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C- ^>^^-^-

HARVARD LAW LIBRARY

RraivcJ AUG 2 -t XWl

'J '.■'?} \ "LK1«VURa

' T.-.r-i; I <,,,•■;••

THE CONTINENTAL
LEGAL HISTORY SERIES

Volume Five

A HISTORY OF CONTINENTAL
CRIMINAL PROCEDURE

The Continental Legal History Series

Published wider the auspices of the

Association of American Law Schools

L A GENERAL SURVEY OF EVENTS, SOURCES, PERSONS,

AND MOVEMENTS IN CONTINENTAL LEGAL HISTORY.
By Various Authors. Translated bv Rapelje Howell, F. S.
Philbrick, John Waloren, and John H. Wigmore. $6.00 net.

XL GREAT JURISTS OF THE WORLD, FROM PAPINLA.N TO
VON IHERING. By Various Authors. Illustrated. (Extra vol-
ume. By arrangement with John Murray, London.) $5.00 net.

in. HISTORY OF FRENCH PRIVATE LAW. By J. Brissaud, late
of the University of Toulouse. Translated by Rapelje Howell, of
the New York Bar. $5.00 net

IV. HISTORY OF GERMANIC PRIVATE LAW. By Rudolph
HuEBNBR, of the University of Rostock. Translated by Dr. Francis
8. Philbrick, of New York, N. Y. $4.50 net

V. HISTORY OF CONTINENTAL CRIMINAL PROCEDURE. By
A. Ebmein, Professor in the Universitv of Paris, with chapters by
Francois Garraud, of the University of Lyon, and C. J. A. Mitter-
maier', late of the University of Heidelberg. Translated by John
Simpson, of the New York Bar. $4.50 net.

VI. HISTORY OF CONTINENTAL CRIMINAL LAW. By Ludwio
VON Bar, of the University of Gottingen. Translated by Thomas S.
Bell, of the Pasadena Cai. Bar. $4.0U net.

Vn. HISTORY OF CONTINENTAL CIVIL PROCEDURE. By
Arthxtr Engelmann, Chief Justice of the Court of Appeals at Breslau,
with a chapter by E. Glasson, late of the University of Paris. Trans-
lated by Robert W. Millar, of Northwestern University. $4.00 net.

VIIL HISTORY OF ITALIAN LAW. By Carlo Calisse, of the ItaUan
Council of State. Translated by John Lisle, of the Philadelphia
Bar. $5.00 net.

IX. HISTORY OF FRENCH PUBLIC LAW. By J. Brissaud, late of,
the University of Toulouse. Translated by James W. Garner, o£
the University of Illinois. $4.50 net.

X. HISTORY OF CONTINENTAL COMMERCIAL LAW. By Paul
HuvELiN, of the University of Lyon. Translated by Ernest G.
Lorenzen, of the University of Wisconsin. $5.50 net

XL THE EVOLUTION OF LAW IN EUROPE. By Gabriel Tardb, '
Raoul de la Grasserie, and others. $5.00 net.

/ •■■''■"^

THE CONTINENTAL LEGAL HISTORY SERIES

PvblUhed under the auspices of the
ASSOCIATION OF AMERICAN LAW SCHOOLS

A HISTORY OF CONTINENTAL
CRIMINAL PROCEDURE

WITH SPECIAL REFERENCE TO FRANCE

A. ESMEIN

PROFESSOR IN THE FACULTY OF LAW OF PARIS

TRANSLATED BY

JOHN SIMPSON

OF NEW YORK
WITH AN EDITORIAL PREFg^CE BY

WILLIAM E. MIKELL

PROFESSOR OF LAW IN THE UNIYERSITY OF PBNN8YLYANIA
AND INTRODUCTIONS BY

NORMAN M. TRENHOLME

PROFESSOR OF HISTORY IN THE UNIYERSITY OF MISSOURI

AND

WILLIAM RENWICK RIDDELL

JUDGE OF THE HIGH COURT OF JUSTICE FOR ONTARIO

BOSTON
LITTLE, BROWN, AND COMPANY

1913

AU rights reserved

AUG 2 4 1927

Set up and electrotyped by J. S. Gushing Co., Norwood, Mass. , U.S.A.
Presswork by S. J. Parkhill & Co., Boston, Mass., U. S.A.

EDITORIAL COMMITTEE

OF THE

ASSOCIATION OF AMERICAN LAW SCHOOLS

Ernst Freund, Professor of Law in the University of Chicago.

Charles H. Huberich, of Berlin, former Professor of Law in
Stanford University.

Ernest G. Lorenzen, Professor of Law in the University of
Wisconsin.

Wm. E. Mikell, Professor of Law in the University of Penn-
sylvania.

Munroe Smith, Professor of Jurisprudence in Columbia Uni-
versity.

John H. Wigmore, Chairman^ Professor of Law in Northwestern
University.

LIST OF TRANSLATORS

Thomas S. Bell, of the Pasadena Bar.

James W. Garner, Professor in the State University of
Illinois.

Rapelje Howell, of the New York Bar.

John Lisle, of the Philadelphia Bar.

Ernest G. Lorenzen, of the Editorial Committee.

Robert W. Millar, of the Chicago Bar, Lecturer in Northwest-
em University.

Francis S. Philbrick, of New York, N. Y.

John Simpson, of the New York Bar.

John Walgren, of the Chicago Bar.

John H. Wigmore, of the Editorial Committee.

I might instance in other professions the obligation men lie under of
applying themselves to certain parts of History; and I can hardly for-
bear doing it in that of the Law, — in its nature the noblest and most
beneficial to mankind, in its abiise and debasement the most sordid and
the most pernicious. A lawyer now is nothing more (I speak of ninety-
nine in a himdred at least), to use some of TiHly's words, "nisi leguleius
quidem cautus, et acutus praeco aetionum, cantor formularum, auceps
syllabanun." But there have been lawyers that were orators, philoso-

Ehers, historians: there have been Bacons and Clarendons. There will
e none such any more, till in some better age true ambition, or the love
of fame, prevails over avarice; and till men find leisure and encourage-
ment to prepare themselves for the exercise of this profession, by climb-
ing up to the vantage ground (so my Lord Bacon calls it) of Science,
instead of grovelling all their lives below, in a mean but gainful applica-
tion of all the little arts of chicane. Till this happen, the profession of the
law will scarce deserve to be ranked among the learned professions. And
whenever it happens, one of the vantage grounds to which men must
climb, is Metaphysiciol, and the other. Historical Knowledge. Henrt
St. John, Viscoimt Bolingbroke, Letters on the Study of History (1739).

Whoever brings a fruitful idea to any branch of knowledge, or rends
the veil that seems to sever one portion from another, his name is written
in the Book among the builders of the Temple. For an English lawyer
it is hardly too much to say that the methods which Oxford invited Sir
Henry Maine to demonstrate, in this chair of Historical and Comparative
Jurisprudence, have revolutionised our legal history and largely trans^
form^ our current text-books. — Sir Frederick Pollock, Bart., The
History of Comparative Jurisprudence (Farewell Lecture at the Univer-
sity of Oxford, 1903).

No piece of History is true when set apart to itself, divorced and iso-
lated. It is part of an intricately pieced whole, and raust needs be put
in its place in the netted scheme oi events, to receive its true color and
estimation. We are all partners in a conmion undertaking^ — the illumi-
nation of the thoughts and actions of men as associated m society, the
life of the human spirit in 1^ familiar theatre of cooperative effort in
which we play, so ch^mged from age to age, and yet so much the same
throughout the hurrying centuries. The day for synthesis has come. No
one of us can safely go forward without it. — Woodrow Wilson, The
Variety and Unity of History (Address at the World's Congress of Arts
and Saenoe, St. Louis, 1904).

CONTINENTAL LEGAL HISTORY SERIES

GENERAL INTRODUCTION TO THE SERIES

"All history," said the lamented master Maitland, in a memo-
rable epigram, "is but a seamless web; and he who endeavors to
tell but a piece of it must feel that his first sentence tears the
fabric."

This seamless web of our own legal history unites us inseparably
to the history of Western and Southern Europe. Our main interest
must naturally center on deciphering the pattern which lies
directly before us, — that of the Anglo-American law. But in
tracing the warp and woof of its structure w^e are brought inevi-
tably into a larger field of vision. The story of Western Continental
Law is made up, in the last analysis, of two great movements,
racial and intellectual. One is the Germanic migrations, planting
a solid growth of Germanic custom everywhere, from Danzig
to Sicily, from London to Vienna. The other is the posthumous
power of Roman law, forever resisting, struggling, and coalescing
with the other. A thousand detailed combinations, of varied
types, are developed, and a dozen distinct systems now survive
in independence. But the result is that no one of them can be
fully understood without surveying and tracing the whole.

Even insular England cannot escape from the web. For, in
the first place, all its racial threads — Saxons, Danes, Normans —
were but extensions of the same Grermanic warp and woof that
was making the law in France, Germany, Scandinavia, Nether-
lands, Austria, Switzerland, Northern Italy, and Spain. And,
in the next place, its legal culture was never without some of the
same intellectual influence of Roman law which was so thoroughly
overspreading the Continental peoples. There is thus, on the
one hand, scarcely a doctrine or rule in our own system which can-
not be definitely and profitably traced back, in comparison, till
we come to the point of divergence, where we once shared it in
common with them. And, on the other hand, there is, during all
the intervening centuries, a more or less constant juristic socia-
bility (if it may be so called) between Anglo-American and Con-

•

CONTINENTAL LEGAL HISTOBT SERIES

tmental Law; and its reciprocal influences make the story one
and inseparable. In short, there is a tangled common ancestry,
racial orintellectual, for the law of all Western Europe and ourselves.

For the sake of legal science, this story should now become a
familiar one to all who are studious to know the history of our
own law. The time is ripe. During the last thirty years Euro-
pean scholars have placed the history of their law on the footing
of modem critical and philosophical research. And to-day, among
ourselves, we find a marked widening of view and a vigorous
interest in the comparison of other peoples' legal institutions.
To the satisfying of that interest in the present field, the only
obstacle is the lack of adequate materials in the English language.

That the spirit of the times encourages and demands the study
of Continental Legal History and all useful aids to it was pointed
out in a memorial presented at the annual meeting of the Asso-
ciation of American Law Schools in August, 1909:

*'The recent spread of interest in Comparative Law in general is
notable. The Comparative Law Bureau of the American Bar Associa-
tion; the Pan-American Scientific Congress; the American Institute
of Criminal Law and Criminology; the Civic Federation Conference
on Uniform Legislation; the International Congress of History; the
libraries' accessions in foreign law, — the work of these and other
movements touches at various points the bodies of Continental law.
Such activities serve to remind us constantly that we have in English
no histories of Continental law. To pay any attention at all to Con-
tinental law means that its history must be more or less considered.
Each of these countries has its own legal system and its own legal
history. Yet the law of the Continent was never so foreign to Eng-
lish as the English law was foreign to Continental jurisprudence.
It is merely maintaining the best traditions of our own legal litera-
ture if we plead for a continued study of Continental legal history.

'* We believe that a better acquaintance with the results of modem
scholarship in that field will bring out new points of contact and
throw new light upon the development of our own law. Moreover,
the present-day movements for cMxiification, and for the reconstruc-
tion of many departments of the law, make it highly desirable that
our profession should be well informed as to the history of the nine-
teenth century on the Continent in its great measures of law reform
and codification.

** For these reasons we believe that the thoughtful American lawyers
and students should have at their disposal translations of some of
the best works in Continental legal history."

And the following resolution was then adopted unanimously by
the Association:

L _

CONTINENTAL LEGAX HISTORY SERIES

"That a committee of five be appointed, on Translations of Conti-
nental Legal History, with authority to arrange for the translation
and publication of suitable works/'

The Editorial Conunittee, then appointed, spent two years in
studying the field, making selections, and arranging for trans-
lations. It resolved to treat the undertaking as a whole; and to
co-ordinate the series as to (1) periods, (2) countries, and (3)
topics, so as to give the most adequate survey within the space-
limits available.

(1) As to periods f the Committee resolved to include modem
times, as well as early and medieval periods; for in usefulness
and importance they were not less imperative in their claim upon
our attention. Each volume, then, was not to be merely a valu-
able torso, lacking important epochs of development; but was
to exhibit the history from early to modem times.

(2) As to countries, the Committee fixed upon France, Ger-
many, and Italy as the central fields, leaving the history in other
countries to be touched so far as might be incidentally possible.
Spain would have been included as a foiurth; but no suitable book
was in existence; the unanimous opinion of competent scholars
is that a suitable history of Spanish law has not yet been written.

(3) As to topics, the Conmiittee accepted the usual Continental
divisions of Civil (or Private), Conmiercial; Crinunal, Procedural,
and Public Law, and endeavored to include all five. But to repre-
sent these five fields under each principal country would not only
exceed the inevitable space-limits, but would also duplicate much
conmion ground. Hence, the grouping of the individual volumes
was arranged partly by topics and partly by countries, as follows:

Commercial Law, Criminal Law, Civil Procedure, and Criminal
Procedure, were allotted each a volume; in this volume the basis
was to be the general European history of early and medieval
times, with special reference to one chief country (France or
Grermany) for the later periods, and with an excursus on another
chief country. Then the Civil (or Private) Law of France and
of Germany was given a volume each. To Italy was then given
a volume covering all five parts of the field. For Public Law (the
subject least related in history- to our own), a volume was given
to Flunce, where the common starting point with England, and
the later divergences, have unusual importance for the history
of our courts and legal methods. Finally, two volumes were

allotted to general surveys indispensable for viewing the conneo-

•

CONTINENTAL LEGAL BISTORT SEBIES

tion of parts. Of these, an introductory volume deals with Sources,
Literature, and General Movements, — in short, the external
history of the law, as the Continentals call it (corresponding to
the aspects covered by Book I of Sir F. Pollock and Professor
F. W. Maitland's " History of the English Law before Edward I*') ;
and a final volume analyzes the specific features, in the evolution
of doctrine, common to all the modem systems.

Needless to say, a Series thus co-ordinated, and precisely suited
for our own needs, was not easy to construct out of materials
written by Continental scholars for Continental needs. The
Committee hopes that due allowance will be made for the diffi-
culties here encountered. But it is convinced that the ideal of
a co-ordinated Series, which should collate and fairly cover
the various fields as a connected whole, is a correct one; and the
endeavor to achieve it will sufficiently explain the choice of the
particular materials that have been used.

It remains to acknowledge the Committee's indebtedness to
aU those who have made this Series possible.

To numerous scholarly advisers in many European miiversities
the Conmiittee is indebted for valuable suggestions towards
choice of the works to be translated. Fortified by this advice,
the Conunittee is confident that the authors of these volumes
represent the highest scholarship, the latest research, and the
widest repute, among European legal historians. And here the
Committee desires also to express its indebtedness to Elbert H.
Gary, Esq., of New York City, for his ample provision of
materials for legal science in the Gary Library of Continental
Law (in Northwestern University). In the researches of prep-
jiration for this Series, those materials were found indispensable.

To the authors the Committee is grateful for their willing
co-operation in allowing this use of their works. Without ex-
ception, their consent has been cheerfully accorded in the
interest of legal science.

To the publishers the Committee expresses its appreciation
for the cordial interest shown in a class of literature so impor-
tant to the higher interests of the profession.

To the translators, the Conunittee acknowledges a particular
gratitude. The accomplishments, legal and linguistic, needed for
a task of this sort are indeed exacting; and suitable translators
are here no less needful and no more numerous than suitable
authors. The Committee, on behalf of our profession, acknowl-

CONTINENTAL LEGAL HISTOBY SERIES

edges to them a special debt for their cordial services on behalf
of legal science, and commends them to the readers of these vol-
umes with the reminder that without their labors this Series
urould have been a fruitless dream.

So the Committee, satisfied with the privilege of having intro-
duced these authors and their translators to the public, retires
from the scene, bespeaking for the Series the interest of lawyers
and historians alike.

The EnrroRiAL CoMMnrEE.

A HISTORY OF CONTINENTAL
CRIMINAL PROCEDURE

CONTENTS

PAOB

Editorial Committee and List of Translators . • • . v

General Introduction to the Continental Legal History

Series ix

Editorial Preface, by William E. Mikell .

Introduction, by Norman Maclaren Trenholme

Introduction, by William Renwick Riddell

Author's Preface to this Translation

. xzv

xxxiii
. xU
. xlv

PRELIMINARY TOPICS

CHAPTER I

THE DIFFERENT TYPES OF CRIMINAL PROCEDURE

§ 1. The Three Types of Crim-
inal Prooedure
§ 2. The Accusatoiy System .

PAOX

3
3

PAOI

§ 3. The Inquisitorial System . 8
§ 4. The Mixed System . . 11

CHAPTER II

ROMAN CRIMINAL PROCEDURE

§ 1. €reneral Characteristics 13

§ 2. Early Tribunals . . 14

§ 3. The QuseslioDes . . 15

§ 4. The Jndices ... 17
§ 5. ''Judices" compared with

modem Jurors . . 17
§ 6. Roman Procedure Accusa-
torial in its Nature . 18

§ 7. Effect of Lack of a Gen-
eral Criminal System . 20
§ 8. Acts Preliminary to Trial 20
§ 9. Preliminary Investiga-
tion .... 21
§ 10. Trial .... 23
§ 11. Changes under the Em-
pire .... 26

CHAPTER III

PRIMITIVE GERMANIC CRIMINAL PROCEDURE

$ 1. General Characteristics
§ 2. The Judicial Power .

30
32

§ 3. Trial by Battle, Ordeal,
Compurgators

XVll

CONTENTS

PART I

HISTORY OF CRIMINAL PROCEDURE IN FRANCE
FROM THE 12008 TO THE 1600 s

INTRODUCTORY

GENERAL FEATURES OF THE EVOLUTION

§ 1. The Three Sources of
French Criminal Proced-
ure and its Evolution .

§ 2. Double Tendency ; Safe-
guards of the Accused
and Protection of Soci-
ety; The Classic School
and the Modern School

§ 3. Features of Contemporary
Procedure ; Unity of
Ciyil and Criminal Jus-
tice ....

PAOK

§ 4. Same : Division of Official
Functions

§ 5. Same : Division of Crim-
inal Jurisdictions and
Authorities correspond-
ing to Division of Of-
fenses ....

§ 6. Same : Jurisdiction over
All Kinds of Persons
and Offenses .

PA«B

TITLE I

THE CRIMINAL JURISDICTIONS IN ANCIENT

FRANCE

§ 1. Phases of the Judicial Or-
ganization of Ancient
France. Union of Civil
and Penal Justice .

§ 2. Division of Courts of Jus-

tice. Secular Jurisdic-
tions. Ecclesiastical
Jurisdictions ... 48
§ 3. Development of the Royal

Jurisdictions ... 50

TITLE II

THE PROCEDURE

CHAPTER I

THE ACCUSATORY PROCEDURE OF THE FEUDAL

COURTS

§ 1. Introductory .

§ 2. The Accusation

§ 3. The Theory of Proof

§ 4. Capture in the Act .

§ 5. Arrest on Suspicion .

. 55

§6.

Inquest by the Country .

. 55

§7.

Detention pending Trial

and Bail

. 61

§8.

Procedure by Contumacy .

. 62

• • •

111

CONTENTS

CHAPTER II

THE ORIGIN OF THE INQUISITORIAL PROCEDURE AND
ITS GROWTH DURING THE 12008 AND 1300 s

PAKE

§ 1. Introductory . . .78

§ 2. The Ecclesiastical Crim-
inal Procedure . . 79

§ 3. The « Aprise " or Official

Inquest . . . .94

§ 3 a. Same : The Denuncia-
tion . . . .99

PAGB

§ 36. Same : The Secular In-
quisition in the 1300 s . 104
§ 4. Torture .... 107
§ 5. The Public Prosecutor . 114
§ 6. Final Changes. The " Or-
dinary" and the "Ex-
traordinary" Procedures 121

CHAPTER III

FRENCH CRIMINAL PROCEDURE UNDER THE ORDI-
NANCES OF THE 14008 AND 15008

§ 1. Introductory . . . 145
§ 2. The Ordinances of 1498
and 1639. The Crim-
inal Action in the 1500 s 145
§ 3. Protests against the Ordi-
nance of 1539. Constan-

tin, Du Moulin, and
Pierre Ayrault . ►165
§ 4. The Criminal Procedure
and the States- General
of the 1500 s. . . 174

PART II

HISTORY OF CRIMINAL PROCEDURE IN THE
LATE 16008 AND THE 1700 s

TITLE I
THE FRENCH ORDINANCE OF 1670

CHAPTER I
THE DRAFTING OF THE ORDINANCE OF 1670

§ 1. The Project of a Codifica-
tion ; Colbert, Pussort,
and Louis XIV

§ 2. Memorials of Members of
the State Council .

§ 3. Colbert's Plan; the Coun-

183

186

cil of Justice ; its Prelim-
inary Labors .
§ 4. The Parlement's Share
§ 5. Discussion of the Ordi-
nance; Lamoignon and
Pussort ....

195

203

207

XIX

CONTENTS

§ 1. Introductory

§ 2. Jurisdictional Rules .

§ 3. The Procedure .

CHAPTER II

PAOK

211
211
218

PAOB

§ 4. Reserved Justice, and Let-
ters from the King . 245

CHAPTER III

THEORY OF PROOF
§ 1. Proofs under the Customary Law .

251

CHAPTER IV

INFLUENCE OF THE ORDINANCE OF 1670 UPON THE
ADMINISTRATION OF JUSTICE

§ 1. The Procedure regularized
and stated precisely by
the Ordinance . . 272

§ 2. Observance of the Ordi-
nance .... 275

§ 3. Persistent Defects in the
Administration of Jus-
tice. The Question of
Money. The Written
Procedure . . . 279

§ 4. Eftect of Influence and
Money upon the Enforce-
ment of the Rigorous
Provisions of the Ordi-
nance ....

§ 5. Commentators on the Ordi-
nance ....

282

286

TITLE II

CRIMINAL PROCEDURE IN EUROPE GENERALLY

CHAPTER I
CRIMINAL PROCEDURE IN OTHER COUNTRIES

§ 1. Introductory . . .288

§ 2. Italy 289

§ 3. Spain . . . .295
§ 4. Germany. The Nether-
lands . . . .302

§ 4a. Addendum on German

Criminal Procedure . 314
§ 5. England .... 322

CHAPTER II

CRIMINAL PROCEDURE AND PUBLIC OPINION IN THE

1600 s AND 17008

§ 1. Reception of the Criminal
Procedure in the 1600 s.

Le Bruy^re, Augustin
Nicolas, Despeisses . 351

CONTENTS

f 2. The PhUoaophic Move-
ment of the 1700 s . 359

f 3. liontesquiea and Beccaria.
The Criminal Law in
Voltaire's Works . . 362

PAOB

§ 4. Opinions of the Jurists of

the 1700 8 . .869

§ 5. D'Aguesseau's Reforms . 380
§ 6. Progress of the Spirit of

Reform .... 382

PART III

HISTORY OF CRIMINAL PROCEDURE SINCE
THE FRENCH REVOLUTION

TITLE I
THE LAWS OF THE FRENCH REVOLUTION

CHAPTER I

THE AMENDMENTS TO THE ORDINANCE OF 1670

§ 1. The Edict of 1788 . . 393
§ 2. The Cahiers of 1789 . 397

§ 3. First Reforms effected by

the Constituent Assem-
bly; the Decree of 8-9
October, 1789

402

CHAPTER n

THE CODES OF THE INTERMEDIARY PERIOD

§ 1. The Procedure by Jury.
Law of 16th and 29th
September, 1791. The
System originated there-

§ 2. Discussion of Bill in the

408

Constituent Assembly.
Strife between the Old
and New Principles . 419
§ 3. Code of Offenses and Pun-
ishments of 3d Bru-
maire, Year IV . . 426

CHAPTER in

THE LAWS OF THE YEAR IX

1. Law of 7th Pluvidse, Year

IX. The Magistrates of
Detective Police. Re-
constitution of the I\ib-
lic Prosecutor. Changes
in the Examination

2. The Jury put to Trial : Po-

437

litical Passion ; Brigand-
age .... 446
§ 3. Law of 18th Pluvidse, Year
IX. The Special Tri-
bunals. Revival of the
« Pr^vdtal " Courts . 453

XXI

CONTENTS

TITLE II

THE FRENCH CODE OF CRIMINAL EXAMINA-

TION, 1808

CHAPTER I
THE DRAFT OF THE CRIMINAL CODE

§ 1. The Draft of the Criminal
Code. The Jury and
the Ordinance of 1670 .

§ 2. " Observations " of the Su-
preme Court and the
Courts of Appeal .

PAOK

462

465

§ 3. " Observations " of the
Criminal Courts .

§ 4. The Jury and the Publi-
cists ....

rAOB

472

477

CHAPTER n

THE QUESTION OF THE JURY BEFORE THE STATE'S

COUNCIL

§ 1. First Discussion of the
Draft before the Staters
Council. Interruption
of the Work . . .482

§ 2. Resumption of the Work.
Suppression of the Grand
Jury. Retention of the
Petty Jury . . .495

CHAPTER III

THE ORDINANCE OF 1670 AND THE REVOLUTIONARY
LAWS IN THE CODE OF CRIMINAL EXAMINATION

§ 1. Separation of the Powers
of the Public Prosecutor
and the Examining Mag-
istrate .... 500

§ 2. The Documents and Forms
of the Preliminary Ex-
amination . . . 505

§ 3. The Proceedings before
the Trial Jurisdiction.
Moral Proofs . 510

§ 4. The Special Courts . . 517
§ 5. Ren Judicata, Reserved
Justice, Rehabilitation
and Revision . . 522

CHAPTER IV

CRIMINAL PROCEDURE IN FRANCE SINCE THE CODE

OF 1808

§ 1. Legislation and Judicial

Decisions . . . 528

§ 2. Changes in Procedure be-
fore Trial . . .529

§ 3. ChangesinthePreliminary

Examination. . . 539

§ 4. Plans for Reform . . 546

§ 5. Recent Legislation . . 547

XXll

CONTENTS

TITLE III

CRIMINAL PROCEDURE SINCE 1800 IN OTHER

COUNTRIES

§ 1. Importance of Compara-
tive Law. Two Chief
Groups of Laws : (1)
Combination of Inquis-
itorial and Accusatory
Systems ; (2) Accusa-
tory System as derived
from English Law

§ 2. Legislation in Various
Foreign Countries : Ger-
many, Austria-Hungary,
Belgium, Principality of
Monaco, Grand Duchy

PAOS

570

of Luxemburg, Spain,
Italy, Switzerland, the
Netherlands, Great Brit-
ain, Russia, Grand
Duchy of Finland, the
Balkans, Scandinavia,
Turkey, Egypt, North
America, South America,
Japan ....
§ 3. Chief Features of Prosecu-
tion, Examination, and
Trial under the Princi-
pal Foreign Systems

PAOB

572

595

APPENDICES

APPENDIX A

THE SCIENTIFIC LITERATURE OF CRIMINAL

PROCEDURE

§ 1. Two Eras in the Literary
History of the Science
of Criminal Procedure,
before and after the
Code of Criminal Exam-
ination of 1808

§ 2. Writers of the First Period,

609

prior to the Code. Glos-
sators, Practitioners,
Forerunners . . . 609
§ 3. Writers of the Second Pe-
riod, subsequent to the
Code. Italian, French,
and German Writers . 614

APPENDIX B

HISTORY OF THE CONTINENTAL SYSTEM OF EVIDENCE

§ 1. Three Points of View . 617

§ 2. Historic Evolution of the
System of Evidence.
Four Phases . . .617

§ 3. The Two Principal Sys-

tems. Legal Proofs and

Moral Proofs .
§ 4. Origin of the System of

Legal Proofs.
§ 5. Four Methods of Proof.

Proof of the Corpus De-
xxiii

620
620

]icti; Proof of Culpa-
bility . .
§ 6. Testimonial Proof .
§ 7. Written Proof
§ 8. Presumptions .
§ 9. Proximate Indications .
§10. Remote Indications
§11. Legal Proofs in Ancient
French Criminal Law.

CONTENTS

PAGK

Necessity for Confes-

PAOB

622

sion. Interrogations.

623

Torture

626

624

§12.

Origin of the System of

624

Convincing Proofs

627

625

§13.

Convincing Proof really

626

" Jury Proof " .

629

§14.

Disappearance of the Sys-

tem of Legal Proofs .

630

INDEX 631

XXIV

EDITORIAL PREFACE

By Wiluam E. Mikell^

NoTfflNG behooves us so much, in these days of reconsideration
of the fundamentals in criminal procedure, as to consult experience,
in the shape of the history of that subject. In no part of the law's
framework are the scars of the past so deeply indented. No body
of rules is so largely based on policies consciously adopted to safe-
guard against felt abuses. Nowhere in the law are the warnings
of history more explicit and more valuable for our own generation.
And the story of the process by which two systems of criminal
procedure, starting as close together as the English and the Conti-
nental, diverged to become typical opposites, is fascinating in its
interest.

The lack of material in English on the history of the Continental
system has hitherto prevented any general familiarity with it.
Indeed, in the Continental languages practically the only modem
work of the kind is that of Professor Esmein, here presented.

ADH&hiAB. Esmein, bom Febmary 1, 1848, at Touverac (in
Charente), received his first appointment as Fellow ("agr6g6'')
in 1875 ; became professor of law at Douai, and then at Paris in
1879. He has since been elected a member of the Institute of
France. He has also been a member of the Superior Council of
Public Instruction, and is Professor in the Free School of Political
Science, and Section President in the Practical School of Higher
Studies. His work in a variety of fields of legal history has placed
his name in the front rank of French legal scholars.^

* Professor of Criminal Law and Procedure in the University of Penn-
sylvania, member of the Editorial Committee for this Series.

* Among his i>rinoipal works may be named : "Etudes sur les contra ts
dans le trds ancien droit frangais/' 1883; '* Melanges d'histoire du droit
et de critique; Droit romain," 1886; "Cours ^l^mentaire d*histoire du
droit francais," 1892, 5th ed. 1903; ** Precis EI6mentaire de I'histoire du
droit fran^ais de 1789 a 1814 ; Revolution, Consulat, et Empire,*' 1909 ;
" Elements de droit constitutionnel frangais et comparS," 5th ed. 1909. He
has also written a monograph on "Gouvemeur Morris," and contributed
largely to the legal journals.

XXV

EDITORIAL PREFACE

The work here translated was first published in 1882, under the
title " Histoire de la procedure cnminelle en France, et sp^ciale-
ment de la procedure inquisitoire depuis le XIIP sifecle jusqu'a nos
jours." M. Dareste, the veteran professor of comparative law,^
said of M. Esmein's book, in announcing the report of the Academy
awarding to it the prize in a competition for which it was presented,
"This work, well constructed and well written, is notable for the
keen judgment and the accuracy of treatment shown throughout."
It is marked by all the sterling qualities of French scholarship at
its best; and this important subject is fortunate in receiving so
thoroughly satisfying a treatment. The author has thoroughly
revised it for this edition, making copious additions to the notes
and occasional substitutions in the text.

Though the breadth of view in Professor Esmein's work would
make it an adequate guide to the development of Continental
criminal procedure in general, yet it was not composed for that
purpose. To render the present volume, therefore, more compre-
hensive and serviceable to Anglo-American readers, who need a
larger perspective by reason of their peculiar standpoint, the Edi-
torial Committee has added a few chapters from other works.
These chapters trace the general lines of development for the Con-
tinent generally, and fill out more of the details for Germany;
the special history in Italy, the home of criminal law movements,
will be treated in the volume of this Series on the History of Italian
law. These added chapters (three at the beginning, on types of
Procedure, Roman Procedure, and Primitive (Jermanic Procedure ;
and three at the end, on Continental Legislation of the 1800 s, the
Literature of Criminal Procedure, and the History of Law of Evi-
dence) are from the pens of Professor Garraud and Professor Mit-
termaier.

FRANfois Garraud, Professor in the Faculty of Law of Lyon,
is the leading authority in France on modem criminal law and
procedure. The chapters here used are from his " Traite th6orique
et pratique d'instruction criminelle et de procedure p6nale," 1907,
1909 ; of which the concluding volumes have not yet been pub-
lished.^

Carl Josef Anton Mittermaier (born in 1787, died 1867),
Professor of Law at Heidelberg after 1821, became the most
famous criminal scientist of his day in Europe. His life and

^ We have to lament his decease since this Preface was penned.

2 Reviewed in vol. II of the Journal of the American Institute of Crimi-
nal Law and Criminology. His other principal work in criminal law is,
** Traits thfiorique et pratique du droit p^nal, * 6 vols., 1898-1902.

xxvi

EDITORIAL l^REFACE

labors are fully told in vol. II of the present Series, "Great Jurists
of the World." The chapters of his here used (on Roman Procedure,
Primitive, Medieval, and Modern German Procedure) are taken
from his " Das deutsche Strafverfahren, in der Fortbildung durch
Gerichtsgebrauch und Landesgesetzgebung und in genauer Fer-
gleichung mit dem englischen und franzosischen Strafverfahren."
This work, first published in 1827, went into its fourth and last
edition in 1846 ; and has since remained the best exposition of the
historj'' of German criminal procedure ; nor has any later German
scholar (singularly enough) offered anyth'ng so extensive in this field.

The translator of Professor Esmein's work and Professor Gar-
raud's chapters is John Simpson, of New York. Mr. Simpson is
a contributor to the "American and English Encyclopedia of Law,'*
a legal correspondent for numerous technical journals, and the
translator of several masterpieces of French literature.

The translator of Professor Mittermaier's chapters is Thomas
S. Bell, formerly of the Tacoma Bar and Lecturer in the Uni-
versity of Washington, and now of Pasadena, California. Mr.
Bell, after graduating from the University of Colorado, and
going as Rhodes Scholar to Chcford, completed there a course in
law and jurisprudence (B.C.L. 1908), and was afterwards Fellow
in Jurisprudence at Columbia University.

Whatever the debt the student of English law owes to Sir Wil-
liam Blackstone, it must be said that to him in no small degree is due
the lack of interest of the English and American lawyer of the past
hundred years in the laws and legal institutions of other nations.

Blackstone never tired of giving thanks that the English law
was not like other law. It has been a source of wonder to the youth-
ful students of his pages how other nations preserved any sem-
blance of civilization and freedom without the many great "palla-
dia of liberty'' possessed by the Anglo-Saxon. He never tired of
drawing comparisons between the English law and the laws of other
countries, always to the detriment of the latter. It may not be the
result, but it is at least a coincidence, that with the cessation of the
use of Blackstone's Commentaries as an entranee to the study of
English law there is a growing demand for a knowledge of the
legal systems of other countries.

Prom a practical point of view a knowledge of the criminal
procedure of other countries is perhaps of less value than a knowl-
edge of foreign law on any other branch of jurisprudence. Our
own criminal procedure has been the avowed model for foreign
countries. To the student of institutions, however ; to him who

xxvii

EDITORIAL PREFACE

joys in watching the never ceasing battle between the forces of
repression and liberty — the nice adjustment of which spells true
civilization ; to him who would see how a great people have worked
out a great problem, — the study of the history of French
criminal procedure offers a fascinating subject. Our own procedure
is the result of a slow evolution. In the French criminal proced-
ure we see the rare phenomenon of a combination of evolution and
adoption and then of an evolution of the adoption, yet with all a
constant tendency to a reversion to type.

Nothing could be more interesting than Esmein's study of this
evolution of French criminal procedure from Roman, through
Germanic, to Canon law; the play and coimter-play of various
forces for two centuries, making for the permanence first of the
accusatory and then of the inquisitorial system.

The reader will here find set forth the struggle between the
enquete du pays and the " inquest " of the Canon law. He will
learn how the former lost to the latter at the same time that the
English equivalent of the enqiiSte du pays — the inquisitio patricB
— the grand jury — was triumphant in England.

The Ordinance of 1670 definitely fixed the inquisitorial proced-
ure in French law for a century. The Revolution, however, will
bring to the battle new forces, and the accusatory procedure of
England will be bodily transplanted into French soil. Later, the
need of strengthening the authority of the State will cause a rever-
sion. The Code of Offenses and Pimishments of the year IV will
show a tendency to return to the secret examination of the inquisi-
torial system, a tendency that the law of the year IX will accentu-
ate. Then a compromise will be effected by the Code of 1808,
which will reenact in part the inquisitorial, while retaining in part
the accusatory system. The adoption of the Code of 1808, how-
ever, only marks a pause in the battle, a battle that begins again
every time the government undergoes a notable change.

In studying French criminal procedure, considering it both in
its broad sweep and in detail, one cannot fail to be struck with
the unity of history. . Different in many respects as has been the
history of French and English procedure, so different indeed that
the two have, at certain periods, offered opposing types, we see
that both began as one type — the accusatory. English procedure
remained true to type, with a few unimportant aberrations, such
as the Star Chamber afforded. In France, though for many
centuries this type was abandoned, we now see it restored in almost
its pristine vigor. In details we see the same unity. Torture runs

xxviii

EDITORIAL PREFACE

through both like a scarlet thread, though the thread is larger and
the dye deeper in France. Shudder as we may at the institution
of torture, it is something to know that the necessity for it was
due, not to innate cruelty, but that it sprang from a regard for the
innocent accused which demanded such perfect proof for conviction
that nothing short of confession would satisfy it. The French-
man's "house was his castle'' even more than the Englishman's,
for the former could not even be arrested in his home. In both
countries the right of the accused to coimsel, in serious crime, was
first denied and then granted. The language of Pussort in the
debate on the Ordinance of 1670 read like a modem political in-
dictment of a "corporation lawyer." Pussort says: "We know
how fertile these kinds of counsel are in finding openings to frame
conflicts of jurisdiction, how they often scheme to discover nullities
in the proceedings and to give birth to an infinitude of side issues.
It is therefore peculiarly in the interests of the wealthy that counsel
is granted." In both countries the right was granted by the judges
before legal warrant by legislation.

In England the proof required to convict was always proof "be-
yond a reasonable doubt." In France the proof must be "clearer
than the sim at noonday."

The doubts as to the necessity for a unanimous verdict ; the right
of the accused to be free from the necessity of incriminating him-
self,— these are a few of the many things the student of English
law finds reproduced in France.

In law as in other sciences we have our recmring cycles of
thought. The present-day alienist harks back to the ancient Greek
where Homer ascribed guilt to At6. We are saying again the crimi-
nal is not so much a knave as a fool or a madman ; his intellect is
darkened. Simonides is quoted by Plato as saying, "A man cannot
but be bad when the force of circumstances overpower him."
The modem sociologist makes crime the product of environment.
Humanism in the 1400 s, on the Continent, inveighed against the
theories and the technicalities of the Jurists. The social scientists
of the 1900 s are voicing the same cry — with this difference,
that the Humanist cared nothing for the practical importance of
the administration of the law ; his interest, was in origins, and his
effort, to take men's minds back to the purity of original sources.
The present-day movement cares little for sources, its effort is
directed to practical results.

In the French criminal procedure we may find many a precedent
for provisions in our law which are anomalies with us.

xxix

EDITORIAL PREFACE

Probably the most interesting feature of the building up of the
French procedure is the struggle with the jury system. It is met
at every turn in French legal history.

''The French inquest has in it the germ of all that becomes
distinctly English in the English law of the later Middle Ages, the
germ of trial by jury and of a hard and fast formulary system of
actions which will be tough enough to resist the attacks of Roman-
ism." Maitland has also told us how the fate of the inquest was
still in the balance a century after the Conquest, and how Henry
II, in the nick of time, by placing at the disposal of litigants in cer-
tain actions the ''inquest of the country" which the Romans had
brought from France, established trial by jury in England. Es-
mein shows us the steps by which this same "enqvMe du pays" lost
in France in the struggle with the "inquest" of the Canon law.
The jury early lost to France ; imported as an alien institution in
its entirety in 1791 ; its subsequent history, in which four times
the fight for it was lost and won, won even against the opposi-
tion of Napoleon, — is treated with a masterly hand by our author.

Nothing could be more interesting to the American or English
reader, to whom the jvtry is the "Palladium of Liberty," than to
read the debates, set out at length by our author, on the value of,
and the advisability of adopting, trial by jury in criminal cases.
The recurrence of the argument that what has proved valuable
among the English would not suit the " genius of the French people,"
reminds us of the phrase "un-American" which meets every effort
at reform with us. Yet notwithstanding this " genius of the French
people, " the jury has won a permanent place in French law. As
our author says: "A great civilized nation cannot renounce it
without losing its rank. . . . It is indestructible . . . in spite of
its defects."

Esmein's chapter on the function of the jury in criminal trials is
well worth study. It has long been a mooted question with us
whether the jury is legally bound to take the law from the court
or is itself to be judge of the law as well as the facts in rendering
a general verdict.

It is known to all who have eyes to see and ears to hear that there
exists grave dissatisfaction with the administration of the criminal
law in the United States. We used to be satisfied with the explana-
tion that it was due to the fact that we were a new country, until we
learned that the same phenomenon did not exist in newer countries
than our own. The explanation that it was due to the immigrant
is not weighty when we consider that our budget of crime is greater

XXX

EDITORIAL PREFACE

than that of the countries from which the immigrant comes. Opin*
ion is crystallizing into the belief that it is due to our procedure in
prosecuting criminals, and the public mind is open as never before
in our history to the adoption of practicable means for the reform
of the procedure where it is shown to be archaic or otherwise inade-
quate. No student of our criminal jurisprudence can fail to be
impressed with the efforts of our criminal courts with the machin-
ery at hand to render more effective the administration of the penal
law. Decisions are daily rendered upholding indictments, ignoring
errors in instructions, and validating verdicts that a few years ago
would have been regarded as a denial of some fundamental consti-
tutional right. But the judges — anxious as the vast majority
of them are to render effective the administration of the criminal
law — cannot do all that is needed. The more drastic power of
the legislature and of the constitutional convention are necessary
for the cure of some evils. To the legislator this book may be com-
mended — not perhai>s as a study in direct legislation — but for
its broadening effect in showing how a great nation has tried to
work out the problem that confronts us.

It is a curious fact that during the last century opposite tend-
encies have been working and continue to work in French procedure
on one hand and English and American procedure on the other.
In France the tendency has been to ameliorate the severities of the
law, to surround the accused with greater safeguards at the expense
of the prosecuting power. In England and the United States there
is a strong tendency to strengthen the hand of the state at the ex-
pense of the accused, by a process of elimination of the technical
rules that covered the accused as with a coat of mail. Recently
the old inquisitorial procedure has shown its head in America in the
so-called "Third Degree." Whether this is sporadic and will re-
main extra-legal or wiU find recognition remains to be seen. It has
already reached sufficient magnitude to call forth legislation. So
far this legislation has been against it, and in the extra-legal way
in which it is practised it is, undoubtedly, vicious. But it may well
be that, protected as the criminal is in Anglo-American jurispru-
dence from the time of arrest to final judgment, surrounded as he
is not only with all the presumptions and technicalities of the old
English procedure, but also by the added constitutional safeguard
of State and Federal constitutions, we may yet find it necessary
to adopt something corresponding to the examination of the French
juge dHnstrucHon ; in some States we have already followed France
and practically abolished the grand jury.

xxxi

EDITORIAL PBEFACB

Another matter that may well engage those who would reform
criminal procedure is that of the necessity, for conviction, of una*
nimity among the jury. With this, as with most other fimda-
mentals of criminal procedure, the French have not scrupled to
experiment, and their experience is well worth study.

Payment of damages by the State to one who has befti wrong-
fully convicted and suffered punishment, is a feature of French law
that we are likely soon to adopt. Agitation for a " public defender "
has begun. He would be rash who would predict the future of
penal legislation in the United States. Is it too much to hope that
in making the changes that are coming we wiU study the history
of criminal procedure in France — the country which for four
hundred years has been the laboratory for legislation on this branch
of law ?

XXXII

INTRODUCTION

By Norman IVIaclaren Trenholme*

In an age of growing internationalism, law should become
more international as well as more rational and scientific. Law-
yers as well as legal historians and teachers of law should become
acquainted with the legal history and procedure of other countries,
and develop a broad comparative knowledge of the principles,
practices, and procedure of the past and present. In bringing this
about, books such as the present volume are most effective and
absolutely necessary. It is their absence heretofore that has
made the legal profession of America and England somewhat
narrow and national in its outlook.

Criminal procedure to-day is so much a matter of ordinary
legal training and knowledge that few lawyers realize what a wealth
of historical and legal background it has. Its history has been
neglected in large part as well by institutional historians who have
preferred to deal with larger questions of governmental and legal
development. The result of this double neglect is seen in the fact
that there are but few books in foreign languages and, until the
appearance of this volume, practically none in English, dealing in
detail with the history of criminal procedure. In view of the
vital importance of understanding the processes of development
lying back of present practices and of comparing our methods of
procedure with those of other countries, such lack of historical refer-
ence works is to be regretted. The appearance, therefore, of a
comprehensive work such as this in the Continental Legal History
Series, containing a survey of the historic forms and literature of
European criminal procedure, even including England, is a most
encouraging sign of legal-historical progress in America.

The work to which this is an Introduction, though mainly a
translation of Esmein's "Histoire de la Procedure Criminelle en

* A.B. (McGiU University) ; A.M., Ph.D. (Harvard University) ;
Professor of History in the University of Missouri ; author of !'The Right
of Sanetuory in England" (1903).

xxxiii

INTRODUCTION TO TfflS VOLUME

France/'^ is made of broader application and greater value by
the inclusion, in both the earlier and later parts, of portions of other
treatises. The larger number of these additional and supple-
mentary chapters are translated from M. Garraud's broad and
scholarly work on French criminal procedure, a part of which
forms the introductory chapter of our volume. This is an excel-
lent-general discussion of the accusatory , inquisitorial, and mixed
types of procedure in criminal cases. The second chapter, bow-
ever, draws on another work, that of the learned German legal his-
torian of over half a century ago, Professor Mittermaier, the author
of a well-known history dealing with German criminal procedure.
From this work we have a concise and scholarly account of the
Roman criminal procedure in which the various processes and
practices of the Roman legislative system of procedure are de-
scribed and the somewhat accusatorial character of the Roman
system is brought out. The presence of inquisitorial features
in later imperial procedure is noted, and we get a good general
idea of the extent and character of the Roman background to later
criminal procedure. The third chapter is also from Mittermaier's
work and describes primitive Germanic criminal procedure with
suflScient fulness and detail for the purposes of a general survey.
The difference that is frequently apparent between French and
German research and scholarship is well brought out by compar-
ing Garraud's chapters with those from Mittermaier. The former
has decided superiority of style and organization, while the latter
excels in exactness and in proofs and references. Both these
accoimts are of great interest and value to students of the history
of law.

Part One of the main work is devoted to the history of criminal
procedure in France from the twelfth to the seventeenth centuries
and Garraud is again drawn on for an introductory section. This
describes and comments on the general features of the evolution
of French criminal procedure and is a useful and valuable survey.
It connects the past and present in a clear and interesting manner
by showing how the criminal procedure in France to-day is of a
mixed type rather than strictly inquisitorial and is the result of
a long process of legal evolution and special legislation. Such a
well-organized and philosophical introduction is of especial im-
portance in a work intended for English and American readers

* Histoire de la Procedure Criminelle en France et sp^cialement de la

groo6dure inquisitoire depuis le XIIP si^cle jusqu'^ nos jours, par A.
ismien, professeur a^g6 & la faculty de droit de Paris. Ouvrage
couronn^ par Tacad^mie des sciences morales et politiques. Paris, 1882.

xxxiv

INTRODUCTION TO THIS VOLUME

who may not be familiar with the peculiar characteristics of con-
temporary procedure in France. The meaning and importance
of Esmein's more detailed account of the criminal jurisdiction of
Old France (which is a better rendering of "L'Ancien France"
than "Ancient France") is better appreciated and understood after
knowing the present status.

The reader, having been furnished with a broad backgroimd
of Roman and early Germatiic criminal procedure and a perspective
of general development from ancient times to the present, is pre-
pared to follow the interesting story of the evolution of criminal
procedure in France and other European countries from the later
Middle Ages to the present. Professor Esmein's work, with some
slight omissions and a number of important additions, furnishes
an excellent basis for such a survey. Like many French and Eng-
lish monographs of great merit, Esmein's study was first presented
as a prize essay in competition for the Bordin Prize in 1880. The
subject proposed for competition was : " To make clear the history
of the criminal Ordinance of 1670; to seek out what has been its
influence on the administration of justice and on the legislation
which followed it to the close of the eighteenth century." Esmein,
who has then merely agr6g6 in the Faculty of Law at Paris, won the
prize, by the unanimous decision of the judges, with an essay en-
titled : "Histoire de TOrdonnance de 1670 et de la procedure in-
quisitoire en France." The young author ventured to go beyond
tie letter of the subject proposed by giving the historical and legal
background to the Ordinance of 1670 and by carrying his treatise
on criminal procedure in France beyond the limit of the eighteenth
century up to his own time. This did not infringe on the spirit
of the subject, however, but made Esmein's work of broader legal
and historical value, for, as he says in his original preface : ''The
presentation of the history of a Law that has passed away should
not merely tell how it was promulgated, applied, and later abro-
gated : it is necessary, in addition, to seek out the origin of the
legal ideas it contained and to ask oneself if it has not transmitted
something of value to the modern legislation that has followed it."
With this spirit and viewpoint it is little wonder that Esmein
produced a study of permanent value, and that the essay crowned
by the Academy of Moral and Political Sciences should become
the basis for the broad and scholarly work on the history of criminal
procedure that we have in English translation in this volume.

Historical students will regret to some extent the omission in
this volume of the first or introductory section of M. Esmein's

XXXV

INTRODUCTION TO THIS VOLUME

work consisting of two chapters on the early jurisdictions of Prance,
because these chapters contain an interesting account of an histori-
cal-legal character of the seigneurial and royal justice of France,
in the later Middle Ages. But their place has been well taken
by the broader survey from Garraud already referred to and stu-
dents of History can always go to Esmein's original work for the
special information in the omitted chapters.

The first topic dealt with in the translation from Esmein, there-
fore, is that of early procedure in France, which was thoroughly
accusatory in character, in connection with the feudal courts.
Beaumanoir and the various collections of feudal customs, together
with the leading modem authorities of France and Germany, are
used as sources for this excellent treatment of the more important
features of feudal procedure. The transition from the accusatory
form to the inquisitorial is next brought out, and special emphasis
is laid on the influence of the Church and on the growth of the
royal power in bringing about the change. The introduction of
torture to extort confessions and the appearance of the secret
examination are noted as important factors in the new system.

The next step is the organization and control of criminal proced-
ure by royal ordinances which began with the ordinances of 1498
and of. 1539. The latter ordinance was especially important
and evoked some spirited opposition on account of its arbitrary and
severe character. Under the influence of these ordinances all other
forms of criminal procedure either tended to disappear or were
abolished. It was only natural that the seventeenth century in
France should witness a tendency on the part of the strong
monarchical government towards an elaborate codification of
criminal procedure along inquisitorial lines. This was accom-
plished under Louis XIV in the form of the great Ordinance of 1670.

The Ordinance of 1670 was the result of many discussions and
conferences on the part of the royal ministers, especially Colbert,
and the leading jurists of the time. Like the Magna Charta, the
Ordinance contained little that was really new, being a codification
of the criminal procedure that had gradually developed during the
three centuries previous to its enactment. It marked, therefore,
the culmination of the process of transition from the oral and public
accusatory system of the feudal period to the written and secret
inquisitorial procedure of the early modem period. The result
was that a code of criminal instruction was now definitely estab-
lished which lasted down to the French Revolution and was rigidly
followed in all its details of secret processes, variegated tortures,

xxxvi

INTRODUCTION TO THIS VOLUME

and cruel punishments by all the courts of justice in France. Back
of it lay the royal authority, which could be exercised arbitrarily
against the subject, and it is little wonder that the French reform-
ers of the eighteenth century regarded such a system as mediaeval
and irrational. Instead they professed admiration of the English
system of the public accusatory type which involved trial by a
jury and gave the defendant the benefit of being considered inno-
cent until he was proved guilty and did not subject him to torture
and secret examination. Esmein's account of the actual workings
of the Ordinance of 1670 is particularly full and interesting and
includes valuable material as to how the ordinance was regarded
by leading jurists, philosophers, and poUtical theorists in the eigh-
teenth century.

Accompanying this discussion is an interesting survey of the
criminal procedure which had grown up in other European countries
such as Italy, Spain, Germany and the Netherlands, and England.
This survey has been made completer and more valuable in its
English form by the author's careful revision and the introduction
(for the purpose of this translation) of considerable additional
matter, especially in connection with England.

The third and final portion of Esmein's work is concerned
with the legislation in regard to criminal procedure of the revolu-
tionary period and of the Napoleonic era leading up to the Code
of Criminal Instruction of 1808. An interesting account of the
attacks on the old procedure contained in the cahiers of 1789 and
of the first attempts at reform which were made by the Constituent
Assembly is given, and the contest that raged between the advocates
of jury trial and the upholders of a modified inquisitorial system
is well brought out. This contest finally ended in a compromise
by which a mixed accusatory and inquisitorial system of procedure
was put into effect as a result of lengthy debate and discussion on
the part of Napoleon's Council of State and of the leading jurists
of the empire. The conclusions reached were embodied in the great
Code of Criminal Instruction of 1808, which has served as the basis
of modern criminal procedure in France although frequently modi-
fied by subsequent legislation. In this code the influence of the
Ordinance of 1670 and of earlier criminal procedure is clearly seen
in connection with the preliminary and secret examination by the
magistracy, the severity of the restrictions on the defendant in a
criminal case, and the system of written testimony and instruc-
tion. On the other hand, the influence of the reform element in
favor of jury trial is seen in the provision for public trial and jury

xxxvii

INTRODUCTION TO THIS VOLUME

decision, in the recognition of the courts of Cassation and of As-
size, and in the provisions for allowing the accused person better
facilities for defense. To further reform the criminal law of
France an elaborate Penal Code was compiled and promulgated
by imperial decree in 1810. Both the Code of Criminal Instruction
and the new Penal Code went into full effect on and after January
1, 1811, after a reorganization of the French judiciary had been
made.

The detailed account given by Esmein of the adoption and
workings of the Code of Criminal Instruction is well worth careful
study. This is especially true of the chapter dealing with the
discussion on the adoption of the jury as a part of the procedure.
There were a number of able and influential men who opposed jury
trial, and Napoleon himself was against it, but in the Council of
State there was a strong sentiment for its retention which iSnally
triumphed. The Grand Jury or Accusation Jury was abolished,
however, and its functions transferred to a special tribunal. But,
on the whole, as Esmein observed : '' In the great and long drawn
out contest between procedure by juries and the Ordinance of 1670,
the former gained a decisive victory. Posterity ought to give
recognition to the men who, in the Council of State of the Empire,
were able to resist the hardly disguised wish of the Emperor, and
whose courageous efforts resulted in the retention of the jury in
our laws." The student of history will find this phase of Napo-
leonic history ably treated and will gain added respect for the
members of the Council of State.

The chapter on the question of the retention of the jury, though
especially interesting to English readers, is really not more impor-
tant than the long and detailed discussion on the incorporation of a
large part of the Ordinance of 1670 and of the special legislation of
the early part of the Revolution into the new code of procedure. It
is impossible to go into this matter at all fully in this introduction,
as it would involve a special description of modern French crimi-
nal procedure ; but attention might be drawn to the mingling of
the old formal ideas of inquisition and written evidence with the
more liberal tendencies represented by Rehabilitation and Revision,
which are ably discussed.

The chapter on criminal procedure in France since 1808 brings
our knowledge of the subject up to date along topical lines of de-
velopment. The progress in legislation of legal character is noted ;
the changes or modification in the procedure preceding the actual
trial are treated of; the important changes in connection with the

xxxviii

INTRODUCTION TO THIS VOLUME

preliminary examination are discussed and outlined in connection
with the Laws of 1866, 1863, and 1865 ; the various projects of re-
form up to 1880 are taken up ; and, in conclusion, the history of
recent legislation affecting criminal procedure is recounted, espe-
cially the changes made by the Law of 1895 and introduced in the
closing years of the last century.

Following the long sm^ey of the history of criminal procedure
in France, taken mainly from Esmein, the reader's attention is
directed to a broad discussion on criminal procedure since 1800
in other countries of the world. This is a valuable and well-or-
ganized reyjew of the whole field of modem criminal procedure
taken from Garraud's work (already several times referred to).
It forms a fitting conclusion to a volume devoted to European
criminal procedure, emphasizing, as it does, the classification to
systems and the internationalism of modem legal ideas. Informa-
tion and viewpoint are admirably blended, and the adoption of a
comparative method of treatment is justified by its results. Much
the same can be said of the two scholarly appendices, A and B,
both taken from (Jarraud's work. Appendix A is an interesting
survey of the literature of criminal procedure from the Middle Ages
to the present. The writers are organized as belonging either to
the age before the Code of 1808 or after, and are further sub-
divided in accordance with their special characteristics, contri-
butions, or nationality. Appendix B represents an admirable
general sketch of the history of the continental European system
of evidence. This is clearly organized into ethnic, religious, legal,
and scientific phases of development or evolution, and into different
systems and methods of proof, leading up to the present-day
dominant but erroneous idea that the only convincing proof is
"Jury Proof.''

Prom such a volume as this, so comprehensive in its contents
and so comparative in its methods, English-speaking students of
law and history can derive much of value. To see how criminal
procedure has originated and developed out of Roman, Teutonic,
and Christian elements and ideas, how out of the practically uni-
form accusatory procedure of the feudal age in the various countries
of western Europe there grew two divergent systems, those of Eng-
land and France, one marked by the juries of indictment and trial,
the other by secret inquisition, torture, and severity, is in itself
fascinating. But even more interesting and significant than the
story of the divergence of these systems is the story of their gradual
reconciliation in the newer criminal procedure of Europe of to-

xxxix

INTRODUCTION TO THIS VOLUME

day. The so-called mixed type of procedure adopted by the
leading continental European states is a recognition of the
value and importance of the trial jury as an institution, of pub-
licity in court proceedings, and of giving the accused person
a better and juster defense against possible unwarranted con-
viction. The acceptance by continental jurists and governments
of these principles of Anglo-Saxon procedure does them honor
as well as furnishes them with a system of procedure probably
containing the best features of both the old systems.

Perhaps after reading or looking over this volume the thought
may arise that America could benefit by imitating to some extent
the mixed type of criminal procedure now in use on the continent
of Europe. Even should such a reform not be possible, however,
the American legal profession needs to be awakened to the fact that
criminal procedure in the United States is half a century or more
behind that of Great Britain and continental Europe. Instead
of the swift and sure justice that accompanies the administration
and procedure of the British courts or the careful and thorough
investigation and well-organized prosecution and trial of the con-
tinental European tribunals, we have a procedure clogged by ar-
chaic technicalities, influenced by the wealth of the defendant or
his friends, twisted by adroit criminal lawyers, and full of long de-
lays, mistrials, hung juries, and dismissed cases.

The spirit of legal reform is everywhere present in the United
States and will bring about important changes in criminal proced-
ure. These should be based on broad comparative study of exist-
ing systems such as can only be gained from a work like this. Let
the chapters from Esmein, Garraud, and Mittermaier that follow
be read with care and attention, and a cosmopolitan and interna-
tional viewpoint of criminal procedure is bound to result and to
react beneficially on national prejudices.

UNTVERsmr OF Missouri,

Columbia, Missouri,

March 22, 1913.

INTRODUCTION TO THIS VOLUME

By William Renwick Riddell^

Common lawyers are apt to imagine that their science is some-
thing apart from the remainder of the realm of knowledge and
thought, that the Common Law of England is something unique
standing off by itself. To my mind the glory of the English
Common Law is not diminished but enhanced by the recognition
of the fact that it is not simply the creation of an isolated people,
but is part of the juridical concept of the human race, and espe-
cially of nations with kindred origin. Speaking of a knowledge
of law in the sense of knowledge of the sources and underlying
philosophy of the law, as distinguished from a knowledge, how-
ever profound and accurate, of its existing precepts and their
effect, the question may cogently be asked, "What do they know
of English law who only English law know ? "

And this applies not less to procedure than to substantive law.

TTiis book contains a fascinating story of the evolution and
development of Criminal Procedure on the Continent — an evo-
lution and development which is of great interest both in its
similarity to and in its difference from what appears in the
history of the English procedure.

The first thing perhaps, which will strike the reader in this book,
is the gradual but constant progress away from technicality and
form.

Goldwin Smith used to say that to expect the lawyer to reform
legal procedure would be to expect the tiger to abolish the jungle.
He was giving a literary form to a thought underlying innumer-
able statements about lawyers — which lawyers have generally
treated with the good-natured contempt which actuated the peas-
ant to permit his wife to beat him, ''It pleases she and don't
hurt I/* But the gibe is wholly unjust. The further back we go
in the history of procedure the more technical we find the pro-
cedure— originally the procedure must be without "faute" —

^ Justice of the Supreme Court of Ontario (Appellate Division) .

xU .

INTRODUCTION TO THIS VOLUME

and all the amendments have been the work of lawyers. I have
before me a manuscript book of precedents for criminal indictments
in the handwriting of a Judge who left our Bench about half a
century ago. An indictment for murder covers three pages of
foolscap. Nowadays it would not take three lines. The course
of evolution has not in all cases been rapid, but it has always been
in the same direction. To see and appreciate that this is so, not
only in English-speaking countries but elsewhere as well, is to give
the lawyer a higher estimate of human nature and of his profession.

The particular instances in which the procedure on the Conti-
nent agrees with that in England are not few, and are always
interesting. The differences are equally so. In Rome, under
the late Emperors, the Senate frequently asserted a jurisdiction
over crimes, and by a sununary procedure. This is quite anal-
ogous to the jurisdiction asserted by the Star Chamber, acting,
as it not unfrequently did, not as a statutory body under 3 Henry
7, c. 1, but under the original conmion law jurisdiction of the
Privy Council, and by a procedure quite as sununary. The juris-
diction so exercised in England proved of great value to the
country, although the Court itself got into disrepute and was
abolished.

The great respect paid to trial by ordeal, and then its complete
disappearance, are noticeable in France, as in England. The
ordeal by fire or water was not peculiar to the Grermanic races,
but was perhaps more generally resorted to by them than by other
peoples. Its final disappearance in France preceded by some
centuries its disappearance from English jurisprudence. So, too,
the wager of battle, which, at least in theory, lasted till a com-
paratively recent period in England, surviving for centuries the
ordeal, but which became obsolete on the Continent very much
earlier than in England. The same remark applies to compur-
gators.

One everywhere sees the evil case of him who had been taken
in the act and consequently was more than half guilty.

The importance of an accused person putting himself ''on the
country" — a Canadian petit jury is still charged, "upon his
arraignment he hath pleaded not guilty, and for his trial hath
put himself upon his country, which country you are ..." — is
shown by the means taken to compel it, e.g. the "prison forte et
dure" which, corrupted into "peine forte et dure" by English
judges, had such a ghastly history. Giles Cory was not a solitary
instance.

xlii

INTRODUCTION TO THIS VOLUMl!

Another result of a refusal by an accused to put himself upon
his country — i.e. outlawry — died a slow and lingering death.

Then consider the refusal of counsel to the prisoner, for which
a theorj*^ was invented that the Judge was counsel for the accused.
This it would have been diflScult to persuade those to believe who
were tried before Jeffreys and his like. The "State Trials" are
witnesses to .the falsity of the ddctrine. But this was quite as
reasonable, and displayed quite the same touching confidence in
human nature, as the proposition that the Judges shall take
care that the tortured are not crippled by their torturers. The
torturers took the same care in this regard as Jeffreys did for
Alice Lisle.

The wretched prisons, "cloacae of infection," were universal,
and neither Voltaire nor Howard brought about their complete
abolition; and jailers' fees were too long an added infliction
upon the unhappy mortal charged with crime. /"^^"^

The value of hearsay evidence, of presumptions, of confessions ;
the necessity of two witnesses, — all these have been matters of
controversy in all civilized countries.

The arguments used a hundred years ago in France against the
jury system are the same as those which influenced the Japanese
jurists at a much more recent date. No doubt Britain — Home
Country and Colony — the United States, all English-speaking
countries, will go on with their firm faith in the jury system as the
" palladium of civil liberty " — though it is being more and more
felt that, however it may have been in the past, at the present time
the jury has no more to do with the safety of civil liberty than the
original Palladium had with the safety of Troy, and would be
equally ineffective in a real crisis. And no doubt the "foreigner"
will continue to wonder as did the French Canadians who, when
in 1760-1763 the English law was introduced into Canada, mar-
velled that the English should leave the determination of their
rights to tailors and shoemakers rather than to their Judges. But
the jury in criminal matters seems to have made its way, even if
jurors need not everywhere be unanimous.

All nations have gone through, or are going through, a stage in
which there are imaginary crimes — witchcraft, sorcery; New
England unhappiJy was no exception. It is but the other day
that such crimes died out on this Continent — died an unnoted
imbecile death.

These chronicles show that good sense constantly makes its
appearance amid the most exigent technicality. The accused

xliii

INTRODUCTION TO THIS VOLUME

is not to be called upon to answer anything but the exact charge
contained in the "indictment." He is to be confronted with the
witnesses against him. Free men are to have free access to the
courts. Indignation is expressed that sometimes oflScers take
notes only of what the accused says and write it out afterwards ;
(the Music Hall jest represents the London Police Magistrate as
saying to an accused, " Have you anything to say ? • You are not
required to say anything, but if you do, it will be taken down,
altered, and used in evidence against you on your trial ").

The capital presentation in this work of the history of English
law could not easily be excelled in the space — it shows the ex-
treme care taken to be accurate.

I do not intend to analyze the book, much less to pick out the
plums ; the gold seeker is best satisfied to find his own nuggets.
But I cannot refrain from calling attention to the vox clamantis
in deserto of Pierre Ayrault, of La Bruyfere, of Dupaty. They were
forerunners and prototypes of our own Samuel Romilly. Into
his soul entered the terrible wrongs of the criminal, real and
supposed ; and the strain of his heroic labors to right those wrongs
had no small part in overthrowing a mind as fine and subtle as it
was noble and humane. Those were men of whom their world
was not worthy — who are but now coming into their own.

To the lawyer who is a mere tradesman, desiring only to make
money out of his trade and caring for nothing else, a perusal of
this book would be worse than useless. All such fidvavaot are
warned off this ground. Procul o procid esie, profani. But
fortunately the profession of law is a liberal and a learned pro-
fession, not a mere trade — there is more in it than meat and
raiment, than money-making — and the sympathies and interests
of the true lawyer reach far beyond bread-and-butter.

I envy the student of legal history, and especially him who
makes the study of legal history a recreation from an arduous
practice of his profession, his first perusal of this book. He will
find much to wonder at, much to condemn, much to approve, in
the practice, past and present, on the Continent. He may find
lessons for his own country, what to follow, what to avoid. He
will with diflBculty conceive of anything which has not been at
least touched on before ; for " there is no new thing under the sun."
Even in the old, old Roman law "the people exercised a great
influence . . . through the appeal to the people against the
decrees of the magistrates."

xliv

AUTHOR'S PREFACE TO THIS TRANSLATION

By A. EsMEiN

This book is the first published work of mine. It was composed
between 1877 and 1880 ; I began it at Douai and finished it at Paris.
It received the prize, in a competition, from the Academy of Moral
and Political Sciences, of which to-day I am a member.

I am very glad to see it translated into English ; for I am an ad-
mirer and friend of the Anglo-Saxon race. I am glad to see this
translation published in the United States, the greatest democracy
of modem times, which has set us an admirable example in its
magnificent efforts to develop among its people the highest intel-
lectual culture.

Although this book first saw the light thirty years ago, in 1882,
I can still let it go into this new edition almost in its original form.
Neither the labors of French and of foreign scholars, nor my own
later studies, have given me reason to change its conclusions on
any material points. Nevertheless, in this new edition, I have
given it a thorough revision, taking into account the critical edi-
tions of early texts appearing since 1882 ; so that the work now
represents a brief, but (I am convinced) a faithful, account of French
criminal procedure and its history to the present day. I have en-
tirely rewritten the pages concerning" the origin and develop-
ment of the "processus per inquisitionem" in the Canon law, —
the subject of a lecture course of mine at the School of Higher
Studies. I have also rewritten the portion devoted to the history
of criminal procedure in England, in the light of the admirable
researches of Pollock and Maitland, Thayer, and Holdsworth.

Pabib,
April, 1913.

xlv

PRELIMINARY TOPICS

Chapter I ^
THE DIFFERENT TYPES OF CRIMINAL PROCEDURE

i 1. The Three Types of Criminal

Procedure.
S 2. The Accusatory System.

3. The Inquisitorial System.

4. The Mixed System.

§ 1. The Three Types of Criminal Procedure. — The history
of civilization, in its organization and procedure for the repres-
sion of crime, presents a limited number of variant types. These
succeed each other in a chronological order corresponding very
closely to the logical order of their appearance. Three funda-
mental types of procedure are, in effect, distinguishable, — the
acctisatory type, the inquisitorial t^-pe, and the mixed type. The
criminal law of almost every nation has begun with the accusa-
tory procedure, and has changed to the inquisitorial procedure.*
An evolution in an opposite direction, however, is now apparent ;
everywhere there is a tendency to restore the essential safeguards
of the accusatory system, publicity and confrontation. The only
institution of the inquisitorial system which has defied criticism
and which is probably more powerful and general than ever is
that of the public prosecutor.

§ 2. The Accusatory System. — The accusatory system has
two leading features. It agrees with the primitive idea of the
penal action, which is, primarily, but a sham fight between two
combatants, to which the judge puts an end by deciding against
one or other of the parties. It implies, at the outset, the >Baix-
ture of two procedures, criminal and civil, which, both induced

* [This Chapter I « § II of Professor Garraud's work on ** French
Criminal Procedure." For this author and work, see the Editorial Pref-
ace.— Ed.]

* Primitive laws gave to the procedure the effectual form of a combat.
As always happens, this simulation beg:an as a reality, and it is by no
means rash to afi&rm that the first methods of litigants were those which
are nowadays the last arguments of the vulgar — blows. See Beaudouin,
"La participation des hommes Ubres au jugement dans le droit fran^ais**
(Reyue historique du droit, 1887-1888, pp. 24d-279) ; Ihenng, r Esprit
au droit romain,*' vol. I, p. 122, note 33.

§ 2] PBELIMINABY TOPICS [Chap. I

by private action, originally pursue their course in the same
forms, before the same judges, and seek to attain the same satis-
factions. Little by little, no doubt, the difference between the
ends aimed at leads, notwithstanding the identity of the parties
engaged, to the gradual differentiation of the penal proceeding
from the civil. In the accusatory system, however, the differ-
ence between these two actions is never absolute, and there is a
continual reaction of punishment upon indemnity and of indem-
nity upon punishment.

The following principles form the basis of this system of pro-
cedure :

(1) The accusation is freely exercised by every: citizen; but
there is no penal action without an accuser, who takes the initia-
tive in it and the responsibility for it. In this respect, however,
the setting in motion of the procedure belongs, originally, to the
injured party; later on, when the necessity for and the interest
of society in repression become felt, and as the penal law breaks
away from the civil law, there is recognized, in each member of
the group to which the injured party belongs, the power to begin
the prosecution in the name of the collective body. This is the
system of the popular accusation.

When this period of judicial civilization is reached, it becomes
obvious that the accusation is a social function. Permanent and
oflScial organs, however, have not been created to exercise that
function. This evolution of juridical conceptions is the point of
departure of the breach which will continue to widen between
the criminal and civil proceAires. Society is obviously inter-
ested in the institution and prosecution of criminal actions.
Neither the victim of a wrong, nor his fellow citizens, without the
aid of public constraint, have the power to prevent the male-
factor, emboldened by impunity, from very soon committing
new crimes. The exercise of the social or public action is there-
fore justified in criminal matters ; tiiough it would be useless or
superfluous in civil matters. It is undoubtedly useful from a
social point of view that the rights of property be respected,
contracts fulfilled, and injuries indemnified ; but the surest way
to attain these results is to leave private individuals free, giving
them access to the tribunals, there to debate and have their
rights acknowledged.^ The civil action is therefore carried on in

* The difference between the penal and the civil action in this respect
has been well put in relief by Tarde, "Penal Philosophy," HowclVs trans.
** The Criminal Science Series," Little, Brown, & Co., Boston, 1912, pp.
423-429.

CbaP. I] TTPES OF CRIMINAL PBOCEDURE [§ 2

the name of private interest; the penal action in the name of
the general welfare. In the first, the initiative of the action
should belong exclusively to the party who complains of a per-
sonal wrong ; in the second, to the representative of the general
public. This distinction becomes fundamental in every system
of procedure. Whenever this evolution is accomplished, crimi-
nal procedure presents the following characteristics: Detection
and prosecution of wrongful acts by the representatives of society ;
Trial by the representatives of society; Public punishment.
Before, however, attaining this conception, which is that of
civilized nations, many halting places are successively passed by.

(2) Primitive customs have a minimum of exigency and of
ideal; they are satisfied with avoiding, as far as possible, recourse
to brute force. They are regarded as having gained a great
victory over the instinct of individual vengeance when they have
laid upon the offended party the obligation to respect certain
forms and certain delays in the exercise of his right, and have
constrained him, in case of doubt, to submit to an arbitrage.^
The jxidgey originally, is really the umpire of a personal combai;
he must be chosen, or at least accepted, by both parties.

We also find, among almost all the nations which practised the
accusatory system, either the principle of trial by the peers of
the accused, or the absence of a procedure by default.

(3) The first of these institutions, trial by the peers of the accused^
by the men of his tribe and of his caste, has always been looked
upon, in primitive societies, as the best guaranty of impartial
justice. It brings the case before unbiassed arbiters, who try it
without appeal from their decision, guided only by their reason
and conscience. Of the two questions which present them-
selves in the penal action, one, that of ascertaining if the ac-
cused is the perpetrator of the crime, is in the nature of a ques-
tion of fact ; the other, that of ascertaining to what extent he is
morally responsible for it, is a question of degree of culpability.
Popular judges are able to decide both questions. Their solution
really requires no special juridical learning.

(4) The necessity for the personal presence of the parties arises,
originally, from the very nature of the action, 'which is a feigned
combat. Every combat presupposes, in effect, the presence of
two combatants. It matters little that this was but a symbol.
The form prevails over the fact. Later on, another idea is joined
with the first, and gives to this rule of primitive law a new jus-

' Sumner Maine, *'De la codification d*apr5s les id^s antiques/* p. 13.

