An historical sketch of the French bar from its origin to the present day; with biographical notices of some of the principal advocates of the nineteenth century

Front matter

Cornell University Law Library

The Moak Collection

PURCHASED FOR

Preface

The French Bar was some time ago selected by the author of the following pages as the subject of a series of papers, which have already appeared in the Journal of Jurisprudence. But it -fras found to be difficult to give even a satisfactory sketch of a history so extensive and important within the narrow limits afforded by a Journal principally devoted to matters of a more strictly technical and local nature; and it also appeared to the author that his subject was possessed of sufficient interest to warrant publication in a separate and more extended form. It may, perhaps, be thought that too great a space is devoted to the history of the French Bar during the nineteenth century. But for this there are good reasons ; as that Bar has undergone greater changes, has produced greater men, and has played a more important part in the judicial and political arena during the ninteenth century, than during any former period of its history. Advocates were then statesmen, legislators, ministers, almost sovereigns; and, in the lives of some of the most eminent among them, may be found not only examples of abUity, eloquence, and patriotism, but also an amount of incident and adventure, which seems extraordinary to us who belong to a less excitable race, and live in a country whose government possesses the valuable element of stabihty, instead of perpetually vibrating between the two extremes of democracy and despotism.

vni PREFACE.

The following are the chief sources from which the author has derived his information : — Lettres sur la profession d'Avocat, par M. Camus, Avocat, quatrifeme Edition, par M. Dupin (2 vols. Paris, 1818); Histoire du Barreau de Fans, depuis son origine jusgu'h 1830, par Gaudry (Paris, 2 vols., 1864); Le Barreau au 19" SMe, par 0. Pinard (2 vols., Paris, 1864-5); L'Histoire h Taudience 1840-8, par 0. Pinard (Paris, 1848) ; Le Barreau de Paris, par Maurice Joly (Paris, 1863) ; Histoire du Palais de Justice et du Parlement, 860-1789, par F. Eittiez (Paris, 1860) ; Le Ministere public et le Barreau, par M. Henri Moreau, avec une introduction de M. Berryer (Paris, 1860) ; A History of the French Bar, Ancient and Modern, hy Eobert Jones, Barrister-at-law (London, 1855).

" The author has particularly to acknowledge his obligations to the works of MM. Gaudry and Pinard, which are full, clear, and agreeably written, and form a valuable addition to the legal literature of France.

Edinburgh, April 1869.

Chapter I

Prevalent ignorance of the history of the French Bar — High character of that Bar, and prominent part played by its members in the great political revolutions of France— Origin of the Bar — The judicial combat — Difficult and dangerous duties of advocates in connexion with it — Gradual progress of the Bar — La baillee avx roses — Establishments of Louis ix. — Eminent advocates during his reign, . . , . .1

Chapter II

Reign of Philip the Fair an important era in the history of the French Bar — Famous advocates during his reign — Conduct of the Bar during the quarrels between the Orleanists and Burgundians— Regulations of Charles vil. with regard to the Bar — Ordinance of Villers-Cotteret — Protest of the Parisian Bar against the Ordinance of Blois, and resignation of their functions by the advocates belonging to it — A parallel case from the history of the Scottish Bar — Advocates of the sixteenth century — Massacre of St Bartholomew, and Roman Catholic League, 17

Chapter III

The Parliament of Paris, its Constitution and Jurisdiction — The Public Prosecutor and the Bar — Organization of the Bar in the seventeenth and eighteenth centuries — Office of Bdtonnier — His duties, and those of the Council of the Order — Advocates during the Fronde — Noble conduct of Louis Servin in the reign of Louis XIII. — Parallel Case of the President of the Court of Session and James vi. — Antoine Lemaistre and Patru — Destruction of the Palais de Justice by fire, and its reconstruction by Jacques de Brosse — Revision of the Laws, and establishment of a Law School in Paris under Louis xiv. — Foundation of the Library of the Parisian Bar, . . . .36

i

CONTENTS.

