Preferred Citation: Melzer, Sara E., and Kathryn Norberg, editors From the Royal to the Republican Body: Incorporating the Political in Seventeenth- and Eighteenth-Century France. Berkeley, Calif:  University of California Press,  c1998 1998.

8 The Theater of Punishment Melodrama and Judicial Reform in Prerevolutionary France

The Theater of Punishment
Melodrama and Judicial Reform in Prerevolutionary France

Sarah Maza

Many of the essays in this volume explore the political culture of the Old Regime at its apogee under Louis XIV, a system that revolved around the sacred body of the king. In what follows I look at the end of the politico-cultural system of French absolutism, the period in the prerevolutionary decades when that system came under attack and began to fall apart.

Some scholars have described the cultural transition that took place in the late eighteenth century as a shift from an iconic system centered on the body of the king to a logocentric universe that enshrined the word of the law—in Napoleon's long-lived Civil Code, for instance.[1] I follow this line of argument in pointing to the importance of a certain category of legal documents, the trial briefs in which eighteenth-century lawyers narrated their versions of the cases they defended. But I also seek to complicate the picture by noting the theatrical element of these legal narratives, and to the close kinship between their style and the physically expressive techniques of contemporary drama.

The broader historical context for the trial briefs I examine here is the eighteenth-century movement to reform France's system of criminal justice. Following Michel Foucault, I argue that the transition was not a neat one from corporal punishment to an abstract legal system: progres-

[1] For instance, see Marie-Hélène Huet, Rehearsing the Revolution: The Staging of Marat's Death (Berkeley: University of California Press, 1982); and Joan Landes, Women and the Public Sphere in the Age of the French Revolution (Ithaca: Cornell University Press, 1988).


sive reformers in the age of Enlightenment still conceived of punishment as body-centered. But the performance of punishment at this juncture no longer implicitly glorified the monarch; it was directed instead at the education and reform of the spectators. If eighteenth-century punishment was still imagined as a spectacle, the audience now shared the limelight with the performers: the body on stage was theirs, not the king's.

My discussion centers on a near miscarriage of justice that became a cause célèbre in France in 1785–86: the case of Victoire Salmon, a young servant accused of poisoning her masters.[2] The context for this affair was the culmination in the 1780s of a decades-long movement for the reform of France's ancient and complex system of criminal justice, as codified in the great Criminal Ordinance of 1670.[3] Two of the salient characteristics of the ordinance were the privacy of proceedings and the all-powerful role vested in the judge, who dispensed justice in the name of a divinely ordained monarch. Under the Old Regime, criminal investigations—from the questioning of the plaintiff, defendant, and witnesses to the final deliberations—took place in private, behind closed doors, under the eyes only of the judges and their clerks. Secrecy, arbitrariness, and the defendant's lack of access to counsel were among the features of the system, which in the later eighteenth century increasingly came under attack, often through a contrast with contemporary English procedure.

Lawyers did play a role in this system, although in criminal cases it was confined to the written word (they were allowed to plead orally only in civil cases). Barristers composed trial briefs or memoranda (mémoires judiciaires ), which they presented to the judges on their clients' behalf. Mémoires in important cases had long been printed up and disseminated widely, and by the late eighteenth century such documents had acquired a pivotal status in the legal culture of the old regime (in part because they were the only form of pamphlet literature to escape any form of preventive censorship).[4] Increasingly sensational, popular, and sought after, mémoires judiciaires were the only link between the criminal courtroom and

[2] For a fuller account of the context of this case, see Sarah Maza, Private Lives and Public Affairs: The Causes Célèbres of Prerevolutionary France (Berkeley: University of California Press, 1993), chap. 5. I wish to thank the University of California Press for granting permission to use material from this book.

[3] The following remarks on the system of criminal justice are drawn from André Laingui and Arlette Lebigre, Histoire du droit pénal , 2 vols. (Paris: Cujas, 1979), 2:81–103.

[4] Sarah Maza, "Le Tribunal de la nation: Les Mémoires judiciaires et l'opinion publique à la fin de l'ancien régime,"Annales E.S.C . 42 (1987): 73–90; and idem, Private Lives and Public Affairs , 34–38, 120–31. See also Hans-jürgen Lüsebrink, "L'Affaire Cléreaux: Affrontements idéologiques et tensions institutionnelles autour de la scène judiciaire au XVIIIe siècle," Studies on Voltaire and the Eighteenth Century , no. 191 (1980): 892–900.


the world beyond it, and their use came to open up a widening breach in the hermetic system of prerevolutionary justice. It was through such documents that in the mid-1780s the French reading public learned of the case of Victoire Salmon—one of a handful of highly publicized affaires that were used to challenge the judicial system of the Old Regime and, through it, the very bases of public authority.

