Wednesday, 9 January 2019

Criminal procedure in 18th-century France

I started out on this post, rather naively, by looking for some illustrations of 18th-century criminal trials.  It took me a while to realise that no such thing existed; there were no hearings in open court in  Ancien Régime France, no adversarial process, no defence counsels.  Proceedings and deliberations took place behind closed doors - though increasingly under the gaze of public curiosity.   From the 1760s onwards the penal system began to come under criticism from Enlightened theorists and reformers eager to highlight abuses of justice.  Nonetheless, it had its internal logic and, like other aspects of 18th-century French administration, was often tempered by sensible and humane practitioners.

Criminal law had been codified under Louis XIV in the great 1670 Ordinance of Saint-Germain-en-Laye, which clarified and consolidated procedures sanctioned by venerable tradition  (partly laid down by the Ordinances of 1498 and 1539).  The system is defined as "inquisitorial", that is it was based on the establishment of objective "legal proofs" to guilt.  This was supposed to counter personal bias of the judges, though in later years the system came to seem unacceptably weighted against the accused.

Original sacs à procès from the Parlement of Toulouse

 Of several categories of  courts with general competence over criminal cases, the main royal courts of first instance were the bailliages (in northern France) and the sénéchaussées (in the west and south). These comprised some 400  tribunals in all by the end of the Ancien Régime.  Officials consisted of a presiding  magistrate (the bailli or sénéchal), two or more judges, a  representative of royal government - the procureur du roi or procureur-fiscale, often seconded by an avocat du roi -  and a greffier or court clerk. (No.6).  The Parlements and Conseils souverains were courts of final appeal. Capital cases were automatically referred to them. The criminal court was the Tournelle, so-called because magistrates served by rotation.  In Paris it comprised three présidents à mortier, twelve councillors of the Grand'Chambre and four drawn from the other chambres (9-12)

In addition, a plethora of courts judged specialised crimes, such as smuggling and peculation.

In this age of improvement, the courts often boasted new imposing buildings and splendid judicial attire.  The Judges of the Parlement of Paris, were especially intimidating in their  red robes; whilst  black judicial habits - often fine black velvet -  singled out the barristers.

Guillaume Cammas, Les capitouls, the judges of Toulouse's primary court, in 1752-1753, 
Archives de Toulouse.
Here, broadly, are the stages in the judicial process - taken mostly from Des tribunaux et de la procédure du grand criminel au XVIIIe siècle, a well-researched and  accessible old account,  published by Charles Berriat-Saint-Prix  in 1859.  The text concerns offences categorised as,"les affaires du grand criminel", that is crimes which attracted the penalties of execution and other physical punishment, or infamy.

Information:  Proceeding were initiated d'office or, more usually, as result of a private complaint. In the case of a flagrant délit, when the accused was caught in the act, one of the first steps was for the judge to go  the crime scene in order to examine the material evidence, the corps du délit.  He would be assisted by a clerk and accompanied by the procureur du roi. Doctors and surgeons were consulted if there was a corpse or a wounded victim; physical items and any documents would be verified and collected. The judge would affix his seals to secure the evidence. (48)

Interrogation on the spot - engraving of 1803  by François Bonneville
illustrating the life of the poisoner Henri-Augustin Trumeau.
First interrogation:  The accused was now brought before the judge, in the case of a  flagrant délit in the first convenient location, otherwise in the judical chamber or in the gaol. The interrogation was supposed to take place within 24 hours of the crime.  According to the commentator Daniel Jousse, this requirement was often neglected; the accused waited eight days or more before being heard [Justice criminelle, vol.2, p.254]. (49)  Serious delays were by no means rare. In the notorious case of the "Trois roués" in the 1780s the men languished in prison for two years before their trial even began.

The oath:  The accused was first made swear an oath to tell the truth;  laity lifted their hand, ecclesiastics put theirs on their chest (50).   It comes as a surprise to learn that, in the Conferences which preceding the Ordinance of 1670, Lamoignon, the president of the Parlement of Paris, had opposed the imposition of an oath, on the grounds that the accused should be free to deny the truth in order to save his life (51).  Nearly a hundred years later Beccaria was to make much the same point.

A confession at this stage dispensed with the need for information or any further proofs.

