose England rather than Brussels.
In 1639 Le Bret served
as a commissaire on the La Valette trial, which included Louis
XIII's famous tongue-lashing of Le Jay, first president of the Parlement.
From his own duties on the Conseil d'État, Le Bret inferred that the law of
lèse-majesté needed to be strengthened against royal officers who
were found guilty of crimes by défaits et contumances. In 1633 a
royal declaration had provided a five-year grace period to lodge an appeal.
Giesey notes that this declaration had permitted the return of several
prominent nobles who had fled the realm with Gaston, but this grace period
had not been extended to Jacques Le Coigneux, who was a president in the
Parlement of Paris thanks to pressure by Gaston himself.
Giesey found that, as
Le Bret moved to a more explicit language against royal officials, he
deleted the entire law of lèse-majesté from the more general and
traditional category of cas royaux. He also revised his views on
royal officials, whom he had earlier considered to be "living images of the
Prince." He now asserted that their status or quality was different from
that of the king: they had no rayon de majesté. Here were
modifications made in the heat of a series of treason trials that are
further elaborations of a constitution grounded on absolute sovereignty. The
pitched battles of the Wars of Religion were over, and the remnants of the
League had been dispersed; but not a few royal officials declined to carry
out the king's orders. Enforcement of the law came from the top down. Every
individual prosecuted for treason studied by Fernandez-La Côte was a royal
official. If Le Bret recommends that the rayon de majesté be
removed from royal officials, did he also argue that anyone attacking a
royal official, be it verbally or be it physically, was not to be prosecuted
under the law of lèse-majesté? Fernandez-La Côte provides a far
richer context for reading Le Bret than what was available to Giesey and his
students.
In my article, "Lèse-Majesté
divine: transgressing the boundaries of thought and action in
mid-seventeenth-century France" (Proceedings, Western Society for
French History, Laurence, Kansas, 1982: 68-81), I found several cases where
very humble persons were condemned and executed for something they said,
among them the famous Simon Morin. Fernandez-La Côte offers no discussion of
the possibly incriminating speech or writing, for example in maréchal de
Marillac's letters, as read and interpreted by Louis XIII (p. 39). On
treasonous speech, see A. Soman, "Press, Pulpit, and Censorship in France
before Richelieu," Proceedings of the American Philosophical Society,
120, n. 6 (1976): 439-63.
In an article on
courtesy and absolutism ("Courtesy, Absolutism, and the Rise of the French
State, 1630-1660." Journal of Modern History, 52 (1980): 426-51), I
suggested that there was a layer of obligatory marks of respect, and that
this layer was politically coercive and reinforced rights based on the
prerogatives of rank and office. These marks of respect would be virtually
"legislated" in courtesy books, in novels, and in accounts of humiliation
that circulated beyond the court. Le Bret offers examples of supreme
punishment, and of pardons involving the first clause of the laws of
lèse-majesté. This suggests how a jurist might read Roman history and
apply it to his own day. And the boundary between divine majesty and majesty
tout court would be no clearer during the reign of Louis XIII than
it had been in the Roman world where not only the princeps but his
entire family came to be characterized, legally, as divine. Fernandez-La
Côte secularizes French history.
Richelieu on lèse-majesté and
nobles
Fernandez-La Côte notes
the existence of the Testament Politique but alludes neither to the
arguments it contains about the quest for a repos de l'État nor to
evidence about the lèse-majesté cases of the 1630s, Her research in
the Cardinal's correspondence has served her very well. If she believes that
the question of authorship is so grave that the Testament Politique
cannot be read for facts, it might have been useful for her to say so.
I referred earlier,
from memory, to a passage in the Testament Politique where the
Cardinal asserts that a nobleman prefers death to loss of honor. Montrésor
writes in a similar vein, and some of Corneille's heroes make similar
assertions. Condemnation for treason and the ensuing execution (la tête
tranchée) might superficially be thought of as both humiliation and
death. The "rituals" for the execution of someone condemned for
lèse-majesté divine included formal humiliation on one's knees, barely
dressed and holding a two-pound candle. If a true confession and admission
of guilt were followed by absolution from a priest, the humiliation served
to square away the individual's relation with God. Temporal punishment had
been completed. Execution by drawing and quartering followed by burning,
implied that the body, not merely the soul, had to be punished if the
condemned was to envisage salvation. For lèse-majesté, a confession
and absolution in public sufficed.
Let us turn to the
Testament Politique to see whether the Cardinal has more thoughts on
nobility and treason. The pagination is that of the Hildesheimer edition.
The famous three-point
program occurs at the very beginning of the Succinct Narration; the "orgueil
des grands" (p. 43) is the second point. Richelieu promises to reduce that
pride.
