François Hotman quipped that a jurist trained solely in Roman law would feel, upon finding himself in a French court, as if he had landed among the savages of the new world.Footnote ¹ The image of Hotman's hapless jurist captures a conundrum widespread in early modern France, which the late French historian Michel Reulos dubbed “la quaestio vexata of the sixteenth century”: judges and lawyers in France studied Roman law at the universities but had to plead according to customary law once they started practicing law.Footnote ² The disturbing gap between legal education and practice was part of a larger problem of confusion in the French legal system. Law consisted of a disorganized amalgam of provincial and local customs and royal ordinances, all of which were mixed with elements of canonical and Roman law, with little apparent internal coherence. Understandably the entire generation of French legal humanists in the sixteenth century was concerned with how to unify diverse legal sources. Humanist judges and lawyers clamored for simplification and systematization of law for the benefit of everyday judicial practice.Footnote ³ The notion of “French law” that emerged as a product of humanism marked a change from the legal science of medieval times, departing from the conception of Roman law as ius commune.Footnote ⁴

It is possible to identify three distinct visions embraced by contemporary jurists regarding how to achieve the uniformity of law: the synthesis of customary laws; jurisprudence; and royal legislation. The first solution was closely linked to the rise of a nationalistic spirit, characteristic of French legal humanism.Footnote ⁵ It relied on “la doctrine,” the work of legal scholars. The jurists argued that French law should be based not on a blind copy of Roman law but on an independent synthesis of French history. The leading legists, such as Charles Dumoulin, Etienne Pasquier, and Guy Coquille, asserted that the true French law lay in custom and that local coutumiers should be the foundation of legal unification.Footnote ⁶ Since Charles VII in his famous Ordinance of Montilz-lez-Tours in 1454 called for the official redaction of provincial customs, efforts to collect customs continued throughout the ancien régime, practically to the eve of the Revolution.Footnote ⁷ The second half of the sixteenth century in particular witnessed a massive campaign to record and reform customs, led by Christophe de Thou, premier président of the Parlement of Paris. The movement culminated in the reformation of the Coutume of Paris in 1580.Footnote ⁸

The codification of customs allowed doctrinal writers to study and compare diverse coutumiers and attempt a rational ordering of local customs. Legal humanists attempted to construct a system of customary law susceptible to serve as the basis of legal interpretations, in which Roman law principles could be utilized without deforming French custom. Antoine Loisel tried in his Institutes coustumières to extract essential elements in different customs and discern common principles among them.Footnote ⁹ Dumoulin proposed a common customary law (le droit commun coutumier).Footnote ¹⁰ The reformed Parisian coutume was expected to become the basis of a unified French law.

The second ideal for legal unification revolved around harmonizing customary rules by means of “la jurisprudence” of the parlements. Before the sixteenth century, jurisprudence was regional, if not strictly local. From at least the early fifteenth century, the parlements in the South adopted Roman law principles at the expense of customary rules and tried to limit legal diversity. The Parlement of Toulouse, in particular, was active in implementing Roman law rules of succession disregarding divergent customary dispositions.Footnote ¹¹ In the North, as a parlement heard local customs within its jurisdiction, it tended to assimilate usages, and the accumulation of res judicatae led to the redefinition of custom. As courts became increasingly professional, court practice constituted a forensic custom, usus fori, and the court reports routinely cited earlier decisions as precedents.Footnote ¹² Sarah Hanley has shown that jurists were engaged between 1550 and 1650 in developing a system of jurisprudence based on a body of French marital law.Footnote ¹³ By the end of the sixteenth century, jurisprudence, containing both customary and Roman elements, had emerged as a veritable source of law.

Whereas the two approaches above, doctrinal and jurisprudential activities, did not rise, at least initially, above the boundaries of a customary region or parlementary jurisdiction, the third solution envisaged the unification of law throughout the kingdom by means of legislation. This vision, far more drastic, consisted of galvanizing fragmentary doctrinal and jurisprudential progress to create a legislative unity through the instrument of royal edicts and ordinances. The importance of royal legislation was widely acknowledged. When Pasquier enumerated the sources of French law, royal ordinances topped his list.Footnote ¹⁴ To be sure, royal law remained far from constituting the principal source in private law. Nevertheless, the expectation that royal legislation would accommodate both French custom and general principles from Roman law to create a genuine French law steadily grew in the sixteenth century. It was a development that coincided with the rise of the administrative monarchy in France.

Royal legislation, jurisprudence, and doctrine overlapped and interacted with each other to create a dynamic intellectual climate of legal reform and unification. The jurists shared a desire to overcome local particularism. The idea that legal unity was essential for preserving the unity of the kingdom gained poignancy as France underwent religious divisions and plunged into civil war in the second half of the sixteenth century. The importance of a unified legal system, as the embodiment of the public good represented by the king, was arguably most powerfully articulated in the early phase of the religious wars by Michel de L'Hôpital, chancellor of France from 1560 to 1568 during the reigns of François II and Charles IX and under the regency of Catherine de Medici.Footnote ¹⁵ A prominent humanist and former judge at the Parlement of Paris, Chancellor L'Hôpital was better suited than anyone else to pull different approaches to legal unification together and present a direction towards a unified French law backed by royal authority. It is remarkable—and has received inadequate attention from historians—that the movements to create a national law progressed against the backdrop of the Religious Wars (1562–1598). France, precisely when it was ravaged by confessional conflicts and its unity seriously threatened during the civil war, witnessed an efflorescence of reforming zeal to rationalize and systematize law.

