The Execution of Damiens (1757): a symbol of torture under the Ancien Régime
Source : The collection of the National Museum of Prisons (France)
Decision of the Parliament of Paris, March 26th 1757 and engraving of torture (collection of the National Museum of Prisons)
Robert-François Damiens, an unemployed servant, stabbed king Louis XV on January 5th, 1757, as the king left his castle in Versailles. Convicted of “patricide against the king” (regicide), he was condemned by a decision of the Parisian Parliament to execution by drawing and quartering at Place de la Grève. The torture that was inflicted would later become, in the eyes of historians and other contemporaries, the symbol of torture under the Ancien Régime, a symbol even more poignant given its juxtaposition with the Enlightenment. Unsurprisingly, Michel Foucault evoked Damiens’ public execution in the first pages of Discipline and Punish to emphasize the novelty of prison in comparison with the penalties of the Ancien Régime; Foucault saw this event as an archetype of the tortuous penalties inflicted on the criminal body, a sophisticated way of drawing inspiration from the old law of retaliation. The following citation has become a classic:
"Finally, he was quartered," recounts the Gazette d'Amsterdam of 1 April 1757. "This last operation was very long, because the horses used were not accustomed to drawing; consequently, instead of four, six were needed; and when that did not suffice, they were forced, in order to cut off the wretch's thighs, to sever the sinews and hack at the joints...
"It is said that, though he was always a great swearer, no blasphemy escaped his lips; but the excessive pain made him utter horrible cries, and he often repeated: 'My God, have pity on me! Jesus, help me!' The spectators were all edified by the solicitude of the parish priest of St Paul's who despite his great age did not spare himself in offering consolation to the patient."
Bouton, an officer of the watch, left us his account: "The sulphur was lit, but the flame was so poor that only the top skin of the hand was burnt, and that only slightly. Then the executioner, his sleeves rolled up, took the steel pincers, which had been especially made for the occasion, and which were about a foot and a half long, and pulled first at the calf of the right leg, then at the thigh, and from there at the two fleshy parts of the right arm; then at the breasts. Though a strong, sturdy fellow, this executioner found it so difficult to tear away the pieces of flesh that he set about the same spot two or three times, twisting the pincers as he did so, and what he took away formed at each part a wound about the size of a six-pound crown piece.
"After these tearings with the pincers, Damiens, who cried out profusely, though without swearing, raised his head and looked at himself; the same executioner dipped an iron spoon in the pot containing the boiling potion, which he poured liberally over each wound. Then the ropes that were to be harnessed to the horses were attached with cords to the patient's body; the horses were then harnessed and placed alongside the arms and legs, one at each limb.
"Monsieur Le Breton, the clerk of the court, went up to the patient several times and asked him if he had anything to say. He said he had not; at each torment, he cried out, as the damned in hell are supposed to cry out, 'Pardon, my God! Pardon, my Lord.' Despite all this pain, he raised his head from time to time and looked at himself boldly. The cords had been tied so tightly by the men who pulled the ends that they caused him indescribable pain. Monsieur le [sic] Breton went up to him again and asked him if he had anything to say; he said no. Several confessors went up to him and spoke to him at length; he willingly kissed the crucifix that was held out to him; he opened his lips and repeated: 'Pardon, Lord.'
"The horses tugged hard, each pulling straight on a limb, each horse held by an executioner. After a quarter of an hour, the same ceremony was repeated and finally, after several attempts, the direction of the horses had to be changed, thus: those at the arms were made to pull towards the head, those at the thighs towards the arms, which broke the arms at the joints. This was repeated several times without success. He raised his head and looked at himself. Two more horses had to be added to those harnessed to the thighs, which made six horses in all. Without success.
"Finally, the executioner, Samson, said to Monsieur Le Breton that there was no way or hope of succeeding, and told him to ask their Lordships if they wished him to have the prisoner cut into pieces. Monsieur Le Breton, who had come down from the town, ordered that renewed efforts be made, and this was done; but the horses gave up and one of those harnessed to the thighs fell to the ground. The confessors returned and spoke to him again. He said to them (I heard him): 'Kiss me, gentlemen.' The parish priest of St Paul's did not dare to, so Monsieur de Marsilly slipped under the rope holding the left arm and kissed him on the forehead. The executioners gathered round and Damiens told them not to swear, to carry out their task and that he did not think ill of them; he begged them to pray to God for him, and asked the parish priest of St Paul's to pray for him at the first mass.
