Thursday, 31 January 2019

Criminal law reform, 1788


Engraving showing a lit de justice held at Versailles on 6th August 1787 (detail)
https://gallica.bnf.fr/ark:/12148/btv1b8410540k/f1.item

A last hope of reform

In the dying moments of the Ancien Regime, Louis XVI's government finally embraced, and so nearly delivered, the long awaited reform of criminal justice. It was in April 1787, during the Assembly of Notables, that Miromesnil fell from power to be replaced as garde des sceaux by the president  Lamoignon.  This represented a significant victory for Fréteau, Dupaty and the advocates of reform: "Seeing a Lamoignon on the throne of justice" wrote Dupaty, "humanity is permitted more than ever to hope for the reformation of the laws, to hope that he will take up the immortal mantle of his ancestor" (quoted  Marion,  Le garde des sceaux Lamoignon  p.45) . The moment was ripe - In the Assembly of Notables,  Lafayette, seconded by the ducs of Châtelet and La Rochefoucauld and the  maréchal de Beauvau, presented a motion against the Ordinance of 1670.   Lamoignon started work immediately in conjunction with his secretary Jean Blondel and the advocate Lacretelle.  Early in 1788 followed the example of the 1670 conferences,  a commission of six jurisconsults was set up to draft the reforms.  This included Guy-Jean-Baptiste Target and his Jansenist colleague Louis-Simon Martineau.  After the triumphant conclusion of the Trois roués case, Dupaty and the abbé Maury were also brought into consultation. (Aut pati aut mori commented the wags.) 

Although deliberations were still ongoing, an initial set of reforms - which very much reflected Dupaty's views - was packaged as the Criminal Ordinance of 1st May 1788.  This was one of the famous "Six Edicts" thrown out in the lit de justice of 8th May, along with Lamoignon's onslaughts on the prerogatives of the Parlement. The commissioners resigned in protest, and  Dupaty himself felt obliged to vote against the edict which represented the culmination of his life's work.  Thus was a final opportunity lost and the work of law reform was left to the Revolution to complete.


The Royal Declaration of 1788

The clauses of the edict were introduced by a Royal Declaration, delivered at Versailles on 1st May 1788.  This speech acknowledged the necessity for a wholesale reform of criminal procedure. Homage was paid to the great Ordinance of 1670, but the "progress of Enlightenment" was emphasised, as was the need to bring practice in line with "public reason".  The proposed reform was to be prefaced by a prolonged consultation, which sought to avoid the "esprit de système" and the charge of introducing excessive clemency.  In the meantime, the Edict proposed a limited number of measures to address the most glaring abuses (though not, it must be noted, the substantial issues of secrecy and lack of defence counsel.)



DECLARATION OF THE KING,
Relating to the Criminal Ordinance

LOUIS, BY THE GRACE OF GOD, KING OF FRANCE AN D NAVARRE;  To all those who will see these present Letters, Greetings.

The great administrative goals which occupy us have not caused us to lose sight of other improvements to be brought about through our love for our People. Our criminal laws, which form so important a part of public order, particularly merit our attention, since they interest both our humanity and our justice.  When Louis XIV, of glorious memory, decided to give his Courts the code which today still regulates their judgment in criminal matters, he preceded this memorable act of wisdom with solemn conferences; it was after consultation with the most respected magistrates of the nation that he published his Ordinance of 1670.

We shall not conceal that while retaining the greatest number of  provisions of the Ordinance of 1670, we could advantageously change several of its principal articles and amend it without abolishing it.  We have taken into consideration that in bringing order out of the chaos of criminal jurisprudence, the Commissaries were not able to provide for every contingency, that the official reports of their conferences bear witness that they were often at variance upon important points, and that their decision did not appear always to sanction the wisest opinions ; that the progress of enlightenment since the drawing up of that Ordinance should be sufficient to induce us to revise its provisions carefully, and to attune them to that public reason, to the level of which we would adjust our laws . . . from the example of the legislators of antiquity, whose wisdom limited the authority of their Code to a period of a hundred years, we have noticed that, this period having now expired, we ought to submit this Criminal Ordinance, which has undergone the judgment of a round century, to a general revision.

[Lamoignon in his speech at the lit de justice was still more precise:  "The necessity for a reform of the criminal Ordinance and of the criminal code is universally recognised.  The whole nation demands this important work of legislation from the king, and His Majesty has resolved in the councils to accede to the wishes of his people" (Quoted Esmein p.394)]

To undertake this great work with the requisite order and wisdom, we propose to surround ourselves with all the intelligence we can gather around the throne on which divine Providence has placed us.  All our subjects shall have the power to take part in the exe- cution of the plan, by addressing to our keeper of the seals such observations and memorials as they deem fitting to enlighten us. We shall thus raise to the rank of laws the results of public opinion, after these shall have been subjected to the test of a mature and deep investigation.

Louis XVI as Father of His People:  the King distributes alms to poor peasants in the Winter of 1788
Engraved by Pierre-Michel Adam, after a painting by Louis Hersent, 1817-22
http://gallica.bnf.fr/ark:/12148/btv1b6940197m
This imaginary scene was chosen for display in the exhibition at the which marked the  200th anniversary of the Napoleonic  "Code Penal"  in 2010 -  a reminder of the spirit of benevolence which royal government sought to evoke in its abortive reform of criminal justice in 1788
The "spirit of system" will always excite our distrust. We wish to avoid all excess in the reform of our criminal laws. This includes excessive clemency, which would be pleasing to indulge if it did not encourage crime by the promise of impunity.  Our consistent goals, in the revision of our criminal laws are:  to deter crime by the certainty and example of punishment;  to make innocence manifest by proper procedures; to make punishment inevitable by removing  severe penalties that encourage toleration rather than the denunciation of crime; and to punish wrongdoers with all the moderation that humanity demands and that the interest of society permits to the law.

In the interim a few particular abuses singled out for correction."several abuses which this appeared a moment to remedy":Whilst waiting to achieve fully this useful revolution, we hope to bring our subjects benefit by announcing the abolition of several abuses that can be immediately remedied.


The Lost Reforms:

 Abolition of the sellette and other practices designed to humilitate those interrogated:

Another abuse that we propose to suppress with immediate effect is interrogation on the sellette. This shameful practice has never been one of the class of penalties (Declaration)

Article 1: 
The sellette  is abolished....We ordain that there shall be placed, in our courts and jurisdictions, behind the bar, a wooden seat or bench, sufficiently raised that the accused can be seen by all their judges;  we leve it to the choice of the said accused whether to sit or remain standing;  the presidents of our courts and the judges who preside at the trials in the jursidctions shall warn them of their rights

Article 2:
The accused will no longer be obliged to surrender their clothes and exterior marks of their estate, merely their arms.