There was a close link between the yearning for national unity during the religious crisis and the rise of the notion of French law. The principal promoters of French law, including Dumoulin, Pasquier, and François Grimaudet, were all theorists of Gallicanism.Footnote ¹⁶ It is well known that L'Hôpital's voluminous Latin poems are filled with aggressive Gallican rhetoric. Chancellor L'Hôpital was a sort of doyen of contemporary humanist jurists, brought together by a rising national sentiment. It appears that there existed a veritable reformist circle of legal scholars around him in the 1560s, as the chancellor served as their patron and source of juridical and literary inspirations. Scholars agree that L'Hôpital's comprehensive legal vision stood out over that of other chancellors in the sixteenth century.Footnote ¹⁷

L'Hôpital is best known in history for his advocacy of the provisional coexistence of different religions in France. There is a certain continuity between his religious policy and legal policy. L'Hôpital's call for a reform of the judicial structure had its roots in the belief that the corruption of the legal system engendered hatred and enmity that would inevitably impede the preservation of unity in the kingdom. The civil war was responsible for the perversion of the exercise of royal justice.Footnote ¹⁸ Under L'Hôpital's chancellorship, the idea of the unification of law, hitherto an intellectual conception, was propelled into a full-fledged reform campaign with the kind of intensity already well exhibited in the chancellor's assertion of royal authority in religious matters. Both his religious and legal policies presupposed the supremacy of undivided royal authority.Footnote ¹⁹ Since the king was the only guarantor of civil peace, he must be obeyed, absolutely obeyed. For L'Hôpital, the lack of legal unity was as inimical to the unity of kingdom as religions divisions: “Different languages do not cause the breakup of a kingdom, but divisions in religion and law do; they split a kingdom into two. Hence the old proverb une foy, une loy, un roy.”Footnote ²⁰ His assertion of the Crown's legislative power elevated to a new level the old adage, “si veut le roi, si veut la loi” (as the king wills, so wills the law).

In this article, I postulate the existence of a genuine spirit of legal reform in the second half of the sixteenth century that heightened with the escalation of religious crisis. L'Hôpital's short-lived campaign to unify French law under the royal power, an effort that abruptly came to an end when he was disgraced in 1568, represents both the strength and the limits of the ideal of legal unification in the sixteenth century. Above all, his reformist opinion presented a unique prescription for discerning, and transcending, the boundaries of law and politics. It was a vision to seek peace, justice, and concord, unrestrained by obstacles, whether they be the calamities of civil war or the detriments of disorganized civil law. The ideal of a French law abounded since the late Middle Ages, but the sixteenth century witnessed dramatic waves of zeal for legal unification, inflamed by a sense of urgency against the backdrop of political crisis. L'Hôpital's chancellorship embodied this imperative.

Recent studies have emphasized that L'Hôpital's concern for legal reform was based on his ethical Christian perspective, that is, denunciation of moral corruption and human greed.Footnote ²¹ His political and legal philosophy, which can be characterized as Ciceronian evangelism, convinced him that there would be no peace if the integrity of law and justice was not restored. It is notable that the chancellor's reform effort was not limited to improving court procedures but extended to modifying substantive rules of private law. Historians have rightly cautioned against overestimating the role of royal legislation in private law in the sixteenth century. It was only under Louis XV that the legislator successfully began tackling private law, as seen in the reforms of gifts and wills by Chancellor Henri-François d'Aguesseau. Yet L'Hôpital's invocation of royal legislation as an instrument for changing both public and private law represented a new juridical frame. It presupposed the authority of the Crown in discrediting and abandoning undesirable particular solutions in the provinces and instead introducing the notion of public good in the national law. Examination of L'Hôpital's reforms can provide an important, and rare, point of reference in juxtaposing the achievement of legal humanism with the predicament of the religious wars in early modern French history.

The choice of L'Hôpital as the focus of discussion regarding the rise of “French law” can be justified in several respects. Chancellor L'Hôpital exhibited the intellectual prowess as well as the political will to undertake the task of translating the achievements in legal science into the creation of a unified and systematized legal system. Further, his reform of judicial administration crucially bore upon the key constitutional debates of the French monarchy in the sixteenth century. His rejection of juridical rigidity and his view that the law should change according to the requirements of the time clashed with the credo of the parlementaires that law should not be submitted to human contingencies.Footnote ²² L'Hôpital's emphasis on the need to formulate the law in response to the exigencies of the present revealed a distinctly historicist view characteristic of the humanists. Just as he was convinced that the solution to the religious division was not persecution but moral regeneration, his legislative reform was grounded in the ideal of an ethical society that would be achieved by probity in the magistracy and the simplicity of law. This unique reformist cause provided a powerful impetus in fusing and catalyzing the diverse aspirations of legal unification.Footnote ²³ It presented a new direction of la loi du roi that constituted, it can be argued, prefigurations of the Napoleonic codification of law over two hundred years later.