In the dark hours just before dawn, on 1 August 1781, a young woman in her early twenties walked on the road to Caen in Normandy.[5] Victoire Salmon, a laborer's daughter who worked as a domestic servant, was traveling in search of the employment she needed to support herself and to put together a decent dowry. She could not possibly have imagined the extraordinary events that would occur a mere week after her arrival Caen, or the upheavals in her life that would take place in the next five years.

By what seemed a stroke of good luck, Salmon found work on her very first day in Caen—employment as a maid-of-all-work for a petit-bourgeois family named Huet-Duparc: parents, three children, and two grandparents. On the first Monday after she was hired, Salmon prepared a porridge of milk and flour for the eighty-eight-year-old grandfather, as she had been ordered. She later testified that she saw her mistress throw salt, or something like it, into the old man's bouilli . When she returned from errands later that morning, she learned that the grandfather had suffered a violent colic, and that a doctor and priest had been summoned. He died that same evening, around six. On the following morning, Madame Duparc scolded Salmon for wearing the new calico pockets she used on Sundays, and told her to put on the striped ones she wore every day. This was before Victoire helped her mistress and the latter's daughter prepare the family's midday meal: a fresh soup for the masters, a leftover one for Salmon and another servant, and a plate of cherries for dessert. The story at this point gets somewhat muddled. It seems that several family members felt ill after the meal, and that the mistress exclaimed that she smelled burnt arsenic. Rumors were soon circulating which resulted in the arrival of a surgeon and police officer, who discovered a white glittery substance presumed to be arsenic in the pockets the young girl was wearing. She was arrested on the spot.

Thus began Victoire Salmon's long ordeal in the courts and prisons of Caen, Rouen, and Paris. Arrested in early August of 1781, she was not to

[5] The following summary of the case is based on the trial briefs cited below, on reports in contemporary newspapers and gazettes, and on Armand le Corbeiller, Le Long Martyre de Françoise Salmon (Paris: Perrin, 1927). Salmon's first names were Marie Françoise Victoire. I refer to her as Victoire because that is the name she seems to have used herself.


recover her freedom until May 1786. After a lengthy investigation involving dozens of witnesses, the bailliage (lower court) of Caen found her guilty on 18 April 1782 of poisoning the old man and attempting to poison her other masters with the intention of robbing them, and the Parlement of Rouen, where the case went on appeal, upheld the conviction a month later. Salmon was condemned to be tortured for the names of possible accomplices, to beg forgiveness in public barefoot and carrying a torch, and to be burned at the stake (the standard punishment for poisoners).

Although a scaffold was erected for Salmon in Caen, her execution was delayed owing to two developments: first, she was able to gain a respite by declaring that she was pregnant; and second, an enterprising young lawyer from Rouen named Pierre-Noël Lecauchois was convinced to take an interest in her case, which resulted in his obtaining in extremis a stay of execution from the king. The hundreds of bundles of documents pertaining to the case were then trundled up to Paris, where the king's conseil privé ordered a retrial and lobbed the case back to the Parlement of Rouen. It was while the case was being retried by the Rouen magistrates in the winter of 1784–85 that Lecauchois published the first of several trial briefs that were to make the case nationally famous; it was printed up in thousands of copies and sent all over France. On 12 March 1785 the Rouen parlement annulled the original verdict, and the case, along with Salmon herself, went back up to Paris, where another barrister, Jean-François Fournel, also produced highly successful briefs in her defense. On 26 May 1786, the Parlement of Paris granted Victoire Salmon a full acquittal. She emerged at the top of the great staircase of the Palais de Justice to find Paris both literally and figuratively at her feet. Salmon had been in prison for five years, but that summer dawn when she had walked on the road to Caen must have seemed light years away.

An event that followed shortly upon Salmon's acquittal deserves some mention here. After the verdict, Victoire Salmon and her defender were lionized by Parisian high society, paraded through the houses of the great, and plied with gifts. In June 1786, the pair were invited to attend a performance at the Comédie Française, the theater of the Parisian aristocratic elite. Salmon and Lecauchois were ushered onto the balcony, where they received an ovation from the crowd, and when a character onstage delivered a line about the triumph of truth, the spectators once again turned to the balcony and burst into applause.[6] The curious cultural syncretism in this scene seems neatly emblematic: a severely clad lawyer and a work-

[6] Bibliothèque Nationale [hereafter cited as BN], fonds français, MS. 6685, Journal of Siméon-Prosper Hardy, entry of 8 June 1786.


ing-class woman made into a spectacle for the rich and titled, amid the rococo finery of the Comédie Française. But while it is tempting to see in the theater the world of the past, and in the law that of the future, the story, as we shall see, is more complicated than that.