Judgments must state the crimes for which the accused is condemned:

"The very dignity of our judgment demands the express statement of the offences. What tribunal could be anxious for the prerogative of inflicting capital punishment without giving a reason for its decrees? The king therefore thinks, gentlemen, that every solemn condemnation, which makes punishment follow the offence, should show the offence as well as the punishment(Speech of Lamoignon)

Article 3:
Neither our judges nor our courts shall be entitled to pronounce sentence, for the crimes resulting from the action;  it is our will that every decree or judgment shall set out and expressly name the crimes and offences of which the accused has been judged and those for which he is convicted.


Judgments in favour of death should command a clear majority

Article 4: 
The severest judgment should no longer prevail: a majority of two votes is no longer enough to sustain capital punishment; three are necessary.


There should be a delay between judgment and execution

Lamoignon assures  his hearers that this was not merely to prolong the agony of the condemned, but to allow time for appeal: "The king wishes to insure to all condemned persons the time necessary to beg for his mercy and to make sure of his justice.  In enlightened countries of Europe all capital sentences are subject to the approval of the sovereign." 

Article 5-6
Execution of the death penalty cannot take place until at least a month after judgment is pronounced, except when there is danger of sedition or riot. The Attorney-General is required to transmit capital sentences to the keeper of the seals.

As Esmein points out, this clause proved a major sticking point, as it implied an unwarranted extension of the royal prerogative (see p.395-6)


Acquittals should be made public 

Article 7
Notice of acquittals must be printed and publically displayed, either at the expense of the private prosecutor or at the expense of the exchequer.


Torture is totally abolished 

"New reflections have convinced us of the deceptiveness and the inconveniences of this kind of proof, which never leads to the discovery of the truth with certainty, usually fruitlessly prolongs the punishment of the condemned, and may more requently mislead our judges than enlighten them". (Declaration).

Article 8-12
Abolition of all torture, including the question préalable. 

The question préalable  was to be replaced by a final interrogation under oath.  
This was " a milder, but no less effective, method to compel evil-doers to name their accomplices. We have thought that, the law having entrusted to the faith of the oath the greatest interests of society, since it makes the lives of human beings depend upon it, it might adopt it as a safeguard of the public safety, in the final declarations of the guilty persons. We have decided to try this method provisionally at least, reserving the right, although with regret, to reestablish the preliminary torture if, after some years' experience, it is shown by the reports of our judges to be absolutely necessary." (Declaration)

References: 

The text of the edict and the Royal Declaration which introduced it, are conveniently reproduced on the Le droit criminel website:
https://ledroitcriminel.fr/la_science_criminelle/penalistes/introduction/declaration_louis16.htm
English summary in:
Adhémar Esmein, A History of Continental Criminal Procedure (1913), p.393-397

The text of Lamoignon's speech is reproduced in:
Histoire parlementaire de la Révolution française, vol.i p.239
Catalogue of the itinerant exhibition organised by the French Senate and the Cours de Cassation in 2011 to  commemorate the 200th anniversary of the Code Penal:

Monday, 21 January 2019

Dupaty and the case of the "Trois roués"


Charles-Marguerite Dupaty, engraved by Tardieu,[Bibliothèques de Bordeaux]
http://bibliotheque.bordeaux.fr/in/faces/
details.xhtml?id=h::BordeauxS_B330636101_DP080_05
3



An Enlightened lawyer:  Charles-Marguerite Dupaty

The Bordeaux lawyer Charles-Marguerite Dupaty (1746-1788) was the most prominent figure in the campaign for legal reform in the 1780s and one of the very few magistrates to openly criticise the 1670 Criminal Ordinance.  He was an archetypal man of  the Enlightenment.  On first taking up office as Advocate-general in the Parlement of Bordeaux in 1768, at the tender age of twenty-two, he had written immediately to Voltaire, enclosing a medal of Henri IV, and earning himself a commendation from the patriarch as an "idolator of toleration".  He subsequently gained prominence as leader of the opposition to Maupeou within the Bordeaux Parlement.  During his resulting exile he took the opportunity to visit Ferney and to begin the systematic study of criminal law.  He marked his re-establishment in post in May 1775 with a prevocative discours de rentrée in which he pledged himself to the cause of "oppressed innocence".  In 1778 Dupaty was named président à mortier but, due to the stubborn resistance of his conservative fellow magistrates, he was never able to take up this office. (The obdurate First President was even exiled to Meaux where he consoled himself by entertained in style.)

In 1783, after a year as president of the Tournelle in Bordeaux - an opportunity to experience criminal cases at first hand - Dupaty gave up his magistrature and moved permanently to  Paris.  He took up residence with  his brother-in-law  Fréteau-de-Saint-Just, who was  a prominent counsellor in the Parlement of Paris, and moved in high judicial circles.  Dupaty also associated with the great literary figures of the age.  As well as Voltaire, he knew d'Alembert, Diderot and Helvétius, and later Turgot and Condorcet (who married his niece Sophie de Grouchy).  Among lesser luminaries he was on close terms with François de Neufchâteau, Beaumarchais and the poet Roucher, a fellow Freemason and initiate of the famous Loge des neuf soeurs.

With this promise of influential support, Dupaty now launched a public campaign against the iniquities of the criminal law  In 1784, he caused a stir by publishing an article in the Journal encyclopédique which protested against the death penalty for domestic theft.  He began his own researches into comparative law - his travels were recorded in his Lettres sur l'Italie published in August 1788.  However, his repeated approaches to the Keeper of the Seals, Miromesnil, met with rebuff.  Naturally he was eager to seize the opportunity to orchestrate a popular cause célèbre. The occasion presented itself in 1785 when the Parlement of Paris condemned three men to be  broken on the wheel, apparently for the theft of 120 livres and a silver cross! 


Three men condemned to be "broken on the wheel"

The case of the "trois roués" was, on the face of it, nothing out of the ordinary. On the night of 29-30 January 1783 a couple called Thomassin, farmers in Vinet, near Troyes in Champagne, 120 miles from the capital, had been the victims of a particularly vicious burglary.  They had been tied up and terrified into surrendering their valuables;  the thiefs had made off with a hundred livres in cash, a silver cross and assorted linen.  Three suspects were later arrested,  a labourer named Nicolas Lardoise, and two horse and cattle traders, Charles Bardier and Jean-Baptiste Simare, who were brothers-in-law.

After much delay, the case finally appeared before the bailliage court in Chaumont.  More than two years  had elapsed by the time the prosecutor and his officials set off with the three men to Vinet, and unsurprisingly there was little left in the way of evidence to be gathered.  The case rested almost entirely on the Thomassins' formal identification of the prisoners.  The men themselves vehemently protested their innocence. On 11 August 1785 the verdict was finally delivered.  Despite a request from the royal procureur for the death-penalty,  the four judges in Caumont opted for the lesser sentence of life in the galleys, but they were swiftly overruled by the  Parlement of Paris.  On 20th October 1785, after only half-a-day's deliberation, the judges of the Tournelle condemned the three men to execution;  they were to suffer the ghastly fate of being "broken on the wheel".

