One judicial abuse especially contrary to fair dealing had become very common. Powerful and influential persons could have their cases removed from the tribunals in which they were begun, and tried in other courts where from personal influence they might expect a more favorable result. It was not only the royal council that could draw litigation to itself. The practice was widespread. By a writ called committimus, the tribunal by which an action was to be tried could be changed.
This appears to have been a frequent cause of failure of justice.
As for the criminal proceedings of the age, there was hardly a limit to their cruelty. Under Louis XV. the prisons were filthy dens, crowded and unventilated, true fever-holes. A private cell ten feet square, for a man awaiting trial, cost sixty francs a month. Large dogs were trained to watch the prisoners and to prevent their escape. Twice a year, in May and September, the more desperate convicts left Paris for the galleys. They made the journey chained together in long carts, so that eight mounted policemen could watch a hundred and twenty of them. The galleys at Toulon appear to have been less bad than the prisons in Paris. They were kept clean and well-aired, and the prisoners were fairly well fed and clothed; but some of them had been imprisoned for forty, fifty, or even sixty years. They were allowed to for themselves and to earn a little money. They were divided into three classes, deserters, smugglers, and thieves, distinguished by the color of their caps. [Footnote: Mercier, iii. 265, x. 151. Howard, Lazarettos, 54.]
Torture was regarded as a regular means for the discovery of crime. It was administered in various ways, the forms differing from province to province. They included the application of fire to various parts of the body, the distension of the stomach and lungs by water poured into mouth, thumbscrews, the rack, the boot. These were but methods of investigation, used on men and women whose crime was not proved. They might be repeated after conviction for the discovery of accomplices. The greater part of the examination of accused persons was carried on in private, and during it they were not allowed counsel for their defense. They were confronted but once with the witnesses against them, and that only after those witnesses had given their evidence and were liable to the penalties of perjury if they retracted it. Many offenses were punishable with death. Thieving servants might be executed, but under Louis XVI. public feeling rightly judged the punishment too severe for the offense, so that masters would not prosecute nor judges condemn for it.[Footnote: Counsel were not allowed in France for that important part of the proceedings which was carried on in secret. Voltaire, xlviii. 132. In England, at that time, counsel were not allowed of right to prisoners in cases of felony; but judges were in the habit of straining the law to admit them. Strictly they could only instruct the prisoner in matters of law. Blackstone iv. fol. 355 (ch. 27). The English seem for a long time to have entertained a wholesome distrust of confessions. Blackstone, ubi supra. How far is the Continental love of confessions derived from the church; and how far is the love of the church for confessions a result of the ever present busybody in human nature?]
Other criminals did not escape so easily. A most barbarous method of execution was in use. The wheel was set up in the principal cities of France. The voice of the crier was heard in the streets as he peddled copies of the sentence. The common people crowded about the scaffold, and the rich did not always scorn to hire windows overlooking the scene. The condemned man was first stretched upon a cross and struck by the executioner eleven times with an iron bar, every stroke breaking a bone. The poor wretch was then laid on his back on a cart wheel, his broken bones protruding through his flesh, his head hanging, his brow dripping bloody sweat, and left to die. A priest muttered religious consolation by his side. By such sights as these was the populace of the French cities trained to enjoy the far less inhuman spectacle of the guillotine.[Footnote: Mercier, iii. 267. Howard says that the gaoler at Avignon told him that he had seen prisoners under torture sweat blood. Lazarettos, 53.]
It was not until the middle of the century that men's minds were fairly turned toward the reform of the criminal law. Yet eminent writers had long pointed out the inutility of torture. "Torture-chambers are a dangerous invention, and seem to make trial of patience rather than of truth," says Montaigne; but he thinks them the least evil that human weakness has invented under the circumstances. Montesquieu advanced a step farther. He pointed out that torture was not necessary. "We see today a very well governed nation [the English] reject it without inconvenience." … "So many clever people and so many men of genius have written against this practice," he continues, "that I dare not speak after them. I was about to say that it might be admissible under despotic governments, where all that inspires fear forms a greater part of the administration; I was about to say that slaves among the Greeks and Romans,—but I hear the voice of nature crying out against me." Voltaire attacked the practice in his usual vivacious manner; but, with characteristic prudence suggested that torture might still be applied in cases of regicide.[Footnote: Montaigne, ii. 36 (liv. ii. ch. v). So I interpret the last words of the chapter. Montesquieu, iii. 260 (Esprit des Lois, liv. vi. ch. 17). Voltaire, xxxii. 52 (Dict. philos. Question), xxxii. 391 (Ibid., Torture).]
