Saturday, 10 October 2015

Lettres de cachet and their critics

Lettres de cachet were orders issued by virtue of royal judicial prerogative (la justice retenueby the Maison du roi, signed personally by the king or his Minister of state,  sealed with the royal seal ("cachet") and written to a set formula.  Although they could be used for a variety of reasons, they most commonly commanded the exile or imprisonment of an individual, and had to be obeyed without question. They thus enabled governments to bypass normal judicial process and, in theory at least, gave ministers unlimited powers of arrest and detention. Their use against the parlements and various high-profile individuals in the course of the century made them into hated symbols of arbitrary royal power.  


Lettre de cachet of June 1785 signed by Louis XVI
 and the duc de Breteuil
In reality the majority of lettres de cachet were not initiated by the government at all but, by extension of royal policing responsibilities, by the lieutenant-general of  police and his bureau de cabinet in Paris or by the provincial intendants.  Characteristically they were solicited by private individuals, usually against family members who were guilty of financial irregularities, infidelities or moral misconduct of various sort.  Although Enlightened royal ministers grew increasingly reluctant to resort to Lettres de cachet, they seemed virtually powerless to stem the tide of private demand.  Between 1741 and 1775 almost twenty thousand were issued, and numbers continued to escalate; in Brittany, for instance, there was an average ten letters each year between 1735 and 1750, but twenty to forty between 1778 and 1779. The recent historian Claude Quétel emphasises their positive social function in enabling families to restrain behaviour which might otherwise lead to costly or scandalous legal. action.  They were not confined to the aristocracy but solicited by a wide spectrum of "respectable" people.  (Claude Quétel even manages to catch out Voltaire who in 1730 instigated  a request by the inhabitants of the rue de Vaugirard for the apprehension of a drunken tripe seller who was disturbing the peace and creating a"public scandal") 

The potential for abuse was obvious. To men of the Enlightenment, moreover, private actions of this sort came to seem an unacceptable infringement of personal liberties. Here are a few key texts:


Malesherbes, Remonstrance of August 1770


The reign of Louis XVI began with a serious government attempt to reform or abolished the letters.  In July 1775 Guillaume Lamoignon de Malesherbes, friend of Rousseau and protector of the philosophes, took office under Turgot as Minister of the Maison du Roi.  Malesherbes had already distinguished himself as an outspoken critic of the Lettres de cachet as president of the Cour des Aides of Paris.  In 1770 the Court, which heard appeals against the tax tribunals and custom officials, had supported claims to compensation by a suspected smuggler named Monnerat who had been  incarcerated for twenty months in Bicêtre without a hearing on the orders of the Farmers-General. In the resultant collision with the Controller-General Terray the Court was temporarily dissolved. Malesherbes's  Remonstrance of 14 August 1770 addressed to the King a general denunciation of lettres de cachet together with an emotive account of Monnerat’s imprisonment in the “subterranean dungeons” of  Bicêtre:  In a country which benefits from  due legal process, writes Malesherbes, there should be no need for  extra-judicial orders, which serve only the interests of the powerful against the weak:  "The orders signed by Your Majesty are often filled with obscure names of people whom Your Majesty could not possibly know...The result, Sire, is that no citizen in your realm is assured of not seeing his liberty sacrificed to personal vengeance".  In his unpublished writings Malesherbes went further: It was an abuse of royal authority to deprive a man of liberty "by the the despotic judgment of a single man" (see Texts below)

On becoming Minister  Malesherbes set a commission of magistrates to review all applications for Lettres.  However, Louis XVI proved reluctant to support any further attack on the royal prerogative.  Malesherbes himself was forced to continue issuing Lettres on his own authority. He resigned following the fall of Turgot after only ten months in office.




Mirabeau, Enquiries concerning the Lettres de cachet, 1782


Mirabeau at Vincennes
Illustration fromTighe Hopkins.
 The Dungeons of Old Paris, 1897
(Wikipedia)
Between 1773 and 1780 the future Revolutionary tribune was the subject of numerous lettres de cachet instigated by his father and was incarcerated in four different prisons of state. It was in Vincennes in 1777-8 that he penned his famous pamphlet, Des Lettres de cachet et des prisons d'etat. Fifteen thousand copies were printed anonymously by Mirabeau's publisher in Neuchâtel. Despite its length and prolixity, the work is seldom absent from Robert Darnton's lists of illegal best-sellers of the 1780s; Malesherbes complained that all Paris was awash with copies.  Mirabeau flatly denounced as tyrannical the practice of "arbitrary, and indefinite imprisonment" by  which it was possible to "bury in dreary dungeons whole generations" (p.211). The illegality of state prisons such as Vincennes and the Bastille was manifested in the ubiquitous principle of underground imprisonment ("this place where all is dungeon"), the tyranny of the prison director ("an absolute despot") and the veil of secrecy in which prisoners were enshrouded. Mirabeau made no distinction between public policy and privately instigated action;  the Lettres de cachet  were "acts of tyranny", made possible only through ministerial and state  despotism which "disfigures, devours and destroys everything"(p.353-6).


