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Popular Justice in Times of Transition
(19th and 20th Century Europe)

edited by
Émilie Delivré / Emmanuel Berger / Martin Löhnig

Società editrice il Mulino Duncker & Humblot

Bologna Berlin
FBK - Istituto Storico Italo-Germanico

POPULAR
justice in times of transition : (19th and 20th century Europe) / edited by Émilie Delivré,
Emmanuel Berger, Martin Löhnig. - Bologna : Il mulino ; Berlin : Duncker & Humblot, 2017. - 219
p. : ill. ; 24 cm. - (Annali dell’Istituto storico italo-germanico in Trento. Contributi ; 31 = Jahrbuch
des italienisch-deutschen historischen Instituts in Trient. Beiträge ; 31)
Scritti di vari. - Nell’occh. : Fondazione Bruno Kessler
ISBN 978-88-15-27172-3 - ISBN 978-3-428-15189-9
1. Giustizia - Amministrazione - Partecipazione popolare - Europa - Sec.XIX-XX 2. Giudici
popolari - Europa - Sec.XIX-XX 3. Giudice di pace - Europa - Sec.XIX-XX I. Delivré, Émilie II.
Berger, Emmanuel III. Löhing, Martin

347.4016 (DDC 22.ed.) Cataloging in Publication record: FBK - Biblioteca

Composition: FBK - Editoria

Translations by Johanna Firsching, Kim Friedlander, John Lee, Davis Lovric, and
Claudia Schweigele

This book is published with the financial support of the Autonomous Province of Trento

ISBN 978-88-15-27172-3
ISBN 978-3-428-15189-9
Copyright © 2017 by Società editrice il Mulino, Bologna. In Kommission bei Duncker & Humblot,
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Contents

Introduction, by Emmanuel Berger, Émilie Delivré, and

Martin Löhnig p. 7

French Grand Juries in Times of Transition, 1791-1799, by

Emmanuel Berger 25
Popular Justice in Times of Revolution, by José Antonio Pérez
Juan 45
«Justice Serving the Poor». The Colleges of Wise Men in
Italy (19th-20th Centuries), by Carlotta Latini 69
Interpretive Moments: Popular Justice Practice in England
and Wales, c. 1800-1980, by Stephen Banks 85
Popular Justice during the People’s Spring. Jury, Charivari,
and Other Curiosities in 1848, by Émilie Delivré 109
Bavarian Drumhead Courts-Martial and People’s Courts, by
Mareike Preisner 127
«Volk» and «Justice» under the Third Reich, by Johann
Chapoutot 149
Mob Justice and Violence in France during Liberation
(Summer 1944), by François Rouquet and Fabrice Virgili 155
Popular Justice and Iconoclasm in Post-War East Germany.
Premodern Rites of Violence in the (De)Legitimation of
Modern States, by Alexey Tikhomirov 173
«Volksgerichte» in Austria (1945-1955), by Martin Löhnig 191

5
Nazi Crimes in the Judgment of the People. The Bavarian
Jury Court in the Post-war Period, by Arnd Koch p. 203

Index 215

Authors 217

6
French Grand Juries in Times of Transition,
1791-1799

by Emmanuel Berger

In France, popular juries were established in 1791, during the turbulent

times of the Revolution. Drawing from the English legal system, the
National Constituent Assembly decided to directly and indirectly entrust
«the people» with the exercise of justice—directly with the establishment
of criminal jurors and indirectly with the election of judges. During their
first decade of existence, popular juries went through three regimes: the
Legislative Assembly (1791-1792), the National Convention (1792-1795)
and the French Directory (1795-1799). Popular juries thus represent an
ideal indicator for understanding the effects of political disruptions and
regime changes on the functioning of the judicial institutions that were
founded during the French Revolution. The new juries held a crucial
role in the balance of constitutional powers. As a representation of the
sovereign people, they made decisions liable to challenge the legitimacy
not only of laws passed by the assemblies but also of criminal policies
instituted by the governments of revolutionary France1. The present
study will explore how «the people»—as a judicial player—successfully
developed dissenting, yet legal, actions in a historical context marked
by the suspicion of governing authorities towards the violence, glorified
in 1789, of popular movements.
The National Constituent Assembly abolished the legal system that had
prevailed under the Old Regime, establishing instead a new judicial
model that was both liberal and popular. At the criminal level, the
primary objective was to protect the individual liberties of citizens
against the king’s and the judges’ arbitrary power. With this aim in
view, a number of principles were adopted such as the presumption of
1
Power struggles and competition during the French Revolution have been the object
of a number of studies. Let us cite the works of M. TROPER (La séparation des pouvoirs
et l’histoire constitutionnelle française, Paris 1980) and J.-L. HALPERIN (Le tribunal de
cassation et les pouvoirs sous la Révolution [1790-1799], Paris 1987).

