Tag Archives: History of ideas

Legal rhetorics and reality in Early Modern France: The factums

Jeam Coras, Arrest memorable du Parlement de Tolose - edition 1565

Arrest memorable du Parlement de Tolose (…) – edition Lyon: Antoine Vincent, 1565 – copy Université de Toulouse

How can we be sure to view things as they really were in the historical sources we use for our research in the field of legal history? It is by all means wise to look as closely as possible at relevant sources, preferably close to the events and problems we want to study. In particular Natalie Zemon Davis and Arlette Farge have made us aware of the importance of narrative sources to deepen our understanding of French legal history in the Early Modern period. Davis gave us in Fiction in the archives. Pardon tales and their tellers in sixteenth-century France (Cambridge-Stanford, CA, 1987) both the true and the fictional stories, just as she had done earlier for Martin Guerre [The return of Martin Guerre (Cambridge, MA-London, 1983)]. Thanks to Davis the lettres de remission have become a well-known resource, used also for other periods, lately for example by Walter Prevenier and Peter Arnade, Honor, Vengeance, and Social Trouble. Pardon Letters in the Burgundian Low Countries (Ithaca, NY, 2015). Arlette Farge, too, alerted scholars to the way narratives, rhetorics and expectations shape perceptions of reality in judicial resources, in particular in her essay Le goût de l’archive (Paris 1987).

In this post I want to expand on some notes about another very interesting source, the factums or mémoires judiciaires, a term perhaps to be translated as legal briefs, which I mentioned in passing in one of my recent posts concerning the French Revolution. However, this particular source does already appear in the late sixteenth century and lives on well into the second half of the nineteenth century. The possibility to compare the development of a genre over a number of centuries is most appealing, and therefore I would like to introduce the factums. I owe here much to a short notice published in 2014 by Léo Mabmacien at his blog BiblioMab: Le monde autour des livres anciens et des bibliothèques. A post in July at his blog rekindled my interest. The existence of new digital collections with factums is a further prompt to share my thoughts about this resource which merit attention not only in the Anglophone but also in the Francophone world. For French readers one of the main points of attention should be here to look beyond the central institutions and a France centered around Paris.

Getting a fuller picture

Léo Mabmacien’s post about factums is a real treat. In crisp and clear French he succeeded in creating a nutshell guide to the subject which leaves little to desire. In fact the idea to give here only a translation crossed my mind, but I am happy to rely here heavily on his account. The term factum stems from the Latin. In medieval legal consilia, pieces of juridical advice for courts, the exposition of a case is often introduced with the words “Factum est tale”, the case is such and so. A factum or mémoire judiciaire contains both a description of the case, the faits, and also moyens (literally the “means”), arguments to be used to argue the outcome of the case. The length of a factum can be anything between a few and many hundred pages in cases where as appendices pieces of evidences and other materials were included. Most factums do not have a title page.

The existence of factums is most interesting given the fact that French criminal court proceedings were in principle secret, as stated in the Ordonnance criminelle of 1670. Each step of a case at court proceeded by producing written statements. The final verdict, too, was presented in writing only. Oral pleading was introduced in the eighteenth century for civil law cases. Factums offer a window on French legal history like few other sources can do. A blog post in 2010 on factums of the Bibliothèque nationale de France had the evocative title ‘Factum, vous-avez dit factum ? Qu’es aquo ?’, “Did you say factum? Whatever is that supposed to be?”, and cites Robert Darnton who wrote in an article for Le Monde in 1995 there are media under the Ancien Régime we have forgotten about: the rumor in public, the factums of lawyers, the messages in your hand, the newsletters, the improvised songs on existing melodies… Darnton took up this theme in his 1999 presidential address for the American Historical Association.

Under the Ancien Régime the word factum was used also for violent pieces of writing in which someone asserted his views with forceful arguments. The juridical factums, too, do not only give legal arguments, but all kind of motivation to ascertain the offensive or defensive position of a party. An ordinance of the Parlement de Paris from 1708 demanded that each factum be signed by a lawyer, and contained also the name of the printer, without any other formality. Thus factums escaped the vigilance of French censors, and could indeed become a kind of platform for any kind of opinion, provided they were signed by a barrister, yet another feature making this genre attractive for historians. Mabmacien concluded his post with references to the vast collection of factums held in Paris at the Bibliothèque nationale de France (BnF), and to a virtual exhibition on factums created by the municipal library of Clermont-Ferrand.

