Réflexions sur la Justice et la peine de mort. Manuscrit non retenu par l'auteur pour le Voyage d'Italie

Unpublished manuscript written in an unknown hand, probably that of one of the Marquis' scribes. Crossings-out and strikethroughs by the scribe and 7 annotations and strikethroughs by the Marquis de Sade.
Provenance: family archives.
Very important preparatory manuscript for the Voyage d'Italie, in which the young Marquis de Sade, under the cover of a study of the Roman judicial system, develops the great philosophical themes of his future novels.
The first leaf of the manuscript is missing; the Marquis did not retain it during the different stages in which he developed his text. We know this because the notebook was found in this state when his chest, which had been kept sealed by the family since his death in 1814, was opened in 1948. This fine unpublished manuscript attests to Sade's meticulous method of working. When preparing to write his Voyage d'Italie, Sade initially received assistance from several correspondents, notably Mesny and Iberti, two friends whom he had met on his travels. The Marquis used the very detailed notes contained in their letters, put them in order, and then drafted the text of his future publication with the help of a scribe. Our manuscript falls within this third and penultimate working stage, before the final polishing of the text.
Le Voyage d'Italie, a vast encyclopedic project in which the Marquis de Sade strove to depict both the country's architectural and artistic monuments and its habits and customs, is a hybrid text made up of book reviews, personal observations, and information gleaned from various correspondents in Italy. Through this immense documentary endeavor, the writer intends above all to shed light on the loosening of Italians' morals, in contrast with the splendor of the great masters and thinkers of the past.
The work was never completed as Sade was imprisoned in 1777, and this Italian saga was published by Maurice Lever on the basis of the Marquis' unfinished manuscript. The notes we have available for acquisition are unpublished and exceptionally rare: Sade's early writing is most precious, particularly the documents relating to the Voyage d'Italie, his only piece of writing of significant scope preceding his imprisonment.
The text in this notebook begins with a succinct description of the role, actions, and powers of the Capitoline Hill, a “small tribunal [...] that possesses nothing effective other than a vain title of faculty and power.” Very quickly, however, no further mention is made of it and the Marquis, positioning himself as an Enlightenment thinker, sets out and develops the philosophical themes that would become recurrent both in his future works and in his correspondence. Legitimizing the figure of the natural-law criminal, the fruit of a society characterized by ineffective justice, Sade advocates the utopia of a society that abolishes the death penalty and puts the strong and the weak on an equal footing.
This text, written several years before the French Revolution, is a diatribe against the Italian system of justice, which Sade considers to be totally ignorant of the most serious crimes, being aware only of “minor offences in certain places alone.” Adopting an anomic approach, he even goes as far as to demonstrate the pointlessness of the judicial apparatus, arguing that the existence of courts would be superfluous “if the city were well regulated and if each man through his work [could] maintain himself and all his family.”
From this perspective, Sade views magistrates as scornful, cruel, and power-hungry authorities: “If a man in Rome receives the most atrocious injuries, if he is subject to some vile and dishonorable act, in return for his complaints to the authorities dispensing justice he will receive only a contemptuous snigger and his impertinence will be laughed at.”Make no mistake, however, Sade was not totally opposed to courts; above all, he thought that justice must be delivered promptly and effectively in order to prevent honest citizens from taking justice into their own hands and joining the ranks of the criminals against whom they avenge themselves: “Every time a man suffers some injury, he will, should he not find the courts disposed to take up his defense, seek for himself the satisfaction he expected from the authorities of justice.” This, according to Sade's argument, is an impotent justice system that engenders crimes. Dispossessed citizens are therefore within their rights to mete out justice themselves through private vengeance. Opposing ancient positive law, according to which “None may deliver justice to himself,” Sade advocates natural law and legitimizes personal vengeance, which he declares superior to legal punishment. Jean-Baptiste Jeangène Vilmer develops this idea and notes that according to the Sadian dialectic “the law may strike the innocent whereas vengeance strikes only the guilty” (Sade moraliste, Droz, Geneva, 2005).
