The principle of legality was a key pillar in the underlying philosophy of the 1791 Code. This principle holds that no one may be convicted of a criminal offense unless a previously published legal text sets out in clear and precise wording the constituent elements of the offense and the penalty which applies to it.[4] In the spirit of the 1789 Declaration of the Rights of Man and of the Citizen, Cesare, Marquis of Beccaria summarized the principles that were to be the foundation of the procedural system. In his words, "every citizen should know what punishment he should endure." This concept was revolutionary in 1791 and clearly departed from the arbitrary trials of the ancien régime. The Code of 1791 was straightforward in this respect; most definitions were clear, leaving little room to the interpretation of the judge.
The adoption of the 1791 Code effectively repealed all previous criminal ordinances and royal edicts relating to criminal matters. The Code was an important influence on the NapoleonicPenal Code of 1810, which replaced it.[5]
Crimes and punishments under the Code
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Articles 1-3 of the Code of 1791
Under the Penal Code of 1791, punishments were ranked in order of severity as follows:
death; execution was to take the form of decapitation, but was limited to the simple deprivation of life, without torture of the condemned (Title I, Articles 2 and 3);[6]
hard labor in chains (les fers) was authorized, but could never be applied as a life sentence; for women and girls, the sentence was ‘confinement in a house of correction’) (Title I, Articles 8 and 9);[6]
confinement (la gêne), for a maximum of 20 years; communication with other prisoners or with visitors was not allowed (Title I, Articles 13 and 14);[6]
Following these came banishment, which was considered an infamous but not afflictive punishment.
All of these penalties — with the obvious exceptions of death and deportation — resulted in the loss of all rights associated with the status of active citizen, a form of civic disenfranchisement that lasted until rehabilitation (Title IV, Art. 1).
The Code also introduced the concept of involuntary manslaughter (Title II, Article 1), which precluded any criminal conviction, while still allowing for the award of civil damages (Title II, Article 2). Similarly, legitimate self-defense exempted a person from any criminal conviction in the case of a homicide.
The Code distinguished between murder (homicide without premeditation) and assassination (premeditated homicide). Rape was punished with six years of hard labor (Title II, Article 29). Article 32 imposed a sentence of twelve years of hard labor on anyone who had “intentionally destroyed the proof of a person’s civil status.”
A sentence of 24 years of hard labor was applicable in cases such as violent theft committed under aggravating circumstances (Title II, Article 5).[6]
Regarding abortion, the Code criminalized the abortionist, punishable by "twenty years in irons", but not the women who had recourse to it (Title II, Article 17).[7]
Life imprisonment and branding with a hot iron (a fleur-de-lis under the Ancien Régime) were both abolished by the Penal Code of 1791, but were later reintroduced in the Penal Code of 1810.
The Code made France the first European country to effectively legalize sodomy by simply ignoring it. Thus, the 1791 Code was the first Western code of law to decriminalize such conduct since Classical Antiquity. Its sponsor, Louis-Michel le Peletier, presented it to the Constituent Assembly saying that it only punished ‘true crimes’, not the artificial offenses condemned by ‘superstition’.[8][9]
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