2] PRELIMINARY TOPICS [Chap. I

tification. The judge is an arbitrator, and must be accepted, at
least tacitly, in order to be regularly vested with his power. The
great concern at this period is to constrain the accused to submit
to trial ; the outlawing of the reluctant defendant is the forcible
procedure by which it is sought to achieve this purpose in default
of any direct means of compulsion and in view of the impossibility
of passing sentence. If the accused does not appear he is not
sentenced, but is treated as an outlaw. ^

(5) The judge, in the accusatory system, cannot proceed on his
own initiative, either in taking jurisdiction, or in obtaining proof.
His role consists in replying to the questions which are presented
to him, examining the evidence brought before him, and deciding
upon that evidence. He is present as a second in the duel. He
superintends the combat, that it may be fair throughout. He
announces who is the victor. But at no moment of the proceed-
ings does he take an active part, either to prosecute or to inquire.
The trial has thus three essential characteristics ; it is confronta-
tive, oral, and public. The adversaries are brought face to face
in a contest which takes place in broad daylight. Each of them
produces at his discretion his means of proof. The proceeding
resembles a duel with equal and fair weapons.

(6) The proceedings employed to discover the perpetrator of a
crime and to prove his guilt are in perfect harmony with the
prejudices, or, if you will, the beliefs of the period.

The chief effort of the prosecution is directed towards the es-
tablishment of the very act. In primitive procedures capture in
the act appears, indeed, to be the normal hypothesis of repression ;
the sentiment of vengeance which inspires the penal system is, in
this case, stronger; the culpability, which it is necessary to es-
tablish, is then less doubtful. Except in the case of capture in the
act, if the accused does not confess, it is for him, by an inversion of
the proof, to show his innocence by taking the exculpatory oath and
sustaining it by the number of oath-helpers which custom demands.
This is the normal method of proof. It constitutes a right for the
accused. But it may be set aside in certain cases and then ordeals
are brought into play, by which appeal is made to the judgment of
the deity. These ordeals are of two kinds. In some, only one of
the parties takes an active part, usually the accused. To instance
the most widespread, there is the ordeal of branding, that of boiling
water, and that of cold water. In the others, both parties play an

* See Molinier^ p. 18 ; Du Boys^ "Histoire du droit criminel des peuples
modernes," vol. I, p. 122.

Chap. 1] TYPES OF CRIMINAL PROCEDURE [§ 2

active part, as in the judicial duel and the ordeal of the cross.* This
system is by no means peculiar to the Germanic customs; it is
characteristic, not of one definite race, but of a certain stage of
civilization.- In the mythological stage of the human mind the
deity was invoked upon the question of guilt or innocence just
as it was invoked as to the fate of a battle. In this respect there
is a connection between beliefs and legal institutions. The same
attitude of mind which allows of divination by auguries and sor-
cerers leads to the practice and the diffusion of the criminal exami-
nation by ordeals ' and the judicial combat.*

The accusatory system, precisely because it symbolizes and
regularizes the primitive combat, comes first in the juridical history
of ci\41ization. Its origin is to be found in the eastern legislations.
It is seen to take a precise form in those of Greece and Rome,
then decline and disappear, with liberty, in the latter days of the
Empires. After the fall of the Roman Empire, we find it em-
ployed in crude and clumsy forms, in the Germanic and feudal
customs ; and while, in modem times, it has disappeared from the
European continent, it continues to exist in England and the
United States.^

* In France the ordeals by boiling water, braDding, and cold water,
frequently resorted to under the Merovingians, become infrequent from
the beginning of the second dynasty.

* The exculpatory oath and the ordeals are found in Qreek antiquity
{Esmein, ** Melanges," p. 240 e^ j^eg.; Sophocles, "Antigone," verse 264);
among the Hindus ("Laws of Many,'* translated by Loiaeleur-Deslong-
champs, vol. VIII, pp. 109, 413-416). This system is still in force among a
large number of barbarous races (Kdhler, " Studien iiber Ordalien der Natur-
vdlker," in Zeitschrift fur vergleichende Rechtswissenschait, vol. V, p. 368
el sea, and vol. IV, p. 365 et sea!). See on the nature of ordeals in the customs,
H. iTArhois de Juhainville, "Etudes sxir le droit celtique," vol. I, p. 50.

* See on this point, Tarde, "Penal Philosophy," HowelVa trans. " Criminal
Science Series, p. 430; Esmein, " Cours 616mentaire d'histoire du droit
fran^is," p. 98.

* D^Arhois de Jubainville (op. et loc. dt.) has pointed out, however, that
the conventional duel of the Celts, like that of the ancient Romans (the
Horatian combat), and those in the "Iliad" (the duel between Ajax and
Diomedes), and the epic of Thebes, is inspired by a very different conception
from the judicial duel of the Middle Ages. like the latter, it has a plaCe in
litigious matters, but the idea of divine justice is absent from it. Neither
the Celts nor Homer's heroes, nor the Horatii or the Ciuratii, looked for
the intervention of the divinity for the triumph of the right. To them
the duel was merely an imitation of private war.

* Cf. SeymouT'H arris, "Principii di diritto eprocediure penale Inglese"
(Bertole's translation), Verona, 1898 ; Fournier, "Code de procedure crimi-
nelle &xix Etats-Unis de New York ; Introduction sur la procedure crimi-
nelle aux Etats-Unis" (Paris, Larose, 1893). But there is a public pros-
ecutor in the United States. The insecurity and impunity resulting, in
a country new and composed of such diverse elements, from the English
system of prosecution, which leaves repression to the initiative of the
citizens, ha!s taught the United States the necessity of committing to a
special functionary the duty of prosecuting repression.

§ 3] PRELIMINABY TOPICS [Chap. I

To England, from the end of the 1700 s, Europe was to go (by
a kind of ancestral reversion) to seek for and recover the type of
this archaic procedure, to which were to be sacrificed some of the
best creations of French genius, such as the public prosecutor.

§ 3. The Inquisitorial System. — The system of procedure called
inquisitorial is more scientific and more complex than the accusa-
tory system. It is better adapted to the needs of social repression.
Its two predominant features are, the secret inquiry to discover the
culprit, and the employment of torture to obtain his confession.
But this type of procedure embraces a number of kindred institu-
tions, which cannot be separated, because they throw light on and
coordinate each other.

(1) The detection and prosecution of the culprit are no longer
left to the initiative of private parties. The State proceeds " ex
oflBcio" to perform this double duty. It creates organs to investi-
gate as well as to accuse. The institutions which correspond to
these necessary phases of the penal action undoubtedly do not
spring up in a day ; their origin is as obscure as their development
is uncertain. It is not proposed here to deal with anything more
than the final stage of the juridical evolution; the change in
the nature of the trial (" instruction "), and in that of the
arrest.

(2) An interesting phenomenon of the social and political evo-
lution appears first in the function of the judge. That which
was the right and function of everybody becomes the right and
function of a few; the power to try has a tendency to become
specialized. It tends also to become mandatory. The primitive
arbitrator changes character. The judge, appointed by the ruler
and no longer chosen by the parties, is imposed on, and no longer
proposed to, the delinquent. He becomes the representative
of the ruler, who alone has the right to administer justice. His
nature, therefore, changes in a double sense. He is an officer of
justice, vested with a social function, and chosen, because of the
scientific nature of the penal action, from among those who have
studied the laws, the legists. He is also a permanent functionary,
charged with the trial of all causes of the same kind. At first
itinerant, the judges are subsequently settled in certain districts,
which thus become seats of justice. This results, by means of
their decisions, in the creation and development of a body of
criminal sciences. At first, the customs are collected ; then, fixed
by being written down ; then text-books of legal practice are com-
piled and serve as guides to the professional men ; and thus the

Chap. I] ttpes of criminal pbocedube [§ 3

science is established in the course of the development of the spirit
of observation and criticism.

(3) The judge's investigation is not limited to the evidence
brought before hun. The magistrate proceeds of his own accord
and according to certain rules, with the inquiry (" inquisitio "),
that is to say, with every search for evidence allowed by the law.
This inquiry, wriMen and secret, is not confrontative. The open
duel between the accuser and the accused is replaced by the in-
sidious attack of the judge.

(4) A new method of examination, more cruel perhaps, but more ^
logical, than the ordeals, ix,, that of torture, enters the higher \
courts of justice and filters through these to the lower tribunals, j
The confession of the accused having acquired a preponderating )
influence, the method " par excellence " of extracting this proof
is now seen to be torture, e.g., by the wooden horse, the boot, or
the w^ater. Torture is an institution of Roman origin. Under the
Republic, no doubt, and at the beginning of the Empire, Roman
citizens escaped it. The only persons exposed to it then were the
slave when he was accused (or simply called to court) and the pro-
vincial.^ But in the early days of the Empire the custom was
begun of subjecting to this process of examination the Roman
citizen accused of treason. Then torture comes to be of such
general application that the handbooks recommend judges not to
begin the examination by that, but first to collect the evidence.^
It is, therefore, not surprising that the diffusion of torture
coincides, in modern history, with the revival of the half-forgotten
Roman law by the criminaUsts of the Belogna school. The
transformation of the procedure by the substitution of torture
for ordeals really begins, to manifest itself from the end of the
1100 s. Since that time, no country of Europe has escaped the
contagion.' At the end of the 1300 s torture had become a
general custom. It was, to some extent, one of the funda-
mental institutions of the old criminal procedure.

Two institutions, destined to limit the power of the judge, that of
theappeal and thatof "legal proofs," have their origin in the inquisi-
torial procedure, of which they form two characteristic features.

1 Eamein (** Cours <$16mentaire d'histoire du droit fran^is/' p. 36)
observes that "antiquity never admitted the testimony of the slave with-
out controUing him by torture in the giving of it/'

» L. 11, CTlX, 41.

• See Tarde, ** Penal Philosophy," HowelVa trans., " Criminal Science
Series," p. 436. C/. Molinier, " La torture " (Toulouse), 1879. Extract
from Uie " Reoueil de I'acad^mie des sciences, inscriptions et belles-lettres
de Toulouse."

§ 3] PRELIMINARY TOPICS [Chap. I

(5) The appeal is the right to bring anew before a higher judge
the cause already decided by the lower judge. The conception
of the appeal is foreign to the idea of justice done by the peers of
the accused. It is, at first, repugnant to the popular idea of
judicial infallibility. If the first judge can be wrong, why not the
second? It implies, moreover, a hierarchy of tribunals: while
popular judges should be supreme, each within the limits of his
cognizance. Thus the appeal, as we understand it nowadays,
did not exist under the Roman Republic ; it made its appearance
under the Empire. This method of recourse was unknown either
to the (rermanic or the feudal procedures, both essentially based
on popular customs.^ But with the reconstitution of the sover-
eignty and the hierarchy for the benefit of royalty, the appeal was
introduced into the secular jurisdictions imder the growing influ-
ence of the Roman law and the Canon law.

(6) The inquisitorial and secret procedure led to the organiza-
tion of a system of " legal proofs " as a necessary counterbalance,
in the interest even of the defense. The judge, to convict, must
have before him certain kinds and quantities of evidence, defined
by law ; but, on the other hand, if he has this evidence before him,
he must of necessity convict. His personal belief is of little con-
sequence on either hypothesis. This system, by making convic-
tion more diflBcult, tends, as a fatal result, to weld more firmly the
fetters of criminal procedure. There is here a double movement,
which in certain respects aggravates, and in others ameliorates,
the situation of the delinquent.

The inquisitorial system is contained, in embryo, in the latest
institutions of the Roman Empire. It agrees well with a centraliz-
ing and despotic power. Torture, as a proceeding for detection and
proof, was especially resorted to at this period; and later, the
theatre of the contagion which was to pervade all Europe was a
corner of Italy, whence, about the middle of the 1100 s, the resusci-
tation of the Roman law brought disturbance as well as a new ideal
into all the feudal tribunals.

The Church was able to furnish the secular courts with a lesson
and a model, in the methods of its ecclesiastical tribunals. By its
example it paved the way for the substitution, consummated in the
1500 s, of the inquisitorial procedure for the accusatory procedure
in every country of Europe.^ In the latter half of the 1200 s

^ The appeal for denial of justice, "d6faut de droit" and the appeal for
wrong judgment, **faux jugement, " are institutions peculiar to feudal pro-
cedure and are analogous to the modem appeal merely in name.

* This system, originally employed for prosecutions for heresy, after-

Chap. I] TYPES OF CRIMINAL PROCEDURE [§ 3

the influence of the Roman law and of the Canon law led to the
formation of this new procedure, which renounced the Germanic
tendencies, and took its inspiration almost exclusively from these,
the two learned legal systems of Europe.

Each of these two types of procedure, the accusatory type and
the inquisitorial type, has its good qualities and its defects ; neither
contains, in itself, the safeguards necessary for the administration
of criminal justice. In the accusatory procedure, the detection,
and the prosecution of oflFenses are left wholly to the initiative of
private individuals — an initiative which may slumber through
their inertia, fear, or corruption. The chances of impunity flowing
from this system are still further enhanced both by the publicity
which exists in all the phases of the procedure, and by the necessity
which compels the judge to limit his investigation entirely to the
evidence furnished him by the accuser. But, on the other hand,
the inquisitorial procedure has very serious defects ; under it, the '
prosecution and the detection of offenses are intrusted exclusively
to the agents of the State ; there is the atmosphere of secrecy and
consequently of suspicion, in the midst of which the trial proceeds ;
and finally, there is the absence of any real confrontation between
the prosecution and the defense.

Thus progress, in the path of juridical civilization, consists in
borrowing from each of these types of procedure its best elements,
and in forming a mixed type. One part of this composite type
is taken from the inquisitorial system, the other part contains all
the safeguards and good qualities of the accusatory system.

§ 4. The Uixed System. — This mixed type is characterized
by the followihg features;- they are to be found in the majority
of the European systems of procedure, but the French Code of
Criminal Examination of 1808 (the influence of which has been so
great in Europe) systematizes them for the first time.

(1) The judges of guilt have no initiative in the proceeding;
they cannot take cognizance themselves, of their own accord.
It is, therefore, necessary that an accusation be brought; but
this right of accusing is committed to special functionaries who thus
act as public prosecutors and to whom the parties should, on prin-
ciple, be merely auxiliaries.

wards for all crimes, beoame, under the name of "procedure k Textraor-
dinaire/* the system of common law in force in the royal jurisdictions for
the prosecution of serious crimes until 1789. See Faustin Hdie, op, ciL,
vol. II, Nos. 206, 207, and 208; lAo, "Histoire de Tinquisition au moyen
age" (translated by Salomon Reinach, Paris, 1900), book 1, ch. ix toxii
t. I, p. 399 et seq.; Tanon, "Histoire de Finquisition," passim.

§ 4] PRELIMINABT TOPICS [Chap. I

(2) The judgment is rendered by magbtrates and jurors. The
method and conditions of the share of both of these in the ad-
ministration of criminal justice vary, however, in the different
countries.

(3) The proceeding is divided into two phases, the preliminary
examination, intrusted to magistrates, and resulting in a prepara-
tory decision, and the final trial before the court, which gives its
judgment in the proceeding. The first has a double characteristic ;
it is neither confrontative nor public. The second admits both
principles of confrontation and publicity.

(4) The judges are not called upon to state the evidential Imsis
of their judgment. And although the search for and the furnishing
of the evidence are subject to legal rules, its probative value is not
measured beforehand and the outcome of the charge depends upon
whether the judges are or are not thoroughly convinced.

Like every eclectic system, this procedure demands, in its appli-
cation, a cooperation of effort and hearty support which it appears
sometimes to have lacked. On the one hand, the magistrates, the
professional men to whom the initiative and direction of the action
were given, have manifested for the cooperation of the private
citizens a sentiment of extreme distrust; and this has gone on
increasing since 1810 at a rate which, for some years, has pointed
to a return to the system of solely professional magistrates. On the
other hand, with the desire of the magistracy to recover all its
powers, there has unfortunately coincided the dislike of the major-
ity of citizens for civic duties, and the steadfast wish to avoid
them. Jury duty has been considered a bore by the very people
best fitted to fulfil it. This state of affairs is not peculiar to France.
It is apparent in every country into which this noixed system of
procedure has been carried.

Chap. II]

BOMAN CRIMINAL PROCEDURE

[§1

Chapter II *

ROMAN CRIMINAL PROCEDURE

§1.
§2.

li.

8 5.
§6.

General Characteristics.

Early Tribunals.

The Qu»stiones.

The tludices.

Judices compared with mod-
em Jurors.

Roman Procedure Accusato-
tM. in its Nature.

§ 7. Effect of Lack of a General

Criminal System.
§ 8. Acts preliminary to Trial,
i 9. Preliminary Investigation.
§ 10. Trial.
§ 11. Changes under the Empire.

§ 1. Gten^ral Characteristics. — In every nation, the history of
its criminal procedure stands in close relation to the evolution of
its political conditions and the development of its views in regard
to punishment. Wherever there has come into being a free con-
stitution and an interest in public affairs, there has been an in-
creasing demand that certain dangers to the freedom of the citi-
zen be done away with, — namely, those dangers which frequently
exist in the criminal procedure, because of those who wish to usurp
power and would abuse the right of prosecution in order to attain
political advancement. The more punishment bears the earmark
of being a satisfaction of the party who has suffered a wrong, the
more will the accusatorial procedure tend to predominate. But
when the view becomes more prevalent, that punishment is nec-
essary for the public interest as a means of upholding the law,
inquisitorial methods gradually increase. The truth of these
remarks is apparent in the criminal procedure of Rome.^

» [Chapters II and 111= Chapters XIII and XV of Professor Mitter-
11 A]ER*8 " Progress of German Criminal Procedure." For this author
and work, see the Editorial Preface. — Ed.)

* In regard to the Roman criminal procedure, the following writers may
be consulted : Sigonius, ** De judiciis " (the second and third books deal with
the "publica judicia") ; Brissoniusy "Oper. minor," p. 32; Ferratius,
"Epistol." (Patav. 1699); Ayrault (^Erodius), " L'ordre, formality et in-
struction judiciaire, dont les anciens Qrecs et Romains ont us6 en accusa-
tions publiques" (Paris 1575, 1598). (Ayrault was himself "Criminal-
lieutenant" in France. See Niceron, "M^moires," tome XVII, p. 327.
In r^fard to his life and his work, **Le Droit," 1884, No. 269, and as to

de public,
especially
qui antiqui-
tus apud Roman, de crim. judic." (Lugd. 1723), in VlII Band of Meermann

§ 2] PRELIMINARY TOPICS [Chap. II

Everywhere in the Roman criminal procedure there appears
the peculiar characteristic that crimes are dealt with in certain
categories.^ Each category had its distinctive tribunal and rules
of evidence, which varied with changing political conditions-
The procedure in " perduellio " ^ was fundamentally quite dif-
ferent ^ from the procedure in " parricidium." ^ And again in
cases in which judgment was passed against the accused with the
formula "sacer esto " ^ there was also a special kind of procedure.

§ 2. Early Tribunals. — The judicial proceedings were either
in the court of the kings,^ who often passed judgment with the
assistance of a council (" consilium "), — or before the qusestors ^

** thesaurus," p. 608. Saxii**De ordin. judic. public, apud Romanos''
(Traj. 1784); Madihn, "Vicissit. cognition, crim. apud Romanos " (Hal.
1772); Invernizi, "De publicis et crim. jud." (Rom. 1787); Heyne, "De
judic, public, rat. et ordin. apud Romanos" (Goett. 1788) ; Renazij **Diatr.
de ord. et forma judic. crim." (at close of volume V of his **Elem. jur,
crimin.") ; Broquet, "quinam fuit apud Romanos in crim. publ. procedendi
modus" in Annal. Acad. (Gandav. 1820); Schmiedickej *'Histor. proc.
crim. rom." (Vratislav. 1827); Kennis, **De crim. perduell. regum
ffitate" (Lovan 1828); Rosshirt in the "Archiv des Criminalrechts," Bd.
XI No. 1, and No. 14; Geih^ "Geschichte des rom. Criminalprocesses"
(Leipzig 1842); Plainer j *'Qu8dst. de jure crim. Roman." (Marb. 1842) ;
Lebastard Delisley "De Tadministration de la justice crim. chez les Ro-
mains" (Paris 1841); Osenhritggent in the introduction to the work,
"Ciceros Rede fur Milo" (Kiel 1841); Firiol Rivikre, "Bsquisse histo-
rique de la legislation criminelle des Romains" (Paris 1844) ; Laboulaye,
"Essai sur les loix criminelles des Romains" (Paris 1845) ; HUie, "Traitd
de rinstruction crim." (Paris 1843), Vol. I, pp. 34-173.

* Mittermaier, in "Archiv des Criminalrechts " (1843), p. 153.

' Kostlin, **Die Perduellion unter den rom. Konigen" (Tubingen 1841) ;
Geib, **Geschichte," p. 61.

* It is certain that the same crimes, e,g., murder, were under different
political conditions, sometimes dealt with as *' perduellio" and sometimes
as **parricidium," e.g,, in the trial of the Horatii. Ruhino, "Unters.
tiber rom. Staatsverf," p. 490; Kostlin^ p. 10, 57; Wonigerj "das
Sacralsystem," p. 244.

* In regard to the wider significance of "parricidium," see Featua,
MeisleVy "Urtheile und gutachten," p. 461. Also Diek, "Historische Ver-
suche liber rom. Crim., p. 9 ; Dirksen, "Vers, zur Kritik der Quellen des
rom. Rechts," pp. 284 and 337 ; Lxiden, "uber Versuch des Verbr." p. 59 ;
OsenhruggeUj "Das altrom. Parricidium" (Kiel 1841).

^ Ahegg, "De antiquiss. roman. jur. crim." p. 44; Dirksen^ "Civil
Abhandl." p. 102; RosMrt, in "Archiv etc." Xl, p. 2 e; Plainer, "De
crimin. jure antiquo Roman." (Marsburg 1836), p. 26. Also see Kostlin,
"von Mord und Todtschlag" (Stuttgart 1838), Part I, p. 59; Rubino,
p. 475; Kostlin, "Von der Perduellion," p. 127; Plainer, "Quaest. de
jure crim. Roman," p. 27.

* Kennis, "Diss." pp. 34-41; Dirksen, "Civil Abhandl." p. 100;
Burkhardt, "Die Crimmalgerichtsbarkcit in Rom bisauf die Kaiserzeit"
(Basel 1836); Kostlin, p. 20; Gcib, p. 14; Rubino, p. 211; Laboulaye,
p. 80; Hme, I, p. 35.

^ These early qusBstors were not permanent officials but were specially
appointed for the particular case. L. 2. Xo. 23. D. De orig. Juris. Dirk-
sen, "Uebersicht der Versuche zur Kritik der XII Tafeln," p. 617 and es-
pecially p. 654; Invernizi, p. 31; Kennis, p. 48; Rosshirt, in "Archiv
etc." ; -Bwrfc/iard^ pp. 6, 8, and 9; Zacharia, ."Sulla," pp. 147, 148. More

Chap. II] ROMAN CRIMINAL PROCEDURE [§ 3

(often the "qusestores parricidii ")>^ — or before the "duum-
viiis perduelliones," ^ who were themselves a special kind of quaes-
tors. Popular courts had jurisdiction under the kings ^ only in so
far as a case could be referred to the people through appeal
(" provocatio ")•* After the expulsion of the kings the jurisdic-
tion belonging to them passed to the consuls/ who often availed
themselves of the cooperation (" consilium ") of the senate.^
There was in the Twelve Tables the well-known provision ^ that
the people in the popular courts and in the " comitia centuriata "
should pass judgment upon a complaint brought against a Roman
citizen.* Thus also in the " comitia tributa," which gradually
extended its power, there arose the custom of deciding crimes
that had a political significance.^ The people exercised a great
influence over criminal proceedings through the appeal to the
people against the decrees of the magistrates (" provocatio "),^^ —
a right confirmed by many laws.^^

§ 3. The Qu»8tlon68. — There would often be appointed by
the people, or by the Senate,^^ " qusestiones," as commissioners
for the trial and decision of particular crimes.^^ The many in-
conveniences of an appeal to the popular courts and the increase
of crimes brought about a change in the nature of these " quses-
tiones." They became standing tribunals for the trial and decision
of crimes that were of frequent occurrence. Each " qusestio
perp)etua " established for this purpose was created by a special
statute (" lex ") ^* which specified the crime to which it had appli-

correet views are found in Geib, p. 52. Cf, with Lebaatard Delisle, p. 9 ;
Rubino, p. 322.

* Geib, p. 51.

* Schmiedicke, p. 16 ; Kennis, p. 43. The correct view in Geiby p. 59 ;
KosUin, p. 102 ; Laboulayet p. 84.

» Geib, p. 30. * Woniger, *'Das Sacralsystem," p. 239; Hiliey I, p. 37.

* Livius, II, 5. L. 3. No. 16. D. De orig. Juris. ; Iverniziy p. 20 ; Schmie-
dicke, p. 31 ; Geibj p. 22.

•Cicero, "De legibus," III, 19; Dirfcsen, "Uber die XII Tafeln," p.
645 ; Schmiedickcy p. 42.

' Geib, p. 39. » Geib, p. 32 ; F^rol, p. 11.

» Get6, p. 35. Cf, Plainer, pp. 49-65.

^ Burchardtj p. 4; Hiischke, "Die Verfassung des Servius Tullius,"
p. 584; Geiby p. 152; Woniger, "das Sacralsystem," p. 265.

" L. 2. No. 16, D. De orig. Juris. ; Sigoniiis, "De jud," II, cap. 4 ; Van
der Hoop, in Meermann "thesaurus " suppl. vol. p. 617 ; Wirsinger, "Resp.
ad qusBst. de differentia inter delicta, dolus et culpa" (Bruxelies 1824),
p. 99.

" Geib, p. 48; Labovlaye, p. 112.

" In rep:ard to "quaestiones" held for crimes for which no punishment
was provided by a special statute, see Plainer, p. 12, etc. ; Geib, p. 68 ;
Laboidaye, p. 126.

" Burckardt, pp. 17, 19; Back, "Histor. juris." p. 80; Schmiedicke,
p. 124; Ro89hirt, in "Archiv etc." XI. pp. 373, 382; Zacharid, "Sulla,"
2 Hft. p. 143. There were such " quaestiones " in regard to the crimes of

§ 3] PRELIMINARY TOPICS [Chap. II

cation and a certain procedure appropriate thereto. The number
of these " quaestiones perpetuse " steadily increased.*

Along with these standing criminal courts, the popular courts,
however, in which the entire people passed judgment, continued
to exist.^ There often existed even in the time of the Republic
" qusestiones extraordinarise " ^ for cases for which as yet no
" quaestio perpetua " existed ; or perhaps, on account of some pecul-
iar developments of a case, a special commission would be ap-
pointed.^ Since the magistrates presiding over the " quaes-
tiones " were regulariy some one of the praetors,^ it came about
that the praetor whose turn it was to preside over the " quaestio "
was called "quaestor" or "quaesitor."' In addition, one finds
eariy mention of a " judex quaestionis," ^ who,^ however, since he
sat instead of the praetor, and was invested by him with the pres-
idency (" praesidium ") of the criminal court, had the same au-
thority that the praetor would have had, if he had presided.*

' * repetundarum, ambitus, majestatis, and peculatus ' ' ; see Ferraiius, ' * E pis-
tol, lib. I, epist. 15; Ros8hirtj in **Archiv," p. 404; Cicero, ** Brutus,"
cap. 27; Birhbaum, in "Archiv," VIII, p. 656. But see Hetneccitts^
**Antiq. jur. rom." (Haubold's edition), p. 768; Klenzey **Ad leg. Ser-
viliam prolegom." p. xii. See also Geib, p. 170. FiHoly p. 18.

* E.g., **qu»stio ae falso, de sioariis, de parricidiis" ; see Hiigo, "Rechts-
geschichte,'^ pp. 316, 633 ; Livius, I, 26 ; II, 35 ; XLIII, 8, 18 ; Cicero,
"Pro Milone, 3; Especially Van der Hoop, **De his, qui antiq." cap. V.

* Ciceroy "Pro Milone," 6. Also a nova qussstio," Cicero, Pro
Milone." 5, 6; Cicero, "In Verr." I, 42; II, 25; "Philip." II, 9.
See also Cicero, "Attic." I, 13, 14, 16; Rosshirt, p. 395; Kostlin, "Die
Lehre von Mord," I. Thl., p. 97 ; Burkhardt, p. 20 ; Geib, p. 216.

* Geib, p. 219. As to whether the Centum viral courts also passed
judgment de criminibus," see De Tigerstroem, "De judic. apud Roman."
(Berol. 1826). p. 216 ; Husckke, "Servius TuUius," p. 586 ; Geib, p. 233 ;
F^M, p. 34.

*Birn6aiini, in"Archiv," VIII, pp. 674, 679; IX, pp. 399, 412; Plai-
ner, "Qu»st." p. 85.

» Cicero, "In Brut." cap. 27; Cicero, "Pro Coel." p. 13; !*Pro Cluen-
tio," 53 ; Klenze, p. 19 ; Geib, p. 178.

•Cicero, "In Verrem,"II, c. 10; Ftr^Z,"iBneid," VI,vers.432; Cicero,
"InVatin." c. 14; "Pro Fontejo," c. 6 ; "Pro Plancio," c. 17; Schmie-
dicke on page 116 has the wrong view. For better view, see Geib, p. 184.
In regard to the meaning of "qussstor," see especially Labot^az/e, p. 45;
Hilie, I, p. 59.

''Cicero, "Pro Cluentio," c. 54; "Pro Roscio," c. 4; "Caecina," c.
10. L. 1. pr. and No. 1. D. "Ad leg. Com. de sicar." L. 81. D. "De
judic." Kdstlin, "Lehre von Mord und Todtschlag," I, p. 99; Osen-
bruggen, "Oratio," p. 35.

•Sigonius, "De judic." II, 5; Ayratdt, "Ordre etc." p. 233; Fer-
ratius, I, 4 ; VanderHoop, "De his, qui antiq." p. 630; Cremani, "Element,
jur. crim." vol. Ill, p. 40. See also Schulting, "Jurisprud. antej."
p. 728; Invernizi, p. 98; Birnbaum, in "Archiv," IX, p. 356; Ross-
hirt, in "Archiv," XI, pp. 380-383, 390; Zacharia, p. 154. In the
" Collatio'leg. Mosaic et rom." Tit. 1, No. 3, there is a reference to the
"praetor judexve quaestionis." Zacharid, II, 158.

» Geib, pp. 188-193. Cf, FirSol, pp. 21, 22. In regard to the " judex
qusstionis, see Labovlaye, p. 327 ; HSlie, 1, p. 60.

Chap. II] BOMAN CRIMINAL PROCEDURE [§ 5

It is also certain that the senate had a criminal jurisdiction in
cases of conspiracy and also in cases of crime committed by foreign-
ers. In these matters, the senate either undertook the investi-
gation itself, or delegated it to a commission.^

§ 4. The Judices. — The rendition of judgment was in the hands
of the " judices." The rules determining the class and rank from
whom these were chosen reflect the contemporaneous status of
political freedom.* In the beginning only senators were the
judges. Later, after many changes, the knights (" equites "),
then again both the knights and senators, and finally, persons
of lower rank possessed this privilege.^

These " judices " were chosen each year, but the numerous
statutes referring to the subject reveal a great diversity as to their
number.^ From among these " judices," just as is the case with
modem juries, those passing judgment in each case were first
designated by lot, and by the exercise of right of challenge (" re-
cusation "). This ever increasing right of challenge belonged both
to the accuser and the accused. Just as the crimes varied, so
there was a diversity as to the number of judges necessary for a
valid criminal judgment.^

§ 5. '' Judices" coixq>ared with Modem Jurors. — It is improper
(although many have done so ^) to regard the modem English and
French jurors as analogous to the Roman " judices." ^ The last
mentioned rendered a general verdict as to the guilt of the accused
without a separation of the questions of fact and law. But the

» Dirksen, "Civil Abhandl." I. Thl., No. 2, p. 135; RosshiH, in "Ar-
chiv," XI, p. 31 ; Geih, p. 217.

* Sigonius, lib. II, cap. 6; Kreba, *'De jud. rom. decir." (Lips. 1744).
Here belong many of the "leges judiciaris,"' especially the **lex Servilia.*'
B<ich, p. 61. Hauholdy "Instit. rom. priv." p. 94. Klenze, ".Diss." In
regard to the "leges judiciaris," Lahoidaye, pp. 196-322. To this the
"decurisB judicum" also refers. De Tigersiroem, p. 163. Zacharid,
p. 156, and p. 159 in regard to the changes which Sulla introduced. See
especially : Ueih, p. 213 ; Laboulaye, p. 263 ; H^ie^ I, p. 61.

•Correctly treated in Geib, pp. 193-202. Cf, OsenbruggeUj "Rede
fur Milo," p. 34.

* Here also belongs the "lex Servilia." See Ascorij "In Cicero Or.
in Verr." c. 6; iVes, "De judiciis judic. jurator" (Traject. 1804), p. 15;
RosshirU in "Arehiv," XI, p. 385; Osenbruggen, p. 36; Geib, p. 307;
LabotUaye^ p. 354.

* E,q,, the "lex Servilia'* required 50; according to Cicero j "Pro
Cluentio," 30 were at one time necessary ; according to "Orat. in Pison."
cap. 40, 65 were necessary ; and according to Cicero j "Epist. ad Attic." IV,
15, 28 judges were necessary. See especially Geib, p. 207.

* Pentinaalt "An inquiry into the use and practice of juries among the
Greeks ana Romans" (London 1767), 3 vols. ; De Blankensee, "De judic.
jurat, apud Gr»cos et Rom." (Qoett. 1812). See also v. Oppen^ "Ge-
sehwome et Richter," p. 9 ; Lebastard, p. 25.

^Geib, p. 315; MiUermaier, in !*Archiv" (1844), p. 151.

6] PRELIMINARY TOPICS [Chap. II

modern jury makes this separation, and (at least the French
jury) has to pass judgment according to its innermost persuasion/
without any regard for rules of evidence. However, it cannot
be denied, that the Roman " judices " and the modern jury are
similar in this, — that both institutions rested upon the idea of
popular courts, and that the " judices," like the jury, did not
constitute a permanent tribunal, but were chosen by lot ^ for each
particular case.^ Also the extensive right of challenge (recusa-
tion), which belonged to the accused in respect to the "judices,"^
as used against modern jurors, is a ground of similarity in both
institutions. At least this was so in so far as there predominated
therein the idea that the accused must submit only to judges
whom he of his own free will acknowledges are wholly impartial.

§ 6. Roman Procedure Accusatorial in its Nature. — Roman
criminal procedure, in accordance with the spirit of the Roman
criminal law and the ideas prevailing in Rome, was regularly
based upon the principle of a formal accusation^ — not merely in
the sense that only on the basis of a formal accusation could
a criminal prosecution take place, but also in the sense that
there was an issue only between the accuser and the accused,
and that this issue was limited to the formal allegations of the
accuser, who was obliged to furnish the evidence necessary for
his case.^

Inquisitorial elements gradually developed in criminal pro-
cedure during the period of the Republic, when for the prosecution
of the guilty in particular cases, extraordinary " qusestiones "
would be appointed.® The procedure taking place before the
" quaestors " and before the " pontifices " ^ had many peculiari-
ties pointing to inquisitorial influences. Yet the foundation of
procedure always remained accusatorial.®

^ Van der Doesde Bye, *'Histor. judic. jurat." (Lugdun 1821), p. 29. In
regard to the significance of the Roman jurors, Lahoulaye, p. 337.

»"Sortitio." See Ayrault, p. 245; Cicero, "In Verrem," XI, 15;
Geib, p. 308.

• There were special provisions for special crimes. Herewith in the
**lex Licinia," were connected the ** judices aBdilitii." Cicero, *'Pro
Plane." 15, 17; *'Pro Murena," 13; Ayrault, c. 1, p. 254.

* The reason for the challenge (causa recusationis) was not given.
Ayrardt, p. 240. The statute ("lex") also provided the disqualifications
in respect to each crime. See Cicero, "Pi-o Cluent." 53; "In Vatin."
c. 2. In regard to the influence of the "lex Licinia" see Geib, p. 313.

* Ayrault, "Ordre etc." p. 281 ; Geib, p. 98; Laboidaye, p. 134; H4lie,
I, p. 70.

• Geib, p. 102 ; HMie, 1, p. 120.

^ In regard to the procedure in the prosecution relative to the Baccha-
nalia, Geib, p. 107.

« Miitermaier, in "Archiv" (1843), p. 287.

Chap. II] ROMAN CRDfilNAL PROCEDURE [§ 6

In the popular courts the right to bring an accusation belonged
only to those magistrates ^ who could call the "comitise" together
and transact business with them,^ while any citizen could bring
an accusation before the " quaestiones."

Everywhere in the Roman institutions, there is apparent the
effort to protect ^ the freedom of the citizen against the malice,
plots, and indiscretion of the accuser, and at the same time an
attempt to protect the interests of the State against the corrupt
withdrawal of an accusation, through collusion or some partiality
towards the guilty. The first attitude explains the laws relative
to the " calumnia *' of the accuser,^ and the necessity of the " sub-
scriptio in crimen." ^ The second gave rise to the provisions
relative to *' tergiversatio'' * and " prsevaricatio " ^ to which
the " senatus consultum Turpillianum " refers.^ The Romans
also had the custom ^ (still used in modern English procedure)
of using one of the guilty parties,^® to whom immunity had been
promised, as a witness against the others, e.g., in crimes against
the State. It is not settled to what extent there existed in the
time of the Republic special officers whose duty it was,^^ in their
official capacity, to investigate crimes and bring prosecutions, nor
to what extent the " quadruplatores " ^^ were such officers.

1 Rosshirt, in " Archiv etc." XI, p. 397 ; Geib, p. 100.

* Private persons were obliged to bring their actions through the mag-
istrate. As to the later law, No. 1, Inst. '*De publ. jud." But cf. L. 30.
Cod. **Ad leg. Jul. de adult." Burchardi, "Rechtssystem der Komer,'!
p. 217 ; and in "Neues Archiv etc." VII, p. 465.

• J. van Renesse, **De coercitione accusatorium in Oelrichs" (diss. belg.)»
vol. I, Tom. II, pp. 561-632.

* The "lex Ilemnia" was important. See Brencmann, "Lex Remnia
sive de legis RemnisB exitu cum diss, de fatis calumn." in Otto, "Thes.".
torn. Ill, p. 1561. Also J. de Bye, "De delicto calunmise in public, judi-
ciis." (Lugd. 1790) ; Geih, pp. 124, 291.

» L. 3. No. 2. 7. D. "De accus." L. 24. D. "Ad leg. Corn, de falsis."
L. 2. Cod. "Ad SC. Turpill." L. 5. Cod. Theod. "De accus."; Kleme,
"Ad leg. Servil." p. 13; Birnhaum in "Archiv etc." IX, p. 361. See
Brencmann, c. 1. p. 1635; Bye, "Diss." pp. 4-16.

• L. 1. pr. D. "Ad SC. Turpill." See also : Cicero, "Pro Flacco," c. 20 ;
."pro Plancio." c. 19.

7 Cicero, "In partit." 36. L. 1. No. 6. D. "Ad SC. Turpill."

» Nordkerk, "De lege Petronia," c. IV, 3. 4.

•Called an "index." Ascon. "In Verrem," c. 11; Cicero, "Pro
Cluentio," c. 7; "In Catil." IV, 3; Tacitus, "Annal." IV, 28; In-
vernizi, p. 60 ; Geib, p. 105.

» Ayrault, p. 291.

^^ Adam, "Handbuch der rSmischen Alterthiimer" (Translation), I,
p. 552, refers to Cicero, "Pro Rose." 20; "De legibus," II, 47 ; and Plin.
Epist." Ill, 9. But on the contrary, see Winssinger, "De diff. inter
etc." p. 102.

"As to "quadruplum" (fourfold), Livius, III, c. ult; Ascon. "In
Divin." c. 7; Cicero^ "In Verr." IV, 8; Invernizi, p. 80; Geib, pp.
106, 257.

§ 8] FRELIMINABY TOPICS [Chap. II

§ 7. Effect of Lack of a Oeneral Criminal System. — The mod-
em view of a criminal system embracing every variety of crime
was unknown to the Romans.^ Each law contained special pro-
visions relative to the formal accusation, the proof , and the prose-
cution of the particular crime to which that law referred. Ac-
cordingly in each " qusestio " there could only be a trial and
judgment in respect to that one crime, towards which the formal
accusation in pursuance of the statute was directed.* This was
important in cases where there was a question relative to a con-
currence of crimes.'

The " Leges Juliae Judiciariae " * seem to have contained gen-
eral provisions only in regard to single points relating to the ap-
pointment of judges and kindred subjects. In the majority of
institutions having to do with procedure, one is obliged to dis-
tinguish whether the procedure came before the " qusestiones "
or before the " comitise," — and if the latter, whether it came be-
fore the " comitia tributa '' or before the " comitia centuriata."
There is also the question whether the " judices " might apply
only the penalties which the statute provides, or whether they
might consider mitigating circumstances, — a question to be an-
swered differently according to the kind of prosecution under con-
sideration.* In the."qu8estiones," the "judices" were strictly
bound to the literal application of the statute.'

§ 8. Acts Preliminary to Trial. — The separation of procedure
into a trial and a preliminary investigation existed in so far as
the formal public session at which, under the direction of a
" quflesitor" in the presence of the " judices," the case would be
tried and decided, was preceded by a procedure in which the
formal accusation would be first taken up, the evidence brought
together, and an opportunity for preparation afforded the
accused.

.This separation of the preliminary investigation (" praejudi-

^AyrauU, "Ordre et formality," pp. 5, 932; Hugo, "R6m. Reohts-
geschichte," p. 634; Diek, "Hist. Versuche flber rom. Crim." p. 29.
See also: L. 3. No. 5; L. 13. 18. D. "De testibus."

«Gei6, p. 361.

^Wafflaer, "De concursu delictor." (Lovan 1823), pp. 33, 34; So-
vigny, *T)e concurs, delict, formal." p. 110; Von Fetterbach, "Ueberdas
Geschwornengericht," p. 227; Plank, "Die Mehrheit RecHtsstreitig-
keiten, " p. 95.

* Back, "Histor. jur." p. 350; Brissoniiis, "Oper. minor." (edit. Tree-
kell), p. 95. In regard to the appointment of judges under the later laws,
see Geih, p. 207.

^ Besaerer, "De indole juris crim. Roman." II, pp. 22-49; Ro88h%rt^
Entw. der Grundsatze des Strafrechts." p. 71 ; Geib, p. 207.

• Kostlin, "Von Mord und Todtschlag,'^ p. 194.

Chap. II] BOMAN CBIMINAL PROCEDUBE [§ 9

dum accusationis,"* "ordinatio causae")^ is explained by the fact
that only that individual was designated " accusatus " or " reus " *
against whom an accusation had been lodged as a foundation for
the ensuing investigation in chief/ Thus the trial (in the modem
sense) had to do with " crimen " ^ or " reatus/' *

In popular courts, the accusation seems to have been inunedi-
ately published by the magistrate. However, in the eariier period,
there was only an announcement of the accusation, for which the
day of hearing was set by the magistrate, who at the same time
summoned the accused.^

The long intervals, the opportunity for the accused to attempt
to influence the people, the requirement that the accusation be
repeated three times * (with the necessary result that the people
in the meantime became familiar with the matter to which the
accusation referred) also constituted a kind of preliminary inves-
tigation.^ Yet it is incorrect to think that there was that col-
lecting of evidence by officials, which obtains in our time, or that
there were hearings from which the accused was excluded. Such
acts would be contrary to the nature of the accusatorial procedure
and inconsistent with the conception that no attention was paid
to procuring a confession.

A taking of security to insure the due appearance of the accused
was necessary. Under some circumstances he could be temporarily
imprisoned.^®

§ 9. Preliminary InTestigation. — In the ^' qusestiones i)er-
petuae " ** various acts which were performed in regular order and
preceded the formal arraignment in open court may be taken as
corresponding to a preliminary investigation. The first of these
acts was : the " postulatio rei," *^ the formal prayer of the ac-

^QuinctUian, "Declam." 319.

« L. 1. Cod. "Ad. SC. Turpill." Birnbaum, in "Archiv etc." XI, p. 353.

•L. ult. Cod. "De accusat." "Archiv etc." IX, p. 352.

* Proof of this lies on the fact that in the classics a distinction is made
between **po8tulo," **defero," and "accuso." See: Forcellini, "Lexi-
con," voce : "accusare," and Cicero^ "Pro Roscio," o. 5. 10; "In Verrem,"
III, 16. L. 38. No. 10. D. "Ad leg. Jul. de adult." L. 3. Cod. "De pla-
giar." See also Ayraidt, "Ordre etc." p. 303. In regard to the Roman
preliminary investigation, see Hilief I, p. 59.

* "Neues Archiv etc." IX, p. 340. • L. ult. D. "Ad leg. Jul. majest."
» "Dies dicebatur" Cicero, "De harusp." c. 4; "In Div. Verr." c. 21 ;

QuindUian, "Declam." 302; Geib, p. 116.

* Cicero, "Ad famil." XVI, 12; Livius, III, 35.

* In regard to the character of these i)receding acts, see Lahoulaye, p. 138.

* Geib, p. 117. " As to their character, see Lahovlayey p. 183.
" Cicero, "Ad Quinct. fratr." Ill, ep. 1 ; Plautus, "In Bacho," III, 3,

45; Ayrault, p. 305; Brissonius, "De formulis," p. 367; Besserer, p. 15;
Birnhaum, in "Archiv etc." IX, p. 359; Rosahirt, in "Archiv etc. IX,
p. 389; Geih, p. 266. L. 7. pr; Lahovlaye, p. 342.

§ 9] PRELIMINARY TOPICS [Chap. II

cuser to the presiding officer of the " qusestio " for permission
to bring an accusation against some certain person, whereupon
the presiding officer investigated the facts submitted by the
accuser, and according to the circumstances granted or refused
the permission. If he granted the permission, there ensued the
" nominis," and also the " criminis delatio " ^ whereby the ac-
cuser made a formal and definite accusation,^ which revealed the
nature of the act, and the person of the accused. This regularly
took place in the presence of the accused.^ Thereupon followed
the " inscriptio nominis *' ^ (" subscriptio '*) or " criminis " as
the formal notation of the accusation in a kind of court register,
with the names of the accuser (who now formallv declared himself
as such) and the accused.^ To this indictment (" libellus accusa-
tionis ") ^ the accuser must limit himself in the ensuing trialJ
The fact that the " magistratus " could sometimes refuse to place
the name of the accused on the register * shows that he made a
preliminary investigation of the accusation.

It was an established legal principle that more than one accuser
could not prosecute the same accused ; * thus a preliminary de-
termination (^'divinatio ") — asto who might bring the complaint-
was necessary.^® It also appears (at least as a general rule) that
one could not bring a charge against more than one person at a
time in a " qusestio." ^^ There is no mention of a preliminary
investigation undertaken by the " magistratus '* for the purpose
of collecting evidence, or questioning certain persons; although
an " inquisitio " is mentioned,^^ which seems to indicate such a

* In the old authorities, these two acts are often not clearly distin-
guished. CictTo, "Pro Coel." 3; "Pro Cluentio,'* S; "Divin." 20. L.
18. No. 9. D. "De quaest."; Ayraidt, p. 306; Birnbaum, in "Archiv
etc." IX, p. 358; Geib, p. 267 ; Lahoulaye, p. 344.

* The professio crimin." in L. 5. Cod. Theod., **De accus.," contains
an example.

» Geih, p. 270.

* Cicero, *'Pro domo," c. 20. L. 3. 7. pr. D. **De accus." ; Birnhaum, p.
359 (c/. p. 263). In L. 3. D., referred to, a formula is given.

^Geih, p. 281.

* L. 2. No. penult. D."Ad. leg. Jul. de adult." L. 2. I>. *'De aecus." ;
Birnbaum, in "Archiv etc." p. 359, note 496.

7 Ayrault, pp. 308-312.

« Cicero, "Divin." VIII, 8; Laboitlaye, p. 346. » Ayrault, p. 819.

^° The others, however, could support the chief accuser ("subscriptores").
Cicero, "Div." 20; Gellius, II, 4; Geib, p. 268; Cicero, "Div." 15;
**Pro Muren." 24; *'Ad Div." VIII, 8; Birnbaum, in "Archiv etc."
IX, p. 361; Geib, p. 322.

»L. 12. D. "De accusat." L. 16. Cod. "De accus." See Ayrault,
pp. 327-332. Relative to the course of the preliminary procedure, Osen-
bruggen, "Rede fur Milo," p. 37. (Kiel 1841).

» Cicero, "In Verrem," IV, c. 4 ; "ProMurena,"c. 21 ; Plinius, "Epist."
Ill, 9; V, 20.

Chap. II] ROMAN CBIMINAL PBOGEDUBE [§ 10

preparation of the evidence. The " interrogatio " mentioned in
the classics was also carried on by the accuser without the in-
quisitorial cooperation ^ of the " magistratus." ^ Here the ac-
cuser^ by means of questions put to the accused, produced the
exact foundation necessary for his complaint. However, the view
that the criminal procedure was preeminently a reflection of the
civil procedure, and that the " magistratus " must always first
allow the filing of the complaint, before it was formally prose-
cuted, makes it seem probable that it was not until after the per-
mission of the " magistratus " to allow the " judicium " ^ had
been obtained, that the accuser made a formal complaint.

§ 10. Trial. — When all these preliminary acts had been fin-
ished, the indictment of the accused was complete, and there was,
as it were, a joinder of issue.* The accused became " reatus " ^
or " crimen," * and he would forthwith be placed in the list of per-
sons against whom the filing of complaints had been allowed.
Then as soon as the day of hearing (" dies ") had been set by the
" magistratus," there began the regular trial (" judicium publi-
cum "), technically called " qusestio " or " crimen." ^ Herein
every action was taken with the greatest possible publicity, and
there is no trace of written pleadings. There is apparent in every-^
thing the greatest solicitude for the defense of the accused, —
who, if he so desired, could choose a representative to defend him
(" patronus," " advocatus ").* The presence of the accuser,
who prosecuted the complaint, was an essential condition of the
beginning of the public trial,^ and he could not be represented
by an attorney (" prociu*ator ").^® Nothing can be found indi-

1 AyrauUy "Ordre etc." pp. 420-424. The "interrogatio ex lege"
{BrUsoniua, **De formulis," p. 471 ; Bessererj **Di88." p. 15)refer8 to the
accuser. Rosshirty in "Arcmv etc." XI, p. 390. As to the nature of
this '* interrogatio," Geib, p. 273. It seems that the **insoriptio," referred
to above, came next after the ** interrogatio." Geib, p. 281.

* That there was a more summary procedure against a criminal who
had been caught in the act, see Hitgo, ''Rechtsgeschichte" p. 534 (based
on passages in **Appian de Bello civ." 2 II, 6); Nagell, De flagranti
crimine" (Groning 1828).

» L. 25. D. "Ad SC. Sillan."

* "Litis contestatio." Also as to "crimen," there is mention of "con-
testari crimen." L. 15. No. 5. D. "Ad SC. Turpill." L. ult. Cod. "de
jure fisci." It is to this that the "receptio nomims" refers. Gei&, p. 283.

» L. 9. No. 1. Cod. "De bon. proscript." ; L. ult. D. !*Adleg. Jul. majest."

• Bvmbaum, in "Archiv etc.** VIII, p. 438.

7 AyrauLU "Ordre, etc." p. 316; mii^, I, p. 76. » Gcib, p. 320.

• L. 13. "De public, judic." ; L. 15. Cod. "De aocus." ; L. 15. 17. Cod.
Theod. "De accus."

^ AyraulU p. 478. The accuser also at times had with him his "patron,"
who supported him in the "deductio." Ferratiua, "Epist." I, 6; Rosb-
kin, in "Archiv etc.*: XI, p. 392.

5 10] PRELIMINARY TOPICS [Chap. II

eating a uniform procedure for the opening of the trial.* Appar-
ently the accuser, after a statement of the complaint, and often also
after an opening speech, outlining the accusation, began with the
production of witnesses.* This speech, and also the speech relat-
ing to the defense, preceded the taking of evidence. There is
nothing to indicate that the presiding " magistratus " partici-
pated in the examination of the accused.' This would hardly
accord with the spirit of a criminal procedure in which the burden
of proof rested entirely upon the accuser. Moreover, there is
nothing calculated to bring about a confession, — although of
course, in case of a confession, the accuser rested his case, and'
need adduce no further evidence.* There is nothing to indi-
cate, in cases where the accused immediately made a complete
confession in open court, that the " queestio " could be dispensed
with, and judgment be entered immediately.^ On the contrary,
it seems rather as if judgment could not be entered against a
" confessus " imtil after a formal trial. It is, however, true
that in the earlier periods, there was no official examination
of the truth of a confession. One hears nothing of the accused
being compelled to plead to a complaint.' It is, however,
conceivable that the accused damaged himself by a stubborn
and inexcusable silence and strengthened the suspicion against
him.^

The mention made of the " interrogatio " of the accused ® has
reference, both to the questioning by the accuser, and also to the
questions which the accused in this production of evidence • could
put to the accuser. In the time of the RepubUc, a free man would
never be subjected to torture.*® This would be applied only to

^ L. 20. Cod. '*De his, qui accus. non poss." mentions "Expositio ori-
miniiTn atque accusationis exordium." Also in regard to the different
forms, see Brissonius, **De formulis."

' Geihy p. 318. Pompey, however, sought to reverse this arrangement,
but the change introduced by him was not of long duration.

» Ayraxdt, "Ordre, etc." p. 479.

* Cicero, "In Verrem," V, 64; SaUust, "In CatiUn." c. 52. Later the
reliability of a confession was put to proof, and other evidence made use
of. L. 1. No. 17. 27. D. **De quaBstion." Cf. L. 8. Cod. "Ad leg. Jul.
de vi," and Niccolini, "storia del principii per r instruzione delle pruove,**
pp. 244-249.

^ Geihy "De oonfessionis effectu in processo orimin. Romanorum'*
(Tunc 1837); Geih, "Geschichte," p. 275.

• Geih, "Geschichte," p. 138. ^ l. g. Cod. "Ad leg. Com. de falsis."
« AyrauLt, p. 490. » Ayrault, p. 479.

^^ Grupen, "Diss, prselim. observat. jur. cnm. de applicat. torment."
(Han. 1754); Reitemeier, "De orig. et rat. qusest. per tormenta apud
Groc. et Rom." (Goett. 1683); Westphal, "Die Tortur der Griechen und
Homer," (Leipz. 1785); Wasserschteben, "Hist, quffist. per torment.",
(Berol. 1836), No. 75.

Chap. II] ROMAN CRIMINAL PROCEDURE [§ 10

slaves, if they were produced as witnesses, and even then with
certain restrictions varying according to the character of the
statutes (" leges '*)} A witness was examined by the party who
had caused him to be summoned. If this party was the accuser,^
then in the course of the evidence for the defense, the accused
(or his attorney) could also put questions to the witness, — es-
pecially questions tending to discredit his testimony.* In like
manner the accuser could interrogate witnesses advanced by the
accused. Taken as a whole, the examination of witnesses was
often similar to the system of direct and cross-examination which
obtains in England.^ The various statutes (*' leges ") dealing
with the different crimes also varied in respect to the admissi-
bility of witnesses.*

There is nothing to indicate that the " magistratus " could in
the course of the " qusestio " put to a vote any matter relating
to a single question,^ e.g., the admissibility of some of the grounds
of discrediting witnesses. It has already been noted that the
special speech in defense of the accused preceded the taking of
evidence.^ The extent to which the speakers availed themselves
of all the subtle arts of oratory* {s explainable when one con-
aders that, especially in the popular courts, the people, not being
bound by rules of evidence, easily confuse the office of the par-
doner and the judge.* Moreover, in the " comitia," no post-
ponement of judgment (" ampliatio ") took place, and there could
be only an immediate acquittal or conviction.^^ At the end of
the trial there were no special closing arguments, such as obtain
in the modem French procedure. ■ The accuser and the accused,
however, could expose briefly the weak points of the opposing argu-

^ Cicero, "Top." 34; "Pro MUone." 22. L. 1. Cod. !*De qusBst." ;
Geib, "Gesohichte," pp. 138. 330, 348..

* In the later period, the " magistratus" appears to have also asked
some questions. L. 3. No. 3. D. De testib.

' Piaasag^es concerning the methods of taking evidence, in Brisaonius,
**jye formulis," p. 476. As to the examination, see Geih, p. 390.

* This principle of publicity seems to have been violated in the matter
of the "reoitatio" of the statements of absent witnesses. L. 3. No. 3. D.
"De testib." See also Briasoniua, p. 476. As to the extent to which
written depositions were in use, see Geihy p. 342. As to the manner of
the examination in Roman law, see Lahoulaye, p. 367.

* L. 3. No. 5. D. "De testib." • Ayravlt, p. 515.

' iiscon., "C»ein." 4, distinguishes four kinds of defensores."
^Cicero, "Orator." I, 8. Quinctilian, "Inst." II, 16 and 17. See also

Cicero, "Pro Sextio," 69. Here belongs also the "laudatores" (used as

witnesses of character). Rosshirty in Archiv etc." XI, p. 393; Geih,

p. 344.

' V. Feuerbach, "Betrachtungen tiber Oeffentlichkeit und Mundlichkeit '*

(Giessen 1824), I, p. 269. Geib, p. 103.

* Geib, p. 148 ; Labovlaye, p. 377.

§11] FRELIMINART TOPICS [Chap. II

ment, and reenforce their own favorable testimony.* The vote
was taken in the '' eomitia " in the same manner as upon any
other question presented to it for its consideration. On the other
hand, in the " quaestiones perpetuse," the vote was taken by bal-
lot,^ without questions being put to the judges, and without any
separation of matters of law and fact. The verdict was rendered
by a majority vote, and was at once made public, — except that in
cases where " not proven " (" non liquet ") was the verdict of
the majority, the decision could be postponed (** ampliatio ").'
In the time of the Republic, the individual against whom judg-
ment had been rendered could avail himself of an appeal (" pro-
vocatio ") to the people, who kept watch over the administration
of justice by the magistrates.*

§ 11. Changes under the Empire. — Under the emperors,^ the
gradual destruction of civic freedom necessarily aflfected the old
Roman criminal procedure, while Christian ideas, due to the spread
of Christianity, tended toward the protection of the innocent,
and the promotion of justice.® Yet the despotism of numerous
emperors resulted in their use of the criminal procedure as the
tool of their power.^ The distinction between the judicial and
executive powers gradually disappeared as the emperor united in"
himself all functions of government. Consequently the old popu-
lar courts ceased to exist. Although the " quaestiones perpetuse "
still remained, yet their original significance was materially
changed. The civil and criminal powers were united in one offi-
cer.^ The "prsefectus urbi' ' ^ and the " prsefectus prsetorio"*®
were the regular magistrates for the administration of criminal
justice. A system of permanent courts was established.^* Not
infrequently the emperors took upon themselves the decision of

* These were the "altercationes," Quinctilian, "Institut." VI, 4. Geih,
p. 326. ; Laboidaye, p. 363.

* As to the manner of voting, Geih, p. 364.

^Ascon,, "In Verrem," III, "De prsBtur. iirb." c. 9; Erhard, "De
ampUat. judicor. publieor." (Lips. 1793). For the distinction of the
"comperendinatio, see Geib, p. 369; Spies, "De comperendin." (Lips.
1728); Ferratius, "Epist." I, 9; Geih, p. 372. As to the forms of ver-
dict, see much in Brissonius, **De formulis," p. 480.

* Woniger, "Das Sacralsystem," p. 288. Cf. Geib, p. 387.
' As to the changed spint of procedure, Lahovlaye^ p. 387.

* L. 22. Cod. "De episcop. audient." is important.

■ Faustin Hilie, in the "Revue de legislation" (1844), pp. 339, 349.
Proof of many milder provisions introduced into criminal procedure.
^ Hauholdj "Instit. jur. rom. priv." p. 91; FSriol, p. 46.

* Tit. Dig. I, 12 ; Malblankj "Conspectus rer. judiciar. Roman. Ger-
man." (Nonmb. 1797), p. 59, and especially p. 62; Gei6, pp. 399, 439;
Hme, I, p. 133.

w Malblank, p. 56 ; Geib, p. 431. " Niccolini, p. 188.

Chap. II] BOMAN CRIMINAL PBOCEDUKB [§11

crimmal cases,^ or delegated the investigation thereof to a special
officer. The senate frequently asserted a jurisdiction over crimes,
especially over all crimes against the State,- or conferred juris-
diction upon some officer.' The " queestiones perpetuae "
probably ceased to exist as early as the first century a.d. ; at
any rate there is no trace of them after the time of Caracalla.*
The " judex qusestionis," ^ although existing until a late period,
was really nothing more than a commissioner appointed by a
magistrate.^ With this decUne of the ancient " queestiones "
and the popular criminal courts, there disappeared also the vot-
ing '* judices." Consequently, the " judicium pubUcum " ^ en-
tirely lost its old significance, and was fihally abolished by special
statute. The number of " crimina extraordinaria " * increased
until at last all criminal courts could, from the standpoint of the
ancient law, be regarded as ''extraordinaria" inasmuch as the
" cognitio " now also regularly belonged to the magistrate.*
The " prsefectus urbi," the ** prsefectus prsetorio," and the
" praesides " did not regard themselves as bound by the old stat-
utes (" leges "), and thus there developed in their criminal courts
a new procedure (" extra ordinem **)}^ In the courts of the offi-
cers above mentioned, the controlling factor was a certain council
(" consilium ")," the judges of which were chosen by the magis-
trates, and paid by the State.^^ These, however, did not vote, as
did the old " judices," thus leaving it to a decision of the majority,
but merely handed down their judicial opinion.^'
The old name '' judicium publicum," although used in a sense

^v, Feuerhach, I, p. 270; Dirkaeny "Civil Abhandl." I, p. 175; Geih,
p. 420; Laboidaye^ p. 429.

* Their jurisdiction was not however limited to crimes against the State.
Geibj pp. 398, 412; Lahovlaye, p. 413.

* Dirksen^ p. 189; Rosshirt, "Geschichte und System des deutschen
Strafrechts'* (Stuttgart 1838), I, p. 188.

* SchuUing, **De recus. judic." cap. VII, Nos. 1 and 2. See also L. 13.
D. "De poenis." L. 15. No. 1. D. "Ad SC. Turpill." As to the different
views in regard to the abolition of the " qu»stiones," Geib, pp. 394-397;
HHie, I, p. 127.

» L. 1. No. L. D. **Ad leg. Com. de sicar." See also Birnhaum, in
rArchiv etc." IX, p. 420; Geih, p. 396.

* Schulting, ** Junsprud. antejust." p. 728.
» L. 8. D. "De publ. iudic." ; Geih, p. 402.

•Hugo, " Rechtsgeschichte," p. 878; Geih, p. 404; Plainer, "Qu»st.
de jure crim. Roman." p. 85.

* L. 1. D. "De offic. prsBf. urb." ; L. 1. ult. D. "De poen." See also
Birnbaum, in "Archiv etc." VIII, pp. 676-679.

« GHh, p. 406.

>^ This consisted of the so-called "assessors."
" Geih, p. 442.

" Geib, p. 447. This brought it about, that the accused no longer had
his former right of challenge. Geih, p. 600.

§ 11] PBELIMINABT TOPICS [Chap. II

other than the original, was still applied to the criminal courts>
when " levia delicta de piano " were being tried and decided.^

From the rules which in the case of most crimes were prescribed
by the statutes (" leges ")> there appears to have developed grad-
ually a kind of procedure evolved from court custom,* which was
based upon publicity.'* Oral pleadings remained the rule, but
even at this time, records of proceedings were kept and written tes-
timony * of absent witnesses read.^

The fundamental form remained that of the ajccusatorial pro-
cedure. Hence a " libellus accusationis " was still necessary ; •
and on the part of the accuser there existed, as before, the " sub-
scriptio in crimen." ^ But the nature of the underlying principles
had already suffered considerable change. Through the develop-
ment of the power of the State, the tendency towards centraliza-
tion,^ the gradually spreading influence of Christianity,^ and a
changed conception of punishment, there were necessarily in-
troduced into criminal procedure more inquisitorial elements.^®
The judge in his official capacity ^^ had to take a more active part
in the discovery of the truth, even in the procedure based upon an
accusation. The accused was now subjected to torture," and the
usual examination on the part of the magistrate " might now be
directed more towards the procuring of a confession. Because of
this growing official activity in the discovery of crime," and the
duty laid upon certain special officers of ridding the province of
dangerous characters,** there necessarily developed a new pro-
cedure, governed by considerations of criminal jurisprudence and
a regard for the exigencies of a system of police. Inasmuch as

» L. 6. D. "De accua." « AyravU, p. 531 ; Geib, p. 509.

* Rosahirtf **Geschichte und System des deutschen Strafreohts " (Stutt-
gart 1838), p. 189. As to the development of the new procedure, L<»-
botdaye^ p. 409.

^ Apparently with the purpose to furnish the appeal judge the requisite
information. Geib, p. 503. The use of writinc: brought about changes
in the preliminary investigation that were much to the disadvantage of
the principle of publicity. "Revue de legislation" (1844), p. 341.

^ It appears from L. 3. No. 3. D. "De test." that Hadrian attached no
weight to such evidence. Oeib, p. 633 ; Hilief I, p. 146.

•L. 3. D. "Deaccus."

f L. 2. D. "Ad S.C. Turpill." L. 10. Cod. "Qui accus., non poss.";
BrissoniiAS, "De formulis," p. 469.

• Hilie, p. 163. • Hilie, p. 173.

» Geib, p. 515. C/. MiUermaier, in " Archiv etc." (1843), p. 433.
" L. 22. Cod. "Ad leg. Cornel, de falsis."
" Hohbach, "Beitrage zum Strafrecht," p. 2; Geib, p. 617.
» Geib, p. 614.

" "Public® sollicitudinis cura" as in L. 1. Cod. Theod. "De ousted,
reor." ; Geib, p. 527.

»* L. 13. D. "De officio pr»s."

Chap. II] ROMAN CRIBaNAL PROCEDURE [§ II

minor officials, similar to our police, came more and more to be
appointed for the searching out of dangerous characters, and the
discovery of crime (" agentes in rebus," ^ " irenarchae," ^
*' stationarii " ') there arose, in cases where these officials * re-
I)orted the crime, new methods for the institution of proceedings,
which differed from those of the old accusatorial procedure.*

Many changes took place in the ancient forms, although the
old names were retained ; e.g., the " nominis delatio." • Many of
the old procedural steps seem to have been united into one.^
Many of the early methods of procedure were changed by the
now greatly developed power of the magistrate.®

The criminal procedure of the period of Justinian* retained
everywhere remnants of the ancient forms, — of the accusatorial
procedure, of publicity, and of oral pleadings. But the old spirit
which gave si^iificance to these institutions had vanished. Every-
where new forms arose. There even developed a certain theory
of evidence,^^ since the accuser, in making out his accusation, and
the judges, came to be directed by certain rules of evidence, devel-
oped through custom or decreed by the emperors." It cannot,
however, be authoritatively stated, that in order to mete out
special punishments, more stringent requirements in the way of
proof were exacted." The extended jurisdiction of the magistrate
also brought it about, that in cases where one act constituted more
than a single crime, he was not bound as formerly by the allegations
of the accusation, and moreover, in the inffiction of punishment,
the judges exercised a certain discretion.^'

^ Ammian MarceUin, XV, 3; Augustinus, "Confess." VII, 6; Cod.
Just. Ub. XII. Tit. 20-24.

*L. 6. D. "De custod. reor."; Tit. Cod. X, 75.

» L. 3. 4. D. "De fugitiv." ; L. 1. D. "De offlc. prsBf. urb." ; L. 1. Cod.
Tbeod. VIII 5.

*The "advooatua fisei" (Spartian, "Vita Hadrian." c. 20; Meister,
"Einleitung in den peinl. Ftoz." I, p. 179) cannot be regarded as a
miblic accuser.

» MiUermaier, in "Archiv etc." (1843), p. 433.

• Geib, p. 548.

^ E.g., the "nominis delatio" and the "inscriptio," Geihy p. 558.

* E.g., as to the questioning of witnesses. It appears from L. 3. No. 3.
D. "De test.," that the emperor Hadrian proposed questions. This was
gradually extended. Geib, p. 631.

' See for details, the criminal cases preserved by Agathiaa (translated
by Degen), "Neus Archiv etc." VII, No. 22.

■• Po9t, in the " Lehre vom Beweise." See also Oeih, p. 610. Also the
value attached by the Romans to circumstantial evidence will be dis-
cussed later.

" In regard to the later Roman procedure, see Roaahirt, "Zeitschrift
fflr Civil- und Criminabecht," 2d. Hft. p. 178.

" As might appear from L. 16. Cod. " De poenis." But see Oeih, p. 649.

» Geib, pp. 652-659.

§1]

PBELIMINARY TOPICS

[Chap. Ill

Chapter III
PRIMITIVE GERMANIC CRIMINAL PROCEDURE

1. General Characteristics.

2. The Judicial Power.

§ 3. Trial by Battle, Ordeal, Com-
purgators.

§ 1. General Characteristics. — In the Germanic law the devel-
opment of criminal procedure ^ stands in close relation to the change
of view as to punishment, and to the political conditions of the
German nation. Not until the conception arose of the existence
of crimes which were committed directly against the civic com-
munity, did the criminal procedure acquire a significance similar

* For the history of German criminal procedure the following may be
consulted. Gebaver, "Vestigia juris german. ante." (Goett. 1766).
Disp. 14, 15, 16; Weisand, **Dere German, judiciar." Viteb. 1773);
Hofmann, ** De orig. progressu et natur. jurisprud. crim. ger." (Leipzig
1722) ; Malblankf Geschichte der peinlichen Gerichtsordnung " (Nurnb.
1783); Mcdblank, "Conspectus rer. judiciar. roman. German. (Norimb.
1797); HeinecciiLS, "Elem. jur. German, tum vet. tum hod." (Hal 1736),
tom II, Tit. Ill; Hauschildj "Gerichtsverfassung der Deutschen"
(Leipz. 1751) ; Kovp^ "Nachrichten von der Verfassung der geistl. und
Civil-Gerichte in Hessen." 2 Thle. (Cassel 1769); Henke, "Gteschichte
des peinlich. Rechts," 2 Thle. (Sulzbach 1809); Meyer, "Esprit, origine
et progrds des instit. judiciaires" (la Haye 1819), (vol. VI, also the first
part); Rogge, "Uber Gerichtswesen der Germanen" (Kdnigsberg 1820) ;
Raepsaet, *' Analyse raisonn^e hist, et critiq. de Torigine et progrds des
droits des Beiges." (Gand. 1824, 1826), 3 vols. For a description of the
criminal procedure under the French kings, see "Th^orie des loix poU-
tiques de la monarchic fran^oise" (Paris 1792,8vols.),invol. VII, pp. 1-186,
or in the new edition (Paris, 1844, by M. de Lazardi^re), vol. II, p. 97,
vol. Ill, p. 1, and vol. IV, pp. 29, 200. There is also much in certain pas-
sages of Bodman, " Rheingauische Alterthumer " ; Feuerbach, "Betrach-
tungen iiber Oeffentlichkeit und Mundlichkeit," (Qiessen 1824) ; Eichhorn^
i*Rechtsgeschichte" ; v. Savigny, "Geschichte des rdmischen Rechts."

The following are also important. Maurer, "Geschichte des altgermaa-
ischen und namentlich altbaier., offentlichen, mundlichen Gerichtsver-
fahrens" (Heidelberg 1824); Frieberg, "Das altdeutsche Gerichtsver-
fahren" (Landshut 1824); BuchneTy "Das offentl. Gerichtsverf. in biir-
gerl. und peinl. Saachen " (Erlangen 1825) ; Steiner, "t)ber das altdeutsches
imbes. altbaier. Gerichtswesen (Aschassenburg 1824) ; J. Burchardt^
"Diss. hist, de judiciorum criminal, formis olim hodieque" (Basil. 1823) ;
Vo8f "De judiciis Drenthinorum antiq." (Groning 1525). In regard to
the Middle Ages, see Cannert, "Bydragen tot de kennis van het oude
Strafrecht in Vlaenderen" (Ghent 1835); Rosshirt, "Geschichte und
System des deutschen Strafrechts" (Stuttgart 1838); Wilda, "Das
Strafrecht der Germanen" (Halle 1842); linger, "Die altdeutsche
Gerichtsverfassung " (Gott. 1842); Pardessua, "Loi salique" (Paris
1843), p. 567 et seq; HUie, "Trait6 de Tinstruction oriminelle" (Paris
1836), I, p. 179.

Chap. Ill] pbimitive Germanic criminal procedurb [§ 1

to that of to-day.* The civic community, in the case of crimes
committed against individuals, so long as the vengeance of the
family prevailed, took cognizance of a crime only so far as
those limits to the exercise of vengeance which custom had estab-
lished were transgressed,^ and in case of crimes which were
deemed breaches of the peace, enforced the collection of the fines,
or made effective the punishments incurred.

A fundamental principle of the old order was the separation of
the judicial power from the executive and ministerial power. The
ministerial power, resting in the hands of the princes, laid the foun-
dation for the " comes." * This latter was the officer appointed
by the king, who presided over the popular courts,** in which
crimes of a graver nature were tried. He guided the trial, and
saw to the execution of the formal sentence.^ Along with the
" comes," the " missi dominici " * were also important because
of their supervision of officials and of the administration of justice,
and of their duty of searching out secret crimes, and also because
of the authority granted to them to organize a court themselves ^
and preside over the same.* The organization of society, under
which every free man, whenever he heard of a crime, was bound at
once to take steps for the keeping of the peace, shows that crime
was universally regarded as a breach of the peace and likewise
shows how the attempt was made to suppress vengeance. It
explains also how, little by little, this peace preserved by the
people became a peace preserved by officers.^

' As to its development, see Wilda, p. 169.

* Wilda, p. 160; Waiiz, "Deutsche Verfassungsgeschichte," p. 193.