Legal Humanism

Legal humanists sharply faulted Bartolus and the Commentators for distorting the original meaning of Justinian's Corpus iuris civilis. L'Hôpital shared their opinion that rampant glosses led to the multiplication of laws. He lamented: “Since we received the laws about three hundred years ago—and we thought we found a great treasure, because it was in wide use—it has turned to a shame and ruin and has become poison. Young people sent to study law at the universities return home full of paragraphs with glosses, without knowing how to use them.”Footnote ²⁴ A number of jurists, such as François de Connan, Hughes Doneau, and Louis Le Caron, undertook the project of rearranging the texts of the Digest and the Codex according to classical ideals. L'Hôpital too, while he was a judge at the Parlement of Paris, attempted to prepare a synthesis of Roman law.Footnote ²⁵ In his testament, L'Hôpital referred to the books of civil law that he had started but left unfinished.Footnote ²⁶ This is likely the same work that he talked about in his Latin poems. L'Hôpital wrote to the Cardinal du Bellay in 1548: “I again took up my studies that I had started in my younger days when I was less experienced. They have been interrupted for a long time. The laws, the responses of the prudent, remain, as before, scattered around in a confusing manner. I gather the dispersed fragments and classify them in a rational order. I devote myself wholly to this long work.” If he “were not distracted by the procedures, disputes and sad clamors at the law court” that he had to deal with as judge at the Parlement, he “would be able to put the final touches to my work within two or three years at the most. I do not like wasting my time in leisurely nonsense.”Footnote ²⁷

In another epistle to Chancellor François Olivier, L'Hôpital further described his project of organizing Roman law and the writings of the classical jurists “into a single body packed together by lime and cement.” Many people had attempted to write a similar work before him, without much success, and “during all this time each mercenary of new sciences has flattered his disciples with vain hope.” His book, “ordered following a simple and easy method, will offer many advantages. If someone challenges me, I can give answers that will not only reconcile laws but also resolve particular problems and obscure points.”Footnote ²⁸ Apparently this was the same spirit with which he took on royal legislation from 1560. A législateur not a mere jurisconsulte, Chancellor L'Hôpital drafted sweeping edicts and ordinances in order to systematize both the procedural and substantive rules in French law.

Reform of Judicial Administration

The reformation of customs was prompted by the need to improve the operation of royal institutions. In particular, it was necessary to control the excessive number of lawsuits that nearly broke down the legal system. The ordinance of Montilz-lez-Tours noted that, by writing customs down, “lawsuits would be much shorter and the parties relieved of expenses and costs, and the judges would be able to render better judgments with greater certainty” (article 125).Footnote ⁵⁴ The litigious culture of early modern France was universally lamented in legal circles. Bodin contended that the French kingdom “has more laws and customs than all the neighboring peoples, and more legal proceedings than the rest of Europe.”Footnote ⁵⁵ L'Hôpital stated that French people were too quick to turn to law courts to resolve their differences and that “there are more lawsuits at the Châtelet of Paris than in all of Italy.”Footnote ⁵⁶ “Since the reign of Charles VII, after the English were chased away from France,” he opined, “people began to plead forcefully, wanting to recover their property. And even now, since the last troubles, people fight in lawsuits more than ever, and they have come up with more inventions to plead and deceive each other than ever before.”Footnote ⁵⁷

For L'Hôpital, legal unification was necessary to reduce lawsuits, which would lay the groundwork for a moral society. L'Hôpital's political and legal philosophy stood on evangelical certitude and a sense of duty and conscience. In the sixteenth century, pietas and iustitia were viewed as indistinguishable.Footnote ⁵⁸ Armed with the humanist quest for logical simplicity, the new chancellor, who assumed his duties in May 1560, set out to tighten procedural rules deemed critical for efficient disposition of disputes. He pleaded with the magistrates at the Parlement of Paris in 1560: “I pray that the court is concerned less about the subtle points and disputes of the law than about the country we live in and about the morals of the rich people who engage in legal proceedings and quarrels.”Footnote ⁵⁹ He continued: “The office of a good judge is secare multas lites [to cut short many litigations] and prevent many incidents and lawsuits from arising, rather than resolving them diligently. We must take care that they do not start. If the court cannot prevent lawsuits, I ask the court to work so that what it cannot prevent from arising it can prevent from dragging on.”Footnote ⁶⁰ There was a case in the Parlement of Toulouse, stated L'Hôpital, that continued on for six years, giving rise to infinite problems. “These proceedings are detrimental not only to the parties but also to the officials executing the decisions and sometimes even to those who execute them for the king.”Footnote ⁶¹ L'Hôpital introduced a series of legislative acts to streamline procedural rules. Known as the Edicts of Fontainebleau, issued in August 1560 following the Assembly of Notables held at Fontainebleau, they are witness to the practical dimension of L'Hôpital's legal reforms.

A document in L'Hôpital's own handwriting, preserved at the Bibliothèque Nationale in Paris, lists over sixty draft reform measures.Footnote ⁶² It is likely that this manuscript was prepared by L'Hôpital in July 1560, not long after his appointment to the chancellorship, as he contemplated legal reforms to undertake. His list reveals a rare breadth of scope, covering almost every aspect of law. The contents range from the improvement of judicial administration, such as the suppression of épices and the regulation of professional conduct of avocats and procureurs, the simplification and systematization of legal procedure, including the rules of evidence, res judicata, arbitration and settlement, and to the reform of substantive private law rules, covering succession, gifts, trusts, and testaments. This document, a veritable outline of his codification project, fully demonstrates that his legal reforms were not makeshift responses to the temporary problems but the outcome of a clearly laid-out program that he had in mind for quite some time. A number of items were turned into specific provisions in the edicts and ordinances issued during his chancellorship.