25
innocence, the adversarial system, oral and contradictory public debates,
or the humaneness and proportionality of sentencing. Another new
principle, the participation of the people in the execution of justice
and more specifically the formation of popular juries, was considered
the best way to guarantee an independent, fair justice. The decision to
establish popular juries was underpinned by the excellent reputation
of the English criminal justice during the second half of the eighteenth
century, with a number of legal bodies, such as justices of the peace
and juries, based on popular participation and hailed for their liberal-
ism2. Drawing from the widespread dissemination of English judicial
principles in France, the architects of the French «criminal revolution»,
Adrien Duport and Jacques-Guillaume Thouret, were able to persuade
members of the National Constituent Assembly to import and «dupli-
cate» the English judicial system in the country.
In line with the common law tradition, juries established by the National
Constituent Assembly had a twofold structure, as each of them consisted
of a grand jury (jury d’accusation) and a trial (or petty) jury (jury de
jugement). Grand juries were empowered with the preliminary phase
of trials, determining whether there was enough evidence of guilt to
bring criminal charges. The rationale behind the creation of grand
juries—both in France and in England—was to protect each and every
citizen against wrongful, unfair prosecutions. Trial juries were at play
at the end of criminal trials, as they were empowered with the decision
to acquit or convince alleged offenders. I will only consider grand
juries for the purpose of the present article. In France, grand juries
were abolished in 1811 and replaced with «chambers of indictment»
(chambres des mises en accusation) composed of professional judicial
officers. Conversely, trial juries were maintained and are still operating
in assize courts (cours d’assises).
There are only a few partial studies pertaining to popular juries during
the French Revolution, even though these bodies raised fundamental
issues. Robert Allen’s works on trial juries, although significant, only
2
A historiographical clarification on the influences of common law on revolutionary
France can be found in E. BERGER, The Criminal Jury in England and France in the late
18th Century. Historiographical Issues and Research Perspectives of Popular Justice, in
É. DELIVRÉ - E. BERGER (eds), Popular Justice in Europe (18th-19th Centuries), (Annali
dell’Istituto storico italo-germanico in Trento. Contributi/Beiträge, 29) Bologna - Berlin
2014, p. 71-88.

26
cover 16 French departments3. Research is even scarcer when it comes
to grand juries. I can only refer to my own works, most of which focus
on juries in the Belgian departments during the French Directory. The
great size of the task may explain such limited research. Archives of
the various jurisdictions of the time can only be accessed in each local
archive concerned. Another problem is the division of judicial archives
into several collections which forces researchers to juggle between the
L (revolutionary period) and U (justice from 1800 to 1940) collections.
Archives pertaining to trial juries are generally well-preserved given the
strong interest in assize courts; yet, the same does not apply to those
pertaining to grand juries, as these latter seem to have disappeared
from contemporary memories. Unlike trial juries, which met in each
department’s capital city, grand juries were summoned at first in the
capital cities of districts, then, from the Directory onwards, in the capital
cities of arrondissements. This change in jurisdiction, combined with the
«inferiority» of districts and arrondissements compared to departments,
also led to the deterioration and destruction of grand jury archives.
Such pitfalls had a significant impact on my work. In particular, the
geographical scope of my research was restricted by the scarcity of
sources. I had to limit my work to grand juries with the best preserved
archives. Hence, the present study focuses on grand juries in the dis-
tricts of Abbeville (Somme department), Amiens (Somme department)
and Beauvais (Oise department) under the Legislative Assembly and
National Convention, and in the arrondissements of Amiens, Beauvais
and Carpentras (Vaucluse department) under the Directory. Given the
limited number of juries, the results should be considered with caution.
The present study is a preliminary approach that should be pursued
further by future research. The grand juries I examined are located in
Northern France (the Somme and Oise departments) for the most part,
but I went southward, in Carpentras, to study grand juries under the
Directory. The chronological breakdown chosen corresponds to changes
in regimes and territorial divisions. Grand juries were summoned in
the capital cities of districts under the Legislative Assembly and the
National Convention but after the abolishment of these territorial
divisions by the Constitution of the Year III, they seated in the capital
cities of arrondissements.
3
R. ALLEN, Les tribunaux criminels sous la Révolution et l’Empire. 1792-1811, Rennes
2005.

27
Table 1. Types of felonies referred to grand juries (unit chosen: number
of defendants)4

Legislative Assembly and National Convention

Abbeville Amiens Péronne Beauvais
(1793- (Year (Year (1792- Total
Year IV) II-IV) II-IV) Year IV)
no. no. no. no. no. %
Homicide 5 4 10 2 21 3
Serious assault 1 - - - 1 0
Arson 3 2 - - 7 1
Theft 65 74 27 106 272 33
Arbitrary arrest/act - 41 - 23 64 8
Rebellion against the
1 2 3 9 15 2
public authority
Riotous assembly/
- 2 2 2 6 1
speech/print
Grain hoarding 7 17 - 7 31 4
Plunder of food 66 79 104 - 249 30
Misappropriation/
4 1 1 3 9 1
maladministration
Escape (assisting) - 16 5 3 24 3
Emigrant/deportee
- 2 - 5 7 1
(correspondence)
Public and Private
- 3 6 18 27 3
forgery
Counterfeit money - - - 2 2 0
Perjury - - - 2 2 0
Bigamy - 2 - - 2 0
Unknown 54 25 6 - 85 10
Total 206 270 164 184 824 100

4
Data produced in the table were found in the records of minutes of the sessions
of the grand juries of Abbeville, Amiens, Péronne and Beauvais districts, kept in the
L collections of the Archives départementales de la Somme and Archives départemen-
tales de l’Oise.

