michel de l’hôpital & christophe de thou rity exclusively from him. Royal judges were mere agents of the king who retained an undiminished prerogative; the judges’ powers were entirely dependent on those of the sovereign prince.99 The idea that the courts should enjoy complete freedom of action in administering justice, independent from royal power, was incompatible with L’Hôpital ‘s view of indivisible rulership. The chancellor repeatedly argued that the court’s role was limited to “private justice.” This assertion may have been taken byparlementaires as a humiliating limitation to their prerogative. In a way, the confrontation between the chancellor and the law courts revolved around the fundamental question of – in modern parlance – judicial activism and restraint. Judging “according to law” meant just that, in L’Hôpital’s opinion, that is, to follow faithfully the language of the royal edicts. The chancellor argued that it was essential for the court to recognize –again using a modern concept – the political question doctrine. In the midst of the crisis of civil war, the Parlement should not indulge in second-guessing the intent of the legislator and political decision maker. L’Hôpital’s defense of unlimited royal authority placed him increasingly at odds with the magistrates. The Parlement of Paris claimed that the court was of one essence with the crown, pars corporis principis.100 The judgments rendered by the Parlement of Paris “created essential jurisprudence for the constitution of public law grounded on royal ordinance.”101 In order for the Parlement to fulfill its duty of preserving the fundamental laws, its members had to be irremovable and also exercise the powers of registration and remonstrance.102 In the 1560s, the Parlement of Paris contended that its right to register and verify royal edicts ought not to be encroached upon by royal power.103 While the chancellor powerfully asserted the crown’s undivided authority against the con99 Discourse of 12 April 1565, at the Parlement de Bordeaux, in L’Hospital, Michel de 2013 p. 71-79. 100 Church, William Farr 1969 p. 54. 101 Richet, Richet 1973 p. 27; Daubresse, Sylvie 1998a p. 401. 102 Kelley, Donald R. 1970 p. 70-71; Shennan, J.H. 1968 p. 196-197. 103 The Parlement’s advocates maintained that these rights amounted to little less thanlois fondamentales. Roger Doucet, Roger 1948 vol. 1 p. 66-67. 156
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