The brutal execution of the poisoner Derues, broken on the wheel in 1777
https://gallica.bnf.fr/ark:/12148/btv1b6942529s
Fréteau-de-Saint-Just and Dupaty managed to obtain a stay of execution in which to examine the evidence.  Reading the dossier, they became convinced (possibly erroneously) of the men's innocence. In February 1786 Dupaty published a famous Mémoire justificatif  on their behalf. He first highlighted the procedural faults of the case, then widened his scope to a general indictment of criminal law:  even if the trial had been conducted to the letter, the current system was too flawed to have allowed for a fair verdict.  In his final peroration, Dupaty appealed to the King to decree wholesale reform.

The Royal Council duly agreed to hear an appeal, but in the meantime the Parlement of Paris launched its own independent inquiry. The Mémoire was condemned and Dupaty himself narrowly escaped arrest. The Advocate-general Séguier took advantage of the occasion to defend the 1670 Ordinance at length. The affair attracted a storm of publicity. However, the Royal Council took action only after Lamoignon replaced Miromesnil as Keeper of the Seals in April 1787. In the meantime, Dupaty continued to pen memoirs and, in February 1787 orchestrated a second affair involving seven men wrongly condemned for robbery by the Parlement of Metz.  On 30 July 1787 the conviction against the trois roués was voided and the case referred back to the bailliage of Rouen for retrial;  Dupaty himself was permitted to plead the case before Parlement of Normandy.  On 18th December, after almost five years in custody, the three men were finally triumphantly exonerated.



References

William  Doyle "President Dupaty and criminal law reform", article reprinted in  Officers, Nobles and Revolutionaries (1995), p.155-161.

A Wattine,  L'Affaire des trois roués (Macon, 1921)
https://archive.org/details/laffairedestrois00watt/page/2

It is by no means certain that the trois roués were really so innocent: Lardoise was apparently convicted of another burglary and imprisoned for a year in 1789
See Marcel Marion,  Le garde des sceaux Lamoignon et la réforme judiciaire de 1788 (Paris, 1901), p.33. 
https://archive.org/details/legardedessceau00marigoog/page/n43



Readings



Dupaty on the shortfalls of the legal system

From: Mémoire justificatif pour trois hommes condamnés à la roue (Paris, 1786)
The first part of the Dupaty's Mémoire concerns the details of the case. He expresses surprise that the proceedings had taken three years, highlights the contradictions in the statements of the various witnesses and criticises the conduct of the judges in Chaumont.
 He then moves on to condemn the criminal system itself. The "enlightened magistrates" of the Parlement of Paris are forced to contend  "our barbarous criminal jursprudence". Dupaty is not a writer who holds back on the emotive rhetoric:
I cannot keep quiet about this monstrous proceedings, at the thought of those three years in prison, at the sight of those three scaffolds erected for three innocent men....You defend the accusers, we defend the accused;  you defend cruelty, we defend humanity, you defend the shadow, we defend the light.

He singles out several specific abuses:

Lack of a proper defence hearing The admission of faits justificatifs is left to the discretion of the judge, whereas the accused should have a "right of defence".  

The secrecy of the instruction

The final interrogation "sur la sellette":  Often regarded by magistrates as a "vain formality" this represents the only opportunity for the accused to establish his innocence.  Dupaty gives a famously vivid picture of the condemned man's plight:
The accused is dragged from his cell, hurried and led along.  Suddenly, like a spectre escaped from the tomb, he enters into the Sanctuary of Justice, dragging his chains.  So here are my judges, he says.  He looks at them.  What is there to be said? he scarcely has the time to give them a glance.  He is made to sit on the sellette; he is made to take an oath - an oath to betray himself if he is guilty.  Then each judge bombards him in a minute with a multitude of questions, which dart around, confuse and contradict each other...His chest tightens, his reasoning falters, his memory becomes muddled, he stammers...But , raising his eyes, he sees boredom in the faces of the judges and knows that they have already decided his fate.  He trembles; he falls silent and is dragged away.  Hardly has he crossed the threshold....than it is done; the pronouncement is made!

Lack of a defence advocate:  It is a paradox, remarks Dupaty,  that cases are routinely referred to the sovereign tribunal, but the accused cannot profit from any appeal since they have no access to counsel.  For Dupaty this is an issue of social justice.  Only the wealthy are able to work the system to their advantage to obtain public audiences,or benefit from lawyers and published legal memoirs: "Does anyone believe that the judges of Chaumont would have buried, for thirty months, in their dungeons, three rich men?" But there are twenty million men that the law fails to help, who "will know they have a King only through the vexations of traitants and magistrates, or the sight of the scaffold; and will know God only after their deaths".

From: Lettres sur la procédure criminelle de la France (1788)
This work by Dupaty appeared anonymously at the time of the Assembly of Notables and was one of his final appeals for general reform. The introduction tells us that the censor took exception to the author's references to the Inquisition, but that his sole goal was "to hasten a reform of criminal justice, which he believes is indispensable" (p.2)   French law does indeed echo the practices of the Inquisition.  Unjust and cruel laws have become accepted over the years.  However,  Enlightened men do not believe that the law is just simply because it is the law; justice must be grounded in natural law, which guarantees to all members of society "the constant and peaceful enjoyment of the rights that they have from nature"(p.11) Further on, Dupaty takes issue with Séguier's contention that to change the laws  would risk the"overturn of our social system." (p.86)

More on the shortcomings of existing practice:

The system of proofs allows witnesses and judges to distort the truth (Letters 3-4)
There are immense difficulties in formulating rules of evidence which will give certitude, the main problem being how to establish the reliability of witnesses.  Mere enumeration of proofs cannot suffice, for there must be a careful assessment and comparison of different witness statements.  For judges, the need to punish crime often overrides all other considerations, including the rights of innocence. Dupaty is outspoken: "I would rather die at the hands of an assassin than those l'infâme"
Lack of defence (Letters 5)
It is feared that the accused might coerce the witnesses if they were allowed to confront them; but in reality proof witness testimony is so unreliable that no means should be neglected to test it.  Again Dupaty appeals for the services of a defence lawyer to navigate the legal pitfalls: "A man, woman or minor, often illiterate, simple, ignorant, walk by themselves through the most complex labyrinth that human imagination has ever forged" (p.116)
Charles Marguerite Dupaty,Lettres sur la procédure criminelle de la France (1788)
https://gallica.bnf.fr/ark:/12148/bpt6k94540d/f169.image



A conservative response

From: Réquisitoire for the condemnation of Dupaty's memoir, delivered by Avocate-general Séguier before the Parlement of Paris on 7th, 8th and 10th August 1786


According to William Doyle, this address by the great conservative and academician Louis Séguier was "perhaps the last great defence of the Ancien régime, its laws, and the habits and ways of thinking that underlay them, to be heard before all these things were swept away" (p.159)  See also Esmein, who describes it as "theswansong of the old legislation" (See below, p.374)

Séguier notes that the 1670 Ordinance, once universally admired as the pinnacle of human legislation, is now condemned as a subversion of natural law, worthy of the courts of Tiberius and the prisons of the Inquisition.("How astonished would be the illustrious shades of Lamoignon and d'Aguesseau, of Molé and Talon to hear it contended that this law is based upon a maxim invented in one of the dark ages of the human intellect!" (p.245-6))