28
Grand juries legally went into force on January 1, 1792, alongside trial
juries in criminal courts. However, the novelty of the system and the draw-
ing up of lists of citizens eligible to sit on juries may have delayed the
implementation of juries. Consequently, the first grand juries only came
together on April 6, 1792, in the district of Abbeville, on March 12, 1792,
in the district of Amiens, and on March 15, 1792, in that of Beauvais5. As
shown in the table above, over a third (37%) of felonies referred to grand
juries in four districts pertained to theft, arson, homicide, and serious as-
sault. The 1791 Penal Code provided for punishments for such felonies in
line with a rationale based on natural moral laws. The aim was to protect
people’s ordinary heritage, that is, their property and physical integrity6.
Other categories of prosecutable felonies included plunder of food (30%)
and grain hoarding (4%), both of which were governed by a political and
legal approach aimed at protecting the existence and legitimacy of the
state. Unlike theft and homicide defined in the 1791 Penal Code, these
categories of felonies resulted from contextual criminal laws. The decree
of July 26, 1793, was meant to punish «monopolisers» (accapareurs),
namely those who refused to sell or spoiled foodstuffs or other vital goods.
It was expanded by a subsequent decree, that of 12-13th Germinal of the
Year II (April 1-2, 1794) which targeted merchants and manufacturers
who refused to sell vital goods or sold them above a set price ceiling. In
both cases, the alleged offenders faced the death penalty. These decrees,
meant to control free trade of grain, were applied until Vendémiaire of
the Year III in all districts examined in the present study. Departing from
the Reign of Terror, the Thermidorian Convention restored free trade of
food upon the abolishment of the price ceiling system on 4 Nivôse of the
Year II (December 24, 1794). A few months later, lawmakers passed the
decrees of 16-17 Prairial of the Year III (June 4-5, 1795), stating that
«it is important to guarantee the delivery of means of subsistence, to prevent both armed
and unarmed gatherings motivated by plunder in some places, to revive the diligence
of established authorities in charge of maintaining law and order, to restrain bandits
who attempt to disrupt law and order, & to guarantee through law enforcement the
integrity of people and properties».

5
In the Péronne and Amiens districts, grand juries did not hold their first sessions in
the Year II but the only reliable data on the different categories of prosecuted crimes
by these grand juries pertains to this period.
6
P. LASCOUMES - P. PONCELA - P. LENOËL, Au nom de l’ordre. Une histoire politique
du Code penal, Paris 1989.

29
Known as the Prairial Decrees, these regulations provided not only
for civil penalties but also for sentences of up to one year of impris-
onment for unarmed gathering, whereas armed gatherings incurred
the death penalty. They were applied until Floréal of the Year IV in
Amiens, Fructidor of the Year III in Péronne and Ventôse of the Year
IV in Abbeville. No such case was ever referred to the grand jury of
Beauvais district.

Table 2. Proportion of discharges ordered by grand juries (unit chosen:

number of defendants)7

Legislative Assembly and National Convention

Abbeville Amiens Péronne Beauvais

(1793- (Year II- (Year II- (1792- Total
Year IV) IV) IV) Year IV)
no. no. no. no. no. %
Homicide 3/5 1/4 8/10 1/2 13/21 62
Serious assault 1/1 - - - 1/1 100
Arson 2/3 2/2 - 1/2 5/7 71
Theft 22/65 35/74 8/27 24/106 89/272 33
Arbitrary arrest/act - 10/41 - 0/23 10/64 16
Rebellion against
1/1 2/2 1/3 3/9 7/15 47
the public authority
Riotous assembly/
- 2/2 1/2 1/2 4/6 67
speech/print
Grain hoarding 7/7 12/17 - 2/7 21/31 68
Plunder of food 53/66 32/79 77/104 - 162/249 65
Misappropriation/
1/4 0/1 0/1 1/3 2/9 22
maladministration
Escape (assisting) - 15/16 0/5 1/3 16/24 67

7
Data produced in the table was found in the records of minutes of the sessions
of the grand juries of the Abbeville, Amiens, Péronne, and Beauvais districts, kept in
the L  collections of the Archives départementales de la Somme and Archives dépar-
tementales de l’Oise.