Chapter IV

Eminent lawyers born in the latter half of the seventeenth century, D'Aguesseau, Normand, Cochin — Dispute between the Bar and the President of the Court — The Bar sides with the Parliament in opposing the registration of certain edicts of the Kegent Orleans — Erasure of an advocate from the roll of the order — The Bar defends the liberties of the GaUican Church against the Bull Unigenitus — Eminent advocates and jurists of the eighteenth century, Gerbier, Elie de Beaumont, Pothier — Causes that led to the Revolution of 1789 — Remarkable foreshadowing of it by the Advocate-General Siguier — Part taken by the Bar in the process against the Jesuits — Opposition of Parliament and of the Bar to the King and the Chancellor Maupeou — Suppression of the old Parliament, and substitution of the Maupeou ParHament — Five hundred and forty-four advocates voluntarily abandon the exercise of their functions— The old Parliament restored by Louis xvi. — Disputes between the King and the Parliament— Meeting of the States-General — Suppression of Parliament and of the Bar by the National Assembly, . . .60

Chapter V

Advocates in the Constituent Assembly at the time of the suppression of the Bar — Celebrated lawyers at the Parisian Bar at the time of its suppression — The Girondists, Barnave, Vergniaud, etc. — Boissy d'Anglas — Courts established and Laws passed by the revolutionary Assemblies, . .81

Chapter VI

Trial of Louis xvi.— Noble conduct of Lamoignon de Malesherbes _ — Barrfere de Vieuzac— The Reign of Terror — Defence of Charlotte Corday by Chauveau-Delagarde— Trial of Marie-Antoinette —Frightful abuses of justice perpetrated by the revolutionary Tribunals— Self-sacrifice of the advocate Ared de Loiserol — End of the Reign of Terror and reappearance of many of the chief members of the ancient Bar— Establishment of the Academy of Legislation and University of Jurisprudence under the Consulate—Important political trials in which the advocates Bonnet, Bellart, and Billecoq particularly distinguished themselves, . 97

CONTENTS. XI

CHAPTEE VII.

PAQS

Napoleon eatabUshes Schools of Law in Paris and in the chief Provincial Cities, reorganizes the Bar, and codifies the Laws of France — Important labours of Portalis — The advocate Perey bequeathes his Library to the Parisian Bar— Napoleon's jealousy and distrust of the Bar — His decree reorganizing it, places it entirely under the control of the Minister of Justice — Relations of le Ministere Pvhlic and the Bar — M. Berryer's remarks on the subject, . . . . . . .115

Chapter VIII

Re-establishment of the Conferencei de doctrine — Change in the Style of speaking at the French Bar — Characteristics of its Eloquence at different periods of its history — Want of true freedom and real political life in the existing Bar — Law of 1814 constituting the order absolute master of its roU — Share of the Bar in bringing about the return of the Bourbons — ^Political schism at the Bar — M. BeUart's Letter to the Chancellor in favour of the re-e.stablishment of the order on a more free and liberal basis — The Parisian Bar a city of refuge for men of all shades of political opinion, ..... 127

Chapter IX

Results of the political schism at the Bar — Report on the Bar made by M. Peyronnet to the King, and Law of November 1822 following thereon — Quarrel between the Court of Assizes and the Bar — Revolution of 1830 — Active and important part taken in bringing it about by some leading members of the Bar — Law of August 1830 restoiing to the order the full control of its Elections— Course of Study at present required from aspirants to the French Bar, . . . . • .135

Chapter X

Great number of eminent Advocates who have been Statesmen and Ministers since 1815— Celebrated Political Trials since that date— Case of Marshal Ney— Case of Fi^vfee— The Bar of the Nineteenth Century— Hennequin, Berrycr, the Brothers Dupin, 144

XU CONTENTS.

The Bar of the Nineteenth Century continued — MM. Ferrfere, Sgnart, Barthe, Bethmont, Delangle, Gamier-Pagfes, PaUlet, Mathieu, Ledru-Rollin, . . . 214

Chapter XV

The Philosophical and Literary Elements in the Bar of the Nineteenth Century — MM. Royer-CoUard, Louis-Marie de Cormenin, Alexis de Tocqueville, etc., ..... 232

CHAPTER XVL

The Bar of the Nineteenth Century continued — The men of the day — MM. Baroche, Billanlt, Rouher, Jules Favre, Emile GUivier, etc., ...... 261

HISTORICAL SKETCH OP THE FRENCH BAR.

