Smith in the City: the King scolds his magistrates

Horace Walpole’s journal entry for Monday, March 3 reads: “King [Louis XV] went suddenly to the [Paris] Parliament–packing up and writing letters till late in the evening. Dr Smith and Baron d’Holbach came. To the Temple.[1]

This pithy entry poses two key questions. Why did Louis XV make a rare appearance in the French capital that day? And what was the nature of the relationship between Adam Smith, a Scottish moral philosopher, and the German-born Baron d’Holbach, an open atheist? [I will focus on the first question here and address Smith’s relationship to d’Holbach later in this series.]

Since 1682, when Louis XIV had moved the seat of his court and government to the Palace of Versailles, making Versailles the de facto capital of France,[2] Paris had become “The Kingless Capital of Enlightenment.”[3] So, the King’s sudden and dramatic appearance in Paris has to be one of the most memorable, and perhaps the most contentious, moments of his long reign.

As it happens, the King’s appearance in the French capital on Monday, March 3, 1766 was just one move–a dramatic one to be sure–in a much larger and longer-running power struggle between the crown and the courts known as “the Brittany Affair,” a constitutional and political cause célèbre that, in hindsight, give the Revolution the appearance of inevitability. At the time, the courts of the kingdom were called parlements, and there were 13 such courts in all, one for each region in France. [See map pictured below.] The magistrates of these courts not only had the power to try civil and criminal cases; they also had the authority to register royal edicts.

In theory, a parlement could veto a royal edict by refusing to register it; in reality, however, recalcitrant magistrates ran the risk of imprisonment or exile. Louis XV, for example, had previously exiled the Parlement of Paris on two occasions, in 1732 and in 1753.[4] For France did not have a written constitution and no system of checks and balances, or in the words of one scholar, “The king consulted his ministers and advisers and determined what was best for the kingdom, his agents applied and his judges enforced his decrees throughout the realm, and his subjects obeyed.”[5]

In brief, in November of 1765, just a few weeks before Smith’s arrival in Paris, Louis XV had ordered the arrest of six Breton magistrates–including Louis-René de Caradeuc de La Chalotais (pictured below, right), the procureur général of the Parlement of Brittany–accusing them of conspiracy against the crown. He had also escalated the controversy by appointing a special royal commission to try the six magistrates instead of allowing the judges of the regional court, the Parlement of Brittany, to try their six fellow magistrates. This move, however, constituted a direct attack on the legal rights and privileges of judicial magistrates, who could only be tried by their parliamentary peers, not by an ad hoc royal commission.[6] Furthermore, on February 11, 1766, a few weeks prior to the King’s appearance in the French capital, the Parlement of Paris had unanimously condemned the King’s arrest of the Breton magistrates and declared his royal commission invalid.[7]

The decision of the Parlement of Paris, the most important of the regional courts, to intervene on behalf of the six Breton magistrates, and the appearance of Louis XV in Paris on March 3 thus tested the outer limits of the powers of the courts and converted the Brittany Affair into a high-stakes constitutional controversy, a direct confrontation between the King and the largest and most important of the royal courts. Without prior warning, Louis XV, along with five of his ministers, showed up in person to the Paris Parlement to reaffirm his royal authority and deliver a stinging rebuke of the Paris magistrates.

This improptu session of the parlement became known as le Séance de Flagellation or “the Session of the Scourging” because Louis XV verbally “lashed out” at the magistrates for defying his authority to try the six Breton magistrates. The opening words of his prepared remarks left no room for interpretation: “What happened in my Parlements of Pau and Rennes is of no concern of my other parlements. I have acted with regard to these two courts as my authority required, and I owe an explanation to no one.” After his full reply was read aloud, his ministers ordered the parlement’s condemnation of the King of February 11 to be physically removed from the register of the court.

Given the gravity of this constitutional confrontation and the King’s dramatic appearance on March 3, 1766, Adam Smith must have taken notice of this great political and judicial controversy. Horace Walpole, for example, was following the Brittany Affair quite closely. He mentions or describes this conflict in his travel journal and in his private correspondence on multiple occasions. Could this constitutional conflict have also helped spark Smith’s interest in political economy?

Putting aside the specific constitutional issue at stake in the Brittany Affair–i.e. who judges the judges?–this controversy also presents two competing views of the rule of law and the justification of royal authority. Specifically, was the King more like a benevolent father, a paternal figure responsible for harmonizing the various social groups of his kingdom into a congruous and unified whole, or was he more like a disinterested referee, a neutral umpire responsible for mediating the disparate interests of the different estates of his kingdom?[8] In other words, what kind of body politic should a monarchy try to promote? A paternalistic or organic one, i.e. a hierarchical and stable social order composed of individuals of different ranks and social stations, all of whom are under the crown’s benelovent protection, or a commercial or dynamic society, one “whose members have very few social bonds with one another, where … each man looks only to his particular and exclusive interest ….”[9]

Whatever Smith may have thought about these larger questions, he must have overheard his French hosts discuss the Brittany Affair at length at the famed salons of Paris. I shall turn to the salons in my next few blog posts …

[1] Lewis 1939, p. 306.

[2] See generally Berger 1994.

[3] See generally Jones 2004, ch. 6.

[4] See Merrick 2008, p. 205. He had also ordered the exile of 30 judges during the Besançon affair of 1757–1761. See generally Swann 1994.

[5] Merrick 2008, p. 205.

[6] See Swann 1995, p. 266.

[7] Swann 1995, p. 265. In all, between September 1765 to December 1766, the Paris court addressed no less than 13 protests to Louis XV about his handling of the matter. See Flammermont, Remonstrances, Vol. II, pp. 527-530, 534-595, 663-685.

[8] Cf. Baker, Condorcet, pp. 203-204.

[9] Turgot 1775, p. 576, quoted in Maza 1997, p. 216.

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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