"After two or three attempts, the executioner Samson and he who had used the pincers each drew out a knife from his pocket and cut the body at the thighs instead of severing the legs at the joints; the four horses gave a tug and carried off the two thighs after them, namely, that of the right side first, the other following; then the same was done to the arms, the shoulders, the arm-pits and the four limbs; the flesh had to be cut almost to the bone, the horses pulling hard carried off the right arm first and the other afterwards.
"When the four limbs had been pulled away, the confessors came to speak to him; but his executioner told them that he was dead, though the truth was that I saw the man move, his lower jaw moving from side to side as if he were talking. One of the executioners even said shortly afterwards that when they had lifted the trunk to throw it on the stake, he was still alive. The four limbs were untied from the ropes and thrown on the stake set up in the enclosure in line with the scaffold, then the trunk and the rest were covered with logs and faggots, and fire was put to the straw mixed with this wood.
"...In accordance with the decree, the whole was reduced to ashes. The last piece to be found in the embers was still burning at half-past ten in the evening. The pieces of flesh and the trunk had taken about four hours to burn. The officers of whom I was one, as also was my son, and a detachment of archers remained in the square until nearly eleven o'clock.
"There were those who made something of the fact that a dog had lain the day before on the grass where the fire had been, had been chased away several times, and had always returned. But it is not difficult to understand that an animal found this place warmer than elsewhere" (quoted in A.L. Zevaes, Damiens le regicide, 1937, pp. 201-14)”. (from Michel Foucault, Discipline and Punish: The Birth of the Prison. Trans. Alan Sheridan. New York: Vintage, 1977, pp. 3-8)
For more information: See the biographical article on Damiens in Wikipedia.
The Execution of Damiens (1757): drawing and quartering, according to the judgment of conviction
Source : The collection of the National Museum of Prisons (France)
Calas’ sentence (1762): the Catherine wheel
Source : Haute-Garonne Departmental archives (France), Educational Dept.
Death sentence of Jean Calas, March 9th 1762 (Haute-Garonne Departmental archives, Educational Dept.); engraving by Dodd posted on the site Magister. Marc-Antoine Calas, the eldest son of the protestant merchant Jean Calas, hung himself in his father’s house in Toulouse on October 13th, 1761. During this period hostility against Protestants was mounting, and the Calas family’s reluctance to reveal the suicide fed rumors that their son had been murdered by a family member to prevent him from converting to Catholicism. Jean Calas, the father, was put on trial, tortured until confession (which he retracted shortly thereafter), and then executed only one day after being sentenced to death. The death sentence describes the main elements of his torture: he was paraded barefoot in his undergarments (for the crime of parricide), he was forced to make a formal apology, his limbs were broken by the executioner, and then he was put on the Catherine Wheel “to strike terror into the hearts of the cruel”. Finally, after two hours of torture, he was strangled to finish off the agony (this clause was often secret, called the retentum), and the body was put on the stake. This trial was relatively famous at the time, comparable, all things considered, to the fame that the Dreyfus Affaire would have at the turn-of-the-century. Voltaire notably denounced the “religious fanaticism” which, according to him, lay at the heart of this judicial error. He had the sentence annulled and Jean Calas posthumously exonerated of all charges in 1765. Voltaire’s Traité sur la tolerance, written in 1763, begins with the story of this trial.
The judgment of conviction of Calas (1762): the Catherine wheel (continued)
Source : Haute-Garonne Departmental archives (France), Educational Dept.
