By Zachary M. Stoltzfus

In the decades leading up to 1789, debates by lawyers (avocats) over seigneurial rights began to lay the groundwork for the reconstitution of political authority that would become the French Revolution. In pre-revolutionary French society, all authority had its source in the person of the King. This authority, and the privileges it maintained, diffused throughout the realm in varying forms, including seigneurial rights and officially recognized ordres. Virtually every trade had its own ordre, a body of membership that upheld royally-sanctioned standards and practices, often accompanied by a patron saint and a set of traditions unique to the profession. The ordre des avocats is a fascinating exception to this schema, as it existed without an official charter, establishing itself as a separate source of authority on the legal definition of rights and privileges.[1] 

Being admitted to the ordre carried all the prestige and responsibility of one entrusted with navigating the tricky waters of legal procedure, a task complicated by the diverse laws of France, which varied from region to region and town to town. For example, the northern part of France was largely governed by a multitude of Frankish legal customs, while the southern part of the country frequently cited Roman law in addition to custom. As historian David Bell notes, avocats, due in part to their independent and vital role in arbitrating this complex legal landscape, enjoyed a position of honor and erudition in pre-revolutionary French society unmatched by other ordres. However, each avocat had to earn this reputation for themselves, often through long hours and by taking on important cases in the regional courts (Parlements).

This was the milieu to which Jean-Baptiste Treilhard belonged, and a particular case from his legal career sheds light on the role that the ordre des avocats increasingly played in delineating privileges during the eighteenth century. Eventually the revolution would reconstruct ancien régime privileges with the abolition of feudalism in August of 1789 and of nobility and titles in July of 1790 by the National Assembly, among whose ranks were counted many avocats. Before these privileges were stripped by the National Assembly, they were challenged in regional courts in disputes over seigneurial rights. As a means of solidifying these changes in privilege through law, Treilhard, together with several prominent legal theorists handpicked by Napoleon, rewrote the legal code of France in 1804. Voltaire’s quip that in France one changed laws as often as one changed horses was finally rendered obsolete.[3]

The town of Brive is found in the former province of Limousin, located slightly southwest of the geographic center of the country. As a result of this location, the town and the surrounding environs saw significant action during the prolonged conflict of the Hundred Years War between France and England. Treilhard, born in Brive in 1742, was descended from a long line of lawyers. His grandfather Zacharie was a member of the bar, as was his father Jean-François, who was a judge at Abbey d’Obazine, land administrator of the duchy of Ventadour, and a friend of Jacques Turgot, the physiocrat.[4]  Jean-François also wrote small booklets dabbling in philosophy, history, and science, creating a familial atmosphere of scholarship that Jean-Baptiste internalized.[5]  While a student at the collége de Brive, Jean-Baptiste was inculcated with a spirit of Jansenism and the progressive reforms of Turgot.  After completing his education at the collége d’ Harcourt à Paris, he was admitted to the bar of the Parlement de Paris in 1761 where his long hours writing legal opinions earned him the regard of Jean-Baptiste Gerbier, François-Denis Tronchet, and Armand-Gaston Camus, three of the bar’s most respected avocats.[6]

It was the eloquent defense of his hometown against the feudal claims of the aristocracy, however, that propelled the young lawyer to fame. In 1769 the 27-year-old lawyer was asked by his father, the mayor of Brive, to represent the interests of the town in a legal dispute with the Duke of Noailles, who claimed the town in the name of his ancestors, the lords of Turenne and Malemort. Who was the legal lord of Brive? The Duke’s position rested on ancient claims of lordship that the Barons Malemort had enjoyed over the town, claims which they forfeited after defecting to the side of the English during the Hundred Years War. The townspeople of Brive, in contrast, supported the French King during the long conflict, their town swiftly attacked by the English for refusing to forswear loyalty.[7] 