A new generation of scholars

Some of the research cited by Mabmacien stems from the eighties and nineties of the last century, but in fact a lot of work started before 1900. Augustin Corda began at the BnF with the Catalogue des factums et d’autres documents judiciaires antérieurs à 1790 (10 vol., Paris 1890-1936). Volume 7 is a supplement, the volumes 8 to 10 contain registers. You can consult the volumes 1 to 8 in the Hathi Trust Digital Library. Charles Patey had published a few years earlier a succinct overview of some 200 factums in the BnF related to Normandy [Factums normands conservés à la Bibliothèque nationale (Caen 1888; online in Gallica)]. Apart from the factums mentioned in Corda there are at the BnF two massive card box catalogues for a total of nearly 86,000 items. The main study used by Mabmacien is an article by Sarah Maza who studied with Robert Darnton. Her article ‘Le tribunal de la nation : les mémoires judiciaires et l’opinion publique à la fin de l’Ancien Régime’, Annales ESC 42/1 (1987) 73-90 is available online at the Persée portal. In 1997 appeared the French translation – Vies privées, affaires publiques. Les causes célèbres de la France prérévolutionnaire (Paris 1997) – of her monograph Private lives and public affairs: the causes célèbres of prerevolutionary France (Berkeley, etc,, 1993).

There is more scholarly literature in French available online, and I had in mind giving here a judicious amount of links. However, when I encountered at Theses, the portal for French Ph.D. theses, the very recently defended thesis of Géraldine Ther, La représentation des femmes dans les factums, 1770-1789. Jeux de rôles et de pouvoirs (Ph.D. thesis, Université de Dijon, 2015) with its rich bibliography I decided to restrict myself to a few recent publications. Ther investigated an intriguing theme, the representation of women, a theme emerging with force during the French Revolution, but with rather different relations between these events and the preceding period than you would expect. The acts of a symposium held in 2012 at the École de Droit of the Université d’Auvergne (Clermont-Ferrand) can be consulted online in a special issue of La Revue Centre Michel le Hôpital 3 (April 2013) [Découverte et valorisation d’une source juridique méconnue : le factum ou mémoire judiciaire (PDF)]. The contributors discuss factums as a source for legal history, look at a number of libraries with large collections, and staff members of these libraries discuss the current projects for cataloguing and digitization. A third recent online publication with attention for factums has as its focus lawyers in Marseille and transcends the supposed and real chronological watersheds of the French Revolution [Ugo Bellagamba, Les avocats à Marseille. Practiciens du droit et acteurs politiques (XVIIIe et XIXe siècles) (Aix-en-Provence 2015) – online at OpenEdition]. A number of relevant online publications is also included in the section on sources and bibliography of the virtual exhibition in Clermont-Ferrand.

ImpressionThanks to the hard work of librarians and scholars you can now get online access to a substantial variety of factums. Let’s start with the collection I first encountered, Tolosana, la bibliothèque virtuelle des fonds anciens, a collection of digitized books at the Université de Toulouse, with a substantial number of legal works between 1500 and 1850, among them 300 factums from the sixteenth century – just three items – to the nineteenth century (82 items). Looking back it is most fitting I bumped into these mémoires judiciaires in the context of the Calas affaire, but effectively it is the other way around that explains definitely also part of the impact of the publications around this cause célèbre. In particular you can find here some 300 factums and mémoires judiciaires. Interestingly, here, too, the Early Modern period does not end at 1789. The second collection is La Coutume et le droit en Auvergne, Patrimoine de Bibliothèque de Clermont, a digital collection of the Overnia portal with a great variety of legal resources on customary law, especially more than six hundred mémoires judiciaires in the section for sources procédurales. The tree structure of Overnia enables you to filter for a number major legal topics with temporal subdivisions; the general search function can assist you, too. A similar large but technically very simple collection is Droit en Provence et en outre-mer (Aix et Marseille Universités) which brings us a great variety of sources, in particular a number of digitized factums; this collection is held at Aix-en-Provence. The digital items are only available as PDF’s. It is a pity that only few of the announced items from the nineteenth century have already been digitized, but at least there is an overview of them. Some of the items are recueils, collections with sometimes scores of factums. With the fourth collection we return to Paris. The Bibliothèque Sainte-Geneviève has created a digital collection concerning droit (law) in the Internet Archive with nearly one thousand publications. Some 860 of them are factums et mémoires judiciaires.