The trial briefs written by Pierre-Noël Lecauchois and Jean-François Fournel played a crucial role in the reversal of the case against Victoire Salmon, and there is abundant contemporary testimony of readers' enthusiastic response to them.[7] The Gazette des Tribunaux , for instance, informed its readers that Fournel's first brief "caused the greatest sensation in the Palais [de Justice] and among the public" and went on to praise the lawyer's "gracious and fluid style," "good taste and wisdom," and "vigorous argumentation."[8] What I want to suggest is that the effectiveness of the mémoires in the case was dependent on the successful enlistment of readers in two capacities—as an audience for a certain type of performance, and as jury. First, it should be noted that, to borrow some terms from literary criticism, mémoires judiciaires are quintessential discourses (rather than histories) in that the narrative is explicitly addressed to an inscribed (rather than implied) reader.[9] In theory, the readers of mémoires are the judges who will pronounce on the fate of the accused, and accordingly Lecauchois's first brief for Salmon—a first-person narrative in the voice of the young woman—opens with conventional invocations addressed to "venerable magistrates" and "upright judges."[10]

For the most part, though, the briefs for Salmon are framed to address a broader reading public of laypersons to whose sympathy the narrator recurrently (and shamelessly) appeals. "Unfortunate maid!" she exclaims. "Aged only twenty-one; a defenseless young girl! But forgive me, reader, if I stray from my account: my situation, my sex, my age deserve some consideration."[11] Lecauchois's first-person account makes copious use of a technique that will be familiar to readers of eighteenth-century fiction: rather than assert Salmon's innocence, virtue, and charms, the lawyer has her describe herself as she is perceived by (usually male) others, as do fe-

[7] For instances of the public's response to the briefs, see [Louis Petit de Bachaumont et at.,] Mémoires secrets pour servir à l'histoire de la république des lettres en France , 36 vols. (London, 1777–89), 31:277 (which mentions the public's "avidity" for such reading material); Gazette des tribunaux 16 (1786) ("this work caused in the Palais [de Justice] and in the public the greatest sensation"); and BN, ms. fr. 6685, 11 May 1785.

[8] Gazette des Tribunaux 16 (1786): 5.

[9] Susan Suleiman and Inge Crosman, eds., The Reader in the Text: Essays on Audience and Interpretation (Princeton: Princeton University Press, 1980), 14–15.

[10] Pierre-Noël Lecauchois,Mémoire pour Marie-Françise Victoire Salmon (n.p., 1784),1–2.

[11] Ibid., 17.


male narrators in the novels of Richardson, Marivaux, and Diderot. One of the judges instrumental in obtaining the harshest sentence against her had met Salmon, or so she claimed, at her first employer's house in the countryside, where he had made an unsuccessful pass at her: "He saw me there; my youth, my figure, and my bearing struck him; he had the kindness to tell me that I should come and serve [him] in Caen."[12]

The memoir-novel in the female voice thus served as an inspiration for texts that were aimed at a broad readership beyond the legal milieu; but the prominence of gesture and visual staging in these accounts also suggests a theatrical model. Because Salmon's experiences had indeed been wrenching (she very narrowly escaped execution on two occasions), the narrative of the case offered the authors of these briefs the opportunity to send readers hurtling from one emotional climax to the next. One of the most gripping scenes in Lecauchois's second brief occurs in the prison at Rouen, where Salmon is waiting for the outcome of the parlement's first deliberation. One of the wardens, perhaps out of compassion, informs her wrongly that the death sentence has been overturned. Giddy with relief, Victoire returns to her cell to make a cabbage soup, the first meal she has been able to swallow in days. But a fellow prisoner knows the truth and brutally informs her that she is going back to Caen to be executed: "At this terrible news, the touching features of this unfortunate girl took on a deathly hue. Her eyes rolled back, she cried: Ah! Great God! Horrors! And then fell to the ground senseless."[13]

Jean-François Fournel's account of the same scene describes it in more detail, and more explicitly clues the reader in to its meaning. He prefaces his account—this one a third-person narrative—with the observation that the guilty and the innocent react very differently to the news of imminent execution; the former lose all courage and implore the judges and the heavens for mercy, while the latter are galvanized into furious outcries against human injustice, and when they implore God, "it is less to ask for mercy than to demand justice."[14] Salmon's reaction to the news, her gestures and the words she uses, spell out her innocence in terms that cannot be mistaken by those who witness the scene: "She appeals with loud cries to Divine Justice; she calls upon all the heavenly judges against her persecutors; she cites them before the Tribunal of the Sovereign Judge; now with her brow to the ground which she drenches with her tears; now on

[12] Ibid., 11.