One of the first measures for which L'Hôpital drew ideas from Roman law principles concerned the rule of “transactio.”Footnote ⁶³ “Transactio,” or compromise, allowed litigating parties to settle a suit that was pending or about to commence. Once a compromise was reached by mutual concessions and registered at the court, the arrangement became a legal act. It is better, L'Hôpital stated in his speech of September 1560 at the Parlement of Paris, “to sort out the differences between the parties on their own than to resort to the judges who place the matters beyond friendship. Litigation is lengthy and creates enemies. Some bad person goes to the court and gets himself in plenty of trouble. Enmity continues forever, while time and money are wasted.”Footnote ⁶⁴ In the Roman rule of transactio, “injury,” or failure of consideration, was never a cause for rescinding legal acts between persons of legal age, but French law allowed the parties to rescind the settlement on the ground of “serious injury.” As a result, L'Hôpital pointed out, it was not uncommon that people changed their mind after reaching a settlement and tried to void it claiming serious injury.Footnote ⁶⁵ Just as voluntary resolution of disputes among the parties was important, so was preserving the finality of legal settlement. The new edict declared that the terms of settlement, once reached by the adults, were irrevocable regardless of the injury alleged by the parties, and confirmed that they would have the same force as a judgment of the court.Footnote ⁶⁶

L'Hôpital told the Parisian magistrates: “The experts of the Institutes know that there are three ways in law to end lawsuits: res iudicata, iusiurandum and transactio, among which the last must be the most agreeable because it is voluntarily reached. While res iudicata sit sacrosancta velut iusiurandum [the judged matter should be holy just like an oath], nature itself teaches the humans to adhere to what they have agreed.”Footnote ⁶⁷

Various measures included in the Edicts of Fontainebleau were intended to avoid the formalities, delay, expenses, and vexation of litigation. “La sévérité et abréviation de justice,” in L'Hôpital's own words, was not meant, however, to imperil justice.Footnote ⁶⁸ The right of appeal is a “necessary defense,” he acknowledged, and “the Romans called it patronam libertatis.” But “there are certain areas in which one can compel the subjects to resolve their differences, not just without appeals but without legal proceedings” in the first place.Footnote ⁶⁹ Limiting the right of appeal was not his aim; discouraging frivolous lawsuits and meritless appeals was.

While interminable conflicts among the parties seriously delayed justice, endless squabbles among the courts over jurisdiction nearly paralyzed the legal system. A piece of legislation aimed at taming jurisdictional conflicts was the Edict of Pareatis, also issued in Fontainebleau.Footnote ⁷⁰ During the feudal period, the principle of seigneurial independence limited the executory force of a judgment to the jurisdiction of the court that had pronounced it. With the establishment of royal courts, it was necessary for royal magistrates to obtain the letter of pareatis—meaning “you shall obey”—from the chancellery in order to have their decisions executed in the territory of seigneurial courts. Now the practice developed into conflicts among the royal courts themselves, and individual parlements refused to enforce the judgments rendered in other parlements without the letters of pareatis.Footnote ⁷¹ The Edict of Pareatis, authored by L'Hôpital, prohibited this practice and decreed that the arrêts of one parlement had full legal force in other jurisdictions.

For L'Hôpital, squabbling among the provincial courts claiming jurisdictional autonomy was incompatible with royal sovereignty. He told the Parlement of Paris that the edict was directed not at the Parisian court but at provincial courts, in particular, those in “Toulouse, Bretagne, Normandy and Grenoble.”Footnote ⁷² This edict represents one of the core aims of L'Hôpital's reform projects to bring the parlements together under royal power. Ensuring across-the-board recognition of judicial decisions was a condition necessary for the uniform implementation of royal legislation.

Chancellor L'Hôpital's legislative reform was in many ways parallel to the reformation of custom led by premier président de Thou, taking place contemporaneously in the 1560s. Both L'Hôpital and de Thou had well-defined reformist schemes in mind, aiming at removing injustice in law contrary to reason and equity. They both tried to reduce divergences between customary solutions and the Roman law tradition in French law. They shared the humanist distrust of the universal authority of Roman law, yet admired its principles. If Roman law concepts were useful as written reason (ratio scripta), they could be made more useful by application to particular laws of the country.Footnote ⁷³ Together the works of L'Hôpital and de Thou represent efforts to combine innovative principles and institutions from Roman law with customary law.

Consideration of the two campaigns to reform French law—one through customary redactions and the other through royal legislation—sheds important light on the contemporary conception of public law and private law. The reform of customs proceeded in accordance with the ancient principles of the “public law of custom.” Substantive customs were within the realm of private law, in which the king in principle did not intervene, but the matter of codifying customs fell in the area of public law. It constituted promoting independently the concord of each recorded custom with public law, which must by its nature be national. By means of quasi-legislative machinery, the codification opened the door, in an oblique way, to the intrusion of royal power into the sphere of custom, and it rendered the notion of royal legislative power in private law less extraordinary. L'Hôpital's program exhibited this nuanced approach. The attempt to reform private law was mainly framed in terms of the improvement of judicial administration, such as reducing lawsuits. The reconfiguration of the administration of justice was a roundabout way for the monarchy to assert control over the disposition of private law matters, while claiming its respect of local custom and the sovereign courts' power.