» Marculf, "Form." I, 8 ; "Capit." 779, Art. 21 ; "Throne des lois poli-
tiques," torn. VII, p. 35 ; Savigny^ "Gesehiehte des rom. Rechts," I. Thl.,
p. 222; Meindcrs, **De judic. centen." cap. Ill, No. 18; Grimm \ "Recht-
salterthUmer, " p. 752; Pardeasua, *'Loi salique," p. 571 ; Unger^ p. 152.

* "Capitul." Ill, a. 812, c. 4.; "Cap.'* 815. c. 3. Only in the great
"plaeitis," where the "comites" presided, was there a criminal court
dealing with the graver class of crimes ; this was not the case in the court
of the "centurius," where only minor crimes were tried. However, if the
"comes" himself sat in the "judicium centenarium" graver crimes would
be taken up. See Rosshirt, "Geschichte," p. 11; Montesquieu, "Esprit
des loix," XXX, 18. But on the contrary, see Le Grand de Laleuy "Ke-
eherches hist, sur Tadministration de la justice crim. chez les Fran^ais"
(Paris 1822), p. 53.

* Afeyer, "esprit." vol. I, p. 355.

* Gregor, Turon. V, 29; Marculfy I, 11. See the two treatises by de
Roy and Muratori, printed in Baluz. Capitular, regum Francorum; de
Kock, "Diss, de potestat. civil, episcop." p. 29; Blunlachli, "Rechtsge-
schiehte von Zunch," I, p. 38.

'"Capit." IV, 55.

•"Capit." III. 812, No. 8. Muratori, "Diss, de missis dom." p. II,
cap. Ill, and V. See also Wigand, "Das Vehmgericht," p. 36.

'The old Swiss statutes and actions are interesting. See Schauherg,
"Zeitschrift fOr ungedriickte Schweizerrechtsquellen," I, pp. 20-35.

§ 2] PRELIMINARY TOPICS [Chap. Ill

§ 2. The Judicial Power. — The judicial power was exercised hy
the people. They met in the great popular courts, which were regu-
larly held, and rendered judgment ; in the beginning in full assem-
bly,^ although at an early date* the custom arose of choosing a
certain number from the most experienced and oldest men of the
community. These were the so-called "SchofFen."' Charles
the Great found this system of " Schoffen " already established.
He confirmed and improved it in this respect,* namely : That for
the great popular courts, which were regularly held, the presence
of all the free men of the Gau was required, while the presence
of these " Schoffen " was required for both the ordinary and ex-
traordinary courts. Only in the last named, would the " Schoffen "^
in a certain number* suffice for a valid judgment. Other free
men, however, were not excluded from the court. In criminal cases,
especially, the judgment seems to have been passed in the general
popular courts.* Charles the Great extended this system of
" Schoffen " over his newly conquered territories.^ So far as
criminal procedure, at least, is concerned there is no indication that
judgment was passed only as to the facts. On the contrary, there
seems to have been passed a final judgment either of conviction
or acquittal.*

* PardessuSt p. 565 ; Unger, p. 143.

* VII '^Soabini" are mentioned in ''le^. Sal." tit. 60. Ripuar. 32.
» Passages in "Throne des loix polit." torn. VII, p. 203.

*v, Savigny, "Gesohichte des rom. Reohts." I, p. 195. However, see
Meyer, "Esprit." vol. I, p. 396; Maurer, " Geschichte," p. 66; Le
Grand de Lcueu, p. 63; Wigand, p. 280; Rogge, ''Grerichtswesen," p. 66;
Grimm, "Rechtsalterthiimer," p. 774; linger, p. 169; Pardessiia, p. 576;
Lehrierou, *'Hist. des institut. carolins:." p. 382. Also in regard to the
"Scabini Rachinburgi," see Thomas, der Oberhof zu BYankfurt," p. 9;
Sachse, '*Histor. Grundlagen des deutschen Staatslebens," p. 295.

* As to the number of "Schoffen," see linger, p. 281 ; Hilie, 1, p. 195.
•This appears from "Capit." 801. Art. 27. cap. III. of 812, cap. 4.

Cap. I, 810. See also "Th^orie des loix," VII. p. 50; p. 204; Bouquet,
"Rer. Gall. Script." Ill, p. 533. Also "Capit." 813, cap. 13 ; Bluntschli
"Rechtsgeschichte," I, p. 37 ; Folk, "Gerichtsverfassimg von Sohleswig,"
pp. 83-86 ; Hilie, I, p. 254.

' In regard to the Italian States, Troy a, "Delia condizione dei romani
vinti dai Longobardi," p. cccli; Gregori, Introduction, "degli statu ti di
Corsica," p. Ixxxix. A document dealing with the Lombard "Schdflfen,**
in Troya, I.e. p. clxx.

* J&icWiorn, **Rechtsgeschichte,"No. 75. But c/. Rogge, p. 68; Maurer
p. 106 ;1 Biener, "Beitrage," p. 120. In regard to the separation of ques-
tions of fact and law, see Bimhaum, in the "Zeitschrift ftir ausl. Rechts-
wissenschaft," I. Thl. p. • 160 ; II. Thl. p. 436. There is considerable
unccfl^inty in regard to the "sagibarones,* especially as to whether they
expressed an opinion on points of law. Bimhaum, in "Zeitschrift etc."
I, p. 151 ; and in "Archiv et<j." XIV, p. 203. Pardessus, p. 274, regards
them as representatives of the "comes." See also linger, p. 197 ; Maurer^
p. 19; Beuker Andres, "De orig. juris, fris." p. 417; Lehuerou, p. 380.
Hilie, I, p. 197 ; Thomas, p. 11 ; Sachse, pp. 287-293.

Chap. Ill] primittve gebmanic criminal pbocedure [§ 2

In the Frankish.period,^ it is impossible to say definitely to what
extent a duty was incumbent upon the court, or particular officers,*
especially the '"Schoffen," to inform upon the crimes known to them
personally, when no accuser appeared.' It does appear, however,
that in the assemblies convened by the " missi " * there was a
duty of censure incumbent upon certain " Schoffen " as in the
" Sendgerichte."

In many places the great criminal folk-courts disappeared.
They persisted longest, however, in the so-called " ungebotenen
Dingen " ^ or in the inferior courts of justice,* in which each free
man had to appear, and where, after a questioning of all present
in regard to the crimes which had been committed in the course
of the year, certain ones were censured. Later this duty of censure,
in most places, ceased to have reference to the graver class of
crimes.

The trial and decision of capital offenses still always took place
before the land courts,^ or in the grain exchange,* or else before
the courts of the Gau,* or the parish.^® In all these courts,
" Schdffen " " (as lay assessors) or judges^* had already come to
pass judgment instead of the \^hole people ; although frequently
this was not the case,^* and then a so-called "collaudatio senten-
tiae " ^* would take place. In the place of the old " comes " there

*"Capit. Carol. Calv." tit. XIV, cap. 4. "Capit." 828. No. 3.
Beiner,p. 132.

'"Cap.*' I, 802. o. 25, because of the expression *'juniores/' There
is some controversy as to their construction ; Wigand, p. 284. Beiner, p.
130. But see Unger,p. 402.

• Unger, pp. 403-^06.

* "Capit.^*^828. in Pertz III, p. 328.

* They were so called in the ."nassauische Landesordnung" of 1498.
Art. 76, 80.

* See also the Wtirtemburg "nimriohtordnung" of 1495; Eherhard,
in PiUs, *'Repertorium fClr peinl. Kecht," I, p. 45. It is certain that in
many countnes the customs referring to the *'Riigen," passed from the
"Sendgerichte*' to the courts of the Sovereign. Unger^ p. 408.

' BucAn«f%jp. 137 ; Grupen^ *'Diss. prselim. observat. jur. crim. applioat.
torment." (Han. 1754), p. 445; Grupen, "Disoept.** p. 576; Kopp,
''Hessische Gterichtsverordnung," I, p. 270.

• Maurer, p. 168.

• References in Grupen, "Discept." p. 667.

^ Important passage in Verhanderlingen der Genoothschap, "Pro ex-
colend. jur. patrio," I, p. 369.

» "Sachsenspiegel,*' i; 62; "Schwabenspiegel," I, 75; ** Kaiserrecht," I,
7; Maurer, p. 106. There is a collection of references dealing with the in-
stitution of the "Schdflfen," in Dreyer, "Nebenstunden," p. 157; Raep-
saetj '* Supplement 2k I'analyse de Torigine des Beiges," p. 134.

" References to the effect that there were seven "Schdffen," in Dreyer^
p. 142.

»» Maurer, p. 180; Bluntschli, "Rechtsgeschichte," I, p. 37.

" ** Sachsenspiegel," II, 12 ; Falk, " Gerichtsverfassung von Schleswig,**
p. 84.

§ 3] PRELIMINARY TOPICS [Chap. Ill

came into existence, with similar prerogatives, certain judges and
other officials, such as the pubHc administrators (" Pfleger") and
bailiffs (" Drosten "). That the presiding judge could not him-
self pass judgment remained a general rule everywhere, even in the
1400 s.i

§ 3. Trial by Battle, Ordeal, Compurgatora. — The more society
rested upon the foundation of the old family and community rela-
tion, the more easily in an age of simple and primitive ideas could
the conception prevail ^ that the mere accusation made by a free
man created a definite and established suspicion against the ac-
cused.' This accusation of its own weight was equivalent to a
challenge to the accused and his family. Thus every criminal
action between the accuserand the accused was, as it were, a " casus
belli " between both families or bands to which the two men be-
longed.^ Consequently every free man against whom an accusa-
tion was brought either availed himself of this right of feud and a
battle took place,^ or else, in an imitation of this right of feud,
summoned his relatives as security, who in a body ® as vouchers,^

^ Warnkonig, " P^andrische Recht^gesch." Ill, p. 265. As to the
changed position of the judges, Unger, p. 323.

• As to the use of the rack in the Frankish period (applied only to slaves),
miie, I, p. 225.

JRogge, p. 212; Wigand, "Vehmgericht," pp. 373, 386; Evers,
^'Altestes Recht der Russen," p. 136.

* This explains the circumstance that both the accuser and the accused
and their families appeared before the court. Dreyer^ "Nebenstunden,"
p. 49.

* As to trial by battle, see **Leg. Saxon." XVI, No. 1 ; "Baiuv." XI,
4; XVI, 1; "Aleman." tit. 84; " Thfiorie des loix politiques," vol. VII.
p. 17 ; Rogge, p. 206 ; Hilie, I, pp. 240-280.

As to the Middle Ages, see "Sachsenspiegel," I, 48 and 63; "Schwa-
benspiegel," I, 228; Hauschild, pp. 52, 106; Kopp, I, p. 479; Meyer,
*' Esprit." vol. I, p. 323. Likewise family feuds to-day persist among
people who have few legal institutions, as among the Montenegrins, or
which, see an example in "Le Droit" of Feb. 1839, No. 32.

• Grtwm, p. 860; Schildener, " Beitrage zur Kenntniss des german-
ischen Rechts," pp. 34-73; Luden, ** Deutsche Geschichte," III, p. 397.
The "Thfiorie des loix politiques," vol. VII, p. 13 (on p. 45 is a col-
lection of references to *'preuves") calls them **preuves negatives."
See also Rogge, p. 136. There were two kinds of "compurga tores."
This appears very clearly from the "Leg. Waliia" (e.g., lib. 1. cap. 10.
No. 47), "sacramentum minus et majus." In the first they stated on
oath, "se credere, juramentum esse verum." Here they must all be
unanimous. In the case of "majus," it depended on the majority. See
Wotton, in "Prasf. ad leg. Walliae"; but also see Hickes, "Diss, epist.
zum thesaur. linguar." p. 35.

In regard to compurgators, see Ahegg, "Histor. praot. Erdrt." pp.
47-65; Gaupp, "Das alte Gesetz der Thuringer," p. 299; Pardessus,
"Loi salique, ' p. 624; Hildenbrand, "Die purgatio canonica," p. 10;
WaiU, "Deutsche Verfassungsgeschichte," p. 210; Sachse, p. 312; Hiliey I,
p. 229. As to the different numbers of those who took oath, Gaupp, p. 305.

' Schildener, " Uber die religiose Gemeinschaft der alten Mittschwor-
nen" (Greifswalde 1833 and supplement 1835).

Chap. Ill] PRIMITIVE GERMANIC CRIMINAL PROCEDURE [§ 3

stood beside him with their testimony and furnished evidence that
an accused at whose side there stood so many feud companions
did not wantonly refuse a settlement, and then the community
prohibited the plaintiff from raising a feud.

Many passages seem to sustain the assumption ^ that the
privilege of securing an acquittal by means of this oath did not
belong to the accused absolutely, but was dependent upon judi-
cial permission.^ The arrangements were various in kind.* It was
an important difference whether those who supported the accused
with their oath were not necessarily chosen only from among the
relatives of the accused,* or whether the accuser chose from
among the relatives of the accused those who should give oath
together with the accused.^ A restriction, which must be regarded
as developed under the influence of Christianity, was that only^
those could support the accused with their oath who had a convic-
tion of his innocence.*

The "Hardes" or " Stocknasn " ^ and the " Neffninger '' «
existing in Norse law, and employed for the settlement of disputes
through their oaths, were fundamentally developed from the
" Kionsnafn " (compurgators). Later they were definite men
chosen by the people for the entire year ; while the " sandmanner " ^
already were regularly appointed and permanent judges. Under
the conditions at that time existing there could be no production
of e\ndence ^^ in the modem sense. Everywhere there can be

' Pardes8iA8t p. 625.

* Especially, if the accuser could plead a "probatio certa."
*Wigand, "Vehmgericht," pp. 387-391; Schildener, **Guta-Lag,*'

p. 170. As to the meaning of tne word **electi," Pardessus, p. 627.

* Stirnhoek, **De jure Sueonum vet." p. 105; Rosenvinge, "De usu
juram." II, p. 50.

^ Rosenvinge J I.e. II, p. 158. Here belong the "Kionsneflfninge" of
the "jutischen Lovbuch." Rosenvinge, "Grundriss der danischen
Rechtg." p. 244. As to "Polgeeid," "Deedeid," see Verhanderlingen der
Genooihschapf "pro exeolend. jure patrio," vol. V, p. 64.

^ PhiUipSy "Englische Reichs- und Rechtsgesehichte," II, p. 259. In
regard to restrictions in the statutes, Pardessus, p. 629.

' They were twelve assessors appointed by the chief bailiff, for the
decision of single cases, having to do with the graver kind of crimes, and
they rendered their verdict by majority vote. Falk, " Gerichtsver-
fahinen." p. 94.

'Also called "nominati." Thev passed judgment as to the lesser
offenses, but were appointed for the entire year. Rosenvinge^ **De usu
juram," I.e. II, p. 7 ; Rosenvinge,'* Grundriss," pp. 146-232. See also
Rogge, p. 242; Paulsen in the "Zeitschrift ftir ausland. Rechtswissen-
schaft, I, p. 484; Falkj p. 95. See also the article by Repp" Historical
treatise on trial by jury (London, 1832). See also !' Deutsche Viertel-
jahrschrift," 1844, I. Hft. p. 216.

* " Jutisch Lowbuch," II, c. 1 ; Rosenvinge, p. 231.

^ Rogge, p. 93; Weigand, "Vehmgericht," pp. 371, 385; Cropp,
" Heidelberger Jahrbucher," 1825, No. 41, p. 669.

§ 3] PRELIMINARY TOPICS [Chap. Ill

noticed the influence of the idea that the revelation of secret
crimes may be left to the direct intervention of the Deity/ who
would surely bring the truth to light and would not suffer the
innocent to perish.

In close relation with this idea there stood the conception of
the ordeal,^ in so far as those who by good fortune had endured
an ordeal could appeal to the protection of the gods, and to their
certain manifestation that they regarded him as innocent, and
stand acquitted of the accusation.^

There is no uniformity in the various folk laws in regard to the
relation of the compurgators to the ordeal and the judicial trial
by battle/ The earlier the ideas of the production of proof
by witnesses came to prevail and the conception was gained that
the testimony of two witnesses was required for a judgment,^
the more would the old institutions be done away with.

The theory of proof, in so far as one can thus designate the means
of conviction based on rules consisting in custom, was determined*
by : (a) the kinds of crime which were under consideration, —
since in the case of certain crimes,^ on the existence of certain
conditions, and certain testimony, there would be an immediate
judgment; (6) by the circumstance whether or not the act was
premeditated;® (c) by the trial by battle, — since, according to
many statutes, the proposal of battle by the accuser precluded the
accused from his defense by oath ; (d) by the reputation of the
accused, — since he who was of bad reputation had np claim to
the right to stand acquitted upon his oath.*

^ References in "TWorie des loix politiques," vol. VII, p. 16; Meyer ^
•'Esprit," vol. I, p. 311.

« Dreyer, " Abhandl." Ill, p. 1269 ; Maier, "Geschichte der Ordalien,"
(Jena 1795); Hof, "Von den OrdaUen" (Mainz 1784); Gruven, "Ob-
servat." IV; HaiLschild, p. 187; Schildener, "Guta-Lag," p. loO; Rogge,
p. 195; Rosenvinge, "Grundriss," p. 143; Wilda, in the "Hallische Ency-
cloi)adie," under the word "Grdahen." ; Pardessue^ p. 632 ; Sachaej p. 455.

' Hildenhrand, *'Piirgatorio," p. 16.

* In some countries, it appears that the accuser could defeat the use of
compurg:ators, if he immediately proposed that both he and his opponent
submit their cause to the doubtful outcome of trial battle, and only under
exceptional circumstances could he require that the accused undergo
an ordeal, e.g.^ by fire. Gaupp, " Recht der Thuringer," p. 316. Pardessus,
p. 632, that the method depended upon the proof which the accuser could
produce.

* **Th6orie des loix politiques," vol. IV, p. 200.

* Albrechi, "doctrinade probat. secund. jus. germ. med. aevi." (Regiom.
1825).

' E.g.y in case of rape.

* If the wrongdoer was not caught in the act, he had an advantage in
the matter of acquittal through the intervention of compurgators.

* As to the procedure against the individual who contumaciously re-
fused to appear, see Bluntschli^ I, p. 205; Cropp, "Beitrage,*' II, p. 388.

Pabt I

fflSTORY OF CRIMINAL PROCEDURE IN FRANCE

FROM THE 1200 s TO THE 1600 s

PabtI]

GENERAL FEATURES OF EVOLUTION

[§1

INTRODUCTORY ; > GENERAL FEATURES OF THE EVOLUTION

§ 1. The Three Sources of French
Criminal Procedure and its
Evolution.

§ 2. Double Tendency ; Safe-
guards of the Accused and
Protection of Society. The
Classic School and the Mod-
em School.

§ 3. Features of Contemporary
Procedure; Unity of Civil
and Criminal Justice.

§ 4. Same : Division of Official
Functions.

§ 5. Same : Division of Criminal
Jurisdictions and Authori-
ties corresponding to Di-
vision of Offenses.

§ 6. Same : Jurisdiction over All
Kinds of Persons and Of-
fenses.

§ I. The Three Sources of French Criminal Procedure and its
Evolution. — French criminal procedure, the broad features of
which we now propose to sketch, sends its roots deep through
the three successive strata, Roman, Germanic, and Canon law,
upon which all our juridical institutions are planted.

The first element in its history is the Germanic element. Down
to the 1200 s the procedure is very much more uniform than the
law. It is public, oral, severely formal, and rarely makes use of
the proof by oath-helpers or by battle. The ancient ordeals,
by boiling water, branding, cold water, in favor under the Mero-
vingians, soon fell into disuse. Such is the first phase. Under the
pressure, however, of various causes, the accusatory procedure of the
nations of the Germanic race becomes inquisitorial, written, and
secret, taking its inspiration from the two learned legislations of
Europe, the Roman law and the Canon law. An ordinance of
St. Louis (which is usually attributed to 1260, but which is probably
of earlier 'date) helps this movement by substituting, in the do-
mains of the crown, the procedure by inquest or jury (*' enquSte ")
for the proof by wager of battle. The king could not put " cous-
tumes ou ban " in the territory of his barons without their con-
sent. The seignorial jurisdictions also show themselves averse
to this substitution, and the nobles persist in demanding to be
tried according to the ancient rules. But the citizens (" bour-
geois ") and the peasants (" vilains ") readily enough accept

> [This introductory Chapter and Title I « §5 IV, III, and VI of Professor
Oabraud's "French Criminal Procedure." For this author and work, see
the Editorial Preface. — Ed.]

§ 1] FRANCE, FROM 1200 S TO 1600 S [Part I

these innovations, which proscribe the duel and replace the wager
of battle (" en champ clos ") by oral or written pleadings. The
municipal jurisdictions of the rural communes and the towns, and
all the jurisdictions of the south, eagerly adopt this procedure,
which revives very ancient traditions, going back probably to the
Gallo-Roman epoch.

The two procedures, accusatory and inquisitorial, so different
in origin and character, also remain in opposition during the latter
half of the 1200 s and the first part of the 1300 s. This is the
transitional period, during which the plastic force of custom is
acting. The evolution, begun in the 1200 s, is accomplished in
the 1500 s. The Ordinance of 1539, proclaimed by Francis I at
Villers-Cotterets, upon justice and the shortening of actions,
definitely fixes the rules of the inquisitorial procedure in France.
The Ordinance of 1670, which was the Code of Criminal Examina-
tion of the " Old Regime," merely systematized the method
already sanctioned, making it precise in its details and even ag-
gravating its severities.

From this time on, criminal procedure becomes crystallized for
nearly a century. But the new and critical spirit preceding the
Revolution has theoretically condemned this system as offering
no safeguard to the accused. The philosophers look to England ;
they admire her judicial as well as her political institutions. It
is the English criminal procedure, especially the jury, which the
Constituent Assembly will endeavor to acclimatize in France;
and it is that procedure which the Law of 16-29 September, 1791,
and the Code of Offenses and Punishments of the 3d Brumaire,
year IV, will successively organize.

But the same causes which, in the 1200 s and 1300 s, had brought
about the substitution of one system of procedure for the other,
operate anew; the need of reorganizing State authority is felt,
of strengthening the system of repression, weakened amidst the
troubles of the period, caused by civil and foreign wars. The Ordi-
nance of 1670 again becomes the ideal of many minds ; there is a
desire to put it once more in force. Then a compromise is effected,
and although the ancient procedure is not entirely revived in
the Laws of the Consulate and of the Empire', the best part of
the provisions of the Ordinance, and even some of its severities,
pass into the first part of the Code of Criminal Examination, the
second part retaining the accusatory procedure and the institution
of the jury. This Code of 1808 has become, for the whole of
Europe, a t>T)e on which many legislations are modeled. It there-

Part I] GENERAJi FEATUBES OF EVOLUTION [§ 2

fore typifies an essential phase, and is a landmark in the historical
evolution of the laws of procedure.

§ 2. Double Tendency ; Safeguards of the Accused ; Social Pro-
tection ; Classic and Modem Schools. — From that time a double
movement is apparent. There is a tendency to eliminate, by
means of revision, the excessive severities which French procedure
has inherited from the Ordinance of 1670, and to introduce into the
preliminary examination the safeguards which it lacked. There
is a desire to open the chambers of the examining judge, if not to
the public, at least to certain authorized persons; to allow the
presence of counsel during the examination ; to recognize in the
prisoner and his counsel, from this initial phase of the prosecution,
the right to challenge and criticise the measures taken to arrive at
the discovery of the truth. Protests against the secrecy of the
examination seem general, and rebellion sets in against this practice
of our old procedure, as dangerous for the judge as for the ac-
cused, which, as the English jurist Stephen expresses it, " poisons
justice at its source."

But, on the other hand, the part played in the trial by the
intervention of the jury, though in other times considered too
restricted, seems nowadays to be almost excessive. There is a
sincere demand for a justice less impressionistic ; more scientific.
To this ideal, it is thought, we might sacrifice that inveterate
respect which has everywhere existed until recent times for the
institution of the jury.^

There is, in this double movement, the expression of a ceaseless
strife between the two tendencies which in these days divide the
domain of the criminal sciences. The Classical School is above
all indi\ddualistic, demanding new safeguards in favor of the ac-
cused, a continual control over the criminal authorities, the i
diminution of arbitrariness, and the increase of liberty. The i
Modem School, which is above all collectivist, desires to strengthen
the " social defense," to deprive the prisoner of those safeguards }
which are summed up in the " presumption of innocence," to
substitute for a humanitarian procedure a scientific procedure, to '
transform the penal action into a clinical examination and the i
judges into expert specialists, who must have a very special educa- !
tion in matters of psychology, anthropology, and criminal sociology.^ I

» See Jean Cruppi, "La Cour d*assises de la Seine** (Revue des Deux-
Mondes, 1895, vol. IV, p. 39).

« Fern, "Sociologia criminale*' (4th ed.) 79-84, pp. 777-826; Garofalo,
"Criminologie,'* pp. 387-397. See, but in a somewhat different direction,
Cruppi, *'La Cour d*assises,'* p. 130 et aeq, and p. 281 et aeq.

-:)

§ 3] FRANCE, FROM 1200 S TO 1600 S [PabT I

At the time when we write, and notwithstanding the evident
progress of socialism and collectivism, it seems likely that the
tendency, in matters of criminal procedure, is no longer to arm the
social power in the strife against criminality, but much more
probably to protect the prisoner against the abuses of social power.
It is in this direction that the reforms, so numerous and so charac-
teristic, of which criminal procedure in France and abroad has been
the object, have been pointed within the past fifty years.

§ 3. Features of Contemporary Procedure ; Unity of Civil and
Criminal Justice. — The French system belongs to the mixed
type. The present judicial organization and procedure are gov-
erned by four fundamental ideas.

The unity of civil and criminal justice in France means that the
same tribunals take cognizance of both civil and criminal matters.
This unity has its expression, 1st, in the person of the keeper of
the seals, supreme head of both jurisdictions ; 2d, in the justice
of the peace (" juge de paix "), who has various civil functions,
and who, in criminal matters, is at once officer of judicial police
and police judge ; 3d, in the attorney-general (" procureur g6n6ral ")
and the " procureur de la R^publique," who occupy the position
of public prosecutors in both jurisdictions. This imity is made
effective, 4th, in the Tribunal of First Instance, which furnishes
the examining magistrate (" juge d'instruction "), and forms
the correctional tribunal of the first stage ; 5th, in the Court of
Appeal, whose two branches, the correctional branch and the
arraignment branch, act in criminal matters, and whose members
take part in the trial of crimes, by presiding and by directing the
jury.

This unity of civil and criminal justice imports merely an or^
ganic unity , and not a unity of procedure. The separation of civil
and criminal procedure is an essential principle of the French
legislation. Each of these procedures has its special code. This
work being devoted to the criminal procedure, we shall study the
details of the judicial organization only as they relate to that pro-
cedure. We shall take for granted a knowledge of the French
judicial organization.^

The unity of civil and criminal justice is broken by the institu-
tion of the jury, which calls upon private citizens to take part in

* Reference may be made, on this point, to M. Garsonnefs "Traits
th^orique et pratique de procedure" (2d ed., 1898-1904, 8 vols. 8**, re-
vised and corrected by Charles Ciygar-Bru; 3d ed., 1912). Vol. I, down
to page 473, is devoted to judicial organization.

PaBT I] GENERAL FEATURES OF EVOLUTION [§ 4

the trial of crimes. In civil trials there is no jury,* except in
matters concerning expropriations for public purposes, where
citizens are summoned, in case of disagreement, to fixtheindenmity
due to the person deprived of his property.

§ 4. Diyiflion of Official Functions. — This organization is
governed by the principle of the division of labor. The operations
of criminal justice necessitate the organization of separate authori-
ties to exercise the functions of arrest^ examination, trial, and
execution. And the law ordains that, by reason of incompatibility,
the agents who exercise one of these functions cannot, unless in
exceptional cases, encroach upon other functions. The authori-
ties who unite in administering the criminal law are practically
four, 1st, the officers of judicial police, charged with investigation,
and examination preliminary to the charge ; 2d, courts of exami-
nation, who, upon complaint made, decide on the arraignment or
indictment of the accused and on the propriety of arrest and trial ;
3d, the trial court, who decide on the issue, that is, on the guilt
of prisoners and those accused, and pronounce the punishments ;
4th, the officers of the public prosecution, whose duty is to invoke,
by filing a charge or requisition, the action of these different
authorities and also to see to the execution of their decisions.

The functions of the judicial police and of the public prosecutor,
which consist chiefly in taking active measures, are performed by
indiinduals, placed under the orders and supervision of a hierarchy
of superiors. The functions of judging, which consist in deliberat-
ing and trying, are usually confided to collective bodies, whose
decisions may be modified or quashed, but who do not have to
take instructions from any one as to their manner of carrying out
their duty. The oflBcers of judicial police and of public prosecution
are dependent on the executive, which can remove or dismiss them
" ad nutum." The judges, on the contrary, are, in general, irre-
movable.

The official criminal procedure has three successive stages : it is
begun by the filing of a charge; it is continued by an examination;
and it is ended by a judgment.

(1) Before the criminal law can be applied, the perpetration of
the wrong must be discovered. The authorities must therefore

^ In the sitting of 30th April, 1790, after long debates and at the in-
stance of Thouret and Tronchet, the Constituent Assembly decided against
the establishment of the civil jury desired by Duport. Since then, the
question has been taken up from a scientific point of view; but from a
practical point of view it may be regarded as abandoned. See Garaonnet,
op. cU. vol. I, § 3, pp. 83-88.

§ 4] FBANCE; FROM 1200 S TO 1600 S [Part I

investigate into the commission of crimes and misdemeanors, secure,
if necessaty, the accused persons, and hand them over to the courts.
The officers having this duty are the judicial police. This body
is distinct from the administrative police, which has for its object
the maintenance of order and especially the prevention of crime.
The judicial police forms part of the judicial system. It investi-
gates the offenses which the administrative police has not been
able to prevent. It paves the way for and facilitates the action of
the tribunals of repression. Its intervention precedes the first
stage of the public prosecution. The law fias organized the
judicial police, but it has abstained from placing upon its action
formalities of procedure which might cramp it. In this respect
the preliminary'^ and official inquiry, conducted by the police, must
be distinguished from the magisterial examination (" instruction ")
properly so called, belonging to the judicial function. But as the
purpose of the two institutions and the working of the two mechan-
isms are identical, we find, in fact, the police doing the work of
examination and the examining judge doing police work.

(2) The public prosecution is intrusted, in its entirety, to officers
who fulfil, along with Various duties, the functions of the public pros-
ecutor. They are charged with doing all the acts necessary to
secure the inffiction of a punishment upon the perpetrator of an
offense. The victim of the offense, in whom is recognized the
exclusive right to demand civil reparation for the injury suffered,
has access, to obtain damages, to criminal tribunals either by way
of intervention or of suit. But the civil action can only be tried,
by these courts, accessorily to the criminal charge. This is the
fundamental rule which limits the right of the injured party.

(3) The case, however, is not always brought before the crimi-
nal courts without other preliminary examination than that made
officially by the agents of the judicial police. On a charge of
crime invariably, and of misdemeanors optionally, a magisterial
examination preliminary to the formal charge is always had. This
duty is performed by certain special judicial officers called magis-
trates of examination ("instruction") who either authorize the
charge or quash it. This examination is in the hands of the
State's attorney and the examining magistrate. The former has
the right to investigate and prosecute crimes and misdemeanors
committed in his district ; but he has no power, in ordinary cases,
to do anything towards collecting the evidence, or ordering the
arrest and detention of accused persons. These powers belong
to the examining magistrate. The latter, however, has not the

Part I] QENERAL featubes of evolution [§ 4

right to initiate the charge of his own accord, that is to say, to
begin the examination without being requested by the State's
attorney. Still, this rule of the separation between the functions
of examination and the functions of prosecution has a notable
exception in cases of flagrant crimes or misdemeanors, or other
cases of that nature. In these the State's attorney may himself
begin the examination without waiting for the judge, and the
latter may open it without being first requested by the State's
attorney.

The preliminary examination had, until recently, three features
derived from the inquisitorial procedure ; it was secret, and written,
and not confrontaiive. One of these characteristics, and the
most open to criticism, the last-mentioned, has been very much
modified by the Law of 8th December, 1897, especially in the stage
of the preliminary examination which takes place before the
examining judge in ordinary cases. Two important reforms have
been brought about which have entirely changed the aspect of
the procedure of examination. The first is the duty of the judge,
at his first interview with the accused, to warn him of his right to
make no statement except in presence of his counsel. The second
is the presence and aid of counsel in the interrogatories and con-
frontations, to whom must be communicated the chief documents
of the charge and who may have access to the evidence in the
case.

The preliminary examination is not meant to serve as a founda-
tion for the verdict of the judge who Tjrill decide as to the guilt of
the accused. It merely allows the examining judge to determine
whether there is ground for a formal charge, and, in that case,
to decide upon the jurisdiction. The accused is not, in fact, im-
mediately brought before the court which is to acquit if he is inno-
cent and to condemn if he is guilty. The welfare of society and the
interest of the accused demand that the appearance of the latter
in court shall not take place until the accusation rests upon suffi-
cient grounds. The law confers on certain authorities, interme-
diate between the officers charged with the examination and those
charged with the trial, the investigation of the charges and the
determination of the jurisdiction. These authorities, performing
the functions of magistrates of examination, are the examining
judge (above-mentioned) as a first step, and the court of arraign-
ments as the second. This procedure of arraignments, which is
obligatory in felonies, involves a measure of delay, which is prob-
ably not compensated for by the safeguards which it gives the ac-

§ 5] FRANCE, FROM 1200 S TO 16008 [Pabt I

cused. Nevertheless, it has passed into a great number of codes ;
and it is only in the last third of the 1800 s that the obligatory
and absolute principle of the control of the accusation by the judi-
cial power has been breached and abandoned by the Austrian code
of procedure in 1873 and the legislations which are inspired by it.

(4) When the prosecution has arrived in the trial court proper,
the procedure changes character and borrows its essential features
from the accusatory system. The three principles of confrontation,
orality, and publicity govern the proceedings. The memoranda
of the police and the record (*' dossier ") of the preliminary exami-
nation cannot be used as evidence (i.e., can be used only in a sub-
sidiary way), for it is upon the oral^ confrontative, and public
testimony that the judge forms his " sheer belief " (" conviction
intime ")> the only proper basis of his verdict.

§ 5. Division of Criminal Jurisdictions. — The division of the
criminal jurisdictions and authorities corresponds to the division
of offenses into three groups, " crimes," " delicts," and " contra-
ventions" (C. p. Art. 1). There are three categories of courts
for the trial of criminal prosecutions: the assize courts, which
try crimes; the correctional tribunals, for delicts; the police
tribunals, contraventions. Each of these tribunals is invested
with full judicial power for the repression of the offenses which are
allotted to it; each exercises, with reference to these offenses,
a complete ordinary jurisdiction. The other three classes of
officers of repression perform their duties before these three
classes of tribunals — the- officers of charge, of examination, and
of execution.

§ 6. Jurisdiction over all Kinds of Persons and Offenses. — These
oflScers act in regard to all kinds of persons and all kinds of offenses.
There are not two systems of justice : one, the common law ; the
other, privileged exceptions. One of the most odious institutions of
the Old R6gime, the special tribunals, for a short time resuscitated
by the law of 16 Pluviose, year IX, by the Code of Criminal Ex-
amination of 1808, and by the institution of the provosts' courts
("cours prSvdtal") of 1815, exist only as a historic memory'' : article
54 of the Charter of 1830 made their return impossible. No doubt
soldiers and navy-seamen, so long as they are subject to the duties
of their station, hold an exceptional position, and their offenses
belong to the jurisdiction of the military tribunals; but this is,
in a way, the common law of the army, through which every citi-
zen passes nowadays. There is even a question of the abolition
of these exceptional jurisdictions in time of peace.

Title I] CRIMINAL JURISDICTIONS IN ANCIENT FRANCE

[§1

Title I

THE CRIMINAL JURISDICTIONS IN ANCIENT

FRANCE

{ 1. Phases of the Judicial Organ-
ization of Ancient France.
Union of Civil and Penal
Justice.

§ 2. Division of Courts of Justice.
Secular Jurisdictions. Ec-
clesiastical Jurisdictions.

§ 3. Development of the Royal
Jurisdictions.

§ 1. Phases of Judicial Organization of Ancient France. Union
of Civil and Penal Justice. — In ancient France, the organization
of penal jurisdictions has passed through three successive stages ;
but, in every epoch, one feature in common is notable, namely,
the imion of civil and criminal justice, both administered by the
same tribunals. This unity corresponds at first with the unity
of the civil and criminal procedures ; then, when the jurisdictions
become differentiated, this results from the substitution of pro-
fessional judges for popular judges, and from the conception of a
single justice, emanating from the same source and administered
in the name of the king.

In the barbarian era, the nations of Germanic race preserve their
popular organization. Justice is administered by the chief (" rex,
princeps, dux, comes, grafio," etc.) with the cooperation of the
free men of the tribe (" boni homines, rachimburgi, pagenses,''
etc.) in temporary and periodical assemblies (" mallum " or
" placitum "). The chief summons the assizes, presides over
the assembly of the men who judge, receives the verdict
without taking part in rendering it, and causes it to be
executed. Thus, according to a rule which appears to have its
foundation in customs prior to the invasion of Roman Gaul, it is
the men who pronounce the judgment, and not the chief, A few
" rachimbourgs " may compose the tribunal. Nevertheless, ple-
nary assembUes are not uncommon.^

* I need not go into the sources. They will be found analyzed, with
ability and minute care, in "THistoire des institutions politiques et ad-
ministratives de la France," by Paid Viollet (1890, 8**, Larosse and For-
oel) vol. I, pp. 307-312.

§ 2] FRANCE, FROM 1200 S TO 1600 S [Part I

In the feudal period and during the Middle Ages, justice is, in
a measure, diluted ; it is everywhere, — in the family, the school,
the king's palace, the municipalities, and aroimd the feudal chief*
tain. From this results a two-sided fact, which sums up, at this
epoch, the history of the judicial organization. This is the in-
cessant conflicts of jurisdiction, " the daily bread of business," ^
which arise between all these kinds of justice. This struggle
between the tribunals for the extension of their jurisdiction is a
struggle in which the royal justices will end by absorbing all the
others, in the same way as royalty will end by absorbing the
feudal system. The chief justices are four, — the royal, seigniorial,
municipal, and ecclesiastical justices. The great division which
governs this organization is that of the secular jurisdictions and
the ecclesiastical jurisdictions.

§ 2. Division of Courts of Justice. Secular and Ecclesiastical
Jurisdictions. — 1. Among the secular jurisdictions there are
chiefly three kinds, the seigniorial, the royal, and the municipal
courts.

(1) The right to administer justice was looked upon, at a certain
period of history, as a patrimonial right. That is one of the char-
acteristic features of the feudal system. The lord had thus juris-
diction over the fiefs and manors of his domain, in virtue of his
supreme ownership of the land. The numerous seigniorial justices
were originally divided into high and low justices (" alta, magna,
major justitia"; then called "justitia sanguinis, sanguis"; in
Normandy, " justitiaensis, placitum spatse ; minor, bassa justitia") ;
later will appear an intermediate grade, the middle justice (" media
justitia "). This classification, which appears in the second part
of the Middle Ages, had especial importance from the repressive
point of view. The high justice in reality took cognizance of the
more serious crimes, — murder, rape or violation, " avortes " or
"encis" (that is, blows, etc., upon a pregnant woman causing abor-
tion), and arson.^ Unpremeditated homicide (" occisio ") and the
mutilation of a limb were ranked by the Parlement among the
cases of high justice. In those provinces which did not recognize
the middle justice, the low justice had, among its attributes, all
that was not within the jurisdiction of the high justice. It has
always been rather diflScult to state precisely the cases of middle
justice, when that is distinct from the high and low justices.

^ Viollet, op. ciU t. 2, p. 453.

* See the enumeration of these cases of high justice in J. Desmares,
" Decisions," 295. Compare Becquet, ** Traits des droits de justice," chap.
2, in !'(Euvres," Geneva 1625, vol. Ill, pp. 3-7.

TlTLS I] CRIMINAL JURISDICTIONS IN ANCIENT FRANCE [§ 2

Originally exercised by the lord himself, assisted, when a vassal
was concerned, by the peers of the latter, the right to administer
justice was delegated to officers, who took, according to locality,
the names of " imllis " or of " pr6v6ts.'* ^ This evolution answered
a double purpose ; it diminished the number of judges, and it made
J them a select body, giving them the character of officers.

(2) At the beginning of the feudal system, the king only exer-
cised his jurisdiction over the fiefs and manors of his own domain :
and there, he administered justice by the same authority and under
the same conditions as a lord justiciar. Like the feudal chieftain,
he put in his place, to fill this office, officers whom he invested with
an authority at first temporary, afterwards permanent. Origi-
nally these were the prowsts (" pr6v6ts ") ; later, perhaps because
of a need for concentration and surveillance, superior officers were
created ; they took the name of bailiffs (" baillis ") in the north
and the centre, and of seneschals (" s6n6chaux ") in the south of
France.^ The duty of these functionaries was to hold solemn
assizes in the towns of their jurisdiction. They received all com-
plaints against the royal officers and reversed their judgments;
later still, the more serious offenses, those which were called royal
causes, were reserved for them.

Finally, in the last phase of the royal jurisdictions, was the
" Parlement," the outcome of two institutions, distinct in law, but
blended in fact : the King's Court and the Court of Peers. The
" Parlement," held at first at fixed periods and by sessions, became
gradually a sedentary body. For a long time, royalty had only
one " Parlement," that of Paris ; the provincial " Parlements,"
all of later creation, appeared successively from the 1300 s to the
1700s.

(3) The citizens of the communal and aldermanic towns, when
prosecuted in criminal matters, could only be tried by their munici-
pal courts, that is to say, by their peers. We know little of these
courts.' On the one hand, the customs and books of customs
furnished only meagre information as to these jurisdictions, which
were little in sympathy with the royal and manorial officers or
the jurisconsults. On the other hand, although the organization
of these courts was apparently drawn from a uniform type, their

* The composition of courts of justice, however, varied according to the
provinces and the times. See Viollet, op. cit, vol. II, pp. 461-465.

* See on royal bailiffs BeugnoCs Preface in vol. I, to the edition of ** Les
Coutumes de Beauvoisis" by PhiUipipe de Beaumanoir (Paris 1842).

•See George Testand, **Des juridictions munici pales en iSrance, des
odgines jusqu'^ I'ordonnance de Moulins '' 1566 (8®, 1904, Paris).

§ 2] FRANCE, FROM 1200 S TO 1600 S [Pabt I

jurisdiction varied from one commune to another. The radical fault
of these jurisdictions, in the majority of the towns where they
acted, was the union in the same hands of the administrative and
judicial power. At Toulouse, for example, — and the organiza-
tion of that town was by far the most usual, — the consuls or " capi-
touls," who had, in great measure, the government of the town,
formed, after 1283, a civil and criminal court. This court was
presided over by the " viguier," representing the count ; but this
presidency, purely honorary, did not give even a deliberative voice
to those w^ho filled the office.

§ 2. The ecclesiastical jurisdictions, the courts Christian, as they
were then called, had a double source of jurisdiction, personal
and real. The privilege of clergy, which comprehended all grades
of the regular clergy and all those of the secular clergy down to
the lay clerks, gave to those whose right it was to invoke it the
privilege to be tried by these tribunals. To this jurisdiction
belonged also the cognizance of certain crimes, committed by any
person ; for example, those of heresy, sorcery, adultery, and usury.
If, however, these jurisdictions tried all these cases, they did not
always pronounce the sentence. It was a principle of the Canon
law that the Church could not shed blood, and consequently could
not inflict capital punishment. In cases where the crime of which
they claimed the cognizance entailed the last expiation, the Church
delivered over the culprit to the secular arm, which passed the
sentence and caused it to be executed.

The judge was usually the bishop. Like the lords, and probably
before them, he delegated his right, first to the archdeacon, then,
from the 1200 s, to a special dignitary called the " official The
ecclesiastical jurisdictions consequently took the name of " officia-
lit6s." ^ The learned hierarchy of the Church permitted the organi-
zation of a series of appeals, from the official to the archbishop,
from the latter to the primate, then, finally, to the Pope, as head
and supreme judge of Christendom.

§ 3. Development of the Royal Jurisdictions. — These juris-
dictions were all in existence doTVTi to the end of the 1700 s. But,
while the ecclesiastical, seignorial, and municipal jurisdictions
gradually lose their importance, the royal jurisdictions flourish,
develop, and end by almost absorbing the others. How is this
transformation accomplished? \Vhat is the position of the sev-
eral jurisdictions in the 1600 s and 1700 s?

' See the masterly work of Fournier, " Les officialit^s au moyen &ge/*
1880, now unfortunately out of print.

Title I] CRIMINAL JURISDICTIONS IN ANCIENT FRANCE [§ 3

1. The royal jurisdictions developed, like royalty itself, because
of usurpations of which the legists^ made themselves the active
and persevering instruments. Setting out from the idea that the
king represents the public welfare, as he is the " keeper of the
kingdom," ^ the oflScers and jurisconsults of the crown argue from
this that the king has a preeminent right of justice throughout
the w^hole kingdom. They were thus led to contrive various
means gradually to lessen the jurisdiction of the secular and eccle-
siastical courts for the benefit of the roval courts.

The first of these means was the institution of so-called royal
causes. In the 1200 s the causes of which the king claimed cogni-
zance in his barons' territories because thev '* concerned " him
are already very numerous. A jurisconsult of the end of the 1300 s
devoted twelve large pages to their enumeration.^ The list of
royal causes is always being augmented and will never close.
The Roman law furnished to the legists their best weapons in
this strife ; for this right, which they construed for the benefit of
royalty, is typical of the imperial Roman law. Very soon they
began to lay down, as a principle of public law, that all justice
emanates from the king. From the end of the 1200 s they affirmed
•that all the secular jurisdictions are held from the king in fee or
secondary fee.* His barons received from him the seisin of the
rights of justice, but the king held them of no one.

The practical consequence of this theory was the introduction
of the appeal. The feudal system had never entertained the idea
of submitting anew, to a superior judge, the Htigation already de-
cided by the first judge. It did not recognize inferior and superior
judges. All the feudal courts, within the limits of their cogni-
zance, were superior courts (of last resort). There were, in
the feudal procedure, but two ways of recourse : the appeal for
error in law, in which the litigant complained of a denial of jus-
tice ; and the appeal from false sentence, a kind of barbarian appeal,
consisting in wager of battle by the litigant against the peers

^ Or lawyers trained in the Roman law, then at the height of its influ-
ence under the Renascence.

* Beaumanoir, XXXIV, 41. See, however, the formula in the 1300 s
in the ** Grand Coutumier," Book IV, ch. V, edited by Charondas le Caron,
1598, p. 323. "Generally speaking, there is but one justice which ema-
nates from God, of which the king has the control in this kingdom.'*

*Bouleiller, II, 1. Compare Ord. 8th October, 1371 (ord. V, 428)
reproduced in the "Grand Coutumier de France," Book I, ch. Ill, p. 90
€t seq.

* See 8upra^ note, and Beaumanoir^ XI, 12, Book 1, p. 163 of the Bevr-
gnot edition, "For every secular jurisdiction in the kingdom is held of the
king in fee or secondary fee."

§3] FRANCE, FROM 12008 TO 1600 S [Part I

who sentenced him. The appeal, in our sense of the word, is in
time admitted from the seigniorial to the royal courts, when judg-
ment had been rendered against the common custom, or when
the vassals or undervassals did not do as they should.^

Finally, a right of prosecution was recognized in the king which
his officers made use of to a great extent : that is to say, the king
could summon before his courts all persons in regard to any mat-
ters, except those claiming the court or jurisdiction of their lord.
But if the party summoned has tacitly accepted the royal justice
either by acknowledging the rightfulness of the demand or by deny-
ing it, he can no longer apply to another court. The litigation
must be finished where it is begun.

The jurisconsults of the crown in another way employed vari-
ous means to restrict the jurisdiction of the ecclesiastical tribunals.
Under the vague and elastic idea of the crime of treason or sedi-
tion (" Ifise-majeste ") they caused to be included among the
" royal causes " various offenses formerly brought before the
courts Christian ; but, especially, they weakened, by the creation
of causes called " privileged," the import of the privilege of clergy.
In very serious cases which deserved a punishment less severe
than the canonical punishments, the clerks were tried by the royal
judges, unless the latter were forced to give them up to the Church.
The list of these privileged causes, like that of the royal causes,
always continued to grow.*

The municipal jurisdictions, the criminal at least, usually sur-
vived the supremacy of the communal towns. They offered
few dangers, since the royal power had indirectly laid hands upon
the nomination of the municipal officers.

2. In thus extending the sphere of their action, the royal juris-
dictions completed their organization : on one side, the old tribunals
are seen to become modified and developed ; on the other, tri-
bunals of exception to appear.

(a) Down to the last days of the old monarchy, the provosts con-
stituted the usual judges of the first stage ; the bailiffs and senes-
chals, originally itinerant, subsequently become sedentary, al-
ways constituted the second stage of the royal jurisdictions.
The bailiffs, high officers of the crown, delegated their powers to
inferior officers who were called lieutenants of bailiwick. To the
criminal lieutenant fell the trial of criminal causes ; he became the
judge in criminal matters for all the cases transferred because of

* Beaumanoir, XI, 2, 3.

2 See Muyart de Vouglana, "Inst, crim." 3d part, p. 34 e( aeq,

Title I] CRIMINAL jurisdictions in ancient FRANCE [§ 3

their gravity from the provosts' jurisdiction. At first he tried
alone; later, he was assisted by assessors, who took the title of
counsellors. But it was always he who made the criminal exam-
ination, and from this point of view he was, under the old system,
an essential part of the machinery of repression.

In the reign of Henry II there were created seats of a spe-
cial importance called presidials ("pr&idiaux"). By an edict of
November, 1551, that prince ordained that, in the chief bailiwicks
and seneschals' jurisdictions there should be a presidial, composed
of at least nine magistrates, including the civil and criminal
lieutenants, general and particular. These tribunals, so far as
criminal, were not distinguished from other bailiwicks except
that they, could take cognizance of " pr6v6tal " cases.

In the Parlement of Paris, the personnel of which was always
growing, a special branch called the Tournelle was established to
try criminal cases. The ordinance of 28th October, 1446 (Arts.
10 and 11), is the first which mentions it as distinct from the other
branches.* It is composed of secular counsellors, chosen from the
Grand Chambre and sitting in the Uttle tower of St. Louis, la
Tournelle, from which it takes its name. The Grand Chambre
itself pronounces the judgments prepared by these counsellors.
In 1515, Francis I constituted this group of judges a special
branch. But its composition never was autonomous, — in this
sense, at least, that, by a rule of rotation, the counsellors passed
from a civil to a criminal branch, so that even with this organiza-
tion, the unity of civil and penal justice was always the dominating
principle.

The provincial Parlements came into existence one after the
other with the development of the political power of royalty and
the territorial extensions caused thereby. Several of these Parle-
ments did in fact no more than continue the old supreme courts
of the large fiefs united to the crown.^

The Parlement of Paris, throughout its successive transforma-
tions, remained, up till recent times, the Court of Peers. All the
peers of France had the right to sit there, and they could only be
tried by the Parlement.

Besides their ordinary functions, the Parlement of Paris and
certain other provincial parliaments, those of Toulouse, Rouen,

* Pardessus, "Essai sur rorganisation judiciaire," p. 163.

* The Exchequer of Normandy, become "Parlement," had, in 1519, a
criminal Chamber, Tournelle, in imitation of Paris. In 1491 a criminal
Chamber or Tournelle was installed at Toulouse, !*so that criminal justice
may be administered as at Paris.'!

§ 3] FRANCE, FROM 1200 S TO 1600 S [Part I

and Bordeaux, took part in the administration of justice by
Great Days, a kind of solemn and temporary assizes, held, in a
province, by commissaries chosen by the king. The Great Days
always had as their object the repression of serious and persistent
general disorders, and of exactions made by the local authorities.

(6) Besides ordinary jurisdictions, tribunals of exception were
created. They were of two kinds : 1st, some had jurisdiction of
criminal causes only incidentally to the matters w^hich consti-
tuted the chief object of their establishment ; such were the pro-
vost of the Mint (" Hotel des Monnaies '0, the ** Cour des
Monnaies/' and the Admiralty judges; 2d, others had a chief
criminal jurisdiction; such were the provost marshals and the
military judges.

Title II, Ch. I]

FEUDAL PROCEDURE

[§2

Title II
THE PROCEDURE

Chapter I^

THE ACCUSATORY PROCEDURE OF THE FEUDAL COURTS

§ 1. Introductory.

§ 2. The Accusation.

I 3. The Theory of Proof.

§ 4. Capture in the Act.

§ 5. Arrest on Suspicion.

I 6. Inquest by the Countrjr.

§ 7. Detention pending Trial and

Bail.
§ 8. Procedure by Contumacy.

§ 1. Introductory. — The forms of civil and of criminal procedure
in the feudal courts were identical. This is a feature generally
characteristic of primitive systems of law; and the feudal cus-
tomary' law had borrowed it from the law of the Prankish epoch.
The criminal law itself had doubtless undergone many changes
since the Prankish epoch. The system of pecuniary composi-
tions, for example, had for the most part disappeared; offenses
were punished, according to their gravity, either with very severe
corporal punishment or with fines by which the baronial courts
profited. But the criminal procedure had remained accusatory
in the strictest sense of the word.

§ 2. The Accusation. — The action belonged to the injured
party alone, or if he was dead, to his kindred. This is a principle
as to which the contemporary sources are in unanimous agreement :
" It is not lawful for any one to bring an accusation except for
himself, or for his kindred, or for his liege lord." ^ " No one is
heard if he be not connected with the deceased by blood relation-
ship, or if she be not his wedded wife." ^ " The next of kin may
prosecute for murder or homicide, and if the next of kin be a minor
or aged, the nearest of kin after him, or other relative on

* [This Chapter I and the entire remainder of the book (except Part IV
and the Appendix) - Part I, Title II, and Parts II and III of Professor
Esmein's "History of Criminal Procedure." For this author and work,
see the Editorial Preface. — Ed.]

* Beaumanoir, LXIII, I, "Trfis-ancienne coutume de Bretagne," oh.
96 (Bourdot de Richebourg).

» "Livre de Jostioe et de Plet," XIX, 3, § 1, 2.

I 2] FRANCE, FROM 1200 S TO 1600 s [Part I

whom the kindred shall agree, may do so. And if peace
be made, a minor may recommence the suit on coming of
age. But if the proceedings have been brought and completed,
no other proceedings can be brought or commenced." ^ Jean
d'Ibelin takes great pains to enumerate, by way of limitation,
those who may bring an accusation on account of murder.^ And
there can be no criminal action in the absence of an accuser. The
criminal action being, therefore, merely a contest between two
private parties, and only distinguished from the civil action by cer-
tain difTerences in detail due to the different nature of the circum-
stances involved, it is evident that it was imnecessary to create
for it a special procedure.

The procedure was public, oral, and formal. The hearing
was usually held in the open air, at the gate of the castle or at the
public meeting-place of the town. The parties had to appear on
the day fixed in the summons (" semonce "), unless they could
invoke some one of the numerous excuses recognized by the feudal
procedure. They could not be represented ; the impossibility of
representation in a court of justice was, according to ancient prin-
ciples, more rigorously maintained in criminal than in civil affairs.

The accuser made his complaint orally without omitting any
necessary words or making any mistake ("faute")> which would
have permitted his adversary to have the complaint declared
null.* The accused was obliged to answer on the spot ; silence on

* "Grand coutumier de Normandie," ch. LXX; the following extract
from the text permits the man to pursue for his master : "If any stranger
(i.e., in blood) make an accusation of homicide in this form : ' I complain
of R. who has feloniously assaulted and killed Q. my lord in my presence :
and while I was defending him he shed this blood and caused this wound.'
Then he should show the olood and the wound to the judge in presence of
knights who can bear witness to it. Should the other offer to defend him-
self, battle should be waged, as aforesaid. In this way murder and homi-
cide can be sued by a stranger (in blood)." — "Summa de Legibus " (Tar-
dif edition), c. LXIX. The idea of private vengeance is apparently always
uppermost.

*Chap. LXXX et seq. Although Jean d^Ibelin admits spiritual as well as
carnal relatives and even other persons (on foreign soil the bonds thus
somewhat relaxed tighten again) he none the less upholds the principle
according to which the pursuit belongs to interested parties alone.

• See fully on this formal aspect of the old procedure M, Brunner's
noteworthy study, cited above: "Wort und Form in altfranzosischen
Process." Modem writers, moreover, are not alone in noticing and
commentine: upon the matter: "Fabrefort . . . pleading a cause con-
cerning a duel, and having proposed for Armand de Montaign against
Emery de Diu-efort that he should prove his fact by his body on the battle-
field, without expressly saying that the proof should be made by the combat
of his party, was in danger of being drawn into the combat himself, and
was ridiculed by the assembled company, so formal was then the procedure
in such causes." LoyseU "Pasquier, ou dialogue des avocats," edit.
Dupin, Paris 1844, p. 40.

•

TiTLB II, Ch. I] FEUDAL PROCEDURE [§ 3

his part would have been equivalent to a confession, and in primi-
tive systems of law a confession is the best proof.^ The defense
could only consist of a denial exactly meeting the complaint in
each particular, refuting it word for word, " de verbo ad verbum " ;
and this requirement was preserved for a long time, except in
civil matters, where at an early date a general answer " en gros "
was permit^ed.^

§ 3. The Theory of Proof. — The proofs were the same as in
ci^'il matters, and were derived from the usages of the Prankish
epoch, feudalism merely giving the preference to those which
best suited its own circumstances and allowing the others gradu-
aUy to fall into desuetude.

But although the exculpation by the oath-helpers became rare,
the exculpation by the oath of the defendant alone continued to
find niunerous applications, both in civil cases and in those for
minor offenses. The latter mode of exculpation is the " deraisne "
(" disraisina ") of the old Norman customary law.' Beaumanoir
calls it " Le passer par loi," ^ and the " Trfes-ancienne coutume de
Bretagne " contains a very curious application of it criminally.^

In the 12(X)s the ordeals (the " purgatio vulgaris " of the Canon
law) are rarely any longer in practice ; they were condemned by

> Beaumanoir, speaking of the confession, says, *'Thisproof is certainly
the best and clearest, and the least exi>ensive of all/' XxXIX, 2 (Salmon,
No. 1146). As to the necessity for an immediate answer, see Beaumanoir,
VII, 10; XXX, 94 (Sahnon, Nos. 246, 915) ; "Livre de J. et de P." II,
14, § 6 ; Jean d'lhelin, ch. I/XI.

» "Livre de Jostioe et de Plet," XIX, 2, § 1 ; L. Delisle, **Echiquier de
Normandie," No. 113; ** Grand coutumier de Normandie," ch. LVIII
et sea.; Jean d^Ibelin, chs. XCI, XCVII, C, CIV; Brunner, op. cit.

?. 706 el seq, CJ. BriUon, Book 1, ch. XXII, "oonceminK Appeals," No.
: '* And as to the defense, the appellee may defend himself in this manner.
' Peter who is here def endeth all tne felonies, and all the treasons and con-
trivances, and compassings of mischief against the person' of such an one,
or such an one, according as he is charged, word by word. And we will
that in these appeals, it shall be more necessary for the appellor to set
forth the words orderly without any omission, that his appeal mav stand,
than for the defendant in his defense ; and in every felony we aUow the
defendant to defend the words of the felony generally, without treating
him as undefended.'* Britton (F. M. Nichols edition, 1865), vol. I, pp.
101, 102.

3 "Summa" (Tardif edition), c. CXXIIl.

* Ch. XXX, 86 (Salmon, No. 912).

» (Planiol edition), c. 102, p. 145 : *'If he is not taken in the act or in
pursuit, or if the fact is not notorious, as said, and for the reason that he
has Uved in the country a year and is of good repute as one who goes to
monastery and market and he is not seized or arrested because of crime,
he can say in case the judge wishes to proceed against him that he is not
bound to wait for testimony by the custom in a case in which he could be
put to death and that he prove himself to be of good repute. In the event
that it cannot be judicially proved against him to a certainty, he shall take
his vassal's oath that he did not do the deed [and this done] the custom
decrees that he go freed and acquitted."

§ 3] FRANCE, FROM 1200 8 TO 1600 S [Pabt I

the Lateran Council of 1215. But before that time they played
an important part in Normandy, as is proved by the fact that they
were widely practised in England/ into which country they had
been carried from Normandy. According to the " Sunmia de
legibus " ^ they were there resorted to when a woman was accused,
and also when a man was accused by a woman or incriminated by
" the law." These last words doubtless point to the practice
which we shall later on note in our own common law as that ac-
cording to which the person on whom the "infamia'' was laid
because of an offense committed, had the burden of exculpating
himself, " sese purgare." We find a passage in the "Assises de
Jerusalem," however, which sanctions the ordeal only when it is
accepted voluntarily and without restraint by the party under
suspicion.

In the " Cour des Bourgeois," chapter CCLXI treats " dou
juice portare " : ' " Be it known that neither the bailiffs nor the
sworn men shall cause any man or any woman either to bear law
forcibly. But if the man or the woman be accused of any crime
imputed to him or her, and he or she voluntarily offer to bear
law, reason commands and judges that he or she cannot retract
the offer, but is held to bear (law) in spite of himself if he who

» Thayer, "A Preliminary Treatise on Evidence at Common Law,'* pp.
7-16; Holdsworth, **A History of English Law," I, p. 142; Pollock and
Maiiland, "History of English Law," II, pp. 596, 597.

* C. CXXVI, No. 2: •'Olim mulieres causis criminalibus insecute,
cum non haberent qui eas defenderit jussio (judicio) se purgabat et ho-
mines per aquem vel jussium cum justicia vel mulieres in criminalibus eos
impetrabant ; et quoniam hujusmodi ab ecclesia catolica sunt abscissa
inquisitione frequenter utimur."

See Brunnery op. cit. p. 719 et seq. The most remarkable use of the ex-
culpatory oath is the "deresne" of the old Norman custom; "Summa/*
II, c. Xvlll, § 2. *'Est enim disresina super injuria a querulo exposita
coram justiciario purgatio per sacramentum querelati et coadjutorum
suorum in curia facienda.*' It was only admitted in trivial causes, the
**8implices querelas. " Cf. "Assises de Jerusalem": Inferior court, ch.
CCXXII : "In the case of a man who is mortally wounded, if any one
appear in court and complain of any one who he says has done this wrong,
and he who is accused of it appears and says ' that (he did it) not as God
wills' and he demands an assize and is granted an assize in the presence
of the sheriff and sworn men, he swears upon the holy scriptures that he
did not do it himself, or cause it to be done, or consent to the act, or kfl5w
any one who did it, he is thereupon acquitted, since his judicial oath is
received, as was demanded." Kausler's edition, p. 330.

• "Juice," equivalent to judicium, the branding which does duty as the
judnnent of God. "Summa de legibus Normanie," Tardif edition, c.
CXaII, No. 2: "Sirendum est ergo quod hac probabilia quandoque per
juramentum solius, quandoque per sacramenta duorum, quandoque
quinque, quandoque sex, quandoque septem, in curia recipitur paicau."
c. CaXXIV, No. 2: "Est autem disraisina purgatio super injuria
coram justiciario a querulo exx)osita per sacramentum querelati et coad-
jutorum facienda."

TiTLB II, Ch. I] FEUDAL PROCEDURE [§ 3

charges the person with the crime wishes. . . . And if he will
not bear law as the court tells him, reason judges that (the com-
plainant be heard) as, since (the person accused) will not bear
law, it is very clear that he had done that which is imputed to him ;
for if he had not done it he would not have distrusted the law,
which is a just thing to all people who seek justice.^ " We also
find a curious application of it in the " Trfe-ancienne coutume de
Bretagne ; " but there the ordeal appears, by a singular reversion,
as a " succedanseum " of torture.^

The judicial duel, the appeal to the divine judgment, aided by
the oaths of both adversaries and decided by battle, has, on the
other hand, a longer lease of life. It is the customary mode of
proof, at least in cases of crime. In all serious crimes, for which
the punishment was loss of life or mutilation, the accuser could
proceed by " appeal " ; that is, he could spontaneously and immedi-
ately challenge the accused to the judicial duel ; ' but in minor
cases this direct challenge probably could not be given, and proof
by witnesses would be necessary.^ The appeal was, moreover, a
very risky procedure, not only on account of its purpose, but also
because the challenge had to be couched in certain terms (the
words by which battle took place), and an error in the expres-
sions used might specially aggravate the conditions of the com-
bat.^ ft is, therefore, 'probable that the accuser, instead of pro-

* Kausler edition, p. 307.

» C. 101, Planiol edition, p. 144: "And if complete t)roof cannot be
found and common repute or strong presumption is adduced against him
[he ought to] undergo the ordeal *jous* (* juice, judicium*) or torture
Cgehine*) three times. And if he is able to endure the torture without
confession, or the ordeal (* jous*) should save him, it would certainly appear
that God has worked miracles for him and he ought to be safe. Therefore
the man [or woman] shall not be put to the ordeal * joux' or the torture
unto proceedings have been taken against them in such way.*' It is
surprising to find the ''judicium ferri" in Brittany a centiuy after the
fourth Lateran Council, for the *'TrSs-ancienne coutume" belongs to the
^\: first third of the 1300 s; but I suspect that, particularly in the chapters
treating of the criminal procedure, the author must have studied an earlier
text, the data of which he applied, without regard to their appropriateness,
to ^he law of his own time.

» Beaumanoir, LXI, 2 (Salmon, No. 1710).

* It is only "in regard to all crimes involving risk of loss of life or limb"
that the ordinance of 1260 declares that henceforward proof by witnesses
shaU replace the proof by battle. Cf, Beaumanoirj XXXIX, 4 (Salmon,
No. 1148) ; "Livre de J. et P." II, 18, § 1.

* Jean d'Tbeliriy ch. CXX ; Beaumanoir, LXI, 41 ; LXX, 5 (Sal-
mon, Nos. 1264, 1972); "Abreg6 des assises de la cour des Bourgeois,"
part II, ch. XXXVI: "Grand coutumier de Normandie," ch. LXVIII;
"Livre de J. et P." XIX, 33; " fetabUssements de S. Louis," II, 118;
BriUon, I, I, oh. 22 : "An appeal is a plaint brought by one person against
another in a set form of words with intent to convict him of felony."
(Nichols' edition, t. I, p. 95) ; "Stylus Curi» Parliamenti," CXVI, § 8.

S3] FRANCE, FROM 12008 TO 1600 S [Pabt I

ceeding by way of the " iappeal/* although that was available to him,
could offer to prove the fact by witnesses, subject to the accused's
right subsequently to falsify (" fausser ") these witnesses.

This testimonial proof was quite different from that known in
the later systems of law; it was entirely formal. The witnesses
proceeded to pronounce a formula which they sometimes merely
repeated after the " avant-parlier " or advocate ; this formula
must state that they were eye-witnesses, and they confirmed it
by swearing on relics.^ Two witnesses, fulfilling these conditions,
were sufficient to entail condenmation, and their oaths necessarily-
led to that result ; ^ in such a system the witnesses could not be
enumerated or their evidence weighed. These witnesses, produced
on the day fixed by the decree which ordered the proof, from which
no adjournment could be granted, testified at the hearing in open
court and in confrontation with the parties.' This publicity was
necessary, for one reason, to allow the accused to make use of
a valuable right, that of falsifying or challenging the witnesses.
He could, in effect, accuse them of perjury, and on that groimd
challenge them to the judicial duel. The action would then de-
pend upon the outcome of that battle. This challenge had to be
made, according to some authorities, before the taking of the oath ;
according to others, immediately thereafter ; but it was certainly
essential that all the actors in the drama should be present when
it was made.^ Seeing that the " garants," as the witnesses were
called, risked their lives, they could not be compelled to testify.
For other reasons a large number of persons were incompetent to
testify; in this category were included all who were unable to
fight, women, minors, and the clergy, for example, and all those
social reprobates who were considered infamous.

The foregoing is a sketch of the leading features. of the ancient
accusatory procedure. It was entirely oral; writing played no
part in it. Whether the proceeding chosen was by appeal or by

^ "Grand coutumier de Normandie" : "Witnesses in the secular court
are those who testify to what the complainant has alleged in these words :
* I saw and heard it and I am ready to do what the court may decree.' ..."
Cf. Jean d'Ibelin, chs. 70, 77; Beaumanoir, XXXIX 57 (Salmon, No.
1200).

^Beaumanoir, XXXIX, 5; LXI, 54 (Salmon, Nos. 1149, 1762);
Jean d'lhelin, ch. 68.

• Beaumanoir, XXXIX, 78 (Salmon, No. 1222): "In such a case the
proper course is for the witness to appear in open court for the purpose of
testifying publicly, and there he may be challenged."

^ Jean d'lhelin, ch. 74; "Clef des assises de la Haute-Cour," 101;
Phillippe de Navarre, ch. 10; Geoffrey le Tort, ch. 23; Beaumanoir, LXI,
55 (Salmon, No. 1762).

Title II, Ch. I] feudal PROCEDURE [§ 4

testimonial proof, it was an equal and public contest between
two private persons.

But this system was notably barbarous and inadequate; and
it was bound to leave many crimes unpunished. Very soon it
came to be seen that the community and the State were sufferers
from the offense as well as the private individual ; and even before
the advent of a new system this idea had stamped its influence on
certain points of the procedure.^

§ 4. Capture in the Act. — Capture in the act (" taking with
the mainour," etc.) was originally subject to special rules; we
usually find it occupying a place of its own in primitive systems of
law. Although the prosecution of crimes is not readily admitted
in' primitive times, that is because it was considered almost im-
possible to cleariy convict an accused who denied his guilt. When
he is taken in the act, however, the proof becomes clear and all hesi-
tation vanishes. During the Middle Ages, when a person was taken
in the act, an accuser is unnecessary and the wager of battle is not
available. The justiciar, surrounded by his men, before whom his
servants (" sergents ") bring an individual taken in the act,
judges him at once in the public presence, according to the testi-
mony of those who have seized him.^ We also know that, fol-
lowing the traditions of the Prankish epoch, the feudal procedure
had originated a formal and ingenious way of preserving to the
affair the character of a capture in the act for a certain time after
its accomplishment. This was the arrest " by hue and cry " —
the pursuit by " haro," " harou," or " hareu." ^

* Beaumanoir, LIX, 7 (Salmon, No. 1673) : " Malefactors not only
transgress against the adverse parties and their kindred but also against
the lords who are their protectors and justiciars."

* "It is not proper for any one to proceed against him ... for such
a deed which is so clear should be avenged by the judge officially, as long
as no one proceeds against him directly.'' Beaum. VI, 12 ; LXI, 2 (Sal-
mon, Nos. 208, 1710) ; "LivredeJ.etP."XIX,44, §14. The "Assises de
la cour des Bou^eois" has a curious chapter in connection with this
point, ch. CCLlA: "If peradventure it happen that one man assault
another and kill him, or a woman, and two vassals pass the spot and see
him commit the offense and arrest him, as all vassals should hold and
arrest (for) all the rights of their lord and all the wrongs done to him,
and if they deliver him over to the court and they say faithfully in the court,
before the sheriff and the ^chevins on the faith and homage which they owe
to the king that they saw him commit this murder, reason judges and com-
mands that it be adjudged that such person is attainted without battle
and that it avail him not to say *no, as God wills, he did not do it,' but
he should be immediately hanged. For to this extent should the testimony
of two vassals be equal to two sworn men or *6chevins' in such a matter.
Edit. Kausler, p. 314.

■"Grand coutumier de Normandie," ch. 54; Beaumanoir, LII, 16;
XXXIX, 43 (Salmon, Nos. 1571, 1187). The present-day text-books on
English law still describe this procedure as the "arrest by hue and cry."

§5] FRANCE, FROM 1200 S TO 1600S [Part I

• All this, however, gave but a limited scope to the public prose-
cution; an endeavor was made to go further. What was to be
done in the case of the murder of a man who left no relatives?
In such a case it was unreasonable to confine the accusation to the
person injured or his relatives ; and, according to certain writers
on the customary law, it became the duty of the public authorities
to intervene. " If it peradventure happen that a man or woman be
slain and if this murder be imputed to any man and he who is
dead have no relatives or friends (in blood) male or female who de-
mand his death from him who killed him, reason judges that the
king or the lord of the soil, or the lady of the town if it belong to
her, is bound to demand his death by law and by assize, and the
method is to assign a champion, if he (the person accused) deny
this misdeed ; for our Lord says in the Scriptures that the blood
of the poor cried out to him for justice saying ' Lord God, avenge
the blood of the poor.' And since this is said by our Father in
Heaven, so should it be understood on earth by law that to the
baron's court should be given earthly vengeance as is laid down by
all commandments. And for this purpose his right is established
to undertake these matters and to avenge the death." ^ "If
the king impute to a man that he Kas killed another, he ordains
that he be punished. To this the man may reply, ' I will not an-
swer, as it is not law, since one should not answer for such a deed
when no one complains except you.' It is asked. What says the
law? And the answer is: If such man as the deceased had
children or descendants or near relatives who were able to
avenge their relative, the suit is theirs, not his lord's. But
if the man or woman who is killed have no relative who caa
avenge him or her the king can pursue and administer punish-
ment; the corporal punishment of such person belongs to him
who seized him." ^

§ 5. Arrest on Suspicion. — There was still another situation.
If the victim or any of his relatives were still living and made no
complaint, the barons' court had no cognizance of it. But in
course of time a right was ascribed to it. Although the public
authority could not, in its own name, press for the application
of the punishment, it was at least granted power to seize the male-
See Stephen's "Commentaries on the laws of England/' Book IV, p. 351
(edit. 1873).

1 ** Assises de la Baisse Cour," ch. CCLXVII, p. 324 (edit. Kausler),

* "livre de J. et P." XIX, 45, § 1 ; c/. ibid, § 2 : "It is asked if an an-
swer shall be made to him when he (the injured party) makes no complaint.
The reply is in the negative, since he is alive against whom the offense is
said to have been committed."

Title II, Ch. I] FEUDAL PROCEDURE [§ 5

factor and invoke the necessary proceedings by the interested
parties. Numerous texts lay down this principle.^ But this did
not furnish a final solution of the diflBculty ; and from this provi-
sional state there were two ways out.

