IV. THE REFORMER

Instead of agitating for a radical political revolution, Voltaire labored for moderate, piecemeal reform within the existing structure of French society; and within this self-denying circle he achieved more than any other man of his time.

His most basic appeal was for a thorough revision of French law, which had not been revised since 1670. In 1765 he read, in Italian, the epochal Trattato dei delitti e delle pene of the Milanese jurist Beccaria, who in turn had been inspired by the philosophes. In 1766 Voltaire issued a Commentaire sur le livre des délits et des peines, frankly acknowledging Beccaria’s lead; and he continued to attack the injustices and barbarities of French law till 1777, when, aged eighty-two, he published Prix de la justice et de l’humanité.

He demanded, to begin with, the subordination of ecclesiastical to civil law; a check on the power of the clergy to require degrading penances or to enforce idleness on so many holydays; he asked for a mitigation of the penalties for sacrilege, and a repeal of the law insulting the body, and confiscating the property, of suicides. He insisted on distinguishing sin from crime, and ending the notion that the punishment of crime should pretend to avenge an insulted God.

No ecclesiastical law should be of any force until it has received the express sanction of the government. … Everything relating to marriages depends solely upon the magistrates, and priests should be confined to the august function of blessing the union. … Lending money at interest is purely an object of civil law. … All ecclesiastics, in all cases whatsoever, should be under the perfect control of the government, because they are subjects of the state. … No priest should possess authority to deprive a citizen of even the smallest of privileges under pretense that that citizen is a sinner. … The magistrates, cultivators, and priests should alike contribute to the expenses of the state.88

He compared the law of France to the city of Paris—a product of piecemeal building, of chance and circumstance, a chaos of contradictions; a traveler in France, said Voltaire, changed his laws almost as often as he changed his post horses.89 All the laws of the various provinces should be unified and brought into general harmony. Every law should be clear, precise, and as far as possible immune to legalistic chicanery. All citizens should be equal in the eyes of the law. Capital punishment should be abolished as barbarousand wasteful. It is surely barbarous to punish forgery, theft, smuggling, or arson with death. If theft is punishable with death, the thief will have no reason for avoiding murder; so in Italy many highway robberies are accompanied by assassination. “If you hang on the public gallows [as happened at Lyons in 1772] the servant girl who stole a dozen napkins from her mistress, she will be unable to add a dozen children to the number of your citizens. … There is no proportion between a dozen napkins and a human life.”90 To confiscate the property of a man condemned to death is plain robbery of the innocent by the state. If Voltaire sometimes argued from a merely utilitarian standpoint, it was because he knew that such arguments would outweigh, with most lawmakers, any humanitarian appeal.

But on the subject of judicial torture his humanitarian spirit spoke out forcefully. Judges were allowed by French law to apply torture to elicit confessions before a trial, if suspicious clues suggested guilt. Voltaire sought to shame France by referring to Catherine II’s edict abolishing torture in supposedly barbarous Russia. “The French, who are considered—I know not why—to be a very humane people, are astonished that the English, who have had the inhumanity to take all Canada from us, have renounced the pleasure of using torture.”91

Some judges, he charged, were bullies who acted like prosecutors instead of judges, apparently on the assumption that the accused was guilty until proved innocent. He protested against keeping the accused in foul jails, sometimes in chains and for months, before bringing him to trial. He noted that a person accused of a major crime was forbidden to communicate with anyone, even with a lawyer. He related again and again the treatment of the Calas and the Sirvens as illustrating the hasty condemnation of innocent persons. He argued that the evidence of only two persons, even if eyewitnesses, should no longer be held sufficient to convict a man of murder; he adduced cases of false witness, and urged that capital punishment be abolished if only to prevent the execution of one innocent in a thousand instances. Death sentences could in France be passed by a majority of two among the judges; Jean Calas had been sent to death by a vote of eight to five. Voltaire demanded that a death sentence require an overwhelming majority, preferably unanimity. “What an absurd horror, to play with the life and death of a citizen in a game of six to four, or five to three, or four to two, or three to one!”92

By and large the reforms suggested by Voltaire were a compromise between his middle-class heritage, his hatred of the Church, his experience and investments as a businessman and a landholder, and his sincere sentiments as a humanitarian. His demands were moderate, but they were in many cases effective. He campaigned for freedom of the press, and it was immensely extended—if only by governmental winking—before he died. He asked for an end to religious persecution, and in 1787 it was practically ended in France. He proposed that Protestants be permitted to build churches and transmit or inherit property, and enjoy the full protection of the laws; this was done before the Revolution. He asked that marriages between persons of different religions be legalized; they were. He denounced the sale of offices, the taxes on necessaries, the restrictions on internal trade, the survival of serfdom and mortmain; he advised the state to recapture from the Church the administration of wills and the education of youth; and in all these matters his voice had influence on events. He led the campaign to exclude spectators from the stage of the Théâtre-Français; it was done in 1759. He recommended that taxes fall upon all classes, and in proportion to their wealth; this had to wait for the Revolution. He wanted a revision of French law; it was done in the Code Napoléon (1807); the most permanent achievement of the warrior-statesman, who determined the legal structure of France till our own time, was made possible by jurists and philosophers.

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