L'Hôpital devised a number of measures that directly changed existing substantive rules of family and succession matters. Regulation of the rules of substitution and the propres for instance, as discussed below, evidences his resolve to reform the key issues in private law at once rather than waiting for the harmonization of different local coutumiers. It was essential to foster the doctrinal and jurisprudential progress by funneling it into legislation to apply across the kingdom. L'Hôpital's legislative efforts to reshape procedural and substantive rules were both prompted by the conscious desire to precipitate legal unification.

La Loi du Roi: Reform of Private Law

Pasquier praised that that L'Hôpital was the author of excellent laws, such as the Ordinance of Orleans (1561), the Edict of Roussillon (1564), and the Ordinances of Moulins (1566), all redacted when “the extraordinary violence of the times did not allow any leisure for legislation.”Footnote ⁷⁴ It is important not to overlook the fact that L'Hôpital's legislative project was dictated by political circumstances. He urgently needed measures to stop the centrifugal forces threatening the survival of the state, already on the verge of dissolution due to religious conflicts. Establishing coherent and uniform rules, both in public and private law, was critical for the execution of royal justice, and for the avoidance of obstacles emanating from provincial particularism. L'Hôpital's reforms were fundamentally powered by the conviction that the unity of law was necessary for the unity of the kingdom. To be sure, as Jean Hilaire pointed out, one needs to be careful in surmising in the sixteenth century an effort to establish “a concrete, continual, and definitive link” between the pays de droit écrit and the pays de coutumes, similar to the attempt made on the eve of the Revolution.Footnote ⁷⁵ Yet, a series of laws issued in the 1560s were clearly intended to replace bodies of complex and conflicting local rules with uniform rules. Whether they were of French or Roman origin mattered little, as long as they promoted legal unity and overcame local particularism.

The historian Jacques-Auguste de Thou, the son of premier président Christophe de Thou, stated that L'Hôpital began his chancellorship by “publishing a very judicious law on the topic of the second marriages of women.”Footnote ⁷⁶ The Edict of Second Marriages (secondes noces), promulgated under François II in July 1560, prohibited remarrying widows from giving excessive gifts to their new husbands to the detriment of the children from the first marriage.Footnote ⁷⁷ It was based on Roman laws that were in force in the pays de droit écrit. Footnote ⁷⁸ In the pays de coutumes, customary regulations made it difficult to give such gifts, and this was why laws similar to the Roman law provisions were not deemed necessary. But scandals continued to arise despite customary restraints, prompting the government to act. The royal edict basically extended the Roman law rules to the pays de coutumes. The first clause of the edict prohibited remarrying widows with children or grandchildren from giving their property, even by contract of marriage, to their new husbands at a level beyond the smallest share of the child from the first marriage. The second clause declared the nullity of the grant, if gifts from the predeceased spouse were conveyed by widows or widowers to the advantage of their new spouse; such property was to be reserved to the children of the first marriage.Footnote ⁷⁹

Along with the 1557 edict that prohibited clandestine marriage, this edict can be viewed as an important example of royal legislation's intrusion into the matters of private law, previously reserved for Church law or customary regulation.Footnote ⁸⁰ It also illustrates how campaigns of royal legislation stimulated customary law reforms: the newly redacted Coutume of Paris in 1580 closely repeated the edict's provisions (article 279).Footnote ⁸¹ François Olivier-Martin stressed that the Edict of Second Marriages was an “exceptional intervention” by royal legislation, prompted by special circumstances.Footnote ⁸² Indeed the boundaries separating the sphere of legislation and the sphere of the coutumes remained solid in the minds of most jurists.Footnote ⁸³ The king felt obliged to explain that his intervention in private law was necessary for good justice and good regulation. The edict claimed that the Crown's decision to modify customary law was justified when the public interest was at stake. The idea that the king could amend or abrogate “bad” customary law had been accepted from as early as the eleventh century.Footnote ⁸⁴ But a fresh reassertion of this old idea in 1560 was not a mere coincidence. Here, one can get a glimpse of the philosophy of the edict's author, Chancellor L'Hôpital.

One of the most conspicuous elements in L'Hôpital's legal thought is the belief that the law needs to be modified according to the changing requirements of the times. He declared in 1561 before the extended assembly of notables and parlementaires: “Human laws and policy cannot always remain the same; one must change them sometimes according to what people are.”Footnote ⁸⁵ One should “ask not merely whether the law is just in itself but whether the law conforms to the time and the people for whom it was made.”Footnote ⁸⁶ For the same reason, customary rules, if necessary, need to be changed by royal legislation. To make sure that the law does not lose touch with the times was an important duty of the office of the chancellor in early modern France. L'Hôpital articulated, better than any other chancellors, the necessity to modify law in face of the evolution of the times and the inconsistency of the people.Footnote ⁸⁷ The same essential principle of political efficiency had characterized his religious policy. He criticized juridical rigidity of the parlements that opposed royal pacification edicts. The fundamental law of the unity of religion needed to be modified, temporarily, because granting limited toleration to the Protestants was the only way to preserve the kingdom. He perceived the modification of law not as weakness but as a sign of effluence of royal authority.

