The case is minuscule, and therein lies its greatness.
One named Hugot was brought before the criminal court of the Yonne for theft by means of false keys. The jury returned its verdict on the facts: there had been an attempt, but no theft consummate. The court nonetheless condemned him to eight years in irons, pursuant to the article of the penal code that visited such punishment upon theft committed with false keys.
Hugot appealed in cassation, and his petition, preserved in the pages of the Gazette, stands as a minor masterpiece of legal reasoning.
The law, he argued, speaks of a crime consummate; yet it is for an alleged intent to commit a crime that I am struck down. The law is silent. An oversight, I grant you; public interest demands that this void in the penal code be filled. But falls it to the judges to fill it? Are they legislators? Are they permitted to strike from the Declaration of Rights that sacred maxim: “No one may be punished except by virtue of a law established and promulgated prior to the offense, and legally applied”?
And he went further: the silence of the law was perhaps no oversight at all. The code punished attempted assassination, attempted poisoning; had the legislators not likewise penalized attempted theft, they surely had their reasons. At the very most, his offense was a matter for the municipal police: a simple nocturnal disturbance.
The Court of Cassation found in his favor. By a judgment dated the 13th of April 1793, it quashed the conviction on the grounds that the court of the Yonne had applied to a mere attempt an article directed solely at theft achieved and consummate, and referred the case to the criminal court of the Loiret.
It was the spring of 1793; the Revolutionary Tribunal had just been brought into being, and before long men would be condemned in Paris on the strength of tavern chatter. There is something profoundly stirring in seeing, within the very same Gazette, a thief from the Yonne spared eight years in irons by the selfsame principle that the Terror was about to trample underfoot.
Gazette des nouveaux tribunaux, 1793, Tribunal de cassation, judgment of April 13, 1793 (Hugot case, criminal court of the Yonne).