Saturday, 12 January 2019

Muyart de Vouglans and his "Anti-Beccaria"

The conservative view of 18th-century criminal jurisprudence is not easy to enter into sympathetically today, but here are a few notes on the famous "Anti-Beccaria" of Muyart de Vouglans.


Muyart de Vouglans

Pierre-François Muyart de Vouglans(1713-1791) was widely regarded one of the greatest penalists of the age.  His legal career was both uneventful and successful.  He was born in 1713 in Moirans, in Franche-Comté, into a family of magistrates (the "son and grand-son of lieutenants-criminel"). In 1741 he became a barrister in the Parlement of Paris where he served for forty years.The crisis of his professional life came in 1771 when he elected to serve in Maupeou's short-lived Conseil supérieur.  He was subsequently rewarded for his loyalty to the Crown by being made a member of the Grand-Conseil, where he remained until that body was dissolved, shortly before his death in March 1791.  He lived to see the first Revolutionary laws reorganising the judiciary (August 1970)  and the reforms of 8th October - 3rd November 1789 which established public trials and the right to a defence lawyer.  

Muyart de Vouglans was the author of several substantial commentaries on the 1670 Ordinance, culminating in the monumental Les Loix criminelles de France which appeared, with a dedication to Louis XVI, in 1780. He also published several works of Christian apologetics: it is clear that conventional, but deeply held religious convictions informed his whole view of the scope of justice, the nature of the magistrature and the purpose of punishment.


Plate from the Dedication of Les Loix criminelles 
André Laingui reports that the Japanese historian, Mitsuki Ishii managed to find a portrait of Muyart de Vouglans  still in the possession of his descendants. The magistrate appears in his red robes, with "the majestic physionomy typical of portraits of jurisconsults of this time"(p.170: footnote)

He is made to seem a little more human by the fact that in 1782, as a widower just shy of seventy, he solemnly took the advice of his doctor and confessor to remarry.  His choice fell on Henriette Cannet, the intimate friend of Manon Roland, who was thirty-six at the time.  According to the records for the sale of biens nationaux in 1790, the couple lived at No.142 rue de Vaugirard, where they were tenants of the sisters of the Petit-Calvaire.  Madame Roland has given Muyart de Vouglans a pretty bad press. She lampooned him for his religiosity, particularly his association with Joseph Romain Joly, a Capuchin monk who wrote verses comparing Voltaire to Satan. She also roundly condemned the fanaticism of his legal works; "I have never met a man whose sanguinary intolerance has revolted me more" (Memoirs, p.189)
Memoirs of Manon Roland, trans. Johnson, 1901, p.189 and p.335.
https://archive.org/details/privatememoirsof00rolauoft/page/354


The newly widowed Henriette Cannet selflessly offered to swap places with Manon Roland in prison in 1791
(Mid 19th-century book illustration)
https://www.flickr.com/photos/internetarchivebookimages/14754583296/
Deservedly, Muyart de Vouglans has earned himself a reputation as a harsh reactionary, defender of torture and death penalty.  His views were perhaps not much more extreme than those of his contemporaries; but his presentation certainly lacked reticence.  His 1780 commentaries are remembered even today, for their tasteless  details of the executioner's art - the different ropes used to hang a man, and the manner in which a decapitation could be "finished off". Muyart de Vouglans defiantly flouted the mood of the times by enumerating new crimes against religion: atheism, deism, theism, polytheism and "tolerantism".  Nonetheless, his career was not without nuances. In 1766 he had been one of the "eight intrepid lawyers" who signed the consultation in favour of those accused with the chevalier de la Barre (see Laingui,p.170-171). 



The Refutation of Beccaria

Muyart de Vouglans's Réfutation de quelques principes hasardés dans le Traité des Délits et des Peines appeared in 1767, when it excited a brief flurry of interest in the wake of the "Beccaria moment".  It was published first in Paris, then, in the following year, in Utrecht, with subsequent translations into Italian and German.  Muyart de Vouglans himself had it reprinted as an appendix to Les Loix criminelles de France in 1780.



Summary

In his introductory remarks, Muyart de Vouglans affects to have profited from the leisure of the countryside to read the "brochure" of Beccaria which has been through so many editions and attracted such extravagant praise. He has three initial criticisms.

