Political Crime in Europe [Reprint 2020 ed.] 9780520347069

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Political Crime in Europe

BARTON

L.

INGRAHAM

Political Crime in Europe A COMPARATIVE

STUDY

GERMANY,

U N I V E R S I T Y

OF

OF

AND

FRANCE, ENGLAND

C A L I F O R N I A

Berkeley

/

Los Angeles

PRESS /

London

University of California Press Berkeley and Los Angeles, California University of California Press, Ltd. London, England Copyright © 1979 by The Regents of the University of California ISBN 0-520-03562-3 Library of Congress Catalog Card Number: 77-83103 Printed in the United States of America 1 2 3 4 5 6 7 8 9

Contents

Preface

ix

Acknowledgments

PART

Chapter

1

XV

A Theory of Political

1. Problems

of Definition:

The Positivist Definition of Crime The Repressive Response 6 Functions of Criminal Law 9 Analytical Definition of " C r i m e " Chapter

2. Aspects

of Political

Crime

Is Political

Crime

13 Crime:

When

Is a Crime

Political Crimes in Western Civilization—Nature of the Offense

2

Comparative

19

ONE:

34

Analysis of Laws

Relating to Political Crime and Their Administration France, Germany, and Great Britain, 1770-1970 SECTION

18

"Political"?

Why Acts of Betrayal and Acts Challenging or Hindering Political Authority in the Past Have Been Regarded as Crimes 22 The Preventive Aspects of Laws Dealing with Political Crime 26 The Switch from Prevention through Repression to Prevention by Regulation Conclusion 36

P A R*TT

3

"Criminal"?

5

Prologue

in

39

Contents Chapter

/ vi 3. The Procedural

Immediately

and Substantive

Law of Political

Prior to the French Revolution

Crime

(1770-1789)

39

The Monarch as the Object of Protection versus the State as the Object of Protection 39 The Enlightenment and the Doctrines of Liberalism 41 France 44 Germany 47 Great Britain 50 Conclusion 58

s e c t i o n

t w o : The French Revolution

and the Period of

Reaction

(1789-1830) Chapter

61

4. France (1789-1830)

63

The French Revolution, 1789-1795: Liberal Reforms and Political Realities The Napoleonic Period, 1799-1814 67 The Restoration of the Monarchy and Its Problems in an Age of Revolution, 1815-1830 70 François Guizot—The Liberal View of Political Crime 78 Summary 83

Chapter

5. Germany

(1789-1830)

85

Counterrevolutionary Laws of the 1790s 85 Revolutionary Activity and Measures Adopted to Maintain the Status Quo Treatment of Political Crime in the Bavarian Penal Code of 16 May 1813 Legal and Philosophical Views Concerning Political Crime 95 Summary 97

Chapter

63

86 93

6. Great Britain (1789-1830)

99

Measures Taken to Immunize England from the Effects of the French Revolution, 1790-1800 99 Postwar Repression of Early Labor Riots and Rebellions, 1816-1820 105 The Growth of Liberalism in the Decade Preceding the Passage of the Reform Bill of 1832 108 Trials for Treason, Sedition, and Other Political Crimes, 1792-1831 110 The Liberalism of Jeremy Bentham 112 Summary 116

s e c t i o n

t h r e e : A Time of Ferment (1830-1851 ): Springtime

of

the Policy of Leniency Chapter

119

1. France (1830-1851)

121

Reforms in the Law on Political and Press Crimes 122 The Law of 28 April 1832 and the Lenient Penal Treatment of Political Offenders 124 The Testing of These Laws 127 The Second Republic (1848-1851)—Return to Repression

Chapter

8. Germany

135

(1830-1851)

The Disturbances Triggered by the July Revolution of 1830 and the Second Wave of Repression 140

140

Contents / vii The Penal Code Revisions of Württemberg, Hesse, Baden, Nassau, Saxony, and the Thuringian States 142 The Penal Code of the Prussian States, 14 April 1851 144 The 1848 Revolution and Its Aftermath 145

Chapter 9. Great Britain (1830-1848) Period of Ferment, 1830-1848 Legal Developments 152 The Policy of Leniency 159 Summary 164

149

149

S E C T I O N f o u r : A Time of Consolidation Summer of the Policy of Leniency Chapter

(1852-1914):

The 167

10. France (1851-1914)

170

Louis Napoleon and the Second Empire (1851-1870) 170 The Third Republic until the First World War (1870-1914)

176

Chapter 11. Germany (1851-1914)

185

The Nature of the System Established by Bismarck The German Penal Code of 15 May 1871

187

Subsequent Legislation and Political Repression Summary

185 193

198

Chapter 12. Great Britain (1849-1914) The Period of Quiescence, 1849-1905

200 200

Political Crime in Ireland, 1858-1891, and Measures Taken for Its Suppression 201 Aliens, Anarchists, and Extradition 204 Further Developments in the Law of Sedition 207 The Policy of Leniency—Continued 209 The Last Days of Liberalism: 1906-1914 214 Summary 218

s e c t i o n f i v e : Political Crime in an Age of Ideology The Autumn and Withering of the Policy of Leniency Major Changes in the Twentieth Century and Contributing Causes Positivism and Political Crime: The Early Positivists 221 Fascism and Political Crime 225 Decline of Positivism 227

Chapter 13. France (1914-1970) The Fourth and Fifth Republics, 1945-1970

228

233

244

Chapter 14. Germany (1914-1970) The Weimar Republic, 1919-1933

248 248

Control of Political Crime in Nazi Germany, 1933-1945 The Federal Republic of (West) Germany, 1949-1970 Summary

219 219

228

The Third Republic and the Interbellum Years, 1918-1939 Summary

(1914-1970):

283

256 267

Contents

/ viii

Chapter

15. Great Britain

288

(1914-1970)

War and Postwar Emergency Legislation 292 Control of Speech and Press Offenses, Public Meetings, and Demonstrations of a Violent or Seditious Nature 296 Decline of the Policy of Leniency toward Political Offenders 304 Summary 311

PART

Chapter

3

Final 16.

Remarks 317

Conclusion

Review 317 "Lessons" 319 Conclusion 327

A P P E N D I X E S A. Remarks of the Drafting Commission of the French Penal Code of 1810 B. Treason, Sedition, and Other Political Trials in Great Britain, 1792-1831: Statistical Summary 333 c. The Eighth Amendment to the West German Penal Code, dated 25 June 1968 336

Bibliography

331

345

Table of Statutes Cited (in chronological order)—France, Germany, England, and Scotland

354

Table of Cases Cited (in alphabetical order)—France, Germany, England, and the United States

Index

367 371

Preface

Today one hears the expressions political crime, political criminals, and political prisoners bandied about in the press and in public discussion with little precision of meaning. They are used, more often than not, in a pejorative sense. 1 To many Americans these terms suggest the legal persecution of unpopular dissident groups or individuals for their political, religious, or ideological beliefs, and therefore lend themselves easily to polemical discussion. With little discrimination the speaker may apply them to those operations of the criminal justice system which he detests and to those objects of it with whom he sympathizes. Almost invariably the very same operations carried on by governments with which the speaker sympathizes against those groups or individuals whom he detests are not regarded as "political" or, if they are recognized as such, are not viewed as persecutions.2 Current usage is so highly subjective that for analytical purposes popular definitions must be rejected as worthless. With such usage, it is simply a question of whose ox is being gored. ' S e e Lance Morrow, " W h o (and What) Is a Political Prisoner?" 98 Time 18-19 (6 September 1971). 2 Note, for example, the almost complete editorial silence observed in the liberal and radical press with respect to rightist victims of government repression: Robert Shelton (Imperial Wizard of the Ku Klux Klan convicted of contempt of Congress in September 1965 for failure to turn over the records and membership lists of his organization to the House Un-American Activities Committee), George Lincoln Rockwell (leader of the American Nazi Party, whose headquarters were padlocked in 1965 by the Internal Revenue Service for nonpayment of taxes and who experienced several state prosecutions for his political activities), and Major General Edwin Walker (arrested in October 1962, charged with inciting rebellion, insurrection, and seditious conspiracy for leading students in an attack on federal marshalls attempting to desegregate the University of Mississippi at Oxford, and subsequently confined by federal authorities at the government hospital in Springfield, Missouri " f o r psychiatric evaluation"). Except for the political coloration of the defendants, it is not immediately apparent what distinguishes their prosecutions from those of Angela Davis, Huey Newton, Philip and Dan Berrigan, or Dr. Spock.

Preface

/ x

There exist, nonetheless, such things as "political crimes," "political criminals," and "political prisoners." The problem for the social analyst is to define each term in such a way that, regardless of the cultural, political, or historical setting, the phenomena may be recognized, identified, and separated from other phenomena which are distinct in some important aspect. It is one of the objectives of this book to formulate a theoretical model of the criminal law in operation and to place "political" crimes and criminals within the framework of that model. The renewed interest of scholars in the United States in the subjects of political crimes, political trials, and political prisoners during the last ten years probably reflects the events of those years and the intense political conflict between the Johnson and Nixon administrations and their critics. 3 But contemporary American scholarly analysis of the political aspects of political crimes, trials, and prisoners is lacking in three respects. First, American scholars tend to view political crime and political justice as aberrations and distortions of criminal law and its administration, notwithstanding their persistent and frequent appearance in American history. Thus, former Senator Charles Goodell states in Political Prisoners in America, But what I believe is most disturbing about repeated and continuing abuse of the criminal process to control dissent is that with no apparent gain to any interest, our criminal and political s y s t e m s are o m i n o u s l y distorted. W e rely on our criminal system to protect us from attacks o n person and property. 4

Second, a lack of analysis is manifested in confusion over terminology. Not only is there a lack of agreement as to terms, but discussions of political crime seldom relate in any theoretically consistent way to discussions of political trials and prisoners. We are told by the authors of two recent books analyzing "political trials" that they may be defined independently of the charge brought against the defendant, which may or may not involve a "political off e n s e . " 5 It is sufficient if the prosecution is politically motivated. "Political prisoners," in some quarters, are members of oppressed minorities who have 3 On the subject of political trials, see Theodore L. Becker (ed.), Political Trials (Indianapolis: Bobbs-Merrill, 1971); Leon Friedman, "Political Power and Legal Legitimacy: A Short History of Political Trials," 30 Antioch Review 157-170 (summer 1970); on the subject of political crime and criminals, see Marshall B. Clinard and Richard Quinney, Criminal Behavior Systems: A Typology (New York: Holt, Rinehart and Winston, 1967), pp. 177-246; Stephen Schafer, "The Concept of the Political Criminal," 62 Journal of Criminal Law, Criminology, and Police Science, 380-387 (1971); on the subject of political prisoners, see Charles Goodell, Political Prisoners in America (New York: Random House, 1973); Willard Gaylin, In the Service of Their Country: War Resisters in Prison (New York: Viking, 1970). "Goodell, Political Prisoners, p. 172. 5 Becker, Political Trials, pp. xii, xv; Erich S. Gruen, Roman Politics and the Criminal Courts, 149-78 B.C. (Cambridge, Mass.: Harvard University Press, 1968), p. 6.

Preface / xi been imprisoned neither for the commission of political crimes nor as the result of a political prosecution. 6 Third, American discussions of political crimes, offenders, and prosecutions tend to be based too much in contemporary American history and to reflect too greatly local legal and moral issues. For example, the issues discussed in this country in connection with political crime and its repression revolve almost totally around First Amendment concerns involving the suppression of dissent and the moral and legal propriety of civil disobedience. While it is true that political crime always has included within its ambit the expression of political opinion challenging the authority of rulers and hindrance of their policies out of moral conviction, the idea that these matters somehow subsume the entire area of political crime lends to the American treatment of the subject its peculiarly parochial and innocent flavor. The American preoccupation with these rather mild forms of political crime reflects the fact, not that the United States has never experienced political violence, but that such violence so rarely has taken a revolutionary form. 7 This volume examines the problem of political crime and its control in societies where the exact conditions of the American environment do not prevail. American authors often overlook the fact that the problems which the United States has faced recently in the legal management of internal dissent and political conflict are worldwide and that there is a rich body of materials which can be drawn from foreign sources to aid in analysis. I shall attempt to advance the discussion, first, by an analysis of the nature of political crime and the measures used for its control in the context of other kinds of crimes and crime control measures and, second, by placing the discussion in its historical context and in the context of a comparative analysis of laws and crime control measures applied in three Western European countries during the last two hundred years. The three European nations chosen as case studies—France, Germany, and Great Britain—illustrate six central theses of this book. For the sake of clarity, and to assist the reader in following my argument, these six central theses will be listed at the outset in the form of propositions, support for which will be offered in the historical and legal materials which follow. 1. For analytical purposes, political crime is best defined in terms of the societal and governmental reaction to politically deviant behavior. All political offenses have tended to fall under two broad categories: a. those which are seen as involving betrayal of allegiance to principles or persons that bind the political order; 6

Morrow, " W h o (and What) Is a Political Prisoner." 'See Edward Pessen, " W h y the United States Has Never Had a Revolution—Only 'Revolutions,' " 72 Southern Atlantic Quarterly 29—42 (winter 1973).

Preface

/ xii

b. those which are viewed as involving a challenge to, or hindrance of, political authority. Whenever an act is seen as possessing one or both of these qualities, it will be dealt with in a political manner. 2. Governments deal with political offenses by employing all manner of criminal, civil, and purely administrative measures to suppress them or reduce their harmful effects. 3. Whenever the moral component (that is, the morality or immorality) of any kind of politically deviant behavior becomes ambiguous or doubtful, there will be a shift in the manner of administering the laws from a punitive and condemnatory to a preventive and regulatory mode; conversely, when the offense regains its moral component, there will be a shift back to more punitive measures of repression. This shift in governmental response is observed not only in the realm of political crime but is found in the legal response to all forms of illegal deviant behavior. 4. On the whole, for reasons having to do with the preservation of political power and authority, the preventive uses of criminal and other laws and procedures are emphasized at all times and the administration of political justice constantly reflects this emphasis. In countries with a liberal democratic tradition the use of laws and procedures for prevention rather than for punishment is poorly understood and runs into continual conflict with basic traditional principles of criminal responsibility and due process in the determination thereof. As a result, the preventive uses of law always appear to liberal critics to be illegal and unconstitutional overreaction on the part of governments which employ such tactics. In liberal democracies there is inevitably a conflict between measures taken by governments in self-defense against illegal political opposition and the principles on which the liberal legal order is based, causing governments in such countries either to justify such measures as temporary emergencies or to carry out such measures under the guise of ordinary crime control. 5. Even though legislation in this area is highly "reactive," in the sense of being the product of particular, politically significant events, prevailing political philosophy greatly affects the form such legislation takes. The political philosophy shared by most members of the government, including the legal fraternity, limits and shapes the legal measures adopted to meet the political exigencies of the age. It is not true that governments adopt whatever measures of repression are both necessary and efficient in suppressing perceived dangers. The influence of ideology is strong. Frequently, the measures adopted fall far short of what is required for effective repression, and this is largely due to moral values and political beliefs which restrain governments from taking the kinds of draconian measures that are within their powers.

Preface / xiii 6. Nevertheless, in liberal Western democracies the use of legal measures for political repression has on most occasions been successful in protecting the State from the violence of its enemies, even though governments have been forced to hedge on the strict application of liberal principles. Contrary to popular belief, repressive measures, when used with restraint, have not led to the spreading or strengthening of political opposition (the metastasis theory), but instead have subdued it and forced it into legitimate and peaceful modes of expression. Moreover, the limited use of legal repression for defensive purposes has not led to the growth of a "police state." More often it has been the failure to employ limited measures of repression during a period of weakness and division which has led to the polarization of factions within society, the defeat of democracy, and the introduction of a dictatorial regime.

A cknowledgments

This book represents years of research and communications with various experts in the fields of criminal law and the sociology of law. I should now like to express my indebtedness and appreciation to the following scholars who helped guide my path with many valuable suggestions: Dr. Phillip Selznick of the University of California, Berkeley; Dr. Peter P. Lejins, University of Maryland; Dr. Gerhard O. W. Mueller, Rutgers University; M. Marc Ancel, President of France's Court of Cassation; Professor Dr. Joseph Haussling and Professor Dr. Hans-Jiirgen Kerner of West Germany; and Mr. Joseph O. Losos of St. Louis, Missouri. Helping out with translations from German were Tony Peters of the Netherlands and Mrs. Senta Pugh, formerly of West Germany, now a U.S. citizen. Thanks also go to Mrs. Ethel Thorn and many others for typing the several versions of this lengthy manuscript.

PART

A Theory of Political Crime

CHAPTER

X

Problems of Definition: Is Political Crime "Criminal" ?

The focus of this book is on societal reaction to various forms of political crime and the effect of this reaction on the definition of persons as "political criminals" and on the legal measures adopted by governments to punish and regulate these offenders and prevent future offenses. This work will not focus on the behavioral or psychic characteristics of individuals who engage in political crime. It is my position that societal reaction to behavior determines, ultimately, what behavior is regarded as "criminal" and what criminal behavior is regarded as political. It is necessary first to define political crime and the political criminal before even beginning to discuss the behavioral or psychic characteristics of offenders of this type. To avoid circularity, a definition of behavior should import definitional criteria external to the theory used to explain the behavior. Otherwise, one's definition of a certain behavior embodies one's theories of that behavior and " p r o v e s " the theory at the same time by excluding from consideration all empirical evidence inconsistent with the theory. Examples of such circular definitions are numerous in the field of criminology, but one of the more recent ones in the area of political crime is Stephen Schafer's definition of the political criminal.' Schafer recognizes a distinction between a "convictional" criminal who commits a crime from altruistic motives, being absolutely convinced of the morality of his actions, and the "conventional" criminal who acts from selfish motives. He would limit the term political criminal to cases of "convictional" crime and call conventional 'Stephen Schafer, "The Concept of the Political Criminal," 62 Journal of Criminal Law, Criminology, and Police Science 380-387 (1971).

A THEORY

OF

POLITICAL

CRIME

/

4

crime committed in the name of politics "pseudo-political" criminal behavior. While such a dichotomy between offender types may be both possible and useful for some purposes (for example, for diagnosis), Schafer never makes clear in his discussion what deprives selfishly motivated crime committed in the name of politics of its "political" nature, or why a government or a people should react differently (and thus make a distinction) to crime which threatens their vital interests according to whether or not the offender's motives were altruistic or selfish. The danger to those vital interests is the same in both cases—perhaps being even greater when the offender's motives are "con vie tional" than when they are selfish, The definition of political crime formulated here will be sociological (analytical) rather than legal. As Edwin Schur has observed, 2 the perspectives of the sociology of law and jurisprudence overlap in many places; it is mainly a question of where the emphasis is placed. The sociology of law uses the methods of the social sciences in examining the social and political factors at work in legislation, in the administration of laws, and in changes in those laws over time. Jurisprudence attends more to a philosophical discussion of what the law should be; building its analysis on discussion of doctrine, it sometimes fails to keep distinct and separate the questions of what the law is in practice from what it purports to be in doctrine. In this work discussion of legal doctrines will be avoided, except insofar as doctrine reveals the psychic and social processes at work in the justification of what is done by officials and enforcers in the name of the law. A sociological study of criminal law, or some aspect of it, must begin by taking into account the different goals that underlie legal and analytical definitions. All legal definitions may be characterized as policy definitions. That is, acts are subsumed under a legal term according to the jurist's or lawmaker's desire that they be treated in a similar way in the fulfillment of a certain policy. Thus, legal definitions already embody their results, their conclusions. For a court with the power of deciding what the law will be, calling an act a "civil wrong" rather than a "criminal offense" is merely a decision that the act will be handled in the future in the manner of civil wrongs rather than crimes. It usually does not assist us in understanding the essential differences between civil and criminal wrongs, assuming there are any, nor does it help us understand why some acts are defined and handled one way and other acts other ways. For this reason, Papadatos's complaint in his treatise on political crime that all definitions of political crime proposed to date by legal analysts "have been dictated in advance by the conclusions which they would be expected to 2

Edwin Schur, Law and Society: A Sociological 17-18.

View (New York: Random House, 1968), pp.

Problems of Definition

/ 5

reach," 3 is not an objection to legal definitions of political crime alone, but applies to all legal definitions. Analytical (scientific) definitions also are definitions with a purpose, the purpose being primarily to explain for better understanding. This may be done in various ways according to the interest of the scientist. One may state the conditions necessary for the application of the term so that phenomena with theoretically related or similar attributes may be grouped under the same term, or one may simply establish indicators to test operationally an underlying theory. In almost every case, the definition will embody preliminary hypotheses about the factors one suspects will be critical in explaining the phenomena, whether it be their origin, operation, causes, or functions. But the definition at this stage must be loose and flexible so as to adjust to the results of research. 4 The danger of adopting legal definitions of political crime for analytical purposes lies in their delimitation of the subject matter in accordance with the objectives of their formulators. These objectives have nothing to do with the understanding of the phenomenon itself. In seeking an analytical definition of political crime, our first task will be to attempt to understand the nature of crime and to ask what is "criminal" about political crime? The question may seem facetious until one realizes that the criminality of political crime has been argued and disputed by many, in recent times and in the past.

The Positivist Definition of Crime Positivism in the social sciences, which still probably represents the dominant modality of thought in the area of criminology, tries to be realistic and scientifically objective by taking the social and legal order as given. In the belief that the word crime is simply a label attached to certain kinds of behavior by the criminal law, positivists' definitions of crime tend to hew rather closely to the legal definition. Thus, although the formulation of the definition differs in minor respects depending on the criminologist, the positivist basically defines crime as that behavior which violates the criminal laws of the State.5 In other words, whatever authoritative organs of the State, such as courts and 3 Pierre A. Papadatos, Le Délit politique: Contribution à l'étude des crimes contre l'état, thèse no. 507 (Geneva: Librairie E. Droz, 1954), p. 71. 4 Abraham Kaplan, The Conduct of Inquiry: Methodology for Behavioral Science (San Francisco: Chandler, 1964), p. 72. 5 Edwin H. Sutherland and Donald R. Cressey, Principles of Criminology, 7th ed. (Philadelphia: J. P. Lippincott, 1966), p. 4; Jerome Michael and Mortimer J. Adler, Crime, Law and Social Science (New York: Harcourt, Brace, 1933), p. 5; Paul Tappan, "Who Is the Criminal?" 12 American Sociological Review 96-102 (February 1947); Richard Quinney, The Problem of Crime (New York: Dodd, Mead, 1970) pp. 4 - 8 ; and see Herman and Julia Schwendinger, "Defenders of Order or Guardians of Human Rights?" 5 Issues in Criminology 123-157 (summer 1970), pp. 124-129.

A THEORY

OF P O L I T I C A L

CRIME / 6

legislatures, choose to call criminal is criminal. Implicit in this approach is the confinement of one's analysis of "crime" and legal behavior with respect to "crimes" to those categories of behavior officially defined as "criminal." Criminologists, including sociologists studying legal behavior, are not entirely happy with this approach. On examination it appears that virtually any kind of behavior—moral, immoral, or morally neutral, deviant or nondeviant, harmful or harmless, public or private—is capable of being labeled criminal and at one time or place has been so labeled. This phenomenon is commonly referred to as the "relativity of crime." 6 When Roscoe Pound looked at penal legislation in the United States in the 1920s, he found that there were hundreds, if not thousands, of criminal statutes in every state covering an enormous variety of behavior, and that the number of these statutes had been steadily increasing over a hundred-year period.7 The situation today has not changed substantially, notwithstanding the reform and codification by some states of their criminal laws; lawyers still speak of "the crisis of overcriminalization."8 The proliferation of criminal laws has deprived the concept of crime of whatever stable content it might once have had. It can no longer be said (if it ever could have been) that crime represents a community judgment as to what is truly reprehensible behavior. Thus, criminal behavior has become almost coextensive with noncriminal behavior, sharing all the attributes of noncriminal behavior and possessing no essential character of its own, except the random and arbitrary characteristic that it has been subjected to the possible application of a penalty by the criminal law. This development has caused some criminologists to despair of ever constructing a science of criminal behavior whose principles would not be equally applicable to noncriminal behavior. 9 The positivist definition of crime, therefore, tells us only what behavior has the potential of being proceeded against criminally and labeled as "crime." It tells us nothing about the behavior itself, how criminal behavior differs from noncriminal behavior, what the societal reaction to it will be, and whether it will be handled criminally, or civilly, or will be ignored. The Repressive Response Virtually any act is capable of being defined as "criminal" by the State (that is, capable of being prohibited by law and having this prohibition enforced 6

Sutherland and Cressey, Principles, pp. 6 - 7 . 'Roscoe Pound, Criminal Justice in America (New York: Henry Holt, 1930), pp. 15-20. "Sanford H. Kadish, "The Crisis of Overcriminalization," 374 Annals of the American Academy of Political and Social Science 157-170 (November 1967). 'See, for instance, Robert Mclver, Social Causation (Boston: Ginn, 1942), p. 88; Thorsten Sellin, Culture Conflict and Crime (New York: Social Science Research Council, bull. # 4 1 , 1938), pp. 17-32.

Problems of Definition / 7 through the use of criminal sanctions). This is especially true when law, including criminal law, is viewed as an instrument of effectuating social policy objectives, for then criminal law will be overburdened with many functions unsuited to the sanctions it must employ. While it is true that a wide range of behavior is capable of being defined as "criminal," it is not true that every act has an equal chance of being so labeled. Which acts are and which acts are not is not simply a function of what society's leaders regard as the most effective way of dealing with a social problem or of effectuating a social policy. If this were the case, the scope of the criminal laws probably would be much narrower than it is today. Human responses to the behavior of other humans—including the responses of legislators and enforcement officials—are not governed exclusively by rational considerations but also by emotions such as hostility, indignation, fear, annoyance. There are three categories of acts which have strong tendency to arouse these negative emotional responses: (1) highly immoral acts, which violate central values of the society or of its dominant groups and which arouse their hostility, indignation, and sometimes fear and anxieties; (2) repetitive breaches of public order, which strain the patience of authorities or influential groups and which seem to defy control through other methods; and (3) politically dangerous acts, which seem to threaten the sovereignty of a people or the authority or vital interests of those in charge of making and enforcing the laws. These three categories of acts tend to produce the desire to inflict suffering on the wrongdoer or to eliminate any further activities of a similar kind on his part or on the part of others similarly disposed. This desire shall be referred to henceforth as the "repressive response." That these three classes of behavior have the greatest probability of evoking a "repressive response" is substantiated by a wealth of material. Both Radcliffe-Brown and Diamond have noted in their anthropological studies of primitive law that a public punitive reaction expressing the moral indignation of the community most often follows actions which violate tribal taboos (highly immoral acts), repeated breaches of tribal norms (repetitive breaches of public order), or direct offenses against constituted authority or against persons in whom that authority rests (politically dangerous acts). 10 Many sociological studies of sentencing practices in the United States confirm that penal sanctions are most likely to be imposed and probation and parole denied when the offender has committed a serious and morally reprehensible crime, is a habitual offender, or continuously challenges the authority of those who attempt to con10 A. R. Radcliffe-Brown, "Primitive L a w , " in Encyclopedia of the Social Sciences (New York: Macmillan, 1933), IX: 202-206; A. S. Diamond, Primitive Law, Past and Present (London: Methuen, 1971), pp. 167, 191, 221, 295, 400.

A THEORY

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POLITICAL

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/

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trol his conduct. 11 According to a nationwide survey conducted in 1965 by the editors of the Harvard Law Review of the administration of juvenile delinquency laws, the juvenile delinquents most likely to be processed all the way through the system and to receive sentences to institutions, rather than being diverted out of the system on probation or early release into the custody of their parents, were (1) serious crime violators, (2) refractory types who were not duly submissive and contrite in the presence of authority, and (3) recidivists and incorrigibles whose lengthy records of previous offenses caused the authorities to give up on them. 12 This finding is supported by several other studies which show that in interaction with police the same three classes of juveniles are disproportionately referred to court for further action rather than being diverted out of the system. 13 Although the repressive response is often an expression of emotions of hostility, indignation, fear, and annoyance, it is not devoid of practical considerations. For instance, the failure to respond vigorously and aggressively to highly immoral or politically dangerous acts might be construed as a sign of lack of commitment of authorities to central values of the system or to their authority position in the face of direct challenges. 14 In the case of repetitive wrongs, other means of control may have been tried and found inefficacious. The mere fact, however, that an activity is considered "harmful" in some way to social interests meriting the protection of the law is usually not sufficient to ensure the arousal of emotion and the repressive response. Therefore, every act which is deemed "harmful" to a societal interest or to the effectuation of social policy does not have the same chance of becoming defined as "crime." " R o b e r t Carter and Leslie Wilkins, " S o m e Factors in Sentencing Policy," 58 Journal of Criminal Law, Criminology, and Police Science 5 0 3 - 5 1 4 (December 1967) (the four most significant factors in deciding for or against probation: seriousness of the crime, confinement status, prior record, and number of arrests); Henry Allen Bullock, "Significance of the Racial Factor in the Length of Prison Sentences," 52 Journal of Criminal Law, Criminology, and Police Science 411— 417 (November-December 1961) (seriousness of the offense, offender's plea before the court [an indicator of defendant's attitude toward authority], and type of area [urban v. rural] where tried); Edward Green, "Sentencing Practices of Criminal Court Judges," American Journal of Corrections 3 2 - 3 5 (July-August 1960) (the seriousness of the crime, number of charges on which offender convicted, prior criminal record); and see National Parole Institutes, "Selection for Parole," Parole Resources Book, part 2 (April 1966), pp. 162-163 (considerations in parole decisions). le "Juvenile Delinquents: The Police, State Courts and Individualized Justice," 79 Harvard Law Review 7 7 5 - 8 1 0 (February 1966), pp. 778-782. 13 Irving Piliavin and Scott Briar, "Police Encounters with Juveniles," 70 American Journal of Sociology 2 0 6 - 2 1 4 (September 1964); Carl Werthman and Irving Piliavin, " G a n g Members and the Police" in David J. Bordua (ed.), The Police: Six Sociological Essays (New York: John Wiley, 1967), pp. 7 0 - 7 4 ; and see Thomas D. Gill, " W h e n Should a Child Be Committed?" 4 National Probation and Parole Association Journal 1 - 6 (1958). 14 J. Feinberg, Doing and Deserving (Princeton, N.J.: Princeton University Press, 1970), pp. 100-105.

Problems of Definition / 9 Exactly what acts will be regarded as falling within one of these three categories differ from culture to culture and within the same culture over time. It depends on various factors, such as the value system of the society, its basis of political organization and political philosophy, the tolerance level of the society for disruptive forms of behavior, and so forth. It is important to realize, however, in studying the reactions of humans to the behavior of others, that how the act is viewed symbolically is often more significant than how it may be viewed as to its effects from a disinterested or abstract point of view. 15 Men regard acts not only according to their effects but also as forms of communication, representing in behavior the ideas and attitudes of the actor. These symbolic expressions of ideas and attitudes have as great a potential for arousing the emotions of others as the actual outcome of any act. It may be that symbolic expressions possess the greatest potential for arousal of emotion. An analytical definition of "crime," therefore, ought to take into account those aspects of behavior, whether because of their effects or their symbolism, which produce a repressive response—the most characteristic feature of the law of crimes and the administration of criminal justice. Functions of Criminal Law The repressive response usually manifests itself in two ways: (1) in the condemnation of behavior that is felt to be morally reprehensible, and (2) in the prohibition of the activity condemned in the sense of absolute prevention. Condemnation serves the function of preserving important values of the society and of vindicating the sense of violated right of the victims and their sympathizers. 16 Mere words of condemnation are seldom adequate to express the degree of emotion or level of commitment which lies behind the official response; people usually expect some more tangible evidence that the authorities share their outrage, and punishment—the infliction of suffering and deprivation— satisfies that requirement. As Durkheim observed almost a century ago, the intensity of the punishment will not be in relation to the "harm" which the violation causes, objectively viewed in terms of its physical or pecuniary consequences, but rather in relation to the intensity of the emotion which the violation generates.17 Law performs a great variety of functions in modern societies. Among 15

See Joseph R. Gusfield, "On Legislating Morals: The Symbolic Process of Designating Deviance," 56 California Law Review 54-59 (1968). 16 Feinberg, Doing and Deserving, ibid.; Sir James Fitzjames Stephen, A History of the Criminal Law of England, 3 vols. (London: Macmillan, 1883), 11:81-82. "Emile Durkheim, The Division of Labor in Society (New York: Free Press, 1964), p. 72.

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some of the more important functions are the resolution of disputes, the maintenance of public order, the protection of the polity and its members from external and internal enemies, the preservation of authority relationships, the maintenance of important values, the regulation of activities to enhance public welfare and safety, and the allocation, division, and limitation of official power. 18 Criminal law is not used effectively in the settlement of disputes between private persons and organizations. The effect of its use in aggravating the level of conflict in the early history of labor-management relations in this and other Western countries should be ample proof of the truth of this assertion. Punishment, which awards victory to one side and defeat to the other and which attempts to suppress claims that the losing side advances with deep conviction as to their lightness, will seldom go far in restoring amicable and peaceful relations between disputants. Durkheim probably was mistaken when he assigned the use of repressive and restitutive sanctions to different developmental stages of society. 19 People in primitive (mechanical) societies seem no more disposed than people in modern (organic) societies to employ a collective punitive sanction in order to settle a private dispute. 20 Where the disputants are unable to settle their differences among themselves, they are not punished; instead, an attempt is made to mediate their dispute and to encourage them to arrive at some mutually satisfactory compromise. In modern societies this mediation process takes place within the structure of formal litigation and adjudication in which, on the face of things, one party seeks total vindication at the expense of his adversary. In fact, however, most civil disputes are "settled out of court," with the plaintiff receiving some, but not all, of his demands. 21 Indeed, the legal system encourages such compromise. Criminal law is also not used effectively in the limitation of official power, although republican Rome with its treason prosecutions of dangerously demagogic politicians22 and the vestigial modern counterpart, the legislative im18 On functions of law, see Harold J. Berman, Nature and Functions of the Law (Brooklyn: Foundation Press, 1958), pp. 34-40; H. L. A. Halt, The Concept of Law (London: Oxford University Press, 1961); Talcott Parsons, "The Law and Social Control," in William M. Evan (ed.), Law and Sociology: Exploratory Essays (New York: Free Press, 1962), pp. 56-72; Edwin Schur, Law and Society, pp. 79-82; E. Adamson Hoebel, The Law of Primitive Man (Cambridge, Mass.: Harvard University Press, 1961), pp. 275-287. " S e e Durkheim, Division of Labor, ibid. 2 "For evidence contradicting Durkheim's thesis, see Richard D. Schwartz and James C. Miller, "Legal Evolution and Societal Complexity," 70 American Journal of Sociology 159-169 (September 1964). "Perhaps as much as 90 percent of all civil litigation is ultimately concluded this way. 22 Erich S. Gruen, Roman Politics and the Criminal Courts, 149-78 B.C. (Cambridge, Mass.: Harvard University Press, 1968).

Problems of Definition / I I peachment process, 23 provide at least two examples of its being used exactly for this purpose. For one thing, it is unreasonable to expect official violators to use their own judicial machinery to punish themselves. For another, there is no longer any great need for such severity; milder solutions have been invented. Today official power is constrained by constitutions which allocate, divide, and limit its exercise. Courts often are given the authority to review and occasionally nullify extensions of official power beyond their jurisdictional boundaries. Criminal law has been used to perform the remaining functions, however. Since endangering any of these interests (public order, internal and external security, authority relationships, important values, public welfare and safety) does not necessarily elicit a repressive response, it is obvious that the criminal sanction, punishment, at present performs more functions than condemnation and absolute prevention (prohibition). These remaining functions relate mainly to the maintenance of public order and the regulation of activities for the public welfare and safety. Regulation and prohibition both involve an attempt to prevent future law violations. However, there are important differences between them. To regulate an activity is to permit it to continue, but subject to constraints which seek to direct it into the least harmful or most beneficial channels. Punishment has been found to be useful in accomplishing this, since some people do not respond to any other motivator. To allow an activity to continue, however, suggests that the activity, although harmful in some of its manifestations, is not considered evil in all of them—in other words, it may be mildly displeasing but is basically tolerable under control. Activities that are regulated by criminal law are given the name mala prohibita, that is, things that are wrong because prohibited by law, not intrinsically evil. When punishment is applied in this context, its use is entirely instrumental: if it is ineffective in inducing compliance, people will regard it as having lost its usefulness. Punishment also may be supplemented with other control measures or be withheld or withdrawn completely, if compliance is more effectual in that way. Prohibition, or absolute prevention, on the other hand, suggests more than mere regulation of behavior; it suggests an attempt to eradicate the behavior through total suppression or by driving it so far underground that it no longer obtrudes on the public consciousness. As Norval Morris has remarked, "It is impossible to regulate behavior that you prohibit." 24 It goes without saying that "Raoul Berger, Impeachment: The Constitutional Problems (Cambridge, Mass.: Harvard University Press, 1973). See especially chap. 1 on the English impeachment process, which is more "criminal" than its American counterpart. 2 'Norval Morris, "Crimes without Victims: The Law Is a Busybody," New York Times Magazine, 1 April 1973, pp. 10-11, 58-62; quotation, p. 11.

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such an effort to efface offensive behavior can be generated only by the strongest moral sentiments of reprobation or by the most intense fear of it. When punishments are used for this purpose, their function is not only instrumental but also symbolic. An attempt is made to convey through them the message that not only should all such activities cease in the future, but all thinking about such activities should cease. This is why it is so difficult for utilitarian reformers to remove criminal laws performing such functions from the statute books merely by showing that punishments are ineffective in ensuring compliance or that they do more social harm than good. 2 5 It is often impossible in reading a criminal statute to determine whether it is attempting to regulate activities through the instrumental application of criminal sanctions or whether it is attempting to prohibit and condemn them. One has to look at the administration of the law to make this determination. Where regulation is the purpose, one may expect to find milder penalties, greater leniency shown when the offender exhibits repentance and a willingness to comply, and punishments imposed and withdrawn according to his compliance and the threat he poses of future misbehavior. 26 In general, one will see more concern with the general effects of the law on others than with their effects on the offender himself. There is, of course, nothing uniquely "criminal" about the function of regulating human conduct to avoid human conflict and to provide for the general safety and welfare. Equity decrees, administrative regulations, and even many judicially ordered "treatments" of problem behavior (drug addiction, mental illness, juvenile delinquency) perform this function in the civil law, and there is no apparent reason why all regulation could not be carried out within the civil law. Criminal law might be confined to behavior that typically arouses " S e e , for instance, Edwin M. Schur in Schur and H. A. Bedau, Victimless Crimes: Two Sides of a Controversy (Englewood Cliffs, N.J.: Prentice-Hall, 1974). 26 See Sanford H. Kadish, " S o m e Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations," 30 University of Chicago Law Review, 4 2 3 - 4 4 9 (1963). Illustrations of this procedure of remitting penalties when the defendant changes his attitude and submits to regulation can be observed in two Selective Service Law cases which arose during the Vietnam War. David P. O'Brien of Cambridge, Massachusetts, bumed his draft card in protest over the conduct of that war, was arrested, convicted, and sentenced to a six-year prison term. After an unsuccessful appeal to the United States Supreme Court (United States v. O'Brien, 391 U.S. 367 [1968]), O'Brien had a change of heart and agreed to abide by the draft laws in the future. As a result, a sixyear prison sentence was revoked, he was freed, and placed on probation. See "Boston Draft Card Burner Freed," Associated Press news release in Daily Californian, 14 November 1968, p. 2. A similar experience was had by Erik Whitehorn (Palo Alto, California), whose mother would not allow him to register for the draft and who was convicted of failure to register in U.S. District Court in San Francisco in May 1969. After evidencing a "change of attitude" (which entailed a repudiation of parental control) and a willingness to abide by Selective Service regulations, Whitehorn had his four-year sentence canceled. See "Impressed Judge Frees Whitehorn," Oakland Tribune, 26 August 1969, p. E - 7 , cols. 1 and 2.

Problems of Definition / 13 the repressive response, and its sanctions and procedures could be designed to maximize the accomplishment of its unique objectives. In any event, I am imposing that limitation on my definition of "crime" for analytical purposes. Analytical Definition of "Crime" Based on the foregoing analysis, I propose the following definition of crime: Crime is any act or omission or course of behavior deemed to be wrongful and injurious to the society as a whole or to its political leaders which they, acting through their law makers, interpreters, and enforcers, seek to punish or permanently prevent from recurring.27 Now, to review the separate elements of the definition: 1. A crime always involves an act (including a failure to act if there is a legal duty to act under the circumstances), even if that act is as inconsequential as uttering a thought or entering into an agreement or understanding with others. Even in the case of heresy, the heresy must be manifested in some way by behavior which brings the heresy to the attention of the authorities. Crime also may involve a course of behavior leading to a status (such as the "social parasite" in the Soviet Union) which arouses the repressive response toward persons having such a status. 2. The act must be deemed to be wrongful (in the sense of highly immoral, extremely dangerous, or intolerably annoying or vexing) either by the authorities entrusted with administering the law or by the people of the society. It is not sufficient that it merely be deemed injurious to the public welfare. This element distinguishes crime, as defined here, from regulatory offenses (mala prohibita), which do not contain the moral component implicit in the use of the word wrongful. Regulatory offenses purposely are excluded from the analytical definition of crime presented here. 3. The act must be deemed injurious to the society as a whole. What distinguishes crime from civil wrongs is the public nature of the wrong in the case of crime. 28 Acts injurious to the political leaders of the society, especially those which threaten their authority, are likely to be viewed also as "injurious to the society as a whole," if not by members of that society, then certainly by 2 'Compare the definition of crime once offered by the German legal scholar Makarewicz: " A crime is an act by a member of a given social group, which by the rest of the members of that group is regarded as so injurious or as showing such a degree of antisocial attitude in the actor that the group publicly, overtly, and collectively reacts by trying to abrogate some one of his rights." J. Makarewicz, Einfiihrung in die Philosophie des Strafsrechts (Stuttgart: Enke, 1906), pp. 79-80. 28 William L. Marshall and William L. Clark, A Treatise on the Law of Crimes, 7th ed. (Mundelein, 111.: Callaghan, 1967), pp. 1-13; Diamond, Primitive Law, p. 167.

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the political leaders themselves and their enforcement agencies. The indicator of the public nature of the act is that third parties (in advanced societies, agencies of the State) customarily assume a central role in the disposition of the case. By "central role" I mean that once the matter gets into their hands, they, and they alone, have the discretion of carrying it through to final disposition and, in the case of the kinds of acts embodied in the definition, usually do so. 4. Finally, the sanction imposed must be for the purpose of punishment (infliction of suffering on the offender for a wrongful and injurious act) or for the purpose of permanently preventing the recurrence of the offense. Insofar as the sanction is employed primarily for the purpose of deterring others from committing the offense (general deterrence) or reforming the offender (rehabilitation), the law is being used for a regulatory, not "criminal," purpose. 29 The foregoing analytical definition of crime will undoubtedly meet with several objections. First, it may be argued that I have limited my definition essentially to those acts which were crimes at common law two hundred years ago, 30 and that such a definition simply ignores a vast number of acts which have been made criminal since then by legislation. Second, it may be argued that an analytical definition of crime which ignores the legal designation of acts as "crimes" overlooks the very real consequences that flow from such labeling, consequences that will analogize these acts (and the way they are handled procedurally) to other acts legally designated as crimes whether they bear any intrinsic similarity to each other or not. Finally, it may be argued that the definition is not complete, in that no act is a crime unless and until someone with the power to decide adjudges it to be such. Such a realist would insist, at least, that I substitute the word adjudged for the word deemed in my definition. My answer to the first objection is a frank admission that my analytical definition of crime does not include all acts that have been labeled criminal under the laws of modern Western nations. The definition also includes some acts and proceedings labeled civil.31 But my analytical definition is not designed 29 See Herbert Packer, The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968), part 1, chap. 3, which reveals the utilitarian purposes behind general deterrence (assuring general compliance with the law and acting as a socializing device for instilling conforming attitudes in people, pp. 39-45) and behind rehabilitation ("so changing the personality of the offender that he will conform to the dictates of the law," p. 53). Both are excellent examples of the regulatory use of legal sanctions. 30 "All serious common-law offenses are classed as mala in se, to which are added all breaches of the public peace or order, injuries to person or property, outrages upon public decency or good morals, and willful and corrupt breaches of official duty." Marshall and Clark, Treatise on the Law of Crimes, p. 117. References to common-law offenses in American law refer to offenses recognized as criminal by English law at the time of the American Revolution. 31 For instance, sexual psychopath proceedings in most instances and juvenile delinquency proceedings in many instances. Proceedings to deport undesirable aliens, although civil proceedings, are also often used to punish "crimes."

Problems of Definition / 15 to explain which acts are, or will be, given one or the other label. It is designed to ignore labels, and to look to the underlying functions of law in order to explain the way law is actually administered by the people who use it. The approach taken here recognizes the possibility that a people may use an old law and its procedures (methods and techniques), or erect a new law based on an old model, in a new problem area to perform functions for which those particular laws and procedures are in no way suited or appropriate. This may happen for historical reasons, for reasons of expediency, or for other reasons. For instance, a criminal law, using criminal techniques, may perform the function of regulation. This will produce numerous contradictions and discrepancies between the actual use of the law and the theories and rationales underlying the law being applied. If one were to concentrate on the labels attached to the law, one would never be able to understand why courts and other agencies of enforcement act differently in these new areas than they do in other areas which perform the traditional functions of criminal law. Second, acts are not locked into one functional category forever, and certain offenses do not remain "crimes" forever. As acts lose their moral component, but continue to be viewed as injurious in some circumstances, the use of the sanction will shift from punishment or absolute prevention to regulation. There will be a corresponding tendency for the methods and techniques of dealing with these acts to change from those commonly associated with "criminal" laws to those associated with "regulatory" laws, as the function of the law itself changes. This is why laws against abortion have evolved from criminal statutes prohibiting and punishing what was once thought to be a heinous offense to regulatory laws which now seek only to ensure that abortions are carried out under safe and sanitary conditions. The second objection can be disposed of in a few words. First, I admit that attaching a legal term to an act can carry with it a host of other legal consequences, both substantive and procedural. 32 On the other hand, the consequences frequently fall short of complete analogy to the concept embodied in the term. 33 This incomplete analogizing sometimes reflects the fact that the problems in the new area are not the same as in the area where the term was employed originally, and the use of the analogous term tends only to prevent appreciation of the special considerations that apply in the new field. One of the special considerations is not uncommonly that the function previously performed by the law is 32 As, for example, the consequences that followed the attachment of the term legal person to corporations. See "Corporations," 18 Corpus Juris Secundum (Brooklyn: American Law Book, 1939), §8, pp. 386-389. " T h e analogizing of corporations to persons has its limits and has not been pushed to extremes. See Comm. v. Welosky, 276 Mass. 398, 177 N.E. 656, 659, 660 (1931); In re Clark's Will, 204 Minn. 574, 284 N.W. 876, 878 (1939).

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different from the function of the law in the new area to which the term is carried over. Unless one were sensitive to these differences of function and other special considerations, one might be misled by the use and application of the legal term to the new area. The legal consequences that are supposed to flow from the use of a legal term (by reason of the legal doctrine in which it is embodied) do not always "flow," even though the courts may not have explicitly recognized any special consideration to prevent the logical consequences that seem to be entailed in the use of the term. When one examines what is actually going on in the courts, however, one notices that they are acting in complete derogation and disregard of the legal principles which are supposed to govern their conduct. This should alert one to the possibility that the functions being performed by the courts in their day-to-day business in handling the new problems in which old terms are used are different from the functions that were performed by courts in areas where the terms and principles were originally used. Thus the attachment of legal terms to acts does not always carry with it the consequences that might have been expected from doctrine or logic. Reality controls semantics. The third objection—that no act can be described as "criminal" until someone in authority labels it as such—presents serious methodological problems. Whether one adopts Paul Tappan's legal-realist definition of crime and criminal, 34 or favors the labeling theories of deviance espoused by Howard Becker, 35 one is forced by this approach to view crime as a complex process of interaction between individuals or groups and those who create and apply the norms of society. This complex process involves many variables—such as the respective natures of the parties on both sides of the equation, differentials in their respective power positions, political and value conflicts operating within the society, the influence on the process of the legal institutions themselves— all terminating in the final designation of an act and a person as criminal. 36 Such a model is so cumbersome, so overloaded with relevant variables, as to be virtually useless for scientific purposes at the present time. While such a complex model may ultimately prove to be necessary for answering the question " S e e Tappan, "Who Is the Criminal?" pp. 100, 101: "Only those are criminals who have been adjudicated as such by the courts....He may be a boor, a sinner, a moral leper, or the devil incarnate, but he does not become a criminal through sociological name-calling unless politically constituted authority says he is." "Howard S. Becker, Outsiders (New York: Free Press, 1963), p. 9: "Social groups create deviance by making the rules whose infraction constitutes deviance, and by applying those rules to particular people and labelling them as outsiders. From this point of view, deviance is not a quality of the act the person commits, but rather a consequence of the application by others of rules and sanctions to an 'offender.' The deviant is one whom that label has been successfully applied; deviant behavior is behavior that people so label." 36 See Austin T. Turk, Criminality and Legal Order (Chicago: Rand McNally, 1969).

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" W h o is the criminal in our society?" it is probably unnecessary for an analytical explanation of crime as a legal and social concept. Even the law itself defines crime as the commission or omission of certain acts under certain circumstances, with accompanying states of mind, and stops there. It does not include in the definition the result of its own process of determining whether or not a crime was committed in the past.

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Aspects of Political Crime: When Is a Crime "Political"?

Political crime is not a category of crime separated from other crimes according to the interest being legally protected. It does not fall within the customary classifications of crimes such as those against persons, property, religion, the family, and against the State and political order, although most political crimes naturally tend to fall within the last category. 1 A crime is not "political crime" simply by virtue of the act's natural and direct tendency to disturb the political order of the State.2 Even jurisprudence recognizes that ordinary and common crimes3 may be "political" in certain circumstances, depending on diverse factors such as the motive, intent, or object of the offender. 4 For example, if a group of revolutionaries robs a bank during an insurrection in order to obtain funds for the purchase of weapons, it was once conceded almost universally that the crime (although denominated "armed robbery," an offense against both persons and property) was "political." It is not any one of the factors just mentioned which determines whether 'The categories listed according to the interest protected are common in Western criminal codes and can be found in more or less the same groupings in Pitirim Sorokin's discussion of the fluctuation of ethicojuridicial mentality in the criminal laws of Western countries. See Sorokin, Social and Cultural Dynamics, 4 vols. (New York: American Book, 1937), 11:530-533. 2 Crimes that possess the natural and direct tendency of disturbing the political order of the society are called "pure" or "direct" political crimes in Western jurisprudence. They are crimes such as treason, insurrection, sedition, sabotage, and espionage. 3 By "ordinary" or "common" crimes is meant crimes against other interests than those of the State or political order; for example, murder, theft, or rape. 4 In continental European jurisprudence, ordinary crimes which have political elements are sometimes referred to as "mixed political crimes" or "common offenses connected with political elements" or "relative political offenses."

Aspects of Political Crime / 19 an act or a crime is "political." Instead, the "political" nature of the crime depends on the kind of legal response the act evokes from those in authority. A common crime may be politically motivated or have a political object, but unless it is regarded as "political" by authorities (for example, regarded as threatening their power and authority), the legal response to it will be the same as for other common crimes; there will be no "special handling" of the case as is customary for true political crimes. Since I am primarily interested in an analysis of legal behavior in the administration of laws, the kind of response that the act evokes and the legal techniques employed in dealing with it are of central interest. The two are interdependent, that is, the particular light in which the act is seen and the emotional response it produces largely govern the manner in which legal machinery is used to deal with it, as we noted in the last chapter. Just as the official legal response to certain kinds of behavior will be repressive depending on certain actual or symbolic qualities of the act as seen by those in authority, so also will the official legal response be affected by whether the act is seen as actually or symbolically "political." This approach necessitates investigating the characteristics certain acts must seem to possess in order to be regarded as "political," why these qualities have in the past elicited a repressive reaction from society (why, in other words, acts of political deviance have been treated as "crimes"), and the particular form that this repressive reaction takes in the case of political crime. I do not wish to imply that there is anything inevitable about the nature of the response to acts which endanger the political organization of the State. If the behavior is viewed at a different time in a different light—and the prevailing political philosophy may have an effect on this—the legal response will be different from what it was in the past and may change from one which seeks to punish or suppress the behavior to one which seeks merely to regulate it and keep it under surveillance.

Political Crimes in Western Civilization—Nature of the Offense The term political crime has been used for approximately 180 years, having been introduced into the vocabulary of Western European nations at the time of the French Revolution.5 Prior to that time most crimes against the State or against the political leaders of Western nations fell under the broad ambit of the concept of treason or, as it was known in countries following the legal tradition 'Pierre A. Papadatos, Le Délit politique: Contribution à l'étude des crimes contre thèse no. 507 (Geneva: Librairie E. Droz, 1954), pp. 37, 43.

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of Roman law, crimen laesae majestatis.6 If one looks at all those acts which have been included within the term of treason in Western legal history from the time of the ancient Greek city-states to the beginning of the nineteenth century in Europe and adds to these acts which have been included under the term political offense in European law since then, one observes a large and extremely diverse body, which I have grouped initially into the following twelve categories: 7 1. Acts of betrayal to an enemy, including abandonment of fortifications, an encampment, troops, or a fellow countryman to the enemy, desertion from the armed forces, aiding enemy prisoners-of-war to escape, entering into agreements and conspiracies with the enemy, espionage and sabotage, revealing official secrets (whether to the enemy or not), fighting as a member of the enemy's armed forces against one's own people, and all acts aiding and abetting the enemy in time of war. 2. Attempts, conspiracies, and acts endangering the life of the head of government, those in the line of succession, and principal members of the government, including assaults, imprisonments, kidnappings, and assassinations. 3. Certain economic crimes, including counterfeiting the official seal of government and its money and, for purposes of deceit, bringing counterfeit money into the country, transporting precious metals and money outside the country, and, in certain revolutionary or emergency situations, virtually any act deemed to be sabotaging the economic development of the country. 4. Certain sexual crimes, including rape of, or adultery committed with or by, the monarch's wife or close female relatives and intermarriage between persons of the political in-group and the political out-group. 5. Speech and press crimes, including seditious words and libels, inciting the armed forces to mutiny or desertion or affecting their loyalty in time of war "This term from Roman law connotes a crime against the authority, dignity, and prestige of the ruling power. Although it came to have monarchical overtones, the original use of the term in Roman law was in the phrase crimen majestatis populi romani imminutae, which means " t h e crime of diminishing the dignity of the Roman people." The term was originally applied, according to Mommsen, to protect authority of the plebian magistrates, somewhat in the same manner as the criminal contempt power is exercised by contemporary courts. See Theodore Mommsen, Le Droit pénal romain, trans, from German by J. Duquesne, 3 vols. (Paris: A. Fontemoing, 1907), 11:232 ff. Roman law distinguished between proditio (the crime of betrayal to a foreign enemy) and this crime, which was of an internal political nature. The European civil law countries continued this conceptual division in their laws and made a distinction between political crimes of an " e x t e r n a l " nature, where a foreign enemy was involved (in French, trahison; in German, Verrat), and political crimes of an " i n t e r n a l " nature, where the matter was strictly between the subject and his ruler (in French, lise-majesté; in German, Majestàtbeleidigung). Older English legal commentators used the Latin term to signify any crime affecting the king's person and dignity (Black's Law Dictionary, 4th ed. [St. Paul: West Publishing, 1951], p. 447), but later the term was dropped, and thenceforth English " t r e a s o n " incorporated both " e x t e r n a l " and "internal" political crimes within one term. 'This listing of offenses is derived from Papadatos, Délit politique, for ancient Greece, Rome, and Western Europe from the Middle Ages to the present; and from W. G. C. Hall, Political Crime (London: Geo. Allen and Unwin, 1923), for England from the first Treason Act (1351) to the present.

Aspects of Political Crime / 21 or insurrection, and all words or writings insulting to, or impugning the dignity of, the Head of State or questioning the legitimacy of the government or its capacity to govern. 6. Religious crimes (usually when there is a state religion), including heresy, blasphemy, and acts of impiety, and quasi-religious modern counterparts such as the symbolic act of defacing national symbols (for example, flag desecration). 7. Rebellion, riot, and resistance to authorities in their performance of official duties, illegal assemblies in times of emergency, acts of terrorism directed against the regime, and all acts, attempts, and conspiracies related thereto. 8. Attempts by political leaders against the liberties of the people (in democratic or republican societies), including the introduction of unconstitutional legislation and the promulgation of illegal decrees. 9. Membership in, or the organization of, illegal societies, secret societies, and political groups hostile to the established regime. 10. Usurpation of official function and authority by unauthorized persons, including enrolling troops for war without the permission of the government, levying imposts and taxes without authority, and maintaining private prisons. 11. Nondenunciation (misprision) of treasonable plots and conspiracies by those who learn of them prior to or after their being put into operation. 12. Miscellaneous offenses, including peculation, extortion, and embezzlement by officials and bribery of officials, election bribery, coercion and fraud, participation in foreign wars without authorization, and other acts involving the State in conflict with foreign powers, attempts to travel abroad without the permission of authorities, and all conventional crimes which are politically motivated and which entail both an attack on the State and some private interest, such as robbery, theft, vandalism, and murder committed during, or in furtherance of, an insurrection. In reviewing this list of crimes, one may observe that many have certain features in common and can be further consolidated categories. A. Acts of betrayal: those which deal with the safety and nation or society with respect to a foreign enemy. 8 B. Challenges to political authority and legitimacy: those the safety and security of rulers and the legitimizing principles right to rule and their authority depends. 9

of the offenses into four basic security of the which concern on which their

"Mainly acts listed in category 1, but also some of the acts listed in categories 3, 4, 9, 11, and 12. 'Mainly acts listed in categories 2, 4, 5, 6, 7, 9, and 11, but also some of the acts listed in categories 3 and 12.

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C. Hindrance of official function: those which involve impediments or embarrassments to rulers in carrying out the functions of government such as the conduct of foreign relations, taxation, coinage of money, raising of armies, or the administration of law. 10 D. Usurpations of granted powers: those which concern the protection of the people from tyrannical efforts by rulers to enlarge the powers granted them and to subvert the traditional political rights enjoyed by the people. 11 When the variety of acts previously listed are condensed into these four major groupings, it is not difficult to perceive their "political" nature. What is not so immediately apparent is why political acts falling within these categories have been perceived during most of human history also as being "criminal." Why Acts of Betrayal and Acts Challenging or Hindering Political Authority in the Past Have Been Regarded as Crimes Recall from the discussion in Chapter 1 that among the functions performed by law is "protecting political groups from external and internal enemies and preserving authority relationships within societies." This is an area where behavior threatening the function usually evokes a "repressive response" from societal members or ruling groups, practically ensuring that the legal remedy would involve condemnation and punishment or absolute prevention (prohibition). During most of history, acts of betrayal and acts challenging political authority and hindering its exercise have fit the analytical definition of "crime" because they were regarded as highly immoral and extremely dangerous by those administering the law and because they usually elicited the "distinctively criminal" sanctions of punishment and absolute prevention. It is necessary now to explain why this was so. As Gaetano Mosca observed almost a hundred years ago, all people socially organized beyond the level of mere kinship groups coalesce around certain "ideas, beliefs, opinions, sentiments, customs and prejudices, which are to each group of human beings what the lineaments of the face are to each individual." 12 To this he gave the name "social type"; anthropologists might speak of "cultural identity" or of a "sense of peoplehood." It is what gives each member of the society a sense of identity and common bond with other members of his group, since they tend to share these common ideas, beliefs, opinions, sentiments, customs, and prejudices. Adherence to the same values and norms by members of the same society develops a sense of trust and a set of 10 Mainly acts listed in categories 3 and 10, but also some of the acts listed in categories 5 , 7 , and 12. "Principally acts listed in category 8. 12 Gaetano Mosca, The Ruling Class [Elementi di Scienza Political (New York: McGraw-Hill, 1939), pp. 25, 71-73.