Banner TolosanaThe first image in this post shows in black and white the title page of an early edition of a famous arrêt of the Parlement de Toulouse from 1560. This is a copy of the edition digitized for Tolosana. The book of Jean de Coras, a French legal humanist, contains his report on the very case of Martin Guerre. Nowadays it is easy to find a digital version of earlier – and later – editions using the Karlsruher Virtual Catalogue, and I will leave it to you to find them quickly. I did check in vain for this book in the Bibliothèque Virtuelle des Humanistes (Université de Tours) which figured here earlier in a post on legal humanism. However, you can trace this book  and its sixteenth-century editions and other works by Coras using the Universal Short Title Catalogue. Even if in this case Coras’ book uses a verdict of the case, and thus does not exactly present a mémoire judiciaire, its character is sufficiently close to factums to merit explicit mention here. It opens with a summary of the facts of the case, the factum, and then Coras comments the arrêt, sometimes word for word. Did I already say Tolosana does merit your attention by all means, and not just for two famous cases, Martin Guerre and the affaire Calas?

One of the factums in the Onslow case, 1830 - source: Overnia

“Consultations pour MM. Onslow puinés contre M. Georges Onslow”, 1832 – BM Clermont-Ferrand, no. A 10850 1 – image: Overnia

When looking for another image of a mémoire judiciaire I decided to look at the collection created at Clermont-Ferrand. By sheer luck I found very quickly something which can serve as a reminder not to look only at French legal history in isolation. The Overnia portal contains several sources documenting the life and works of Georges Onslow (1784-1853), a composer born at Clermont-Ferrand from an English family. After many successes as a composer of chamber music ill health forced him around 1830 to return to his native Auvergne. Other matters, too, clearly brought him trouble. In six factums written in 1830-1832 (nos. A 10850) the question of his right to inherit goods in England is discussed. Both French and English law figure in the arguments used by the respective lawyers. These sources can form a perfect starting point for yet another contribution about law and music in history, a theme figuring here lately, but anyone interested in comparative legal history might have a good look at them, too. You can easily compare these six documents with other mémoires in the section on successions of the Overnia portal.

At Clermont-Ferrand the university library has started the digitization of the 1100 factums in 40 volumes of the Cour d’Appel at Riom. As for now you can consult already nearly 100 factums collected by Jacques Godemel, and also one hundred factums collected by Jean-Baptiste Marie which cover the period from 1792 to 1812.

Searching more collections

In fact it is really important to keep in mind the wide coverage of subjects in this genre. This becomes clearer when you look for factums in French archives. Scholars using historical sources in French archives can usually rely on the strict order of archival collections. Often you can restrict yourself to one particular série marked with a letter or combination of letters. The Archives nationales de France have created for the série U a useful PDF which mentions a lot of factums and mémoires judiciaires. A search for factums in the holdings of the French national archives yields an impressive result showing multiple séries with factums, not just within the séries B (Cours et jurisdictions de l’Ancien Régime) or U (Justice).

In this post Robert Darnton’s name appeared already three times. In The business of enlightenment. A publishing history of the Encyclopédie, 1775-1800 (Cambridge, MA-London, 1979) Darnton mentioned just one factum without much explication about the nature of this source (p. 48). Anyway, he inspired some of his students to do research on and with factums. A few years ago Darnton put on his personal website 500 eighteenth-century police reports on authors written between 1748 and 1753 [Paris, BnF, ms. Nouv. acq. fr. 10781-107833]. It would be interesting to check for authors of factums published in the mid-eighteenth century in these police reports. We can be sure at least a few of them only pretended to be barristers. In the manuscripts section of Gallica you can now look at digitized records of the Archives de la Bastille, yet another resource where you might find among the prisoners and people under surveillance of the Parisian police force authors of pamphlets and factums. Add to them the data and maps available at the web site of the project The French Book Trade in Enlightenment Europe (University of Leeds and Western Sydney University) which focuses – as Darnton alrady did – on Neuchâtel, and you will be quite busy for some time with following all these avenues.