Implementation of royal law throughout the kingdom, disregarding existing regional divergences, was an overriding objective in L'Hôpital's agenda. His goals of simplification and unification of private law were in clear display in the laws regulating substitutions in trust (substitutions fidéi-commissaires), also known as trust-entails. The reform of substitutions had not been solicited by the deputies in the Estates General at Orleans but proposed on the chancellor's initiative.Footnote ⁸⁸ Substitutions in trust were created by means of a testamentary gift or a contract. The legatee or donee of the gift had full lifetime possession and enjoyment of the property, but he was not allowed to alienate it. The “encumbered” was charged with preserving the property that had been bequeathed to him, and giving it on his death to the new beneficiary substituted for him. The latter, “remainderman,” was in his turn charged with keeping it and giving it to another, and so on.Footnote ⁸⁹ Through this institution, the grantor could control the disposal of his property during one or more generations by creating a succession order, free from the rules of customary or legal devolution.

Substitutions were justified on the grounds that they protected the interest of children and the posterity, but they contained serious problems, in particular when they were set up in perpetuity or in secret. When perpetual trusts were created, the property was effectively excluded from the market, depressing commerce when the estate involved was of substantial size. When the trust was set up secretly, the encumbered often passed for the absolute owner. If he alienated the property, he was considered to have forfeited his rights, and the immediate vesting in the remainderman took place. These situations could result in significant harm to the innocent parties, giving rise to incessant disputes. Coquille sympathized with the defrauded creditors and deceived sons-in-law, “who often find that the inheritance they expected to be huge turned out to be good-for-nothing.”Footnote ⁹⁰

Montesquieu the aristocrat saw in the eighteenth century both the utility and the drawbacks of the system: “Substitutions, which keep goods in families, will be very useful in this government,” but at the same time they “hamper commerce; redemption by one of the lineage makes an infinite number of proceedings necessary.”Footnote ⁹¹ In the sixteenth century, L'Hôpital saw nothing but a nursery of lawsuits. The king had tried to stop the abuses of substitutions in 1539 and again in 1553, with little success. In the Ordinance of Orleans, he prohibited perpetual substitutions and allowed entails to be created for two succeessive inheritors only, not including the first holder (article 59). The Ordinance of Moulins in 1566 further tightened the rules, requiring that the entails be read in court and registered (article 57). It also stipulated that substitutions that had already been in existence at the time of the Ordinance of Orleans be valid up to four occurrences only and that they be published. The need to protect unsuspecting parties and prevent lawsuits prevailed over the desire to preserve the patrimony of great noble houses.

These royal reform efforts met systematic opposition from the parlements. The law courts' reactions to the laws are illustrative of their reluctance to let royal legislation control what they regarded as the matters of local prerogatives. The main difficulty in implementing the new rules involved the reckoning of the number of the occurrence of succession. Several parlements in the Midi insisted that the incidents must be counted by stock or generation.Footnote ⁹² Thus, when the trusteeship passed to several brothers successively, inheritance by all the brothers, no matter how many, counted as a single occurrence. This was obviously against the intent of the rule. Several parlements, including the Parlement of Toulouse, continued to allow entails for four generations, regardless of whether they had been created before or after the Ordinance of Orleans. These examples show that the new edicts and ordinances were subject to judicial interpretation and that the successful implementation of private-law reforms crucially hinged upon the cooperation of the courts.

The Edict of Saint-Maur issued in May 1567, known as the Edict of Mothers, was another example of the royal effort to promote uniformity across the kingdom. In the pays de droit écrit, the Roman law principle of the unity of patrimony—the Novel 118 of Justinian—held sway. According to this succession rule, all the property formed a single mass, regardless of its nature or its origin, and, where there was no issue, the property of the deceased devolved upon the ascendants and the nearest collaterals, without any distinction being made as to the type of property. In the pays de coutumes, on the contrary, the property of the deceased was divided between the property, important enough to preserve within the family from which it came from, and other assets, judged less important. For the first category, called the propres, the property coming from the father or the paternal family was separated from the property coming from the mother or the maternal family.Footnote ⁹³ Each property returned to the closest relatives from each side. This was the rule paterna paternis, materna maternis, which was in full force in the sixteenth century. The propres that had originated in the paternal line were not allowed to go to the maternal relatives, and vice versa.Footnote ⁹⁴

The Edict of Saint-Maur introduced the rule of paterna paternis into the pays de droit écrit. The widow would receive the usufruct of half her husband's estate but could not deprive her children of eventual inheritance.Footnote ⁹⁵ On its face, the edict was discriminatory against mothers, as it mentioned the rule paterna paternis but not the rule materna maternis.Footnote ⁹⁶ The apparent misogynist nature of the edict notwithstanding, imposition in the pays de droit écrit of one of the most important rules of customary succession law witnessed the royal objective to enforce the same rule throughout the kingdom. The edict declared that Roman law that had been applied in the pays and duchies of Guyenne, Languedoc, and Dauphiné was “directly contrary to what is observed in other pays of our kingdom,” and that “it pleases us that the Roman ordinance be not followed nor practiced in any place in our kingdom.”Footnote ⁹⁷

As pointed out earlier, the Crown's intervention in private law matters was justified as a measure essential for reducing lawsuits. Article 59 of the Ordinance of Orleans stated that the regulation of substitution was necessary “to avoid useless and onerous judicial contestation.”Footnote ⁹⁸ Both the Edict of Second Marriages and the Edict of Mothers appealed to the reason of good justice. The preamble of the Edict of Mothers invoked the king's right, and the duty, to “ensure the preservation and observation of the laws and ordinances of previous kings and reform or altogether abrogate and abolish the laws and coutumes which, experience has told us, incurred much inconvenience and harm to public good instead of being as salutary as was the intention of those who first received them.”Footnote ⁹⁹ The royal laws of gifts and succession matters in the 1560s as well as the edict of 1557 and the Ordinance of Blois in 1579 concerning the regulation of marriage, were fashioned as measures to improve judicial administration rather than attempts to reform substantive private rules. The monarchy tried hard not to give an impression that it was aggressively intervening into the realm of local and regional authorities. This was the general approach of the royal government, yet the laws above unmistakably asserted the king's power to abolish or modify “bad” customs. Inequitable laws and customs needed to be quashed, no matter whether they were derived from Roman law or customary law and no matter how long they had been observed. Most important, the king's laws were intended to transcend the boundaries of the pays de droit écrit and the pays de coutumes.

