Voltaire, Calas and the "black legend"

In the 21st century Voltaire's defence of Jean Calas has once again become a potent  symbol of the struggle for toleration and liberal values.  This has given the case a high profile, but has not always contributed a great deal to a the historical understanding of events.

One historian who has attempted a more balanced view of Voltaire's battles with legal authority is Benoît Garnot, until 2016 Professor of Modern History at the University of Bourgogne.  Professor Garnot is the author of an impressive number of studies of the French legal system under Ancien Régime, which focus on how it actually functioned in practice.  He refutes the idea that the judiciary was simply an instrument of royal coercion and writes of the "bons juges d’Ancien régime". His key concept is that of a compromise between judicial institutions and society at large, "une "justice négociée" (See the article "Benoît Garnot" in Wikipédia.fr).

In 2005, Garnot published a study of Voltaire, the title of which asks provocatively whether Voltaire might be guilty of "une imposture intellectuelle".

C’est la faute à Voltaire...Une imposture intellectuelle?  (Belin, 2005)

Professor Garnot sees Voltaire as the chief architect of the  "black legend" of  the French judiciary, perpetuated into modern times by Michel Foucault.  For those of us who are fond of Voltaire, Professor Garnot's polemic can seem unnecessarily unkind: Voltaire was not merely mistaken but guilty of "intellectual imposture"; his writings present "une image inexacte, voire mensongère"  (One gets the impression that Garnot has quite enjoyed knocking the idol off his pedestal; in 2017 he wrote a piece asking provocatively whether freedom to criticise now applies "en terre voltairienne.").  

The various chapters of the book examine Voltaire's competence as a legal commentator, the nature of his interest in legal affairs and his specific opinions on procedures, punishments and the magistrature.  I haven't been able to get hold of a copy, but here is a summary based on a review article in AHRF:

Voltaire's competence (p.13-27)
It comes as no surprise to learn that Voltaire was not in the slightest bit interested in the law.  In a library of 3,281 volumes, he possessed only 31 works on jurisprudence and made marginal notations in only sixteen (p.17).He almost never cited jurisconsults in his correspondance, not even  the collections of causes célèbres (p.18).  The sole "oasis" in this juridical desert was his enthusiasm for Beccaria (p.25).  Nonetheless, his dismissal of legal niceties cannot be excused by simple ignorance   - he was, after all, the son of a receveur des épices and himself a former law student.  Rather he was guilty of a disingenuous strategy aimed at manipulating public opinion against judicial "subtleties".

Voltaire's bias (p.29-53)
His interest in judicial affairs came late in life, and was confined to cases which affected him personally or, as with the Calas case, offered him the opportunity to combat religious fanaticism.  The attack on "l’infâme" was his prime interest and only incidentally broadened into a general indictment of royal justice.

His view of the legal system (p.55-78)
Professor Garnot examines Voltaire's specific criticisms of  penal procedure:  the system of proofs,  the wide initiative given to judges, the use of monitoires, the rules for contempt of court, the high price of justice (p.55)  None of his criticisms can be sustained in detail; they are "at best approximate, at worst erroneous" (p.55). He was guilty  of exaggeration, and deliberate disregard for details which would spoil his rhetoric.

Voltaire's "philosophy of punishment" (p.79-100)
Voltaire did not call into question the legitimacy of punishments handed down by royal authority or dictated by moral necessity, though he did follow Beccaria in denying the deterrent value of the death penalty.  Once again, he was not consistent or accurate in his depictions of execution and torture.  The arguments he employs against torture, a "punishment before punishment" are the longstanding ones, which go back to the days of  Montaigne. 

Voltaire's criticism of the magistrature (p.104-114)
Professor Garnot repudiates Voltaire's observations regarding the venality of judicial offices and the incompetence of their holders.  In fact, legal office was accessible to the averagely wealthy bourgeoisie.  The rigours of co-option and the different levels of court ensured a certain professionalism;  Voltaire himself, was often admiring, even sycophantic towards the magistrates of the Parlements. 

Prix de la justice et de l'humanité  (p.115-130)
In the final chapter, Garnot insists again on the pragmatic character of Voltaire's interest in justice.  Nonetheless, he concedes that Voltaire's most considered treatment,  La Prix de la justice et de l'humanité of 1777, shows an evolution in his thought: less preoccupation with religion, discussion of the laws of different countries, concern for the status of women, and a certain qualified optimism about the French system.

The book concludes by indicting a "double imposture" against the judicial system of the Ancien régime -  by Voltaire himself and  by posterity which has uncritically repeated his arguments. 

Benoît Garnot, C’est la faute à Voltaire… Une imposture intellectuelle? Belin, 2005)

Reviewed by Claude Coquard AHRF, oct-dec 2009:
https://journals.openedition.org/ahrf/11569 

Voltaire et l’affaire Calas:  les faits, les interprétations, les enjeux, (Hatier, 2013)

In 2013 Benoît Garnot returned to the theme of Voltaire's legal competence in his study of the Calas affair.  This short book is part of a new, popular series launched in 2013 by Hatier called "récits d'historien", aimed, they say,  particularly at school teachers.  Having given an account of the trial and rehabilitation of Calas, Professor Garnot  goes on to consider the culpability of the magistrates of Toulouse.