The pyre for the Chevalier de La Barre (1766)
Source : http://www.atheisme.org/
Statue dedicated to the memory of the Chevalier de La Barre
The first statue of the Chevalier de la Barre was inaugurated in 1905, thanks to the initiative of a committee of “Freethinkers”, in front of the Sacré-Coeur church in Montmartre, Paris. In 1926, it was moved to Place Nadar (Paris), and fifteen years later, in 1941, it was destroyed and melted by the Vichy regime. On February 24th, 2001, a new statue made by Emmanuel Ball and funded by subscription was inaugurated. This second statue represents the Chevalier de la Barre smiling, his hands in his pockets, a hat on his head, as he would have been as he refused to salute a Roman Catholic religious procession, his supposed crime, in Abbeville in July 1765. He was also accused of having sung obscene songs and of making anti-religious statements with two accomplices, and the discovery of a copy of Voltaire’s Dictionnaire philosophique when his house was searched clinched the charges for the judges of Abbeville. With the blessing of the Parisian Parliament, they condemned the 19-year-old nobleman to be burned at the stake after his hand had been cut off, his tongue cut out, and his body completely decapitated. Voltaire’s book was thrown onto the Chevalier’s burning stake on July 1st, 1766, and the author, implicated, took up the defense of the accused and wrote Relation de sa mort, an essay on the fact that the trial was unfairly swayed by religious fanaticism and torture. Extract from the Relation de la mort du Chevalier de La Barre (The death of the Chevalier de La Barre), by M. Cassen, attorney to the council: “Yet the judges of Abbeville, either by ignorance or unimaginable cruelty, condemned the young Etallonde of 18 years: 1° to suffer the torture of his tongue being amputated at the root in such a way that if the victim does not present his tongue himself, it is pulled out with iron pincers. 2° His right hand was to be cut off at the doorway of the main church. 3° Next, he was to be taken in a cart to the Place du marché, be attached to a pole with an iron chain, and be burned with a small fire. The sir Etallonde luckily saved his judges from the horror of this execution by escaping. The chevalier de La Barre was still in their hands, and they had the humanity to lighten the sentence by deciding that he would be decapitated before being thrown into the flames. Yet if they lightened the sentence in one way, they increased it in another, by making him suffer through the question ordinaire (lesser torture) and the question extraordinaire (greater torture) to make him name his accomplices – as if the extravagances of young men, the rash words for which there was no longer even a trace, were a federal crime, a conspiracy. This surprising sentence was declared on February 28th of this year 1766. The jurisprudence of France was in such chaos, and consequently the ignorance of the judges was so vast, that those who made this decision based it on Louis XIV’s 1682 declaration on the so-called sorcery and real poisonings committed by la Voisin, la Vigoureux, and two priests named Vigoureux and Le Sage. This 1682 order prescribed the death penalty for sacrilege and superstition; but this law did not state that magic and sorcery, that is to say those that exploit the gullibility of the people by calling themselves magicians, were at the same time profane and poisoners: here is the letter and the spirit of the law. This law applies to criminals who are harmful to others, and not to vain imprudent words, to light statements, or to nonsense committed without any premeditated motive, without any plot, without even any public scandal. The judges of the town of Abbeville thus visibly sinned against the law as much as against humanity by condemning a gentleman and a son of an honest family to such horrible tortures – and both of them at an age where their inattention could only be considered a mistake that a year in prison would have corrected. There was so little evidence of charges that the judges, in their sentence, used the vague and ridiculous terms used by the villagers themselves: “for having sung abominable and vile songs against the virgin Mary, the saints, and female saints”. Notice, sir, that they didn’t sing these “abominable and vile songs against the saints and female saints” in front of anyone except a single witness, who they could have legally disqualified. Are these epithets worthy of the magistrates? An old drinking song is not, after all, anything more than a song. It’s human blood that is carelessly thrown about, it’s torture, it’s the torture of having one’s tongue torn out, of having one’s hand cut off, of bodies thrown in the flames, which is abominable and vile. The jurisdiction of the seneschal of Abbeville comes from the Parisian parliament. The chevalier de La Barre was transferred there, and his trial was conducted there. Ten of the most famous lawyers of Paris signed a report which showed the illegal nature of the procedures, and the indulgence that should be shown to minors who are neither accused of conspiracy nor of premeditated crime; the public prosecutor, well-versed in jurisprudence, decided to overturn his sentence; there were twenty-five judges, of which ten agreed