Monday, 21 January 2019

Dupaty and the case of the "Trois roués"

Charles-Marguerite Dupaty, engraved by Tardieu,[Bibliothèques de Bordeaux]

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
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.


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)

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.


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)

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.
See Adhémar Esmein, A History of Continental Criminal Proceedure (1913)

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),
Summarised from: Wattine, L'Affaire des trois roués, chpt.xii, p.90-98.

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