Those who "avaient la
conduite de Monsieur votre frère l'y embarquerent autant que son âge l'en
rendoit capable" (p. 47). What an obscure, delphic phrase! Gaston was old
enough to be admitted to the Council of State, says Richelieu, but neither
he nor Louis wanted him there. Gaston was seventeen, and at this point he
and his household were still very much under the influence of Marie de
Médicis. For at least two years, 1622-1624, Louis had resisted her pressure
to admit Richelieu to the Council. Richelieu remained very beholden to
Marie, yet he probably did not want Gaston on the Council any more than
Louis XIII did. It is possible to suggest that d'Ornano lacked the power to
say no to Marie. One of the interrogations points out that d'Ornano's only
resources were what his office brought in. In other words, he may have been
really quite dependent on Marie after Luynes's death. And Arnauld d'Andilly
left Gaston's household: did he have stronger ties to Louis and Richelieu?
The next passage is
about how emotionally upsetting it was for Richelieu to have Chalais go to
his death (p.49). Punishment for dueling and the utility of the State are
the Cardinal's reasons for going against "le sens de tout le monde et contre
mes sentiments particuliers [pour] afirmer V.M. ... (p. 49). He notes the
defeat of the southern Huguenots and Rohan's flight to Venice; but he does
not mention Rohan by name. Similarly, there is an allusion to Buckingham,
but he is not named. Alluding without naming is a form of denigration, a
reverse exemplarity. But Richelieu does mention Rohan's treaty with Philip
IV.
Richelieu says that the
relief of Casale was carried out against the advice of the duc de
Montmorency and the maréchal de Marillac (p. 57). He describes the "plot"
mounted by Marie, Gaston, Bellegarde, and Marillac as a "faction"
(p. 59). The king sends away Marillac "de son propre mouvement." Bellegarde
was Gaston's surintendant de la maison, in addition to being the
grand écuyer and governor of Burgundy.
Having noted that
Bellegarde has been deprived of his governorship, as was Elbeuf, the
Cardinal describes the duc of Guise's "retirement" to Italy as a "retraite
criminelle" (p. 64), presumably because he had not been authorized to leave
the realm. Guise loses Provence and the admiralty of the Mediterranean. What
"proud" grands remain? Montmorency, of course (p. 64), and Épernon.
As for Maréchal de
Marillac, his fate seems to have been linked to stopping various unlisted
plots. "La constitution présente de l'Estat requéroit un grand exemple" (p.
65), comments Richelieu.
The civil war launched
by Gaston and supported by Lorraine and Montmorency is briefly recounted
(pp. 66-67). The latter's punishment was necessary, in order to avoid still
more "dangerous rebellions."
The "bienfaits"
given to Puylaurens did not help him keep on the path to bonne conduite.
The Cardinal mentions the numerous other cases where individuals had
received unusual gifts such as offices or promotions but had not remained
grateful and obedient. We can just hear the clicking of Richelieu's mind as
he goes over the (Senecan) formula about benefits and gratitude, to suggest
that obedience and political stability are not advanced by it.
Richelieu uses the word
"lâcheté" to describe the three governors who hold northern
fortified places (p. 77); lâcheté is a term from Roman law. The
rest of the Succinct Narration deals chiefly with the "open" war with the
Hapsburgs and the conflicts with Gaston.
Concerning Fontarabie,
Richelieu alludes to "le mauvais sort des armes, la lâcheté ou la malice de
quelques uns qui commandoient les vostres ..." (p. 80), an interesting
equivocation after so many categorical judgments. The Testament
Politique does not include the Cinq-Mars/ de Thou conspiracy.
The overarching theme
of the Testament Politique is Louis's prudence, patience and
generosity, and his willingness to forgive his brother — but not his
advisors. There is no conclusion about how the pride of the grands
has been diminished, at least not up to this point.
Part II of the
Testament discusses ways to reform the Church. Very little concern is
demonstrated here for enhancing the faith of the faithful. Richelieu writes
as a bishop and a cardinal, that is, about administrative and legal issues,
especially relations with the Papacy and with those who claim to have the
right to name curates and distribute prebends and so forth. He does not
raise broader issues. Yet he does, for example, make a critique of customary
law in the Church's jurisdictional matters; and he comments thusly on
justice and the Church:
Or, parce que
la justice veut qu'on prenne une exacte connoissance d'une faute
auparavant que de penser à son chastiment et que les roys ne
sçauroient pas eux-mesmes rendre la justice à tous leurs sujets, V.M.
satisfera à son obligation si elle commande à son Conseil privé de
recevoir les plaintes des contraventions que ses officiers, de
quelque qualité qu'ils puissent estre, forment à un tel règlement et
de réprimer sévèrement leurs entreprises, auquel cas l'Eglise estant
contente d'un tel ordre, se rendra plus soigneuse de rendre la
justice qu'elle la recevra de son prince (p. 107).