According to the logic of these old institutions, the action of
the public authority in seizing the person on suspicion was but
a means preliminary to accusations. So we find in texts of the
most diverse origin a procedure of the following nature. It is
the duty of the lord to announce by sound of trumpet that he holds
such and such a person on suspicion of such and such a crime, and
to call upon the victim or his relatives to constitute themselves
accusers. If after a certain period and several publications, usually
made at three assizes, no one appears, the prisoner is liberated on
bail, or, according to other writers, he is* imprisoned for a year and
a day. If no accusation shall have been brought within that
period, he is finally set free and acquitted. " The lord should
allow him to go, and he is acquitted of this murder, so that he is
no longer bound to answer any one who accuses him thereof.*'^
The following is a very clear sunmiary of this procedure. " No
one shall be arrested on suspicion for such deeds involving corporal
punishment if the grounds of the suspicion are not clear or rea-
sonable. And if any one be arrested on suspicion he can be held
forty days. And if within the forty days no one appear to accuse
him he shall be liberated on bail, body for body. And this bail
shall last for three periods of forty days each. If no one appear
to accuse him his surety will be freed ; it may be that if any ap-
pear to accuse him within a year and a day, such person will be
heard, but not afterwards." ^ This was merely a stimulant to

* Jean d'Ibelin, ch. 85 : "The lord shall cause search to be made for
him who is charged with the murder, if he is his subject, and apprehend
him, and put him in his prison." "Compilatio de Usibus Andegavi»/'
5 7: "Custom and law is that no man be arrested without 'plaintif*
(accuser) if he be not arrested on the spot or apprehended by judges on
suspicion. A murderer can properly be arrested without accuser when he
has slain the man, for the blood cries out. This was shown us in the killing
of Abel by his brother Cain, to whom God said : * Cain, the voice of Abel
thy brother's blood, whom thou hast killed criethunto me from the ground."
*' Livre des Droiz," § 334 : *'A judge should not apprehend anybody with-
out accuser or without present misdeed, or on suspicion. But he may
properly apprehend the murderer when he has slain a man, for the blood
complains. '^ " Livre de J. et P." XIX, 26, §§ 5, 12 ; " Etab. de S. Louis,"
II, 16; Beaumanoir, XL, 14; XXX, 90 (Salmon, Nos. 1236, 917).

* Beaumanoir, XXX, 90 (Salmon, No. 917) ; Jean d'lhelinj chs. 35, 85 ;
"Livre de J. et P." XIX, 26; "Compilatio de usibus AndegavisB,"
§24; "Livre des Droiz," §§252, 387.

' "livre de J. et P." XIX, 26, § 12. According to some writers, final
release took place on the expiry of the time for publication. Beaumanoir,
XXX, 91 (Salmon, No. 918).

§ 6] FRANCE, FROM 1200 S TO 1600 S [Part I

private accusation ; it was not prosecution in the name of the
State.* This practice was even employed to give inmiunity to
whomsoever had committed an act which might give rise to a
criminal prosecution on the part of the victim, or, if he was dead,
on the part of his relatives, and it was doubtless for this reason,
that it survived as long as it did. He delivered himself up to the
lord, who, by means of a procedure regulated by custom, made
public the facts and gave an opportunity to possible accusers to
come forward. If the prescribed period expired without any ac-
cusation being brought, the perpetrator of the deed had nothing
further to fear, as prosecution was no longer possible. The " Tres-
ancienne coutume de Bretagne," which calls this procedure
"finporter," doubtless because it "put an end" to the whole
matter, gives full details* of it.^ We also find the same practice
in the " Livre des usages et anciennes coutumes de la comt6 de
Guynes " in 1344.' In the latter instance the procedure is blended
with that of the inquest by the coimtry, " enqufite du pays,"
(of which we shall treat in the next section),* probably in order to
make it more decisive and efficacious. This is called " putting
oneself to law ** (" se mettre & loi "), a term which is often used in
certain Flanders' texts to denote the action of a man who by this
means exposes himself to accusations with the real object of se-
curing himself against any possible accusation. It is only to be
supposed that the person who thus spontaneously exposed himself
to prosecution did not do so unadvisedly of without first taking
due precautions. This procedure was most frequent in the case
of homicide by misadventure. The " Livre des usages de
Guynes " gives as an example the killing of a man in an archery
contest; and one text recommends the perpetrator to com-
promise at once with the interested parties.

§ 6. The Inquest by the Country. — There was another alter-
native. The prisoner might agree to be judged without any

*Iii certain provinces, this procedure could be invoked bjr the person
under suspicion; it was then said that he put himself "to his law" Ch
loi "). See * * Ancien coutumier de Picardie '* {Marnier' s edition), LV (p. 47) .
** In law, Andrieu the knight, Jehan and Henri brothers, who put themselves
to law in the court of Poitieu at Abbeville and were allowed to do so on
suspicion of the killing of Colart Hurtant, and summoned several times by
wager of battle any who wished to charge them on account of the said sus-
picion, to appear and do right and law upon them ; and no one appeared
against them or offered . . . released and absolved of the said suspicion."

2 {PlanioVs edition), c. CI, CII, p. 142-145.

' {Taillar and Courtois's edition, Saint Auer. 1856), p. 144 et seq.

* Esmein, " L'acceptation de I'enqufite dans la proc6aure criminelle au
Moyen Age" in *' Revue g^n^rale du droit, de la legislation et de la juris-
prudence, 1888, p. 14 et seq,

Title II, Ch. I] FEUDAL FBOCEDURE [§ 6

accuser, under a certain procedure called by the texts the " in-
quest by the country " (" Tenqufite du pals ") — " When any one
is arrested on suspicion of a serious offense ... he may be asked
if he will submit to the inquest into the matter."^ The assent of
the prisoner was absolutely necessary. " Be it known that no
one is condemned by inquest unless he submits thereto." ^ It is
true that very strenuous means of persuasion were used to obtain
this assent : " He ought to be arrested by the judge and imprisoned
for a year and a day with very little to eat and drink, if within that
time he does not submit to the inquest by the country." ^ The
old " Coutume de Bourgoyne " (1279-1360) also says (Art. 13,
" Enqueste ") : " Inquest made against any one for crime is null
unless he puts himself on inquest." * The "Livre des coutumes
notoires demenfes au Chastelet de Paris " warns against in-
advisedly putting oneself on inquest : " No one should put him-
self on inquest if he can help it, for he may put himself in very
great danger, since everybody cannot be friendly to him ; but he
can properly authorize the judge that he, under God and on his
soul, inquire and cause inquiry to be made by his liege vassals,
and this can be done where there is no complainant." ^ The effect
of acceptance of the inquest by the accused was decisive ; it was
conducted both for and against him, and, as Beaumanoir says, it
" ended the quarrel." According to its result the man was ac-
quitted or condenmed.

What was this inquest? It was a kind of proof by witnesses,
but ver>'^ different from the conmion law testimonial proof before
described. It was, moreover, no new thing. It had existed in
the Carlovingian period under the name of " Inquisitio." • The
fact that, in France, it was very soon merged with the testimonial
proof introduced by the Ordinance of 1260 makes it rather diffi^
cult definitely to ascertain its features from the texts of the 1200s.
The " Grand Coutumier de Normandie," however, gives a detailed
description of it.^ " Those people who are likely to know about

» Beaumanoir, XI, 14 (Salmon, Nos. 1236-1238).

* * * livre de J. et P." XIX, 45, § 1 ; * * Ancien coutumier de Pioardie," p. 52.

• Cf. Beaumanoir, XXXIV, 21 (Salmon, No. 1042).

* Charles Giraud, "Essai sur Thistoire du droit fran^ais au Moyen Age,'^
vol. II, p. 291.

» M oriel* 8 edition, § 61, p. 71.

• See M. Brunner, "Die Enstehung der Schwurgerichte," particularly
chapter VI.

' Ch. LXVIII. The Latin text according to the **Somma" is as fol-
lows (II, ch. II, § 13) : '*Si autem de multro facto nullus sit qui seque-
lam faciat aut clamorem, si publica infamia aliquem super hoc fecerit
criminosum, per justiciarium debet arrestari et nrmo carcere obersvari

§ 6] FRANCE, FROM 1200 S TO 1600 8 [Part I

the offense shall be summoned without delay, to the number of
twenty-four at least, such as are not suspected (of bias) from like
or dislike . . . the most capable and the most honorable in the
place where the offense was committed." The bailiff is to bring
them singly before four knights and commit their statements to
writing ; then " the accused shall be brought forward and he shall
be asked if he wishes to object to (* saonner ') any of the swearers,
who shall be pointed out to him/' ^ Finally, the swearers are called
up together and what they have said is read over to the accused
by the judge. " And they shall acknowledge that they have
so sworn; and upon that judgment shall then be pronounced
with the advice and on the opinion of the assistants of the
court."

In England this institution played a leading part, as we shall
later see ; it gave birth to the jury in criminal matters. Although
it proved barren in France, owing to its somewhat unfavorable
environment, it is none the less the same institution as that which,
attained such a splendid development on the other side of the
Channel.

A few of our old texts, however, show the " jurfe du pays '*
in what seems to me to be a different appUcation, and call to mind
the "jury de denonciation ; " this operated in the 800 s, as the
Capitularies show, and sur\'ived, without any real interruption,
in the ecclesiastical procedure, where, as we shall presently see,
it culminated in the *' inquisitio generalis." It was also the anti-
usque ad diem et annum cum penuria victus et potus ; nisi interim super
hoc inquisitionem patrie se offerat sustinere. Quam si sustinere voluerit
sollicitudo justiciarii debet procurare quod omnes illi, quos de multro
aliquid scire prsBsumpserit vet ipsius aliquam noticiam habere, de quocum-
que loco fuerint, coram se certo die et loco faciat convenire et hoc subito et
inopinate, et causa propter quam eos faciat submoneri celetur, ne parentes
criminosi eorum prece vel precio corrumpant sacramenta ; et ab eis uno-
quoque per se vocato, coram HIP' militibus non suspectis, utrum crim-
inosus illud multrum fecerit inquiratur diligenter. Et auditis dictis
eorum et inscriptis, et si sufficiens seonium super aliquem miserit dictum
ejus pro nuUo debet reputari et a jurea debet removeri. Et si sufficiens
non merit seonium nihilominus ulterius procedatur. § 14. Hujusmodi
jurea fieri debet per XXIIIP'' homines ad minus legales quos nee favor neo
odium a jurea debeat amovere. ... § 18. Post hoc autem coram ipsis
juratoribus et aliis in publico convocatis dictum eorum coram reo deoet
per justiciarum recitari et per juratores confiteri quod itSfc juraverunt. Et
super hoc debet fieri judicium in contineute et judicium factum sine dila^
tione adimpleri, et quod XX^ eorum juraverint observe tur. Et si aliqui
eorum se nescientes dixeriDt tot debent juratores apponi, si possunt in-
veniri, quod per sacramentum XX** eorum Veritas rei eluceat inquisite."
(Tardif edition, c. LXVII, No. 11.)

^ According to Beaumanoir, the time for requiring the persoD put to the
inquest to offer his objections was at the very beginning, before any of
the "men" had been heard. (XL, 14, Salmon, 1236.)

Title II, Ch. I] feudal PROCEDURE [§ 6

type of the " inquisitio," from which sprang the English "grand
jur>\" The " Trfe-ancienne coutume de Bretagne " places the
matter in this light : " When a serious offense is committed in a
district ... it is the judge's duty to cause to be sworn certain
peoj^e of the district — men, women, and children, who are com-
petent to take oath — and to ask them [where they were] ^ the
day and night the offense was committed. And if the judge find
the p)eople of a house constantly changing, he can arrest them,
and also if he can find through third parties that suspicion points
to any one, in order to enable him to find the cause for the suspi-
cion, he shall proceed against him according to the custom in such
cases. And then the judge shall cause him to be interrogated
and asked w^ho he was and where he dwelt, and with whom
he ate, and what food (such people) ate, and who they were, and
other words and like matters, without question or notice of the
deed, but only so that the discrepancy be discovered." ^

To return to the inquest " accepted " by the accused. In 1887
M, Zucker, professor in the Prague University, in a very interest-
ing monograph full of ingenious criticisms, put quite another
interpretation on it.^ He does not think that the inquest by the
country, accepted by the accused, antedated the " aprise,'' of
which we shall speak presently, and which is the official prose-
cution, the " processus per inquisitionem " of the Canon law.
According to him, the only object of the accepted inquest was to
make an action without an accuser possible; it was merely a
detail of the " aprise," a plea in defense put into the hands of
the person against whom the "aprise " was directed, and who could
use it to avoid a prolonged detention or take advantage of a justi-
ficative fact.* But this opinion is too inconsistent with the data
furnished by a comparison of all the texts. Beaumanoir in partic-
ular shows conclusively that the " aprise '* and the inquest are
two different procedures ; that the judge only resorted to the
" aprise " when the accused did not accept the inquest and that

' It seems to me that the bracketed words added by the editor should
be omitted.

* PlanioVs edition, ch. CXIV, p. 154. The question of the ** jur6e du
pais" is also discussed in chapter CXVI, p. 155 : "and if it is so that any
person complain that he has been robbed of anything, whereby either man
or woman ought to suffer death if the fact were proved against them,
should he who complains swear by the saints that he does not know whom
to accuse, the judge shall make the *juree ' and the inquest , as he is called
upon to do for serious offenses."

• Dr. Alois Zitcker, "Aprise und loial enqu6te, ein Beitrag zur Fest-
fltelling des historischen Basis der modern Voruntersuchung'! (Vienna,
1887).

*0p. cU. pp. 85, 86, 88, 89, 97 et seq., 100, 101, 110, 111.

§ 7] FRANCE, FROM 1200 S TO 1600 S [Pabt I

his powers were not the same in both cases.* It was undoubtedly
possible, with the consent of the accused, to shift from the opened
" aprise " to the inquest, and it might be very much to the advan-
tage of the accused to give such consent after having at first re-
fused it, since the accepted inquest might effectively secure him
against a serious peril. For a long time during the 1200 s and 1300 s
it shielded him from the " question," — the torture — introduced
into the " aprise," and that would make it a likely bourse for him
to take. In effect, the only reason for the introduction of torture
into the " aprise " was that it was often essential to have the con-
fession of the accused in addition to the other proofs obtained
before capital punishment could be inflicted ; on the other hand*
whatever testimony might have been obtained, the accepted in-
quest permitted the judge, if he was convinced, to pronounce the
full sentence. The judge, on his side, seeing his powers increased
by this acceptance, naturally tried to obtain it even while the
action was in progress. I have tried to make all this clear, with
the aid of numerous texts, in my study upon " L'acceptation de
Tenqufite dans la procedure criminelle au Moyen Age." ^

§ 7. Detention pending Trial and Bail. — In this old procedure,
which, though restricted in scope, was logical, detention pend-
ing trial played an important part. The arrest was styled the
" prise,"' but it was attended by the liberation on bail or " r&r6-
ance," * and from this point of view the old customary law was
liberal enough. The " Livre de Jostice et de Plet," treating of bail,
commences as follows : " When a man is imprisoned or any chattel
is held, the method of giving back or liberating on bail. — This
proclamation is made for the purpose of preventing oppression by
the lords and felonies by those who seize the goods of others." ^

The maxim that liberation on bail is not granted when a crime
for which the penalty is the loss of life or limb is concerned is,
however, found in books on customary law of diverse origin. •

^"Coutumesde Beauvoisis," Salmon's edition, Nos. 1186, 1235-1238,
1244.

^ ** Revue g^n^rale du droit, de la legislation et de la jurisprudence''
(1888).

* Beaumanoirf ch. LIT, "des Prises."

^"Recreance" means causing the person arrested to give security to
again put himself at the disposal of his captor on a specified day, or at any-
time on the summons of the "Seigneur" who caused his arrest. Beauma-^
noir, LIII, 2 (Salmon No. 1583) : * ' If any one desire to have bail (* r^cr^ance * )
in any matter, he should give sureties for the bail. For accordii]^ to the
custom of the secular coiu"t, there is (can be) no bail without sureties."

« XIX, 26, § 1.

• "Etablissements de St. Louis," II, 5 : "Bail should not be allowed in
matters involving risk of loss of life or limb or where blood has been shed.

Title II, Ch. I] FEUDAL PBOCEDURE [§ 7

In such cases the security given by a surety or bail (" plege '*)
was not considered to offer a sufficient safeguard. The personal
sureties certainly bound themselves most rigorously " body for
body, property for property," according to the old formula which
was long kept up. But this was not pushed to its logical end.
The punishment which the defaulting criminal had incurred was
not inflicted on his bail. The latter was merely ^mulcted in pe-
cuniary damages, which were, however, sometimes very heavy.^

It would nevertheless appear, from a mere consideration of
the sources, that an evolution took place in this respect. Here
is a noteworthy passage from the " Etablissements de St. Louis.*'
" If it should happen that the person liberated on bail should flee,
and should not appear at the term fixed for his appearance, the
judge should then say to the sureties : You have bound yourselves
that such and such a man shall appear before us on such and such
a day (specifying these) and he was accused of such and such a
great offense and he has fled. For this reason I will that you
be proved and sentenced to suffer whatever punishment the fugi-
tive would have suffered. Sire, they say, do not do this, because
in becoming bail for our friend, we but did our duty. And there-
fore the sureties may be fined a hundred sous and a ' denier '
and released. And this fine is called ' ReUef d'home,' and the
judge should therefore take great care not to take bail for any
who are accused of such grave offenses as murder or treason,
because such sureties could not suffer any other fine than that we
have mentioned." ^

Ibid. II, 7. "In the secular court bail has no place in adjudicated mat-
ters, nor in cases of murder, treason, rai>e, blows delivered on a preg^iant
woman to cause abortion, ambush on roads, robbery, larceny, fire-raising."
Cf. ibid. I, 104. Beaumanoir, LIII, 2 (Salmon, No. 1583): *' Release on
bail should be allowed in all cases of arrest except those for crime or where
there is suspicion of crime involving possible loss of life or limb, unless the
fact is known or proved." "Livre de J. et P." XIX, 26, § 6: "But if
I am arrested for a matter involving corporal punishment is bail or restora-
tion of ipoods proi>er should any one complain against me ? Neither bail
nor restitution is proper." Cf, "Compilatio de Usibus Andegavie," § 47.
"Trds-ancienne coutume de Breti^fne, ch. XCVII, Bourdot de Richebourg,

1 Beaumanair, XLIII, 24 (Salmon, No. 1332) : ** A surety cannot lose his
life for becoming bail, although he may have pledged himself body for body
for any one held for serious case of crime to retiu-n and stand trial on a
certain day and if he who is bailed should flee ; in such a case the surety
is at the mercy of the 'Seigneur' when he has lost all his property." The
siiretv is usually sentenced to a fine of a hundred sous.

«* ^Etablissements de St. Louis," I, 104.. The "Livre de Droiz,"
§ 763, is to the same effect : "It is commonly held that if any one become
bail to the coiurt for a man who is held for a crime in general terms and with-
out declaring or specifying that he undertakes that the man shall submit
to a specific punishment, the court cannot, under the customary law,
impose a penalty of more than a hundred sous. If any one become bail

5 7] FRANCE, FROM 1200 S TO 1600 S [Pabt I

From another point of view there were good reasons why a
lord should not readily liberate on bail a person accused of
a crime ; in doing so he ran a great personal risk. " If the
man allow bail in the case of a crime where he is not entitled to
do so he puts himself in two dangers, and the first is a greater
peril than the other; for if he who was bailed departs with-
out returning on the day when he ought to stand law, he who
allowed the bail loses his justice, it being no excuse that he took
sureties. For the sureties cannot be sentenced to death on ac-
count of their becoming bail : but the malefactor could have been
if he had not been allowed bail. The second peril to the man when
he allows bail in a case where he should not do so is that if the
count knows that he has unduly allowed bail or he should find
the accused when he wishes him he can arrest him without giving
court or jurisdiction to him who allowed the bail. In this case,
however, the latter does not lose his justice, but he loses the
jurisdiction of and the vengeance for the offense. And he can
allow the bail in such a way as to lose his justice although
it is customary to allow such bail where he makes the bail
against the prohibition of the lord, for his disobedience in allow-
ing injudicious bail ("fole r6cr6ance ") is interpreted as an injury
to his justice." ^

But the rule under which liberation on bail was not allowed in
cases of crime involving " loss of life or limb " has its exceptions.
First of all, on the occurrence of a crime, an accusation might be
brought by the party interested, when, as we know, the proced-
ure most frequently began directly by an appeal, or challenge to
the judicial duel.^ In such a case, detention pending trial was
the rule ; but, strange as it may appear, this was applied to the
accuser as well as to the accused.^ This is explained, first, by
the general character of the accusatory procedure, the object of

for a man held on a criminal charge *body for body, and property for prop)-
erty,' as it is expressed, it is to be understood that as to his body he shall
suffer the same punishment as he (the person bailed) would and as to
property the same civil punishment. And many are able to discover in
this reasonings to the contrary." Cf. Beaumanoir, LVIII, 18 (Salmon,
No. 1658). See M. Tanon, **Registre criminel, de la justice de Saint
Martin des Champs au XIV® si^cle," preface, pp. Ixxx, Ixxxi.

^ Beaumanoir, LVIII, 18 (Salmon, No. 1658).

* Beaumanoiry LXI, 2 (Salmon, No. 1710).

^ BeaumanoiTy LIII, 4 (Salmon, No. 1585); "Etablissements de St.
Louis," I, 104; **Somma de Legibus NormaniaB," II, 2, §2: "Primo
autem capiendum est vuadium defensoris, et post ea vuadium appellatoris,
et de lege deducenda plegios debent tradere, uterque tamen in prisonid
duds mancipandtts est.*' **Tr6s-ancienne coutume de Bretagne," eh. 104 :
**And if there be an accuser, he should be imprisoned as well as the other,
for both parties should be punished alike.

Title II, Ch. I] FEUDAL PROCEDURE [§ 7

which is to maintain an absolute equality between both parties.^
Another explanation is, that the accuser, should he get the worst
of the combat, forfeited his life and his property.^ The duel was
like a two-edged sword, which was bound to strike one or other
of the combatants. This rule of mutual imprisonment lasted, in
France, as late as the accusation by formal party .^ It was not
confined to the cases where the duel was the method of proof chosen
or enjoined by the customary law. But that particular case had
one distinctive feature. If wager of battle had been given, even
where the most serious crimes were in issue, both parties might
be set at liberty on sufficient bail, for it was very essential that
the adversaries should prepare themselves for the combat. " In
case of crime this liberation on bail shall be made but in one case, —
when wager of battle is given in serious cases by one party against
the other ; in such a case, if the parties bind themselves by suf-
ficient sureties (* pleges ') that they wall return on the day fixed,
liberty on bail shall be accorded to them, so that they may be
able to prepare themselves for proceeding as the case requires." *
The " Grand Coutumier de Normandie " gives the same solu-
tion in a somewhat different form. After saying that both ac-
cuser and accused must be imprisoned, it adds that they may be
confided to the care of trustworthy persons, whom it calls the
living prison (" vifve prison ").^ But here again the treatment of
both adversaries must be equal. Liberty on bail cannot be granted
to one party without at the same time granting it to the other.
The **Etablissements de St. Louis," after saying that " the judge
shall hold the persons of both in equal imprisonment, if one is not

> This sense^of equality caused the imprisonment of both parties in the
feudal appeal. ' Under the Roman sjystem of "judicia publica" it had led
to the abolition of detention pendmg: trial. See Geib, **Die R5mische
Criminalprozess bis auf Justinian," part 2.

' Beaumanoir, LXI, 11 (Salmon, No. 1718) : *'He who is defeated loses
his life and whatever he possesses of whatever lord he hold it.'* See " Trds-
aneienne coutume de Bretagne," ch. 104, quoted above, and ch. 96. "For
if it is decided that the accuser has not made out his case he shall be con-
victed of his accusation, and shall be punished in the same measure as
the other would have been if he had been found euilty."

» As regards Germany compare the " Carolina,' Art. 12 el sea,

* Beaumanoir, LIII, 4 (Salmon, No. 1585), c/. LVIII, 18 ; (Salmon, No.
1658).

*'*Somma, " II, 2, § 2: "Per justiciarium tamen his quod necesse
fuerit ad duellum debet inveniri, et utrumque, si voluerit vive prisonie
potent committere dum tamen bonos de ipsis nabuerit, qui eos ita fideliter
cutodiant, quod vivos vel mortuos ad diem duelli terminatam reddant, et
ad duelli deductionem habeant preparatos." And both mav be bailed
•*en vifve prison" if they so wish, provided they are faithfullv delivered
to e^ood guardians who will give them up dead or alive on the day ap-
pointed for the battle, armed for the fight if they are alive."

§ 7] FRANCE, FROM 1200 S TO 1600 S [Pabt I

more troublesome than the other," calls him a "fole justice" who
shall allow one of them to be set free on bail, while the other is
held.i

In this respect the powers of the judges were at first very
restricted ; but they continued to expand. The "Livre de Jostice
et de Plet " allows the judge a wide latitude : " If it is asked
whether restoration (of goods) or liberation on bail is proper
where two are arrested on account of an offense of which one of
them accuses the other, the answer is that the matter is in the
judge's discretion. And if it is asked whether one of them may
be liberated on bail and the other held, the answer is, no;
no advantages can be given to one more than to the other,
nor can one be relieved more than the other."- This discre-
tionary power was bound to have a greater development in the
royal jurisdictions than elsewhere in the absence of the 'feudal
responsibilities.

Another situation might present itself besides that of an accusa-
tion by formal party. The lord could, as we have said, appre^
hend (" prendre ") and imprison the person suspected of crime,
and, in order to give rise to accusations, make his arrest public
at three assizes, or after such other delay as the customary law
provided. This imprisonment was limited to a year and a day,
for, after the lapse of that time, no accusation was any longer
possible. But could the imprisonment be terminated sooner?
The writers on customary law generally admit that at the expira-
tion of the periods for publication, the accused had the right to
demand to be set at liberty on furnishing bail.' Some, it is true,
maintain that the detention should continue.^ Still others hold
that the final release (" delivrance ") should take place immedi-
ately after the expiration of the delays.^

A last hypothesis presents itself. The person arrested (" pris ")
by the lord may consent to submit to the inquest by the country.
Ought he then to be liberated on bail ? That is probable ; cer-

» I, 104 ; cf. Beaumanoir, LIII, 4 (Salmon, No. 1585).

« XIX, 26, § 9.

» "Compilatio de Usibus Andegavi»,** § 24 ; "Livre de J. et P." XIX,
26, § 12. Ordinance of 1315: "The suspicion may be so gjeat and no-
torious that the suspected person, against whom the denunciation shall be
framed, ought to be detained in the abode of his seigneur and there remain
a space of forty (days) or two or three at the most, and if that terminate
without any one accusing him of the deed, he shall be bailed C*ostagez ')."
(Ord. I, p. 358.) K ^ J

* Jean d'Ibelin, ch. LXXXV.

» See Beaumanoir, LVIII, 20 (Salmon, No. 1660) ; XXX, 90 (Salmon,
No. 917).

Title II, Ch. I] FEUDAL PROCEDUBE [§ 8

tain texts seem to hold the opinion that liberty is a matter of right
i?hen there is no formal party : ''If the judge imputes to me that
I have been concerned in the deed done, for which death is the
penalty, and no one claim aught of me save himself, by right
he shall not seize my property, but my body ; but in justice he
shall liberate it on bail, body for body." ^

The net result of what we have stated is that liberty on bail
was a matter of right except where an offense had been committed
which might entail the loss of life or limb. Of all this old theory,
although it is mainly allied with the feudal system and the judicial
duel, two ideas continued to prevail in the following period.
These are, first, that bail ought to be allowed in the case of minor
offenses^ and, second, that it ought to be refused in the case of
serious crimes.

§ 8. Procedure by Contumacy. — The old law came to recog-
nize a procedure of contumacy, which constitutes a point of de-
parture for our legal system so far as that relates to the doctrine
of default, although the procedure has completely changed its
aspect in the course of its successive transformations. The old
criminal procedure, in common with all formal procedures, ad-
mitted of no judgment by default. An accuser and an accused
must be present from the beginning to the end of the action. A
means was found, however, of insuring that justice should take its
course despite all resistance on the part of the recalcitrant. As in
the Germanic practice, the procedure by contumacy resulted, not
in a condenmation for the act struck at by the prosecution, but in
the outlawry of the person guilty of contumacy. Every safeguard
given by the law was withdrawn from the person who refused to
submit to the law. That was only logical. The veritable flood
of summonses and delays connected with the procedure vary some-
what according to the different customs, but this variation does
not prevent the ascertainment of its main features.

The procedure of contumacy was called " forbannissement " —
banishment, or outlawry. The sentence of " forbannissement "
could only be pronounced at the assizes, and the procedure could
only be followed for serious offenses, which we shall find called later
on " le grand criminel." ^ The ancient " Coutume de Nor-

» "livre de J. et P." XIX, 26, § 5.

* "Livre de J. et P." XIX, 37, § 4 : "It is asked for striking a maD, or
for insult or drawing blood or causing bloodless wounds, causing contusions
without death or mutilation and he flee, if he oueht to be banished?
And the answer is, No. — § 5. Then it is asked if he be charged with mur-
der, or theft, or rape, or homicide, or dismemberment, or if he have taken
from the other by rorce, or if he do not appear to make his peace and if he

§8] FRANCE, FROM 1200 S TO 1600 s [Part I

mandie " probably exhibits its purest type. Three summonses
to three successive assizes are necessary : " Criminalem auiem
dicimus actionem de qua convictus aliquis membris vel corpore con-
demnatur. Si quis aidem crimen, quo seciUus est, confessus fuerit in
publico, sui judicium protulit damnamerUL Diffugiens autem kuju^-
modi criminosus ad ires primas a^sis^ias contuTrvax debet vocaru
Est autem a^sisia militum et virorum certo loco et certo termino XL
dierum spacium continente, per quos de auditu in curia judicium
et justitia debet exhiberi. Ad quartam autem recitatis ejus crimv-
nibus et svbterfugus fojcto ab his judido debet forbanizari public^
sub hoc forina : Nos forbanizamv^ Petrum propter mortem Luce,
quern occidit, ex potestaie duds; ita quod si quis eum post elapsum
hujus assisicB invenerit ipsum vivum vel mortuum reddat justidario,
vel d rwn poterit clamorem patrioB qui didtur harou clamosis wdbu9
debet exdtare.'* ^ This is all quite clear; — the outlawry and the
delays, consisting of four periods each of an assize. These
four periods will always be found, and the last term will always
be of an assize or forty-day duration (" quarantaine "). " Be
it known that before a man shall be outlawed, he shall be caused
to be sununoned for three specified days, eight days apart, and if
he do not appear within (that time) his nearest relatives shall be
sent for and told to have him on a day fixed. And if he clear
himself by proper excuses he shall be heard ; if not, the space of
forty days shall be allowed to elapse from that time, and if within
that time he do not appear he shall be banished." ^

According to the " Etablissements de St. Louis " the fugitive
is summoned " that he appear within seven days and seven nights
to acknowledge or defend, and he shall be caused to be summoned
in open market-place . . . shall be caused to be sununoned anew
for judgment that he appear within fifteen days and fifteen nights
. . . then within forty days and forty nights, and if he do not
appear then he shall be caused to be banished in open market-
place." ^ According to Beaumanoir there were different periods
of delay according to whether a peasant or a gentleman 'was con-
cerned : " If he is a vassal he shall be summoned by three fort-
nights, at the third fortnight to the provostship. And if he do not
appear within the three fortnights, at the third fortnight it shall
be proclaimed that he appear at the first assize thereafter . . .
and if he do not appear at that assize he shall be banished." *

flee, should he then be banished ? And the answer is, Yes ; for such things
involve corporal punishment and peril of his eternal salvation."

1 "Somma," I, 23, §§ 5, 6. ^ XIX, 37, § 9.

« I, 26. * LX, 5 (Salmon, No. 1695).

Title II, Ch. I] FEUDAL PROCEDURE [§ 8

For the gentleman there were three provostship summonses and
then three assize summonses ; it seems as though there were here
two systems superposed : " If he be a gentleman he shall be sum-
moned to appear in law of the sovereign by three fortnights to the
provostship ; and if he do not appear he shall be summoned for
three consecutive assizes thereafter, between which assizes shall
elapse the space of at least forty days, and if he do not appear
within the last assize, he shall be banished." ^

This procedure of contumacy could be followed whether there
was a party plaintiff, or merely suspicion and action by the lord
justiciar. In either case there was disobedience of the seigniorial
summons.

The person banished was really without the law; his murder
went unpunished, and all were forbidden to shelter him : " When a
man is banished from the court by any of the count's men no other
man may or shall shelter him, but shall seize him if he find him upon
his land, and shall acquaint the count that he holds such outlaw
. . . whoever shelters him knowing of the banishment, his house
shall be torn down and the penalty is in the discretion of the court
according to what he is worth, and also punishment of imprison-
ment." ^ Moreover, these terrible threats were not the only
means of constraint employed to bring about the appearance of
the person accused of contumacy. His property was confiscated
by \'irtue of his outlawTy,^ and that was sequestrated by the lord
from the beginning of the procedure, namely, from the first de-
fault.*

The most distinctive feature of this form of process was that it
resulted in making, not a condemned person, but an " outlaw." It
soon lost this characteristic. Resistance to the law was construed
as a kind of confession; hence the outlaw was looked upon as
" attainted and convicted " of the crime, for which he ought to

» Beaumanoir, IJC, 6 (Salmon, No. 1695) ; XXX, 99 (Salmon, No. 930).

« Beaumanoir, LXI, 21, 23 (Salmon, Nos. 1728, 1730). Banishment,
however, was not and could not be decreed except from the territory sub-
ject to the jurisdiction of the lord justiciar (Beaumanoir, LXI, 22, Salmon,
No. 1728); but Beaumanoir points out a curious procedure (LXI, 21,
Salmon, No. 1728), the object of which was to extend its effect to the whole
jurisdiction of the lord paramount.

• Beaumanoir y LX, 9 (Salmon, No. 1698).

* Beaumanoir, LXI, 10 (Salmon, No. 1717) : "For fear of the risk conse-
quent on delay the count shall set guards upon him whom he has summoned
. . . and double daily until he appear to prevent his loss." "Livre de
J. et P." XIX, 37, § 8 : **In the nrst place he shall cause him to be sum-
moned at his dwelling where he is expected to return . . . and if he do not
api)ear his goods shall be seized and shall remain in the judge's possession."
C/. '*Ancien coutiunier de Picardie," LIV (p. 46).

§ 8] FRANCE, FROM 1200 8 TO 1600 8 [Part I

suffer the usual punishment if he should be captured and given
up to the lord. Beaumanoir and the ^^ livre de Jostice et de
Plet " are the first to formulate this new idea.^ From their time
onwards the procedure by contumacy will always contain a com-
bination of these two ideas of outlawry and condemnation for the
deed imder prosecution.

Was the outlawry, with its terrible consequences, final and irrev-
ocable? When the outlaw was seized, or when he presented
himself willing to purge his contumacy, as it was later phrased,
could he demand to be tried confrontatively ? The logical answer
was. No. Originally, outlawry, being the punishment of the dis-
obedience and not of the crime, was final, or at least could not be
recalled except by him who had decreed it. The recall was a dis-
cretionary decisi9n, not the result of any method of recourse.*
This recall involved the exercise of a kind of right of the crown, as
in the enfranchisement of a serf, and to grant it the baron required
the assent of the superior suzerain.' Moreover, the letters of recall
might nullify all the consequences of the outlawry and contain a
complete pardon, or they might merely open up the possibility of
a new judgment. This is very clearly illustrated by Beaumanoir :
" If the outlaw be recalled by the sovereign for any cause of pity,
as I have said above, he shall have everything belonging to him
which was held on account of the suspicion of the offense, whether
in the hands of the court or of others, for he who is acquitted in
the court of the sovereign cannot be condemned in the court of the
subject. But it is otherwise if the count recall his outlawry on
petition or on entreaty or in his discretion for cause of pity, for in
such recalls the subject shall not give up what he holds of the out-

* Beaumanoir, LX, 9 (Salmon, No. 1675) : "Whoever is accused of any
of the aforesaid matters and it happen that by the custom of the county
he is outlawed, and he is rearrested after the outlawry, he has forfeited
his life and effects and is judg^ed as if he had notoriously done the deed of
which he was accused." Ibid,, XXX. 12 (Sahnon, Nos. 834, 835): "He
should be ju^^o^ed according to the misdeed for which he is outlawed."
"Livre de J. ^ ^." XIX, 37, § 7: "And if he is arrested soon after
the outlawry he i. '•ondemned for the deed." "Ancien coutumier de
Picardie (Anc. cout de a uthieu et Vimeu, XIV), " p. 131 : " If he defaults
he ought to be convicted of the crime of which he is accused."

2 Beaumanoir, LXI, 24 (Salmon, No. 1731) : "If the count withdraw his
outlawry from any reason of mercy ; if, for instance, he has heard that
he who was outlawed, was, at the time when he was accused and out-
lawed, in foreign lands or on a pilgrimage, and it is evident that he was
i|:norant of the accusation and of the outlawry ... or if the count has
since felt certain that he did not do the deed for which he was outlawed,
it were a work of mercy to withdraw such manner of outlawry."

• Beaumanoir, LXI, 26 (Salmon, No. 1733) : " The man who has caused
any outlawry in his court on account of crime cannot for any reason
withdraw it without the consent of the count."

Title II, Ch. I] FEUDAL PROCEDURB , [§ 8

law's on account of the offense if he does not purge himself of the
offense by judgment, in the same way as if he was accused and freed
himself from the accusation or submitted to inquest and was freed
by the inquest; then, indeed, it would be proper that he should
have his own in whosever hands it was." ^

But akin to these principles another idea grew up. There was
a tendency to allow the " outlaw-condemned " (" banni-coh-
damn^ ") to prove his good faith, and to attack judicially the
sentence of outlawry. The " Livre de Jostice et de Plet " for
this purpose provides a last delay of pardon : " Be it known that
if any one remain in a state of outlawry for forty days he is out-
lawed merely ; and if he appear within the next three assizes and
make his excuses that he shall and will suffer law, he shall be
allowed to do so. And if he do not appear within the three assizes
he shall be condemned for the deed of which he is accused." ^ The
" Etablissements de St. Louis," without fixing any period of delay,
declares that if the outlaw appears and pleads his good faith '' then
the judge shall receive his oath on what he wishes to declare and he
who desires to accuse him shall have his defense." * There are here
the elements of a future development ; but the primary idea is not
destined to disappear for some time ; and in the procedure for de-
fault which the Ordinance of 1670 will organize, we shall see par-
doning decisions and methods of recourse concurrently in operation.

Such was our very old criminal procedure. In so far as it was
logical in its imperfection, it embraced in reality two distinct ele-
ments. One of these belonged to the past and was very soon to
disappear without leaving any traces ; the other, on the contrary,
contained the germs of new institutions, and we shall show how it
changed its aspect to conform to the changing conditions.

" Beaumanoir, LXI, 25 (Salmon, No. 1732).

* XIX. 37, § 10; c/. **Ancien. cout. de Picardie," XCVIII (p. 88).

' *'Etab.** I, 26. Judging from a passage in the "Ldvre de Jostice et
de Flat *' it would appear tiiat the effects of the outlawry could not be
wiped out by lapse of time, XIX, 37, § 12 ; ** Cefroi de la Chapele (says)
that the bailiffs of Orleans caused a man to be outlawed on proclamation
and report that he declared that he had killed a man. And ne was sum-
moned at his domicile by command of the king for the space of forty days,
and neither appeared nor sent nor lodged a defense and for this he was
outlawed and suffered the outlawry without appearing for fifty years,
during which time the court did not summon him. At the end of that
time he came to the bishop of Orleans and declared that he belonged to
his jurisdiction, lying down and rising on his land, which was the case.
The bishop had the power to withdraw this outlawry. And it was
decided that he would not withdraw (it) because he had not come sooner
to alleee his privilege nor had the law required him, and he was given up
to the oishop to whose jurisdiction he belonged. The bishop caused him
to be tried and decided that he should be hanged.*'

§ 1] FRANCE, FROM 12006 TO 1600 S [Part I

Chapter II

THE ORIGIN OF THE INQUISITORIAL PROCEDURE AND
ITS GROWTH DURING THE 1200 s AND 13008

§ 1. Introductory. § 4. Torture.

§ 2. The Ecclesiastical Criminal § 5. The Public Prosecutor.
Procedure.

§ 3. The "Aprise" or Official In-
quest.

§ 3a. Same : The Denunciation.

§ Sh. Same: The Secular Inquisi-
tion in the 1300 s.

§6. Final Changes. The Ordi-
nary and Extraordinary Pro-
cedures.

§ 1. Introductory. — In the harsh and inadequate procedure
which we have described, the pursuit of oflFenses was the affair
of private individuals. It was only in rare instances that public
authority could intervene in an efficacious manner ; except in the
case of capture in the act, all it could do was to seize the culprit
and await the pleasure of the injured parties in bringing the accusa-
tion, or the culprit's consent to the inquest.

It was impossible for such a state of matters to last. We shall
therefore see a regular official prosecution make its appearance
in the 1200 s and rapidly develop, simultaneously with the sub-
stitution of inquests for the old methods of proof. But before
studying this movement in the works of our old writers, it is nec-
essary to explain briefly what was the criminal procedure of the
ecclesiastical courts. Its influence upon the transformations
which we purpose to describe is undeniable. This is not due to the
fact that the Church had created its own system of procedure in
every detail. On the contrary, most of the different elements of
which it made use it borrowed from secular institutions. It im-
bued these, however, with a new spirit and lost no time in sub-
stantially altering them. It is sometimes said that the inquisitorial
procedure of ancient France is merely the result of a borrowing
from the Church. That, as we shall make clear, is not precisely
correct ; but it is none the less true that the Church was the first
authority which changed from the accusatory to the inquisitorial
^ procedure. And having been the first to effect this evolution, it
very naturally furnished a model to France and the neighboring

Title II, Ch. II] GROWTH OF INQJJ^SITORIAL PROCEDURE [§ 2

nations which inspired a similar movement under the impulse of
similar requirements.

§ 2. The Ecclesiastical Criminal Procedure. — The system of
repression in force was manifestly inadequate. It was essential
that an unfettered and effective official prosecution should be
created, and the Canon law laid the foundation for this by ihsti-
tuting; at the end of the 1100 s, the inquisitorial procedure, the ^^
" processus per inquisitionem."

The Canon law had originally recognized only the accusatory
system in criminal matters, influenced in this respect both by the ^
Roman law and by Germanic custom. In the 800 s, however, it —
made a step forward. When, by reason of a crime committed,
any one had been pointed out as suspected by public opinion, and
this " mala fama " or " infamia " was established by the judge, —"
the Canon law had admitted that this gave a certain right of action
against the " infamatus." This did not allow the judge to bring
witnesses against him and condemn him if he should be convicted,
but the accused was obliged to exculpate himself from the crime —
imputed to him. This exculpation was effected, according to the
circumstances of the case, by the oath of the " infamatus " —
supported by compurgators, " co-swearers " (" purgatio canonica ")> '
or by ordeals (" purgatio vulgaris ")• W he refused, or failed, —
he could be condemned as convicted of the offense charged against
him.^ These methods of proof the Canon law had borrowed from ^
the Germanic customs, although it may at first have spontaneously
adopted a similar method, allowing, in certain cases, a suspected
person to exculpate himself by his own oath, but without "co-
swearer." ^ In the procedure introduced in the 800 s, if the

infamatus" refused to exculpate himself, or failed in the

purgatio," he was considered convicted of the crime and could be
condemned accordingly. Out of this procedure grew, by evolu- f *
tion, the inquisitorial procedure.^

At least as early as the 800 s the Canon law had also opened
another way. It had permitted notorious (" notoria ") crimes
to be prosecuted and condemnation pronounced by the judge
without the necessity of an accuser ; whence the maxim " notoria

* C. II, qu. 5; X, *'(ie purgatione canonica," V, 34; X, **De purga-
tioDe vulgari," v. 35.

* Chaps. V, VI, VIII, IX, C. Ill, qu. 5. Hildebrand, "Die purgatio
eanonica et vulgaris," 1841; Richter-Dove, "Lehrbuch des deutschen
Kirchenrechts," § 226 ; Loning, ** Geschichte des deutschen Kirchenrechts,"
II, pp. 496, 503.

* Hincmar de ReimSt "De presbyteris criminosis," e. XVI.

§ 2] FRANCE, PROM 1200 S TO 1600 S [Part I

accusatore non indigent." But this rule was not of very much
practical use on account of the difficulty which existed in determin-
ing what constituted " notorium." ^

The Canon law did not yet admit of an official prosecution prop-
erly so. called; and it gave as the chief reason for this that the
y^ judge (a different person as prosecutor was not thought of) would
be at once judge and accuser.^ This was the doctrine of Yves de
Chartres (end of the 1000s and beginning of the 1100s);* and
?jn1 /it was also that of Gratian (first half of the 1100 s)/ It is that
taught by Rolandus, the future pope Alexander III, about 1150,*
and Bernard of Pavia in his " Simmia decretalium," written be-
tween 1191 and 1198.^ But in the final years of the 1300s a new
form of criminal action made its appearance, the " processus per
inquisitionem," which is really an official prosecution by the judge.

This procedure is distinguished from the earlier form of which I
have spoken and in which the " infamatus ''was compelled to excul-
pate himself. The difference is clearly shown by the fact that the
judge cannot proceed except upon the "infamia precedens"; but, on
that being estabUshed, he can summon or arrest the accused, bring
witnesses against him, and condenm him if proof of his guilt is fur-
nished by this means. Other striking features corroborate this view.

But it is apparent that this change was not brought about by
custom, but by legislation. It was introduced by the decretals
of Pope Innocent III. The first to come under notice is of date
1198.^ Then a series is found in rapid succession, in 1199,* 1206,*
^ 1212.^^ At last, in 1216, the fourth Lateran coimcil solemnly
confirms the principle.^^ /'

1 Cc. 15^17, C II, qu. 1. j

^ Panormiianua upon c. 7 X, "de accusat." V. 1, No. 7: V Judex
non est loco partis . . . non fimgitur duplici officio, quia aliquijs debet
esse accusator, alius judex." {

« Yves de Chartres, Bp. CXIX, CVIII, CCVI. f

^ * Dictum upon c. r. C. IV, gu. 4. ^^

» **Summa magistri Rolandi," Thaner edition.

• In the '*Compilatio prima decretalium" of Bernard of Pavia the title
devoted to criminal prosecutions bears only the heading "De accusationi-
bus," while the corresponding title in the Decretals of Gregory IX (V. 1)
is entitled " De accusationibus, inquisitionibus et denunciationious." The
doctrine contained in the " Summa decretalium " corresponds to that of the
cited title of the "Compilatio prima."

^ c. un. X. " Ut ecclesisB vel beneficia sine diminutione conferantur,"
III. 12.

«c. 10 X, "de purg. can.," V, 34; cc. 31, 32 X. "de simonia," V. 3.

» c. 17 X, "de accus.," V, I. »» c. 21 X, "de accus." V, 1.

"c. 24X, "deaccus." V, 1.
/ [For the text of these decretals, and their bearing on the same movement
/ as later influencing English law, see Wigmore, "Treatise on the System
of Evidence," § 2250 ("History of the Privilege against Self-crimina-
tion").— Trans.]

Title II, Ch. II] GBOWTH OF INQUISITORIAL PROCEDURE [§ 2

At the same time, and even in the same texts, the theory was
put forward that it was essential to discard the standard objection
that the judge would become judge and party too. It was got
rid of in two ways. In the first place, texts of Holy Scripture were
invoked, which had nothing to do with the question except as
showing that God or His prophet spontaneously intervened to
inquire into human excesses.^ SymboUcal interpretation applied
this power to the ecclesiastical judge. On the other hand, we have
seen that the " inquisitio " could not proceed unless the " in-
famia " had in the first place been established against the " in-
quisitus ; " it was said that as this was equivalent to an accusation
brought from without, and in a manner personifjdng this establish-
ment, it took the place of an accuser. This theory was destined ^
to become classic*

It was not, as has often been said, the struggle against the heretics ^
which led to the introduction of this official prosecution. A
special application of it was undoubtedly made to heresy in the
" inquisitio hseretica pravitatis " (as to which I shall have some-
thing to say later), that is, the right to proceed " per inquisitionem " ^
against heretics, delegated to certain special commissioners, usually
selected from among the Dominicans or the Franciscans. The
earliest case of inquisition thus delegated (of which we know) took
place in 1227. The decretals which were the basis of the procedure
" per inquisitionem " are sometimes directed against heresy among
the clerks, but most frequently merely against clerical abuses. It
was for the repression of these abuses generally that the papacy
felt the need of a more strenuous mode of prosecution.

The evolution of the " inquisitio " from the " infamia," leading
to the obligatory " purgatio," is attested by other characteristics
than the persistence of this essential condition, the preliminary
establishment of this " infamia.*' In the first place, if the " in-
quisitio " did not lead to a conclusive result, if it did not furnish
suflSdent evidence against the accused, he could be compelled to
exculpate himself by the " purgatio canonica " ; this was a late *
return to the old system.^

» oc. 30 X, "de simonia," V, 3; 17, 24 X, "de accus." V. 1.

* Panormitanua upon C. 2. X, "de accus." No. 7: **Nota quod in
inquisitione judex non tenet liano partis, sed infamia est loco accusatores
8eu denunciatbris" ; and upon C. 17 X, "deacons," No. 6 : "De occultis
non fit inquisitio ubi non processit infamia quia defuit veras et fictas
aocusator.

» HoBtiensiBy "Summa," Lyons edition, 1517, p. 409 : '*Si omnes testes
dicunt cum (inquisitum) innocentum non suspenditur non purgatione
oneratur infamia nisi ad tollendam facti. " But see, as to the "accusatio,"
C. 6 X, of "purg. can." V. 34.

§ 2] FRANCE, FROM 1200 S TO 1600 S [PabT I

On the other hand, one of the most formal and, at the same time,
most odious features of the procedure " per inquisitionem " is that
the " inquisitus " was not only compelled to reply to the interrog-
atories of the judge, but he must also reply on the faith of his
v/ oath, after having taken oath to tell the whole truth.^ This rule
goes back to the earliest days of the procedure " per inquisitionem."
It appears to be quite contrary to the original principles of the
. Canon law, holding that nobody in " forum externum " should
^ be compelled to incriminate himself. But a reply to this objection
was looked for in the earlier system upon which the " inquisitio "
y/ was grafted. According to that system the ** infamatus " was
obliged not only to exculpate himself by his oath, but also to furnish
" co-swearers " ; in the " inquisitio " only his own oath was re-
quired, and this was a lesser requirement. This justification was
put forward by the future Innocent IV in very precise terms, and
/ it became classic.^ It was, however, merely a sophism. The
formal method of the " purgatio canonica " and the replies to
dexterous and imperative interrogatories were very different things.
The Canon law, however, ameliorated one characteristic of the
procedure " per inquisitionem " which had operated unfavorably
to the accused. Its construction of it was that, even if a conviction
were obtained, the heavier punishments which a successful " ac-
cusatio " would have involved could not be inflicted in an " in-
quisitio," but only the lesser punishments. Thus, when the prose-
\'^ n cution was against a clerk — as at first was always the case — and
'^ /^ he had been found guilty and incapable of continuing in his minis-
"^y try, he might be deposed, deprived of oflSce (" ab oflScio "), but not

degraded.' It must, however, be added that if the confession of

* Esmein, **Le serment des accuses dans le droit canonique," in the Bib-
liothdque de I'Ecole des Hautes Etudes (Melanges), Vol. VII, 1896, p.
257 et sea.

[For the bearing of this on English legal history, see Wigmore, "Trea-
tise on the System of Evidence," § 1815 et seg. — Trans.]

* "Commentaria Innocentii quarti pontificis maximi super libros de-
cretalium," Frankfort edition, 1570, p. 246, upon c. 2 X, "de confessis,"
II, 18 : "Quod probo sic. Potest ei indici purgatio ubi per saoramentum
suum et purgatorium potest negare se crimen coramisisse. Multo fortius
antequam indicatur purgatio, potest ab eo qucBrere an crimen commi-
serit. Sed tamen non prsecisa cogam eum respondere, sicut nee praecisa
cogitur se purgare ; sed, si non respondent sicut si se non purgaverit sus-
pendetur, vel alias procedetur contra eum : quia videtur vanum purgare
de simplia verbo qui se purgare debet multorum juramento." Cf, Panor-
mitanus, upon c. 2 X, "de confessis," Nos. 16, 19.

' c. 24 X, "de accus." : "Criminalis accusatio sed capitis deminu-
tionem, id est, degradationem intenditur. Sed cum super excessibus suis
quidam fuerit infamatus, ita ut clamor ascendat qui diutius sine scandalo
tolerari non potest, absque dubitationis scrupulo ad inquirendum et
puriendum ejus excessus procedatur, si fuerit gravis exoessus, etsi non

Title II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 2

the accused was supported by the testimony furnished in the " in-
quisitio," the doctors admitted, as in the case of " notorium/*
that the condemnation to the full punishment could be pro-
nounced.

The procedure " per inquisitionem," as it came to be described,
met with very natural resistance in other directions. Texts there
are which show us the " infamati '' whom the judge washed to
prosecute according to this method, invoking the earlier law and
essaying to exculpate themselves by the " purgatio canonica."
Others show them invoking the custom followed under the secular
law and demanding that the judge should continue to hold them
prisoners and fix a term wdthm which accusers, if any, should be
invited to present themselves, liberation or the ** purgatio " to
follow in the event of no such appearance.^ None of these ob-
jections was allowed to prevail.

The procedure " per inquisitionem " had a special form and a
somewhat different application. This was the " inquisitio gene-
ralis," otherwise called " preparatoria " or " ordinaria." Its
purpose was, not to establish the " infamia " of a single specified
person, but it was applied to a society or community of people
which it compelled to disclose whether it had in its midst any
individuals defamed by reason of offenses or misdemeanors;
jt called for informations and revelations. It was especially serv-
iceable in the work of inspection and reformation of monasteries.
It had a peculiar and very ancient origin. • v

Under the Carlovingian monarchy an actual jury of denuncia- /
tion, "jury de d6nonciation," is seen to be in operation. It
appears both in the secular courts, where the texts show it first 1/
from the beginning of the 800 s, and in the ecclesiastical courts.
There it is grafted upon older institutions (which probably served
the party to attain the same end), namely, the diocesan synod and
the bishop's " visitatio." Considering only the ecclesiastical as-
pect, we have precise information on the subject from Reginon, who

degradetur ab ordine ab administratione tamen amoveatur omnino." As
to the effect of the supplementary confession, see the Deere tahsts upon
the above-cited chapter 24.

* Gofadus, "Summa decretalium de aceus." Lyons edition, 1519,
p. 199: "Quid si superior velit inquirere, reum autem dicat ! Nolo ut
mquiras sed profigfas terminum accusare volenti bus et, accusatore defi-
ciente paratus sum me purgare. Nun quid audietur reus an judex ? Vi-
detur quod reus quia quod reus petit ordinarium est, quod diut judex
extraordinarium et judex potius ordinario quam extraordinario jure pre-
eedere debet. Puto potius inquirendum cjuia purgatio sequitur inquisi-
tionem." Cf, Ho8tentiu8j "Summa, de inqius." Lyons edition, 1517,
p. 408; Durantis, "Speculum," p. 33.

§ 2] FRANCE, FROM 1200 S TO 1600 8 [Pabt I

wrote in the first third of the 900 s/ and Burchard de Worms, who
wrote in the first third of the 1000 s.^ The ecclesiastical judge,
the bishop, in his visits to the places where his jurisdiction lay^,
convoked all the members of the clergy and also the faithful*
From among the latter he chose a certain number of men and made
them swear to denounce those whom they knew to be guilty of
offenses or certain named public trespasses ; these were the " jura-
tores synodi." Those whom they denounced were under the
necessity of exculpating themselves, according to the nature of the
case, by the " purgatio canonica " or by the ** purgatio vulgaris '*
on pain of being convicted.

This institution never disappeared from the ecclesiastical
organization, although the performance of its duties was often
suspended in the midst of feudal disorder. The fourth Lateran
council plainly had it in view for the denunciation of heretics.'
Other texts show the old procedure discharging its duties anew
in the " visitationes " of the bishop or the archbishop.*

The effect of these obligatory denunciations in the olden days
had been to force the denounced parties to the " purgatio canonica "
or " vulgaris," but when the procedure " per inquisitionem " was
once established these naturally gave place to it. The judge who
had made the " visitatio," in a parish or in a monastery, and had
admitted testimony for the persecution, could proceed against the
accused by hearing witnesses against him, who might be either
those who had testified in the " inquisitio generalis," or new wit-
nesses. The change is well shown by the description given by
Durantis of the " inquisitio generalis." He puts it forward as the
natural instrument for the use of the bishop in his " visitatio,"
when he " inquires of the clerks as to the laymen, and of the lay-
men as to the clerks and laymen " ; much the same thing is seen in
Regino's book as regards the 900 s. Without speaking of "jura-
tores synodi," Durantis also says that the bishop would do well
" secrete cum aliquibus de parochia fide dignis inquirere." ^ We
have, besides this, direct proof of the evolution in the " Registre de

* "Libri duo de synodalibus causis," Waaserschlahen edition.

* "Burchardi Wortmatencia ecelesisB episcopi decretorum Ubri vigorati,"
Migna Patrol, lat. t. CXL, p. 536 et seq. The interrogatories, eighty-
eight in number, will be found in Book I, c. 90-95.

» C. 9 X, "de heeret." V. 7 ; c. 29 X, "de accus." V. 1.

* A very close application, which will hereinafter be made use of, is
fiu-nished by the "Registre de l'officialit4 de Cerisy" (1314-1457), pub-
lished by M. G, Dupo?it,

^ Durantis, " Speculum," Book III, part 1, "de inquisitionibus," § 3,
Frankfort edition, 1592, p. 30: c. 1, §4, VI, "de cons." Ill, 20;
Panormitanus upon c. 7 X, "de test, cogend," II, 21, No. 5.

\ «^

\
\

\
\
\
\

Title II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 2

Tofficialite de Cerisy." ^ In the 1300 s the official of the abbey,
who had succeeded to the jurisdiction of the bishop within a
certain radius, still made his " visitationes " in the old way, with
the convocation of the faithful and the procedure of denunciation
by the " testes synodales " ; this was called '* Inquisitio," " In-
quisitio generalis," " Inquester," " Informatio." ^ According
to the earliest accounts the effect of the synodic denunciations was
merely to submit the denounced persons to the " purgatio cano-
nical'' But, starting from the year 1320, examples of the "purga-
tio " are no longer to be found. The " inquisitio generaUs," as a
consequence of numerous decisions, then always gives place to the
" inquisitio specialis " against the denounced person, the synodic
denunciation being equivalent to an " informatio." But these
applications, showing the affiliation, are, generally speaking, rare
and exceptional after the 1200s. The "inquisitio generalis,''
which is very frequently used and practised, and which has its
roots in the domiciliary visits to the monasteries, is directed against
regular and secular societies ; it consists in " inquirere de capite
et de membris." ^

The " inquisitio " led to the " denunciatio," the charge by the
judge upon the denimciation of a private individual. The " de- •
nuneiatio " had no doubt been mentioned at an earlier date ; even
Gratian alludes to it in his exposition of criminal procedure;^
but he appears to have used the term as synonymous with " accusa-
tio." Even at a very early date a procedure was known in the
Canon law which sur\aved and was expounded by the Decre-
talists according to the traditionary law upon C. 13 X, " de judi-
dis." This was called " denunciatio evangelica " or " caritativa,"
because it was based upon certain passages of scripture (Math,
xviii, 15-17). It was, to all intents and purposes, a procedure of
repression, originating in the denunciation of one Christian against
another. This might have resulted in a real mode of criminal
procedure and it looks as if the old-time doctors had made attempts
in that direction ; but their efforts were fruitless, and the " denun-
ciatio evangelica " was ultimately considered as of no further

«**Le registre de rofficialit6 de Cerisy" (1314-1457), published by
M. Gustave Duvont (extracted from the **M^moires de la Society des
Antiquaires de Normandie").

* "Registre de Cerisy/' Nos. 25, 26, 73, 96, 138; "inquisita," 110, 121 ;
"Inquisitio loco visitationis," 43; "Informare," 215.

* "Registre de Cerisy," Nos. 5b, 20a, 25 e, f, 84 d.

* DurarUis, "Speculum, de inquis." §§ 2, 3, p. 30. ^

* c. 47, C. II, qu. 7, and Dictum upon c. 20 C. II. qu. 1 ; Ilostipf^sis, \^ ^
"Summa," p. 406 ; Panormiianus upon c. 13 X, " de jud." II, 1, No. 45.

§ 2] FRANCE, FROM 1200 S TO 1600 S [Pabt I

• efficacy than to allow of the application of the " censurse " or
^ " poense medicinales " and not of that of real and personal punish-
ments, " poense vindicativse." It was a means of discipline,
not of criminal repression.

Once the " inquisitio " was established, however, the judge,
instead of proceeding of his own accord, " ex mero officio," could
proceed with the inquest, " inquirere," upon the denunciation of a
private individual. This was at first done as a matter of fact,
but by and by it came to be done as a matter of law. The person
who formally made the denunciation was naturally one who was
interested in the prosecution; he was even one who could have
brought an " accusatio." This he did not do, preferring to set
in motion the " inquisitio " of the judge by means of a denuncia-
tion ; but the fact remained that it was in his interest that the
action was brought. Doctrinally he was called the " promovens
inquisitionem," and this " inquisitio cum promovente " was
governed by special rules which ascribed to the denunciator an
active part ; so much so as at first to tend to assimilate this par-
ticular application of the inquisition to the " accusatio." Chief
among these rules are the following.

We have said above that the " inquisitus." was obliged to take
^ the oath " de veritate dicenda " ; but this was originally imposed
upon him only when the judge pursued " ex mero officio," not when
there was a " promovens," " sed ibi adversarius habet probare ea
qua denunciavit." But this distinction was subsequently done
away with, and the taking of the oath was enjoined in both cases.
This was only logical, seeing that in the procedure of " accusatio "
it was imposed even upon the accused.^ In the second place,
when there was a "promovens," the rule was that the "informatio"
must first of all be established by formal proofs, which it was for
the " promovens " to furnish. It will be seen later on that when
the judge prosecuted " ex mero officio " the same necessity did
not arise. But in the former case it resulted in the accused being
allowed not only to dispute these proofs, but also to meet them
with contrary proofs, in establishing his ** bona fama " by wit-
nesses.^

But doubts were raised as to the application of the rules of the
" accusatio " in regard to one main point. The unsuccessful
accuser could be condemned, as calumnious, to the punishment of
retaliation, that is, to the punishment which he had claimed for

^ c. 18 X, "de accus." V. 1. Panormitanus upon c. 16, ibid. No. 2.
* Panormitanus upon c. 19 X, "de accus." V. 1.

Title II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 2

the accused, and for this purpose he had first of all to submit to the
" inscriptio in crimen " ; should the " promovens " be treated in
the same way in this respect ? One thing was undeniable, namely,
that if he had made the denunciation in bad faith and calumniously,
he ought to be punished " extraordinem," with a " poena extra- "^
ordinaria." But should the " inscriptio in talionem " be imposed
upon him? It seemed that it should not, because in the "in-
quisitio " the judge was, in law, the sole prosecutor.^ This idea,
however, was far from becoming the fixed general opinion, which
was, rather, that when punishment was possible, the " inscriptio
in crimen " was necessary. It was argued that the " promovens "
was, as a matter of fact, the equivalent of the accuser.

The denunciation took very simple forms; it could be made
orally and by the voice of a third person, a " procurator.'' There
were those, even among the academical Canonists, who likened
it to the " denunciatio evangelica," declaring that it equally en-
tailed, in effect merely, the "correctio" of the culprit, and that
although it often resulted in the infliction of a " poena vindicativa,"
that was when the disorder was such that order could not be other-
wise restored.^ This would explain the characteristic noticed
above that the " inquisitio " did not authorize the same severe
punishments : " nutius punitur per inquisitionem."

But the essential difference between the two kinds of " denun-
ciationes " is that any one, without distinction, could make the
one (" evangelica ")> while only those entitled to bring the " ac-
cusatio " could make the other (" judicialis").^

The net result of what we have said, however, is that the " de-
nunciatio judicialis," as understood, had become a particular form
of criminal action, and the " inquisitio," properly so called, only
existed when the judge proceeded in the matter " ex mero officio." *

A new organ of the machinery of the ecclesiastical judicature,
the " promotor," was the inevitable outcome of the theory of the ^
" promovens inquisitionem." This titular officer of the officialities
was nothing other than a functionary charged with the duty of
denouncing offenses to the judge and " promovere inquisitionem,"

«e.l6X, "deaccus." V. 1.

* e. 16 X, "de accus." and PanormitaniLS upon this chapter, No. 2.

* DuranliSf ** Speculum, de accusal." p. 24.

* PanormitanuB upon c. 24 X, "de accus." No. 21 : "Proprie processus
inquisitionis est quando judex facit ex officio suo puro et mero nemine
del erente et impetrante inquisitionem : sed q uando fit ad denonciationes
alieujus tunc est proprie processus per viam denunciationis. Propter hoc
facit quia, ex que denuntiat et eUgit viam quasi extraordinariam, debent
pnemonnisse quia forte inquisitus se conescisset."

§ 2] FRANCE, FROM 1200 S TO 1600 S [PaBT I

against the culprits. His function, moreover, was one of pro-
gressive growth. Its origin is found in the commissions and tem-
poral and extraordinary delegations made by the judge in the
course of the procedure of " inquisitio." When he proceeded *' ex
mero officio " he was bound frequently to appreciate the arduous-
ness and difficulty of his task, and he then appointed a capable
person to play the part of promotor or " promo veur " in a specified
case. This was a material and moral assistance to him, and ap-
pears to have furnished an answer to the objection which regarded
the judge as being at the same time judge and party.

It is upon chapter 53, X, " de testibus " II, 20, that the old-
time doctors base this practice. Innocent IV had already shown it
to be prevalent and attempted to deduce therefrom doctrinal
consequences. In his time the character of such a " promotor
specialiter a judice deputatus " had not yet been altogether de-
termined. In particular, it was asked if, once he had been brought
into a particular ** inquisitio," he could not be recalled or a sub-
stitute appointed, and whether he could lodge an appeal from the
judgment. He was, at all events, already styled " Minister in-
quisitionis " ; but Hostiensis states that he was not in reality
a party to the action and that the litigation should not be
conducted with him.^ The function was nevertheless destined
to become consolidated and grow into that of a titular oflBce.
But no mention is yet found of a titular " promotor " in the
" Liber practicus de consuetudine Remensi," which belongs to
the end of the 1200 s or the beginning of the 1300 s, although else-
where unmistakable and interesting traces are found of the usage
of " promotor specialiter delegatus a judice."^ An influence was
bound to be exercised in the development of the office by the king's
** procuratores," or lords justiciar, who make their appearance
about the end of the 1200 s. From 1274 we find a " procurator
episcopi Parisiensis,"^ as to whom we shall have something to say
elsewhere. In the " Registre de Tofficialitfi de Cerisy " the pro-
motor appears from the year 1338.^

The details of the " processus per inquisitionem " were settled

1 '*Vox loquando iste non est vera pars, sed quasi pars similitudine
quia talis nullum libellum offert nee litem contestatur.

* "Liiber practicus de consuetudine Remensi" (in the "Archives legis-
latives de la viUe de Reims" published by M. Varin)j Nos. VIII, p. 43.
Cc. LXXX. c. 269, p. 210.

' Tanon,*' Histoiredes justices des Eglisesetcommunaut^s eccl^siastiques
de Paris," p. 341.

* "Registre de rofficialit^ de Cerisy," Nos. 204 b, 334, 338 o, 269, 288 c,
386, 414 b.

Title II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 2

at an early date, and afterwards remained almost unaltered.
They were, in fact, succinctly laid down by the fourth Lateran ^
council.^ In the canonical common law they even allowed a
suflBciently extensive liberty of defense to the accused. The
" inquisitio " naturally began with the establishment of the " in-
famia.'' But when the " inquisitio " was made " ex mero oflScio "
no particular form was prescribed for this institution. The judge •
assured himself concerning it and informed himself in this respect
{" sese informabat ") as far as his pleasure and ability went ; in
case of appeal, however, it became necessary to justify in regard
to it before the superior judge.^ But it was otherwise when there i/
was a " promovens." In order to prove the " infamia " he had,
first of all, to produce witnesses, who were heard by the judge, or
more frequently by a deputy of the judge or merely by a notary,
in the absence of the accused, who, moreover, had not yet appeared.
This gave rise to the first opportunity of defense offered to the
accused. When he was summoned he was entitled to require
that he be made acquainted with the testimony by which he was
" infamatus," and he could then dispute it.' It was asked if the
** inquisitus " could not himself bring witnesses to prove his " bona
fama." It was a natural thing to allow this, but it was also a .
delicate matter, to prevent the testimony of one set of witnesses
contradicting that of the other. The judge was generally allowed
to choose between the different affirmations " propriis auribus se
informans.^' * Unless there had been an " inquisitio prsecedens
de infamia," it was necessary in all cases ior the " inquisitus" to
claim, otherwise the irregularity was waived.^

The accused was then summoned, unless he had been " captus "
at the outset. He appeared before the judge and was made ac-
quainted with the offenses imputed to him. This was done in
either of two ways. If the "inquisitio " was brought " ex mero
oflBcio," the judge drew up " articuli," comprising the different
charges upon which the " inquisitio " was to rest, and these he was
required to communicate to the accused, giving him a copy of
them and granting a delay sufficient to allow him to examine
them.* If there was a " promovens," he was obliged, in the
same way as a plaintiff in a civil action, to draw up a " libellus"

»c. 24X, "deaoous." V. 1.

* c. 19 X, "de accus." V: 1, and Part^miianvA upon this chapter.

* PanormUanuSf "Praotica," c. 150.

^ Panarmilanus, upon c. 19 X, "de accus." No. 10.
*c. 2VP, "deacous." V. 1.

* DurarUis, "Speculum, de inquis." p. 36.

§ 2] FRANCE, FROM 1200 S TO 1600 S [Part I

and the " litiscontestation " intervened, the accused taking
part.^

The examination began with the interrogation of the accused
by the judge, who could repeat it as often as he pleased. The
accused was compelled to reply, and we know that he was bound to
reply under oath. The difference at first recognized in this respect
between the ** inquisitio ex mero officio " and the " inquisitio cum
promovente," disappeared at an early date.^ If he pleaded guilty,
that was, in effect, sufficient to authorize his condenmation,* and
if he pleaded not guilty, the judge or the " promovens " produced
evidence, mainly testimonial, against him.

In the " inquisitio '' in its first form, two distinct sets of witnesses
were, by law, heard, one to the " infamia " and one to the guilt.
When the *' inquisitio " was made ** ex mero officio," the testi-
mony establishing the " infamia " was not, for the most part,
formal testimony. In all cases the testimony received in the
preliminary inquiry (or examination), ** super infamia," was in-
admissible against the " inquisitus " for the purpose of proving his
guilt, and there were necessarily two successive and separate in-
quiries, even when the same persons testified in each.^ But this
rule was not absolute ; it was subject to exception in the case of
proof of the " corpus delicti " in notorious offenses unless the cuU
prits were known,^ and in the " inquisitio generalis," directed
against a society or a conununity,^ where the " inquisiti " could be
condemned upon the testimony of the witnesses originally heard
and without new inquiry.

The witnesses whose allegations could entail condemnation were
heard in secret and out of the presence of the " inquisitus."
This, however, was not a characteristic peculiar to the " inqui-
sitio " ; it also existed in the action " per accusationem " and in
civil causes. Liberty of defense, as it was then understood, was
in force. In the first place, on the termination of the inquest,
the " inquisitus " received the depositions of the witnesses. He

^ DurantiSf ibid,, p. 34; Panormitanua, "Praotica," c. 150.

* Durantis, *' Speculum, de inquis." p. 34: "Post hoc interro^bitur ;
c[uod si confessus, bene, procedat ad poenam. Si vero negavent, tunc
inquisitur inducat testes.

* Durantis, "Speculum, de inquis." p. 32 : "Si enim reciperentur testes
simul super crimine et super infamia, ssepe is qui inquisitionem prose-
quitur, ut sic ad probationem criminis admitteritur de quo €[uis infamatius
non est, quod esse non debet;" — p. 33: "quid si inquisitor potuisset
inquirere de infamia et de criminibus ? Responde : Non servaretur ordo
juris, Nam infama inquisitio prsBcedere debet veritatis cognitionem nee
debet processus tali permixtione confundi."

* Innocent IV, upon c. 23 X, "de elect." I, 6.

* Panormitamts, upon c. 22 X, "de accus." No. 2.

TlTL* II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 2

not only got the witnesses' names but also a copy of the depositions
themselves.^ He had the right to have such witnesses interro-
gated anew and to produce against them his objections to their
admissibility and his repUes to their testimony.^ He could even
freely plead excuses and justifications and bring witnesses in sup-
port of these allegations.^ Finally, the old texts contain no re-
strictions as to the assistance of a counsel.^

It is true that the procedure of the " inquisitio " allowed tor-
ture, but it was the torture of the " accusatio " and practised under
the same conditions. The Canon law had permitted it by virtue
of the predominating influence of the Roman law. No trace of j
it is to be found, to be sure, in the procedure of the ecclesiastical
courts of the Prankish monarchy,^ and the " Decretum " of Gratian / yj
contains the opposite theory, which bars and repudiates torture.*
That is also the doctrine reproduced in the *' Summa " of Pauca-
palea, while that of Etienne de Tournay (between 1165 and 1177) y
only recognizes the application of the torture to slaves and false
witnesses (p. 221). The instrumentality by which the influence of
the Roman law in this direction was augmented and sanctioned is
to be found in certain passages borrowed from the ancient ecclesias-
tical Fathers who lived in the days of the Roman Empire, and who i
spoke of the torture which they saw in practice every day in a !
cixdlized country as if it were a natural and normal thing.^
Johannes Teutonicus, who compiled the glossary to Gratian's
" Decretum," also approves, in his teaching, of torture, and he v^ ^
adopts all the applications made of it by the Roman laws.* The
great doctors of the 1200 s, including Innocent IV and Durantis,
entertained no doubts as to the legality of this method of examina-

* c. 26 X, " de accus." V. 1. Durantis^ " Speculum^, de inquis."
p. 32 : " ^t dabitur ei facultas defendendi se et dabuntur ei nomina testium
et dicta eorum sunt ei publicanda et de lis copia facienda, ut se defendere
possit et proponet exceptiones et replicationes tarn in principali quam
contra testes. '

* ^rantis, '* Speculum, de inquis." p. 33 : ''Item potest opponi contra
tesies inductos et replicari et contra dicta eorum. Unde cum testes contra
•tun producentur, protestetur quod possit opponere in personas eorum et
ilieta; et formet mterrogationem et judici porrigat ut secundum Uno,
testes interroget, secundum Rolandum."