He defends the severity of the Ordinance, justifying the use of oaths and the limitations on the presentation of faits justificatifs. Secrecy is " the immovable foundation of the law" which prevents bad faith and conspiracy; the Advocate-general, who is the sole prosecutor, cannot be suspected of animosity or desire for vengeance.(p.246)  As for the admission of a defence counsel, Séguier repeats the traditional argument that it is the accused alone who know the truth:
What would be the use of an advocate in important criminal proceedings?  Experience teaches us that if a counsel is allowed, the proof of the crime is lost in the midst of the formalities prescribed for arriving at the judgment.  Does not the accused know what he has done as certainly as the witness knows what he has seen or heard?  In a criminal action there is most frequently only one principal fact, and to answer to such a simple fact a counsel is useless.  Preparation shows more plainly the desire to distort the truth than the wish to do it homage. (p.247)

Séguier reserves particular scorn for those who admire foreign legal systems or who (like Dupaty) seek to overturn French laws "under the pretext of assimilating them to the Code of Nature."(p.13)  English laws"bear the impress of the genius and customs of the people who established them."  English juries,obliged to  remain in a "kind of conclave" until they reach a unanimous verdict, are vulnerable to dominance by one individual - "thus can a  thus can a single juror decide the fate of the guilty or of the innocent. Strange laws!"

Who will dare to deny the prudence of maintaining a Code of laws which has been in existence for several centuries, precisely because it does exist?  The disadvantages of the laws in force we know;  we can only learn by experience the disadvantages of the laws proposed to be substituted for them, especially when it is desired to proceed on a principle absolutely opposed to that of the old laws.  An abrupt and unexpected change might shake the political constitution, and a new law has sometimes been the origin of a revolution. (p.224)

Louis Séguier, Réquisitoire  Appended to the Arrêt of condemnation.
https://books.google.co.uk/books?id=m7FXAAAAcAAJ&printsec=frontcover#v=onepage&q&f=false
See Adhémar Esmein, A History of Continental Criminal Proceedure (1913)
https://archive.org/details/ahistorycontine01mittgoog/page/n420



Dupaty's plea for reform:

Peroration from the Mémoire justificatif 
In his final summation Dupaty addresses the King directly with a highly emotional plea for the wholesale reform of the 1670 Ordinance:
Sire, lend your ear a moment to listen to the innocent blood of Calas, Montbailly, Langlade, Cahuzac, de la Barre,  to the innocent blood of these three unfortunates, which is about to flow.  All this innocent blood, in the midst of gibets and wheels, will never cease, in tones of lamentation, to cry out to you: Prince, Friend of mankind, do not pass by on the throne without listening to me....

Never has Providence accorded to one of our Monarchs a more favorable moment to come to the aid of innocence.  Civilisation makes progress by the day throughout Europe;  minds are more enlightened; customs more gentile, prejudices less barbarous; even the monster of the Inquisition no longer drinks blood...Everywhere Reason and Humanity can listen and make itself heard in the midst of that profound calm, which peace spreads from your throne over all lands and seas.....

Do not, Sire, lend credence to those who defend the existing laws, severe though they are, just because they are so ancient - after all,  Reason and Humanity are eternal....

Sire, in imploring you for a new Criminal Code, it is not a novel or difficult operation that humanity requests.  Surely Sire you desire that the poor and unfortunate, the first subjects of a good king,  no longer be deprived of Counsel?  ...that  Frenchmen  recover the right of defence which God gives to all men with life, and which in Rome even slaves enjoyed?  .......that as much zeal be put into gathering proofs of innocence as those of crime?...that the life and honour of citizens be no longer at the mercy of an obscure crowd of lower judges.... that the accused be saved from the present  barbarous and complex proceedings, to enjoy the guarantees of a simple and humane trial?... that penalties be proportionate to crimes... that penalties cease to impede justice by their severity.... in a word that the goal of your criminal justice is not vengeance but punishment. Can you not desire that the prisons of your kingdom cease to be hideaways and tombs, so that justice can only reach those who have not already succumbed to the death sentence in prison?

Sir, the code for which we implore you does not have to be drawn up:  it is already made, it is written, it is engraved:  God himself has engraved it in your heart; you have only to translate it by means of your chief of magistrates....Make haste Prince, friend of justice truth and humanity.  At least give the accused right of counsel....Make haste, for in some corner of your empire the criminal laws may at this moment be pushing to the scaffold men like Bradier, Lardoise and Simaire, deprived of all counsel, languishing for hears in prison, the playthings of injustice and ignorance...and innocent like them.  You are the king.
Charles Marguerite Dupaty, Mémoire justificatif pour trois hommes condamnés à la roue (Paris, 1786),
https://books.google.co.uk/books?id=-iZgAAAAcAAJ&printsec=frontcover#v=onepage&q&f=false
Summarised from: Wattine, L'Affaire des trois roués, chpt.xii, p.90-98.
https://archive.org/details/laffairedestrois00watt/page/90

Wednesday, 16 January 2019

Torture in practice

"....And these are the people who call Britons the savages of Europe."
James Saint-John, 1787


It is easy to find lurid descriptions of torture instruments on the internet, but less easy to discover what was actually in use in 18th-century France.  The following is again taken from Charles Beriat-Saint-Prix's study of 1859.   Most  later 19th-century writers simply repeat his research; and his basic sources have not been superseded.  He assures us that, although not all the documents date from the reign of Louis XVI, the methods of torture were all still in use in 1788. There was a Baroque profusion of different practices. James Saint-John, an Irish visitor to France in 1787, remarked that that every town had its own variety of torture,  "as if they delighted in making experiments of every kind of torment it were possible to inflict on their fellow creatures."(Letter reproduced by Geri Walton on her blog, see references)  Most were variants of what was euphemistically called "extension" , either the rack or the estrapade where the subject was hoisted into the air with his feet weighted.  However, there were other more inventive practices -foot roasting, applying boiling oil, water torture, even sleep deprivation.  


A few preliminary comments:


Attempts at reform

The imposition of a standard torture method had been debated in the context of the 1670 Ordonnance but rejected in favour of a general injunction to improve standards of safety.  The jurist François Serpillon commented that this had been limited in success:

In the Conferences on this article, M. le premier Président [Lamoignon] said that it was desireable for methods of torture to be uniform; in certain places, torture  was applied so crudely that the subject was subsequently unable to work, indeed was permanently crippled; which was not the Law's intention...