30
Table 2 (continued)

Abbeville Amiens Péronne Beauvais

(1793- (Year II- (Year II- (1792- Total
Year IV) IV) IV) Year IV)
no. no. no. no. no. %
Public and private
- 2/3 4/6 0/18 6/27 22
forgery
Counterfeit money - - - 1/2 1/2 50
Perjury - - - 0/2 0/2 0
Bigamy - 0/2 - - 0/2 0
Unknown 12/54 23/25 1/6 - 36/85 42
Total 102/206 138/270 101/164 37/184 378/824 46

As shown in Table 2 above, the ratio of discharges by type of felony

prosecuted varied greatly8. The odds of being discharged were low for
defendants prosecuted for theft (33%), misappropriation/misadministra-
tion (22%), and forgery (22%)9. They were significantly higher—above
50%—for those prosecuted for grain hoarding, plunder of food, or
escape (assisting).
Likewise, there was a similar disparity among the four districts stud-
ied10. Such dissimilarities suggest that juries had their own logic, as
they frequently sent defendants to criminal courts when it came to
felonies liable to affect their own properties or private interests (theft,
forgery, misappropriation/misadministration). On the other hand, they
were less «strict» with those accused of political offences such as grain
hoarding and plunder of food. These two latter pertained to laws passed

8
I excluded infrequent crimes (arson, serious assault, counterfeit money, etc.) from
the analysis.
9
The low ratio of discharges ordered for defendants accused of arbitrary arrests or
acts (16%) is not significant, as this type of crime was only referred to a grand jury
once in the Amiens district and twice in the Beauvais district.
10
The only significant exception pertains to people prosecuted for grain hoarding in
the Beauvais arrondissement, 28% of whom were discharged. This discharge ratio is
relatively high compared with the overall discharge ratio in Beauvais. It appears that
members of the grand jury of Beauvais were «harsher» than their peers from other
districts, as the overall discharge ratio in Beauvais was a low as 21%, compared with
49% in Abbeville, 51% in Amiens and 62% in Péronne.

31
in specific political circumstances and were not necessarily approved
by the local population. The harshness and disproportionality of sen-
tences—all offences incurred the death penalty—added to the lack of
legitimacy of such laws. In the case of plunder of food, juries heard
of looting motivated by high bread prices and hunger. Such offences
were not committed by isolated individuals but by large groups made
up of dozens of persons. Grand juries were patently indulgent, as 80%
of defendants were discharged in Abbeville district, 41% in Amiens
district11 and 74% in Péronne district. They were reluctant to refer
fellow citizens who came from their own district to a criminal court,
which may have led to their conviction by trial juries, as the latter were
more distant, thus less sensitive to local interests.
Another reason for such clemency was that most prosecuted offences
did not jeopardize society, nor the Republican State. A number of bills
of indictment even stated that the defendants did buy the items they
were accused of stealing, but at a price they deemed acceptable.
As an example, in Pluviôse of the Year III (February 1795) three women
were prosecuted in the Péronne district for
«gathering with other women on the 15th of this month in the place known as
bouc de la ruelle de Cauchy in the hamlet of Berseaucourt, where they stopped a
carriage that was transporting seven sacks of wheat to the Nesle market, and to
have had the said wheat—which they payed fifty-five pounds a sack—delivered to
themselves»12.

In Germinal of the Year III (March 1795), a judge even called on grand
jurors to show clemency towards eleven women accused of
«participating in a gathering in Beaumont on 27th Ventôse, of having stopped two
carriages loaded with grain sent by the Laudia farmers to the army and of seizing the
said—although they did buy it at twice the usual price»13.

11
The lowest discharge ratio in the Amiens district was due to a significant number
of unidentified alleged criminals (e.g.: «we forthwith expounded the object of another
indictment against Bernard Ducaurroy and another eleven individuals to the jurors»).
The discharge ratio raises to 61% (25 out of 41 defendants) without these unidentified
individuals.
12
Archives départementales de la Somme, collection L, no. 2897.
13
Archives départementales de la Somme, collection L, no. 2897.

32
There were similar cases in the Abbeville district14. On 30th Frimaire
of the Year IV (December 21, 1795), juries decided to discharge
28  people accused of
«gathering at citizen Siffaix’ on the 17th of the month and to have forced the said
citizen to sell his salt at the price they had set»15.

Although it is impossible to reach a comprehensive understanding of all

aspects of the cases, it is noteworthy that most gatherings were described
as unarmed and therefore only punishable by one year of imprisonment
and a fine equal to the value of stolen items. In fact, judicial officers
probably deliberately disregarded the armed nature of plundering to
dismiss an aggravating factor liable to lead to a death penalty16. As
for grain hoarding, grand jury minutes do not provide enough details
to determine the exact circumstances of such transgressions, although
limited data from the Abbeville district suggests that most of them were
minor offences. A few people were prosecuted for «having [their] horses
fed with wheat mixed with oat despite the current grain shortage». A
man was prosecuted for breaking
«the law of 12th Germinal by failing to display on his door the list of goods found at
his place and failing to declare them to the relevant authorities»17.

The latter offence incurred two years of imprisonment and the con-
fiscation of non-declared goods. In such cases, jurors were prone to
acquitting the defendants, given the lack of dangerousness of the offences
and the disproportionality of penalties. There were more indictments by
the grand jury of the Amiens district mainly for public health reasons.
On 27th Thermidor of the Year II (August 14, 1794), jurors sent to
the criminal court of Oise Marie Françoise Elisabeth Girardot for
«having, in collusion with her husband, mixed the flour meant for delivery to the
community granary of the borough with heterogeneous substances which, together,
adulterated the flour and were liable to be detrimental to the health of consumers»18.