Aspects of Political Crime / 23 expectations among them that makes cooperative living possible. At the same time, this process naturally results in the classification of all persons who do not share the same beliefs and customs as "outsiders," 13 and these others often are viewed with distrust, if not hostility. Whatever may be the actual differences among members of the same group sharing this common culture, an attack from the outside by strangers can cause these differences to be forgotten and immediately unify the whole group in defense of its territory, its way of life, and its identity as a people. The member of the group who sides with the outsider in this struggle denies the basis of the trust that was reposed in him by reason of his membership in the group. He has "betrayed" his trust and by doing so denies his adherence to the commonly held value system shared by the group. In a sense, he has violated the entire moral code of his society. His immorality is the most fundamental of all and is clearly denoted in the derogatory terms that always have been applied to traitors. Mosca also pointed out that in every complex, heterogeneous society (or what he called "fairly populous societies that have attained a certain level of civilization") there is the need of political organization and that this political organization tends to be dominated by ruling minorities which control the social forces that, at any given moment, are essential to the possession and retention of power. 14 However, these ruling minorities (the composition of which may change as the number and grade of social forces they control varies) never justify their power exclusively by de facto possession of it, but try to find a moral and legal basis for it, representing it as the logical and necessary consequence of doctrines and beliefs that are generally recognized and accepted by the people over whom they rule. This moral and legal basis Mosca calls the "political formula." It is the source of their authority, their right to rule. Although the political formula may have little basis in fact, and may rely heavily on legend, mythology, theology, or a pseudoscientific analysis of the "laws of history," it is nevertheless, according to Mosca, not a deliberate deception or mystification invented by scheming rulers, but reflects a deep-seated need in human nature (also felt by the rulers) "of governing and knowing that one is governed not on the basis of material or intellectual force, but on the basis of a moral principle." 15 ,3 See Kai Erikson, "Notes on the Sociology of Deviance," in Howard S. Becker (ed.), The Other Side: Perspectives on Deviance (New York: Free Press of Glencoe, 1964), pp. 9-21. ' 4 Mosca, Ruling Class, pp. 50-69. 15 Ibid., pp. 70-71. Examples of "political formulae" under which rulers have ruled in the past are given in the following passage (p. 70): " S o if a society is deeply imbued with the Christian spirit the political class will govern by the will of the sovereign, who in turn will reign because he is God's anointed. So too in Mohammedan societies political authority is exercised directly in the name of the caliph, or vicar, of the Prophet, or in the name of someone who has received investiture, tacit or explict, from the caliph. The Chinese mandarins ruled the state because they were supposed to be interpreters of the will of the Son of Heaven, who had received from heaven the mandate to govern paternally, and in accordance with the rules of the Confucian ethic, 'the people

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The ruler represents the paragon of the "social type"; he is the embodiment of the beliefs, opinions, values, and customs of the collectivity that he, his predecessors, or the ruling minority which supports him have welded together. He, and the political formula under which he rules, is the glue which binds the polity together. It is natural, therefore, that an attack on him and the authority of his position would tend to be construed as an attack on the society itself, on its collective belief system, comparable to the attack of a foreign enemy. 16 For this reason, it partakes of the same immorality as the act of betrayal. Therefore, political crime during most of human history has been deemed to be a very wrongful act and extremely injurious to society as a whole, and meets the first part of the analytical definition of crime. The second question is have the sanctions employed against political crime during the greater part of Western history reflected the goals of repression (punishment or prevention through incapacitation or removal) or have they reflected instead the purposes of regulation or conflict resolution? Clearly, law has not played a large role in the settlement of political conflicts. 17 Political disputes generally have been regarded as beyond the jurisdiction and competence of courts, except when the government is eager to use the courts to make propaganda at the expense of its adversaries.18 Also—at least prior to the twentieth century—it could scarcely be claimed that criminal law dealing with political crime performed a regulatory function. The sanctions historically associated with political crime—death, banishment, and in the

of the hundred families.' The complicated hierarchy of civil and military functionaries in the Roman empire rested upon the will of the emperor, who, at least down to Diocletian's time, was assumed by a legal fiction to have received from the people a mandate to rule the Commonwealth. The powers of all lawmakers, magistrates and government officials in the United States emanate directly or indirectly from the vote of the voters, which is held to be the expression of the sovereign will of the whole American people." 16 See Papadatos, Délit politique, p. 2. Tracing three stages in the history of the repression of political crime, Papadatos describes the first stage (lasting until the beginning of the nineteenth century) which viewed an attack against the ruler and his government " a s an act of hostility, identical to that of an enemy warrior who attacks the tribe, the city or the neighboring state in order to destroy i t . " See also Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton: Princeton University Press, 1961), pp. 2 5 - 3 0 . "Kirchheimer (ibid., p. 5) states; " I n most periods of history, the political action of the group or individual coming into conflict with the goals of power holders has not been afforded some guaranteed sphere of impunity." He also comments (p. 4), " I t is true that over extended periods of time and in many lines of business the state has refused and is still refusing—though only for a diminishing number of categories—to submit to court adjudication its actions and the private parties' claims against its agencies." " I b i d . , pp. 4 - 5 . In American constitutional law perhaps the best evidence of the unwillingness of courts to involve themselves in purely political disputes and controversies is the "political question" doctrine; see Luther v. Borden, 7 How. (48 U.S.) 1 (1849); Powell v. McCormack, 395 U.S. 486 (1969).

Aspects of Political Crime / 25 nineteenth century simple detention without punishment, hard labor, or rehabilitation—are not suitable for regulation. Instead, these punishments seem to have been both punitive and absolutely preventive in purpose. The fierce and barbaric nature of the penalties inflicted on traitors prior to the nineteenth century in Europe reflects an attitude of extreme hostility and moral condemnation. 1 9 At other times and for lesser political crimes less extreme forms of punishment have been used, but it is interesting to note that these lesser penalties usually have removed the offender from society and from a position where he can do the regime further harm (banishment, transportation, and simple detention). 20 That is, even lesser penalties have been incapacitating or absolutely preventive in nature, not regulatory. In no case, prior to the twentieth century, can I detect any measures which could be described as regulatory either in conception or effect. As François Guizot recognized early in the nineteenth century, the deterrent effect of punishment usually was lacking in the case of a kind of idealistic, passionate, and optimistic individual who engaged in political crime: "Fear, for example, has more efficacy against interests than against passions, more against passions than against ideas. . . . To the extent that one approaches the moral order, fear loses its grip; it ceases to be in natural and direct rapport with the forces it pretends to suppress; it does not speak their language." 2 1 The foregoing being the case, the use of the death penalty for political crime more probably reflected either intense moral condemnation by the community or the desire on the part of the rulers to eliminate the threat by eliminating the offender. It may be that the element of punishment is more directly involved in the case of acts of betrayal, where community sentiments are more " A l t h o u g h punishments for treason and related political offenses have varied in ferocity from age to age, on the whole they have been the most severe. P. Sorokin (Social and Cultural Dynamics), in his review of the criminal laws of European nations from Teutonic times to the present, finds that political crimes generally received the harshest penalties (see table 43, p. 586). Observe, for instance, the punishment prescribed for treason in this quotation from an old English text: " . . . to be drawn upon a hurdle to the place of execution and there hanged by the neck; to be cut down while he is still alive and his entrails to be taken out and burnt before his face; and his head to be cut off and body quartered and the head and quarters to be at the King's disposal" [1 East, Pleas of the Crown, 137]. Women were merely burned at the stake. Confiscation of goods and attainder of the family line ("corruption of the b l o o d " ) were frequently accompanying consequences of the penalty, ensuring destruction of the traitor's family and reputation for many generations. 2C In ancient Greece and republican Rome, it was common to allow an offender convicted of a political crime not involving betrayal to a foreign enemy an appropriate time in which to flee into exile. The legal codes mentioned by Papadatos (Délit politique) in his historical review of Western nations almost invariably provide alternative forms of punishment in the form of banishment, fine, or detention for minor political crimes. See Appendix A for a definition of transportation (déportation) in this volume. 2 'François Guizot, De la Peine de mort en matière politique (1822), reprinted in Mélanges politiques et historiques (Paris: M. Levy Frères, 1869), pp. 3 0 2 - 3 0 3 . (Author's translation.)

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highly aroused, and that the element of prevention receives greater emphasis in the case of authority offenses, which more directly involve the interests of the rulers. This hypothesis would tend to be borne out by the frequent use of banishment for lesser political offenses, which were usually of the authority variety. But in any case, the sanctions employed and their purposes (absolute prevention and punishment) clearly identified political offenses as "crimes," rather than as regulatory offenses, until very recent times. The Preventive Aspects of Laws Dealing with Political Crime Although political crime shares many features in common with ordinary "crime" (as limited by my analytical definition), it nevertheless has certain features which make it distinctive. One of these is that, both in the use of sanctions and in the use of the law to combat political crime, rulers seem always to have placed the emphasis on prevention rather than on punishment. The reason for this emphasis is not hard to imagine and is alluded to in the following couplet: Treason doth never prosper; what's the reason? Why, if it prosper, none dare call it treason. 22

In other words, political crime, or at least that act which aims at the seizure of the reins of power, is one form of crime that is either prevented or it never may be punished. There has never been a successful revolutionary, so far as is known, whose acts of treason were viewed except as the highest manifestations of patriotism by the courts of his successor regime. This consideration may have caused the Greek Lycurgus to comment: A s for other crimes the punishment ought to follow the misdeed; but with attacks against the government, it ought to precede it; for if one allows the moment when the criminal plan is formed to escape, it is no longer possible to reach the guilty parties who have placed themselves beyond punishment. 23

We may compare this with the words of Cardinal Richelieu, uttered almost two thousand years later: There are some crimes which it is necessary to punish first, then investigate. Among them, the crime of lèse-majesté is so grave that one ought to punish the mere thought of it. 2 4 "From Sir John Harington's Epigrams, fourth book, no. 259 (McClure ed.) (Philadelphia: University of Pennsylvania Press, 1926). 23 Lycurgus, Against Leocrates, ed. A. Petrie (Cambridge: At the University Press, 1922), p. 126.

24

Quoted in Papadatos, Délit politque, p. 27.

Aspects of Political Crime / 27 These would be strange sentiments for anyone to express if punishment of the offender were the end in view, since punishment looks to the past for proof that the offense was committed, this providing the moral basis of society's infliction of suffering on the offender. But prevention includes the future conduct of the offender, to which his past conduct is only partially relevant, but to which his state of mind, his intentions, become a matter of central concern. This emphasis on prevention has several effects on the way criminal law is administered in political crimes. I have noted already the predilection for sanctions which remove the offender from the scene (exile or detention) or which remove him from the living (capital punishment), thereby preventing the recurrence of the crime and removing the threat—at least, so far as the offender is concerned. But the effect of the emphasis also may be observed (1) in the large number of speech offenses which the law of political crime makes illegal, (2) in the greater use of anticipatory crimes—attempt and conspiracy—as a basis for prosecution and the expansion of those offenses in the area of political crime, (3) in the different character of the political trial, where accusation largely supplants proof and where frequently special procedures and special tribunals are provided, (4) in the number of extralegal functions performed by political prosecutions, and (5) in the manner in which criminal sanctions are applied, withheld, or withdrawn for political purposes.

The Preventive Role of Speech Crimes There are goals other than prevention to explain the prevalence of speech offenses in the area of political crime, to be sure. For one thing, there is the danger of contagion in the realm of ideas that is not presented by personal insults and verbal assaults, "The pen is mightier than the sword," "Nothing is as powerful as an idea whose time has arrived," are maxims well known to every politician. The particular danger of heretical political ideas to the rulers of society is that such ideas usually attack and undermine the metaphysical, religious, and ideological substructure of the political formula to which their moral and legal right to rule, the legitimacy of their authority, is inextricably linked. As has already been indicated, this is not a matter of concern to them alone, but to all persons who, from a diversity of backgrounds, have united under common beliefs, attitudes, and customs of which the political formula is the keystone. A revolutionary political idea not only entails a change of regime, but a complete reorientation of the power relationships within society, a change in its goals, ideals, and moral values and a change in its sense of identity—that is, who now constitutes a member of the group and who is an "outsider." The "clear and present danger" of political and ideological speech is a

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variable matter: 25 it increases as values in society are in conflict and the unity of the group is threatened by external or internal ideological threat; it recedes as the challenge is met, vanquished, or slowly absorbed into the way of life and thinking of the people. We may observe this process taking place—and will have occasion to do so later in this book—in any society which tries to balance the interest of free expression of ideas with the countervailing interest of maintaining a unified and peaceful political order under certain controlling political principles. The prevalence of speech offenses in the area of political crime also reflects the importance of the state of mind of the speaker or writer with regard to the regime and his intentions toward it. If prevention is the goal, it should not matter that the speaker has not put his threats into action or that he is not immediately in a position to carry out his threats, provided that his intentions are clear and not impossible to accomplish sometime in the future. For example, while it is not the law of civil or criminal assault that mere threats of doing injury are a sufficient basis for liability or conviction, 26 it is the law in the United States and other countries that threats made against the Head of State under these circumstances are criminal. 27

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The preventive role of law also may be observed in the greater use of, and amplification of legal rules pertaining to, anticipatory crimes such as criminal attempts and conspiracies. Papadatos, in his review of modern European penal code provisions relating to attentats and complots (roughly defined as criminal "attempts" and "conspiracies"), states, From the most distant times to the present day, repressive laws have, in the matter of crime against the State, consecrated certain important derogations to the general principles of the criminal law which properly have the purpose of strengthening the prevention, as well as the repression, of attacks against the State. Modern democratic legisla25 The variable nature of the danger presented by seditious speech and political organization was recognized in Judge Learned Hand's famous opinion in United States v. Dennis, 183 F.2d 212 (2d Cir., 1950), apparently adopted in the U.S. Supreme Court's affirmance of that opinion in Dennis v. United States, 341 U.S. 494 (1951). However, some doubt as to the continuing validity in American law of a flexible and variable test of "clear and present danger" seems to arise from the U.S. Supreme Court's decision in Brandenburg v. Ohio, 395 U.S. 444 (1969). 26 See William Lloyd Prosser, Handbook of the Law of Torts, 3rd ed. (St. Paul: West Publishing, 1964), p. 39 (tortious assault); "Assault and Battery," 6 Corpus Juris Secundum (Brooklyn: American Law Book, 1937), §60, pp. 9 1 5 - 9 1 6 (criminal assault). 27 See, for instance, Code pénal belge, arts. 101-103, 105; Papadatos, Délit politique, pp. 152-153. Compare (U.S.A.) the federal law against making threats against the life of the President: Title 18, U.S.C.A., chap. 41, §871; see also Pierce v. United States, 365 F.2d 292 (10 Cir., 1966), applying this law to a defendant who made such a threat in jest while confined to jail!

Aspects of Political Crime / 29 tion has gone very far down this path; it has reintroduced certain derogations which had been abolished in the prior century, under the influence of the liberal movement. This turning-back is explained and justified—at least in principle—-by the presence of the great dangers to which contemporary democratic States have been exposed, as much from the point of view of their external security as from the point of view of the maintenance of their political and social forms. . . . The supreme interest of the State in defending its existence, as well as the functioning of its fundamental political institutions, has obliged the legislator in criminal matters to intervene much earlier than usual in the criminal process, in order to attack crime against the State in its germinal stage and before it is too late. One knows that, as a general rule, criminal law only punishes the completed offense and also that under the form of attempt it strikes at the commencement of the execution of the crime, but only when it is a matter of serious infractions. However, in the case of crimes against the State, the legislator goes still further; he attacks the crime at the stage of preparation and even in the simple external manifestation of the criminal resolution, so that it is stopped at the threshhold of the conscience, that is, at the very first stage, at the internal phase which embraces the conception and then the criminal resolution not as yet externalized. 28

The American law of criminal attempt, which also strikes at the crime before its completion, is less suitable as a preventive tool than the European attentat, because the former requires a specific intent to commit a specific crime and a "dangerous proximity" to the successful completion of the crime. 2 9 However, the American law of conspiracy, which merely requires an agreement between two or more persons to commit an unlawful act or to commit a lawful act by unlawful means and (but not under the law of all jurisdictions) an overt act in preparation of the commission of the crime, no matter how remote from it, lends itself very well to the State's purpose of preventing the crime as close to the moment of conception as possible. Of course, this is not to say that conspiracy law is used exclusively in the repression of political crime, because it is used in many other areas of the law as well, but its advantages in the field of political crime are so numerous that it is a favorite tool of the prosecutor desirous of nipping illegal political action in the bud. 3 0 One of the other advantages of the law of conspiracy in the realm of political crime is its ability to strike at the brain centers of the revolutionary movement. Political crime often involves more than one person; it is usually a form of collective crime, of which organized crime is the conventional counterpart. Plots, rebellions, riots, espionage, sabotage, are group phenomena and 28

Papadatos, Délit politique, p. 148-149. (Author's translation.) S e e opinion of Justice O. W. Holmes, Jr., in Hyde v. United States, 225 U.S. 347, 3 8 7 388 (1912). The English law of criminal attempt is substantially the same in this regard. See J. W. Cecil Turner, Russell on Crime, 11th ed., 2 vols. (London: Steven and Sons, 1958), 1:189-197. 30 See Herbert Packer, " T h e Conspiracy W e a p o n , " review of The Trial of Dr. Spock by Jessica Mitford in 13 New York Review of Books 2 4 - 3 0 (6 November 1969). 29

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require the inspiration and direction of a few talented individuals who often work behind the scenes and do not participate in the execution of the plan. If the law were limited to the apprehension and punishment of the people who actually engaged in physical acts of violence, these leaders would escape punishment and would be free to plot again. In the internal warfare of politics, the State may round up a lot of privates and fill its jails with them, but it is the generals in whom the State is interested. The privates may be simply routed and dispersed. If the head of the movement is severed from the body, however, there is always the chance that the movement will dissolve and the privates will eventually go their separate ways. Conspiracy law provides a necessary weapon in the arsenal of the State for dealing with collective forms of crime simply because it is often the only means through which the leaders can be reached. The Preventive Role of Political Trials The different characteristics of political and conventional criminal trials further illustrate the emphasis on prevention. First, there has been a marked tendency to entrust the job of dispensing with political offenders to special tribunals. In ancient Athens a dangerous politician could be sent into exile for ten years (ostracized) by a vote of the popular assembly. 31 In republican Rome political matters were entrusted to special tribunals (first the duumviri perduellionis, then the popular tribune), where they were subject to great abuse, and in imperial Rome they were entrusted to the discretion of the Emperor, where they were subject to even greater abuse. 32 In medieval Europe treason trials were variously heard by special royal commissions, ecclesiastical courts, legislative bodies with judicial powers such as the English Parliament and French Parlement, military courts, administrative tribunals (like the English Star Chamber), and sometimes in the ordinary assize courts. It was not until the end of the seventeenth century in England that proceedings were regularized and approximated the procedures in ordinary criminal cases, 33 and not until the nineteenth century that the right to a court trial before a jury was assured for some political crimes in a few Western European countries. 34 Even in the United States during that century there were lapses from the practice of trying these cases in civil courts before juries, most notably during the Civil War. 35 In the twentieth cen31

Papadatos, Délit politique, p. 10. Ibid., pp. 12-14. 33 Trial for Treasons Act (1696), 7 - 8 William III, c. 3. 34 One of the first European legislative acts entrusting the trial of certain political crimes to ordinary felony courts with juries was the French law of 8 October 1830, passed soon after the July Revolution of 1830 (Papadatos, Délit politique, p. 50). Belgium soon followed suit. 3S See Ben Pittman, The Assassination of President Lincoln and the Trial of the Conspirators (New York: Funk and Wagnalls, 1954); Ex parte Milligan, 4 Wall. (71 U.S.) 2, 18 L.Ed. 281 (1866). 32

Aspects of Political Crime / 31 tury there has been a return to the use of special tribunals. The French politician Caillaux was tried for treason after the First World War before the Senate, sitting as High Court. 36 Fascist Italy, National-Socialist Germany, and Soviet Russia all enacted laws giving jurisdiction to special military or police tribunals to hear cases of a political nature. 37 On the whole, "matters of state" have been regarded as too important to be entrusted to the vagaries of juries composed of ordinary citizens; they have shown a disturbing tendency on occasion to acquit. 38 Second, there is the matter of proof in political trials. To quote Cardinal Richelieu again, "In normal affairs the administration of justice requires authentic proof; but it is not the same in affairs of state. . . . There urgent conjecture must sometimes take the place of proof; the loss of the particular is not comparable with the salvation of the state." 3 9 Anyone who doubts the veracity of the Cardinal's observation should peruse the pages of Howell's State Trials.40 While things have much improved during the last two hundred years, the political trial is still likely to be one where everything is proved, except the specific facts charged in the accusation. 41 This disregard of proof is merely indicative of the fact that the matter truly at issue is not the ascertainment of the moral guilt of the offender in order to justify the imposition of punishment; rather it is the revelation of the extensiveness of the threat presented, so that appropriate preventive measures may be taken not only against the defendant but also against his confederates and political cohorts. The Extralegal Functions of Political Prosecutions The extralegal functions which political prosecutions serve also signal the preventive role law plays in "political" cases. Kirchheimer mentions three kinds of political trials: (1) the trial involving a common crime committed for political purposes and conducted with a view to the benefits which might ultimately accrue from successful prosecution; (2) the "classic political trial" 36

Kirchheimer, Political Justice, p. 72. "Papadatos, Dé lit politique, pp. 94-95, 99-100, 126-127. 38 Papadatos (ibid., p. 35) mentions numerous acquittals of political offenders by English juries in the late eighteenth century. 39 Testament politique, ed. Louis André (Paris: Robert Laffont, 1947), p. 343. Compare Lycurgus, Against Leocrates, p. 125: "Our ancestors thought it better to see a citizen perish on the basis of a simple suspicion than to fall themselves into an all too real servitude in waiting on proofs. A citizen, in their opinion, should live in a manner so as not to be suspected of such a crime." "Howell's State Trials contain the recorder's notes of many early English treason trials, especially those which took place during the turbulent seventeeth and eighteenth centuries. See Appendix B, this volume. •"See Packer, "Conspiracy Weapon"; see also dissenting opinion of Justice Jackson in Krulewitch v. United States, 336 U.S. 440 (1949), pp. 445-458.

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which represents the regime's attempt to incriminate its foe's public behavior with a view to evicting him from the political scene; and (3) the derivative political trial, where the weapons of defamation, perjury, and contempt are manipulated in an effort to bring disrepute upon a political foe. 4 2 Actually, these various forms of political trial all boil down to one purpose: that of discrediting and eliminating the political opponent from the political scene. Although the purpose is extralegal, the manner of proceeding is usually legal—all offenses charged are crimes under the legal codes of the countries involved in Kirchheimer's study, and the trial proceeds, at least outwardly, as a trial on those charges. Kirchheimer overlooks, however, one very significant extralegal function of political prosecution which is extensively used for preventive purposes: namely, the threat of prosecution and prosecution itself as an instrument of harassment. The task of exiling a political offender to a foreign country (which has become so problematical in modern times) may be accomplished with the unwitting help of the offender himself by inducing him to flee the country under threat of arrest and prosecution. Once in exile, his effectiveness as a leader and his control over his political group may vanish completely, as former subordinates on the scene step into his shoes. Moreover, the political offender may be loaded down with charges, for each of which he must put up bail money to obtain his release and pay counsel fees, assuming such rights are allowed him. He may be dragged from one end of the country to the other to face charges which may or may not be prosecuted to completion. All this puts a severe financial drain on his party's or his own financial resources, and his effectiveness as a leader may be substantially impaired because an excessive amount of his time is taken up in legal matters.

The Political and Preventive

Uses of Applying and Withholding

Punishment

The emphasis on prevention in the administration of criminal law for political purposes is evidenced in the way the government uses or withholds the sanctions prescribed by law for crimes. I have referred to the preventive nature of many of the penalties applied to political crimes (for example, death, banishment, and simple detention). It is often difficult to tell, however, exactly for what purpose a punishment is applied, since most can be used to serve more than one end. Surprisingly, the place where the purely utilitarian and preventive nature of the use of criminal sanctions is most apparent is not in the use of punishments, but in the withholding of them. 42

Kirchheimer, Political Justice, p. 46.

Aspects of Political Crime / 33 Ideally, in the application of criminal punishment to ordinary crimes, the criminal law is supposed to be somewhat inflexible and rigorous in order to achieve justice and the maximum deterrent effect for the sanction. This does not appear to be the operative rule for political crimes. Here criminal prosecutions and penalties are manipulated, withdrawn, or withheld to a remarkable degree. The process can be seen in the greater use of amnesties, pardons, paroles, and suspension of sentences in the case of political offenders, the danger having been eliminated by the failure of the revolutionary enterprise or by the exacting of concessions from the political prisoner. Pardons and amnesties, which are expressions of execution or legislative clemency, are rarely granted in ordinary criminal cases. 43 Yet they are not unusual in the case of political offenders. 44 Jeremy Bentham in his Theory of Legislation was generally opposed to their use in cases of "offenses against society" (by which he meant conventional crimes), but not so in political crimes: In c a s e s where punishment w o u l d d o more evil than g o o d , as after seditions, conspiracies, and public disorders, the p o w e r of pardoning is not o n l y useful, it is necessary. T h e s e c a s e s being foreseen and pointed out in a g o o d legislative system, pardon applied to them is not a violation, it is an e x e c u t i o n of the l a w . 4 5

Publicly avowed reasons for granting amnesties and pardons often are worded in terms of reconciliation. 46 Some observers accept this rationale on the ground that they doubt punishment will effect any change in the attitudes and views of those subjected to it, and reconciliation may be the only way of lessening the conflict. 47 There may be some truth in this view for some political offenders, but is is certainly not applicable to all. History, however, would seem to indicate that pardons and amnesties are not usually granted by the same regimes which imprisoned the offender until after the danger or emergency has passed and the offender no longer presents the threat he once did. The forces of " E d w i n H. Sutherland and Donald R. Cressey, Principles of Criminology, 7th ed. (Philadelphia: J. P. Lippincott, 1966), pp. 6 2 0 - 6 2 5 . " K i r c h h e i m e r , Political Justice, pp. 389-418; J. D. Barnett, " T h e Grounds of Pardon," 17 Journal of the American Institute of Criminal Law and Criminology 4 9 0 - 5 3 0 (1927), pp. 5 1 0 - 5 1 1 , 525-526. 45 Jeremy Bentham, The Theory of Legislation, Ogden ed. (London: Kegan Paul, Trench and Trubner, 1931), p. 356. 46 See speech of U.S. Senator Carl Schurtz, urging a general amnesty in Congress after the Civil War. Congressional Globe, 2nd Session, 42nd Congress( 1872), part 1, p. 701. He argued that the manner of punishing political criminals is in all civilized countries "treated as a question of great policy and almost never as a question of strict justice . . . because a broad line of distinction is drawn between a violation of the law in which political opinion is the controlling element . . . and those infamous crimes in which moral depravity is the principal ingredient; and because even the most disastrous political conflicts may be composed for the common good by a conciliatory process. . . . " " K i r c h h e i m e r , Political Justice, pp. 3 9 8 - 3 9 9 .

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law and order having served their preventive purpose, the need for continued incarceration vanishes. The political offender is then released in much the same way that a prisoner of war is released after the termination of a state of armed conflict.

The Switch from Prevention through Repression to Prevention by Regulation It may be asked whether in the foregoing there are some elements of regulation after all. It is true that the goal of absolute prevention comes close to regulation, but the difference lies in the largely negative nature of the prohibitions and sanctions of "criminal" law, contrasted with the affirmative duties and positive control manifested in regulatory law. 4 8 The importance of the distinction should not be overlooked because its implications for human freedom are enormous. 4 9 Nevertheless, because of the similarity of the sanctions imposed by preventive "criminal" law and regulatory law (both are futureoriented), there is a tendency for law which was formerly "criminal" in nature to become regulatory in its methods and techniques as the immorality of the acts it covers is deemphasized or wholly denied. This tendency has manifested itself in the field of political crime during the twentieth century. Beginning in the nineteeth century and continuing into the early twentieth, the principles of legitimacy on which European governments based their right to rule had become so questionable and so relativistically viewed that a leading French legal writer at the beginning of the century was able to take this extraordinary view of political crime and the political criminal: Whereas formerly the political criminal was treated as a public enemy, he is today considered as a friend of the public good, as a man of progress, desirous of bettering the political institutions of his country, having laudable intentions, hastening the onward march of humanity, his only fault being that he wishes to go too fast, and that he employs in attempting to realize the progress which he desires, means irregular, illegal and violent. If from this point of view, the political criminal is reprehensible and ought to be punished in the interest of the established order, his criminality cannot be compared with that of the ordinary malefactor, with the murderer, the thief, etc. The criminality has not all the same immorality. It is only relative, dependent on time, place, circumstances, the institutions of the land, and it is often inspired by noble sentiments, by disinterested motives, by devotion to persons and principles, by love of one's country. In conclusion, the criminality is often only passing; the author of a political crime "Compare Jerome Hall, Living Law of Democratic Society (Indianapolis: Bobbs-Merrill, 1949), pp. 125-126. 49 When a person is told that he cannot do A, he still may be free to do acts B through Z: but when he is told that he must do A and thereafter is compelled to do it, his freedom to do alternative acts B through Z is curtailed.

Aspects of Political Crime / 35 who is rather a vanquished, a conquered man, than a criminal, may become, as a result of a revolution favorable to his ideas, the conqueror of the morrow, who is called regularly and lawfully to direct and guide the state and the public administration of his country. The penal reaction exercised against him is not at all, then, like that against malefactors, who violate the ordinary law in which case it is a work of social defense against an attack upon imminent conditions of human existence, but is rather a work of the defense of caste, of political parties, against an attack upon an organization and upon a political regime historically transitory. 50

Thus emerged that rather strange phenomenon, the "moral criminal," 5 1 who was only to be salted away in a pleasant internment camp, like a brave and honorable enemy soldier captured in battle, until the times caught up with him. This change of attitude in regard to political crime—at least to those political crimes I have categorized as authority offenses (betrayal offenses maintaining their former heinousness in the eyes of the public)—laid the groundwork for the regulatory approach. In case of large, politically unreliable opposition parties, such as the Communist Party, the approach taken in the early 1950s by France, Germany, Italy, and the United States was either to outlaw the Party and subject its members to investigation, prosecution, and a host of administrative controls, restrictions, and disqualifications (as in Germany and the United States) or just to impose a great number of parliamentary and administrative restrictions (as in the case of France and Italy). 52 In England, where the Communist Party is small, the approach taken was merely to eliminate them from the civil service, the military, and war-related industries. 53 The switch from prevention through repression to prevention by regulation may be indicative of a new trend in the control of political crime. It is not beyond the realm of possibility that in the future political deviants may be analogized to other kinds of criminal deviants—that is, adjustment problems in need of correction and rehabilitation, with the immense possibilities that this opens up for regulatory methods and techniques. 54 "Georges Vidal, Cours de droit criminel et de science penitentiaire, 5th ed. (Paris: Rousseau, 1916), pp. 111-112, quoted in Robert Ferrari, "Political Crime," 20 Columbia Law Review 308316 (1920), pp. 312-313. 51 See B. L. Ingraham and K. Tokoro, "Political Crime in the United States and Japan: A Comparative Study," 4 Issues in Criminology 145-170 (1969). 52 See Kirchheimer, Political Justice, pp. 135-158 (the banning of the Communist Party and prosecution of its leaders in the United States and the Federal Republic of Germany); pp. 159, 161-167 (the parliamentary and administrative restrictions imposed on the party and its members in France and Italy). 53 See H. H. Wilson and Harvey Glickman, The Problem of Internal Security in Great Britain, 1948-1953 (Garden City, N.Y.: Doubleday, 1954). 54 See the tongue-in-cheek forecast of Kenneth Keniston, "How Community Mental Health Stamped Out the Riots (1968-78)," Trans-action, July/August 1968, pp. 21-29; compare "Political Malpractice: Use of Insane Asylums for Dissenters," 75 Newsweek 43-44 (1 June 1970).

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Conclusion In this chapter I have presented a theoretical framework in which the phenomenon of political crime is viewed as a definitional process and official reaction on the part of governments to certain kinds of acts deemed to constitute threats to security. There is no perversion of language involved in describing as "criminal" many of the acts historically included within the term political crime (treason, insurrection, espionage, sedition, and so on). Political crime is not merely raison d'état intruding into an area where it does not belong. Political crime is usually "criminal" by virtue of certain features it shares in common with certain acts which always have been deemed to be criminal, as, for instance, being immoral and harmful to the society as a whole. It has a natural tendency to produce a hostile social response similar to the reaction to many serious conventional crimes. Of course, this is not the case for all political crimes at all times, as the succeeding chapters will demonstrate. Public attitudes, including governmental attitudes, can change radically toward certain political crimes when their immorality and harmful quality becomes dubious or ambiguous, and this can have a potent effect on the measures taken to control them. At the same time, political crime has other features that differentiate it from most forms of conventional crime (its danger to the security of the government and organized society; its attack on the essential threads that bind the collectivity together and on the political formula that justifies the political system and gives legitimacy to the authority claimed by rulers for the laws and decrees they promulgate). These attributes of political crime directly affect the administration of this branch of the criminal law, pushing it in the direction of the use of preventive methods. Illustrations taken from an historical review of legal developments in France, Germany, and England during the last two hundred years will support some of the general statements made about political crime in this chapter.

PART

Comparative Analysis of Laws Relating to Political Crime and Their Administration in France, Germany, and Great Britain,

1770-1970

SECTION

ONE:

Prologue

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3

The Procedural and Substantive Law of Political Crime Immediately Prior to the French Revolution (1770-1789)

During the twenty years preceding the French Revolution the ideas of Enlightenment philosophers, which had been brewing in the minds of Europeans for over half a century, began to influence events, language, and law. Prior to this time—except in England—the basic form and content of criminal law in Europe had undergone no substantial change since the religious wars. Criminal laws, punishments, and procedures were, as described by Becarria in his essay Of Crimes and Their Punishments (1764), unnecessarily severe, ill-defined, subject to arbitrary expansion by judges and decentralized in their administration. They varied enormously from locality to locality, and one could discern in them no connecting thread expressing a consistent penal philosophy. 1 One of the Enlightenment's great contributions to Western civilization was to establish for the first time a somewhat consistent philosophy of law and its relationship to government and principles for its administration.

The Monarch as the Object of Protection versus the State as the Object of Protection The disorganized state of criminal law generally in Europe prior to the last third of the eighteenth century was characteristic also of laws dealing with crimes against the political order. Before 1770 laws protecting political authority and sovereignty still expressed concepts which were feudal in origin: betrayal of personal loyalty owed to the Head of State rather than to the "State" itself or even to the more vague concept of the "nation"; injuries inflicted on the monarch personally or on members of his immediate familial or administrative household; insults to his personal dignity and authority. This cannot be at1

1-4.

Leon Radzinowicz, Ideology and Crime (New York: Columbia University Press, 1966), pp.

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tributed to the fact that the modern concept of the "State" (l'État) as an organized political force, supreme in its own territory and pursuing conscious policies of aggrandizement in its relationship with other states, was unknown in the eighteenth century. Such a concept had existed at least from the time of Machiavelli and was well understood by all political philosophers and intellectuals.2 The growth of the administrative machinery of government under the absolute monarchs of France, the limited monarchs of England, and the lesser monarchs of the German states and principalities had served only to strengthen the concept of the "State" in people's minds. In fact, the very growth of this administration and the need of legally protecting its authority led, as we shall see, to judicial constructions of old statutes and the use of legal fictions to expand the ambit of protection to these organs of administration. Nevertheless, even in the early eighteenth century when this process had been going on for some time, the language and concepts of political crime still retained their feudal character. Judges seemed reluctant to alter the ideological basis of the law to incorporate the "State" as the object of protection. The explanation of this phenomenon may be that all nondemocratic forms of government, including oligarchies, derive their principal source of legitimacy from the charisma of the Head of State. Every attack on the organized political order of society—the status quo of power relationships within society—must be made to appear as though it were a personal attack on the sovereign. No competing source of power (such as the aristocracy, the clergy, the wealthy bourgeosie), strong as it may be, can claim for itself or for any vague abstraction representing its interests this kind of legal protection in a unified State. It lacks the necessary legitimacy. The legal protection of its political interests must be derived from the protection of the monarch. This would continue to be true until the Enlightenment philosophers substituted an adequate theory justifying the "State" as the legitimate object of the legal protection. Their theory was that the "State" derived its powers from the consent of the governed. As representatives of the will of the people the organs of state administration could gain for themselves and their acts a legitimacy they did not fully enjoy derivatively from the monarch. Although many European monarchs embraced this theory toward the end of the century and approved laws extending protection to the state apparatus, they seem to have done so without any clear appreciation that they were undermining their own power by giving their ministers and bureaucrats a vested interest in democratic forms. The ensuing defection of this 2 George H. Sabine, A History of Political Theory (New York: Henry Holt, 1937), p. 351; Frederick M. Watkins, "The Concept of the State," in David L. Sills (ed.), International Encyclopedia of the Social Sciences (New York: Macmillan-Free Press, 1968), XV: 151-152.

Procedural and Substantive Law / 41 class and the weakening of the monarchy should not have come as a surprise to them. The Enlightenment and the Doctrines of Liberalism By the last third of the eighteenth century the sunburst of philosophical and political writings of the late seventeenth and early eighteenth centuries known as the Enlightenment—Locke, Montesquieu, Voltaire, Diderot, Helvetius, Condorcet, Becarria—had solidified into a somewhat coherent, wellunderstood set of principles, which I shall hereafter refer to as the "doctrines of liberalism." It is difficult to summarize the political principles of liberalism without lumping together the thoughts of several different writers who disagreed on important points. And it is rare to find the separate elements of liberalism ever distilled into one single statement of principles—the closest approximation of such a statement being the American Declaration of Independence or the Declaration of the Rights of Man and of the Citizen of the French Revolution. Nevertheless, I will attempt to make such a summary statement, so that the doctrines of liberalism may be examined in the light of the discussion concerning the objectives and methods of the legal repression of political crime. Liberalism maintains that the people are the ultimate holders of sovereign power, not the rulers. It is they who form societies through "social compacts," and they who consent to the governments and laws which are instituted for their rule. Governments are the agents of the people, not their masters. Their function is to make secure for all citizens the rights and liberties that are theirs by "natural right," and not much else. When governments begin to abuse the powers delegated by the people and to infringe on their inalienable rights, the people have the sovereign right to abolish those governments and establish new ones. Governments are limited by "constitutions"—by the written or unwritten terms of the social compact by which they have agreed to form a union and in which they define and limit the powers of government and the rights they are to enjoy without interference from the government. Thus, the legitimacy of governments is relative to the Tightness of its actions and the consent of the governed. Rulers have no independent source of legitimacy such as divine investment of authority, tradition, or the bonds of feudal loyalty. In liberalism each member of society is considered an equal unit in the eyes of the law, entitled to the same basic rights as other men regardless of their station or social position, and each man is seen as a rational, moral being, capable of making his own moral judgments according to the direction of his

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conscience. The right of moral decision is the individual's prerogative, not the State's. The State, therefore, has no right to attempt to legislate morality, but simply has the right to protect the rights of each citizen from infringement by others. Particularly does it lack the power to legislate as to matters of religious belief or to inject the State into religious conflicts. Toleration by the State of different beliefs, so long as they do not involve harmful conduct, is a key concept. In matters of political belief, the individual could in his own conscience disagree with the majority on the question of the government's legitimacy, and, if he is so disagreed, the majority could do no more than enforce proper laws for its own protection; it could not on any absolute basis condemn his behavior as immoral or dishonorable. Under the logic of these tenets of liberalism, therefore, the political revolutionary attained a moral standing denied him under earlier political philosophies. Since the right to govern was thought to be based on the consent of the governed, liberalism deemed it important to keep the channels of communication between the governors and the governed open at all times, so that the will of the people might be expressed and their criticisms and grievances heard. Thus, liberalism naturally entails the concepts of freedom of speech and the press, and is inimical to the political crime of sedition insofar as that offense punishes merely verbal or written attacks on the government. 3 Also, under liberalism, revolution is not unthinkable or always morally reprehensible; it depends on whether the rebellion represents the will of the majority of the people and whether its cause is just. Under these circumstances, revolution may be justified as the only way in which an unjust or unrepresentative government may be deposed. What did liberalism have to say on the subject of the administration of criminal justice? Quite a bit. In fact, it was exactly here that it had its most complete effect. Following Radzinowicz, the major liberal doctrines in this area may be summarized as follows: 4 (1) Since criminal law places restrictions on human freedom, there should be as little of it as possible. (2) At all stages of the criminal prosecution, the rights of the accused must be scrupulously protected, and presumption of innocence should be the guiding principle. (3) The criminal law should be clear and certain. Both crimes and their punishments should be defined in advance, preferably by statute, with little discretion allowed the judge to vary their definitions by interpretation (the nullum crimen, nulla poena, sine lege principle). (4) The justification of punishment is retribu3 See Zechariah Chafee, Jr., Freedom of Speech (New York: Harcourt, Brace, 1920), pp. 19-25; Sir James Fitzjames Stephen, A History of the Criminal Law of England, 3 vols. (London: Macmillan, 1883), II: 300. 'Radzinowicz, Ideology and Crime, pp. 9-22.

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tion and deterrence. Punishment should be proportionate to the gravity of the offense and should not go beyond the point of severity necessary to prevent the criminal from injuring his fellow citizens again and to deter others from similar acts. Under classical liberal doctrine the emphasis is on the proportionality of the punishment to the gravity of the crime, not on punishment's deterrent or exemplary effect on others nor on its rehabilitating effect on the criminal. Also, liberalism was basically humanitarian. Abolition of the death penalty for most, if not all, crimes was advocated, with imprisonment advocated as an alternative since it permitted a gradation of punishment proportional to the severity of the crime and the repair of mistakes of justice. (5) Prevention of crimes should be the main object of the criminal law. However, the classical school of liberal penology saw prevention coming from clearly defined criminal codes and the swift, certain, and rational application of their provisions to criminals. It did not see prevention in terms of the maintenance of large standing police forces to control the activities of persons suspected of having a criminal disposition. From the foregoing it is clear that liberalism is incompatible with the treatment of many political "crimes" as criminal and with some of the major techniques used to suppress them. For one thing, liberalism throws into question the claims to legitimacy and authority of any regime which is not ostensibly founded on the registered consent of a majority of its citizens, or of a regime which is claimed to be violating the "constitutional" or inalienable rights of its citizens. Liberalism, which makes a distinction between state and society, also creates the possibility of divided loyalties: loyalty to the State and its laws versus loyalty to the people or to the constitution or to some overriding moral principle. Second, it takes an ambiguous stand with respect to revolution, since it admits the possibility that people have the right under some circumstances to abolish their governments and effect social and political changes through extralegal means (the so-called "right of revolution"). Third, it denies to the State the right to suppress seditious speech and writing, at least in those cases where such speech or writing does not amount to an incitement to violate the law forthwith. Merely deviant opinion, no matter how much it undercuts the ideological basis of legitimacy and authority, is thus to be respected and tolerated by the State. Fourth, although liberalism claims to emphasize prevention in the administration of the criminal laws, most of its recommended reforms are, paradoxically, antipreventive in effect. By narrowly defining crimes in legislation and by removing the discretion of judges to expand on the area of prohibition through interpretation, liberal doctrine limits the ability of the State to suppress malevolent acts in the grey areas of the law, and, as we have seen, political crime is by nature vague and contains many grey areas. Liberal doctrine assumes a

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person is willing to comply with the law if he could only understand what it is, a condition that rarely applies in the case of disaffected political criminals. By emphasizing procedural rights, the presumption of innocence, and full and fair litigation of all issues, liberalism detracts from the ability of the State to act preventively in emergency situations to detain those suspected of crimes against it. By relating punishment to the crime committed rather than to the intent, motives, personality, and dangerousness of the criminal, liberalism overlooks factors that are essential in any scheme to prevent future harmful conduct on the part of the offender, which, of course, is what the State is primarily interested in doing in the area of political crime. Finally, by virtue of its hostility to prevention by any other means than the rational application of criminal code provisions to specific violations, liberalism threatens to cut out many of the most effective means of preventing political crime, which lie in the use of the police and investigative machinery. It was thus erroneous for liberal reformers to justify their recommended reforms on the ground of prevention; their goals seem instead to have been fairness in the administration of criminal justice and the freedom of the individual and little else. The law of political crime in French, German, and English societies prior to the French Revolution was in a period of transition. It shows both feudal characteristics and the effects of the doctrines of liberalism in those innovations which begin to appear in the laws of European nations at this time.

France In prerevolutionary France the law of political crime was harsh, vague, and arbitrary—words which could also be used to describe the administration of criminal justice generally. 5 Most political crimes were subsumed under that vague concept of Roman law crimen laesae majestatis (in French, lèsemajesté). Lèse-majesté was divided into two main types: lèse-majesté humaine and lèse-majesté divine.6 The second, of which not much will be said because it was of decreasing significance in the eighteenth century, comprised offenses against the State religion (Catholicism), such as heresy, schism, and sacrilege. The first, lèse-majesté humaine, included, according to Jousse, "every enterprise or offense committed against the person of the sovereign or against the interest of the State." 7 This crime was in turn broken down into two orders or degrees of offense, the difference being mainly one of the penalties attached. I 5

Ibid., pp. 1-3. 'See Pierre A. Papadatos, Lé Délit politique: Contribution à l'étude des crimes contre l'état, thèse no. 507 (Geneva: Librairie E. Droz, 1954), pp. 26-29. 'Daniel Jousse, Traité de la justice criminelle de France (Paris: Debure Père, 1771), p. 674.

Procedural and Substantive Law / 45 will not bother here to enumerate the various acts that fell within the term. Suffice it to say that they covered the protection of the ruler and his regime from acts of betrayal by assisting a foreign power, the maintenance of the personal safety, dignity, and authority of the sovereign, and the prevention of all acts by lesser powers within the realm to challenge or hinder the exercise of his royal authority. The picture is one of power jealously guarded by a political ruler against the derogations and usurpations of powerful rivals, rather one of an abstract entity, such as a "state," "nation," or "constitution," being protected against ideological assaults and mass revolutions seeking a change in the social and political order. The penalties for most of these offenses were unusually severe and gruesome. Death accompanied by the most exquisite torture was the usual penalty and, in the case of an attempt on the king's life, was the only penalty. 8 In addition to execution by drawing and quartering (l'écartelement), all of the offender's property was confiscated, his heirs disinherited, his parents, children, and spouse perpetually banished from the realm, and his collateral relatives forbidden from ever carrying his name. 9 To maintain this power and undisputed authority, French monarchs—at least prior to the time of Louis XVI—followed the advice of Richelieu in using both legal and extralegal measures to extend the preventive effect of repressive laws. Numerous exceptions to the law relating to ordinary crimes were made in the case of crimes of lèse-majesté. One could be convicted for merely thinking of committing the crime, provided this thought were outwardly manifested in some way, such as engaging in a plot. Contrary to the customary law one could be convicted on the basis of the depositions of convicted criminals, of children forced to testify against their parents, and of wives against their husbands. Confessions induced by torture were legally admissible and sufficient proof of the crime, despite the Roman law rule of nemo auditur perire volens which was observed in most criminal proceedings. 10 Moreover, other proofs which normally had no probative value at all in ordinary crimes were accepted as sufficient in these cases. 11 Frequently, special courts of extraordinary jurisdiction were convened to try these cases: 12 proceedings were held in secret; the 'Pierre François Muyart de Vouglans, Lois criminelles de France (Paris: Merigot le Jeune, 1780), pp. 133 ff. "Papadatos, Délit politique, p. 27. '"Torture was used in two instances: in pretrial interrogation to obtain a confession (la question préparatoire) and after conviction to obtain knowledge of the culprit's accomplices (la question préalable). ' 1 Papadatos, Délit politique, p. 28. 12 For instance, the ancient prevost courts (cours prévôtales). Also cases of treason involving important personages could be brought before the French Parlement, which, like its English counterpart, had judicial powers.

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accused was not permitted counsel for his defense; and his right to prove his defense through witnesses was limited and subject to the court's discretion. Finally, as if the foregoing were not enough, the objective of repression was further supplemented by the device of the lettre de cachet—the preventive detention of the political troublemaker on order of the King, countersigned by one of his ministers, in a fortress for an indefinite period, under no charge or vague charges, and without right of appeal. 13 It would be a great mistake, however, to leave the reader with the impression that this accurately describes the situation as it existed in France in the twenty years immediately preceding the French Revolution. Since at least midcentury the liberal ideas of the encyclopedists and philosophes, Diderot, Montesquieu, Voltaire, and Beccaria, had swept across the Continent and held almost unchallenged sway in all "enlightened" circles in Europe, whether bourgeois, aristocratic, or regal. In Russia Catherine the Great encouraged a circle of liberal philosophers and wrote instructions for the drafting of a new criminal code. In Prussia Federick the Great inaugurated his reign by abolishing torture. 14 Joseph II of Austria, also inspired by the ideas of the Enlightenment, promulgated a new criminal code in 1787, which abolished the death penalty except for military offenses. In Tuscany, Grand Duke Leopold abolished the death penalty for all crimes, the use of torture, confiscation of goods, and softened the penalties prescribed for crimes generally in 1786. 15 Since France was the radiating center of these ideas, it is hardly surprising to find that Louis XVI was profoundly influenced by them. All of his ministers—Malesherbes, Turgot, Calonne, Necker, Brienne—were liberals and disciples of the philosophes. The King himself was in the forefront of the movement for judicial reform, and was able to effect some changes in the law prior to the convocation of the Estates-General in 1789.16 There is very little evidence of political repression during Louis's reign. Although the Bastille in Paris was the primary place for the incarceration of political prisoners and perl3 Lettres de cachet, like lettres de grâce (the King's pardon), were supposed to be instances of the sovereign's reserved judicial powers (la justice retenue du roi). They are first mentioned in the Ordinance of Orleans ( 1560) and are said to have put the finishing touches to the system of absolute monarchy. Their abolition by the Constituent Assembly in March 1790 might be said to have symbolized the fall of the absolute monarchy. There were basically two uses for these extraordinary warrants: a public use, detention for police and political purposes, and a private use—noble families could have black sheep of the family who were disgracing it or squandering its fortune locked up for safekeeping on the King's order. 14 Torture was not abolished for political crimes, however. 15 José Vanderveeren, "Mémoire: Louis XVI criminologue," 41 Revue de droit pénal et de criminologie 183-206 (1960), p. 204. "Ibid. See also Adhémar Esmein, Histoire de la procédure criminelle en France (Paris: L. Larose et Forcel, 1882), pp. 399-404, and the Edict of 1788 promulgated before the Revolution by the King.

Procedural and Substantive Law / 47 sons detained pursuant to lettres de cachet, when it fell to the mob on 14 July 1789 and its prison doors were thrown open, only seven prisoners emerged and not all of them were political prisoners. In fact, there was a proposal to close the Bastille in 1784 on economy grounds because of the great curtailment in the use of lettres de cachet. In short, Louis XVI was not overthrown for being despotic, but for being ineffecutal—for being unable or unwilling to use his powers to force the changes long overdue against entrenched opposition. 17

Germany Before the

Enlightenment

An abstraction must be used in describing "Germany" prior to 1871. In the century and a half following the Peace of Westphalia (1648), "Germany" was divided into more than 1,800 political entities, consisting, in part, of 77 major secular principalities, 51 imperial cities, 45 imperial villages, and 1,475 territories ruled by imperial knights, all confederated loosely under that largely mythical entity the Holy Roman Empire and presided over by the Hapsburgs of Austria. 18 Each of these states was substantially sovereign in the matter of enacting laws and conducting foreign policy. These facts make it difficult to talk of the legal situation in Germany during the years before 1871, because one is talking about the situation in many different states and principalities whose codes and methods of procedure differed substantially from one another. Nevertheless, certain uniformities and trends are discernible. German law on political crime during the seventeenth and eighteenth centuries, like French law, was based on the Roman law concept of crimen laesae majestatis, which came to absorb a host of crimes, some of which had a distinctly feudal origin. 19 Thus, under the Lex Bambergensis (1507) and the Constitutio Criminalis Carolina (1532), one finds included such crimes nsLasterung (insult to one's lord), Verràterei (treachery), bôsliche Befehdung (treasonous hostility), and Mord am Landesherrn (murder of the lord) along with treason in conducting war against the country (proditio), revolt (Aufruhr), and compulsion directed against the country (Landzyvang).20 All crimes of laesae majestatis, regardless of the degree of seriousness, were punished with marked severity " A n d r e Maurois, A History of France, trans. Henry L. Binsse (New York: Farrar, Straus and Cudahy, 1956), pp. 257-287. 18 E. J. Passant, A Short History of Germany, 1815-1945 (Cambridge: At the University Press, 1959), p. 1. "Christian Baltzer, Die geschichtlichen Grundlagen der privilegierten Behandlung politischer Straftiiter im Reichsstrafgesetzbuch von 1871 (Bonn: Ludwig Rôhrscheid Verlag, 1966), pp. 34-36. 20 Papadatos, Délit politique, pp. 2 9 - 3 0 .

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(aggravated death penalty or banishment) and confiscation of goods. 2 1 No differentiation was made between mere attempts (Versuchen) and the completed crime; they were both punished in the same way, although a different rule obtained as to common crimes. 22 Moreover, the rule of nullum crimen, nulla poena, sine lege—established at a later date—did not apply, so that the ambit of included crimes constantly expanded as the result of judicial decisions. The inquisitional procedures that have already been described in the case of France were common in Germany. Torture was frequently used to extract confessions. When, under the influence of Enlightenment thinkers, Frederick the Great of Prussia abolished the use of torture as a means of criminal investigation, he prudently retained it in the case of political crimes. 2 3 Before the Enlightenment began to have its effect on the criminal laws and procedures of German states, the concept of the " s t a t e " or of a "constitutional order" hardly existed in German law. The object of legal protection was the prince and territory over which he ruled. Political crime was still viewed as a breach of faith, not with the people of the region or with anything like our modern conception of the "nation-state," but with the ruler himself. Thus, betrayal offenses and authority offenses tended to merge. Being so heavily infected with sentiments of betrayal during this period, the offense always entailed the loss of honor; it was a shameful and dishonorable crime. This situation was to change in the late eighteenth and nineteenth centuries as the object of protection became not a person, nor a group of persons, but an abstract entity ( " t h e state"), and as loyalties bifurcated between loyalty to the legal governments of the separate states and loyalty to the greater unity, the German Nation.

The Effect of the Enlightenment

on the Laws of Prussia and Austria

The Enlightenment's effect on the law of political crime in Germany (in the eighteenth century primarily in the Prussian states and Austrian dominions) was threefold: (1) it caused the codification of the laws against political crime into separate and distinct offenses, which took away the power from the courts to expand the limits of the crime of laesae majestatis through judicial interpretation and provided the basis for distinguishing between serious and less serious offenses, leading to the reduction of penalties prescribed for less serious political crimes; (2) it introduced the concept of the "crime against the State," that is, it introduced a new object of legal protection; (3) it made a distinction between the crime of attacking the internal order of the State and the crime of 21

Ibid., p. 30; Baltzer, Geschichtlichen " B a l t z e r , Geschichtlichen Grundlagen, 23 Ibid., pp. 3 5 - 3 6 .

Grundlagen, p. 56.

p. 35.

Procedural and Substantive Law / 49 endangering the external security of the State, a distinction which was to gain significance in the following century, but which at first led to no difference in the severity of repression. The Constitutio Criminalis Theresiana (1768) was one of the first laws to categorize crimes according to the interest being injured. It divided crimes into those against God and religion, those against the State, those against public morals, and those against the interests of the individual citizen. 24 It also introduced for the first time a distinction between lèse-majesté crimes of the first and second degrees according to gravity of the acts, similar to the division made in French law. 2 5 In the Austrian Code of 1787 (Allgemeines Gesetz iiber Verbrechen und derselben Bestrafung), promulgated during the reign of Joseph II, the distinction is made between high treason (Hochverrat) and treason against the country (LandesverratJ.26 This distinction is carried even further in the Prussian State Law (Allgemeine Landrecht) of 1794, wherein the distinction is made among Hochverrat ("the act which tends by violence to change the constitution of the State or which is directed against the life or liberty of the head of State," § 92), Landesverrat (those crimes committed against the external security of the State, § 101), and Majestàtsbeleidigung (offense or insult given to the sovereign, which included crimes against the State princes, their families, and against officials of the State in the performance of their duties, § 196 et seq.). These three offenses were subsumed under the general concept "crimes against the State," defined in section 91 as "the voluntary act of a citizen through which the State or its head are directly injured." 2 7 The enumeration of separate crimes against the State and the attachment of a particular penalty for each reflects the desire of the drafters of these codes to protect the individual from the arbitrariness of state action and not to punish his acts except on the basis of a preexisting law defining the crime with some exactitude. 28 Nevertheless, just as the object of the crime (the State) was considered in abstract terms, so also was the perpetrator of the crime. Exact punishments— usually quite severe—were fixed for each crime, and this was to create problems in the following century when the courts wanted to take the motives of the perpetrator of political crime into account in modifying the severity of the punishments to be applied. 29 24 Ibid., p. 122. " P a p a d a t o s , Délit politique, p. 36. 26 Ibid. 27 Ibid. See also Baltzer, Geschichtlichen Grundlagen, pp. 3 6 - 3 7 . 28 Aggravated capital punishment (usually a humiliating form of beheading) was reserved for serious cases of Landesverrat and Hochverrat. This was accompanied often by imprisonment or banishment of the offender's children and loss of family honor. As to lesser crimes, there were—in Prussia, at least—various forms of degrading imprisonments (usually in a fortress) involving prison labor in irons. Baltzer, Geschichtlichen Grundlagen, p. 48. See also Chapter 5, this volume. 29 See discussion in Baltzer, Geschichtlichen Grundlagen, pp. 5 5 - 6 4 .

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Great Britain Treason As was the case on the Continent with respect to the crime of laesae majestatis, in Great Britain most crimes which could be committed against the monarch and the State fell under the broad ambit of the term high treason.30 The situation in England, however, differed in two notable respects from that which prevailed on the Continent. First, England had a basic treason statute enacted in the fourteenth century during the reign of Edward III, 31 whose purpose was to define acts constituting treason in an effort to limit judicial expansion of the term. 32 Second, since the end of the seventeenth century, English law had afforded procedural protection to persons accused of treason which were greater than any enjoyed by political criminals elsewhere in Europe. 33 The original Treason Statute of 1352 enumerated seven acts of treason: (1) "compassing" or "imagining" the death of the King, Queen, or their eldest son or heir; (2) violation of the King's wife, eldest unmarried daughter, or wife of the heir apparent; (3) levying war against the King in his realm; (4) being adherent to the King's enemies in his realm, giving them aid and comfort in his realm or elsewhere; (5) counterfeiting the King's seal or money; (6) bringing counterfeit money into his realm, knowing the money to be false and with a fraudulent purpose; (7) slaying the Chancellor, Treasurer, or one of the King's justices. 34 As stated previously, this statute was meant to limit judicial expansion of the term high treason by the courts; it was not meant to place a limitation on the power of Parliament to create new treasons by advisement, adjudication, or enactment. 35 Not only did Parliament find many persons guilty of treason for acts which did not fall within these seven categories between 1352 30 Older English legal commentators, such as Henry Bracton (De Legibus et Consuetudinibus Angliae, Sir Travers Twiss ed. [London: Longman, 1879], p. 258), treat treason as the equivalent of the Roman crime of laesae majestatis. Blackstone, in his Commentaries (book IV, chap. 6, p. 75), compares it to the Roman crime of proditio, however, and views it as an offense against allegiance owed the Sovereign by his subjects and by those who claim his protection by residence within the realm. Whichever Roman legal concept the English term high treason more closely approximates in meaning, it is clear that high treason encompassed both betrayal and authority-type political offenses, or what the Continental jurists would come to describe and distinguish as "external" and "internal" political crimes. English law never made a conceptual distinction between the two kinds of treason. 31 2 5 Edw. m , st. 5, c. 2 (1352). 32 Blackstone, Commentaries, book IV, chap. 6, p. 76; Raoul Berger, Impeachment: The Constitutional Problems (Cambridge, Mass.: Harvard University Press, 1973), pp. 8 - 9 . 33 S e e , especially, the Trials for Treason Act, 7 and 8 William III, c. 3 (1696). 34 2 5 Edw. HI, st. 5, c. 2 (1352). 35 Berger, Impeachment, chap. 1. Parliament had the power given to it by the salvo clause of the treason statute of 1352 to advise the King's justices whether a doubtful case constituted treason under the laws and customs of the realm. It also had the judicial power of trying cases of treason in the first instance and declaring the acts of the accused to be treason, notwithstanding lack of precedent. Finally, it had the power of legislatively defining new acts of treason.

