Voltaire and Beccaria as reformers of criminal law

191 Pages·1942·3.208 MB·English

by  Marcello T. Maestro

VOLTAIRE and BECCARIA
AS REFORMERS OF
CRIMINAL LAW
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VOLTAIRE and BECCARIA
AS REFORMERS OF
CRIMINAL LAW
By Marcello T. Maestro
NEW YORK : MORNINGSIDE HEIGHTS
COLUMBIA UNIVERSITY PRESS
I 9 4 Z
Copyright 1942
Columbia University Press, Ne» Yore
Foreign agents: Oxford University Press, Humphrey Milford,
Amen House, London, E.C. 4, England, and B. 1. Building,
Nicol Road, Bombay, India
MANUFACTURED IN THE UNITED STATES OF AMERICA
To
My Father and My Mother

FOREWORD
the very great number of publications which have appeared
up to the present date on Voltaire and on his multiform activity
shows us how deeply he has been able to interest successive
generations by his unique form of genius and by the importance
of the issues on which he has left a lasting influence.
Among the problems about which Voltaire was particularly
concerned that of criminal law is certainly one of the most
important.''To it he devoted most of his time and energy in
the last fifteen or sixteen years of his life, and the great reforms
which took place after his death were due, in great measure,
to him, as well as to Cesare Beccaria, the Italian author of the
Treatise on Crimes and Punishments. To these two men the
generations of the nineteenth century and, perhaps, we our­
selves owe the abolition of a legal system characterized by
cruelty, secrecy and arbitrariness.
Many studies have been published on Voltaire’s interest in
criminal law, but the majority of them deal with definite cases
and trials, such as the works of Athanase Coquerel (Jean Calas
et sa famille), F. H. Maugham (The Case of Jean Calas), Ca­
mille Rabaud (Sirven, étude historique sur l'avènement de la
tolérance), Elie Galland (UAffaire Sirven, étude historique
d'après les documents originaux), Maurice d’Avray (Le Procès
du chevalier de La Barre; un crime judiciaire et une erreur
d'opinion, d'après les documents authentiques), Marc Chas-
saigne (Le Procès du Chevalier de La Barre), and so forth.
However accurate these studies may be, the theoretical aspect
of Voltaire’s ideas, if not completely lost sight of, is considered
viii FOREWORD
from a very limited angle because they disregard his evolution
before or after the case concerned and the activity and influ­
ence of other writers and philosophers.
In the general studies on Voltaire his activity regarding crim­
inal law is usually neglected or dealt with rather cursorily and
superficially. Only Gustave Desnoiresterres (Voltaire et la so­
ciété française au XVIII* siècle) gives a detailed account of this
activity, particularly in connection with the trials in which
Voltaire was interested. But in Desnoiresterres, too, the doc-
trinary aspect is very imperfectly and incompletely considered.
The most comprehensive work on Voltaire and the criminal
law is that of Eduard Hertz (Voltaire und die franzdsische
Strafrechtspflege im achtzehnten Jahrhundert) who not only
relates in detail all the trials and cases which interested Voltaire,
but also follows his theoretical evolution in regard to criminal
law. However, Hertz’s study is not a critical one, and indeed
it could hardly have been such, in as much as it considers—
from a rather technical point of view— the penal problem in
France alone.
Beccaria also has been studied by several writers, as, for in­
stance, the Italian historian Cesare Cantù, who attempted in
his Beccaria e il diritto penale to treat Beccaria’s activity in
relation to the work of others, in Italy and elsewhere. But,
strangely enough, Cantu hardly mentions Voltaire, in spite of
the latter’s importance in the success of the reform movement.
A similar line is taken by all other biographers of Beccaria.
We may consider, therefore, that all the existing studies on
Voltaire and on Beccaria in their connection with criminal law
have an analytical character, being limited either to one period,
one country or one aspect. The purpose of this work is, on the
contrary, to study these two men without such limitations
and to show the part that each of them had in the reforms.
This is the first time Voltaire and Beccaria have been stud­
ied together in a systematic and critical work. Two points
have thus been made clear, which may be considered as the
FOREWORD IX
most important results of this study:-Voltaire’s evolution in
miri"»1 lr,n/ due to IWrari^s influence, while
without their font contributions, the Criminal reforms of the
eighteenth o»nturv would hav* fafrn indefinitely postponed.
I have used, as much as possible, original sources, not only
for Voltaire and Beccaria, but also for the writers who— from
the point of view of this work— are secondary, as, for example,
Grotius, Montesquieu, Frederick II, Blackstone. For Beccaria I
have availed myself of the very accurate work of Eugenio
Landry (Cesare Beccaria, Scritti e lettere inediti) on the docu­
ments and letters which have been preserved in the Raccolia
Beccaria. The correspondence of other writers and representa­
tive people has been used abundantly whenever it could bring
more light on the subject. As for the general legal and histori­
cal background I have used the very serious and accurate works
of Carl Ludwig von Bar (A History of Continental Criminal
Law) and of Adhémar Esmein (Histoire de la procédure cri­
minelle en France) and its American version (A History of Con­
tinental Criminal Procedure with special reference to France,
including chapters by René Garraud and C. J. A. Mittermaier) ;
both these works constituting volumes of the Continental Legal
History Series. For information concerning England I have
also used the work of J. F. Stephen (A History of the Criminal
Law of England), and for details concerning Italy I have used
Cantu’s Beccaria e il diritto pénale.
The French quotations have been kept in the original, while
those— very numerous— of Italian authors are given in Eng­
lish in view of the less general knowledge of the Italian lan­
guage on the part of English readers. For Voltaire I have used
the Moland edition of his Œuvres complètes (Paris, Gamier
Frères, 1877-8 5 ) and, in order to avoid unnecessary repetitions,
I have referred to this collection simply as Œuvres, with the
volume and page numbers. For quotations from books and pub­
lications, unless otherwise indicated, the edition has been used
which is mentioned in the Bibliography.