Linguet, Memoirs of the Bastille, 1783



The lawyer and journalist Simon-Nicolas-Henri Linguet 
was imprisoned in the Bastille from 27th September 1780 to 11th May 1782 after his highhanded reporting managed to offend both the duc de Duras and the comte de Vergennes. His subsequent memoirs, composed safely in exile in London, went through at least six editions in French and numerous translations.  The work is strikingly modern in its account of the psychological trauma of arrest by Lettres de cachet;  although prisoners are no longer subject to physical torment, they suffer  "tortures...of the mind". In  a civilized world, in the midst of a people who are "gay, mild and frivolous", the Bastille is an "abyss" ; innocent citizens are incarcerated and abandoned to horrors of isolation, without even knowledge of the charges against them.The procedure is pointedly contrasted with the normal process of law in which proceedings are "open and regular". Linguet even perpetuates the myth that royal ministers had sets of Lettres already signed and ready to issue. In signing a warrant for imprisonment, the King imagines himself making legitimate use of his authority for the public repose, but instead he delivers over the innocent to "agony", "sighs" and "affliction".


Circular of the Duc de Breteuil, October 1784

As Minister in charge of the Maison du Roi, from 18 November 1783 to 27 July 1788, the duc de Breteuil resumed Malesherbes work of prison reform and his attempts to curb the personal use of Lettres de cachetTo Breteuil it no longer seemed appropriate to use royal power to police private morality.  In October 1784 he published a famous circular to all provincial Intendants and to the lieutenant-general of police, requiring them to review their prisoners and set definite limits to terms of detention. (see Texts below) In particular he seeks to avoid detention orders issued against family members, merely to avoid public scandal.

By the 1780s, however, reform of abuse was not enough to answer critics of royal authority. The Correspondance secretes for 15 November 1784 noted that Breteuil had given "a sort of solemnity" to an illegal practice and was likely to attract the enmity of the Parlements, of ministers and women in general by investing so much power in the intendants.
https://books.google.co.uk/books?id=kA4KAAAAIAAJ&q=139+#v=onepage&q=cachet&f=false

In 1789 the end of the Lettres de cachet was an almost universal theme of the Cahiers de Doléances, those of the clergy most energetically   They were finally suppressed by a Royal declaration on 26 June 1789.


Gérard Vidal, Police conducting an arrest, print c.1760
https://art.famsf.org/g%C3%A9rard-vidal/difference-opinion-19633022838
References

Graham, Lisa Jane "Lettre de cachet" Europe, 1450 to 1789: Encyclopedia of the Early Modern World[Encyclopedia.com]. 2004. (Contains good bibliography)
Claude Quétel Les lettres de cachet : Une légende noire (Paris  2011
Reviewed in Le Figaro
http://www.lefigaro.fr/lefigaromagazine/2011/05/21/01006-20110521ARTFIG00599-mythe-et-realites-des-lettres-de-cachet.php
You can hear Quétel summarise his findings in:
"Des vies brisées par les lettres de cachet" - Au coeur de l'histoire  Franck Ferrand Europe 1 published 26 décembre 2011
http://www.europe1.fr/mediacenter/emissions/au-coeur-de-l-histoire/sons/des-vies-brisees-par-les-lettres-de-cachet-879153

Primary source:  
Mirabeau Enquiries concerning the Lettres de cachet (English translation; London J&J Robinson, 1787)
https://books.google.co.uk/books?id=HXs3AQAAMAAJ

S-N.H. Linguet, Memoirs of the Bastille (Dublin, 1783; reprint with notes by Jim Chevallier, 2005)
https://archive.org/details/cu31924024340089 (1884 English translation)

Some translated texts: 

Malesherbes, Remonstrance of the cour des Aides14 August 1770
From Frantz Funck-Bretano Les lettres de cachet à Paris 1659-1789 (Paris, 1903), p.xli
https://archive.org/details/lettresdecachet00func
Today these orders have multiplied prodigiously and are issued for all sorts of different causes and personal considerations.  Today, they are considered necessary every time a man of the people shows lack of respect towards a person of rank, as if powerful men do not already have enough advantages.  It is also the ordinary punishment for indiscreet words, for which one never has any proof but the denunciation itself....Every man who enjoys a certain consideration believes it is beneath him to have recourse to ordinary Justice. The orders signed by Your Majesty are often filled with obscure names of people whom Your Majesty could not possibly know..  These orders are at the disposal of your ministers, and necessary to their work, judging from great number that are issued.  They are intrusted to the administrators of the capital, and of the provinces, who can only distribute them on the  word of their subordinates.  They are entrusted to other hands, since we see them given out on the demand of a simple Farmer-General, even an employee of the Farm.... The result, Sire, is that no citizen in your realm is assured of not seeing his liberty sacrificed to personal vengeance; for no-one is great enough to be safe from the hatred of a minister, nor sufficiently insignificant to escape that of a clerk of the tax-farm.