Though the context here
is the jurisdiction of the Conseil privé, note that any and all
royal officials — "de quelque qualité qu'ils puissent estre" — can appeal to
the Conseil privé for justice, or may be brought before it. Would
the same rule apply to the Conseil d'État? And are the parlements
for nonreligious matters? We have already learned that Louis de Marillac's
and Montmorency's appeals grounded on noble rank were rejected by the
commissaires. Gaston appealed, thereby saving himself.
Richelieu's reflections
in the Testament Politique on the nobility shed light on what could
be considered his theory of the psychology that the French elites share
about physical violence, notably in duelling:
Comme les
gentilshommes méritent d'estre bien traitez lorsqu'ils font bien, il
faut leur estre sévères s'ils manquent à ce à quoy leur naissance
les oblige, et je ne fais aucune difficulté de dire que, dégénérans
de la vertu de leurs ayeuls, ceux qui manqueront de servir la
couronne de leurs espées et de leurs vies avec la constance et la
fermeté que les loix de l'Estat requièrent, mériteroient d'estre
privés des avantages de leur naissance et réduits à porter une
partie du faix du peuple.
L'honneur leur
devant estre plus cher que la vie, il vaudroit beaucoup mieux les
châtier par la privation de l'un que de l'autre.
Oster la vie à
des personnes qui l'exposent tous les jours par une pure imagination
d'honeur est beaucoup moins que leur oster l'honeur et leur laisser
la vie qui leur est, en cet estat, un suplice perpétuel. (p. 150)
The tidal wave,
1610-1630, of publications about honor, dueling and, implicitly,
humiliation, leads Richelieu to take at their word those members of the
second estate who were struck by this craze: death is preferable to
humiliation. His binary logic seems superficial to us, but he evidently saw
no acceptable middle ground. His own brother had provoked the duel in which
he was fatally wounded.
Having concluded that
nobles preferred honor more than life, the Cardinal deduces that the loss of
office, property and liberty might lead to greater respect for the royal
legislation against duelling than did capital punishment. The new royal
ordonnances contained both!
Les François
méprisent tellement leur vie que l'expérience nous a fait connoitre
que les plus rigoureuses peines n'ont pas toujours esté les
meilleures pour arrêter leur frénésie.
Ils ont souvent
estimé qu'il y avoit d'autant plus de gloire à violer les édits
qu'ils faisoient voir par une telle extravagance que l'honeur leur
estoit en bien plus grande recommendatioin que leur vie, estant plus
capables d'appréhender de perdre les commoditez sans lesquelles ils
ne peuvent vivre heureux en ce monde, que de mourir hors la grâce de
Dieu, sans laquelle ils seront malheureux dans l'autre (p. 154).
If the Cardinal
recalled that this was Machiavelli's view — execute, or just plain kill,
rather than confiscate property — he did not mention him. Actually, this was
a sphere where royal grâces could be exercised. When the Condés
benefitted from Montmorency's death, it was doubly humiliating for the
Montmorencies; but as noted above, the marriage alliance between these
families mitigated the enormous consequences.
Turning only briefly to
W.F. Church's notes, it is interesting to see that, in the Instruction
du Chrétien of 1621, Richelieu discussed how failure to reveal
accomplices to a crime against the crown constitutes lèse-majesté.
Commenting on the eighth commandment, the Cardinal wrote:
Celuy qui
scachant un crime, ne le recule pas quand il est deuëment requis par
la justice, transgresse ce à quoy il est obligé par ce précepte,
s'il n'est parent ou conseil de l'accusé, auquel cas il n'est pas
tenu de reculer la vérité qu'il scait, si ce n'est en crime de
lèse-majesté." (p. 199)
(Church cited an
edition from 1844. Hildesheimer gives 1618 as the first date of
publication.) Under the heading "justice," the recent edition of
the Traité de la Perfection contains twenty-three references. A
not-so-little book might be written on Richelieu and justice, and doing this
would be easier than discussing Louis XIII on the same subject!