Procedural

and Substantive Law / 51

and the beginning of the eighteenth century, but it added many acts to the list by legislation. 36 Notwithstanding the limitation which the original Treason Statute placed on judicial expansion of the concept of treason, however, the courts in the intervening years (and continuing into the eighteenth century) greatly enlarged on the meaning of such phrases as "compassing or imagining the death of the King" and "levying war against the King in his realm" by judicial construction. For instance, any act, including uttered words or written matter manifesting an intention to kill or depose the King, was held to be "compassing or imagining the death of the King," provided the words were not merely "loose words, spoken without relation to any act or project." 3 7 It mattered little how far removed these acts were from the actual accomplishment of the treasonable objective. Moreover, "compassing or imagining the death of the King" was held by courts to include attempts to depose him, imprison him, or do him bodily harm so as to incapacitate him from governing. 38 Collecting information for use by the King's enemies, even though never actually transmitted to the enemy, also came to be included because such an act might lead to a foreign invasion and ultimately to the King's death. 3 9 An attempt to raise a rebellion against the King's authority, even in a remote colony thousands of miles away from the seat of government, was similarly treated for approximately the same reasons. 40 A similarly extensive judicial gloss was placed on the "levying w a r " language of the third clause of the Statute of Treasons. This phrase came to be construed as including any public disturbance with an insurrectionary purpose. This is not to say, however, that all riots and public tumults came within this clause. Armed opposition to a private individual for a local purpose was a riot, a rout, or an unlawful assembly and, until 1714, a misdemeanor. 41 But, if the 36 Treason legislation reached its zenith during the rule of the Tudors and declined somewhat during the time of the Stuart kings. The great number and triviality of the acts covered by these treason statutes, which have since expired or been repealed, is described in Stephen, History of the Criminal Law, 11:255-262. 37 King v. Charnock, [1694] 2 Salkeld's Reports 631; Pyne's Case, [1628] Croke's Reports 117. 38 Sir Michael Foster, Crown Cases, 3rd ed. (M. Dodson, 1792), pp. 195-197. 39 King v. Delamotte, [1781] 21 State Trials 808, and King v. Grahme et al. (Lord Preston's Case), [1691] 12 State Trials 646. *°King v. MacLane, [1797] 26 State Trials 721. An alternative rationale given to the jury was that the Statute referred not to the natural life of the King, but to his political existence (p. 751). '"Unlawful assembly, riot, and rout were all common law misdemeanors. In consequence of the many riots that followed the accession to the English Crown of George I in 1714, a special statute dealing with riots was enacted: the Riot Act of 1714, 1 Geo. I, st. 2, c. 5. This law states that whenever twelve or more persons in unlawful assembly do not disperse within an hour after a justice of the peace has read, or endeavored to read, a certain proclamation to them (whose terms are set out in the Act) calling on them to disperse, the rioters cease to be misdemeanants and become felons punishable with death. Private citizens are immunized by the Act from any liability for using deadly force to disperse them.

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52

riot or armed resistance were conducted for some general purpose in defiance of the laws of the realm, it could be construed as an act of treason, no matter how small or how local the force was or what chance it had of actually overthrowing the government. 42 In this judicial development of the law of treason in the seventeenth and eighteenth centuries, the noted English legal scholar J. W. Cecil Turner notes a shift away from feudal conceptions based in ideas of personal loyalty to a Sovereign toward a conception of public order as the object of legal protection. Turner comments, The historical development of our nation tended steadily, century after century, to make a consciousness of the stability of public order—rather than the feudal feeling of mere personal loyalty to a prince—become the binding force of the body politic. The criminal law had to begin to take cognizance of politicians who, whilst devoted to the reigning King, were nevertheless disturbing the order of the realm, though possibly only by assailing those institutions whereby the constitution had set a check upon the King's powers. Accordingly the judges became active and transformed the feudal conception of treason, as a breach of personal faith, into the modern one, which regards it as "armed resistance, made on political grounds," to the public order of the realm."13

This judicial development of the law of treason had its historical antecedents in English history. The Tudor and Stuart kings had destroyed feudalism in England, with its competing foci of loyalty. By the eighteenth century England was ruled by an oligarchy of wealthy landowners and aristocrats who governed under a King who had literally been imported from the Continent to rule as a constitutional monarch under the political compromise known as the Act of Settlement. 44 It took some time to establish the foreign King's legitimacy and to impress upon him and his successors the limitations on the powers of the Sovereign which the Bill of Rights and Act of Settlement intended, but, once done, it cannot be said that personal loyalty to the King was the object served by the treason law and other political penal laws. Their primary goal in the eighteenth century was to uphold the constitutional order which the Glorious Revolution of 1688 had secured for England's landed Protestant aristocracy. The truth of this observation is partially obscured by the habitual conservatism of English lawyers, who, dreading to change the language of ancient statutes, continued to devise elaborate fictions which made it seem that it was " S e e , for example, King v. Dammaree, [1710] 15 State Trials 521, where a riotous tumult with the object of demolishing all accessible nonconformist meeting houses was held to amount to treason (the constructive levying of war) on the ground that it was in defiance of the Toleration Act which had legalized such meetings. 43 J. W. Cecil Turner, Kenny's Outlines of Criminal Law, 17th ed. (Cambridge: At the University Press, 1958), pp. 368-369. 44 S e e David H. Willson, A History of England (New York: Holt, Rinehart and Winston, 1967), pp. 515-521.

Procedural and Substantive Law / 53 the King's personal safety and honor the laws were attempting to protect, whereas it is obvious that the maintenance of the status quo had become the primary objective. Thus, William Blackstone, writing in the latter part of the eighteenth century, still describes the act of treason in essentially feudal terms as a breach of that bond of loyalty which binds every subject to his sovereign. 45 There was neither in Blackstone nor in the English law of his day the slightest intimation of the distinctions being drawn on the Continent between internal and external treason or of the interests of the monarch as opposed to the interests of constituted order or the state bureaucracy.

Sedition The other great arm of English law for the repression of political crime was the law of sedition, which was divided into the three acts of uttering seditious words, publishing seditious libels, and forming conspiracies in furtherance of a seditious intention. 46 Sedition, whether committed by writings, spoken words, or by conduct, was a misdemeanor at common law, punishable by fine and imprisonment. 47 Sir James Fitzjames Stephen defined a seditious intention as an intention (1) to bring into hatred or contempt, or to excite disaffection against, the King or the government and constitution of the country, or either House of Parliament, or the administration of justice; or (2) to excite the King's subjects to attempt, otherwise than by lawful means, the alteration of any matter in Church or State established by law; or (3) to incite any person to commit any crime in disturbance of the peace; or (4) to raise discontent or disaffection among the King's subjects; or (5) to promote feelings of ill will and hostility between different classes of subjects. 48 Prior to the French Revolution and for several decades thereafter, Englishmen did not have the right to censure the King or his ministers for their mistakes, or to propose the alteration of any basic institution of the established 45

Blackstone, Commentaries, book IV, chap. 6., p. 74. W. G. C. Hall, Political Crime (London: Geo. Allen and Unwin, 1923), p. 30. Technically, English law does not recognize an offense of " s e d i t i o n " eo nomine, but merely seditious words, libels, and conspiracies. It may have been otherwise in Scottish law, which seemed to regard as " r e a l " sedition (as opposed to " v e r b a l " sedition) the act of making commotions and disturbances through illegal convocations of people obstructing and disturbing the peace of the community, without any intent to overthrow the government. See John Erskine, An Institute of the Law of Scotland, Nicolson ed., 2 vols., (Bell and Bradfute, 1871), II: book 4, title 4, §29. •"Sometimes the punishment of seditious libels was much more severe, especially when they were directed against the Sovereign and could be construed as compassing or imagining his death and, consequently, as treason. But even where not so construed, Star Chamber, which had jurisdiction over them during the sixteenth century, sometimes sentenced the offender to the pillory or some form of corporal punishment. Stephen, History of the Criminal Law, 11:305. " S i r James Fitzjames Stephen, Digest of Criminal Law (London: Macmillan, 1877), art. 93, p. 56. 46

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Church or the State without running afoul of the sedition laws. 4 9 The English judiciary seemed to feel that censure of the government by a private citizen, outside the privileged confines of Parliament, was improper, either because the management of the government was none of his business 50 or because the effect of such criticism, justified or not, would irreparably injure the public's confidence in the government, resulting eventually in the dissolution of the State and law. 5 1 About the only right English judges at this time conceded to the subject was the right of humble and respectful petition made to the government in proper form. Naturally, this viewpoint is quite inimical to freedom of speech and the press as conceived in liberal philosophy. To the English judge of the late eighteenth century, however, freedom of the press meant freedom from prior restraint and censorship and no more. 5 2 Once made, every publication was subject to the laws of seditious libel without anything like the First Amendment of the U.S. Constitution to protect it. As Stephen correctly observed in his discussion of the English law of sedition, there are two contrasting views of the relation between rulers and their subjects, and the law of sedition will vary depending on which view is taken. Under the first view the ruler is regarded as the superior of the subject and by the nature of his position presumptively good and wise. It follows from this view that it is wrong to censure him openly and that, even when he is mistaken, his mistakes should be pointed out with the utmost respect and in no manner likely or designed to diminish his authority. Under the second view the ruler is regarded as the agent and servant of the people, merely holding his powers by delegation from them and subject to dismissal for mistakes which any subject can bring to the attention of others through censorious writings. With respect to this position Stephen says, " T o those who hold this view fully and carry it out in all its consequences there can be no such offense as sedition" but only incitements to breaches of the peace. 5 3 Looking at the English law of sedition as it existed at the end of the eighteenth century, one finds that it approximates quite closely the first of the " S t e p h e n , History of the Criminal Law, 11:348: "What, in the latter part of the eighteenth century, was the proper definition of a seditious libel? Omitting technicalities, I think it might at that time have been correctly defined as written censure upon public men for their conduct as such, or upon the laws, or upon the institutions of the c o u n t r y . " 50 See, for instance, the remarks of Justice Allybone in King v. Sancrofi et al. (Case of the Seven Bishops), [1688] 12 State Trials 183, p. 427. 5 ' S e e Lord Holt's charge to the jury in King v. Tutchin, [1704] 14 State Trials 1095, p. 1128. " S t e p h e n , History of the Criminal Law, 11:349; Zechariah Chafee, Jr., Free Speech in the United States (Cambridge, Mass.: Harvard University Press, 1941), p. 9. 53 Stephen, History of the Criminal Law, 11:299-300. In the United States, this is in effect the position to which the United States Supreme Court finally has been driven. See Brandenburg v. Ohio, 395 U.S. 444 (1969).

Procedural

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points of view mentioned by Stephen. The court at that time was the sole judge of the seditiousness of the words or writings prosecuted; the question was one of law not for the jury's consideration. The truth or falsehood of the libel was not material to the charge and could not be inquired into. The criminal intention of the defendant, insofar as it was required, was made out by proof of the words or writings themselves and by their manifest tendency to cause public mischief, and not by the subjective intent or motive of the actor. Thus, prior to the passage of Fox's Libel Act in 1792, 54 the only fact issues remaining for the jury's consideration were whether the accused published the libel, whether the innuendos of the libel had a different sense than that attributed to them by the prosecution or referred to a different person or subject matter, and perhaps whether there was a legal justification or excuse for the libel. 5 5 This state of the law made jury trials an empty ceremony and facilitated the suppression of all unfriendly criticism leveled at the government which was "seditious" in the opinion of the judges. Other Political

Crimes

Other political crimes, which play only a minor role, included misprision of treason, 56 praemunire, 57 "high crimes and misdemeanors" 5 8 which could lead to impeachment and attainder by Parliament, and certain statutory offenses such as the Dockyards Protection Act of 1772. 59 In addition, there were many other crimes, mostly common law misdemeanors, which could be, and occasionally were, used to suppress political activity hostile to the government. 60 These crimes will be passed over not only because their use is largely hidden from view, but also because they did not figure prominently in the repression of political crime in the following centuries. Procedure in Treason and Sedition

Cases

The procedure in trials for treason and misprision of treason was regulated during the eighteenth century by the Trials for Treason Act of 1696. 61 This Act was one of the major accomplishments of the spirit of constitutionalism that 51

32 Geo. Ill, c. 60. "Stephen, History of the Criminal Law, 11:355. "Defined and described in Blackstone, Commentaries, book IV, chap. 9, p. 120. " S e e Turner, Kenny's Outlines, pp. 374-375. 58 See Blackstone, Commentaries, book IV, chap. 9, pp. 121-122; Berger, Impeachment, chap. 2. 59 12 Geo. HI, c. 20. 60 For example, conspiracy, unlawful assembly, riot, rout, public mischief, public nuisance, and vagrancy. " 7 & 8 William III, c. 3.

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followed the last English Revolution (1688), and one of the principal respects in which English law and practice differed from that on the Continent. The Act provided that a prisoner accused of high treason would have the right to receive a list of jurors chosen to decide his case, to receive a copy of the indictment at least five days before trial, to make his own defense through witnesses called by him and with assistance of counsel assigned by the court, and not to be convicted except on voluntary confession in open court or on the testimony of at least two witnesses to the same overt act or to separate acts of the same treason. It was provided also that treason might be prosecuted only within three years of the date of its commission, unless it were committed abroad or consisted of an actual plot to assassinate the King. A later enactment in 1708 added the requirement that the accused be furnished a list of the prosecution's witnesses at least ten days before the trial. 62 These procedural guarantees were the boast of the English judiciary during the period of the Enlightenment, guarantees to which they could point as anticipations of the benign doctrines of the philosophes. On the other hand, they made it increasingly difficult to obtain guilty verdicts from juries in cases where novel extensions were being made in the law of constructive treasons. The Crown received several rebuffs in the latter part of the eighteenth century from jury acquittals. 63 Sedition procedures were somewhat complicated. It is true that persons accused of this crime were also entitled to jury trial, but, as indicated before, the benefits of this were greatly reduced by law which withdrew from the jury's consideration all but the questions of the defendant's publication of the libel and its innuendo. Moreover, an unusual procedure was followed whereby a special verdict on these issues was requested from the jury and, only after their determination of them, would the court render its opinion regarding the seditiousness of the words, conduct, or writings of the defendant, which led in some cases to an unnecessary trial. 64 Punishments The punishment prescribed for treason in England prior to the nineteenth century was barbaric to a degree that staggers the imagination. Traitors were drawn to the scaffold on a hurdle; after being hanged by the neck, they were cut down while still alive, disemboweled, and forced to watch their entrails burned 62

Treason Act of 1708; 7 Anne, c. 21, s. 11. Examples of jury acquittals which had a limiting effect on the further judicial enlargement of constructive treasons are the case of Lord George Gordon, [1780] 21 State Trials 4 8 5 - 5 6 2 , and the cases of Thomas Hardy and Home Tooke, [1794] 24 State Trials 199-1384, 25 State Trials 1 - 7 4 8 . " S e e , for example, the Dean of St. Asaph's case, King v. Shipley, [1783] 21 State Trials 847-1046. 63

Procedural and Substantive Law / 57 before their faces; then they were decapitated and their bodies quartered; the head and quarters were then exposed to public view in some conspicuous place, such as the towers of London Bridge. In addition, their families were to be ruined ("attainted") for all time by the general forfeiture of all lands and goods to the Crown in perpetuity, and not for life, as with other capital crimes. 6 5 In the case of women the punishment was only slightly less gruesome. Until 1790 women traitors were to be drawn to the place of execution and there burned alive. In 1790 the law was modified to substitute hanging. 66 In practice, however, the execution of the sentence of death in cases of treason did not always, or even often, follow the prescribed form. The King often remitted every part of the execution except the beheading, and where he did not the executioner often mercifully took it upon himself to make the hanging fatal. 6 7 As English kings became more secure in their possession of the throne and as trials for treason were extended to acts which posed no great danger to the Sovereign or to his authority, the need for such extremities declined. This manner of punishment also came into increasing conflict with the humanitarian spirit of the Enlightenment as the century progressed. As to seditions, the punishment was fine, imprisonment, and/or the pillory, the extent thereof being within the discretion of the sentencing magistrate. 68 It was also common practice to put the defendant under bond for a certain number of years after imprisonment to ensure nonrepetition of the offense. There were thirteen trials for seditious libel between 1704 and 1789 in England. 6 9 In only one of these—Tutchin's case—was a fine of more than £200 or a term of imprisonment longer than one year imposed. In Scotland, however, it was possible under a statute passed in 1703 for a person convicted of "lease-making" to be banished as well as imprisoned and fined.70 "Lease-making" (probably a corruption of lèse majesté) was a Scottish crime, similar to sedition, which consisted of calumniating the King, his advisers, and nobles and creating discord and hatred between the King and his subjects by spreading falsehoods. It differed from sedition in being a capital felony prior to the passage of the 1703 Act. There were a few cases of persons convicted in Scotland of "leasing-making" prior to 1789 who were transported to colonial penal colonies. 71 "Turner, Kenny's Outlines, pp. 371-372; Hall, Political Crime, pp. 24-25. 66 Treason Act, 1790; 30 Geo. HI, c. 48. "Turner, Kenny's Outlines, p. 372. " T h e magistrate's discretion was limited only by the general prohibition against excessive penalties found in the English Bill of Rights (1688). "Stephen, Criminal Law, 11:363. 70 Act of 1703, c. 4, quoted in Henry Cockburn, Examination of Trials for Sedition in Scotland, 2 vols. (Edinburgh: David Douglas, 1888), 11:11. "Cockbum, Trials for Sedition, 11:118-127.

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Conclusion The eighteenth century provides a useful backdrop against which to view changes in the concept of political crime and the administration of laws with regard to it in the following two hundred years. It was the last time, perhaps, during which an uncomplicated and unambiguous approach to the subject could be taken. Prior to the time that Enlightenment (liberal) political and legal doctrines began to exert an influence on the laws of European nations, political crime was regarded as a breach of faith and allegiance owed to a personal monarch or lord rather than political opposition on ideological grounds to an institutional order or to a regime. The immorality of the former (betrayal) is clearer than that of the latter (challenge to or hindrance of authority, relativistically considered). Moreover, the legitimacy of the reigning power is much stronger when grounded in religion than in philosophy. One would expect, therefore, on both points, that political crime would be regarded as a most serious offense and the laws respecting it would be administered in an extremely punitive and procedurally arbitrary way. Betrayal of the monarch or challenge made to his authority would be considered on a par with the religious offenses of heresy and blasphemy. The historical data confirm this hypothesis. Most political crimes were lumped into broad categories such as treason, sedition, and crimen laesae majestatis (lèse-majesté). There was no felt need to specify with exactitude the particular manifestations which this breach of loyalty might take. The liberal principle of legality (nullum crimen sine lege) had not yet worked itself into the fabric of the law. There was no effort to distinguish between those treasons which attacked the essential foundations of political order and those which attacked merely the transitory features of particular administrations, a distinction which would become popular in the nineteenth century. All treasons were of a piece; all were contempt of the Sovereign's authority. There was no attempt to equate political crimes and ordinary crimes from the point of view of procedural rights. Treason and sedition were always special category offenses and handled very differently from ordinary crimes. In the twenty years preceding the French Revolution, however, one sees, especially in France and " G e r m a n y " (meaning here, Prussia and Austria), some tentative movement of the law in the direction of Enlightment principles. In France and Germany there is some modification of the severity of penalties imposed for political crimes; detention and banishment come into greater use. In England the humanitarian spirit is likewise evident. After the last major rebellion carried out on English soil (1745-1746), the death penalty was seldom applied for political crimes, notwithstanding the fact that the American Revolution provided ample opportunity for doing so. In the Austrian Code of

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1787 and the Prussian Code of 1794 one sees indications of an attempt to codify political crimes and to legalize the administration of justice in the political arena by specifying the acts constituting the crime and the procedures to be used in dealing with it. This process—particularly in the area of procedure—had taken place in England a hundred years earlier, although not under the influence of eighteenth-century doctrines of liberalism. In all three countries the growth of the administrative arm of government, of bureaucracies, gave new meaning to the concept of t h e " state" and forced recognition of two separate aspects of political power with somewhat disparate, competing claims on the loyalty of the monarch's subjects. Although interesting parallels can be drawn regarding the legal reaction to political crime in all three countries under discussion, the similarities should not blind us to important differences. Prior to the French Revolution the political situation in England was fundamentally different from that which prevailed on the continent of Europe. Although, paradoxically, England was the model for many Enlightenment philosophers on the Continent, English constitutionalism and European liberalism were never the same. England had deposed its absolute monarchs in the seventeenth century, and in the eighteenth political power was firmly in the hands of an oligarchy of wealthy landowners who ruled under, but not subservient to, a constitutional monarch. England remained resistant to many of the extreme positions taken by French liberal philosophers, although it could boast of having anticipated some of them. Another point of resistance was that English courts carried into the next century the heavy baggage of the common law tradition, accumulated over the previous centuries. This common law tradition—believed to guarantee personal liberties with almost talismanic effect—could not easily be abandoned when it came into conflict with liberal doctrines. Thus, liberalism infiltrated England at a much slower pace than it did European countries after the Revolution. In France and Germany the French Revolution and the events which followed in its wake represented a much more abrupt break with the past. Although reaction took place in all three countries both before and after the Revolution was "put d o w n , " liberalism in Europe represented a far more radical departure than it did in England. For those who rejected the past and believed in "progress," the Utopian liberal political doctrines of eighteenth-century philosophes had to be accepted as a package deal, the good with the bad, the practical with the impractical. This was to have its effect on the pace with which similar liberal approaches to political crime were embraced by the governments of the three countries during the nineteenth century.

The French Revolution and the Period of Reaction (1789-1830) SECTION

TT

TWO:

.M. OR EUROPE THE French Revolution was probably the most fateful event since Charlemagne established his Frankish Empire. It not only spelled the doom of Europe's greatest and most ancient monarchy, but it shook all existing political relationships to their foundations. It was the most dangerous kind of revolution for those who sought to maintain the status quo—an ideological revolution. Like some pestiferous plant whose bulbs burst in the summer heat and spew forth noxious seeds, the French Revolution scattered across Europe ideas which were to challenge political arrangements and divide societies by classes for a hundred years and more. It was a revolution which passed through several stages and built in intensity until it reached a firestorm of excesses during the years 1793-1794. So great were these excesses and so powerful the forces they released that they produced a conservative reaction in countries bordering on France and ultimately in France itself which lasted a third of a century and, in some cases, longer. For almost all European countries except Great Britain this conservative reaction at first came too late to save them from conquest by French armies. But when, finally, the nations of Europe awoke from their feudal slumber, coalesced, rolled back the forces of Napoleon Bonaparte to the territorial boundaries of France, and then produced his removal to Elba and later St. Helena, the conservative reaction held full sway, at least until the next French revolution of 1830. But to characterize the period as simply one of reaction would be to leave the reader with a grave misunderstanding. Prior to the Terror, the Revolutionary Assembly had introduced many liberal reforms in France's laws and con-

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stitution which, though swamped and ignored in the excesses of the Jacobins, later became models for the emerging middle classes and democratic and liberal intelligentsia of Europe. Many of these reforms were restored by the Directory when the Terror ended. When French armies invaded Europe, broke the cake of feudal custom and humbled the anciens régimes, it was these untried reforms and liberal ideas which they carried in their wake. Though the nations of Europe resisted French domination, their intellectuals took to their hearts many of the conquerors' ideas. Thus, when French domination ended, the "conservative reaction" took as its point of departure the acceptance of many basic tenets of liberalism and a number of its milder reforms. The situation in Great Britain was essentially the same, although England never had to eject a foreign invader from her soil. The ideas and ideals of the Revolution also left their imprint on the minds of young English romantics and radical liberals, who were to be so profoundly influential during the nineteenth century. From the long-range viewpoint the French Revolution was like a story interrupted in the telling. Its unfinished themes were to be repeated and retold during the remainder of the nineteenth and well into the twentieth centuries. Indeed, it is difficult to think of single ideological movement with a wide following in the twentieth century which cannot trace an intellectual forefather back to Revolutionary France or to countries on its borders that fell under its intellectual domination.

CHAPTER

France

4

(1789-1830)

The French Revolution, 1789-1795: Liberal Reforms and Political Realities During July and August 1789 there was, in effect, a transfer of power from the monarchy, nobility, and clergy of France to the National Assembly, largely composed of members of the Third Estate, about half of whom were lawyers and most of whom were devotees of the new liberalism. The Assembly immediately set about reconstituting the state and its laws on liberal principles. By the decree of 8 - 9 October 1789, certain revisions in the Ordinance of 1670 extended the procedural rights of persons accused of a crime and eliminated the use of torture. 1 A decree of 21 January 1790 abolished all distinctions of rank and status in the administration of punishments and made them personal to the offender, thus eliminating punishment and attainder of members of an offender's family and also confiscation of goods. 2 In March 1790, lettres de cachet were abolished, and by a decree dated 30 April 1790 the National Assembly established the right of trial by jury in all criminal (felony) matters, thus pre1 The Ordinance of 1670 was the basic procedural law governing criminal proceedings prior to the Revolution. The procedural rights granted by the revision of this law were the right to a public criminal proceeding and assistance of counsel prior to the time of interrogation; the right of the accused to be informed of the charge and be given a copy of the accusation, to confront witnesses, to be present at their interrogation by the court, and to prove his defense through witnesses summoned at his request by the court; the right not to be condemned to an afflictive or infamous punishment except by a two-thirds vote of his judges, or to death except by a four-fifths vote. Adhémar Esmein, Histoire de la procédure criminelle en France (Paris: L. Larose et Forcel, 1882), pp. 4 1 0 - 4 1 6 ; Sirey, Lois annotées, 1789-1830 (Paris: Pouleur, 1840-1843), I: 4 - 5 (hereafter cited as L.A.). 2 Sirey, L.A., (1789-1830), 1:12.

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sumably abolishing all the old criminal courts of special jurisdiction which had n o juries, such as the cours prévôtales.3

T h e new procedures for jury trials

w e r e later established by the decree of 1 6 - 2 9 September 1791." O n 8 October 1791, the first comprehensive criminal code was e n a c t e d . 5 It faithfully reflected the liberal creed in criminal matters. C o m m o n law crimes were abolished, and each crime was set out in all its particulars in the C o d e . T h e emphasis was placed on the act committed, not on the motive or personality of the o f f e n d e r . T h e penalties were fixed by law, carefully scaled according to the gravity of the o f f e n s e and not subject to alteration by the j u d g e . Punishments were softened and the death penalty reduced f r o m over a hundred o f f e n s e s to thirty-two, most of w h i c h , by the w a y , continued to be in the area of political c r i m e s . 6 But since it is political crime that w e are interested in here, let us n o w turn to the provisions of the C o d e of 1791 which deal with this subject. T h e first and most significant fact about the treatment of political crimes in this C o d e is the new n a m e given t h e m , which reflects the new conception of the object, or victim, of the crime. These crimes are no longer injuries to the authority and dignity of the m o n a r c h (lèse-majesté);

they are n o w called

" c r i m e s against the S t a t e . " In other words, the abstract entity, the " S t a t e , " has been substituted for a personal sovereign as the subject for legal protection against the attacks of those w h o would change the political order. In the following passage Papadatos explains this new concept of the State and adverts to its relation to the concept of the "political o f f e n s e " which will arise thirty years later: In the new public law, the moral person of the State is distinguished distinctly from the organs through which it acts, i.e., from the individuals who exercise power in its name. The crime against the State is conceived of, then, from two angles: on the one hand the attack on the State as such, against its existence or its laws—crimes against the external security of the State; on the other hand, the attack on the organs of the State, its government or its political institutions—crimes against its internal security. Between these two categories there exists an essential difference; in the first case, the existence of the State is put in danger, while it is not in the second. The moral person of the State no longer being identified with the existing regime, the overturning of political institutions does not affect its existence. This distinction, and difference in weight that it carried with it, will constitute the preliminary condition of the new concept of "political offense" which will appear twenty years later.7 3

Ibid., 1:26. Ibid., 1:155-162. Ibid., 1:163-169. 6 H . Donnedieu de Vabres, Traité de droit criminel et de législation pénale comparé, 3rd ed. (Paris: Recueil Sirey, 1947), pp. 2 7 - 2 8 ; George B. Void, Theoretical Criminology (New York: Oxford University Press, 1958), pp. 2 2 - 2 3 . 'Pierre A. Papadatos, Le Délit politique: Contribution à l'étude des crimes contre l'état, thèse no. 507 (Geneva: Librairie E. Droz, 1954), p. 37. 4

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This distinction between "external" and "internal" crimes against the State, which will attain such a firm place in European codes during the nineteenth century, is already made in the Code of 1791. The first two sections of the first title of the second part deal with crimes against the external and internal security of the state, respectively. The first section (external crimes) lists seven offenses, which mainly consist of acts of treason against France in her relation with hostile foreign powers in time of peace and war. All but one of these offenses are punished with the death penalty. The second section (internal crimes) deals with such offenses as plots and attempts against the person of the King, the regent, or the heir presumptive to the throne, all conspiracies and plots tending to throw the State into a condition of civil war or of resistance to lawful authority, all enrollment of troops and amassing of arms for this purpose, all attacks on or resistance to public force acting against such plots, all invasions of cities, fortresses, magazines, arsenals, ports and vessels, all business and communications with those in revolt in such a manner as to undermine the ability of the State to resist, and the refusal of commanders of troops, flotillas, squadrons, fortified places, or posts to give up command on order of the King. Here, likewise, all such crimes are punishable with death; and the authors, leaders, and instigators of such revolts and all those taken captive carrying arms are subject to the same penalty. 8 Section 3 of the first title of the second part lists "crimes and attempts against the Constitution," which are mainly meant to protect the legislature and the authority of its enactments, and for which severe penalties, but penalties less than death, are prescribed. 9 Section 4 lists crimes of disrespect and disobedience of the law and of the authority of persons charged with its execution. Section 5 cites crimes of government officials in the exercise of the duties entrusted to them, and section 6 crimes against public property including counterfeiting, peculation, and arson. Again, severe, but less than capital, punishments are provided for these offenses. The second significant feature of this law is its limitation to specific acts which place the State in danger. There is almost a total absence of speech or belief crimes, of the crimes of incitement or solicitation, except when such acts are immediately followed by riotous and rebellious resistance to authority, or of the crime of membership in proscribed political organizations. The old crime of lèse-majesté divine is completely omitted. This is quite consistent with the high value liberalism places on the inviolability of each man's individual conscience and on his freedom to express his thoughts without State interference. 8

Sirey, L.A. (1789-1830), 1:165. 'Penalties less than death provided for these crimes were solitary of civil rights, detention, and imprisonment in irons. No "perpetual" was allowed under the Code. Other penalties provided by the Code, fenses, were imprisonment in a workhouse (réclusion dans la maison déportation), and the pillory (le carcan).

confinement (la gène), loss (that is, life) imprisonment not applied to political ofde force), transportation (la

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The third significant aspect of this law lies in its treatment of political crime as not essentially different from conventional crime, except perhaps with regard to the seriousness of the crime as denoted by the severity of the penalties attached to it. There are, for instance, no special treatment of attempts 10 and no preventive measures taken for the detention of persons suspected of being engaged in activities harmful to the regime. Special courts for politically dangerous acts, as we have seen, had been abolished, and these crimes are subject to the jurisdiction of juries, the same as other crimes. All in all, few extraordinary protections are afforded for those who ruled in the name of the " S t a t e . " This may reflect the fact that the major work of the Assembly, the Constitution of 14 September 1791, had just been completed and accepted by the King. On 25 September 1791, the Assembly disbanded and the Code of 1791 was one of its last accomplishments. Perhaps, in the grip of a feeling of work well done and optimism as to the future, the National Assembly felt that this piece of legislation was adequate to preserve the shaky system of constitutional monarchy erected by the Constitution of 14 September 1791, and to protect the discredited, virtually captive King. There was little cause for optimism, however. As France spiraled downward toward civil and foreign war, the Code of 1791 would prove totally inadequate to protect the government against those who were to introduce despotism and the Terror into France in the next few years. Only a passing reference will be made to the politically repressive measures adopted by the Girondists and Jacobins during the years of the Terror (1792-1794) such as the infamous Law of Suspects," the laws expanding the powers of the Revolutionary Tribunal, 12 the law of 22 Prairial 1794, 13 and the Press Law of 2 9 - 3 1 March 1793. 14 These laws manifested a complete reversal of the liberal criminal legislation which marked the earliest years of the Revolution and carry the unmistakable signs of politically repressive law: suppression of speech and meetings which might be inimical to the faction in power, criminalization of "reactionary" thought and even of elements of the population believed to be "objectively" hostile to the Revolution ("enemies of the people"), political trials and prosecutions, and finally especially severe forms " " ' S p e c i a l treatment" in the sense that, according to common law in Europe, treason and attempted treason (that is, the completed act and the attempt) were treated as the same and were punished with equal severity. Article 88 of the French Penal Code of 1810 makes it clear that, as to political crimes, the word I'attentat includes the commencement toward execution as well as the completed act. The Code of 1791 leaves this question open and doubtful. " L a w of 17 September 1793; see Sirey, L.A. (1789-1830), 1:259-260. 12 Law of 1 0 - 1 2 March 1793, establishing an "extraordinary criminal c o u r t " (ibid., 1:221222); law of 31 July 1793 (ibid., 1:248); law of 29 October 1793 (ibid., 1:271). 13 See ibid, 1:299-300. 14 See ibid., 1:227.

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of punishment (usually death) for political offenders. I pass over the legislation of this period, not because it lacks relevance to the thesis of this book (in fact, it is the paradigm of my model of political repression), but because it did not survive the ending of the Terror or make any lasting contribution to French laws controlling political crime. A year after the fall of Robespierre a new constitution (22 August 1795) was adopted and a five-man Directory established to rule France. One of the last enactments of the Constitutional Convention was the Code des Délits et des Peines of 25 October 1795, which was mainly a procedural law returning to many of the liberal ideas and practices of 1791. 15 But this code also contains a number of new provisions on crimes against the internal security of the State and against the Constitution. 16 It is difficult to say what this law adds to the Code of 1791. Its provisions are more detailed and broader in their coverage, and its penalties are, on the average, more severe. But, other than that, it seems to add little that is new. Perhaps therein lies its significance: it turned its back decisively on the innovations of the first three years of the Republic. It was not a particularly effective weapon in suppressing the periodic coups and plots attempted against the Directory (such as Vendémiaire in 1795, Babeuf's communist conspiracy in 1796, Fructidor in 1797, Floréal in 1798, and Prairial in 1799). More and more the Directory depended on the army and its generals to suppress insurrections and plots. 17 One of these generals was Napoleon Bonaparte.

The Napoleonic Period, 1799-1814 Napoleon rode to power on the crest of a wave of popular craving for order and almost unbounded cynicism of former revolutionaries as to the feasibility of popular government. One former member of the Convention remarked, "The ignorant class no longer exercises any influence either on the legislature or the Government; everything is done for the people and in the name of the people; nothing is done by it and at its ill-considered dictation." 1 8 Nevertheless, when Napoleon assumed command as First Consul of the Republic in 1800 under yet another constitution (13 December 1799), the situation in France was still not settled. There was intermittent war between France and her neighbors to the east; the Vendée was in revolt; widespread brigandage result15

Ibid., 1:362-380. Ibid., aits. 612-646. 17 E.. J. Hobsbawm, The Age of Revolution (New York: New American Library, Mentor, 1962), p. 96. "Quoted in André Maurois, A History of France, trans. Henry L. Binsse (New York: Farrar, Straus and Cudahy, 1956), p. 332. 16

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ing from the breakdown of order wracked the nation; and there were assassination attempts against the First Consul himself. Napoleon quickly consolidated his power in the face of intrigues of political rivals and foreign enemies, and established a stable regime which rested on secure foundations for almost fifteen years, notwithstanding the frequent absence of the Emperor on foreign campaigns. 19 By 1810 he had extended the boundaries of France, held large parts of Europe in subjection, and acquired for his regime a degree of legitimacy which had been enjoyed by no French government since before the Revolution. He and his ministers completely reorganized criminal procedure (Code d'Instruction Criminelle of 1808), and in 1810 the Code Pénal was promulgated. Although both codes have been extensively revised and amended since that time, French criminal law and procedure still bear the imprint of these original Napoleonic codes. Penal Code of 1810

The Code of 1810 reflects the influence of Bentham and the utilitarians, and the comments of its drafters, such as Target, clearly reflect this influence. 20 It is a severe code which attempts to assure the security of the State, the society, and the citizen through intimidation of malefactors. Death, transportation, and banishment were the usual penalties prescribed for political offenses; 21 to these were added general confiscation of the offender's property. 22 The comments of the drafters of the 1810 Code with respect to the penalties of transportation, banishment, and general confiscation are especially interesting in their application to political crimes. (The reader is referred to Appendix A for the translation of the comments.) Although the attitude of the drafters toward political crime is generally stern (see comments in regard to general confiscation of goods), the drafters at times reveal a noncondemnatory and pragmatic approach to political offenders (see comments on transportation and banishment). Speaking of "men whose hearts are not entirely depraved," " A m o n g the political laws passed during the early years of Napoleon's Consulship were the decree of 17 January 1800 (Sirey, L.A., 1:525), which permitted the publication only of certain " o f f i c i a l " journals during the war; extraordinary measures (transportation and police surveillance) taken after the assassination attempt of 22 December 1800 (ibid., 1:522-533); and laws tightening the government's control over its court system and especially over juries so that brigands and political criminals might be dealt with more expeditiously (see ibid., 1:553, 554, laws of 27 January and 7 February 1801). 20 Papadatos, Délit politique, p. 39. 21 As to the death penalty, the Code introduces a special form of humiliating capital punishment (usually reserved for parricides—the amputation of the right hand prior to execution and the covering of the offender's face with a black veil) in the case of attempts or plots directed against the person or life of the Emperor. For comments of the drafters of the Code, see Appendix A. 22 Actually, confiscation of goods had been reintroduced by the law of 18 Floréal, l'An ID (6 May 1795) for crimes against the security of the State and for counterfeiting. The Code of 1810 extends the cases for which this supplementary punishment is provided.

France (1789-1830) / 69 the drafters advise treating political criminals transported to a French colony with leniency in order to cause them to settle there and become productive colonists. Moreover, they state, "political offenses, which transportation strikes at, do not suppose the complete renunciation of all principles of honor and morality; they do not have, as with other crimes, their necessary cause in depravity of the heart," and thus justify the possibility of the transportée being restored to his rights of citizenship in the place of exile. These remarks, conceding the possibility that the political criminal may not be a devil's disciple but a man of honor and some decency, already foreshadow the attitude of understanding, almost admiration, which is shown toward the political criminal several decades later. Several new crimes against the State are added to the Code. Nonrelevation to the authorities of plots to commit crimes against the internal and external security of the State are punished according to articles 103 to 108. However, the Code absolves those who have knowledge of or are engaged in these plots if, prior to execution and within twenty-four hours of gaining knowledge of them, these persons inform the authorities of the existence of the plots and the identity of the conspirators. 23 Article 102 of the Code punishes as guilty of crimes against the internal security of the State all those who incite citizens or inhabitants to commit these crimes, whether by speeches in public places, by placards, or by printed writings. Articles 283 to 289 punish by imprisonment from six days to six months all those who contribute to the publication and distribution of all publications which do not carry on them the name, residence, and profession of the author or publisher. Penalties are reduced for those vendors and distributors who reveal to the authorities the name of the printer, author, or main distributor of the writing. Articles 291 to 294 make all associations of more than twenty persons unlawful whose purpose is to pursue religious, literary, political, or other goals, and subject them to various penalties when they have not first obtained the permission of the government to meet or when they break the conditions which the government has imposed on them. Articles 201 to 208 punish criticism, censure, and provocation directed against public authority in public sermons and pastoral letters by clergymen and also all correspondence by them with foreign powers on religious matters without prior notice to, and approval of, the government. Articles 209 to 221 punish with an exact scale of punishments, graded as to the seriousness and extent of the threat posed, number of people involved, and so forth, all "rebellions" and acts of 23 There are two exceptions provided. First, spouses, even if divorced, and close relatives of the plotters are excepted from punishment for nonrevelation, but are placed under surveillance by the state police for a period not exceeding ten years (art. 107). Second, in the case of revelation by co-conspirators, although the punishment is remitted, the informer may still be placed under surveillance by the state police for life or for a time (art. 108).

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resistance to public authority. Presumably, since these are punished with lesser penalties than those normally affixed to political crimes, these "rebellions" and acts of resistance lack an insurrectionary purpose. In articles 88 and 89, the Code of 1810 makes clear what was left in doubt under the Code of 1791: that an attentat against the life or person of the Emperor, or members of his family, or whose end is to destroy or change the government, or change the order of succession to the throne, or to excite citizens to arm themselves against imperial authority (all of which are punished by articles 86 and 87 of the Code) includes the preparatory acts taken toward the commission of the crime as well as the completed act; and that a complot or plot to commit these crimes consists of the mere criminal resolution to act on the part of two or more persons. Even when the plot is not agreed to by those to whom it is proposed, the author of the plot is punished under the Code with perpetual solitary confinement or banishment according to whether the plot was to commit an article 86 or 87 offense. 2 4 Finally, article 49 of the Code places under the surveillance of the state police "those who have been convicted for felonies and misdemeanors which concern the internal or external security of the State." All in all, the Code of 1810 presents the picture of a state fully equipped with a wide range of preventive weapons against political crime. The incitement of revolutionary activity and fomenting of discontent against the government is controlled by prior restraint of the press, of sermons, of public addresses, and of all meetings of more than twenty persons. The law is severe with the intention of being intimidating, even as to mere preparatory acts and plots, but the law also carefully seeks further prevention by inducing accomplices and others to save themselves by informing on conspirators and by subjecting many persons to police surveillance. But, as the remarks of the drafters of the Code reveal, a new attitude toward the political criminal is growing in France. This attitude, in conflict with the political trials of the Restoration period and the application of the harsh provisions of this Code, will provide the background for the new lenient treatment of political offenders which will be introduced in the 1830s.

The Restoration of the Monarchy and Its Problems in an Age of Revolution, 1815-1830 The defeat of Napoleon in 1814 and again in 1815 brought back into power the Bourbon monarchy under Louis XVIII and a coterie of emigré aristocrats and wealthy bourgeois, men embittered by their long vacation from power, by the slaughter of their relatives during the Revolutionary and 24

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Napoleonic periods, and by the confiscation of their estates and abolition of their privileges. 25 Such men (Louis XVIII and his ministers excepted) were fully prepared to take their revenge and to restore the situation in France to what it had been prior to the Revolution of 1789. The government of France was, in part at least, imposed on France by the victorious powers assembled at the Congress of Vienna (1814). Those powers determined—in the interest of maintaining peace throughout Europe and avoiding revolution—that concessions had to be made to the spirit of the French people and to the changes the Revolution had introduced. They were not liberals; nevertheless, as a concession to the changes time had wrought, they insisted that Louis XVIII be a constitutional, rather than absolute, monarch and that he rule under a charter which guaranteed individual freedom, freedom of the press and of conscience, an independent and irremovable judiciary, no extraordinary or administrative tribunals, responsible ministers, and no laws decreed except by agreement of the legislature and the executive. These conditions were not entirely satisfactory to the Bourbon monarch, but it is to his credit that he attempted, as far as it was within his power to do so, to live up to the conditions of this agreement. The trouble was—and this problem plagued French governments until the 1870s—that the government lacked legitimacy in the eyes of substantial portions of its population and was caught in a crossfire between the forces of reaction and those elements which represented one of the philosophies that had been born during the course of the French Revolution. 26 For, although the Congress of Vienna may have imposed a peace which was to last a century on the international level in Europe, it was unsuccessful in stemming the forces of internal change. The revolutionary spirit was abroad, and the nineteenth century became an era of continual discord and revolution, not only in France but all over the world. The White Terror

and Its Aftermath

(1815-1819)

"If you have not lived through 1815, you do not know what hatred i s . " 2 7 The White Terror 28 began almost immediately after Napoleon's defeat at Water25 The "Restoration" spoken of in this section is actually the Second Restoration. The first had been interrupted in 1815 by Napoleon's sudden return to France from Elba and the Hundred Days. See Maurois, History of France, pp. 359-384. " H o b s b a w m describes the "three main trends of post-1815 opposition" as all being based on models established during the revolutionary days of 1789 to 1797 (The Age of Revolution, p. 141). They were "the moderate liberal (or, in social terms, that of the upper middle classes and liberal aristocracy), the radical democratic (or, in social terms, that of the lower middle class, part of the new manufacturers, the intellectuals, and the discontented gentry), and the socialist (or, in social terms, the 'labouring poor' or the new industrial working classes)." Hobsbawm leaves out the forces of rightist reaction, which were also opposition forces (except during the reign of Charles X, 1824-1830). 27 Quoted in Maurois, History of France, p. 375. 28 Called " w h i t e " because white was the color of the royalist Bourbon banner (le drapeau blanc), as opposed to the tricolor flag of Republican and Napoleonic France.

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loo and the return of the ultraroyalists to power. The first battle between the King and his ultraroyalist legislature shaped up around the issue of amnesty for the former officials of the Napoleonic era. The King wanted royalist vengeance limited to nineteen notables already turned over to the tribunals for trial and thirty-eight persons sentenced to banishment. The ultras in the legislature, however, demanded the exception from amnesty of more than eleven hundred persons, including all the marshals, all the generals, all the prefects, all the high functionaries implicated in Bonaparte's return, and all the regicide signers of the acte additionnel.29 There was no saving some of the generals, particularly Marshal Ney, and they were executed or banished. 30 But Louis won the amnesty battle, and his Ordinance of 24 July 1815, with modifications, was later enacted into law. 3 1 This was to establish a precedent of sorts, and one finds a tradition growing in the nineteenth century whereby the demand for amnesty of political prisoners becomes almost automatic at the start of any new regime. However, with the exception of the amnesty law, one finds a surfeit of repressive laws passed during these years. The prevost courts are reestablished for trying most members of the former regime who had not been amnestied and present opponents of the regime who were not reconciled to the restoration of the monarchy. 3 2 Preventive detention of political offenders prior to trial is authorized, 33 and there is a series of enactments which steadily restricts the freedom of the press "guaranteed" by the Charter of 1814. 34 Some of these laws 23 See Louis Blanc, History of Ten Years, trans. Walter K. Kelly, 2 vols. (Philadelphia: Lea and Blanchard, 1848), 1:50. See also Sirey, L.A. (1789-1830), 1:933, annotation to Amnesty Law of 12 January 1816. '"Marshal Ney, whose treason was quite apparent (he first engineered Napoleon's abdication for the Bourbons and then supported him during the Hundred Days), was tried by the Chamber of Peers and later executed. Other generals (Lallemand, Drouet d'Erlon, Clauzel, et al.) were exiled and their estates confiscated. " S e e Amnesty Law of 12 January 1816 (Sirey, L.A. [1789-1830], 1:933). 32 Ibid., 1:931, law of 20 December 1815. 33 Ibid., 1:928, law of 29 October 1815. This act, which was seen by Count Lanjuinais at the time as being a reinauguration of the infamous Law of Suspects, provided for preventive detention pending trial of "every person . . . arrested as accused of crimes or offenses against the person or authority of the King, against the persons of the Royal Family, or against the security of the State." However, there was a strict reporting requirement whereby some control over the arrest of detainees could be exercised by the central government, and it was provided in article 3 that where the motives of prevention were not serious enough to require arrest, the accused could be provisionally discharged under the surveillance of the state police. It also provided that the law would expire if not renewed during the next session of the legislature. It was renewed on 12 February 1817 (ibid., 1:972), to expire on 1 January 1818.34 Article 8 of the Charter of 4 June 1814 states, "Frenchmen have the right of publishing and printing their opinion, while conforming to laws which ought to punish the abuses of this liberty." As Sirey points out (L.A., 1:895), the subsequent legislation shows more concern with preventing abuses of the press than punishing them. It does this through censorship and requiring prior authorization for publication from the royal ministers. See the ordinance of 10 June 1814 (ibid. 1:900901); law of 21 October 1814, establishing censorship (ibid., 1:908); law of 9 November 1815, concerning seditious cries and provocations to revolt (ibid., 1:928); laws of 28 February and 20 December 1817, requiring prior authorization of the King for certain publications (ibid., 1:973, 986).

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are repealed or modified between 1817 and 1820, during a period when the liberal supporters of constitutional monarchy gain a temporary upper hand in the legislature. 35 The most interesting piece of legislation enacted during this brief "liberal" interlude is the press law of 17 May 1819. The press law stated that everyone who provokes another person to commit any felony or misdemeanor by written or verbal discourse, cries, or threats made in public places will be deemed to be an accomplice in the commission of the crime and punished as such. 3 6 This could lead to rather serious consequences under the Penal Code of 1810. For instance, if the action provoked by the writing were an attentat whose end was to destroy or change the government under article 87, then under article 59 of the Code the writer, as an "accomplice," could receive the same penalty as the attemptor—death. If the provocation was not followed by effect, however, articles 2 and 3 of the 1819 act provided that the speaker or writer could still receive imprisonment from three months to five years in the case of felonies and three days to two years in the case of misdemeanors. The act of 1819 also created a number of new substantive offenses in the realm of speech and writing, such as all seditious cries publicly made, the removal and defacing of public signs of royal authority motivated by hatred and contempt of that authority, all provocations to disobedience of the laws, every outrage to public and religious morals or to good customs. By a subsequent law regulating procedure in cases brought under this act, the truth of the libel was no defense, except in the case of imputations made against the depositaries or agents of public authority with regard to facts relating to their functions and administration—a slight concession to the liberalism of the times. 3 7 Although this legislation can hardly be regarded as a resounding expression of liberal views on freedom of speech and the press, it must be seen in the context of the times. Not only was it preceded and followed by far more repressive legislation, but it was enacted during a period of violent social unrest, not only in France but also in the neighboring states of England and Germany. 3 8 35 The law establishing prevost courts was not renewed in the 1817 legislative session and so expired. The law on preventive detention (see footnote 33) also expired in 1818, and the repressive press laws were considerably modified in the laws of 17 and 26 May and of 9 June 1819 (ibid., 1:1009-1012), which establish a classification of press crimes, prescribe penalties for them, set up the procedure for their prosecution, and eliminate prior authorization by the government and censorship. For the political background of this liberal " t h a w , " see Blanc, History of Ten Years, pp. 53-57. 36 Law of 17 May 1819; Sirey, L.A. (1789-1830) 1:1009-1010. See also discussion regarding this law in Sir James Fitzjames Stephen, A History of the Criminal Law of England (London: Macmillan, 1883), 11:387-391. 37 L a w of 26 May 1819; Sirey, L.A. (1789-1830), 1:1010-1011; see especially article 20 of the act. 38 1 have noted the prior legislation and its repressive nature in footnote 34. For the subsequent legislation relating to press crimes, as cited in Sirey, L.A. (1789-1830), see law of 31 March 1820 (Sirey, 1:1023), which suspended freedom of the press and reestablished censorship; law of 17

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This legislation has also been selected out of all the laws passed during the time because it had some longevity. It was maintained, and added to, during a long up-and-down career which extends to 1881, when freedom of the press achieves its maximum protection. 39 The numerous enactments of legislation relating to control of the press during the Restoration period and thereafter reflect the government's awareness and appreciation of the power of the press in an age of widespread literacy and ideological revolution; these laws also reflect its concern with maintaining and protecting the symbols of legitimacy. The Victory of Reaction and Political Trials of the 1820s

On 13 February 1820, while attending the opera, the Duke of Berry, nephew of the King and the future hope of the ultras, was assassinated by Louvel, a young saddler who was nurtured on the legend of Napoleon and who acted entirely on his own to snuff out the royal Bourbon line. 40 Louvel readily admitted his crime and the motives behind it, and an investigation failed to turn up any conspirators. Nevertheless, the royalist press and the ultras in the legislature were quick to use the incident for political purposes and placed the blame for the assassination on Decazes, Louis's liberal minister. 41 The Duke of March 1822 (1:1073), which abolished implicitly the major provisions of the law of 9 June 1819 and established as a permanent rule the prior-authorization requirement (it also required the suspension, and in the case of continued offenses the total suppression, of journals whose spirit, as manifested by a series of articles, was of such a nature as to constitute an attack on religion or the authority of the King); the law of 25 March 1822 (1:1073-1074), which gave jurisdiction over press offenses to the tribunal de police correctionelle (the court that tried misdemeanors and was presided over by three judges with no jury), thereby avoiding juries which leaned in favor of defendants in political cases; the ordinance of 15 August 1824 (1:1114), which restored to force the laws of 31 March 1820 and 26 July 1821; the ordinance of 24 June 1827 (1:1171), which renewed the same laws during the reign of Charles X; and finally the law of 25 July 1830 (1:1223), which suspended freedom of the press and restored to force the provisions of the law of 21 October 1814 requiring prior authorization and authorizing the seizure of all unauthorized publications. This act might not have struck so hard had not the press enjoyed a two-year period of relative freedom during the ministry of Martingnac (see law of 5 November 1827, abolishing the legislation of the prior June, and law of 18 July 1828, eliminating the prior-authorization requirement and restoring the conditions of the law of 9 June 1819). This final enactment suppressing freedom of the press, coming on top of Charles's attempt to dissolve the Chamber of Deputies, however, was sufficient to bring on the July Revolution of 1830. 39 S e e press law of 29 July 1881; ibid (1881), IX:201-228. ""The succession of future Bourbon monarchs would run through the blood line of the Duke of Berry. Louvel was intent on wiping out the entire Bourbon line. After murdering Berry, he intended to kill the Duke d'Angouleme, then the Count of Artois (later Charles X), then the King himself (Louis XVIII). See Prods de Louvel in Causes politiques célèbres du dix-neuvième siècle: Rédigées par une société d'avocats et de publicistes, 4 vols. (Paris: Langlois Fils, 1826-1828), vol. 2. 11 See Maurois, History of France, pp. 377-378; Blanc, History of Ten Years, p. 58. Le Drapeau Blanc, on the day after the assassination, accused Decazes of being the true assassin, and M. Clauzel de Coussergues, a royalist deputy, accused him of being an "accomplice" from the tribune of the Chamber of Deputies. Decazes's last official act was to convene the Chamber of Peers as a high court of justice to hear and determine Louvel's case under article 33 of the 1814 Charter.

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Richelieu was brought back to form a ministry under the control of the ultras, who now had the liberals on the defensive. They were able to pass three laws which fortified their power in the legislature and symbolized the repressive nature of the Bourbon monarchs during the 1820s. The first of these laws was passed on 26 March 1820 and provided for the preventive detention, on order of at least three members of the council of ministers, of every individual accused of plots against the King, the security of the State, and members of the royal family. 4 2 The second, the law of 31 March 1820, suspended freedom of the press and restored consorship. 43 The third law, of 29 June 1820, changed an earlier electoral law (5 February 1817) in such a way as to decrease the representation of the bourgeoisie, who were prosperous enough to vote under the earlier law. 4 4 It established election in two steps, with two electoral colleges in which the aristocracy had a double vote. This "law of the double vote" became the rallying point for liberal opposition to the royalist government during the 1820s. These laws produced a lively reaction in liberal circles. Louis Blanc tells us, The bourgeoisie thus threatened rallied all its forces, and prepared for a rigorous defense. It published pamphlets, set all its journals groaning and growling simultaneously, procured the presentation of urgent petitions from the provinces, and declared that the charter was in danger. The public mind was universally alert; the discussion began in uproar.45 Four clerks on the board of customs founded a club, grandiloquently entitled Loge des Amis de la Vérité (Lodge of the Friends of Truth), and filled its ranks with young people from the schools of law, medicine, pharmacy, and later commerce. The first venture of this club was a public demonstration in the streets of Paris, which was rudely put down by the cavalry. Several of its members were jailed, and one was killed. Liberalism had its first martyrs, and soon liberal members of the Chamber of Deputies who were to figure prominently in the July Revolution of 1830 and Louis-Philippe's government (Lafayette, Casimer Perier, and Laffitte) were forming a committee to collect " S i r e y , L.A. (1789-1830) 1:1023, " L a w regarding individual liberty." This law, which of course was immediately branded another Law of Suspects, resembled the law of 29 October 1815 (see footnote 33) more than it did the famous Law of Suspects in that detention was limited to three months after forwarding of the investigation report to the minister of justice, provided prosecution had not been commenced earlier. It provided for its own expiration in the next session of the legislature if not renewed; thus it was clearly emergency legislation. 43 Ibid., 1:1023-1024. This law was later supplemented by an ordinance of the King, dated 1 April 1820, and by the law of 25 March 1822 (ibid., 1:1024-1025, 1073-1074). " I b i d . , 1:1027-1028. " B l a n c , History of Ten Years, p. 58.

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funds and help citizens under prosecution. 46 After an abortive military conspiracy in August 1820, many young members of the Loge des Amis de la Vérité fled, some traveling to Italy where they were initiated into the revolutionary techniques of the Carbonari. 47 In the following year the founders of the Loge reconstituted their organization as a local charbonnerie, a loosely knit secret conspiratorial organization which infiltrated the military in preparation for a revolutionary coup against the government. Although the charbonnerie were principally composed of avid young men of obscure station, the leaders tried to expand their organization by taking in prominent liberals (one of whom was certainly Lafayette, although his complicity was never proved). The liberal elders added little but caution and indecision to the organization, and later disassociated themselves from it. On 31 December 1821, and later on 19 March 1822, attempts were made to take over the military garrisons at Béfort, La Rochelle, Thouars, and Saumur. All attempts failed miserably and many of the conspirators were arrested, including a General Berton, military leader of the plot. After these events, the charbonnerie dwindled away, but not before giving France the spectacle of political martyrs bravely facing their accusers in court and calmly accepting their death sentences. The political trials of the 1820s growing out of these incidents, which were well publicized, written about, endlessly discussed, and attended by many of the men who would later introduce the liberal legislation on political criminals in the 1830s, profoundly affected the thinking of the age. 48 First, certain illusions about these political trials must be dispelled. Neither the trial of General Berton and his co-defendants nor the trial of sergeants Boires, Raoux, Goubin, Pomier, and others was the sort of kangaroo proceedings that marked the Hitler and Stalin regimes in the twentieth century, nor even the English treason trials of the late seventeenth century. They were "po" M a u r o i s , History of France, p. 378. One gets the impression that they probably financed the defense of Pierre-Jean de Béranger, a poet, who was accused in the latter part of 1821 with violations of the Press Act of 17 May 1819. It was alleged that in certain couplets of his poems he had outraged public and religious morals, insulted the King, and committed other "provocations." He was found guilty of two of four charges, was sentenced to three months in prison and payment of a fine of 500 francs, and had his writings seized and suppressed. See Procès de P.-J. de Béranger in Causes politiques, vol. 4. 47 Hobsbawm (Age of Revolution, p. 144) tells us that the Carbonari probably descended from Masonic lodges in eastern France via anti-Bonapartist French officers in Italy, took shape in southern Italy after 1806, and with other similar groups spread north and across the Mediterranean world after 1815. They are the typical insurrectionary brotherhoods of young men, full of secret oaths and passwords, grandiose but impractical schemes, and daring but futile gestures of a terrorist variety that typically mark the early phases of any revolutionary movement. Blanc (History of Ten Years, pp. 6 2 - 6 4 ) describes the extremely complex and conspiratorial nature of the charbonnier organizations in France in 1821 and 1822. 48 See Procès du Général Berton (Conspiration de Saumur) and Procès de Boires et al. (Conspiration de la Rochelle), in Causes politiques, vols. 1 and 2.

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litical," it is true, in the sense that they were primarily used by the regime to enforce its system of repression and to intimidate and implicate as many members of the liberal opposition in the legislature as possible. But one must remark on the fact that, on the whole, they were fairly conducted. The trials were prosecuted in the assize courts of the department of the Seine (ordinary criminal courts) before juries of twelve citizens. 49 The usual rules of criminal procedure were applied, and all defendants either had counsel of their choice or had counsel appointed for them. With one exception, counsel for the defense made a sincere effort to present their clients' cases in the best light possible 50 and were not restricted by the court in making their arguments to the jury. 51 The court ruled in favor of several defense motions, indicating no clear prejudgment of the case on their part. As is so often the case in political trials, however, there was really no issue as to guilt or innocence. The defendants were obviously guilty of the crimes of which they were accused;52 the defense arguments asked, in effect, for exculpation or leniency on the ground of past honorable services (in the case of General Berton) or the youth and idealism (in the case of the sergeants) of the defendants, and suggested that the defendants were the innocent scapegoats of more important men who were not brought to trial. The juries were asked to compare the nobility and idealism of these defendants with the shabby tactics and dishonorable motives of their accusers. This effect was heightened by the noble gestures of certain defendants who offered their lives as a sacrifice for the sparing of their fellows. 53 However, the law was hard, and the jurys' and judges' hearts harder. In 49 It must be conceded, however, that these juries were drawn largely from the haute bourgeoisie, and it may be assumed that they were composed of men who were favorable to the viewpoint of the regime. This was prior to the law of 2 May 1827, which provided for annual jury lists more representative of the general population and chosen by lot. 50 The exception was General Berton, who refused the assistance of counsel appointed for him by the court. As appointed counsel refused to plead his defense without his client's consent, Berton was allowed to plead for himself. 5 ' I t should be pointed out here that French procedure at this time allowed counsel considerable latitude in arguments addressed to the jury. Also, under French procedure, the defendant had the right of addressing the final remarks to the jury, unlike Anglo-American procedure, where the prosecution closes. On the other hand, in criminal cases jury verdicts by majority vote were sufficient for conviction under French law at this time. " T h e editors of Causes politiques attempt to argue in the case of Boires et al. that there was some question as to whether the charbonnerie cadres in the military were ever engaged in an attempt to overthrow the government, as opposed to merely being members of a secret organization whose avowed purpose was the overthrow of the Bourbon monarchy. But in both the Berton case and the Boires case the evidence was overwhelming that all defendants were engaged in a plot to overthrow the government through seizures of certain towns and garrisons at the time they were apprehended, even though Berton, for one, denied this. The fact that they were remote from accomplishing their objective was, of course, beside the point legally. All defendants who received the death penalty were charged with violation of article 87 of the Penal Code. 53 Both General Berton and Sergeant-Major Boires made such self-sacrificing gestures during their trials.

