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

https://archive.org/details/ahistorycontine01mittgoog/page/n442

The text of Lamoignon's speech is reproduced in:

Histoire parlementaire de la Révolution française, vol.i p.239

https://gallica.bnf.fr/ark:/12148/bpt6k28867s/f243.ima

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:

http://www.senat.fr/fileadmin/Fichiers/Images/evenementiel/CATAL_EXPO_BAT_3.pdf

Dupaty and the case of the "Trois roués"

Charles-Marguerite Dupaty, engraved by Tardieu,[Bibliothèques de Bordeaux]
http://bibliotheque.bordeaux.fr/in/faces/
details.xhtml?id=h::BordeauxS_B330636101_DP080_053

An Enlightened lawyer:  Charles-Marguerite Dupaty

The Bordeaux lawyer Charles-Marguerite Dupaty (1746-1788) was the most prominent figure in the campaign for legal reform in the 1780s and one of the very few magistrates to openly criticise the 1670 Criminal Ordinance.  He was an archetypal man of  the Enlightenment.  On first taking up office as Advocate-general in the Parlement of Bordeaux in 1768, at the tender age of twenty-two, he had written immediately to Voltaire, enclosing a medal of Henri IV, and earning himself a commendation from the patriarch as an "idolator of toleration".  He subsequently gained prominence as leader of the opposition to Maupeou within the Bordeaux Parlement.  During his resulting exile he took the opportunity to visit Ferney and to begin the systematic study of criminal law.  He marked his re-establishment in post in May 1775 with a prevocative discours de rentrée in which he pledged himself to the cause of "oppressed innocence".  In 1778 Dupaty was named président à mortier but, due to the stubborn resistance of his conservative fellow magistrates, he was never able to take up this office. (The obdurate First President was even exiled to Meaux where he consoled himself by entertained in style.)

Torture in practice

"....And these are the people who call Britons the savages of Europe."
James Saint-John, 1787


It is easy to find lurid descriptions of torture instruments on the internet, but less easy to discover what was actually in use in 18th-century France.  The following is again taken from Charles Beriat-Saint-Prix's study of 1859.   Most  later 19th-century writers simply repeat his research; and his basic sources have not been superseded.  He assures us that, although not all the documents date from the reign of Louis XVI, the methods of torture were all still in use in 1788. There was a Baroque profusion of different practices. James Saint-John, an Irish visitor to France in 1787, remarked that that every town had its own variety of torture,  "as if they delighted in making experiments of every kind of torment it were possible to inflict on their fellow creatures."(Letter reproduced by Geri Walton on her blog, see references)  Most were variants of what was euphemistically called "extension" , either the rack or the estrapade where the subject was hoisted into the air with his feet weighted.  However, there were other more inventive practices -foot roasting, applying boiling oil, water torture, even sleep deprivation.  

Torture in theory

Foreign nations judge of France by its spectacles, romances, and pretty verses; by opera girls who have very sweet manners, by opera dancers who possess grace; by Mademoiselle Clairon, who declaims delightfully. They know not that, under all, there is not a more cruel nation than the French.
Voltaire, Questions on the Encyclopedia, 1771


The rationale of torture

Torture survived so long in Ancien régime France, through institutional inertia certainly, but also because it formed an integral part of the criminal law as laid down by the great Ordinance of 1670. 

Torture was not a penalty but part of the system of proofs. 

Judges resorted to torture in two, quite distinct, contexts:  in the course of a trial in order to force a confession [question préparatoire] and after judgment to compel the condemned criminal to reveal his accomplices [question préalable or définitive]   Both could be categorised as "ordinary" or "extraordinary" according to their severity.

The question préparatoire  found its logic in the hierarchy of "preuves légales." In order to pronounce guilt in a capital case, the evidence had to be certain, according to the addage, "as clear as daylight".  This meant something quite precise and technical. "Full proof" required either  a confession - but a confession supported by evidence - or the deposition of two eye-winesses.  A single witness was only a "half-proof".  The problem arose when the evidence against the accused was strong but not absolutely decisive.  At this point a confession exacted by torture could seal a conviction.  According to the rubric, in order to resort to torture,  a judge must have presumptions which were "violent" or "vehement";  a single witness, material evidence or strong moral indication.  When the culpability of the accused was probable, torture offered the possibility of turning quasi-certitude into total certitude.

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 gave 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

A Cause célèbre: the case of Victoire Salmon

In the 1780s the inequities of French criminal law were highlighted by a number of notorious miscarriages of justice, in which progressive lawyers like Lacretelle, Lacroix and Dupaty appealed their cases directly to public opinion through the publication of judicial memoirs. In  this immediate pre-Revolutionary period, there was a new willingness to defend the ordinary and unprivileged members of society.  One such, whose case greatly engaged Parisian sensibilities, was that of an uneducated servant-girl called Marie-Françoise-Victoire Salmon, who was condemned to death for poisoning an elderly man in Caen in 1781.