Richelieu's
understanding of the task of reforming French society, in order to eliminate
violence and disorder, is grounded on the principle that fear is stronger
than love when it comes to changing ways, and that exemplarity punishments
foster second thoughts about committing an illegal or an immoral action. The
higher the rank, the less should criminal activity be tolerated. Every great
noble was a royal official in one way or another. The word "crime"
came quickly to the Cardinal's mind. As his theological reflections melded
into his political thought and action, feelings of frustration, failure, and
the need to act were prompted by disorder and violence, be it verbal or
physical. He rarely referred to the historical-mythical and utopian realm of
the high middle ages that was free of betrayal and physical violence. (See
my "Richelieu and the Great Nobility," French Historical Studies, 3
(163): 186; and my "Richelieu et la 'querelle de la mère de le fils'" in
Franco-Italia (21-22), 2002: 57-65.) Still, he did have some idea of
turning the realm toward a more perfect future, one with less disorder
grounded on a myth about the past. After much reading, reflection, and
writing, the Cardinal developed a dessein for action and did not
hesitate to attempt its realization. Some men of power philosophize but
their subsequent actions are not in accordance with their philosophies. This
was not the case with Cardinal Richelieu.
William Farr Church's work and notes
Before turning to
William Farr Church's notes, we need to: 1) evoke the historiographic
atmosphere in which his work occupies a major place; 2) mention the overall
trajectory of his research; and 3) present what he writes about
lèse-majesté in his published work.
One of the main
philosophical-political outlooks that held enormous sway at Harvard when
Church was a research student, can best be summarized in one word:
constitutionalism. The formulation and articulation of this concept is far
too big a subject to be explored here; but very briefly, it functioned
(functions) as a heuristic device for evaluating change in the way powers
were distributed in any body politic. Polybius, more than Aristotle, must be
considered as the early formulator of the study of the dynamics of power. We
have already encountered an example of its application in the discovery by
R. Giesey et al. that Le Bret developed a special category for
lèse-majesté, outside the cas royaux. Giesey, in my opinion,
rightly interpreted this more as a strengthening of the king's absolute
personal power, at the expense of the other royal body (Kantorovicz), that
is, the state as an ensemble of delegated institutional powers.
Church dedicated his
thesis to Professor Charles Howard McIlwain, a formidable Harvard presence
who wrote and lectured on constitutionalism. (McIlwain wrote a book
objecting to F. Roosevelt's attempt to add members to the Supreme Court, on
the grounds that this would undermine the balance of powers set forth in the
American constitution.) Earlier McIlwain had edited and written about the
political writings of James I. As a doctoral thesis topic, he suggested that
Church study "constitutional thought in sixteenth-century France." Church
duly worked it up and it was published in 1941. (I realize that French
scholars who are particularly sensitive to the Jacobin historical moment
object to the use of "constitutionalism" for anything prior to the writing
and execution of a constitution in the late eighteenth century.)
In American political
culture, the haunting Machiavellian remark about republics being unstable —
like the slow shifts from institutionalized royal power and the rights of
subjects, to royal personal power — remained a point of departure for
American historical scholarship about France. This purview certainly reached
far beyond Harvard. One of the greatest explorers of this outlook, along
with Church, was J. Russell Major, trained at Princeton (Harbison, Strayer).
From this perspective, change within monarchy always seemed to be for the
worst, moving toward tyranny. But ah, those clever kings and ministers
always seemed to be creating new powers and offices that would be obeyed for
a generation or so, and that then would go on their way to join the
institutional side of the monarchy! Church's work rests primarily on the
writings of jurists. He was always attentive to the influences that
pamphleteers, theologians, and poets exerted over the overall climates of
thought through which power was articulated. The late-sixteenth century was
a crucible for political thought, owing to the religious, political and
military conflicts that wracked the realm.
William Farr Church was
born in Monmouth, Illinois, on December 13, 1912. I seem to recall that his
family was from New England. After graduating from Allegheny College in
1934, he went on to Harvard, where he earned the Ph.D. in 1939. The preface
to his thesis is dated October 1940; it appeared in the Harvard Historical
Studies published in 1941 when he was only twenty-eight or twenty-nine. (The
first publication was by W.E.B. Du Bois, and the one that immediately
follows Church is J.H. Hexter's The Reign of King Pym.)
Church does not use the
word "history" to describe his project. He is seeking "the essential
identity of the theoretical element" (p. 12); and he mentions, approvingly,
an essay by Ernest Barker, about the differences between political theory
and political thought. He is interested in why some concepts (sovereignty,
for example), become stronger while others (custom, for example) weaken. In
a note he expresses disagreement with Pierre Mesnard regarding similarities
in the way of thinking between Bodin and Machiavelli (p. 13). Church asserts
that, in the Republic, Bodin's "pattern of thought" is that of a
jurist.