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Berton's case, General Berton and five others were condemned to death; five other co-defendants received five years imprisonment and fines of 2,000 francs (for nonrevelation); three others received three years imprisonment each for false arrest; and the remaining defendants got one to two years of imprisonment and smaller fines for lesser crimes. 54 In the Boires case, four conspirators (including Boires) were sentenced to death; one was acquitted; one was excused for revelation of the conspiracy; and others received sentences of five, three, and two years imprisonment for nonrevelation. In 1828 they were immortalized in the published account of their trials, a work which is said to have had a considerable effect in shaping future legislation which reduced the consequences of political offenses for idealistic young revolutionaries. 55 François Guizot—The Liberal View of Political Crime Guizot (1787-1874) was a French politician and historian of the early nineteenth century and the most eminent representative of the neoclassical, or eclectic, 56 school of criminal law and jurisprudence. As such, his thinking did not represent liberalism in its purest form, and when Guizot attained power as a minister in the government of Louis Philippe (1830-1848), it was as a leading member of the Conservative party. The two works of his that will be discussed here are Concerning Conspiracies and Political Justice, written in 1821, and Concerning the Death Penalty in Political Matters, written in 1822. 57 In Concerning Conspiracies and Political Justice Guizot discusses the numerous prosecutions for seditious conspiracy (complot) taking place in France at the time of the book's publication (1821) and in the years immediately preceding. 58 These prosecutions and the context in which they occurred have been discussed in the preceding section. 54 Berton, Caffé, Saugé, Jaglin, Fradin, and Sennéchaud, who were condemned to death—for an "afflictive and infamous" crime under the Code of 1810—also suffered the loss of all past military and other honors. Most were beheaded, although Caffé cheated the executioner by opening his veins while in prison awaiting execution. 55 The work referred to is Causes politiques. Also it should be noted that the two trials discussed here were not the only political trials which took place in the 1820s. There were numerous conspiracy trials and trials for press crimes during the regimes of both Louis XVIII and Charles X. I have selected only two of the most famous trials and adverted to two others: that of Louvel before the Chamber of Peers in 1820 and that of de Béranger, the poet, before the assize court of the Seine department in 1821. 56 "Eclectic" because the school represents the synthesis of two somewhat contradictory philosophies: the philosophy of Kant, which holds that the immorality of the act is the foundation of the right to punish, and the doctrine of Bentham that the justification of the legal sanction lies in its social utility. " A p p e a r i n g in Guizot, Mélanges politiques et historiques (Paris: M. Levy Frères, 1869), pp. 107-237, 239-429. 58 1 am translating the French word complot as "conspiracy," even though the French and English terms are not legally synonymous. At the time Guizot was writing, article 89 of the French

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Guizot argues that law cannot regulate all morality, nor can it settle all political questions. For it to attempt to do so would impose an insufferable burden on the liberty necessary for cooperative existence. In essence, he is arguing the limits of legal sanctions, and the necessity of leaving many issues of public policy for resolution by the political process. He sees the judicial function as limited to the application of the written law to the facts of the case; the rest—making laws to fit the changing needs of society and meeting society's needs, whether through laws or otherwise—he sees as a political function. How, then, do the courts get mixed up in political questions? As Guizot sees it, when the government fails in its task of governing well, it will call on other agencies (such as the courts) to perform the function of ruling for it through repressive laws. When the judiciary assumes this task, Guizot says, it engages the court in activities far beyond its competence. One then sees a stretching of the legal definitions of crime to include matters not intended by the legislator. Acts are considered according to the persons who commit them; intentions take the place of acts; presumptions supplant proofs. Courts are presented with evidence bearing on the leanings and depositions of the defendant, and his entire life, prior opinions, hopes for the future, present opinions on the conduct of the government, and such irrelevant matters become the subject of judicial scrutiny. 59 Guizot is harsh in his criticism of the political conspiracy trials of his day and of practices that were then common, such as (1) the practice of prosecutors of presenting first the general facts (faits généraux) of the conspiracy without relating them to any specific act of the defendants, and often neglecting the second necessary element of proof, namely, the particular facts (faits particuliers) bearing directly on the accused; (2) the use of agents provocateurs, police spies, and informers; (3) the use of the Public Minister (Attorney General) as a prosecutor, rather than as an impartial representative of the public interest, and his predilection for arguing to the gallery rather than to the court; (4) the attempt on the part of the government to avoid adverse publicity by excluding the press from court proceedings. Guizot argues further that the number and frequency of conspiracies attest to the bad state of society or the bad condition of government. 60 In his opinion Penal Code of 1810 stated with regard to " p l o t s , " "Il y a complot dès que la résolution d'agir est concertée et arretée entre deux conspirateurs ou un plus grand nombre, quoiqu'il n'y ait pas eu d'attentat, ' ' which means, "There is a conspiracy from the moment the resolution to act is planned and decided upon between two or more conspirators, even though there has not yet been an attempt." I have translated the last word (attentat) as " a t t e m p t , " even though it should be understood that this French word includes both ideas of attempt and the completed act. The word assault, in the vague sense which also incorporates the notion of a battery, might be a better translation. The French word for attempt in the strict sense is tentative. 59 Guizot, Mélanges, p. 124. 60 Ibid., p. 131.

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this fact does not by itself condemn the government, but does raise a presumption against it. Government is probably not meeting the needs of its citizens, and most of them become indifferent to its fate. Goverment faced with discontent is rarely ready to recognize its own faults, and so it falls back on a conspiracy theory to explain the discontent: "there must be crime, since there is danger." 6 1 One finds in this work of Guizot striking evidence of the relativistic attitude of liberalism toward the legitimacy of governments: if they perform, they are entitled to allegiance; if not, they are condemned by the very measures taken to overthrow them, whether legal or not. There seems to be very little awareness on Guizot's part of an alternative possibility: that the discontent may be that only of a small part of the society, and that the indifference of the masses to the fates of governments, whether good or bad, may be a constant. It is a possibility that returned to haunt Guizot when he formed a government during the liberal monarchy of Louis Philippe. These ideas are given fuller exposition in Guizot's major work on political crime, Concerning the Death Penalty in Political Matters. Although written for the limited purpose of persuading governments to exercise restraint in their use of the death penalty in political matters, the work is filled with arguments which place in doubt the entire effort to suppress political crime through the use of the criminal law. In making its argument, it proves too much. Perhaps for that very reason, the essay had a tremendous influence with liberal reformers during the first half of the nineteenth century. Guizot was constantly quoted by those who introduced changes in the law leading to the preferential penal treatment of political prisoners. His argument may be summarized as follows: the prevalent opinion prior to the Revolution was that government and the established order could maintain itself only by the physical destruction of its enemies. But today, he says, there is great doubt and anxiety about political executions on the part of both governments and the people. He explains this by pointing out that in the days of kings and lords, power struggles and conspiracies were confined to a few individuals within the ruling class and their retainers. By eliminating a small band of aristocratic conspirators, the ruler usually terminated the peril. Where revolts were accompanied by popular uprisings in certain districts, the forces of the King could wage wholesale depredations in those districts without the people in other districts either learning about it or caring about it, since the power struggle did not involve them. But in the present age power struggles are not conducted between powerful individuals and their families, but are carried on in 61

Ibid., p. 137.

France (1789-1830) / 81 the name of popular causes. Killing off a few revolutionary leaders would not therefore prevent new leaders from springing up to take their place. Guizot felt that attempting to stamp out a movement based on an idea by the physical elimination of some of its spokesmen was utterly inefficacious. Also, wholesale depredation of segments of the population could no longer be done with safety. Society had come together, and the fate of no man, no matter how low in station, escaped either the attention or the concern of his fellow men. The use of the death penalty, therefore, was likely to create more trouble than it prevented. Again, the argument seems to assume a fundamental opposition of interests between government and society. It seems to overlook the possibility that a government might represent the interests of a vast majority of its citizens and command their allegiance, and that the interests of the majority might be so fundamentally opposed to that of a minority in revolt as to impel it to eliminate them. Nevertheless, popular representation being as limited as it was in European governments in Guizot's time, he is probably reflecting here only the political situation as it was at the time he wrote. From the point of view of general prevention (what Guizot calls the "moral effect" of punishment) the death penalty was even less efficacious. He argues, " L a w draws more force from the conscience of men than from their fears. Reproof and shame publicly attached to certain acts operate more potently to prevent them than the fear of punishments that might follow t h e m . " 6 2 He further states that the antipathy excited by crime does not increase as the punishment prescribed for it increases, and that through the use of oversevere penalties law can defeat its own purposes by increasing sympathy for the wrongdoer when it means to inspire hatred for him. He asks why the death penalty applied to common crimes such as murder, armed robbery, and arson does not arouse sympathy but only redoubles the aversion which these crimes inspire. His answer is, first, that it is certain in these cases that the incriminating act has actually taken place, and, second, that people are in accord as to the immorality of the act. In political crime, however, both of these elements are lacking or uncertain. Concerning the immorality of political crime, Guizot expresses the strong relativism that pervaded thinking about political crime throughout the century in this famous and oftquoted passage: . . . The immorality of political crimes is neither as clear nor as immutable as that of private crimes; it is ceaselessly disguised or obscured by the vicissitudes of human affairs; it varies according to the times, the events, the laws, and the merits of the government; it staggers each instant under the blows of the force which aspires to shape it 62

I b i d . , p. 285 (author's translation).

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according to its caprices and needs. One could hardly find, in the realm of politics, any innocent or meritorious act which has not received in some corner of the world or at s o m e time a legal incrimination. 6 3

Guizot later states that moral criminality, social peril, and the efficacy of punishment are the three conditions which must be met for every act which criminal justice condemns and in the punishments it inflicts. In the case of political crime, moral criminality and the efficacy of the punishment (the death penalty) are both in doubt, so that " a justice which gives death by reason of the social peril, when the moral criminality is weak or doubtful, carries injustice within i t . " 6 4 What then should the State do? Actually, all Guizot is recommending is that governments use restraint in the use of the death penalty; he is not advocating its total abolition in these cases, for there are some political crimes which are just as immoral and vicious as any conventional crime. Moreover, he believed that reforms solicited by considerations of morality ought to pass into the conduct of government and the practice of its affairs before being introduced by legislation. But he has some additional advice for governments: That which man would be in his relations with Providence if moral principle failed him, men inclined to political crimes are, almost, in their relations with government. They d o not believe what it believes, do not want what it wants, contest, e v e n , the legitimacy of its existence. H o w is government to deal with them? It has the good sense to understand that force does not suffice, that it will never have enough of it to exterminate or imprison a portion of the society it governs. It is necessary for it to change its disposition, for it to reestablish between them and it that c o m m u n i t y — i f not of intentions—at least of beliefs, which procures for the law its true empire, which gives it the ability of preventing a hundred crimes in punishing only o n e , and which raises the ministers of their action to the rank of teachers of the people, whereas otherwise they would be trying in vain to remain their jailors. 6 5

Here Guizot's rhetoric obscures his meaning at a very difficult point. Since he argues that political criminals do not regard their acts as wrong, since punishment only further separates them from the regime and causes them to view the law as possessing no moral force, but as only an instrument of political warfare, it is difficult to see how a government, which already lacks legitimacy in the eyes of its adversaries, can gain any stature in their estimation by the just, impartial, and lenient administration of its laws. No matter how hard a government may try to be just, neither its courts nor its laws will ever be viewed as 63

Ibid., p. 288 (author's translation). Quoted in Papadatos, Délit politique, p. 45, and in Albéric Rolin, "Les Infractions politiques," Revue de droit internationale et de legislation compare, 15 (1883): 417-436, at p. 428; 16 (1884):147-166, 254-282. 84 Guizot, Mélanges, p. 354 (author's translation). 65 Ibid., pp. 296-297 (author's translation).

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anything but oppressive, since they are engaged in delaying, obstructing, and even punishing acts which are both moral and necessary in the eyes of the offender. If government derives any benefits from the course of action recommended by Guizot, these benefits must involve considerations which have little or nothing to do with the prevention of political crime. Finally, in chapters 8, 9, and 10 Guizot makes some practical suggestions for dealing with political crime without using the death penalty. Some of these were later adopted during the July Monarchy of Louis Philippe. They are (1) the lessening of prosecutions for conspiracy and the greater use of police surveillance and newspaper publicity to frustrate the plans of conspirators; (2) giving the Public Minister discretion to reduce the charge to one involving a lesser penalty (on the theory that judges and juries would more readily convict where the death penalty was not involved); (3) providing for lesser penalties than death or banishment for most political crimes; (4) extending the use of royal pardons in the case of political crimes.

Summary Liberalism influenced the legal measures which French governments adopted with respect to political crime from the first years of the French Revolution until the concluding years of the 1820s. These were stormy and turbulent years which witnessed intense political intrigue and correspondingly intense political repression, which saw the defeat of governments, the execution or banishment of their leaders, and their replacement by leaders and governments of fundamentally different political character, and always bitter political opposition waged to a considerable degree in the public press. The struggle was now an ideological, a popular one—a struggle for men's minds—and the typical political criminal was no longer a discontented aristocrat planning a palace revolution behind the scenes with others of his class, but instead the bourgeois radical, fomenting opposition in the press and trying to ignite the spark that drives the masses into the streets to take arms against the government. Although from Napoleon onward most French governments employed the usual tools of preventive repression against threats to their power, still one can see in the very measures they took a recognition of the restraints which liberalism imposed. Censorship of the press and preventive detention were temporarily imposed only during "emergency" periods; moreoever, they were hedged about by limitations to prevent arbitrariness and abuse. Political trials were conducted, but the attempt was made not to depart too far from the procedures followed in nonpolitical cases. Most importantly, a new view of the political criminal was taking shape: the view of a man not deprived of honor by his acts but acting

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with the highest motives, albeit misguided in his particular objectives. With this change of view, one can see in the writings of the drafters of the 1810 Penal Code and of the historian-politician Guizot a growing pragmatism and leniency with respect to measures to be taken to control political crime. This sentiment will increase as the nineteenth century progresses and will receive its first legal expression during the liberal and radical republican regimes which follow the final overthrow of the Bourbon monarchy in 1830.

CHAPTER

Germany

(1789-1830)

Counterrevolutionary Laws of the 1790s The first effect of the French Revolution on the German states was a counterresponse, in the form of an invasion by Austro-Prussian forces of France in the summer of 1792 in an effort to restore the French monarch to his throne. When this failed, some of the German princes attempted to prevent the spread of revolutionary doctrines and activities in their dominions through repressive laws. Illustrative of such laws are the Ordinance of 14 February 1795 of the Landgrave of Hesse, William IX, for the punishment of high treason and other crimes against the State and the Edict of 20 October 1798 promulgated by Frederick William III of Prussia. The first of these laws declared as traitors persons who violated the personal security of the ruler, who disturbed the peace and security of the country through ill will, who attempted to destroy its traditional institutions and constitution, and who attempted to expand or cause danger from the outside, regardless of the manner in which it was done. Attempted treason was punished with the death penalty and nonrevelation of treason by life imprisonment in irons. Lengthy prison sentences also were provided for both men and women for disrespectful criticism of the ruling powers made in writings, by speeches, or on placards. As for Edict of 20 October 1798, it prohibited all societies and associations whose primary or secondary activities consisted in deliberating about changes in the State or measures to be taken to obtain them. Also prohibited were associations in which oaths of allegiance were taken to unknown authorities or in which unconditional oaths were taken to known authorities and all secret societies or societies which used secret methods and procedures. Every act violating these prohibitions, includ-

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ing the crime of not reporting violations to the authorities, was penalized with severe prison sentences. It is not clear whether these laws were either necessary or effective, for the states that enacted them did not fall under the power of France by reason of internal subversion or the disloyalty of their subjects, but as the result of military defeat, the final collapse coming with the defeat of Prussia at Jena and Auerstadt in 1806. In defeat there was a kind of victory for Germany, a new beginning. Not only did Napoleon change the map of Germany by eliminating and consolidating many of the smaller territorial entities, both secular and ecclesiastical, but in so doing he broke down many of the parochialisms which up to that time had divided the German people. Moreover, he unleashed a passion for social and political change and for national liberation and unification in the hearts of young Germans—particularly those from the middle classes attending the universities. 1 German liberalism was also a product of this era, although in the hearts of the student revolutionaries it was always second to an overriding revolutionary demand for unification. Finally, from this point on German law was profoundly affected by French law, since many states had taken over the Code pénal as part of their domestic penal law and many based their penal code revisions in the early nineteenth century on the French penal laws.

Revolutionary Activity and Measures Adopted to Maintain the Status Quo Once the Napoleonic wars came to an end and the French had been expelled from Germany, the movement toward nationalism and liberalism lost much of its impetus. Unification was not in the interest of the princes of either Austria or Prussia, who included within their domains many non-Germanic peoples; and liberalism and representative government were repugnant to most classes outside the universities and the literary salons. 2 At the Vienna Congress the reactionary Austrian diplomat Metternich won out over the more liberal Prussian Foreign Minister Hardenberg. As a result, the German states were again constituted in a loose confederation under the presidency of Austria, cooperating on matters of general concern at the Federal Diet located at Frankfurtam-Main. Moreover, Frederick-William III of Prussia reneged on his promise, made during the Wars of Liberation, to inaugurate a system of representative government soon after the termination of hostilities. The Federal Act of 1815 ' T h e history and character of the revolutionary German student movement between 1815 and 1848 is captured very well in Lewis Feuer's The Conflict of Generations (New York: Basic Books, 1969), chap. 2, pp. 5 4 - 7 5 . 2 E . J. Passant, A Short History of Germany, 1815-1945 (Cambridge: At the University Press, 1959), pp. 10-15.

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did pledge the German rulers to grant their subjects constitutions, but no date was set for doing so. The Federal Act thus gave the German people what Gôrres, a leading liberal editor of the time, rightly described as no more than " a n unlimited right of expectation." 3 The Student

Burschenschaft

German youth associated in secret clubs and fraternities during the years of French occupation and worked for the liberation of Germany. They were fanatical devotees of the cause of national unification and of the principles of liberal government. Therefore, the outcome of the Congress of Vienna was a bitter pill for them to swallow. In 1815 some students at the University of Jena founded an association called the Burschenschaft, which soon spread to fourteen other universities. This movement steadily grew and was augmented by the gymnastic societies (Turnverein) which added a fanatical, pro-German, and antiliberal element to the movement that did not stop short of open opposition to the governments of the separate states. In October 1817 over 500 students from eleven German universities gathered at the Wartburg Festival, ostensibly convened to celebrate the third centenary of the Reformation and the victory over Napoleon at Leipzig in 1813. Speakers at this festival vehemently criticized the form of the German federation, and books unpopular in the students' eyes were burned. A year later an even broader association of university students was formed, called the Allgemeine Deutsche Burschenschaft (General German Students' Association). These student activities did not fail to come to the attention of the authorities, particularly Metternich, who was the bête noir of the student movement. At the Congress of Aachen held in 1818, Metternich proposed measures that had been developed in Russia by Duke Sturdza for clamping down on the academic freedom enjoyed by the universities. These measures further exacerbated the students' already taut emotions, and the students turned to political assassination and violence. On 23 March 1819, a Burschenschaft member and theology student, Karl Ludwig Sand, murdered the reactionary publisher and dramatist August von Kotzebue, who had supported the measures that were to be taken to restrict the universities. This murder was followed in the summer of that year by the assassination attempt of a young pharmacist, Lôning, on President Ibell of Wiesbaden. Sand was typical in many ways of the Romantic heromartyr of his day, quite similar to the Frenchman Louvel, who was to murder the Duke of Berry a year later—filled with most noble intentions, almost as indifferent to the object of his crime as to his own fate, and perfectly assured of the Tightness of his act on the basis of his own version of morality. 3

Ibid., p. 16.

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Decrees

These grotesque and irresponsible acts put a complete chill on the expression of liberal demands for change, and made the path easy for those who wished to ensure the status quo through a policy of total repression. In July 1819 Metternich persuaded Frederick-William III of Prussia to convene a conference of ten German states at Karlsbad to deal with "movement of the demagogues." This conference was held the following month under Metternich's leadership. It produced a University Law, a Press Law, an Investigation Law, and an Execution Ordinance, which were presented to the Federal Diet in September and after only four days of discussion enacted into law. E. J. Passant comments on the Karlsbad decrees, [They] sealed the ascendancy of Austria and reaction in Germany for the next thirty years. Not until the "year of Revolution" (1848) was the influence of either seriously shaken, and, even though Metternich fell in 1848, a further period of reaction (1850-8) under Austrian leadership was to follow. During those thirty years the states of Germany all became, if they had not been so before, police states. The press and education were rigidly controlled. Professors, however patriotic, who dared to demand national unity were ejected from their chairs. The Burschenschafi ceased to have serious political importance and soon became little more than a replica of the drinking and duelling clubs (Korps) which superseded the older Landmannschaften during the early nineteenth century. The hopes of national unity and popular representation in the national assembly lingered on in a few thoughtful minds and revived again after 1840. But the very ease with which the Carlsbad decrees were accepted and enforced, even in the "liberal" states of south Germany, shows how weak was the desire to liberty in German breasts, how strong the principles of monarchial authority.4

As to decrees themselves, the Press Law provided for prior censorship; the University Law provided for the appointment of a government representative in all German universities whose duty it was to supervise the teachers, the content of their lectures, and, in addition, their private activities. Teachers could be fired administratively without a hearing and were to be dismissed whenever they propogated "doctrines hostile to the public order and subversive of existing governmental institutions." States pledged not to offer appointments to professors dismissed from the universities in other states or admit to their universities students expelled from another university. The Allgemeine Deutsche Burschenschaft was banned, and there was a crackdown on other student associations as well. An extraordinary investigating commission (die CentralUntersuchungs-Commission, C-U-C) was set up by the Investigation Law in order to inquire into "the origin and manifold ramifications of the revolutionary plots and demagogical associations directed against the existing constitutions" 4

Ibid., pp. 2 0 - 2 1 . To the same effect, see Feuer, Conflict of Generations,

pp. 6 4 - 6 5 .

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of the several states. This law, however, provided no federal penalties for the acts it was charged to investigate, nor did it provide a central federal court in which offenses it discovered could be tried. Therefore, the C-U-C could only investigate, and proceedings based on these investigations could be initiated only in the local courts of the separate states, which applied the law of the local jurisdiction to acts which may have taken place anywhere within the confederation. This led to an extreme diversity of judgments and penalties applied to acts which were essentially identical; the outcome depended on the fortuitous circumstance of where the offenders happened to be tried. This situation led to a general opinion that these political offenders were handled unfairly and unjustly. Besides acting as a kind of traveling grand jury, the C-U-C took on the character of a Royal Commission, in that it undertook to explore the conditions in Germany which had given rise to the revolutionary student activities so that appropriate preventive measures might be taken. Its first extensive report (containing thirty-two sections), issued in May 1822, was not well received. This report revealed a willingness to go far beyond the criminal activities of the student associations and proved an embarrassment to many persons in high places. It was therefore rejected. The Bundestag

Investigative

Committee

The C-U-C continued its labors (redirected to areas more specific to its commission) until 1827 and issued eighty reports. The final results of its investigations were summarized in a report dated 14 December 1827, which it sent to the Bundestag (Federal Diet). Metternich expressed doubts that its proceedings would lead to concrete results, since it was certain that no treasonous undertakings could be established from the report, and therefore few judicial proceedings resulted from it. As a result the Bundestag itself set up an investigative committee which was to concern itself with the laws and the convictions under them. The report of this committee declared that the laws concerning treason were highly defective since in most German states no new laws on this subject had been enacted since the Constitutio Criminalis Carolina (1532), a fact (as explained by the report) due to the loyalty of the German people to their rulers. But the student activities, it was held, necessitated new laws in which attacks on the "constitutions" of the States would be equated with high treason against the State. The committee report also found, in a review of the court proceedings which had transpired as the result of the Karlsbad Decrees, that different courts had applied different penalties for the same crime, thus leading to an undesirable confusion as to the propriety of engaging in intrigues against the government.

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At the end of the Bundestag committee report there appears a survey of sentences rendered against individuals who had been investigated for their activities in secret societies. This survey discloses sixteen proceedings brought in fourteen different States and includes an abstract of the decisional grounds for the judgments rendered. This survey is extremely interesting because it reveals some of the problems the courts were encountering in handling what was essentially a different form of political crime than was customary under the ancient codes and activities which were viewed in a somewhat different light than the political crimes of the eighteenth and prior centuries. The legal problem was as follows: under the existing law of most German States at this time mere membership in an illegal society was high treason when the avowed goal of the society was national unification, since such an objective entailed the loss of sovereignty of the individual States. Common law in many States treated all aspects of high treason with the same severity (usually the death penalty in an aggravated form): attempts were treated the same as completed crimes, and conspiracies (membership in an illegal society was membership in a conspiracy) were treated as attempts. Therefore, technically, mere membership in an outlawed student association could be counted as high treason and punished with capital punishment. Yet it was generally felt, even by the sterner courts, that the death penalty was an unduly severe punishment to mete out to patriotic, albeit misguided, academicians and students (who formed the major part of the defendants). The way the courts usually avoided the strict application of the law was to hold that, notwithstanding the ancient law, attempted treason should not be treated the same as a completed act of treason, at least where the acts of the defendants did not go beyond merely joining illegal organizations, organizing them, or soliciting members. Therefore, the courts handed out imprisonment sentences, in some cases severe and in other cases of short duration. Of 117 defendants tried in the various proceedings, 66 were convicted; of these 66, 59 received Festungsstrafe (fortress punishment), 4 received Zuchthaus (penitentiary confinement for felons, usually with forced labor), 1 got Gefängnis (imprisonment for lesser offenders), and 1 got Arrest (simple detention, usually for a short duration). In order to understand the significance of the large number of Festungsstrafe punishments, I will digress here for a moment to explain the history of this form of punishment in the German penal system. Fortress

Punishments

(Festungsstrafen)

Germany, being a status-oriented society, retained for at least fifty years beyond the French Revolution special lenient forms of punishment for high-

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status offenders that were common in Europe before the nineteenth century. 5 This practice of special treatment for high-status offenders was based on Roman law, which provided two alternative penalties: one for honestiores (high-status persons) and one for humiliores (low-status persons). Prior to the Enlightenment this practice was justified on the principle of equality. After all, punishment falls harder on a person of the upper classes than it does on a commoner, who is more used to life's hard knocks. Therefore, it was felt necessary to equalize the punishment's impact on the two classes by softening it in the case of the high-status offender. 6 From the seventeenth century in Germany imprisonment became increasingly employed as a form of punishment, and in the eighteenth it replaced mutilation and banishment. 7 Although the picture varies considerably from principality to principality, there were in the eighteenth century three common forms of imprisonment used: first, there was the city or town jail where lesser offenders could be confined for up to two or three years (Gefängnis)-, next, there was the workhouse or correction house, which was usually segregated according to the sexes, in which vagrants, prostitutes, and poor unemployed persons were kept, clothed, fed, "improved," and employed in some useful work (Arbeitshaus or Zuchthaus); and, finally, there was confinement in a fortress, which could be especially severe confinement in irons, with arduous work and poor food in the case of common criminals (in Prussia, this was called Festungsarbeit), or simple detention in a fortress (called Festungsarrest) without any hard labor attached to it, which was the punishment traditionally reserved for high-status offenders. 8 In the nineteenth century, fortress imprisonment with hard labor tends to drop out as the most severe form of imprisonment and is replaced with Zuchthaus, which now becomes penitentiary confinement for serious offenders, usually with forced labor, and is considered a dishonorable form of imprisonment for "infamous" crimes. Gefängnis (or imprisonment of shorter duration 5 It will be remembered from the previous chapter that France abolished special punishments according to the rank of the offender in the early days of the Revolution. See decree of 21 January 1790. See also William M. Bowsky, " T h e Medieval Commune and Internal Violence," American Historical Review 1 - 1 7 (October 1967), p. 3. 6 This rationale may conceal the real reason for the rule. If one wishes to preserve the separation of the classes and the exaltedness of rank, one does not mix the nobility even in their moment of disgrace with the common people in jails and prisons. 'Karl L. von Bar, A History of Continental Criminal Law, trans. Thomas S. Bell et al. (Boston: Little, Brown, 1916), pp. 2 3 7 - 2 3 9 , 250, 327-328. 8 As to the three types of penal establishments from the viewpoint of an eighteenth-century English penal reformer, see John Howard, The State of Prisons in England and Wales with Preliminary Observations and an Account of Some Foreign Prisons and Hospitals, 3rd ed. (Warrington: William Eyres, 1784), pp. 9 8 - 1 0 5 .

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and without forced labor) remained the punishment for less serious crimes, but its dungeonlike atmosphere and degrading features were largely eliminated. Persons of honor and high status, however, continued to be sentenced to Festungsarrest, so that confinement in a fortress developed into a kind of special punishment of honestiores. But here one finds the practice of German states diverging in the early nineteenth century. In some states Festgungsstrafe drops out altogether as a form of imprisonment (Brunswick [1840], Hanover [1840], 9 Saxony [1838] 10 ); in others it is retained, but only as a special form of punishment for high-status offenders, regardless of the dishonorable nature of the crime committed (Bavaria [1813], Prussia [prior to 1851]); in still others it developed from a punishment for high-status offenders to one reserved for persons who had committed nondishonorable crimes out of honorable motives (Württemberg [1839], Baden [1845], Anhalt [1850]). A significant feature of Festungsstrafen in the nineteenth century—one wherein they differed from other types of imprisonment—was that often they did not entail loss of civil rights, status, honor, the right to hold office, wear state decorations, and serve in the military. The importance of these rights to middle- and upper-class Germans in the society of their day cannot be overemphasized. There is an old German saying, "Ehrlos, Wehrlos" ("honorless, defenseless"), which freely translated means that a man without honor, without status, in the eyes of his countrymen is defenseless—he is almost a noncitizen; he can be stepped on with impunity. It must be understood, therefore, that the special punishment of Festungsstrafe involved an advantage which all highstatus offenders, and political criminals who desired to retain their standing and social position in the community, would strenuously seek to obtain for themselves if they ran afoul of the law. The significance, then, of the fact that the courts, in dealing with academic political offenders during the 1820s, handed down so many Festungsstrafe punishments is either that they viewed the university students and professors as high-status offenders, or they viewed them as honorable criminals and their crimes as not being dishonorable. There was no provision in any of the laws extending a custodia honesta for political criminals, as such. 1 1 In view of the 9 In the Penal Code of Hanover of 8 August 1840, Festungsstrafe is eliminated, but is replaced with Staatsgefängnis, which could be granted when, according to the personality and way of life of the criminal and the nature of the crime, the usually prescribed prison sentence would be abnormally harsh. The dates enclosed in brackets refer to the enactment dates of penal codes in the states mentioned. '"Festungsarrest was, however, retained in Saxony's military code. 11 The phrase custodia honesta is the term usually reserved in the Continental literature for the special prison treatment reserved for political criminals. Festungsstrafe at this time was not a custodia honesta because there was no statutory provision specifically providing that political criminals were entitled to this form of imprisonment. If political criminals did receive this kind of sentence, it was either because they were from the upper classes or because their crime was not regarded as dishonorable.

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fact that none of the defendants was a member of the nobility and, further, that some of the defendants who received Festungsstrafe were not academicians, the latter of the two explanations may be the more probable one. In any event, the unusual leniency of the punishments imposed in the light of the provisions of the law applying to the crime charged already marks the development of a changed attitude toward political crimes in Germany which parallels the similar development that was taking place contemporaneously in France.

Treatment of Political Crime in the Bavarian Penal Code of 16 May 1813 We have already observed that in many German states and principalities between 1810 and 1830 the authorities were operating under penal laws which were centuries old. The exceptions were Prussia, Austria, and several German states which had modernized their penal laws or adopted their own version of the French Code of 1810. This situation would change after 1830, as more and more states brought their penal laws up-to-date. One of the states which thoroughly rewrote its penal code before 1830 was Bavaria, and its treatment of political crime deserves special mention here because of the influence it had on those later penal code versions. The Bavarian Penal Code of 1813 was strongly influenced by the legal philosophy of Feuerbach and by the French Penal Code of 1810. It followed the French code, for instance, in dividing crimes into three categories: Verbrechen ("felonies," corresponding to the French crimes), Vergehen ("misdemeanors," corresponding to the French délits), and Übertretungen ("petty misdemeanors," corresponding to the French contraventions). It followed the French also in giving the judge the right of fixing the punishment within a certain maximum and minimum, yet followed the liberal doctrine of limiting the judge's discretion of expanding on the statutory definition of crime by use of the doctrine of analogy and limited his previously unlimited discretion in sentencing. It differed from the French code, however, in its emphasis on general prevention through intellectual, moral, and psychological constraints, that is, in punishing as especially wrongful those acts which were already felt to be wrongful rather than those acts which the state deemed harmful and wished to deter by intimidation. The fact that this code deals with crimes against the State with special severity indicates that in the minds of the drafters political crime was still felt to be an ignoble and immoral crime. The Bavarian Code continues the tripartite division of political crimes that one finds in earlier penal codes, such as the Prussian Landrecht of 1794, into offenses of high treason (Hochverrat), treason against the country (Landesverrat), and insult to the sovereign (Majestätsbeleidigung). High treason (art. 300) includes every grave attack against the life or safety of the monarch or indepen-

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dence of the State, and every attack against its constitution, the power of the sovereign, and the succession to the throne. Article 301 prescribes as punishment death by decapitation, with such aggravating features as public exposure of the condemned person one-half hour before execution wearing a sign inscribed "Guilty of High Treason." Further aggravating consequences were that the traitor's family was compelled to change its name, and a column of infamy was erected on the site of the offender's grave. Treason against the country (art. 302) includes the acts of fomenting rebellion or conspiring to detach a part of its territory from the State, and, in time of war, delivering to the enemy cities, fortresses, and other defense posts, taking up arms against one's own country or allied nations, aiding and abetting the enemy, and espionage. For these crimes simple death by decapitation without aggravation was provided (art. 303). For lesser offenses of treason less serious penalties were provided (arts. 305, 306). Insult to the sovereign (art. 309) is defined as intentionally showing disrespect for the Head of State through words or deeds. 1 2 Insults of the first degree (art. 310) were punished with death; for insults of the second degree (art. 311) the offender was required to make public apologies before the image of the sovereign and serve from one to four years in a workhouse. The Bavarian Penal Code, although maintaining in general the severity of treatment of previous codes toward political offenders, did introduce one innovation which worked to their advantage. Article 307 provided that in the case of Hochverrat and Landesverrat, an attempt was to be judged according to the usual rules applying to common crimes—that is, it was to be distinguished from the completed crime and mitigated penalities were provided for it. The Bavarian Code was also one of the first to recognize various degrees of Festungsstrafe, providing in the case of less serious offenses that it should not entail the loss of nobility, honors, and state positions. 13 It also recognized Festungsarrest as a special place of confinement, reserved not to a class of offenses but to a special class of offenders (persons of high status). 14 Thus, it was possible for political offenders to be sentenced to Festungsarrest in a local jail or fortification, provided that they came from the upper class. The Bavarian Code was one of the influential penal codes of the continent of Europe during the nineteenth century, although nowhere as influential as the French Penal Code. The Oldenburg Criminal Code of 10 September 1814 imitated it almost provision by provision. 15 Also, the penal code revisions later enacted by the states of Brtmswick (10 July 1840) and Hanover (8 August 12 Extended by articles 3 1 1 - 3 1 4 and 316 to the heir presumptive and members of the royal family, including the Queen. 13 See article 23. 14 See article 27. 15 Von Bar, Continental Criminal Law, p. 344.

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1840) show its influence. Although of a much later date, these codes still reveal a severe attitude toward political crimes, manifested in the harshness of the punishments provided for crimes within the three categories just mentioned. However, there is discernible a mitigation of penalties with respect to these crimes (for example, the fewer applications of the death penalty) and a tendency to drop special forms of punishment for high-status offenders.

Legal and Philosophical Views Concerning Political Crime Although the German scholars to be discussed here expressed their philosophical and legal views concerning political crime and criminals in writings after 1830, they were expressing opinions which had been current in Germany for at least ten years prior to the dates when these works appeared. Therefore I consider it appropriate to mention them now rather than later. Christian Baltzer traces at least four main positions with regard to the proper handling of political crimes by the State: the conservative, radical, and liberal doctrines and the very influential position of Karl Joseph Mittermaier. 16 The conservative doctrine—which is perhaps best represented in the writings of J. Fr. H. Abegg 1 7 —saw the essence of political crime in the act of the offender opposing his private, subjective will to the general, objective will of the State, which of course was entitled to the higher priority. In this view the difference between common crime and political crime was that the common offender violated legal provisions without denying their validity, whereas the political offender denied the validity of the State, its laws, and everything else, feeling himself to be above the laws and justified in his criminal acts by a higher ethic. Objectively viewed, therefore, the political criminal was more "guilty" than the common criminal. 18 Conservatives, like Abegg, thought that the error of political criminals was in viewing the State and its laws not as something essential, but as something arbitrary which might be opposed with something equally arbitrary. They felt that it was wrong to regard political crimes as not being crimes, and though they conceded that political criminals 16 Christian Baltzer, Die geschictlichen Grundlagen der privilegierten Behandlung politischer Straftater im Reichsstrafgesetzbuch von 1871 (Bonn: Róhrscheid Verlag, 1966), pp. 7 8 - 1 2 1 . " J . F. H. Abegg, Lehrbuch der Strafrechts-Wissenschaft (Neustadt a.d. Orla, 1836). See also the works of Jarcke, G. J. F. Meister, Bauer, Marezoll, Zirkler, and von Kamptz. " G e r m a n jurisprudence has from the beginning of the nineteenth century to this day been influenced heavily by Kantian philosophy, which sees the purpose of punishment to be the criminal's expiation of the wrong done. Implicit in most German penal codes is the notion that punishment requires the offender's " g u i l t , " which does not necessarily mean moral blameworthiness, but rather that the actor had capacity, acted with a certain frame of mind with regard to the act committed, and without justification or excuse. What Abegg probably means, therefore, is that the political criminal has more " g u i l t " because he acts more consciously and willfully in derogation of the law than does the common criminal.

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might be moved to commit their acts for noble objectives and from moral compulsion, yet they did not recognize this fact as grounds for exculpation or mitigation. They felt that the increasing number of political crimes could be countered effectively only with increasingly severe penalties. The radicals, represented by Ludwig Frey and Julius Frobel, 19 tended to view political crime as a sympton of the defective condition of the State and society. To combat it, one should first reform the State. Frey considered banishment a sufficient sanction to protect the State from the political criminal. Frobel, on the other hand, was in favor of eliminating political crime as a criminal offense. He felt that if a person did attack the State with violence, he should not be considered a criminal but an " e n e m y " of the State who, when apprehended, should be treated as a prisoner of war under international law. Political prisoners could not be judged by the same norms they attacked; they could only be banished, if they did not leave the State voluntarily. Frobel did not believe that the minority had a right to oppose the will of the majority, except through speech and writings. Therefore, he recognized the right of the majority, as represented by the State, to take preventive measures against minority dissidents; he was opposed, nevertheless, to the treatment of those preventive measures as penalties. The liberals saw that conditions brought about in Europe since the Enlightenment required a new view toward political crime. 2 0 Enlightenment jurisprudence, they felt, had freed itself from the view that crime was sinful violation of the divine order and had substituted for the divine order a "natural" order. One now based criminal law on a violation of the natural order and moral wrong. Like Frey and Frobel they did not view political crime as a violation of the moral order, but did regard it as a violation of the natural order of things that there must be states and government, which justified the repression of political crime through criminal laws. Therefore, the liberals did not deny that political crime was criminal, but they thought that political criminals should not be considered in the same light as common criminals and that they should receive privileged treatment because of the "special nature" of their crimes. Taking a somewhat middle-of-the-road position was the influential legal scholar Karl Joseph Mittermaier, who wrote extensively on the subject of political crime. 2 1 His position most closely approximates that of the liberals. He thought that the criminal law should not try to avenge divine wrath or moral '"See Ludwig Frey, Entwurf zu einem republikanischen Strafgesetzbuch (Bonn, 1835); Julius Frobel, System der socialen Politik, 2 vols. (Mannheim, 1847). 20 Represented by Heinrich Marquardsen, Heinrich von Feder, and Carl von Schirach. 21 See, for instance, K. J. Mittermaier, Die Strafgesetzbuch in ihrer Fortbildung, 2 vols., I (Heidelberg, 1841), II (Heidelberg, 1843).

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insult, but that it ought only to effect deterrence, prevention, and reformation. He also thought, however, that there was too much emphasis on deterrence in the penal codes of his day, and that governments should exercise restraint in the use of penalties against political crimes. Harsh sentences could too easily be criticized for partiality, especially in the realm of political crime. Like Guizot, he thought the government frustrated its own objectives in too severely punishing political crime. Mittermaier attacked the republican position of Frey and Frobel on the ground that their one-sided evaluation of political crime would allow any citizen to attempt the overthrow of the State with virtual impunity. On the other hand, he believed that attacks on the State, once frustrated, lacked sufficient objective harm or damage to make appropriate the use of discretion in sentencing with regard to political offenders. Mittermaier felt that the court should look in each instance to the motive of the criminal as well as the nature of his crime and take the state of public moral opinion into consideration in adjudging the proper sentence. He was far from believing that political criminals fell neatly into the category of moral offenders, since he recognized that some were merely chauvinists concealing beneath their noble self-justifications a highly inflated personal ambition. Nevertheless, he criticized the severe penalties handed out to sincere political offenders whose acts had really not brought harm or misery to their fellow men, and he especially criticized the practice of automatically attaching loss of honor and civil rights to long-term punishments, while not doing so in the case of short-term punishments. He felt, therefore, that there should be two forms of punishment: one for criminals who had lost their honor and another for criminals who had not. At the same time he advocated the elimination of all special forms of imprisonment based on status. Mittermaier's recommendation here was later to become the basis for the distinction made between Zuchthaus and Festungshaft.

Summary The German federation of states went through the same phase of conservative reaction as France did in the fifteen years following the defeat of Napoleon. In Germany's case, however, this conservative reaction against the forces of nationalism, republicanism, and liberalism was to continue until 1848, when the tight control of the aristocracy was temporarily broken. In Germany the repression of political dissent (mostly on the part of a small group of intellectuals and students, it should be pointed out, quite unlike the situation in France) was almost complete. Nevertheless, the position of the authorities with respect to the political radicals, originally quite stern, can be seen as softening toward the later stages of the period. The severe penalties authorized for such

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political crimes as inflammatory writings, insults to the monarchs and lords, membership in proscribed organizations—all acts of treason under the laws of the time—are not applied, but milder forms of punishment are substituted. Moreover, there is a tendency, almost imperceptible at first, to accord to the revolutionaries the special status and punishments reserved for high-status offenders and persons of honor. This new view of the political offender is not yet reflected in the penal codes, but can be detected in the administration of the laws and in the writings of legal philosophers and professors of criminal law.

CHAPTER

Great Britain

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(1789-1830)

Measures Taken to Immunize England from the Effects of the French Revolution, 1790-1800 The initial reaction of the English to the French Revolution was almost universally favorable. The liberal Whigs were ecstatic, feeling that France finally had made the transition from a decadent and corrupt absolute monarchy to a constitutional monarchy established along English lines. 1 Even the conservative Tories were not unhappy about the event at first, since they foresaw the possibility of easier trade relations with the new government in France and probably enjoyed the discomfiture of those who in the preceding decades had caused England so much trouble in the revolution of the American colonies. The exception to this general reaction of approval was Edmund Burke who, in his Reflections on the Revolution in France published in 1790, condemned the Revolution as "the most astonishing that has hitherto happened in the world . . . [a] strange chaos of levity and ferocity, and of all sorts of crimes jumbled together with all sorts of follies." 2 In this opinion Burke was only a few years ahead of his time. The attitude of the English ruling classes underwent a sharp reversal in 1792 after the King of France was executed and France began circulating revolutionary propaganda and waging war on her European neighbors. The attitude became one of implacable hatred of everything the 'Charles James Fox, the leading Whig liberal in Parliament, spoke of the fall of the Bastille as " t h e greatest event that has happened in this history of the world and how much the b e s t . " See David H. Willson, A History of England (New York: Holt, Rinehait and Winston, 1967), p. 604; Frederick C. Dietz, A Political and Social History of England (New York: Macmillan, 1932), pp. 467-468. 2 Edmund Burke, Reflections on the Revolution in France, Everyman ed. (London: J. M. Dent, 1967), p. 8.

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French Revolution stood for, including the democratic doctrines which recently had become popular in political societies formed in England before and after the Revolution to agitate for democratic reforms. 3 The result was a period of reaction and repression so complete and thorough in driving democratic ideas from the soil of England that proposals for democratic reform of English institutions did not receive a fair hearing for more than thirty years thereafter. 4 In February 1793 war broke out between France and England. Immediately a panic seized the Government that there was a vast conspiracy afoot, engineered from France and abetted by local dissidents, to foment revolution in England and topple the Government. A royal proclamation issued in 1793 against seditious writings warned of the existence of a conspiracy against the State. 5 In 1793 a kind of aliens registration act was passed requiring immigrating aliens (there was a great influx of them from France at this time) to register with port authorities and customs officials and placing them under surveillance. 6 Next, an emergency law was passed making it high treason to sell, supply, or deliver to the French Convention or armies in their employ during the war any arms, ammunition, naval or military stores, bank-notes or bullion, or any provisions without a license from the Privy Council, and further making it treason to buy a contract to buy any land, tenement, or other real property in France or within its dominions, or to lend or advance any money or bills thereon. Persons causing or procuring such loans or aiding or assisting in any of the offenses specified in the Act were also deemed to be guilty of high treason. 7 A year later (1794), a supplementary Act was passed making it treason to pay any money, note, or obligation to any person exercising the powers of government in France or to anyone residing within the dominions of France after 1 January 1794. 8 3 Political societies such as the Society of the Friends of the People, the Society for Constitutional Information, the Revolution Society (formed prior to the French Revolution to commemorate the English Revolution of 1688), and the London Corresponding Society (founded in 1792 by Thomas Hardy, a shoemaker, to agitate for universal manhood suffrage, annual Parliaments, less expensive government, and a reformed and simplified legal system). See Willson, History of England, p. 605; Dietz, Political and Social History, pp. 4 9 7 - 4 9 9 . But counterrevolutionary societies, such as the Society for the Protection of Liberty against Republicans and Levellers, also were formed to combat the activities of republican societies, and these were instrumental in instigating many of the prosecutions against persons who were later tried for treason and sedition. See Dietz, Political and Social History, p. 500. It would appear that a great deal of private "vigilante" repression of political activity took place during those years. 4 This period is denominated by Dicey as the period of " o l d Toryism." See A. V. Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (London: Macmillan, 1914), pp. 6 2 - 6 3 . 5 Willson, History of England, p. 606. Pitt, the Prime Minister, was afflicted with visions of "thousands of bandits" sacking and burning the city of London. J. R. Green, A Short History of the English People, 4 vols. (New York: Harper and Bros., 1895), IV: 1764. 6 3 3 Geo. Ill, c. 4. 7 33 Geo. Ill, c. 27. "34 Geo. Ill, c. 9.

Great Britain (1789-1830) / 101 In 1794 the panic continued without abatement. On 23 May 1794 an Act suspending habeas corpus and authorizing the detention without trial of persons suspected of conspiring against the King and the Government was passed. 9 This Act recited in its preamble, "Whereas a traitorous and detestable conspiracy has been formed for subverting the existing laws and constitution and for introducing the system of anarchy and confusion which has so fatally prevailed in France: therefore . . . . " It authorized the continued detention, without bail or mainprize, of all persons in Great Britain detained by royal warrant signed by six Privy Councillors or by any of the King's Secretaries of State, until 1 February 1795 on charges of having committed high treason, suspicion of high treason, or "treasonable practices." It was careful, however, to exempt members of Parliament from its provisions. In 1795, the treason trials against leaders of the radical societies (particularly the London Corresponding Society) not having resulted in the convictions the Government hoped for and having, moreover, thrown into doubt the whole doctrine of constructive treasons, the Government secured the passage of two items of legislation which attempted to extend the law of treason and sedition by statute and to suppress political meetings. The first of these laws was the Treasonable and Seditious Practices Act of 1795. 10 This law made it treason to " c o m p a s s " the death, bodily injury, imprisonment, or restraint of the King, to depose him either in his realm or in his dominions, to "levy war" (that is, riot) against him, his heirs, or successors in order to compel him or them to change their measures or their counsels, or to bring pressure to bear on either House of Parliament, or to induce any foreigner to invade Great Britain or its dominions with force of arms. In other words, the statute made statutory treasons many acts which formerly had been only constructive treasons. The Act further provided that an intention of doing any of foregoing things might be evidenced by any published or printed writing or by any other overt act or deed testified to by two lawful and credible witnesses. 11 The Act also prescribed the punishment to be inflicted in the case of high misdemeanors on persons who "maliciously and advisedly, by writing, printing, preaching, or other speaking . . . excite or stir up the people to hatred or contempt of His Majesty, his heirs, or successors, or the government or constitution of this realm as by law established. . . . ' " 2 9 3 4 Geo. Ill, c. 54. This Act continued in force until 1 July 1795, when it expired. Similar legislation was enacted in 1798 to last until 1 February 1799. See 38 Geo. Ill, c. 36. 10 36 Geo. Ill, c. 7. " I n 1800 an act was passed (Treason Act, 1800; 39 & 40 Geo. Ill, c. 93) which eliminated even the two-witness requirement when an actual assassination attempt was made on the King's life. 12 The punishment for high misdemeanors was usually penal servitude for life, but this Act also prescribed banishment and transportation to an overseas penal colony for seven years on conviction for a second offense.

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The second law, the Seditious Meetings Act, 1795, prohibited gatherings of more than fifty people held to consider or address a petition to the King, or to either House of Parliament, for the alteration of any matter established in Church or State or for deliberating on any grievance against them, without prior notice of the gathering being given to a local magistrate, who was empowered to stop the meeting at any time. 1 3 Meetings held without notice were deemed to be unlawful assemblies, and the provisions of the Riot Act were made to apply to such meetings. Also, meetings for which notice had been given but in which suggestions of revolutionary action were made or proposals tending to incite the people to hatred and contempt of the King or Government were similarly treated. Persons interfering with the magistrates in carrying out this law were subject to the death penalty; owners of land and buildings where such meetings were conducted were liable to penalties for operating a disorderly house or place and could be fined up to £10 for each offense. In 1797 political agitation had subsided in Britain or gone underground, but the war with France still was going badly. The First Coalition of European states against France had broken up, and many of them had made a separate peace with France. England was therefore isolated and came to depend heavily on her navy for her defense. It was a very inopportune time for a mutiny to break out, but mutinies did occur among the crews of her ships at Portsmouth and the Nore in 1797. The mutiny at Portsmouth seemed to be mainly a dispute over wages and shipboard conditions, and when most of their grievances were met the mutineers cheerfully resumed obedience. The mutiny at the Nore, however, was a different matter. There the mutiny was whipped up by outside agitators into a revolt against the existing form of government, or at least against the form of government which prevailed aboard an English ship. 14 In response to these mutinies three Acts were passed as temporary emergency measures, although two of them (the first and the third) later became permanent additions to the law. The first was the Incitement to Mutiny Act, 1797. 15 This law prescribed the death penalty for persons "endeavoring" 1 6 to seduce any person in the land or naval forces from his duty and allegiance to the King, for inciting any such person to mutiny, for making or endeavoring to make any mutinous assembly, or for committing any traitorous or mutinous practice. A second Act, passed the same day, made it a capital felony to hold any intercourse or communication with ships in mutiny or with persons aboard 13

36 Geo. Ill, c. 8. See the account of the mutinies in Luke O. Pike, A History of Crime in England, 2 vols. (London: Smith, Elder, 1876), 11:387-389. " 3 7 Geo. Ill, c. 70. 16 The word endeavor here may be more preparatory in its meaning than the concept of "attempt." See King v. Fuller, [1797] 2 Leach's Reports 790, p. 796. 14

Great Britain (1789-1830) / 103 them, after a certain proclamation had been issued and read in the dockyard. 1 7 The harshness of these laws is shown by the fact that mere verbal solicitations ("malicious and advised speaking") are punished with the death penalty, as are mere acts of communication after the reading of the proclamation between mutineers and outsiders, whether they be aiders, abettors, instigators, or merely concerned friends and relatives. 18 The third Act was directed against the practice of swearing mutineers and others seditiously inclined to unlawful oaths. 1 9 It therefore made it a felony punishable with transportation for up to seven years, to administer, cause to be administered, aid in the administering, or even to be present at and consent to the administering of any oath purporting to bind the person taking it to engage in any mutinous or seditious purpose, to disturb the peace, or to be the member of any association formed for such purpose, or to obey the orders of any committee or body of men not lawfully constituted, or of any person not authorized by law, except under compulsion. The Act also punished in the same way the failure of those with knowledge of persons or associations administering unlawful oaths not to inform the authorities and give evidence against them. 2 0 In 1798 a law was passed making it a capital felony voluntarily to go to France or to any country allied with France or occupied by her armies and to remain there, and also make it a capital offense to correspond with anyone who had done so. 2 1 In 1799 an Unlawful Societies Act was enacted. 22 This legislation outlawed as an unlawful combination and confederacy the following political societies, which were declared to be engaged in traitorous conspiracies: the Societies of United Englishmen, United Scotsmen, United Britons, United Irishmen, and the London Corresponding Society. It also provided that members of an "unlawful society," and all other persons who in any way aided or abetted such a society, were to be deemed guilty of an unlawful combination and confederacy and were to be liable on summary conviction to three months' imprisonment or fine of £20. 2 3 If, however, the accused were indicted and tried " 3 7 Geo. Ill, c. 71. " T h e s e points were raised against the bills in Parliament during the debate over their passage, but in the excitement of the times they did not prevail. See Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750, 3 vols. (New York: Macmillan, 1948), 1:487-490. " U n l a w f u l Oaths Act, 1797; 37 Geo. Ill, c. 123. 20 A later law enacted in 1812 increased the penalty to transportation for life when the oath purported to bind the person taking it to commit treason, murder, or any felony punishable by law with death. Unlawful Oaths Act, 1812; 52 Geo. Ill, c. 104. 21 3 8 Geo. Ill, c. 79; see ss. 1, 4. 22 3 9 Geo. HI, c. 79. 23 A n "unlawful society" is defined as one which requires it members to take an unlawful . oath, or as one which keeps details of its organization or membership secret from the general body of its members.

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according to the usual procedure, conviction could bring up to seven years' transportation. A person who knowingly permitted a meeting of an unlawful society on his premises was liable to a fine of £5, and for a subsequent offense to the same punishment received for unlawful combination or confederacy. Judges were permitted to mitigate the penalties prescribed by the Act down to one-third of the maximum. Certain societies, such as Freemasons, Quakers, and religious and charitable groups, were exempted. In addition, places where meetings were held or books or newspapers read were subject to being closed down as "disorderly houses," and provisions were made for licensing and regulating the radical press. In reviewing the legislation just covered, one can note all the tell-tale signs of emergency legislation designed to combat political crime: penalties of excessive severity; acts remote from and preparatory to the offense punishable in the same way as the completed crime; summary procedures for stopping proscribed political activities and for detaining political criminals; the jury avoided wherever possible; the press regulated or suppressed; meetings or gatherings of people for political discussion or agitation regulated or suppressed; the dissemination of doctrines hostile to existing institutions treated the same as incitement to rebellion or crime. In fact, the laws of England enacted during this period are virtually indistinguishable from laws passed in France and Germany to accomplish the same objective—the protection of the existing regime against revolutionary or counterrevolutionary enemies. At the same time one should be cognizant of some signs of the influence of the doctrines of liberalism even in this repressive legislation. First, most of the acts punishable under the special legislation probably could have been treated as treason or sedition under the broad judicial constructions that had been formulated. The very detail and particularity of the special legislation that tended to narrow its scope to those acts particularly described seems to indicate an adherence to liberal principles of criminal legislation which require that crimes be described with definiteness and particularity by laws in existence prior to their commission. Second, several of the statutes explicitly state that the statute is supplementary to the treason law so that prosecution may be had under either the statute or the treason law. 2 4 Thus, where the statute provides for a lesser penalty than treason—even when the penalty is as severe as simple death without perpetual forfeiture of property—the statute is, in effect, providing a lesser alternative penalty for treason and mitigating the severity of treason law. Of course, there were also disadvantages to defendants charged under these special statutes: requirements of proof were easier, and there were fewer procedural protections 24 See, for instance, the Incitement to Mutiny Act, 1797, 37 Geo. i n , c. 70, s. 3; 37 Geo. Ill, c. 71, s. 8; the Unlawful Oaths Acts, 1797, 37 Geo. Ill, c. 123, s. 7, and 38 Geo. Ill, c. 79, s. 7.

Great Britain (1789-1830) / 105 afforded the defendant in the case of these statutory felonies than in the case of high treason. These features recurred in the second wave of repression that took place during the troublesome years following the end of the wars with France in 1814.

Postwar Repression of Early Labor Riots and Rebellions, 1816-1820 The end of the war with France brought hard times to England. English goods languished due to a drop in foreign markets, improvements in manufacturing led to the laying-off of workers, the return of 200,000 soldiers and sailors swelled the labor market, and wages fell, leading to a general economic depression. The economic situation was worsened by the passage of the Corn Law in 1815, which prohibited the importation of cheap foreign wheat into England until the price in England of locally produced wheat had risen above a certain level. In the conditions of widespread hunger that prevailed this law infuriated the poor and the working classes and was not popular with the manufacturers, who favored cheap food as a basis for lowering wages. Moreover, there was a new outburst of political activity demanding reform, which could no longer be forestalled by appeals to patriotism in extraordinary wartime conditions. 25 Particularly strident were demands for parliamentary reform. Parliament was still the exclusive club of wealthy landowning aristocrats, "elected" from boroughs whose boundaries had not changed since the seventeenth century. Lord Russell, one of the leaders of the Whig party in Parliament, introduced a bill for parliamentary reform in 1819, but it was turned down by the Tories, who were still unalterably opposed to reform. It seemed to some as if the country were on the brink of social and political revolution. 26 The possibility of revolution seemed confirmed by the events following the end of the war. In 1816, in the wake of a crop failure, there was agitation causing disorders. Workers in the northern districts roamed the countryside, destroying machinery they felt was taking bread out of their mouths. A great mob, meeting at Spa Fields in London with the idea of sending a petition to the Regent, got out of hand and the incident ended in riot, bloodshed, and property destruction. In 1817 a band of weavers in Manchester, out of work or on starvation wages, decided on a march to London; their march was dispersed by troops. The Prince Regent himself was later attacked in his carriage as he was returning from the opening of Parliament. 27 Fiery orators, such as Cobbett and "orator" Hunt, traveled up and down the countryside making passionate 2S See Dietz, Political and Social History, pp. 500-501; Willson, History of England, pp. 621-625. 26 See Dietz, Political and Social History, p. 502. " T h e Prince Regent, later George IV (1820-1830), was generally disliked because of his dissolute ways.