At the end of this post you might be tempted to conclude that factums only in Southern France and in Paris. At my website Rechtshistorie I have brought together commented lists of digital libraries for many countries, and France is particularly rich in digital collections. I checked for factums in a number of digital collections which feature works on customary law or are located in one of the French regions where the droit coutumier was important, and I looked at the towns which were once seats of the parlements, for example Bordeaux, Toulouse, Grenoble and Dijon. Only for Grenoble in the small collection Droit dauphinois of the Université de Grenoble 2 et 3 I found a few plaidoiries (pleas) and one single factum.

Why should one take the trouble of looking outside the main French online resources? Alas at the portal Patrimoine numérique I found only the digitized factums at Aix-en-Provence. At Fontes Historiae Iuris, the very useful digital library for French legal history created by the Centre d’Histoire Judiciaire (Université Lille-II) you can find in the section Consultations ou plaidoyers d’avocats for three parlements some collections of pleas and mémoires (Toulouse, Paris and Lille (Parlement de Flandre)). There are links to digitized recueils d’arrêts, collections of verdicts, for seven parlements. Even if factums are a remarkable source on its own, it is their judicial context which can make them even more special, and thus it is a small service to point at least to some courts and their printed verdicts. At Gallica’s Essentiels du droit you can benefit – mainly for the nineteenth century – from the digitized Recueil Dalloz and other series in the section Sources jurisprudentielles. The section Histoire du droit with a number of classic works on French law (Domat, Loisel, Pothier) and droit pénal, too, can be most useful. The webmaster of the Portail Numérique d’Histoire du Droit told me last year he would like to add more links to relevant digital collections in France, but he has few moments to fulfill this wish.

In the very week the World Wide Web exists 25 years you might indeed reflect a few moments on the long way the virtual world has gone since 1991. The proliferation of digital resources for many fields of culture and society is both a marvel and something really difficult to grasp and use. As for scholarly work on factums I am as surprised as anyone by the meagre results in the Bibliographie d’histoire de la justice Française (1789-2011) at the Criminicorpus portal. Using the advanced search mode of the Bibliographie d’histoire de droit en langue française (Université de Lorraine, Nancy) brings you only to a small number of additional relevant titles, but Ther shows there is certainly more to be found.

A search for catalogues of collections of mémoire judiciaires yields currently apart from the two catalogues for the BnF a work by Jacques Droin for collections held in Geneva, the Catalogue des factums judiciaires genevois sous l’Ancien régime (Paris-Genève 1988). You might want to read the article by Michel Porret, ‘L’éloge du factum : autour des mémoires judiciaires genevois’, Revue Suisse d’Histoire 42/1 (1992) 94-99 [online, e-Periodica]. A quick search among digital collections of some Swiss towns, in particular Geneva and Neuchâtel, did not bring me yet to more digitized mémoires judiciaires. Factums and briefs appear in contemporary law, too, for example in Canada, but here we arrive of the end of my post. At the brink of the rentrée, the start of all activities in France after the summer holidays, I hope to have awakened your curiosity for a fascinating source and to have given you some guidance for your own investigations.

A postscript

How can one search quickly for French scholarly publications when some online bibliographies seem currently not as helpful as you would like them to be? At Isidore, a French research portal, I could find more literature about factums and even links to digitized items. Some other libraries I did not mention here contain also some digital copies of factums, but they are not part of a mass digitization project. The digital portal Mémoire vive of the town Besançon is an example with some twenty digitized factums. A second thing worth noticing is the policy at Gallica, the digital library of the BnF, to harvest also digital materials from partner libraries. Thus factums at the Bibliothèque Sainte-Geneviève, Toulouse and Clermont-Ferrand can be found at Gallica. More surprisingly it becomes clear that the BnF, too, has digitized possibly many hundred factums, but alas the exact number is not established easily, because the filter function does not contain a filter for descriptions of factums from the vast collection of factums at the BnF in which the word Factum has been put at the very beginning of each description.