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

Beccaria 

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.

Criminal procedure in 18th-century France

I started out on this post, rather naively, by looking for some illustrations of 18th-century criminal trials.  It took me a while to realise that no such thing existed; there were no hearings in open court in  Ancien Régime France, no adversarial process, no defence counsels.  Proceedings and deliberations took place behind closed doors - though increasingly under the gaze of public curiosity.   From the 1760s onwards the penal system began to come under criticism from Enlightened theorists and reformers eager to highlight abuses of justice.  Nonetheless, it had its internal logic and, like other aspects of 18th-century French administration, was often tempered by sensible and humane practitioners.

Criminal law had been codified under Louis XIV in the great 1670 Ordinance of Saint-Germain-en-Laye, which clarified and consolidated procedures sanctioned by venerable tradition  (partly laid down by the Ordinances of 1498 and 1539).  The system is defined as "inquisitorial", that is it was based on the establishment of objective "legal proofs" to guilt.  This was supposed to counter personal bias of the judges, though in later years the system came to seem unacceptably weighted against the accused.

Original sacs à procès from the Parlement of Toulouse
http://archives.haute-garonne.fr/recherche_inventaires/notices-autorite/parlement-toulouse.html

 Of several categories of  courts with general competence over criminal cases, the main royal courts of first instance were the bailliages (in northern France) and the sénéchaussées (in the west and south). These comprised some 400  tribunals in all by the end of the Ancien Régime.  Officials consisted of a presiding  magistrate (the bailli or sénéchal), two or more judges, a  representative of royal government - the procureur du roi or procureur-fiscale, often seconded by an avocat du roi -  and a greffier or court clerk. (No.6).  The Parlements and Conseils souverains were courts of final appeal. Capital cases were automatically referred to them. The criminal court was the Tournelle, so-called because magistrates served by rotation.  In Paris it comprised three présidents à mortier, twelve councillors of the Grand'Chambre and four drawn from the other chambres (9-12)

In addition, a plethora of courts judged specialised crimes, such as smuggling and peculation.

In this age of improvement, the courts often boasted new imposing buildings and splendid judicial attire.  The Judges of the Parlement of Paris, were especially intimidating in their  red robes; whilst  black judicial habits - often fine black velvet -  singled out the barristers.

Guillaume Cammas, Les capitouls, the judges of Toulouse's primary court, in 1752-1753, 
Archives de Toulouse.

Here, broadly, are the stages in the judicial process - taken mostly from Des tribunaux et de la procédure du grand criminel au XVIIIe siècle, a well-researched and  accessible old account,  published by Charles Berriat-Saint-Prix  in 1859.  The text concerns offences categorised as,"les affaires du grand criminel", that is crimes which attracted the penalties of execution and other physical punishment, or infamy.

Information:  Proceeding were initiated d'office or, more usually, as result of a private complaint. In the case of a flagrant délit, when the accused was caught in the act, one of the first steps was for the judge to go  the crime scene in order to examine the material evidence, the corps du délit.  He would be assisted by a clerk and accompanied by the procureur du roi. Doctors and surgeons were consulted if there was a corpse or a wounded victim; physical items and any documents would be verified and collected. The judge would affix his seals to secure the evidence. (48)

Interrogation on the spot - engraving of 1803  by François Bonneville
illustrating the life of the poisoner Henri-Augustin Trumeau.

First interrogation:  The accused was now brought before the judge, in the case of a  flagrant délit in the first convenient location, otherwise in the judical chamber or in the gaol. The interrogation was supposed to take place within 24 hours of the crime.  According to the commentator Daniel Jousse, this requirement was often neglected; the accused waited eight days or more before being heard [Justice criminelle, vol.2, p.254]. (49)  Serious delays were by no means rare. In the notorious case of the "Trois roués" in the 1780s the men languished in prison for two years before their trial even began.

The oath:  The accused was first made swear an oath to tell the truth;  laity lifted their hand, ecclesiastics put theirs on their chest (50).   It comes as a surprise to learn that, in the Conferences which preceding the Ordinance of 1670, Lamoignon, the president of the Parlement of Paris, had opposed the imposition of an oath, on the grounds that the accused should be free to deny the truth in order to save his life (51).  Nearly a hundred years later Beccaria was to make much the same point.

A confession at this stage dispensed with the need for information or any further proofs.

