Friday, 11 January 2019

Criminal procedure - some Enlightenment critics

[The following is taken largely from the article by the legal historian François Tricaud, cited below.]

Despite its drawbacks, the criminal ordinance of 1670 was recognised to have corrected longstanding abuses and was little criticised in the earlier part of the 18th century. The abbé Fleury represented an isolated voice when he observed in his Avis à Louis, duc de Bourgogne that French law was drawn from the practice of the Inquisition and was more concerned with finding and punishing the guilty than with  protecting the innocent   Even by the middle of the century, there was little dissent, apart from a few voices raised against torture. By the eve of Revolution, however, everyone was echoing Fleury's views.

The writers of the Enlightenment


Unlike many other Enlightenment themes, the beginning of the European intelligentsia's preoccupation with criminal justice can be traced to a precise event: the publication in 1764 of Beccaria's treatise On crimes and punishment. Beccaria took Europe by storm.  The work was translated into French by the abbé Morellet in 1766 and there were nine separate French editions before 1800.It was widely regarded as a brief in favour of Calas, whose cause had been launched by Voltaire two years previously.

Although Beccaria's incendiary tract was concerned mainly with with the reform of penalties, he made a number of important recommendations concerning legal procedures, which could readily be applied to the situation in France. François Tricaud summarises the main points (p.151):
  • The need to define the circumstance which authorised preventive detention (chpt 29).
  • Condemnation of secret denunciations (Chpt 15). This was more applicable in Italy since in France denunciations were registered and would be pursued for falsification.  Voltaire, however, later criticised the inequities of the system of monitoires.
  • Condemnation of the imposition of oaths on the accused (Chpt 18).
  • A desire for criminal trials to be made public (Chpt 14).
  • Condemnation of torture (Chpt 16)
  • Praise for "judgment by peers".  Beccaria imagined a jury composed half of peers of the accused and half of peers of the victim.  The accused would be allowed to veto a certain number of jurors (Chpt 14)
  • Penalties should be legally defined. The judge's role should be confined to pronouncing guilt (Chpt 4)

Beccaria's view of evidence is not completely consistent. He thinks almost exclusively in terms of "moral evidence" based on the testimony of witnesses.  In Chapter 14 he advocates a jury of non-specialists and judgment on the rules of "simple and ordinary good sense". However, in Chapter 13, on witnesses,  he  seems much closer to the existing system of preuves legales with the demand that the law lay down exactly, "the credibility of witnesses and the proofs of the crime".

The presence of a defence lawyer was allowed by Italian law and so was not an issue for Beccaria.


The involvement of Voltaire was the other major catalyst for the Enlightenment reconsideration of French criminal law in the 1760s. In April 1762 Voltaire, at the age of 68, had thrown himself into the defence of Jean Calas, attempting to overturn the arrêts of the parlement of Toulouse.  His campaign was primarily directed at religious intolerance,  but also highlighted the injustices of the trial.  At first he discussed the evidence, expressed his frustration at the secrecy, criticised the judges, but did not call into question the actual legal premises. Gradually, however, he became a more perceptive critic.  He was greatly stimulated by his reading of Beccaria.

In 1766 he published his first response, the Commentaire du Livre des Délits et des Peines.  This text in fact mentions Beccaria directly only two or three times - the 50 pages are filled mainly with anecdotes of horrible penal practices from different eras.  There are pleas in favour of the abolition of torture (Chpt XII) and the death penalty (Chpt X), also the possibility of royal pardons for those condemned to death (Chpt XI).  However, in Chapter XXIl Voltaire moves on specifically to consider judicial proceedings:

He begins by observing that the Criminal Ordinance is too severe and weighted against the innocent: ("Our criminal procedure appears in many instances to point only at the destruction of the accused".)  Specific inequities are highlighted: 
  • Witnesses are interrogated separately and in secret, by a single judge.
  • After the récolement they cannot change their deposition without being pursued for perjury, which encourages them to persist in false testimony.
  • It is left to the judge's discretion whether he allows the accused to confront all the evidence.
  • With the exception of extortioners, or a fraudulent bankrupts, the accused is deprived of a defence lawyer.
  • Defendants (like Sirven) who flee and find themselves in contempt of court, are condemned in absentia on insufficient grounds.
Voltaire lampoons the technicalities of legal proofs: the parlement of Toulouse admitted not only half-proofs, but quarter-proofs and eighth-proofs; thus "eight hearsays, which in fact are no other than an echo of a groundless report, constitute a full proof".  On such principles, was Calas condemned to the wheel.
English translation:

Shortly afterwards, in the Relation de la mort du Chevalier de La Barre , Voltaire moved on to condemn the  system of monitoires, which had contributed to the loss of both the Calas and La Barrre cases.  He found particularly distasteful the fact that revelations solicited in this way are sub poena excommunicationis - you are threatened with Hell if you do not imperil the life of your neighbour.

At the beginning of 1771 he took up the case of François-Joseph Montbailli, who had been wrongly condemned by Conseil d'Arras for murder of his mother and executed in November 1770.  The new cause occasioned a far-reaching attack on a range of procedures -  appeal a minima whereby Procurator could refer to higher court for more severe sentence, use of  preliminary torture,  condemnation by cumulation of half-proofs:
One could cite a long list of abuses, inseparable from human weakness, that have slipped into the immense and sometimes contradictory compilation of our laws, some dictated by a passing need, others based on usages and opinions that no longer exist, or snatched from the sovereign in troubled times, or originating in times of ignorance.
La méprise d’Arras

The Dictionnaire philosophique in 1764-69 and Questions sur l'Encyclopédie between 1770 and 1772 contained several articles which demonstrated Voltaire's hostility.  His final, most complete presentation was the ambiguously titled 
Prix de la Justice et de l'Humanité written in 1777.  Berne had launched a competition for "a complete and detailed plan of criminal legislation" in order to reconcile humanity with need for prompt and exemplary punishment.  Voltaire offered 50 louis to be added to the prize money and published his own response In this last essay, he returned to well-trodden themes:  torture (article xxxiv) secrecy of instruction (article xxii) solitude of the imprisoned suspect (xxiii)

The question of trial by juries

Philosophers like Rousseau, dreamed of "jugement par pairs" without real interest in the existing English system.  Commentators like  Le Trosne  often felt generally that it was a good alternative solution.

Montesquieu, Beccaria and Voltaire were all in favour of juries.  So too were  Morelly, Jaucourt author of the Encyclopedie article "Pairs".  Servan, Brissot, Condorcet.  Were different ideas - Beccaria envisaged the "peers" of the victims as part of the jury.  Not clear how peers would be chosen.  Condorcet - correspondance with Turgot on this subject.Essai sur la constitution et les fonctions des assemblées provinciales in 1788.  Calculates odds of getting to truth.  Examples from Rom, the middle ages, above all England.  Had no immediate issue, butecame better informed about this in the 1770s, in work of the genevan advocat Jean-Louis de Lolme and Linguet in London.  Blackstone's commentaries translated into French in the 1770s.  Desire to put decisions in hands of amateurs reflected lack of confidence in the legal profession.  Felt that judgment should be in purvey of ordinary men of common sence.  Subtext of political subversion - Brissot and Condorcet wanted juries elected.

The legal profession in the 1760s and '70s

Michel Servan
Understandably, Beccaria's call for reform was much more favourably received among the cultivated public than by the legal profession itself. Between 1766 and 1780, only a handful of magistrates, like Voltaire's friend Michel Servan,  were openly sympathetic to the cause.  

There was almost no direct  response at all from the  jurisconsults. The exception was Pierre-François Muyart de Vouglans, one of the most respected penalists of the age,who in 1767 published a refutation of Beccaria.  From this, is easy to see the problem: at stake was not mere questions of procedure,  but a whole philosophy of law, for Beccaria's rationalism undermined the whole concept of legal practice based on tradition and professional expertise.