By introducing natural law into his philosophy, Sade recognizes man's propensity to commit crimes. In this text he states his maxim, which he erects as a universal rule: “Nothing is more important for life than natural law.” It is indeed the natural-law criminal that our libertine philosopher depicts here, arguing that “the excess of passion should excuse murder.” Sade observes that murders and disputes between citizens result from “different causes,” in particular the “quantity of privileged places,” that is to say, the inequality of wealth. The philosopher also excuses those crimes inevitably perpetrated by necessity: “As soon as daily bread is lacking and daily work cannot provide it, man is entitled, since it is impossible to steal from the baker every day, to take from another a superfluity that has in fact been taken from himself.”
It is thus pointless to imprison those who commit such petty crimes, as once they leave prison they are even poorer and more inclined to commit other crimes. Reflecting on the question of petty theft, Sade declares that it is not reprehensible to steal superfluous wealth—particularly that of the Church—since the end justifies the means: “Thus it is permissible to pillage churches in which, buried beneath the marble, are useless riches that may be of assistance to the unfortunate only after they have been stolen from them.”
This is thus also a text about equality, particularly between the powerful and the weak, that is to say, between the rich and the poor.
Sade remarks from the outset that crimes are committed because leaders pay no attention to the poverty that moves the needy to commit crimes: “Most of the great and the good do not know or do not wish to know or reflect that crimes originate universally from principles that one could remedy.” Here our young philosopher lays the foundations of social reform: to enable the destitute to no longer be so would be one of the solutions to end criminality. From this pre-revolutionary stance, the Marquis even goes as far as to claim that it is the privileged who are “the authors and the leaders of an equally perverse disorder.” Enjoying total impunity, they allow themselves to take the most reproved of actions, caring not a whit for the consequences of their acts: “A prince and any other powerful lord may with impunity commit toward an inferior any act of inhumanity one can imagine: he does not fear condemnation by the law.” It is worth recalling that Sade, at the time when he wrote this passage, when he was benefiting from the influence of his family and the Montreuil clan, had recently avoided capital punishment for the Arcueil and Marseille affairs.
The imbalance between the different social classes is also singled out by Sade, who emphasizes the impunity of some citizens who benefit from the protection of influential personages: “To this may be added immunity and the assurance of finding shelter to take cover from an infamy one has committed. A man may quite blithely kill his own father; he is assured of finding the means to escape the prosecution of the courts since the unjust power of the churches, ambassadors, ministers, and the great and the good authorizes and defends the impiety.” Here Sade excoriates those who protect criminals and citizens of the highest social ranks, and principally the representatives of the clergy. Concerning the Church, he bases his remarks on an example directly known to him: “It is impossible to react without surprise to the response of one worthy from the ecclesiastical clergy, who, when asked why he gave shelter to so many crooks, replied that the reprobates need my protection since honest people have no need of it.” This already gives us a flavor of the religious characters of Sade's future works: sarcastic, sadistic, and committing the worst misdeeds under the cover of “protection.”
An interesting passage, also concerning the privileges granted to certain castes, evokes the bearing of arms. In Sade's writing, this question is also synonymous with injustice: “All those in livery in the service of nobles may carry all sorts of forbidden weapons, and so the citizen remains defenseless when exposed to the insults of the rabble. Yet if a poor man should be convicted of having some forbidden weapon, he would be punished with the rack for life, or with some other similar punishment.”
The question of punishment, the culmination of this text, is for its part considered in some detail by Sade, who approaches it from two levels. First, the punishment must be proportional to the misdemeanor: “For example, we sentence a man to pay twenty crowns for a crime he committed; if he cannot disburse this sum, he must pay for the crime with the rope. Is this disproportionality more unjust? And we will say that a prince, for whom twenty crowns is a mere trifle, has suffered a punishment equal to that of the man who perhaps perished in torment.”