Chapter I

Prevalent ignorance of the tdstory of the French Bar— High character of that Bar, and prominent part played by its members in the great political revolutions of France— Origin of the Bar— The judicial combat— Difficult and dangerous duties of advocates in connexion with it— Gradual progress of the Bar — La haUlSe awx rosea— Establishments of Louis rx, — Eminent advocates during his reign.

A THOKOTTGH and systematic study of law, conducted on scientific principles, has long been common in Germany and France ; and, in this country, we have recently endeavoured to improve and extend the education required from aspirants to the Bar. But, on some subjects of great interest and utility, possessing, one would imagine, special claims upon the attention of the legal profession, much ignorance still prevails even among our best informed advocates. For example, how few among them are well acquainted with the history and constitution of the Bar, even in those countries with which our intercourse is most constant and friendly. Yet, in some of those countries, the members of that profession have not only inaugurated and carried out the chief improvements in the principles and practice of law, but have likewise exercised an important influence on their general character and history. Nowhere has this been more strikingly the case than in France; and, in the following sketch of the French Bar, we hope to be able to show that no Bar has been more fertile in men dis-

A tinguished as jurists, orators, judges, and statesmen ; ^ that none has taken a more active and prominent part in legislation ; that none has had greater influence on the chief political movements that have modified or revolutionized the state of parties or the face of society ; that none has afibrded more striking examples of civil courage and devotion ; that none has more highly appreciated learning and talent ; that none has more jealously watched over its honour or more rigidly maintained its discipline ; while, at the same time, none has ever been more honourably distinguished by the closeness of association and feeling of brotherhood existing among its members.

It is interesting to observe the important part taken by the Bar in aU the principal political movements recorded in the French annals, from the earliest times down to our own days. In the dawning of civilisation, before the establishment of modern judicial institutions, we find advocates assisting in its development and progress; we see them engaged in moderating the fury of judicial combats, acting as pacificators in the earlier commotions which distracted France, and not unfrequently falling victims to their devotion. In the contests between the rival factions of the Orleanists and Burgundians, in the League, and in the Fronde, their influence was strongly felt ; and they played a prominent part in the great Eevolution, and in the numerous poKtical changes that have since taken place. Every power, every party,, has by turns had recourse to their assistance, and, since 1789, no body has furnished more orators to the tribune, or more statesmen to the council, while none has exhibited more moderation, intelligence, courage, and devotion. In the Constituent Assembly, Thouret, Barnave, and Chapelier were advocates, and in the Convention, Buzot, Vergniaud, and Guadet. Under the first empire

^ Even in the Clraroli, members of the French Bar have risen to high honours. Guy Fouoault, styled the luminary of jurisprudence, from his remarkable knowledge both of the civil and the canon law, was raised to the Popedom in 1265, under the title of Clement IV. ; and two other famous advocates— Pierre de Fontebrac and Pierre de Fusigny— became cardinals.

THE FRENCH BAR. S

Napoleon, thougli he hated advocates, employed them. The Civil Code was almost entirely their work, and many of the chief functionaries of the empire belonged to the Bar. The Government of the Eestoration, though the highest^ classes were devoted to it, had likewise recourse to the Bar, and some of its most eminent statesmen and ministers, such as MM. Lain6, Martignac, Peyronnet, de Serre, and Corbifere, were taken from its ranks. In the revolution of 1830, several distinguished barristers took a leading part, so that. it has been termed "a revolution of advocates;"^ and under the reign of Louis Philippe, MM. Dupin, Teste, Sauzet, Barthe, PersiL, Martin (du Nord), Hubert, Berryer, Mangin, Marie, OdiUon-Barrot, Dufaure, all accomplished advocates, also took high rank as statesmen and politicians. Cr6mieux, Marie, and Ledru-Eollin, were members of the Provisional Government that came into power on the downfall of Louis Philippe ; and a fourth advocate, Garnier-Pagfes, was at the same time elected Mayor of Paris. Three out of the five members of the Executive Commission which succeeded the Provisional Government belonged to the Bar ; and even now, when an imperial despotism, founded on universal sufirage, has stifled the free expression of opinion, and put an end to that true and useful political life which cannot exist apart from liberty of speech, liberty of association, and liberty of the press, we must still look to the French Bar for the most efficient exponents and defenders of the imperial policy, and likewise for its ablest antagonists. BUlault, Baroche, Rouherj Berryer, Thiers, Jules Favre, Emile OUivier, warriors issuing from the same camp, have gone forth to combat under opposing banners.