The fifteen years after Beccaria saw the publication of the century's great compilations and treatises on criminal law: Serpillon's Le Code criminel ou commentaire sur l’ordonnance de 1670 (1767); Poullain du Parc's Principes du Droit français suivant les maximes du Parlement de Bretagne (1771) and Daniel Josse's  Traité de la Justice criminelle de France (1771).  These works were not without their nuances; Serpillon, in particular, was hostile to the use of torture, and published Servan's 1766 discourse on the administration of criminal justice as an appendix.  On the other hand, Jousse curtly dismissed Beccaria in an appendix:  he had been excessively praised, but not by "les personnes les plus sensées".  He commends Muyart de Vouglan's criticism, though the  paradoxes and errors of Beccaria hardly merited a reply.  To underline the point, in 1780 Muyart de Vouglans himself published a substantial and conservative commentary Les Lois criminelle en France dans leur ordre naturel, which included his refutation of Beccaria as an appendix. 
Josse's comments on Beccaria: Traité de la Justice criminelle (1771) vol.1, preface, p. lxiii

The cause of  reform in the age of Louis XVI

In the end the tide of criticism proved unstoppable. The 1780s saw a sea-change in public opinion, with a broad swing in favour of legal reform. Under Enlightened ministers like Turgot, Necker, Joly de Fleur and Calonne the wider political climate was more sympathetic and administrative and procedural reform firmly on the agenda.  In 1779 mainmorte was abolished 1779 and in 1780 "preparatory torture";  concerns were raised about conditions in prison and arbitrary arrest; in 1787, nine years after Voltaire's death, an Edict of Toleration granted civil rights to Protestants.  Criminal law reform was thus part of a wider social debate and became subject to increasingly widespread,  effective and radical theoretical criticism (Mornet, p.357). The debate was institutionalised in academic competition. In 1780  and 1781 the Academy of  Châlons-sur-Marne offered prizes for an essay on the reform of criminal justice, which was competed for by Robespierre and Marat.  The prize in Metz in 1788 was won by Brissot, who published the incendiary Bibliothèque philosophique du législateur, du politique, from 1782 onwards.

Within the legal profession itself, a new generation of Enlightened lawyers saw themselves as men of letters.  Men like Pierre-Louis Lacretelle,  Linguet, the defender of the Chevalier de la Barre, Ambroise Falconnet or Pierre-Louis-Claude Gin were orators and writers who considered that advocacy demanded not only erudition but genius and the ability to stir the emotions
The Order of Barristers,  which had hitherto been a conservative force, was transformed by the Maupeou reforms, into a potent forum for opposition, filled with young men hoping to defend the next Calas (Bell, p.163)

The final decade of the Ancien régime was punctuated by a series of well-publicised miscarriages of justice, which confirmed the urgent need for change. The growth of public interest in criminal affairs was not in itself entirely new -  Gayot de Pitaval had begun editing  his popular collection of "Causes célèbres" as early as 1735.  However, the years which immediately preceded the Revolution -  the era also of the Diamond Necklace scandal - saw a unprecedented number of mémoires justificatifs published on behalf of disadvantaged clients. The  desire to emulate Voltaire combined with a call for the reform of abuses, to join "philosophie" to jurisprudence.  According to Roederer,  ten years before the Revolution "les jeunes magistrats des cours" judged according to the principles of Beccaria rather than according to the laws (Tricaud p.156).


François Tricaud, "Le procès de la procédure criminelle à l'age des Lumières", Archives de Philosophie du Droit, 1994, Vol. 39, p.145-67

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

Daniel Mornet, Les origines intellectuelles de la Révolution française 1715-1787 (1933)

On the criminal cases of the 1780s:  
Sarah Maza, Private lives and public affairs: the causes célèbres of Pre-Revolutionary France  (University of California Press, 1993) p.212 [Extracts on GoogleBooks]

Jack Thomas, "Les victimes accusées dans plusieurs causes célèbres à la fin de l'Ancien Régime", in Les Victimes des oubliées de l'histoire, Presses universitaires de Rennes, 2000, p. 75-86

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