Beccaria founds his system on sentiment
Muyart de Vouglans takes issue with Beccaria's claim to base his work on "the ineffable sentiments of the heart":  "I pride myself on having as much sensibility as anyone else, but no doubt I do not have an organisation of fibres as loose as that of our modern criminalists, for I did not feel that gentle shuddering of which they speak"(p.811)

Beccaria's views favour the interests of criminals
 He is surprised to discover, after all the eulogies, under the name of Treatise on crimes, an "Apology for humanity" or rather, "a Plea in favour of that miserable portion of the human race, which is its plague, which dishonours it, and sometimes even destroys it" (p.811)

The treatise ignores the lessons of universal experience
 - "What can we think of an author that claims to erect a system on the ruins of all received notions?  Who, to gain it credit, puts on trial all policed Nations; who spares neither Legislators, Magistrates nor Jurisconsults; who does not respect the most sacred maxims of Government, Morality and Religion"(p.811).
- "Sitting in his study, [Beccaria] undertakes to trace the laws of all the nations and make us see that until now we have never had an exact or solid thought on this crucial subject" (p.815)
- Later Muyart de Vouglans mocks Beccaria's pretention to provide wisdom and answers all questions in a little volume in-12 of 268 pages. (p.816)


There follows a whole list of erroneous propositions drawn from Beccaria, which Muyart de Vouglans  proceeds to refute in greater detail.


1. Beccaria's general philosophy

Beccaria's view rest on two key ideas.  Firstly, crime is a violation of the Social Contract.  Secondly, the right to punish is founded on the surrender by each citizen of the minumum amount of liberty necessary to guarantee protection (p.812)

For Muyart de Vouglans, as for all traditional jurists, the foundation of Law is not human but divine.  Crime consists in the violation of God's law, which is to be discerned in two forms:  Natural Law inscribed in the hearts of men, and Divine Positive Law, founded in revelation.  God has given to the Prince the right of punishment which he delegates to his magistrates (p.825-6).  Muyart de Vouglans  conventionally quotes Romans xiii, on the Sovereign's "power of the sword" (see p.829: non sine causa gladium portat ) 

Michel Foucault chose Muyart de Vouglans's exposition of royal authority to exemplify the idea of spectacular capital punishment as an expression of political power, the "physico-political force of the sovereign".  As Foucault pointed out, Muyart de Vouglans 's idea of law emphasised the need for vengeance as much as punishment:  "One sees by the very definition of the law that it tends not only to prohibit, but also to avenge contempt for its authority by the punishment of those who violate its prohibitions" (Les loix criminelles de France (1780) p.xxxiv, quoted by Foucault, Discipline and Punish, p.48).
Foucault's text is available online:
https://zulfahmed.files.wordpress.com/2013/12/disciplineandpunish.pdf


.

2.  His views on the administration of criminal justice

In Beccaria's opinion, as summarised by Muyart de Vouglans, the existing practice of jurisprudence is purely offensive and presents "the idea of force and power rather than justice".(p.816-7).  French law reflects the barbarism and ferocity of "the hunters of the North".  Magistrates are "usurpers of tyrannical power, whose arbitrary jurisprudence is always dangerous, and who consign a guilty man to his death ceremonially, with indifference and tranquillity". As to Jurisconsults, they are "biased writers, whose opinions are venal"." The system is vitiated by irregularity of procedures, ignorance, indolence, accumulated errors, barbarous torments (quoted p.811)

Against this Muyart de Vouglans opposes a vision of magistrates as mediators and interpreters of the law.  He emphasises the need for historical precedent and professional expertise.  Jurisprudence is "a science which, dealing with positive law, depends less on abstract reasoning than on experience and usage"(p.814)  

 He seeks to demonstrate that Beccaria's view of the French system in particular is mistaken. His criticisms are ill-founded, as might be expected from someone who praises the "luxury and softness" of the age and erects his system on "tolerance of human error" (p.815). There follows a summary of French criminal procedures as laid down by the 1670 Ordinance.(p.816-20). Current practice strikes a happy balance between safeguarding the wrongly accused and pursuing the guilty: it is a system which "lends a helping hand to oppressed innocence, whilst pursuing and striking  down crime with the sword of vengence." (p.820).  Muyart de Vouglans ends the section triumphantly by stealing from Beccaria a quote from Rousseau on the need to perfect education to prevent crime.