14
Data pertaining to the Amiens regional district is not detailed enough to assess the
exact circumstances of plundering (Archives départementales de la Somme, collection
L, no. 3669).
15
Archives départementales de la Somme, collection L, no. 3543.
16
Supplemental decree of 17th Pairial of the Year III.
17
Archives départementales de la Somme, collection L, no. 3543.
18
Archives départementales de l’Oise, collection L, no. 5Lp52.

33
Table 3. Categories of crimes referred to grand juries (unit chosen: number
of defendants)19

Directory
Amiens20 Beauvais Carpentras
(Year IV- (Year (Year VI- Total
VIII)21 IV-VIII) VIII)22
no. no. no. no. %
Homicide 20 25 171 216 21
Serious assault 4 14 2 20 2
Arson 9 15 - 24 3
Theft 167 220 23 410 40
Arbitrary arrest/act 3 - - 3 0
Rebellion against the public
42 28 2 72 7
authority
Riotous assembly/speech/print 28 34 5 67 6
Misappropriation/maladmini-
9 9 4 22 2
stration
Plunder of food 15 - - 15 2
Escape (assisting) 28 9 4 41 4

19
Data produced in the table was found in the records of minutes of the sessions of
the grand juries of the Amiens, Beauvais and Carpentras arrondissements, kept in the
L collections of the Archives départementales de la Somme, Archives départementales
de l’Oise, and Vaucluse.
20
The Constitution of the Year III abolished regional districts and established judicial
arrondissements. Grand juries were now summoned in the capital cities of these new
territorial divisions. This reform led to a significant reduction in the number of judicial
seats, as arrondissements covered a wider area than districts—the 544 existing districts
were replaced with 350 arrondissements (P. MEURIOT, Les districts de 1790. Comment ils
sont devenus les arrondissements de l’an VIII, in «Séances et travaux de l’Académie des
Sciences morales et politiques», 1921, 1, pp. 465-472). For the purpose of the present
study, it should be noted that the arrondissements of Amiens and Beauvais covered a
much wider area than the corresponding districts.
21
There is no data available for the Amiens arrondissement for the Year V and decisions
of this arrondissement’s grand jury were only kept after Germinal of the Year VI.
22
Decisions of the grand jury of the Carpentras arrondissement were only kept after
Prairial of the Year VI.

34
Table 3 (continued)

Amiens Beauvais Carpentras

(Year IV- (Year (Year VI- Total
VIII) IV-VIII) VIII)
no. no. no. no. %
Deserter/conscript (assisting) - 1 - 1 0
Emigrant/deportee (correspon-
8 2 4 14 1
dence)
Fraudulent bankruptcy 10 2 - 12 1
Public and private forgery 19 35 8 62 6
Counterfeit money 9 3 - 12 1
Perjury 8 - 3 11 1
Breaking of seals 2 3 - 5 0
Destruction/extortion (notes/
- 9 - 9 1
acts)
Bigamy - 3 - 3 0
Civil status (false statement) - 2 - 2 0
Unknown 1 - - 1 0
Total 382 414 226 1022 100

Refusing to endanger the physical health of citizens, the jurors decided

to apply the provisions of the decrees of 12-13th Germinal of Year II
against such practices.
The advent of the Directory marked both change and continuity with
the former regimes. Natural crimes (theft, arson, homicide and serious
assault), which accounted for a significant proportion of offences com-
mitted during the Legislative Assembly and the National Convention,
now represented the most part (66%) of crimes referred to grand juries.
This increase was mainly due to the end of stringent criminal policies
with little effectiveness in terms of regulation and free circulation
of vital goods. The Directory ended the execution of the decrees of
16-17th Prairial of the Year III pertaining to the plunder of food but
instituted equally controversial laws aimed at repressing seditious gath-
erings, clamors, and writings as well as complicity in escape. Although
a limited number of defendants were referred to grand juries under
these new laws, the latter met with strong protest for reasons similar

35
to those asserted during the National Convention, that is, the lack of
legitimacy of criminal laws passed in Paris and the disproportionality
of penalties with regard to the alleged offences.
Most gatherings, clamors, and writings deemed as seditious led to
prosecution during the Directory, under the law of 27th Germinal of
the Year IV (April 16, 1796). This law initially targeted the Jacobins,
according to the historian Georges Lefebvre23. In a message to the
Council of Five Hundred, the government argued that
«numerous gatherings occur every day; spurred by perfidious orators who grow bolder
day after day, calling openly for slaughter, for the destruction of the legislature and
the government»24.

Noting the lack of criminal legislation against such offences, the

Directory called on the legislature to draft a law combatting any type
of «incitement to the dissolution of the republican government». This
law was passed virtually without debate in just one day and remained
in force throughout the Directory.
Speech deemed as seditious came in many forms:
«statements liable to disrupt the social order, to lead to the murder of Republicans
and restore the monarchy in France»25,
«to call for the restoration of the monarchy by proclaiming ‘long live the King, to hell
with the Republic’»26
«to seemingly advocate the overthrow of the Republic and the restoration of the
monarchy»27.