Unpublished "Observations on the Lettres-de-cachet" J.B. Dubois, Notice historique sur Malesherbes...3rd ed.(Paris 1806) , p.67-73
https://books.google.co.uk/books?id=Q6RWAAAAcAAJ 

[Malesherbes first of all outlined the history of the Lettres,which he believed originated with the Roman conquest of Gaul . By the reign of Louis XIV,Kings of France no longer reserved the power of life and death over their subjects but still claimed the right to determine their liberty]

p.71-3: It is certain that, for more than a century, that is to say precisely during the time in which we claim humanity has made so much progress, lettres-de-cachet have become so commonplace that they are now a second system of criminal justice.  Arbitrary right over life and death would perhaps be less dangerous, because it would be rare that a King would pronounce a capital penalty.  It is because the lettres-de-cachet are reputed to be less severe that they are distributed with such profusion.  Little difficulty is made about exiling someone because it is considered a minor punishment; we ask Kings to deprive their subjects of liberty so lightly because  Kings have never seen the prisons.  The King must be respected, he must be obeyed; he neglects his duties by an excess of indulgence as much as by an excess of severity;  but in all cases he should remove from his person the disagreeable function of punishment.

The following are manifest abuses of royal authority:
1. To lend the name of the King to orders that should emanate from the law, that he cannot have knowledge of, and that, sheltering behind that sacred name, no-one is responsible for.
2. To intrude the authority of the King into affairs of administration and above all into those that only interest private individuals, affairs for which the function of the King is to give judges and not to be the judge.  Still less should he allow his ministers to act under his name.
3. To pronounce on one of a man's greatest goods, which is his liberty, by the despotic judgement of a single man, without assurance of the equity of  the judgement, as is the case in the precautions prescribed by ordinary criminal justice.


Circular letter addressed by the Baron de Breteuil, Minister of State, to the Provincial intendents of his Department on the subject of Lettres de Cachet & Orders of Detention,  Versailles, 25th October 1784
From Frantz Funck-Bretano Les lettres de cachet à Paris 1659-1789 (Paris, 1903), p.xlii
https://archive.org/details/lettresdecachet00func
You will find, attached, Monsieur, a list of the different persons in your Department, currently detained by orders of the King issued as a result of your information and advice or those of your predecessors.

You will see that some of this detentions are very longstanding.  I have no doubt that there are several that need to be ended and I ask you not to lose a moment in checking and indicating those which you think should be revoked immediately and the reasons why others should continue.

I know that the diversity of causes of detention, and the differences in sex, age, birth and education of those detained, make it difficult to established fixed rules for all circumstances; but it still seems to me that it is possible to lay down rules that can apply to the majority, if not to all cases.

The proceedings which take place daily before my eyes, have shown me that those detained fall for the most part into three classes:

The first class consists of prisoners who have lost their minds and whose imbecility makes it impossible for them to conduct themselves in society, or whose rages make them a danger to others.  In these cases we should ascertain if their condition is still the same; and whether their detention remains indispensable because their liberty would either be harmful to society or of no benefit to themselves.

I place in the second category those who have troubled public order by behaviour which, without  exposing them to ordinary legal penalties, has given them over to libertinism, debauchery and dissipation.  I think that, where there is no misconduct and their behaviour has not been accompanied by criminal activity, or the baseness of character that almost always leads to criminal activity, their detention ought not to last for more than one or two years.

To deprive someone of liberty for one or two years is a strong corrective measure; it should inspire wise reflection and work towards reform in a soul which is not entirely given over to corruption.  Families, even mothers and fathers, who are in general more indulgent than other relatives, often exaggerate the misdeeds of those whose detention they request. By giving way  too readily to their excessive demands,  rather than offer correction, we often inflict punishment.  It is essential that we appreciate the distinction and do not lose it from sight.

When,  in addition to libertinage, persons detained are guilty of stealing money or effects from the family home, or when they have committed infidelities, abused confidences,  or used other dishonest means not covered by ordinary law to procure money, then their detention should be longer.  I think, however, that it should still not exceed two or three years; and that one year is sufficient for a young person under twenty who has been carried away by the passions of youth, misled by bad advice or due to inexperience has not appreciated the consequences and extent of their fault.