1 " On a appel6 la revolution de 1830 uue revolution d'avocats ; on a eu raison ; c'est ce qui la distingue d'autres revolutions faites par les soldats ou par les masses. Jamais revolution ne mirita mieux ce nom, qui, pour elle, restera un Sloge, puisqu'il lui imprimait mienx qu'aucun autre le caraottoe legal qu'elle cheroha a se- donner des I'origine ; qui fut sa force, peut-etre sa faiblesse, auquel elle dut les nuances inddcises qui permirent k peine de la discemer dans quelques cit'constances ; qui n'en constitue pas' moins son honneur et son originality, et qu'elle persista k conserver jusqu'4 la fin." — (Le Barreau au 190 Silcle, par M. 0. Pinard.)

We propose, in this and subsequent chapters, to give a summary of the history of the French Bar, dwelling a little upon the more important epochs in that history, and upon the career of some of the most illustrious advocates, concluding with a brief notice of the constitution, position, and prospects of the Bar in the nineteenth century.

The Gauls were subject to Eome for more than 400 years. No other nation was so completely assimilated to the imperial model ; and in the code and constitutions of Justinian we continually meet with rescripts directed prcefecto prmtorio Galliarwm. Judicial tribunals were established in the seventeen provinces into which the country was divided, and the eloquence of the Bar was assiduously cultivated, so that we find in Juvenal's fifteenth satire

" GraUia causidieos doeuit facunda Britannos." St. Jerome too, in one of his epistles, mentions the " exuberance and brilliancy of Gallic eloquence " {ubertatem Gallici nitoremgue sermonis), and the poet Ausonius records the names of twelve illustrious orators of Bordeaux and Toulouse. The profession of advocate was held in the highest honour, and those who exercised it successfully, arrived speedUy at wealth and distinction. Two eloquent orators — Marcus Caesar and Domitius Afer, the master of Quintilian — were bom in Gallia Narbonensis, and became leading men in Rome. The latter was the most famous advocate of his time, and exerted himself to rescue the art of oratory from the degradation into which it had fallen. He avoided the affectation and false ornament then prevalent at the Roman Bar. His own style was concise and severe, and his chief excellencies lay in the slcUful arrangement of his materials, and the clearness of his statements.^ Unfortunately, he stooped to become an instrument of the cruel and suspi-

^ Quintilian makes repeated mention of Afer as tlie admitted chief of the Bar, and as one of the finest orators he had ever heard. In one place he says :— " Sunt alii multi deserti, quos persequi longum est. Borum quos viderim, Domitius Afer et Julius Africanus, longe prsestantissimi. Arte ille, et toto genere dioendi prseferendus, et quern in numero veterum locare nou imeas. "— {/nsi. Orator, x. 1. 118.)

cious tyrant, Tiberius, and he has been branded by Tacitus for having acquired wealth as an accuser of innocence.^ Afer was celebrated for his power of sarcasm, and some of his sayings at the Bar have come down to us, of which the following may be taken as a fair specimen. Longus Sulpicius, a horribly ugly advocate, was pleading before the Centumvirs against the liberty of a client of Afer's : " Look at that fellow," he exclaimed, " he has not even the face of a free man." — "Take good care what you say," retorted Afer • '' do you really believe that no man with an ugly face can possibly be a free man t" Afer died during the reign of Nero, and a statue was erected to his memory in his native town of Nimes.

The FranMsh invasion of Gaul dissolved the connexion between that country and the empire, shattered the stately fabric of the Gallic Bar under the Roman dominion, and introduced a ruder and simpler system of laws. Of the times that followed the barbarian invasion we have but scanty records ; and we possess no information concerning the French Bar during the sixth, seventh, and eighth centuries. Charlemagne conceived the idea of completing and reforming the laws of France, but did not live to carry out his design, though he issued a series of decrees known as Capitularies, in which, amid all their imperfections, may be traced the work of a master-mind. In a capitulary, dated 802, he specially recommends the interests of justice, and ordains " ut comites et centenarii omnes ad justitiam faciendam compellerent ; ut judices secundum scriptas leges juste judicent, non secundum arbitrium suum." In the Capitularies also occurs the 'first mention of advocates, enacting that none should be admitted into that profession except mild and peaceful men, fearing God, and loving justice. For a time, Charlemagne's great genius succeeded in raising society from the abyss of