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speeches and stirring up discontent. 28 At one large meeting held at St. Peter's field in Manchester in 1819, a disorder was created and mounted troops attacked the assemblage, with the resulting deaths of eleven persons and the wounding of over four hundred. Finally, in 1820, a conspiracy to murder the entire Cabinet was uncovered, and five of the conspirators were later executed for treason. 29 The Government's answer to these disturbances was repression. Another Act, similar to the one passed in 1795, authorizing detention without habeas corpus, bail, or other judicial recourse of persons suspected of treason or "treasonable practices" was rushed through Parliament in March 1817; it was later extended until March 1818. 30 The Treasonable and Seditious Practices Act, 1795, and Incitement to Mutiny Act, 1797, were revived and made perpetual. 31 A new Seditious Meetings Act was enacted in March 1817. 32 This Act combined provisions found in the Seditious Meetings Act, 1795, and the Unlawful Societies Act, 1799, increasing the amount of the fines provided by those laws, adding a provision for a protected curtilage of one mile around the Houses of Parliament and Westminster Hall (where the law courts sat) to be free from meetings and demonstrations, and adding to the list of proscribed societies the Spencian Societies, which proposed confiscation, nationalization, and redistribution of lands. In enforcing these laws, the Government used spies and agents provocateurs to obtain evidence of treason and sedition and urged magistrates to apprehend persons guilty of publishing blasphemous and seditious writings and pamphlets. 3 3 Prosecutions were numerous, and there were a few acquittals by sympathetic juries. A slight improvement in the economic situation in 1818 quieted agitation in that year, but in the following year business fell off again and there was increased social unrest culminating in the Peterloo Massacre already mentioned. The result was the passage toward the end of the year of the Six Acts, or as they were better known at the time, the " G a g Acts." These six statutes consisted of a law to prevent the training of persons in the use of arms and military exercises (the Unlawful Drilling Act, 1819), 34 a law authorizing justices of the 28

Both Hunt and Cobbett were later tried for crimes growing out of these activities. This conspiracy came to be known as the Cato Street Conspiracy. Eleven members of the conspiracy were tried for treason and convicted. The five conspirators who suffered the penalties of treason, with all but hanging and decapitation remitted, were Thistlewood, Ings, Brunt, Davidson, and Tidd. The six others, whose involvement in the plot was less direct, received clemency from the King and had their sentences reduced to transportation for life. See C. G. L. DuCann, English Treason Trials (New York: Walker, 1964), pp. 2 0 7 - 2 2 1 , at p. 220. 30 5 7 Geo. Ill, c. 3 and c. 55. 31 5 7 Geo. Ill, c. 6 and c. 7. 32 57 Geo. Ill, c. 19. 33 Dietz, Political and Social History, p. 502. The Government freely admitted and defended its use of agents provocateurs and spies in Parliament. " 6 0 Geo. Ill and I Geo. IV, c. 1 (11 Dec. 1819). 29

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peace to search for and seize certain unauthorized weapons, 3 5 a law to prevent delay in the administration of justice in the case of misdemeanors, 36 a law to more effectively prevent seditious meetings and assemblages, 37 a law to more effectively prevent and punish blasphemous and seditious libels (Criminal Libel Act, 1819), 38 and an act imposing stamp duties on newspapers and restraining abuses arising from the publication of blasphemous and seditious libels. 39 These laws reveal the same features already noted in the emergency legislation passed in the years 1792-1800: an extension of existing law to increase its preventive effect and a mitigation of punishment in the case of the new offenses created. Only one of these Acts deserves discussion here because of its longevity and the frequency of its use: the Criminal Libel Act of 1819. This Act is interesting because it contains the first statutory definition of criminal or seditious libel. Since that definition corresponds almost exactly to the first part of the definition of "seditious intention" later given by Sir James Fitzjames Stephen in his Digest of Criminal Law,401 will not repeat it here except to remark on an interesting fact: the definition now seems to include only the acts of inciting hatred, contempt, or disaffection against the Sovereign, the Government, and the constitution or of inciting persons to change lawfully established institutions by violent rather than by lawful means; it no longer seems to incorporate the mere propagation of inimical doctrines which may be viewed as erroneous and ill-guided, but which are neither inflammatory nor provocative. 41 The Criminal Libel Act was enacted mainly to permit search for, and seizure and confiscation of, all writings containing seditious matter after conviction of an offense under the Act or on default of the defendant to appear and answer the charge. The Act contains an interesting provision which provides an increased penalty for second or subsequent offenses: the second offender may receive the punishment normally prescribed for high misdemeanants or may be banished from the realm and the King's dominions. The offender is given forty days to depart voluntarily, after which, if still found within the realm, he is subject to transportation for a term not exceeding fourteen years. One sees here, and in other laws of the time, the increasing disposition to use banishment or 35

60 Geo. Ill and 1 Geo. IV, c. 2 (11 Dec. 1819). 60 Geo. Ill and 1 Geo. IV, c. 4 (23 Dec. 1819). 60 Geo. Ill and 1 Geo. IV, c. 6 (24 Dec. 1819). 38 60 Geo. Ill and 1 Geo. IV, c. 8 (30 Dec. 1819). 39 60 Geo. Ill and I Geo. IV, c. 9 (30 Dec. 1819). 10 See Chapter 3, this volume, p. 53, fn. 48. 1 ' This interpretation seems to be justified by one of the first sedition cases to arise under the new Act, King v. Burden, [1820] 1 State Trials (N.S.) 1-170, in which Judge Best instructed the jury to consider whether the paper composed by Burdett contained a "sober address to the reason of mankind in which case it was no libel . . . or whether it was an appeal to passions, calculated to incite them to acts of violence and outrage [in which case it was]" (p. 119). 36

37

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transportation as a penalty to be applied to political crimes, as the death penalty drops out of use. 4 2 Prosecutions under these and other laws were begun in 1819 and continued into the 1820s. The repression of agitation for reform and insurrection was as intense in England as that which was contemporaneously taking place in both France and Germany under similar laws. Generally, this repression and slowly improving economic conditions must be credited with bringing the disturbances to an end. England was to remain quiet until the early 1830s, when political agitation and labor disturbances resumed. The 1820s witnessed a growing liberalization of the regime and awareness that repression could not stop certain changes which had to be made if constitutional monarchy was to survive.

The Growth of Liberalism in the Decade Preceding the Passage of the Reform Bill of 1832 After the suicide of the ultraconservative Castlereagh in 1822, the Tory Prime Minister, Liverpool, reconstructed his Cabinet to bring in some liberal Tories. One of the new members was Sir Robert Peel, who became Home Secretary. Peel was imbued with the ideas of earlier law reformers, such as Romilly and Mackintosh, and his approach to law enforcement, which stressed prevention over punishment, owed much to the writings of Jeremy Bentham. Peel was well aware of the unnecessary severity of English criminal law which punished over two hundred crimes with death, and during his administration he succeeded in repealing the death penalty for over half of them. At the same time he recognized the danger to the regime of its policy of full-scale repression at a time when the threat of revolution had largely subsided. Therefore, he stopped prosecutions of the press and political agitators and ended the system of maintaining government spies and agents provocateurs among the working "Transportation to overseas penal colonies had existed in England since the sixteenth century (1597). It was originally intended for criminals who were considered dangerous and unreformable. Later it came to be used as an alternative to capital punishment, extended by an act of royal clemency to felons whose crimes did not warrant the full severity of the law, and it was employed on a wide scale to furnish overseas colonies with a cheap form of convict labor. Transportation was carried out on a contract basis with private companies, and offenders returning before the expiration of their terms were subject to the death penalty. Transportées were first sent to the American colonies, but after the American Revolution they were sent to Australia. There their life was extremely hard, and many died on the voyage to the penal colony or soon after arriving. Only the toughest, rudest sort of criminal could withstand the kind of back-breaking labor and mistreatment to which transportées were subjected. Probably for this reason, political criminals, who were often gentlemen or professionals, were not at first exposed to this form of penalty. When in the nineteenth century more of them began to receive sentences of transportation, the punishment fell much harder on them than on the ordinary criminal, and perhaps some of the agitation which begins at this time for the elimination of transportation as a mode of punishment derived from the complaints of such criminals. Transportation was virtually abandoned in England by 1857. See Harry E. Barnes, The Story of Punishment (Boston: Stratford, 1930), pp. 6 8 - 8 8 .

Great Britain (1789-1830) / 109 classes. 43 Tories like Peel were not yet full-blooded liberals. They resisted efforts to reform the parliamentary system to admit a broader base of representation. They felt that limited reform and good government would obviate the need for more radical changes in the system of government. Laws passed during the period 1822-1830 relating to political offenses are few in number. Most of the changes made in the laws were in the direction of mitigating the penalties that applied to such crimes. The penalties applying to treason already had been mitigated somewhat by two bills passed in 1814. The first of these had limited the legal effect of attainder ("corruption of the blood") to the attainted person himself, the traitor, during his lifetime in cases of high treason, petit treason, and murder. 44 The second eliminated disemboweling the traitor while still alive as an aspect of the punishment and provided that the King might alter the sentence as to drawing the offender to the place of execution on a hurdle, might direct hanging instead of beheading, and might direct how the body, head, and quarters should be disposed. 45 These changes seem to have been motivated by humanitarian considerations rather than by any thoughts as to the status or morality of the offender. In 1823 a statute was enacted which permitted the court to abstain from pronouncing the death sentence on persons convicted of any capital felony except murder. 4 6 Treason, which was not considered a " f e l o n y " under English law, also was excepted by implication, but the law did apply to several other statutes prescribing the death penalty for political crimes. 4 7 In 1825 an Act was passed which provided that punishment for leasing-making, blasphemy, and sedition in Scotland should be the same as provided in England for seditious offenses under the Criminal Libel Act of 1819 (that is, fine and imprisonment for the first offense, and banishment or transportation for second and subsequent offenses). 4 8 The law in England and Scotland in this respect was further mitigated by a statute passed in 1830 which abolished the provisions of the Criminal Libel Act insofar as they provided for banishment or transportation for second offenses, thus leaving fine and imprisonment as the only penalties for seditious crimes. 49 This process of mitigating the penalties provided by law for political and other crimes was to continue throughout the remainder of the nineteenth century. " D i e t z , Political and Social History, pp. 506-507; Willson, History of England, pp. 6 2 8 629. Arthur Aspinall in Politics and the Press, 1780-1850 (London: Home and Van Thai, 1949), p. 384, stated, " F r o m 1822 to 1829, there were hardly any prosecutions for libel, not because no libels were published, but because it was thought the wiser policy to let them alone." " T h e Attainder of Treason and Felony Bill, 1814; 54 Geo. Ill, c. 145. 45 The Treason Act, 1814; 54 Geo. Ill, c. 146. 46 4 Geo. IV, c. 48. " S u c h as the Dockyards Protection Act, 1772, and the Incitement to Mutiny Act, 1797. 4S 6 Geo. IV, c. 47. 49 11 Geo. IV and 1 William IV, c. 73.

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Repression was not totally absent from the legislation enacted during the decade under discussion, but was mainly confined to Ireland, where an independence movement was stirring. In 1823 an Act similar to the Unlawful Societies Act of 1799 was enacted for special application to Ireland, 50 and in 1829 another law was passed suppressing the Catholic Association and other "dangerous associations and assemblies." 5 1

Trials for Treason, Sedition, and Other Political Crimes, 1792-1831 An examination of the reported cases of treason, sedition, and other political offenses between 1792 and 1831 does not reveal any clear patterns. 5 2 1 have compiled three tables (see Appendix B) that attempt to present a statistical picture of the number of prosecutions, convictions, acquittals, and types of sentences handed down by courts in England, Scotland, and Ireland during the period 1792 to 1831. I have also broken down the data into four separate time periods (1792-1800, 1801-1815, 1816-1821, 1822-1831), at least as to treason and sedition trials, in order to discern any trends which might exist. Remembering that these statistics are based on reported cases and thus are incomplete (especially, in the case of sedition and other political offenses lesser than treason), one can still see at a glance that the two most turbulent periods were 1792-1800 and 1816-1821. Except for two treason trials in 1803, there are no treason trials at all reported during the periods 1801-1815 and 18221831. For the other two periods there were 42 persons and 72 persons, respectively, prosecuted for treason whose cases were reported. What is surprising is the large number of acquittals that were obtained from juries in treason trials during these difficult times. This may be attributed perhaps to the unpopularity of the regime with the kinds of people who generally sat on jury panels, but a large part of the credit must undoubtedly go to the ability and courage of attorneys for the defense. Their extraordinary skill as advocates shines through the pages of the reports. Another thing that is noticeable in the statistics dealing with treason trials is the sharp increase in the number of remissions of the death penalty and reduction of sentences to transportation or imprisonment after 1816. In fact, after the execution of Andrew Hardie, John Baird, and James Wilson at Stirling prison on 20 September 1820, there was not another execution for treason in England until Sir Roger Casement was hanged for treason in 1916. The relaxation of punishments with regard to political crimes may also be observed in the field of sedition and other political crimes. During the first 50

4 Geo. IV, c. 87. 10 Geo. IV, c. 1. 52 The reported cases are found in Howell's State Trials, vols. 2 2 - 3 3 (1783-1820), and in Macdonell's State Trials (New Series), vols. 1 - 2 (1820-1831). S1

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period (1792-1800) the courts are particularly hard on seditious offenses. In England the average sentence of imprisonment was a little under two years and in Ireland it was two years. Scotland was harshest when it came to sedition. Its courts, acting under dubious authority, meted out numerous sentences of transportation, usually for a term of fourteen years! One may note a diminishment of the severity of penalties in the few reported cases from the succeeding fifteen years (see Table 2, 1800-1815). By 1816-1821 the average length of imprisonment for seditious offenses in England is down to 14 months. In Scotland a reduction in sentences may be observed both in the case of imprisonment and sentences to transportation. In the succeeding period (1822-1831) in England—there is no information concerning Ireland and Scotland—the average term of imprisonment declined even further to 9.3 months. The same pattern may be noted in Table 3 as to other political crimes. In England the average length of imprisonment during the period 1792-1800 was 32 months; during the period 1817-1830 it was declined to 19.6 months. This decline becomes more significant when one realizes that many of the acts now being prosecuted under special statutes formerly would have been treated as treasons. There is little in the reports of the cases themselves to suggest the currency of the notion that political criminals, acting from conscience and with the highest moral intentions, were to be accorded special favored treatment or separated from the common list of ordinary criminals. On the few occasions when the argument seems to have been made in a plea for mitigation of the sentence, it was rejected. 53 Almost all of the defendants in the political cases between 1792 and 1831 were from the middle classes (most coming from the professions); a few were from the lower classes; very few were aristocrats. It is difficult to determine, therefore, whether any sort of consideration in penal treatment was extended by prison authorities to political offenders from the upper ranks of society on the basis of their status, as was common in Germany. A few cases indicate, however, that this might have happened. 54 " S e e King v. Gerrald, [1794] 23 State Trials 803, pp. 1007-1012; King v. Muir, [1794] 23 State Trials 117, p. 234; King v. Burden, [1830] 1 State Trials (N.S.) 1, p. 169. 54 See King v. Sackville et al., [1799] 27 State Trials 821-986; as to sentence, see p. 958. (Sackville, the Lord, was confined to the Tower of London for one year; Fergusson, an attorney but a commoner, was confined for a similar term in the King's Bench Gaol.) See also another case mentioned by Henry Cockbum in his work on sedition trials which occurred in Scotland during this period [Examination of Trials for Sedition in Scotland, 2 vols. (Edinburgh; David Douglas, 1888)], 11:132. In this case Lord Ellenborough sentenced the son of a peer (Lord Cochrane) to the pillory, which was a very degrading form of punishment. Cockburn then remarks, " B u t this so shocked the feelings of the people, who, of all people on earth, are the fondest of fair equality of punishment, that not only was the prisoner saved, but the punishment was abolished." We may wonder who it was who was shocked. The same Lord Ellenborough sentenced Daniel Isaac Eaton, a commoner but a very old man at the time, to the pillory in 1812 for blasphemous libel, and there was no public outcry. The pillory, by the way, was abolished for all cases but perjury in 1816 (56 Geo. Ill, c. 138), and for all crimes without exception in 1837 (7 William IV and 1 Victoria, c. 23).

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It would appear, therefore, that if any special treatment was accorded to political criminals during the period of Toryism and reaction (and there is very little evidence of favors being extended), such treatment probably was accorded on the basis of the offender's rank in society and not according to the purity of his motives. The Liberalism of Jeremy Bentham Jeremy Bentham was a moral and legal philosopher whose life spanned the eighteenth and early nineteenth centuries. He had an enormous influence on English legal and political thought during the nineteenth century, and his philosophy still exerts a strong influence today. 55 He was born in 1748 and died in 1832, the same year the Reform Bill was passed. Many persons have called him a child of the eighteenth century, and the rationality and optimism of his philosophy supports this view. He was deeply affected by the writings of Cesare Beccaria, and most of his work in the realm of legal reform bears the stamp of that great Italian liberal. Bentham's guiding principle in legislation was the idea that all laws should promote the greatest happiness for the greatest number. Criminal laws, he felt, should be based on the sole objective of preventing crime in a manner consistent with that principle: the good that is expected to accrue as the result of a criminal law and its sanction always should be weighed in the balance against the harm that flows from its enforcement. Employing that test in his Treatise on Legislation, he advised against the legal repression of political crimes, feeling that punishment in political cases was both "superfluous" and "expensive." As to "superfluous" punishments, he wrote, Punishment would be superfluous in cases where the same end might be attained by milder means: for example, by such expedients as instruction, example, exhortation, delay, rewards. A man, w e will suppose, has been spreading abroad pernicious opinions; need the magistrate forthwith seize a sword and punish him? No; if, from s o m e motive or other, this one man is minded to spread mischievous doctrines, it will be to the interest of a thousand others rather to refute his theories, and so, it may well be to establish the truth more firmly than e v e r . 5 6

The reason the legal repression of political crime is too "expensive" is given by Bentham in the following passage: It is from this source that w e draw the chief reason for proclamations of a general pardon [that is, amnesties] in the case of persons engaged in the complex o f f e n s e s that are "Concerning Bentham's great influence on English thought in the nineteenth century and the English Reform Movement, see Dicey, Lectures, pp. 126-127. 56 J. Bentham, Traités de législation civile et pénale, trans, from French by Charles M. Atkinson, 2 vols. (London: Oxford University Press, 1914), 11:123-124.

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engendered by the party spirit. It may happen that the law i n v o l v e s within its m e s h e s a host of such p e r s o n s — s o m e t i m e s half the aggregate number of citizens, or e v e n more. If you determine to punish the w h o l e o f the culprits, or only a tenth part o f them, the evil o f the penalty w o u l d be greater than the e v i l o f the o f f e n s e . W e may add that, if a particular culprit were greatly b e l o v e d by the p e o p l e , s o that his punishment w o u l d create apprehension of natural discontent; if he were protected by s o m e foreign p o w e r w h o s e g o o d w i l l it w a s desirable to conciliate; if he were in a position to d o his country s o m e distinguished s e r v i c e — i n these special c a s e s the grant o f a pardon would be justifiable on considerations o f prudence.

It is not unreasonable to fear

that the punishment of his crime w o u l d cost society too m u c h . 5 7 In o t h e r w o r d s , t h e S t a t e s h o u l d a b s t a i n f r o m a t t e m p t i n g t o r e p r e s s p o l i t i c a l c r i m e t h r o u g h l e g a l m e a s u r e s b e c a u s e in m o s t c a s e s it is i n e x p e d i e n t .

This

is about as d e e p as B e n t h a m ' s liberalism g o e s in this area. T h e r e is hardly a s u g g e s t i o n i n B e n t h a m that t h e S t a t e s h o u l d r e f r a i n f r o m r e p r e s s i n g

political

c r i m e n o t d i r e c t l y o r i m m e d i a t e l y t h r e a t e n i n g its e x i s t e n c e b e c a u s e t h e i n d i v i d u a l h a s a natural right t o f r e e d o m o f t h o u g h t , e x p r e s s i o n , a n d h a r m l e s s , t h o u g h d i s s i d e n t , a c t i o n i n a c c o r d w i t h h i s b e l i e f s . N o r d o w e f i n d in B e n t h a m t h e i d e a that i n t h e p o l i t i c a l a r e n a t h e S t a t e a n d t h e r e v o l u t i o n a r y a r e o n t h e s a m e m o r a l f o o t i n g s o that t h e S t a t e , a l t h o u g h p o s s e s s i n g t h e right o f s e l f - d e f e n s e ,

lacks

a n y s u p e r i o r m o r a l g r o u n d s f o r t h e m e a s u r e s it t a k e s a g a i n s t h i m . T h e s e i d e a s c u r r e n t i n E u r o p e a n l i b e r a l i s m are n o t t o b e f o u n d in B e n t h a m o r i n E n g l i s h l i b e r a l i s m . 5 8 T h e c l o s e s t a n y E n g l i s h liberal p h i l o s o p h e r e v e r c a m e to e x p r e s s i n g a n y o f t h e s e s e n t i m e n t s w a s J o h n Stuart M i l l i n h i s e s s a y On Liberty, w a s not p u b l i s h e d until

which

1859.59

It h a s b e e n s a i d w i t h c o n s i d e r a b l e truth that E n g l i s h l i b e r a l i s m w a s p r i m a r ily e c o n o m i c , 57

w h e r e a s French liberalism w a s primarily political.60

Bentham

Ibid., 11:124-125. B y "English liberalism" I am referring to the "classical" or " b o u r g e o i s " liberalism of Bentham, James Mill, J. S. Mill, and others, which had its greatest influence in England between 1830 and 1867. I am not referring to the later "welfare liberalism," "positive liberalism," or what Dicey called "collectivism," which succeeded it and which is thought to be liberalism today. For these distinctions, see Thomas P. Neill, The Rise and Decline of Liberalism (Milwaukee: Bruce Publishing, 1953); Harold J. Laski, The Decline of Liberalism (London: Oxford University Press, 1940). 59 J. S. Mill, On Liberty, Gateway ed. (Chicago: Henry Regnery, 1955), p. 22. Mill found it difficult even to countenance government suppression of public expression of the "immoral doctrine of the lawfulness of Tyrannicide" (that is, political assassination of heads of state alleged to be " t y r a n t s " ) , at least where advocacy did not lead immediately to an overt attempt. 6 °See Neill, Rise and Decline of Liberalism, p. I l l : "Because French Liberalism had originally developed in a conspiracy against the Old Regime of the eighteenth century and because it had no roots in practice or tradition, it based its claims on abstract reasoning rather than historic precedent. In contrast to English thought, it was therefore doctrinaire, uncompromising, almost mathematical in its logic, revolutionary in its conclusions. In contrast to English thought, moreover, French Liberalism was primarily political instead of economic. French Liberals were concerned with control of the government above all else, for they feared the petit bourgeoisie and the masses below them. . . . And they feared the king and his émigré friends." 58

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laid great stress on noninterference by the State in the economic affairs of its citizens (the doctrine of laissez-faire), but as for the general need for government and law he took a very conservative view. He and his disciples were contemptuous of the vague generalities of European liberalism, which spoke in terms of the Social Contract, of Natural Rights, of the Rights of Man, and of Liberty, Equality, and Fraternity. 61 Bentham argued instead that rights proceed from laws and laws from government; men living without government live without rights. To obtain rights, governments are formed by individuals who have been emancipated, or have emancipated themselves from governments already formed. When rights and powers are created, obligations and duties are likewise created. 62 Concerning the French Declaration of the Rights of Man and the Citizen, he wrote, The things that people stand most in need of being reminded of are, one would think, their duties; for their rights, whatever they may be, they are apt enough to attend to themselves. . . . The great enemies of public peace are the selfish and dissocial passions. . . . What has been the object, the perpetual and palpable object, of this declaration of pretended rights? To add as much force as possible to those passions, already but too strong, to burst the cords that hold them in; to say to the selfish passions—There everywhere is your prey! to the angry passions, There everywhere is your enemy! 63

Bentham is also more pragmatic than European liberals. He is much less concerned with the theoretical implications of his proposals for legislative reform than he is with their practical results. He never questions government's " r i g h t " to enact legislation curbing political crime; his only concern is with the efficacy of laws attempting to do this. 64 His very emphasis on reform rather than revolution presumes the existence of a strong government enjoying the support of its citizens. This pragmatism and support of existing legal institutions likewise characterize the thinking of his adherents, particularly in the legal profession. Dicey observes that Bentham's philosophy fell in conveniently with the habitual conservatism of Englishmen: The Benthamites were, indeed, for the most part democrats, but the most democratic of the utilitarians did not attack any foundation of the English social system. They entertained the prevalent conceptions of individual happiness and of national well-being. To socialism of any kind they were thoroughly opposed; they looked with disfavor on State intervention; they felt no sympathy with those Spencean philanthropists who alarmed the Government in the days of the Six Acts, and the Cato Street Conspiracy; they were more 61

Dicey, Lectures, p. 171. Elmer Louis Kayser, The Grand Social Enterprise: A Study of Jeremy Bentham in His Relation to Liberal Nationalism (New York: Columbia University Press, 1932), pp. 3 8 - 3 9 . 63 From Bentham's Anarchical Follies, quoted in Dicey, Lectures, p. 172. 64 Bentham, Treatise, 11:182. 62

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adverse to measures of latent socialism than the Tory philanthropists, represented in literature by Southey, and in the world of practical benevolence by Lord Shaftesbury. The philosophical Radicals proposed to reform the law of England, not by any root or branch revolution, but by securing for all Englishmen the rights of property and of individual liberty which all Englishmen in theory enjoyed, but which, through defects in the law, were in fact denied to large classes. The English public then came to perceive that Benthamism meant nothing more than the attempt to realize by means of effective legislation the political and social ideals set before himself by every intelligent merchant, tradesman, or artisan. The architect who proposes to repair an existing edifice intends to keep it standing: he cannot long be confused with the visionary projector who proposes to pull down an ancient mansion and erect in its stead a new building of unknown design. 6 5

There is one final respect in which the classical liberalism of Bentham and other English liberals differed from French liberalism in the area of political crime. French liberalism was guided by the idea that the State has the right to punish political crime only when it offends permanent principles of morality. Any other principle would invade the right of individual moral autonomy, which is to be respected. Thus, French law later in the nineteenth century afforded special lenient treatment for political criminals who offended only the Government and its political existence, regardless of whether they sought to achieve their ends by peaceful, legal means or by force and violence. The only exception they made at first to this principle was in cases where in the course of the struggle against the Government the political criminal committed some act offensive to common morality, such as the murder or attempted murder of the head of State. English liberalism, on the other hand, was based on the ideas of toleration and the rule of law. The two ideas are united in the Englishman's mind. The policy of toleration of dissenters (first realized in the realm of religion, but later extended to politics) and the preservation of liberty are seen as protected by the rule of law which shields the dissenters from the majority. Take away the rule of law and respect for existing legal institutions, and there are fears that the majority will become dominant and dispense with the rights of the minority. For this reason English law reflects a hesitancy to admit any principle which would undermine the rule of law or recourse to methods of change outside established lawful procedures. Thus, under the influence of liberalism, the law will extend the area of permissible dissent, criticism, and advocacy of change, but it also will come down hard on any efforts to incite the multitude into violent measures seeking to circumvent legal procedures and methods of effecting change. 65

Dicey, Lectures, pp. 174-175.

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For the foregoing reasons—conservatism, pragmatism, adherence to the rule of law—English liberalism in law, as best reflected in Bentham, was virtually immune to proposals heard on the Continent for extending to political criminals a special legal status in the domestic penal law of the State. This does not mean that English jurisprudence was not affected by developments taking place on the Continent or ideas current there. English law did come to recognize a special legal status for the fugitive political criminal in international extradition law during the nineteenth century, largely in response to developments in Europe. Also, the policy of leniency toward domestic political criminals, which begins to develop as an informal and unwritten government practice after 1840, may be attributed in part to doctrines popular on the Continent, although, perhaps just as easily or correctly, it also may be attributed to the humanitarianism that was so characteristic of nineteenth-century penal reform. Nevertheless, the factors noted here probably do account for the fact that the English—with one minor exception—never did incorporate into their law special principles, special procedures, or special punishments for handling political criminals.

Summary In eighteenth-century England the problem of political crime, which was not serious until the last decade of that century, was treated largely under the ancient doctrines of treason and sedition law. Through years of judicial interpretation and expansion, these doctrines covered virtually every aspect of political crime which then had a chance of arising, from the most major to the most minor threats to the existing order of things. The laws had come to serve primarily the maintenance of public order under a government that was oligarchic, patrimonial, and undemocratic rather than fealty to a personal Sovereign as in feudal times. With the fall of a similar government in France to revolutionaries, the doctrines of popular sovereignty and liberalism were let loose on the world, and the old order in England had to struggle for its existence against new ideological forces which were only imperfectly understood. The nature of the political criminal himself had changed: he was no longer typically a member of a small clique of ambitious politicians seeking to reestablish another monarch on the throne and realize for themselves some personal advantage; nor did he operate in small cabals or at the head of military expeditions. Rather he was typically the leader of a popular movement, head of a political society, or publisher of a radical journal, seeking to inflame the populace to revolt in the manner of the Jacobins. To meet these new threats the Government found it necessary to

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fashion new weapons (usually in the form of emergency laws) in order to quell disturbances, break up political meetings, and control the spread of political heresy in the press. Yet even during this period of reaction, it is interesting to observe the slow advance of liberal ideas and their interpénétration of the very measures which were adopted to control disturbances and prevent the realization of republican and liberal ideas. Juries were not eliminated, but given even greater powers (as in Fox's Libel Act of 1792) to protect the political agitator accused of sedition from arbitrary government repression. Only rarely were administrative measures, such as the suspension of habeas corpus and detention without trial or bail of persons suspected of political crimes, authorized, and then only for short periods. Generally, the courts were allowed to handle the offenses under procedures which were not altered to fit the occasion. Searches and seizures continued to be carried out only under warrants issued by judicial magistrates upon a proper showing. The press continued to operate under greater restrictions, but without censorship. Finally, there is evident, especially during the last twenty years of the period (1812-1832), a steady decline in the severity of punishments not only prescribed by law but handed out by the courts for political offenses. Since changes come gradually in English history—and not by fits and starts as is true in other lands—this historical development forms the necessary prelude for the period I am about to discuss.

SECTION THREE: Time of Ferment Springtime of the Policy of Leniency

T

(1830-1851):

J L H E H U N D R E D Y E A R S between the Congress of Vienna (1815) and the outbreak of World War I (1914) are generally considered to be a period of relative peace for the three countries involved in this work, even though for a very short time (1870-1871) two of them—Germany and France— were at war with each other. The lack of international conflict, however, conceals a considerable amount of domestic strife. Perhaps the most violent period for all three countries was the twenty years beginning with the July Revolution of 1830 in France and ending with the revolutionary year of 1848, when revolts broke out all over the Continent. It was a period during which democratic conflict reached its greatest intensity and socialism found its first political and ideological exponents. It ended with the reassertion of aristocratic and bourgeois authority, but also with the recognition that reforms were necessary in order to placate republicans, socialists, and nationalists. In view of the violence of the political opposition to existing regimes of this period, the mi.ldness of the counterresponse that the governments mounted—at least in France and Great Britain—is truly remarkable. This mildness can be attributed almost entirely to the influence of ideology—in this case, liberalism. At the very moment when a new liberal government in France, itself the product of a revolution, was attempting to maintain itself against the onslaughts of its rivals, who seemed to observe no limits in the ferocity of their opposition, it was enacting into legislation measures for their legal protection against arbitrary governmental prosecution and following in its penal administration a policy of leniency toward political offenders. Although the reaction of British governments during this period was resolute in the face of Chartist agita-

COMPARATIVE

ANALYSIS

OF LAWS /

120

tion, their measures also are marked by the liberal disposition to exercise no greater force than absolutely necessary to suppress violent expressions of dissent. Only Germany suppressed revolutionary ardor with a heavy hand and little apparent recognition of the restraints which liberalism imposes, but even in Germany one can observe the growth of respect for the political offender and the gradual acceptance of the French policy of treating him with greater leniency than the common criminal.

CHAPTER

France

(1830-1851)

The last Bourbon government in France was that of Charles X, who became King of France in 1824 when his brother Louis XVIII died. Charles was an emigré reactionary to his fingertips, and had been ever since he fled France during the Revolution. He tried to restore to France the ancien régime of the absolute monarch. He wanted, for instance, to abolish the Charter of 1814. He was never able to accomplish this. In 1830, however, he dismissed the liberal minister Martignac, who had been forced on him by his party 's defeat in the 1827 elections, and summoned Jules de Polignac to head the government. This move was feared by many to be a step in the direction of the abolition of the Charter and the reestablishment of absolute monarchy. When Charles, after unsuccessful elections, brashly moved to dissolve the Chamber of Deputies and to suspend freedom of the press by royal ordinance, discontented journalists, students, working men, and the Paris mob erupted in violence. In three days it was all over for Charles X and the Bourbons. He was forced to flee to England, and the Duke of Orleans (Louis-Philippe), who agreed to live under the Charter and under bourgeois governments as a constitutional monarch, became "King of the French." Thus began the reign of the "bourgeois King," probably liberalism's finest hour in France. The men who came to power with the accession to the throne of LouisPhilippe—Casimer Périer, Laffitte, de Broglie, Guizot, Lafayette—had all been members of the liberal opposition to the royalist governments of the 1820s. When they took control, they intended to make reforms which would prevent governments in the future (including their own) from using the law to eradicate political enemies or to suppress freedom of the press. But, at the same time,

COMPARATIVE

ANALYSIS

OF

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/

122

these men (or most of them) were interested in maintaining a constitutional monarchy and in limiting representation to the middle classes, both of which they believed to be the best guarantee of maintaining free and liberal institutions. 1 Here they came into direct conflict with the radical republicans, who believed that the July Revolution had been stolen from them and who wanted to establish a government along the lines of the Robespierrean republic of 17921794. 2 The latter group never accorded the constitutional monarchy of LouisPhilippe any legitimacy whatsoever; they thought it ridiculous and mean—an opinion shared by the royalist faction which wanted the restoration of the Bourbons. Fanatical hostility to the regime led both groups into acts of subversion, sedition, and terror, which made the task of any government adhering to a policy of a strict legality and temperate repression of political crimes extremely difficult, if not impossible. This situation led to a conflict between idealogy and necessity.

Reforms in the Law on Political and Press Crimes The liberal regime of Louis-Phillipe almost immediately adopted a new Constitutional Charter (14 August 1830) which provided that "the French have the right to publish and print their opinions in conformity with the laws. Censorship may never be re-established." 3 In a later article of the 1830 Constitutional Charter it was provided that legislation should be enacted ensuring the right of jury trial in the case of press crimes and political misdemeanors (délits politiques).* Later legislation, carrying out this constitutional mandate, described the kinds of crimes included within the terms press crimes and political misdemeanors. The law of 8 October 1830 provided that jurisdiction over all press crimes, with certain exceptions, 5 be vested in the assize court (the court in which jury trials are provided) and abolished those sections of the law of 25 March 1822 which made it a crime to publish or distribute any matter without prior government authorization, which vested jurisdiction over press crimes in the tribunal de police correctionelle (the misdemeanor court, which has no 'This became known as the "policy of resistance." For a description of this policy by one of its principal adherents, if not formulator, see François Guizot, Memoirs, trans. J. W. Cole, 4 vols. (London: Richard Bentley, 1860), 111:175-319. 2 Ibid., 111:194-196; and Louis Blanc, History of Ten Years, trans. Walter K. Kelly, 2 vols. (Philadelphia: Lea and Blanchard, 1848), 1:421-425. 3 Art. 7; Sirey, Lois annotées (1789-1830), (Paris: Pouleur, 1840-1843), 1:1235 (hereafter cited as L.A.). 4 Art. 69(1); ibid., 1:1237. 5 T h e exceptions were personal slanders and libels, and contempt of the courts and the two chambers of the legislature, which were tried before the court or the chamber offended.

France (1830-1851)

/ 123

jury), and which denied truth as a defense to the libels covered by the act. 6 As to political misdemeanors, this law provided that the assize court should have jurisdiction over all such offenses and that included within the term délit politique7 were the offenses prohibited by chapters 1 and 2, title 1, book 3 of the Penal Code (all crimes against the internal and external security of the State, attempts and plots against the King and his family, crimes tending to disturb the State through civil war, and so on), 8 by section 3, paragraphs 2 and 4, and section 7, chapter 3 of the same book and title (all criticisms, censures, and provocations against public authority contained in public religious sermons and in pastoral letters to foreign powers, and illegal associations and meetings), and by article 9 of the law of 25 March 1822 (dealing with the removal and defacing of public signs of royal authority and the carrying, display, and distribution of all seditious signs and symbols). The 1830 Charter and law of 8 October 1830 are the first instances in which the new phrase political offense or political misdemeanor appears in legislation. 9 The phrase is unfortunately vague (probably intentionally so), notwithstanding the fact that the legislator has enumerated some crimes which shall be considered "political" in nature. At this point in time, the phrase only 6

Ibid., 1:1242-1243. The word délit in French has both a broad meaning (equivalent to the English offense or crime) and a narrow meaning (which I am translating here as misdemeanor, that is, a matter to be tried before the tribunal de police correctionelle without a jury). It is not perfectly clear from the act itself which is the proper definition, since article 7 of this law obviously includes in its listing of included offenses many crimes that are felonies. However, the fact that felonies were already attributed to the competence of the assize court and the remarks of the reporter of this law, Count Simeon (quoted in René Garraud, Traité théorique et pratique du droit pénal français, 3rd ed., 2 vols. [Paris: Recueil Sirey, 1913], 1:266), make it fairly clear that the narrow, restricted meaning was intended, it being the object of the law to transfer cases of political and press misdemeanors from the court where they would normally be tried (the juryless tribunal de police correctionelle) to the assize court and the jury. The question also arises as to whether the enumeration of offenses in article 7 of this law is merely demonstrative or delimiting. There are various views on this subject, but the most persuasive one seems to be that if it was a limitation, the limitation was only as to those misdemeanors which were to be considered "political" for the purpose of determining the proper court for trial and for no other purpose. See Garraud, Traité, § 124. 7

8 Article 28 of the Constitutional charter of 14 August 1830 states, " T h e Chamber of Peers has jurisdiction over the crimes of high treason and attempts [attentats] against the security of the State, which will be defined by l a w . " This means that for the first category of offenses listed in article 7 of the law of 8 October 1830 there is overlapping jurisdiction in the case of certain political crimes between the Chamber of Peers and the assize court. It would appear that the Chamber of Peers could take jurisdiction over crimes committed by its members and also any political crimes that the Chamber of Deputies specifically gave it jurisdiction to try. Most of the important political trials of the 1830s and 1840s were, in fact, tried before the Chamber of Peers, as for instance the trial of the 122 conspirators of the Paris and Lyon uprisings of 1834 (1835); the trial of Fieschi for attempted assassination of the King (1835); the trials of Alibaud and Meunier for the same crime (1836); the trial of Barbès and others for the attentats of 12 and 13 May 1836 (1836); the trial of LouisNapoleon for the attentat of Boulogne (1840); and the trial of Quénisset, Dupoty and others for an assassination attempt on the King's two sons (1841). "Albéric Rolin, " L e s Infractions politiques," Revue de droit internationale et de législation comparé, 15:417-436, at p. 417 (1883); 16:147-166, 2 5 4 - 2 8 2 (1884).

COMPARATIVE

ANALYSIS

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LAWS /

124

has significance in determining the court to try the offense and the right to trial by jury; later it will have additional significance when the death penalty is abolished "in political cases" and in arguments over the kind of penal and prison treatment that ought to be extended to "political offenders." 1 0 As this concept develops in France and as it is imported into the legislation of other Continental nations, and into the law of extradition (or rather, nonextradition) of political offenders, the vagueness of the concept will cause great difficulty and confusion to jurisprudents and legislators, and the arguments over what should be included within the term and what should not will reflect the changing and opposing views toward this kind of crime in the nineteenth century. 11

The Law of 28 April 1832 and the Lenient Penal Treatment of Political Offenders Without a doubt a new liberal attitude toward political crimes is most fully expressed in the law of 28 April 1832, the first major revision of the Penal Code of 1810. 12 Here one finds confiscation of goods abolished completely as a supplementary punishment and the death penalty abolished in three cases: conspiracies (complots) not followed by attempts (attentats), counterfeiting and passing counterfeit money, and counterfeiting and using counterfeit State seals, treasury notes, and bank notes. 13 Although the death penalty was retained for 10 Article 5 of the Constitution of 4 November 1848 states, "La peine de mort est abolie en matière politique." See further, law of 26 August 1830, which abolishes all convictions and decisions of previous governments since 7 July 1815 where the judgments were rendered by any court " b y reason of political acts"; law of 26 August 1830, which stops all prosecutions for press crimes " i n political matters"; law of 10 April 1831, which enacts a riot law, provides penalties, and vests jurisdiction over riot offenses in tribunal de police correctionelle "except in the case, where the riot having a political character," the offense must be tried in the assize court (art. 10); law of 10 April 1834, which changes the law against associations but which provides that "political offenses committed by the said associations will be referred to the jury in conformity with article 69 of the Constitutional Charter" (art. 4, para. 2). For a full discussion of the arguments over the content and meaning of the phrase political offense during the nineteenth century, see Rolin, " L e s Infractions politiques." " A s to the importation of the phrase into foreign law, see article 46 of the Constitutional Principles of the German People (1848), article 119 of the Fundamental Law of the Duchy of Schleswig-Holstein, and article 98 of the Belgian Constitution of 1831. Article 8 of the Belgian decree of 19 July 1831 states; "Preventive detention may never take place for political crimes or press crimes." A Belgian law of 1 October 1833 states, "Extradition may not take place for political crime, nor for an act connected with a similar o f f e n s e . " Rolin, " L e s Infractions politiques," pp. 417, 429. 12 Sirey, Lois annotées (1831-1848), 2nd ser. annotated by A.-A. Carette (Paris: 1875), 11:125-133. 13 The total abolition of the death penalty was proposed in the Chamber of Deputies on 17 August 1830, soon after the July Revolution. Blanc, History of Ten Years, pp. 312-314. The matter was left up to the initiative of the monarch. It died there. After the Revolution of 1848, the total abolition of the death penalty in political matters was one of the first orders of business of the new legislature. See Decree of 26 February 1848, Sirey, Lois annotées (1848-1854), 3rd ser. (Paris, 1855), III (1848):8, and article 5 of the Constitution of 4 November 1848, quoted in fn. 10, this chapter (ibid., Ill [1848]: 174).

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125

m o s t p o l i t i c a l c r i m e s u n d e r t h e r e v i s i o n o f 1 8 3 2 , it w a s n e v e r u s e d d u r i n g t h e reign of Louis-Philippe for political o f f e n d e r s . 1 4 T h e y w e r e either pardoned or had their sentences c o m m u t e d to one of the lesser penalties provided by

the

C o d e . 1 5 M o r e o v e r , a n e w f o r m o f i m p r i s o n m e n t w a s c r e a t e d to spare t h e m t h e d i s h o n o r a n d r i g o r s o f p e r p e t u a l o r t e m p o r a r y f o r c e d l a b o r (travaux

forcés)

or

t h e usual t y p e of i m p r i s o n m e n t r e s e r v e d f o r c o m m o n f e l o n s (réclusion, or solitary c o n f i n e m e n t ) , a n d to replace b a n i s h m e n t in t w o c a s e s (both d e a l i n g cases of espionage)

where

banishment

did

not bring

an end

to the

with

danger

created by the criminal act or intention. T h i s n e w f o r m of i m p r i s o n m e n t c a l l e d détention.16

T o g e t h e r w i t h déportation

usual f o r m of penal treatment for political

(transportation),

was

it b e c a m e

the

prisoners.17

Article 2 0 of the revised C o d e describes this n e w f o r m of i m p r i s o n m e n t as follows: W h o e v e r will h a v e b e e n c o n d e m n e d to d e t e n t i o n will b e i n c a r c e r a t e d in o n e of the f o r t r e s s e s situated o n the c o n t i n e n t a l territory of the k i n g d o m w h i c h will h a v e b e e n d e t e r m i n e d by a r o y a l o r d i n a n c e r e n d e r e d in t h e f o r m of r e g u l a t i o n s of p u b l i c a d m i n i s tration. H e will c o m m u n i c a t e with p e r s o n s p l a c e d w i t h i n t h e p l a c e of d e t e n t i o n o r w i t h t h o s e o u t s i d e , in c o n f o r m i t y w i t h t h e p o l i c e r e g u l a t i o n s e s t a b l i s h e d by a royal o r d i n a n c e . D e t e n t i o n m a y not b e i m p o s e d f o r less t h a n five y e a r s , n o r m o r e t h a n t w e n t y y e a r s , e x c e p t in t h e c a s e p r o v i d e d b y article 3 3 . 1 8 The

first

ordinance which provides a place of detention for persons

tenced to transportation

pursuant to article

sen-

17 ( b u t p r o v i s i o n a l l y d e t a i n e d

in

France lacking a foreign penal colony to w h i c h to b e d e p o r t e d ) and for p e r s o n s sentenced

to

detention

pursuant

to

article

20—the

ordinance

of

5

May

1 8 3 3 1 9 — s t a t e s that s u c h i n d i v i d u a l s will b e p r o v i s i o n a l l y d e t a i n e d in a q u a r t e r 14 Christian Baltzer, Der geschichtlichen Grundlagen der privilegierten Behandlung politischer Strafiater im Reichsstrafgesetzbuch von 1871 (Bonn: Rôhrscheid Verlag, 1966), p. 39; see also the Commission Report of the Count de Guéronnière, submitted in connection with the draft of the law of 10 June 1853 in Sirey, L.A., III (1853):76 (fn.). 15 Pierre A. Papadatos, Le Délit politique: Contribution à l'étude des crimes contre l'état, thèse no. 507 (Geneva: Librairie E. Droz, 1954), p. 50. 16 See article 7(5) of the revised Code or article 14 of the law of 28 April 1832. " D e b a t e s in the chambers over article 17 (dealing with déportation) and article 20 (dealing with détention) indicate that, before detention was introduced, transportation was the penalty which, though rarely used in the past, was almost always used for political crimes. These debates also indicate that in the first proposed draft the complete substitution of perpetual detention for transportation was proposed since there were few French penal colonies abroad to which prisoners could be sent. Article 17 was finally changed to provide that so long as the government did not have established places for transportation abroad, detention would be used. However, in time, as France developed foreign penal colonies (first in the Marquesas Islands in the Southern Pacific, and later in French Guiana [Devil's Island] and New Caledonia), transportation became the preferred mode of penal imprisonment for political offenders. See Harry E. Barnes, The Story of Punishment (Boston: Stratford, 1930), chap. 4. 18 Article 19 of the Law of 28 April 1832; see Sirey, L.A. II: (1831-1848), 127. (Author's translation.) " I b i d . , 11:179.

COMPARATIVE

ANALYSIS

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126

of the central house of detention of Mont Saint-Michel (a famous fortress) "entirely apart from the buildings occupied by the other convicts." The annotator of this law 2 0 has this comment to make: It w a s especially as to political crimes that the penalty of detention, recently introduced into the Penal Code, was reserved and which, according to the above ordinance, w a s to have been served in the central house of Mont Saint-Michel. It was asked if it was intended to make forced labor an obligatory rule for all the detainees: but they recognized that it would be inconvenient and barbarous to subject to a uniform regime men misled, it is true, by the same errors but who almost always differed completely among themselves as to education, social position, and habits. They thought, consequently, that work ought to be admitted only as a means of distraction and recreation for the prisoners w h o demanded it. . . . It was further understood that for such prisoners the place where they underwent their punishment ought to present all the comforts compatible with the precautions to be taken to assure their confinement. . . . 2 1

Another of the significant changes in the 1832 revision is the difference in treatment now afforded attentats and complots. Under the revision, plots and conspiracies to commit major crimes of internal treason (assassination of the monarch and members of his family, attempts to overthrow, destroy, or change the government or the order of succession to the throne, inciting citizens to armed rebellion against royal authority) are no longer considered as serious as the attempts themselves, are no longer subject to the death penalty, and, in fact, are generally subject to reduced penalties depending on whether or not they are followed by acts of preparation, whether or not they are agreed to, and so on. 2 2 Finally, articles 103 to 107 of the Penal Code of 1810 (dealing with the punishability of nonrevelation of treasonable conspiracies) are entirely eliminated from the Code, and that provision (article 108) which allows for exemptions from penalties for conspiracy in the case of revelation to the authorities by one of the conspirators of a plot before its execution (or during execution if his information leads to the arrest of his fellow conspirators) is alone retained. 20

A.-A. Carette. Sirey, ibid. (Author's translation.) 22 This is done as follows: (1) the word complot is dropped from articles 86 and the first paragraph of article 91 of the Code. (2) A special article dealing with complot is set forth in article 89. This article provides that if the plot is followed by an act of commission or preparation, transportation will be the punishment; if it is not followed by either, then detention will be the punishment; if the offer to enter a conspiracy is made, but not agreed to, the offeror will be subject to a penalty of from one to five years imprisonment (the former penalty here was either solitary confinement or banishment, depending on whether it was an article 86 or 87 offense). A new article 90 provides that when a person alone and without assistance resolves to commit an article 86 offense and starts to prepare to put the act into execution, the penalty is detention. In the past, this probably would have been construed as an attentat itself and thus subject to the death penalty. See the old form of article 88 in the Code penal of 1810, I (Paris: Firmin Didot, 1810). However, article 88 was also revised to make it clear that mere acts of preparation were not sufficient to constitute an attentat: the act now had to be in the process of execution, but frustrated or stopped prior to its consummation, in order for it to qualify as an attentat. 21

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In this legislation one can see either the hand or the spirit of Guizot at work. The death penalty for political crimes is not abolished, but its use is restricted. A wider range of alternative punishments—effective in removing the political offender from the scene, but not so severe as to elicit sympathy for h i m — i s provided the judge and the public prosecutor. Finally, there is a lessening of the severity of the consequences for those who merely plot, without carrying their plots to the stage of near-execution, reflecting the prejudice of Guizot and other liberal members of the government against the "conspiracy weapon" as a method of intimidating political opposition. 2 3

The Testing of These Laws The test of liberal institutions lies not in peaceful times but in times of trouble when the State is under attack. I have already noted how

fledgling

liberal reforms adopted in France in the early 1790s were either neglected or abandoned in the years of the Terror. The situation in France during the first ten years of the reign of Louis-Philippe was hardly less grave. It is summarized by a contemporary, Louis Blanc, in the following passage: A people spurning control, victorious and master of itself; three generations of kings flying beyond the seas; the bourgoisie appeasing the multitude, shuffling it away, and giving itself a chief; the disappointed nations looking restlessly toward France, as she sat still under a new king; the revolutionary spirit flattered at first, then compressed and finally exploding in prodigious efforts and scenes of horror, plots, and butcheries; three hundred republicans giving battle in Paris to a whole army, property assailed by daring sectarians; Lyon twice insurgent and deluged with blood; the Duchesse de Bern rekindling the fantacism of La Vendée, and disgraced by those of her own family; unparalleled 23 To round out a description of the liberal reforms enacted into law during the first years of the regime of Louis-Philippe, brief mention should be made of (1) the abolition of all special tribunals of extraordinary jurisdiction except the Chamber of Peers, found in article 54 of the 1830 Charter; (2) the law of 2 August 1830, putting an end to all pending political prosecutions for press crimes (Sirey, L.A. (1789-1830), 1:1228); (3) the law of 26 August 1830, amnestying all persons convicted by reason of political acts between 7 July 1815 and the July Revolution and canceling their convictions (ibid., 1:1238); (4) the law of 11 September 1830, restoring to persons banished by reason of the law of 12 January 1816 their civil and political rights (ibid., 1:1241); (5) the law of 14 December 1830, reducing the amount of security and stamp-duty on newspapers (ibid., 1:1249); and (6) the law of 4 March 1831, providing that judges should no longer participate with juries in deliberations as to fact and that a decision to convict requires a greater majority than seven out of twelve votes (ibid. (1831-1848), 11:15-16). Finally, the regime of Louis-Philippe began with an act of political mercy. Despite the demands of the Paris mobs, backed by the republicans, for the heads of Charles's last ministers (de Gueron Ran ville, de Peyronnet, de Chantelauze, and de Polignac), the Chamber of Peers, now composed of their former enemies, refused to vote the death penalty, but instead pronounced perpetual detention for all the ministers and condemned de Polignac additionally to civil death. The reason for this liberality was not completely ideological. The new government feared the unfavorable reaction the execution of these ministers would have on foreign governments. It was anxious to avoid the stigma which attached to the reputation of France's First Republic by reason of the political executions it carried out against its former adversaries.

COMPARATIVE

ANALYSIS

OF

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/

128

prosecutions; the cholera; abroad peace uncertain, though sought after with ruinous obstinacy; Africa devastated at random, the East abandoned; within, no security; all the wild riot of intellect, and some noble efforts; commercial anarchy at its height; the disgraceful excesses of speculation ending in ruin; the executive decried; five attempts at regicide; the people furtively prompted to vast desires; secret societies; the rich alarmed, irritated, and combining with impatience of the evil the dread of escaping from it. Such is the picture presented by the history of the ten years between 1830 and 1840.24 The foregoing is a highly partisan account by a critic of the regime, but it is a fact that, not even counting the legitimist attempts of the Duchess of Berry to start an uprising in favor of the restoration of the monarchy in the south and Louis-Napoleon's two pitiful attempts at coups

d'état

in 1836 and 1840 at

Strasbourg and Boulogne, 2 5 there were at least two major outbreaks in Paris and two workers' rebellions in Lyon during the first six years of LouisPhilippe's reign. In addition, there were constant plottings and disorders caused mostly by the republicans, but added to by the legitimists and the Bonapartists, 2 6 and there were more assassination plots against the King's life than the five mentioned by Blanc in the preceding passage. 2 7 Finally, the regime, having allowed freedom of the press, was subjected to abusive attack, open invitation to sedition and treason, and outrageous ridicule and slander. The problem was fundamental: the Orleanist regime was not a popular government, was not accorded any legitimacy by its opponents, and was run essentially by a coterie of historians and lawyers in the interest of a prosperous middle class. 2 8 That it lasted for approximately seventeen years is, in itself, a minor miracle. It must seem odd, then, that in this atmosphere the government undertook to lower its defenses against political crime and that it sought to treat its political enemies with respect and consideration. The fact is that the government, after its first flush of liberal enthusiasm, did act to attempt to control and suppress some of this activity. However, its countermeasures were, on the whole, so limited and restrained in the light of the provocation and in the light of what might have been done as to justify the following statement of Guizot, who was then a minister in the government: 24

Blanc, History of Ten Years, p. 256. J. M. Thompson, Louis Napoleon and the Second Empire (New York: Noonday Press, 1955), chap. 2. 26 B y "legitimists" is meant the supporters of the Bourbon claimant to the throne, who viewed Louis-Philippe as an interloper and the son of a regicide; by "Bonapartists" is meant those who wished to restore the Empire under Napoleon's (bastard?) nephew, Louis-Napoleon. See Blanc, History of Ten Years, pp. 3 5 3 - 3 5 4 , for a description of these two parties. " G u i z o t (Memoirs, 111:286) mentions that between the autumn of 1834 and the summer of 1835 alone, seven assassination plots against the King's life were discovered and defeated by the authorities. 28 Thompson, Louis Napoleon, pp. 3 4 - 3 5 . 25

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In England, at various epochs, in France before 1830, the Chambers have often passed exceptional and preventive laws violently opposed, and granted only for a short time, but which invested the government with extraordinary powers, and elevated its strength to the level of danger. Under the monarchy of 1830, the policy of resistance never demanded or received such powers; assuredly, there was no want of enemies or dangers, but acts of prevention or exception were not desired. That policy resisted and governed by general, permanent, and repressive enactments; in the midst of the greatest perils, it appealed to nothing beyond the ordinary laws. . . . It found itself, therefore, after the animated impulse of its first steps, and when its enemies c o m m e n c e d an impassioned attack, more exposed and disarmed than any of its antecedents had ever b e e n . 2 9

Measures taken to control the abuses of the press were, in chronological sequence, as follows: (1) the law of 10 December 1830, which prohibited the posting of bills and placards on political subjects and which restricted the activities of bill posters and public criers and required them to make a prior statement of residence before the municipal authorities. 30 This law was not viewed as a violation of the constitutional prohibition against freedom of the press or censorship since neither bill posting nor public crying was regarded as "press activities." Also, jurisdiction over these misdemeanors was not taken away from the assize court. (2) The law of 8 April 1831 on the mode of process in offenses of the press, bill posting, and public crying. 3 1 This law was designed to bypass the adequacy-of-the-investigation testing procedures before the chambre de mise en accusation and bring the matter directly before the assize court for hearing, in order to speed up prosecutions under former press laws (of which prosecutions there was a growing number). If the accused, having been summoned to appear in court on a fixed day did not appear (and many did not), the assize court was authorized to render judgment by default. (3) The law of 16 January 1834 against public criers. 32 This law prohibited public criers and bill posters and passers from carrying on their activities without prior authorization of municipal authorities. It designated these offenses contraventions,33 subject to penalties of six days' to two months' imprisonment and fine for first offense and two months' to one year's imprisonment for re29

Guizot, Memoirs, 111:178-179, 180. Sirey, L.A. (1789-1830), 1:1246-1247. 31 Ibid. (1831-1848), 11:41. 32 Ibid., 11:226. 33 French law had three gradations of offenses: crimes (which I am inexactly calling "felonies"—these were always triable by the assize court); délits (which, again, I am inexactly calling "misdemeanors," merely to indicate that the penalties are of a lesser degree—these were triable before the juryless correctional tribunals except, as noted, in the case of press crimes and political offenses); and contraventions (or "petty misdemeanors"—these were also tried before the correctional and police tribunals). 30

COMPARATIVE

ANALYSIS

OF

LAWS

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peated offenses, and thus conferred jurisdiction over these offenses to the juryless tribunal de police correctionelle. (4) The law of 9 September 1835 on felonies, misdemeanors, and contraventions of the press and other channels of publication. 34 This law, which followed the Fieschi assassination attempt on the life of Louis-Philippe of 28 July 1835, struck hard at the abuses of the opposition press. It elevated to the status of an attentat against the security of the State (and thus a matter which could be heard by the Chamber of Peers rather than the assize court) every provocation, by any of the means listed in the press law of 17 May 1819, to crimes covered in articles 86 and 87 of the Penal Code (serious crimes of internal treason). It also treated as attentats any offense to the King whose purpose was to excite hatred or contempt of him or his constitutional authority and any attack on the principle or form of government established by the Charter of 1830 when the purpose thereof was to incite the attempted destruction or change of government. If the provocation was followed by some action, the publishers could be treated as accomplices of the perpetrators of the crime; where not, detention and a fine of from 10,000 to 50,000 francs was the penalty provided. In addition, many other acts were made crimes subject to lesser penalties, 35 and it was provided that in certain cases the accused could be subject to double the maximum penalties provided by law, and the offending journals and periodicals could be forced to cease publication for up to four months. 3 6 Journals and periodicals also were prohibited from rendering accounts of the defamation trials, where proof of the defamatory matter was not admissible by law; they were prohibited from publishing the names of the jurors selected for trial or of the deliberations of either the court or the jury. 3 7 They were forbidden to open, or announce publicly, subscriptions having the purpose of indemnifying the defendants in these trials for the cost of their fines or expenses of court. 3 8 A schedule for security bonds required of journals and periodicals, increasing the amount thereof, was added, and managers made partially responsible for them. 3 9 It was provided that no design, lithograph, or engravure could be published without prior authorization, and this was also required of all theatre pres34

S i r e y , L.A. ( 1 8 3 1 - 1 8 4 8 ) , 11:280-284. Other acts were (1) placing blame and responsibility on the King for acts of his governm e n t — t h i s would be unfair under a constitutional monarchy (art. 4); (2) making a public declaration of adhesion to another form of government (art. 7); (3) every attack against property, the oath, and the respect owed to laws; every apology for acts which qualify as felonies and misdemeanors; every provocation and appeal to class hatreds (art. 8). 36 S e e articles 8 (para. 2), 9, and 12. " A r t . 10. 38 Art. 11. Guizot (Memoirs, 111:197) mentions such subscription societies as the Society for the Defense of Liberty of the Press and the Society for the Relief of the Condemned. 39 Art. 13. 35

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entations and spectacles. 40 Finally, the same kind of direct citation into court provided in the law of 8 April 1831 was provided in those cases which were still to be tried under this law by the assize court. 41 Measures taken to control revolutionary activities of other varieties were (1) the law of 10 April 1834 against associations. 42 This law, which applied article 291 of the Penal Code 43 to all associations of more than twenty persons even though they might be divided into sections of lesser number, 44 provided a punishment of two months' to one year's imprisonment and a fine for any person who participated in an unauthorized association and for all persons who knowingly lent or rented their houses or apartments to one or more meetings of an unauthorized association. It was provided that the Chamber of Peers would have jurisdiction over any attempt against the security of the State committed by such illegal associations, that "political offenses" committed by such associations would be referred to a jury for trial, and that infractions of this law and of article 291 would be referred to the correctional tribunals for trials without juries. 45 (2) The law of 24 May 1834 against the manufacturers, retailers, distributors, and possessors of arms and munitions of war. 4 6 This act, first, increased the penalties applied to the unauthorized manufacture, sale, distribution, and possession of arms, powder, cartridges, and other munitions of war and gave jurisdiction over such offenses to the correctional tribunal; second, it specified a series of separate insurrectionary acts and punished them separately with detention, transportation, temporary forced labor, or death. This law was, of course, inspired by the insurrectionary outbreaks in Lyon and Paris in April 1834. The Keeper of the Seals, who presented this law, admitted that it was justified by political considerations. The reason for the specification of separate " A r t . 20 and 21. 41 Art. 2 4 - 2 7 . The law of 8 April 1831 is the second of these four measures to control abuses of the press (see preceding paragraphs). " S i r e y , L.A. (1831-1848), 11:229-230. " A s to Article 291 of the Penal Code of 1810, see p. 69, this volume. " T h e problem was that ever since the days of the charbonnerie, revolutionary organizations in France had avoided the effect of section 291 et seq. of the Code by forming conspiratorial circles of less than twenty persons. See Blanc, History of Ten Years, p. 63. As to revolutionary societies during the 1830s, such as the Association des Écoles (which called for the destruction of the university) and the Société des Amis du Peuple, see ibid., pp. 4 2 1 - 4 2 3 ; Guizot, Memoirs, 111:215— 216, 2 3 1 - 2 3 2 . 45 This law actually made few advances on the then-existing law. About the only derogation of previously established law was the provision in article 4 that article 291 offenses (forming an association without government permission) were attributed for trial to the correctional tribunal. The law of 8 October 1830 (first section, this chapter) had included article 291 offenses among the offenses listed as délits politiques, since they were in section 7, chapter 3, title 1, book 3 of the Penal Code. Therefore, there was a definite deprivation of jury trial in this one case. 48 Sirey, L.A. (1831-1848), 11:239-241.