with the public prosecutor; but the singular circumstances, which I can’t put down in words, forced the fifteen others to maintain this surprising sentence on June 4th, 1766. Is it possible, dear sirs, that, in a civilized society, five voices against twenty-five voices are enough to take away the life of an accused man, and quite often, an innocent accused man? Such cases should require unanimity; they should require at least the agreement of three quarters of the votes to apply the death penalty; still, in this last case, a quarter of the judges who favored mitigating the sentence should, in the opinion of good-hearted men, have over ridden the three-fourths of cruel bourgeois, who play with the lives of their fellow citizens with impunity, without society having the slightest benefit. All of France was horrified by this sentence. The chevalier de La Barre was sent back to Abbeville to be executed. The archers who took him were told to take a circuitous route: it was feared that the chevalier de La Barre would be liberated on the road by his friends; but that is what we should have hoped for more than feared. Finally, on July 1st of this year, this all-too-memorable execution occurred in Abbeville: but first, this child was subjected to torture. Here is the type of tormenting he was subjected to. Boards were fixed around his legs, pieces of iron and wood were forced between the planks and his knees, and his bones were broken. The chevalier passed out, but he came to soon after thanks to several alcoholic liquors, and he declared, without complaining, that he had no accomplices. He was given a Dominican, a friend of his aunt the Abbess with whom he had often dined in the convent, so that he could confess. This good man cried, and the chevalier consoled him. They were served dinner. The Dominican could not eat. “Take a bit of food, the chevalier told him; you’ll need as much force as me to be able to stand the spectacle that I will give. (Let’s have a coffee, the chevalier de La Barre said after their peaceful meal, several hours before his execution, it won’t prevent me from sleeping.)” The spectacle was, in fact, horrible: five executioners had been sent from Paris for this sole event. I can’t say whether they cut off his tongue and hand (the parliamentary decision only stated that his tongue would be cut, which meant that it would be pierced with a hot iron. When the chevalier de La Barre refused, the executioners were not heartless enough to want to execute him to the letter, so they simulated the action). All that I know via the letters of Abbeville, is that he climbed up to the gallows with a peaceful courage, without complaint, without anger, and without ostentation: all that he said to the clergyman who attended can be summed up in these words: “I never thought that a gentleman could be killed for so little.” (trans. P. Bass).
List of capital punishments in 1789
Source : M. de Pastoret, Des lois pénales, Paris, 1790, tome II, p. 120-133.
Extract of Penal Law, by M. de Pastoret, master of requests, of the Académie des Inscriptions et Belles-Lettres (French society of the humanities), etc., Paris, A, Buisson, 1790, tome II, 4th part, chapter XXI. Abuse of the death penalty in French jurisprudence, p. 1 – 133.
Claude-Emmanuel de Pastoret (1755-1840), a lawyer and translator born in Marseille, published Traité des lois pénales (Penal law) in 1790. A supporter of Beccaria, he criticized the exemplary nature of capital punishment (its abolition in Tuscany didn’t increase the number of crimes) and declared himself a supporter of the complete abolition of the death penalty, with the exception of cases of conspiracy or treason. The long list of crimes punished by death that he published puts fear into the breast of the reader: 115 crimes led to execution! This constituted a true condemnation of the royal penal code, which was even more severe when it came to “crimes” against religion and those of forgery. This high number also bears witness to the fact that the legislation was accumulated over time without codification or organization – the highly-detailed punishments often reiterated one another in ways that a contemporary legislator could summarize in a sole article. In addition, many of the criminal actions seem outdated, such as n°28 on the fortification of castles, and would probably not have led to any criminal charges. In fact, historians of the modern period underline the downward trend in the number of executions during the eighteenth century, particularly after 1750. The crime de la plage (kidnapping) (n°61) refers to abduction, particularly (but not exclusively) of children and also concerns those who keep free men in captivity, for example galley slaves who had already finished serving their time. This crime was theoretically punished by death or the galleys, but only because of jurisprudence, because no law existed on the subject. Spiritual incest (n°70) refers to sexual relationships between a godfather and goddaughter, or between godmother and godson, or between a godfather and a godmother of the same goddaughter. Although prohibited by the Church, royal law did not define it as indictable and the courts did not pursue this sort of case (details provided by Professor Benoît Garnot, Université de Bourgogne).