ignorance and the dominion of lawless force. But Ms ■work — entirely personal — ^perished with him, and evil became again paramount. The ancient civilisation almost entirely disappeared ; war was perpetual ; and for one Amadis, there were a thousand bandits sporting with the lives of men and the honour of women. Absurd ordeals dignified by the name of the judgments of God, and judicial combats, usurped the place of regular justice. A law of Gondebaud, king of the Burgundians, promulgated in 501, expressly authorized and regulated these combats. It is known as la loi Gombetie, and appears to have been intended as a check upon the prevalence of perjury, for it proceeds on the narrative that " We have learned with grief that the obstinacy of pleaders and a censurable thirst for gain, have corrupted the administration of justice among our subjects to such an extent, that, in the majority of cases, they are not afraid to make oath upon subjects of which they are entirely ignorant, or to perjure themselves in matters with which they are acquainted." And it afterwards goes on to enact, that those parties who refuse the oath, and appeal to the wager of battle, shall be allowed the combat. Some wise and good men did indeed exert themselves to put an end to the barbarous custom thus legalized, and Agobard, Archbishop of Lyons, counselled Louis le Debonnaire to repeal what he denounced as " damnosam et damnabUem legem." But the practice was too much in accordance with the mingled ferocity and superstition that characterized the times to be easily put an end to, and the judicial combat was not finally abolished by law until 1566.

Under Louis vil., the practice had risen to such a height, that in a law relating to the city of Orleans, it was found necessary to forbid it for a matter less than 5 sols. So that for a sum of £2, 15s. — the equivalent of 5 sols at the present day — and upwards, the lives of one or both of the litigants might be risked in mortal combat. Philip Augustus in the end of the twelfth century, and after him St. Louis, attempted to put a stop to the trial by combat. The latter — by a law of 1260, and afterwards in the second chapter of his Establishments, published in 1270, before his departure for the crusade — substituted proof by witnesses for the barbarous practice of wager of battle, and from this time it began to decline ; though, with the tenacity of life peculiar to abuses of aU. kinds, it survived for nearly three centuries longer. Philip the Fair relaxed the stringent measures of St. Louis, and allowed the judicial combat in cases involving capital punishment. Advocates played an important part in the singular ceremonies preceding the combat, and their duties are prescribed and regulated by a law of Philip the Fair in 1306. The plaintiff was bound to bring his accusation before the judge personally, or by his advocate; and the advocate's mission was one of no slight danger, as, if he did not take care to speak in the name of his client, and make it clear that he acted solely under his express instructions and that he himself made no accusation, he was held to have offered, the combat in his own person, and might be obliged to do battle with the opposite party. The extraordinary mixture of legal formalities, religious ceremonies, and barbarous superstitions which distinguished these judicial combats is highly curious, and strikingly illustrative of the spirit of the age in which they prevailed. The form of procedure, and of the speeches to be made by the advocates for the parties, wiU be found in DubrueU. At the conclusion of his speech, the advocate for the appellant threw his client's glove into the centre of the Court. The advocate of the other party brought forward all his reasons of defence to induce the rejection of the wager of battle ; and then added, " And in case that the Court should think that the statement made by the opposite party is sufficient to support the wager of battle, my client denies the facts set forth ; on the contrary, he affirms that he who has caused these allegations to be made, lies, and that he is ready to support this by himself or by his champion, and thereto pledges his gage." Then the client himself said to the Court before giving his gage, " My Lords, I affirm that in all that my opponent has caused to be set forth and vouched against me by his advocate accompanied by the delivery of his glove.