M. Pussort replied that the detailed description required to impose uniformity would be indecent in an Ordonnance: the law implied that Judges had a duty to guard against the condemned being crippled. This requirement has been badly understood and executed;  for several of those subjected to torture have been crippled, even killed...
François Serpillon, Code criminel, (1767) vol. 3, p.908.
https://books.google.co.uk/books?id=5ZQPAAAAQAAJ&pg=PA908#v=onepage&q&f=false

Some initiatives later took place within the juridiction of the Parlement of Paris. In 1695 and 1697 the Procurator-General  Achilles de Harley, imposed the methods of Paris on seventeen bailliages (Beriat-Saint-Prix, items 95-107).  In 1729 Chancellor Aguesseau reformed practices in another twenty-eight bailliages.  However, the reach of these reforms was strictly limited. Lyon, despite being with the jurisidiction of the Parlement of Paris, retained its traditional torture methods.  Charles Beriat-Saint-Prix could find no moves by any of the other Parlements. Cruel  practices persisted;  the methods of Dieppe and Avignon, for instance, were considered too dangerous to use on the regicide Damiens (108).


Was it effective? 


As previously noted, some legal commentators  expressed doubts. Charles Beriat-Saint-comments that he had examined accounts of the question préalable from Reims, Lyon, Toulouse, Nantes and Rouen and found no examples of valid confessions. He recalls the famous cases -  Calas and La Grande Jeannette in Reims, who had been tortured ten times and given ten different responses.


Decline in use of torture

The general consensus is that torture, which had never been routine even in the 17th century,  fell into gradual disuse in the 18th, when recourse to lesser penalties became more common. After 1750 the Parlements began to intervene to prevent the use of the question préparatoire, as the Parlement of Toulouse did in the Calas case. They also decreed the death penalty less frequently and often ordered the accusued strangled before being burnt at the stake or broken on the wheel.  Lawyers expressed reservations and high-profile miscarriages of justice encouraged opprobrium.

The Thucydide article "Torture" quotes some supporting statistics mostly drawn from, Jean-Marie Carbasse,  Histoire du droit pénal et de la justice criminelle, Paris, PUF,  2000, p.365.
  • The Conseil Souverain of Roussillon in Perpignan ordered torture for the last time in 1737.
  • In the records for the Parlement of Bourgogne (Dijon) torture was unsed in only 63 cases out of 6000 in the 18th century.  It was employed for the last time in 1766. (This must refer to the question préparatoire: see Dijon below for a death under torture in 1780s).
  • In Brittany, torture was used only eleven times between 1750 and 1780.
  • The Parlement of Flanders in Douai, resorted to torture in 12% of cases in 1721-30; this fell to only 3% between 1771 and 1780.
  • When Louis XVI abolished question préparatoire in 1780, he was confirming an evolution which had already occurred.  The Procurator General of the Parlement of Grenoble - where Servan had served - wrote to the Keeper of the Seals: "The company registered the declaration with the greater satisfaction since it ceased to employ ..the question préparatoire thirty years ago; nothing can be more worthy of your humanity than to abolish a practice which is both barbaric and useless." 
All this may be true, but it still feels from Charles Beriat Saint-Prix that there may have been  more cases than appreciated. This was certainly a common perception. James Saint-John reported that the question prélable was still regularly used : "I am told that it is not an uncommon thing to see criminals carried to execution here, incapable of either walking or sitting up, having had all their limbs dislocated by the torture".


Here is Charles Beriat-Saint-Prix's gazeteer:


PARIS

In Paris and the vast jurisdiction of the Parlement of Paris (that is about a third of France) two methods were employed: Extension avec l'eau and Les brodequins.  The first had once been more common, with the second reserved for winter, and for subjects with a weak disposition.  By the later 18th century, however,only les brodequins was in use.  This was regarded as less dangerous, though "extremely painful".



Extension avec l'eau

To apply "extension with water", the prisoner was seated on a sort of stone stool.  First, iron rings were attached around his wrists, 80 centimetres apart. These were then fixed to the wall behind him at a height of at least a metre.  A further two rings were placed round his feet and attached to the floor,  at a distance of four metres from the wall.  The ropes were pulled taut.  When the body of the accused was fully stretched, a trestle measuring least 66 centimetres in height was passed under the ropes, as close as possible to the rings on the subject's feet.  The torturer, aided by a assistant with a hollowed-out cow horn, took his nose and held it in such a way that he was forced to swallow.  Water was poured into the horn and the accused obliged to drink: four jugs, each of two pintes and a chopine [?two quarts and a pint] for the question ordinaire; and four more for the question extraordinaire. A trestle of 1 metre 12 centremetres was also used for the latter. The accused was interrogated after the trestle was in position and after each jug of water was applied.




Les Brodequins

For the torture aux brodequins, the prisoner was made to sit and his hands were tied. Each of his legs was placed between two planks of wood, fastened at the the knees and ankles. In addition the four planks were bound together. Wooden wedges were then hammered between the two planks, which touched the legs at the knees and ankles.  The question ordinaire uses four wedges,  the extraordinary four more.  The prisoner was questioned after each wedge was inserted (94)

Serpillon reproduces in his Code criminel  the instructions issued in 1697 on the administration of the two tortures



The poisoner Derues is put to the torture before his execution in 1777.  Engraving.
https://gallica.bnf.fr/ark:/12148/btv1b69425180


The reforms of Chancellor Harley


On 14th December 1695 an arrêt of the Parlement of Paris imposed the Parisian methods on the bailliage of Saint-Pierre-le-Moutier.  In a fascinating vignette, the Procurator General Achille de Harley recounts to the assembled magistrates of the Grand'Chambre and Tournelle his chance encounter with the horrors of torture:

He had found himself at Saint-Pierre-le-Moutier on his way back from Vichy, and some of his servants, out of curiosity, had gone to see where justice was administered.  The Concierge had taken them to the room where the condemned were tortured.  They had been extremely surprised to see enormous weights; these were attached  to the feet and hands of the tortured person, who was hoisted 22 to 23 feet in the air.  The Concierge said that he was not surprised at their astonishment: in the last few years, there had been two accidents which had greatly troubled the officials of the bailliage.  In the first a man had died under torture, and in the second a woman had had her hand torn right off.  When  [Achilles de Harlay] heard this, he summoned the officials to him. The Lieutenant-General and the Criminal Assessor reported that these accidents had indeed occurred and that the memory horrified them.  The officials were moved by pity and wanted the method changed; since they did not have the power themselves, they willingly asked the Parlement to impose its authority. (96)

In January 1697, following further investigations, the Parlement imposed uniformity on nine other baillages: Orléans, Sézanne, Vitry-le-François, Mâcon, Chartres, Blois, Baugé, Montargis Saint-Dizier (97-106)  In 18 April 1697 another seven were included:  Angers, La Flèche, Riom, Mans, Châteaugontier, Mamers and Laval (107).


d'Aguesseau 

In 1729 Chancellor d'Aguesseau embarked on a new large-scale enquiry, the results of which are preserved in the Collection Joly de Fleury in the BnF.  This time modifications were imposed in twenty-eight jurisdictions.  D'Aguesseau also reiterated the necessity for surgeons and doctors to be present during the administration of torture. 