Offences pertaining to seditious writings were described as any «distri-

bution or sale of writings seemingly advocating the restoration of the
monarchy in France»28 or of writings entitled «Almanach des gens de
biens» without the name of the author or printer, and seemingly urging
the restoration of the monarchy and the overthrow of the national

23
G. LEFEBVRE, La France sous le Directoire. 1795-1799, Paris 1984, p. 106.
24
Paris, Archive Nationales, C 393/201.
25
Archives départementales de Vaucluse, collection L, no. 16L20.
26
Archives départementales de l’Oise, collection L, no. 5Lp906.
27
Archives départementales de Vaucluse, collection L, no. 16Lp906.
28
Archives départementales de l’Oise, collection L, no. 5Lp906. 

36
representation and the Executive Directory»29. Such statements or
writings incurred the punishment provided for by art. 1 of the law of
27th Germinal of the Year IV, which imposed the death penalty on
«all those who, by their statements or by their printed writings, whether distributed or
simply displayed, urge the dissolution of the national representation or the Executive
Directory, or the murder of the members comprising them, or the restoration of the
monarchy, of the Constitution of 1793, of the Constitution of 1791, or of any govern-
ment other than that instituted by the Constitution of the Year III accepted by the
French people, or the invasion of public property, or the pillage or division of private
properties in the name of the agrarian law or in any other way».

Seditious gatherings were subject to similar rationale. Art. 5 of the law

of 27th Germinal of the Year IV defines seditious gatherings as any
gathering supporting the dissolution of the republican government and
compromising public and individual security. Art. 6 of the same law
provided for penalties ranging from five years of imprisonment to the
death penalty, depending on the status of prosecuted citizens.
Complicity in escape was also punishable, under the law of 4th Vendémi-
aire of the Year VI (September 25, 1797) which was primarily aimed
at those who, by negligence or by collusion, allowed the escape of a
prisoner placed under their surveillance—that is, for the most part,
at prison officers and constables. This offence was already punishable
under the law of 13th Brumaire of the Year II (November 3, 1793)
during the National Convention. In the wake of a series of escapes
during the enactment of the law of suspects, decided to punish by
death any official in charge of guarding prisoners such as jailers, prison
officers, or constables found guilty of assisting or facilitating the escape
of anyone placed under their surveillance30. Any defendant accused of
such a felony and acquitted by a trial jury, due to a lack of criminal
intent (question intentionnelle), was inevitably dismissed and sentenced
to two years of imprisonment by the criminal court31. Conversely, no
penalty could be imposed on defendants who succeeded in proving that
the escape resulted from «force majeure and unforeseeable events»32. A
few months later, on 17th Ventôse of the Year II (March 7, 1794), the

29
Archives départementales de l’Oise, collection L, no. 5Lp240.
30
Art. 1 and 4 of the law of 13th Brumaire of the Year II.
31
Art. 5 of the law of 13th Brumaire of the Year II.
32
Art. 6 of the law of 13th Brumaire of the Year II.

37
National Convention reduced the penalty to two months of imprison-
ment provided that escapees were arrested before the trial.
The application of the law of 13th Brumaire of the Year II quickly
proved to be problematic, given the disproportionality of penalties and
causes of escapes. The criminal court of the Manche department called
on the National Convention to decide whether the destitution and
imprisonment penalties were to be applied in the event of escapes due
to the degradation of prisons. The criminal court also asked whether
the «force majeure and unforeseeable events» clause applied to the
derelict state of some prisons. On 3rd Messidor of the Year II (June
21, 1794), the National Convention stated that it was incumbent upon
the jurors to rule over such issues. Deputies further amended the law
to reduce the severity of penalties. They decided to extend the provi-
sions of the law of 17th Ventôse of the Year II to cases in which the
escapees were arrested within a two month delay upon the end of the
trial. As early as in the Year II, the degradation of prisons and the
harshness of penalties were thus considered as arguments against the
conviction of defendants. As an example, a substantial part (67%) of
rulings pronounced by the grand juries of the Amiens, Péronne, and
Beauvais districts ordered discharges, as shown in the table above. In
view of this reluctance to convict and the constant series of escapes,
the Directory decided to submit the repeal of the laws of 13th Bru-
maire of the Year II and 17th Ventôse of the Year II to the legislature.
Future chief-judge Regnier, then a Rapporteur for the Council of Elders,
deemed these laws as
«exemplifying the appalling period of their establishment, when the death penalty
was unrestrainedly applied, and we are willing to reverse such practices until they are
completely discarded from the French Code»33.