he has lied like a rascal, saving the honour of the Court ; and I deny aU that he has set forth and stated against me, and support my advocate in what he has said in my defence ; and I maintain that, in the event of the Court finding good grounds for the -wager of battle, I shall, notwithstanding what the advocate .of the opposite party has said to the contrary, defend myself like a good and loyal gentleman, as I claim to be, and as one who has done no wrong in the matter urged against me, and there lies my gage." After the defiance thus given and accepted, a regular minute of the proceedings was drawn up ; the judge authorized the combat, and the parties pledged themselves to appear on the day appointed. On that day, the king of arms, after having summoned the combatants, beginning with the challenger, published the police regulations according to law. The combatants, by themselves or by their advocates, made protestation in terms also regulated by law ■ and the combat was preceded by oaths and religious ceremonies in presence of the advocates of the parties. Then the herald -at-arms gave the signal, the members of the Court retired, leaving to each combatant a bottle of wine and a loaf. The advocates also retired ; their ministry was over ; and the combatants were left, in the words of the formulary, " to do each the best that he shall be able." The victor gained his cause and left the lists with honour. The vanquished was handed over to the marshal, " to do justice on him according to the king's pleasure." Certainly the advocates of the nineteenth century have good cause to congratulate themselves on being exempted from the risks to which their predecessors were liable in the fourteenth. An ill-considered speech may now lose a cause ; but then, a careless word might compel an advocate to throw aside the robes of peace and to do battle for his client, not only metaphorically, but in the most literal sense of the words.^ Both clients and advocates have a danger the less j and though law still ruins many a man, it no longer authorizes

' Antoine Loisel, in his Dialogue des AvocaU, makes mention of an advocate named Fabrefort who was on the point of being compelled to enter the lists in person, hecause, while stating the case for Armand de Montaigu, one of the and assists him to cut the opposite party's throat, or put his own in peril.

The judicial combat at length disappeared before a more enlightened faith and a more advanced civilisation, and the French Bar gradually emancipated itself from the subordinate position which it occupied in those iron times, acquiring a compact organization and increasing in influence and importance, in proportion as men began to perceive the superiority of science to brute force, and to prefer the systematic administration of law both to the chance-medley of wager by battle, and to the no less absurd trial by ordeal, where the ends of justice were at any time Hable to be defeated by the tricks of priestcraft,

A curious but elegant usage, dating from the youth of Louis IX., and connected with the Bar, for a long time existed in France. Every year, on the 1st of May, bouquets of roses were presented to each member of the Parliament. This usage was termed la hailUe aux roses, and originated in the following romantic circumstances : — In May 1227, Queen Blanche, accompanied by the young king her son, held a cour pUnikre at Poitiers, where many of the great vassals of the Crown, peers of France, and councillors of State, had assembled. She made a magnificent entry into the city, surrounded by a briUiant cortege, having the youthful King on her right hand and Thibaut, Count of Champagne, on her left. Behind her came the great lords and peers of France, and after them rode the councillors of the Court, having at their head their President, Pierre Dubiiisson, then eighty-nine years of age, but stUl capable of discharging the important and arduous duties of his office. The President was accompanied by his daughter Marie, a young girl of great beauty and spirit, who had been educated with the utmost care. After the ceremony of the solemn entry into the city was over, the Queen Eegent and

parties in a judicial combat, he afBrmed that he was ready to make good his averments with his body in the field, without taking care to make it clear that he said this for his client and not for himself. Those present on the occasion thought the matter a capital joke, and the unlucky Fabrefort was much laughed at for his mistake.

King Louis took up their residence in a house belonging to the chief silversmith to the Crown. That house was situated close to the ramparts, and was surrounded by fields covered with roses in full bloom. During the festivities that succeeded, the young Marie was the admiration of the Court for her beauty and grace ; but she devoted herself entirely to the care of her aged father, heedless of the admiration which she excited, and of the tender sentiments she had inspired in some of the lords connected with the Court. The youthful Comte de la Marche, who, in his capacity as peer of France, sat along with the members of the Court of Parliament, was particularly smitten with her, and one evening came to press his suit by singing romances beneath her window. Marie, however, had been strictly brought up, and did not approve of this proceeding, so she opened her window, and, when the Count approached, severely reproved him, asking if this was the way in which he prepared himself to pronounce on the important questions which would be submitted to him as a member of the Parliament ? The Count listened to this rebuke with respect -and attention, and immediately retired. Next day he was to make a report to the Court of Parliament, over which the Queen was to preside in person, and to the diligent preparation of this he consecrated the remainder of the night. On the morrow, when it came to his turn to speak, he rose and stated the matter of which he had the charge with such clearness, vigour, and eloquence, that the Court were equally pleased and astonished, and the conclusions of his report were unanimously adopted.