According to Jousse, a Judge might be called upon to exercise great art in his interrogation. If the accused was deceitful or stubborn, he should overwhelm him with queries,  twist his replies and question him indirectly so that he does not understand the answer that is required.  He should avoid tricks and specious arguments, but "can use verbal dexterity, even a sort of surprise and feign, to discover the truth and draw the criminal into confession". [Justice criminel, i, p.271-74] (52)

Later critics feared, with good reason, that the proceedings were stacked against the ill-educated and inarticulate defendants, faced with the commanding presence of magistrates brought up on lifetime of rhetoric.

Depositions by witnesses:   Witnesses were constrained by the threat of fines or imprisonment to appear (57)
Monitoire asking for proofs 
against Paul Servin
Public appeals for witnesses - les monitoires -  were employed for "serious crimes and public scandals" or if evidence was difficult to come by. The judge requested the monitoire be read out from the pulpit in all the parishes of a diocese.  Individuals were constrained to reveal what they knew to the priest, on pain of excommunication.  It was a system which was to prove highly detrimental in the Calas and La Barre affairs (60).

In  serious cases witnesses were required to appear personally to affirm and add to their testimony (le récolement) They could also be confronted by the accused, who were given the opportunity to voice their objections (les reproches). As Voltaire complained, this proceeding was not always carried out.

Referral to the Procurator:   Once the evidence had been collected, the Procurator, as "public minister", returned his conclusions. So as not to exercise undue influence, these remained secret until the judgment; there was no requirement for him to justify his decision.  The Procurator had access only to the information and was debarred from taking part in the proceedings directly.  The unfortunate defendant was thus deprived of any opportunity to sway an outside magistrate (62-63)

Torture:  In cases of strong presumption of guilt, preliminary torture (la question préparatoire) could be used in order to force a confession.  To be valid, any admission had to be subsequently repeated, without physical duress.

Final interrogation:  This was the famous interrogation "sur la sellette".  The accused was made to sit on a low wooden stool deliberately designed to humiliate. [Jousse, Justice criminel, vol.2, p.265]

At this point he might be permitted, at the discretion of the judge, to present his counter case, les faits justificatifs.

Counsel was allowed only in cases which did not involve crime against the person - fraud, bankruptcy, forgery and peculation of various sorts -  where there might be a need to assemble evidence and advise on the law.  In capital cases recourse to defence lawyers was absolutely forbidden.

In 1670 this restriction had been attacked by Lamoignon and Talon, but defended by Pussort, as necessary to establish sure proof. Jousse supplies the logic: Since in criminal trials, no-one can know the facts better than the accused, counsel can only serve  to suggest ways to distort the truth and avoid just punishment. (Nouveau commentaire sur l'ordonance criminel,vol.1, p.279) (75-76)

As Voltaire remarked, only extortioners, fraudsters and bankrupts were allowed the services of a lawyer.

Appeal:  Appeal to the presiding Parlement or Conseil was automatic for all cases attracting execution or other corporal penalties, including banishment (82). The prisoner would be transferred to the prison of the Parlement, the information would be considered and the accused again interrogated sur la sellette. They might also be allowed to present les faits justificatifs. (85).

Arrêt of the Parlement of Paris condemning
an accomplice of Cartouche in 1722
Judgment. For serious crimes, where the interrogation finished in the afternoon, judgment would be postponed to the following morning to ensure due deliberation. Jousse included a whole table of crimes that could not be judged until the morning (77).

Judgments were given according to number of set formulae (78):

It was often complained that the texts of the judgments did not always include the reason for the condemnation.  This was one of the first reforms put in place by the Constituent Assembly.

The judgment was not pronounced but read to the accused person in prison.  In cases of capital crimes, the accused was made to kneel to receive the verdict (86)  Paradoxically, although the grades of proof were minutely laid down, the judge had considerable discretion over what penalties he imposed.

Execution:  The sentence was carried out on the same day, or, in the case of execution or other corporal penalty, as soon as possible after the condemned was returned to the place of condemnation. Since the Parlements of Paris and Toulouse had vast jurisdictions, this could add significantly to the ordeal;  the rapist Benoît Bard, for example, was made to travel from Paris to Riom - over 400 kilometres - to be hanged in April 1780 (87)

Before execution, the condemned could be subjected to further torture (la question préalable) to compel them to reveal their accomplices.

In certain cases - as with the Chevalier La Barre's companions - executions could be carried out in absentiaIn cases of treason, armed rebellion, duelling, suicide,  the sentence could be carried out on dead bodies (which were salted for the purpose!) .(133-134)


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.38-

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