[13] Pierre-Noël Lecauchois Justification de Marie Françoise Victoire Salmon (Paris, 1786), 6–7.

[14] Jean-François Fournel, Consultation pour une jeune fille condamnée à être brûlée vive (Paris, 1786), 74.


her knees with her hands out to the heavens as the source of all justice, she begs for an act of their almighty power to rescue innocence."[15]

This scene can be called theatrical in a general sense, for instance in the fact that within the text it takes place before an audience: Salmon's assembled fellow prisoners, but also three priests who, convinced of her innocence, will be the ones to search out the lawyer Lecauchois and ask him to defend the girl. More specifically, most elements of this scene are what we might term melodramatic: pathos, exclamation, hyperbolic expressions and gestures, sketchy characterization, all belong to the melodramatic mode as analyzed by Peter Brooks.[16] Melodrama in its heyday, Brooks has argued, arose as a response to the waning of the traditional sacral authorities of church and monarchy. The flowering of melodrama in the late eighteenth and early nineteenth centuries was symptomatic of an urge to "resacralize" the world by locating good and evil in the drama of ordinary life and by replaying over and over, in unambiguously legible terms, the triumph of virtue and the defeat of vice.

Salmon's anger, her bowed head and tears, imploring gestures and howling for divine justice, as well as the relentless classifying and labeling typical of mémoires in this style ("Odious monster!" "Unfortunate maid!"), all belong to the linguistic and gestural repertoire of melodrama, which is, writes Brooks, "about virtue made visible and acknowledged, the drama of a recognition."[17] During the heyday of melodrama in France, in the first decades of the nineteenth century, plays in this genre frequently included a trial scene that represented "a final public reading and judgment of signs which brings immanent justice into the open, into operative relation with men's lives." Brooks cites a trial scene from Ducange's early melodrama Thérèse in which the villain Valther is tricked into accusing himself; he does so in terms that echo Salmon's, but in the mode of villainy: "Ah! ... Divine justice! ... yes, yes, I am your murderer, I confess my crime ... spare me. I will publish your innocence, my crimes.... Here are the proofs."[18] In such climactic scenes, gesture and language serve as signs that lead to the uncovering and making public of concealed, albeit simple, moral truths.

Although classic melodrama did not flourish in France until the early nineteenth century, it had its origins in a form of theater that became pop-

[15] Ibid.

[16] Peter Brooks, The Melodramatic Imagination: Balzac, Henry James, Melodrama, and the Mode of Excess (New York: Columbia University Press, 1985), 11–23.

[17] Ibid., 27.

[18] Ibid., 45.


ular around the middle of the eighteenth century, known as the genre sérieux and later dubbed drame bourgeois or simply drame . In 1757, Denis Diderot articulated the need for a new form of theater, one that would replace the abstractions of classical tragedy and the frivolities of contemporary comedy with something more germane to the experiences of ordinary spectators—the everyday tensions between members of a family, or the interactions of persons of different social conditions.[19] The essence of the genre sérieux was, according to Diderot, its didactic conveying of a moral lesson that would impress upon spectators "the love of virtue and the horror of vice."[20]

One characteristic of the genre sérieux was its predilection for the portrayal of persons of middling or lower conditions, as the titles of some of the most successful dramas in this style suggest: Les Gens de lettres, La Brouette du vinaigrier, L'Indigent, Les Trois Fermiers . Authors of drames also relied heavily on the visual representation of emotion by means of individual gesture or of dramatic painterly groupings called tableaux . In his seminal treatise on the genre, Diderot recommended the use of what he called "pantomime" as a support for dramatic action, and the replacing of contrived coups the théâitre (dramatic plot twists) with visually striking tableaux.[21] It is likely that the authors of the briefs for Salmon had the new theatrical conventions in mind when they included in their accounts episodes such as the scene in the prison yard or an earlier scene in which Salmon is shown weeping at the deathbed of the old man she was later accused of poisoning.