Eric Panthou alerted me to the additions to the digital collection at Clermont-Ferrand for the Cour d’Appel de Riom. It contains now nearly 900 factums in four collections. nThe Bibliothèque Clermont Université will organize a one-day symposium concerning factums on June 19, 2017, Valorisation d’une source historique originale : la numérisation des factums de la Cour d’Appel de Riom.

At a few turns i have complained in the past about the lack of attention to sources for French customary law in Gallica. For some years the section Essentiels du droit dealt only with law at the national level. The new subsection Sources du droit coutumier et local fills this evident gap. The only snag is that you cannot click on the images of the title pages on the starting page, you will have to use the menu on the left. At the portal Fontes Historiae Iuris (Université Lille-2) you can find not only editions of French customary law but also treatises about them.

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Some notes on the history of tolerance

Tolerance and intolerance are themes at the center of many contemporary debates, and their prominence has become stronger after the tragic events in France on January 7 and 8, 2015. On Internet these events have sparkled many reactions. Whatever my views and opinions, for me one of the questions arising is also how these events should influence the stream of postings on this blog. Can one use historical situations to shed light on our times, or Is it sensible to stay somewhat aloof? Perhaps it is wiser to remember that to step aside is taking a side, too.

When somehow among all remarks and exchanges about the situation in France the name of Voltaire came into view it provided me with at least one element of a contribution about the origins of tolerance. Eighteenth-century France is the setting of this post. The history of tolerance is complicated, and the number of themes, persons and subjects here does reflect it. Philosophy, criminal law, legal advice, legislation, the world of literature and debate, and also images, should all appear here for good reasons, but for the sake of length legal matters will be at the center of this post, and other themes appear more at the margin. In fact it turns out to be really interesting to choose for this focus. To some extent you can read this post also as part of a guide to digital resources for the history of France during the Ancien Régime and the French Revolution.

Although I do not want to make you suffer by reading a rather too long post I bring here on purpose several themes together which in my opinion are best seen in connection to each other. In my view the interplay between a multitude of subjects, themes and resources concerning the French Ancien Régime and the French Revolution is fairly typical when you want to study these subjects. You can read this post also as a sequel to my post ‘Laws and the French Revolution’ (January 2015).

Circles and layers around law and tolerance

Title page Traité sur la tolérance, 1763 - source: Wikimedia CommonsThe first focal point for tolerance in France during the Ancien Régime in the current discussion seems to be Voltaire’s Traité de la tolérance (1763). One can read this treatise as a plea for tolerance, both on a philosophical and a practical level, and the background of this text can seem a mere pretext or occasion for expressing these views. John Locke had put tolerance center stage to thoughts about the best possible way of government in his treatise A Letter Concerning Toleration (1689 – online for example at Early Modern Texts and the Constitution Society), but Voltaire is not just reacting in a philosophical debate without any connection to contemporary developments. Locke wrote his treatise one year after the Glorious Revolution (1688), and this, too, should make you hesitate to see the history of political thought as a history of ideas which can be studied in separation from contemporary surroundings.

Voltaire might not have qualified professionally as a philosopher, but he certainly belonged to the circle of French philosophes. It is important to note Locke expressed his views in a letter, and Voltaire in a book-length treatise, an interesting fact for a prolific letter writer and playwright. The literary dimensions of Voltaire’s work are really important in gauging the impact and importance of his views and thoughts. Of course it is wise to look beyond just one text of a writer, and exactly how you can realize this nowadays will be one of the issues in this post. Voltaire wrote texts in a number of literary genres, and he had wide contacts all over Europe, a fact returning later in this post. A characteristic of his work is the use of irony, and even more, the possibility to read his texts in several ways, both at face value or with a potential for irony immediately below the surface. This ambiguity makes it harder but also more interesting to gain a perspective on his views and coded messages.