For more information: See the biography of Pastoret on the website of the Académie française.
List of capital punishments in 1789 (end)
Source : M. de Pastoret, Des lois pénales, Paris, 1790, tome II, p. 120-133.
Jean-Jacques Rousseau: “kill the guilty”?
Source : Rousseau, Le Contrat social, 1762, Book 2, chapter 5, p. 219-221.
Rousseau, Le Contrat social, 1762, Book 2, chapter 5, p. 219-221.
Extract from Jean-Jacques Rousseau, The Social Contract, 1762, Book 2, chapter 5, p. 219-221. Le Contrat Social (The Social Contract), the most well known work of Jean-Jacques Rousseau (1712-1788) was published in 1762. It develops a political theory that legitimates political authority by the general will of the people, source of the only true sovereignty. Forced to reconcile individual liberties with the necessities of life in society and insisting on the values of liberty and equality, his philosophy would later inspire the Déclaration des Droits de l’Homme (Declaration of the Rights of Man and of the Citizen)and the politics of the French Revolution. Notably, the chapter “On the rights to life and to death” includes the oft-cited phrases on how those who are “rebels and traitors to the motherland …make war” with the country. Thus, “one must die, and when someone guilty of this crime is killed, it is less as a citizen than as an enemy”. During parliamentary debates on capital punishment at the Assembly of 1791 (as in 1908), this passage was referenced by representatives favorable to capital punishment, pleased to cite an Enlightenment philosopher to their advantage while abolitionists relied on the philosophy of the eighteenth century that favored human rights. All the same, immediately following the chapter in question, Rousseau distances himself from such statements by limiting the “right to kill” to a right that we can’t “conserve without danger” and that would only concern a small number of criminals “in a well-governed state”, arguing also for the social reinsertion of such individuals. Like the majority of 18th century philosophers, Rousseau accepted the death penalty, but only in certain cases (when the social body is “in danger”). He was also against torture, which was proof of the weakness of any State which relied on it.
For more information : See the biographical article on Rousseau on Wikipedia. Read the complete text of the Contrat social (in the original French) on Gallica.
Beccaria, the first abolitionist
Source : The collection of the National Museum of Prisons (France)
Portrait of Beccaria and copy of the cover of On Crimes and Punishments (National Museum of Prisons) At the age of 26, Cesare Beccaria (1738-1794) wrote On Crimes and Punishments (1764), the basis of contemporary penal philosophy, by suggesting a hierarchy of punishments, organized notably by the gravity of the crime. This principle later justified the generalization of the prison system after the French Revolution. Against torture and capital punishment, Beccaria wrote a clear summary of different critiques of the death penalty in the 16th chapter of his book. He considered it neither useful, nor necessary, nor a valuable example, but as a “new crime”. He suggested replacing it by another punishment, perpetual slavery (in public works workshops), an idea that was adapted by abolitionists during the debates of 1791 and 1908. Nevertheless, he admits that a State threatened by conspiracy could use capital punishment to defend itself. Parliamentary abolitionists also made this exception, including those participating in the debate of 1981. Translated into every European language, Beccaria’s treatise quickly became the seminal manual for the abolition movement. Cesare Beccaria, On Crimes and Punishments, 1764, 2nd American edition, translated by E. Ingraham, Philadelphia: Nicklin, 1819. Extract from chapter 28, Of the punishment of death, pp. 97-106 “What right, I ask, have men to cut the throats of their fellow-creatures? Certainly not that on which the sovereignty and laws are founded. The laws, as I have said before, are only the sum of the smallest portions of the private liberty of each individual, and represent the general will, which is the aggregate of that of each individual. Did any one ever give