The Judicial system in question - the problem of "intimate conviction" (p.75-83)

Did the judges deliberately condemn an innocent man? Were they mislead by witnesses, or by erroneous experts?  Or the judicial process itself predisposed to error?  For some contemporaries, Voltaire among them, it was the inquisitorial system itself which was at fault.

According to Professor Garnot, the situation was more complicated.  Problems arose from a gulf between theory and practice.  Paradoxically, far from being biased against the innocent,  the inquisitorial system was widely perceived as too demanding to guarantee conviction of the guilty. To convict in capital crimes "full proof" was required - a confession, two eye-witnesses, or incontrovertible physical evidence.  In practice, cases usually relied on witness statements which, even with oaths and precautions, were difficult to establish with certainty.  The practitioners of the time was aware of this.  Many authors, starting with Montesquieu, considered that two witness statements were an insufficient guarantee of guilt but must be accepted if conviction were to be possible.  Where proofs were uncertain, judges were theoretically forced to hand out lesser penalties.  However, it became more and more common in practice for judges to rely on their own opinion, formalised by the decision to admit a given proof.  Whilst lower courts were still obliged to adhere to the strict letter of the law, it became accepted that magistrates in the Parlements might act on their consciences in the interests of equity. This essentially anticipated the system  adopted by the Revolution which placed reliance on the "intimate conviction" of the judge.

It can be argued that an arbitrary element had been introduced which was not in fact sanctioned by strict procedure.  This was so in the Calas case. The formal legal proofs did not indicate guilt:  there was no confession, no direct witnesses, no certain evidence;  there were only strong presumptions, which pointed to a light sentence or total acquittal. However, the judges felt that the weight of evidence against suicide was such that they were justified in imposing the death penalty.  Professor Garnot concludes that, although they may have been in error, they were not exceeding their competence:  Calas was not in fact subject to the sort of judicial lynching Voltaire's presentation suggested.

Voltaire and the "legende noire"  (p.83-92)
In this section, Professor Garnot returns to Voltaire's influence in creating a distorted view of the legal system  - "une légende noire encore trop vivace" (p.90) The second half of the 18th century, particularly the decade before the Revolution, saw an escalating number of mistaken convictions, which were overturned after publicity campaigns along the lines Voltaire had pioneered in the Calas affair.  Voltaire himself was involved in the cases of Sirven, Montbailli, Lally-Tollendal and Martin.  He also campaigned on behalf of La Barre who was executed in Arras in 1765 for impiety and sacrileges, although this rehabilitation did not take place until the Revolution.  The cases after Calas allowed Voltaire to develop his criticisms of the judiciary and plans for reform which were neither original nor very coherent.

Anon, Voltaire promises his support to the Calas family.  Musée Antoine Lécuyer, Saint-Quentin.  

Benoît Garnot uses this picture as the front cover of his book.  He comments: 

This painting is part of the legend created for the glory of Voltaire after the Calas affair.  In reality, such an interview between Voltaire and the Calas family never took place.  The two children would have been fifteen and nineteen by the time of the events.  To move the public, the painter has taken liberties with historical truth which, to say the least, are excessive.

In Professor Garnot's view Voltaire was guilty of  a "worrying intellectual legerity", a tendency to exaggerate, even manipulate facts, above all to transform isolated cases into archetypal examples of judicial error. His lack of technical competence was shown, above all, in his condemnation of magistrates' arbitrary powers.  According to Voltaire judges were in a position to impose whatever penalties they deem fit, without sanction; in reality judges were allowed only legitimate liberty to pronounce a penalty fitted to the crime and circumstances.   Decisions were made with reference to legislation and precedent, with due consideration for the available punishments. He misrepresented the Toulouse magistrates; they were not the "druides barbares" he painted, they believed that they were themselves fighting against fanatics, who were guilty of a particularly perverted crime. 

Far from being normative, the judicial scandals were exception - hence the furore they caused. In fact the reality was very different. The system was adapted to conciliation rather than repression. It allowed for private compromises, usually financial compensation.  In the majority of court cases penalites were light and the acquittal rate high (43% of verdicts in the parlement of Rennes between 1785 and 189) (p.90-91)

 Benoît Garnot concludes that it is questionable that the Calas scandal mirrored a wider dysfunction in 18th-century French society.  The affair was exceptional, both from a legal and a religious point of view.  The judicial error arose because the magistrates failed to respect the need for proofs "clearer than the light of day" to arrive at a condemnation.  Instead they relied on the more dangerous recourse to intimate conviction which was becoming more and more common in  legal practice.  By the time of the Calas case a sentiment of religious tolerance was already widespread.  The events of 1761-62 represented a tragic anachronism. (p.107)

References

Benoît Garnot, C’est la faute à Voltaire… Une imposture intellectuelle ? (Belin, 2005)

Reviewed by Claude Coquard AHRF, oct-dec 2009:
https://journals.openedition.org/ahrf/11569 

_____,  Voltaire et l’affaire Calas:  les faits, les interprétations, les enjeux, Hatier, 2013

______, "De la liberté de critiquer en terre voltairienne" AHMUF website, Article of 27.11.2017  
https://ahmuf.hypotheses.org/files/2017/11/Garnot-Droit-de-r%C3%A9ponse-De-la-libert%C3%A9-de-critiquer.pdf