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insurrectionary acts was that the crime could be proved more easily by mere proof of the act, unlike complot and attentat, where the connection between the intent and the act had to be proved. 4 7 (3) The laws of 9 September 1835 on the assize courts and matters relating to juries. 4 8 The law regulating proceedings in the assize courts gave the procurator general the right to bring cases directly before the court in cases where the charge was rebellion or a violation of the law of 24 May 1834. It also gave the court the power to bring recalcitrant defendants before it by force if necessary, to hold the proceedings in their absence, or to reconvene the court in the prison where they were confined awaiting trial if they obstinately refused to appear before the court or disrupted the proceedings by their conduct. It also gave the court the power to declare all persons creating a disturbance in the courtroom guilty of rebellion and to sentence them to not more than two years' imprisonment. The laws as to juries provided that the jury verdict should be by secret ballot, and that a simple majority vote would be sufficient to determine the question of whether there were extenuating circumstances in favor of the accused. 4 9 It also provided that, if the judges were unanimously convinced that the jury's verdict was wrong, they could suspend the trial and commit it to another jury. Finally, one of the jury laws made a small change regarding the penalty of transportation. It provided that detention, awaiting assignment of a place of transportation, could be in a prison situated outside the territory of France, or in one of its possessions, whereas formerly the place of detention had been within the municipal limits of France. 5 0 Each of the laws reviewed in the preceding pages had its provoking incident or incidents which gave rise to it. It might be expected that a government and a king that lacks legitimacy in the eyes of its opponents is going to be made sport of, and it is understandable that a regime that knows it lacks support will be sensitive to slanders and insults. 51 But the French press went far beyond mere ridicule. Many of the opposition newspapers and journals openly advocated and incited rebellion and assassination, not to mention the activities of an 47

See explanation of the Keeper of the Seals, ibid., 11:239, n. 4. Ibid., 11:277-280. Thus abolishing one of the provisions of the law of 4 March 1831; see fn. 23, this chapter. 50 Guizot defended this change before the Chamber of Deputies on the ground of general deterrence (or "intimidation," as he expressed it). See Sirey, L.A. (1831-1848), 11:279, n. 4. Later, in his memoirs (111:294) published in the 1860s, he will say, "Transportation, in its various conditions, was from that time, and will continue to be from day to day, more accepted as the appropriate punishment for political o f f e n s e s . " This statement seems contrary to the evidence that in the 1830s and 1840s, at least, detention in a fortress within France was the preferred penal treatment for political prisoners. 5 ' N o end of fun was made of the fact that Louis-Philippe's head was shaped like a pear. For that, and other ridicules, see André Maurois, A History of France, trans. Henry L. Binsse (New York: Farrar, Straus and Cudahy, 1956), pp. 3 8 5 - 3 9 3 . 48

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army of little public criers and bill stickers. s2 When they were brought into court for violations of the press laws, and even when they were haled before the Chamber of Peers, the republican journalists impudently claimed their right to propagate rebellion, harangued the court, and intimidated the juries. They flagrantly violated the laws, charging the regime with hypocrisy and suppression of freedom of the press and at the same time demanding all the procedural guarantees that the law allowed them. Whether the juries were, in fact, intimidated or whether they supported the defendants is not clear, but acquittals were nonetheless frequent and disturbing. 53 Until the laws of 9 September 1835, the laws were toothless in the face of these abuses. After those laws, things settled down for the remainder of Louis's reign, although restrained criticism of the government did not abate, nor was there a blackout of freedom of expression. 54 The law of 24 May 1834 had its precipitating event in the Paris and Lyon revolts of the preceding April, as the law of associations had been impelled by the continual plotting of the republican societies in Paris and in the provinces, leading to an abortive insurrection in Paris during the summer of 1833. But the laws of 9 September 1835 were the result of accumulating difficulties, the resolution of which was made easier, politically, by the procès d'Avril and the 28 July assassination attempt on the life of the King. The first of these events (the procès d'Avril) was the great conspiracy trial of its day—165 defendants (43 of whom refused to appear) were brought to trial in April 1835 on charges of conspiracy to overthrow the government during the Paris and Lyon revolts of 1834. This immense prosecution took place in a specially built pavilion and took nine months to complete. Like the 1967 "Chicago conspiracy" trial in the United States, the trial here was also preceded by demands for amnesty, allegations that the trial was a brutal suppression by the regime of its political enemies, and foreboding warnings in the press that the populace would not let the trial proceed; its opening days were " G u i z o t , Memoirs, 111:203-206, 2 1 2 - 2 1 4 . " I b i d . , 111:203. And see ibid., 11:194: " U n d e r a system of legality and liberty, judicial repression is the only effectual weapon to employ against conspiracies. It is necessary that plotters should fear the law and its interpreters. In 1831, this judicial repression was weak, uncertain, and insufficient. From the 5th of April to the 15th of June, in five prosecutions before the Court of Assize at Paris, for conspiracy, insurrection, or tumult, the accused, who far from disputing the facts, justified them by the intent, and even boasted of them openly, were all acquitted by the intimidated or partial jury. The magistrates, rendered powerless by the verdict of the court, or perhaps confounded by the extent of the disorder they were commissioned to repress, sometimes betrayed an uneasy hesitation. When they attempted to vindicate, against flagrant outrages, the dignity of justice, their ears were assailed by unheard-of ebullitions, and the accused left the court, exclaiming aloud, 'We still have balls in our c a r t r i d g e s . ' " 54 I b i d . , 111:299. Thompson, Louis Napoleon, pp. 6 7 - 6 8 , records the fact that LouisNapoleon, during his confinement for political crime in the fortress at Ham (1840-1845), wrote antigovernment tracts which were published in the local and Paris press.

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marked with outrageous and contumacious conduct of the defendants forcing numerous adjournments. 55 Nevertheless, the trial ground on to its conclusion (none of the defendants received a sentence more severe than transportation), and it was still in progress when the assassination attempt was made on the King's life. The veil was ripped away; the Chambers saw what they had to do: The cabinet hesitated not for a moment in the execution of this duty. The evil lay in the continued provocation, ultimately audacious and crafty, for the overthrow of established order. T o attain this end, the conspirators arrogated the right of incessantly holding and replacing everything in question—the very bases of society as well as the acts of its government, the primitive and fundamental right of public authorities in common with their conduct. This was what was called the liberty of the human mind and the liberty of the press. It was necessary to attack and subdue this anarchical pretension in its principle, after having conquered it in its armed and material consequence, insurrection. 5 6

The remarkable thing about the laws of 9 September 1835 is not their repressive nature; it is their lack of resort to special measures of prevention. It is true that penalties are increased and the use of the unreliable jury is restricted in the case of political crimes; it is likewise true that there is an apparent effort to reduce the chances of rebellion by reducing the constant incitement to rebellion by the press and other media of communication. But preventive detention, the rounding up of suspects, and administrative trials are not employed; the police are not used to harass and belabor the radicals. On the whole, the governments of Louis-Philippe treated political crime much like ordinary crime, to be proved in court through only slightly altered judicial proceedings, and to be deterred and punished through prison sentences that were mild and lenient. Eventually the regime of Louis-Philippe fell. When its leaders fell into discord over foreign policy and other matters, it took no more than a minor incident in February 1848 to topple the government. 5 7 The army again, as it " G u i z o t , Memoirs, 111:281-282: " I do not believe that the judicial history of the world has ever presented a similar spectacle: one hundred and twenty-one accused criminals bearing themselves as accusers of the laws and the entire government, refusing absolutely to acknowledge any of their privileges, preserving silence when interrogated, speaking and vociferating when ordered to be silent, opposing personal violence to public force; imprecating, insulting, threatening, predicting their approaching victory and vengeance, venting practical and fanatical anarchy in the name of the republic, and indulging in the most extravagant license to prolong and inflame the trial, in the hope of once more engendering civil war. And besides, by an inconsistency which would be strange, if anything could be strange in this chaos, these very accused, who proclaimed war on their judges, demanded from these same judges all the guarantees, forms, and punctillios of regular justice, and pretended to impose all their demands on the power to which they refused all its rights." 56 Ibid., 111:293. 57 Guizot, who was then head of the cabinet and prime minister, attempted to forbid the holding of a reformist banquet in Paris. Lamartine, the poet and historian, decided to defy the ban. A riot occurred and, in attempting to protect Guizot's house, the soldiers fired on the crowd and killed twenty persons. This was sufficient cause to arouse the whole city of Paris, and in a few days (25 February 1848) the revolution succeeded and the Second Republic was inaugurated. See Maurois, History of France, pp. 396-398.

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The Second Republic (1848-1851)—Return to Repression Like its predecessor in 1830 the Second Republic began on a high note. By decrees dated 25 and 29 February 1848, the government ordered all political prisoners released and annulled pending prosecutions for political acts and press offenses. 5 8 Its amnesties were numerous. On 26 February 1848, it abolished the death penalty in political matters, a provision which was to be later embodied in article 5 of the Constitution of 4 November 1848. 59 On 4 March 1848 it abolished the stamp tax on all journals and newspapers, 60 and on 6 March 1848 a decree was promulgated abolishing the laws of 9 September 1835, and requiring a jury verdict of nine votes out of twelve for conviction. 61 At the same time there were certain enactments indicating that order had not been restored in France, and that the government found it necessary to adopt measures to establish its authority. For instance, there was the decree of 27 February 1848 which declared the destruction of public and private property to be an "odious" act and a treason against the Republic and which ordered all persons apprehended in the commission of such acts immediately to be arrested, prosecuted, and punished with all the rigor that the circumstances permitted. 62 A decree of 29 February 1848, pointing out that the circulation of 58

Sirey, L.A. (1848-1854), III (1848): 8,11. Ibid., Ill (1848):8. As for article 5 of 1848 Constitution, see ibid., Ill (1848):174. Several points raised in the debates over this measure warrant mentioning because they reflect the prevalent views regarding political crime held by those who recently had risen to power. First, a move to abolish the death penalty for all crimes was rejected by a vote of 498 to 216 (Moniteur, 19 September 1848, p. 2491), indicating that political crimes were still viewed as essentially different from common crimes. Second, there was an effort not only to abolish the death penalty in political matters, but also to abolish all dishonorable forms of punishment, such as forced labor (travaux forcés). Third, there was an effort to clarify the content of the term crimes politiques, and one move to except from coverage the crime of lèse-nation (external treason), but these efforts too were defeated. However, on 9 March 1849, in the affaire Brea, the Court of Cassation ruled that article 5 of the Constitution applied to " p u r e " political crimes only, and not to common crimes connected with political crimes (such as an assassination committed by insurgents for political reasons). As to such crimes, the death penalty still applied. What penalties then applied to " p u r e " political crimes in the absence of the death penalty? A decree of the Court of Cassation dated 3 February 1849 indicated that the penalty immediately inferior to the death penalty for political crimes was not perpetual forced labor (the crime immediately listed after the death penalty in the penal code), but transportation. A subsequent law on transportation (Law of 5, 22 April and 8 June 1850—Sirey, L.A. (1848-1850), HI (1850): 137) indicated in exactly what cases of political crime formerly punished with death an aggravated form of transportation (déportation dans une enceinte fortifiée) would be applied and where simple transportation and detention would be used. 59

60

Ibid., Ibid., See Law of 62 Ibid., 61

IU ( 1848): 13—14. III (1848): 15. This was later changed back to a majority of seven votes out of twelve. 18 October 1848; ibid., HI (1848):133. HI (1848): 10.

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anonymous writings was furnishing audacious falsehoods and dangerous weapons to the enemies of the Republic, decreed that whoever was caught posting or distributing such writings would be subject to the most severe penalties. 6 3 And on May 26 1848 Louis-Philippe and his family were decreed banished forever from France and its colonies, as the elder Bourbon line had been banished during Louis-Philippe's regime. 6 4 The few measures noted in the first paragraph of this section mark the high water level of liberalism under the Second Republic. It is questionable whether the radical republicans were "liberals" in the true sense of the word in the first place, since they had been nurtured on the doctrines of Rousseau and the radicals of the First Republic. In any event, they were caught in a vise between the monarchists (both Bourbonist and Orleanist) and the socialists represented by Louis Blanc, Ledru-Rollin, Blanqui, and Barbes. 6 5 On 15 May 1848 a mob led by Blanqui, Barbes, and others invaded the National Assembly, "dissolved i t , " and proclaimed a socialist government. They were ejected by the National Guard and their leaders arrested; but the socialist revolution continued to simmer, it did not disappear. On June 23 of the same year a full-scale rebellion broke out in the workers' sections in Paris. Forty to fifty thousand persons were engaged in this struggle, which lasted for four days, and the consequence was bloody: between 1400 and 1500 people were killed, among them five generals and the Archbishop of Paris. Paris was placed under a state of siege and the Assembly transferred all executive powers to General Cavaignac, 66 who put down the uprising and demanded severe reprisals. On 27 June 1848 the National Assembly decreed that " a s a measure of general safety, there will be transported to French possessions overseas, other than those in the Mediterranean, individuals presently detained, who will be recognized as having taken part in the insurrection of the 23rd of June and the days following." 6 7 Under this law about 15,000 persons were arrested and detained, and eventually 500 persons were transported to Algeria, where special penal colonies under military jurisdiction were set up for them. 6 8 63

Ibid., Ill C1848): 11. Ibid., Ill (1848):80-81. " M a u r o i s , History of France, p. 407; for an interesting description of Blanquist socialism and its links with Baboef's Society of Equals, see E. J. Hobsbawm, The Age of Revolution (New York: New American Library, Mentor, 1962), pp. 142, 152-153. 66 Decree of 24 June 1848; Sirey, L.A. (1848-1850), III (1848):95-96. " D e c r e e of 27 June 1848; ibid., Ill (1848):98-99. This was simply legislative preventive detention and transportation without trial, it being thought that there were too many detainees and too much trouble to expect if the detainees were tried for crimes. It was frankly admitted to the Assembly by a member of a commission set up to devise extraordinary measures of this sort, that "c'est une mesure politique" and did not carry with it the usual consequence of the criminal penalty of transportation (such as civil death), which it was not. See ibid., Ill (1848):98, n. 2. 68 A later report to the legislature (see ibid., Ill [1850]:6, n. 1, in connection with the law of 25 January 1850) reveals that of 15,000 persons arrested, 4,000 were immediately released. A military commission examined 11,671 individuals, turned loose 6,264, and designated 4,316 for 64

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After this, and another uprising approximately a year later (the attentat of 13 June 1849), there was a flood of legislation against secret societies and clubs, and laws against the press, which effectively broke the back of the socialist party in France and suppressed its press. There was the law of 28 July 1848, regulating and policing clubs and prohibiting secret societies and circles; 69 the law of 9 August 1848, requiring the posting of security for political journals and periodicals; 70 the law of 11 August 1848, modifying the laws of 17 May 1819 and 25 March 1822 in order to punish all attacks against the rights and authority of the National Assembly (later expanded to include all attacks on the person or authority of the President of the Republic), members of the executive who hold their power by decree of the Assembly, all republican institutions and the Constitution, the principle of popular sovereignty and universal sufferage, all attacks on the freedom of religion, right of property, rights of the family, inciting hatred or contempt for the government of the Republic, and so on; 71 another law on clubs (19 June 1849), authorizing the government to prohibit all clubs and public meetings which were of such a nature as to endanger public safety; 72 the law of 27 July 1849, reenacting most of the provitransportation. Eleven commissions were instituted to look into these 4,000 cases. As a result of their inquiry, 991 were set free. Then a special commission of two magistrates and the inspector general of prisons reviewed the remaining cases and reduced the number of transportées from 3,936 to 1,221. Later about 700 of these were pardoned by the President of the Republic (LouisNapoleon), thus leaving about 500 at the fortress at Belle-Ile-en-Mer for transportation to Algeria. The law of 25 January 1850, supplemented by a further enactment of 31 January 1850, set forth the kind of prison regime they were subjected to. According to these laws they were to be settled in special disciplinary colonies in Algeria, under military rule, entirely separate from the government agricultural colonies and voluntary colonies established in Algeria. They were to be required to work at various industries. Their political rights were suspended, and if they tried to escape during their ten-year term they could be jailed during the remainder of the term. The President had the right to release individuals prior to the expiration of the term. Three years after landing in Algeria, the transportées (who were allowed to have their wives and children accompany them into exile if they desired) could, if their conduct warranted it, be granted a house and plot of ground. After seven more years, if the transportée expressed a desire to remain in Algeria, the property would become his. Thus, it would appear that France, as England had done in the past, was using transportation for the purpose of settling its newly acquired colony of Algeria. By the way, it should be mentioned here that many of the socialist leaders, including Blanqui, Barbés, and Louis Blanc, were tried before the High Court of Justice for the attentat of 15 May 1848. Another batch (among whom was numbered Ledru-Rollin) were tried by the High Court of Justice for the attentat of 13 June 1849. Most of these defendants received transportation as a penalty for their crimes and lost their civil rights, including their right to represent their constituencies. See the Decree of 8 February 1850; ibid., Ill (1850):15. 69 Ibid., Ill (1848): 109-113. Competence over at least some of these offenses was transferred to the correctional tribunal by calling them contraventions, but ignoring the fact that they were also article 291 offenses and thus "political crimes" vested in the assize court by the law of 8 October 1830. " I b i d . , Ill (1848): 117-118. This law later was extended by the law of 21 April 1849, which required for all writings and publications other than journals prior approval by the authorities. Ibid., Ill (1849):38. " I b i d . , Ill (1848): 119. This act simply substitutes republican institutions and objects for the royalist institutions and objects protected by the laws of 17 May 1819 and 22 March 1822. 72 Ibid., Ill ( 1849):75.

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sions of the law of 9 September 1835 on the press, and vesting jurisdiction in the correctional tribunal over these offenses; 7 3 and the law of 16 July 1850, on security bonds and stamp tax for journals. 7 4 These laws on the press and on associations, clubs, societies, and their meetings were in complete derogation of the Constitutional prohibitions against limiting freedom of the press and of association (art. 8), and ignored the provision of the law of 8 October 1830 which required all "political offenses" and press offenses to be tried by juries inasmuch as they almost uniformly transfer jurisdiction to the correctional tribunals, something the liberals during the 1830s took great pains not to do. Finally, in the last year of the Second Republic, a law was passed designating the penalties to be applied to crimes against the State for which the death penalty was formerly prescribed. 75 This law provided two forms of transportation: déportation dans une enceinte fortifiée (transportation to a fortified enclosure) and simple transportation. Simple transportation was provided for cases involving article 86, 96, and 97 offenses and when extenuating circumstances were found to exist (in which case detention was also authorized). Transportation to a fortified enclosure was prescribed in other cases. The differences between the two forms of transportation were (1) in the place of confinement (two different islands of the Marquesas group were selected for each), (2) in whether the transportées would enjoy the exercise of their civil rights at the place of confinement (in the case of aggravated transportation, no; in the case of simple transportation, yes 7 6 ), and (3) in the crimes for which each form of punishment was prescribed. One derives from this law the picture of a rather easy-going regime at the place of confinement. The transportées enjoy there all the liberty compatible with security regulations and the surveillance exercised over them by their custodians. 77 They are not "civilly d e a d , " but lose their civil rights as French citizens. 78 All or part of their goods may be taken with them, and nothing done by them at the place of transportation affects the goods they acquire thereafter or what they get by succession or donation. 79 The government may determine the work they are to do on the island, if they ask for work. 8 0 The government also provides maintenance for those transportées who cannot sustain themselves out of their own resources. 81 These conditions are to change radically later on when the penal colonies in French Guiana (Devil's Island) are established. 82 73

Ibid., Ill (1849):92-96. " I b i d . , Ill (1850):50-65. " L a w of 5, 22 April and 8 June 1850; ibid., Ill (1850):137. 76 77 Art. 3 (para. 3). Art. 1 (paras. 2 and 3). 78 79 Art. 3 (para. 1). Art. 3 (paras. 4 and 5). 80 81 Art. 6 (para. 1). Art. 6 (para. 2). 82 Law of 20 December 1851; ibid., Ill (1851):177.

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A citation of the laws of a particular regime, however, is never entirely adequate to describe all of its methods of repression; the legal enactments show only the top of the iceberg. Below the water line lie all the subtle means of regulation that are exercised by the police, administrative regulation, and sometimes by civil laws. The Government of the Second Republic operated a large and highly integrated police system supplemented by spies, informers, and secret agents in the pay of the police. All suspect persons (and this included most foreign visitors) had their movements watched and reported to the police. Foreign visitors deemed to endanger the public safety were immediately banished. 83 This system had long existed in France, and it would be a mistake, perhaps, to characterize any regime as getting along entirely without it. 8 4 But it is clear that the Second Republic did employ it to an inordinate extent. Therefore, the transition between the Second Republic and the dictatorship of Louis-Napoleon (18511870) was probably less abrupt a one than most people have thought. LouisNapoleon merely did to the republicans what they had already done to others, and he did it openly and without much apology. 83 See J. J. Jarves, Parisian Sights and French Principles Seen through American Spectacles (New York: Harper and Bros., 1856), chap. 15. 84 Leon Radzinowicz, Ideology and Crime (New York: Columbia University Press, 1966), p. 2, in describing eighteenth-century France, observes, "Paris had the most ruthless and efficient police machinery in the world. Organized like an army, its head was appointed by the King and owed direct allegiance to him alone. It was not only concerned with the repression of crime and social unrest but with the political opinions and moral behavior of individuals. It built up a whole network of spies in all walks of society. It operated an extensive system of letter-opening. It had not only powers of arrest but of judgment. . . . "

CHAPTER 8

Germany

(1830-1851)

The Disturbances Triggered by the July Revolution of 1830 and the Second Wave of Repression After the July Revolution of 1830 there were disturbances in Germany in Brunswick, Hanover, Kurhessen, and Saxony. In the winter of 1830-1831, for instance, the students of Hanover led a small revolt whereby they were able to hold the town for several weeks, until they were subdued by an army corps. In 1832, 20,000 to 30,000 persons from all ranks of society gathered at the Hambach Festival. There liberty trees were planted, songs such as "Princes out of the Country" were sung, and many other acts expressing opposition to the existing state of affairs in Germany were manifested. New student groups had arisen to replace the old Burschenschaft and gymnastic clubs, and they were just as committed as their predecessors to achieving their goals through acts of revolutionary violence. They demanded student power, expulsion of the princes from Germany, and the establishment of a democratic, unified Germany. They had abandoned all hope that these objectives would be gained through gradual reforms. The names of some of these organizations, "Young Germany," "German National Association," and "Society of Outlaws," reflect their composition, objectives, and feelings of desperation. On 3 April 1833, about fifty students and graduates of Heidelberg and Gottingen stormed the Frankfurt guardhouse, as the opening move in a planned nationwide uprising. Although they met with some initial success in Frankfurt, the general revolt did not take place, and eventually the small band of rebels was rounded up by the troops and peace was restored. After the Hambach Festival a federal decree was issued, in which it was

Germany (1830-1851) / 141 declared that all associations with political goals were prohibited. 1 This decree also required prior government approval for all large and exceptional gatherings of people. It prohibited public speeches with political content, and assemblies for the purpose of getting people to petition the government were also forbidden. Also prohibited were carrying signs in colors other than the national colors of the person carrying the sign, raising flags by unauthorized persons, planting liberty trees, and erecting rebellious signs and placards. Persons violating these articles were to be severely punished. The government also decided to enforce the Karlsbad decrees and press laws more strictly and to cooperate in the extradition between states of political criminals. After the Frankfurt incident, a federal agency, the Federal Central Authority (Bundes-Central-Behorde) was set up to investigate the extent of the "conspiracy" against the federal constitution and public order in the German states and especially to look into the incident that occurred in Frankfurt. During the period of the Authority's activity (1833-1842), 2,142 suspected persons were put to trial. Numerous others fled abroad, many of them emigrating to the United States. Prosecutions increased and penalties became increasingly severe, resulting in some cases in death sentences. But here again, as in the previous decade, there was a wide variety of outcome to the trials depending on where they happened to be held. A federal Diet decree of 18 August 1836 permitted any state to put on trial anyone (even if a resident of a foreign state) who conspired against the German confederation, to be tried according to the laws of the place where he was arrested and charged with an offense. All kinds of different laws applied to the acts in question. Moreover, the procedural laws of the states varied considerably: in some states courts with juries heard and decided the case; in others all-judge courts; in some states the procedure was inquisitorial, in others partly accusatorial. These disparities heightened the popular feeling of the arbitrariness and injustice of the proceedings as a whole, since a death penalty or a relatively minor penalty might be applied for the same act depending on the fortuitous circumstance of where the defendant happened to be arrested and tried. Also, the mounting severity of the penalties meted out—sometimes for nothing more than membership or participation in a fraternity or political group dedicated to national unification—caused a revulsion of popular sentiment against the laws applied to such defendants and increased the debate in legal circles (discussed in Chapter 5) as to the proper punishment for political offenders. 2 'This decree is known as the " T e n Articles of 5 July 1832." See Ernst Huber, Dokumente zur Deutschen Verfassungsgeschichte, Bd. 1, Deutsche Verfassungsdokumente, 1803-1850 (Stuttgart, 1961). 2 The following review of events in Germany during the 1830s is based on the research of Christian Baltzer, Die geschichtlichen Grundlagen der privilegierten Behandlung politischer Straflater im Reichsstafgesetzbuch von ¡871 (Bonn: Ludwig Rohrscheid Verlag, 1966).

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The Penal Code Revisions of Württemberg, Hesse, Baden, Nassau, Saxony, and the Thuringian States Württemberg offers an interesting illustration of the change in attitude toward political crimes in the forty years between 1810 and 1850. Its law of 5 March 1810 concerning the punishment of crimes against the State and the King is marked with the severity of the Bavarian Code promulgated three years later. This law provided a special punishment (Festungsarrest), but only according to the status of the offender and not according to the nature of the offense. A law passed on 17 July 1824 abolished fortress punishment with hard labor and provided fortress punishment and fortress detention as discretionary alternatives to confinement to jail (Gefängnis) or the workhouse (Arbeitshaus) in cases where the circumstances of the offender and lack of seriousness of the crime merited more lenient, and less dishonorable punishment. 3 (Thus, the court could take into consideration not only the status of the offender but also his motives and the character of the crime.) On 1 March 1839, a new penal code was adopted in which discretionary sentences to special penal regimes were provided based on the special circumstances of the crime and previous honor of the offender; in the revision of 13 August 1849 this was carried further by eliminating status considerations altogether from the sentencing provision, by providing Festungsstrafe as an alternative penalty for all crimes regardless of the gravity of the crime or penalty usually attached to it, and by eliminating the death penalty for all crimes. 4 In none of these provisions are political crimes specifically mentioned as crimes of honor entitled to the provisions relating to the special punishment, but it is quite clear that they were in the thoughts of the drafters of the 1839 Code and the 1849 revision. 5 The Penal Code of the Grandduchy of Hesse, adopted 17 September 1841, provided imprisonment in a fortress for the offense of dueling (a crime of honor, par excellence) and as an alternative to crimes for which reformatory punishment was prescribed. 6 By including the offender's education as a basis for special punishment, the legislator demonstrated his desire to get away from status as the sole basis for favored treatment of the offender. Similar provisions 3

This was called the Penal Edict of 1824. As a result of the political agitation of the year 1848 and pursuant to article 9 of the Constitution ("Constitutional Principles of the German People") of 27 December 1848, adopted by a number of German states including Württemberg, the death penalty and all corporal punishments were abolished except in military and naval law. The death penalty was reintroduced in Württemberg, however, by statute on 17 June 1853. 5 See Baltzer, Geschichtlichen Grundlagen, pp. 135-138. 'Article 11 of the Hessian Code states, " T h e court may, after careful investigation of the private position and education of the offender, assign the carrying out of the punishment of the reformatory to a fortress or similar institution." 4

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are found in the Penal Code of Baden (6 March 1845; §§ 51, 52) and in the Code of Nassau of 14 April 1849, which were based on that of Hesse. It is not clear whether fortress punishment was meant to be extended to political prisoners under the provisions of these codes, inasmuch as under them the prescribed penalties for serious cases of high treason, treason against the country, and lèse-majesté were death and for less serious cases, Zuchthaus (now the most serious form of imprisonment); 7 for preparatory acts leading to high treason, Gefängnis and Arbeitshaus were usually the prescribed penalties. Nevertheless, the practice seems to have been to extend fortress punishment to political offenders for the less serious political crimes under the special provisions just mentioned. The Penal Code of Saxony (30 March 1838) is unique among the penal codes of the German states in providing no lightened forms of imprisonment for any kind of offender—not even the high-status offender—except in the military code, where Festungsarrest was provided. Therefore, the political offender in Saxony had to expect the penalties prescribed by law for the particular offenses: death in the case of high treason, lengthy Zuchthaus sentences for treason against the country, lèse-majesté, and conspiracy to commit high treason, and jail sentences up to three years in the case of any act undertaken in the preparation of high treason. The "penal code" of the Thuringian states, which went into effect in many of the Thuringian states in 1850 by agreement, presents a complex and confused picture because not all of the states adopted the code in the same form. For instance, although the code abolished the death penalty, Meiningen and Reuss retained it. This code'followed the Saxon Code in many matters such as prison sentences. Fortress punishments were not provided for civilians except in the case of royal pardons, but were the usual penalty in the case of military crimes. But in the duchies of Anhalt-Dessau and Anhalt-Köthen one finds the first provision in German law for fortress punishment as an alternative specifically provided for dueling offenses and most political crimes. Excepted from such treatment were the most serious political crimes, such as assassination, inflicting serious bodily injury, imprisoning, or delivering the Head of State to the enemy. Also excepted was lèse-majesté inflicted on the Head of State through assaults and batteries or the threat thereof or batteries committed against members of his family. These provisions probably represent the high water mark of favored treatment for the political criminal in Germany, since even the liberal provisions of the German Penal Code of 1871 do not go so far as the Anhalt-Dessau-Köthen code in extending privileged treatment to the po7 The exception was Nassau's code, which being promulgated after 1848 (see fn. 4, this chapter) abolished the death penalty for all nonmilitary crimes.

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litical offender. That this development came here and at this time is not surprising. This part of Thuringia was known as the "citadel of democracy" and enjoyed a reputation for radicalism that lasted into the twentieth century. Also, Germany was still undergoing the after-effects of the revolutions of 1848. When these after-effects had spent their force and conservative reaction set in, these provisions were repealed (Act of 10 September 1853), and the laws of Anhalt-Dessau and Anhalt-Köthen were brought into line with the extremely limited provisions for fortress punishment applying in the other Thuringian states.

The Penal Code of the Prussian States, 14 April 1851 Of all the German codes the Prussian Penal Code of 1851 most markedly reflects the influence of the French Penal Code. This may perhaps be explained by virtue of the fact that the French code had been in force in Prussia's Rhine Provinces from the time of Napoleon's occupation. Like the Bavarian Code, the Prussian Penal Code follows the French tripartite division of offenses into felonies (Verbrechen), misdemeanors (Vergehen), and petty misdemeanors ( Ubertretungen).8 Strangely however, considering the extremely conservative nature of the government and Prussia's ruling classes, the Code is uniformly milder than the French Penal Code of 1810. The death penalty is retained for murder, manslaughter, crimes endangering public safety, and certain cases of treason, but it is elsewhere abolished. 9 Conspiracy to commit high treason and instigation and preparation of high treason are now punished with lengthy Zuchthaus prison sentences (ten years to life). Prison sentences are now limited to three types: Zuchtlaus (the most serious), Gefängnis, and Einschliessung. Einschliessung, which may be translated "incarceration" or "detention," is the Code's substi8 Care should be observed in the use of English legal terminology, since the periods of confinement implied in the terms are not the same in French and German law. After the adoption of the 1871 Code, French and German " f e l o n i e s " usually entailed (besides their other consequences) possible prison sentences up to life imprisonment and down to five years (in the case of France) and down to one year (in the case of Germany) in special prisons reserved for felons; "misdemeanors" involved (besides their other consequences) prison sentences up to five years and down to six days (in the case of France) and one day (in the case of Germany), also in special establishments for misdemeanants; "petty misdemeanors" involved (besides other consequences) jailing up to six weeks in Germany and up to five days under French law (prior to 1958) and down to one day in both cases. ' C a s e s of high treason punished with capital punishment under the Prussian Penal Code were assassination or attempted assassination committed against a Head of State, taking or attempting to take him prisoner, to hand him over to an enemy power or incapacitate him from governing (art. 61, para. 1, no. 1); treason against the constitution (Verfassungshochverrat); treason against the territory of the State (Gebietshochverrat—art. 61, para. 1, nos. 2 and 3); serious cases of treason against the country (Landesverrat—arts. 6 7 - 6 9 ) ; and cases of actual insult to the King (art. 74, par. 2).

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tute for Festungsarrest (or, as it was more commonly known, Festungshaft); although it might be served in a fortress, it did not have to be. It was roughly comparable to the French détention and was designed as a special form of imprisonment for offenses which were not considered dishonorable and for which the dishonorable consequences of Zuchthaus confinement were to be avoided. To carry out this purpose it was provided that if the jury found mitigating circumstances, Einschliessung might be provided as an alternative penalty; otherwise, the usual forms of prison sentences for ordinary offenders were to be applied. 10 The Prussian Code of 1851 is an especially important code, because it later became the model for the Penal Code of the North German Federation which, in turn, became the German Penal Code of 1871.

The 1848 Revolution and Its Aftermath The February Revolution of 1848 in France produced a wave of revolutions throughout Europe, particularly in Italy, the German states, and the Hapsburg Empire. 1 1 In the German states its effects were first felt in the south German states, Baden and Bavaria. 12 From there it spread rapidly to the other states, until in March it engulfed the major states of Prussia and Austria, the center of Hapsburg Empire. In Vienna a popular uprising in March caused the downfall and flight of Metternich, the hated symbol of reaction. A revolutionary government was established in Vienna which lasted till the end of October, when the forces of the Emperor under Prince Windischgrâtz invaded the city and brought an end to the revolution. Simultaneously, there were disturbances in Berlin, which led to a full-scale revolt on 18 March, causing the King of Prussia, Frederick-William IV, to wrap himself in the colors of the revolution (black-red-gold), pay tribute to the fallen revolutionaries shot by his troops, and '"The benefit of this provision was short-lived. The competence of jury courts to try political crimes, established in Prussia for the first time in 1849, was abolished by the law of 25 April 1853, which established a State Court (Kammergericht), presided over by professional judges, to hear all cases of high treason, treason against the country, and lèse-majesté. " E . J. Hobsbawm, The Age of Revolution (New York and Toronto: New American Library, Mentor, 1962), p. 140. 12 On 27 February 1848, liberals and radicals in Baden united in drawing up a petition to the local Diet, demanding wide reforms. These demands (which were replicated in practically every German state) included freedom of the press, amnesty for political offenders, more power for local assemblies and a wider franchise, new ministers responsible to the popular assemblies, removal of feudal burdens on the peasantry, trial by jury, the calling of a national parliament, merging of the incomes of princely estates with the general revenue of the State, and a citizen's army. In some states (for example, Hanover) the demands were more "socialistic": universal free education, improved working conditions, national workshops with guaranteed work, and so on. In Bavaria, King Ludwig was toppled from his throne after attempting to defend his court favorite, the Spanish dancer Lola Montez. The Revolution did have its comic moments. Ralph Flenley, Modern German History (London: J. M. Dent, 1959), pp. 174-175.

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promise reforms which included national unification, summoning a national parliament, and adoption of a new constitution. 13 Within a month of the commencement of the Revolution most of the revolutionaries in the smaller states of Germany had secured the promise and partial fulfillment of changes which seemed to put an end to the illiberal regimes that had existed prior thereto. On 18 May 1848, a National Assembly (Vorparlament) was convened at Frankfurt to draft a national constitution. This body of approximately six hundred was made up predominantly of representatives of the middle classes: university professors, lawyers, officials, doctors, clergymen, writers, with some members of the liberal aristocracy, landowners, businessmen, and a few army officers; representatives of the peasants and factory workers were conspicuously absent. Besides this fact, its internal divisions, its political naivete, and its tendency to engage in time-consuming discussions over matters beyond its competence, the National Assembly had no direct control over any armed forces, and its decisions depended for their execution on the willingness of the state governments—particularly those of Austria and Prussia—to carry them out. 1 4 Therefore, the course of events in Austria and Prussia determined the success or failure of the National Assembly's activities and of the revolution itself. All revolutions tend to pass through several stages, and the German revolutions of 1848 were no exception. The situation in Germany from March to November 1848 was chaotic. In western Germany there were peasant revolts which demanded an end to landlordism and the redistribution of land; in May there was a clash at Mainz between the newly formed citizen's guard and the Prussian garrison; in June a mob in Berlin stormed the Royal Arsenal; in September another mob invaded the National Assembly at Frankfurt, which was forced to call on Prussian troops to disperse them, and in the same month the Baden radical Struve invaded Baden to establish a socialist republic; in October there was rioting in Munich and Weimar and in November an uprising in Saxony. 1 5 These events, which seemed to be pushing the revolution in the direction of republicanism and socialism, frightened and alienated the liberals in the revolutionary movement who were not quite ready for such extensive changes in the social and political life of Germany, and they drew toward the reactionary right which had now convinced the Prussian king that the time had come to reestablish his authority. In November, Frederick-William IV, safely in 13 E. J. Passant, A Short History of Germany, 1815-1945 (Cambridge: At the University Press, 1959), pp. 29-31; Henley, Modern German History, pp. 177-184. 14 Passant, Short History, p. 33. For a more complete discussion of the Vorparlament, see Henley, Modern German History, pp. 184-194. ls See Flenley, Modern German History, pp. 175, 176, 177, 183, 190.

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Potsdam, dissolved the Prussian Legislative Assembly and occupied Berlin with his troops. A state of siege was declared in Berlin, the civic guard was dissolved, the press was muzzled, and the Prussian Assembly was prevented from meeting. The Frankfurt Parliament, which lasted on into 1849, produced a national constitution with "Fundamental Rights" (Grundrechte) on 27 December 1848, but it too expired when the Prussian King declined leadership of a new North German unified state and when Austria, Prussia, Bavaria, Saxony, and Hanover all withdrew their representatives. 16 During the year of revolution, however, Germany experienced freedoms she had never enjoyed before. Censorship was abolished in most states, and in June 1848 Karl Marx was able to set up his Neue Rheinische Zeitung in Cologne. As already indicated, many of the penal codes enacted during these times abolished the death penalty altogether, and others reduced its application considerably. Laws concerning meetings and assemblies were relaxed with the result that political clubs and labor organizations multiplied. The Fundamental Rights constitution (Grundrechte) promulgated by the Frankfurt Parliament, which was adopted by many of the German States prior to the time reaction set in, assured equality of civil rights, abolition of privilege, freedom of speech, of press and of religion, the ending of all surviving feudal rights, and trial by jury. In addition, it promised local, democratic, and responsible government in all states and cultural freedom for non-German citizens. 17 With the restoration of autocratic governments in Austria, Prussia, and many of the other German states in 1849, reaction against the reforms that had been made set in. Freedom of the press disappeared as censorship was restored; 18 promised local self-government failed to materialize; trial by jury was reduced; judges were no longer irremovable; liberal officials were expelled from office; leaders of the revolution were brought to trial; 19 state control over education and religion was increased; and all the worst features of the pre-1848 "Ibid., p. 191. "Ibid., p. 190. 18 Although freedom of the press had died in Germany several years before, its death was memorialized officially by the Confederation in its decree of 6 July 1854, establishing strict standards to be applied toward the press by the states in their separate press laws. See Karl L. von Bar, A History of Continental Criminal Law, trans. Thomas S. Bell et. al. (Boston: Little, Brown, 1916), p. 347. 19 There is no record of the number of political trials that followed in the wake of reaction. Many "revolutionaries" went into exile and emigrated abroad—thus escaping prosecution—among them Marx and Engels. (Between 1849 and 1854, 1,100,000 Germans emigrated abroad, particularly to the United States; only a fraction of these were political refugees, since the majority of them were from the rural districts of southwestern Germany, where overcrowding was creating a problem in preindustrial Germany; see Passant, Short History, p. 81; Flenley, Modern German History, pp. 198-199.) One of those who remained behind to face the music of political prosecution was the socialist leader Ferdinand Lassalle. As to his trial in May 1849, see Flenley, Modern German History, p. 249.

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police system were revived. 20 Moreover, in August 1851 the re-created Federal Diet (Bundestag) set up a committee appropriately called the "Reaction Committee," to set about undoing in all the states what had been accomplished during the revolutionary years 1848-1849. The Fundamental Rights of the Frankfurt constitution were abolished and the political changes of the revolution attacked and largely eliminated. As a result, in no single German state was the principle of a government responsible to the people or to a popularly elected chamber established as a result of the revolutions of 1848. Lower houses of legislature, elected under electoral systems favoring the upper and wealthier classes of society, did continue to exist in Germany, but their powers were limited, usually, to discussing and offering legislation and approving budgets submitted to them; they had no right to control or countermand the activities or decrees of the ministers appointed by the monarch. This system of limited representative government was to continue essentially unchanged until Germany's defeat in the First World War. Many people have talked of the 1848 German revolution as a complete failure 21 and Marx and Engels discussed it in terms of "revolution and counterrevolution," 2 2 but in many ways it was neither. A noted German historian, Veit Valentin, has marked it as "the great turning-point of German history in the nineteenth century." 2 3 One is reminded of the opening of the Japanese ports by Commodore Perry in 1854. The shock of this event convinced the Japanese Emperor and his samurai supporters that Japan had to become a modernized state on the European model in order to survive as an independent nation. The effect of the 1848 Revolution on Germany was no less traumatic. After it, German unification became an almost unquestioned inevitability which the rulers of all German states (with the possible exception of Austria) recognized, even if they did not gladly accept the idea; and liberalism, especially in jurisprudence, became doctrine to which every educated person at least paid lip-service. 20

See Passant, Short History, p. 41; Flenley, Modern German History, pp. 196-197. ' S e e , for instance, Passant, Short History, p. 29. 22 Karl Marx, Revolution and Counter-Revolution (London: Swan Sonnenschein, 1896). 23 Veit Valentin, 1848: Chapters of German History, trans. Ethel Talbot Scheffauer (London: Geo. Allen and Unwin, 1940), p. 178. 2

CHAPTER

Great Britain

9

(1830-1848)

Period of Ferment, 1830-1848 The Reform Bill of 1832 was preceded by the strongest pressures for electoral reform from the Whigs in Parliament and from agitators and publicists working on the passions of the middle and working classes through the press and public meetings. So keen for reform were these groups that they organized "Political Unions" in many English towns which were prepared to use force if necessary to bring the peerage to an awareness of their duty in this regard. Occasionally, the populace got out of control, as in Bristol in October 1831, where the visit to the city on official business of one of the most hated antireformers caused three days of rioting and the burning of a large part of the city. 1 For various crimes committed during this riot, 113 persons were charged, of which 4 persons were executed, 26 sentenced to death (later to have their sentences commuted), 18 given various terms of transportation, 32 given various terms of imprisonment, 11 discharged, and 22 acquitted. 2 A Special Commission under Chief Justice Tindal was convened for the trial of these offenders, and apparently they were tried in large batches and with great expedition. The trials of 102 persons before the three-judge Commission took no longer than twelve days to complete, according to its own report! The next great period of civil disorder began in 1839 and continued intermittently until 1843. These disturbances can be attributed mainly to the Chartist 1 Frederick C. Dietz, A Political and Social History of England (New York: Macmillan, 1932), p. 500. 2 See Report of the Special Commission to try crimes committed during the Bristol riots, 3 State Trials (N.S.) 10, fn. (a).

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movement and to the protests of poor workers over the conditions under which they lived. The Chartist movement began in 1836 when William Lovett, a small shopkeeper, founded the London Working Men's Association. The purposes of the Association were to consolidate the working classes into a political force, to apprise the public of the conditions in which laborers lived and worked, and to agitate for the political and social rights of the classes. The Chartist program contained six points: universal manhood suffrage, equal electoral districts, the secret ballot, removal of property qualifications for membership in the House of Commons, compensation of members of the House of Commons so that workingmen could afford to leave their jobs and sit in the House, if elected, and annual elected Parliaments. Although Lovett was cautious and moderate, the movement soon fell into the hands of demagogues, mainly because there never was the slightest hope that Parliament would respond favorably to these demands. The movement to have the People's Charter enacted by Parliament began in 1839 on a peaceful, if somewhat futile, note. In February of that year Chartist delegates met in London in National Convention to present to Parliament a petition signed by a million people. When the futility of such a move was recognized, some of the more passionate delegates proposed that the people arm themselves, refuse to pay rent and taxes, withdraw savings from banks and convert paper money into gold, and engage in what was tantamount to a general strike. After the petition was presented to Parliament and duly rejected in July, the Convention moved from London to Birmingham, where its proceedings were the occasion for ugly riots and battles with the police. The Birmingham riots were followed by others in the northern and western counties and by a small uprising in Newport in Monmouthshire, which was quickly subdued. 3 The general strike never took place, probably because many Chartists had no employer to strike, and those who did, did not want to leave their jobs for fear of losing them. In all, the events in Great Britain from January 1839 to June 1840 led to 544 commitments for various political crimes (480 in England, 63 in Wales, and 1 in Scotland). Among these prisoners, 13 were committed for high treason and sedition, 6 for seditious libel, 1 for blasphemous libel, 6 for sedition, 19 for seditious words, 69 for seditious conspiracies, 93 for unlawful assembly, and 125 for riot.4 According to Fox Maule, the Under3 John Frost, a former mayor of Newport, and 10,000 men armed with guns, swords, and scythes marched on Newport in the dead of night with the plan of releasing some Chartist prisoners being confined there. Frost, Zephaniah Williams, and William Jones were later tried for treason for their part in this affair. See 4 State Trials (N.S.) 8 5 - 4 8 0 . 4 See State Trials (N.S.) app. C, 1405-1408, for the statistical summary from which these figures are taken.

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Secretary of State, "about 467 persons were tried for offenses connected with Chartism, and of that number 379 were convicted." 5 A description of the penal treatment received by some of these political prisoners will be deferred to a later section in which the policy of leniency is described. 6 The response of Sir Robert Peel's Government, and particularly his Secretary of State for Home Affairs, Lord John Russell, in the face of such provocations was extremely restrained when contrasted with the administrations of Pitt in 1792-1800 and Sidmouth in 1816-1820. There was no hasty resort to special emergency laws, or even use of those already on the books, for banning meetings or suppressing the press. Even prosecutions were undertaken with reluctance, it being felt that they often did more harm than good. The Government did, however, take steps to prevent the illegal traffic in arms and the conduct of military exercises by Chartist groups and others; it sought to extend its sources of intelligence regarding the plans and activities of these groups; and it was forced to rely more and more on military forces to put down riots and disorders which the local constabulary was incapable of handling. Even in the use of these measures, nevertheless, there was great restraint exercised and attention paid to legality by the Government. 7 After the events of 1839-1840, during which many of the more moderate Chartist leaders were imprisoned, the movement degenerated, falling more and more under the influence of demagogues like Feargus O'Connor. In May 1842 a new petition with more than a million signatures was again presented to Parliament, only to be promptly rejected as before. This rejection was followed by the "Great Turnout," which was a large strike conducted in some of the northern textile towns and potteries. Again, there were numerous arrests of strike leaders and agitators. At Stafford 274 persons were charged and tried before a Special Commission for various offenses arising from the strike disorders at the potteries; of those accused, 208 were convicted and 55 acquitted. 8 In August of the same year there were additional riots and disturbances in Cheshire and Lancashire for which Special Commissions were convened. These Commissions tried 185 persons, of which 167 were convicted and sentenced to various terms of transportation and imprisonment and 28 were acquitted. 9 In the revolutionary year of 1848 there was a resurgence of Chartist agitation, and in Ireland a new generation of Irish patriots who called themselves 'Hansard, Parliamentary Debates, 3rd ser., vol. 58, col. 751. S e e pp. 159-164, this chapter. 7 For a more complete description of the Peel Government's response to Chartist disturbances in the years 1839-1840, see Leon Radzinowicz, " N e w Departures in Maintaining Public Order in the Face of Chartist Disturbances," Cambridge Law Journal 5 1 - 8 0 (April 1960). »See 4 State Trials (N.S.) app. E, 1415, fti. (b). "See 4 State Trials (N.S.) app. E, 1422, fn. (a). 6

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" Y o u n g Ireland" added their conspiratorial activities to the general unrest. There was an enormous Chartist demonstration in London in April, in which Feargus O'Connor reappeared to play a leading role and in which another mass petition supposedly containing five million signatures (most of which on closer inspection proved to be bogus) was to be presented to Parliament. The Government was alarmed—as well it might have been in that year—and filled the city with troops and specially commissioned constables. These greatly exceeded the demonstrators in number (about 20,000 to 25,000 persons). The Chartist procession was halted outside London at Kensington Common, and the petition, weighing 584 pounds, was carted in three cabs to the doors of the House of Commons where it was rejected. The rioting which had been expected did not occur, and the Chartist gathering dissolved in futility and public ridicule, never again to reform. If Chartism lacked revolutionary vigor at this time, the same could not be said of the Young Ireland movement. There were two political factions in Ireland in 1848 which sought Irish independence from England: the older of the two, the Repeal Association formerly led by O'Connell, sought the repeal through peaceful means of the Act of Union of 1800, by which the Irish Parliament was merged with the British Parliament; the other faction, the Young Ireland party, sought to achieve independence through a popular uprising led by ardent young revolutionaries who, it was hoped, would be supported by Republican France. This hope proved to be in vain. After some violence, occasional riots, and a great deal of sedition (in the form of spoken and published appeals to rebellion and acts of terrorism), the movement was put down after the suspension of habeas corpus in Ireland and the prosecution, conviction, and transportation of many of its leaders—Smith O'Brien, Thomas Meagher, John Mitchel, Ernest Jones, and John Martin among them. 1 0 After 1848 the troubles in Ireland died down for awhile. The Young Ireland movement, whose leaders were almost entirely from the upper and middle classes, never enjoyed real support among the rural farmers and peasants, and the countryside remained calm during most of the turmoil, notwithstanding severe famine and deprivation.

Legal Developments Elimination of the Death

Penalty

One of the most significant legal developments during this period was the continuing elimination of the death penalty for crimes of a political nature. Al10

1850],

See cases reported in 6 State Trials (N.S.) [1842-1848] and in 7 State Trials (N.S.) [ 1 8 4 8 -

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though the death penalty was never eliminated for the offense of treason, all aggravated forms of administering this punishment were abolished and special statutes passed which gave the Government the option of inflicting lesser penalties in certain types of treasonable activities. Counterfeiting

Statute,

1832

In 1832 a statute was passed eliminating from the basic 1351 Treason Statute provisions which made counterfeiting the King's money or bringing counterfeit money into the realm a treasonable offense punishable by death. In place of the death penalty there was substituted transportation for any term between seven years and life, or imprisonment for any term not in excess of four years, at the discretion of the court. 11 Punishment

of Offences

Act,

1837

In 1837 an "Act for Abolishing the Punishment of Death in Certain Cases" was passed which abolished the death penalty for a number of crimes including (1) failing to disperse during a riot or obstructing the dispersal of rioters under the Riot Act of 1714; (2) inciting mutiny in the land or naval forces under the Incitement to Mutiny Act of 1797; and (3) administering unlawful oaths to bind persons to commit treason, murder, or any other capital felony under the Unlawful Oaths Act of 1812. The punishment of transportation for life or for any term not less than fifteen years, or imprisonment for any term not in excess of three years, at the discretion of the court, was substituted for the death penalty. 12 Treason

Act,

1842

In 1842 the Treason Act of 1800 (regulating trials for high treason and misprision of treason in certain cases) was amended to provide, where the overt act alleged was any attempt to injure the Queen in any manner, that the case might be tried as if the accused stood charged with murder instead of treason. 13 The Act also made discharging or aiming a firearm or using any offensive matter or weapon with the intent of injuring the Queen or alarming her a high misdemeanor punishable, at the discretion of the court, by transportation for seven years or imprisonment with or without hard labor for a term not in excess of three years. Another provision gave the court the discretion of ordering the "Counterfeiting Statute, 1832; 2 & 3 William IV, c. 34. Treason Statute, 1351; 25 Edw. Ill, st. 5, c. 2. 12 7 William IV and 1 Victoria, c. 91. '"Treason Act, 1842; 5 & 6 Victoria, c. 51. This provision was intended to simplify the procedure in trials for treason and to make proof easier by eliminating the two-witness requirement for proof of treason under the Trials for Treason Act of 1696.

COMPARATIVE

ANALYSIS

OF L A W S / 154

p u b l i c or p r i v a t e w h i p p i n g of t h e o f f e n d e r d u r i n g t h e t e r m of i m p r i s o n m e n t as an a d d e d p e n a l t y . T h i s l a w d i d n o t alter t h e p u n i s h m e n t e s t a b l i s h e d b y l a w f o r t h e p u n i s h m e n t of h i g h t r e a s o n , but it did p r o v i d e a l e s s e r a l t e r n a t i v e p e n a l t y in c a s e s w h e r e t h e acts c o m m i t t e d a g a i n s t t h e S o v e r e i g n w e r e of t h e k i n d d e s c r i b e d in t h e A c t . T h e p a s s a g e of this l e g i s l a t i o n w a s p r e c e d e d b y

several

a s s a u l t s a n d a t t e m p t s o n t h e l i f e of t h e Q u e e n . 1 4 Treason-Felony

Act,

1848

In 1848 c a m e t h e m a j o r p i e c e of l e g i s l a t i o n of t h e p e r i o d d e a l i n g w i t h p o l i t i c a l c r i m e s , t h e T r e a s o n - F e l o n y A c t . 1 5 Its vital s e c t i o n p r o v i d e d , That, if any person whatsoever after the passing of this Act shall, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our most Gracious Lady the Queen, her heirs or successors, from the style, honour, or royal name of the Imperial Crown of the United Kingdom, or of any other of Her Majesty's dominions and countries, or to levy war against Her Majesty, her heirs or successors, within any part of the United Kingdom, or in order by force or constraint to compel her or them to change her or their measures or counsels, or in order to put any force or constraint upon or in order to intimidate or overawe both Houses or either House of Parliament, or to move or stir any foreigner or stranger with force to invade the United Kingdom or any other of Her Majesty's dominions or countries under the obeisance of Her Majesty, her heirs or successors, and such compassing, imaginations, inventions, devices or intentions, or any of them, shall express, utter or declare by publishing any printing or writing, or by open and advised speaking, or by any overt act or deed, every person so offending shall be guilty of a felony, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than seven years, or to be imprisoned for any term not exceeding two years, with or without hard labour, as the court shall direct. 1 6 A l l t h e o f f e n s e s m e n t i o n e d in this A c t f o r m e r l y h a d b e e n m a d e s t a t u t o r y treasons under the Treasonable and Seditious Practices Act, 1795,17 a temporary act m a d e p e r m a n e n t in 1 8 1 7 ; 1 8 b u t t h e r e w a s s o m e q u e s t i o n as t o w h e t h e r 14 On 10 June 1840, the Queen, while riding up Constitution Hill, was twice fired at by Edward Oxford, age eighteen. Oxford was indicted for high treason, but was acquitted by reason of his insanity. See Queen v. Oxford, [1840] 4 State Trials (N.S.) 497; [1840] 9 Carrington and Payne Reports 525. On 30 May 1842, one Francis discharged a loaded pistol at the Queen. He was tried for treason, found guilty, and sentenced to die. The sentence of death was later commuted to transportation for life. See 4 State Trials (N.S.) app. A, 1375-1379. Finally, on 3 July 1842, John William Bean, a juvenile, assaulted the Queen with a pistol that was not loaded with shot but only with powder and wadding. Since he could not be charged with attempted assassination (because of impossibility), he was charged instead with an attempt to vex, harass, and frighten the Queen—a misdemeanor—and for this he received a sentence of eighteen months. 15 11 & 12 Victoria, c. 12 "Ibid., s. 3. " 3 6 Geo. Ill, c. 7. " 5 7 Geo. Ill, c. 6.

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the provisions of these earlier acts extended to Ireland. 19 Accordingly, the Treason-Felony Act repealed the parts of the earlier laws that made statutory treasons out of such acts as "imagining" the deposing of the Sovereign, conspiring to levy war against him, and instigating foreigners to invade the realm thus leaving such acts as constructive treasons resting on the authority of cases which had construed them as treasons. The Act further converted these offenses into a new category of felony known as a "treason-felony"; it left prior laws in force as to offenses against the person of the Sovereign, so that these acts could be both treasons and "treason-felonies"; it left undisturbed those prior statutes and judicial constructions which declared to be treason the acts of adhering to the King's enemies and instigating and conducting great riots for political objects without making them "treason-felonies"; and finally it extended the provisions of such previous treason statutes as had not been expressly repealed to Ireland. 20 The most interesting feature of the Treason-Felony Act, 1848, is unquestionably the penalty provision. The penalties provided for this new type of offense are transportation for life 21 or for any term not less than seven years, or imprisonment for any term not exceeding two years with or without hard labor, as the court shall direct. It is clear, therefore, as to all activities which were formerly treasons punishable by death and which, after the passage of this Act, were also treason-felonies, that the Act provides an alternative for prosecutors and the courts whereby the death penalty may be avoided and leniency shown to the offender. There is no doubt that this result was intended by those who obtained passage of the law. 22 Parliament had the choice of simply extending the provisions of the Treason Acts of 1795 and 1817 to apply to Ireland if this was the sole object of the bill. Many members of Parliament felt, however, that it would be preferable to create a new statute applicable to the whole of the United Kingdom and to create a new offense in order to give the Government the right to treat certain treasons with greater leniency if it so desired. They wanted, however, to maintain in force as much of the previous treason law as protected the person of the Sovereign. As to those other offenses amounting to 19 In view of the situation in Ireland at the time it was important to clear up this doubt. If the English treason laws did apply to Ireland, then the accused might be removed to England for trial; if they did not, offenders could be tried only for sedition, a misdemeanor, in Ireland before Irish courts and juries, which often meant they would be acquitted. 20 For a more complete untangling of the law relating to treason and treason-felony after the passage of this Act, see Sir James Fitzjames Stephen, A History of the Criminal Law of England, 3 vols. (London: Macmillan, 1883), II: 280-282. 2 ' N o w imprisonment for life. 22 See remarks of Sir George Grey, who introduced the Bill; Hansard, Parliamentary Debates, 3rd ser., vol. 98, cols. 2 0 - 3 4 .

COMPARATIVE

ANALYSIS

OF

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/

156

treason which did not constitute an immediate threat to the life and safety of the Sovereign or to the external or internal security of the nation, they felt sufficient protection would be afforded by the penalties they provided in the TreasonFelony Act. This change in the punishments provided for such cases made successful prosecution easier, since it was observed, even then, that juries are extremely reluctant to convict persons of good character of offenses which involved no ethical guilt and yet carried a mandatory death sentence. With the passage of this Act, prosecutions for treason and death sentences for treasonable offenses became exceptionally rare in England for the remainder of the century. The Act is the first clear sign that England, although not officially acknowledging political crimes as an activity to be afforded special lenient treatment by its penal laws, was affected by developments on the Continent and responded to them by amending its treason law to eliminate the imposition of the death penalty in all but the most serious cases.

Changes in the Law of Sedition As noted previously, the English law of sedition underwent extraordinary changes in the nineteenth century. From a law which in the eighteenth century practically foreclosed any critical commentary on the Government or its policies, it was transformed by liberalism into a law which permitted virtually any kind of written or verbal attack on the Government which did not amount to an open invitation to violence or rebellion. The period I have characterized as the "period of ferment" (1830-1848) saw the greatest number of prosecutions for seditious libel, seditious words, and seditious conspiracies. During this period there were well over two hundred prosecutions for seditious offenses in Great Britain (most of them for seditious conspiracies) and a lesser—but still substantial—number in Ireland. 23 Two cases decided during this period are particularly worth discussion. The first of these is Queen v. Collins.24 Collins was charged with printing a placard containing certain resolutions of the General Convention of Chartists held during the violent year 1839. These resolutions stated (with regard to the behavior of the London police in Birmingham) that " a wanton, flagrant and unjust outrage had been made upon the people of Birmingham by a bloodthirsty and unconstitutional force from London" and that "the people of Birmingham are the best judges of their own power and resources to obtain jus23 Based solely on the cases reported in Macdonell's State Trials (New Series), vols. 3 - 7 (1832-1848), there were 150 prosecutions for seditious libel, seditious words, and seditious conspiracy in England, Scotland, and Wales, and 16 in Ireland. Of course, it is known from other sources that there were many more prosecutions than those that were reported. By contrast, during the following sixty-five years (1849-1914) there are only six reported cases of sedition. 24 [1839] 3 State Trials (N.S.) 1149-1176; [1839] 9 Carrington and Payne Reports 456.

