Thursday, 31 January 2019

Criminal law reform, 1788


Engraving showing a lit de justice held at Versailles on 6th August 1787 (detail)
https://gallica.bnf.fr/ark:/12148/btv1b8410540k/f1.item

A last hope of reform

In the dying moments of the Ancien Regime, Louis XVI's government finally embraced, and so nearly delivered, the long awaited reform of criminal justice. It was in April 1787, during the Assembly of Notables, that Miromesnil fell from power to be replaced as garde des sceaux by the president  Lamoignon.  This represented a significant victory for Fréteau, Dupaty and the advocates of reform: "Seeing a Lamoignon on the throne of justice" wrote Dupaty, "humanity is permitted more than ever to hope for the reformation of the laws, to hope that he will take up the immortal mantle of his ancestor" (quoted  Marion,  Le garde des sceaux Lamoignon  p.45) . The moment was ripe - In the Assembly of Notables,  Lafayette, seconded by the ducs of Châtelet and La Rochefoucauld and the  maréchal de Beauvau, presented a motion against the Ordinance of 1670.   Lamoignon started work immediately in conjunction with his secretary Jean Blondel and the advocate Lacretelle.  Early in 1788 followed the example of the 1670 conferences,  a commission of six jurisconsults was set up to draft the reforms.  This included Guy-Jean-Baptiste Target and his Jansenist colleague Louis-Simon Martineau.  After the triumphant conclusion of the Trois roués case, Dupaty and the abbé Maury were also brought into consultation. (Aut pati aut mori commented the wags.) 

Although deliberations were still ongoing, an initial set of reforms - which very much reflected Dupaty's views - was packaged as the Criminal Ordinance of 1st May 1788.  This was one of the famous "Six Edicts" thrown out in the lit de justice of 8th May, along with Lamoignon's onslaughts on the prerogatives of the Parlement. The commissioners resigned in protest, and  Dupaty himself felt obliged to vote against the edict which represented the culmination of his life's work.  Thus was a final opportunity lost and the work of law reform was left to the Revolution to complete.


The Royal Declaration of 1788

The clauses of the edict were introduced by a Royal Declaration, delivered at Versailles on 1st May 1788.  This speech acknowledged the necessity for a wholesale reform of criminal procedure. Homage was paid to the great Ordinance of 1670, but the "progress of Enlightenment" was emphasised, as was the need to bring practice in line with "public reason".  The proposed reform was to be prefaced by a prolonged consultation, which sought to avoid the "esprit de système" and the charge of introducing excessive clemency.  In the meantime, the Edict proposed a limited number of measures to address the most glaring abuses (though not, it must be noted, the substantial issues of secrecy and lack of defence counsel.)



DECLARATION OF THE KING,
Relating to the Criminal Ordinance

LOUIS, BY THE GRACE OF GOD, KING OF FRANCE AN D NAVARRE;  To all those who will see these present Letters, Greetings.

The great administrative goals which occupy us have not caused us to lose sight of other improvements to be brought about through our love for our People. Our criminal laws, which form so important a part of public order, particularly merit our attention, since they interest both our humanity and our justice.  When Louis XIV, of glorious memory, decided to give his Courts the code which today still regulates their judgment in criminal matters, he preceded this memorable act of wisdom with solemn conferences; it was after consultation with the most respected magistrates of the nation that he published his Ordinance of 1670.

We shall not conceal that while retaining the greatest number of  provisions of the Ordinance of 1670, we could advantageously change several of its principal articles and amend it without abolishing it.  We have taken into consideration that in bringing order out of the chaos of criminal jurisprudence, the Commissaries were not able to provide for every contingency, that the official reports of their conferences bear witness that they were often at variance upon important points, and that their decision did not appear always to sanction the wisest opinions ; that the progress of enlightenment since the drawing up of that Ordinance should be sufficient to induce us to revise its provisions carefully, and to attune them to that public reason, to the level of which we would adjust our laws . . . from the example of the legislators of antiquity, whose wisdom limited the authority of their Code to a period of a hundred years, we have noticed that, this period having now expired, we ought to submit this Criminal Ordinance, which has undergone the judgment of a round century, to a general revision.

[Lamoignon in his speech at the lit de justice was still more precise:  "The necessity for a reform of the criminal Ordinance and of the criminal code is universally recognised.  The whole nation demands this important work of legislation from the king, and His Majesty has resolved in the councils to accede to the wishes of his people" (Quoted Esmein p.394)]

To undertake this great work with the requisite order and wisdom, we propose to surround ourselves with all the intelligence we can gather around the throne on which divine Providence has placed us.  All our subjects shall have the power to take part in the exe- cution of the plan, by addressing to our keeper of the seals such observations and memorials as they deem fitting to enlighten us. We shall thus raise to the rank of laws the results of public opinion, after these shall have been subjected to the test of a mature and deep investigation.

