Legislation and Public Police Powers (1753)
The Salic law, written and reformed under Clovis, had as its subject the overall policing of the State. It was written in parlement and in concert with the Frankish people, and the preamble of the law mentions that "Clovis agreed with the Franks to add several amendments to the Salic law," [Clodoveus unà cum Francis pertractavit, ui ad titulos aliquid ampliùs adderet]. This agreement thus became known as the "Conventions of Salic Law" [pactus Legis Salicoe]. . . .
[In these edicts] one finds our fundamental maxim: that no edict has the force of law in the kingdom until it has been examined and registered in parlement since it is the custom of France, as Louis XI himself said, and whatever laws are not published in that way will have no value.
It is again evident that our kings took great care in their laws and edicts to make it clear that everyone had been involved in the deliberations and that there had been consensus: We assembled, from all stations in life, have decided; it is the resolution of the King, the Princes, and the People. The combination of royal authority, together with the consideration and free consent of parlement, gave power to the edict that no force could break. Consequently, the Prince had unshakable proof that his commands were just, and the People knew that the obedience required of them was reasonable. The Monarch was reassured that he himself had not erred, or that a favorite counselor, himself possibly mistaken, had not misled him, and the People were reassured that they had only fair laws to obey. It was, in brief, mutual assurance—reciprocal confidence that bound the Prince and his subjects.
As I have already mentioned, if under the second Race [dynasty] it was no longer possible to seek everyone's approval, in that not everyone was [represented] in Parlement this constitutive law of the Monarchy become no less solid because it continued to require the approval of all the members of the parlement. Besides, the deliberation of all Frenchmen was presumed by the deliberation of their representatives. Charlemagne, that greatest and most powerful of all our kings, was himself so aware of the importance of this general approval by the People and of the mutual confidence that resulted from equitable laws, that, in a remarkable arrangement, he worked in concert with his Parlement on laws so that it would be known that he had received universal approval. He ordered that the People's opinion be polled, no doubt each in his own jurisdiction, and that if they consented to the newly amended law, each private individual put his mark or seal upon it. [Ut populus interrogetur de capitulis quoe in Lege noviter addita sunt, & postquam omnes consenserint, suscriptiones vel manu firmationes suas in ipfis capitulis faciant.] This order was inserted into the Salic law itself, where it can still be read; and Charles the Bald made sure to renew its authorization by having it inserted into the preface that he wrote for it.
But this arrangement became impractical, and those making up parlement in succeeding periods, in this respect, became entirely the representatives of past General Assemblies. It is in their collectivity that the fundamental law is concentrated, established by those same royal edicts which, during every period of monarchical rule, required the opinion and the approval of parlement as an essential condition. They would refuse the title of Public Law to any edicts that they had not verified nor agreed to register.
The end result is that in our new Government the parlement's consent continued to be as totally free as it was in the earliest parlements. . . .
On the important point [of usurping the parlement's power], the King's laws [must] conform with the conscience, and in all cases he must be forbidden from doing otherwise.
Consequently we should not think that the consent of parlement and the required registration of national law was ever merely a simple formality or empty ritual. In all periods, it has been a serious examination, an act of persuasion and of conscience which always required full and complete freedom.
This right [of approval by the parlement] was born at the same time as the Monarchy and seemed to our kings to be so wise, so proper, that it made their thrones unshakable. By preventing all unjust use of their authority, when colonizing the Gauls, not only did the kings maintain the parlement's role as essential, the keystone upon which the rest depended, but they, in fact, commanded it. The kings themselves enjoined parlement to refuse them, even ordering that they be resisted if need be, and to pay no heed to any order contrary to Justice and the Law.
And so, Sir, the parlement obeyed in appearing disobedient, since in their defiance, they were carrying out the orders of the kings themselves, and in disobeying they were fulfilling the law that he had ordered: that is . . . to disobey. Besides, the parlement said to Henry IV: "If it is disobedience to serve well, the parlement commits this misdeed regularly. When conflict exists between the absolute power of the King and the good of his service, [the parlement] judges one to be preferable to the other, not through disobedience but because it is the duty of parlement to discharge its office according to its conscience."
Thus, when you ask me what the parlement's authority consisted of previously on the question of Edicts and the law, and what it consists of today, the answer is easy. It is today, Sire, all that it was in Clovis's time. Today, as then, the parlement's authority is but to do its duty in an unassailable way and to never do anything, nor register anything, contrary to the Law of the Kingdom and which is not in the true interest of the Monarch and the Monarchy, lest it receive a warning from its conscience. Parlement must know how to courageously say: "SIRE, that is not just, you cannot do that, nor should you."