»oe. 18, 19 X, **de accus." V. 1. Durantis, *' Speculum, de inquis."
pp. 2H, 34, 35.

* Fanormilanua, **Practica," c. 150, p. 30 : " Advocatus inquisiti quibus
idiB prospicere possit suo clientulo.

* It is ninted at only in one pseudo-Isidorian passage (c. 4, C. V. qu. 5),
wUdb speaks of the torture administered to accusers and witnesses, and
wUeh aims at the protection of the bishops against accusations.

•C. XVI, qu. 6, under the headings of "Cause" and "Torture." u »..

» «. 1 C. XV, qu. 6 ; c. 1 C. XII, qu. 5.

* Qloss upon C. XV, qu. 6, q.v.

§ 2] FRANCE, FROM 1200 S TO 1600 S [PakT I

tion. Certain formal texts, having the force of laws, also admitted
it.^ In the " inquisitio hsereticae pravitatis " the legislation
was particularly precise.^

We have said that the canonical procedure " per inquisitionem *'
in its broad features remained throughout much as it had been at
its beginning. It underwent sundry important modifications,
however, the consequences of which were more severely felt in
the secular than in the ecclesiastical courts. One of these was the
abolition of the distinction, formerly so well defined, between
the " inquisitio super forma " and the " inquisitio super veritate."
The first " informatio " had a double purpose ; but a practice was
introduced by which, at least whenever the " inquisitus " de-
manded it, the witnesses heard in the information must be ex-
amined anew.' This was the " repetitio tertium," equivalent to
our re-examination of the witnesses.

Another was the limitation placed upon and the final abolition
of the right of the " inquisitus " to have full knowledge of the
depositions produced against him and to learn the names of those
who had made them. Already the doctors of the 1200 s asked
whether it was invariably necessary to acquaint the " inquisitus "
with the names of the witnesses. Some of them would not per-
mit it when it might be attended with danger. Innocent IV left
it to the judge's discretion.* The fact was noted that c. 26 X, "de
accus." expressly mentioned the " dicta testium " only and did
not speak of the " nomina." One of Boniface VHFs decretals
unreservedly suppressed the names in the "inquisitio hseretica
pravitatis." * A further step had to be taken. Letters of the
popes Pius IV and Paul III generalized the principle.* We shdll
fiind that with us the practice ceased in the secular coiuts in
the course of the 1300 s. It was maintained that this safeguard
/ was replaced by another, the confrontation^ that is, the bringing

> C. 1. (Alex. Ill) X, de depositor III, 16; "Nam judioibus dedimus in
mandatis ut idum iniquum suh qiLestionibtis ad rationem ponant." Flagel
lation in particular appears to nave been employed as a means of torture,
c. 4, X, de raptor : " Poteris . . . etiam flageUis adficere ea tamen moderatione
adhibita quod flagella in vindictam sanguinis transire minime videaaiur.*'
One passage would seem to have a general application, c. 6, X, de reg.iurU,
V. 41 : "In ipso causa initio non est a qusstionibus inchoandum.' It
is true that some read "questibus" instead of "qusBstionibus." But that
text is taken h*om a letter of Gregory I, and merely reproduces a Roman
rule in regard to torture, Book 1, par. D. XLVIII, 18 ; L. 8, § 1, G. IX, 41.

* Clement, 1, "de haeret," V. 3.

* GtMzzini, "Tractatus ad defensionem inquisitorum," Venice, 1649,
."defensio," 25 V, pp. 15, 19.

* Panormitanu8, upon c. 26, "de accus." V. 1.
»c. 20VP. "dehffiret." V. 2.

* Guazzini, op. cit, "defensio," 24, II, p. 3 e/ seq,

TiTLB II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 2

face to face of the accused and the witness, when the deposition
of the latter was read over to the former. The confrontation was
not unknown in the canonical procedure, but it was not required
as a matter of right and the proceeding was quite valid without it.
It was> however, very frequently employed, as it was, as a matter
of fact, an excellent method of examination. It was, moreover,
held in law that it cured all defects of the summons, — even the
lack of summons,^ — and that it was equivalent to the ** publicatio
processus." ^

Such is the inquisitorial procedure of the common law. But,
for the general mass of humanity, who had little knowledge of the
history of the law, it received a special and world-famous applica-
tion in the Holy Inquisition itself. Created in the 1200 s to quell ^
the great heresies of the Waldensians and the Albigenses, this was in
very active operation in the south of France for about a century.
It had two especially distinctive and peculiar features. In the first
place, its judges were not the ordinary ecclesiastical judges, but
special delegates of the Pope, usually drawn from among the Do-
minican and Frahciscan friars, who constituted special tribunals of
Inquisition. In the second place, though its procedure followed, in
effect, the "processus per inquisitionem," or Canon common law, as /
we have described it ; yet the Holy Inquisition employed the most
drastic rules of the Canon common law. We have already referred
to the text which sanctioned the withholding of the names of the
witnesses from the " inquisitus " ; the aid of counsel, if not wholly
prohibited, was at all events rendered more difficult and its allow-
ance surrounded with precautions ; and, above all, witnesses con-
sidered incompetent on principle were held to be admissible and
were heard. The first of these characteristics lost much of its
importance through the decrees passed by the Council General of
"Vienna in 1312, but it never altogether disappeared. Associated
in the pursuit and the judgment of heretics were the Inquisitor
and the bishop, the " judex ordinarius." Each of these function-
aries maintained an independent initiative in the pursuit and the
summons ; but all the important steps of the procedure had to be
taken in unison.'

Elsewhere, from the 1300s onward, the Holy Inquisition has
a local history of its own with each of the important European
nations. In France it soon lost its importance; at the end of
the 1500 s it is in rapid decline and on the way to ultimate total

> GuazHni, op. cU, "defensio," 20, c. 19, II, p. 315, 317.

« Quazzini, op. eU. p. 318, No. 7. » Clement, 2 "de hcBret." V. 3.

§ 3] FRANCE, FROM 1200 S TO 1600 s [Part I

desuetude. The pursuit of heresy became a royal and privileged
cause, the cognizance of which belonged to the royal jurisdictions,
except when the king pleased to confer it upon the ecclesiastical
authority, which sometimes happened in the course of the complex
and changing legislation of the 1500 s against the Protestants.

But we may leave at this stage the " Inquisitio heretica pravi-
tatis," for the great influence exercised upon the development of
French law cannot be attributed to that institution, but to the
" inquisitio " of the Canon common law.

§ 3. The ** Aprise ** or Official Inquest. Its Appearance in
the 1200s. — We have pointed out above that in the 1200s
the official prosecution made its appearance in the secular juris-
dictions under the name of " aprise."

How did this come about? Down to that time the inquest
(" enqu^te '*) was only possible if the man arrested on suspicion
y- submitted to it of his own free will ; though an indirect and very
strenuous means of constraint was often employed, " the close
/ (* dure *) prison with little to eat and drink." Was it not simpler,
more in accordance with the dignity of the law, to decide that all
consent should be dispensed with, that the judge should have the
power to open the inquest in all cases, and if it should be conclu-
sive, apply the punishment ? Such a development was the logical
outcome, and the old jurists found in the theory a judicial basis.

In case of a capture in the act, it was always admitted that the
malefactor could be punished without a formal accusation, solely
on the testimony of those who had seen him commit the mis-
deed.^ It was thought that a fact which would be sworn to by
many witnesses and which would, therefore, be a matter of public
notoriety could be held to be a capture in the act ; and that the
judge could then of his own accord hear the witnesses and pro*-
nounce the punishment.* This was called " Taprise," in low Latin,

1 "Livre de Jostice et de Plet," XIX, 44, § 14: "Those who are ar-
rested for present misdeed and immediately brought into court go by in-
quest . . . in case of denial : becauseit is recognized that mi sdeeas known
to have been done ought to be punished.''

' ''If he who is arrested on susi)icion of an offense will not stand the
inquest into the fact, the 'aprise' is the appropriate procedure; that is
to say, the judge should of his own accord make an ' aprise ' and inquire
whatever he can ascertain concerning the deed, and if by the 'aprise' he
find the jaci notorio^is among a large number of people^ he can properly pass
judgment upon the 'aprise. And he should be able to ascertain the fact
BO clearly by the 'aprise' that the prisoner can be judged. But before
he can be sentenced to death by the 'aprise,' it is proper that the fact
should be clearly ascertained by at least three or four witnesses, so that
the sentence shall not be based solely upon Ike * aprise* but also upon
notorious fact" Beaumanoir^ XL, 15 (Salmon, No. 1232).

;

Title II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 3

" aprisio." Beaumanoir explains the word in this sense that
**the judge is the wisest as to the necessity (of the case) that he
has opened up."

According to him, this would be merely a kind of police in-
quiry which could only entail a condemnation if it approached
the semblance of an establishment of a capture in the act.^ But
this theory was too subtle and too inadequate to last long. The
" aprise " ought to be, as far as its effects were concerned, exactly
similar to the inquest : but the similarity was not very striking.
For a fairly long time the sufficiency of the " aprise " to sustain
the ordinary and normal punishment of the offense was denied.^
Several texts only allowed of the outlawry of the guilty person
in such a case. "Les Etablissements de St. Louis" expressly says
so : '* If any be of evil report by proclamation or by public rumor,
the law should seize him and inquire (' enquerre ') into his acts
and his mode of life at the place of his abode, and should he be
found on inquiry guilty of any act involving capital punishment,
he should not be condemned to death if no one accuse him, or when
he is not taken in the act and there is no avowal. But if he will
not submit to inquest, then the judge should make it and banish
him, should he appear guilty on the facts and as he shall find
by the inquest which he shall have made of his own accord." *
" Le Livre des Droiz et Commandements de Justice " is no less

^ He contrasts the ''aprise '* with the inquest ''which brings the quarrel
to an end." XL, 16 (Salmon, No. 1233). — See as to the "aprise"
the "Registre des Orands^ours de Troyes," quoted by Briissel^ "Usage
des fiefs": "Cum non appareret sufficiens, accusator . . . inquesta seu
aprisio facta est," vol. I, p. 227. — "On the advice of knights, esquires, and
certain other gentlemen . . . caused him to be arrest^ and imprisoned
. . . and on the aforseaid information and advice caused an 'aprise' to
be held upon the fact and suspicion of the said murder." In Beaumanoir's
eyes the word "aprise" is really the translation of the term "infonnatio"
and "aprandre" is the equivalent of "se informare." Fundamentally,
therefore, he copies the Canon law as far as he can. M. Zucker, "Aprise
und loial Enqu§te," pp. 93, 96, holds, on the contrary, that the term
"aprise" comes from "prisio," "prise," the fact of the seizure and impris-
onment of a person. But that is not reconcilable with the passage quoted
from Beaumanoir. "Prise par suspicion" is doubtless frequently men-
tioned, but that is because the capture and the imprisonment almost
always accompany the "enqu^te" or the "aprise."

- This is a feature which we have noticed in connection with the "in-
quisitio" of the ecclesiastical courts.

»II, 16; cf. Beaumanoir, LXI, 20 (Salmon, No. 1727). The text of
the "Etablissements," in order to permit of this official prosecution, ex-
pressly refers to the Roman law ; "For it is one of the duties of the pro-
vost and every loyal judge to cleanse his province and his jurisdiction of
all wicked men and women according to the law \vTitten in the Digest "de
receptatoribus" . . . and in the law "Congruit" in the Digest "de officio
Prsesidis" . . . and so he may put him to the inquest and if the inquest
should prove him guilty, the judge should condemn him to death, if it
be one of the cases above mentioned."

3] FRANCE, FROM 1200 S TO 1600 S , [PabtI

clear, although it belongs to a later epoch. " Of ba »^ pj^i report and
official action of the court ; how malefactors may be 1 r}g(ji(?«niAed, on
proclamation, or on public report and bad repute : — '«sia^^ ^^' ^^
may apprehend him and inquire into his actions, at the '^j)laceof
his abode; and if he finds him guilty he should not thei^ ■•fore
condemn him to death when he is not taken in the act or on avowcrf
or when he has refused the inquiry; but he can clearly banish''^
him according as he shall be found guilty. But several well ad-
vised deny this so far as regards the banishment.'* ^ — " Also,
another proof which the old law calls ' inquisitive,' that is to say,
when an information is laid or any official inquest {' enqueste ')
in any matter or offense, and witnesses are brought, but he who
is under suspicion is not tried of his own free will, or taken
in the act, or submits to the inquest by the country (* du
pais ') of his free will, such inquest shall not be the basis of his

apprehension and detention for the purpose of making him stand
trial." 2

The " aprise " was undoubtedly introduced into the secular
jurisdictions principally in imitation of the procedure of the ecclesi-
astical courts ; that will be clearly apparent in the ordinances of
the 1300 s which regulate the new inquest in a verv clear fashion,
though in few words, and which reiterate the principles and the
terminology of the Canon law.^ The first ordinance which men-
tions it in any precise way calls it an institution of the countries
of written law. This Ordinance of 1254 is designed " for the re-
form of the customs in Languedoc and Languedoil."

It contains a double text in Latin and in French. The Latin
text, designed for the provinces of the South, contains an article,
21, couched in these words : *' Et quia in dictis seneschaliis secun-
dum jura et terrse consuetudinem fit inquisitio in criminibus vo-
lumus et mandamus quod reo petenti acta inquisitionis tradantur

i§328.

* § 476, cf. BoutariCj *'Actes du Parlement de Paris," decree of 1259
(No. 345) ; it concerned a real royal violation of the law ; the culprit is to
be kept in prison until he has paid the penalty of his crime against the
king. '^Salva tamen eidem vitS, su&, membris suis et hereditate sua, quia
non supposuit se isti inqueste." No. 4372; Decree of 1315; the
guilty person is condemnecf to death: "it was proved against him that
he had accepted the *enqu6te' presented to the bailiff."

* On the influence of the Church in the domain of the procedure see M.
G/a«8on, *'Les sources de la procedure civile frangaise'* (Nouvelle Revue
historique du droit frangais et stranger," 1881, p. 413 et seq.), M, Stint"
zing (*'Geschichte der deutschen Rechtswissenschaft," 1880, p. 27) points
out that by reason of the exegetic plan exclusively followed in the Univer-
sities, **the criminal procedure in so far as it was connected with the civil
procediu^ was, especially for the canonists, a subject which they had to
expound from the second book of the 'Decretals. * "

Title II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 5

ex integro." ^ Is not the conclusion possible that the criminal
inquiry before reaching the North would have taken root as a
normal institution in the Souths where the inquisition against the
heretics had first made its appean*ance ?

But the " aprise " found a basis of support elsewhere than in
the Canon law. It is nowadays accepted that in the time
of the Prankish monarchy, under the Carlovingians, another
procedure held its place side by side with the strict and formal
common law. In this procedure, which was styled " per inquisi*
tionem," the judicial duel, the exculpatory oath, and the formal
testimony had no place. In principle, the king alone, by virtue
of his sovereign authority, had the right to proceed by inquisitions
personally or by delegates. The person commissioned to inquire
(" inquirere ") assembled together a certain number of men be-
longing to the district, and, on the faith of their oaths, took their
declarations upon the point in litigation; he then pronounced
the sentence in accordance with their allegations. This descrip-
tion of regalian right did not belong to the judges except by virtue
of a commission from the sovereign ; but when fiscal rights were
concerned the procedure was always " per inquisitionem," and
the churches and monasteries obtained by privilege the employ-
ment of this procedure in the actions in which they were interested.
It was also employed in actions in which widows, orphans, and
the indigent, "homines minus potentes,'* figured. But in the
Prankish period the inquisition was rarely employed except in
dvH matters.* This right of causing inquest to be made (" en-

* Ord. 1 , p. 72. The editor points out that, in the French text, Articles
20, 21, and 22 are wanting.

* See upon all these points the noteworthy works of M. Brunner, "Die
Entstehun^ der Schwurgerichte/' ch. VI, pp. 84-126 (1871). — "Zeugen-
und-InquisitionB-Beweis des Karolingischen Zeit " (1866). In the capitu-
laries instructions addressed to the ''missi" are sometimes found, which
charge them to inquire C' inquirere '*) when a crime has been committed.
But it appears that once the *'inquisitio*' was made, the action could pro-
ceed to its termination only in one of two ways ; either an accuser presented
himself, or the accused purged himself by his oath or by the ordeals. See
especially "Capitulaire de latronibus," Ann. 804 (Pertz I, 129) ; chapter I
is in very general terms : " Ut ubicumque eos repererint diligenter in9[uirant
et cum discreptione examinant, ut nee hie superfluum faciant, ubi ita non
oportet, nee praetermittant quod facere debent ; " but chapter 2 provides
for the presence of an accuser and the judicial duel ; chapter 3 speaks of
ordeals. See also examples of official prosecution in the laws of the
barbarians. Lex Burg., LXXXIX {Walter)'. **De reis corripiendis,
Gundebaldus rex Burgundionum omnibus comitibus . . . prsBceptionem
ad eos dedimus ut si quos caballorum fures, aut effractores domuum, tarn
criminoBos quam suspectos invenire potueritis, statim capere et ad nos
adducere non moretur. Futurum ut is qui capitur, et ante nos ad duct us
fuerit, si se innocentem potuerit adprobare, cum omnibus rebus suis liber
absceiat, neque calumniam pro eo quod ligatus aut captus est movere pr»-

§ 3] FRANCE, FROM 1200 S TO 1600 S [Part I

querir ") was retained by royalty in the Middle Ages. It exercised
it when its civil or feudal interests were at stake. The " Livre
de Jostice et de Plet " contains an important chapter which in this
respect reproduces the principles of the Prankish period.^ Book
XIX, Tit. 44: " § 1. If the king claims from any one heritable
or moveable property, taken from him or due to him, he wins or
loses by inquest. ... § 3. If any one beats or maltreats one of
the king's officers of the law while in the performance of his duty,
that is a matter for inquest. ... § 7. If any stranger take a
prisoner of the king's, together with other things belonging to the
king, by main force, that is a matter for inquest. ... §11. WTio-
ever makes raids by force of arms and carries away and destroys,
that is a matter for inquest. ... § 13. He ought to make in-
quest who knows to do it ; and should make inquir^-^ as to all the
particulars of the dispute, and the witnesses cannot be falsified." *
But that did not apply to criminal matters ; the consent of the
accused was at that time necessary, as we have seen, before the
inquest (" enqufete ") could proceed. This reasoning, then, must
be adopted ; since the king is directly interested in the repression
of crime, why not employ the inquest in this case as in all cases
where the king's interests are concerned? This is a strong
argument; and it happens that in the same chapter of the
** Livre de Jostice et de Plet " in which we read that old maxim
** none shall be put to the inquest to lose life or limb " * we see
the inquest admitted in criminal matters :

" If injury is caused to a poor person who cannot prosecute his
rights, either by himself, his goods, or his friends, such matter
should proceed by inquest; for such matters are not allowed to
come to naught because of such poverty. And if he claim for an

sumat. Si vero criminosus inventus fuerit, poenam vel tormenta suscipiat,
quffi meretur . . . et non solum in eum tan turn pa^m, ubi consistit,
liceat persec[ui criminosum ; sed sicut utilitas aut fides uniuscujusque
habuerit, etiam per alia loca ad nos pertinentia non dubitent hujusmodi
personas capere, et judicibus prtesentare, ut prsefata scelera non liceat
esse diutius impunita.*' — Lex Wisigoth, lAh. VI, tit. 5, 1. 14: "Si homi-
cidam nuUus accuset, judex mox ut facti crimen agnoverit, licentiam habeat
corripere criminosum, ut poenam reus excipiat, quam meretur."

* The title is : "What matters should be dealt with by inquest."

* In ciWl matters, the inquiry was introduced on a great many points
into the ordinary procedure, in order to dispense with the "battle." This
was done, for example, in matters of sasine ("Livre de J. et P." XIX,
44, § 6), of partition {ibid., § 10), and wills (ibid., IV, 4, § 1). Chapter 44
of book XIX sets out with a maxim very propitious to the extension of the
inquiry. Johanz de Beaumont says : " Chamberlains of France should see
to it tnat battles should be avoided as far as possible and that lawsuits
should be brought to an end ; this concerns a right common to all.' "

» XIX, 44, § 4.

Title II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 3 a

offense involving capital punishment it is not a matter for inquest,
except it happen that the king should grant conditional absolu-
tion." ^ And a little further on : " If the man or the woman who
is killed shall have no relative or friend who can avenge him or her,
the king can prosecute and punish according to what is ascertained
in the * aprise/ without capital condemnation." ^ — " The king
can make an inquisition by reason of evil notoriety on keepers of
brothels, thieves, doers of malicious mischief, rioters, and those
who are accustomed to commit other mischief, and punish at his
pleasure, without capital punishment, so that honesty do not
sufTer ; if any one is feared on account of his cruelty or excesses,
punishment ought to be administered without delay." '

In this way the inquest by the country (" enqufite du pays ")
was bound to become merged in the " aprise." But the prob-
ability is that the right of causing an inquest to be made (" faire
enquSrir ") was at first exercised by the king alone as a kind of
right of the crown. The "Olim" books, which offer numerous ex-
amples of criminal inquests, do not fail to note that they were held
" de mandato domini regis." * Even at a fairiy late date the
right of inquest was still refused to the inferior courts of justice :
" No mesne lord can release a felon without the assent of the baron,
but the cognizance belongs to the baron ; nor can he cause inquest
to be made (' fere enqueste ')> which appertains to high justice." ^

§3 a. Same: The Denunciation. — The ''aprise" led to the
denunciation. Many people were bound to shirk an " accusa-
tion." Its danger was apparent as long as the judicial duel
remained in existence, and later, the courts, following the

« XIX, 44, § 8. * XIX, 45, § 1.

•XIX, 44, § 12. The "Livre de Jostice" also takes notice of the ec-
clesiastical inquisition, I, 3, § 7 : " The king by advice of his barons makes
the following '^tabUssement' or law; when a man shall be suspected of
heresy, the ordinary judges should reauest the king or his court to make
the * aprise ' in regard to the case. He should be apprehended and im-
prisoned. Afterwards the bishop and the prelates of the place, that is,
the Church officials, should hold an inquisition upon his case and inquire
of him concerning his faith. And if he is condemned by their judgment
and holy Church takes what belongs to it, the king afterwards takes posses-
sion of the prisoner and causes his execution, and all his goods belong to
the king, except his wife's dowery and his heritage.''

♦ See for example vol. I, pp. 213, 394, 482, 544, 619, 768. See Pardesssus,
''Organisation judiciaire," p. 107: '*The court (of the king) appears in
very early times to have given to the jproof by witnesses or by written
documents the preference over the judicial combat, and I firmly believe
that, when Saint Louis, by the ordinance of 1260, prohibited this combat
within his domains, he but generalized a custom which his court had for a
long time practised."

' "Etablissements de St. Louis," II, 35. Probably the onlv object of
this text, even in its concluding words, was to limit the right of low justice.

§ 3 a] FRANCE, FROM 1200 8 TO 1600 s [Pabt I

principles of the Roman law, still declared that the defaulting
accuser could be condemned to the punishment of the talon.
It is important to remember that before the ecclesiastical
courts the injured party could rest satisfied with denouncing
the misdeed to the judge, who then prosecuted officially; and
this convenient procedure now came to be employed before
the secular jurisdictions. But at the outset, as in the case of the
" aprise," before the denunciation could be effectually made,
the fact must be sworn to by numerous witnesses, — it must
be tantamount to a taking in the act.^ This restriction was
bound very soon to disappear and the denunciation to be always
admitted. The complainant, however^ did not necessarily lose
all his interest in the action : he often remained a party to it,-r- as
in the case of the " promovens inquisitionem " of the Canon law, —
with the object of obtaining a pecuniary reparation for the dam-
age which he had suffered; this gave rise to the appointment of
the civil party. The following passage of the" Livre des Droiz "
contains a very accurate description of the new forms of the
criminal procedure : " The law declares that there is a difference
between accusation, inquisition, and denunciation. 'Accusation *
is when any one accuses another of crime and constitutes himself
a party ; it is proper in such case that he give security and sub-
mit to the punishment known to the law as ' ad poenas talionis.'
* Inquisicion ' is when the judge makes inquiry of his own accord
and brings suit ' quod fama prsecedat,' according to law.
' Denonciaiion ' is when any one informs against another in any
matter, for the purpose of having restoration of his chattel, in
which case he should aver that he does not seek criminal recourse
against the party, but merely restoration of his chattel." *

The " aprise " and the denunciation were not introduced with-
out meeting with strong opposition. When the person prose-
cuted was a serf (" homme de poeste " ) there was little trouble ;
but when the matter concerned a gentleman having the right

^ Beaumanoir, LXI, 2 (Salmon, No. 1710) : "But there is indeed another
way besides the accusation ; for before the accusations are made, if he who
desires to accuse wishes, he may denounce to the judge that this misdeed
has been done in the sight and to the knowledge of so many reputable men
that it cannot be hidden ; and upon this he ought to act as a good judge
would, and inquire into the matter although the party does not wish to
submit to inquiry. And if he find the misdeed open and notorious, he
may sentence him according to the misdeed. For it would be an unjust
thing if any one had killed my near relative openly or before a large number
of people, if it behooved me to fight in order to obtain vengeance. And
so in those cases which are mentioned one may proceed by way of denun-
ciation."

*§942.

100

TiTLS II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 3 a

to trial by his peers according to the old forms, with accusa-
tion and battle, the *' aprise '' constituted an attack upon the
privil^es of the feudal subject. The aristocracy resisted, and
numerous traces of this strife remain. The most curious document
reflecting this is the account of an action brought against one of
Saint Louis' " men " (" hommes ")• This narrative, reduced to
writing by the Confessor who wrote a life of the king, presents a
vivid picture of this old quarrel, and we may be pardoned if we
quote it almost in its entirety. " As my lord Enjorranz, lord
of Couci had caused three young gentlemen to be hanged . . .
because they were found in his forest with bows and arrows ^ . . .
the said abbot ^ and certain female relatives of the said persons
who had been hanged carried complaint of their killing before
our gracious king ; who caused the said Enjorranz, lord of Couci
to be summoned before him, since it was his duty to make adequate
inquest (' enqueste suffisant ') as should be done in such a case ;
and he then caused him to be arrested by his knights and officers
and brought to the Louvre, and put in prison and there held in a
room, unfettered. And one day while the said Enjorranz, lord
of Couci was thus held, our said gracious king caused the said
lord of Coud to be brought before him, with whom came the
king of Navarre, the duke of Burgundy, the count of Bar, the
count of Soissons, the count of Brittany, the count of Champagne,
my lord Thomas, then archbishop of Rheims, and my lord Jehan
de Thorote, and also all the barons of the kingdom.^ Finally
it was proposed on behalf of the said my lord of Couci before our
gracious king that he desired to take advice, and then he went
apart with all the beforesaid noblemen . . . and when they had
consulted a long time they returned before his gracious majesty
and the said my lord Jehan de Thorote ^ in behalf of the said En-
jorranz, lord of Couci urged that he ought not to and would not
submit himself to inquest in such case, such inquest touching his
person, his honor, and his property, and that he was ready to de-
fend himself by battle, and denied absolutely that he had hanged
the aforesaid youths or caused them to be hanged. And when
our gracious king had patiently heard the determination of the
said my lord Enjorranz, lord of Couci, he replied that in the af-
fairs of the poor, the churches, and of those deserving of commisera-

^ They had committed a hunting offense.

* The three youths belonged to tne retinue of an abbot.

'This is an assembly of peers called tog^ether to judg:e one of their
number.

* He plays the part of "avant parlier.**

101

§ 3 a] FRANCE, FROM 1200 S TO 1600 s [Part I

tion it was not proper thus to proceed by law of battle ; for it was
difficult to find any who would combat for such manner of people
against the barons of the realm, and he said that a new procedure
could not be adopted different from that followed in former times
by our ancestors in similar cases. And then his gracious majesty
related how his uncle, king Philip, because my lord Jehan, then
lord of Soilli, was said to have committed a homicide, caused an
inquest to be made against him and held the castle of Soilli for
twelve years, although the said castle was held of the king by
immediate homage. Then his gracious majesty refused the said
request and straightway caused the said lord of Couci to be ar-
rested by his officers and brought to the Louvre and there held
under arrest . . . and then his gracious majesty adjourned his
court and the aforesaid barons departed thence amazed and
abashed. And that same day, after the said reply of his gracious
majesty, the count of Brittany said to him that he ought not to
maintain that inquests should be made against the barons of the
realm in regard to matters which concerned their persons, their
property, and their honor. And his gracious majesty replied
to the count : 'You did not speak thus in former times when the
barons who held of you by immediate homage brought before us
their complaints against yourselves and offered to prove their
cause of action in a specified case by battle against you. You
then answered before us that you should not proceed by battle
but by inquests in such cases, and that battle is not the lawful
way.' — He added that, since the said lord of Couci had not sub-
mitted to the said inquest he could not, according to the customs
of the kingdom, judge by inquest made against him by which he
could punish him personally. But as he knew well God's will
in this case, he would not allow his noble birth or the power of any
of his friends to prevent him from administering full justice upon
him. And finally his gracious majesty, by the advice of his
counsellors, sentenced my lord of Couci (to a fine) of twelve
thousand livres of Paris." ^

*"La vie de St. Louis" by Queen Marguerite's confessor. "Recueil
des Historiens des Gaules et de la France," Vol. XX, pp. 113, 114. The
demands of the barons are renewed with added vigor on the death of St.
Louis. When Queen Blanche convoked them for the coronation of her
son, they laid down their conditions: '* Maxima pars optimatum ante
diem prsefixam petierunt de consuetudine Gallicana omnes incarceratos
et prsBcipue comites Flandrensem Ferrandum et Bononiensem Reginaldum
a carcenbus liberari, qui in subversionem libertatum regni jam per annos
XII arctiori custodia in vinculis tenebantur. Petierunt insuper quidam
eorum terras suas sibi restitui quas pater ejus Ludovicus et avus illius
Philippus multo jam tempore injuste detinuerant occupatas. Adjiciunt

102

Title II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 3 a

Here the protests of the barons and the manner in which St.
Louis laid down the new doctrine are portrayed with a lifelike
touch. But royalty could not overcome everywhere and at once
this obstinate resistance of the old svstem of law. In the 1300 s
we find, on the contrary, a number of documents which half yield
to it. Two ordinances of 1315 (Louis X) recognized the privileges
of the aristocracy of Burgimdy and Champagne in this respect. The
king decides upon the protest which has been made to him : *' The
first matter submitted to us is as follows. First, that in case of
crime it shall not be lawful to proceed against the said nobles by
denunciation or upon suspicion, nor judge or condenm them by
inquests, unless they submitted thereto; although the suspicion
might be so great and so notorious that the suspected parties
against whom the denunciation should be made ought to remain
in the custody (' en Thostel ') of his lord for a period of forty
days, or two or three such periods at the most, and if within that
time no one should accuse him (' Tapprochoit ') of the deed, he
should be liberated on bail ('ostagez ') ; and if an accuser present
himself (' en fai^nt partie ') he should be entitled to have their
defense by wager of battle. We allow them, if the person be not
so infamous or the deed so notorious that the lords should have
recourse to some other remedy. And as to the wager of battle,
it is our will that it be made use of as has been formerly done." ^
And the following provision is made in regard to the nobility of
Champagne : ** Art. 13. Also, when any gentleman of Champagne
was arrested on suspicion in case of crime he should be heard as
to his sufficient reasons and defenses and held prisoner for a cer-
tain time, and if any one should appear who accused him (* feist
partie contre li ') he was entitled to defend himself by wager of
battle if he did not desire to submit to inquest. And to this end he
should be released from prison, if he had not been arrested in pres-
ent misdeed ('en prfeent meffet')- It is our will and pur-
pose that every one arrested for a criminal matter be heard as to
his sufficient reasons and that justice be done him in the matter,
and if any ' aprise ' be made against him, that he be not con-
demned or judged by that ' aprise ' alone." ^ Finally, Bouteiller
also shows that the nobility of Artois enjoyed the same privileges :

etiam quod nullus de regno Francorum debuit ab aliquo jure suo spoliari
nisi pCT judicium XII. parium." Math. Paris, "Historia Major Anglonim "
(ann. 1226), Wals. edition Paris, 1644, p. 231.

* "Ordonnance rendue sur les remon trances des nobles de Bourgogne, des
Ev^chez de Langres, d'Autun et du Comt6 de Forfes" (Ord. I, p. 558).

» Ord. I, p. 575.

103

§ 3 6] FRANCE, FROM 1200 S TO 1600 s [Past I

'' Be it known that according to the customs of Artois and several
places, a gentleman who does not submit to inquest should not
be put nor be compelled to put himself (to inquest) if he does
not request it. And if that should be done without his knowl-
edge and consent, he should not be prejudiced thereby if he does
not voluntarily ratify it." ^

§36. Same: The Secular InquUition in the 1300 8. — The
inquisitorial procedure, however, constantly gained ground. It
made especial progress in the energetic hands of the royal officers.
Some traces of this progress are still discernible. In 1347 King
Philip of Valois decides upon the demand of the inhabitants of
Lyons against the king's counsel. The former complained:
" quod passim et indifferenter judex ordinarius inquirit de onmi-
bus criminibus sine accusatore vel denunciatore, qui persequitur
legitime, cum tamen consuetudo dictorum civium sit, sicut asse-
runt, quod solum in criminibus furti, incendii et proditionis in-
quisitio fieri debeat, et non aliter nisi post denunciationem et
accusationem ut suprd." The king merely ordains that this
custom be proved by witnesses.* In 1363 King John confirms the
privileges granted to the inhabitants of Langres by their bishops,
by which the official prosecution is limited only in a certain de-
gree : ' " We declare and ordain that neither we nor any of our
said officers shall be entitled to proceed against the said inhabitants
nor arrest any of them officially, except in criminal cases where
person and property are at our disposal, and the certain com-
mitting of the deed be notorious and against a person of bad fame
and repute or strongly suspected of the said deed. . . . But our
spiritual officers shall be entitled to proceed officially against those
inhabitants, according as the law allows them." The " Trfe-
ancienne Coutume de Bretagne " retains distinct traces of this
development: ch. 113. "Whoever commits an offense against
minors or those under the protection of justice or the Holy Church,
women or men of feeble condition, as to property or person, or

1 "Somme rurale," I, Tit. 34, p. 224.

' Ord. II, p. 258. In a certain number of town charters lists are found
limiting the crimes for which proceedings ''per in^uisitionem*' could be
taken. See "Consuetudines Tolosae" rubric *' de mquisitionibus'* Bour-
dot du Richebourg (IV, 2, p. 1044). ''Cout. de limoges" (in Latin), ibid.,
p. 1149.

* The inhabitants made the following complaint : *'It is deplored by us
and our said officers that it is declared that no matter what be done, neither
we nor our said officer can proceed officially against them in a criminal
case, nor arrest for such an offense, if the said resident male or female be
not taken in present misdeed or be not prosecuted by party, or the fact
be not notorious, both by their privileges and customs above mentioned and
by certain decision alreadj' made on the subject by our bailiff."

104

TiTLB II, Ch. II] GBOWTH OF INQUISITORIAL PROCEDURE [§36

against those who come or go to church or market, or on pil-
grimage or (to attend) their lord's term days or for fire or
water at home or abroad, on the sea or the highway, who are
on their way from house or from market or to market town
or whatever the offense may be the law can proceed against
such offenders on denunciation of party." ^ — ch. 114. "When
a serious offense is committed in a district, such as murder or
burning of houses or property or highway robbery or despoiling
of churches, or of ships, or other serious offenses, it is the duty of
the judge to cause the people of the district to be put on oath in
T^ard to the matter, men, women, children, and servants, who
are capable of taking the oath, and to demand of them where they
were on the night or the day that the offense was committed, and
if the judge find that the people of a house are changeable, he can
arrest them : and if he can find from others that any one is sus-
pected, he shall proceed against them as should be done according
to custom.'* — ch. 115. " And also justice may and shall proceed
with all action where the blood of man or woman has been shed by
violence."^

Although the accusation, as we have already pointed out, by
no means disappeared,^ the accusatory procedure, as we have
described it, underwent important modifications. The wagers of
battle began to disappear. The ordinance issued by St. Louis in
1260, at the Parlement of the Octaves of Candlemas, was the
point of departure of this transformation.* This is the cele-
brated '* Etablissements le roy " of which Beaumanoir speaks
so often in his chapters on proofs, inquests^ and wagers of bcMe.
'' We prohibit all battles within our domain . . . and for battles
we substitute proof by witnesses," said the king. This resulted

* Baurdot de Richebourg, IV, 1, p. 227. It will be noticed that the ma-
jority of the matters struck at call to mind those in which, at the Prankish
period, the procedure was *'per inquisitionem*' in civil matters.

* C/. ch. 102, p. 225 : " And if he is not captured in the act or on
pursuit, or if the fact is not notorious, as the saying is, — for the reason
that he has been dwelling in the district for five vears, and is of good
repute, as one who goes to church and market, and has not been arrested
for crime, he may say, in case the courts wish to proceed against him,
that under the customary law he cannot be compelled to submit to proof
by witnesses against him.*'

' According to certain texts, this was even the only way open to certain
parties, since everybodv was not allowed to denounce : *'CoutumedeBra-
gerac,*' Art. XXII : Item si quis vilis conditionis et parvi status voluerit
denunciare contra hominem bonsa fam» et boni status, non suspectum de
contentis in denunciacione predicta, talis denunciatio minime recipitur.
fii vero etun accusare velit directe, ad hoc erit admittendus, dum tamen
criminosus et captus accusans non existat." Bourdot de Richehourg^ IV.
2, p. 1016.

* Ord. I, 86 ; laambert, I, 283.

105

§ 3 6] FRANCE, FROM 1200 S TO 1600 S [Part I

in the suppression of the appeal or direct challenge to the judicial
duel and the challenging ("faussement") of witnesses for perjury.
The consequence was that a goodly number of persons hitherto
incapable of testifying became competent witnesses.^ But that
was not all. The king also changed the method of taking the
testimony. The new method was very much more intricate and
required much more learning than the old, and writing played a
great part in it. It was copied from the practice of the ecclesias-
tical courts, and it also borrowed some of the features of that in-
quest of which we have formerly spoken. The witnesses, sum-
moned by order of court,^ no longer appeared in open court, but
before certain delegates of the judge, who were called inquirers
(" enquesteurs ") or auditors.^ They questioned the witnesses
separately and " artfully " (" subtilement '*)• This, it will be
seen, is far removed from the old formal testimony. The parties
were not present at this examination. They were present only
at the taking of the oath by the witnesses ; at which time they
were obliged to state their grounds of objection to the competency
of the witnesses if they had any to urge, or at least reserve them.*
The examiners reduced the depositions to writing, and these writ-
ings became the principal document in the action; moreover,
both parties, accused as well as accuser, had access to it ; " the
auditor should hear them (the witnesses) separately and anon
make public;"^ — "then he shall judge of the matter accord-
ing to the testimony of the witnesses published to the parties." *

The accused could produce witnesses on his side. The sentence
was pronounced in open court, after a debate in which both par-
ties or their counsel addressed the court.

It will be seen that the forms of the accusatory procedure and
those of the official prosecution or the prosecution on denunciation
tended to borrow from each other and even to become merged.

* Beaumanoir, XL, 37 (Salmon, No. 1259).

^ As they no longer ran any risk, they could not thereafter refuse to
testify.

' Beaumanoir^ XL, 12 (Salmon, No. 1234). These were practitioners
or experts, "prud' hommes"and occasionally the judge's assistants, officers
of the court, and others.

* Beaumanoir, XL, 18, 28; XXXIX, 27, 28 (Salmon, Nos. 1240, 1251,
1170, 1171).

' "Etablissements de St. Louis," I, 1.

" Ord. of 1260, Art. 4. The most elaborate precautions were taken to
have this important document accurately worded and preserved. The
inquirers must be "at least two lawful and capable persons" and each
time the inquest was closed, the document must be closed and sealed.
Beaumanoir, XL, 2, 27 (Salmon, Nos. 1225, 1250). Here we find already
the "sacs" of later days.

106

Title II, Ch. II] GKOWTH OF INQUISITORIAL PROCEDURE [§ 4

But this was still merely a tendency. The king had not been
able to force upon the lords justiciar the procedure which he in-
troduced within his own domains. It took time for the inquest
to gain ground and supersede the battle ; it forced its way on its
own merits alone.^ The judicial duel did not disappear all at
once and forever, even within the royal domains. In 1306 Philip
the Good readmitted it into all accusations involving capital
punishment except theft, where the crime had been committed
" so secretly and quietly (* en repos ') that it would have been
impossible to convict the perpetrator by witnesses."^ But it
was an institution doomed to extinction. In Bouteiller, the wagers
of battle appear as something unusual and adventitious; and
Loysel says later, " All battles and combats are now prohibited,
and the king alone has the power to decree them." ^

§ 4. Torture. — Although the judicial duel was kept up for a
rather long time, and although Philip the Fair temporarily re-
established it within the crown domains, this was, according to
the Ordinance of 1306, because of the great difficulty in producing
the two eye-witnesses required by the old customary law to sus-
tain condemnation. But practice ere long introduced a new
method of inquiry, as powerful as it was odious, namely, torture.

Torture is out of place in a purely accusatory procedure and in
a free country ; the accuser and the accused are two combatants
who fight in broad daylight and with equal weapons. So at Rome,
as long as the procedure remained strictly accusatory, torture was
never made use of against a freeman. Although it did play a
great part in criminal actions, that was when it was necessary to
make a slave speak, either as an accused or as a witness ; in the
olden days the idea was universal that the slave only told the truth
when under the influence of pain.* An exception to this rule
was made by the law " Julia Majestates," which decreed that
when the crime of high treason was concerned all accused persons
without distinction might be put to the torture. As the criminal
procedure underwent modification and the accusatory principle
lost ground, the employment of torture was, ere long, admitted as

'"fetablissements de St. Louis/' I, 24; Beaumanoir, XXXIX, 21;
LXI, 15, 16 (Salmon, Nob. 1165, 1722, 1723): "When king Louis
abolished them (the wagers) in his court, he did not abolish them in
the barons' courts."

* Ord. I, p. 435; IsamherU I, p. 831. See "Stylus Curiae parlamenti,'*
ch. XVI.

» " Inst. Cout.," VI, 1, max. 30.

* See Geih^ "Geschichte des romischen Criminal prozesses bis auf Jus-
tinian," p. 348 et seq,; and our study on the "D41it d'adultdre k Rome"
(Nouvelle Revue historique, 1878, p. 416 et seq,),

107

5 4] FRANCE, FROM 1200 S TO 1600 8 [Part I

a normal mode of proof in accusations or suits relating to serious
matters, when strong presumptions already existed against the
accused. But, except in actions for high treason, the "hones-
tiores," that is, all those belonging to the upper classes of society
above the rank of decurions, were by law exempt from torture.^

The system of private accusation which the barbarians brought
with them did not recognize the employment of tortiure any more
than did the old Roman procedure. When the " Leges '* were
drawn up, however, a place was found in a certain number of them
for this cruel method of examination ; these were the law of
the Bavarians,* that of the Burgundians,^ the law of the Vizigoths,*
and even the Salic Law.^ This was, of course, a borrowing from
the Roman institutions;® but few of these laws sanctioned tor-
ture except in the case of an offense ascribed to a slave, and to
that extent the borrowing is comprehensible. The Germanic
law gave to the aggrieved party a right of action against the mas-
ter of the delinquent slave, ^ with this proviso, that the owner
could not undertake the defense of the " servus." * The latter
was at that time obliged to defend himself; but he was not ac-
knowledged to have the same rights as a freeman ; he could not
purge his fault by oath supported by co-swearers ; he had to un-
dergo the ordeal of fire or boiling water.' Was it not surer and
simpler, without being more cruel, to subject the slave to torture,
then, as did the Romans? So it was decided by the "Leges"
cited above, precautions being taken, at the same time, for the
indenmification of the master should the slave tortured prove to
be innocent.^® The law of the Burgundians subjected, not only

^ Geibf op, cit, p. 615 et sea.

» Merkeh "Text, primus/^ Tit. IX, § 19. PerU, "Leges," II, p. 306
(Walter, VIII, 18).

» Tit. VII, XXXIX, LXXVII {Bltihme edition). C/. CVH, 3.

• L. VI, Tit. I, U. 1-3. • Tit. XL (Merkel),

' No manuscript version of chapter XL of the Salic Law contains any
** Malberg glosses.**

^ Cf, WUda: "Strafrecht der Gtermanen," p. 650 et seq.

• Rijmar.y Tit. XXX : "Si servus talis non fuerit, unde dominus ejus
de fiducia securus esse possit, dominus . . . sine tangano loquatur et
dicat: ego ignoro utrum servus mens culpabUis an innocens de hoc ex-
tilerit." Walter, I, p. 171.

• Ripuar,, XXX, § 1 (al. 31) : "Quod si servus in ignem maniun miserit
et IsBsam tulerit, dominus ejus . . . de furto servi culpabilis judicetur."
Lex Frision, III, 6: *' Servus autem ad judicium Dei in aqua f erven ti
axaminet.** Walter, I, 356.

u> The Salic Law permitted the slave to be subjected to torture a second
time, XL, 2: '*Si confessus non fuerit, ille qui eum torquet, si adhuc
voluerit ipsum servum torquere etiam nolente domino, pignus domino
servi dare debet sic servus postea ad suppUciis majoribus subditur."
Bajuv., VIII, c. 23, § 1 : "Si quis senaim ahenum injuste accusaverit, et
innocens tormenta pertulerit . . . domino simile mancipium reddere non

108

Title II, Ch. II] GBOWTH OF INQUISITORIAL PROCEDURE [§ 4

the slave, but also the husbandman ('' originarius, coIonus")i
to torture,^ and in a peculiar provision, it even condemned to it
the stranger (" advena ") who came to seek refuge with a Bur-
gundian. It is true, as the text shows, that such " advena "
was strongly suspected of being a fugitive slave.*

The law of the Visigoths goes farther. More thoroughly im-
pregnated than any other with Roman law, it allows torture
even when the accused is a freeman, in default of other proof.
Its system is most peculiar in other respects. It conforms the
method to the accusatory principle. If the accuser cannot other-
wise prove his accusation, he must claim the application of tor-
ture by an " inscriptio trium testium subscriptione roborata ; *
he must besides lay his complaint before the judge secretly and
in writing, the confession made under torture being of no avail
when the accused knew of what he was accused.^ The accused
is safeguarded in other respects. If he comes out of the ordeal
victorious, his accuser is put at his discretion.^ Moreover, a
gentleman could not be tortured except for the most serious crimes
" in caussis regise potestatis, vel gentis, aut patriae, seu homicidii
vel adulterii," and upon the accusation of a person of his own rank.
Tlie freeman of inferior station could also be put to torture for a
theft or other oflFense, provided the value involved exceeded the
sum of five hundred solidi.* Should a less sum be involved, the
judge must subject the accused to the ordeal by boiling water,
and if that did not show his innocence, he could then torture

moretur." Cf, ibid., §§ 2, 3. Burg., VII, LXXVII. Lex Wisigoth, Book
VI, Tit. 1. 1. 5.

» Burg., Tit. VII.

'Burg., XXXIX, § 1: "Quicumque hominem extraneum oujuslibet
nationis ad se venientem susoeperit, disoutiendum judici presentet, ut
eujus sit, tormentis adhibitis fatealur."

• Lex Wisigoth, Book VI, Tit. 1, 1. 2 : "Quod si probare non potuerit . . .
trium testium inscriptio flat, et sic quflBstionis examen incipiat." {Walter,
1,537.)

*Ihid.: "Accusator omncm rei ordinem scriptis exponat, et judici
ooculte prsBsentata sic qusBstionis examinatio flat . . . quod si accusa-
tor, priusquam occulte judici notitiam tradat, aut per se aut per
quemlibet de re quam accusat per ordinem instruxerit quem acousat, non
hceat judici accusatum subdere (^u»stioni, cum jam per accusatoris in-
dicium detectum constet ao publics tum esse negotium."

*Ibid,: '*Qui subditur quflBstioni, si innoxius tormenta pertulerit,
accusator ei conf estim serviturus tradatur ; ut salva tantum anima, quod
in eo exercere voluerit, vel de statu judicare in arbitrio suo consistat."
The remainder of the text also delivers up to the relatives of the accused
the accuser who (he being the director of the torture) shall have caused
the death of his victim in the torments.

*Jlnd,: *'Inferiores vero humilioresque ingenusd tamen personsB, si
pro furto, homicidio, vel quibuslibet ams criminibus fuerint accusatse,
nee ipsi inscriptione pnemissa subdendi sunt qusBstioni, nisi major f uerit
caussa quam quod quingentorum solidorum summam valere constiterit.'*

109

§ 4] FRANCE, FROM 1200 S TO 1600 S [Part I

him.^ It might also be possible to find in the law of the Bur-
gundians a provision subjecting freemen to torture ; but the text
dealing with this is rather obscure.^

When the feudal system was evolved, torture, the use of which,
as we shall show, had by no means wholly disappeared along with
the judicial organization of the Roman empire, had no place in
the accusatory and public procedure which brought the fief owner
(" homme du fief " or " miles") before his peers. But is it quite
certain that it was never employed when the justiciar or his pro-
vost arraigned before them those bondsmen and peasants who
could not appeal from their sentence except to God?' Beau-
manoir speaks of it in one passage rather in an appreciative way ;
but there is no mention of torture in Pierre de Fontaines. The
" Livre de Jostice et de Plet," which, as we know, follows the order
of the Digest, reproduces no provision under the title " de Quaes-
tionibus," and its Book XX, which corresponds with Book XLVIII
of the Digest, is one of those in which its unknown author lays
completely aside the Roman law, to the influence of which he so
often bows, to follow the purest and most archaic customary law.
On the other hand, the "Assizes of the Court of Bourgeois of Jeru-
salem*' contains two passages in which torture figures, and where
it is mentioned as a well-known institution. One of these deals
with the case of a dead man whom a person has buried at the
home of the latter ; public rumor reveals a crime : " And if
it be known by public rumor that he had been killed, justice de-
mands that the body shall be disinterred to ascertain how he met

* Lex Wisigoth, Book VI, Tit. 1, 1. 3 : "Quamvis parva sit actio rei facta
ab aliquo criminis, eum per examinationem aquaa lerventis a judioe dis-
tringendum ordinamus, et dum facti tementas patuerit, judex eum
qusBstioni subdere non dubitet."

* Tit. LXXXIX (Walter) : ''Gundebaldus rex Burg:undionum omnibus
comitibus . . . prsBceptionem ad vos dedimus ut si quos caballorum
fures, aut effrac tores domuum, tam criminosos quam suspectos inyenire
potueritis statim capere et ad nos adducere non morentur. ... Si vero
criminosus inventus fuerit poenam vel tormenta suscipiat qus meretur.*'
Cf. Bluhme edition, Tit. CVIII, and the note. {Pertz, "Leges III/' 577.)

* In the first edition of this work I said t **3f. Beugnot in the *Glos-
saire' accompanying his edition of Beaumanoir gives the word *gehine*
(torture) without referring to any passage in the book and we have not
been able to find any place where it is mentioned." But M. Salmon in
his ^'glossaire" refers, at the word "gehine," to No. 1996 of his edition
(CLXIX). Beaumanoir relates the strange and interesting story of a
woman who caused her husband to be beaten to death by two ribalds and
impudently tried to charge them with it before the judge ; but the latter
discovered the fraud ; "then accused her of two lies which she had told
and imputed the deed to her, and as soon as he determined to put her to
the torture (*engehiDe') she confessed the whole truth and was burned."
It is true that in this case there was only the threat of or presentment to
the torture.

110

Title II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 4

his death. And if it is seen or ascertained that the deceased had
been strangled or killed by violence, the court is then bound to
tr\' these people by the drinking ordeal or torture so that it may
ascertain the truth of this misdeed. And if he has killed him by
violence,^ it is right that all who were concerned in the misdeed
should be buried head downwards without other injury." ^

The other text deals with the case of a man whom two knights
swear they surprised in the act of committing murder. Both men
being relatives of the victim, their testimony is not sufficient to
entail condemnation, in the absence of a confession, but it is suffi-
cient to cause the accused to be put to the torture " by water "
without having recourse to the accusatory procedure. " The
evidence of two liege men should be equivalent to that of two sworn
men (* jurfe ') and it is a matter for trial by the assize because
the deceased is not related to the liege men. For if he were re-
lated reason judges that the prisoner should not be hanged if he
did not acknowledge it. But it is quite reasonable that he should
be put to the torture by water until he acknowledge the truth and
as soon as he shall have acknowledged it, he should then be hanged.
But if he acknowledge nothing under the anguish that he has
suffered for three days,* he should then be imprisoned a year and
a day, to see if within that period he will submit to the ordeal,
or if any one will appear who will prove him guilty of this murder.
And if no one appears within the year and the day and he will
not submit to the ordeal he should be released from prison and
therewith acquitted of the murder without being required to answer
any one who should desire to accuse him, because he has done all
that was required of him." *

The Ordinances lay down and regulate the employment of
torture from the 1200s. The Ordinance of 1254, Art. 21, ordains
that torture shall never be administered upon the testimony of a

^ There is either an error or a hiatus in the text at this point : the Kaua-
let edition has the note, '* Locus lacuna laborat.*'

* Ch. 285 {Beugnoi edition, II, p. 216). C/. Kausler edition, CCLVIII
(pp. 338, 339). The text, after explaining that it concerns a person who
lubs buried a man in his house, proceeds : *'If it happen that a man or a
womaa inter in the town, a dead man or woman in his or her house,*' then
after declaring that the place is confiscated to the good of the Church, he
addr: ** And the body be given up to the mercy of God and the proprietor
of tie land, since he who has done such misdeed cannot very well be heard
to lay whether he killed him whom he biuied or whether the latter died a
natiral death.*'

' It should be noted that according to the law of the Visigoths, torture
oCild also last for three days. Book VI, Tit. 1, 1. 2 : " Per triduum quaastio
^tari debet."

* Kausler edition, oh. CCLIX, pp. 314, 315.

Ill

§ 4] FRANCE, FROM 1200 S TO 1600 S [PART I

single witness when the accused is a man of good fame. '' Per-
sonas autem honestas et bonae fam^e, etiam si sint pauperes, ad
dictum testis unid, subdi tonnentis seu qusestionibus inhibemus, ne
hoc metu vel confiteri factum vel suam vexationem redimere com-
pellantur."* In 1315, the nobility of Champagne protest against
the use of torture, and the king decides upon their grievances :
"Art. 51. Also, Concerning the complaint that our officers and
provosts go upon their property to summon private persons and
their men before them, and that they put them to the torture
contrary to their customs and rights. We will and ordain that
our said provosts and officers cease from all the aforesaid things,
in accordance with the strictest commands of the old ordinances
on the subject." ^ But here again all protests were doomed to
futility; in the 1300s torture was already in general use.'

What were the causes which permitted the establishment of this
odious procedure?

In the first place, the energetic repression of crime was neces-
sary. Royalty strove to satisfy this necessity, so at first torture
appears most frequently before its jurisdictions,^ The in-
fluence of the Roman law was predominant. Our jurists
found, in the pages of the Digest and the Code, the custom
of torture expounded by the great jurisconsults and regulated
by the constitutions of the emperors. Such weighty author-
ity was without doubt bound to cause partial forgetfulness of the
odious nature of this mode of examination, of its cruel character ;
moreover, the people of these rude times were not likely to be too
sensitive.^

^ Ord. I, p. 72. This article is one of those found in the Latin text only
and wanting in the French text.

« Ord. I, p. 575.

' [For another account of the history of torture, see Professor A, L.
Lowell* 8 article on " The Judicial Use of Torture," Harvard Law Review,
XI, 293. Further citations on its history in England are given in
Wigmore, "Treatise on Evidence," 1905, I, § 818, n. 7. — Trans.)

* A passage in BotUeiUer ("Somme rurale," I, 34, p. 229) shows that not
all of tne jurisdictions had the right to put to the torture : **Be it known
that in the case of a court where the men judge according to their custom
and law, they should not judge by confession by torture, for such judges
have no authority to put or cause any one to be put to torture, and cannot
judge if it is not confessed before them without any recourse to torture,
or if it is not duly proved by witnesses. And so the usage of inferior courts
ordains."

* Other authorities did not blink the terrible nature of torture. See
in this respect a curious passage in the "Tr^ancienne Coutume de Bre-
tagne," ch. XCVII : " If he deny the deed, and be taken either red-handed
or in pursuit or the deed be notorious among the people of the parish, it is
proper that he submit to the inquiry and the "garentie" (proof by wit-
nesses) . . . and if it cannot be completely proved and common report
or strong presumptions are found to be against him, he should have or-

112

Title n, Ch. II] QBOWTH OP INQUISITORIAL PROCEDUBE [§ 4

A last cause was that torture filled a blank in the official
prosecution, the " aprise," as we have described it. The " aprise,"
as we have said, could not form the basis of a capital sentence
unless it contained testimonies so numerous and so conclusive that
the fact could be regarded as notorious. Failing that, the confes-
aon of the prisoner was indispensable. That confession the
judge must strive to obtain by every means, and to obtain it,
seize whatever method, effective albeit cruel, was open to him.
That consideration was decisive of the question ; this is shown by
the fact that when the prisoner accepted the inquest he could not
be put to the torture ; the practical effect of such acceptance was
that a condemnation could be reached without recourse to torture.
" Be it also known," says Bouteiller, " that when the prisoner sub-
mits to inquest he should never be put to the torture ; for that
would be to do him wrong and injustice. For torture should not
take place except when the offense is such that proof cannot be
brought or found and the offense is always presumed when in-
formation makes it clear." ^ This similarity between the rigorous-
ness of the proofs and the use of torture is destined to form a vicious
circle within which our old criminal procedure will revolve through-
out its whole future existence.

Torture was introduced along with a rule which had the appear-
ance of palliating its atrocity and which appears to have been rec-
ogmzed from the very beginning; the confession obtained was
not held to be legally valid unless it was ratified after the pains
inflicted had ceased. An Ordinance of the month of April, 1215,
enacted in response to the complaints of the nobles of Champagne,
reads as follows : *' As it appears that our officers, against the
ancient usages and customs of Champagne, endeavor to put to the
torture the nobles of Champagne taken on suspicion of crime al-
though they are not taken in the act nor in thorough knowledge of
the fact. . . . We grant and ordain and forbid any nobles to
be put to the torture, if the presumptions of the misdeed be not so

deal or torture three times. And if he can endure the torture or the
ordeal without confessing he shall have saved himself (and it wiU be evident
OuU God performed miracles for him)^ and he should go unscathed concern-
ioe the deed and it should be adjudged that he be acquitted and
released." (Bourdot de Richehourg^ IV, 1, p. 214.) — As in the passage in
the "Assises" and that in the law of the Vizigoths quoted above the text
speaks here of torture on three occasions,

* **Somme rurale," I, 34, p. 224. The same rule is found in the "Cou-
tome de Bragerac/* Art. 17 (Bourdot de Richebourg, IV, 2, p. 1015) : " Item
ai buigensis sit accusatus de capitali crimine non manifesto, esto quod
informatio adprehendat ilium aut vehemens suspicio, dum tamen dictum
erimen non sit notorium vel manifestiun, et velU se supponere inquestce de
dido crimine, in isto casu non erit quoBstionandus.**

113

§5] ' FRANCE, FROM 1200 s TO 1600 S [Part I

great that it is proper to do so by right and reason or the misdeed
would remain unpunished, in which case it shall be henceforth
forbidden and we hereby forbid that any one be condemned or
judged on account of the said torture, if he does not persist in his
confession for a sufficient time after the torture." ^ This rule was
maintained. "We have spoken of the voluntary confession, which
is the third kind of proof held to be essential ; for as to the involun-
tary confession made while under torture, that may very well con-
stitute proof if the accused persists in it after the torture ; other-
wise, should he not persist, it forms rather a presumption than an
essential proof." * But the palliation was more apparent than
real. The judge, according to the " Trfe-ancienne Coutume de
Bretagne," could repeat the torture three times. The accused
who retracted after the torture naturally exposed himself to a
fresh administration of it.

§ 5. Th6 Public Prosecutor. — In the 1300 s the official prosecu-
tion was already armed almost, cap-a-pie ; then appeared its prin-
cipal medium, the public prosecutor.

The king's procurators and the procurators fiscal of the lords
were originally merely men of business. The feudal procedure
was, as we know, oral and formal, and like another formal pro-
cedure, that of the " Legis Actiones," it did not acknowledge the
principle of representation in courts of law.' So far down as the 1200 s
even, no one could be represented in suing (" demandant ") *
civilly any more than criminally. The king and the sovereign lords
were exceptions to this rule ; they could sue by procurator (" de-
mander par procureur"). This is the origin and primary meaning
of the maxim " In France no one pleads by procurator save the
king." The king and the nobility had, therefore, procurators
entitled to prosecute their rights either before foreign jurisdictions
or their own courts. These were advocates, practitioners in whom
they placed their trust, and who were originally distinguished from
their fellows only by having more illustrious clients. But it was
predestined that these procurators of the king and the nobility-
should become real functionaries, and that was what practically
did happen.

* Isamherty ** Anciennes lois frangaises," III, p. 90. JK«mcin, ** L'accepta-
tion de renquSte dans la procedure crimineile au Moyen Age,'* p. 9 ei seq.

^ Bodirit De la d^monialit^ des sorciers" (Antwerp edition, 1593),
Book II, ch. Ill, p. 349; cf. ibid., pp. 357, 358.

* [For the full history of this principle, as seen in Norman, French,
English law, see the translation of Professor Brunner^s essay, ** The Early-
History of the Attorney," in the Illinois Law Review, II, 257. — Trans.]

* Beaumanoir, IV, 2 (Salmon, Nos. 137, 138).

114

Title II, Ce. II] GBOWTH OF INQUISITOBIAL PROCEDURE [| 5

Besides their procurators, the king and the nobles had also cer-
tain advocates, who remained for a long time mere advocates,
before being provided with a real office : " Be it known that the
official advocate shall rank highest in the court of the lord he
represents, as does the king's advocate in the royal courts. And
be it known that where there is an official advocate for any lord
he never can act as an advocate against that lord, even although
he should receive no compensation or payment from the said lord.
Law wills, however, that the official advocate may, at the will
and with the permission of his own lord, act as counsel for any other
lord, provided that it be not against his lord or against the cause
which had been formerly pleaded on behalf of his lord." ^

One of the most important duties of the king's procurator or
fiscal was the superintendence of the prosecution of certain of-
fenses : fines and forfeitures, the fruit of penal sentences, were one
of the chief sources of revenue of the king and the nobles. The
appellation of procurators fiscal, which was applied to the procura-
tors of the seigniorial courts of law, still exists as a souvenir of this
conception. Ere long another interest of a higher order was added
to this original duty. Justice to all is the duty of the justiciar,
and he is directly interested in the prosecution of crime; it is
therefore his procurator's duty to secure its repression as far as
possible. The procurator certainly could not constitute himself
accuser as could an injured party, but it was in his power to insti-
gate the judge to take cognizance. The above is a general view
of the origin and original functions of the king's procurators ; it is
essential, however, to go more into detail, and in this respect the
Ordinances are our best sources of information.

The king's procurators do not appear in any of the customary
lawbooks of the 1200 s; but, after 1302, Philip the Fair regulates
their duties in terms which carry the conviction that the institu-

» "Somme rurale," II, 2, p. 671. Loysel; ** Pasquier." "There was at
that time (1380) no official king's advocate, but one of the attome3rs gen-
eral of the Court was chosen for the defense and protest of the rights and
causes of the king, as occasion arose. This is shown by the Registers of
Parlement of 18th February, 1411, where mention is made of one
M. Jean Perier, canon of Chartres, who spoke as king's advocate, and also
by the decrees and proceedings of M. Jean le Coq called Qally, who lived
much later, namely, in the time of Charles VI, when he and several other
advocates were employed to plead for the procurator-general, which pre-
vented their pleading for the parties. . . . From which we gather two
facts, one being that the titular office of king's advocate is modem inas-
much as the ordinary attorneys pleaded for the procurator-general, and
the other that the kind's advocates also pleaded for and advisedf the parties,
when the king had no mterest in the matter ; and this is corroborated down
to the time of Louis XII in regard to the pleading, and down to that of
Francis I in regard to the consultations." {Dupin edition, pp. 23, 24.)

115

§ 5] FRANCE, FROM 1200 S TO 1600 S [Pabt I

tion had already existed for quite a long time. That king wills
particularly that they take a general oath, as in the case of royal
functionaries, and that when they act in his name, they take the
oath of calumny (** de calumnia ") like other parties.^ He also
forbids them to take up the causes of others, except in certain
cases. We recognize here the king's counsel themselves. A re-
action sets in, however. In 1318 the king's procurators are for a
time suppressed in the districts following the customary law, and
the duties they performed return to the bailiffs.^ The cause of this
suppression was probably the opposition of these districts to the
new criminal procedure in which the procurators already played
an important part. So we find the town of Lyons in 1347 de-
manding to be relieved of the king's procurator for a like reason.*

But such resistance was fruitless. In all the courts of the 1300 s
we shall see the king's procurators acting as an acknowledged
power. The " Registre criminel de la justice de Saint-Martin
des Champs," published by M. Tanon, which covers the period
from 1332 to 1357, several times mentions the " procurator of
our lord the King " ; * and Jean Desmares ascribes to him a very
clearly defined r61e.^ As for the procurators of the nobles, their
existence could not cause any trouble. That of Saint-Martin
appears frequently enough in the " Registre criminel."

How do the procurators gain entrance into the criminal proce-
dure? Not by appearing as direct accusers, — by constituting
themselves parties ; although we find some traces of such a con-

> Ord. I, p. 368: "Art. 15. Volumus insuper quod ipsi procuratores
nostri jurent secundum formam infra scriptam. — Art. 20. CsBt^rum volu-
mus quod procuratores nostri, in causis quas nostro nomine duoent,
eontr^ quascumque personas jurent de calumnia sicut predicte persone.
£t si oontingat ipsos facere (substitos) substitutis satisfaciant et non partes
adverssB, immo procuratores nostri de causis alienis se intromittere aut
litteras impetrare non prsBsumant, nisi pro personis ooniunctis ipsos con-
tingeret facere prsedicta." It is apparent that from this time the pro-
curators are exclusively the king's agents. C/. Ord. 1303, Art. 18 (Ord. I,
p. 399).

* Ord. of 1310, Art. 29: "All procurators shall be withdrawn except
those in places where the written law is followed." (Ord. I, p. 657.)

' Ord. of 1347, Art. 2 : "Item super procuratore regio quem petunt re-
mo veri a civitate Lugdunensi cives presdicti, ordinamus seu providemus
quod dispositio istius remotionis promittitur ad regem. Interim tamen
in civitate Lugdunensi dictus procurator nullas inquestas promovebit, nisi
iUas qu8B sibi mandates fuerint a seneschallo promo veri extr^ ci vita tern
Lugdunensem nee aliquas causas in dicta civitate nomine regis agitabit
nisi primorum hereditates regis contingant." (Ord. II, p. 258.)

*9th December, 1337 (p. 107); 1st July, 1339 (p. 153); 7th De-
cember, 1340 (p. 153) ; 4th September, 1343 (p. 198). All these cases
dealt with difficulties as to jurisdiction arising between the royal judge
and the judge of Saint-Martin.

• Decisions 89 and 150.

116

Title II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 5

ception,* that would appear too contrary to the old principles,
which required that one must have a direct interest before he
could accuse. It is into the official inquest that they insinuate
themselves, slipping in through an opening provided for them by
the procedure " per inquisitionem " of the Canon law. We have
seen that, according to the Canon law, the judge could be insti-
gated to use his power by a denunciator, who could remain party
to the action, producing his witnesses and furnishing his evidence ;
that is called " promovere " or " prosequi inquisitionem." This
is the part which the procurator will play ; he is the denunciator
of all crimes, and intervenes in all prosecutions, whether he ap-
pears alone or in conjunction with a private individual.^ His
function, according to the Ordinance of 1347, cited above, is
" promovere inquestas fieri." From the contemporary view-
point, it is the judge who authorizes the king's procurator to act,
not the latter who prompts action by the judge : ' " Ordinance
of 1350, Art. 15. Also, let no one be accused officially without
sufficient information made under order of court by a party not
suspected. And before the procurator begins his action or joins
with the party, let the said information be seen and advised upon
by the bailiff or other sufficient person acting on his order." *
In the "Registre criminel de Saint-Martin" the official procurator
appears several times, pla>dng a part similar to that described.^

* Jean Desmares^ 89: **The king's procurator in a criminal accusation
in the bailliage of which he is procurator is not obliged to subscribe himself
on pain of retaliation, 'secus de alus.'"

^Biener, "Beitrage," pp. 200,201. The Church had also its official
** promoters" ; but they were of later creation and were copied from the
''procurators" of the ^secular jiuisdictions. See M, Fournier, '*Les
officialit^s au Moy en-Age."

•Ord. of 1338, Art. 7: "Statuimus etiam prohibentes ne quis pro-
curator regius psirtialiter se admer^atur in causa quacumque nisi prius
a judice, coram quo lis pendebit, in judicio, partibus prsesentibus et
auditis, mandatum expressum." (Ord. II, p. 124.)

* Ordonnance contenant plusieurs rSglements en faveur des seigneurs et
habitants de Normandie, h cause d'une imposition accordee au roi. (Ord.
II, p. 407.)

* p. 74 (18 October, 1336) : *'The said defaults with the prosecution of
the said misdeed have been prosecuted so far by our promoter and procura-
tor, as to the denunciation and claim made to our mayor of Saint-Martin
by the said August." — p. 69 : **Jehannette the haberdasher surrendered
by the lieutenant of the provost and the king's procurator who held her
prisoner." — pp. 187, 188 (30 September, 1842), an accused is acquitted
**by action tried between the procurator of the Church and the said
Jehan." — Cf. 223, 224. An agreement takes place upon a question of
jurisdiction ** between Master Pierre Martin, clerk and procurator of the
Church of Saint-Martin des Champs of Paris of the one part and Jehan
de la Bretesche, bailiff of Saint-Denis of the other part." M. Tanon very
judiciously observes that at the period covered by our register the king*s
procurator did not appear to fill !'the part in the prosecution of all crim-

117

§ 5] PRANCE, FROM 1200 S TO 1600 S [Pabt I

But the farther we advance, the more important the action of
the king's procurator becomes. We have already quoted a curious
passage from Jean Desmares in this respect. Here is another of
his decisions : " Also, when any high justiciar has had the prosecu-
tion and the first cognizance in his court, the pleading is bound
by litiscontestation against any one amenable to his jurisdiction
in regard to offenses ... if there have been no privilege or de-
fenses violated or other thing which could give the cognizance of
the cause to another judge : in that case it is proper for the plain-
tiff to prosecute his action and his claim before that judge in the
court in which it was commenced, notwithstanding that the
plaintiff, with the concurrence of the king's procurator, demand that
the cause be remitted to the court of the sovereign." — " When
it happens," says Bouteiller, " that any one conunits an offense
in regard to which no one constitutes himself a party except the
king's procurator by prior information, — for no one is brought into
court except by summons on the request of the king's procurator, —
if the person summoned should object, saying that he desires to
be treated and judged by men (* hommes ') or by complaint or
prior commission . . . the king's procurator shall dispute this
and say that the bailiff should judge him and take jurisdiction of
the case, because the king is the only party plaintiff and it is on prior
information. It was, however, declared by decree of Parlement
in the year 1377 that the bailiff either alone or with such counsel
as seemed good to him could and should take jurisdiction,
since the king alone was interested and there had been prior
information." ^

We shall see the maxim that the king's procurator is a real ac-
cuser established later on, and that this title belongs to him alone ;
but some vestige of the original idea always remains ; to the very
last the judge has the power to take cognizance of the offense him-
self.

In the " Registre criminel du Chfitelet de Paris," which runs
from 6th September, 1389, to 18th May, 1392,^ king's procurator
Andrieu or Andry le Preux constantly figures; mention is also made
of the king's attorney-general in the Parlement,^ and the king's

inal matters which necessarily belonged to him later or in common with
all the procurators fiscal." (Pref., p. Ivii.)

i**Somme rurale," II, 1 (p. 653); cf, iUd„ I, 34 (p. 221). "Who
may constitute himself formal party in denouncing, either by formal action,
or officially at the request of the procurator or by the judge's official right.'*

*** Registre criminel du Ch&telet de Paris" . . . published for the first
time by the Society of French bibliophiles. 2 vols. Paris 1861.

» 1, 301.

118

TiTLX II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 5

advocate.^ For the most part, Andry le Preiix is merely men-
tioned as figuring among the " preudhommes," who composed the
comicil of the provost or his lieutenant, but a phrase appears from
time to time indicating the r61e of public prosecutor. A judgment
of 6th November, 1391, shows information made "by command
of the honorable and learned master Jehan Truquan, lieutenant of
Mons. the provost of Paris, at the request of the procurator of our
lord the king at the said Ch&telet against Jehannin Pelart . . .
(of) which information the said prisoner desired to prosecute in-
quest." ^ The determinations of the accused and those of the
king's procurator are reported several times : " The above named
prisoner, Jehan Pelart, and also the said king's procurator, desire to
prosecute their rights by the inquest hereinbefore made and
written." * — " The inquest and process herein above written, by
which the said king's procurator and prisoner have both desired to
prosecute their rights, were seen, examined, and read word for word. " *
Finally, we find several oral requisitions by the king's procurator
or fiscal reported ; ^ one passage containing an abbreviated formula
would seem, if it were set out at length, to recognize in the public
prosecution the right which he will undeniably have later on,
thanks to the rule of " further inquiry " {post p. 238).*

Simultaneously with the determining of the public prosecutor's
rdle, rules for the official prosecution are laid down and embodied
in the royal Ordinances. Like the " inquisitio " of the Canon law,
this procedure necessarily embraces two parts, the information
and the inquest. First of all the information must be made to
the judge or his delegate,^ since no one could be prosecuted

» I, 36, 74, 268, 373 ; II, p. 6 : "The procurator at Chartres of our lord
the long." The promoters or official promoters of the official are also
mentioned several times. I, 84, 246, 255.