But neither treason nor
"lèse-majesté" appear in the Index of this book; so we will put it
aside and turn to Church's second book, Richelieu and Reason of State
(Princeton U.P., 1972). I could look up what I wrote about it (anonymously)
for that Press; but what is important to note is that lèse-majesté
and the state trials of the 1630s have a large place in this book. He begins
a short preface by quoting McIlwain: "The end-product of divine-right
sovereignty was reason of state." Very different from his thesis,
Richelieu and Reason of State explores the ethical valences of the idea
of reason of state, as it was or was not articulated by the Cardinal in his
policies throughout the minority. Testing the Meinecke thesis could only be
done by discerning Richelieu's moral underpinnings. Church generally finds
Richelieu to have acted within a moral frame of choices.
The lengthy entries in
the index for "lèse-majesty" should not surprise us. They read as if, on
that subject, the next book was already in his mind. The items in that
particular entry are:
Lèse majesté,
the charge, definitions; used against Huguenots; used against
followers of Gaston d'Orléans and Marie de Médicis; used against
Richelieu's personal enemies; used against writers who criticized
Richelieu
Though cast in a prose
of caution and tentativeness, Church's second book raises just about every
issue raised by Fernandez-La Côte and by Giesey and his students; and having
narrated all the major state trials, he offers strong conclusions about
them. He integrates the debates that went on about these events, notably the
debate between de Morgues and Hay du Châtelet. On pages 319-22, he notes Le
Bret's changes and additions to his text, to make it ever more
authoritarian, but not despotic as that concept was understood in the
seventeenth century. Giesey's observation about lèse-majesté having
been removed from the cas royaux did not strike Church; but the
fact is that Church did not include Le Bret's cautious remarks regarding
slander trials, and the cases in Roman history where it was pardoned.
Fernandez-La Côte cites
Church's Richelieu and Reason of State in her bibliography, but at
no point does she draw on it or object to Church's findings. This would not
be the first recent instance where a young scholar cites a major work but
never mentions it again.
Unlike Fernandez-La
Côte. Church puts his discussion of trials into the political narrative and
debates of Richelieu's ministry. For example, in the Assembly of Notables of
1626-1627, Richelieu and Marillac presented to the great and lesser nobles
(who actually approved of these laws) the principal clauses that were
conceptually coming to be the law of lèse-majesté. Montmorency was
not a member of the Assembly, but Louis de Marillac was.
The terms approved by
the Assembly of Notables became were integrated into in the so-called Code
Michaud, which was promulgated by the lit de justice of January 15,
1629, and contested by the Parlement! It is most easily available to us in
Isambert's Recueil des Anciennes Loix, vol. XVI. The best and most
detailed study I know of the lit and of Marillac's quarrel with the
Parlement over it is J.R. Major's Representative Government (New
Haven, 1980), like Church's a remarkable study that is by no means made
out-of-date by Fernandez-La Côte.
Obviously, the unified
reform policies that Richelieu and Marillac attempted to carry out, in order
to reduce the resort to physical violence and rebellion, were not accepted
by all; but it is evident that the elites of the realm were very familiar
with the principal tenets of those policies. Dare we say that they were
public knowledge?
Thus — without going
back to older ordonnances such as those of Moulins and Blois, and
to older trials — the recent Chalais trial and execution, the
discussion-deliberation in the Assembly of Notables and, finally, the
lit de justice of 1629 made elites familiar with specific events and
terms. But was lèse-majesté, as a phrase, a charge, or a concept,
known to people unfamiliar with the history of law, or only to people who
were familiar with the law? Church does not really address this question in
Richelieu and Reason of State. Without going deeply into what a
concept might have been, I think Church would have pursued the study of
lèse-majesté in order to elucidate the circumstances in which it became
a term, not unlike lois fondamentales, loi Salique, and
inalienability of the royal domain. In the Code Michaud, the term is not
employed as a heading; it only appears in the final clause (clause 179) of
the ensemble of clauses that already constituted a list of crimes in the
proposals placed before the Assembly of Notables. At this point it seems
fair to suggest that Church envisaged his future project on lèse-majesté
as the history of how it became a concept in law, in state trials, and in
public discourse, during the reign of Louis XIII. In this context, Giesey's
finding that Le Bret had made lèse-majesté a separate title, is
very important evidence of its growing strength as a concept.
* * *
I visited Bill Church
about ten days before he died. We did not discuss his research, but in an
oblique phrase Church whispered that he felt completely satisfied by what he
had accomplished in scholarship. That he had not completed his work on
lèse-majesté did not seem to bother him, although I am sure that he
knew about and approved the decision to deposit his notes in the Brown
University Library.