Louis XVI as Father of His People:  the King distributes alms to poor peasants in the Winter of 1788
Engraved by Pierre-Michel Adam, after a painting by Louis Hersent, 1817-22
http://gallica.bnf.fr/ark:/12148/btv1b6940197m
This imaginary scene was chosen for display in the exhibition at the which marked the  200th anniversary of the Napoleonic  "Code Penal"  in 2010 -  a reminder of the spirit of benevolence which royal government sought to evoke in its abortive reform of criminal justice in 1788
The "spirit of system" will always excite our distrust. We wish to avoid all excess in the reform of our criminal laws. This includes excessive clemency, which would be pleasing to indulge if it did not encourage crime by the promise of impunity.  Our consistent goals, in the revision of our criminal laws are:  to deter crime by the certainty and example of punishment;  to make innocence manifest by proper procedures; to make punishment inevitable by removing  severe penalties that encourage toleration rather than the denunciation of crime; and to punish wrongdoers with all the moderation that humanity demands and that the interest of society permits to the law.

In the interim a few particular abuses singled out for correction."several abuses which this appeared a moment to remedy":Whilst waiting to achieve fully this useful revolution, we hope to bring our subjects benefit by announcing the abolition of several abuses that can be immediately remedied.


The Lost Reforms:

 Abolition of the sellette and other practices designed to humilitate those interrogated:

Another abuse that we propose to suppress with immediate effect is interrogation on the sellette. This shameful practice has never been one of the class of penalties (Declaration)

Article 1: 
The sellette  is abolished....We ordain that there shall be placed, in our courts and jurisdictions, behind the bar, a wooden seat or bench, sufficiently raised that the accused can be seen by all their judges;  we leve it to the choice of the said accused whether to sit or remain standing;  the presidents of our courts and the judges who preside at the trials in the jursidctions shall warn them of their rights

Article 2:
The accused will no longer be obliged to surrender their clothes and exterior marks of their estate, merely their arms.


Judgments must state the crimes for which the accused is condemned:

"The very dignity of our judgment demands the express statement of the offences. What tribunal could be anxious for the prerogative of inflicting capital punishment without giving a reason for its decrees? The king therefore thinks, gentlemen, that every solemn condemnation, which makes punishment follow the offence, should show the offence as well as the punishment(Speech of Lamoignon)

Article 3:
Neither our judges nor our courts shall be entitled to pronounce sentence, for the crimes resulting from the action;  it is our will that every decree or judgment shall set out and expressly name the crimes and offences of which the accused has been judged and those for which he is convicted.


Judgments in favour of death should command a clear majority

Article 4: 
The severest judgment should no longer prevail: a majority of two votes is no longer enough to sustain capital punishment; three are necessary.


There should be a delay between judgment and execution

Lamoignon assures  his hearers that this was not merely to prolong the agony of the condemned, but to allow time for appeal: "The king wishes to insure to all condemned persons the time necessary to beg for his mercy and to make sure of his justice.  In enlightened countries of Europe all capital sentences are subject to the approval of the sovereign." 

Article 5-6
Execution of the death penalty cannot take place until at least a month after judgment is pronounced, except when there is danger of sedition or riot. The Attorney-General is required to transmit capital sentences to the keeper of the seals.

As Esmein points out, this clause proved a major sticking point, as it implied an unwarranted extension of the royal prerogative (see p.395-6)


Acquittals should be made public 

Article 7
Notice of acquittals must be printed and publically displayed, either at the expense of the private prosecutor or at the expense of the exchequer.


Torture is totally abolished 

"New reflections have convinced us of the deceptiveness and the inconveniences of this kind of proof, which never leads to the discovery of the truth with certainty, usually fruitlessly prolongs the punishment of the condemned, and may more requently mislead our judges than enlighten them". (Declaration).

Article 8-12
Abolition of all torture, including the question préalable. 

The question préalable  was to be replaced by a final interrogation under oath.  
This was " a milder, but no less effective, method to compel evil-doers to name their accomplices. We have thought that, the law having entrusted to the faith of the oath the greatest interests of society, since it makes the lives of human beings depend upon it, it might adopt it as a safeguard of the public safety, in the final declarations of the guilty persons. We have decided to try this method provisionally at least, reserving the right, although with regret, to reestablish the preliminary torture if, after some years' experience, it is shown by the reports of our judges to be absolutely necessary." (Declaration)

References: 

The text of the edict and the Royal Declaration which introduced it, are conveniently reproduced on the Le droit criminel website:
https://ledroitcriminel.fr/la_science_criminelle/penalistes/introduction/declaration_louis16.htm
English summary in:
Adhémar Esmein, A History of Continental Criminal Procedure (1913), p.393-397

The text of Lamoignon's speech is reproduced in:
Histoire parlementaire de la Révolution française, vol.i p.239
Catalogue of the itinerant exhibition organised by the French Senate and the Cours de Cassation in 2011 to  commemorate the 200th anniversary of the Code Penal: