Napoleon’s “France of the guillotine” is one the “great myths” of the First Empire, widespread in both French- and English-language historiography. For some, the period was characterised by summary executions, left, right and centre, all in the name of “Napoleon’s dictatorship”. How credible is this?
A little clarification, first of all, for those who think that France was not subject to the rule of law: it was tribunals composed of tenured judges who passed penal judgements, and crimes were debated before popular juries. Before the Code of penal procedure came into force in 1810 (the Code Pénal of 1810), there were even two juries: one for the accusation and another for the judgement. Only a magistrate, called a “magistrat de sûreté”, could decide on the incarceration of the suspect during an inquiry, a procedure which was led by another magistrate called “Directeur du jury d’accusation”. Once the different audiences and legal acts had taken place, this “Directeur” would then advise the “jury d’accusation” as to the subsequent steps to follow. If this figure chose to send the accused to face the tribunal, he ceded his place before the “jury de jugement” and the trial proper.
After 1810, the procedure known as “mise en accusation” or trial was totally changed. The “jury d’accusation” disappeared. The “magistrat de sûreté” and the “Directeur du jury” were replaced by a “juge d’instruction”. And it was this latter judge who could send the trial to court. His “ordonnance” or command was transmitted to a “chambre du conseil” (chamber of counsel) which replaced the “jury d’accusation”. This jury comprised three magistrates and chose from three possibilities: to declare the case dismissed and the liberation of the accused; to refer the case and send it to a lower court (“correctionnelle” or “de police”, i.e., of summary jurisdiction); or to transmit the case to an Imperial Procurator and to hear it before a Court of Assizes, comprising three professional magistrates and twelve jurors. The latter were selected by the prefect from amongst citizens appearing on a roll of the three hundred highest tax payers in the Département, a sort “bourgeois-ification” of penal justice which in various forms lasted until really quite recently.
As for the justice that these jurors dispensed, studies have shown that whilst acquittals under the old system represented circa 40% of the total number of cases from An VIII to An XII, and circa 36 % from An XII to 1811, with the new systems, the Penal Code of 1810, acquittals remained largely similar, at 33 % in 1813, 38 % in 1814, 33 % in 1815, 31 % in 1816. Figures in authority showed themselves often unhappy not only with jury decisions but even with those the magistrates, criticising them for being timorous. But even then, justice was justice, and there was no going back on the decision.
Public opinion wanted harsher sentences and was unhappy when, in cases of guilty verdicts, the jury members tried on occasions to soften or limit the often-severe sanctions implied by the “Code penal”. As far as death penalties were concerned, twelve to fifteen executions took place every year per Département; much fewer than during the Revolution (there were between 2,000 and 2,700 executions in Paris in the ten years, 16,594 in the whole of France during “the Terror”).
Above all, there were three times fewer executions in France (for a population of 29 million) than in England and Wales (for a population of 10 million). That is at least what the statistics published in 1820 in a British journal, The Edinburgh Review, gave for the years 1813-1816.
Death sentences in France and in England and Wales
1813-1816
| 1813 | 1814 | 1815 | 1816 | |||||
| France | England and Wales | France | England and Wales | France | England and Wales | France | England and Wales | |
|
Total number of prosecutions for crimes: |
5,343 | 4,422 | 3,402 | 4,025 | 4,376 | 4,883 | 6,807 | 5,797 |
|
Death sentences: |
307 | 713 | 183 | 558 | 256 | 553 | 414 | 890 |
|
Percentage of death sentences: |
5,7 % | 16,1 % | 5,3 % | 13,9 % | 5,8 % | 11,3 % | 6,1 % | 15,3 % |
Source: Edinburgh Review, August 1820, pp. 1-39, esp. 9.
English translation by Peter Hicks, December 2017