This is all the more plausible in that there is substantial evidence, in the writings of progressive thinkers of the later eighteenth century, of a belief that an ideally open courtroom (or, in its absence, published trial briefs) could fulfill the same exemplary function as this new form of drama—indeed, that the two could feed off one another. Louis-Sébastien Mercier, a prominent author of drames , suggested in his treatise Du théâtre (1773) that great court cases be reenacted onstage so that the public could witness them and then "confirm, through their cheers, the triumph of the law."[22] In his futuristic fantasy L'An 2440 (1770), Mercier imagined wak-

[19] Denis Diderot, Paradoxe sur le comédien, précédé des Entretiens sur "Le Fils naturel" (Paris: Garnier-Flammarion, 1967), 97–98.

[20] Ibid., 97. The major study of this genre of theater remains Félix Gaiffe, Le Drame en France au XVIIIe siècle (Paris: Armand Colin, 1910).

[21] Diderot, Paradoxe , 83, 105–9.

[22] Louis-Sébastien Mercier, Du théâtre, ou nouvel essai sur l'art dramatique (Amsterdam, 1773; repr. Geneva: Slatkine, 1970), 153.


ing up, Rip van Winkle style, in the future when the theater had indeed become "a public school for morality and taste" and going to see a play about the Calas affair.[23] Did Mercier know in 1770, one wonders, that several playwrights had indeed already used the Calas case as a subject for theatrical melodramas, none of which, however, were allowed onstage in France before the Revolution?[24] The conventions of contemporary stage melodrama, then, were pressed into service by Victoire Salmon's lawyers to interest readers in the fate of an obscure woman, to have them identify with her terrors, and above all, through gestures and words whose meaning could not be doubted, to make them bear witness as spectators to the unmistakable signs of her innocence.

Readers, then, were inscribed in the text of Lecauchois's and Fournel's accounts as spectators of a drama whose very telling proved the young woman's innocence. But the aims of these authors—and of many other ambitious barristers of their generation—went beyond the mere winning of a case. The Salmon affair was one of a series of cases that, in the mid-1780s, were used to dramatize the need for a drastic reform of France's system of criminal justice, and this purpose also governed the style and content of the mémoires .[25] Old Regime legal briefs were customarily divided into two parts: first a narration of the facts of the case (les faits ), which could be aimed at the general reader, and then a technical discussion of points of law and precedent (les moyens ), aimed at legal specialists and especially at the judges who would be pronouncing on the case. As the eighteenth century progressed, and lawyers increasingly courted the support of the general public, fame-seeking barristers involved in sensational cases often neglected the legal technicalities to concentrate on novclistically crowd-pleasing accounts of their client's case.[26]

Although, as we have seen, Lccauchois did not skimp on sensational storytelling in his account of Victoire Salmon's ordeals, he also included in his briefs some discussions of technicalities; these were not, however,

[23] W. D. Howarth, "Tragedy into Melodrama: The Fortunes of the Calas Affair on the Stage," Studies on Voltaire and the Eighteenth Century , no. 174 (1978): 125–26. The Calas affair of 1762. was Voltaire's first great judicial crusade. The writer managed, through publications and petitions, to rehabilitate the memory of a Protestant man, Jean Calas, who had been wrongly accused and executed for the murder of his own son. See Maza, Private Lives and Public Affairs , 27–33.

[24] Ibid.; Gaiffe, Le Drame en France , 378.

[25] Maza, Private Lives and Public Affairs , chap. 5.

[26] Ibid., passim; also David Bell, "Lawyers into Demagogues: Chancellor Maupeou and the Transformation of Legal Practice in France, 1771–1789," Past and Present , no. 130 (February 1991): 107–41.


aimed at specialists, but at laypersons. Along with his first mémoire , the lawyer published an Introduction to the Defense of Miss Salmon , which begins thus: "Since this brief will be coming before the eyes of a number of persons of different estates, the greater number of whom are not instructed in the points of departure from which criminal justice proceeds in order to acquire proof...."[27] He goes on to detail for his readers the bases on which criminal convictions are secured: confession, written proof, the testimony of witnesses, clues or circumstantial evidence (indices ), and inanimate objects (témoins muets ).

There was, of course, an immediate reason for this exposition; indeed, Lecauchois segues from it into explanations both of the absurdity of some of the rules for establishing guilt and of ways in which procedure had been bungled or misapplied in the Salmon case. He objected, for instance, to the use of indices as fractions of truth that could be added up: how, he asked, can one speak of a quarter or an eighth of truth?[28] Lecauchois then mounted his case for the defense on a wide array of grounds: forensic evidence from the autopsy of the old man, procedural flaws in the investigation, contradictions in the testimonies of the witnesses, the suspicious behavior of the Duparc family, lack of evidence against the accused and of solid motive for the crime, and so on.[29] Thus, Lecauchois used the case to show up some of what he considered to be faulty premises in contemporary jurisprudence, at the same time arguing that even within the parameters of the law as it existed the case against Victoire Salmon was severely flawed.