3.  Legal procedures

Muyart de Vouglans now considers some more specific procedural abuses which Beccaria has alleged.  There are six imputations, which are simply wrong or based on misinterpretations of French law: admission of secret accusations; rejection of women as witnesses: arbitrary imprisonment of suspects; prison sentences as infamy; use of trickery by  judges in their interrogation of the accused; the lack of rules on private or hidden crimes such as pederasty, adultery or infanticide.(p.821):


Other procedures are criticised without cause, notably the imposition of an oath on the accused and the use of torture. Neither of these is undisputed, though in Muyart de Vouglans 's view they are sanctioned by "the experience of all the centuries" (p.823).






4. The System of punishments


At this point the Réfutation moves on to consider the heart of of Beccaria's thesis  -  the formulation and measurement of punishments, the death penalty and confiscation.  For Beccaria, "full of the idea of the social contract", the severity of punishment must match the gravity of the crime; this in itself, Muyart de Vouglans remarks, is scarcely a novel idea. It is Beccaria's criteria, drawn from secular utilitarianism that are in error. In his system, the severity of the crime is measured purely by the damage inflicted on society, without regard for the intention of the criminal, the status of the victim or the offence to God (p.828). This implies the decriminalisation of a whole range of abominable offences - blasphemy, heresy, suicide, adultery, homosexuality, duelling - which do not threaten public order but degrade the individual or put his immortal soul at risk (p.828).  (In fact, as André Laingui points out, Beccaria does consider in the problem of the relationship between personal morality and public order in a few contexts, notably his considerations of heresy, suicide, duels.)

Death penality.  In Beccaria's view the death penalty is "based on no right" and is "neither useful, nor necessary"; he denies the enduring impression of public executions and thus their deterrent value.
- "One can only be revolted by the singularity of this so-called social contract on which the author has built his system.  It is supposed that men have ceded the least possible portion of liberty, whilst tacitly retaining the right to deprive others not only of their liberty, but of their life without fear of experiencng the same" (p.825)
- His view conflict with "Civil Law and canonical Law, the Common law of all the Nations, and the Experience of all the centuries" (p.826)

In contrast Muyart de Vouglans proposes a system based on public revenge, and deterrent example.  Beccaria's preference for the penalty of "perpetual slavery" is misguided: for it offers neither "sufficient vengeance" to the victim or his inheritors; nor an example to society, nor any guarantee against reoffence.(p.827): 

André Laingui observes that Muyart de Vouglans did  not make the obvious point that imprisonment and les bagnes had already become a common penalty in France, whereas rates of capital punishment were declining;  according to Diderot, threre were not more than 300 executions (a year?) in the whole kingdom. This perhaps reflects the fact that the abolitionist current was not that substantial.  Even Beccaria himself, and after him Voltaire and Pastoret, advocated the death penality for crimes that endangered the state. In 1791 Lepelletier's proposal for abolition was to be rejected by the Legislative Assembly. (See Laingui, p.176)

Finally, Muyart de Vouglans maliciously interpretes  Beccaria's condemnation of confiscations as a penalty as reflecting not a "simple motive of commiseration with the unfortunate" but an outright attack on the right of property.

In his concluding passages, he goes straight to the heart of the dispute, which turns on the significance of pain and suffering. He again objects in the strongest terms to Beccaria's attempt to found his system on 'the ineffable sentiments of the heart'. The need for deterrence dictated the harshest possible penalties.  It was revolting, Muyart de Vauglans maintains, to hear the author refer to 'the sensitivity to pain of the guilty': 'Precisely because each man identifies  with what happened to another and because he has a natural horror of pain, it is necessary to prefer the punishment which is cruellest for the body of the condemned' .  Men must be judged as they are, not as how they might be.  More often than not , they are shaped by their passions, so that their temper dominates over their sentiments.  Indulgence is therefore more dangerous to society than excessive rigour (p.829-30).