Church was upset at the
possibility of litigation against Brown by a colleague (not a historian) who
had been denied tenure. he had learned that the department making the
decision had only vague procedures, and virtually no documentation! Church
loved Brown, and he was terribly upset at the possibility that it would be
embarrassed in the courts. It was not winning or losing the case that
troubled him; it was the absence of sound procedures and documentary
evidence about how such an important decision had been made.
Nancy Roelker and
Donald Kelley looked over Church's notes at some point, and they decided
that little could be done with them. One of the most detailed outlines - it
is in Church's own hand - is titled: "The French Jurists and
lèse-majesté, 1450-1789." At the top of the page, Roelker wrote: "W.C.'s
early plan." There is another page marked "outline", again in Church's hand
and bearing the title "Richelieu and lèse-majesté." After an
Introduction and a chapter on the "Medieval Background" that ends with the
"great cases" of the fourteenth and fifteenth centuries, there would be a
third section on the sixteenth century.
Actually, there are two
outlines in his hand titled "Richelieu and lèse-majesté." One has
the sub-heading "Ideas," and the other has "Focus of the book." Let us
ignore the more general outline and center our attention on the outlines
with "Richelieu" in the title. For Church, the medieval experience was
undoubtedly very important, but I suspect that with Richelieu and Reason
of State having turned out so successfully, he might in the end have
centered his attention on the reign of Louis XIII.
The outline subtitled
"Ideas" included "Introduction," "Precedents," "Roman law in the middle
ages, "the Humanist revival (Cujas)" and then "Jurists and Roman law, esp.
the Godefroys (Denis, Theodore, Jacques)." Section Two is entitled "Growth
of concept of lèse-majesté," with Chapter 1 being the fusion of
Roman and feudal ideas; the sixteenth century (ordonnances, Blois,
Villiers-Cottrets, Chancellor Poyet). Section Three begins with Richelieu,
in parentheses, followed by "Efforts to regularize and strengthen concept,"
followed by "Marillac (Code Michaud)"; "Jurists - Dupuy, Godefroy"; and "Mss
in Mazarine, Institut."
Part Three is titled
"Use of charge of lèse-majesté as instrument of control." There
follow three sections on the "great cases" - middle ages, sixteenth century,
and Age of Richelieu. The outline ends with the phrase "maximum effective
use, for control (series of cases)."
In the outline
subtitled "Focus of the book," the first point is "evolution of concept and
application of lèse-majesté as an important instrument of control."
Under this point comes: "evolution of the concept from feudal (personal)
ties to required blanket loyalties." The second statement under the second
point is "expansion of coverage, from cas royaux to Richelieu's
absolutism"; and the third is "the evolution of procedure."
Tempting as it is to
comment on Church's outlines, it would be inappropriate. Two remarks,
however, may be made about the published work and the outlines. Church's
historiography centers on a synthesis that does not privilege ideas (e.g.
Roman law) over social, political, and religious issues. Their occurrence
together is only pulled apart in order better to understand how each aspect
interacts with the others. Church did see the jurists as proposing
instruments that individuals endowed with hereditary power or royal office
could use, to enhance their own authority. In "The Decline of the French
Jurists as Political Theorists, 1660-1789 (French Historical Studies,
5 (1967): 1-40), Church argues that after Domat, the French jurists turned
away from questions about public law, to questions about private law,
thereby leaving the state bereft of the intellectual foundations that
accounted for its development. The philosophes filled the void, and
the Revolution followed. We shall also note that individuals also belong to
the thought and the social, religious, and political conditions.
Institutions, as beings, shaped the actions of individuals who, in turn,
modified institutions. Foot-noting this approach would take us far afield,
but it may be said that — along with McIlwain's works — the works of F.W.
Maitland, Otto von Gierke, and Ernest Barker come to mind.
The next point is more
personal. As we find Church working out a variety of outlines, we must ask:
To which specific context does Richelieu and Reason of State
belong? In the writing, books take on lives of their own; and to review
completely the ethics of Reason of State, Church had to, and did, take up
the major state trials: Chalais, Marillac, Montmorency, La Valette, Cinq-Mars,
and de Thou. Le Bret's name does not appear in any of the outlines, perhaps
because his thought is presented in considerable detail in Richelieu and
Reason of State, which begins with a lengthy analysis of the origins
and diffusion of the idea of Reason of State. The book that was never
written, but for which Church left extensive notes, might (as indicated)
have begun with a succinct presentation of juridical thought from Roman law
on lèse-majesté. Such a chapter, followed by one on procedures and
cases prior to 1600, might have concluded that the "instruments for
extending control" were readily available in the Biron trial. We might ask
whether these instruments had really evolved all that much since the state
trials of Louis XI's reign. Blanchard insists that long-range consequences
of legal professionalism and jurisprudence would eventually change the legal
culture of Commyne's world; but as we see Louis XI himself offering advice
on the texts that were to lead to capital punishments, we can almost see not
only Louis XIII but also Richelieu doing the same thing, and with the same
contempt for the Parlement, the "careful selection" of commissaires,
and so forth. A continuity!