The manuscript, an alphabetical list of bailliages and their tortures, was published in full by Paul Bondais, who described it as a "hallucinating jardin des supplices
Bondais, "La torture dans le ressort du Parlement de Paris au XVIIIe siècle". Annales historiques de la Révolution française, 1928,Vol.5, p. 322-337. [On JStor]
http://www.jstor.org/stable/41923766


The torture of Damiens 


In 1757, for the trial of Damiens, the Parlement of Paris considered using a torture other than les brodequins: "they debated what method of torture to use for this occasion".  The Procurator General gathered reports which were referred to the doctors and surgeons of the Court. The manuscripts contain descriptions of tortures practised in Avignon and Dieppe, both of which were rejected as too dangerous. The unanimous verdict was that les brodequins was the method least susceptible to accidents. 

The doctors attended to ensure that the torture was as prolonged and painful as possible without the condemned man losing consciousness or dying.  MM.Boyer and Foubert, doctors employed by the Parlement,  suggested that les brodequins could be made more effective by leaving a longer interval between the insertion of each wedge. This seems to have been implemented: the summary  which prefaces the trial record, mentions Damiens' "terrible cries and howls" which were renewed with the each wedge, at intervals of a quarter-of-an-hour.  He was tortured for two-and-a-quarter hours in total.(109)



LYON


In Lyon different methods were employed for the ordinary and the extraordinary tortures.  Beriat Saint-Prix's information comes from accounts of trials which took place as late as  1759 and 1765.

The ordinary torture involved a sort of rack called le Tour.  The prisoner was laid out on a frame, his wrists attached to iron rings on one wall, and his legs tied by ropes to a crank  on the wall opposite. He was then "extended" violently three times (applications were known as  "traits de corde")

For the "extraordinary" question, called les Mêches, the prisoner was then taken down and wads of cotton treated with sulphur  placed between his fingers and toes.  These were set alight: the right hand first, then the left hand, then the right foot, then the left.  The subject was interrogated before being tied to the tour, after each trait de corde, and before each application of les Mêches.

In 1759, doctors judged that the condemned man, a certain Munié,had so badly ulcerated a leg that the tour was likely to pull his foot right off; he was subjected to les Mêches instead. In the event, Munié withstood the torture and saved his revelations for the foot of the scaffold.(110)


METZ

The Parlement of Metz also had distinct procedures for the ordinary and extraordinary tortures. The first employed thumbscrews (les grésillons). For the question extraordinaire, iron chains were placed round the legs and tightened (les jarretières) (111)


NANCY

In the jurisdiction of the Parlement de Nancy, in the Duchy of Lorraine, the Duchy of Bar,  Le Bassigny, Toul and Verdun, the ordinary torture was the again the thumbscrew. The extraordinary was l'Échelle, another type of rack. This device resembled an ordinary ladder with a winch attached. One end rested on the ground and the other was raised on a trestle to about a metre in height.  The accused was fastened down and his hands tied to the winch, so that his body could be stretched.  A piece of wood might be inserted behind his back as a refinement, and sometimes he might be made to swallow water. In earlier times,  the prisoner's arms or legs were sometimes tied to the rungs of the ladder with ropes which were then twisted using wooden batons (les "tortillons") so that they cut into the flesh.  This practice was apparently abandoned at the beginning of the eighteenth century.

See Charles Emmanuel Dumont Justice criminelle des duchés de Lorraine et de Bar (1848)

https://archive.org/details/justicecriminell01dumouoft/page/n101
The illustrations are from this book.



BESANÇON


The jurisdiction of the Parlement of Besançon was one of several areas in France where variants of the Italian torture called l'estrapade (in Italian strappado or la corda) were still in use.  The condemned man had his hands tied behind his back with a rope attached to them in order to hoist him into the air. The other end of the rope was fixed to a pulley mounted on "une Grande Machine de Bois", and worked by a sort of windlass (une tour).  For the extraordinary torture, weights were suspended on the prisoner's toes and, "to make him feel more pain", he would be shaken by striking the rope with a baton.
See:  Muyart de Vouglans, Institutes au droit criminel (1757), p.403.
https://gallica.bnf.fr/ark:/12148/bpt6k105081p/f421.image



DIJON


In Dijon and almost all the baillages dependent on the Parlement of Bourgogne, they used a method known as the Moine du camp [?Moine de Caen]. This seems to have been form of estrapade very similar to the one employed in Besançon.

See:
Clément-Janin  Le Morimont de Dijon : bourreaux et suppliciés (1889)
https://gallica.bnf.fr/ark:/12148/bpt6k55574783/f91.item
This study informs us that torture took place in Dijon both in the Hôtel de Ville and the Palais de Justice. In the late 19th century the torture room in the Palais still survived, humid and cold, with gothic arches and huge iron hooks in the ceiling.  The prisoner was made to fast.  The writer adds the detail that he was forced to drink a little wine, in case he had eaten soap, which was supposed to dull the pain and promote unconsciousness.  He heard the  judgment against him, was examined by the doctor, then seated on the sellette and subjected to preliminary interrogation.

The procedure then ensued. The condemned man was attached by the hands and feet to a heavy stone, with an iron ring set in it.  A rope was passed round his body behind his back and fixed to the ceiling.  This cable ran on a winch set into the wall and furnished with rachets which enabled the machine to be stopped at intervals,the subject violently jerked down, then interrogated.  The torture terminated when the stretched-out body began to drag the stone.  For question extraordinaire a heavier stone was used. The prisoner could be revived with eau ardente, and rubbed with red soap to restore movement to his limbs.


James Saint-John, the Irish visitor to France, has the following detailed description:

At Dijon in Burgundy, when they give the question, they tie together the prisoner’s wrists behind his body. To the wrists they fasten a rope, which they pass through a pulley at the ceiling, and then bringing down the other extremity, fasten it to a windlass. When the evangelists turn the windlass, the prisoner perceives his hands to be drawn up to the back part of his head. On turning the windlass somewhat more, he finds himself absolutely elevated from the ground, the whole weight of his body depending upon his wrists tied together. They then roll a small piece of linen round his great toe, and fasten it with thread; this is necessary to prevent the rope which they afterwards tie to it from slipping. They then hang by a rope to his great toe one hundred and fifty pounds weight for the ordinary question, and two hundred pounds weight for the extraordinary question. The windlass is then turned, until the miserable creature absolutely bears up the weight from the ground. His shoulder-blades appear almost separated from his body, and the bones at the articulations of the wrists, elbows, knee, and ankle, are dragged from one another, so as remarkably to increase the length of the body. They then unturn the windlass and let him fall down with a jirk: at the very instant, his bones at the joints are drawn back by the elastic spring of the muscles and tendons, and slap together with loud and violent shocks, which dart through the whole frame the most inexpressible agony. They then draw him up higher and higher, letting him fall down each time with sudden velocity; until finding him persevere, they draw him up with the weight suspended to his great toe to the very pulley at the ceiling; but he is then generally so overcome by the torments, that he is seized with a violent fever, which renders him stupidly insensible, or sets him to sleep.