Lecauchois's defense of Victoire Salmon contained both explicit and implicit attacks on Old Regime criminal law, attacks that echoed a whole body of recent writings on the subject. The reform movement of the late eighteenth century—which would come to dramatic fruition in the Revolution's overhauling of France's judicial system—was touched off in the 1760s by Voltaire's involvement in the Calas case and by the publication and translation of Cesare Beccaria's treatise on crime and punishment.[30] By the late 1770s and early 1780s, the trickle of publications on the sub-

[27] Plerre-Noel Lecauchois, Introduction aux défenses de la fille Salmon (n.p., n.d.), i.

[28] 28. Ibid., i–v.

[29] Lecauchois, Justification , 45–54.

[30] Peter Gay, The Enlightenment: An Interpretation , vol. 2: The Science of Freedom (New York: W. W. Norton, 1977), 423–37; David Jacobson, "The Politics of Criminal Law Reform in Late-Eighteenth-Century France" (Ph.D. diss., Brown University, 1976), 59–71. The Milanese nobleman Cesare Baccaria's Del delitti e delle pene (1764), which argued for reforms to make European judicial systems more rational and humane, became a blueprint for reformers in several countries in the later eighteenth century.


ject had grown into a torrent. In response to contests on the subject organized by provincial academies, prize-winning essays calling for reform were penned by ambitious young lawyers whose names were soon to become famous: Jacques-Pierre Brissot, Jean-Paul Marat, Maximilien de Robespierre.[31]

In criticizing not only the way this particular case was handled, but also some of the system's basic features, Lecauchois was drawing on ideas commonly articulated by such reformers. He objected, for instance, to the fact that charges were drawn up in the absence of the accused (who thus often didn't know what he or she was accused of) and to the fact that the defendant's lawyer did not have access to the records of the case. In a ghoulish passage, he invoked the victims of other famous miscarriages of justice, a familiar litany in the reform literature of the age: "Ghosts of Lebrun, of the Danglades and Fourrés ... bring forth your grief-stricken, ruined families; uncover your bloody corpses, some cruelly mangled by torture and mutilated on the gallows, others crushed with blows, crawling, expiring on the galleys."[32] A powerful critique of contemporary institutions was also implicit in the way the lawyer framed his brief. By instructing his lay readers in the rules for weighing evidence and determining guilt—even as he criticized some of those rules—Lecauchois rhetorically cast his audience in the role of a jury. Such institutions, however, did not exist in France, as they were antithetical to the basic premise of Old Regime jurisprudence, the dispensing of justice from on high in the name of a divine-right monarch.

What, finally, is the link between the two rhetorical strategies adopted by Victoire Salmon's defenders—that which made readers into the spectators of a melodramatic performance, and that which cast them in the role of a jury? I want to end by arguing that the link is that suggested by Scott Bryson in his stimulating volume The Chastised Stage . Commenting on the many analogies in late-eighteenth-century discourse between penal and theatrical reform, Bryson suggests that the essence of these parallel systems (the playwright as lawmaker, the stage as tribunal) is the desire to educate and, through education, to control. Bryson posits that penal and aesthetic reform—as advocated for instance by Beccaria and Mercier—both point to a profound shift in the nature of authority as it is made manifest onstage and in proposals for new ways of judging and punishing: "These reforms conceive of representation whether legal, theatrical, or pictorial, no longer as a static, idealized, reflection or image of

[31] Jacobson, "Politics of Criminal Law Reform," chap. 7.

[32] Lccauchols, Justification , 33.


power, separate and aloof from the public, but as a dynamic strategy of manipulation and control."[33]

Bryson's approach to the question is of course much indebted to Foucault. In Discipline and Punish , Foucault argues that the logic of Old Regime penology, of public torture, amende honorable , and ceremonial public executions, was that of vengeance and expiation.[34] The body of the condemned criminal was the locus on which the heinous nature of the crime was first affirmed and then obliterated. A criminal was considered to have offended not his or her fellow subjects, but the divinely ordained society and polity incarnated in the monarch. And just as power was vested in and displayed through the body of the king, punishments that spelled out the hideous nature of the crime were performed on the body of the criminal—a branded letter for theft, a severed tongue for blasphemy, a body reduced to ashes for crimes such as parricide that defiled society.[35] Both the criminal and the public assembled for the execution of a sentence were to participate actively in a ritual expiation thanks to which a crime was "manifested and then annulled"—the condemned by (ideally) showing remorse and begging for forgiveness, the crowd by serving as witness to a drama of physical agony and spiritual redemption that washed away the crime.