* II, p. 352, 4. » II, 356. * 16th January, 1390-1391, II. p. 26.
*24th March, 1391-1392, '*Gerart de Sanseurre was taken from

the prison of the said Ch&telet and brought before the aforesaid . . .
who it was said and maintained by such procurator was an idler and a
vagabond, without means or employment, etc." (II, 456). — 2d Sep-
tember, 1390 (II, p. 2) : ''Jehannin le Fournier . . . was taken from
the prisons of my lord the duke at Tours . . . and was brought to trial
in open hearing . . . and was there, by the procurator of said my lord
the duke . . . accused of being of the condition and a confederate of
certain prisoners who went up and down the land."

• 25tb August, 1390 (I, 443) : ''Exculpated brother Pierre le Brun and
the prior of the Jacobins, who were prisoners, because they had been
accused at Chasteaudun, etc. And on account of this, done upon this
advice of the aforesaid and others, the said prior and brother Pierre have
been released from the said prisons, etc. Regarding the present, etc.
Reserved for the king's procurator, etc."

' Sometimes the king's procurator proceeded with the information him-
self, not by order of the judge, but by virtue of a commission contained in
royal letters. See Ord. of 1344, Art. 7 (Ord. II, p. 215).

119

§ 5] FRANCE, FROM 1200 S TO 1600 S [Part I

officially " unless prior secret information against the said person
be first made and advised upon." ^ The judge must deliberate
upon this information with his counsel, and should he find that it
contains sufficient charges, the real confrontative action then begins.
In determining their essential features these two divisions of the
action have not been invariably cleariy separated.^ Certain
texts, however, leave nothing to be desired in the way of preci-
sion. We shall content ourselves with citing two chapters of the
" Coutume de la Ville et Septene de Bourges" : " Ch. XXXIX.
The mode of procedure against any accused of a criminal offense.
Proceedings must be taken against any one who is accused either
by accusation or by denunciation in criminal cases, or in any
important civil case in which the king may be greatly interested,
as offenses done and attempted, villainies and wrongs on privileged
persons, and on the king's burgesses within his domain, villainies
done to officers of court or other important cases which demand
immediate punishment. After secret information made by
trustworthy people, above suspicion, if it be sufficient to show
the guilt of the accused, his person and goods may be seized, and an
inquest proceeded with, he being summoned, and by the inquest
justice shall be done, and the arrest is always understood should
the case require it. . . . Ch. XLI. The difference between information
and inquest. There is a difference between information and in-
quest. The information does not carry condemnation. The
inquest justly made, the party, being summoned to the hearing
of the testimony and to see it judged and published, is thereby
acquitted or condemned; and it is quite reasonable that the
defendant should have first answered the ' articles ' on his oath."
Plainer language is impossible. It is evident that the " inquest "
required the reappearance of the witnesses heard in the in-
formation, if not for the reiteration of their depositions before
the accused, at least for the purpose of taking the oath in his
presence. This reappearance could, however, be dispensed wth
if the accused waived it. It was then said that he consented
that " the information be equivalent to inquest." This is a

1 Ord. of 1363 (Ord. II, pp. 664r-665) ; Ord. of 1350 (Ord. II, p.
400).

*See a note <5f De Laurihre (Ord. Ill, p. 159): "The distinction
which should here be drawn between the information and the inquest is
that the former should be made by the judge officially, before any proceed-
ings are taken against the person who is impeached m court as a criminal ;
the judge should determine after consideration of this information whether
there is cause shown for an action against him or not. If such action be
brought the judge then directs an inquest to be made.''

120

Title II, Ce. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 6

formula found more than once in our " Registres criminels " of
the 1300 s.i

At this stage all the important features of the inquisitorial pro-
cedure have been already settled. Before going further it may be
well to give a general sketch of the criminal procedure as it was*
known and practised in the 1300 s and 1400 s. Here we have sure
guides. On one hand, Bouteiller's work, which, as we know, had
a great success ; on the other, the " Registre criminel de Saint-
Martin des Champs," which shows us a criminal tribunal in action
during the first half of the 1300 s, and the " Registre criminel du
Chfitelet de Paris," extending from 6th September, 1388, to 18th
May, 1392,

§ 6. Final Chanffes. The '' Ordinary '' and " Extraordinary
Proeedures." — According to Bouteiller, who aims at a systematic
exposition, the criminal judge could take cognizance in four ways :
"by denunciation, by present misdeed, by accusation of formal
party (' partie formfe ') and by public report, of which inquest
and prior information is made." ^ We shall go over these four
methods with him, altering somewhat the order he has selected.

1. The accusation of formed party is the ancient accusatory pro-
cedure. " By formal party every judge who may and shall take
cognizance of criminal cases, may and shall allow any man, law-
fully competent, to become party against the accused and under-
take and carry on the cause by close prison." * The principle of
equal combat between the two adversaries always requires the
imprisonment of the accuser as well as the accused. According
to a rule borrowed from the Roman law, the accuser who was
worsted was obliged to suffer the punishment which he had de-
manded. " In several places and according to the written law it
is a dangerous matter to form party criminally against any one.
For according to the written law he who fails therein incurs the
same punishment that he would have been satisfied to have the
prosecuted party sustain. This is called by the learned the
punishment of retaliation." ^ This very harsh rule was, however,
more honored in the breach than in the observance. A remission
of the punishment was granted to the unsuccessful accuser on a
petition directed by him to the court. This was called " praying
for total pardon and remission." A severe punishment was in-
flicted in the case of calumnious accusation alone.

* "Registre criminel du Chfttelet," II, 354. ."Registre criminel de
Saint-Martin des Champs," pp. 57, 83.

* "Somrae rurale," I, 34 (p. 221). » p. 222.

* Bouleiller, "Somme rurale," p. 222.

121

S6] FRANCE, FROM 1200 S TO 1600 s [Past I

The accusation, burdensome and harsh, was a relic of the past.

From the 1300 s its use was infrequent. In the "Registre de

Saint-Martin des Champs " we find but two certain examples of

formal party, one on 7th October, 1332,^ and the other on 14th

•January, 1338.^

2. On the disappearance of the accusation, the denunciation came
more and more into use. It took place " when any one did not
wish to make or form party against any one for a crime ; he can
always denounce him to the court and offer to produce or
name witnesses'' ^ The judge was by no means bound to prose-
cute. He first of all considered whether he ought to place con-
fidence in the denunciation. If he decided to act, he proceeded
with the information in the first place, then summoned or caused
the arrest of the accused, and the action took its course. As
Bouteiller clearly indicates, the denunciator was usually party
to the action ; he pointed out the witnesses and attended the in-
quest. He was in reality an accuser who kept in the background
and from motives of personal interest left the chief part to the judge
acting in his ofiicial capacity. By a natural enough phenomenon
a part of the rules of the accusation were applied to the denun-
ciation. The punishment of retaliation and the obligation to
remain in prison were alone spared to the denunciator. All this
is shown by the " Registre criminel de Saint-Martin." In that
the denunciations are so frequent that it is useless to count them ;
it is by their means that the action usually begins.* The forms
of denunciation differ in some degree. Sometimes it is said that
the procedure is " on the request and denunciation " of such and
such a person.^ Sometimes the denimciation " denounces to us
the deed as a matter for the court and prays us to do what is right

^ ** Brought into our prison by the men of the provost of Bondis, Je-
hannin de Saint-Soupplet, butcher, on the accusation made by Jehannin
le Bouchier . . . because he accused the said Saint-Soupplet in judgment,
declaring that he had stolen his wood . . . and that, besides, he was a
murderer, and that so he would prove . . . and that on the aforesaid
accusation the said provost had put and held him in prison. —
Also, this day brought by the said provost's men the said Jehannin . . .
accusing the prisoner" (pp. 25, 26).

^ '' Jdianne de Montargis, wife of Thomas Lenglais, and Colin Piquart
held in our prison by the mayor for the reason that on trial before the
mayor the said Jehanne said, maintained and affirmed on oath against
the said Colin . . . and the said Jehanne offered to prove what is said "
(p. 117).

* BotUeUleTt p. 221.

* See pp. 10, 16, 19, 27, 31, 32, 34, 41, 48, 57, 63, 67, 68, 81, 82, 84, 89,
93, 94, 98, 102, 114, 116, 124, 132, 139, 143, 145, 166, 167, 173, 174, 178,
203, 207, 209.

* pp. 167, 173, 174, 185, 186.

122

Title II, Ch. II) GBOWTH OF INQUISITORIAL PROCEDURE [§ 6

and just therein." * Or again, " He requests that we will administer
the law and do justice for him in the matter."^ The denunciation
is made to the judge, but it is usually repeated in public court in
presence of the accused.' The denunciator is called upon to
furnish witnesses, and he must prove his cause of action ; * should
he subsequently declare that he demands nothing from the
accused, or if he fail to furnish witnesses, or abandon, the
consequence would appear to be the acquittal of the person
prosecuted.^

One judgment seems even to import into the procedure of de-
nundation the release or " deliverance," which was formerly pro-
nounced when, an accused being held prisoner, no accuser appeared
within a certain time: "3d May, 1332. Released Godefroy Lale-
ment after VIII days imprisonment. . . . Acquitted in regard
to the contumacies which he impetrated against the denunciation
by the council of the assizes the Sunday after Saint-Nicholas of
May." • It might appear from the following that calumnious de-
nunciation was punished : '' He says in judgment and on oath that
he had caused their imprisonment without cause, and that he
repented of it and compensated them" (p. 102).

The blending of the accusation and the denunciation which takes

» p. 114. « p. 188.

* pp. 32, 34 : ** And it is denounced to us by our said mayor of St. Martin,
in the manner aforesaid, in the presence of the said Jehan (the accused) **
(p. 188). — In one case, the denunciator is wounded and cannot be broug:ht
to the place where the court is held ; the judge in such a case goes to mm
and receives his denunciation before witnesses.

^ p. 105 : '* It was sufficiently proved by Marie, wife of Jehannin de
Trambley," the denunciatrix ; — action of Sedille Leni^laiche ** for the
reason that Estienne the painter had denounced against her . . . ac-
quitted by action tried between her and the said Estienne (4 May, 1345).*'

*On ^d February, 1338, Endelot de Picardie denounces against
Guillaume Damours, mason^ that he had ravished her : "The said Endelot
denounced the aforesaid crime, and asserted on oath the said denunciation
to be true, and which the said Guillaume denied completely. — And this
done, he immediately required and summoned the said Endelot, if she
had any witnesses by whom she could inform us of the truth of the said
fact, that she should name and produce them, which she swore and affirmed
on her oath that she had not. . . . And to fully inform ourselves of the
said case we grant day to the said Endelot on Thursday next. — Acquitted
because she never prosecuted her denunciation." 22d December, 1332 :
**Guillot le Pelletier was put and held in our prison on the denunciation of
Richart . . . who has been acauitted by party and therefore delivered
from prison and set at liberty by tne court (p. 31) . — 26th November, 1336 :
**Seduon la Franquette . . . held in our prison on the denunciation of
Guillot . . . delivered because he withdrew and claimed nothing of him"
(p. 81). — 13th October, 1338 : **Michelet le Liftvre and Catherine his wife
denounced to Autel Labb^ mayor of Saint-Martin against Guillot de
Soissons . . . delivered from prison because party did not wish to claim
anything of him " (p. 145) ; qf. pp. 200, 203; c/. *'Registre criminel du
ChAtelet de Pftris,'^ I, 309.

•pp. 10, 11 ; <^. M, Tanorij ibid., note 1.

123

5 6] FRANCE, FROM 1200 S TO 1600 S [Part I

place here is by no means a casual commingling ; from this is
destined to spring a very original institution, — that of the civil
party. From this time, it must be noted, the injured party is
allowed to act in a civil suit, for the purpose of obtaining repara-
tion, without bringing the criminal action : " In a criminal case,"
says Jean Desmares in his decision 58, " which seeks for a civil
reparation, only two defaults are sufficient, but the facts must be
proved ; and in that seeking a criminal reparation, four are essential,
and the applicant need not prove his facts." We also read in the
'' Registrede Saint-Martin " : " 3dMay, 1332. This day Thomasette
de Piront made civil demand against Marote de la Mare, wife
of Richard Lenglais, and Huete de la Mare, her sister, sajdng that
in the stews of the said Marote she had delivered her purse into the
care of the said Huete, and lost, from its contents, the half of XXIII
pieces of white * maille,' and seeking solely for the restoration
of her lost chattel. Imprisoned. The said sisters released after
VIII days imprisonment to this date." ^ These prosecutions for
civil purposes are often found in the " Registre du Chfitelet."
The parties then took great care to limit their demand "protesting
and declaring only civil reparation is sought."* — "Pierre des
Moulin, master of arts . . . makes express protest and calls the
aforesaid parties present in witness that he intended to say, he did
it not for any injury, but to tell the truth, and also that he only
looked for civil reparation." *-;-" These scholars protesting that
they sought for civil reparation." ^ — " Guillaume Certain ... by
manner of denunciation and for civil issue says and reports to the
said Mons the provost." ^ The object of these reservations and
protests is to make it plain that, although parties to the action,
the denunciators do not formulate a real accusation, from the
consequences of which they recoil ; they also show that this dis-
tinction is still a novelty and that mistakes might be made.

3. The case of ''present misdeed'' ("prfeent meffait") is the
ancient procedure of capture in the act ; "by present misdeed
may and shall be understood that the judge may and shall offi-
cially take action against the delinquent and convict him of the
deed and sentence him to capital punishment solely of his own
accord, without other denunciation or prior information ; if
he deny and the case be easy of proof, the judge or official
procurator shall offer to prove it, and, this proved, punishment

ip. 11. «I, 213. »I, 310. *I, 138.

^ II, 275. See II, 89, a sentence which awards to the civil party his
conclusions.

124

Title II. Ce. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 6

ahall follow, and if proof of it be not quite clear, since the
case is of present misdeed, the judge may and shall put him to
the torture to ascertain the truth." ^ The " taking in present
misdeed " occurs ver>' often in the " Registre de Saint-Martin." ^
Even the old customs are found to be faithfully preserved. The
clamor of " harou " is mentioned several times, and it is often said
that the criminal has been " taken on chase and proclamation." '
4. Finally, the proceeding by " common report " is the ancient
** aprise " : " by common report may be summoned into a secular
court by prior information, or otherwise by bruit and notorious
report, as where any one may be so noted in the district as a
murderer or highway robber, that it is clear and known to all that
he is so : in such case prosecution of the crime may be made by the
judge of&cially without other party, or by office, or by the procu-
rator officially, and the judge may do it officially at his request." ^
TTie action must always begin by information, except in the accu-
sation by formal party, and in the case of capture in the act, where
the matter is urgent. This is an important point, and it is a
characteristic feature which the later law will enforce with still
greater strictness. In the " Registre de Saint-Martin " the official
charge is very frequent. It goes under its ancient name of " arrest
on suspicion." The two parts of which it is composed, the in-
formation and the inquest, are clearly indicated in several pas-
sages ; ^ in several others care is taken to state that the capture
of the prisoner has not taken place until after prior information.®
Sometimes, however, only the inquest is mentioned, without any

> Bouteaier, p. 222.

'pp. 38, 58, 63, 64, 73, 77, 92, 93, 99, 104, 124, 130, 134, 136, 138, 142,
151, 156.

' "Brought them into prison, and also because their neighbors in the
street raised the hue and cry upon them, they having fled " p. 1 15. — "Cap-
tured them in hot pursuit and on the hue and cry of neighbors," p. 141.
— "That when she cried harou he had put her hood over her mouth, in order
that her cries should not be heard" (p. 47). — "Our officers arrested him
at night with candles burning in pursuit and on hue and cry " (p. 71). Cf.
" Registre du Chatelet," 1, 410. ''Harou the murder," II. 63 ; " Harou the
fire."

* Bouteaier, p. 223.

* "6th November, 1341. Acquitted by the council by the inquesU in-
formation and report of the sworn men made upon the aforesaid case, by
the mayor" (p. 184), — "Delivered from prison by the inquest and infor-
mation which has been made by the mayor of the said town of Bouffemont
and elsewhere " (p. 185) . — "Acquitted of the fact and of his murder by our
councnl by virtue of the information and inquest made by the mayor upon
it" (p. 189). — In many cases, it is true, one of the two only is indicated.

* "-eth April, 1337 : Jehannin Leuflfaut of Paris brought by Robin the
jailer and Croz who arrested him . . . for the reason that we were suffi-
ci«titly informed that he had beaten Jacquemin de Soissons to the effusion
of blood" (p. 93). — "On 18th January, 1338, Jehan de Florence Lom-

125

§6] FRANCE, FROM 1200 S TO 1600 S [Pabt I

question of information ; * under either hypothesis we may say that
the information alone exists, replacing the inquest and so perform-
ing a double function : it is true that in the one case it takes place
with the consent of the accused himself, and that in the other the
result is favorable to him.^

When the judge takes cognizance, two ways present themselves to
him, and we find two forms of procedure, the "ordinary" and the
" extraordinary" This is a leading distinction, the importance of-
which will constantly continue to increase : " Also, Be it known
that there are ^,ctions ordinary and extraordinary."' The "or-
dinary " procedure took its course in public ; it knew nothing of
the employment of torture, and it allowed the accused an unfet-
tered defense. In the " extraordinary " procedure, on the other
hand, torture was allowed; secrecy very soon began to find its
way into it, and the defense was bound to be thereby more and
more trammelled. This was, unfortunately, the procedure of the
future. And this duality is found almost everywhere else in
Europe at this period.

When must one or other of these ways be taken? The " ordi-
nary " procedure was always followed when there was accusation
by formal party : " And it should be known that, according to
some, if the prisoner is arrested on accusation by formal party
and put to his law he should not afterwards be put to the torture,
but should be tried by ordinary action." * The parties respectively
brought their witnesses, who were heard by the examiners (" en-
questeurs ") ; the inquest was immediately communicated to the
accused; the advocates or defendants argued on both sides in
open court, and on this the sentence was based. Pierre Ayrault
will be found as late as the 1500 s describing this form of pro-
cedure, then extinct, but whose disappearance was regretted by
his strong intellect and great heart : " I have read," he says,
" among the criminal actions brought more than six score ^ years
ago by master Jean Belin, lord of Doinart and Foudon, my grand

bart, brought by command of the mayor and by information made by
P. de Chivry our tabellion, for the reason that it was proved and found
by the said information that he had beaten and struck basely blows caus-
ing contusions'* (p. 115).
ip. 24; 200.

• 14th June, 1336. Ydre de Laon . . . delivered by imprisonment
and by information that she agreed to inquest" (p. 57). — ** 12th Novem-
ber, 1336; Pierre Terlait, resident of Saint-Martin is given up to the
court of the monastery by the provost of Paris who had arrested him on
suspicion; delivered bv information made by R. Pi6 de Fer examiner of
the Ch&telet de Paris (p. 83). See above.

« BovieiUer, !*Somme rurale," I, 34 (p. 223). < lUd.

* This takes us back to the middle of the 1400 s.

126

Title II. Ch. II] GROWTH OP INQUISITORIAL PROCEDURE [ § 6

uncle, that by ordinance a time was granted to the party to bring
witnesses for the prosecution and to the accused to do the same
in his defense, provided in the latter case he had by his answers
brought forward some fact in justification or extenuation. It seems
to me (or I am deceived with antiquity) that nothing could be
more equitable or just . . . The whole action took place at one
time, and as in a single picture, the truth for both parties was
presented before the judges." ^ In a system in which the denun-
ciator and the accuser were so nearly assimilated, such as that
which we have noted in the " Registre de Saint-Martin," this rule
was bound to be followed even in case of denunciation.

The "ordinar}'^" procedure had to be adopted even in the official
prosecution when the individual prosecuted accepted the inquest :
*•' If the doer be then arrested and desire to submit to all inquests,
in all such cases he shall be admitted to ordinary action and shall
only be treated on accusation of party or officially, and by proofs,
without any torment of ' question ' whatsoever, and without
threats made, and shall always have reasonable imprisonment
and facility for the conduct of his whole cause." ^ This is con-
firmed by a passage from the " Livre des Droiz et Commandemens
de Justice " : " If any be suspected of any criminal matter and the
law pursue him as guilty, he shall be apprehended and punished
according to the degree of the misdeed, and if he who is accused
knows nothing of (the matter) he shall request the court to proceed
against him in regard to the said offense, for the purpose of being
acquitted of the deed. And the mode of action should be such
that the judge may declare the fact in judgment by way of demand
against him and lead finally to punishment should he confess;
and if he denies (it) he should offer to make such proof of it as shall
be reasonable. And he who is accused should allege his reasons and
justifications and undertake proof thereof as is meet. And on
this follows the allegation of the facts and the granting of authority
to either side to bring his witnesses and make his inquiries, and
then other lawful procedure. And the proceedings shall be con-
ducted with greater deliberation and more leisurely in such cases,
than in others." ^ In the " Registre de Saint-Martin " we find a cer-
tain number of cases where the criminal expressly submits himself
to inquest,^

* "L'ordre et formality et instruction judiciaire, " Book III, Art. 2,
No. 50.

* BouieOler, "Somme rurale," II, 3 (p. 765). » | 943.

* **23d August, 1332; Robin Fleurian . . . has submitted m our infor-
mation to inquire into the request above mentioned" (p. 23). — **The

127

§ 6] FRANCE, FROM 1200 S TO 1600 S [Pabt I

»9

In contrast with the " ordinary " procedure is the " extraordinary
procedure. Its very name is awe-inspiring; and it will be said
of it that it owes the name to the fact that the normal rules of law-
are no longer observed.^ Bouteiller already gives a sufficient idea
of the powers which it allows to the judge : " Also, the extraor-
dinary action shall be used and brought in all other cases, especially
in great and heinous crimes which are denied, and which have
been committed secretly. And the judge shall not hesitate to
bring the extraordinary action and to learn the truth daily, with-
out any intermission, by information or otherwise."* The "ex-
traordinary " action allowed torture. " If the person in question
be found anyway suspected by strong presumption, he (the judge)
may and shall put him to torture according to his physique, for
one person can stand more severe torture than another, and the
judge should by all means take care that he does not torture the
man so that he thereby loses life or limb, for that is at the peril of
the judge and his agents, also that he refrain from torture by fire,
which is forbidden by the king ; and if by dint of torture he will say
nothing nor confess the first time, the judge can repeat it the
second day, and even the third and fourth if he sees that the case
requires it, and if there be such great presumption and the prisoner
be a man of high courage." '

Another feature erelong distinguished the "extraordinary" pro-
cedure. The depositions of the witnesses were not produced to the
accused. Everything was hidden from him for the purpose of
removing from him the means of evading the prosecution. Origi-
nally, conformably to the principles of the Canon law, the " acta
inquisitiones " were produced to the accused, both in the official
inquiry and in that which took place upon the accusation of a party.
This communication was ordered by the Ordinance of 1254,
Article 21 : " Et quia in dictis seneschaliis secundum jura et terrse
consuetudinem fit inquisitio in criminibus, volumus et mandamus

men of Saint-Martin arrested him at Noysi and consigned him to close
prison. He submitted to inquest concerning this matter, and the inquest
was made by the men of Saint-Martin concerning this misdeed ; it could
not be proved against the man" (p. 225). — " The barber of Anet and his
son arrested on suspicion of murder . . . were brought to Paris and per-
sonaUy to Saint-Martin for this matter ; they submitted to inquiry and the
inquest was made against them upon this matter by the men of Saint-
Martin" (pp. 228,229).

* Danihouder, "Praetioa criminalis," Pars. Ill, quasstio 103, No. 21 :
"Nonnunquam proceditur ordinarie et secundum juris ordinem et ali-
quando extraordinari^, id est, juris ordine non servato." It is true that
the law mentioned here is the Roman law.

« Bouteiller, "Somme rurale," I, 13 (p. 765).

» Ibid,, I, 34 (pp. 228, 229).

128

Title II, Ch. II] GROWTH of inquisitorial procedure [§ 6

quod reo petenti acta inquisitiones tradantur ex integro." ^ An
Ordinance of 1338 grants to the parties in a general way the right
to attend at the hearing of the action which took place before the
assembled bench.* But gradually the tendency grew to refuse
production of the documents to the accused : " Certe jure canonico
et civili judex ex officio potest procedere infamia prsecedente . . .
de hac facienda est inquisitio, quam judex non tenetur parti osten-
dere nisi velet." ^ — "Although in the Parlement no publication of
witnesses is made either in civil or criminal causes, yet publication
of the names and testimony of the witness is made in the Ch&telet,
and in criminal causes as to the names only and not of the testi*
mony, and for this reason ; if publication were made of the testi-
mony in criminal causes, when the guilty defendant knew that the
crime was proved against him, he could flee, and thus offenses would
remain unpunished and he could encompass the death, annoyance,
and obloquy of those who had testified against him." ^ This
secrecy, which recalls the proceedings of the " inquisitio h8eretic8&
pravitatis," became one of the distinguishing features of the
" extraordinary " procedure : " Be it known that where one is to be
put to the torture on prior information which shows genuine and
strong suspicion of the crime for which he is imprisoned, which
crime he does not deny, the said information and crime shall be
shown to the counsellor of the Court before the prisoner is put to
the torture and the prisoner shall be heard as to why he denies
the crime contrary to the information laid against him, vnthoiU the
information being shovm to Mm, it shall, on the advice and order
of the counsellors of the Court, be declared that the prisoner be
put to the torture." ^

It is to be noted that, even though it should have proved im-
possible to obtain the confession of the accused by torture, he could
not on that account be fully acquitted : "If by torture he will say
nothing, nor confess, and is not convicted by witnesses, if it should
happen that, on suspicion, he be imprisoned for a long time and
by * exclamasse,' * to ascertain if any will appear against him,
and if for a long time none appear, the punishment of imprisonment
which he shall have undergone and suffered shall be the penalty

> Ord. I, p. 72.

- YStatuimus et mandamus relationes processum tarn civilium quam
cruninalium amodo fieri coram seneschallis et judicibus aliis ... in
prasentia partium litigantium si ad id voluerint interesse." (Ord. II,
p. 125.)

* Joannes Faher, "ad Instituta, tit. De publicis judiciis."

* Jean Desmares, 262. * BotUeUler, " Somme rurale " I, 34 (p. 229).

* Proclamation by public hue and cry.

129

5 6] FRANCE, FROM 1200 S TO 1600 S [Pabt I

for the bad presumption, and then he should be released at the
discretion of the judge on pain of being attainted and convicted
of the matters with which he is charged and of which he is presumed
guilty, and no other release (* delevrance ') shall be made by the
judge, for if he be freed absolutely, it would seem that he had been
held prisoner without cause." ^

In this "extraordinary " procedure we already find the protot}T)e
of the 1500s and 1600s ; the information as a starting point;
then the order *' a Textraordinaire " decreed by a judgment ;
the application of torture, also decided by judgment ; and, lastly,
something resembling the " further inquiry " (" plus amplement
inform^"). It still, however, offered the accused a certain
number of safeguards which were subsequently to disappear.
The publicity of the hearing still remained. Originally, as we
have said, the pleadings were made in the open air, but that
state of matters necessarily disappeared along with the old feudal
customs. "The vestiges of it," says Ayrault, "are still at the
doors of churches, castles, markets, and public places where the
benches of the judges still remain. They have begun to deride the
open air judges, now that they have erected courts of justice and
court-rooms to judge in. But that shows that formerly the
greatest judged there very well." ^ Publicity, however, still ex-
isted within the court-rooms, somewhat restricted, it is true. To
quote Ayrault once more : " The actions of the late master Jean
Belin, lieutenant-general of this jurisdiction, which we have men-
tioned, usually note that seven or eight named by him, besides him-
self and his clerk of court, were present at the examination, and he
adds, * and several others,' to show that admittance was open to all
who desired it." '

This publicity is likewise shown in the " Registre criminel de
Saint-Martin des Champs " ; it extended to everything which
took place at the trial, that is, except the information or the in-
quest made before the commissioners or examiners ("enqueteurs ")
and the torture administered in secret. The clerk of court of
Saint-Martin is careful to specify the principal persons present,

1 Bouteiller, "Somme rurale," II, 13 (p. 765) ; cf. I, 34 (p. 229). — This
principle is often applied in the "Registre de Saint-Martin"; it speaks
of a man "delivered by imprisonment" (pp. 57, 64). — "Delivered by long
imprisonment and by being beaten with rods " (p. 67). — Sometimes only
a penalty was inflicted on the uncon\'icted accused ; it was then said that
he was dehvered by penalty ; when he could not pay, however, the matter
was ended by his being set at liberty under the formula !* Delivered by
poverty" (pp. 77, 95, 99, 100, 101, 102).

* "Uordre, formaht^," etc.. Book III, Art. 3, No. 66.

' Ayrault, op. and loc. cit.. No. 71.

130

Title II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 6

always adding at the end of the list " and several others." That
it was indeed a veritable public and not merely chosen assistants
is shown by the fact that the names of artisans abound and that
women are often designated.^ Publicity is particularly proved
for the following documents : first, the denunciation, which must
be repeated at the trial,^ then the reports of physicians or midwives,
which play an important part,* the release of prisoners on bail,*
the confessions made at the trial and the sentences which follow
thereon.^ Publicity is also the rule for the judgment on declina-
tory pleas and confessions from foreign jurisdictions,^ for the read-
ing of royal letters,^ and the exhumation andexamination of bodies.^

liberation on bail is still practised very extensively, according
to the " Registre criminel de Saint-Martin." It does not appear
to have ever been a matter of right, but it seems that the judge
could always grant it ; in fact, we find it granted in very serious
cases, such as theft, where capital punishment was involved.'
The sureties pledged themselves, according to the old formula,
** body for body, property for property " ; they were as a rule only
answerable for the appearance of the accused ; ^® they sometimes
also undertook to pay the amount decerned for." In one case the
prisoner, instead of furnishing sureties, gave in pledge " two
anvils of the value of LX sols of Paris " ; ^^ latterly, they were some-
times liberated without bail.^* The pecuniary suflSciency of the
sureties was, besides, not the only security had against the ac-
cused who was set at liberty ; failing his appearance he was as a
matter of course declared attainted and convicted.^* This pre-
sumption of guilt arising from flight is one which was to remain a
long time in our law.

Rigorous as the " extraordinary " procedure was, it for a long time
allowed the accused to defend himself. Before sentence he could
plead his cause or have it pleaded for him ; and he could also allege
facts in justification and prove them by witnesses. In this re-
spect there must originally have been a considerable laxity, for

« See, in particular, pp. 20 and 28. « pp. 35, 41, 42, 114, 124, 167.

«pp. 13, 19, 20, 22, 29, 35, 36, 45, 46, 48, 64, 106, 109, 112, 117, 127,
133, 139. 170. 171, 173, 181, 188, 189.

« pp. 30, 31, 33, 34. • pp. 26, 51. 174.

• pp. 39. 40, 47, 50, 52. ^ p. 52. » pp. 148, 197.

» See 29th March, 1332, p. 4 ; 12th April, 1332, p. 6 ; c/. pp. 3, 4, 5, 6. 14,
15, 22, 28, 32. 33, 34, 37, 40, 127, etc.

>*The formula is then': *' Sureties for his appearance before us each
day for which we shall summon him."

" p. 127. " p. 34.

■^ 27th January. 1328: Released Jehanne de Montargis, on himself. '^
It is true that Jehanne was an accuser in formal action.

" See pp. 4, 6.

131

§ 6] FRANCE, FROM 1200 S TO 1600 S [Part I

we even find the following in the " Pratique " of Masuer : " If
the accused, being imprisoned, oflfer to prove his defenses, he
should be allowed to do so before proceeding further, provided he
can do it easily ; and this is reasonable, especially as irreparable
injury and damage is involved." ^

In Bouteiller^s time the "extraordinary" procedure appeared
only as a last resource ; it gave place to the "ordinary " procedure
when there was a formal party, and even when the accused, prose-
cuted oflScially, submitted to the inquest. To this extent, though
it was not lawful, it was almost tolerable. This state of matters
could not last, and th^ exception was found to become the rule.
The prisoners could refuse to accept the inquest ; it might be ta
their advantage to do so, for it is quite possible that, in conformity
with the early spirit of the institution, eye-witnesses were not at
that time essential. That would give an opportunity for the " ex-
traordinary " procedure. Bijt it must frequently happen that the
testimonial proof did not furnish sufficient evidence of guilt, either
in the accusation by formal party or in the accepted inquest.
Would not the judge feel an almost irresistible temptation to em-
ploy even torture to extract the confessions which he believed to
be necessary ? That is exactly what happened, as Bouteiller him-
self acknowledged by reversing all the rules and distinctions
which he had laid down. After saying that torture is not allowed
when there is a formal party, he adds : " Should the judge consider
the case as one of murder and the prisoner be so cunning that
nothing can be learned by the testimony and the case is ' prima
facie ' made out, then the judge shall have power to put to torture
if that be possible without doing harm." ^ To the same purpose
he specifies a number of serious cases where the person under sus-
picion is not permitted to exculpate himself (" se mettre a purge "),*
and where the " extraordinary procedure " should be com-
pulsory : " Several cases do not allow of purgation, such as
murder, arson (of houses), violation of women, highway robbery,
. . . treason, heresy, unnatural offenses ... by purgation all

* '*La Pratique de Masuer," done into French by Antoine ForUanon^
new edition by Pierre Guinois, Paris 1606 (Book XXXII. No. 14, p. 589).
The translator, Fontanon, carefully points out in a note that this is the old
law. ''In regfard to what is said in two different articles as to the accused
being allowed to prove and verify his justifications and defenses, and that
restoration should be made of his goods seized on his giving bail, that has
since then been somewhat chang^."

2 **Somme rurale," I, 34 (p. 223).

* This is doubtless the same procedure as that indicated in the " Ancien
coutumier de Picardie" by the expression "se mettre h loy." See above,
p. 64.

132

Title II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 6

would escape, because when a man is ' put to purgation ' he
cannot be tried by any but an ' ordinary action/ and the above-
mentioned cases should be tried by 'extraordinary' aetions" ^ This
movement was undoubtedly brought about in great measure by the
learned system of "legal proofs"^ which found its way into juris-
prudence. This system had been borrowed from the law-doctors,
especially those of Italy, who, in turn, had found its first germs in
the Roman law, and had developed them to a great extent. Very
clear or " open " (" bien apertes ") proofs were necessary ; " ac-
cording to the law, proofs in criminal matters should be as clear as
the sun at noonday to show cause." In default of the accused's
confession, certain proofs, the nature of which was determined be-
forehand, were essential to base a condemnation; and a desire
to obtain the confession at all hazards was the inevitable conse-
quence. Very soon it made no difference whether the accused
accepted the inquest or not; the "ordinary" or the "extraor-
dinary " procedure was followed according to the greater or
less gravity of the crime. So strong is the influence of an old
usage, however, that to the last the custom was kept up of asking
the accused if he wished to put himself upon the witnesses.^

At first sight it would appear as if the " Registre criminel de
Saint-Martin " made no distinction between the two forms of
procedure. Nowhere does it specifically mention the " extraordi-
nary '* or " ordinary " actions ; but it substantially shows that
there is a difference between the cases. Whenever a matter so
serious as to warrant the infliction of capital punishment is in
question, we find one or other of the following formulas : — " Ac-
tion tried — crime : action tried — criminal action." ^ When, on
the other hand, the data of the information do not reveal a
serious crime, or when the report of the physician ("mire jur6")

> "Somme rurale," I, 34 (p. 223).

* ISee post. Part II, chap. Ill on the system of " legal proofs." Trans.]

'See Dupaty, "M^moire pour trois hommes eondamn^ d. la roue/*
Paris 1786, p. 20. — **R6quisitoire" of Louis Siguier, to demand the sup-
pression of Dupaty's "M6moire," pp. 30, 31 : "It is true that the final
question put to these prisoners substantially demands whether they wish
to trust to (the evidence of) these witnesses^ and that they replied, *Yes, if
Uiey tell the truth.* This question is a formal one in aU our first inierrog'
alories; from none is it omitted. It does not assume either complaint
made, information ordered, or witnesses heard. It can neither mislead,
deceive nor surprise the prisoners.**

*pp. 43, 66. Note by Af. Tanon: **A similar statement is met with
in the majority of capital cases. Its principal object is to indicate the
inquisitorial procedure adopted by the judge in serious criminal cases.
Bouteiller calls * extraordinary* action that which is adopted in serious and
heinous enmesh See pp. 78, 81, 121, 169, 177, 180, 186, 187, 188, 219-
221.

133

§6] FRANCE, FROM 1200 S TO 1600 s [Part I

states that the victim is "not in danger of death or loss of limb "
it is observable that the parties plead civilly.* This does not
mean that the case is a purely civil one, as we would express it
nowadays, for a penalty is often inflicted,^ but merely that there is
no occasion for a criminal punishment, and that the proceedings
will be by " ordinary " action (" proces k Fordinaire ") and will
follow the rules of civil procedure, which were originally also those
of criminal procedure. The " Registre " contains a passage which
expresses this very clearly : " Information is made of it and con-
verted into civil and has expiated the oflFense against our safety."'
The Ordinance of 1670 will contain the same phraseology.*

The " Registre de Saint-Martin " does not specify the employ-
ment of torture in so many words ; but it must be noted that the
details of the proceeding are not stated, and that nearly all those
who undergo capital punishment after action brought, are declared
" to have confessed." In one particular case, moreover, the clerk
of court expressly states that the confession has been obtained
without torture : " Jaquet, son of Jehan Duderot, aged nine years
or thereabouts, detained in our prison, for the reason that he
confessed, without constraint or terror of torture {* gehi?ie').'^ ^
Sometimes proceedings are employed to obtain a confession which
call to mind the threat of torture, — the mere presentment,
" presentation," — practised in later times.®

^p. 35: **Sent out of crime — acquitted civilly." — p. 76: "And
pleaded civilly, are released next day." — p. 127 : "They proceed." — p. 94 :
"Reported the peril suffered by duchess Emmeline; criminal denuncia-
tion ; — civil, they proceed." — p. 116 : "Crime reported, civil."

*p. 82: "Civil — by penalty." — p. 83: "Crime — reported — civil
and penalty." — p. 93 : " Civil — penalty."

» p. 97.

* Ord. Tit. XX, Art. 3 : " If it should appear before the confrontation of
witnesses that the matter should not be prosecuted criminally, the judges
shall receive the parties in ordinary action. And for this purpose they
shall decree that the informations be converted into inquests." See
Jousse upon this article : " This is called civilizing a (criminal) process or
remitting the parties to civil remedies. It may, however, be said, all
things being considered, that this procedure does not put an end to the
criminal action ; but that from that time that action merely ceases to be
prosecuted by the extraordinary method, and commences to be prose-
cuted by the ordinary method."

* p. 51. See Introduction, pp. Ixxxviii to xci.

^"And subsequently the Saint-Martin people brought them back to
Noisi, and brought them by force and made believe that they would
hang them. And they would nowise confess the said murder, and because
it was not quite clearly proved against them, the Saint-Martin men
banished them at Noisi in the court of Saint-Martin perpetually and on
pain of the gallows, from all the Saint-Martin land" (p. 229). The men
concerned had submitted themselves to inquest, and probably this strata-
gem was employed against them because they could not be tortured ac-
cording to the rules laid down. See M. Tanon, p. xcix : "They were
allowed to submit to inquest. If they did the effect of the inquest was

134

TiTLB II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 6

Rnally, an examination of the state of the decisions of the
earliest provostship of France as it existed at the end of the 1300 s
is a matter of interest to us, as those decisions would inevitably
serve as an example to other provostships.

There is not, in the " Registre criminel de Ch&telet de Paris,"
which, as we know, covers the period between 1389 and 1392, a
solitary case of real accusation, that is to say, by formal party.
The term accusation ^ appears often enough, but it is quite appar-
ent that these are in reality nothing other than denunciations.
It is always the court which prosecutes officially ; most frequently,
it is true, it acts on the request of those interested ; in such cases
their complaint goes under diflFerent names, " denunciation, re-
quest, pursuit, clamor " (" d6nonciation, requeste, pourchaz,
clameur ") ; fundamentally there are always denunciators. It is
noteworthy that, judged by the rules laid down above, the action
does not always originate in a perfectly regular manner. Accord-
ing to these principles every official prosecution, save in the case of
capture in the act, should, in practice, begin by an information. In
the " Registre " the action sometimes opens by an information,
which the clerk of court has transcribed ; ^ in other cases, an in-
formation is indicated but not produced ; * usually, it is upon a
mere denunciation of party that the judge proceeds and has the
accused arrested;* sometimes the party himself directly causes
his arrest by an officer of the court.^ From this point of view the
denunciation retains all the efficacy of the ancient accusation;
we may add that, when this proceeding is followed, the rule is that
the denunciator shall affirm his complaint on oath, in open court,
in confrontation with the accused, thus allowing the prisoner a
first opportunity to defend himself.® Detention pending trial

to determine their acquittal or condemnation, and recourse to torture was
not allowed."

* Certain passages seem even to faithfully reproduce the old-time dis-
tinctions; II, 279.

* See, for example, II, pp. 20, 441, 352; c/. I, 523.
» I, pp. 330, 382, 406 ; fl, 239, 525.

* See, for example, I, 376. One might be tempted to believe that in
these numerous cases a preliminary information has always existed, with-
out any mention being made of it, but for the fact that sometimes order
to inform is given after the arrest and the first interrogation. See I, p.
256 ; II. p. 77.

» I, p. 14 ; cj. I, 212, 365.

* I, 158, 173. 175, 344, 365, 393 ; II, 6, 7, etc. This is a feature which
we have alreadv remarked in the " Registre de Saint-Martin des Champs."
C/. "Coutume^de Bragerac," Art. XII {B. de Richehourg, IV, 2, p. 1014) :
**Item aliquis Burgensis non debet capi nee arrestari pro aliquo crimine,
nisi in flagranti sen recenti crimine, aut de dicto crimine fuerit publice
diffamatus, aut denunciatio fiat contra eum de dicto crimine ; qui quidem

135

§ 6] FRANCE, FROM 1200 S TO 1600 S [Pabt I

exists in all cases without exception ; ^ and not a single example
of release on bail is to be found here.

A minute inspection of the action, however, reveals the con-
stant employment of the two most odious methods of examina-
tion known to the " extraordinary procedure," namely, the oath of
the accused and torture. The accused is invariably made to swear
that he will tell the whole truth ; he swears " upon the holy Gos-
pels, upon the salvation of his soul and the share which he hopes
to have in heaven that he will speak the truth concerning that
which is asked of him." ^ As for torture, the instances in which
it is not inflicted upon the accused are extremely rare. It matters
little that he has declared his acceptance of the inquest in the
clearest fashion,^ and that there are eye-witnesses ; ^ and even when
he has confessed, the judge is authorized to employ torture if he
suspects that the accused has committed other misdeeds besides
those he has confessed. The following passage well illustrates
the spirit which animates this system of jurisprudence : " The said
provost asked of the said councillors present what was proper to
be done with the said prisoner and if his confession was sufficient
to warrant the punishment of death. All of them were of opinion
that, as to the present (misdeed), it was not advisable that the

denuncians debet jurare ante captionem dicto bajulo . . . dictam denun-
ciationem se scire vel credere fore veram, et hoc etiam tenetur facere coram
parte denunciata antequam dictus denunciatus respondeat dictis pro-
positis contra ipsum.''

* There is a regular entry of prisoners in the jail book, I, 202 ; however,
all are not treated alike ; some receive solitary confinement ; others are
imprisoned together ; II, 285. Sometimes they may communicate freely
with the outside, I, 245 : *'Was confined in the prison called *la Fousse'
so that any one might talk with him"; sometimes, on the contrary,
such communication was forbidden ; II, 83 : "The wife of the said Hays
had gone to the said Chastollet to confer with her husband, and she had a
great quantity of fiorins in a purse which she carried, of which she had
offered the jailor two florins, if she could speak to her said husband ;
with which the jailor would have nothing to do."

* Where Jews were concerned the Jewish custom was followed in ad-
ministering the oath, II, 44: "Joesne d'Espaigne and Salmon de Barse-
lonneJews . . . after they had been made to swear according to their
law, by putting the hand upon the head, that they would tell the truth
. . . aclmowledged and confessed." C/. II, 132. The oath of the ac-
cused is also required by Chapter XLII of the "Coutume de la Ville et
Sept^ne de Bourges," aoove cited.

' I, 285: "Says that concerning the aforesaid matters he relies upon
the opinion and common report of the said country . . . asked whether
concerning the common report of his condition and actions and also
of the said accusation he will trust and believe in the testimony and dep-
ositions of Adenat le Brebiat, Jehan Beautas and Perrinet Beautas, who
were present for this purpose in judgment before the said prisoner, said
on his oath, yes, be the result death or life, and that he knows and ac-
knowledges these to be men of good life, report and credit ; " he is tortured,
p. 287. — Cf. II, 361, 381, 407, 448.

*II, 81, 85.

136

Title II, Ce. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 6

<x>ndemnatioii of the said prisoner should be proceeded with, the
pilfering which he was known to have done being so small, but
they decided that the prisoner should again be put to the torture
several times, in order to ascertain more plainly the other crimes
and offenses by him done, committed, and perpetrated."^ It
appears that up to a certain point two institutions, subsequently
distinguished, the preparatory torture and the preliminary tor-
ture, were then blended. The judgments decreeing torture are
usually based upon the discrepancies in the accused's statements
and upon the inferior character and suspicious nature of his sta-
tion and condition.^

The judge of the Ch&telet knew, moreover, how to vary and
grade the torture according to the constitution of the accused
persons and the necessities of the cause. It was usually the torture
of water which was employed, and it seems that sometimes the
accused was forced to drink, and sometimes water was thrown
upon him;* for this purpose he was stretched naked upon a
wooden horse, to which he was bound .^ A gradation was
imported into the tortures by having two patterns of wooden
horse, " the little and the big horse." ^ There were other
kinds of torture of a more formidable description, — that of the
*' pelote," * and probably that of the " courtepointe." ^ Some-

' I, 207. Cf. I, 463 : ''Notwithstanding the said confession he was
caused to be put to the torture twice on the succeeding: day, to ascertain
and inquire if he knew anything more of the said poisonings than he had
confessed, or if he knew any others who were accessories (*consentans*)
or guilty."

* See I, 196 : "Considering her condition of life, which is that of a
sinful woman and of little reputation." In one case where torture is not
administered it is declared tnat the accused is '*a respectable man, not
snffering or in want of money, because he is well and decently clothed "
(II, 28). Cf. " Coutume de Bragerac," Bowrdo^ de Richehourg, IV, 2, p.
1015, Art. AVI. ''Si captus fuerit dictus Burgensis pro crimine capi tali
publico vei manifesto et sit talis conditionis quod ipsum oporteat qus-
tionare.**

' I, p. 145 : "And before water shall be given him to drink or any be
thrown upon him." — I, 179 : "When he has been given a little to drink."
On nearly every pafe expressions like these appear : "Then water will be
given him to drink. — 'Then a little water snould be thrown upon her."

* "Was stripped naked, put and bound to the rack." Such expressions
are of constant occurrence. See, for example, I, 264: "The said Mar-
guerite was stripped, bound to the rack by the hands and feet."

* See, for example, I, 207 : "This prisoner was put to torture upon the
little and big wooden horse." — 248 : "Was tortured upon the little horse
and when it was desired to put him on the big horse he earnestly implored
that he be set free."

*I, 212: "Was brought back again and put to the torture of the
'pelote.'" — II, 54 : "Because he would confess nothing he was put to
the torture of the 'pelote.'"

'II, 203: "Was stripped quite naked, put, bound, and stretched out
to the torture of the 'courtepointe' upon the little horse."

137

§ 6] FRANCE, PROM 1200 S TO 1600 S [ParT I

times the severities were moderated, and they tortured " mildly '

("doulcement").^

It is apparent that the torture could be repeated indefinitely;
its repetition had no other limits than the judge's pertinacity or
the accused's strength of resistance.^ It was a terrible method of
examination; but it must be acknowledged that it usually suc-
ceeded in extorting the truth from very questionable characters
amenable to the tribunal of the provost of Paris. As a general
rule, from the moment they are put to the torture they conunence
a general confession of the most unedifying description ; the list of
thefts and murders lengthens indefinitely under the pen of the
clerk of court. If we remember the state of insecurity and the dep-
redations revealed by the " Registre criminel," we can understand
the stern and harsh attitude of the men of that time towards ac-
cused persons. But, on the other hand, torture sometimes lends
its formidable aid to the prejudices of the period and stamps with
its approval the most regrettable errors. In an action for sorcery,
when under torture for the fourth time, a woman finally confessed
that she had seen the devil and had heard him speak. *' And
then . . . appeared before her an enemy in guise and condition
of the enemies acted in the Passion plays, except that he had no
horns. He spoke these words ; ' What wantest thou ? ' . . .
And she who speaks said to him . . . and she who speaks saw the
said enemy depart through an open window of her room ; and on
leaving the said house, this enemy made a great noise, as of a
whirlwind, of which she who speaks was in very great fear and
trembling." ^

Constitutions there are, however, robust enough to endure these
sufferings, and their owners escape with their lives whatever the
judge may do. Thevenin de Braine was put to the torture
four times without confessing anything; so then "taking into
account the nature of his constitution which is that of a perverse
man of obdurate and wicked disposition, whose offenses, by him

1 1, 241 : "Were df opinion that . . . this prisoner should be mildly

Eut to the torture." — II, 523: "Except that, m consideration of his age,
e was only once treated and tortured and that mildly."

« Margot de La Barre is tortured four times (I, 330, 333, 335. 353).
Regnault de Poilly "in order further to learn the truth from his lips was
tortured five times on so many different days" (I, 432).

• This proceeding deals with witchcrafts vaguely reminiscent of the
second idyll of Theocritus. A courtesan, Marion TEstat^e, is really
smitten with her lover who is about to get married. Through the instru-
mentality of an older friend, Margot de La Barre, she causes artless
harmless spells to be cast upon him. Marion was tortured three times
and Margot four ; both were burned alive.

138

Title II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE [§ 6

done and committed, could not be ascertained by his confession,
though when any one commits crime, and does not call witnesses
he should do so (confess) ; and considering that he has been for-
merly banished for offenses done and committed by him and ac-
quiesced in the said banishment . . . and that he is an incorri-
gible man . . . deliberated and were of opinion that the said
Thevenin de Brayne should be forever banished from the king-
dom of France on pain of the gallows." *

Before the confession obtained by torture could serve as a foun-
dation for a condemnation it must besides be adhered to without
torture. So the " Registre " states that each time the sufferer,
benumbed with cold, worn out, and bruised, is led to the kitchen
of the Ch&telet, he is there warmed and strengthened ; ^ he is
then interrogated anew on trial without other constraint than the
faith of his oath. If he retract, the confession obtained by tor-
ture goes for nothing. It is true that the prisoner naturally reck-
ons on being put to torture again ; there are, however, those who
withdraw their confession each time and thus escape death.'

The above are the sad features which mark the procedure of
the Chfitelet de Paris, but it must be said that there are less sombre
sides to the picture. The " Registre criminel " shows that the
accused could introduce his defense freely enough. We certainly
never see it conducted by an advocate; but the prisoner could
scrutinize the testimony produced against him and offer his justi-
fication. As we have said, the action often did not commence
by an information, as the rule required. In such case, if witnesses
are to be heard, they are frequently brought into court and testify
in presence of the accused, who has every facility for contradicting

' II, 147; c/. I, 163: "Considering . . . that the said prisoners have
acknowledged and confessed as little as possible, (also) their condition
and the punishment of imprisonment suffered by them, deliberated and
were of opinion that these prisoners should be revolved in the pillory in
the market place, the cause of their judgment being there proclaimed,
and after that banished from the town, sheriffdom, and provostship of
Paris forever." — I, 506 : " Considering that this Berthand is a wandering
man, and his condition, that it were well he should be tortured once more,
and if he confessed nothing further than is stated above, that he should
be drawn in the cart to the court of Paris, where his left ear should be
lopped off, and he should (then) be banished forever from the said town
of Paris and a radius of ten leagues around."

' The usual formula is : **So was put out of this (torture) and brought
to be warmed in the kitchen in the customary manner"; occasionally
something more is said, I, 167: '* After he had been very thoroughly
warmed, clothed, and refreshed." — II, 373 : "After he had been well and
leisurely warmed." — I, 324 : "After he had been fed, warmed, and re-
freshed, was again brought back into judgment."

'Process of Joesne d'Espaigne, II, 33-36; he is merely "banished
from the kingdom." C/. I, 438 et seq.

139

5 6] FRANCE, FBOM 1200 S TO 1600 S [Pakt I

them.* When there is an information, several passages show that
the accused is conversant with it.^ If the second part of the ac-
tion, the inquest, is entered upon, we find in several places that
the mode of proceeding already outlined by Beaumanoir is fol-
lowed; the witnesses are brought face to face with the accused
and take oath before him, so that he may present his grounds of
objection, but they testify out of his presence, before the examiner
("enquesteur") alone.* But according to the traditionary prin-
ciple, the prisoner is made acquainted wiih the depositions, which
are read to him : "He demanded and requested that upon the
deposition of said Marion, which was read to him, she should tell
the truth." ^ — " After the deposition (of) GieflFroy Olivier, read
to him verbatim, agreed with and relied on everything for or against
him or said of him.*' ^ Sometimes a request of the accused that
the witness testify anew in his presence is granted. " Macete,
wife of Hennequin de Reuilly . . . requested if she wished to rely
upon what the said witch would say and testify for or against her,
says on her oath No, and that she would willingly hear her speak,
and for this (reason) . . . the said mons. the provost causes to
come and attend in judgment the said Jehanne de Brigue, who is
said to be a witch ... in the presence of the said Macete.*' •
Moreover, for the purpose of avoiding any difficulty, it also hap-
pens that after the information, instead of proceeding with the
inquest in the form above described, the witnesses may be made to
testify in open court in presence of the accused : " By the opinion
of the said councillors it was said . . . that Margot . . . and

^ I, 134: ** Which prisoner, having heard the depositions hereinbefore
written, made in his presence by the said Qilet and David, was asked,*'
etc. — I, 303 : *' Before further proceedings shall be taken against the said
prisoners, the said knight shall be despatched ... on a da^ fixed, to be
examined upon the said matter, in the presence of the said prisoners.'* — I,
313 (the following relates to certain herbs found in the possession of
the accused, and which are supposed to be poisonous) : '*For this purpose,
Ri chart de Bules, herbalist, was summoned into his presence ... to
whom were shown the herbs above mentioned."

* I, 407: "Denied having even . . . spoken the words mentioned in
the information." — I, 260 : " As to the words contained in the said informa-
tion declared to have been spoken by her, she knew nothing of them."

' See, especially, II, p. 20 ei seq. ; four depositions are quoted ; in the
case of each witness it is said that he has been sworn in the presence of
Chariot de Couvers (the accused) . . . heard and examined in the ab-
sence of the said Chariot: "they are interrogated, as in Beaumanoir,
concerning the facts of the rescript hereinbefore written."

♦ I, 264. » I, 415 ; c/. II, 290, 347.

•II, 320; I, 350: "Asked if . . . she would rely upon and believe in
what the said Ancel should say and depone. The said Margot said. Yes,
provided that she heard him speak and that he took the oath in her
presence. And for this purpose the aforesaid Ancel was summoned, who
. . . said and testified in presence of the said Margot."

140

f TlTLB II, Ch. II] OBOWTH OF INQUISITORIAL PROCEDURE [§ 6

Jehennette of BI6, examined in the said information, should be
anew made to swear, aiid be heard and examined in presence of
the said prisoner. And, this done, and immediately the said
women were summoned into court, the depositions of whom the
said prisoner . . . referred to; (and) who were examined and
testified in presence of the said prisoner." ^

If the law is severe it still endeavors to administer even-handed
justice. The accused has the opportunity to prove his inno-
cence;^ from the moment when he invokes some justificative
fact, such as alibi, every effort is made to facilitate his proof of it.
If uncomplicated facts only have to be verified and the witnesses
to be heard are at hand, the judge has them immediately examined
into;' or an examiner is sent from the Ch&telet to secure the
testimony.* " On hearing the confession of which prisoner, the said
master Nicolas Bertin was ordered to repair to this lady of Fymes
and ascertain from her whether or not the said prisoner had told
the truth." ^ Or a regular information might even be opened;
*^ Ordered the said master Jehan Soudan that he should commune
with and examine the said Ancel Grohier and such others as he
might see as should seem proper, to ascertain if the alibi offered
by the said Margot was true or not, and that he should report
what might have been done in this matter next day or as soon as
might conveniently be done." ® The accused had only one re-
course against sentences to torture — the appeal to the Parlement.
The appeal, composed of one word, stayed the execution of the
interlocutory decree. It is brought several times in the " Registre
criminel," but at the same time it is noticeable that the Parlement
always affirms the decision of the Chatelet.'

Although the main features of the criminal procedure, as we
have just sketched it, were already settled, it was still, on certain
points, changeable and uncertain. Greater precision was essential.

' II. 81.

* Let us sav, in i)assiDg:, that in one instance the question of challenge
to the judicial duel arises in the ** Registre" ; that was the case of a poor
g:trl, of whom we have spoken before, and who no doubt had heard gentle-
men talk (of it) I. 344.

'II, 345: ''Jehan Vilete. door-keeper, was ordered bv the said lieu-
tenant to go speedily to the said rue de la Vennerie and cause to come
all the women living there engaged in the business of binding hemp, to
be examined by the said lieutenant in respect of what is said." — I. 411 :
"It is ordered that the said Gieffroy Olivier shall be sent for and made to
come into the presence of the said prisoner."

* II, 232; I. 404; II. 361: "The said Master Dreue d'Ars is com-
manded to joumev to this lady and examine her ... as well and assidu-
cusly as possible.

•II, 411. 'I, 346. U. 334; II, 143, 144, 299, 415. 428.

141

§ 6] PRANCE, FROM 1200 s TO 1600 8 [Part I

To accomplish this, we find the " recolement," or reexamination of
witnesses introduced. According to an old custom it wa^ not the
judge himself, but a special delegate, who heard the witnesses in
the information and reduced their depositions to writing. It was
usually an officer of the court and sometimes a practitioner who laid
the information, with the assistance of a notary ; sometimes the
courts kept special functionaries charged with this duty, who bore
the old name of ''enquesteiirs.*^ " The king's procurator and the
civil party cause information to be made of the crime coni-
mitted by a sergeant royal or of the lord high justiciar, (to act)
with whom is summoned a notary royal or of the secular court ;
and in some places the order of the judge is taken to do this ; in
others that of the ' enquesteur ' of the jurisdiction to which the
report is to be made ; in others the * enquesteur ' only is empowered
to conduct the information, which is unreasonable and leads to a
multiplicity of parties ; in other places the order of the judge is
not taken." ^ These customs were very inconvenient, as they
placed the most important interests in the hands of an inferior
officer. In order to rectify these inconveniences it was provided
that the judge ought himself to hear the witness anew. This was
the " re-examination to confirm " : " The witnesses examined by
the judge," says Ayrault, " are not subject to confirmation unless
the cause be removed from him, as from a judge suspected." *
This, moreover, assumes that the aforetime division of the action
into information and inquest had become a dead letter, and that
the inquest, as we have described it, had fallen into desuetude ;
it had undoubtedly always been admitted that, whether the ac-
cused assented to it or not, " information should be tantamount
to inquest." The information will ultimately tend to absorb the
rest of the action. Simultaneously with the introduction of the
confirmation, as the accused, in the " extraordinary " procedure,
received neither copy nor knowledge of the information, the
custom was begun of confronting him with each witness
separately. This was the least that could be done, and it was at
this moment that the accused must prefer his objections (to the
witnesses) if he had any to offer. As to producing witnesses on
his side, this was probably forbidden soon after this period, at
least unless by authority of the judge after the witnesses for the
accusation had been heard, re-examined, and confronted.

» Imbert, "Pratique," I, III, ch. 2, No. 2 (edition of 1604) ; cf. AyravU,
op. cit, 1, III, Art. 1, No. 40. Although the authors cited belong to the
1500 s, the customs they describe go back to earlier times. .

2 Op, ciL, Book III, Art. 2, No. 38.

142

Title II, Ch. II] GROWTH OF INQUISITORIAL PROCEDURE 1§ 6

Under such a system, all that remained of the ancient accusa-
tory procedure must necessarily vanish. The accusation by formal
party died out in the 1500 s, without being suppressed by lawr
** It is to be noted that formal parties are not allowed in France
to-day, Be it known that any one may be arrested and impris-
oned for an offense, without prior information, provided he who
constitutes himself formal party will submit to imprisonment like
the other." * — *' This was undoubtedly, done until not long ago,
and such accuser was called formal party, but this is no longer the
practice. And I certainly have never seen it happen but once:
this was a case of two unknown foreigners who had no sureties.
... I allowed it in their case because they were unknown and
proposed it themselves." ^ Henceforward we shall find but one
real accuser, the king's procurator or those of the lords ; the pun-
ishment is inflicted in the public interest, and no longer to satisfy
a private thirst for vengeance. " We have two kinds of accusers,"
says Imbert, " those who prosecute the interest of the king and the
common good, who are called king's counsellors, that is, the ad-
vocate and procurator of the king or of the lords, possessing high
justice ; they seek for corporal punishment and suitable and pe-
cuniary penalty against the delinquent ; the others demand repara-
tion of their civil interest, which they have suffered because of
the offense committed upon their persons and to their property
and do not seek for corporal punishment by our practice, although
they might, according to common law, be able to seek for corporal
punishment and reparation of their interest." ' The injured
individuals did not quit the action altogether; they remained
in it, as we said when speaking of the denunciation, for the pur-
pose of claiming damages. From the above comes the constitu-
tion of the civil party, one of the most original features
of our criminal procedure. The injured person is to all intents
and purposes a party to the criminal action; he brings wit-
nesses; it is really he who originates the cause by requesting
from the judge permission to inform, " faire informer," as the
phrase will run as long as the ancient law exists. The steps in
the procedure are taken in his name and at his expense.* Be-
sides, the public prosecutor is not, as a matter of fact, the prin-

» Imbert, "Pratique," III, ch. 1, Nos. 11, 14.

* AyratUij op. ciLt Book III, Art. 1, No. 15.

« ImberU "Pratique," II, ch. 1, No. 3.

^ "Most frequently the king's procurator and the civil party are claim-
ants tofi:ether, and tnen the civil party bears the whole expense of the
criminal process." Imbert.

143

§ 6] FRANCE, FROM 1200 S TO 1600 S [Part I

cipal party, but b, joint party} The constitution of civil party
("partie civile") is in reality a combination of formal party
(" partie formfe ") and of the ancient denurunatixm by the injured
party ; henceforward it will be totally distinct from the denuncia*
tion, where the private individual is merely the instigator of an
action in which the official prosecutor figures alone.

^ ."The king's procurator is forbidden by the Ordinances to join with
any civil party, without prior information.^ Imhert^ V Pratique," III, oh. 1,
No. 3.

144

TiTUE II, Ch. Ill] PBOCEDUSE IN THE 1400 S AND 1500 S

[§2

Chapter III

FRENCH CRIMINAL PROCEDURE UNDER THE
ORDINANCES OF THE 1400s AND 1500s

§1.
§2.

§3.

Introductory.

The Ordinanoes of 1488 and
1539. The Criminal Action
in the 1500 s.

Protests against the Ordi-
nance of 1539. Constantin,

Du Moulin, and Pierre Ay-
rault.
§ 4. The Criminal Procedure and
the States-General of the
1500s.

§ 1. Introductory. — We now enter upon a period of change and
formation. In this development, which so materially changed
the criminal procedure, the judicial practice of the royal courts
was the agency whose influence was especially felt. It was, indeed,
practically the only factor; the legislative power, that is, the
royal power, had only intervened to afiirm, in some short pro-
visions of the Ordinances, rules already recognized and admitted.
That duality of forms which divides the criminal procedure into
" ordinary " and " extraordinary " process, the keystone of the whole
edifice, was established by the jurists and by actual practice.
But when the evolution had been completed and the system had
attained its full development, royalty stepped in to embody it
in statute law. Several famous Ordinances at the end of the 1400 s,
and during the first half of the 1500 s, are declaratory of already
settled rules of the customal law. They particularize various
points on which the practice was wanting in exactness, or erro-
neous. If they introduced some new severities, it may be said
that, even in that respect, they but hastened what practice would
have ultimately effected, and probably generalized what it had
introduced in some particular place. Of these Ordinances, by
far the most important are those of 1498 and 1539.^

§ 2. The Ordinances of 1498 and 1689. The Criminal Action
in the 16008. — The principal purpose of the Ordinance of 1498,

* The lenjgrthy Ordinance of 1507 {IsamherU XI, p. 464 et seq,) is merely
an adaptation of earlier ordinanoes, to suit Normandy; in regard to
eriminal matters in particular. Article 184 e^ seq. are merely repetitions
<tf Article 106 et seq. of the Ordinance of 1498.

145

§ 2] FRANCE, FROM 1200 S TO 1600 S [Pabt I

SO far as it concerns our subject, was to distinguish clearly the
" ordinary " from the " e;ctraordinary " procedure, and to point out
how one or other of these might be chosen, and what forms were to
be followed in either case. First of all an information must be laid,
a document which was kept secret from every one except the king's
procurators.^ " After deliberation on the said informations, a
* dictum ' shall be made in writing, signed by him who shall have
seen and reported them, which shall contain the provisions as to
personal citation, arrest, etc.'' ^ If occasion required, citation
or capture was the next step; then came the interrogations,*
which, along with the informations, were at once communicated
to the king's procurators,* so that they might file their charges.
From this point the procedure became bifurcated : " Article 108 :
And it shall be decided whether the procedure shall be extraordi-
nary, or if the parties shall be heard." If the latter method was
decided upon, the parties '' shall be heard in trial in open court
before an order for further hearing shall be made, and that done
the said parties shall be heard by our said bailiffs, seneschals, and
judges, or their lieutenants, as shall appear proper ; " ^ that is to
say, the procedure was to be by inquests (" enquStes ") and plead-
ings according to the old forms.* A quicker procedure could,
however, be followed. The king's procurator or the party might
declare that they would take law by the confession of the
accused : " they shall lodge their motions in writing only, to
which the accused who pleads guilty can reply in extenuation
only, and that being done, justice shall be administered as is
proper." ^

If, on the contrary, the "extraordinary" procedure was decided
upon, the ordinance goes on to specify its two distinctive features,

1 Art. 120 (Isamhert, XI, p. 367) ; Art. 96 et seq. (p. 362).
« Art. 98 (p. 362).

* Art. 106 : *' Let all those imprisoned, arrested, or summoned to appear
personally, be examined with all speed by our said bailiffs, seneschals,
and judges, or their lieutenants, and let the matters be despatched sum-
marily and conclusively, our advocate and procurator and the parties
{civU parties) being heard."

* Art. 107 : !' Nothing being shown or communicated to the parties."
» Art. 107.

•Art. 119: "The parties are summoned oonfrontatively and by in-
quests." — Art. 118 : " The cause shall be tried publicly." Cf. Ordinance of
1493 (laamhert, XI, p. 241), Art. 84 : *' And in regard to the cases of prisoners
and those summoned to appear personally, or others who desire to come
into court, we will and ordain that our said advocate, who shall plead
our cause, shall read over at length the charges, informations, and con-
fessions, and adopt the appropriate conclusions, so that the delinquents
may acknowledge their offenses, and that it may serve as public example.''

^ Art. 109 ; cf. Art. 108.

146

Title II, Ch. Ill] PBOCEDUBE IN THE 1400 S AND 1500 s [§2

secrecy and the employment of torture. "Article 110. In re-
gard to prisoners and others accused of crime, where it is neces-
sary to institute criminal action, the said action shall be conducted
as diligently and secretly as possible, so that none shall be apprised,
in order to avoid the subornations and forgeries which might be
made in such matters, in the presence of the clerk of court (' gref-
fier ') or of his assistant, without summoning the jailor, officers,
clerks, or attendants, or any others who have not taken the oath
to us and to justice." ^ As to torture, the Ordinance of 1498 con-
tains certain provisions which are in reality an amelioration of
the earlier practice. It first of all provides that the judgment which
decrees the torture shall be rendered after a serious deliberation ; *
and it expressly forbids a repetition of the torture in the absence
of fresh evidence.^ Bearing in mind the practice vouched for
by Bouteiller and the " Registre du Ch&telet," this may be con-
sidered a substantial improvement. The official report had also
to be drawn up, containing " the form and manner of the said
torture, and the quantity of water administered to the said pris-
oner, and how often, if at all, the torture has been repeated,* the
interrogations and the replies, with the persistence of the pris-
oner, his constancy or variation, and on the day after the said
torture the said prisoner shall be interrogated anew away from the
place of the said torture to test his persistence, and everything
shall be written down by the said clerk of court." ^ There is
no doubt that the accused's only knowledge of the charges was

1 Art. 110. It follows from the text and also from Article 108 that the
decree which sent the action to the extraordinary procedure was not
£:iven in court and the parties heard.

' Art. 112. **And tne said proceeding (having^ been) taken with all
diligence as aforesaid, down to the * question ' or torture, our said bailiffs,
seneschals, and judges, or their lieutenants, shall cause the said torture to
be deliberated upon in the council chamber or other private place by
notable and literate men, not suspect nor favorable, and who have not
been of counsel to the parties, our advocate and prociu*ator being present
or summoned." This is the very same Council which we have seen in
the "Ree^stre du Ch&telet." The Ordinance of 1498, speaking in another
article of torturing "ear-cropped men, outlaws, and vagabonds," still men-
tions the yuiij/ers; "Art. 94. . . . Without in any way departing from the
customs, usages, and laws observed in certain places of our kingdom, where
the custom h&s been to judge the said criminals with the aid of judging

men.'^

'Art. 114. "We forbid our bailiffs, seneschals, and judges to repeat
the said 'question' or torture on the said prisoner without new facts
supporting presumptions."

* Consequently, it was possible to put the accused to the torture several
times in the course of the same sitting. What was forbidden was to
recommence it after that sitting had ended.

• Art. 113. The accused was thus given twenty-four hours for medita-
tion after the torture.

147

§ 2] FRANCE, FROM 1200 S TO 1600 s [Part I

through the confrontations spoken of in Article 111 ; ^ but, on the
other hand, it would appear that he was allowed to plead his
defenses from the outset, and such proof of these as was conform-
able to the practice at that date was immediately taken : " Arti-
cle 111. Then shall be made all necessary progress with fullest
informations, confirmations, or confrontations of witnesses, or with
the proof of alibi, or any other fact that there may be, if admis-
sible, for or against the prisoner, as diligently and secretly as possi-
ble, in such a way that none may be apprised." Finally, the
sentence of condemnation was pronounced in presence of the ac^
cused.^ If "by the extraordinary action, duly carried out, noth-
ing shall have been learned, and it shall be necessary to hear the
parties and admit them to ordinary action, our said bailiffs . . .
shall order the parties to be heard by the council on a certain day,
on which the prisoner shall be brought into court and the matter
tried publicly.'* ^ As to liberation on bail, it seems that that was
only allowed when the " ordinary procedure " was followed.* It vvill
be seen that the Ordinance of 1498 is notable inasmuch as it contains
a description of the entire procedure. It is important particularly
inrespectof its provision for absolute secrecy in the "extraordinary **
actign. Henceforward there is an express law, repudiating pub-
licity, traces of which we have found in the practice of the 1300' s
and the 1400 s. The public is barred from the court-room of the
criminal tribunals, to which they will not regain entrance for a
long time.

But the most important Ordinance in regard to criminal mat-
ters was that promulgated by Francis I at Villers-Cotterets in
April, 1539, on justice and the shortening of trials. Modeled upon

^ But see the Ordinance of April, 1510, relating to the amendment of
the laws, etc., promulgated as a result of the assembly of the Nobles held
at Lyons {Isamhert, Xl, 575 et «eg.)» Art. 47 : ** In order to obviate the abuses
and inconveniences which have heretofore resulted from the judges of the
said districts of written law having conducted the criminal actions of the
said districts, as well as the inquests, in Latin, we have ordained and
hereby ordain that henceforth all criminal actions and the said inquests
. . . shall be done in the vernacular and the language of the district, so
that the witnesses may hear their depositions and the criminals the pro-
ceedings had against them."

^ Art. 116 : **Our said bailiffs, seneschals, and judges, or their deputies,
shall pronounce sentence in open court or in the council chamber, that
bein^ within the prison house, according to the lawful customs of the
distnct, to which place of court-room or council chamber the said prisoner
shall be brought and the said sentence pronounced upon him in the
presence of the clerk of court, who shall record it in the book of sentences."

'Art. 119.

* Art. 119. An Ordinance of the month of October, 1485, relating to
the provostship of Paris (Isamhert, XI, p. 147 et seq,), contains interesting
information about the prisons.

148

Title II, Ch. Ill] PROCEDURE IN THE 1400 s AND 1500 s [§ 2

another Ordinance previously promulgated for the reform of the
style of Brittany, this work of Chancellor Poyet, who afterwards
suflFered under the stem law which he himself had brought into
existence, definitely settled the rules of criminal procedure in
France. Very soon people even came to believe that it had orig-
inated all that it dealt with. On the other hand, the Ordinance
of 1670 will do nothing more than take the system which that of
1539 had organized and particularize it in its details, at the same
time often increasing its severities. It is therefore useful to pause
here long enough to explain this system, elucidating the text of
the Ordinance by the comments of the authors who commented
on it.

This criminal procedure is, in the first place, distinguished by a
certain number of salient and characteristic features. In every
prosecution, the king's procurator or that of the lord is, in future,
a party. He is doubtless only a joint party, but from this time
onwards the principle exists that the criminal examination re-
quires the united action of two magistrates, the procurator who
claims or petitions and the judge who conducts the examination.
The action is divided into two parts of very unequal duration,
the examination and the judgment. The first, of inordinate
duration, comprises all the search for evidence which will make
up the record, and this is the province of a single judge. He is
** the criminal judge " according to the law books, which always
speak of him in the singular number, that is, the criminal lieuten-
ant or the seigniorial judge. It is not until everything is in readi-
ness that the accused appears before the entire bench, if there is
one, and that tribunal has for its enlightenment only the written
proceedings and the last interrogation of the accused. Every-
thing is in writing; and everything is secret, both examination
and judgment ; and in the majority of cases the latter is not
evidentially grounded.