Already in 1642 the ordeal had been considered too dangerous;  the Procurator-General wanted it modified but other members of the Parlement feared that this would compromise its effectiveness. In 1642 for the notorious trial of Philippe Giroux, this method was replaced by les escarpins (foot roasting).  Giroux's servant Eléonore Cordier lost the use of her feet for life.(114)

It is reported in several secondary sources that the last torture by the Parlement of Dijon was in 1766, but if so, this must apply to the question préparatoire.  There are certainly several examples of the question préalable being applied in the 18th century. Clément-Janin mentions: in 1742-5 the case of the "sorcerers of Lyon", 29 individuals accused of magical practices, and in the 1770s, three different cases of women tortured and burnt at the stake.

In March 1782 Claude Gentile was wrongly condemned for attacking and robbing a hermit.  He was put to the torture to reveal his accomplices. A printed pamplet describes his escalating agony as he endured six turns of the Moine du camp:  "A great cry escaped from him and he responded:  My God...the martyrs did not suffer more than me, and I have done nothing wrong".  When the surgeon decided he could endure no more, Gentile retracted the admissions he had made under torture. 
See: Causes célèbres, vol. 154 (1787) p.75
https://books.google.co.uk/books?id=60NhAAAAcAAJ&pg=PA75 



AUTUN

In the bailliage of Autun (Parlement of Bourgogne / Dijon)  l'Huile bouillante - boiling oil - was used as follows:  


The condemned was placed in a sort of brodequins or boots made of absorbent leather, which covered his feet and legs up to the knee.  Wearing only his shirt, was then tied down on a trolley about six inches off the ground. The torturer would roll the trolley before a great wood and coal fire, where a cauldron was suspended which contained twelve pints of boiling oil.  The oil would be poured onto the boots, so that it penetrated the leather and burned the prisoner's legs and feet.  The interrogation normally lasted an hour-and-a-half to two hours, depending on the accusations;  it was acknowledged that this was the longest time that the torture could be endured.

This description is given in 1767 by François Serpillon (1695-1772), who held office in Autun for thirty-eight years.  He commented that theirs was the only jurisdiction to conserve this torture, which was said to have once taken place all over France and was "one of the worst, most cruel and longest"   He had only seen the procedure used twice.  On the first occasion, under his predecessor, a terrible accident had occurred; the table had been brought too close to fire, the boots had caught fire and the prisoner had been so badly burnt that both his legs had had to be amputated.  "As a result, the interrogation was cut short and the accused released, minus two of his limbs.  He lived for thirty years afterwards, without feet, indeed without his legs".

A legal commentary by Carnot, a barrister in Dijon before 1789, adds more detail.  Having been released, the maimed prisoner left on crutches and took up vigil at the gate of the lieutenant criminel.  Whenever he left his house,  the mutilated man greeted him respectfully, and without any direct reproach accompanied him to the Palais, or out on his walk, then followed him home.  At night he slept on a bench opposite the magistrate's house.  Neither inclement weather, nor any threats and promises, could put an end to this silent vengeance, which lasted more than ten years.  The lieutenant was said to have died of grief as a result.


Serpillon goes on the describe the second occasion:
"Twenty-five years ago we were forced to condemn to the question préparatoire, a certain Auribaut...He was accused of a dozen crimes, most of them murders committed on the highway, but his guilt had not been proven.  I took every possible precaution to avoid the "inconvenience" suffered by my predecessor.  I made sure the trolley did not approach the fire too closely;  but the great number of crimes meant that the interrogation lasted more than two hours.  The prisoner's torment was so great, that his continual screaming prevented him hearing or replying.  He was, however, so robust that he withstood the torture without confessing anything; he was released. The toes of both his feet were so burnt away, that they had to pull the bones out with a pair of pliers." 

After these accidents, the magistrates of Autun abandoned the question préparatoire altogether.  As Serpillon observed, it had the added  disadvantage that it was applied "sans réserve", so that those who withstood it could not be condemned to the galleys.
François Serpillon, Code criminel, ou commentaire sur l'ordonnance de 1670 (1767) vol. 3, p.907-8.  
https://books.google.co.uk/books?id=5ZQPAAAAQAAJ&pg=PA908#v=onepage&q&f=false




Torture Italian style:
Frontispiece to Vol. 9 of the Comedies by the Italian playwright Carlo Goldini (1761).
In the text Goldini recalls his time working at the Criminal Chancellery in Chioggia, where he rapidly became used to the horrors of torture.


AVIGNON


In Avignon and the Comtat Venaissin, the question ordinaire involved l'estrapade, suspending the accused with weights on his feet.  It was rarely used after the reunion of the Comtat with France in 1768. For the question extraordinaire, the Roman Veglia or la Veille - sleep deprivation - was used.  The prisoner was stripped naked. His hands were tied behind his back and attached to a pulley fixed on the floor.  He was then tied by his feet and by ropes around his body to hooks set into the walls. Thus immobilised, he perched on an wooden stool called la veille which was four feet high, with the seat carved into the form of six-sided diamond. This shape meant that the base of the spine and the coccyx supported the whole weight of the body. A physician and surgeon were on hand to guard against the prisoner losing consciousness.  If he did, he would be taken down, put to bed, given cordials and restoratives then set up again.  The torture took six hours in all, which was measured with an hour glass.  A note attached to a memoir in the Damiens trial, remarked that a mirror could be placed in front of the prisoner's face to make him aware of his haggard condition.


The effect of the la Veille was not immediate but it was assured.  An Avignon surgeon who was called to Paris at the time of the Damiens trial, reported that ten years previously, a condemned man had been tortured for seven quarters of an hour without saying a word; at this point he had suddenly started to groan and scream, and finally fainted.  After an hour-and-a-half, he had been reattached to the veille and had agreed to confess (118)


TOULOUSE


For Toulouse, the information given by Charles Berriat-Saint-Prix can be supplemented by a local study:

Victor Molinier, La Torture, étude historique et philosophique (Toulouse, 1879)
https://gallica.bnf.fr/ark:/12148/bpt6k5809398g

In Toulouse there were three procedures: for the question ordinaire, a  method called  les Boutons; for the question extraordinaire, a form of water torture called le Voile, or for women, le Mordache.  It was common practice for a prisoner to be subjected to both ordinary and extraordinary tortures, in the case of a convicted criminal, one after the other.

The condemned was deprived of food for a day, then taken to the Hôtel de Ville, where there was a place set aside, near the prisons, called the chambre de la Géhenne. The torture sessions were attended by the commissioners of  the commissaires of the Parlement, two Capitouls from the town council, a Crown representative and a Court official. The condemned was brought before them, and put to the torture as described.


Les Boutons

Les Boutons was another variant of l'estrapade - the exact details are difficult to reconstruct:

It seems that the prisoner was made to sit on a frame (the bouton); his hands were tied by a rope behind his back; a second, longer rope was then attached to his wrists,  with its far end fixed to a high pulley. This rope was tightened using a winch or tour operated by two men, who "elevated" the prisoner so as to stretch out his body.  The ends of the first rope, which bound his hands, ran on two cylinders called Days, which were worked by a second pair of assistants. His feet were chained to the bouton on which the torturer used his feet to apply pressure to the taut body.


