The different systems of penal codes in Europe : also, a report on the administrative changes in France, since the revolution of 1848

Front matter

THE GIFT OF AAMMck.:^^.

,Me

Cornell University Library HV 9639.S22

PART I. Historical Pevelopment of the Penal Laws of France 9

Penal Code of France 12

Code of Penal Procedure of France 41

Penal Code of Prussia. 57

PART n.

Historical Development of Penal Law in Germany 78

Penal Code of Bavaria g3

Code of Penal Procedure of Bavaria 87

Penal Code of Saxe Weimar 89

Penal Code of Baden 90

Prussian Code of Penal Procedure 92

Penal Code of Austria 94

PART HI.

The Penal Laws of the other States of Europe 108

Condition of Penal Law in Switzerland 109

The Italian States 109

Tuscany and the Roman States 109, 110

Penal Code of Sardinia 110

Penal Code of Russia 112

Penal Code of Turkey 115

Penal Code of Belgium 117

Condition of Penal Law in Holland 119

Penal Laws of Denmark and Sweden 119

Penal Laws of Greece 120

Condition of Penal Law in Portugal 120

Penal Code of Spain 120

Conclusion 123

Code of Penal Procedure of Austria '. 127

Project of a Code of Penal Procedure for Saxony 146

Introduction

INTRODUCTION.

I propose in the following pages to give some account of the history and present condition of penal law in continental Europe. In carrying out this design, I have endeavored to avoid minuteness of detail any fiirther than may [be necessary to the development of the principles of the various systems now in vigor in the leading States of the continent.

Complete analyses will be given of the codes of France and of Prussia, of the first as having served as the basis of inost of the other codes, and as having been of great influence in the formation of all ; of the last, which lias only been in force since a few months, to show the progress made in this science since the formation of the French codes, and in how small a space a complete system of penal laws for a large State can be giyen.

I have divided this work into three parts : the first relates to criminal law in France ; the codes of penal law and procedure are given in detail, with such modifications as have been introduced since the events of the 2d December, 1852, and are preceded by an historical sketch of the development of penal law in France, with particular reference to the course pursued in the formation of its codes. The judicial, administrative, and penitentiary systems of France are also given in this connection.

The new code of Prussia has been included in this part, and follows immediately the French codes, in order to show side by side the two great codes of Europe, and for the better understanding of their distinctive features. ■

The second part is devoted to criminal law in Germany ; an account of the development of penal law in that country, and some details respecting those theories which have had the most influence in its penal legislation, precedes the consideration of the laws of the individual States. The codes of penal law of Bavaria, Saxe-Weimar, a;nd Baden, and the codes of penal procedure of Prussia and Bavaria, are particularly treated of.

The last part is devoted to the penal legislation of the other States of Europe, except England, and details are given of the codes of those States which possess them. The codes of Belgium, Sardinia, Russia, Turkey, and Spain are analyzed, and mention is made of the condition of penal law in every other State.

I have devoted but little space to the history of penal legislation in the various States treated of The development of penal law is the same in all countries to a certain period, and marks clearly the progress of civilization. We find, in the lowest stages, no fixed ideas of criminal law, only a sort of instinctive sentiment of penal justice. The right of*punishment is confounded with the right of self-defence ; private vengeance takes the place of legal punishment, and injuries to person, life, property, or honor, are considered not as crimes, but as wrongs to individuals or their familes, who seek themselves to inflict the punishment for the same. This system of blood for blood leads gradually to the practice of buying witli money an atonement for the crime from the injured person or his family, who continue for a long time to have the choice to take justice into their own hands, or, on complaint before the tribunals of the people, to receive compensation from the offender in money.

The executive power commences now to interpose by limiting the amount of these penalties, or enforcing those which custom has introduced ; and, finally, the State declares itself in fevor of the injured person in case of crimes committed within its territories, and prescribes public penalties for the disturbance of the public peace and the general welfare.

Wo thus find that each member, or even the life of a person, has its price, and long scales of the valuation of injuries which had been introduced by usage, are to be found in the first books of law, of which the first collection of Germanic laws, the l^es barhanrrtim, is a curious instance in point.

8 INTRODUCTION.

Then follows the influence of Christianity, which was a. most important element in the development of penal law, mitigating the barbarous severity of the punishments, and introducing many of the precepts of religion into the laws, which may be found in most of the earlier books of law.

The Roman law has exercised a poweffiil influence in the legislation of Europe. This influence was particularly of importance in the middle ages, when the difierent States of northern Europe sought to systematize their incoherent laws and usages ; nevertheless, this complete and logical system was of more importance in civil than in criminal law.

I have not deemed it advisable in the body of this work to trace back to its source the origin of criminal law, or to follow its -development in detail. There have only berai mentioned, as having an influence on the existing legislation, the first collections of written laws, and those that have succeeded down to the present times.

The great object of this work is to give, in as few words as possible, the pharacteristics of the various codes of Europe, and to avoid all unnecessary detail. As has been before said, most of the codes have for basis the French system. When but little detail has been given concerning them, it is because on those points of which no mention has been made, they resemble the French, and repetition weis unnecessary. I have particularly sought to give those points which differ from the French code. Each State has more or less marked peculiarities in its laws, which are the reflex of the social, moral, or political condition of the people or of its institutions. These I have attempted to point out.

While I have endeavored to be scrupulously accurate in everything which is herein advanced, and to confine myself to a simple statement of facts, I am fully aware that the following pages must contain many omissions. The difliculty of procuring the proper materials for a work of this nature, and of bringing into so small a space the vast amount of matter which has served for it, will be appreciated on perusal.

It will be found to contain many points of interest to our legislators and our jurists. It would be unbecoming in me to give an opinion as to the advantages to our country of adopting or improving upon some of the principles or details which have been given. If it shall have served to attract the liberal and enlightened attention of those who guide the councils or deliberate on the laws of our country to the subject of the codification of our own criminal laws, I shall feel that the labor bestowed thereon has met with an ample return.

Let me be permitted, however, to say, in answer to the objection that we do not require and cannot adopt European systems of penal law, that while undoubtedly the criminal law of a country should be intimately connected with the moral and religious opinions, as well as in a manner the development of the traditions of the people, rather than being, as in France, a direct emanation from the authority, the experience of other nations, even if they differ greatly in their religious and political institutions, and in the usages and intellectual development of the people, may be useful in perfecting the legislation of any State.

♦SaUuat.

PENAL CODES IN EUROPE. V

FIRST PART.

HISTORICAL DEVELOPMENT OF 'THE PENAL LAWS OF FRANCE.

The first national penal law of France dates back to ,the year 1539. While France and Germany formed but one empire, the Germanic penal law was in force in both countries. For a long period after the division of the empire, at the death of Charlemagne, gieat disorders existed in the administration of the criminal laws, the defects of which were remedied but slowly. The Bible was for a long time a principal source of criminal law, the precepts of the Old Testament being cited by the judges. Roman law, though in many respects falsely interpreted, had also great influence. In this state of criminal justice, the necessity of new penal legislation was very urgerit.

The ordinance of 1539 was the first which laid down certain principles of penal legislation. This ordinance, however, was devoted almost exclusively to procedure ; and the forms introduced by it were arbitrary and barbarous. It failed to insure independence in criminal jurisdiction, and could be directly and arbitrarily exercised by the king, or by his representative in the place of the judge. An example of this is given in the Chronicles, in the case of a man, who, on the 17th of January, 1640, was broken on the wheel, and four of his accomplices hung, for the crime of sedition, after condemnation by the chancello'-, who represented the king, and who not only had not questioned the accused persons, but had not even seen them.

In 1670, Louis XIV published an ordinance to mitigate the severity of that of 1539, and to establish the independence of the criminal courts. This «5rdinance, like its predecessors, contained no material regulations of penal justice, and the criminal procedure was not entirely fi-eed from the rigor of the former law. Thus we find the philosophical writers of the 18th century, Filangieri and Beccaria, arguing against the condition of the penal laws in France.

Such was the state of criminal law till the revolution of 1789. One of the principal reforms brought about by that revolution was in the penal legislation of France. The constituent and legislative assemblies showed the greatest activity in organizing and radically reforming it ; and it will not be without interest to give a short sketch of the legislation on this subject from the commencement of the revolution ; for it was at that period that the present penal laws of France originated.

The first important general law of the Constituent Assembly was the organic law of the 24th of August, 1790, by which a separation was made between civil and criminal jurisdiction.

By a law which was published only a few days previously, trial by jury was proclaimed as a principle in criminal cases.

In 1791, the National Assembly published a code •penal, which was prepared by a commission appointed by Louis XVI, in 1788. This penal code laid down the most important principles of criminal law.

i

Of these the two following may be mentioned as the most essential : 1st. No action can be considered as a crime when it is not specially defined as such by law. 2d. The judge" has no discretion in the matter of punishments, but can only pronounce those prescribed by law.

This code was abolished by the code of 3 Brumaire, an. iv, which, with, the exception of a few modifications which were required by the political institutions of the Gpnvenlion, is nearly word for word the code of 1791. It provoked much opposition; the principal argument against it being, that there was no general definition of crimes and misdemeanors, and that the different classes of offences were not sufficiently distinguished froni each other, and that, in consequence of these deficiencies, an unnecessarily large number of questions concerning single circumstances must be proposed to the jury.

This code proved equally defective in practice ; the judge not being permitted to make allowance for extenuating circumstances,, or to commute in any way the punishment prescribed by law. Moreover, the condition of criminal procedure was never satisfactory ; and even its principal bases were contested. No separate code of criminal procedure existed; the laws on. this subject being contained partly in the code of 3 Brumaire, an. iv, and party in special statutes.

These arguments against the then existing penal laws induced Napoleon, then First Consul, to institute a commission for preparing a criminal code. By a decree of 7th Germmal, an. ix, Vieillard, Target, Oudard, Treilhard, and Blondel, were appointed members of this commission, which, in a short time, proposed a " Code crimmel, correctionnel et de 'police,'''' composed of 1,169 articles. This project was printed and referred to the courts of Cassation and Appeal for a legal opinion. At the same time, the court of Cassation was directed to send to the government every year a report of those points of" general legislation which proved detective in their judicial practice. The minister of justice was also instructed to give an annual statement of the inconveniences of the administration of penal justice.

This project of, penal law was first presented to the Council of State, at their sitting of the 2d Prairial, an. xii. The authors of the bill were present at this first deliberation, which-was presided over by Napoleon himself.

Before the commencement of the discussion of the bill in the Council of State, the following fourteen questions were proposed :

1st. Shall the institution of the jury be preserved?

2d. Shall a grand jury and a jury for trials be established"?

3d. In what manner shall the jury be appointed?

4ih. In what manner, and to what extent, shall the right of challenging the jury, (recmaiion,) be exercised ?

5th. Shall the proceedmgs be oral, or partially written and partly oral?

6th. Shall the verdict of the jury be unanimous, or by a majority ?

7th. Shall several questions, or merely the questions of " guilty " or " not guilty," be proposed ?

8th. Shall proper magistrates be appointed to hold assizes at one or several tribunals of the departments?

9th. Shall capital punishment be continued?

10th. Shall imprisonment for life be introduced ?

11th. Shall confiscation be permitted?

12th. Shall the court be allowed to establish a maximum and minimum of punishments ?

13th. Shall mrveUlance be introduced for a particular class of criminals, and, after the expiration of the term of punishment, shall bail be demanded for future good conduct ?

14th. Shall rehabilitation be accorded to those who prove themselves- ■worthy of it ?

Before examining these various questions, the First Consul made a proposition which he esteemed of the 'highest importance ; it was to unite the civil and criminal codes in one great body. The remarkble words of Napoleon on this occasion were : " This fusion is necessary for the formation of a great body, strong in the consideration which civil science gives, strong by its numbers, beyond the reach of fear and individual considerations, which shall cause the guilty to tremble whoever they may be, and shall communicate strength and energy to the ministry."

The Council of State decided at first in favor of the fusion, but afterwards this decision was cancelled on account of the incompatibility of such an union with the institution of the jury. Napoleon on this occasion defended the jury, which was attacked by various members of the council, and finally withdrewhis proposition in consideration of that institution.

This incident had such an influence, however, on the Firgt Consul, that he no longer took part as president in the deliberations on criminal law. Soon alter this, the discussion in the Council of State was closed, and the project remained stationary for four years.

In 1808 the discussion was renewed, and l,he deliberation commenced on the report of the legislative commission of the Council of State, to which the first president of the court of Cassation, Muraine, and the attorney general. Merlin, were invited.

The Council of State decided that the codes of penal law and penal procedure should be separated, and that the dehberation should commence with the code of penal procedure, on which Trielhsu^d had drawn up a very luminous report. Accordingly, the discussion of the individual articles commenced under the presidency of the Emperor. The fourteen preliminnry questions, which are cited above, being first decided upon at the first discussion, no definitive conclusion was arrived at.*

At a subsequent deliberation. Napoleon renewed his proposition for the union of the civil and criminal courts, which was then definitively adopted. The former ground of opposition on account of the incompatibility of the courts was removed; for, besides the regular workiiig of the penal courts, assizes were established for trymg those cases in which the jury pronounced the verdict.

The existing organization limited the competency of the jury to certain cases of grave crimes ; and, in ordinary cases, the judges administered justice without the assistance of the jury.t

* The answer to these questions will be detailed in treating of the present condition of penal legislation in France, ■f For the organization of the courts, see analysis of the Code Penal.

The discussion in the Council of State on the Code cC Instrvction Criminelle was continued during thirty-seven sittings ; after which, as prescribed by the constitution, the project was presented to the legislative body, and was adopted. The Code d' Instruction Crimvielle, which was promulgated in 1810, took effect in 1811. ,

After the termination of these debates, the Council of State entered upon the, deliberation on the Code Penal. This was rather for the improvement of the code of 1791, than for preparing a new systetn of laws. These deliberations occupied forty-one sittings, and the project was then laid before the legislative body and adopted. Like the code of criminal procedure it took effect in ]8il.

The restoration preserved the greatet part of these codes. The only change worthy of particular notice among the few which were made is that concerning the jury. By a law of 2d May, J827, various restrictions were abolished, and the jury was organized in a more liberal manner.

Public opinion had -urgently demanded a reform in the penal code since its first promulgation. The chief objections to it were, that itspunishments were too severe and arbitrary, and that the judge had not sufficient discretion allowed hiifl in the . application of punishments. This reform was adopted in 1832, and a new code published by the government of Louis Philippe. The alterations in the code by this new law were but partial, and as the reporter. Monsieur Dumont, said, its only object was to assuage the severity of some punishments, and to abolish certain others, the pillory, for instance, which were against the custORis of the times ; to reduce other penalties, such as banishment, to their narrowest limits; and, lastly, to rnitigate such punishments as the surveillance of the police. '

A further alteration was made in the year 1835 by the admission of extenuating circumstances, ( circonstances attenwintes.) Under this law the jury decide not only on the question "guilty" or "not guilty," but also whether certain circumstances exist to diminish the criminality of the action, and its consequent punishment. When the jury admit such circonstances atfenuantes, the^ court pronounces a punishment less than the minimum fixed by law.*

THE PENAL CODE OF FRANCE.— (Co(^e Penal)

The Code Penal, comprising 484 articles, gives all the provisions of criminal law in France. Its economy is very simple. It is divided into four books with a short introduction entitled ^' difjjositionsjirelminaires." The first book treats of punishments and their consequences^ (des femes en matiere criminelle el con-eclionnelle et leurs effcis ;) the second book treats of persons who are punishable, excusable, or responsible for crimes or misdemeanors, (des personnes funissaUes, excusable^, ou res-

* The principal writers on penal legislation in France are, Carnot, Legraverend, Bourguignon, Rogron, Chauveau, Fauetin-Hclie.

ponsables pour crimes ou -pour delits ;) the third book treats of crimes and misdemeanors themselves, and their punishments, (des crimes, des delits, et. de leurs ftmuions ; ) the fourth book treats of police infractions and their punishments (des contraventions de police et peines.)

All prohibited actions are divided into three classes : Contraventions, Delits, and Crmm. Tliese grades of offence are not defined, but are classified according to their degi-ess of punishment. Contraventions, which are lowest in the scale, and which come within,the jurisdiction of the Tribunal de Police, are punishable by a fine not exceeding fifteen francs, or imprisonment not exceeding five days. Delits aj'e those offences which are punishable with upwards of fifteen francs fine, or five days imprisonment, and fall within the jurisdiction of the Tribunal Correctionnel. The last and highest grade, crime, is judged-by the Cour d' Assizes, and is subject to an afflictive or infamous punishment (peine afflictive ou infamante.) The 7lh and 8lh articles indicate their punishments,. This division forms the basis of the competency of the French criminal tribunals.

A single officer, either a justice of the peace (Juge de paix) or mayor (Maire,) is judge of the Tribunal de Police.

The Tribunal Correctionnel, which passes judgment upon misdemeanors, is composed of three members of the tribunal judging in first instance, (Tribunal de Premiere instance,) which is also the tribunal for civil cases of the first category.

The Cour d' Assizes, which has the jurisdiction of crimes, is composed of three members of the Court of Appeal, f Cour d'Appel,) and has a jury.

Appeal from the decision of the Tribunal Correctionnel can be made to the correctional chamber of the Court of Appeal, (de la chambre correctimtnelle Cour d'Appel.)

Persons condemned for contraventions may appeal to the Tnbunal Correctiomiel ; but no appeal is allowed for a punishment of less than three francs. There is no appeal from a sentence of the Cour d' Assizes; but in case of a formal or material violation of the law, recourse can be had to the court of cassation ; and a new toial must follow before another Court of Assizes.

"^ To complete the description of the organization of the tribunals of France, and the connexion of its judicial hierarchy with the administrative division of its territory, it may be proper here to remark, that France is divided into eighty-six departments, each department being governed by a Prefect {Prefel) with a council, {Conseil de Prefecture,) and is subdivided, according to the size of the department, into 363 arrondissemcnts, governed by Sub-Prefects, {Sous Prefets,) which are divided in turn into 2,847 cantons, which are subdivided into 36,835 communes.

Each canton has a Juge de paix ; and, consequently, a Tribunal de police.

Each arrondisscmeiit has a Court of First Instance [Tnbunal de Premiere Instance) divided into civil and correctional chambers.

Each department has a court of assizes composed of members of the court of appeal.

For the Courts of Appeal, France is divided into 27 Rissorts or jurisdictions, each with its Cour d'Appel.

Lastly: at the head of the hierarchy is a court of cassation, {cour de cassMwn,) the seat of which is at Paris. This consists pf three chambers, of which two are fot civil affairs, (chambre des requStes, el chambre civile,) and the third for criminal cases {chambre criminelle.)

There is a public prosecutor {ministere fvhlic) connected with every court. At the police court he is the commissary of police ; at the Tribunal of first instance he is the procureur de la Republique;* at the court of appeal he is the Procureur General. The chief of the whole parqiiet is the Procureur general de la.cour de cassation. A hierarchical subordination exists between these magistrates, \!?hose mission it is to see to the execution of the laws, and who a,re greatly assisted by the system of centralization, according to which twenty-seven procureurs of the courts of appeal are in permanent relation with the Procureur genial of the Court of Cassation, and with the minister of justice.

A public prosecutor is exclusively attached to the court of assizes, these courts being composed of members of the courts of appeal. At the court of appeals, when this court exists in the same place with the assizes, the fuctions of public prosecutor are performed by the persons who compose the ministere public ; otherwise by the Procureur de la Republique.

This general sketch of the divisions, judicial aind administrative, of France, will not be complete without giving the legal- and administrative provisions concerning the penitentiary system of France.

An ordonnance of 2d April, 1817, rpodified the most essential dispositions of the Code Penal on punishments, and completely changed the whole prison system of the country. By this ordinance were instituted ma.isons centrales de detention, or penitentiaries, uniting the maisons deforce with the maisons de correction for prisoners condemned for more than one year. The flagrant injtistice of this ordinance consists in this : that persons who are condemned to the degrading penalty of ?-ecZzm"o» receive the same punishment as those who are condemned for a correctional imprisonment of more than one year.

There are in France sixteen circonscriptions de maisons centrales, or penitentiary districts, tne maison centrale, or penitentiary, serving for several departments.

In order to reform this condition of the prisons, which is so contrary to the spirit of the laws, a commission was instituted in 1844 to inquire what changes were needed. This commission has as yet made no report. '

For imprisonment of less than one year there is a house of correction in every Department, except when the Departments are very small, in which case there is one establishment of this kind for two Departments, the superintendence of which is entrusted to a commission of from three to seven persons, appointed by the Minister of the Interior.

For the execution of police sentences, there are cantonal and municipal prisons, supported by the communes by which they are used.

The execution of the punishments of travaux fo/ces, (hard labor,) banishment and deportation (transportation) will be spoken of hereEtfter.

The ordinance of 1817, before mentioned, directs that the maison,

* Now Procwew Imperial.

centrale of Mont St. Michel (department of the Manche) shall be fixed as the residence for those condemned to transportation, till a penal colony shall be instituted, and that when permission to emigrate has not been given, persons condemned to banishment shall be sent to the ' maison centrale of Pierre-Chatel.

By an ordinance of the year 183-5, the prison of Mont St. Michel was designated for the incarceration of political offenders; and, as may be well imagined, it is not the least crowded prison in France.

In regard to those who are awaiting trial, there are particular prisons, called maismis Xarret and maisons de justice — ^these last being places where prisoners are confined who are indicted by order of a criminal court, {chambre d^ accusation,) which takes the place of our grand jury.

By an ordinance of the year 1819, a general committee on prisons {covseil general des prisons) was organized, consisting of twenty-four members chosen by the minister of the interior from among the members of the association for the amelioration of prisons. It ascertains the condition of the prisons, and indicates proposed ameliorations. Besides this council, there is a special inspection of the prisons performed by a commission consisting of two inspectors of the first class, four of the second class, and two honorary inspectors g6neral.

Besides this central commission, each department has a commission of from three to seven persons, appointed by the minister of the interior, on the proposition of the prefect. One of those persons must be the Procureur de la Republique. The special object of this commission is the interior superintendence of the prisons and of all that concerns the salubrity, the discipline, the regular tenure of the registers, the labor and its distribution, and lastly, the religious and moral instruction of the prisoners.

For the prisons of Paris there is a special council of twelve members, who are chosen firom the conseil general des prisons, under the direction of the prefect of police. Besides the administrative superintendence, thfere is a legal surveillance by the judicial magistrate ; the juge dHnstruction being obliged to visit the prisons in his jurisdiction every month, and to make a minute of his visit in his o.wn handwriting on the records. The law requires that the Procureur de la Republique visit the prisons "frequently."

Lastly, the president of the Court of Assizes must visit the maison de justice before the commencement of the session, and hear all complaints of prolongation of detention.

Besides these judicial magistrates, the prefect must at least once a year visit all the prisons and prigoners within his department. (Art. 611, Code d'Instruction Criminelle.) The mayor of every commune, where there is a prison, and in those communes which have several mayoralties, the prefect of police, or the commissary general of police, is obliged to visit the prisons within his jurisdiction at least once a month. The last named officfers see particularly that the nourishment of the prisoners is sufficient and wholesome. They also have charge of the police of the prisons. Nevertheless the judge d' instruction and the president of the court of assizes can determine the regulations which they may think necessary for the preliminary proceedings of their oflice.

The economy of the Code Penal, the jurisdiction of the criminal courts, and the administrative judicial and penitentiary systems of France, having thus been explained, I shall now proceed to' analyze the code ■ itself, according to the method observed in the same.