I also include in this second class women and girls who behave badly and the same observations should apply; that is to say, if they are guilty of simple weakness, one or two years of correction should sufffice, and detention should extend to two or three years only in cases of scandal and public notoriety.

The third class are those who have committed acts of violence, excess or crimes which threaten law and order,  and which, should they appear before the law, would be punished by penalties burdensome and dishonourable to the families concerned.  I think that there is little that can be said about the length of time these persons should be detained; that must depend on the circumstances of the crime, the character of the person concerned, the evidence they give of having repented, and the use they can reasonably be presumed to make of their liberty, should it be restored.

We should bear in mind that prisoners detained for crimes should count themselves lucky to have escaped the punishment they merited;  a perpetual, or even a very long detention is the worst possible of punishments for anyone whose feelings are not entirely annihilated or degraded.

Besides, it is not only in the case for prisoners confined for crimes or infringements, but for all prisoners, whatever the reasons for their detention, that we should take into consideration their conduct since they have been detained....

I hope that in this article you will not rely entirely on the testimony of persons charged with guarding the prisoners; I desire that you find out for yourselves; that in the course of your rounds of inspection, you visit with particular care the places of detention in your Department, be they prisons, religious houses, forts or castles;,that you interrogate the prisoners yourself and you take account in their presence of the concerns they voice.

I am convinced that, making such visits once a year to each place of detention, will produce a very good effect: they will allow you to know not only the conduct of the prisoners, but also the manner in which they are treated; you will listen to their petitions, you will know if their food and upkeep is proportional to the pension that is paid for them; also the ordering and regulation of each House; what precautions are necessary to maintain tranquility among those detained; what measures should be taken to prevent escapes; in short, what abuses are essential to rectify.  These details are worthy of the attention of an Admnistor.

If you cannot concern yourself personally with all the Houses, forts or castles in your Department you could at least visit those with the most prisoners, and have the others visited by your subordinates or other reliable people, whose judgement you believe you can count on.  You are asked  to report to me each year  the results of your visits.  You can be confident that I will give the King a detailed account and advise him to adopt your views on any changes or reforms that seem to you useful or necessary.

...Thus, Monsieur, when you recommend detention orders  requested by families, I ask you ;to indicate at the same time what you think the length of detention ought to be: I think in general, apart from exceptional circumstances, this should not be more than two or three years for men guilty of libertinage and baseness or,  in the case of women,  libertinage and scandal.  No more than a year or two is necessary when, women are guilty only of weakness or men of misconduct and dissipation.

I also ask you to recommend a term of detention even for those who are suspected of excess, infractions or crimes.  This must, as I have said, depend of the circumstances, and those, Monsieur, are for you to judge.

With regard to persons whose detention is requested because they are out of their mind, justice and prudence demands that you recommend a detention order only  when a judicial interdiction has been pronounced...
When it is question of confining a minor, the agreement of the father and mother has been sufficient up until now.  But fathers and mothers are sometimes unjust, or too severe, or too easily alarmed, and I think that you should always require at least two or three other relatives to sign the memoirs asking for orders.

The agreement of the maternal family is indispensable when the mother is dead; and that of the two families where there is no father; this is even more important when there is neither parent.

Finally you should treat with the greatest circumspection complaints of husbands against wives, and those of wives against husbands; in these cases above all the two families must unite and give formal consent to the recourse to authority.

These principles are known, and I know that in general they are always followed.  But I have noticed that sometimes orders have been requested and recommended by  MM. les Intendants  in circumstances where they should be issued.  For example a person who is of age,  and no longer under paternal authority, ought not to be imprisoned, even at the request of the both families,  because his crimes could attract penalties that unreasonable, but existent, prejudice considers shameful to the whole family.

It is essential, when weighing the facts, to distinguish cases which only inconvenience families from those which expose them to true dishonour.  It is no doubt inconvenient for people of a certain class, and humiliating,  to have before their eyes a sister or near relative whose morals are indecent, and whose romantic escapade or weaknesses cannot be kept quiet.

It is also a misfortune for an honest family, and one they cannot view with indifference,  if in the same town, even canton where they live, a family member sullies themselves  with a shameful marriage, ruins themselves by ill-considered spending, or delivers themselves over to an excess of debauchery,.  But this does not seem to me a strong enough motive to deprive persons of their liberty if they are, as they say in the Law, sui Juris.  They are harming only  themselves; their dishonour is their own; their relatives have no share it and have no right to demand the  intervention of the authorities.


These,  Monsieur, are  the reflections suggested to me by my close examination of all that concerns orders of detention, since the King has named me Secretary of State.  I have given an account to his Majesty, who has found them to conform to the view of justice and benevolence which animates him....

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