The machinery of law

The initial impulse for Voltaire’s treatise on tolerance came from his reaction to the case of Jean Calas, a merchant from Toulouse who had been sentenced to death in 1762 by the Parlement de Toulouse for allegedly killing his son Marc-Antoine, presumably because his son wanted to convert to the Catholic church. Calas was subjected to torture and broken upon the wheel. If we remember this case today as a cause célèbre it is to a large extent thanks to Voltaire’s efforts. In an article from 1994, ‘Procès, affaire, cause: Voltaire et l ‘innovation critique’,1 Élisabeth Claverie analyzes the way Voltaire set out to make an affair out of this case, and indeed created the model for fueling public indignation about cases which seem to run contrary to the public good.

Assembling materials to expose alleged and real abuses of the Catholic Church and its influence on French society might seem an obvious thing for Voltaire, but he did look seriously enough at the exact dealings of the judiciary in the Calas case. His treatise was only a final phase in a series of letters and preparatory texts, some of them meant for public use, some definitely not. Voltaire used his connections to bring the case to the attention of the French king, including getting Calas’ widow to Paris to plead in person her case before the king. Whatever Voltaire’s views of harmful Catholic influence, he aimed foremost at an official rehabilitation of Calas. An online dossier by Anne Thouzet gives you detailed information about the trial at Toulouse, the infringements to the ordinance of the Parlement de Toulouse and royal ordinances about criminal procedure – in particular the Ordonnance criminelle of 1670 – and to various other documents and images. Thouzet also points to a number of relevant web links. The Archives départementales de la Haute-Garonne in Toulouse have created a PDF with transcriptions of some documents, ‘Calas, du procès à l’affaire’.

tolosana-banniere

By chance I remembered that you can find several digitized documents about the Calas case at Tolosana, a digital library of the Université de Toulouse. On closer inspection Tolosana does bring us not only documents touching this case, but a very interesting selection of materials concerning law at Toulouse during the Ancien Régime, with customary law, arrêts (verdicts) of the Parlement de Toulouse, documents about municipal institutions and other jurisdictions, documents about lawyers and law teaching at the university of Toulouse, and a separate section on trials (procès toulousains). Let’s not forget to mention here also the Bibliotheca Tholosana, a collaborative project, and Rosalis, the digital library of the Bibliothèque de Toulouse. In Rosalis you can find one of the most famous manuscripts for the history of the medieval inquisition in Languedoc, discussed here in earlier postings.

The section of Tolosana for trials at Toulouse contains a distinctive number of mémoires judiciaires, also known as factums. In a factum cases were discussed for the general public and with a view also to the judges dealing with a particular case. A blog post by Léo Mabmacien about these factums leads you in particular to a selection of documents in a virtual exhibition created at Clermont-Ferrand, Les factums, justice des villes et des champs : le mémoire judiciaire du 17e au 19e siècle [The factums, justice in cities and fields. Judicial “memoires” from the seventeenth to the nineteenth century]. At the Bibliothèque nationale de France is the largest collection of existing factums, and in his very interesting post Mabmacien discusses these resources at Paris, too. The collection at Tolosana is at present the largest online collection of factums. Among the digitized documents for the Calas case is a number of mémoires judiciaires. Voltaire’s book-length treatise on tolerance is also included (PDF). In particular the mémoires published after 1762 are very valuable as sources for public and learned opinions about the case and efforts to annul the trial. At Bienvenue chez Monsieur de Voltaire you can find digital versions of the texts of a number of Voltaire’s letters (in the section En direct par Voltaire), in particular those concerning the Calas case.

Logo Criminocorpus

For the history of French criminal law you can learn much at the fine Criminicorpus portal – with both a French and English interface – and at the website Le droit criminel created by Jean-Paul Doucet. At both websites you can find the text of relevant royal ordinances dealing with criminal procedure. Remembering Tolosana was not just a case of having a good memory. In fact I wrote here about Tolosana and the Calas case in June 2010. Five years later I still feel astonished that these digitized documents have scarcely been used in contributions about Voltaire. Their value is seriously diminished by this omission. The French online research portal Isidore has entries for seventeen relevant documents digitized at Tolosana, but the tags attached to them do not function. No wonder that the online presence of the various documents has remained somewhat in the shadow. Internet is definitely an ocean where you have to know the entrances to particular information.