The Directory considered that the death penalty impeded the applica-
tion of the law: «the provision meant to deter devious jailers has only
emboldened them, as it guarantees their impunity»34. On 4th Vendémiaire
of the Year VI, the legislature passed a new law providing a maximum

33
Paris, Archives Nationales, AD XVIIIc 396, Rapport fait par Regnier sur une réso-
lution relative à l’ évasion des détenus, 16th Floréal of the Year V.
34
Circular of the Minister of the Interior Letourneux, 19th Frimaire of the Year VI
(Recueil des circulaires, instructions et autres actes émanés du ministère de la justice ou
relatifs à ce département. An VI, Bruxelles 1874, p. 37).

38
Table 4. Proportion of discharges ruled by grand juries (unit chosen:
number of defendants)35

Directory
Amiens Beauvais Carpentras Total
(Year IV- (Year VI-
VIII) VIII)
no. no. no. no. %
Homicide 9/20 10/25 25/171 44/216 20
Serious assault 2/4 6/14 1/2 9/20 45
Arson 6/9 10/15 - 16/24 67
Theft 37/167 67/220 1/23 105/410 26
Arbitrary arrest/act 3/3 - - 3/3 100
Rebellion against the public
20/42 15/28 1/2 36/72 50
authority
Riotous assembly/speech/print 12/28 22/34 0/5 34/67 51
Misappropriation/maladministra-
2/9 2/9 2/4 6/22 27
tion
Plunder of food 0/15 - - 0/15 0
Escape (assisting) 22/28 7/9 3/4 32/41 78
Deserter/conscript (assisting) - 0/1 - 0/1 0
Emigrant/deportee (correspon-
5/8 0/2 1/4 6/14 43
dence)
Fraudulent bankruptcy 5/10 0/2 - 5/12 42
Public and private forgery 11/19 12/35 8/8 31/62 50
Counterfeit money 8/9 2/3 - 10/12 83
Perjury 3/8 - 3/3 6/11 54
Breaking of seals 2/2 1/3 - 3/5 60
Destruction/extortion (notes/acts) - 3/9 - 3/9 33
Bigamy - 0/3 - 0/3 0
Civil status (false statement) - 1/2 - 1/2 50
Unknown 1/1 - - 1/1 100
Total 148/382 158/414 45/226 351/1022 34

35
Data produced in the table was found in the records of minutes of the sessions of
the grand juries of the Amiens, Beauvais and Carpentras arrondissements, kept in the
L collections of the Archives départementales de la Somme, Archives départementales
de l’Oise, and Archives départementales de Vaucluse.

39
penalty of twelve years of imprisonment for those whose negligence led
to the escape of prisoners.
The proportion of discharges under the Directory is similar to that
observed during the Legislative Assembly and the National Convention.
The odds of being discharged were low for defendants prosecuted for
theft (26%), misappropriation/misadministration (27%), and homicide
(20%). They were substantially higher when it came to political crimes
such as seditious gatherings, clamors, and writings, or complicity in
escape. Such differences suggest that jurors had their own logic, just
as they did under the former regimes. They had a strict stance on
felonies liable to affect their own properties or physical integrity36, but
were reluctant to convict defendants prosecuted under laws deemed
as illegitimate and unreasonably harsh. Prosecutions for seditious
gatherings, clamors, or writings support this view, as evidence from
the available archives clearly show that for the most part, these cases
posed very little threat.
In the arrondissement of Beauvais, Jean-Jacques Canonge was prose-
cuted for
«having, in the morning of the 24th [Vendémiaire of the Year VII, i.e. October 15,
1798], made offensive comments against the Republic and the government, saying
‘let us all cry: long live the Republic; these scoundrels send ever more men to the
slaughter but keep asking for more and this is supported by many plebeians’, just as
citizen Hagué escorted by members of the armed forces was placarding the Military
Conscription Act in the borough, urging by such statements an uprising against the
Military Conscription Act and the overthrow of the current government»37.

A few months later, Antoine Marthe was prosecuted for

«comments, made on the 7th of the present month of Messidor [of the year VII,
i.e. June 25, 1799] in the auberge of citizen Gaudissard in la Chapelle-aux-pots, that
called on the restoration of the monarchy, by stating that he never has, nor will, wear
the revolutionary cockade, that the Republic meant death and the monarchy meant
life to him»38.

Another citizen, Jean-Baptiste Godin, was prosecuted for

36
It is hard to explain the significant increase in discharges pertaining to public and
private forgery (from 22% to 50%), given the small number of cases and summary
information available in the archives.
37
Archives départementales de l’Oise, collection L, no. 5Lp240. 
38
Archives départementales de l’Oise, collection L, no. 5Lp906.

40
«urging the overthrow of the current government as, when asked by citizen Pierre Claude
Dubot, municipal officer and police commissionner of the borough of Sauqueuse, who
was then wearing his sash, why he had Marie Jeanne Davesne, Judith Chaumont, and
Veronique Etraumont draw water during two hours on the decadi of 20th Frimaire [of
the Year VII, i.e. December 10, 1798] in contravention of the law of 17th Thermidor
of the Year VI, he answered that decadi was not important, that citizen Dubos was a
pathetic servant of evil wandering the streets instead of working and that the authorities
were a bunch of bandits wishing to infuriate him»39.

