French Penal Code of 1791

The French Penal Code of 1791 was a penal code adopted during the French Revolution by the Constituent Assembly, between 25 September and 6 October 1791. It was France's first penal code, and was influenced by the Enlightenment thinking of Montesquieu and Cesare Beccaria.{{cite book |last1=Elliot |first1=Katherine |editor1-last=Heller |editor1-first=Kevin Jon |editor2-last=Dubber |editor2-first=Markus |date=1 December 2010 |title=The Handbook of Comparative Criminal Law |url=https://books.google.com/books?id=tM_BSGfDPG0C |publisher=Stanford University Press |page=210 |isbn=978-0-8047-7729-2 |oclc=1162537706}}

{{cite book

| title = Crime and the justice system in America: an encyclopedia

| author = Frank Schmalleger and Gordon M. Armstrong

| publisher = Greenwood Publishing Group

| year = 1997

| isbn = 978-0-313-29409-9

| pages = [https://archive.org/details/crimean_xxx_1997_00_1280/page/23 23]–24

| url = https://archive.org/details/crimean_xxx_1997_00_1280

| url-access = registration

| quote = French penal code 1791.

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{{cite book

| title = Criminology

| author = James Treadwell

| publisher = SAGE

| year = 2006

| isbn = 978-1-4129-1133-7

| pages = 20–21

| url = https://books.google.com/books?id=TL-u516Bz6gC

}}

General presentation

The principle of legality was foremost in the underlying philosophy of the 1791 Code. In the spirit of the 1789 Declaration of the Rights of Man and of the Citizen, Cesare, Marquis of Beccaria summarized the principles that were to be the foundation of the procedural system. In his words, "every citizen should know what punishment he should endure." As a consequence, the function of the judge was conceived as being strictly distributive: qualification of an act, infliction of the pre-set sanction. This concept was revolutionary in 1791 and clearly departed from the arbitrary trials of the ancien régime. The Code of 1791 was straightforward in this respect; most definitions were clear, leaving little room to the interpretation of the judge. This principle was reincorporated in the Napoleonic Penal Code of 1810, which replaced this Code.{{cite thesis |first=Sophie M. |last=Clavier |title=Perspectives on French Criminal Law |publisher=San Francisco State University |date=July 1997 |url=http://userwww.sfsu.edu/~sclavier/research/frenchpenalsystem.doc |format=DOC |accessdate=7 May 2008 |url-status=dead |archiveurl=https://web.archive.org/web/20051031022318/http://userwww.sfsu.edu/~sclavier/research/frenchpenalsystem.doc |archivedate=31 October 2005}}

Punishments under the Penal Code of 1791

Under the Penal Code of 1791, afflictive and infamous punishments were ranked in order of severity as follows:

death;
hard labor in chains (les fers), for a maximum duration of 24 years (replaced by “confinement in a house of correction” for women);
confinement (la gêne), for a maximum of 20 years;
detention, for a maximum of 6 years.{{Cite web |title=France - Code pénal du 25 septembre 1791 (Texte intégral original) |url=https://ledroitcriminel.fr/la_legislation_criminelle/anciens_textes/code_penal_25_09_1791.htm |access-date=2025-06-16 |website=ledroitcriminel.fr}}

Following these came banishment, which was considered an infamous but not afflictive punishment.

All of these penalties — with the exception of death and deportation — resulted in the loss of all rights associated with the status of active citizen, a form of civic disenfranchisement that lasted until rehabilitation (Title IV, Art. 1).

The Code also introduced the concept of involuntary manslaughter (Title II, Section I, Art. 1), which precluded any criminal conviction, while still allowing for the award of civil damages (Title II, Section I, Art. 2). Similarly, legitimate self-defense exempted a person from any criminal conviction in the case of a homicide.

The Code distinguished between murder (homicide without premeditation) and assassination (premeditated homicide). Rape was punished with six years of hard labor (ibid., Art. 29). Article 32 imposed a sentence of twelve years of hard labor on anyone who had “intentionally destroyed the proof of a person’s civil status.”

The most severe sentence was 24 years of hard labor, applicable in cases such as violent theft committed under aggravating circumstances (Art. 5, Section II).

Life imprisonment and branding with a hot iron (a fleur-de-lis under the Ancien Régime), both abolished by the Penal Code of 1791, were later reintroduced in the Penal Code of 1810.

The Code made France the first European country to effectively legalize sodomy by simply ignoring it in its penal code; the 1791 code was the first Western code of law to decriminalize such conduct since Classical Antiquity). Its sponsor, Louis-Michel le Peletier, presented it to the Constituent Assembly saying that it only punished "true crimes", not the artificial offenses condemned by "superstition".Jeffrey Merrick, Bryant T. Ragan, Homosexuality in Modern France, p. 82

{{cite book

| title = Sapphic modernities: sexuality, women, and national culture

| chapter = Mary Butts's 'Fanatical Pédérastie': Queer Urban Life in 1920s London and Paris

| author = Jane Garrity

| editor = Laura L. Doan and Jane Garrity

| publisher = Macmillan

| year = 2006

| isbn = 978-1-4039-6498-4

| page = 242

| chapter-url = https://books.google.com/books?id=iTlGvGBMxBwC&q=%22French+penal+code%22+1791&pg=PA242

}}