Logo Isidore

Isidore, a portal focusing on the humanities and social sciences, has a search interface in French, English and Spanish. It did bring to my attention a recent Ph.D thesis about Adhémar Esmein (1848-1913), a famous French law professor and legal historian who did look at the Calas affair in his main textbooks on constitutional law [Antoine Chopplet, Adhémar Esmein et le droit constitutionnel de la liberté (thesis Université de Reims, 2012)]. Chopplet does not use these online documents for his study of Esmein’s view, but he does for example highlight the fact that Esmein did not comment on the fact that Voltaire himself had been a victim of the infamous lettres de cachet, one of the most glaring abuses of the French judicial system during the Ancien Régime. Esmein admired Voltaire for his detailed criticism of criminal procedure in his writings about the Calas affair. Montesquieu was perhaps much better equipped to do this, but on this subject he remained silent. In an even more recent Ph.D thesis available online at the Theses platform, La pensée politique d’Adhémar Esmein : l’historien du droit by Alexandre Fiorentini (thesis Aix-en-Provence, 2014), the interplay between Esmein’s political position and his views as a legal historian is further discussed.

Using online journals

By now it should be obvious that bringing together all these materials is only possible and feasible thanks to the use of linked computers. However, how can one safely digest these masses of information, and analyze them in a controlled and sensible way? Having the information at your disposal is one thing, using the right tools for analysis is another, and presenting a meaningful analysis should be the real challenge. Dealing with the Calas case can show you the use of some digital tools and projects. Perhaps it is good to stress here that I only show some of their highlights, not their entire scope.

However you think about my plea for a consistent use of the contemporary ocean of online materials, but it is wise not to neglect good bibliographical research. French research in the field of legal history can be tracked down online using the services of the Bibliographie d’histoire de droit en langue française (CLHD, Nancy) which can be consulted both in French and English. A simple search for Calas brings you to eleven titles published since 1964. Using the thesaurus (“Procès-Affaire Calas”) you will find ten titles. Earlier this year I already wrote here about this bibliography.

A number of French research portals help you to find quickly online versions of articles. The oldest portal Persée gives access to digitized issues of a number or well-known learned journals. For the Calas case you can find for example an article on the concept of proof by Jean-Louis Halpérin.2 A second interesting article is by Frank Kafker who discusses the role of Diderot who did not speak out about the Calas case in public, but behind the screens he used his influence and did write people about it.3 Another scholar discusses the general attitude of Diderot towards political actualities.4 The OpenEdition initiatives is not only home to the Hypotheses network of scientific blogs in French, German, and Spanish, but also the provider of a number of online journals at Revues, many of them completely or partially available in open access. Among the most relevant journals for my theme here ise the Annales Historiques de la Révolution Française.

Revues points for instance to the book by Janine Garrisson, L’Affaire Calas, miroir des passions françaises (Paris 2004) in an alert by Jacques Bernet [AHRF 354 (2008) 202-203]. At one of the blogs at Hypotheses, Criminocorpus, you can find a notice by Jean-Claude Facry about the recent study by Benoît Garnot, Voltaire et l’affaire Calas. Les faits, les interprétations, les enjeux (Paris 2013). Facry provides an overview of its contents. At the Criminocorpus portal itself is the History of Justice Online Museum, a very useful section with virtual exhibitions. It is certainly worth looking at the exhibit on Les exécutions publiques dans la France de l’Ancien Régime (only in French). OpenEdition publishes also online books, one of them a volume of articles about L’exécution capitale : Une mort donnée en spectacle, Régis Bertrand and Anne Carol (eds.) (Aix-en-Provence 2003), unfortunately not in open access, where you should look at the contribution of Robert A. Schneider, ‘Rites de mort à Toulouse : les exécutions publiques (1738-1780)’.