The following is the whole course of a prosecution. Formerly,
except in the case of capture in the act, where the culprit
is seized and interrogated immediately, the information was
the first step in all criminal procedure.^ This is undertaken
either upon the complaint of the civil party, who obtains per-
mission to lodge information,^ or of the lord, who, advised by a

' Unless the offenses in question were so trivial that the injured party
could at once proceed with the ordinary action.

* Every complaint on the part of the injured party is necessarily a
constitution of civil party (or private prosecutor) ; no distinction is made
between the two.

149

§ 2] FRANCE, FROM 1200 S TO 1600 S [Pi.BT I

denunciation or otherwise, petitions the judge ; or by the spon-
taneous act of the judge, who can always take action ex officio.
That is a right kept up by the Ordinance of 1539 (Art. 145). The
witnesses cited by the civil party, or by the public prosecutor,
are heard separately and privately, either by the judge or by special
officers called examiners (" enqu§teurs ")> or more frequently
by a mere officer of the court assisted by a royal notary.^ The
deposition of each witness had to be transcribed "ad longum,"
but it seems that it was necessary to read it over to the witness
and require him to sign it.^ The employment of these inferior
officers in such an important act was a great evil ; " there is no
man in such good standing as to escape at the hands of these offi-
cers and notaries . . . and they make the information serious or
trivial according to the party's wish, not according to what the
witnesses really say." ' The Ordinance of 1539 tolerates this
practice. " The judges," says Article 145, " shall inform or cause
information to be made,'* *

The information or inquiry made and submitted to the criminal
judge, it devolved upon him to communicate it to the king's
procurator, to require his conclusions, which were given in writ-
ing (Art. 145) : " the information having been made and communi-
cated to our said procurator, and his conclusions considered, it
shall be his duty without delay to return the said information,
without taking any fee therefor." It does not appear that
there was any communication to the civil party. According to
the conclusions, the judge allowed the matter to drop or issued
the decree, that is, the order which required the appearance of the
accused. The Ordinance of 1539 was vague in this respect.
" Such lawful provision," it said, " shall be decreed as shall meet
the necessity of the case." (Art. 145.) But judicial practice had

1 Imbert, "Pratique," III, ch. II, Nos. 2 and 3. Cf. "Le style de la
cour de Parlement,'* by Philhert Boyer, latest edition, revised after the
author's death in 1610 : **It shall be necessary to deliver the said request
(to have a commission to cause information to be made) to a clerk of the
criminal court, who shall thereupon draw up the commission, addressing it
to the judge or examiners of the districts or to the head officer of court
upon this request. Which information shall be made in the presence of
a respectable deputy, who has taken the judicial oath."

2 Imhert, III, ch. XIII, Nos. 13, 14.
» Ibid,

* Sometimes ** monitories " were decreed. These were orders by the tem-
poral judge, affixed to the church doors and read after mass, enjoining all
the faithful to tell the cure what they know about the crime; the cur6
took the depositions and sent them under seal to the criminal judge.
This practice recalls those denunciations which the faithful already
made on oath in the "judicia synodalia" ; it was probably in these that
the monitories originated.

150

Title II, Ch. Ill] FHOCEDXTBE IN THE 1400 s AND 1500 s [§ 2

introduced two kinds of decrees, that of personal summons and
that of bodily arrest, " prise de corps." ^ The " personal sum-
monses should be executed like the ordinary sunmionses in civil
matters, except when the accused is a man who is feared and ac-
customed to resist arrest, and if it be dangerous to summon him
personally or at his domicile, the judge orders and permits him
to be summoned by public proclamation by sound of trumpet at
the market place or elsewhere, wherever there is a concourse of
X)eople nearest to his residence."^ The effect of the decree of
personal arrest was to put the accused in a state of detention pend-
ing trial : " according to the conmion law the apprehension of a
person in his residence was not allowed, but nowadays one may
apprehend him in his residence provided it be in the day time and
not the night time, and with ' records ' (special kinds of witnesses),
and not with a great assemblage of people and by main force;
and provided nothing in the house be destroyed or carried away ;
but if the doors are closed they may always be broken open."*
The decree of bodily arrest could only occur in serious oflFenses;
" great prudence in this respect is required on the part of a
judge," says Imbert, " to avoid issuing a warrant of bodily
arrest unless in case of public crime and even then only in
serious matters." The judge, however, was not bound by what
the conmientators wrote ; the exceptions to this rule were numer-
ous/ and individual liberty found in these rules but a slender
saf^uard.

The accused, whether he appeared or was arrested, must be
interrogated by the judge "immediately, carefully, and assidu-
ously." * The interrogation took place " in the house of the said
judge or in the criminal court-room set apart for the purpose,"
and this art of interrogating was a great one, too often cruel and
treacherous. It put the accused at the mercy of the judge. He
was compelled to reply without having the aid of a counsel and
without having had any knowledge of the information.* He also
swore that he would tell the truth. This odious formality was,
however, not imposed by any law, but was the result of a custom

» Ifnbert, III, ch. II, No. 3. « Ihid,, III, No. 1. » Ibid., V, No. 2.

^ It was possible to commence with the decree not only in the case of
taking in the act, but also in the case "of a non-resident poor person who
had no personal effects, or where the offense was such tnat it was prob-
able that he would conceal whatever chattels he possessed . . . then it
was lawful to arrest without information and to make it afterwards"
(Jmbert). This is the same practice which we have seen in the **Registre
criminel du Ch&telet'*; see swpra, p. 135.

* Ordinance of 1539, Art. 146. e lUd,, Arts. 146 and 162.

151

§ 2] FRANCE, FROM 1200 S TO lft30 S [Part I

already very old, as we have said. Imbert is explicit on this point :
'* The judge," he says, " must first make him swear to tell the
truth and then interrogate him." ^ All the replies were reduced
to writing : " It is essential that the clerk of the court transcribe,
under the judge's direction, everything that the judge shall say
and state to him." If the accused had confessed in his interroga-
tion, this document was communicated to the king's procurator,
who considered whether he wished to take law upon it, that is, to
demand judgment, without more formality. If he was of that
opinion, which, according to the theory of evidence then m force,
did not happen in serious cases, the interrogation was communi-
cated also to the civil party. Both these parties then gave their
conclusions in writing and these were communicated to the ac-
cused " that he might reply to them by way of extenuation only." *
From this point, nothing more remained to be done than to ap-
pear in order to receive sentence. If, on the contrary, the parties
did not wish to take law on the interrogation, which always oc-
curred when the accused pleaded not guilty and sometimes when
he confessed, there was a ruling to the extraordinary action, or to
the ordinary action. For this purpose the judge, always acting
alone, rendered an interlocutory decree. Prior to the Ordinance
of 1539, the three parties to the cause, including the accused, stated
their demands at the hearing, either orally or in writing.' /i The
joinder of issues," says Imbert, ** takes place when, after'the hear-
ing of the prisoner, the parties appear before the judge, and the
prisoner pleads, by coming personally to be heard and his state-
ment communicated to the king's advocate and procurator and
demands to be acquitted or at least to be granted ordinary' ac-
tion and released on bail . . . and the complainant civil party
objects and demands that the accused be proceeded against ex-
traordinarily by confirmation and confrontation of witnesses and to
receive during the action provision of sustenance and medicaments.
And in such places as the court of Parlement, the king's advocate
pleads the fact of the accusation contained in the information
and moves that it be tried extraordinarily as is said ; and in other
places they submit their motions at the termination of the hear-

^ L. Ill, ch. X, No. 2. The Latin text prior to the ordinance is no
less clear : ** Judex ergo primum ad nudandam veritatem reum jurejurando
adigit." Boy er' 8 "Stile" reads: ''Then the commissary has the accused
brought before him and makes him swear to tell the truth" (p. 238 recto).

2 Ordinance of 1539, Art. 148 ; c/. Ordinance of 1498, Art. 109.

' See, however, what is shown in the Ordinance of 1498, supra, pa^e
137, note. ImherVs text, quoted above, appears to show that on this
point the law was not rigidly followed in actual practice.

152

Title II, Ch. Ill] PROCEDURE IN THE 1400 S AND 1500 s [§ 2

ing/' ^ This was the time for the accused to present his defense
wth some advantage, especially if he had the aid of a counsel,
although the information had not been communicated to him.^
But the Ordinance of 1539 (Art. 162) " abolished all the forms,
usages, and customs by which accused persons had been accus-
tomed to be heard in judgment for the purpose of ascertaining
if they should be accused and for that purpose to have communi-
cation of the facts and circumstances covering the crimes and
offenses of which they were accused, and all other things contrary
to what is hereinbefore expressed." Henceforth, therefore, only
the motions of the public and private prosecutors were sub-
mitted to the judge in writing ; the accused was no longer allowed
to speak. Conformably to the Ordinance of 1498, however, when
the judge decided upon the * ordinary ' procedure, he must first
hear all the parties in judgment ; Article 150 adds in effect, " un-
less the matter was of so little importance that after the parties
were heard in judgment it was proper to order that they should be
received in ordinary action." Save in this very rare case, the
judge ruled that the action would be " extraordinary," and he fixed
a day to proceed with the confirmations and confrontations of
witnesses.^

The witnesses were subpoenaed afresh for the confirmation;
*' the judge first causes the witness whom he is about to examine
to swear to tell the truth, and if he is in doubt whether or not the
testimony is false he will require him to state what he knows of
the subject of the accusation, which he will briefly summarize to
him, without informing him of the contents of his deposition con-

1 Imhert "Pratique," III, ch. X, No. 6.

* See "Notice sur les archives du Parlement de Paris" in Boutaric's
**Actes du Parlement." "The existing registers of the end of the 1400s
and those of the 1500 s down to the year 1529 belong to the category of
pleadings. After a lapse of several years, the first register which appears
in the ordinary series is one of those of the council of November, 1535,
to November, 1536. Registers of pleadings are no longer found after
that i)eriod and all are of the council down to the end of that century.
It is not correct to say, as Chancellor Siguier does in his *M6moires sur
le Parlement de Paris,' that the Tournelle did not hold hearings at the
time of its establishment. The contrary is shown by the very terms of
the edict of April, 1515, making it permanent. It was no longer so
under the ViUers-Cotterets Ordinance of August, 1539, which forbade advo-
cates to act in criminal matters (Vol. I, p. 227)."

» Ordinance of 1539, Art. 151 ; ImherU III, ch. XII, No. 1. The
ordinance itself provides that, on the expiry of this delay, the action
will be tried on the documents extant, except for the granting of a second
delay, for good cause shown; but Imbert informs us that "the said ordi-
nance is not followed, as the royal and other judges still grant three or
four delays as before, which is a cause of much vexation to the unfortunate
prisoners."

153

§2] FRANCE, FROM 1200 S TO 1600 S [PabT I

tained in the information, and if he sees that he states substantially
what is contained in that deposition, he will cause it to be read to
him by the clerk of court, and after that he will demand of him on
the oath which he has taken if it contains the truth, and will
write down in what respect he confirms and in what he corrects
his first deposition." ^ Inmiediately after that came the confron-
tation of the witnesses with the accused : " And if he persists and
charges the defendant, the said witness shall be immediately con-
fronted with him, that is to say, the judge shall have the defendant
brought before him in presence of the witness, and they will both
be made to swear to tell the truth, and afterwards interrogated
whether they know each other well, and if the defendant is he of
whom the witness speaks in his deposition and confirmation/' '
The confrontation had a double purpose, first, to allow the ac-
cused to state the objections which he might be able to urge against
the witness, and in the second place, to enable him to directly con-
test the charges brought against him. This is the first and only
time the opportunity to do this is offered to him. The Ordinance
of 1539, going farther than the former practice, decided that at
that moment, before the reading of the deposition to him, the
accused must offer all his objections. " Art. 154. Before the
reading of the deposition of the witness in the presence of the ac-
cused, the latter shall be asked if he has any objections against
the witness there present, and enjoined to state them promptly,
which it is our will that he be bound to do, otherwise they shall
iiot be afterwards received, and of this he shall be expressly warned
by the judge. . . ." — "Art. 165. The accused shall no longer
(after the reading) be allowed to state or urge any objections against
the said witness." That was putting the knife to his throat.
The actual practice, however, was rather less severe; it allowed
the accused to demand time to lodge his objections.

The reading of the deposition was then proceeded with : " Should
he urge no objections (to the witness) and declare that he does
not wish to urge any, or demand time to state them or submit
them in writing, the judge shall read the deposition of the witness
in the presence of the defendant and the witness; and he shall
demand of the witness, and afterwards of the defendant, if it con-
tains the truth, and shall cause their answers to be written down." *
The confrontation, very inadequate as it was as a means of de-
fense, since it took place in secret and without the aid of a counsel,
yet oflFered some help to a capable and intelligent accused. He

> Imbert, III, ch. XIII, No. 9. « Ibid. » Ibid., No. 10.

154

Title II, Ch. Ill] PROCEDURE IN THE 1400 S AND 1500 s [§ 2

might by his remarks induce the witness to retract or contradict
himself. The witness ran no risk in retracting ; " The witness is
not bound by his confirmation and confrontation to stand to his
deposition as reduced to writing in the information, and may with
impimity vary and change his deposition." ^ Were all the wit-
nesses confronted? It would appear that the Ordinance only
required confrontation in the case of the witnesses for the prose-
cution who stood to their testimony at the confirmation ; " how-
ever/* says Imbert, " some judges of wide experience confront all
the witnesses, both those of the prosecution and those who are not.'*
Up to this point the accused had taken only a passive part in
the action. He had, in short, had the privilege of examining, at
the time of the confrontation, the witnesses brought by the public
and private prosecutors ; but he had not had the opportunity to
summon any witnesses on his own behalf; he had not been able
to prove his innocence directly. Was he ever to have the oppor-
tunity to do that? On this point a most astounding and sadly
ingenious theory was put forward. It was not admitted, in a gen-
eral way, that the accused could bring any witnesses to prove that
he was not guilty. In eflFect, from a purely logical point of view,
there was no need to prove a negative fact such as non-culpability ;
and according to the theory of legal proofs the thing was, not to
convince the judge, but to produce specific evidence. If the fact
was not "legally" proved by the witnesses brought by the prosecu-
tion, any proof on the part of the accused was said to be useless.
If, on the contrary, the action should establish, by the requisite
proofs, that the crime had actually been committed and that
the accused was the perpetrator of it, he could only rebut the testi-
mony by means of the objections which he had urged, or prove
that these witnesses were suborned, or, finally, offer certain posi-
tive facts, which formed his justification. These facts — called
" justificatifs " — were of two kinds ; some proved the innocence
of the accused indirectly, but beyond dispute. Such were, the
" alibi," or the production of the person who was believed to be
dead, or the production of a prior sentence pronounced against
the real perpetrator of the crime.^ Others, without rebutting
the facts established in the action, deprived the act of all criminal-
ity; for example, legitimate self-defense, or insanity of the doer
of the act at the time of its occurrence. Objections to the wit-

1 Imbert, III, oh. XIII, No. 12 ; but he asks (No. 14) if the witness who
has signed his deposition can still chang^e with impunity.

' Several of these facts were, subsequently, sometimes offered as per-
empUfry exceptions to the acciLsation.

155

§ 2] FRANCE, FROM 1200 S TO 1600 s [Part I

nesses and justificative facts, therefore, were the only defenses
left to the accused. It is evident that his proof must always be in
support of some fact distinct from that proved by the prosecution.
But that was not all. He could not produce this proof until all
the proof of the prosecution had been produced ; and even then he
encountered obstacles. We have seen that he was obliged to state
his objections to the witnesses at the time of the confrontation ;
as for his justificative facts, he was bound in practice to urge them
from his first interrogation ; " if he has any justificative facts he
must state them in the said confession ; " ^ he could then produce
them in the course of the examination (" instruction ") each time
he was brought before the judge, or even without that, by a re-
quest addressed to the latter. But to produce them was not all-
sufficient; it was still necessary, in the case of the justificative
facts, as well as in the case of the objections, that the judge should
allow him to prove them.

The whole process, information, interrogation, confirmations,
and confrontations, — all the documents, in short, — were communi-
cated to the king's procurator : " If he find that the accused has
pleaded any peremptory facts conducing to his acquittal or inno-
cence, such as "alibi,*' or any lawful and admissible facts concerning
objections, he shall require the accused promptly to name the
witnesses by whom he intends to prove the said facts . . . fail-
ing which he shall move for torture or final sentence." ^ On that
motion the judge decided. He could always disallow proof of
the justificative facts by ruling them to be inadmissible. Assum-
ing, on the contrary, that he had admitted proof of the objections
and justificative facts, a final obstacle still presented itself. ** Then
shall be drawn up," said the Ordinance, *' admissible facts, if any
there be, for the defense of the accused either by way of justifi-
cations or objections, which he (the judge) shall show to the said
accused and shall order him to name promptly the witnesses by
whom he intends to sustain the said facts, which he shall be bound
to do, otherwise they shall not afterwards be received." ^ If the

1 ImherU III, ch. X, No. 4.

« Imbert, III, ch. XIII, No. 15; Ordinance of 1539, Art. 157. "If the
accused were permitted to present their justificative facts from the start,
the decree granting this permission, fatal to the public welfare, would
constitute a title and an assurance of immunity for them; they would,
on the pretext of bringing their proofs, indirectly evade those which might
convict them ; and by weakening the strength, authority, and weight of
the evidence, they might often render the court powerless to prove either
the crime or the innocence, without having even proved their justificative
facts." Siguier, " R^quisitoire de 1786."

» Art. 158.

156

Title II, Ch. Ill] PROCEDURE IN THE 1400 s AND 1500 s [§ 2

accused shall have been able summarily to indicate all his witnesses,
how were they brought before the judge or the examiner ? They
were "heard and examined 'ex officio ' by the judges or their clerks
and deputies," ^ in the absence of the accused. It was the prose-
cutor who directed the inquest for the defense ; the witnesses,
however, not being subject to objection. The official report of
this information was added to the record of the action.

Whatever the result of the examination might be, the next
step was to call for the motions of the public and private prose-
cutors, and to bring the matter before the assembled bench;
** when the process is complete, the judge orders that it be commu-
nicated to the king's counsel so that they may lodge their motions
thereon within three days." ^ But this mass of waste paper re-
lating to proceedings at which no one except the examining magis-
trate had been present, was not to be submitted to the court with-
out anj'thing to facilitate their comprehension of it, and therefore
a report was made upon the process by a judge. This institution
of "reporter" is an essential part of the written procedure. It is
always found in its wake.

The conclusions or motion of the public prosecutor, instead of
being final, that is, leading to the infliction of a punishment, could
only lead to the appUcation of the preparatory torture. " The
judge places the whole matter before the council, and if the offense
in question is so nearly verified and proved that only the confes-
sion of the defendant is lacking, and the crime is heinous and such
that, if proved, it would warrant a severe corporal punishment,
the judge shall cause the matter to be deliberated in some private
place by influential and literate men, not suspect or favorable,
who shall not have been of counsel to the parties, the king's advo-
cate being present or summoned." ^ In this case the Ordinance of
1539 provided that the torture be administered immediately, ex-
cept in the event of appeal (Art. 164). Nothing, however, was
prescribed as to the manner of its administration, and the methods
thereof were as varied as they were odious. Hippolytus of ^lar-
seilles took the pains to enumerate forty methods of torture in Italy,
and they were apparently no less numerous in France. " Accord-
ing to the provisions of the law, the judges should not use for the

* Ordinance of 1539, Article 139. « ImherU III, ch. XX, No. 1.

' Imberi, III, ch. XIV, No. 1. These "expert and learned" men, styled
In Latin "eausidici," are the practitioners with whom the judges of that
period still surrounded themselves, and who were the successors of tho
judges of the feudal period. C/. Ordinance of 1498, supra, page 147,
note 2.

157

§ 2] FRANCE, FROM 1200 S TO 1600 S [Pabt I

torture anything but cords. Nevertheless, in various provinces,
the judges and provost-marshals use other instruments, such as
fagots, water for * Tavallement de la serviette,' vinegar, oil poured
down the throat drop by drop, eggs cooked in the embers and
applied under the armpits, sometimes intolerable cold, hunger,
or thirst induced by the manducation of excessively salt food given
to the accused without anything to drink ; others by tightly com-
pressing the fingers either in the end, or in the cock of an arquebus
or pistol, or binding them with little strings or packthreads be-
tween various little sticks called * gressilons ' ; others by the
bundle of cord, others by the pump, and others in different ways.
See * Hippolytus of Marseilles in commen. super tit. de quaestion.
in 1. I, ubi ponit quatuordecim species tormentorum diversas.' —
But everything depends upon the decree of the judge." ^ Never-
theless, the practitioners seem to have placed great faith in witch-
craft and drugs, by means of which accused persons endeavored
to make themselves insensible to torture. Damhouder's narra-
tive, as an ocular witness of and actor in one of these dramas,
must be read to give some idea of what aberration the human in-
tellect can be capable of .^ The official report of the torture was
drawn up ; but next day the accused was interrogated anew, to see
if he adhered to his confessions. This was in conformity with
the earlier law, but it had become a mere formality : *' Inasmuch
as there be many so cunning and wily that they will totally deny
whatever they have confessed under torture when they are in-
terrogated the next day, the custom has been to stop with the
confession made under torture, if it be probable, and conform to or
approach the contents of the informations." ^

When the torture had been administered, or if at the outset
the conclusions of the public prosecutor had been final, " the entire
criminal process so made shall be submitted by the judge for de-
liberation by the council of his court, as before said, in presence of
the advocates and king's procurator, to take counsel as to what is
to be done, and the clerk of court shall transcribe the opinions and
deliberations." Then an interrogation of the accused usually
took place before the whole court which was to judge him.* But

> **Le procte civil et criminel," by Charles Lebrun de la Rochette (Rouen
1616), Part 2, p. 140.

• Damhouder, "Praxis," ch. XXXVI, No. 21 et seq, Lehrun de la RocheUe,
**Le proofs oivU et criminel," Part 2, p. 144 et seq.

» Imbert, III, ch. XIV, No. 6.

* Imbert savs nothing about the accused being interrogated before the
entire assembled bench. This final interrogation, although very impor-
tant, was altogether discretionary.

168

TlTLK II, Ch. Ill] PROCEDURE IN THE 1400 S AND 1500 S [§ 2

at no time had the accused the help of a counsel ; the Ordinance
expressly declares, Art. 162, "in criminal matters the parties
shall in no wise be heard by counsel or agency of any third person ;
but they shall answer by their own word of mouth for the crimes
of which they are accused."

The deliberation upon the judgment might occur in various ways.
When there was only a council (" conseil ") of practitioners assist-
ing the judge, he merely took their opinions, which were not bind-
ing upon him; but when there were counsellors or assessors, it
seems that the question was decided by the mere majority opinion
alone.^ In this case, the judges, according to Ayrault, gave their
opinion orally or by ballot. "These are formalities which de-
I>end on ordinances or the practice of the companies. Different
courts use different methods. Provided that everything in the
process is seen, no error is made in pursuing either course." *
Already the custom was introduced into the higher juriscfictions
of not assigning a reason for the judgments. " It should be
understood that in a criminal judgment it is necessary par-
ticularly to declare for what crime the accused is condemned,
and that the Court of the Parlement of Paris does so, at least
usuaUy; the royal judges do not, however, regard this rule;
thus they put in their judgments the clause, — for the punish-
ment and reparation of the crimes of which he is found guilty
in the action." ^

Even when the procedure had become secret, the judgments had
for some time been pronounced publicly, or at least in presence of
the accused; but this last trace of publicity also disappeared:
"The said Ordinance (of 1498), Art. 116, states that if the pris-
oner is condemned to death, or other corporal punishment, the
judge shall pronounce sentence in open court, or in the council
chamber where the prisoner shall be brought, and the sentence
shall be read to him in presence of the clerk of court, who shall
record it in the books of sentences . . . but this formality is not
adhered to nowadays, as the judge sends his decision to the clerk

* " The judge puts the criminal process with the said motions to
the vote of eminent advocates of nis jurisdiction not suspected or
favorable. And although by the Ordinance of King Louis XII, Art.
115 . . it is said that the clerk of court should write down the opinions
of those taking part in the deliberation, this was not invariably done ; for
the clerk is not present at the said deliberation unless when there are
counsellors whom the judge is compelled to summon to the judgments of
the actions, and to decide according to the majority opinion of the said
oounsellors.*' Imhert, III, ch. xx, No. 4.

*"L'ordre at formality," etc., Ill, Art. 4.

• Imhertf III, ch. xx. No. 6.

159

§ 2] FRANCE, FROM 1200 S TO 1600 S [Part I

of court, who communicates it to the prisoner in the doorkeeper's
room, where he has the prisoner brought." ^

The accused had been kept in jail throughout the whole of these
proceedings. In the 1300 s we have said that liberation on bail
was granted freely enough, but it was necessarily excluded by the
general character of the new procedure. In this respect again the
Ordinance of 1539 sanctions a severity formerly unknown : " Art.
152. In matters subject to confrontation accused persons shall
not be released during the delays which are given for the purpose
of making the said confrontation." It was, therefore, only when
the action was put on the ordinary role that liberty on bail was
allowed (Art. 150). Very soon we shall find Ayrault protesting
against the maxim which made detention pending trial a rule with-
out exception. Certain indications, however, show that the pro-
visions of the Ordinance on this point were not always respected ;
" in trivial matters involving no corporal or criminal punishment,''
says one who lived at the end of the 1500 s, " the judges are ac-
customed to release accused persons on bail or on their juratory
bail, or even in the custody of a sheriff's oflBcer or oflBcer of court.
It might be said against this that the Ordinance forbids it and
that criminals should not be released until the confirmations and
confrontations have taken place, and that this would be an obstacle
in the way of prosecution, and that it would be impossible to ob-
tain proof of a crime, which would consequently go unpunished ;
but the obvious answer, based on common sense, necessary and
peremptory, is that when the Ordinance was drawn up, false wit-
nesses were not so abundant as at present. This is in common and
daily evidence, to such an extent that there are as many and more
sentences carried out on false witnesses than for all other crimes.
I say this not only from the horror and detestation of this abomin-
able crime of perjury, or because I desire the introduction of a
new (system of) practice ; but because it is necessary to use new
remedies to cope with the increasing maliciousness of the evil-
doers." -

Thus, little by little, the safeguards of the defense disappeared.
The procedure had become absolutely secret, not only in the sense
that ever>i:hing took place beyond the range of the public eye, but
in the sense that no production of documents was made to the
accused. The aid of counsel and the freedom to summon wit-
nesses for the defense had been taken away from him one after

> Imbert, III, ch. xx, No. 3.

« Boyer's "Stile." 1610 edition, Part IV, Title 12, p. 239.

160

Title II, Ch. Ill] PROCEDURE IN THE 1400 s AND 1500 s [§2

the other. Submitted to skilful, and often treacherous, interroga-
tions, he was in a terrible plight ; it might even be said that after
the Ordinance of 1498 his position became more desperate ; and
the Ordinance of 1539 sanctioned new severities.

The appeal was, however, always open in criminal prosecutions ;
and for a long time it was always taken before the royal judges.
Imbert, who still recognized a certain recourse, " ressort," from
the seigniorial judges in civil matters, recognizes none in criminal
matters.^ The Ordinance of Cr6mieu of 1536, confirming a usage
already established, gave to "appellants from corporal punish-
ment " the right to pass over the middle judge, and go directly
from the lower judge to the supreme court, provided they
formally expressed their desire to do so (Art. 22). The
Ordinance of 1539 went farther. In Article 163 it provided
that in future all appeals, in criminal causes, should " be
taken immediately and without intermediary step to the
supreme court, for whatever cause it may be appealed." This
perhaps went beyond the equitable limit ; therefore a " Dec-
laration " of 21st November, 1541, determined that the fore-
going provisions should apply only " to appeals from sentences
and judgments of torture and other corporal punishments, such
as civil or natural death, scourging (" fustigation "), mutilation
of members, perpetual or temporary outlawry, condemnation to
public works or services." In criminal as in civil matters, the
appeal had, in general, to be made immediately the sentence was
pronounced ; but even in civil cases this was only nominal, for
letters " of relief " were easily obtained, which permitted sub-
sequent appeal; in criminal matters it was a matter of right;
" when the accused is a prisoner, he always appeals as of course." ^
It even appears that the person condemned to a corporal punish-
ment was not under the necessity of raising (" relever ") his ap-
peal ; " when the accused is condemned to corporal punishment,
he is brought with his process before the court or before the mid-
dle superior judge." Appeal could be lodged, not only from final
sentences, but also from all the decisions of the judge, decrees,
rulings to the "extraordinary" action, sentence of torture, etc.
The appeal had, usually, a suspensive effect.

We have not spoken of the procedure by contumacy since we
described its earliest forms. It had been very greatly modified.

\The order was, 1st, the seigniorial judge or the royal provost ; 2d, the
bailiff or the seneschal of the province ; 3d, the Parlement (Imbert, III,
ch. XX, Nos. 1-7). « Imbert, IV, ch. I, No. 1.

161

§ 2] FRANCE, FBOM 1200 S TO 1600 S [Pabt I

In particular the periods of delay had been changed; in this
respect no difference between the gentleman and the bumble
plebeian was now recognized. The " Registre criminel de Saint-
Martin des Champs" contains several cases of procedure by con-
tumacy, all of them of the same nature. There was a first
summons given on three consecutive days, the accused being
summoned by oral proclamation by one or more officers
of court.^ Then came four more fortnightly summonses, only
the first three of which appear to have been strictly required ; ^
on the last default came outlawry. The following are two' cases
in which this procedure was followed, complete and in detail:
" In the year LII (1352) Girart de Neelle . . . was duly summoned
by Philipot de la Villette and Jehan Lefoumier, our officers, at
his residence, and on the people of his house and his neighbors,
the said summons being served for suspicion of the murder of lord
Guillaume des Essars ... on three days to personally appear, to
wit, on the Sunday following Saint Denis, and on the succeeding
Monday and Tuesday (14, 15, 16 October), on which days he was
held in default, and on each of these summonses he was sunmioned
for each of the said days in judgment by Girart la Souris, our
officer, and because he was summoned to appear for our rights
and those of the mayor and the court, once, twice, thrice, and the
fourth in full, to wit, for the first forty days, on Wednesday before
Saint Luke the Evangelist (17 October) in the year 1352, on
Wednesday before All Saints (31 October), for the second, on
Wednesday following Saint Martin in winter (14 November), and
on Wednesday before St. Nicholas (5 December), on which days he
was held in default and did not come or appear to take law for
the said crime : he was outlawed forever on pain of the gallows
as use is." ^ — " 10-12 January, 1352. . . . Jehan Millon was
put in default on suspicion of the murder of the deceased Symon
de Cappeval . . . and since he, Jehan Millon, was summoned to
the rights of the court and mayor of the said place, to wit, three
times on pain of outlawry' : and at the place and in the accustomed
manner, to wit, for the first forty days the Sunday after Epiphany
(13 January) for the first ; on the Sunday after the Conversion of
Saint Paul (27 January) for the second; on the Sunday when
' Reminiscere ' is sung (17 February) for the third, and on the

* pp. 32-74: " Perrin-Duport on three day oral summons by Pbelipot
Malgars and Colin de Montmartre," cf. p. 85.

* "Was summoned to appear for our ngrhts and those of the mayor and
the court, once, twice and thrice and the fourth and last!! (pp. 211, 212).

» pp. 311, 312.

162

TiTI-B II, Ch. Ill] PBOCEDURE IN THE 1400 S AND 1500 S [§ 2

Sunday when ' Lsetare Jerusalem ' is sung (3 March) for the
fourth, on which days he was held as in default, the said Jean
Millon was banished from all the lands of my lord of Saint-Martin
on pain of the gallows." ^

From that time there are two phases in the procedure by con-
tumacy : first, a summons on three days in close succession, then
three or four summonses at intervals of a fortnight. But the
proceedings were too long, and the Ordinance of 1539 shortened
them. It contains two articles on the subject. " Art. 24. In
all civil or criminal matters where four defaults have been usual,
two, well and duly obtained by sunmions served personally or at the
domicile, shall be sufficient, except that the judges may 'ex officio'
add a third if the said summonses have not been served personally
and they see that the matter can be so arranged." * — " Art. 25.
In criminal matters on the first default made upon personal cita-
tion let arrest be made, and if there be two defaults it shall be
ordered that, failing apprehension of the defaulter, he shall be
summoned on three short periods with attachment and seizure
of his property, until he has obeyed." These texts were not very
clear, but the practice was plain enough. First, a single default
or two defaults were declared, then the decree issued against
the accused. This either ordered his arrest, or took the form of a
merely personal citation : " Where there has been only personal
summons the proper course is to wait for two defaults before pro-
ceeding by summons on * three short periods ' and by attachment ;
but if there be arrest, the clause of * three short periods ' and at-
tachment may be included in the same decree." * There was not
entire harmony as to what was the delay indicated by these " three
short periods." According to Imbert it was essential " that there
should be an interval of three full and complete days, as to the
first two . . . and the last and third period must consist of a
week or other sufficient period of time according to the distance
between the places." But, according to Boyer, " the said sum-
monses at three short intervals should be distinct and separated

> pp. 213, 214. Sometimes the '* Registre " does oot give the whole of
the procedure. Thus in the case of one called Guillen, the defaults for the
three consecutive days of the first summons only are mentioned, viz.
the 30th and 31st December and 1st January (pp. 32, 33). The same thing
occurs in the case of one named Perrin Dupont (pp. 74, 75) ; on 20th Jan-
uary, 1337, the default of Jehannin de Sen lis on three days is noted
(p. 85) ; then on 21st January, 1337, is added, "By Pons the Mayor,
Jehannin de Senlis, default for the first day for the specified offense on
the preceding Sunday," and that is all ; c/. p. 133. Evidently there are
omissions here.

' C/. Jean dea Mares, 58. * Imhert, II, ch. Ill, No. 5.

163

S 2] FRANCE, FROM 1200 S TO 1600 S [Pabt I

by the same writ with such a sufficient interval between them as
ten or eight days at least; some maintain that the procedure
requires only three days, although by the law ' ad peremptorum
ff. de judiciis' it is essential that ten days intervene." ^

Contumacy resulted in a real and final condemnation ; hence-
forth, moreover, the charges were proved before it was pronoimccd.
This idea, although contrary to the Roman laws, is thoroughly
admitted : " Although, according to the civil law, final judgment
cannot be pronounced* against one guilty of contumacy in criminal
matters, in this kingdom we adopt a contrary custom, which is
in accordance with several Italian statutes, by which the person
guilty of contumacy is regarded as if he had confessed the offense
of which he is accused." ^ In theory, to entail this condemnation
letters from the sovereign were necessary ; but the idea of regard-
ing the judgment as capable of being purged and annulled by the
appearance of the condemned person grows and will soon triumph.
Imbert points out that the judgment can be attacked by way of
appeal, and, although he observes that " letters " are then neces-
sary, it is evident that these are mere matters of form : " If, there-
fore, the accused do not personally appear, judgment of contumacy
is pronounced against him, but he can always appeal from the
judgments of contumacy, and in that case shall have royal letters,
directed to the first royal judge who has given the judgment, by
which he shall be commanded to allow him (the accused) to be
within the law, notwithstanding the judgment of contumacy,
which shall be annulled by the said letters on reimbursing the
expense thereof." * Boyer goes farther ; he supposes that by the
accused's appearance the judgment ipso facto falls.^ Traces of the

^ Boyer' a "StUe," p. 234.

* Imhertt loc, ciL; cf, Constantin, '*Commentaire sur rordonnanoe de
1539/' p. 56: ''Bartolus . . . dicit valere statu turn vel oonsuetudinem*
quod judex condemnet et procedat contra contumacem, que consuetude

' viget in to to regno Franci»." — The clause of execution was incorporated
into the decree : ** Si pris et appr6hend6 peut ^tre." (If taken and arrested
may be.) See Bornier, OrcUnance of 1670, Title 17, Art. 15: "This
clause . . . was probably a matter of the old style, for in former times
the sentences rendered for contumacy were executed personally on those
sentenced if they were found ... as it w^as only inserted *ad terrorem*
and was not practised in France it was very properly repealed by the
Ordinance."

» Ch. IV, p. 663.

* "The person in default can always purge himself of the accusation,
although the said decree has been issued and executed, and to do this he
is obliged to give himself up as a prisoner in the prison of the Court of
Justice, and on that being done the record of the registers of the imprison-
ment for the pursuit of the accusation ui>on the examination of the action
must be produced, otherwise he shall be released as hereinafter mentioned."
** Stile," p. 236.

164

Title II, Ch. Ill] RIOCSDUBE IN THE 1400 s AND 1500 s [§3

original idea will, however, subsist for a long time ; Serpillon points
out that the question was still in dispute and was determined by
a decree in 1635.^

In this procedure, the seizure of the effects of the rebel, the ori-
gin of which we have traced to the feudal period, was carefully
regulated; this was the attachment ("annotation")- It took
place after the summons at three short intervals had been served.^
The Ordinance of Roussillon (Art. 80) declares that if accused
persons do not appear within a year after the seizure, "their
property attached and seized shall belong absolutely to whomso-
ever has right to it." This feature was borrowed from the Ro-
man law, and added to the old procedure of contumacy, which
up to that time had been wholly conunon law. The Ordinance
of Moulins (Art. 28) went further ; it ordains that if the judgment
carries confiscation or fine, persons guilty of contumacy " shall
forfeit not only the income of their property, but also the owner-
ship of all their eflFects awarded by the law. And the civil parties
shall retain their adjudications without power of redemption, and
we and our seigniorial justices what shall have been awarded to
us and them by fine and confiscation." The text added that the
king could grant letters to " allow the condemned persons to come
into court and to exculpate themselves after the said period and
to remit the severity of this our Ordinance." Letters of pardon
again appear in the procedure of contumacy. It was generally
considered that this law had repealed the provisions of the Ordi-
nance of Roussillon. The Ordinance of 1670 will do no more than
bring together these principles, and develop and in some respects
perfect them.

§ 3. Protests against the Ordinance of 1539. Constantin,
Du Moulin, and Pierre Ayrault. — We have seen how and by
what disintegration of the old forms the system sanctioned by the
Ordinance of 1539 was slowly built up. It is not so easy to under-
stand the unopposed acceptance of this procedure by the nation ;
still, it is an undeniable fact that the Ordinances which are the
subject of our study coincide in point of time with the meetings
of representatives of the country who could make the voice of the
people heard. This, however, is capable of explanation. This
procedure, due in great measure to the practice of the royal judges,

' "It was formerly a matter of doubt as to whether the appearance of
one condemned to death annulled the contumacy. This was the subject
of a conflict of opinion which was decided by a decision of the Court of
Assize of the month of June, 1633." !*Code criminel," p. 851.

< Ordinance of 1539, Art. 25.

165

S 3] FRANCE, FBOM 1200 S TO 1603 S [Part I

had grown with the growth of royalty ; it rested upon a sentiment
of inherent infallibility and stern protection, which royalty had
borrowed from the Church, and which constituted its principal
strength. The people, emerging from the anarchy of the Middle
Ages and from the great wars against the English, torn ere long
by the devastating religious wars, felt above all else the need of
security and peace.^ The new Ordinances furnished a better
assurance than any other law for the repression of crime. For
this reason, they were wilUngly accepted and almost popular.
The Ordinance of 1539 was not, however, passed without protest
on the part of the jurists ; both feeble and eloquent voices were
raised against the severities which it introduced.

The first undoubtedly to criticise it was a Bordeaux lawyer, called
Jean Constantin, who wrote in the year 1543.^ His commentary
is in Latin. His was not a great intellect, and N^ron gives him
small praise in the preface to his collection.^ He was, in truth, an
honest man, who had no love for provost-marshals, a thing often
observable in those days.* He displays an undigested erudition,
stuffed with texts from the " Corpus juris " and the works of
Italian doctors, whom he quotes at every turn, piling citation
upon citation between the different parts of a single phrase. But
that was the fashion of the time, and Constantin deserves our pass-
ing consideration. He represents the unadulterated doctrine of the
Italian doctors, and he certainly shows that, if France had borrowed
literally certain points of its criminal doctrine from these doctors, —
the theory of proofs, for example, — it had given to the inquisi-
torial procedure a shape and direction of its own and a severity
unknown to the Ultramontanes. The expressions themselves

^ Leaving judicial documents out of the question, every page of the
**Registre criminel du Chatelet" shows the brigandage and the state of
insecurity under which France suffered at the end of the 1300 s.

* **Commentarii Johannis Constantini, in jure licentiati curisB que
Parlamenti Burdigalensis advocati, in leges regias seu ordinationes de
litibus brevi decidendis recenter editas," P. 248: "Hoc anno millesimo
quadragesimo tertio."

* **A commentary on this ordinance appeared ten years after its pub-
lication written in Latin by Jean Constantin^ advocate to the Parlement
of Bordeaux. The great copiousness of this work cannot be denied, but
if the useless matters are eliminated and the large number of quotations
with which it is swelled are cut down, substantially little is left." ** Recueil
de N6ron," preface, Paris 1720.

* ** Isti intrunculatores et judices maleficiorum quos 'prsepositos mare»-
callorum nominamus, et qui eis tallia officia committant, qui cumdeberent
esse literati viri, sunt ignari, et omnium honorum litterarum expertes,
tiranni vindicatores sibi et suis complacentes, pereant a ceterorum oom-
mereio et exterminentur tales tyranni et homicid» et eorum officia bonis
viris et litteratis committant" (p. 237).

166 '

Title II, Ch. Ill] pbocbdure in the 1400 s and 1500 s [§ 3

had sometimes changed their meaning in passing into France^ and
Constantin gives a curious example.^ In the name of the law-
doctors he protests against the severities of the Ordinance.

Commenting upon -^icle 162, he inveighs against the exclusion
of advocates : " Practicam antiquam quee hie toUitur et aboletur
meminit Angelus in suo tractatu maleficiorum . . . ubi dicit quod
ipse reus vel ejus advocatus potest interrogatoria facere."^ Com-
menting on Articles 157 and 158 he shows what slender resources
the law leaves to the accused for his defense : " Quomodo potest
allegare reus aliquid ad suam defensionem si sibi non detur copia
testium et totius processus? Ideo quaero, numquit facta et
completa inquisitione, testes et totus processus debeant publicari
et de his fieri copia ipsi reo."^ Farther on he launches into a
long dissertation, citing all his authorities, and coming to the con-
clusion that the law-doctors admit, in general, the production of
documents, that it was even a matter of right whenever there was
a party " promovens inquisitionem." As to the provision which
bars the proof oflFered by the accused at any time during the action,
and allows only that of justificative facts, Constantin not only
declares it odious, but absolutely refuses to allow it. As to article
158 he says : " De severitate hujus articuli satis patet ex suprll
dictis, maxime in articulo cxlvi ubi habes quod istee ordinationes,
quae excludunt reum a defensione ante sententiam, sunt omnino
contra jus commune . . . licet Angelus dicat talia statuta exclu-
dentia reimi a defensione valere, ego limito hoc esse verum si reuspe-
tat calumniose se admitti ad defensionem, alias secus, . . . quia con-
fesso et condenmato datur defensio ; ergo multa magis non confessus
neccondcDMiatus, volensdeinnocentia suaprobare,admittitur quan-
doque ante sententiam, si videas eum hoc calunmiose non petere, ut
puta quia hoc tempore, de quo loquitur ordinatio nostra, non habe-
bat probationes et postea reperit vel alia modo constat de sua inno-
centia." * As to article 162, rejecting the confrontative judgments

^ ''Judices maleficiorum in senatu Burdigalensi hoo anno millesimo quin
gentesimo quadragesimo tertio ooDsedentes, qui, cum me ad se accessissent
quod quemdam fiurem sententia torquendum dlxissem, et ipsi suo arresto
cum suis furtis absolvendum, qusBsiverunt inter alia quid erat ordinarid
proeedere ; qui, quum dixissem quod secundum formam et ordinem juris,
subridebant dicentes, quod imo proeedere ordinarie erat sine confronta-
tionibus et extraordinarie per comrontationes, et quia usus non eram con-
frontationibus in processu illius furis dicebant me errasse in facto et in
jure, et allegabant advocatus et prociuator repfius 1. Or do, ff. De puhliciU
judiciis; quod plusquam asininum est et tantis viris indig^num; sed quia
coram ipsis non audebam aperte loqui, ideo tacui : nam aliam esse formam
et ordinem juris in criminibus et aliam horum statu torum nemo est qui
nesciat" (p. 248).

» p. 288. » pp. 281, 282. * p. 284.

167

§3] FRANCE, FROM 1200 S TO 1600 S [Pabt I

formerly allowed, he is still more forcible. " Nota quod dixi
articulo cxux quod debet assignari terminus reo ad suam defen-
sionem faciendam; alias non debet damnari. . . . Ita dicit
Bartolus, et Imola . . . quod banc practicaiji servat totus mundus,
qui quidem terminus tollitur his ordinationibus ut dicto articulo
constat. Ergo non servamus illam practicam quam servat totus
mundus, juris etjustitiseignari ; quaredicoquod non valet tale statu-
tum per quod tollitur defensio quae est de jure naturali . . . cum
jus naturale jure civili toUi non possit, et quod judex, ipso non
obstante, potest prsefigere terminum ipsi reo ad suam defensionem
faciendam . . . alias poterit Isedi innocens, quod non esse debet." ^
All this, even when disencumbered of the citations with which it
is burdened, certainly offers few fine phrases. But although the
style is poor enough, the ideas are none the less noble on that
account.

Constantin was not the only practitioner to find fault with the
pitiless severities of the Ordinance : here and there in Imbert are
to be found short remarks in the same spirit. But louder voices
were raised. First there was that of Du Moulin, who commented
on the Ordinance of 1539 in a grotesque style, in a clumsy Latin,
mixed with French. Several of his indignant and curt remarks
have survived the ages as lasting protests. He tried first to put
as favorable an interpretation upon the text as possible. As to
Article 155, which does not give the accused any delay to allege
his objections, he says : " Si hoc verbum (delay) referatur ad
singula et sic ea excludendo, esset barbarica iniquitas ; ideo debet
intelligi quod implicet non distributive sed collective. Ita quod
judex possit dare dilationem modicum arbitrio suo, et sensus est
quod verba non excludent aperte dilationem dari, quod est favo-
rabile." ^ In the same fashion he repudiates the literal interpre-
tation of Article 157, ordering the accused immediately to name
his witnesses for the proof of the justificative facts.^ Two of his
outbursts in particular have remained famous, that upon article
158, where he brands the name of Poyet with that epithet of in-
famy which never left it : " Vide tyrannicum opinionem illius
impii Poyeti " ; * the other, on article 154, which does not require

I pp. 291, 292. « "Recueil de N6ron," vol. I, p. 250.

* Ibid., p. 251 : ** Nommer intellige qud<!umque demonstratione, quia
non semper innocens scit nomina eorum per quos probabitur absentia alle-
gata ; fails justificatijs : etiam de facto vidi d Mascon 1550 regu post 21
menses et dicere etiam variando quse nova facta estoient venus d sa mS-
moire et nommer tesmoins pour ce prouver et ad requestam du procureur
du Roy et tantum non vocato accusatore.*'

* "Kecueil de N^ron," vol. I, p. 251.

168

TlTUB II, Ch. Ill] PBOGEDUBE IN THE 1400 8 AND 1500 S [§ 3

the judge to verify the witnesses for the defense : " Vide duritiem
iniquissimam per quam etiam defensio aufertur, sed nunc judicio
Dei justo redundat in authorem^ quia major pars judicum voluit
hanc servare constitutionem hoc mense octobris 1544. Sed est
pemiciosissima consequential' ^

But louder still than Du Moulin speaks another, who cannot be
too highly eulogized, Pierre Ayrault. He had a great intellect
and a large heart. In his chief work, "TOrdre, formalitS et instruc-
tion judiciaire," we still obtain valuable information on Roman
criminal law; and this learned work is written in an admirable,
fervid, and glowing style. Rising high above his contemporaries,
he showed to a nicety the dangers of the criminal procedure to
which France was given over. We may be permitted to quote
the chief passages in which he fights for a cause, which, though for a
long time lost, could never perish, and demands orality in th^e
trials and publicity and liberty in the pleadings.

His first concern is to point out the fundamental defects of the
system which he attacks, namely, its secrecy, the undue importance
attached to written documents, and the immense power left in the
judge's hands. " Justice," he says, " is treated like sacred mysteries,
which are imparted only to the priest.^ ... In olden days at
Rome and in Greece all this examination (' instruction'), con-
firmation, confrontation, and judgment took place with open doors
and publicly, in presence of the people and of all the judges and
parties concerned. In no other respect is our practice more contrary
than in this, for so rigorous is our requirement that criminal actions
be examined apart and in secret that we will not judge them if
any other than the judge and his clerk of court should have been
present. Whence this difference ? Are right and reason different
factors in republics where the people take part in the administra-
tion from those existing in States dependent on one single person ?
We in France have certainly not thought so for a long time. . . .
It is not, therefore, political difference which causes this variance
between secret and open examination. ... In private it is easy
to twist the evidence, to intrigue or browbeat. The court-room,
on the contrary, is the bridle of the passions, the scourge of bad
judges. But, while this public examination serves as a curb for
bad judges, it gives good judges an inconceivable sense of security
and freedom. The innocent will never be clearly acquitted or the
guilty justly punished, and there will always be some cause for com-

» "MoliniBi opera," vol. II, p. 792.

*"L'ordre et formality/: etc.. Book III, Article 3, No. 21.

169

§ 3] FRANCE, FROM 1200 S TO 1600 8 [Pabt I

plaint, if their trial has not been conducted and considered publicly.
That head with more eyes, more ears, more brains than those of
all the monsters and giants of the poets, has more strength, more
energy to penetrate straight to the conscience, and lay bare on
what side the right lies than our secret examination." ^ " Is it
reasonable to credit what one judge and a hired clerk report as to
the testimony of ten or twenty witnesses ? . . . Such depositions
do not show either what is said by the deponent or how he says
it. It is the concoction of an oflScer, a searcher, or an examiner,
even, forsooth, of a judge, if.it has been taken by one, who all
make the witness say what seems good to them. Nothing can be
said in reply, though there may be ever so great a contradiction in
the terms, and the very first assertion which the witness has made
use of in deponing exists no longer when we come to our confirma-
tions and ordinary confrontations. I have oftentimes heard the
late lord lieutenant-general of this jurisdiction, a very well-informed
man, say that the witnesses might be Ukened to clocks. Just as
we can make the latter strike any hour we want, so the witness,
according to the way he is examined, and the terms used to em-
bellish and clothe his narrative, testifies for the prosecution or
the defense ; . . . for this reason he declared that nothing was so
harmful in the trial to which we are accustomed as the introduc-
tion into it of the methods and functions of the hearing of witnesses.
On the report of an examiner and inquisitor the judge gives cre-
dence to men whom he has never seen, and if perchance he causes
their re-examination, they usually tell another tale, or else say,
* Let them read me my deposition ; I stand to what is written
therein.' " ^ — " The mouth lies most when it is closed tight from
fear of falling into a trap, but our gestures and outward expressions,
whether we wish it or not, speak, and speak the truth, in one way
or another." ^

The oral and public procedure has never been better defended,
or in better language. Ayrault paints with no less vigorous a brush
the terrible power of the examining magistrate and the helplessness
of the defense. " I insist that the best feature which the criminal
examination of the ancients possessed was that this act of interro-
gating the parties depended upon themselves or their advocates
and n9t upon the judges. . . . Thle method has been so thor-
oughly changed, and ours is so radically different, that if any other

* ;*L'ordre et formality," etc., Book III, Article 3, Nos. 58, 59, 60, 63,
64.

• Ibid,, Book III, Article 3, No. 38.
» Ibid., Book III, Article 3, No. 64.

170

Title II, Ch. Ill] PKOCEDUBE IN THE 1400 s AND 1500 s [§ 3

than the judge should now interrogate the accused, or if he
should do it in the presence of the party, the whole proceeding
would be null. . . . Depriving the parties of that option of inter-
rogating, hearing, and examining their witnesses, we have put the
matter in the judge's hands to such an extent that the unfortunate
parties appear to-day with their hands tied, and blinder than those
who write in midnight darkness. . '. . Nowadays, when all the func-
tions which rested with the parties and their lawyers center in him
(the judge), he must proceed with so much guile and finesse, if he
would drag the truth from the lips of a criminal, that it is very
hard to say whether these artifices should be dubbed justice or
chicanery." ^

The system of objections and justificative facts appears par-
ticularly intolerable to Ayrault's honesty. " The testimony would
be much better rebutted by timely debate, argument, and
refutation than by blame and reprehension of the person giving
it. But since we are on the subject of objections, let us see, for the
sake of argument, if the ordinance introduced by Chancellor
Poyet, providing that the accused must plead them before having
heard the testimony of the witness, and that after the reading they
should no longer be admissible, is just and equitable. . . . The
same oflBcer even ordered that no witnesses should ever be
brought by the accused except his relatives, neighbors, and
fellow-citizens. . . . How can the accused know at the very
moment whether or not the witness is bribed or has been incited
against him ; his relatives, his friends, his solicitors and attorneys
themselves cannot find that out so soon ; how can he do it from his
prison? The device of alleging objections before the reading has
resulted in the accused persons being constrained to object at all
hazards, and in the majority of their objections being matters
of course . . . the ignorant especially need protection . . .
everybody does not understand the ordinance, no matter what
notification has been given of it. Does this not look like the es-
tablishment of such a formality that not to object before or after
will deprive one of life or honor? . . . Many unfortunate ac-
cused persons, who do not know A or B do not know either to
object or challenge.* All the foregoing emboldens me to say that

' Book III, Article 3, Nos. 21 and 22. These inconveniences are noticed
by Imbert (III, ch. X, Nos. 2 and 3), who gives wise advice to the inter-
rogating judge and censures the practices of crafty magistrates.

* Iwiert likewise makes a protest in this respect : "Which ordinances,*'
he says, "are extraordinarily severe (and their author has met the fate of
PeriDus) ; for it is very harsh and severe to make an unfortunate prisoner
languishing under an imprisonment of a year or six months instantly

171

§ 3] FRANCE, FROM 1200 S TO 1600 S [Pabt I

I do not clearly understand what induced the said Chancellor Poyet
to abandon that excellent and straightforward mode of proceeding,
where both parties bring their evidence at the same time, for that
which he has introduced of granting an interlocutory judgment to
inquire as to justificative facts and objections, the former method
having been an invariable rule hitherto. Whence comes this
contrivance of not allowing the accused to bring his evidence until
that of the prosecutor is brought and settled ? . . . Is there jus-
tice in the fact that one party labors and strives to bring his
evidence after the other is all ready? ... A duel fought on
the understanding that one should fire all his shots first and the
other afterwards would be neither just nor seemly. In the trials
now in vogue the judgments are arbitrarj'- and the assessors are
prone to accept what they are primed with rather than what is
proved, the accused are in danger of seeing themselves condemned
in spite of and without regard to their justificative facts and objec-
tions. In short, is it proper to judge an action after looking at but
one side? . . . There remain in this ordinance two matters,
which we ascribe to the said lord chancellor Poyet, so far removed
from the old time forms as to throw doubt upon his equity ; it is
declared that the accused shall name his witnesses immediately and
that not he but the king's procurator shall cause their appearance.
What does this signify? The prosecutor is to have ample time to
make his investigation, but the accused is to divine at once what
witnesses can vindicate him ! And a third party, and not he, is
to bring those whom he names for his defense ; his innocence will
thus depend upon the fidelity or faithlessness, the diligence or
indifference of another. Is there any king's procurator as con-
cerned about the vindication of the accused as the accused him-
self? "^

Ayrault also inveighs against the abuse of detention pending
trial and of the monitories (" monitoires "). After having praised
the practice of release on bail in a magnificent passage, and
lauded the ancients for having permitted it, this is what he says

cite his said witnesses, and not to allow the prisoner nor another for him
to speak to the witnesses who may come to testify on his behalf, and that
the king's procurator, who is an adverse party, should cause their appear-
ance, not to mention the fact that they will probably be delivered into the
charge of an officer of the court who is practically for the party adverse
to the prisoner. And on this account it would be well to somewhat ame-
liorate the said ordinances" (III, ch. xiii, No. 16). The proof of the
justificative facts and the objections to the admissibility of the witnesses
IS here the matter in question.

1 Ayrault, Book III, Article 3, Nos. 50-52.

172

Title II, Ch. Ill] pbocedure IN THE 14008 AND 1500 s [§ 3

of sudden arrest : " It may nowadays be almost ranked as the
regular procedure. It oftentimes happens, I know not how,
that what is the finest and most reasonable thing in theory is
very improfitable in practice. It has been necessary, in order to
safeguard the public, to discard the traditions of freemen and
treat all as sworn enemies, rogues, and slaves, for whom prisons,
tortures, and gibbets have been invented. All our other reasons
may be as plausible as you like ; yet so harsh is our practice, that
experience shows us that if the accused are not kept in prison, it is
impossible to convict a single one ; there is no witness who dares
testify, no judgment which can be executed."^ — "Nothing is
so common nowadays as to resort to the monitories and ecclesias-
tical censures to obtain proof and revelation of crime prosecuted or
to be prosecuted before us. Have we any criticism to make upon
the ancients because, to gain these same ends, they implored from
their pontiffs such imprecations and maledictions ? . . . I think
not . . . To entice the witnesses by bribery or by fear of being
punished by God or man was a thing they never did. As it is a
crime for the accused to bribe the witnesses on his behalf, so should
it be for the prosecution to coerce them, or bribe them. The
ancients, after all, were more careful about their religion than we
are. The public is not so deeply interested in the charging and
proof of a crime as to injmre itself by the profanation and pollu-
tion of holy things." ^

We may be pardoned for having multiplied these quotations ;
it was useful to show that in our country the sentiment of true
freedom remained in some exalted hearts, at a time when it was
most lacking in our institutions. It is not quite correct to say
that "when the royal Ordinances altered the form of criminal
actions, to substitute the written examination for the traditions
of the old oral procedure, no voice was raised to recall the individ-
ual safeguards." ^ The fact is, however, that the protests which
were made found public opinion indifferent. The bitter plaint
of Pierre Ayrault, which to-day commands our admiration, then
fell on empty ears : " Vox clamantis in deserto." The country

* Ayrault, Book III, Article 2, No. 30. It is strange that this ie the
only word of blame to be found in Ayrault for this horrible institution of
torture. Compare Imbert on detention pending trial: "Although it may
be somewhat arbitrary, it would nevertheless be well to designate expressly
by Ordinance the offenses for which an order for arrest could be granted,
>o as to restrain the license which many judges usurp on this point.'*
Book III, ch. II, No. 4.

» Ibid,, Book III, Article 2,, No. 31.

' M. G. Picot, "Histoire des Etats-G6n6raux, vol. IV, p. 254.

173

§ 4] FRANCE, FROM 1200 S TO 1600 S [Pabt I

thankfully accepted everything that helped to check the disorders
from which it had suffered so long. " Towards the end of the
Middle Ages," says M. Picot, " after the terrible Hundred Years'
War, which had shaken France to its very core, royalty realized
that the nation's greatest need was internal order. The whole
country was then obviously enamoured passionately of safeguards
which bade fair to shield it from the violence of the strong hand."
And the movement which had transformed the criminal procedure
in France was at the same time making headway among the neigh-
boring continental nations ; there its force was irresistible.

§ 4. The Criminal Procedure and the States-General of the 1500 s.
— Whenever the nation chose to speak by the mouths of its repre-
sentatives, either in the States-General or in the convocations of
Notables, it approved of the revolution effected in its criminal pro-
cedure. On rare occasions, the Third Estate, actuated by the vague
instinct of freedom which never left it, and the Nobility by a senti-
ment of jealous independence, raised objections on certain matters
of detail. As time went on, satisfaction with the new procedure
became more marked and it struck its roots more vigorously and
tenaciously. This approval of the secret and inquisitorial proced-
ure by the States-General has been demonstrated at different
periods. Attorney-General Siguier recalled it in 1786, in a cele-
brated speech before the Parlement of Paris, in which he dis-
countenanced the desires for reform. " One remarkable thing,"
he said, " which we should not forget, the great Ordinances of the
kingdom have in common. The Ordinance of Villers-Cotterets is
dated 1539, that of Orleans 1560, that of Moulins 1566, and that
of Blois 1579. They all belong to the same century ; the aim of
all is the reformation of the law. The three last mentioned were
issued in answer to the complaints, laments, and protests of the
three estates of the kingdom . . . and in all these solemn laws, in
which, if I may be permitted to say so, the nation demanded justice
from its sovereign, there is no complaint against the form of pro-
cedure, nor against the barbarity of the Ordinance of Francis I.
Can it be pretended that the whole nation assembled in deliberation
upon its affairs has been blind enough not to demand, in this
respect, the reform of a fantastical system of law which is also
contrary to natural law? " ^ Later, at the time of the drawing
up of the Code of Criminal Examination, when the " pr6v6tal ''
jurisdictions were introduced into our judicial system, under the
name of "Special Tribunals," those who drew up the Code re-

1 pp. 240, 241.
174

Title II, Ch. Ill] PROCEDURE IN THE 1400 s and 1500 s [§ 4

•

called that the States-General of the 1500 s had approved of this
institution. " It will be sufficient for the purpose of the debate
to observe that a special institution, analogous to that which we
now propose to you, reestablished in every part of France by
Francis I at the beginning of the 16th century, was recognized,
demanded by the States-General held at Origans, Moulins, and
Blois, and sanctioned and reconstituted in the celebrated Ordi-
nances issued in answer to the protests of these States." ^ The
only mistake made by Sequier and M. R6al was in deeming the
attitude of the States-General to be a vindication of the procedure
of the Ordinance of 1539.

It is of interest to examine more minutely the exact language of
the Estates ; which M. Picot's excellent " Histoire des Etats-
Gen6raux " has made an easy task.

In the Estates of 1560, the Nobility merely insisted that the
king's procurator should be " bound to disclose the informer on
pain of being liable in his own individual name." The Third
Estate and the Clergy demanded an increased activity in the use
of public prosecution, and the Ordinance of Orleans (Art. 63), em-
bodied this desire in the law.- The Third, however, protested
against the provision which " compels accused persons immediately
to allege their objections to the witness, which is a great hardship,
and often results in the innocence of many being imperilled." It
urged that the judge should be empowered to grant a delay. The
king's Council replied that " the Ordinance shall be observed." ®
The greatest concern of the Estates centred upon the provost-
marshals; while the Third demanded and obtained for certain
royal courts concurrent jurisdiction with the provost,* all three
orders were unanimous in their demand for speedier and more
effective action by the marshalcy.

In 1576, at Blois, the Third Estate desired that the accused
should be " regularly informed of the name of the informer against
him before any confrontation." ^ This desire was destined to be
ignored; but not so another, likewise preferred by the Third, to
the effect that " all those who shall investigate crimes by informa-
tion shall be bound to examine the witnesses as to the full truth
of the fact, as much for the defense as for the prosecution of the
accused." It was considered that enough had been done for the
defense by thus handing over its care to the conscience of the

* "Expose des motifs du titre VI, livre II, du Code d'Instruction Crim-
ineUe," by Af. Rial (Leir6, vol. XXVIII. p. 47).

»Af. Picot, op. cii., vol. II, pp. 169, 170. • Ibid., vol. II, p. 171.

'Ordinance d*Orl^ns, Article 72. * Picot, op. ciL, vol. II, p. 528.

175

§ 4] FRANCE, FROM 1200 S TO 1600 S [PabT I

judge. It was at bottom a purely forma] satisfaction, and the
provision was inserted in the Ordinance of Blois (Art. 203), and
was subsequently incorporated in the Ordinance of 1670 (Title V,
Art. 10). A more important matter, also prescribed by the Ordi-
nance of Blois, was that the judges were obliged to ask the wit-
nesses if they were " relatives, kinsmen, domestics, or servants of
the parties, and to mention the fact at the commencement of their
depositions, on pain of nullity and damages to the parties." *
But what was wanted more than anything else was an acceleration
of the public prosecution and in the service of the marshalcy :
" A perusal of the ' Cahiers,' " says M. Picot, " clearly sho^vs that
the deputies were charmed with the Ordinance of 1539. . . . The
information by itself seemed to them fitted only to terrify evil-
doers and consequently to reassure peaceable people. So they
refrained from criticising the secret examination." ^

At the new Estates of Blois, in 1588, the foregoing questions still
less troubled the minds of the deputies ; " neither the Clergy nor
the Third concerned themselves with the criminal examination." *
The Nobility demanded the acceleration of the proceedings ; they
manifested a desire to revive accusation by individuals, as opposed
to the action of the public prosecutor, proposing a provision, which,
moreover, has passed into our laws, providing for the forfeiture
of all right " against the widows, heirs, or assignees of the victims
of homicide who did not prosecute the murder or manslaughter in
the person of their husbands or relatives." *

The mission of the Estates of the Ligue of 1593 was exclusively
political, and criminal legislation was not the concern of that
assemblage, the immortal satire on which is contained in the
" Menippfe." The Assembly of Notables, held at Rouen in 1596,
was likewise without influence in this matter.^

It was at the Estates of Paris of 1614, and at the Assemblies
of Notables of Rouen (1617) and of Paris (1626, 1627), that the
representatives of the country were able to give expression to
their opinions for the last time before the drawing up of the Ordi-
nance of 1670. Public opinion showed itself still more favorable
to the secret and inquisitorial procedure : " a whole generation
of the legal profession were trained under the mysterious customs

* Picot, op. cit., vol, II, p. 528. The Nobility had desired "that prisoaers
released for want of evidence should not be liable to arrest after the ex-
piration of one year from the date of the decree ordering the further
inquiry."

« Ibid.y vol. II, p. 530. » Ibid., vol. Ill, p. 184.

* Ibid., vol. Ill, p. 184. « Ibid., vol. III. pp. 257, 323.

176

Title U, Ch. Ill] PROCEDURE IN THE 1400 s AND 1500 s [f 4

of the written examination, and the indolence of injured parties
had gradually accepted the initiative on the part of the magistrate,
which spared the citizen the care of defending himself, and sub-
stituted the protection of the State for individual action." * Even
in the " Cahiers " we find the expression of views tending to aggra-
vate still more the hardships of the procedure. It is at the
request of the Third Estate that the Ordinance of 1629 will be
found expressly to forbid entering pleas at the outset of the crimi-
nal proceedings (Art. 112), lest the lawyers and the procurator-
general should perchance by mere hint designate the witness
clearly enough " to give the accused the opportunity to prepare
themselves and bring forward objections and have recourse to
stratagems against the witnesses for the prosecution." * All three
orders insisted upon a single judge conducting the information
with the assistance of his clerk or "greflier." ^ This, it is true, was
chiefly from motives of economy; the same impulse moved the
compilers of the Ordinance of Moulins to provide (Art. 37) "that
henceforward a single commissary and not two shall be appointed
to attend to the examination of actions ; always in the presence
of his clerk of court or assistant, the whole on quadruple penalty."
The Third Estate also concerned itself with "dilatory 'incidents'*
and evocations,^ conunonly used for the purpose of evading the pun-
ishment of crimes ; it demanded that it should not be possible to
suspend the examination under diverse pretexts, and that the judge
should not stop until the moment when he pronounced the final
sentence." • Some alleviations were, however, demanded. The
Nobility "persisted in demanding that the attorneys-general, being
parties, should be compelled to name the informers at the begin-
ning of the action." ^ The Third Estate wished that " the in-
terrogation of the accused should take place within twenty-four
hours after his arrest." * The jurisdiction of the provost-marshals
received the attention of the deputies ; they proposed that their
"jurisdiction, which is a pure abuse, be restricted to disorders
committed by the military." •

The complaints of the Estates of 1614 and of the Assemblies
of Notables which followed resulted in the publication of an Ordi-
nance. In 1627 Michel de Marillac gathered around him a certain

» Picot, vol. IV, p. 61. * Ibid., vol. IV, pp. 61 and 187.

* Ibid., vol. IV, p. 64.

^ Facts emerging in the course of a case constituting a claim depending
upon the principal claim.

^"Evocation'' is the calling of a case from one court to another.

• Picot, vol. IV, p. 64. 7 jiyid,^ vol. IV, p. 60.
*Ibid„ vol. IV, p. 61. • Ibid., vol. IV, p. 65.

177

§ 4] FRANCE, FROM 1200 8 TO 1600 8 [Paut I

number of State's Councillors, and the complaints of the deputies
were considered. An Ordinance was made, comprising a large
number of articles, many of which were devoted to the adminis-
tration of the law and to the procedure ; but it was by no means
a detailed and systematic codification. It was registered by the
Parlement of 15th January, 1629. But this " Code Michaud," as
it was called, was rarely observed in practice.

In the 1600 s, as we shall see, public opinion demanded no re-
forms in criminal law ; it was not even hinted that the procedure
which was followed could possibly be bad. But the need was ere
long felt of a Criminal Code, precise and detailed, which should
settle all the details and do away with the irregularities and di-
vergencies in the administration of justice. The time of the Fronde
had been one of severe distress. Crime, the inevitable offspring
of evil days, had increased ; and at the same time, by a phenomenon
invariably observable in the midst of political troubles, the ad-
ministration of justice had become less exact and less energetic.
Five years after the death of Mazarin, Denis Talon was able to
say " that the number of evil doers had grown to such an excess
on account of the impunity with which crime was committed, that
soon all security of public liberty will have ceased to exist." *
In 1665, the ** Great Days '* of Auvergne, of which F16chier has
left us a very interesting account,^ showed in a startling fashion
the disorders and scandals which tarnished the administration of
justice. It was also the case that, although for a long time the
broad features of the procedure had been settled, no general law
had regulated its details. The inexactitude and diversity of the
systems of judicial practice were also an evil which continued to be
more and more keenly felt : " The evil," according to one of the
compilers of the Ordinance of 1670, " has come to such a pass that
in the same Parlement several maxims have changed two or three
times within thirty years, and even at the present day they are
construed differently in the different chambers of the same Parle-
ment." ^ Nothing but a general law could provide a remedy.
Such a law was also called for to correct another abuse. The
criminal proceedings being entirely written, a multitude of
formalities and useless productions were introduced into it,
which had the effect of retarding the progress of actions, and

* Quoted by M. Pierre Climentf "Lettres, papiers et doouments do
Colbert," vol. VI, Introduction, p. xxxix.

»** Grands-jours d' Auvergne," Ch^ruel.

• "Lettre d'Auzanet & un de ses amis." See Pierre CUmentf "Lettres
et documents de Colbert," vol. VI, App. p. 397.

178

Title II, Ch. Ill] PROCEDURE IN THE 14008 AND 1500 s [§ 4

inevitably ended in the excessive' increase of the expense of the
proceedings.

The Monarchy had emerged triumphant from the recently ended
strife, which it had waged for centuries, first against feudalism
and then against the nobility; the Fronde had been the final
convulsion of the opposed forces. Henceforward unopposed,
royalty strove to establish that absolute and centralized govern-
ment which left such a marked imprint upon France. The time
was favorable for a reform of the laws. Whenever, after secular
struggles between rival forces, a nation arrives at a stage which
seems to it final, and which in reality should assure it of a long
period of stability, it feels the need of recasting and unifying its
laws. A desire is felt to imite into one harmonious whole the
rules of law which have been in slow process of formation and to
disencumber them of their heterogeneous elements. That was
the kind of work imposed upon the government of Louis XIV. A
fact which clearly shows that there was a real need for such an
undertaking, one of those ideas which "are in the air," as we say
to-day, is that two eminent men, Lamoignon and Colbert, simul-
taneously formed the conception of a codification of the laws,
and separately conmienced the first labors to attain that end.

179

Part II

HISTORY OF CRIMINAL PROCEDURE IN THE
LATE 1600 s AND THE 1700 8

181

Title I, Ch, I] THE DRAFTING OF THE ORDINANCE OF 1670 [§ 1

Title I^
THE FRENCH ORDINANCE OF 1670

Chapter I
THE DRAFTING OF THE ORDINANCE OF 1670

i 1. The Project of a Codification.
Colbert, Pussort, and Louis
XIV.

2. Memorials of Members of the

State Council.

3. Colbert's Plan. The Council

of Justice; its Preliminary
Labors.
§ 4. The Parlement's Share.
5. Discussion of the Ordinance
of 1670. Lamoignon and
Pussort.

§ 1. Tho Project of a Codification ; Colbert, PuBSort, and Louis
XIV. — Louis XIV, in several passages in his Journal and his
Memoirs, speaking of the Ordinances dealing with the laws
promulgated during his reign, claims as his own, not only the glory
of the execution, but also the original conception.^ Those around
him strove, indeed, to persuade him that he was the real achiever
of the enterprise, and posterity seems to have been of that opinion,
since it has given the name of " Code Louis " to the collection
of these Ordinances. It is, to-day, thanks to modem research,
possible to assign to each his share in the work. In the account
which we shaU now give, the Ordinance of 1667 and that of 1670
must be considered together; both are parts of the same work,
executed by the same hands.

The credit of the undertaking belongs to Colbert and his uncle,
Pussort. Even in the 1700 s legal scholars had come to believe this,
although all they had to go upon were the minutes of the meetings
between the members of the Parlement and the State councillors.
Speaking of the criminal Ordinance, they called Pussort " the chief
compiler of that law." Colbert and Pussort were both men
capable of carrying out such a work successfully. Colbert's
strength of will is well known, and Pussort was as energetic and able

^ [The order of the author's chapters in this Part has been slightly
changed, to make the development clearer for the purposes of this volume.
— Ed.1

«"M&noireB de Louis XIV': (Dreyss edition), vol. II, pp. 156, 224,
368.