to others the right of taking away his life? Is it possible that, in the smallest portions of the liberty of each, sacrificed to the good of the public, can be contained the greatest of all good, life?... But the punishment of death is not authorized by any right; for I have demonstrated that no such right exists. It is therefore a war of a whole nation against a citizen, whose destruction they consider as necessary or useful to the general good. But if I can further demonstrate that it is neither necessary nor useful, I shall have gained the cause of humanity. The death of a citizen cannot be necessary but in one case: when, though deprived of his liberty, he has such power and connections as may endanger the security of the nation; when his existence may produce a dangerous revolution in the established form of government. But, even in this case, it can only be necessary when a nation is on the verge of recovering or losing its liberty, or in times of absolute anarchy, when the disorders themselves hold the place of laws: but in a reign of tranquility, in a form of government approved by the united wishes of the nation…there can be no necessity for taking away the life of a subject. If the experience of all ages be not sufficient to prove, that the punishment of death has never prevented men from injuring society…It is not the intenseness of pain that has the greatest effect on the mind, but its continuance; for our sensibility is more easily and more powerfully affected by weak but repeated impressions, than by a violent but momentary impulse. The power of habit is universal over every sensible being. As it is by that we learn to speak, to walk, and to satisfy our necessities, so the ideas of morality are stamped on our minds by repeated impressions. The death of a criminal is a terrible but momentary spectacle, and therefore a less efficacious method of deterring others than the continued example of a man deprived of his liberty, condemned, as a beast of burden, to repair, by his labour (sic), the injury he has done to society…The execution of a criminal is to the multitude a spectacle which in some excites compassion mixed with indignation. These sentiments occupy the mind much more than that salutary terror which the laws endeavor to inspire; but, in the contemplation of continued suffering, terror is the only, or at least predominant sensation…. Perpetual slavery, then, has in it all that is necessary to deter the most hardened and determined, as much as the punishment of death. I say it has more. There are many who can look upon death with intrepidity and firmness, some through fanaticism, and others through vanity, which attends us even to the grave; others from a desperate resolution, either to get rid of their misery, or cease to live: but fanaticism and vanity forsake the criminal in slavery, in chains and fetters, in an iron cage, and despair seems rather the beginning than the end of their misery… In all nations, where death is used as a punishment, every example supposes a new crime committed; whereas, in perpetual slavery, every criminal affords a frequent and lasting example… The punishment of death is pernicious to society, from the example of barbarity it affords. If the passions, or the necessity of war, have taught men to shed the blood of their fellow creatures, the laws, which are intended to moderate the ferocity of mankind, should not increase it by examples of barbarity, the more horrible as this punishment is usually attended with formal pageantry. Is it not absurd, that the laws, which detest and punish homicide, should, in order to prevent murder, publicly commit murder themselves?... Murder, which they would represent to us an (sic) horrible crime, we see practiced by them without repugnance or remorse. Let us follow their example. A violent death appeared terrible in their descriptions, but we see that it is the affair of a moment. It will be still less terrible to him who, not expecting it, escapes almost all the pain. Such is the fatal though absurd reasoning of men who are disposed to commit crimes...”
Mably: “Refrain from outlawing capital punishment”
Source : Mably, De la législation ou principe des loix, Amsterdam, 1776, book 3, chapter 4.