According to Jousse, a Judge might be called upon to exercise great art in his interrogation. If the accused was deceitful or stubborn, he should overwhelm him with queries,  twist his replies and question him indirectly so that he does not understand the answer that is required.  He should avoid tricks and specious arguments, but "can use verbal dexterity, even a sort of surprise and feign, to discover the truth and draw the criminal into confession". [Justice criminel, i, p.271-74] (52)

Later critics feared, with good reason, that the proceedings were stacked against the ill-educated and inarticulate defendants, faced with the commanding presence of magistrates brought up on lifetime of rhetoric.


Depositions by witnesses:   Witnesses were constrained by the threat of fines or imprisonment to appear (57)

Monitoire asking for proofs 
against Paul Servin

Public appeals for witnesses - les monitoires -  were employed for "serious crimes and public scandals" or if evidence was difficult to come by. The judge requested the monitoire be read out from the pulpit in all the parishes of a diocese.  Individuals were constrained to reveal what they knew to the priest, on pain of excommunication.  It was a system which was to prove highly detrimental in the Calas and La Barre affairs (60).

In  serious cases witnesses were required to appear personally to affirm and add to their testimony (le récolement) They could also be confronted by the accused, who were given the opportunity to voice their objections (les reproches). As Voltaire complained, this proceeding was not always carried out.

Referral to the Procurator:   Once the evidence had been collected, the Procurator, as "public minister", returned his conclusions. So as not to exercise undue influence, these remained secret until the judgment; there was no requirement for him to justify his decision.  The Procurator had access only to the information and was debarred from taking part in the proceedings directly.  The unfortunate defendant was thus deprived of any opportunity to sway an outside magistrate (62-63)

Torture:  In cases of strong presumption of guilt, preliminary torture (la question préparatoire) could be used in order to force a confession.  To be valid, any admission had to be subsequently repeated, without physical duress.

Final interrogation:  This was the famous interrogation "sur la sellette".  The accused was made to sit on a low wooden stool deliberately designed to humiliate. [Jousse, Justice criminel, vol.2, p.265]

At this point he might be permitted, at the discretion of the judge, to present his counter case, les faits justificatifs.

Counsel was allowed only in cases which did not involve crime against the person - fraud, bankruptcy, forgery and peculation of various sorts -  where there might be a need to assemble evidence and advise on the law.  In capital cases recourse to defence lawyers was absolutely forbidden.

In 1670 this restriction had been attacked by Lamoignon and Talon, but defended by Pussort, as necessary to establish sure proof. Jousse supplies the logic: Since in criminal trials, no-one can know the facts better than the accused, counsel can only serve  to suggest ways to distort the truth and avoid just punishment. (Nouveau commentaire sur l'ordonance criminel,vol.1, p.279) (75-76)

As Voltaire remarked, only extortioners, fraudsters and bankrupts were allowed the services of a lawyer.

Appeal:  Appeal to the presiding Parlement or Conseil was automatic for all cases attracting execution or other corporal penalties, including banishment (82). The prisoner would be transferred to the prison of the Parlement, the information would be considered and the accused again interrogated sur la sellette. They might also be allowed to present les faits justificatifs. (85).

Arrêt of the Parlement of Paris condemning
an accomplice of Cartouche in 1722

Judgment. For serious crimes, where the interrogation finished in the afternoon, judgment would be postponed to the following morning to ensure due deliberation. Jousse included a whole table of crimes that could not be judged until the morning (77).

Judgments were given according to number of set formulae (78):

It was often complained that the texts of the judgments did not always include the reason for the condemnation.  This was one of the first reforms put in place by the Constituent Assembly.

The judgment was not pronounced but read to the accused person in prison.  In cases of capital crimes, the accused was made to kneel to receive the verdict (86)  Paradoxically, although the grades of proof were minutely laid down, the judge had considerable discretion over what penalties he imposed.

Execution:  The sentence was carried out on the same day, or, in the case of execution or other corporal penalty, as soon as possible after the condemned was returned to the place of condemnation. Since the Parlements of Paris and Toulouse had vast jurisdictions, this could add significantly to the ordeal;  the rapist Benoît Bard, for example, was made to travel from Paris to Riom - over 400 kilometres - to be hanged in April 1780 (87)

Before execution, the condemned could be subjected to further torture (la question préalable) to compel them to reveal their accomplices.

In certain cases - as with the Chevalier La Barre's companions - executions could be carried out in absentia. In cases of treason, armed rebellion, duelling, suicide,  the sentence could be carried out on dead bodies (which were salted for the purpose!) .(133-134)


Reference

Charles Berriat-Saint-Prix, Des tribunaux et de la procédure du grand criminel au XVIIIe siècle jusqu'en 1789 avec des recherches sur la question ou torture (Paris 1859), p.38-
https://books.google.co.uk/books?id=FtkzAQAAMAAJ&pg=PA36#v=onepage&q&f=false