These three cases provide perfect examples of the abuses induced by the
law of 27th Germinal of the Year IV. Statements deemed as seditious
were meant to express personal feelings, such as hostility to military
conscription or dissatisfaction with decadi, and were openly, sponta-
neously addressed to officials of the Republic or in taverns, often out
of bravado or under the influence of alcohol. In fact, such statements
were not at all seditious or counter-revolutionary. Yet, some of their
authors were referred to grand juries and faced the death penalty, due
to a literal interpretation of the provisions of the law of 27th Germinal
of the Year IV.
However, the defendants were often discharged by grand juries, as the
latter were fully aware of the arbitrary nature of such prosecutions and
the disproportionality of the penalties. Likewise, writings deemed as
seditious were liable to lead to prosecution40. Jean-Baptiste Meunier, a
book and paper merchant, was prosecuted for
«having displayed and kept on the door of the house he occupied in Beauvais a placard
featuring the so-called declaration of the rights of man that preceded the constitutional
act of 1793, which was removed by Beauvais police commissioners on 23rd Thermidor
[of the Year IV; i.e. August 10, 1796], thereby attempting to the interior safety of the
Republic and the individual safety of citizens»41.

This example demonstrates that moderate political objections met with

fierce repression. By no means did members of the grand jury who
discharged Jean-Baptiste Meunier compromise the safety of the society;
quite the contrary, they defended the civil liberties and freedom of
speech of their fellow-citizens.

39
Archives départementales de l’Oise, collection L, no. 5Lp906.
40
Regarding seditious gatherings, cf. E. BERGER, La justice pénale sous la Révolution.
Les enjeux d’un modèle judiciaire libéral, Rennes 2008, pp. 191-208.
41
Archives départementales de l’Oise, collection, no. 5Lp240.

41
Jurors had a similar approach to cases of complicity in escape. The
government wanted to reduce the number of discharges and acquittals
by grand and trial juries, as well as that of escapes, by instituting softer
laws. Although the Directory incriminated guards for their alleged
negligence and collusion, it appeared that the escalating number of
escapes was chiefly due to a lack of penitentiary personnel and the
degradation of prisons. In view of such failures, grand juries disapproved
of the prosecution of both prison officers, who constituted the majority
of defendants, and constables in charge of escorting escaped prison-
ers42. Hence, 78% of defendants prosecuted for complicity in escape
were discharged by grand juries. Beyond the arrondissements studied,
such clemency was widespread, as it applied in northern and southern
France, as well as in the Belgian departments43. It was also constant,
as some prison officers were repeatedly discharged. Charles Corroyer,
a guard at the Bicêtre workhouse in Amiens, was released three times,
on 10th Vendémiaire of the Year VII, 10th Frimaire of the Year VIII,
and 10th Messidor of the Year VIII. Likewise, Antoine Sotta, a jailer
at the remand prison of Beauvais, was discharged on 30th Nivôse and
30th Prairial of the Year VI. Another argument against the indictment
of prison officers was the fact that they remain in custody pending their
appearance before grand or trial juries, which hampered the surveil-
lance of the prisons they were assigned to. Grand juries therefore only
indicted defendants who had taken an active part in escapes, such as
Claire Plezay, prosecuted in Fructidor of the Year VI for
«introducing an iron tool in the remand prison [of Carpentras] in order to facilitate
the escape of prisoners»44,

or Marie Marguerite Devet, prosecuted in Prairial of the Year VI for

«facilitating the escape of her husband and a man known as Véron, both of whom
were clapped in irons, from the remand prison of Beauvais»45.

42
Among defendants whose profession is documented, 68% (28 out of 41) were
prison officers, 22% (9 out of 41) were constables and 10% (4 out of 41) were ordinary
citizens.
43
77% of defendants were discharged in the Belgian departments; E. BERGER, La
justice pénale sous le Révolution, p. 269.
44
Archives départementales de Vaucluse, collection L, no. 16L20.
45
Archives départementales de l’Oise, collection L, no. 5Lp240.

42
The apparent bias of jurors for defendants accused of political offences
throughout the Revolution was not intended to disturb public order
but to adapt controversial criminal laws and policies to the reality. The
exercise of justice by the sovereign people thus provided a safeguard
against the partial and excessive application of repressive laws. Therefore,
the behavior of juries, which may at first appear as an abuse of power,
had great legitimacy. During the debate on the law of 4th Vendémiaire
of the Year VI on the complicity of escape, the legislature conditioned
its approval on restoration and additional funding of prisons. The
Rapporteur of the law, Siméon, claimed that such pitfalls provided
«plausible pretexts for escape or could make the surveillance by guards
pitiless, if not illegitimate»46. Tension often sprang up between juries, the
judicial authorities, and the government. Yet, even in those turbulent,
revolutionary times, juries managed to preserve their independence
and the delicate balance of the power instituted by the Constitutions
of 1791 and 1795 (Year III).

46
Paris, Archives Nationales, AD XVIIIc 396, Rapport fait par Siméon sur deux
messages du Directoire exécutif, relatifs à l’ évasion des détenus, dated 8 Ventôse of the
Year V.

43