Extract from Mably, De la législation ou principe des loix, Amsterdam, 1776, book 3, chapt. 4 (cited by Pastoret. Des lois pénales, tome 1, second part, chapter 1, p. 18-25)
In his book, De la législation ou principe des lois (On the legislation or the principle of laws) (1776), Gabriel Bonnot de Mably (1709-1785) argues for the fair distribution of wealth and for common property, two principles that have made him known as a precursor of communism. Despite being a monarchist, Mably supported an egalitarian society where the people would wield power by electing legislative assemblies. Ahead of his time politically as well as socially, he remained, like the majority of the Enlightenment philosophers, a supporter of the death penalty. He justified capital punishment with the argument of “legitimate defense”, arguing that by default, the victim of a murder would have a worse fate than the criminal if the latter stayed alive. He also addressed Beccaria’s critique concerning punishment by public works and the weakness of the death penalty as a deterrent for other criminals (notably because it did provide a lasting image of punishment). His arguments were abundantly used during the constituent assembly by supporters of capital punishment. Complementary extract: “I know several philosophers’ reasons for supporting capital punishment… If a poor man is condemned to life in prison retains the same sentiments of anguish, fear and hopelessness that he would experience the first instances of being thrown into a dungeon, that would be worse punishment than death. But in this case, humanity must not relieve him of the burden of life. Let’s not have any illusions; life will always be considered by men as the most important of assets; and it is sure that the fear of death aggravates the anguish and unhappiness of prison, that there is not one prisoner that is taken to the gallows who does not see the toughest prison sentence and the most painful labor as a favor. A murderer believes he does the greatest harm to his enemy in taking his life, and thus he sees death as the greatest of evils; it’s thus out of fear of losing one’s life that actions of hatred and vengeance must be stopped. We speak loudly and easily of this painful labor that we wish to replace the death penalty with; but would we be bothered if I asked that we talk about that in terms of several details? This labor, however hard it is, isn’t it the sort – all over the world – of poverty: and why would you want the criminal and the poor to have the same fate? Also, could you hope that we would not lighten the labor that you would impose? Where would you find all the executioners which would be necessary?...Doesn’t pity ever enter into the souls of these executioners, are they generous enough to never sell an indulgence that would weaken the power of your laws ? Finally, I know that the force of habit is such that men accustom themselves to everything. These criminals, whose unhappy lives we pretend must serve as a great example to citizens, would they dare seem gay and happy in the midst of their ill luck…I will only add one word: do none of these criminals that you condemn to lifelong enslavement break their chains ? Do none find liberty via escape? If some escape from their executioners, it doesn’t take much more (as much as hope slides easily into the human heart) for the fact that one hundred rogues engage in crime with confidence. Death, we say, is not but an instant. The prisoners know that it’s inevitable, they accustom themselves to this idea, they become familiar to the point of not being afraid anymore, the ignominy of their end does not affect them, because their whole life is full of ignominy. What affects them the most, is the fear of a future where they will only see dungeons, chains, and continual labor…The torture of a criminal condemned to death is not, for most men, anything but a spectacle that does not leave profound traces in their spirit. We only see it as an object of compassion or indignation. We don’t feel this salutary terror that the long torture of a man condemned to a life of the hardest labor endures. Also, this last way to punish continually instructs citizens; and the other, on the contrary, only provides a temporary instruction. Death is only an instant, I admit, but it is an instant that decides all; it terminates time and opens the doors of eternity. This instant makes nature tremble. It’s not as easy as you think for a criminal to accustom himself to the idea of the death that he deserves every day, because these wretches that we take to the gallows tremble and quiver and so few of them approach death with firmness; although even courage is nothing but wild brutality. Whatever happens, it’s less a question of punishing the guilty than deterring the citizens who could imitate it. Who is the man who wouldn’t be more moved seeing his peer executed in a public square than seeing prisons or the galleys, when the image of pain and misery will always be more present there? We don’t see, you say, in the spectacle of a criminal condemned to death, anything but an object of compassion or indignation. If that is true, be sure that your criminal laws are unjust, absurd, inhuman and barbarous. They punish the fragility of a moment as a crime; by confusing a rogue valet and a murderer, they destroy them with the same punishment; by condemning to death someone who could be rehabilitated, and whose crime only suggests the beginning of corruption you overturn reason… Don’t believe that the death penalty must be more frequent to repress the passions and to produce the effect that the legislator expects….If the crimes, which deserve death, are not frequent, it is useless that the punishment made to prevent them multiply ; this rarity is the strongest proof that the laws are just. There are only two criminals who deserve death : the murderer, and he who betrays his country, either to establish an opposite power or to submit to a foreign power. I’ll add that the sweetest death is the torture the most cruel that a prudent legislator can admit. Father of our country, he will punish as a father; he will punish until regret. What a horrible occupation to imagine such tortures! Far from abandoning himself to this rigorous indignation that crime naturally inspires in virtuous men, he will respect this precious sentiment of humanity that nature has placed in our hearts.” (Cited by Pastoret, Des lois pénales, 1790, tome I, p. 18-25; trans. P. Bass).