At Cairn you can look at some 400 scholarly journals. A search for the affaire Calas yields nearly 200 results. For the book by Janine Garrisson you can find a review by Laurence Kaufmann in Annales. Histoire, Sciences Sociales 61/4 (2006), who mentions in particular a study by David Bien, L’affaire Calas. Hérésie, persécution, intolérance au XVIIIe siècle (Toulouse 1987). The search results at Cairn help you to find recent French literature on themes such as major trials, for example Les grands procès, Daniel Amson et alii (eds.) (Paris 2007) or a brochure by Jacques Vergès, Les erreurs judiciaires (Paris 2002) that appeared in the famous Que sais-je? series. Closer to the Calas affair is the volume of essays La plume et le prétoire. Quand les écrivains racontent la justice, Denis Salas (ed.) (Paris 2013 ), a special of the journal Histoire de la justice 23/1 (2013) with a pertinent article by Sylvie Humbert, ‘L’autre justice de la Dictionnaire philosophique‘ (p. 81-87), one of the publications of Voltaire during the 1760´s.

An article by Lynn Hunt, ´Le corps au xviiie siècle´, Diogène 203/3 (2003) 49-67, helps us to remember that the first major treatise against torture, by Cesare Beccaria, Dei delitti e delle pene, only appeared in 1764, and to notice also it was not the abuse of torture that prompted Voltaire into action in 1762. In 1766 Voltaire wrote a Commentaire sur le livre des délits et des peines. In view of the sheer length of this post I would rather not adduce here more examples of the results made available through the services of Persée, OpenEdition, and Cairn. If you want to look beyond recent French publications you can enlist the services of JournalsTOCs to get quick access to the tables of contents of many scholarly journals. A nice array of legal history journals in open access is available in the right sight bar of my blog.

With the Dictionnaire philosophique of Voltaire we touch the Republic of Letters. The world of European networks in the period of French hegemony deserves separate treatment here. I would have preferred to include a substantial section on it here, but wisdom tells me it is better to leave you here, albeit somewhat in suspense.

The digital turn

French historians have not been content with creating just one view of the Calas affair. They came back to it again and again, and it can even serve as a kind of thermometer of someone’s position. In this post I have tried to show some of the materials now available that have only seldom been used in connection with this case. In fact you can use the digital resources mentioned here also for the study of other subjects. Jean-Paul Doucet gives a nice list of famous trials on his website, and it my view it has become much easier to gain a head start using online resources than earlier on. This tournant numérique, this digital turn of doing history, is not only a matter of easy access to primary sources. Bringing into view resources scarcely considered before or almost forgotten, can broaden and deepen the way we look at all kinds of history, including legal history. In my opinion connecting legal history with history at large is one of the urgent needs of legal historians. It is up to me and you, to my and your creativity to make the digital turn fruitful and important.

I published a new post in this series in March 2016, ‘Images and the road to the French Revolution’.

Notes

1. Élisabeth Claverie, ‘Procès, affaire, cause: Voltaire et l’innovation critique’, in: Parler en public, a special issue of Politix. Travaux de science politique 7/26 (1994) 76-85; online at Persée.
2. Jean-Louis Halpérin, ‘La preuve judiciaire et la liberté du juge´, Communications 84 (2009) 21-32, online at Persée; special on Figures de la preuve.
3. Frank A. Kafker, ‘Le rôle de Diderot dans l’affaire Calas’, Recherches sur Diderot et sur l’Encyclopédie 21/1 (1998) 7-14, online at Persée.
4. Hédia Ouertani-Khadhar, ´Diderot et l’actualité politique´, Recherches sur Diderot et sur l’Encyclopédie 18-19 (1995) 93-103, online at Persée.

A postscript

Lately I discovered two digital collections with digitized factums. Legal materials from the Auvergne, a region where customary law hold sway, have been digitized at Clermont-Ferrand for the Overnia portal, with among them a few hundred factums. At the Internet Archive the Bilbiothèque Sainte Geneviève in Paris has published nearly 900 digitized factums and mémoires judiciaires. In 2016 I discussed factums and mémoires juridiques at length in a post.

The ARTFL project (University of Chicago) and the Voltaire Foundation (University of Oxford) have created a Philologic4 version of Tout Voltaire, the project for an online edition of Voltaire’s works.