Disputed statements by Beccaria (p.812-14)
  • The barbarity of the "chasseurs du Nord" is still reflected in French Customs and legislation. 
  • The current system of Jurisprudence is purely offensive and based on force rather than justice.
  • Magistrates are usurpers of tyranical power, which they exercise in a dangerous and arbitrary way; they consign a guilty man to death with ceremony but, at the same time, with indifference and tranquillity
  • Jurisconsults are biased writers, whose opinions are venal. They have weighed down Jurisprudence with useless formalities which, if they were observed, would reduce the administration of justice to anarchy.
  • The right of punishment is founded on the totality of all those smallest possible portions of liberty that each person cedes. Any of power beyond this is abuse and not justice.
  • Each man is deemed to have sacrificed his liberty freely in the interest of the public good.
  • The origins of punishment and the right to punish should be sought in the sentiments of the human heart.
  • It is in the luxury and softness of recent centuries that is to be found the origin of the finest virtues - humanity, benevolence, tolerance of human error.
  • Penalties should be proportional to the crime, and should be designed to make the greatest impression on the mind, whilst  being the least cruel to the body of the guilty.
  • Torture should be abolished.
  • The penalty of Death should be abolished.  Since each person cedes only the minimum amount of liberty, no-one has conceded the right to take from them their life.
  • There is no power over Life other than the Necessity which governs the Universe
  • Servitude for life should replace the death penalty, so that the guilty can work for the reparation of the damage they have done to society. 
  •  The death penalty should apply only in cases of treason, where the very existence of the government is threatened, that is the criminal's continued existence might produce some revolution in the form of Government
  • Crime can be defined as a violation of the SOCIAL CONTRACT
  • The true measure of the severity of a crime is the damage that it does to society.  Not to be taken into account are: the intention of the person who has committed the Crime, the dignity of the person offended, nor the gravity of the offence against God.
  • One should not punish Crimes which are begun and abandoned as severely as those accomplished; and accomplices should not be punished as heavily as the authors of the crimes.
  • Penalties should be the same for persons of the highest rank as for the meanest of citizens.
  • The place and century in which the Author writes, and his subject, does not permit him to examine the nature of a species of Crime which has filled Europe with blood.
  • Fanaticism should not be subject to corporal punishment but only infamy.
  • The danger of failing to pursue certain hidden crimes - Adultery, Pederasty, Sodomy and Infanticide - is of no great importance.
  • The punishment of a crime cannot be called JUST or NECESSARY, if the law has not employed the best possible means in the given circumstances.
  • There should be no penalty for SUICIDE.   It is not a crime before men, since the penalty does not fall on the Guilty, but on his innocent family.
  • It is useless to prescribe the death penalty for Duelling.
  • In cases of Bankruptcy, it is so difficult to establish guilt or bad faith, that it is best to leave the crime unpunished.
  • The political inconveniences of leaving a Crime unpunished is in direct proportion to the Damage the Crime might cause to society.
  • Theft should never be punished by fines, because this often takes bread from  innocent families and encourages more theft by increasing the number of destitute. This crime is usually committed by the poor and unfortunate whom the right to property (a terrible right, writes the author, that perhaps is not necessary) has reduced to bare existence.
  • One of the principal sources of error and injustice in our Jurisprudence, comes from the spirit of family;  we consider the family as a unit rather than a society of individuals.
  • Domestic morality inspires submission, whereas public morality inspires courage, and will even sometimes even lead the citizen to sacrifice himself for his country....In the family young people are subject to the discretion of their Fathers, whilst in the Republic the bonds of parents and children are ones of mutual aid and gratitude.
  • Another of our errors comes from the Esprit de Fisc - the desire to fill the public coffers which is the principal goal of our Jurisprudence, and motivates attempts to torture people into confession.
  • One must abolish the penalty of Confiscation, since this is used most commonly to take advantage of the simpleminded and innocent.
  • That of all the means to prevent Crimes one of the most effective is by the perfection of Education.  A great man who has enlightened humanity has developed the principal maxims of a "truly useful education".

References

Pierre-François Muyart de Vouglans, "Réfutation de quelques principes hasardés dans le Traité des Délits et des Peines" in Les loix criminelles de France dans leur ordre naturel . Dédiées au roi. Paris, 1780, p.811-31.
https://gallica.bnf.fr/ark:/12148/bpt6k6566322j/f864.image.texteImage

André Laingui, "P. F. Muyart de Vouglans ou l'anti-Beccaria", Archives de philosophie du droit,  1994, p. 169-179) ;
http://www.philosophie-droit.asso.fr/APDpourweb/136.pdf

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