The late-eighteenth-century reformers, most of them men of law like Fournel and Lecauchois, who began to chip away at Old Regime penology, argued against torture and cruel punishment and for the publicity of proceedings, the right to counsel, jury trials, and the like—and it takes all of Foucault's gleeful perversity to argue that none of this represented "progress." But it is the case that some of the ideas put forth by these early reformers seem just as barbaric as the system they were designed to replace. One of the standard-bearers of the movement, Michel de Servan, argued in all his writings that in order for punishments to be socially effective they should be both swift and certain: "Here is the moment to punish crime, do not let it escape, make haste in convicting and judging, erect scaffolds, set stakes aflame, drag culprits into the public squares, call the People with loud cries.... You will see joy exploding, and that virile insensitivity that comes from the love of peace and the horror of crime."[36]

[33] Scott Bryson, The Chastised Stage: Bourgeois Drama and the Exercise of Power (Stanford: Anima Libri, 1991), 5.

[34] Michel Foucault, Discipline and Punish: The Birth of the Prison , trans. Alan Sheridan (New York: Vintage Books, 1977). The following synopsis is based on pages 3–69.

[35] Ibid., 43–47.

[36] Michel de Servan, Discours sur l'administration de la justice criminelle (Geneva, 1767), 36; see also Charles Prud'home, Michel de Servan (1737–1807): Un Magistrat réformateur (Paris: Larose & Tenin, 1905).


Reformers also, following the example of Beccaria, drew up elaborate taxonomies precisely relating the crime with its punishment. François Vermeil, for instance, wrote that the penalty should be that "most contrary to the vicious predisposition that produced the crime ... the most suited to repress it and the most efficacious."[37] Thus, adulterers should be banished from the community, crimes of "idleness" like theft should be punished by forced labor, and so on. This preoccupation with congruence between crime and punishment could also involve a sadism every bit as lurid as that practiced under the old system: arsonists should be thrown alive into the flames, poisoners have a cup of poison tossed at them before being thrown alive into a vat of boiling water, parricides left to rot away in a cage suspended above the ground.[38] Foucault argues that this is not, however, merely a slight modification of traditional penology; the purpose of classifications like Servan's or Vermeil's was not symbolic expiation but didacticism, the penalty being calculated "not in terms of the crime but of its possible repetition."[39]

In the new codes, chastisement took on the more abstract qualities of a language, a decipherable set of signs that were not replicas of the crimes but compressed narratives of the action committed and its effects on society. The purpose of punishment was no longer a "symmetry of vengeance," a biblical "eye for an eye," but a lesson that could be read for the edification of onlookers. François Vermeil imagined, in a properly reformed society, the public's reaction to the acquittal of an innocent man or the conviction of a guilty one: "Prepared for either one of these events by an illuminating report and a wise discussion, the Public would find in this exposition a moral lesson all the more persuasive in that example and precept would be conjoined and punishment would follow closely on crime."[40] The spectacle of punishment, then, would no longer serve to reflect the glory of a monarch and restore the integrity of the body politic; its object would not be primarily retribution, but the enshrining within the consciences of spectators of the word of law.

In Scott Bryson's view, the new aesthetics of the "bourgeois drama" sought to provoke a similar internalization of moral norms.[41] In classical

[37] Françoid Vermeil, Essai sur les réformes à faire dans notre législation criminelle (Paris, 1781), 30.

[38] Ibid., 66–157.

[39] Foucault, Discipline and Punish , 93.

[40] Vermeil, Essai sur les réformes, 236–237.

[41] The next two paragraphs draw on Bryson, The Chastised Stage .


drama, the source of authority, the ultimate referent, be it the king, the Christian god or the gods of antiquity, or the timeless truths of character, lay outside the sphere of representation. The function of the audience within this "classical" system of representation was to serve as a witness to dramas that reflected a higher reality. In the new aesthetic code pioneered by playwrights like Diderot and Mercier, moral truth was located not beyond the visible stage but within a fiction that reflected the dynamic realities of history, of daily experience, and of social or familial relationships.