Sade then goes on to discuss the inequality of torture, invoking the example of the torturous strappado; a marginal note in his hand moreover states: “Explain torture by the rope.” This remark did indeed give rise to a long explanation of this punishment, retranscribed by Maurice Lever as an appendix to his edition of the Voyage d'Italie (pp. 438-439): “This form of torture is a rope passed through a very high pulley. The criminal is raised up to the pulley, and then all of a sudden he is dropped within an inch of the ground. Then he is again raised in the same way, five or six times, such that most often he remains convulsing and trembling for several hours.” The approach adopted by Sade in the text we have for acquisition is reform-minded: he suggests taking account of the physiology of each subject when the method of the strappado is used: “Even the rope cannot be used in an even way for the same crime, because this type of punishment, being for one what five would be for another, will lead to the death of those unfortunate enough not to be able to withstand it. It does not suffice to have recourse to the ignorance of physicians, since one will lose his life out of weakness, while the other, through his vigor, will have ruptured and broken [blood] vessels.” Sade even adds: “One may thus conjecture about all afflictive punishments that it would be more appropriate to proportion them to the temperament of their unfortunate subjects.” Jean-Baptiste Jeangène Vilmer observes that Sade's observations on the Italian method of torture the strappado should be related to those of the Italian philosopher Cesare Beccaria. Very interested in the equity of the judicial system and influenced by the Enlightenment, Beccaria published On Crimes and Punishments in 1765. In this work he recommends making the punishment proportionate to the crime and declares that “torture is the surest way to absolve the most robust villains and condemn the most idiotic innocents” The two philosophers were also in agreement on the ineffectiveness of the use of torture, with Sade arguing: “This court will still retain the horrible usage of a thing that more often sees the innocent perish than the guilty, because the former seeks to avoid the cruel and unjust torment, hoping to have to justify his innocence, whereas on the contrary the criminal awaiting only death suffers his torments more easily.”
Through this text, and long before the great works that would bring him renown, Sade lays out progressive philosophical concepts and distills the ideas that would nourish and inform his future novels, particularly on the issue of the death penalty. Moreover, it is in Voyage d'Italie that we find the very first trace of a reflection and stance on capital punishment. The young philosopher initially inveighs against capital punishment because, like religious sacrifices, it is a public spectacle intended to serve as an example: “It is imagined that a cruel example suffices to keep a man from committing a crime, whereas on the contrary the multiplicity of the spectacle accustoms him to scorn death.”Despite the use of the term “cruel example” in this passage, Isabelle Rieusset-Lemarié remarks: “Thus what shocks Sade about the death penalty is not its violence, since he refuses to condemn murder, but the fact of subtracting murder from the one thing that legitimizes it in Sade's eyes, namely its ‘naturality'” (“Sade révolutionnaire. Fiction et réalité,” Elseneur, 6, La Révolution vue de 1800, Caen, 1990). According to Sade, there exist “torments greater than our feelings and a thousand times more cruel than death itself”; in this sense, the use of such a punishment is entirely unsuitable and is not a solution in itself. Since man, a pre-social being, is not responsible for his crimes for the different reasons previously evoked, “it is not just to punish their repercussions by the annihilation of he who commits them.” Again contrasting it with natural law, Sade considers that judicial law, a human invention, is not fit to put an end to a man's life. Even while writing the Voyage d'Italie, Sade draws a clear distinction between a murder of passion – that of one individual by another – and legal murder, that of an individual by political authority, the law.
This early and unpublished text by the Marquis de Sade, written several years before his long imprisonment, already contains in embryonic form the great philosophical ideas of his novels. Over twenty years later, in his scandalous Philosophy in the Bedroom (1795), he would write: “From these first principles results the necessity to make clement laws, and above all to do away for ever with the death penalty, for a law which attacks man's life is impracticable, unjust, inadmissible... there are cases when men may be justified in attempting another's life, but the law cannot be, for it is passionless, and passion is the only excuse which can legitimize the cruel action of murder; man receives from Nature impressions which may make such an action pardonable, but the law on the contrary is always in opposition with Nature and receives nothing from her; since it has not the same motives it cannot have the same rights.”
$ 20 000