Such scattered expressions as these might long have remained unfruitful. But in 1764 appeared the admirable book of the Milanese Marquis Beccaria, and about thirteen years later the Englishman John Howard published his first book on the State of the Prisons. Beccaria shared the ideas of the Philosophers on most subjects. Where he differed from them, it was as Rousseau differed, in the direction of socialism. But in usefulness to mankind few of them can compare with him. From him does the modern world derive some of its most important ideas concerning the treatment of crime. Extreme, like most of the Philosophers of his age; unable, like them, to recognize the proper limitations of his theories, he has yet transformed the thought of civilized men on one of the most momentous subjects with which they have to deal. So great is the change wrought in a hundred years by his little book, that it is hard to remember as we read it that it could ever have been thought to contain novelties. "The end of punishment… is no other than to prevent the criminal from doing farther injury to society, and to prevent others from committing the like offense." "All trials should be public." "The more immediately after the commission of a crime the punishment is inflicted, the more just and useful it will be." "Crimes are more effectually prevented by the certainty than by the severity of punishment." These are the commonplaces of modern criminal legislation. The difficulty lies in applying them. In the eighteenth century their enunciation was necessary. "The torture of a criminal during his trial is a cruelty consecrated by custom in almost every nation," says Beccaria. Indeed it seems to have been legal in his day all over the Continent, although restricted in Prussia and obsolete in practice in Holland. Beccaria opposed torture entirely, on broad grounds. As to torture before condemnation he holds it a grievous wrong to the innocent, "for in the eye of the law, every man is innocent whose crime has not been proved. Besides, it is confounding all relations to expect that a man should be both the accuser and the accused, and that pain should be the test of truth; as if truth resided in the muscles and sinews of a wretch in torture. By this method, the robust will escape and the weak will be condemned." The penalties proposed by Beccaria are generally mild,—he would have abolished that of death altogether,—his reliance being on certainty and not on severity of punishment. [Footnote: Beccaria, passim. Lea, Superstition and Force, 515.]
It was not to be expected that Beccaria's book should work an immediate change in the manners of Christendom. The criminal law remained unaltered at first, in theory and practice. But the consciences of the more advanced thinkers were affected. In 1766, at Abbeville, a young man named La Barre was convicted of standing and wearing his hat while a religious procession was passing, singing blasphemous songs, speaking blasphemous words, and making blasphemous gestures. There was much popular excitement at the time on account of the mutilation of a crucifix standing on a bridge in the town, but La Barre was not shown to have been concerned in this outrage. The judges at Abbeville appear to have laid themselves open to the accusation of personal hostility to him. The young man, having been tortured, was condemned to make public confession with a rope round his neck, before the church of Saint Vulfran, where the injured crucifix: had been placed, to have his tongue cut out, to be beheaded, and to have his body burned. This outrageous sentence was confirmed by the Parliament of Paris. The superstitious king, Louis XV., would not grant a pardon. The capital sentence was executed, but the cutting out of the tongue was omitted, the executioner only pretending to do that part of his work. La Barre's head fell, amid the applause of a cruel crowd which admired the skillful stroke of the headsman. A thrill of indignation, not unmixed with fear, ran through the liberal party in France. The anger and grief of Voltaire were loudly expressed. It was at least an improvement on the state of public feeling in former generations that such severity should not have met with universal acquiescence.[Footnote: The best account of the affair of La Barre which I have met is in Desnoiresterres, Voltaire et Rousseau, 465.]
The practice of torture was not without defenders. One of them asked what could be done to find stolen money if the thief refused to say where he had hidden it. But this was not his only argument. "The accused himself," he said, "has a guarantee in torture, which makes him a judge in his own case, so that he becomes able to avoid the capital punishment attached to the crime of which he is accused." And this writer confidently asserts that for a single example which might be cited in two or three centuries of an innocent man yielding to the violence of torture, a million cases of rightful punishment could be mentioned. [Footnote: Muyard de Vougland, quoted in Du Boys, ii. 205 ]
Yet the march of progress was fairly rapid in the latter part of the eighteenth century. In the jurisprudence of that age a distinction was made between preparatory torture, which was administered to suspected persons to make them confess, and previous torture, which was inflicted on the condemned, previous to execution, to obtain the accusation of accomplices. The former of these, by far the greater disgrace to civilization, was abolished in France on the 24th of August, 1780; the latter not until, 1788, and then only provisionally. Thus was one of the greatest of modern reforms accomplished before the Revolution. About the same time many ordinances were passed for the amelioration of French prisons. They were about as bad as those of other countries, and that was very bad indeed.[Footnote: Question préparatoire; question préalable, sometimes called q. définitive. Desmaze, Supplices, 177. Desjardins, p. xx. Howard, passim. The English have long boasted that torture is not allowed by their law; and although the peine forte et dure was undoubted torture, the boast is in general not unfounded. Torture was abolished in several parts of Germany in the eighteenth century, but lingered in other parts until the nineteenth. It was not done away in Baden until 1831. Lea, Superstition and Force, 517.]