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(1830-1848)

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tice." Sir James Stephen, England's most eminent expositor of criminal law in the nineteenth century, was later to cite Judge Littledale's instruction to the jury in this case as the best summary of the law on the subject of seditious libel of its time. 2 5 This instruction read in part as follows: You will first have to consider whether the statement at the commencement of the indictment that there was an unlawful assembly which was dispersed by police be true or not, and if it be true you will then have to consider whether this publication was or was not a calm and temperate discussion of the events which had occurred; for if the object of it were merely to show that the conduct of the police was improper, that would not be illegal, because every man has a right to give every public matter a candid, full and free discussion. If the language of this paper was intended to find great fault with the police force, even that might not go beyond the bounds of fair discussion, and you have to say, looking at the whole of this paper, whether or not it does so. With respect to the first resolution, if it contains no more than a calm and quiet discussion, allowing something for a little feeling in men's minds (for you cannot suppose that persons in an excited state will discuss subjects in as calm a manner as if they were discussing matters on which they felt no interest), that would be no libel; but you will consider whether the kind of terms made use of in this paper have not exceeded the reasonable bounds of comment on the conduct of the London police. With respect to the second resolution . . . you are to consider . . . whether they meant to excite the people to take the power into their own hands, and meant to excite them to tumult and disorder. . . . The people have a right to discuss any grievances that they have to complain of, but they must not do it in a way to excite tumult. It is imputed that the defendant published this paper with that intent, and if he did so, it is in my opinion a seditious libel. 26 The significance of this instruction is that it virtually limits the crime of seditious libel to direct incitements to disorder and violence. 2 7 Not so limited in its ambit was the crime of seditious conspiracy, however, which brings us to the second case to be discussed, Queen

v. O'Cornell

et

al.2s

In numerous prosecutions for seditious conspiracy during the first half of the nineteenth century, the charge generally was that the defendants conspired to effect some purpose inconsistent with the peace and good government of the country, and that they manifested that intention through speeches, meetings, and the formation of political associations. Typical of such a prosecution was that of Daniel O'Connell and eight others in 1844 for meetings held and speeches made in the course of agitation for the repeal of the Act of Union. O'Connell and the other defendants were convicted on numerous counts of the indictment. The sufficiency of the indictment was tested, however, by an appeal to the House of Lords, and the conviction overturned by a 3-2 decision. 2 9 Concerning the House of Lords decision, Stephen comments, " S t e p h e n , History of Criminal Law, 11:374. 26 3 State Trials (N.S.) 1175-1176; 9 Carrington and Payne Reports 460. " S t e p h e n , History of Criminal Law, 11:375. 28 [ 1844] 5 State Trials (N.S.) 1 - 9 1 6 ; [1844] 11 Clark and Finnelly's Reports 155. 29 Ibid.

COMPARATIVE

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/

158

The indictment consisted of eleven counts, upon which there was as to three of the defendants a general verdict of guilty and a single sentence. Of the counts nine were declared by all the judges, when consulted by the House of Lords, to be good; two were declared to be bad. The nine good counts charged, with different modifications, a conspiracy with intent to raise discontent and disaffection amonst the liege subjects of the Queen; to stir up jealousies, hatred and ill-will between different classes of her Majesty's subjects; and especially to promote amongst her Majesty's subjects in Ireland feelings of ill-will and hostility toward her Majesty's subjects in the other parts of the United Kingdom, and especially in England; to diminish the confidence of her Majesty's subjects in Ireland in the general administration of the law therein; and to bring into hatred and disrepute the tribunals established by law in Ireland for the administration of justice; to bring about changes in the law by meetings held to hear seditious speeches and by seditious writings. The other counts, which were held to be bad, charged in substance a conspiracy to cause meetings to be held for the purpose of obtaining changes in the government and constitution of the realm "by means of the exhibition and demonstration of the great physical force at such meetings." This language was held to be too vague and uncertain to enable the court to say positively that the combination which it described must necessarily be illegal. These counts, however, would it seems have been good if they had been properly drawn. The remarkable part of this decision is that it shows how wide the legal notion of a seditious conspiracy is. It includes every sort of attempt, by violent language either spoken or written, or by a show of force calculated to produce fear, to effect any public object of an evil character, and no precise or complete definition has ever been given of objects which are to be regarded as evil. All those which are mentioned in O'Connell's case are included in the list, but there may be others. 30 The apparent discrepancy between the treatment of seditious libel and the treatment of seditious conspiracy may be explained by the fact that the English, like other nations, see a greater danger in organized activity than they see in the activities of isolated individuals. Political activities carried on by many in concert and by common agreement may be illegal where similar activity by a single person is legal. Nevertheless, it is interesting to see how far the law of sedition had traveled since the eighteenth century. N o longer are purely verbal attacks on government leaders and the propriety of their measures deemed seditious by the courts, provided such attacks keep within the "bounds of fair discussion," are not inflammatory, and do not deliberately incite civil disorder and

violence.

Moreover, the distinction which liberals today are fond of making between seditious "acts" and conspiracies "to act" versus "mere advocacy" (as opposed to incitement) of determined and, perhaps, lawless opposition to a political regime can also be seen adumbrated in these court decisions which treat with great severity seditious conspiracies while almost overlooking seditious words and libels. 3

"Stephen, History of Criminal Law,

11:379-380.

Great Britain (1830-1848) The Policy of Leniency As Revealed in the Punishment of Persons of Capital Political Crimes

/ 159

Convicted

Writing in the early 1920s, W. G. C. Hall, an English barrister and former officer of the Irish Territorial Force during the Irish Rebellion, stated, The policy of leniency to political crime is one which has become almost an article faith with modern politicians, and is to be found reflected to some extent in the acts the Legislature, but much more in those of the Executive, which even when it seems have made up its mind that severity is called for, always seems to go out of its way stultify that policy by its tenderness in individual cases. 3 1

of of to to

The "policy of leniency" mentioned by Hall in this passage had its origins in the time of ferment (1830-1848). It is most clearly observable in the penal treatment meted out to the major political agitators of the day, both English and Irish. The following is a list of persons convicted of the crime of treason, who were sentenced to death and later had the death sentences commuted to transportation by an act of royal clemency: (1) John Frost, Zepheniah Williams, and William Jones, convicted at Monmouth on 16 January 1840 in connection with an armed attempt to rescue Chartist political prisoners at Newport. 3 2 (2) William Smith O'Brien, convicted on 9 October 1848, in connection with disturbances in Ireland. 3 3 (3) Terence Bellew McManus, Patrick O'Donohue, and Thomas Francis Meagher, convicted by the Central Criminal Court on 23 October 1848 and sentenced to death for levying war in Tipperary, Ireland. 34

The following is a list of persons who could have been prosecuted for treason, but instead were prosecuted under the new Treason-Felony Act of 1848 35 and thus received transportation to an overseas penal colony instead of death as their punishment: (1) John Mitchel, found guilty in Dublin on 27 May 1848 of treason-felony (this being the first case tried under the new Act). 3 6 31

Wilfred G. C. Hall, Political Crime (London: Geo. Allen and Unwin, 1923), p. 65. See [1840] 4 State Trials (N.S.) 8 5 - 4 8 0 , at p. 480, fn. (a); Frost was transported to Van Diemen's Land in Australia. In 1854 he was allowed to travel to America. In 1856 he received a full pardon and returned to England, where he died in 1877. 33 In February 1854 O' Brien received a pardon conditioned on his not returning to the United Kingdom, and in May 1856 he received a full pardon. See [1848] 7 State Trials (N.S.) 1 - 3 8 0 , at p. 380, fn. (a). 34 [1848] 7 State Trials (N.S.) 1110, fn. (a). All defendants were reprieved and transported to Van Diemen's Land, from which they all had escaped by March 1853. 35 11 & 12 Victoria, c. 12. 36 [1848] 6 State Trials (N.S.) 5 9 9 - 6 9 8 , at p. 698, fn. (a). Mitchel was sentenced to transportation to Van Diemen's Land for fourteen years, but escaped in 1853. From thence he fled to the 32

COMPARATIVE

ANALYSIS

OF

LAWS /

160

(2) William D o w l i n g , William Clay, Thomas Fay, William C u f f y , Joseph Ritchie, and John B. Mullins, convicted in 1848 of treason-felony for taking part in the meetings of English Chartists and their Irish confederates which planned a general uprising in London in July and August 1 8 4 8 . 3 7 (3) Joseph Ratcliffe and Joseph Constantine; both were tried at Liverpool on 15 December 1848 for the murder of a constable in the course of disturbances at Ashtonunder-Lyne in August 1848. Ratcliffe w a s convicted and sentenced to death, but Constantine w a s acquitted. Three days later Constantine was charged with five others of treason-felony, the evidence in this case being virtually the same as that adduced at the earlier trial of Ratcliffe and Constantine. All defendants were found guilty of treasonfelony and four of the six (Constantine among them) were sentenced to transportation for ten years. 3 8

The preceding two lists are complete and cover all persons convicted during the period 1830-1848 of " p u r e " 3 9 political crimes and of crimes which were potentially subject to capital punishment had they been prosecuted as treasons rather than treason-felonies. In other words, not a single "pure" political offender convicted during this period of a capital crime or for acts which might have constituted a capital crime was executed for that crime.

As Revealed in the Penal Treatment of Lesser Political

Criminals

It might be supposed that if the penal treatment of major political offenders was marked by an extraordinary leniency during the period in question, the punishment of lesser political criminals would be even more benign. This, however, is a false assumption to make in the realm of political crime, where the punishment is often measured according to its anticipated effect on the existing political situation and on the public at large rather than according to its effect on the offender himself. Big cases often gain for themselves big publicity and public attention, and the persons involved in them often win a devoted following which pursues its interest in its heroes long after they have been convicted, sentenced, and committed to prison. Therefore, in major cases of politiUnited States, where he lived until 1874, when he returned to Ireland. In February 1875, he was elected to Parliament from Tipperary, but the seat was declared vacant by resolution of the House of Commons on the ground that Mitchel had not purged his crime by completing his sentence or by receiving a pardon. Nevertheless, no further legal proceedings were taken against him. Hansard, Parliamentary Debates, 3rd Series, vol. 222, col. 539. " [ 1 8 4 8 ] 7 State Trials (N.S.) 482, fn. (a). All were transported on 8 August 1849 and received full pardons on 9 May 1856. 3B [ 1848] 7 State Trials (N.S.) 1123-1130. Constantine and others transported for life later received a full pardon (19 May 1856). Ratcliffe had his death sentence commuted to transportation for life, and he received a conditional pardon on 28 March 1859, the condition being that he not return to the United Kingdom. He died in Illinois in 1889. See Hall, Political Crime, p. 69, fn. 31. 39 A " p u r e " political crime is one in which the overthrow of a government is its intrinsic objective; it is not a common offense carried out for political reasons.

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cal crime the likelihood of the offender getting better treatment by his jailors is actually increased by the publicity that the case has received. There is a second consideration, too, which applies to major political crimes. The severity of penal treatment in prison varies according to the status of the offender: the higher the status, the better the treatment. "Status" may consist of several things: it may consist of the elevated social standing of the offender before the time he was convicted of his crime; it may consist of his leadership in a politically powerful movement; it may consist of the number of friends and sympathizers he has in high places in government or in positions of influence; it may even consist, to a certain degree, in the notoriety his crime has received in the press and in the fascination, if not sympathy, it has inspired in the public. Whichever of these factors apply, "status" affords the offender a kind of privileged position in the eyes of his jailors, which usually (certainly not always) makes his penal treatment less arduous than that of the common criminal. The person who has committed the lesser political crime, on the other hand, is often the "small f r y " of the political opposition who enjoys none of the kinds of "status" just mentioned. He may not stand very high in the ranks of the revolutionary movement and for that reason he may have been charged with a lesser crime. His crime does not merit and consequently does not receive the spotlight of publicity generally reserved for the major crimes. Therefore he tends to get lost and forgotten once he enters prison and frequently enjoys no better treatment than the common criminal. His sentence will tend to be served out to the bitter end, without commutation, pardon, or parole; and he will suffer more every day that he is in prison than the major political offender. If he receives the preferential treatment that goes with a special "status," it must usually be as a matter of legal entitlement or fixed administrative policy. Even then, the preferential category to which he is assigned by law or prison regulation is less likely to afford him special privileges from his jailors than true "status" would. The reader should bear these matters in mind in considering the material that follows. For every lesser political criminal who received uncommonly lenient treatment in prison because he enjoyed high "status," there were probably hundreds of others whose penal regime differed in name only from that experienced by the common offender. Political

Prisoners

Convicted

of

Sedition

Since sedition in its various forms was a misdemeanor, persons convicted of this crime could normally expect a term of imprisonment—one seldom in excess of two years, except when time was added on for failure to pay the fine levied or for failure to provide sureties for good behavior. Persons convicted of

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sedition in the early part of the nineteenth century were often publishers, lawyers, journalists, and others of the upper-middle or professional classes. Therefore, it is not surprising to find that such persons received favors from their jailors which ordinary felons or misdemeanants of the lower classes did not receive. It is not clear when this practice started, or exactly when it was that favorable treatment resulted from considerations of the nature of the offense committed rather than the nature of the offender. There are several instances prior to 1840 of persons sentenced to prisons or jails for seditious offenses receiving especially lenient treatment and special favors from their jailors. Leigh Hunt (1784-1859), the essayist, critic, and poet, was convicted in 1812 of composing a seditious libel against the Prince Regent and was sentenced to two years' imprisonment in Surrey gaol and a fine of £500. While in jail he was allowed to decorate and furnish his cell, to receive friends and visitors often, and to continue writing and editing his paper, the Examiner.40 William Cobbett (1763-1835), the famous English radical journalist and writer, also was convicted of seditious libel in 1810 and sentenced to two years in Newgate gaol and a fine of £1,000. Nevertheless, he was allowed to continue to edit his newspaper, the Register, from jail and to write tracts denouncing the policies of the Government. 41 The same was true of Richard Carlile (1790-1843), radical and publicist, during his five-year term of imprisonment for seditious libels. 42 Whatever favors were received by such prisoners was usually a matter of unwritten policy followed by those in charge of the jails and prisons. When John Collins was convicted for seditious libel in 1839, he requested of the court that he be confined in the debtor's side of the prison instead of the felon's side—a practice he maintained had been followed by a judge in a similar case in 1821. 43 However, this was refused by the sentencing judge, who expressed his belief that the court lacked the power to make any such direction in its order of commitment and that Collins should apply to the Home Secretary (the official in charge of all convict prisons) for such relief. On the other hand, the Tory radical, Joseph Rayner Stephens, convicted the same year of uttering seditious words, riot, and unlawful assembly and sentenced to serve eighteen months in a house of correction, was allowed instead to serve it in Chester Castle and was permitted the use of pens, ink, and paper while in confinement, 40 Hunt had the walls of his cell papered with a trellis of roses and the ceiling painted with sky and clouds. The windows were furnished with Venetian blinds, and the room decorated with books, flowers, knickknacks, and Hunt's piano. Charles Lamb, a visitor, declared there was no other such room except in a fairy tale. Dictionary of National Biography (London: Oxford University Press, 1921-1922), X:268, col. 2. "Encyclopedia Britannica, 1966 ed., V:988-989. 42 Dictionary of National Biography, 111:1010, col. 2. 43 See fh. 24, this chapter.

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provided he refrained from writing further libels. 44 In 1848 in a trial of fortysix defendants for seditious conspiracy and unlawful assembly at Liverpool, two defendants (West and White) who were convicted only of unlawful assembly asked to be sentenced to prison as first-class misdemeanants and had their request granted by the sentencing judge. 4 5 Perhaps the most extraordinary cases of preferential treatment extended to political criminals as a matter of unofficial government policy came in the 1840s, when the European view toward political criminals seems to have been making some headway in English political circles. 46 Feargus O'Connor, the fiery editor of the Northern Star and Chartist agitator, was convicted of publishing seditious libels in 1840 and was sentenced to eighteen months' imprisonment in York Castle and to furnish securities for two years' good behavior. 4 7 O'Connor's treatment while imprisoned in York Castle is described in the following report of the governor of the prison: Feargus O'Connor, Esq., being sick, was not subject to the rules of the prison. The surgeon saw him the day after his arrival and ordered him tea twice a day and animal food for dinner. He continued in a common day-room a few days with two prisoners whom he requested might remain with him and who were ordered to do all menial 44 In fact, he wrote from prison on 9 September 1839 that his confinement was made " a s little irksome and unpleasant as possible." Dictionary of National Biography, XVIII:1065, col. 2. 45 Queen v. Rankin et al., [1848] 7 State Trials (N.S.) 7 1 1 - 7 9 4 , at p. 794. First-class misdemeanants were a special category of offender consisting of first offenders who had committed crimes not involving moral turpitude; as such they were separated from other misdemeanants, given special privileges, and were not subjected to hard labor. In the Prison Act of 1865, 28 & 29 Victoria, c. 126, s. 67, these became misdemeanants of the first division and as such were not to be considered or treated as "criminal prisoners." See Sir Evelyn Ruggles-Brise, The English Prison System (London: Macmillan, 1921), p. 71; Lionel W. Fox, The English Prison and Borstal System (London: Routledge and Kegan Paul, 1952), p. 288. 46 In response to a motion made by Feargus O'Connor in Parliament on 6 April 1848 for the pardon and release of John Frost, Zephaniah Williams, William Jones, " a n d all other political offenders" then in jail, in prison, or transported beyond the seas, Sir George Grey made the following statement which specifically mentions the political crime doctrine: " I must say that I think the lenity [sic] [that is, in the case of Frost and others] of the Government was most conspicuous; and the reason which has induced her Majesty's Ministers to consider that it would not be right to give any other indulgence to these parties is this—that the Government conceived, from the ground upon which the cases of these persons had been put from time to time in this House and elsewhere, that by doing so they would be sanctioning one of the most dangerous doctrines that can be promulgated—a doctrine most dangerous to the interest of the great body of the people of this country, who do not possess an acquaintance with the law—the doctrine that persons having political objects in view may adopt any course they please to effect those objects—that they may have recourse to bloodshed, rapine and murder—that they may disturb all the relations of society—and that if the lc.w proves to be too strong for them, if they are taken in the prosecution of their unlawful proceedings, and are convicted by a jury, it is then to be said, notwithstanding the blood through which they have waded, the risk they have occasioned to the peaceable subjects of the Queen, and the peril in which they have placed the safety of the country, that they are only political offenders—that the sympathies of the House and of the country ought to be enlisted on their behalf—and that they ought to be allowed to escape unpunished." Hansard, Parliamentary Debates, 3rd series, vol. 97, cols. 1378-1379. 4

'[1840] 4 State Trials (N.S.) app. A, 1366, fn. (a).

COMPARATIVE

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services for him except making his bed; he now occupies the best room in the gaol, above the hospital, finds his own food, wine, etc., bed, bedding, and furniture, coals, candles, etc., has a spacious yard to take exercise in from seven in the morning till seven at night, and then a long passage to walk in till nine o'clock, when locked up; he is allowed pens, ink, and paper, books and newspapers; is visited by his friends, and has a turnkey to wait on him, who makes his bed, and sleeps in a room adjoining him at his own request. His letters are inspected by the governor. 48

Daniel O'Connell, leader of the Repeal Association in Ireland, when convicted of seditious conspiracy in 1844 and imprisoned in Richmond gaol, was treated no less regally from all accounts; 49 it must have appeared at times that he and his fellow prisoners were plenipotentiaries of a foreign government being held for ransom rather than persons convicted of crimes. 5 0 The prisoners were allowed to choose their own prison; the governor of Richmond gaol received O'Connell at the gate of the prison, lent O'Connell and his son his own house, and then permitted O'Connell's two daughters to come and live with them in the ample quarters. Visitors in immense numbers came to see O'Connell, and a large tent had to be erected where O'Connell could receive them. The treatment afforded political offenders in those years was not always uniform. Ernest Jones, a Welsh lawyer, Chartist, and man of letters, was convicted in 1848 of sedition and unlawful assembly in connection with Chartist demonstrations conducted in May of that year. He was sentenced to two years' imprisonment and was forced to serve his time at hard labor picking oakum in the company of common criminals. When he refused to do this, he was put on bread and water. He is said to have been saved from death only by the intervention of friends in Parliament. 51

Summary During the approximately twenty-year period just surveyed, France, Germany, and Great Britain were all suffering internal political turmoil of considerable intensity. The cap placed over the forces of change by the conservative governments of these nations after the final defeat of Napoleon was loosened after the 1830 Revolution in France, and the governments themselves were all but swept away in France and Great Britain. In Germany reactionary forces quickly and forcibly suppressed the ebullient spirits of young German liberals, 48

Ibid. See also Parliamentary Papers (1840), p. 600. " S e e p. 157 and fn. 28, this chapter. 50 See Denis R. Gwynn, Daniel O'Connell (Oxford: Cork University Press, 1947), p. 236; Robert Dunlop, Daniel O'Connell and the Revival of National Life in Ireland (New York: G. P. Putnam's Sons, 1900), p. 359. 51 Queen v. Ernest Jones, [1848] 6 State Trials (N.S.) 783-830; Hansard, Parliamentary Debates, 3rd series, vol. 233, col. 631; Dictionary of National Biography, X:987-988.

Great Britain (1830-1848) / 165 democrats, and pan-German nationalists through stringent police measures. In England and France new "liberal" governments attempted to counter the radical opposition which sponsored the more violent manifestations of political dissent while remaining faithful to liberal principles which recognized the legality of merely verbal dissent and peaceful political opposition. In France and England, particularly, one notes the growing acceptance of the political crime doctrine—the doctrine that political offenders should be dealt with politically, not in accordance with the strict provisions of law, but with a leniency designed to conciliate political differences between governments and their opponents. In France one sees this doctrine manifested in specific statutory measures enacted to protect the political criminal from arbitrary governmental prosecution and to alleviate the punishments prescribed for "political offenses." In Great Britain one notes a declining use of the death penalty prescribed for political crimes, changing definitions of the crime of sedition in court cases, and informal adoption of a policy of leniency with respect to the political offender in its penal administration of the penalties prescribed by law. These trends will continue and reach their zenith during the next historical period (1852-1914). Even in Germany where aristocratic-bourgeois governments remain firmly in control, the time of ferment constitutes the springtime of the new policy of leniency exhibited toward the political offender; the following period will constitute its summertime, when the policy attains its maximum acceptance and expression, based on the liberal conviction that political dissent is worthwhile, serves a useful social purpose, and should be controlled only in its excesses rather than totally obliterated.

A Time of Consolidation The Summer of the Policy of Leniency SECTION FOUR:

T

(1852-1914):

X H E L A S T G R E A T U P S U R G E of revolutionary activity in the nineteenth century, which occurred in 1848, met with defeat everywhere in Europe at the hands of conservative or reactionary forces. After this demonstrated failure of political groups to produce basic changes through revolutionary mass movements, revolutionary groups split into two major categories, each traveling a different route to its ultimate objective. Most former revolutionaries became "evolutionists," in the sense that they now participated in the political process established by their adversaries as long as that process afforded them a reasonable opportunity to capture the ear and the heart of the masses and to gain political power. Many of this group were not so naive as to believe that conservative forces would give up the ultimate achievement of political power—the right to rule—without an armed struggle, but they were willing to wait till more propitious times for revolution. In the meantime, they used the democratic process to marshall their forces and gain popular support. The other major group, smaller than the first, remained "revolutionists," although revolutionists of a special kind. The anarchists typify this group, although not all members of this group were anarchist. Realizing that political movements appealing to the masses were impractical in the climate of reaction which prevailed after 1848 and further that mass movements themselves might fail against united opposing forces which had the police and the military at their disposal, this group chose the strategy of attempting to produce confusion and disarray in the centers of power by acts of terrorism, bombings, and assassinations—what came to be known as "propaganda by deed." They ex-

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pected that the very repression which these terrorist activities elicited from the ruling powers would be so excessive and misdirected as to engender not only a contempt for existing governments in the minds of the masses but also to introduce confusion and conflict in the ranks of the mighty. This strategy backfired in the nineteenth century, however. Not only were the tactics of terrorism odious according to the prevailing morality of the times, but the underground nature of this form of warfare made it unclear as to who was fighting it or for what legitimate or reasonable ends. In other words, its propaganda value was completely lost and failed to gain public support. Second, the conservative ruling powers did not panic but usually employed the selective and limited repression which liberalism decrees ought to be applied to all illegitimate acts of violence, whether politically motivated or not. Therefore, although the acts of anarchists and terrorists were disconcerting and vexing, they did not produce the desired division in the ranks of the ruling powers. Instead, they succeeded only in producing one of the first major exceptions to the increasingly lenient approach being taken to the penal treatment of "political offenders": the anarchist was excluded from the benefits which accrued from such a designation. Given the nature of the two strategies just outlined and the calm and measured response of the aristocratic-bourgeois governments to them, it might be predicted that the period during which these conditions prevailed would be generally peaceful and only occasionally interrupted by sporadic acts of revolutionary violence. In fact, that is just what happened in all three countries. The importance of the interaction of these strategies, both revolutionary and governmental, may be exaggerated, however, for it is uncertain how much of a contribution was made to this internal peace and stability by the prosperity of the times and the fact that democracy was working (in France and England, at least) in bringing about desired changes. Another influence was nationalism. As their power and influence as early industrial and colonizing nations grew throughout the world during the nineteenth century, all three countries acquired nationalistic ambitions which brought them increasingly into conflict. Therefore, as the century progresses and internal conflict subsides, one can discern a shifting of attention to external political crime: betrayal to the foreign power, espionage, foreign intrigue, and subversion. Internal political crime has not yet acquired international overtones but, increasingly, the populations of all three countries begin to coalesce in support of their governments as the external threat increases. Moreover, the purely domestic radical can be cast in the guise of a betrayer and weakener of national unity rather the patriotic harbinger of needed social change. It is a change which comes at the very tail-end of the period and one whose effects are

A Time of Consolidation / 169 still barely noticeable in the legislation and administration of penal laws of the time. However, it is a change whose influence will be major in bringing about the basic reorientation toward political crime which comes during and after the First World War. The approximately sixty-year period (1852-1914) following the time of revolutionary ferment saw divers and sundry political developments of great import for all three countries. Nevertheless, the period was rather cohesive and distinct in representing a point of view toward political crime and the political criminal. During this period (which I have designated the " s u m m e r " of the policy of leniency) the view of the political criminal as a man of honor, whose crime is prohibited and punished on political rather than moral grounds, reaches its greatest degree of acceptance, even in official circles. So much is this the case that the policy of leniency becomes an official policy, one prescribed by law, regulation, or by such consistent governmental practice that political criminals feel they can demand lenient treatment as a matter of right rather than as a matter of exceptional grace.

France

(1851-1914)

Louis Napoleon and the Second Empire (1851-1870) Legal and Extralegal Repression during the Authoritarian of His Regime (1851-1859)

Phase

On 2 December 1851, Louis Napoleon Bonaparte, President of the Second French Republic, in complete violation of his oath and his duties under the Constitution of 1848, executed what was in fact a military coup d'etat.1 The coup was, however, supported by large elements of the populace who feared another "Red revolt," and many had to concede that it was an expertly executed affair. 2 Hardly had the proclamation dissolving the legislature and proclaiming a state of siege appeared on the streets on 2 December, when practically all opposition members of the legislature were placed under arrest. 3 Moreover, knowing that the republican and socialist opposition would not take this usurpation lying down, Louis's advisers (Morny, Maupas, and Magnan) had counseled holding back a show of armed force in order to draw the opposition out into the open. When the opposition began erecting their barricades in Paris on 4 December, the army was ready and quickly crushed the revolt. About 380 persons were killed in the conflict, and Louis used the uprising as an excuse for taking extraordinary measures against his political enemies. 1 Louis-Napoleon had been elected President of the Republic in December 1848 by a popular vote (universal suffrage having been inaugurated in France) of about five and a half million votes out of a total vote of a little over seven million. 2 See J. M. Thompson, Louis Napoleon and the Second Empire (New York: Noonday Press, 1955), pp. 123-124. In a plebescite conducted immediately after the coup to " c o n f i r m " the takeover, Louis received a vote of seven and a half million out of eight million. 3 Andre Maurois, A History of France, trans. Henry L. Binsse (New York: Farrar, Straus and Cudahy, 1956), p. 417; Thompson, Louis Napoleon, p. 117.

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Roughly 27,000 persons were arrested, of which approximately 9,500 were transported to Algeria and 239 of the worst cases to Cayenne, 3,000 "interned" away from their homes, and more than 1,500 expelled from the country. 4 This was done under a law which established military commissions of three members each to decide the fate of all persons suspected of having taken part in the insurrection of 3 December and the days following. 5 Also included in the list of proscribed persons were all members of secret societies and persons previously at liberty (but under surveillance of the state police) who had broken the terms of their probation by moving into areas which had been placed off limits to them. 6 These commissions decided the suspect's fate by documents, not by witnesses, and there was no appeal from their decisions. Administrative problems were encountered in handling such a large number of "offenders." The mixed commissions were urged to speed up their work and to release as many defendants as possible consistent with public safety. 7 In fact, Louis had the sentences revised in many cases and pardoned between 3,000 and 4,000 persons. 8 But the bitterness caused by this wholesale exclusion of political enemies from France lay as a continuing cloud over the legitimacy of his regime both at home and abroad. 9 Louis-Napoleon also took steps to close out whatever freedom of the press and political association still remained after the measures taken during the Second Republic. By a law dated 31 December 1851, all offenses committed by the press or by speech were decreed triable before the correctional tribunals, because, in the words of the law itself, "attribution to the assize courts . . . renders repression less rapid and less efficacious." 1 0 Decrees dated 17 February 185211 and 25 February 185212 brought back prior authorization for the publication of all journals and periodical publications dealing with political or "social-economic" matters as well as the security bond, stamp tax, and penalties for a wide variety of press offenses. 13 Moreover, the government was given the right of administrative suspension of publications which committed a felony or two misdemeanors in the space of two years and, even when no 4

Thompson, Louis Napoleon, p. 123; Maurois, History of France, pp. 418-419. Law of 9 December 1851; Sirey, Lois annotées (1848-1854), III ( 1851): 168-169. 6 See law of 8 December 1851 on transportation of members of secret societies (the republican party was held to be a secret society); ibid., Ill (1851):168. 'See government circular dated February 3 1852; ibid., Ill (1852):44. 'Thompson, Louis Napoleon, p. 123. "Maurois, History of France, p. 419; and see Thompson, Louis Napoleon, pp. 124-128. '"Sirey, L.A., III (1851):187. "Ibid., Ill (1852):53-57. 12 Ibid., p. 61. ''Including the reporting of sessions of the Senate and public meetings of the Conseil d'État, which were forbidden (see art. 16, law of 17 February 1852). Also, it was forbidden to render an account of trials for press offenses (see art. 17 of the same law). 5

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offense had been committed at all, when the journals had received two prior warnings from the government. 14 In the act of 25 February, the law of 8 October 1830 was abolished in order to remove any lacunae still remaining as to the jurisdiction of the assize court over press offenses, political offenses, and violations of the laws against illegal assemblies and secret societies. 15 On 25 March 1852 a new law on associations and meetings abolished the law of 28 July 1848 on clubs (except for article 13 which outlawed secret societies) and made articles 291, 292, and 294 of the Penal Code and articles 1, 2, and 3 of the law of 10 April 1834 applicable to public meetings of all kinds. 1 6 It might be surmised from a return to legal repression as complete and as onerous as existed during the 1820s that the lenient attitude toward political offenders had altogether expired in France in theory as well as in practice. However, liberalism had infiltrated the thinking of all levels of French society to such an extent that these repressive measures were justified on libertarian, rather than authoritarian, grounds. The law of 10 June 1853, which restored the death penalty for assassination attempts against the lives of the Emperor and his family, clearly illustrates this, as does the justification offered for enacting the legislation. 17 The death penalty had been abolished for all political crimes in 1848; also, the Penal Code in article 86 spoke of attempts on the " K i n g ' s " life and person, and in article 87 spoke of an attempt whose purpose was to change the "order of succession" to the throne. Were these provisions impliedly repealed by the Revolution of 1848 which abolished the monarchy in France, or were they restored to life by the fact that Louis-Napoleon had recently inaugurated an imperial government with himself as Emperor? There was division and uncertainty on these points, and to restore article 86 to its condition prior to 1848 (with minor changes) the law of 10 June 1853 was enacted. The most interesting feature of this law is that the aggravated form of transportation provided by the law of 8 June 1850 18 for article 87 offenses is left essentially unaltered. 19 The reasons given for restoring the death penalty in the case of assassination, but not in the case of insurrection, are revealing, not so much in actually exposing the true motivation behind the legislation, but in 14

S e e art. 32 of the s a m e law. See pp. 1 2 2 - 1 2 3 for discussion of the law of 8 O c t o b e r 1830. " S i r e y , L.A., III (1852): 1 0 5 - 1 0 6 . " I b i d . , Ill ( 1 8 5 3 ) : 7 5 - 7 8 . ' » S e e Chapter 7, p . 138 and f n . 75. 19 Article 87 o f f e n s e s included such acts as attempting to destroy or c h a n g e the g o v e r n m e n t or the order of succession to the throne and inciting citizens or inhabitants to arm t h e m s e l v e s against imperial authority. 15

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stating the philosophical arguments that were deemed acceptable according to the thinking of the time. In the commission report the Count de la Guéronnière presented to the Senate along with the proposed bill, one finds many of the arguments of Guizot restated. 20 The two requirements supporting any criminal penalty must be justice and utility. The justice of severely penalizing attacks made against the life of the Head of State or against the Government can hardly be questioned, since the bond between government and society is so tight that it is impossible to attack one without attacking the other. "The distinctions of certain publicists between society which is immutable and government which is changeable, has never been admitted by true legislators." On the other hand the report concedes that, if the element of social peril is all the more considerable in the case of political crimes than in private crimes, the elements of immorality and perversity cannot be found in the former to the same degree that they exist in the latter. But here is exactly where assassination attempts differ from insurrections, according to the Count de la Guéronnière. The former are against the unchangeable mores of the society since they are murders or attempted murders, and irreparable penalties, such as the death penalty, are legitimate only for crimes which do not change with time and circumstance. Also, on the grounds of utility, there is a basis for making a distinction between assassination and insurrection. The fear of the death penalty holds terrors for the assassin contemplating his act that are lacking in the case of the insurgent. How many revolutions, the Count asks, have been deterred in the preceding sixty years by threat of the death penalty? Most of these arguments are only subtle restatements of Guizot's position stated thirty years before in De la Peine de mort en matière politique, and, in fact, Guizot is liberally quoted in the report. Thus, the liberal spirit still lives in the words and thoughts of government officials, even during the most authoritarian phase of one of France's most authoritarian regimes. The law of 10 June 1853 did not receive its first application until 1858. On the whole, the intervening years were peaceful and prosperous ones for France and were not marked by the bitter political conflict and civil disorders which had characterized earlier regimes. 21 Thus, the legal and extralegal repression of 2 "This commission report appears in the footnotes to the report of the law. See Sirey, L.A., III ( 1853):75—78. 2 ' S e e Thompson, Louis Napoleon, p. 166. A study done for the National Commission on the Causes and Prevention of Violence on patterns of collective violence in Europe and America (Charles Tilly, "Collective Violence in European Perspective" in Violence in America: Historical and Comparative Perspectives, eds. Hugh Davis Graham and Ted Robert Gurr [New York: Bantam Books, 1969], pp. 4 - 4 5 , at p. 29) indicates that the number of disturbances fell to approximately

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Louis-Napoleon's regime did not have the effect of exacerbating the political divisions that still lay beneath the surface of French society. On 14 January 1858, however, an assassination attempt was made on Louis-Napoleon's life by Felice Orsini, an Italian revolutionary of noble lineage who was protesting the French government's failure to render aid and assistance to the Italian independence and unification movement. 2 2 The first result of this affair was predictable. On 27 February 1858, a law of general safety was enacted, creating and punishing new crimes, like the Revolutionary Law of Suspects. 23 The government made the law needlessly unpopular by applying it to all the departments of France, in each of which the prefect of police was set a quota of victims to be arrested. 24 This law also provided that persons convicted of any one of the offenses enumerated by the law could be interned in one of the departments of the Empire or in Algeria, or expelled from French territory. It further provided that any of the persons convicted or interned, expelled or transported as a measure of general safety in one of the previous insurrectionary attempts could receive the same treatment if he indicated by his acts that he was dangerous to the public safety. 2 5 This law was to continue until 31 March 1865 unless renewed. The second result of the Orsini affair was less predictable. It had the effect of modifying Louis's Italian policy in the direction Orsini desired—assisting the Italians to drive out the Austrians from the northern part of Italy. This led Louis-Napoleon into a contradictory policy with regard to the Papal States, thereby alienating France's large clerical party, which he himself had built up and which was one of the main supporters of his regime. His free trade policy alienated much of his support from French industrialists. 26 As the decade ended Louis was forced to draw closer to the working masses and the republicans and to liberalize his regime. Thus began the Empire's time of troubles and its decline as an authoritarian regime. one-third the level of the preceding two decades (114 for 1850-1860 as compared with 259 for 1830-1839 and 292 for 1840-1849) and that the persons participating in such disturbances dropped to almost one-fifth the number involved in the preceding decade (106,000 as compared with 511,000). Compare Cesare Lombroso and Rudolfo Laschi, Le Crime politique et les révolutions, trans. A. Bouchard, 2 vols. (Paris: Felix Alcan, 1892), 1:248, which indicates that even political prosecutions dropped off precipitously during this period. This latter study, however, does not take into account the administrative proceedings which quietly and efficiently eliminated opposition to the regime under extraordinary powers. 22 See account in Thompson, Louis Napoleon, pp. 176-180. Orsini was executed for this crime, which, involving a bomb, killed or wounded over a hundred persons. Nevertheless, Orsini became one of the heroes of the Romantic Age. 23 Law of 27 February 1858; Sirey, Lois annotées (1855-1860), 4th ser. (Paris, 1861) IV (1858):21-24 (hereafter cited as "Sirey, L.A., I V " followed by the specific year and page reference) . 24 Thompson, Louis Napoleon, p. 177. " S e e articles 5, 6, and 7. 26 See Maurois, History of France, p. 431.

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Decade

Signs of relaxation in the machinery of repression may be found even before the 1860s. On 16 August 1859 a full and complete amnesty was accorded to all persons convicted of political crimes or who had been the object of measures of general safety. On the same date an amnesty was extended to all journals prosecuted for press crimes and to those that had been suppressed by administrative order. 2 7 On 19 December 1860 another amnesty was granted for all misdemeanors and contraventions in matters involving the periodical press, all prosecutions were discontinued, and all notifications given to suspend publication were recalled. 28 Besides these amnesties, laws were passed during the 1860s liberalizing to some extent the restrictive press laws. The law of 2 July 1861 29 abrogated article 32 of the law of 17 February 1852 30 insofar as it concerned the full suppression of any journal convicted twice for misdemeanors and contraventions or of which the manager had been convicted of such offenses. It also provided that the two administrative notices (avertissements) given according to the third paragraph of article 32 would lapse two years after the date given. Also greater freedom from taxation was provided for journals which reported legislative debates. These were small concessions, it is true, but small concessions in authoritarian regimes are doubly significant. Not only the liberals but also the monarchist and clerical parties of the right extracted these concessions since they, too, were now in opposition to government policies and clamored for increased freedom of opinion and expression. The law of 11 May 1868, toward the end of the decade, opened the door considerably wider. 3 1 It abolished the government's prior authorization as a prerequisite to publish matters of political and social-economic interest for anyone enjoying his civil or political rights as a French citizen (which, of course, left out many former enemies of the regime). It required filing a declaration of the name of the journal, ownership, managership, and the printer with the prefect of police. It permitted permanent suppression of the journal only in the case of press felonies and reduced the period of temporary suspensions in the case of misdemeanors and contraventions. It also abolished articles 1 and 32 of 27

Sirey, L.A., IV (1859):88-89. Ibid., IV ( 1860): 118. For similar amnesties toward the end of Louis-Napoleon's reign, see decree of 14 August 1869; Sirey, Lois annotées (1866-1870), 6th ser. (Paris, 1876), V (1869):420 (hereafter cited as "Sirey, L A., V I " followed by the year and page reference). "Sirey, Lois annotées (1861-1865), 5th ser. (Paris, 1871) V (1861):91 (hereafter cited as "Sirey, L.A., V " followed by the year and page reference; this pattern will continue for all remaining volumes of the series). 30 As to article 32 of the law of 17 February 1852, see pp. 171-172 and fn. 14, this chapter. 31 Sirey, L.A., VI, (1868):288-304. 28

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the law of 17 February 1852, and provided that suspension called for by another article of the law could be pronounced only by judicial authority. A law of 6 June 1868 on meetings relaxed the prior restrictions of the law on the holding of public meetings which were nonpolitical (no prior authorization of the government being required under the conditions prescribed in the law) and for certain public electoral meetings. 32 The law did not cover, however, meetings dealing with political or religious matters, for which prior authorization was still required. A law of 20 May 1863 on "flagrant misdemeanors," 3 3 which simplified procedure before the correctional courts when the misdemeanant was apprehended in flagrante delicto, is particularly interesting because it specifically excepts from the law's provisions press offenses, political offenses, and matters whose procedure is regulated by a special law. 34 This provision expresses a renewed sensitivity to the matter of political crimes and their special treatment. The official explaining the reasons for this exception to the Legislature stated, "It was not desired that anyone should suspect in this new procedure a weapon placed at the disposition of the government against the political opinions it must combat." 3 5 These small concessions to the revived liberalism of the decade were never enough to stop the slow and steady decay of the regime's power as it lost support among the classes on whom it depended. In the 1869 elections the government candidates eked out a bare majority of the votes cast. 36 The final collapse of the regime, however, came not so much from internal decay or dissension as it did from Napoleon Ill's disatrous foreign policy, especially with regard to the North German Federation, presided over by the astute Bismark. Artfully egged on into a war for which France was militarily unprepared, Louis-Napoleon suffered total defeat at Sedan in 1870, was himself captured, and, in the power vacuum which his sudden removal created, was removed by a simple act of the Legislature.

The Third Republic until the First World War (1870-1914) The Restoration of Democracy and Liberalism With the downfall of the Bonapartist regime, a provisional Government of National Defense was established, controlled by moderate liberal and radical republican elements of the Legislature. This group quickly set about canceling 32

Ibid., VI (1868):310—318. Ibid., V (1863):68—72. 34 Article 7 of said law. 35 See the expose des motifs in the notes in Sirey, L.A., V (1863):69. 3$ The government received 4,500,000 votes to the opposition's 4,300,000. 33

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many of the more repressive laws of the former regime and reestablishing laws in the mold that had been fashioned during the first years of the Second Republic. For instance, by the decrees of 5 September and 10 October 1870, the Provisional Government abolished the stamp tax and security required of journals and other publications. 37 On 4 September 1870 it declared an amnesty for all persons convicted or detained for political felonies and misdemeanors and misdemeanors of the press since 3 December 1851. 3 8 On 24 October 1870 it abrogated the decree of 8 December 1851 concerning persons placed under the surveillance of the state police and members of secret societies, and also abolished the law of 27 February 1858 on measures of general safety. 3 9 On 27 October 1870 it restored to jury courts jurisdiction over all political offenses and press misdemeanors (with the exception of private defamation). 40 A later law 4 1 was to clarify the division of jurisdiction between the assize courts and correctional tribunals with respect to press crimes, but was to retain the simplified procedure of direct citation in the assize courts that had been established in the law of 27 July 1849. 42 Already, as a government circular accompanying this law indicates, the provisional government was under attack by revolutionaries. 43 This was just prior to the days of the Paris Commune (MarchJune 1871). The Suppression

of the Paris

Commune

The provisional Government of National Defense had attempted to repeat the miracle of 1792, unite the French people in a concerted effort to remove the German invaders, and snatch victory from the jaws of defeat. In this effort they failed, and thus lost control of the government to the moderates and monarchists (led by Adolphe Thiers, a former minister in the government of LouisPhilippe), who were able to make an armistice and a treaty with the Germans. " S i r e y , L.A., VI (1870):514, 521. 38 Ibid., p. 513. " I b i d . , p. 522. As to law of 8 December 1851, see fn. 6 this chapter; as to the law of 27 February 1858, see p. 174 and fn. 23, this chapter. " S i r e y , L.A., VII ( 1870): 12. It will be recalled that jurisdiction of the assize court over all political and press misdemeanors had been withdrawn by the law of 25 February 1852 (see p. 172). It is not clear how long the law of 27 October 1870 was in effect. Later legislation unequivocally restored to the jurisdiction of the assize court competence over misdemeanors of the press. However, two authorities question whether political misdemeanors (other than political press misdemeanors) were ever returned to the jurisdiction of the assize court after the abolition of the law of 8 October 1830 by the law of 25 February 1852. See René Garraud, Traité théorique et pratique du droit pénal français, 3rd ed., 2 vols. (Paris: Recueil Sirey, 1913), 1:264; Marc Ancel, " L e Crime politique et le droit pénal du XXe siècle," 2 Revue d'Histoire Politique et Constitutionelle 87-104 (January-March 1938), p. 90. 4 ' L a w of 15 April 1871; Sirey, L.A., VII (1871):34. " A s to the law of 27 July 1849, see Chapter 7, p. 137 and fn. 73. "Circular dated 23 April 1871; see Sirey, L.A., VII (1871):37.

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The radicals and socialists in Paris, however, would have nothing to do with the treaty or the National Assembly, which was now filled (by election) with monarchists from the provinces. On 18 March 1871, revolution broke out in Paris, and the Paris Commune was established. The Paris Commune refused to recognize the national provisional government at Versailles, and avenged the government's executions by conducting its own. Thiers held back for two months while he built up his military strength and then attacked the capital. In the ensuing bloodbath there were approximately 17,000 Communard deaths, plus arrests and transportations without number. 4 4 This crushing suppression of revolt must have burned itself into the memories of Parisians; they were not to have a major disturbance for over sixty years. 4 5 The Press Law of 1881

Notwithstanding the suppression of the Commune, and perhaps because of it, the liberalizing trend continued. 46 By 1878 the republicans had control of both the Senate and the Chamber of Deputies. 47 In 1878, 1879, and 1880 there were a series of amnesties accorded to persons convicted of misdemeanors and contraventions committed by means of publication and to persons convicted of having taken part in the insurrectionary events of 1870 and 1871. 4 8 In 1881 the press laws were completely revised and collected into one law which allowed the press the greatest liberty it had enjoyed in France up till that time. 49 The Press Law of 1881 declared that every journal or periodical publication could be published without prior government authorization or deposit of security upon the simple filing of a declaration stating the name of the journal, name and domicile of the printer, and certain other basic information and upon a deposit of two exemplary copies of each publication with the Minister of the Interior and prefecture of the main city or town of the department or district. 50 It also punished only those provocations to commit felonies and misdemeanors " M a u r o i s , History of France, p. 464. A subsequent law, the law of 23 March 1872 (Sirey, L.A., VII [1872]: 196) establishes two new places—two islands in New Caledonia—for transportation to a fortified enclosure and for simple transportation. Also see an administrative regulation describing the regime of policing and surveillance of transportées in a fortified enclosure dated 31 May 1872; ibid., VII (1872): 196. 45 The next uprising in Paris of any significance occurred on 6 February 1934 in connection with the Stavisky affaire. " S e e , for instance, the law of 12 February 1872 (Sirey, L.A., VII [1872]: 170), which abolished that part of the decree of 17 February 1852 prohibiting the reporting of trials for press offenses. There was one enactment, however, in the other direction (that is, in restricting freedom of press on political matters): see law of 29 December 1875; ibid., VIII (1875):89-91. •"Maurois, History of France, p. 474. 48 S e e law of 2 April 1878 (Sirey, L.A., VIII [1878]:324); law of 3 March 1879 (ibid., VIII [1879]:439); law of 11 July 1880 (ibid., VIII [1880]:638). 49 Law of 29 July 1881; ibid., IX (1882):201-228. 50 Art. 1 - 5 , 7.

France (1851-1914)

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which were "direct" and which were followed by the commission of a crime or the attempt to commit a crime. Excepted from this provision were provocations to commit murder, arson, pillage, or one of the crimes against the State (articles 75-101, Code Penal), seditious cries or songs made in a public place or meeting, attempts to turn military troops from their duty, any offense given to the President of the Republic, publication of false news in bad faith when it disturbs the public peace, and outrages committed against public morals (obscenity), in which cases the provocation did not have to be followed by any criminal act. 51 Finally, it attributed practically all felonies and misdemeanors under the act which could have any political significance to the competence of the assize court and its jury. 5 2 Other Laws

On 27 May 1885 a law 5 3 was enacted consigning to perpetual internment in French possessions and colonies certain recidivists and abolishing the practice of surveillance by the state police. 54 But this law specifically excluded from its provisions all persons convicted of political felonies or misdemeanors or felonies or misdemeanors connected with them.55 In March 1891 a law was passed on the granting and revocation of probation (sursis), which provided by implication (since it was limited by its terms to common offenses) that a conviction for a political crime would not entail the revocation of probation previously granted nor preclude the granting of probation in a later sentence. 56 By a series of laws, beginning with the law of 30 June 1881 and ending with the law of 28 March 1907, articles 291 to 294 of the penal code relating to illegal associations and meetings were repealed, and all requirements as to prior authorizations and declarations of purpose, time, and place of meeting were abolished. 57 51

Art. 2 3 - 2 8 . Art. 45. 53 Law of 27 May 1885; Sirey, L.A., IX (1885):819-837. This law introduces a new term (la relegation), which refers to the transportation and internment of certain common criminals in French colonies and possessions abroad. The law reflects the great growth of petty crime and petty criminals in France (there was a corresponding decline of serious crime) and the increasing awareness of the problem of repeating offenders. Repeaters were becoming a nuisance and a burden to the French penal system. France was following Britain's example in the late eighteenth and early nineteenth centuries of populating some of its overseas possessions with convicts. 54 Surveillance by the state police was replaced with exclusion of the convict from certain places determined in advance of his parole or probation by the government. See article 19. 55 See article 3. 56 See law of 26 March 1891; Sirey, L.A., XI (1891): pp. 122-128. " L a w of 30 June 1881; ibid., IX [ 1881]: 153-159. Law of 1 July 1901; ibid., I (New Series, 1902):241-285. Law of 9 December 1905; ibid., II (N.S., 1906): 182-258. Law of 28 March 1907; ibid., II (N.S., 1907):333-335. 52

COMPARATIVE

Countertrends:

ANALYSIS

OF

LAWS

/

180

Laws against Espionage and Anarchist

Terrorism

However, at the same time there was a steady liberalizing trend prior to World War I in the penal legislation dealing with political crime, there were also certain countertrends evident in particular areas. For instance, in the law of 18 April 1886, which expanded on existing legislation dealing with espionage, one notes an increasing concern about the external security of the State and an increasing hostility to this form of political crime which is not evident in the law prior to France's defeat by Germany in 1870. 58 The other major countertrend may be observed in the legislation dealing with the anarchists and their acts of terrorism and assassination. These acts, rather indiscriminate in their selection of victims and whose purpose or motivation was not always easily understandable but seemed to be directed toward the destruction of all organized forms of government, evoked little sympathy from either the government or its major political opponents. 59 Therefore, the crimes of the anarchists are excepted from the category called "political offenses" and denied the benefits that accrued by reason of that definition. 60 Beginning in the early 1890s France was perplexed by a rash of bombings, assassinations, and assassination attempts which gave rise to legislation that became known as the lois scélérates (villainous laws). 6 1 For instance, the law of 12 December 189 3 62 modified certain sections of the press law of 29 July 1881, 63 first, in order to add incendiarism (article 435, Penal Code, offenses) to 58 Ibid., X ( 1886):91 —92. The Dreyfus case at the turn of the century can be cited as one example of this increased concern with espionage. 59 See Ernest A. Vizetelly, The Anarchists (London: John Lane, 1911), pp. 3 - 2 0 . 6D One of these benefits was nonextradition for "political crimes"; since anarchist bombings and assassinations did not qualify, anarchists were extradited. See Pierre A. Papadatos, Le Délit politique: Contribution à l'étude des crimes contre /' état, thèse no. 507 (Geneva: Librairie E. Droz, 1954), pp. 6 7 - 6 9 , 81-85; Robert Ferrari, "Political C r i m e , " 20 Columbia Law Review 3 0 8 - 3 1 6 (1920), at p. 310. Even Lombroso did not have much good to say for them and tended to lump them in with the born-criminals and insane. Cesare Lombroso, Les Anarchistes, trans. M. Hamel and A. Marie (Paris: Ernest Flammarion, 1896), p. 41; see also Louis Proal, Political Crime (New York: Appelton, 1898), pp. 4 9 - 1 0 4 . 61 See Vizetelly, Anarchists, pp. 106-189. On 9 December 1893 an anarchist bomb was thrown into the Chamber of Deputies from the public gallery. This gave rise to the first burst of legislation (laws of 12 and 18 December 1893). On 24 June 1894 President Carnot of France was assassinated by the anarchist Caserio, an incident which produced the law of 28 July 1894. To help the reader appreciate the extent of problem the anarchists presented between 1875 and 1914, there follows a list of the number of assassinations and assassination attempts they carried out. (1) Assassinations: Alexander II of Russia (1881); Sadi Camot, President of France (1894); Canovas del Castillo, Prime Minister of Spain (1897); Empress Elizabeth of Austria (1898); King Humbert I of Savoy (1900); William McKinley, President of the United States (1901). (2) /Ismsi/'nation attempts: William I, German Emperor and King of Prussia (twice in 1878); King Alphonso of Spain (once in 1878 and again in 1905 and 1906); King Humbert I of Savoy (once in 1878 and again in 1897); Alexander III of Russia (3 attempts in 1887); President Faure of France (1897); President Loubet of France (1905); Leopold II of Belgium (1902); Emperor of Japan (1910). 62 Sirey, L.A., XI (1894):649-653. S3 See pp. 178-179 and fn. 49, this chapter. The sections modified were articles 24 (para. 1), 25, and 49.

France (1851-1914)

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the list of offenses for which the anarchist press could be held liable under the provocation provisions of article 24 of that law; second, in order to make the act of justifying or glamorizing such offenses punishable; 64 and, third, in order to permit the seizure and impounding of all newspapers and other publications which provoked the crimes of external treason, murder, pillage, arson, article 435 offenses, and military insubordination and mutiny, but not the seizure of such publications when the crime provoked was an act of internal treason. 65 This law was soon followed by the law of 18 December 1893, which modified articles 265 to 268 of the Penal Code (dealing with criminal associations) in such a way as to better cover anarchist groups (which were small, impermanent groups usually formed for specific criminal undertakings) and to provide rélégation as an alternative penalty. 66 On the same date another law was passed making the fabrication or possession of explosives or explosive substances without authorization or legitimate motives a crime subject to a six-month to five-year prison sentence. 67 Finally, the law of 28 July 1894 again modified the press law of 29 July 1881 in order to extend the provisions of article 24 to all acts of anarchist propaganda, including "propaganda by deed," to refer most press offenses to the correctional tribunals for trial when these offenses had anarchist propaganda as their purpose, and to provide rélégation as an alternative penalty. 68 Thus, one observes in the area of political crimes which involve acts of betrayal of the nation-state and barbarous political acts of murder and incendiarism the first major breaches in the relativistic and benevolent nineteenthcentury attitude toward political crimes. This area of exception will constantly expand in the twentieth century when the alternatives to liberal, democratic government become less palatable to those entrusted with repressing political crime. 64 Thus, returning to a provision of the law of 9 September 1835, which also analogized apologies for crimes to provocations to commit crimes. 65 The law deliberately separates acts of internal treason from other offenses listed in article 24 so that later references to article 24 in the law may exclude these offenses from coverage. Nowhere does the law more clearly indicate the new difference of attitude toward crimes of external treason and anarchist terrorism than in this statute. 66 Sirey, L.A., XI (1894):653-656. 67 Law of 18 December 1893 on explosives; ibid, XI (1894):656. 68 Ibid, XI (1894): 809-823. The use of rélégation in these laws has a double significance: (1) since rélégation is a penalty reserved for common criminals as we have seen from the law of 27 May 1885 (see fn. 53, this chapter), the crime is clearly not viewed as meriting the respectful and favored treatment offered "political offenders"; (2) at the same time the penalty accomplishes essentially the same object as the punishment of transportation in the case of political offenders. It is interesting to note in this regard that, whereas many anarchists and Captain Dreyfus were given long prison sentences for their crimes in the penal colony on Devil's Island in French Guiana, Déroulède, the leader of a right-wing insurrectionary group (the League of Patriots) who attempted to incite General Roget to effect a military coup d'état in 1899, was tried before the assize court for a mere misdemeanor. Polydore Fabréguettes, Traité des délits politiques et des infractions, 2 vols. (Paris: Chevalier-Marescq, 1901), 11:745.

COMPARATIVE

ANALYSIS

OF

LAWS /

182

The French Doctrine of Political Crime at the Close of the Nineteenth Century The concept of the "political o f f e n s e " from the time of its introduction in French law in 1830 had been a concept whose boundaries were only vaguely defined. Some authors have suggested that this was done purposefully in the hope that the beneficent treatment accorded political criminals might expand to include a wider range of acts as the state of civilization advanced. 6 9 However, the actual result was otherwise, and the concept both in domestic penal law and international extradition law contracted so as to exclude, for instance, regicide, external treason against the nation, espionage, and the anarchist crimes. Notwithstanding the difficulties involved, French legal scholars have attempted a definition. Vidal states, Political crimes are those felonies and misdemeanors which violate only the political order of a state, be that order exterior, as in attacking the independence of the nation, the integrity of its territory, the relation of the state to other states; or interior, as in attacking the form of government, the organization and functioning of the political p o w ers and the political rights of citizens. They are distinguished from ordinary violations and from those of the ordinary penal law by the nature of the right violated, by the motives by which the action is impelled and by the end that the authors pursue. 7 0

French law at this time recognized three kinds of political crimes: (1) the " p u r e " political crime, which has the qualities listed in the preceding quotation; (2) the " c o m p l e x " or " m i x e d " political crime, which involves at the same time an attack on the State, either externally or internally, and the invasion of some private interest protected by ordinary penal law, as, for instance, an assassination of the Head of State with the intention of overturning or weakening the government: and (3) the common offense connected with political elements, as, for instance, robbery, murder, or arson committed during an insurrection with the purpose of futhering the insurrection. 7 1 Although it is not perfectly clear, it is probable that in France the first and third categories were recognized as warranting the special treatment afforded political crimes, whereas the second category of offenses was not. 7 2 The difficulty and uncertainty about this question arises from a difference of opinion as to whether the French view of political crime is objective or 69 Papadatos, Délit politique, p. 71, citing the report of Count Siméon to the Chamber of Peers in Moniteur, 11 September 1830. " G e o r g e s Vidal, Cours de droit criminel et de science penitentiare, 5th ed. (Paris: Rousseau, 1916), p. 110, quoted and translated in Ferrari, "Political Crime," pp. 309-310. " R e n é Garraud, Précis de droit criminel, l l t h ed. (Paris: L. Larose et L. Temin, 1912), pp. 86 ff., quoted in Robert Ferrari, "Political Crime and Criminal Evidence," 3 Minnesota Law Review 365-380 (1919), p. 367. "Papadatos, Délit politique, p. 79; Garraud, Traité théorique, pp. 272-274.

France (1851-1914) / 183 subjective.73 A n objective theory of political crime looks to the character of the a c t i t s e l f a n d its c o n s e q u e n c e s ; a s u b j e c t i v e t h e o r y l o o k s t o t h e i n t e n t , p u r p o s e , or m o t i v e of the actor. U n d e r the latter v i e w any c o m m o n c r i m e could

become

" p o l i t i c a l " if it w e r e m o t i v a t e d b y p o l i t i c a l c o n s i d e r a t i o n s o r h a d a p o l i t i c a l o b j e c t i v e , a n d all o f t h e c a t e g o r i e s o f p o l i t i c a l a c t s j u s t l i s t e d w o u l d h a v e t o b e i n c l u d e d . I t is d o u b t f u l w h e t h e r t h e c r i m i n a l l a w o f a n y E u r o p e a n s t a t e e n t i r e l y o b j e c t i v e o r s u b j e c t i v e in its o u t l o o k t o w a r d p o l i t i c a l c r i m e .

was

Certainly

French law w a s not. Robert Ferrari, quences that

flowed

w r i t i n g in

1919, reviewed

some of the practical

f r o m the definition of the crime as

conse-

"political":

T h e c o n s e q u e n c e s that flow from political crime are concerned with the penalty, with the treatment o f the o f f e n d e r in prison, with the procedure in court. T h e death penalty cannot be imposed; certain forms o f imprisonment are not permitted; certain others are definitely prescribed. There is no incapacity after conviction to serve in the army; there can be, for another e x a m p l e , no temporary suspension or dismissal from the medical profession.