Fernandez-La Côte is
off the mark when she asserts (p. 92) that "libéral" and "miséricordieux"
were the principal elements in the royal image, before it became "juste"
under Louis XIII. See M. Tyvaert's "L'Image du Roi," Revue d'Histoire
moderne et contemporaine, 21 (1974): 521-47, where justice, courage,
piety, and love of literature are the principal royal virtues, and in that
order.
Precedents were as
important as Roman law, as Giesey and his students found. Le Bret cited
examples (here I use the word in its most technical and juridical sense)
from Roman history and evaluated decisions of Roman emperors, sometimes with
approval and sometimes without approval. The Godefroys and the Dupuys were
certainly not the first to assemble citations on French cases of
lèse-majesté (Church, p. 321), but their research skills would have
permitted them to find surviving documents in the records of the Conseil
d'État, the Parlement, or some other instance. We have already noted how, in
so many instances, the documents from the great state trials have not
survived. I quote Church:
In fact, Le
Bret's treatment of lèse majesté was a landmark in the history of
the concept since it was by far the most important analysis of the
subject to be published by a jurist while Richelieu was attempting
to articulate the doctrine of crimes against the state (p. 273).
Le Bret's views evolved
under the heat of treason trials, but it is interesting to note that he
seems not to have included the crime of lascheté. Fernandez-La Côte
may well be right in suggesting that this charge against Soyecourt and
others, after their humiliating defeat in 1636 on the frontier, was being
developed to become a part of the law of lèse-majesté (p. 262).
What we have, then, may be a dynamic relation between political conditions
and the king and his minister, and between royal judges in commissions and a
dynamic legal concept that is available to them. Every case became an
example, and in the charges the law of lèse-majesté became more
specific and included additional crimes! We have learned just how unstable
the law of lèse-majesté was.
Last thoughts
An Appendix: Épaves
from Church's notes.
My aim here is not to
present a complete picture but to suggest the range of materials that he
used for the Richelieu decades.
There are photocopies
of various histories of law, and comments on them. Alard's Histoire de
la Justice criminelle au seizième siècle (Ghent, Leipzig and Paris,
1868), of which Church thought highly. Fernandez-La Côte does not cite it.
Ernest Perrot's Les Cas Royaux (Paris, 1910) is photocopied, but
without comment. There are notes from Loyseau on cas royaux (Seigneuries,
XIV), considered to be about the "means and methods used by royal justices
... to encroach on seigneurial justice." There are veritable indexes of
several volumes of the Mercure François. There are volume numbers
from the Godefroy collection at the Institut and the Dupuy and Baluze papers
at the B.N., with brief statements about their contents. Manuscript 122 of
Godefroy (Institut) is characterized as "contains bits of everything —
cases, extracts, arrêts, bits of histories, even items on
ecclesiastics. Might be considered for bits on cases but generally utterly
unuseable."
Dicée's Lettre
escrite aux Juges (1632) is a pamphlet condemning judicial procedures
in the trial of Louis de Marillac — the "work of bad counsellors"; its call
number is BN LB 36 2865. There are lengthy notes on Hay du
Châtelet's writings, which included documents. There are notes on Mathieu de
Morgues's pamphlets and on d'Ossat's letters. There are notes from
Isambert's Recueil ... Many if not all of the sources that I found
in Church's notes are cited in the bibliography of Richelieu and Reason
of State. He did not seem to think that a new method or a new approach
would have to be worked out for the study of lèse-majesté. His
approach in Richelieu and Reason of State included all the sources
he could find in Paris, and he had mastered what works on the history of
law, and history tout court, had to offer.
I am not sure that
there is any one model for research at work in the GRIHL. In her Chapter 1,
"Procès politiques: constitution d'un objet d'histoire," Fernandez-La Côte
concentrates on a critical approach to the sources, without presenting the
works on the topic.
The principal strength
of the GRIHL is its emphasis on close reading. Text and context. What was
the first context for interpreting the charges that together were known as
lèse-majesté? The writings of the jurists and the cases, of course,
as well as the principal ordonnances and the Code Michaud. Did
Louis XIII have slander in mind when he wrote to Richelieu and told him that
he was ordering Louis de Marillac's arrest?