Voltaire: “Punish in other ways”
Source : Collection of the museum of living history (Musée d’histoire vivante), Montreuil, France.
Portrait of Voltaire, Collection of the Museum of Living History (Musée d’histoire vivant – Montreuil), photograph: Véronique Fau-Vinventi; Extract from Voltaire, The Prize for Justice and Humanity, 1777, Article III. On murder.
Voltaire’s name had already appeared in the pages dedicated to Calas’ torture (1762) and that of the Chevalier de La Barre (1776). His combat against religious fanaticism and intolerance can be seen in the legal cases that rattled public opinion of the Ancien Régime. Without being a staunch supporter of the total abolition of the death penalty – in his correspondence, we can always find an argument justifying this punishment – he adopted the ideas of Beccaria with fervor as he publically extolled the benefits of public servitude. In The Prize for Justice and Humanity, Voltaire takes these ideas as his own, emphasizing the principle of utility that he wants to establish instead of the law of retaliation.
Voltaire: “Punish in other ways”
Source : Extract from Voltaire, The Prize for Justice and Humanity, 1777, Article III. On murder.
Marat: “Punishment should rarely be capital”
Source : Marat, Plan de legislation criminelle, 1780, first part, On punishment.
Extract from Jean-Paul Marat, Plan for criminal legislation,, 1780, first part, On punishment. Jean-Paul Marat (1753-1793), a doctor and revolutionary, published his second political work (after Chains of Slavery, 1774) entitled Plan de legislation criminelle (Plan for criminal legislation). In this book, he explores the roots of despotism. Marat’s approach to criminal legislation appears to critique the way that the justice system reproduces a certain social order: « Perish arbitrary laws, made for the happiness of a few individuals, to the prejudice of the human race, and perish also those odious distinctions which render certain classes the enemies of others, which cause the multitude to suffer that a few may be happy, and the few to dread lest the multitude be happy. » (cited in Cornell university library, Polish Letters, 1905, Boston, issued by the Bibliophile society, p.81). He denounces the arbitrary nature of current legislation, and notably the legislation on property rights. The first part of the book is dedicated to the fundamental principles of good laws and punishments. Marat clearly identifies himself as an abolitionist, criticizing torture for a lack of efficiency and for not deterring future crimes. Taking up the arguments of Beccaria, he advocates public servitude, which he claims could be useful for society and also potentially “correct” the criminal in question.
Servan: “What is the point of such severity?”
Source : Servan. Discours sur l’administration de la justice criminelle, 1767.
Extract from Michel-Antoine Servan, Discourse on the administration of criminal justice, 1767. Michel-Antoine Servan (1737-1807), the Advocate-General of the Parliament of Grenoble since 1764 and friend of Voltaire and the Encyclopédistes, was above all interested in pedagogy. His Discours sur l’administration de la justice criminelle (Discourse on the administration of criminal justice), treating the vigilance of judges, criminal investigations, guilt and punishment, is a denunciation of poor legislation and the severity of the criminal code which he demands to be reformed. The most famous judge of the 18th century Enlightenment, a “friend of humanity” who cherished the mores of all that was “gentle”, the Advocate-General of Grenoble opposed torture and capital punishment, which he considered excessively severe. Against barbaric prejudices, he wished to reform the laws, even if, as a judge, he had the duty to respect the existing legislation that he did not believe in. Michel Servan is only representative of a small fraction of the judges of his time, who, for the most part, followed the position of Muyart de Vouglans. Vouglans had published Réfutation du Traité des délits et des peines de Beccaria in 1766, a vigorous entreaty to maintain capital punishment. Nevertheless, jurisprudence shows that capital punishment became less and less common: amongst the arrests in the Parliament of Bourgogne, for example, less than 5 percent received the death penalty after 1770, whereas more than 13 percent did before 1750. This softening of the most severe form of punishment (capital punishment) made the judicial scandals of the end of the 18th century, such as those of Calas or La Barre, even more shocking in the eyes of the public.