Few forgot Treilhard’s impassioned oratory in defense of his hometown: “You claim…ownership and disposition of the walls and moats of the town of Brive? Your predecessors from six centuries ago didn’t claim them! We had only a day before their construction and maintenance. They are cemented with the sweat and blood of our fathers!” Treilhard appealed to the King himself, referencing the adamant loyalty of the small town, outnumbered by an army composed of foreigners and traitors including the Baron Malemort, against whom, “from these walls we defended our state and our freedom.”  The walls of Brive referenced by Treilhard were not just the physical walls of the city. They were also the legal walls that guaranteed the freedom of the townspeople from the rule of the barons of Turenne and Malemort. Treilhard argued that the town had earned this freedom by virtue of its sacrifice for the King during the Hundred Years War, “and you dispute today the price of our work and blood?”[8]

Treilhard lost the case, and the small town passed to the seigneurial rule of the Duke of Noailles. Yet Treilhard’s eloquent defense of his hometown and of the anti-feudal legal prerogatives of its residents, reverberated throughout France. In his defense, he argued persuasively for the authoritative claims of his own ordre, namely, the authority to settle disputes of seigneurial rights. He also conceptually placed loyalty to the nation and the King above that of loyalty to the claims of the nobility. When in 1771 the Chancellor of France, René Augustin de Maupeou, tried to curtail the authority of the Parlement of Paris and the ordre des avocats that comprised its ranks, Treilhard followed the example of his mentors Tronchet and Gerbier in invoking the name of the King and refusing to practice.  In 1775, he returned to his practice and, thanks to Turgot, became counsel to the King and Inspector General for the Royal Domain, a position of important ministerial function in the council of state.[9] His experiences as a lawyer to the crown led to his presiding over the 36 commissioners charged with creating the Cahiers for the city of Paris during the early stages of the revolution.[10] Even more so, it prepared him for playing a key role in the Committee des Domaines of the Constituent Assembly, during which he was a representative of the Third Estate, his brilliant defense of the interests of the underrepresented not forgotten. In the theater of contested sovereignty that was the French Revolution, the expertise of men like Treilhard, forged by the crisis of 1771 and competing claims of seigneurial rule, proved invaluable. It is perhaps for this reason that Treilhard went on to serve as both the President of the Constituent Assembly and the National Convention, eventually tapped by Napoleon to contribute to the formation of a new legal code for all of France.

Zachary M. Stoltzfus is a Ph.D. student at Florida State University, where he is a part of the Institute on Napoleon and the French Revolution. He is currently researching the background of the lawyers who created the Napoleonic Code. You can tweet at him @rightzachatya or reach him at zmstoltzfus@gmail.com.

Title Image: A trial at Châtelet during the reign of Louis XV. Ordre des avocats de Paris. Engraving, 15x20cm.

[1] Michael P. Fitzsimmons, The Parisian Order of Barristers and the French Revolution (Cambridge: Harvard University Press, 1987), 3-4.

[2] David Bell, Lawyers and Citizens: The Making of a Political Elite in Old Regime France (Oxford: Oxford University Press, 1994), 9.

[3] “The Code Napoleon,” Constitutional Rights Foundation, accessed January 26, 2016, http://www.crf-usa.org/bill-of-rights-in-action/bria-15-2-a-the-code-napoleon

[4] Edna Hindie Lemay, Dictionnaire des Constituants, 1789-1791 (Oxford: Oxford University Press, 1991), 901. Physiocrats were essentially economic theorists interested in the reorganization of land and the principle of free trade.

[5] Guyot d’Amfreville, Vie de Jean-Baptiste Treilhard (Paris: Limoges, 1879), 9.

[6] Ibid, 10-11; Lemay, 901.

[7] D’Amfreville, 11.

[8] Ibid, 11-13.

[9] Ibid, 11-15.

[10] Lemay, 901. The Cahiers de Doléances were lists of grievances compiled by the three estates and presented to the Estates General.

Further Reading:

Michael P. Fitzsimmons. The Parisian Order of Barristers and the French Revolution. Cambridge: Harvard University Press, 1987.

David A. Bell. Lawyers and Citizens: The Making of a Political Elite in Old Regime France. Oxford: Oxford University Press, 1994.

Guyot D’Amfreville. Vie de Jean-Baptiste Treilhard. Paris: Limoges, 1879.