Paradoxically, the new aesthetic, whether in the plays of Mercier or in the paintings of Greuze, presented closed, self-absorbed worlds, which appeared to negate their spectators but in fact by this very act of negation drew them in all the more. In Bryson's view, then, the new theater resembled the penal codes drawn up by reformers in that both narrated stories in whose telling the public was implicated: the actions of a criminal or the dynamics of a family partook of a collective history that was shared by the public and that led to the acceptance and internalization of legal norms and moral standards. Bryson's argument helps us to make sense of the apparently hybrid nature of eighteenth-century mémoires judiciaires such as those written for Victoire Salmon, which function simultaneously as melodramatic performance and as object lesson in the values and procedures of a reformed judicial system.

The transformation in public culture that took place at the end of the Old Regime is therefore somewhat more complex than that suggested by some scholars who describe it as a shift away from the primarily iconic (the body of the king) to the primarily textual (the word of the law).[42] Peter Brooks argues that in the Revolution the spectacular body politics of the Old Regime was displaced not by words alone, but by a new "aesthetics of embodiment." Revolutionary rhetoric was abstract, to be sure, but its Manichaean utterances were given bodily existence, Brooks argues, in contemporary stage melodrama. Melodrama, thus, was "the genre, the speech, of revolutionary moralism; the way it states, enacts, and imposes its moral messages in clear, unambiguous words and signs."[43]

The changing place of the body in eighteenth-century public culture is perhaps best understood diachronically. The static, iconic public sphere of the Old Regime was undermined, as Jürgen Habermas has argued, by

[42] See note 1.

[43] Peter Brooks, "The Revolutionary Body," in Fictions of the French Revolution , ed. Bernadette Fort (Evanston, Ill.: Northwestern University Press, 1991), 42.


commerce and the print medium, and especially by the commercialization of the print medium, as represented, for instance, by the mémoire judiciaire . The abstractions of print culture created a diffuse "public" of readers, who through the use of their critical reasoning faculties would evolve into a politically oppositional public sphere.[44] In order for that public to be as inclusive as possible, however, writers had to enlist the power of gesture, the visual representation of the body, which they found in the pantomime and tableau of the genre sérieux .

In the judicial sphere, the mémoires represented a blueprint for what became, in the postrevolutionary judicial system, the oral testimony before a jury. On the subject of the transition from the Old Regime's written, secret procedure to the postrevolutionary open courtroom, Katherine Taylor writes that oral testimony "revolves around facts and acts, described in narrative and gesture. It ... blends evidence into performance, encouraging the listener to judge the credibility of the speaker as well as the statement."[45] In the judicial sphere then, the transition process comprised two stages: the printed mémoire judiciaire undermined traditional "representation" (inasmuch as the all-powerful judge "represented" the king), but the print medium in turn relied, for greater impact, on the stage melodrama's new "aesthetics of embodiment." The public culture of postrevolutionary France was the product of a mutually reinforcing exchange between the print medium and the stage.

Sébastien Mercier dreamed in 1773 of a theater that would be "a sovereign court to which the enemy of the nation would be summoned, and before which he would be delivered to infamy, the audience's cheers sounding to his ears like the thunder of posterity."[46] He could never have imagined that his wish would come true twenty years later, with a king of France in the role of the nation's foe. As Michael Walzer suggests, the public trial and execution of Louis XVI disposed simultaneously of both of the king's bodies. By making Louis the king answerable to the nation as embodied in a public assembly, the deputies of the National Convention disposed of the transcendent, ahistorical monarch, the linchpin of the Old Regime's society and polity. But they also killed Louis Capet, a man whose historical actions and destiny had placed his mortal body in

[44] Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society , trans. Thomas Burger and Frederick Lawrence (Cambridge, Mass.: MIT Press, 1989), esp. chap. 2.

[45] Katherine Taylor, "The Representation of Criminal Justice in Second Empire Paris" (typescript), 15.

[46] Mercier, Du théâtre , 62.


jeopardy.[47] The readers and spectators of the trial of Louis Capet were implicated through the narrative of the Revolution in his bodily fate, just as less than a decade earlier readers had been drawn through other narratives into the historical, bodily destiny of an obscure woman, Victoire Salmon.

[47] Michael Walzer, Regicide and Revolution: Speeches at the Trial of Louis XVI (Cambridge: Cambridge University Press, 1974), 1–34.


8 The Theater of Punishment Melodrama and Judicial Reform in Prerevolutionary France

Preferred Citation: Melzer, Sara E., and Kathryn Norberg, editors From the Royal to the Republican Body: Incorporating the Political in Seventeenth- and Eighteenth-Century France. Berkeley, Calif:  University of California Press,  c1998 1998.