The royal government's initiatives to change existing custom by legislation drew serious opposition from the interested local population.Footnote ¹⁰⁰ The Edict of Mothers was resisted in the pays de droit écrit because it introduced a “foreign” concept of the propres. The responses of the courts differed depending on whether they belonged to the customary regions or the Roman law regions. The historian de Thou attested to the divided reactions by the parlements: “The edict … was verified and registered at the Parlement of Paris on July 29 and received with great applause by the public. But other parlements, at which the edict was aimed, rejected it. … Despite the repeated lettres de jussion, one could not get them to register it.”Footnote ¹⁰¹ The parlements of the provinces of Guyenne and Languedoc refused to receive the edict. The Parlement of Aix recorded the edict but continued to interpret it in a way to preserve the succession rule hitherto observed in the region.Footnote ¹⁰² Strong arguments were made, as in the estates in Dauphiné, that royal legislation could not abrogate the customs of the provinces that had recently joined France. The edict was not even sent to the Parlement of Bourgogne for registration.Footnote ¹⁰³

A closer look at the reception at the Parlement of Paris illustrates further complications. Within the jurisdiction of the Parisian court existed both regions observing the rule paterna paternis, materna maternis and regions observing the Novel 118 as their custom. The Parlement of Paris registered the edict but refused to enforce it in the regions that had customary rules allowing the parents to take from their children as in Roman law. Citing the hostility the edict had received from the parlements of the Midi, the arrêt of the Parlement of Paris in 1576 decided that the law had no effect in customary regions where there was a contrary usage. In 1729 the king at last revoked the law, declaring that he did not wish to meddle with the private usages of the regions.Footnote ¹⁰⁴

Legislation and Justice

The reception by the parlements of the private law edicts illustrates the challenges the Crown faced in its effort to impose a nationwide law, overriding the prerogatives of local law. The success or failure of legal reform depended to a large measure on the favorable or hostile dispositions of the magistrates. The judges had enjoyed since the fourteenth century an almost exclusive authority to regulate customary law. Custom became law through the courts' decisions. The judges were perhaps more confident of the prospect of unifying law by their jurisprudential and regulatory means than was the royal government.Footnote ¹⁰⁵ Legislation of private law matters may have been perceived as a threat to them, hijacking their efforts and usurping their traditional power. As in the case of the Parlement of Aix above, even when an edict was registered and promulgated by a parlement, the magistrates often engaged in interpreting the language in a way to defeat the original intention of the laws.

The royal attempt to unify law in the 1560s needs to be seen in the full context of contemporary political development. The sovereign courts' opposition to private law reforms was not very different in nature from their resistance to royal religious edicts. The royal policy to stop the escalation of violence by granting limited freedom of worship to Protestants suffered greatly when the parlements refused to register the pacification edicts promptly.Footnote ¹⁰⁶ Chancellor L'Hôpital's exasperation at the resulting delay was illustrated when he tried a few times to send an edict directly to provincial governors and officials, skipping the registration procedure at the parlements.Footnote ¹⁰⁷ It is well known that he attempted to limit the parlementary practice of repeated remonstrances against royal edicts. For the Parlement of Paris, its opposition to pacification edicts was justified on the grounds of the fundamental common good of maintaining religious unity in the kingdom. It was harnessing “constitutional” restraints upon the monarch. For the chancellor, in contrast, constitutional debates had to wait when the kingdom was on the verge of dissolution.

In his remarkably perceptive biography of L'Hôpital, Denis Crouzet explained how the sense of urgency dictated L'Hôpital's philosophy and public action.Footnote ¹⁰⁸ According to Crouzet, L'Hôpital deplored the presence of misfortune (le malheur) of his time, in which people, consumed by human presumption, remained oblivious to the will of God. The religious wars were caused by human evil, the alienation of Christians from the peace of Christ. Wisdom (la sagesse) convinced L'Hôpital that he was destined to fight against the misfortune of humanity, awaken people from their slumber, and guide them towards virtue in order to seek divine pardon. Time was pressing, hence his sense of utmost urgency. In a similar line of analysis, Sylvie Daubresse argued that Chancellor L'Hôpital and the Parlement of Paris did not have the same concept of time. As the law court, the Parlement “sought assured, not contingent, truth” and valued prudence in the exercise of justice.Footnote ¹⁰⁹ L'Hôpital could not afford such constitutional complacencies. He needed to limit the harm to civil peace caused by the delay in implementing pacification edicts. The parlements' right of remonstrance, practiced to the extreme, had to be suspended. The ideal of religious unity ought to yield, temporarily, to political exigency. L'Hôpital believed that the law needed to change according to the “condicio temporum” (conditions of the times).Footnote ¹¹⁰ In times of crisis, it was imperative to adapt the law to the reality. During the civil war, with royal justice in shambles, the chancellor saw the need for a quick decision and immediate action to stamp out the troubles. In an emergency, traditional rules of governing, including the ideal of une foi, had to make concessions. He had no time to wait. This expedient view of the chancellor was bound to clash with the parlementaires' belief in the immutability of law.