One of the GRIHL's
topics for investigation is the study of power and its uses. A title may
take on a power of its own, especially if it includes Richelieu's name. The
reader comes to it with explicit expectations: the writer is either seeking
to deepen understanding or else is offering a personal perspective on the
subject. In both cases, the reader expects to find control of the major
proposed approaches already in print, for example, classics such as
Hanotaux-La Force and Meinecke. These works are, of course, out of date; but
the newer works by Bergin, Mousnier, or Hildesheimer do not exclude the
possibility that the older works interpret a document or add a perspective
from another discipline or another moment in time, that literally nourishes
and informs the current writer of history. Fernandez-La Côte has not always
respected the careful attention to all contexts that is a principal strength
in the works emanating from the GRIHL.
* * *
By way of a conclusion,
I shall select some of Church's notes that are revealing of his interest in
personalities, mainly Louis XIII and Richelieu, and the responsibility of
each for the arrests, trials, and executions for lèse-majesté.
From Avenel,
Lettres, VII, p. 162, Church transcribed a text on the "insecure tenure
of ministers," and the role that favorites play in their disgrace when the
prince is "facile." Avenel speculates that Richelieu wrote this for his
(history) mémoires. There perhaps is studied ambiguity here, since
it probably would not have occurred to readers that Louis XIII could be
"facile."
Again, from Avenel,
VIII, pp. 24-28, 71-75, 120-24, 125, and 155-62, Church is struck that the
arrests in the Cinq-Mars conspiracy were made of the grounds of "suspicion."
He questions whether the royal statement disseminated publicly across the
realm was issued prior to the end of the trials! Church notes that the
Cardinal requested "confidentially" to Séguier the names of the two judges
who had refused to find de Thou guilty.
Church also transcribed
a single-page mémoire in Denis Charpentier's hand (B.N., Baluze,
ms. 147, fol. 21) on how a "particulier," possibly a councilor, was
advising the king to take an illegal course of action, and how it is the
king's duty to prosecute the particulier. Since the king alone is
above the law, it will be God who punishes the king if he did in fact act
illegally, on the basis of the particulier's (councilor's) advice!
Finally, Church
transcribed Louis XIII's autograph letter of August 4, 1642. There is a
variant dated August 3, 1642. This version was published in Beauchamp, and
it comes from the collection at Chantilly (number 587). The version
transcribed by Church is in B.N., ms. fr. 18431, fol. 400. The letter edited
by Beauchamp bears the royal signature, Louis; the example
transcribed by Church concludes with a fermesse, after which Church
wrote, in brackets: "[Louis?]." See Claude Dulong's work on these signs of
love, confidence, and intimacy, "Les Signes cryptiques dans la
correspondance d'Anne d'Autriche avec Mazarin, Bibliothèque de l'Ecole
des Chartes, 140 (1982): 61-83.
On June 30, 1642, the
king had written to Richelieu, granting him authority in the South, as if
the king himself were present. If Louis had already given Richelieu virtual
vice-regal powers, why are there two royal handwritten letters penned only a
month later, to encourage the Cardinal to do everything "qui se pourra faire
en conscience, et de résoudre tout ce que vous verrez être du bien de mon
service"? Note the emphasis on conscience. Louis had scrupules.
(See F. Hildesheimer on this point.)
There are a lot of
repetitions and exhortations in Louis XIII's letters. Lucas, his secretary
à la main, could exactly imitate the king's handwriting. Is one
letter a copy of the other? And why does only one letter bear a fermesse?
Did Louis finally express some affection for his minister? Over the previous
months there had been assurances about his eagerness to see Richelieu, and
the king always was concerned about the Cardinal's health. Fernandez-La Côte
consulted B.N. ms. fr. 18431, but she very probably was not interested in
elucidating the different responsibilities in le pouvoir. The king
might have had one copy sent to one destination, and the other to another
destination, since Richelieu could well have left for Lyon.
After the
transcription, and the question about whether or not Louis had written that
fermesse, Church concludes: "Note: Richelieu is to do everything
that can be done 'en conscience et de resoudre tout ce que vous verrez être
du bien de mon service.'" And he added: "the basic dilemma." Readers wishing
to go further on these questions should consult A. Lloyd Moote, Louis
XIII the Just (Berkeley, 1989), and Françoise Hildesheimer,
Richelieu (Paris, 2004). The context that Church develops for
interpreting state trials in the reign of Louis XIII is a synthesis of
ethical-religious thought, the law, institutions, and the personalities
actually involved. There is still much to be learned about the relation
between state-building and justice in seventeenth-century France. Church's
model for research must be updated, but it promises to yield more meaningful
results than any other model currently available.
William
Farr Church died in 1977.