Political amnesties are g i v e n and are frequent and normal. The

prison

privileges are extensive; political prisoners are not c o m p e l l e d to work; they d o not wear the prison garb; they are kept in places separate from those where offenders of the ordinary penal law are kept; and may have their f o o d brought in from the outside. Extradition is not a l l o w e d . . . .

All f e l o n i e s g o to the court with a jury, in w h i c h the

jury is the j u d g e of the law and the facts. M o s t misdemeanors also go to the same court.74 T h i s s t a t e m e n t m u s t b e t a k e n w i t h a g r a i n o f s a l t ; t h i s i s t h e w a y it w a s s u p p o s e d t o b e . M y h i s t o r i c a l a n a l y s i s h a s a l r e a d y i n d i c a t e d t h a t it c a n n o t

be

s a i d t o d e s c r i b e t h e s i t u a t i o n a s it a c t u a l l y e x i s t e d i n F r a n c e d u r i n g m o s t o f t h e nineteenth century.

T h e condition of the political criminal w a s better

under

some regimes than under others. His treatment also m a y have varied according t o h i s w e a l t h a n d p o s i t i o n o r t h e n o t o r i e t y o f t h e c a s e ; it c e r t a i n l y v a r i e d a c c o r d 73 Papadatos (Délit politique, pp. 7 3 - 7 4 ) seems to feel that French law is subjective because it emphasizes the intent or the purpose of the act. Ferrari ("Political Crime and Criminal Evidence," p. 368), following René Garraud, seems to feel that it is objective. " F e r r a r i , "Political Crime and Criminal Evidence," pp. 3 6 8 - 3 6 9 . Other consequences of the label "political o f f e n s e " or "political offender" not mentioned by Ferrari, but which have been alluded to in my review of the laws, were (1) the penalty of rélégation could not be imposed for a political crime (ait. 3, law of 27 May 1885); (2) the foreshortened procedures provided for "flagrant misdemeanors" could not be applied in the case of political misdemeanors (art. 7, law of 20 May 1863); (3) a prior conviction for a political crime would not bar probation (sursis) in the case of a subsequent offense, nor would a subsequent political crime result in the revocation of a probation previously granted (art. 1, § 4, law of 26 March 1891); (4) surveillance by the state police, and the interdiction of residence in certain areas which replaced it, was a normal complementary penal measure in the case of political offenses (art. 49, Penal Code). It is also interesting to note that whereas no special place of imprisonment or special prison regime was provided in the penal code for political misdemeanants, nevertheless they received the same favorable special treatment reserved for political felons as a matter of administrative practice. See decree of 4 January 1890. See also Garraud, Traité théorique, p. 263 and especially fn. 9.

COMPARATIVE

ANALYSIS

OF

LAWS

/

184

ing to the state of public sentiment concerning the nature of his crimes. Also, many—indeed thousands—of political criminals were transported beyond the territorial boundaries of France during periods of crisis with little or no trial at all. How they were treated at the place of their confinement may have varied tremendously depending on whether they were transported to Algeria or to the malaria-infested islands of French Guiana. But, on the whole, it must be conceded that nineteenth-century French governments maintained, in the face of extraordinary internal conflict, a curiously chivalric stance with regard to their sworn enemies—an attitude which markedly contrasts with the disposition shown these offenders in the preceding century and in the succeeding one.

CHAPTER

Germany

1 1

(1851-1914)

After 1848 the situation in the German states returned roughly to the condition which had existed prior to that revolutionary year. If there was any change, it was that Prussia, which now had a new King (William I), was slowly replacing Austria as the most influential state in the German confederation. Prussia's new rulers, unlike their predecessors, were in favor of unification, provided it was unification under the aegis of the Prussian monarch. In 1866 Bismarck, William's iron-willed chancellor, engineered a war with Austria, which led to the latter's defeat within six weeks. In this war Prussia annexed Hanover, Hesse-Cassel, Schleswig, Holstein, Nassau, and Frankfurt, and obtained the right to organize north Germany into a new Confederation from which Austria would be excluded. In 1870, after the defeat of France in the Franco-Prussian War, Prussia formed the North German Confederation, which Oldenburg, the Mecklenburgs, Hamburg, Lübeck, Bremen, Lippe Detmold, Brunswick, Waldeck, Anhalt, Hesse-Darmstadt, the Thüringen states, Saxony, Bavaria, Württemburg, Baden, the Bavarian Palatinate, and the annexed French provinces of Alsace and Lorraine joined, thus forming the union which in 1871 became the Imperial German Reich. The Nature of the System Established by Bismarck The nature of the State which Bismarck created out of the disunited German states of the Confederation and their non-German possessions was autocratic, federal, and bureaucratic, with democratic trappings. It was presided over, nominally, by the King of Prussia (the Kaiser), but actually by his Chan-

COMPARATIVE

ANALYSIS

OF

LAWS /

186

cellor, who until 1890 was Bismarck. Although a certain amount of local control was left to the state governments, which continued to be ruled by their Princes (Kings, Dukes, and so on), Prussia actually dominated the new " E m pire." She had an absolute veto in the new Federal Council (Bundesrat) over any constitutional change, and her influence over the smaller states was such that no measure to which the Prussian government objected had the slightest chance of becoming law. The State was "autocratic" in the sense that the Constitution of 1871 makes it clear that sovereign power does not come from the German people; it is granted from the rulers of the several states to the central government. On the other hand, the new State was a constitutional system (Rechtsstaat), in which legal authority was carefully parceled out and subject to the rule of law. According to Weberian analysis (which is very good for Germany), this naturally leads to the proliferation of bureaucracy and did so in this case. 1 The State had "democratic trappings" in that universal manhood suffrage was soon granted and there was a popularly elected parliament (the Reichstag). The Reichstag represented a diversity of political opinion, including that of the Marxist Social Democrats. 2 But, although the Reichstag debated and legislated to a certain degree, it did not exercise real power. The following passage from Passant sums up the situation: The popularly elected Reichstag had formally wide powers of legislation and budget control. But the active head of the government, the Imperial Chancellor, w a s not responsible to it, but to the Kaiser, and, as Minister-President of Prussia and President of the Federal Council, spoke to it with a voice of impressive authority. Divided from the first into many parties, with no clear and united majority ever likely to emerge in time of peace, the Reichstag w a s powerless to control policy, although it could to s o m e degree influence it, and has been justly described as no more than " a democratic plaster" applied to the iron structure of Prusso-Imperial government. 3 ' M a x Weber, The Theory of Social and Economic Organization, trans. A. M. Henderson and Talcott Parsons (New York: Oxford University Press, 1950), pp. 329-341; see also From Max Weber: Essays in Sociology, trans. H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946), pp. 196-244. 2 The make-up of the Reichstag of the North German Confederation at this time was as follows: Conservative Party (64 members); Free Conservative Party (34); Old Liberal Party (28); National Liberal Party (78); German Progress Party (29); the Federal Constitutional Alliance (21); Poles (11); Danes (1); German People's Party (4); Social Democratic Party (3); unaffiliated (26). Even the fledgling German socialist (Marxist) party, the Social Democratic Party, was represented—by August Bebel and Wilhelm Liebknecht. (Bebel and Liebknecht were later to be tried for treason and sentenced to prison terms for their opposition to the Franco-Prussian War and the annexation of Alsace-Lorraine, but they took part in these discussions.) Many of the liberal members of the Reichstag were also "revolutionaries" of the past or at least active proponents of unification in the days when it was politically dangerous to espouse that cause. Therefore, the sympathies of the Reichstag were decidedly in the corner of the political criminal, since many had been through the mill themselves. 3 E . J. Passant, A Short History of Germany, 1815-1945 (Cambridge: At the University Press, 1959), p. 86.

Germany (1851-1914)

/ 187

But if the Reichstag could not make policy, at least it could act as a drag on some of the more high-handed and oppressive measures that the Chancellor took against political opponents and other persons he deemed dangerous to the preservation of the status quo. This it did on many occasions. As a result, Bismarck's attempts to eliminate the Catholic Church as a political force in Germany (his Kulturkampf) and his attempt to destroy the Social Democrats proved to be almost complete failures. The residue of these efforts, as described by Kirchheimer in his book Political Justice, was a kind of pettifogging legal and bureaucratic harassment which succeeded only in fanning the flames of resistance and instilling a considerable amount of public, and even at times official, sympathy for the objects of persecution. 4 Political opponents of the regime profited by it immensely, but at the same time the increasing prosperity of Germany had the effect of turning them into cautious supporters, or, at least, into a loyal opposition. 5 As a consequence, special legislation enacted to curb political activities dangerous to the conservative order fell by the wayside, and the penal laws retained their benign flavor until the outbreak of the First World War.

The German Penal Code of 15 May 1871 It is, of course, impossible to discuss in any detail all the provisions of the 1871 Code which bear on the problem of political crime. Like all European codes it is one which recognizes the problem of crimes against the State as a special category of offenses which, as in the French penal code, are collected almost entirely in the first seven chapters of the special part dealing with particular felonies and misdemeanors and their punishments. 6 Before discussing some particular provisions which will figure in my later description of its actual use as to tool of political repression, I want to make several general points in comparing it with French law on political crime as it was at about the same time in history. The first thing that strikes anyone viewing the code externally as a document is the relative leniency of its punishments for political crimes. There is only one political crime—that having to do with the murder or attempted murder of the Kaiser or of the reigning Prince of the state or residence of the 4 Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton: Princeton University Press, 1961), pp. 128-132. 5 The change of the Social Democratic Party from a revolutionary Marxist party into an evolutionary legal opposition party is described in Evelyn Anderson, Hammer and Anvil: The Story of the German Working-Class Movement (London: Stevens and Sons, 1945), chap. 1; and see Peter Gay, The Dilemma of Democratic Socialism (New York: Columbia University Press, 1952), especially pp. 121-130. 8 I am excluding coinage offenses (counterfeiting) from the category of "political offenses," since by the nineteenth century they are no longer regarded as acts of usurpation.

COMPARATIVE

ANALYSIS

OF

LAWS /

188

offender 7 — which is punished with the death penalty. The imprisonment penalties are, on the whole, of shorter duration than in the French Code. Transportation and banishment are nowhere provided for. Confinement in a fortress (Festungshaft)

is provided for more crimes of a political nature than detention

was

in France, although there is a tendency, also manifested at a later date in French legislation, toward excluding its use in the case of attempts on the life of the Head of State and external treason against the nation. 8 Periods of incarceration are shorter in the case of Festungshaft,

too. Also, there is a tendency, noted in

article 20 of the Code, 9 for the courts to place more emphasis on the motives and state of mind of the offender than was evident in French penal law. 1 0 Where the motive was not dishonorable, Festungshaft punishment instead of Zuchthaus.

was to be applied as the

Political trials against socialists conducted in

'Article 80 of the Penal Code, which reads as follows: " T h e murder or attempted murder by a person of the Kaiser, of his reigning Prince or during his residence in a Federal State of the reigning Prince of such State, shall be punishable as High Treason with death." 8 Festungshaft was provided as an alternative penalty to Zuchthaus in the following crimes against the state: §§ 81, 83, 84, 85, 86, 88, 89, 94, 96, 98, 100, 105, 106. It was provided as an alternative penalty to Gefängnis in the following cases: §§ 95, 97, 99, 101, 103, 104, 107. It was provided as the sole penalty in the case of article 102 (treasonable acts committed against foreign states and reigning foreign princes). In addition, in many of the foregoing provisions it is the sole penalty provided if "extenuating circumstances" are found to exist. In only one case of high treason (§§ 80—murder or attempted murder of the Sovereign), three serious cases of treason against the country (Landesverrat, §§ 87, 90, 92), and one case of rioting to resist or coerce officials (§ 115, para. 2) does it not appear as an alternative penalty. In these cases confinement in a penitentiary is the sole penalty provided. As to Festungshaft, article 17 of the 1871 Code provides (1) "Confinement in a fortress [Festungshaft] is for life or for a t e r m . " (2) " T h e maximum term of Festungshaft is fifteen years, the minimum one d a y . " (3) "Unless the Festungshaft is expressly declared by law to be for life, it is for a t e r m . " (4) " T h e punishment of Festungshaft consists in the deprivation of liberty, with control of the employment and mode of life of the prisoner; it is to be carried out in a fortress or other premises set apart therefor." Loss of civic rights cannot be imposed in connection with this form of punishment. See §§ 3 1 - 3 7 of the Penal Code of 1871. 'Article 20 provided, " W h e r e the statute allows a choice between confinement in a penitentiary [Zuchthaus] and confinement in a fortress [Festungshaft], confinement in a penitentiary may not be imposed unless it is established that the offense has arisen as a result of a dishonorable frame of m i n d . " In other words, the rule in political cases (where it is assumed that a dishonorable frame of mind does not exist) was confinement in a fortress; the exception (where dishonorable motives could be shown) was confinement in a penitentiary or in a jail, with its consequent loss of rights, honors, and privileges. Without the adoption of this article it is unlikely that the Draft of the Penal Code would have been adopted by the Reichstag, since the liberal and radical parties were adamant that there be some provision in the code for the lenient punishment of political offenders. See Christian Baltzer, Die geschichtlichen Grundtagen der privilegierten Behandlung politischer Straftäter im Reichsstrafgesetzbuch von 1871 (Bonn: Ludwig Röhrscheid Verlag, 1966), pp. 161-176. 10 Rolin criticizes the German legal doctrine on political crime as being too subjective, and thus too inclusive, because of this emphasis on motive. He notes, however, that German jurisprudence makes the limiting distinction between "social offenses" (those that attack the whole basis of the social order of society) and "political offenses" (those that merely attack the transitory political order of the State) that was becoming so common in jurisprudential writings toward the end of the nineteenth century. See Albéric Rolin, " L e s Infractions politiques," Revue de Droit Internationale et de Législation Comparé, 15:417-436 (1883); 16:147-166, 2 5 4 - 2 8 2 (1884), at pp. 157-158.

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the 1870s indicate its frequent use by the courts, thus demonstrating the general understanding that political crimes usually did not reflect a dishonorable state of mind. 1 1 Second, there is not in the German Penal Code of 1871 that great extension of the ambit of anticipatory crimes, attempt, and conspiracy that is generally found in laws dealing with political crime such as the French Code and early nineteenth-century German codes. Conspiracy, or the offense of an agreement among several persons to carry out a crime, is found rarely in the Code, and only once in the section dealing with the crimes of high treason and treason against the country. 12 It is also in this case punished less severely than in the French Code. 1 3 The German concept of "undertaking" (Unternehmen) takes the place of the French attentat. It is more narrowly defined than the French attentat, however, in that it requires an act "directly tending to carry out the intention," 1 4 whereas under French law at this time (art. 88), attentat covered both the completed act and the attempt, an equation of the two acts which did not become statutory law in Germany until 1934 under the Nazis. 1 5 As if to underscore the fact that an "undertaking" to commit treason does not include mere preparatory acts remote from the actual execution of the crime, the Code makes preparatory acts leading to a treasonable undertaking a separate crime punishable with confinement in a penitentiary or a fortress for a maximum of three years. 1 6 Otherwise (that is, other than in §§80, 81, and 86), simple attempt (Versuch) in the realm of political crime is treated with lighter punishment than the completed act. 1 7 Third, the German Code lays a stress on crimes of lèse-majesté

and out-

" S e e August Bebel, My Life (London: Fisher Unwin, 1912), pp. 247, 255, 297, 312. In addressing the Berlin District Court in his 1877 trial for libel against Bismarck, Bebel said (p.321), " A political offender should not be put on a level with a common felon. A political offender, even if recidivist [Bebel previously had been convicted for high treason in 1872], acts from motives of idealism, and merits not severer punishment, but rather approbation, because he acts from conviction" [emphasis added]. The court must have agreed, because it dismissed the indictment under article 131 (bringing public authority into contempt through false and malicious statements) and sentenced Bebel to six months' imprisonment for personal libel against Bismarck. 12 See article 83. As for a later conspiracy section dealing with breaches of the public peace, see article 125. 13 Under article 89 of the French Penal Code, as it was in 1871, complot could be punished with transportation if the conspiracy was followed by a preparatory act, by détention from five to twenty years if not. 14 See article 82. 15 See article 87 of the law of 24 April 1934; Reichsgesetzblatt (hereafter cited RGB1.) (1934) 1:341, which reads, "Undertaking, within the meaning of the Criminal Code, embraces both completion and attempt." Kirchheimer states that this extension of the concept of "undertaking" first took place by judicial decision under the Weimar Republic in cases dealing with Communist antigovernment undertakings. Kirchheimer, Political Justice, p. 40. 16 See article 86(1). " F o r the rules applying to attempts generally, see articles 4 3 - 4 6 .

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rage to symbols of state authority that is not found in the French Penal Code of 1810. 18 Articles 95 and 97 punish with Gefängnis or Festungshaft imprisonment, up to five years in the most serious cases, insult to the Kaiser, his reigning Prince, or to the reigning Prince of a federal state during the offender's residence there, and to certain members of their households. Articles 99 and 101 punish with lesser Gefängnis or Festungshaft prison terms the act of insulting the Prince of a federal state or his Regent to the extent not already covered in the preceding sections. Article 131 punishes with Gefängnis imprisonment not exceeding two years or five "anyone who publicly affirms or disseminates fictitious or misrepresented facts, knowing that they are fictitious or misrepresented, in order thereby to bring State measures and orders of the authorities into contempt": and Article 135 punishes equally "anyone who maliciously removes, destroys, or damages a public token of the authority of the Government or of a Federal Prince or a symbol of the power of a federal state." These provisions were extensively used during the period under discussion, particularly against the socialists who did not accord the Kaiser or his ministers (principally Bismarck) their due respect. 19 Their use and abuse finally led to an amendment of articles 95, 97, 99, and 101 in 1908. 20 This amendment provided that these crimes were punishable only when committed maliciously, deliberately, and with intent to dishonor; it provided for the reduction of Gefängnis or Festungshaft imprisonment to one week in the case of extenuating circumstances, and it placed a six-month statute of limitations on prosecutions. It may seem an anachronism for a modern state, no longer ruled over by a monarch invested with divine authority, to go to such lengths to protect the dignity and reputation of the Head of State and his principal ministers. The reason does not lie entirely in the abnormal sensitivity of politicians to adverse criticism or in the cultural fetish that Germans once made out of the principle of 18 Unless one counts articles 2 2 2 - 2 3 3 of the French Penal Code entitled "Contemptuous and Violent Acts against Persons Representing and Exercising Public Authority and Force" as performing this function. There is little indication, however, that these sections were intended to act as lise-majesté provisions, that is, provisions to protect the dignity and authority of the Head of State and his principle ministers. Otherwise, the whole battery of special legislation (see, for instance, laws of 17 May 1819 and 25 March 1822 discussed in Chapter 4) passed during the reign of Louis XVIII to protect regal dignity and the symbols of royal authority would not have been necessary. Also, it would not have been necessary in the Press Law of 29 July 1881 (art. 26), enacted during the early days of the Third Republic, to make special provision to protect the President of the French Republic from press slander and ridicule. " S e e Bebel, My Life, pp. 2 9 5 - 2 9 6 , 3 1 0 - 3 1 2 , 331. Kirchheimer mentions that in 1894, 622 such cases were prosecuted, and as late as 1904, 275 cases (Political Justice, p. 35). 20 L a w of 17 February 1908, RGBl. (1908) 25. All these laws naturally became obsolete after 1919, with the abdication of the monarchy and aristocracy and the promulgation of the democratic Weimar Constitution.

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personal honor, which they defended with criminal sanctions.21 The answer lies in the problem of legitimacy in a constitutional monarchy.22 A constitutional monarchy is midway between an absolute monarchy, where the monarch rules without right of interference from the people or their elected representatives, and a completely democratic or representative form of government based on popular sovereignty, where the people have either themselves or their elected representatives to blame if bad laws are enacted or bad policies followed. In a constitutional monarchy, however, in which the King not only reigns but rules through appointed ministers, the problem of legitimacy is acute, since it is largely dependent on common acceptance of the monarch's right to rule and the legality of his acts. In an age when popular sovereignty is the prevailing political philosophy, acceptance of this right may be difficult to maintain unless the monarch is placed on a pedestal above partisan strife and factional interests. This becomes an increasingly difficult affair when the blame or criticism for bad administration cannot be shifted to the shoulders of ministers responsible to the people's elected representatives in the parliament.23 In such a situation the ministers may attempt to wrap themselves in the protective mantle of immunity that surrounds the Head of State in order to invest their acts with the necessary legitimacy. 24 21 Personal honor is defended through penal sanctions in chapter 14 of the Code (§§185-200). There is a distinction made between " i n s u l t " and "defamatory insult." The difference lies in the manner of making the insult and circumstances under which it is made. In the case of the former (§§ 185, 192) truth is no defense, whereas falsity is a prerequisite to liability in the case of defamatory insults (§ 187). 22 For an interesting recent discussion of the problems of legitimacy in politics, see Robert A. Kann, The Problem of Restoration (Berkeley and Los Angeles: University of California Press, 1968). 23 Under the constitutional monarchy of Louis-Philippe of France, there was an effort by his ministers to draw off criticism of the monarch by taking the onus of criticism on themselves. Monsieur Persil, Keeper of the Seals, stated in his exposé des motifs to the proposed press law of 9 September 1835, " A s for the monarchist press, in opposition or not, the only one which can exist, we ministers, public functionaries, agents of government, we offer ourselves to its blows without any restriction. We abandon to it our public personalities, the discussion of our acts. The field is vast; one can traverse it freely; one can deliver oneself to an unjust, exaggerated opposition; we submit to it without complaint: that is our condition, and never shall we seek to shirk it. But there stops the right of the press. It may not attribute to the King acts which belong to all of us; it [the press] does not have the right to thrust his august name into the discussions, nor even to indicate him indirectly by allusion or by some convenient expression: the law which we propose to you formally forbids it. The King is the source of all grace, of all the favors, of all the good that the country derives from his government. Evil is foreign to him; if there is any, it is our work, and it is to us alone, we ministers, that it must consequently be imputed" [translation by author]. Sirey, Lois annotées (1831-1848), 11:280. 24 Kirchheimer (Political Justice, p. 35) states in regard to the large number of lèse-majesté prosecutions under the German governments of this time, " T h e reason lay in the constitutional set up. Attacks on cabinets not responsible to parliament and not expressive of the will of a parliamentary majority were ipso facto directed at the person or institution exercising the power of appointment. And the prestige of the monarchy took a beating every time it was defended in court. It did

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In its general organization the 1871 Code continues the tripartite division of major crimes against the State found in earlier codes: high treason (Hochverrat, §§80-86), treason against the country (Landesverrat, §§87-92), and insult and injury inflicted on a sovereign (Majestatsbeleidigung, §§94-101). The difference is that, due to federal structure of the Reich, these offenses could be separately committed against the individual states and their reigning Princes as well as against the Reich and its head, the Kaiser, or both at the same time. 2 5 Besides these provisions, the Code contains chapters dealing with treasonable or insulting acts committed against friendly foreign states; 26 with felonies and misdemeanors protecting the exercise of political rights (dispersing legislative assemblies, preventing voting, interfering with or falsifying the ballot, and election bribery); 27 with acts opposing public authority; 28 and with felonies and misdemeanors against public order. 29 Of interest in the last chapter mentioned—because some of these provisions were employed frequently in the government's legal battle against the socialists—are articles 128 and 129 which deal with secret and criminal societies, article 130 dealing with inciting class riots,30 article 131 dealing with the malicious misrepresentation of facts bringing state measures and public authority into contempt, and article 139 which deals with misprision of treason and other major crimes. Misprision, or nonrevelation to the authorities of a contemplated act of treason, is made a crime when the person with knowledge thereof fails to give timely warning to the authorities or the person threatened in a situation in which prevention of the crime was possible and the crime is later committed or attempted. There is no provision, comparable to section 108 of the French Penal Code at that time, not matter that proof of offensive allegations practically was not permissible, or that considerable effort was made to evade trial by jury. Regardless of the makeup of the court, public trial permitted widely publicized criticism of the government, which would have been no more effective had it been made in parliament." 25 Karl L. von Bar, A History of Continental Criminal Law, trans. Thomas S. Bell et al. (Boston: Little, Brown, 1916), p. 355. 26 Chap. 4, §§ 102-104. 27 Chap. 5, §§ 105-109. 28 Chap. 6, §§ 110-122. 29 Chap. 7, §§ 123-145. 30 Article 130 reads, " A n y o n e who in a manner dangerous to the public peace openly incites different classes of the people to acts of violence against each other, shall be liable to a fine not exceeding two hundred thaler or to imprisonment [Gefängnis] for not more than two y e a r s . " The reader may inquire why I am including this statute among the list of "political crimes" when its object is not the protection of the State but ostensibly the protection of classes of citizens from one another and when its punishment indicates that it was not "officially" regarded as a political offense. The answer is that, in the historical and social setting in which it was enacted, its purpose was to repress socialist agitation which called for class warfare and was thus designed to protect those classes which enjoyed political power from revolution. It, therefore, protected the rulers by protecting the groups from which they drew their strongest support.

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which allowed a participant in an illegal plot to exempt himself from punishment entirely by timely revelation; under the Code of 1871 he merely avoided guilt of misprision by so doing.

Subsequent Legislation and Political Repression Anti-Catholic

Legislation

It is not easy to fathom why soon after formation of the German Empire, Bismarck undertook his Kulturkampf (cultural struggle) against the Catholic Church in Germany. It may be that he resented the Church's participation in politics as a divisive influence in his program to forge a united state; it may also be that he saw the Catholic Church as the focus of every anti-Prussian force both inside and outside Germany and therefore to be destroyed. 31 A precipitating incident was the declaration of the doctrine of papal infallibility by the Vatican Council on 19 July 1870, the day France declared war on Germany. This action aroused the ire of the largely Protestant National-Liberal Party in Germany, and it was with their aid in the Reichstag that Bismarck rammed through his anti-Catholic laws. The first blow was struck in July 1871, when Bismarck suppressed the Catholic Section in the Prussian Ministry of Religion and Education. Four months later the Reichstag adopted a new article in the Criminal Code (article 130a) imposing penalties on clergy who used their pulputs for political ends. 3 2 On 14 July 1872 in response to a popular petition, the Reichstag passed a law banning all Jesuits from Reich territory (Jesuitengesetz). In Prussia the measures went even further. In March 1872 a law was passed placing the supervision of all schools (both Protestant and Catholic) in the hands of the State, and in June Prussian Minister of Public Education Falk forbade all members of religious orders from teaching in schools by administrative decree. In the following year the struggle increased when Falk secured the passage of the " M a y Laws" which subordinated all Church life to State regulation. By these laws the State now imposed its own standards of education on 31 See Passant, Short History, pp. 88-89; Ralph Flenley, Modern German History (London: J. M. Dent, 1959), pp. 272-273. The Centre Party in the Reichstag was the Catholic Party. 32 This article, as revised in 1876, read as follows: " A clergyman or other minister of religion who in the exercise or in the direction of the exercise of his calling publicly before a crowd or before a number of people in church or any other place set aside for religious meetings makes affairs of state the subject of comment or discussion in a manner dangerous to the public peace, shall be liable to imprisonment [Gefängnis] or Festungshaft for not more than two years. . . . A similar punishment is applicable to a clergyman or minister of religion who in the exercise or direction of the exercise of his calling publishes or disseminates documents in which affairs of state are made the subject of comment or discussion in a manner dangerous to the public peace." Compare articles 201-208 of the French Penal Code of 1810 discussed in Chapter 4, page 69.

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both Catholic and Protestant candidates for clerical office and ratified or vetoed their appointments. A special court was set up with power to dismiss troublesome clergy from office. Marriage by civil authorities was made compulsory. All religious orders, except for those engaged in nursing the sick, were dissolved, and state financial support for the Catholic Church was withdrawn. The strict enforcement of these measures, which led to the deportation and imprisonment of many members of the clergy, caused a storm of protest all over Germany. This was so not only with Germany's large Catholic population, but also among some Protestants, who were also affected. In July 1874 a young Catholic apprentice, Kullman, made an unsuccessful attempt to assassinate Bismarck. The Catholic clergy engaged in a policy of passive resistance, and the Centre Party vastly increased its seats in the Reichstag. Eventually, the Chancellor was forced to back down, and after the death of Pius IX in 1878, Bismarck worked out a rapprochement with his successor that led to the repeal or substantial modification of the "May Laws" in the 1880s. 33 This strange episode—"strange" because it is so difficult to see the pressing need for it—demonstrates the futility of trying to eliminate through legal and penal measures an organization as large and powerful as the Catholic Church in a country with such a large Catholic population. Bismarck was hardly more successful against the socialists, but for different reasons. Press Law of 7 May 1874 On 7 May 1874 a comprehensive law regulating the press was enacted. 34 The first article of this law states, " T h e freedom of the press is subject only to those restrictions which are prescribed or admitted by the present l a w . " It then proceeds to lay down various regulations as to the publication of newspapers and other periodicals. In articles 20 and 21 it provides for the responsibility and accountability of editors, publishers, printers, and distributors for the contents of published writings. Article 20 of the law provides generally that the punishability of these persons for the contents of any writing is to be determined by reference to the existing penal laws. For negligent mistakes by which a punishable offense is committed, however, article 21 provides a punishment of a fine up to one thousand marks, or custody (Haft), confinement in a fortress (Festungshaft), or imprisonment (Gefängnis) up to one year. Sir James Fitzjames Stephen, the noted English expert on criminal law who studied in Germany, writing not long after the passage of this law, described it as "much simpler and less stringent" than the French press laws at " S e e Passant, Short History, "RGBl. (1874), 65.

pp. 8 9 - 9 0 ; Flenley, Modem

German History,

pp. 2 7 3 - 2 7 4 .

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that time. 35 The liberality of this law is in marked contrast to the special legislation that was passed four years later to suppress the socialist press. The Criminal Law Amendment Act of 26 February 1876 In 1871 Bismarck began his campaign to wipe out the socialist political parties.36 Some say that he was "converted" to his policy of repression by the Paris Commune, since he had had a brief period of flirtation with the Lassallean socialists during the 1860s.37 But it is more probable that, as in the case of the Catholic parties, Bismarck's conservative nationalism rebelled at the thought of an international movement acting as a powerful force within a national state. Bismarck took three kinds of measures against them. First, he proposed in 1871 an international conference of European nations to coordinate measures against them. Second, he initiated the practice of police harassment of socialist activities and prosecution of its leaders.38 Third, he made numerous efforts to restrict freedom of the press and to amend the penal laws in order to deal in a more extensive way with socialist agitation among the working classes.39 The Criminal Law Amendment Act of 26 February 1876 was part of that effort. 40 35 Stephen, A History of the Criminal Law of England, 3 vols. (Macmillan, 1883), 11:392. It must be pointed out, however, that Stephen was writing before the enactment of the liberal French Press Law of 29 July 1881. He was comparing the German Press Law of 1874 with the whole body of French press laws up to and including the law of 29 December 1875, which was, on the whole, restrictive. 36 In 1871 the socialist parties were divided into two main groups: the Eisenacher or Marxist adherents under the leadership of Wilhelm Liebknecht and August Bebel, and the Lassalleaner or disciples of Ferdinand Lassalle under the leadership of Schweitzer. These two factions settled their differences at the Gotha Congress in 1875 and formed the Social-Democratic Party. 37 Flenley, Modern German History, p. 278; Bebel, My Life, p. 236. 38 The prosecutions and the police harassment during the 1870s are eloquently portrayed by Bebel, ibid., pp. 2 2 3 - 2 3 1 , 2 4 4 - 2 4 8 , 2 5 2 - 2 5 3 , 2 7 3 - 2 7 4 , 2 7 8 - 2 8 0 , 2 9 5 - 2 9 8 , 305-306, 3 1 0 - 3 1 2 , 330-332. 39 In June 1873 Bismarck introduced a bill before the Reichstag to limit the freedom of the press by imprisoning or detaining in a fortress up to two years anyone who attacked in print the family, property, universal military service, or any of the fundamental supports of existing society in a manner detrimental to morality, justice, or patriotism, or representing such actions as meritorious or worthy of imitation, or discussing the present condition of society in such a way as to lead to a breach of the peace. Press attacks on religion were to be punishable by imprisonment for terms varying from three months to four years. This bill was rejected. In the 1874 session the Reichstag rejected a milder bill to restrain freedom of the press and a bill to limit industrial strikes by penalizing breaches of contract. In the 1875 session the Government came forward with a bill to substantially amend the criminal code. Many of these proposals dealt with ordinary reforms, but many, too, were concerned with political crimes. For instance, it proposed to amend article 130 of the Code, dealing with inciting class warfare (see fn. 30, this chapter) by adding to the offenses already prohibited the act of attacking by speech or writing the institutions of marriage, the family, or property. This was, of course, directed at the socialists since they attacked these institutions. This proposal and most of the other amendments to the Penal Code proposed by the Government were rejected by the Reichstag, in which liberals and other parties suspicious of Bismarck's motives were still dominant. Bebel, ibid., pp. 2 7 0 - 2 7 1 , 2 7 7 - 2 7 8 , 288-289; von Bar, History of Continental Criminal Law, pp. 3 6 0 - 3 6 1 . 41

'RGB1.

(1876), 25.

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The Act modified forty-four existing articles of the Code and added seven new provisions, of which only two merit discussion for our purposes. A new article (§49a) was added to the Code which punished incitement or solicitation to commit a felony, whether effectual or not. Both solicitor and solicitee (if he agreed to the proposal) were now punished with imprisonment (Gefängnis) for not less than three months if the crime solicited carried a death or lifeimprisonment penalty, or in the case of lesser felonies with imprisonment or fortress confinement for not more than two years. The court could also impose police surveillance as an additional penalty. This provision was stimulated by a case arising in Belgium involving a frequently uttered threat against the life of Bismarck. 41 Another new article was article 353a, which punished officials of the German foreign office with imprisonment or fine for violating the official secrecy of documents or instructions and for violating orders and communicating fictitious or distorted facts with the intention of misleading their superiors. This provision likewise had its precipitating incident. 42

The Antisocialist

Law of 21 October

1878

Despite the fact that prosecutions had been vigorously carried out against the socialists during the 1870s and their trade unions disbanded, the socialists continued their activities and actually increased their seats in the Reichstag to twelve by 1878. 43 Moreover, their newspapers continued to operate, albeit under sever limitations. Bismarck was frustrated in getting through the Reichstag bills which would have closed down their presses altogether. Clearly, he needed an incident to arouse public opinion against the socialists, so as to permit full-scale legal repression. In 1878 he got such an incident—in fact, two incidents. On 11 May 1878 Hoedel, a Saxon tinsmith, made an unsuccessful assassination attempt on Kaiser William I. Hoedel had once been a socialist and circulated socialist newspapers, but at the time of the incident he no longer had ties with the party and was probably an anarchist. 44 Bismarck, whose newspapers attempted to make the connection between Hoedel's act and the Social Demo4

' T h e Duschesne case. The case of Count Harry von Arnim. The provision indicates the increasing concern of Germany over problems of diplomatic and military espionage, which also began to manifest itself in French law during the 1880s. 43 See Gay, Dilemma of Democratic Socialism, p. 24. The ban on the right to combine had been removed in 1869 by the North German Federation, but only for the industrial workers. However, Prussia, Bavaria, and Saxony, as well as other states, had laws against illegal associations. These were frequently used to dissolve labor unions and ban meetings. Bebel, My Life, p. 279. " E r n e s t A. Vizetelly, The Anarchists (London: John Lane, 1911), p. 46; and see Bebel, My Life, pp. 321-322. 42

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cratic Party, was ready with his bill, which was submitted to the Reichstag on 20 May. The Reichstag refused to be stampeded, however, and rejected the heart of the measure by a vote of 243 to 60. 4 5 On 2 June, another assassination attempt, also unsuccessful, was made on the Kaiser's life, this time by a Dr. Nobiling, whose connections with socialists, if there were any, were even more minimal. 46 Nevertheless, the Social Democratic Party, because of its Marxist doctrines, tended to be associated in the popular mind with revolutionary anarchism and its appeals to acts of terrorism. Public sentiment ran high against the socialists and workers associated with them. 4 7 A storm of prosecutions ensued; in two months 521 persons were condemned to prison terms totaling 812 years. 48 Bismarck prevailed upon the Bundesrat to dissolve the Reichstag, and in the following elections more conservative candidates were elected, making the moment now propitious to secure the passage of Bismarck's antisocialist legislation. Even so, the bill was toned down from its original version into a less draconian measure than Bismarck would have liked to have seen enacted. 49 The Anti-Socialist law prohibited all societies "which by socialdemocratic, socialist, or communistic efforts aim at the overthrow of the existing order of government or society," or in which the same ends are pursued "in a manner which endangers the public peace, particularly the harmony of different classes of society." 5 0 Publications of the same character were forbidden, and periodicals which had one issue forbidden could be totally suppressed. A special administrative agency, the Reich Commission, was set up to review complaints of publications suppressed under the law. In addition, the law empowered government agencies to ban meetings and associations serving the purposes mentioned, and gave the government the right to expel socialists from their places of residence, as was later done in Berlin, Breslau, and Leipzig. At the same time, however, election meetings and campaigning were exempt from the statutory ban, so that the Social Democratic Party still could send representatives to the Reichstag. The act expired by its own terms on 31 March 1881, and had to be renewed by the legislature for additional terms. It lasted for twelve years, expiring in 1890 when the Reichstag refused to extend it further. At first the law, rigorously enforced, fell hard upon the Social Democratic 45

Bebel, My Life, pp. 326-327. Vizetelly, Anarchists, pp. 4 7 - 4 8 ; Bebel, My Life, pp. 327-328. Hoedel was tried for high treason, quickly convicted and sentenced to death; Nobiling died in prison of self-inflicted wounds before he could be tried (Vizetelly, Anarchists, p. 51). 47 The official and unofficial reign of terror that ensued is described in Bebel, My Life, pp. 330-331. " I b i d . , p. 332; Vizetelly, Anarchists, p. 52. 49 Vizetelly, Anarchists, p. 53. 50 L a w of 21 October 1878, art. 1; RGB1. (1878), 351. 46

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Party. It lost three seats in the Reichstag in the 1878 elections. In Berlin a minor state of siege was declared in November 1878, and seventy-eight Social Democrats were banished from the city. Of forty-seven Social Democratic newspapers, forty-five were banned, the remaining two managed to stay in existence by changing their names and moderating their politics. 51 One hundred and fifty-one other publications were prohibited, and 174 clubs or associations were suppressed in addition to 21 trade unions. 52 Many socialist leaders were forced into exile, where they set up their journals anew and smuggled them into Germany. Many others remained in Germany. The result was that the fortunes of the Party improved, to the extent that by 1893 they polled 23 percent of the popular vote and won forty-four seats in the Reichstag (a gain of thirty-two seats from 1877). 53 They even began to get some justice in the courts and at the hands of the administrative agencies set up to control their publications. 54 On the whole, Bismarck's effort to eliminate the Social Democratic Party as a political power in Germany and to diminish its influence with German workers is generally regarded as an almost complete failure, comparable to his misjudgment in the case of the Catholics. But this judgment may be questioned. The effort to discredit the Party did cause a disclaimer by Party leaders of the movement's revolutionary goals, and brought ever more to the fore those conservative voices in the Party which strived to make it respectable in the eyes of the German public. Repression, therefore, which was tempered with legality, may not have defeated socialism or the trade union movement; but it at least combined with generally improving conditions for the working classes in Germany in defeating revolution.

Summary From 1871 to 1914, there was no urgent need for extraordinary laws to protect the State from revolutionary crimes. Anarchist assassination attempts and occasional acts of terrorism were never more than a minor annoyance, notwithstanding the fact that they always aroused a public outcry for repressive measures which fitted in nicely with the Government's policy toward the socialists. 55 As for the socialists—the other major source of possible subversion—they became increasingly conservative and law-abiding. 51

Gay, Dilemma of Democratic Socialism, p. 26. Vizetelly, Anarchists, pp. 5 3 - 5 4 . S3 Kirchheimer, Political Justice, p. 129; see also Passant, Short History, p. 132. 54 Of 318 complaints filed with the Reich Commission to review suppressions of newspapers and journals, 69 resulted in determinations in favor of the complainants. Der Kampf der Deutschen Sozialdemokratie in der Zeit des Sozialistengesetzes, 1878-1890—Die Tätigkeit der ReichsCommission, ed. Leo Stern, vol. 3/1 of the Archivalische Forschungen zur Geschichte der Deutschen Arbeiterbewegung (Berlin: Rütten and Loening, 1956), p. 10. " S e e Kirchheimer, Political Justice, p. 131. 52

Germany (1851-1914) / 199 Also, the Government, autocratic though it was, had great legitimacy in the eyes of most of its subjects. They were to stick by it through the greater part of the First World War, which was long and costly (six million casualties). Therefore, Reichstag debates over the treatment of political criminals have an almost theoretical quality which one does not find in France, where revolution was always more of a real possibility in the estimation of politicians considering measures to be adopted to deal with their adversaries. This may account for the fact that German criminal law during this period remained liberal in form and spirit, and why there seemed to be a lack of urgency over the problem of political crime, once the antisocialist laws were shown to be both unworkable and unneeded.

CHAPTER

Great Britain

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(1849-1914)

The Period of Quiescence, 1849-1905 The period of little more than half a century which followed the revolutionary year 1848 is generally known as the Victorian Age in England, even though Queen Victoria ascended the throne more than a decade before it began and died shortly before it ended. England had previously enjoyed periods of prosperity and greatness, but this period is still remembered as the last great age of order, prosperity, international preeminence, and steady progress. To the general prosperity of the age was added the steady progress being made in two areas where there was great potential for revolutionary violence: universal suffrage and improvement of the living and working conditions of Britain's industrial workers. Legislation passed during the nineteenth century progressively extended the franchise from a very narrow category of landowners and householders to virtually every male adult in Great Britain. The progress made by the trade union movement in organizing workers into both economically and politically powerful unions extracted from Parliament a wide variety of reforms, including factory acts, improved working conditions in factories, reform of municipal governments, public education, and the recognition of collective bargaining and the right to peacefully strike.1 It seems reasonably clear that part of the reason for the lack of political conflict in Great Britain during the Victorian Age was the sentiment which prevailed in all but the most radical minds that more could be accomplished to bring about desirable change ' S e e discussion of legislation in A. V. Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (London: Macmillan, 1914), pp. 2 5 8 301.

Great Britain (1849-1914) / 201 through the peaceful procedures of organization, political pressure, and legislative reform. It is therefore not surprising that during this period political crime was not a major problem. There were relatively minor difficulties involving alien residents who insisted on using their English sanctuary as a base from which to carry on revolutionary activities against foreign governments, some domestic anarchists and revolutionary socialists, and one major problem presented by the Fenian conspiracy in Ireland, but the period is remarkable for its lack of political violence or repression. During this period English legal doctrine in the realm of political crime was steadily liberalized and political prisoners treated with increased leniency by the courts and the government. The European doctrine of political crime, which viewed the political criminal as a moral offender acting out his beliefs, became accepted as revealed truth by many English liberal politicians and, not surprisingly, by almost the entire Irish contingent in Parliament. Although the doctrine never became enshrined in English criminal law, it did find its way into the prison treatment of political offenders and into the law of extradition.

Political Crime in Ireland, 1858-1891, and Measures Taken for Its Suppression The Fenian Society, whose object was the creation of an independent Irish Republic, had its origins among Irish-Americans who had emigrated to the United States during the 1840s to escape famine and political repression. The Society was formed in 1858 in New York City with the purpose of supporting, with American money, conspiratorial activities leading to rebellion in Ireland. In the 1860s the Fenians began their activities in earnest, first by attempting (unsuccessfully) to invade Canada from the United States in 1866, then in 1867 by attacking a police barracks in Ireland, sacking a coast guard station at Kells in County Kerry, and interrupting work on the laying of the Atlantic cable. Finally, they carried the war to England by attempting to seize an arsenal in the city of Chester, to rescue Fenian prisoners from a police van in Manchester (killing a policeman in the process), and to free other Fenians from Clerkenwell prison by blasting an outer wall with a barrel of gunpowder. This last outrage resulted in the death of twelve persons and the injury of a hundred more. All attempts failed and did not gain the Fenians much support in Ireland from either the Catholic clergy or from the people. English public opinion was highly indignant over these outrages, and in the light of this the response of the Government seems unusually calm and restrained. The English used both the carrot and the stick in their attempt to

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suppress the Fenian Society, while at the same time dividing them from the great majority of Irishmen and enticing the latter to live in peace within the British union. First—with regard to the application of the stick—habeas corpus was again temporarily suspended in Ireland in 1866. In 1867 Special Commissions were appointed for the counties of Dublin, Cork, and Limerick for the trial of crimes committed by the Fenians. One hundred sixty-nine men were prosecuted, of whom 110 pleaded guilty, 52 were convicted, and 7 were acquitted. 2 Eight were found guilty of high treason and were sentenced to death; 25 were sentenced to penal servitude for various terms, and about 50 were given various terms of imprisonment. All the death sentences were later commuted to penal servitude for life. 3 By the end of 1870 all those convicted of treason and treason-felony had been released on condition of their not remaining in or returning to the United Kingdom. 4 As examples of the simultaneous employment of the carrot, mention should be made briefly of three measures that Gladstone took during his first Ministry. Believing that Fenianism was not so much a movement for Irish independence as it was a protest against the three evils of the " I r i s h " Church, 5 the land problem (absentee landlords, high land rents, and eviction of tenants), and the problem of Irish education, Gladstone undertook to cut the ground from under the Fenian movement by enacting legislation to cure these evils. Therefore, in 1869 he introduced and secured the passage of a bill which disestablished the Anglican Church in Ireland, reducing it to a private corporation and eliminating its tithes. Six million pounds of its endowment was devoted to public purposes, such as public education and relief work for the unemployed. The religious grievance and problem of education were thus largely eliminated. The land problem proved to be a more difficult nut to crack. In 1870 during Gladstone's administration, a Land Act was passed for Ireland which compelled landlords to compensate tenants who were evicted while paying rent and to reimburse them for unexhausted improvements made at their own expense. This Act, however, did not forbid evictions, nor did it prevent a landlord from raising his rents; therefore, it did not get at the heart of the problem and did little to conciliate Irish public opinion. During the agricultural depression of the late 1870s and early 1880s, Irish tenants who failed to pay rent were evicted "Report of the Special Dublin Commission, 1867, p. 1073. 'Report of the Special Commission for Cork and Limerick, p. 726. These figures are, of course, limited to those offenses tried by the Special Commissions and do not include others tried before the ordinary courts. ' H a n s a r d , Parliamentary Debates, 3rd ser., vol. 204, cols. 164, 165. 5 T h e " I r i s h " Church was actually the Anglican Church, which was the only church established by law in Ireland, although the great majority of inhabitants were Catholics. Irish Catholics were thus required to contribute financial support to the maintenance of a Protestant Church.

Great Britain (1849-1914) / 203 from their land almost as a matter of course. Some 10,000 Irishmen were evicted from their farms in 1880, for example. The tenants' answer was agrarian crime: barn-burnings, cattle-slaughtering, and murders and assaults carried out against landlords and persons who rented lands former tenants had been forced to quit. This activity was sometimes spontaneous, but more often it was led by Fenians who channeled agrarian crime into an organized campaign of terror. With 1,253 outrages of this nature occurring in the year 1880, the English Government was forced to take harsher measures to control the level of violence. Over the vigorous opposition of Irish members of Parliament (who employed various filibuster tactics), the Government finally passed the Coercion Act of 1881. 6 This Act suspended habeas corpus in Ireland and empowered the Lord Lieutenant to make arrests and hold suspects without trial and without bail or mainprise during the continuance of the Act, which was to remain in force until 30 September 1882. Another Act, allowing the Government greater freedom in searching for arms and ammunition under special warrants and providing for the summary trial and conviction of offenders, was passed at roughly the same time. 7 However, in line with his usual policy of combining measures of conciliation and reform with coercion, Gladstone also introduced a second Irish Land Act which met most of the demands of the Irish Land League for fair rents determined by judicial tribunals, fixity of tenure, and the free sale of tenants' interests by tenants. Nevertheless, the disturbances continued and neither Parnell, the most influential Irish politician of the time, nor the Land League did much to stop them. Finally, the situation became so uncontrollable that the Government was forced into making a kind of treaty with Parnell and the Land League, whereby all Irish suspects were to be released from prison, arrearages for back rent did not have to be paid by tenants in default, and in return Parnell and the Land League promised to use their influence to suppress the disorders and crimes. As a token of good will, Gladstone appointed Lord Frederick Cavendish as Secretary for Ireland and sent him to Ireland on a mission of conciliation. Within hours of his arrival Cavendish was brutally murdered by an Irish group known as the "Invincibles." Parliament, horrified by the assassination, quickly passed a new Crimes Act which gave the Government in Ireland extraordinary powers in suppressing disorders. Still, disorders continued in Ireland and were extended to England. There bands of Irish revolutionaries attempted to blow up London Bridge, the Tower 6 Entitled "Protection of Person and Property Act—Ireland"; 44 & 45 Victoria, c. 4 (21 March 1881). ' 44 & 45 Victoria, c. 6 (29 March 1881).

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of London, and even the Parliament buildings themselves. In 1887 the Conservative Government of Lord Salisbury appointed A. J. Balfour as Irish Secretary, and during the next four years Balfour strictly enforced the Crimes Act and other special legislation. 8 At the same time the rigors of repression were sweetened by extending loans under the Ashbourne Act to enable Irish tenants to purchase their holdings from their landlords. Through a combination of these measures, peace was finally restored to Ireland for a period of about twenty-five years. The Irish troubles constituted the only serious problem in the realm of political crime which English governments faced in the long period of quiescence running from 1849 to 1905. It was the only situation where the Government found it necessary to employ extraordinary measures in suppressing political crimes and disorders.

Aliens, Anarchists, and Extradition During the nineteenth century England and Switzerland were favorite places of refuge for fugitive political criminals and revolutionaries of other European countries. The reasons for this were several. First, England had a long tradition of granting asylum to fugitives from other lands. As the Attorney-General pointed out during the parliamentary debate on the Extradition Bill of 1870, as late as 1870 England had only three treaties of extradition, a circumstance he attributed to the fact that England was reluctant to enter into such treaties "lest they might be required to surrender political offenders, and to violate the right of political asylum always afforded here to political refug e e s . " 9 The Extradition Act of 1870 incorporated this policy in a specific provision 10 which directed that fugitive offenders should never be surrendered for extradition if the offense they committed was "one of a political character." 1 1 8 One of these special Acts was the Criminal Law and Procedure (Ireland) Act of 1887; 50 & 51 Victoria, c. 20. This Act, among other things, empowered the Lord-Lieutenant of Ireland to declare by special proclamation as dangerous any association which was (a) formed for the commission of crimes; (b) carried on operations for or by the commission of crimes; (c) encouraged or aided persons to commit crimes; (d) promoted or incited others to acts of violence or intimidation; or fe) interfered with the administration of law or disturbed the maintenance of law and order (§6). Section 7 of the Act empowered the Lord-Lieutenant by published order to prohibit or suppress in any specified district any association named in the special proclamation, or any association subsequently formed or first employed for any of the purposes of any association named or described in the special proclamation. It was made an offense to call or take part in or report the proceedings of any meeting, or to contribute to or receive or solicit contributions for the purposes of any association named in the order, or any branch thereof, in a specified district or to take part in the proceedings of any such association. "See Hansard, Parliamentary Debates, 3rd ser., vol. 202, col. 301 (16 June 1870). 10 33 & 34 Victoria c. 52, s. 3(1). " T h e meaning of this rather vague phrase was elucidated by Queen's Bench in 1891 in the case of In re Castioni, ([1891] 1 Queen's Bench 149, [1891] 64 Law Times Reports 344), as a

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Second, England, prior to 1914, did not follow the Continental practice of registering and maintaining police records on resident or visiting aliens. The alien in England therefore had the virtual run of the island from the moment he passed customs. As a rule English police kept no check on either the alien's whereabouts or his business. Third, many political refugees were interested in maintaining their contacts with friends and cohorts in the countries they had fled, in furthering revolution in their homeland, and in publishing revolutionary propaganda. All, or most, of these things they could do in England at this time with perfect safety. As long as none of these activities violated English law (and few of them did 12 ) and as long as there was no attack against the English government, the English were extremely permissive as to the activities carried on by aliens on their soil directed at foreign governments. This occasionally caused English governments considerable embarrassment in their foreign relations. In speaking of aliens certain distinctions should be kept clearly in mind. First, one should distinguish between ordinary aliens, who were merely émigrés and not fugitives from justice, and the class we are concerned with here: political refugees and fugitives. Second, a further distinction should be made between two types of political refugees and the problems each presented to the host country. The first type consisted of the well-heeled and illustrious political refugee who had enjoyed high rank in some toppled foreign regime or who was the prominent leader of a revolt that failed. The figures of Charles X and Louis-Napoleon come readily to mind. These men generally enjoyed in England a respite from politics, lived off the income of accumulated wealth and investments, and were ordinarily content to await a favorable turn of the wheel of fortune in their native land which would permit their return to it. Such men were never more than a minor embarrassment to their English hosts. The other class of political refugees were of a different sort. Frequently penniless and unaccustomed to menial labor, these ambitious, often fanatical political revolutionaries lived off the offerings of their friends and believers and sometimes engaged in crimes and other adventures to supplement their meager resources and to fund their revolutionary schemes. Toward the end of the nineteenth century alien anarchists fell largely, if not completely, into this category. As a result, virtually any criminal with an alien name apprehended by the criminal act "committed as incidental to, and in furtherance of, a political insurrection." The nature of this phrasing almost automatically excluded the acts of terrorism of anarchists, which were seldom, if ever, associated with an insurrection. See Re Meunier, [1894] 2 Queen s Bench 415, where a fugitive anarchist from France was denied "political offender" treatment under the Extradition Act of 1870, a denial upheld by the English court on the grounds that anarchists did not belong to a party espousing a form of government and that their offenses were not "political" because they were directed against citizens generally rather than against governments. 12 The exceptions are covered in the cases discussed in the following pages.

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police and charged with crimes involving violence or the use of explosives was immediately labeled as a "foreign anarchist" by the popular press and by public opinion. 13 The first major incident involving foreign political refugees was one of the most famous and most embarrassing for the English Government. It involved Felice Orsini's attempt to assassinate the French Emperor, Louis-Napoleon, in Paris in 1858. Orsini was well known in England prior to this time. An Italian aristocrat who had escaped from an Austrian prison at Mantua, Orsini had come to England to deliver lectures on the liberation of Italy from Austrian domination and had been lionized by high society. While in England Orsini conceived his plan of furthering Italian liberation by assassinating Louis-Napoleon, and the French maintained later that the plot was hatched on English soil. This seems entirely likely, as the bombs used in the attempt were manufactured in Birmingham and were ordered for Orsini by an Englishman. The outrage of the French after the incident was widely felt and quite genuine and was directed against the English because of the hospitality they extended to political revolutionaries and because the English were felt to be deficient in detecting and protecting against such plots. Through a mild protest registered by their ambassador, Count Walewski, the French "suggested" to Palmerston's Government that the English ought to do something to improve their laws in order to suppress such revolutionary conspiracies. As a result, Palmerston introduced a Conspiracies Bill in Parliament which elevated the crime of conspiracy to commit murder from misdemeanor to felony status. Surprisingly—in view of the reasonableness of the French request and the civility of the language in which it was couched—the English public and most of the members of Parliament took the request as an affront to the English nation and as an unwarranted interference in its domestic affairs by a foreign power. Consequently, the Bill was defeated. Prosecutions instituted against aliens connected with the plot fared little better. They resulted either in jury acquittals or in directed verdicts of acquittal made on the prosecuter's motion. 14 The second incident also involved the assassination or contemplated assassination of a foreign monarch or monarchs. On 25 May 1881, Johann Most, a German anarchist who had fled Germany to England, was tried at the Old Bailey for writing an article in a German-language weekly published in London, which was found by the jury to intend to incite readers to assassinate Alexander III, the Russian Czar, and William I, Emperor of Germany. This verdict was later affirmed by the Court of Criminal Appeal, 1 5 and Most served 13

Ernest A. Vizetelly, The Anarchists (London: John Lane, 1911), p. 294. See Queen v. Simon Bernard, [1858] 8 State Trials (N.S.), 887-1064; and Queen v. Tchorzewski, [1858] 8 State Trials (N.S.), 1091-1096. l5 Queen v. Johann Most, [1881] 14 Cox's Criminal Law Cases 583. 14

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a short term of imprisonment after which he traveled to America and continued his activities there. The case is significant as reflecting a change of attitude toward those whose political crimes consisted of inciting others to commit murder, such as the anarchists. In 1882 six men were arrested in Walsall in Staffordshire on charges of manufacturing bombs in violation of the Explosive Substances Act, 1883,16 and of engaging in a criminal conspiracy.17 One of these men, Jean Battolla, was an alien. He and three others were convicted and sentenced to varying terms of penal servitude.18 At that time there was a rather large foreign colony of anarchists in Lon19 don. In December 1893 two attempts were made to hold anarchist meetings in Trafalgar Square, but these meetings were broken up by the police and further dispersed by an angry crowd. Public sentiment was running high against the anarchists because of the bombing outrages being committed in France by Ravachol, Henry, and others. In February 1894 the mutilated body of a French anarchist, Martial Bourdin, was discovered in Greenwich Park (London). It was surmised by the police that M. Bourdin had blown himself up by accident while carrying explosives on some undetermined mission. From this point on, every alien who engaged in crime was counted an anarchist, and the hospitable attitude of the English toward foreign political refugees and revolutionaries began to undergo a remarkable change. 20 Further Developments in the Law of Sedition Sedition cases during the period of quiescence are rare in comparison to the number of such cases in the preceding period. In fact, there were only two decisions of sufficient importance for the development of the law to merit discussion. The first involved the prosecution of two Irish newspaper editors, Sullivan and Pigott, in 1868.21 In this case the defendants were indicted and convicted for publishing in their newspapers seditious appeals to insurrection and inflammatory accounts of the Manchester executions, which had been published before in the Irish-American press. 22 The remarkable feature about the judge's instruction to the jury in this case was not its definition of seditious libel, which merely followed the formulae of earlier decisions, nor the fact that 16

46 & 47 Victoria, c. 3. ' T h e six men were Frederick Charles, Victor Cails, John Wesley, William Ditchfield, Joseph Deakin, and Jean Battolla. 18 Queen v. Charles et al„ [1892] 17 Cox's Criminal Law Cases 499. 19 Vizetelly, Anarchists, p. 159. 20 Ibid., pp. 2 9 4 - 2 9 5 . 21 Queen v. Sullivan; Queen v. Pigott, [1868] 11 Cox's Criminal Law Cases 44. 22 In 1868 the English executed three Irish Fenians—Allen, O'Brien, and Larkin—for the murder of an English constable during a rescue attempt. See p. 201, this chapter. 1

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it extended the coverage of the law to include the republication of matter from foreign newspapers and journals, although that was a novel aspect of the case; it was the extent to which the judge emphasized the freedom of the press and the jury's own absolute discretion in judging both the law and the facts. The jury was instructed, in so many words, that they were not to adhere to the letter of the law but to consider the case in the context of surrounding circumstances. 23 The judge (Fitzgerald, J.) seemed at times almost to be leading the jury into a verdict of acquittal: "Viewing the whole case in a free, bold, manly and generous spirit towards the defendant, if you come to the conclusion that the publications indicted either are not seditious libels, or were not published in the sense imputed to them, you are bound, and I ask you in the name of free discussion, to find a verdict for the defendant." 2 4 Furthermore, instructing the jury that it might be the province of the press at times to call attention to the weakness or imbecility of a government in executing persons for capital crimes, as long as no corrupt motives were imputed to the government, the court said, It is also quite open to the defendant to discuss the executions [of the Manchester Fenians] as a political blunder, for that is a subject on which public opinion is very much divided. Those w h o are entirely opposed to capital punishment think there should be no executions. Others look upon the matter as a political o f f e n c e , and think that the sentence should only be penal servitude for life; whilst another portion of the community think that public safety required that justice should take its c o u r s e . 2 5

The second case occurred toward the end of the century and did not, for once, involve the Irish. John Burns, William H. Champion, H. M. Hyndman, and John Edward Williams—all members of the Revolutionary Social Democratic League—were indicted in 1886 for uttering seditious words with the intent of inciting a riot and stirring up ill-will between the King's subjects in connection with a serious riot which occurred in that year in London's West End. 2 6 The defendants had addressed a large crowd of unruly unemployed workers, immediately after which a large segment of the crowd descended on various bastions of the Establishment (the Fair Trade League and several London clubs) wreaking destruction. In instructing the jury, the presiding judge (Cave, J.) emphasized the element of "seditious intention" as a necessary element of proof of the prosecution's case, but defined it in such a way as to make it more a matter of the 23 In a twentieth-century prosecution for sedition, the judge told the jury that they could take into account the state of public feeling over the issues being discussed in the seditious writing. See King v. Aldred, [1902] 22 Cox's Criminal Law Cases 1. 24 11 Cox's Criminal Law Cases, p. 59. 25 Ibid., p. 57. 2