In May 1717  Marc Bermon, a goldsmith from Montauban, aged 49, was convicted of receiving stolen gold objects, including church vessels  -  a sacrilege which attracted the death penalty.  The account of his torture states that he "was applied to the first bouton of the question and elevated" that "the guards of the executioner worked the tour, and the valets pulled the ropes that tightened the Day". The executioner "held his foot on the leg irons"; Bermon had "a weight attached to his belt"." (quoted Molinier)

Jean Calas underwent this torture in 1762.  According to the procès verbal,  Calas was "put on the bouton" and "elevated"; there is mention of  "guards working the tour" and "valets holding the cordes".  The executioner is described as having  his feet "on the bouton" attached to Calas's feet. The torture is applied in two stages, called "first bouton" and "second bouton" (122)


Woodcuts from Jean Millaeus's Praxis criminalis (Paris 1541)   show a remarkably similar device in use in Toulouse in the 16th century - here a massive stone weights down the feet of the condemned man. The Italian physician Paolo Zacchia (1584-1659)  apparently considered that suspension alone, even with sudden releases, would not dislocate joints..  Here, however, the wretched prisoner, suspended in the air, suffered a double traction, from both above and below. 


Le Voile

The question extraordinaire was called le Voile (the "veil") The prisoner was first immobilised on a trestle.  His mouth was forced open with small pieces of bread and his face covered with a moist cloth or voile, with a pocket on the mouth.  He was  then forced to swallow a certain number of cruchets of water, poured through the cloth.   For Calas ten were prescribed;  as many as twenty-five are attested.  At a given point the face was uncovered to allow interrogation. The prisoner would have tremendous difficulty in breathing. According to Zacchia, the method was extremely dangerous and could result in "congestion of the brain". The miserable Bermon is reported as having lost consciousness in the midst of his torment in 1717, and in all probability died of asphyxiation.


La Mordache

The Mordache, which was reserved for women,  involved iron pincers which were applied to a bent leg in order to constrict the knee and thigh.  Victor Molinier has a record of this torture from the Archives of the Parlement of Toulouse from as late as  March 1778.  Claire Raynaud, aged 43, was sentenced to be burned at the stake for poisoning her husband and was tortured to implicate her servant and accomplice. She was first subjected to "trois boutons", then to three applications of the mordache. The wretched woman withstood all this torture only to confess all when faced with the sight of the bonfire which awaited her.(122-3)



MONTAUBAN

Montauban employed the rack, called locally la question aux Cran.  The Musée Ingres in the town still has the actual instrument, brought from the Maison d'arrêt where it still resided in Beriat Saint-Prix's time.  The contraption consists of a bench 3 metres 40 centimetres long by 40 centimetres wide.  One end is equipped with leg-restraints. Six holes along the length show where the subject was tied down.  At the other end is cylinder shaped winch to which his arms were attached. Tension would be gradually applied, sometimes until surgeons present expressed concern for the prisoner's life.  A record from 1765 mentions 22 crans for the question ordinaire with seven more for the extraordinaire .

Rack in the basement of the musée Ingres 
Here are some good photographs of the Montauban rack, taken by Pascal Basroger in 2007. 
http://pabdailyphoto.blogspot.com/2007/10/torture-rack.html



NANTES AND RENNES

In Nantes and Rennes the preferred method of torture was les Escarpins, known in the reign of Louis XV more descriptively as Chaussons souffrés au feu.  The prisoner was made to lie on an iron trolley called le tourment, which ended in a sort of box which accommodated his feet. He was then wheeled, feet first, in proximity to a fire.  He would be repeatedly roasted, interrogated then wheeled back to answer.  The number of approches seemed to have been at the questioner's discretion.

Charles Berriat-Saint-Prix consulted four descriptions of torture sessions from the records of the Présidial de Nantes, three from 1692 and one from 1760. Jean Magré in 1760 was "approached" to the fire most often - nine times.  However, the tortures of 1692 seem to have been more extreme: "One HEARD the screams of the tortured man, one SAW him writhe in the fire".   One of those condemned eventually admitted highway robbery, but  later retracted his confession, since "all he said was through fear of torture and to avoid the fire".(125)



ROUEN AND DIEPPE

 Finally in Rouen and Dieppe, subjects were elevated by their thumb or finger nails; a "Machines de Fer" called un valet was sometimes employed to constrict a leg.  The extraordinary torture had the addition of a particularly horrible procedure known as question aux Flûtes.

The details are decribed in a deposition submitted at the time of the Damiens trial to the Royal Council (which rejected it as too dangerous)

In the torture chamber there is a winch set in the wall, from which a rope runs which passes through a pulley fixed to a joist on the ceiling.  From this rope hangs a stapler or pincers (called grésillons).  The subject's hands are tied behind his back and his two thumbs are seized in the pincers, by the nails alone.  The torturer then tightens the winch, little by little, in order to raise the arms, then the whole body of the condemned man, as far as the ceiling.  If the subject consents to talk, he is taken down and seated on a sellette; if he does not, he is hoisted up repeatedly, which can take a long time.  This is the question ordinaire.

For the extraordinary torture, which is reserved for those condemned to death, a similar procedure is carried out, with a weight of fifty livres attached to each of the subject's feet.  In addition, when he is taken down, les flûtes are applied; he is made to join his hand together, as though in prayer, and between each of his figures is placed a little piece of polished wood; these are then screwed down to flatten his fingers.

It is easy to imagine the pain that the elevation of the subject causes.  Sometimes the bones pop out of their joints, but there is always a surgeon to put them back in place...  I myself have used the torture WITH SUCCESS.  It is rare for the condemned to come away without confessing their crimes; some have borne the torture for twenty-four hours.

These observations agree with the records from the archives in Rouen.  These include accounts of the question ordinaire, applied to a Michel Pin in 1770; and the question ordinaire and question extraordinaire applied in 1786 and 1788 to Giles Chappé and the widow Cornu.  The torture of Michel Pin lasted more than five hours; that of Chappé more than eight hours.  The torture of the widow Cornu also lasted a long time during which she fainted several times.  Neither Chappé nor the Widow Cornu could sign their procès-verbal, since their thumbs and fingers had been crushed.(126)


References

Charles Berriat-Saint-Prix, Des tribunaux et de la procédure du grand criminel au XVIIIe siècle jusqu'en 1789 avec des recherches sur la question ou torture (Paris 1859), p.74-
https://books.google.co.uk/books?id=FtkzAQAAMAAJ&pg=PA74#v=onepage&q&f=false

"Torture in18th-century France: an Irishman's view"  Geri Walton, post of 10.10.2016.  (An extract from James Saint John, Letters from France to a Gentleman in the South of Ireland, 1788). 
https://www.geriwalton.com/torture-18th-century-france-irishmans-view

Transcription of an undated manuscript containing notes and illustrations for a planned museum of torture to be housed in the cellars of the Hôtel des Trois Maillets, rue St Julien le Pauvre.  From the blog Collectissimo.
http://aubonblog.canalblog.com/archives/2006/05/23/1935189.html