L'Hôpital believed that the prince was the administrator of the loi and the droit, and that the parlements had to assure their observance. He chided the parlementaires of Rouen in 1563 for failing to obey the royal will: “You act as if you are above the ordinances and not obliged to follow them if they displease you. Messieurs, messieurs, the ordinances are above you. You are said to be sovereign courts, but the ordinance is the commandment of the king and you are not superior to the king. … The will of the judge must conform to the intention of the legislator. The king makes an ordinance and you interpret it incorrectly, contrary to his intentions, which is not your duty.”Footnote ¹¹¹ In 1564, the chancellor reminded the magistrates at the Parlement of Bordeaux that their business was limited to deciding cases between private parties in accordance with the royal law: “You, messieurs, are commissioned specifically to execute justice. … When you do not obey the king's ordinances, you deprive him of his power, which is worse than taking away from him his domain. … You seem to assume that you are wiser than the king but your expertise is limited to judging particular cases. You are not wiser than the king, the queen, and the royal council.”Footnote ¹¹²

The constitutional vision of Chancellor L'Hôpital, in discord with that of the parlementaires, provides a crucial point of reference in understanding the relationship of la justice and la législation in the sixteenth century. Some historians have tended to downplay the significance of L'Hôpital's declaration that the parlements only had to mind justice, not legislation. They have argued that the definition of justice was broad enough that it was impossible for royal government or anyone else to envisage the separation of the two functions and relegate the parlements to uniquely judicial functions.Footnote ¹¹³ Yet this notion of justice seems rather to support L'Hôpital's position of being unable to accept the parlements' refusal to obey royal will. Michel Reulos explained that the term “justice,” in the sixteenth-century administrative and juridical languages, designated not just justice rendered on the differences between the parties but also “preventive justice,” which consisted in allowing people to live in peace and avoid litigations.Footnote ¹¹⁴ It was in terms of this understanding that L'Hôpital tried to reshape the function of royal legislation. The Crown had the duty to exercise its full and undivided prerogatives in both justice and legislation, and thus its edicts and ordinances, the measures of justice, could govern all the domains of the subjects' lives. Legislation was not separable from the judicial functions of the king. Le roi justicier was also le roi législateur.

L'Hôpital's assertion of the supremacy of royal legislation was not an isolated idea in the sixteenth century. Pasquier supported the supremacy of royal legislation to jurisprudence: the lower court judge “cannot decide expressly against the ordinance (because in this case the arrêt would be null and void) but can modify it ex variis rerum causis et figuris [from various causes and forms of the cases]. This is a very true proposition, but I wish that one deals with jurisprudence wisely: the authority of a sovereign court is great but not so great as to be above the law.”Footnote ¹¹⁵ The chancellor implored that the magistrates voluntarily restrain their power and execute royal pacification edicts without opposition in order to resolve the crisis of civil war. In the same spirit, he exhorted the judges to cooperate with the royal effort to improve the legal system, the breakdown of which was exacerbating the division among Frenchmen. L'Hôpital's goal was to reform law and judicial administration, not to wage a war against the institution of the parlement.Footnote ¹¹⁶ But L'Hôpital was often impatient when he thought that the parlements failed to exercise their power, emanating from the Crown, with moderation. He was plainly frustrated when he stated: “It always happens that, in deliberating on an edict, the Parlement chops up the whole thing or some parts of it.”Footnote ¹¹⁷ He flatly asked the judges: “Which is more important: the judgment of the king and his council or your own judgment?”Footnote ¹¹⁸ Hélène Michaud pointed out that rarely had a chancellor before L'Hopital employed as harsh and rigid language as his in the addresses to the parlements.Footnote ¹¹⁹

Nevertheless, the strained relationship between the chancellor and the parlements, especially the Parlement of Paris, should not be exaggerated. L'Hôpital's legislative projects were in many respects geared to bring the laws and judicial practices at the provincial parlements in line with those at the Parlement of Paris. L'Hôpital had many friends among the presidents and senior judges at the Parisian court. They shared a number of goals: reform of the church, attachment to Gallicanism, opposition to the use of force, and concern for reason and equity. Chancellor L'Hôpital's assertion of royal authority and premier président de Thou's defense of the prerogative of the Parisian court led them to clash in public pronouncements, but they were just doing their job.Footnote ¹²⁰ On the personal level, the two remained in cordial relationship. Pasquier regretted the political circumstances that pitted them against each other when they both pursued “the good and public peace.” He testified that de Thou, more than anyone else, paid utmost respect to the chancellor.Footnote ¹²¹ Apart from their common views advocating religious moderation, de Thou and L'Hôpital shared the objective of systematizing French law. The significance of this goal was to bring these two remarkable jurists together. In 1569, L'Hôpital, then in retirement, wrote to de Thou: “You are still healthy and strong enough to achieve greater things. … God owes you better fortune than what was mine.”Footnote ¹²² Perhaps L'Hôpital was entreating de Thou to continue, on his behalf, the campaign to unify French law. This task of de Thou was achieved, in part, when he successfully led the reformation of Parisian coutume in 1580, which was to become the basis of the codification of French civil law in 1804.