183

§ 1] PROCEDURE IN THE 1600 S AND 1700 S [ParT II

as he. Saint-Simon, who had no love for him, yet speaks of him in
these terms; "M. Colbert was a self-made man; his ability had
stood him in good stead ... he was very wealthy and verj'
avaricious, morose, exacting, and bore a fierce and discontented
expression which reflected his disposition, and the sternness of which
aroused fear . . . withal a man of great integrity, a vast ability,
keen insight and very hard-working, invariably taking the lead in
all the important commissions of the Council and in all impor-
tant internal affairs of the kingdom." ^

Colbert's plan is shown by a document in his own handwriting,
found among his papers.^ It is a " list of the royal ordinances
promulgated bj' our kings for the regulation of law, police, finances,
and military affairs of the kingdom." This list, intended for the
king, runs from the reign of Saint Louis to the year 1626 ; it con-
cludes with this r6sum6 : " It clearly appears from all these lists
that, since the time of Charlemagne, who drew up the Capitularies
which comprise the regulation of all ranks of his kingdom, and those
of his son Louis le Debonnaire, no king has labored of his own ac-
cord to put into a single code all the Ordinances of the kingdom ;
that all our great kings, Charles V, Charles VII, Louis XII, Francis
I, and Henry IV, immediately they were at peace, and even
often during war, have made Ordinances concerning justice and
other matters ; that Henry III alone had the conception of reduc-
ing the whole into a single Code, which work he intrusted to presi-
dent Brisson, who compiled the Code Henrj', never put in force ;
keeper of the seals Marillac had the same fate, with the result
that this great work has been reserved in its entirety for Louis XIV. ' '
The date of this memorandum is unknown, but it can be asserted
that as early as 1661 the industrious Pussort was already at work
on the realization of Colbert's project : " I have scratched the
surface of the work which I suggested to you on the matter of the
ordinances ; " he wrote to Colbert on 6th September, 1661, " but
I recognize that it is a work of enormous extent and entailing
delicate handling. I shall continue to work upon it when I have
nothing more pressing on hand. If you have need of me and my
work, both are at your disposal." ^ The codification of the ordi-
nances was in itself an immense work, even without comprising
in it the unification of the civil law ; so, do\\Ti to 1665, Colbert's
plan appears to have slumbered.

' *'M6moires," Ch^uel edition, vol. I, p. 325.

'"Lettres, papiers, et documents de Colbert,'* edited by M, Pierre
Client, vol. VI, App. p. 362.

»**Lettres, etc., de Colbert," vol. IV, App. p. 368.

184

TiTLB I, Ch. I] THE DRAFTING OF THE ORDINANCE OF 1670 [§ 1

The prime minister wished the new work to be a direct work
of royalty. It was a maxim of ancient law that the legislative
power resides in the king and in him alone.^ The great Ordinances
of the 1400 s and the 1500 s had doubtless often been issued after
convocations of the States-General and after Reports from the
deputies; but in a legislative sense they none the less emanated
from the king alone. The " Coutumes " had been drawn up by
delegates and representatives of the three orders, but they had
only become written laws by royal promulgation. This point was
indubitable. But in order to accomplish his legislative task the
king must surround himself with counsellors and compilers; for
the Ordinances concerning justice it seemed natural to consult
the Parlements ; and Colbert did not want to do this. We find
among his papers an autograph draft " upon a way £o put the Par-
lement in its proper sphere and to strip it for ever of the powers
by which that body has attempted to hamper the State, by wishing
to take part in its administration." ^ The minister, like his royal
master, did not wish to associate the Parlement oflBcers with the
glorious enterprise which he meditated ; he wished to ask assist-
ance only from State councillors and eminent lawyers, famous
members of the bar. " None of these great works," he said later,
" can very well be accomplished except by means of the State
councillors, and of the Masters of Requests." ^

Colbert probably communicated his project to the king in the
year 1664 or 1665, easily finding a way to make the communica-
tion as if the conception had spontaneously occurred to His Royal
Highness. He says as much in an important memorandum of 15th
May, 1665: "The plan which the king signifies that it is his
intention .to carry out for the judicature of his kingdom is the
greatest and most glorious which a king could conceive. . . . His
Majesty, recognizing perfectly the two duties of kings, the first,
the duty of protection, and the second, the duty of administering
justice to his subjects, and having already so completely accom-
plished the former ... he at the same time recognizes his de-
sire to perform the latter with the same success. . . . He has
not left it to us to say by what means that is to be accomplished,
having said in a few words all that the deepest meditation of the

^ Even as late as the 1700 s the lawyer Barbier reechoes the tradition
upon this point: '* Every king," he says, '*sinoe he possesses full power,
may change and repeal the laws of his predecessors, as the latter have
dpne with the laws and customs made before their time" ("Journal,"
vol. VII. p. 281).

* "Lettres, etc., de Colbert," vol. II, VI, p. 15. » Ibid., vol VI, p. 8.

185

§ 2] PROCEDUBE IN THE 1600 S AND 1700 S [Pabt II

ablest men living could contrive upon the subject in several
years." *

§ 2. Memorials of Members of the State Council. — Colbert
first of all advised the king to have the leading members of the
State Council submit Memorials upon existing abuses and the
remedies to be applied to them. This was one way of acquiring
useful information and at the same time finding out the most
capable of the councillors.^ These Memorials were furnished and
they are still in existence in the " Biblioth^ue Nationale." *
Colbert does not seem to have had a very high opinion of the work ;
in fact, he has left an " epitomized abstract " of these Memorials,
in which these words often recur — " nothing in general, either
in proportion to the plan or the king's greatness." Pussort's
Memorial alone is carefully analyzed.* But we need not allow
Colbert's valuation of these curious and unpublished documents to
prevent our cursorily dwelling upon them. Pussort's work is
undoubtedly far superior to the others ; it is notable not only for
the consistency of the ideas, but also for the excellent style in which
it is written, and the dignity of the sentiments which he expresses.
But the other Memorials can show us what projected reforms were
striven after; in particular, we shall see what the councillors thought
of the criminal law, and what abuses they had in view to correct.

The Memorials, taken in the aggregate, show that the councillors
understood by the reform of justice rather the reform of the magis-
tracy than that of the law. The diversity of the " Coutumes "
was no doubt complained of, and a codification of the provisions
scattered through the Ordinances was considered a useful work;
but the most essential matter was to insure the exact observance
of the laws. In this respect Pussort well expresses the general
opinion : " France is credited with the best and wisest Ordinances
in Europe, but it probably has the reputation of a worse administra-
tion of them than in any other country ; the forethought displayed
has been so accurate in every particular that Your Majesty will find
little to add to that. But it is in regard to the methods of adminis-
tration of these provisions that we require the whole weight of your

' '*Liettres, etc., de Colbert," vol. VI, pp. 5, 6.

' " It seems that the first thing that His Majesty should do is to choose
such persons as are capable of undertaking such a great work ; and that
is apparently what he has prudently resolved upon in ordering all those
of his council to give him their opinions, so as to be able to choose, with a
knowledge of the case, the number of persons whom he would select to
serve him on such a great plan" (" Lettres, etc., de Colbert," vol. VI, p. 6).

*!'Bibliothdque Nationale Manuscrits: Melanges C16rambault, Np.
613.

*!'Lettres, etc., de Colbert," vol. VI, p. 21.

186

Title I, Ch. I] THE DRAFTING OF THE ORDINANCE OF 1670 |§ 2

authority, as we have to struggle against either the nature of the
climate, or habit so old and firmly intrenched that it has almost
become a second nature." ^ The Code Michaud in particular
receives his approval as being worthy of being adopted. " I am
of opinion that we should especially adhere to the later Ordinances,
among which is that of keeper of the seals Marillac, which, it must
be acknowledged, has been drawn up with great care and in a
spirit of zeal and justice." ^ — " which, although very excellent and
judicious, has not been received with the approval due to it, and
has not been practised nearly enough in the Parlements, although
they would find it hard to state their reasons for this." ^

The councillors exhibit a genuine ardor for the reform of the
magistracy ; they, above all, reproach it with ignorance and venal-
ity, the inevitable results of the sale of offices and the svstem of
judges' fees. " All kinds of persons are appointed indiscriminately,"
says Pussort, " minors just out of college whom the law has not
considered capable of defending themselves in the least important
matters touching their interests without the intervention of a
guardian, to be the judges where the lives and property of your
subjects are at stake, and to give their opinions upon the most
important matters of the State, ignoramuses who but for the help
of their wealth would have remained among the rank and file of
the people, to decide, without any attention, questions which have
perplexed the most enlightened doctors, and to see through what
human malice and guile have most artfully disguised ; corrupt men
and those bred in the midst of the debauchery and the prostitution
of justice brought about by their ancestors or by themselves, to
discharge for your majesty the greatest and most sacred of all
the duties of his crown." * — " The greatest evil which the age has
introduced into courts of justice and which breeds and perpetuates
chicanery and litigation is that petty and sordid sale of offices which
is ever on the increase ; it is a poison which insidiously spreads
among the most elevated parties and threatens the ultimate de-
struction of the spirit of justice." ^

^ "M^anges Cl^rambault," No. 613, p. 443. Pussort explains the
causes of this disorder : '*The cause of this bad administration is primarily
the eharacteristio bent of the nation. It has a love for novelty, provided
it finds there honor and virtue as well« but it has not enough phleppoi in its
constitution to enable it to stick to its choice, being instantly earned awav
by the appearance of something else more specious'' (p. 411). We shall
often* find these ideas subsequently repeated in less happy terms.

' "Mfimoire de d'Aligre, p. 5.

» "Mtooire de la Maugrie," p. 277. < p. 406.

'"M^moire de Barillon de Morangis," p. 33; c/. "M6moire de Bou-
eherat," p. 84.

187

§2] PROCEDURE IN THE 1600 S AND 1700 S [Part II

The councillors advocate measures which are at first sight
astounding in their temerity. They demand safeguards in the
shape of assurances of the learning and character of the magis-
trates ; some of them, at least, demand the suppression of the
sale of offices and of judges' fees/ and even of the irremovability
of magistrates. In this respect, it is true, it is public senti-
ment which speaks; we are reminded of the Fronde. "It
will be necessary to modify the Ordinance of Louis XII, con-
firmed in the late evil days of his reigning majesty, providing
that appointments to judicial offices shall only take place on
death, resignation, or forfeiture. . . . But as the offices are
in the gift of the king and as he is free from venality, it is
right that they should be revocable at his pleasure." ^ Pussort,
who, for the time being, only asks for the reduction of the number
of judicial officers by one fourth or one fifth, is, on the whole, of
the same opinion. " It is the judicial offices alone, the disposal of
which the kings, having deprived themselves, first by the venality
which they have introduced, and latterly by the establishment
of the Paulette, have freed from their particular dependence, and
have deprived themselves of the only means which they possessed
of being able to reward the meritorious. ... If this means had
been in use we would not have seen the sovereign companies of
judges indiscreetly engaging in the cabals and strifes which have
disquieted this kingdom, and the leaders would not have failed to
make the counsellors remember their duty ; and if the presidents
had been blind enough to disregard their duty to their king, their
honor, and the offices they filled, they would have found all the
chief officers of their courts in action. These, possessing virtue,
courage, and ambition, would have been glad to take advantage
of such a favorable opportunity to mount by their services
into the positions for which their chiefs had proved themselves
unworthy." '

Another very bold proposal, which will come up again in the
debate upon the Ordinance of 1670, and is found in several Memo-

1 "The best expedient would be completely to do away with the sale
of offices and let the king have the absolute disposal of them, fiUini: and
vacating them in favor of those possessing the requisite qualifications"
C*M61. C16r/' No. 613, p. 625). In regard to judges' fees, see the follow-
ing pages. The foregoing is taken from a Memorial which begins at folio
609 of the volume, and whose author's name we have not discovered.
Following the title there is only the statement, "This Memorial' was
brought before Monseigneur at Saint-Germain on 19th June, 1 665. " D'Es-
tampes also proposes in very positive terms the abolition of the sale of
offices and judges* fees, p. 191 ; cf, Pussort, p. 418. Boucherat, p. 62.

5 "M^moire de d'Estampes," p. 107. » Ptisaort, pp. 428-431.

188

Title I, Ch. I] THE DRAFTING OF THE OBDINANCE OF 1670 [§ 2

rials, aims at the suppression of the seigniorial and ecclesiastical
courts. Pussort refers to " the great number of jurisdictions
existing in the kingdom, which breeds four kinds of evils, — the mul-
tiplication of jurisdictions, conflict between them, increase of litiga-
tion and annoyance to his majesty's subjects. The true remedy
for this disorder would be to unite all the seigniorial courts, secular
as well as ecclesiastical, with the royal courts, of which they are
the offspring." * — " The suppression of all the seigniorial courts
of the kingdom is due to the dignity of the king, and the establish-
ment of royal courts in those places where they may be deemed nec-
essary, for it is indecorous to royalty that the judges appointed by
indi\ddual lords, and who are in most cases peasants, incapable
of performing any duties, who dishonor the name of judge and bring
justice into contempt, should be set up as judges of the property,
the honor and the lives of the king's subjects. The right of taking
life, that is to say, high justice, the distinguishing mark of sover-
eignty, belongs to the King. ... In ancient times private indi-
viduals were never foimd in the enjoyment of this right . . . and
even to-day in all the European states it is unheard of that this
right of appointment of judges should be in any other hands than
those of the sovereign power. That is the invariable rule in
Italy, Spain, England, Venice, and elsewhere except in Germany."^
Councillor Lemaistre de Bellejame merely proposes to keep
criminal justice in the hands of the royal judges.* De SSve asks
that, if within three days after the crime, the seigniorial judges
have not informed, the royal judge should have the precedence.*
Deshameaux desires that " the officers of the middle and low courts
of justice should not be entitled to any other jurisdiction than that
of tenures, quit-rents, and other seigniorial rights."

While, however, they always have in view the reform of the
magistracy, the authors of the Memorials are of opinion that it is
also necessary to remodel and recast the Ordinances. It is desired
" to establish a fixed and uniform procedure throughout the king-
dom," * " to lay down general maxims as to the courts," ^ " to
codify all the Ordinances which his majesty desires to be kept

* p. 445. * "M^moire sans nom d'auteur," pp. 615, 616.

* This is what he says of the ecclesiastical jurisdictions : "The jurisdic-
tion of the Church is not in the best condition. The action is examined
mechanieally, judges' fees and commissions are taken, no criminal actions
are brought unless there is a party who advances the cost, impunity reigns
in it, and all this is due to the sale of the offices of official, promoter and
clerk of court II" (p. 49).

* "M^moire de S6ve," p. 485. » **M6moire de Boucherat," p. 75.
•"Mfimoire de d*Estampes," p. 117.

189

§2] PROCEDURE IN THE 1600 S AND 17008 [Part II

and observed within the kingdom/' ^ " to prescribe a uniform pro-
cedure and practice." ^ But a question which necessarily presented
itself was, how to proceed with this codification ?

It is remarkable that the States-General naturally occur to
the councillors. They do not accept the idea of a convoca-
tion of the States, but they for the most part think it their
duty to raise the point, if only to reject it. "An assembly of
the States-General of your kingdom might be suggested to
your majesty, but they contain such a large number of deputies
that the diversity of opinions would destroy their good inten-
tions. The late king of glorious memory called to his assistance
private assemblies of leading men in 1617 at Rouen, and in
1626 at Paris, composed of prelates, the chief members of your
nobility, and officers of your sovereign courts whom he selected
along with those of his council, by whose advice a new Ordinance
for the reform of justice was drawjx up . . . and the Ordinance of
1629 was issued after the assembly of leading men of 1629. . . .
Your majesty could, if he wished, form his Ordinance upon the
Memorials and opinions which your majesty has ordered us to
prepare without the great hindrance of either assemblies of States
or of leading men."^ Mesgrigny also refers to the States-General.*
Pussort himself mentions them, but only to treat them haughtily :
" It must be agreed that the reformations of the States-General,
which are the highest and noblest aims of royal foresight, are
incompatible with the turmoil of civil war and variances between
sovereign and subjects : at such times the rebels never fail to de-
mand reforms which will give color to their revolt and to take
advantage of opportunities to weaken the royal power, and kings
never fail to grant them so as to show their regard for the public
welfare as well as to disperse the clouds. But such reforms are
never enforced ; that is neither the purpose of those who asked for
them nor of the grantors, and probably one of the reasons (besides
those which I have mentioned before) why there are no regula-

» Pussort, p. 117.

''*M6moire sans nom d'auteur,*' p. 494. Oae of the Memorials (p.
646) proposes even to establish a uniform civil law, one general and sole
ooutume; but other councillors think that the "Coutumes" cannot be
changed {U Estampes, p. 117) ; and De Sbve designates them as "laws
established by the general consent of the people under the authority of
the kings, which are for the most part as old as the monarchy, and are
called * Coutumes/ among which 1 would rank what is in some provinces of
France called written law, seeing that the authority of its decisions is
not derived from the Emperors, but from the people who have voluntarily
embraced them, as Procopius has written" (p. 465).

• **M6moire de la Maugrie," p. 227. * p. 376.

190

Title I, Ch. I] THE DRAFTING OF THE ORDINANCE OF 1670 [§ 2

tions in France which have been fully put into operation is that
a careful examination shows that they have originated in the nridst
of the turbulence of civil war, and it may be said that the sound
of the cannons has drowned the protest of the laws." ^ In the
debate in the State Council, the word States-General will also
be heard, — with what effect we shall see.

The majority of the Memorials agree in giving the judicial oflScers
a share in the reform. '' This matter is most proper for discussion
by officers of the courts of justice, daily engaged in the examination
and report of actions, who, better than any others, know the abuses
and stratagems of the litigants and those who conduct them.'' ^
" It is essential to have the advice of the chief officers of the Parle-
ments. " ^ It was desirable " that the first presidents and attorneys-
general should be caused to convoke the Parlements in a body or
by deputies to consider general maxims and that Memorials be
sent to his majesty within six months at latest." * " His majesty
should have a preliminary conference with the principal officers
of his sovereign courts of Paris, who are aware of the particular
abuses which are committed there and in the bailiwicks and in-
ferior courts, upon which it is said they are even now at work." *
** It seems proper ... to advise the Parlements and other sov-
ereign companies of judges to choose from among these bodies or
their deputies not more than four or six of their leading men (a
greater number would cause confusion) to revise the Ordinances and
make a compilation of those which are not observed." • Pussort
alone, in pursuance of his fixed ideas, draws up a very precise plan
in which the magistracy plays no part. " This work," he says,
" which is of great extent, can and should be the business of
several individuals, among whom the matters can be distributed
according to their abilities and the particular knowledge which the
duties they have performed have enabled them to acquire. I am
satisfied that six men would be sufficient for the success of this
work, and that a less number would cause delay, and a greater
number lead to confusion. I think that it would be advisable
that they should give up all other occupations and even retire
to some country retreat, out of the reach of everything that could
distract their attention, so that, by applying themselves entirely
to the work, they could accomplish it with the greatest despatch
and accuracy. These six individuals should work quite separately,

* p. 422. • D'Aligre, p. 4. * Barillon Morangis, p. 31.

* D'Eslampes, p. 117. » La Maugrie, p. 277.
•p. 493; c/. Mfimoire de Mauroy," p. 355.

191

§2] PROCEDURE IN THE 1600s AND 1700s [Part II

and report to each other once a week on what they had done.
I would have this assembly headed by a man of merit, ability,
and eminence, who would supervise the work, distribute the sub-
jects, preside at the meetings, and report to your majesty on the
more important matters on which it would be necessary to take
your majesty's orders." ^ We shall see by and by what success
Pussort's plan had.

What do these Memorials show us upon criminal procedure,
the subject of our special interest? They assert in this respect
that the Ordinance of 1539 is a perfect model, and its develop-
ment is all that is required. " This Ordinance has disentangled
all the confusion which existed in the examination of criminal
proceedings, arising from the fact that formerly there was no pre-
cise rule for the examination of such actions, so that it often
happened that, for want of a valid examination, crimes remained
unpunished, or were sometimes too severely punished, or the fact
was not suflSciently proved, or the proofs were lost owing to the
length of the procedure." ^ — "Criminal justice, the usual subject
of their (the judges') neglect, must not be omitted, and for this I
see but little help, since it rests with their conscience aUme. As to
the forms, there is nothing to add to the articles of the Ordinance
of 1539 dealing with criminal proceedings, except to insist that
they be given effect." * This procedure is by no means considered
too severe; on the contrary, if there is any cause of complaint,
it is rather on account of its exceeding mildness, and some of the
harsher rules which the Ordinance of 1670 will contain, are in-
dicated in these Memorials. " Impunity for crime is the greatest
of all disorders met with in the administration of justice, and it .
springs from the favorable and lax interpretation put by the judges,
from time to time, upon the Ordinances which have been issued
on this matter." * — " The accused should not be allowed to com-
municate with any one before their interrogations, nor should they
be allowed any counsel before the confrontation of the witnesses,
provided that take place within a month or two at the latest, ac-
cording as the judges may order after the imprisonment. After
that time the accused should have counsel, without prejudice,
however, to the safety and custody of prisoners as that has always
been seen to ; unless a crime against the State is concerned, where
secrecy is important, in which case they should neither have
communication nor counsel without the order and permission of

* PuasorU p. 447. ^ Boucherat, p. 62; see also D^Esiampes, p. 118.

» De She, p. 485. * Pussort, p. 400.

192

Title I, Ch. I] THE DRAFTING OF THE ORDINANCE OF 1670 [§ 2

the judges." ^ " The criminal matters which have been handled
for some years past have shown that the Ordinances have not,
in ail respects, provided the necessar\'^ forms for the examination
of criminal actions, such as in the matter of decrees to hear right,
advice to give to the accused free or face to face, the making of
permissible distinctions. ... It appears that the persons con-
demned by contumacy are treated too favorably by the Ordi-
nance, which grants them five years within which to have them-
selves rehabilitated." ^

These documents above all reveal betrayals of trust and abuses,
such as appear at the Great Days of Clermont. Pussort speaks
" of the assistance which influential persons who have been accused
have received from officers of the long robe by the intrigues which
they have practised with them, so that it is rare to see the punish-
ment of a crime of any description, but a very common occurrence
to see those who have brought the actions ruined and annoyed
by the excessive expenses of the proceedings." He mentions
"those criminal societies aided by the authority of the magis-
trates and put, to some extent, under the protection of the laws."*
— " Nothing is so dangerous as to countenance rebellions against
justice, the sheltering of criminals in the houses of the great, to
deprive the officers of the law of the liberty of making their seizures
and executions, so that justice remains unobeyed. An usher
with his rod carries the authority of the prince." ^ The abuse of
costs and the rapacity of the judges are denounced.^ At Rouen the
proceedings are commimicated to the king's counsel only for the
purpose of giving their final conclusions ; ® at Toulouse judges'
fees are exacted for decrees rendered for contumacy " which pre-
vents alike the acquittal of the innocent and the punishment of
the guilty, against the spirit of the Ordinance, which, in order to
facilitate both, has taken especial care to burden criminal pro-
ceedings with few judges' fees." ^ In particular that serious abuse
of inquiries made by the incompetent or people of bad character
is mentioned. " I am forced to tell your majesty of a mischievous
custom which is practised in some pr&idials. ... In order to
increase practice and chicanery, they establish clerks in the cities
and market-towns of their jurisdiction, who, at a price, distribute
commissions to make inquiry into crimes and offenses, addressed
to the chief roval oflScer of court, which are entitled of the Pr6si-

^ p. 525. "Mdmoire sans nom d'auteur." ' p. 646.

' p. 400. * BariUon MorangU^ p. 30.

» Boucheral, p. 73. • Ibid., p. 83.

^ Ibid,, p. 84 ; cf. Barillon, p. 75.

193

§ 2] FBOCEDURE IN THE 1600 S AND 1700s [Part II

dial, of the lieutenant-general or of the criminal lieutenant, and
as these conamissions are delivered to all and sundry without cog-
nizance of the cause, it very often happens that the guilty infonns
against an innocent party, and carries the information to decree ;
the innocent party is arrested, which occasions many wrongs." ^
The Councillor of SSve points out a double defect in the procedure :
on the one hand, there was a tendency to follow the " extraordinary "
procedure, even for very trivial offenses ; on the other hand, even
in case of serious crimes, if no civil party appeared, the prosecution
was very often neglected.^

But by far the most defective institution was that terrible
" pr6v6tal " jurisdiction, the name of which remains with sad sig-
nificance. Some of the Memorials treat this subject with remark-
able spirit. " It would be expedient for the well-being of justice
to abolish the small marshalcies, or unite them with the large ones
existing in the cities where there are prfeidials. For the small
marshalcies work incredible ruin among a poor populace; the
provost lives in one locality, the lieutenant in a market-town, and
the assessor in still another place. As they have no archers they
commission jailbirds, and arrest poor peasants, whom they think
may have some property, under the pretence that they have
stolen or have carried firearms, and imprison them in private
jails until they have extorted money from them. I omitted to
mention that if your majesty does not abolish the petty mar-
shalcies, he should at least abolish the assessors, who cause more
mischief than the rest, because, being graduates, they are better
acquainted with the tricks of chicanery." ' D'Estampes also
declares that the provosts do not do their duty, because the archers
are not paid, and he would have the acceptance of money from
the parties expressly prohibited."* Mesgrigny and D'Estampes
both demand that the provosts should bring the proceedings
" immediately and without delay," and that they should be obliged
to announce to the accused whether they are going to try them
" pr6v6tally " or in the last resort, " at the first interrogation, so
that the accused may not be surprised and may be able to plead
his declinatory pleas and objections to the jurisdiction, which
should be decided in the accustomed manner according to the
Ordinances . . . the defenses being different when he is to be

1 D'EstampeSr p. 382. « p. 485.

' Mesgrigny, p. 283 ; d. a letter from the bishop of Tarbes to Colbert,
of 21st May» 16(54. ("Correspondance administrative sous Louis XIV,"
vol. II, p. 133.)

* p. 132.

194

Title I, Ch. I] THE DRAFTING OP THE ORDINANCE OF 1670 [§ 3

tried in the last resort from what it is when there is an
appeal." ^ Both agree in desiring to prohibit the superior
judges from taking jurisdiction of appeals from provosts, vice-
bailiffs, and vice-seneschals;^ which is at first sight astonishing
on the part of men who did not approve of this jurisdiction;
but Mesgrigny states the reason for this view. " Since the Or-
dinance of 1629, there has been a Declaration which ascribes to
provost-marshals the power to try subject to appeal, which is a
ver}' bad institution, for the provosts abuse it, and when an enemy
desires to injure a domiciled citizen, and even a titled gentleman, it
is to the provosts that he applies." ' One thing appeared to be
absolutely necessary, to fix strictly the still vague jurisdiction of
the provosts.* This the Ordinance did ; but it was necessary to
return to the matter again in the following century.

We have lingered a long time over these Memorials ; but these
unpublished documents appeared to us to possess some interest.
They contain a greater freedom of speech than will often be found
in the debate in the State Council or in the Conferences.

§ 3. Colbert's Plan ; the Council of Justice ; its Preliminary
Labors. — Colbert adopted in its entirety the plan proposed by
Pussort. In the memorandum which he prepared upon the Me-
morials he makes this statement : " Concerning the codification
of all the Ordinances, — to appoint six capable persons with a presi-
dent, who shall retire into the country to compile the Code of all
the Ordinances to be observed and put into effect throughout
the whole kingdom." * He then addresses to the king that
Memorial of 15th May, 1665, of which we have spoken above. In
that he shows clearly from the outset that an extensive codifica-
tion is proposed. " As all His Majesty's thoughts and actions are
in proportion to the magnitude of his intellect, we have been suflB-
dently impressed by the fact that in undertaking this enterprise
he does not wish to follow the example of his predecessor sovereigns
who have been contented with making some collections of Ordi-
nances, the enforcement of which they did not greatly exert them-
selves to insure. His Majesty having informed us that he wished
to bring together into a single body of Ordinances everything neces-
sary to establish the judicial practice in a fixed and certain way
and to reduce the number of judges ... it only remains for us to
explain our views according to the command which His Majesty

> D'Estampes, p. 133. * Ibid,, p. 132 ; Mesgrigny, p. 382.

• p. 383. * Barillon Morangis, p. 76.

•"Lettres, etc., de Colbert," vol. VI, p. 21.

195

§3] PROCEDURE IN THE 1600 S AND 1700s [Pabt II

has been pleased to give us, on the methods that may be practi-
cable to accomplish these great aims."

The plan which Colbert now proposes is, as has been said, that
which was followed later for the dramng up of the Codes which
govern us to-day. It is in two parts : a discussion in the State
Council of the plans prepared by the committees or sub-commit-
tees ; and, at the same time, to facilitate the labor, an extensive
inquiry opened throughout the whole country^ among the appro-
priate bodies.

First of all, " a Council of Justice " is constituted, composed of
the ablest members of the State Coimcil. " Its sitting must
be appointed to take place on a day fixed, once a week or ev^ery
three days, and at the same time the division of the subjects must
be made, namely, the examination of the whole collection of the
Ordinances to find out all the changes which will have to be made.
For this matter, which is the greatest and the most extensive of all
the work, it will be necessary to appoint four or six of the ablest
State Councillors, who will take with them the four or six ablest
advocates of the Parlement, who will together compose a separate
committee, under the leadership of the dean of the State Coun-
cillors. — It will also be necessary to keep this matter separate
from that of the distributive civil justice. — In each of these mat-
ters two State Councillors and two advocates will work; to
examine, in the assembly of the whole twelve, what shall have
been decided by the four, and immediately to submit the whole,
well digested, to the King's Council." Colbert is not contented
with sketching this wise division of labor and assigning
to each his share ; he goes on to point out the spirit in which the
work should be done. This is what he says of the criminal pro-
cedure : " To examine everything which concerns the system
of criminal justice of the kingdom, as being the most important,
to cleanse it from all chicanery, and to take care to establish sure
methods, while protecting and safeguarding the innocent, for
promptly arriving at the punishment of criminals." We shall
see how Colbert was understood.

For the inquest, of which we have spoken, it was necessary, *' at
the first sitting, to choose eight masters of requests of as high
a degree of ability and probity as may be, to go to assist in
all the Parlements of the kingdom " : they were to receive
" an ample instruction " ; and in the stated meetings they
were to collect the complaints and observations which they
would report to the Council of Justice. For the purpose of

196

Title I, Ce. I] THE DRAFTING OF THE ORDINANCE OF 1670 [§ 3

facilitating the reports, certain members of the Council must be
designated to receive the communications of such and such of the
masters of requests on their mission, " to correspond with all the
masters of requests making their circuits in the provinces; to
report to the council on all the disorders which they should find
in the matter of justice, to allow of the immediate application of
the remedies which should be found appropriate, and to submit
immediately to the special meeting of the six whatever should
concern the drawing up of the Ordinance." This was done, at
least partly ; ^ but we do not have the results of this vast inquiry.
Louis XIV no doubt refers to it when, in " his * feuillets ' for
1667," he mentions, while speaking of the drawing up of the
Ordinances, the " Memorials sent from other Parlements." ^

The Council of Justice, proposed by Colbert, met for the first
time in the Louvre, on 25th September, 1665. The great work
then began, and was to be continued without interruption until its
complete achievement. The entire history of these discussions
is not known. Although the official minutes of the Conferences
held later between the members of the Council and the delegates
from Parlement were published in good season and served as a
basis for the interpretation of the Ordinances, for a long time noth-
ing transpired as to the sittings of the State Council. An official
report of these sittings was, however, drawn up, and a manuscript
of the " Biblioth^ue Sainte-Genevieve " contains a portion of it,
entitled, " Deliberation du conseil de la reformation de la justice.''
This document, which was brought to light and used for the first
time by M. Francis Monnier,^ has been published in its entirety
h\ M. Pierre Clement in his " Lettres, m6moires, et instructions
d« Colbert.'' * It is, however, unfortunately only a fragment ;
it contains the official reports of only three sittings. On the other
hand, we possess a very interesting letter from the advocate Au-
zanet to one of his friends upon the reform of justice. This is the

^ On the last folio of No. 613 of the "Melanges Cl^rambault " we find
a note dated 2d October, 1665, containing the names of "masters of re-
quests chosen to serve in the departments," with remarks upon each of
them.

'"M^moires" (Dreyss edition), vol. II, p. 262. Colbert, moreover,
collected the documents. We find in the month of September, 1665 (the
day of the month not appearing), a note in which he requests M. de Go-
niont, an eminent lawyer, "to make a draft or plan of the course the
king may and ought to take for the reform of the justice of his kingdom.'*
"Lettres, etc., de Colbert," vol. VI, p. 12.

'"Guillaume de Lamoignon et Colbert, Essai sur la l^slation fran-
^aise au XVII® siScle," 1862. (Extracted from the report of the Academy
of Philosophical and Political Sciences.)

* Vol. V I, App. p. 369 et seq.

197

§ 3] PROCEDURE IN THE 1600 S AND 1700 S [Part II

testimony of one of the chief actors, but its extreme brevity shows
that the author did not wish altogether to tear the veil from these
mysteries.* Both these documents relate chieiBy to the drawing
up of the Ordinance of 1667 ; nevertheless, as the plan adopted
at the beginning was followed to the conclusion, it is not entirely
useless to examine them briefly.

The first sitting of the Council of Justice was held, as we have
said, on 25th September, 1665, " in His Majesty's cabinet after
mass."

Those chosen to compose the council were MM. Voisin, de
Villeroy, Colbert, Hotman, Chancellor Siguier, de Machault, de
Verthamon, Poncet, Boucherat, and Pussort. Chancellor Seguier
appeared in the great enterprise for the first time ; till then Col-
bert had conducted everything, and the Chancellor was so little
acquainted with what was proposed to be done that he made a
number of mistakes during this first sitting.^

The sitting opened with a speech by the king. He announced
that he desired the reform of justice, " which he was resolved to
prosecute assiduously, and that the Council which he had that
day assembled was not for one year or for several, but that he
intended to employ it and summon it around him as long as he
lived." The Chancellor, after having lauded the king's resolu-
tion, said that it would be proper to begin with matters concerning
the ecclesiastical state ; " he assigned these matters to the members
of the Council who sat on his left." The king appeared to be dis-
pleased ; "although matters did not turn out either according to the
plan, or to the liking of the king, His Majesty, with extraordinary
moderation, allowed the Chancellor to make this assignment;"
then, searching in the pockets of his close-coat, " he drew from
among several Memorials and papers one written by himself, which
he said he had composed while at Villers-Cotterets to explain his
intentions upon the principal points of the object of the meeting."

1 "You have frequently requested me to ac<][uaint you with the details
of everything that took place in all the meetings which have been held
for the reform of justice, but I have neither been able nor permitted to
gratify your wish, because of the secrecy which has been imposed; but
since time reveals the most private occurrences, and this matter has now
been made public, I am at liberty to gratify your curiosity and will ex-
plain the causes of this assembly and the orders which have been given
and followed on this subject." '*Lettres, etc., de Colbert," vol. VI, App.
p. 396 et seq.

' '* Colbert has the king's ear, and he has become the real chancellor,
reforming, at the same time, every department of the administration. . . .
Siguier presides over all the reform committees, but it is Colbert's inspira-
tion which governs these boards." *'Le chancelier Siguier," by M, Reni
de Kertnler, p. 379.

198

TlTLB I, Ch. I] THE DRAFTING OF THE ORDINANCE OF 1670 [§ 3

What Memorial was this ? Had the recollection of the Ordinance
of 1539 inspired the king at Villers-Cotterets, or was this merely
the report drawn up by Colbert? This much is certain, that
Louis XIV first of all proposed two of the measures pointed out by
his minister; reforms in the State Council, and the sending of
masters of requests through the provinces. Thereupon the meet-
ing tenninated.

The second sitting was held on 11th October, 1663, again at the
Louvre. MM. d'Estampes, de Morangis, and de SSve figured in
the Council for the first time ; M. Poncet had dropped out. This
time they proceeded to determine on the course to be followed.
Colbert had also prepared a speech, the original of which we have
among his papers, but which, it seems, was never delivered ; in
it he insists upon the idea that it is nothing short of a codification
that the king desires.^

Hotman, being the youngest, spoke first; he appeared to be
thoroughly conversant with Colbert's plans ; he pointed out that
it was not a matter of making really new laws, but of reforming
the old laws, emphasizing the fact that " the criminal jurisdiction
has not enough laws and regulations . . . and that is why such
a lengthy and divergent style of procedure is observable in criminal
matters, where the toleration of recent times has introduced so
much laxity that it seems absolutely necessary to provide against
this by definite regulations which shall confirm and fix firmly all
the forms." He proposes to his majesty " to divide the duties
among the individuals w^hom he has assembled " ; he also demands
a wide inquiry. " The commissioners will look for the means of
accomplishing their task in the opinions which they Avill bring back
from the provinces, namely, in criminal matters, in the opinions
of the criminal lieutenants and former king's attorneys, judges,
and assessors in the marshalcies."

M. Voisin, who was the next speaker, proposed to follow the
Code Henry and employ commissioners. M. Pussort stated that
Justinian had " in a similar project, utilized ten years' assiduous
application of twelve of the ablest and most experienced juriscon-
sults," and that consequently " he could not give a reasoned opinion
offhand." M. Boucherat said that " as the reform of the Ordi-
nances was of unlimited extent and deserving of the forethought
and application of a great king, it could not be resolved upon or
undertaken without long and arduous study ; that the kings who
preceded His Majesty had sometimes convoked the Estates,

1 "Lettres, etc., de Colbert," vol. VI, p. 14.

199

•

§ 3] PROCEDURE IN THE 1600 S AND 1700 8 [Part II

and sometimes eminent individuals who had been met by the
leading officers of the Council and of the courts of the king-
dom ; and that, while he thought that His Majesty's project de-
served much consideration, it could not be resolved upon on the
spot." ^ It is strange to hear the word States-General, which we
have already found in the Memorials. Boucherat apparently
wished that body, which more or less directly represented the
country, to have a share in the work ; this man, whom Saint-Simon
treats very cavalierly,^ here gives utterance to the most enlightened
thought. MM. de Morangis, de Seve, and Le Tellier are also
seen to share his opinion. This was bound to displease Colbert
very much, but M. de Verthamont returned to the plan of working
simply by commissioners; then the report would be made in
presence of the king so that '* the decision should be resolved and
established by the great intellect with which God had endowed
His Majesty. This he did not say from a spirit of flattery, but
from the public knowledge of all His Majesty's subjects as well as
foreigners, who were obliged to acknowledge that God had en-
dowed him with an extraordinary intellect and a genius which
raised him above other men." He did not stop there, but went on
to make comparisons, which he apparently thought very ingen-
ious, between Justinian and Louis XIV. This had the effect of
restoring the king to good humor. M. de Machault was of
opinion '* that it would be sufficient to take the lectures on the
Ordinances, and the Code Henry, or the Ordinance of M. de
Marillac, add omitted matters, strike out superfluous matter, and
in a short time put things in a state of perfect law."

Then came Colbert's turn to speak. He began by extolling
the king ; then he proceeded clearly and briefly to explain the plan
which ought to be followed, which we already know. Then every-
body rallied. The king asked the Chancellor for his opinion, and
ht spoke next. " The task of the reform of the laws was a sover-
eign prerogative; all the opinions and even the regulations of
the courts could have no force of law, the form of which must be
stamped with the character of the prince." He approved the
assignment of the matters to councillors assisted by advocates,
and suggested that the conferences to prepare what should be
submitted to the king's council should be held at his home. The
king stated that this was what he had resolved upon ; but he set

1 **Lettre8, etc., de Colbert," vol. VI, p. 374.

* "It is difficult to understand how M. de Turenne manages to execute
the duties of his office, simple as they are." *'M6moires," vol. II, p. 217.

200

Title I, Ch. I] THE DRAFTING OF THE ORDINANCE OF 1670 [§ 3

aside the idea of conferences at the Chancellor's : " in all matters
of business he had invariably wished that the matters should be
brought before him without intermediary, so that he might leam
freely and more naturally the sentiments of all who transacted
bis affairs. This he could not do if, before speaking in his pres-
ence, they should be in agreement and with uniform ideas.'* Such
sentiments from Louis XIV are not surprising. The Chancellor
then made to the king proposals for the assignment of matters ;
but "the king, rising, said that he would confer with him in private,
and that the matter deserved some discussion."

On Monday, 13th October, Colbert, by the king's command,
sent to the Chancellor the list of commissioners chosen. It was
drawn up beforehand, for it is found attached to the Memorial
of the month of May, which we have mentioned before ; and it
had undergone hardly any change. We find : "for justice (to be
5uMivided into civil, criminal, and police), MM. de Verthamont,
Colbert, Pussort, Voisin, Caumartin, Le Pelletier de La Reynie;
M. Hotman to act as secretary'. — Advocates who should act
on the said reform : MM. Auzanet, THoste, Senior, de Gomont,
fiaguenau, Bellain, and a sixth to be afterwards appointed." ^
yie useful work was about to commence ; but here we find a con-
siderable hiatus in our documents. We have only the official
'^F>ort; of a single sitting of the Council of Justice, that of Sunday,
25"th October, 1665. The discussion related to the Articles which
subsequently composed Title I of the Ordinance of 1667, upon the
<>bseirvance of the Ordinances. On this point the king and Col-
*^rt ^ere insistent. It was necessary to check the power of the
"arlements and render of no avail the right of enrolment. . La-
^oignon said of the Ordinance of 1667, "that it commences by
I'^J^a.ts against the Parlements and all the sovereign companies of
judges." An interesting debate took place in the Council of Justice ;
^t Wa.s declared that the ecclesiastical courts should, on the same
Pniioiple as the others, be subject to the laws of the State, and that
^^ "title of "Sovereign courts" as applied to the Parlements must
pe a.l>o]ished. Louis XIV intervened in his usual high-handed way.
^-■^*ie king has said that during his life protests may be made
Jitliout fear, because he knows well how to reject the useless and
*sorderly and give consideration to those which are respectful
^^ ''easonable." But all this takes us far from our subject.

Yq» ^^n the 16th of the same month of October, the king B,i>pqxQi^iit^T
i.fi_p^^lt, *greffier' of the Chamber of Justice, to work in^ Alie' capacity
^^Ja^r^^P » "Lettres, etc., de Colbert," vol. VI, p. 377.

201

§3] PROCEDURE IN THE 1600 S AND 1700 S [Part II

The conferences of the commissioners and advocates, however,
had begmi ; Auzanet's letter, above quoted, shows us their nature.
In October, 1665, probably soon after the 13th, M. de Verthamont,
who was to be president of the committee, " sent letters to the
advocates requesting them to meet at the Chancellor's." They
attended, gowned, and were received by Siguier, who apprised
them of what was wanted of them. " A few days after, the com-
missioners having met at M. de Verthamont's, the latter took his
seat at the upper end of the board or table, in the president's chair :
on his right were M. Pussort, State Councillor, also in a speaker's
chair, then MM. de Caumartin, and Le Pelletier de La Reynie,
masters of requests, and MM. THoste, de Gomont, and Foucault,
advocates ; and on his left were MM. Voisin and Hotman, mas-
ters of requests, MM. Auzanet, Ragueneau, and Bellain, advo-
cates." This is a verbal photograph of the meeting. This stic-
kling on questions of etiquette, which is shown by several passages
in Auzanet's letter, is destined later on to cause a little ill feeling
in the first conferences with the parlement officers.

At first there were two sittings every week ; then, as the king
was at Fontainebleau, only one day was fixed ; and they met at
Essonne, " so that the State Councillors and the masters of re-
quests, on one hand, and the advocates on the other, could each
come halfway." In the course of the work, M. de Verthamont
died, and the meeting place was changed to Pussort's. " M.
I'Hoste ha\nng been appointed director of hospitals, his place was
left unfilled, and the number of commissioners was thus reduced
to nine." Subsequently, Colbert came to this Council, " the
secretary of state," says Auzanet, " to whose care the king in-
trusted the order, administration, and the most important func-
tions of the State ; " he did not wish to preside and *' in spite of all
entreaties he was contented to take a second place."

The observance of the Ordinances was the first thing to occupy
the Council's attention, and the articles which were discussed at
the Council of Justice on 25th October were presented as having
been elaborated by the commissioners. As a matter of fact, they
had never touched them. " This matter did not remain long in
doubt," says Auzanet, " for at the following meeting, the king
acquainted us with his wishes on the matter and sent the eight
articles which constitute the first title of the Ordinance of 1667."
\.. As to the remainder, they proceeded in the following manner.
It woiifd appear from a passage in the official report of subsequent
conferences pubJished by Foucault in 1709, that Pussort first of

202

Title I, Ch. I] THE DRAFTING OF THE ORDINANCE OF 1670 [§ 4

all did one preliminary piece of work. " From among the com-
missioners of the Council, M. Pussort was selected to draft the
articles upon reform. That great man worked on this with much
care and exactness ; his work was inspired by that quick percep-
tion and that inviolable attachment to justice which were uni-
versally acknowledged to be the most admirable of his sublime
qualifications." Then the subjects were assigned " to each of the
lawyers to work upon by himself, for the purpose of dividing the
subjects into articles and putting the articles in order. And after
the reading of the whole title to the meeting, each article was
considered separately, lodged, and agreed upon by- a majority
vote, and although very often the' opinions had been diverse, no-
body exhibited the slightest jealousy or eagerness to impose his
opinion, but everything passed with the most laudable good feel-'
ing and good nature." * This settled, the articles were submitted
to the Council of Justice. " After we had settled the articles
among ourselves, they were submitted to the king's Council,
where, in His Majesty's presence, those which were considered
Just were authorized and the others amended or rejected." The
lawyers did not attend these discussions, for, Auzanet adds : " at
several junctures the king did our company the honor of adopting
its opinion upon matters proposed, which were dealt with directly
and had to be settled in the Council, in his majesty's presence."
§ 4. The Parlement'8 Share. — The Ordinance upon the civil
procedure was, however, completely elaborated. " After our
meetings had continued for fifteen months," says Auzanet, " it
tras found that there was sufficient matter for an initial volume,
and to warrant its execution." Nothing more appeared to be
necessary than to publish this work, when the Parlement all at
once reappears upon the scene. New conferences are about to
take place, but this time delegates from the Pa,rlement of Paris
figure alongside of the State Councillors and the masters of re-
quests. What is the meaning of this unforeseen occurrence?
Auzanet, in reporting the fact, merely says that the king " thought
fit " to have it so. Louis XIV himself explained his position upon
this point. " In regard to the general regulation of justice, of
which I have already spoken, a considerable number of articles
having been drawn up in the form which I desired, I did not wish
longer to deprive the public of the benefit which it awaited from
them ; but I did not consider it fitting either to send them to the
Parlement as they were, at the risk of some chicanery happening

^Auzanet, "Lettres, etc., de Colbert," vol. VI, p. 399.

203

§ 4] PROCEDURE IN THE 1600 S AND 1700 S [Pabt II

to them there, which would have vexed me, or to carry them out
at once myself, in case it might some day be alleged that they had
been passed upon without thorough investigation ; that is why,
taking a middle course, which would obviate both objections, I
caused all the articles to be read over at my Chancellor's, in the
presence of deputies from all the Chambers and conmiissioners of
the Council ; and, when some reasonable objection was raised in
the conference, it was immediately brought before me, to be dealt
with as I should see fit. After such discussion I finally proceeded
personally to cause the Edict to be published/' ^ These scruples
and fears are very unlike the monarch who so recently treated
the Parlement's right of protest in such a high-handed manner.
The cause of the fact has, moreover, been sought for elsewhere,
and this is what was found.

First president Lamoignon, almost at the same time as Colbert,
had been impressed with the necessity of codifying the laws.
Not being able to handle such an enterprise, his sole aim was to
settle the controverted points in the jurisdiction of the Parle-
ment of Paris. He purposed to employ on this work magistrates
and also lawyers, and among the latter the very Auzanet whom
we have seen not long ago also chosen by Colbert. Such a mark
of esteem coming from opposite quarters was the highest encomium
on this man ; and it is through him that we learn what happened.
''M. de Lamoignon, First president of the Parlement of Paris,
impatient of the conflict of opinion in his company of judges, and
aware that I had previously begun some memoranda upon a part of
these doubtful questions in order to apply the necessary remedy,
ordered me to recover these memoranda and add to them whatever
I should deem proper, which was done ; after which M. the First
president, having obtained the consent of the king to his purpose,
held three or four meetings of some twelve lawyers in his house
and took their views upon the first articles. Two deputies from
the Grand Chambre and a like number from each of the Chambers
of Inquests also met in his house on other occasions, in whose
presence, the said articles and the opinions of the lawyers having
been read, several articles were resolved upon and the remainder
left in abeyance. But the progress made was so unsatisfactory
that M. the First president came to the conclusion that he would
never achieve his purpose by this means, and discontinued the
meetings." ^ Lamoignon did not, however, entirely abandon his

* "M^moires pour 1667" (Dreyss edition), vol. II, p. 224.
« Auzanet, *'Lettres, etc., de Colbert," vol. VI, pp. 397, 398.

204

Title I, Ch. I] THE DRAFTING OP THE ORDINANCE OF 1670 [§ 4

plan; he insisted on Auzanet continuing his work, and also em-
ployed another lawyer in the Parlement, Bonaventure Fourcroi.
" This task lasted over two years, during which time two meetings
were held every week, one of these privately, attended by the
two lawyers and M. de Brillac, councillor in the Grand Chambre,
and M. Le Pelletier, president of the Inquests, to arrange the sub-
jects and formulate the articles, and the other in presence of M.
the President, to judge of and resolve upon the articles according
to his opinion. . . . Here the initial work ended, awaiting its
publication under public authority." ^ As we know, it never saw
the light of day ; all that survived of it were the ** resolutions of
president Lamoignon."

Lamoignon's enterprise, which, it must be said, had been directed
upon the most difficult part of the legislative system, the civil
law, came to nothing. The President must, however, have felt
very keenly being excluded from the great official work after hav-
ing been authorized by Louis XIV, according to Auzanet, to at-
tempt something similar. His great wisdom and loyal character
led him straight to the king ; but, with great acumen, he had the
appearance of not knowing what had taken place without his co-
operation. He proceeded to make to Louis XIV a proposal similar
to that which Colbert had made and succeeded in getting adopted ;
at least that is what we gather from his biographer, Gaillard. " Col-
bert had commissioned Pussort with a task for the reform of justice.
His design was not to acquaint any one with the Ordinance, and to
publish it by the sovereign authority alone, enacting it in a
*bed of justice.' M. de Lamoignon, apprized of this design, ap-
proached Louis XIV, and proposed to him, as a way of making
his reign illustrious, this idea of reforming justice, after the finances.
The king said to him, * M. Colbert is even now employing M. Pus-
sort on this task ; see M. Colbert on the subject and act in concert
with him.' " ^ Astonished at the confidence which the king had
placed in the First president, Colbert saw his plans go awry.
"Then began conferences, of which the official report has been
published, the modification of a number of articles showing how
necessary these conferences were." ^ Is this strange statement
quite in accordance with the truth ? Lamoignon's stratagem and
Louis XIV's reply may be doubted, but one thing appears to be
certain, that the First president did go to see the king, and the

' This took place before 1665.

*'*Vie du prudent de Lamoignon/' quoted by Af. Pierre Climent.
"Lettree. etc., de Colbert," vol. Vl, p. 14.
nbid,

205

§ 4] PROCEDURE IN THE 1600s AND 1700s [Part II

latter, probably remembering the encouragement which he had
previously given to the head of the Parlement of Paris, ordered the
new conferences ; it is highly probable that Louis XIV was, at
the same time, very glad in this way to avoid any obstacle to the
enactment.

However that may be, " on 24th January, 1667, the king sent
a message on the subject to the Pariement, and especially to the
First president and the attorney-general, conmianding the First
president and the other presidents of the Parlement, four coun-
cillors of the Grand Chambre, and five former presidents of the
Chambers of Inquests with the oldest members of these chambers,
the former president of Requests of the court of justice and the oldest
member of the first chamber and the lawyers and attorneys-general
to meet continuously at the Chancellor's to confer with him and
the commissioners of the Council by whose advice the articles had
been drawn up." This much is shown by the official report of the
conferences, but it was not the Chancellor who had been the means
of bringing about this decision ; it is even almost certain that he
was not informed of it until everything was in readiness. The
letter sent to him by Secretary of State Gu§n6gaud is in the fol-
lowing terms : " My lord, I have, by order of the king, written to
the Parlement of Paris, informing it that His Majesty, considering
it inexpedient to publish the articles of the Ordinances which he has
caused to be codified for the reform of justice until they have first of
all been seen and considered bv vou and anv members of the Coun-
cil and by several of the chief officers of the Parlement appointed
by His 'Majesty, the First president should hold meetings at your
house immediately and as often as possible, so that they may give
His Majesty their opinion upon the whole, of which I think your
lordship should be notified, so that you may know what is being
done in this matter." ^ The conferences began on Tuesday, the
26th January, at the Siguier mansion. Fifteen sitttings were held
to begin with, the last of which took place on 17th March, 1667.
There were nine commissioners of the Council, including the Chan-
cellor, twenty-nine deputies of the Parlement, including the First
president, the attorney-general and two solicitors-general.^ M.
Joseph Foucault was the clerk of the assembly. A weighty and
dignified discussion ensued in which especially shone Pussort in
the defense of the articles as his own work, and the First president.
After the termination of the discussion, the various articles, the

* Letter quoted by M, de Kerviler, ** Le pr^ident Siguier," pp. 385-386.
- " Proc^- verbal de rOrdonnance de 1667," p. 4.

206

Title I, Ch. I] the DRAFTING OP THE ORDINANCE OP 1670 [§ 5

modification of which had been demanded, were submitted anew
to the King's Comicil, which made its final decision. We learn from
Auzanet how the finishing touches were ultimately given to the
ci\il Ordinance. " Seeing that the articles which had been compiled
by different persons were found to be couched in different styles,
the king appointed MM. Morangis, Pussort, and Boucherat, State
councillors, and M. Hotman, master of requests, and myself, the
only practitioner, to put the Ordinance in shape, by reducing it to a
uniform style and arranging the titles in their proper order. This
occupied seven whole weeks, five and sometimes six sittings being
held each week ; and finally, in April, 1667, the first Ordinance was
drawn up in the form in which it appears to-day, brought before
the Parlement of Paris and published in the presence of the king
sitting in his Parlement on the 20th of the same month." ^

§ 5. IMflCussion of the Ordinance ; Lamoignon and Pussort. —
Although our narrative is the story of the drafting of the civil
Ordmance, it is also that of the drafting of the criminal Ordinance.
Both were parts of the same task. The organism which produced
the former produced the latter and by the same work. Here the
details of the preparation of the articles by the commissioners
and of the debates in the Council of Justice are much less numerous.
Auzanet, at the end of that letter of December 1st, 1669, the whole
of which we shall very soon have quoted piece by piece, states
that the elaboration of the criminal Ordinance began in May, 1667,
and had not ended at the time when he wrote. " In the month of
May, 1667, the same commissioners, reduced in number to nine,
have continued, as they still continue daily, to labor on the said
matters in the manner aforesaid, to make and compile other Ordi-
nances when his majesty shall deem fitting.'* This preliminary
work was not completed until the middle of the year 1670. New
conferences with the deputies of the Parlement then began. The
official report shows that they were really a continuation of the
conferences of 1667 : " On 6th June, 1670, the king's commissioners
and the deputies of the Parlement met at the Chancellor's house,
at 3 P.M. and held their sitting in the lower gallery in the same
order and arrangement they had followed since the conference of
the year 1667." The composition of the assembly differed some-
what from that of 1667 ; it was as follows : I. Commissioners of
the council: Chancellor Siguier, MM. d'Aligre, de Morangis,
d'Estampes, de S6ve, Poncet, Boucherat, Pussort, Voisin, Hotman.
II. Deputies of the Parlement: the First president, presidents

1 "Lettres, etc., de Colbert," vol. VI, p. 400.

207

§ 5] PROCEDURE IN THE 1600 S AND 1700 S [Part II

Maisons, Novion, Mesmes, Le Coigneux, de Bailleul, Mole de
Champlastreux, de Nesmond. III. Councillors of the Grand
Chambre : MM. de Catinat, du Brillat, Fayet, de Refuges, Paris,
Royault. IV. Deputies of Inquests: MM. Potier de Blanc-
Mesnil, de Bermond, de Bragelone, Maudet, de Fourcy, Faure,
Le Pelletier, Le Vasseur, Maupeou, Malo. V. Deputies of Re-
quests of the Court of Justice: MM. Chatron and Leboult.
VI. MM. de Harlay, procurator-general ; Talon and Bignon, first
and second attorneys-general.

There were only seven conferences, the last of which was held
on Monday, July 8th, 1670. After a revision in the Council of
Justice, the Criminal Ordinance was "issued at Saint-Germain-en-
Laye in the month of August, 1670, then registered at Paris in
Parlement, 26th August, 1670." The ofiicial report of these con-
ferences, like that of the conferences of 1667, was published soon
after. At first a number of manuscript copies were put in circula-
tion, and two printed editions of it appeared during the 1600 s. But
in 1709 a new quasi-ofiicial edition of it was published " by the
associates chosen by His Majesty for the printing of his new Ordi-
nances." The heading " by authority of the king " shows that
this publication was made by Foucault, State councillor, and of
the Privy Council, and that he reproduced a manuscript which had
been delivered to him by " his father, Foucault, Secretary of State
and Director of the Finances." The latter was the secretary of
the conferences of 1667 and probably also of those of 1670.^

We possess sufficient information to enable us without difficulty
to sununarize the discussion. Three men, two in particular, take
part in the first draft ; these are Pussort, president Lamoignon, and
attorney-general Talon. Pussort and Lamoignon, who have
already fallen foul of each other in 1667, are this time true adver-
saries, maintaining at the same time the most unassailable dignity :
there is no article on which they do not speak. Pussort repre-
sented the spirit in which the new law had been drawn up, accord-
ing to Colbert's views. Their chief desire had been to disencumber
the procedure of the complexities and quibbling which clogged
it, to strip it of all parasitical growths, to lessen its length and its
cost. It was also desired to have a strong and certain instrument
of repression, without interfering too much with the rights of the
defense.

Lamoignon showed himself in a double aspect. High-spirited
and noble-hearted, he protested against the severities of this terrible

* This is the edition which we invariably cite.

208

TiTLB I, Ch. I] THE DRAFTING OF THE ORDINANCE OF 1670 [§ 5

procedure ; he alone in this assemblage spoke in the name of hu-
manity, as the following age accepted it ; and in this respect he far
outdistanced his contemporaries. He protested against the com-
pulsory oath of accused persons, against the provision refusing them
the assistance of counsel, and against the article punishing as for
perjury the witness who contradicts himself at the confrontation.
Finally, although he inveighed less vigorously against torture, it
is none the less a great distinction for a magistrate of the 1600 s to
have said " that he saw strong reasons for its abolition, but that
was only his own private opinion." ^

Lamoignon had, on the other hand, professional loyalty and
respect for tradition in the highest degree ; and this conservative
leaning led him to oppose a certain number of articles which
nevertheless realized an advance. This caused him to defend the
seigniorial jurisdictions, the suppression of which was threatened by
one provision. These were, however, most frequently particular
courts; but to abolish them would have meant "despoiling the
lords of the principal part of their property, without which their
lands would have lost all their value, it being certain that the nobil-
ity had nothing but the preservation of their jurisdictions at heart,
ance there is nothing which distinguishes them in a greater degree
from the rest of the king's subjects." ^ He protested against the
necessity imposed of interrogating the accused within twenty-four
hours of his arrest,^ and against the admirable provision that the
judgments in the first instance shall be rendered by three judges
at least and those of the last resort by at least seven.^ Here
is apparent the magistrate whose chief anxiety is promptness
of service. The articles reducing the rights and emoluments of
the judicial ofiicers above all aroused protests from the First presi-
dent ; he spoke in favor of the clerks of court,^ the king's procura-
tors,* even of the jailers.^ Here, as in the case of the seigniorial
judges, he defended the rights of property. " These are offices
which they have dearly bought, and which comprise the greatest
part of their property."

Talon spoke often and very authoritatively; but his remarks
were much les§ trenchant. Sometimes he supported Pussort and
sometimes the First president; he showed all the characteristics
appropriate to magistrates of the public ministry. Although he
was a magistrate, he was at the same time " the king's man."
The other magistrates and coimcillors, including even the Chan-

' "Procfe-verbal," p. 222. * Ibid., p. 15. » Ibid., p. 151.

■* Ibid., p. 246. * Ibid., p. 82. • Ibid., p. 108. ' Ibid., p. 135.

209

§ 5] PROCEDURE IN THE 1600 S AND 1700 8 [Part II

cellor, played an unimportant part. Of these, MM. Boucherat
and de Novion spoke most frequently, usually on matters of
detail. If we are to believe Saint-Simon, de Novion was certainly
a man capable of grasping details : ** He was neither unjust nor dis-
honest like his grandfather the other First president de Novion ; but
he knew nothing of his profession except the petty technicalities,
in which he was as proficient as the ablest attorney ; outside of that
obscure science he could not be depended upon.'* ^ The. neutral
r61e of MM. de Harlay and Bignon is matter for surprise. They
were really men of great merit. Saint-Simon also speaks of them.
'' Descendant of these great magistrates, Harlay had all their
weight, which he exaggerated to the point of cynicism, affecting
indifference and modesty. ... He was learned in pubUc law,
and well grounded in the various systems of jurisprudence; he
ranked with the most conversant in Belles-Lettres, and was
well read in history." ^ — " Bignon was a magistrate of the old
school in respect of knowledge, integrity, and modesty; worthy
of the name he bore, so well known in the legal profession and in
the republic of letters, and he had, like his father, enjoyed a wade
reputation as attorney-general." ^

After having been discussed in these conferences, the articles, as
we know, again passed through the hands of the Council of Justice.
Sometimes the comments which had been made in the name
of the Parlement were taken into consideration, but more fre-
quently they were ignored. It b to prove a matter of subsequent
regret that President Lamoignon's advice was not listened to with
more respect.

i**M6moires," vol. XIV, p. 216.

« Ibid., vol. I, p. 136. » Ibid., vol. I, p. 392.

210

Title I, Ch. II] ORDINANCE OF 1670 [§ 2

Chapter II
THE PROCEDURE UNDER THE ORDINANCE OF 1670

§ 1. Introductory.

{ 2. Jurisdictional Rules.

§ 3. The Procedure.

§ 4. Reserved Justice, and Letters
from the King.

§ 1. Introductory. — We have no intention of making a commen-
taty on the Ordinance of 1670 ; but it is essential briefly to indicate
the novel features which it introduced and for that purpose to
take a bird's-eye view, as it were, of its chief provisions. As it
contains both jurisdictional rules and rules of criminal procedure
properly so called, we must adopt that division of the subject.^

§2. Jurifldictional Rules. — From the 1200 s a continuous
movement took place, as we have seen, impoverishing and despoil-
ing the seigniorial and ecclesiastical jurisdictions for the benefit of
the royal jurisdictions. In order to arrive at this result the jurists
had gradually changed the old rules of jurisdiction ; apart from the
appeal, their principal inventions had been the jurisdiction of the
court of the place of the offense, the theory of precedence, and the
theory of royal causes. Let us see what form these had taken in
the new law, now that royalty was irrevocably victorious.

I. The jurisdiction of the court of the place of the offense was
finally triumphant. It was even the only competent court (Tit» I,
Art. 1) ; the court of the accused's domicile and that of the place
of capture were discarded. President Lamoignon, in the debate,
protested against this provision, showing the difficulties which
would result from it in practice, but the article was retained.
Pussort said, " It was of importance that the court should be
ascertainable with certainty."^ This jurisdiction was not, how-
ever, exclusive of all others. If the complainant had brought the

^ We shall cite the principal Commentators of the Ordinance according
to the following editions : Bornier, "Conference des nouvelles Ordonnances
de Louis XIV, 17C8 edition. — Jousse, "Commentaire sur TOrdonnance
criminelle," 1766. — Muyartde Vouqlans, "Institutes du droit criminel,"
1757 edition; "Instruction criminelle," 1762. — RotLsaeau de La Combe,
"Traits des mati^res criminelles/' 1769 edition. — SerpUlon, "Code
criminel,'' 1767 edition. — Pothier, !* Procedure criminelle," Bugnet edi-
tion.

*:'Proc6s-verbal," pp. 4-6.

211

§2] PBOCEDURE IN THE 1600 S AND 1700s [Part II

matter before another judge, and the accused did not demand
its transference before the reading of the first deposition, at the
time of the confrontation, the action went on.

II. Article 11 of Title I enumerated the royal causes as-
signed to the bailiffs, seneschals, and presidial judges, " exclu-
sively to our other judges and those of the lords." We know that
all the Ordinances up to that time had made a similar enumeration,
having invariably finished it with the words "and all others apper-
taining to the royal right." This clause was omitted for the first
time. It was no doubt considered useless to retain this weapon,
now that the strife was at an end. Lamoignon urged the replace-
ment of these words in a long speech ; this is a proof of that con-
servative spirit which we have remarked in the First president.
Pussort repUed that the king's intention had not been to extend
his power, he being sole master, but to decide all disputes ; " The
edict of Crfemieu specified five or six royal causes and added *and
others,' but that is a matter of form." Lamoignon, here more
royalist than the king's men, returned to the charge and won his
case ; the list ended with the words : " and other causes explained
by our Ordinances and regulations."

III. As to the precedence of the royal judges over those of the
seigniors in the matter of jurisdiction, the plan contained an Article
which completely ruined the seigniorial courts. " Our judges," it
said, " shall take precedence of the inferior and non-royal judges in
their jurisdiction if they have made inquiry and ' decreed ' the same
day ; " the seigniorial courts have in future only those causes which
have escaped the vigilance of the royal officers, or which the latter
disdained. The First president here still constituted himself the
energetic defender of the past ; it was, according to him, a question
of absolute justice and propriety. Pussort supported the plan;
he pointed out that the greater part of the seigniorial judges were
" incapable," that the administration of justice was burdensome
on the seigniors themselves ; he finally vehemently claims the rights
of royalty. "The real property of (criminal) justice, which is
called ' jus gladii,' is a right of taking life over the king's subjects,
lying, properly speaking, in the hands of His Majesty, who com-
municates it to his officers." ^ But royalty had not the temerity
to abolish the seigniorial judges completely. Two modifications
were introduced into the Article : precedence was given only to the
bailiffs and seneschals, and not to all the royal judges ; a term was
fixed for the lord's judges, before the arrival of which precedence

1 " Proc^s-verbal," pp. 15-17.
212

Title I, Ch. II] ORDINANCE OF 1670 [§ 2

could not intervene.* Pussort had admitted the first compromise
and rejected the second ; both figure in the final working of the
article.

As between the royal judges themselves, the provosts might
have precedence taken of them by the bailiffs " three days after
the crime was committed " ; ^ the traditionary provision was also
adopted according to which the provosts took no jurisdiction of
the crimes of the nobility.'

IV. The Ordinance dealt with the appeal at length in Title
XX\T; but upon this point Royalty had won such a decisive
victory- over the seigniors that it did not deem it necessary to regis-
ter it formally. The appellate judges were always royal judges ;
in the second instance the courts of the seigniors never intervened.
" It is only the criminal lieutenants of the bailiwicks and royal
seneschals who have the right of criminal jurisdiction. This is
decided by Article 22 of the edict of Cr6mieu, and still more clearly
by the Article of the Ordinance which speaks only of bailiffs and
royal seneschals ; with the result that the judges of the lords who
have appellate jurisdiction in ci\41 cases of some other judges,
have not the same right in criminal proceedings." *

V. The ecclesiastical jurisdiction had gradually lost ground,
thanks to the theory of the ordinary misdemeanor and of the privi-
leged case. The ordinary' misdemeanor could be retained by the
secular judge, as long as it was not required to be transferred ;
and in that case only the bailiffs and royal seneschals had juris-
diction, to the exclusion of the seigniorial judges.^ The secular
judge was not divested of the privileged cause. It was settled by the
Ordinance of Moulins that the secular judge should hold the eccle-
siastical accused until the action had been brought against him and
concluded ; only, he must thereafter hand him over to the ecclesias-
tical judge so that the latter might try the common misdemeanor
covered by the privileged cause.* This successive intervention
gave rise to much trouble. An endeavor was made to unite both
actions in one ; this was settled by the edict of Melun of 1580 in
Article 22. " The examination of actions against ecclesiastical per-

' This is a delay of 24 hours, Tit. I, Art. 9. * Tit. I, Art. 7.

• Tit. I, Art. 10. * Scrpillon, "Code criminelle," p. 1139.

• Muyart de Vouglans, "Inst, crim." Part III, pp. 50, 51.

• **We ordain that our officers shall examine and judge in all cases the
privileged offenses among ecclesiastical persons, before relinquishing them to
the ecclesiastical judge, which relinquishment shall be made on condition
of their being imprisoned for the punishment of the privileged offense,
where it shall not have been satisfied, for which the Bishop's officers shall
answer in case of release.'*

213

§ 2] PROCEDURE IN THE 1600 S AND 1700 S [Part II

sons in privileged causes shall be made conjointly by ecclesiastical
and royal judges ; and in that case the said royal judges shall
go to the bench of the ecclesiastical jurisdiction." But the only
result of this joint examination, prolific of jarring and conflicts,
was to effect a compromise between the rights of royalty and the
old immunities of the Church. Now that royalty was passing a
new law, would it remove this difficulty ? This it tried to do, and
the first draft contained two articles which retained the ecclesiasti-
cal judges' jurisdiction only for purely ecclesiastical offenses.
This was very reasonable and was what the States-General had
asked several times ; but it was not allowed to pass, royalty yield-
ing to the Church as it had yielded to the seigniors. In this case
also it is Lamoignon who appears in defense of the past. " He
was obliged to represent to the king that both articles intrenched
on clerical privilege to a great extent and seemed almost to destroy
it. . . . This clerical privilege, however, is universally recognized
wherever there are catholics, and it might be said that this general
custom is an adjunct of the altar." ^ And he reviewed the history
of the Church's immunities, calling to mind that this privilege " had
the sanction of possession during fourteen hundred years " ; he
begged " His Majesty to make the reflections he might find neces-
sary." Pussort then rose in favor of the reestablishment of the
rights of the civil authority. " The king's intention is not to re-
strict the ecclesiastical jurisdiction, but to regulate it. . . . The
discipline of the spirituality is left absolutely to the ecclesiastical
judges. . . . The article, it is true, is contrary to the practice,
but it is in conformity with reason ; ... it is not decent that a royal
magistrate should act as the assessor of another judge . . . there-
fore the article is just." ^ It could not have been better put, but
Pussort invoked reason, an authority whose reign would not arrive
till a century later, and he had the opposition of all-powerful tradi-
tion. Talon came to the rescue of the First president. Being a
" king's man," he began by doing homage to royalty. " It is
true," he said, " that this privilege is a favor which monarchs have
granted to the clergy, actuated by pious motives and by the respect
which they have for the sacredness of their ministry ... so it is
indubitable that it is in the prince's power to revoke or restrict
a privilege granted by his predecessors ; " but he moved for the
maintenance of the immunity ; " it is sufficient if this privilege is
placed within limits ; in this way the bad effect which it had at
some junctures would be rectified, and the complaints which the

1 "ProcSs-verbal," pp. 44, 45. « IHd,, pp. 46, 47.

214

Title I, Ch. II] ORDINANCE OF 1670 [§ 2

bishops and all the clergy in the kingdom and even the Pope hun-
self would not fail to make if a single feature of a privilege based
up>on the constitutions of the Roman emperors, renewed by Charle-
magne and affirmed by fourteen hundred years' possession were
withdrawn, would be avoided.^ " This formidable opposition,
as Talon points out, gave the king, who, in the Council of Justice,
had seemed to rely very much on these articles, matter for reflec-
tion. They were suppressed and replaced by a text which main-
tained the status quo: " Art. 13. Nothing in the preceding article
diall derogate from the privileges which the clergy have been
accustomed to enjoy." As, however, the Ordinance did not regu-
late the joint procedure, it was necessary to make a kind of separate
Code for this purpose. This was the object of several Laws ; first
of all the Edict of February, 1678, expanded the principles con-
tained in the Edict of Melun, incorporating in it but one restric-
tion by way of sparing the feelings of the Parlements; then
came a Declaration in July, 1684, the general Edict of 1695 upon
the ecclesiastical jurisdiction, and finally a Declaration of February
4, 1711.2

VI. The Ordinance did not deal with the jurisdictions of the
cities, mayors, fchevins, consuls, etc., and did not modify their
rights in any respect. Everywhere they had mere police matters ;
that was what the States-Greneral had asked for them at Orl6ans,^
and it was granted to them by the Ordinance of Moulins, Arts. 71
and 72. Those authorities, however, which took the cognizance
of civil actions from the municipal jurisdictions, left to them that
of criminal actions, with which they were already invested. But
the majority of the cities, taking them individually, lost the high
justice. Royalty, however, did not invariably succeed in these
usurpations, and we possess a curious document of the very time
of Louis XIV, which gives us a view of one of these little dramas.
Tliis is a letter from Colbert to Talon, dealing with a question of
the suppression of the aldermanic courts in operation in Hainault.
" It appears from what we hear from these frontier districts that
nothing makes a worse impression upon the minds than the sup-
pression of their aldermanic courts and the establishment which
has been made of benches in the method in vogue throughout the
kingdom, because they are informed that the majority of the officers
only buy their offices to more easily make exactions from them." *

» "Proc^verbal," pp. 47, 48.

• Muyart de Vouglana,** Instr, crim." Part III, p. 70 et seq,

* Picot, "Histoire des Etats-G^n^raux," vol. II, p. 216 et seq.
*"Lettre8, etc., de Colbert," vol. VI, p. 2.

215

§ 2] PROCEDURE IN THE 1600 S AND 1700 S [Pabt II

Colbert, therefore, comes to the conclusion that the offices must
be redeemed and the old order of things reestablished. Here the
old communal spirit of the people of Flanders was encountered ;
and in a certain number of cities of the south the same opposition
was met. The result was that in a great number of cases, if not as
a general rule, " the cities have retained a right of trial in criminal
matters down to the time of the Revolution. Strange to" say,
royalty had taken from them the civil jurisdiction and left them the
criminal jurisdiction.'* ^

The jurisdiction of the royal judges was thus settled in opposition
to the other jurisdictions. But we have seen that a certain num-
ber of courts of exception figure among the royal courts. The Or-
dinance merely left the majority of these to the existing laws, but
it selected for special treatment the most important of these juris-
dictions, that of the provost marshals.

We know how the " pr6v6tal " jurisdiction, originally purely
military, had gradually extended its sway; it was a formidable
weapon in the hands of royalty, with which to put down the disor-
ders which disturbed the public safety, but it was a terrible tribunal.
These " men of arms " tried summarily, harshly, and there was no
appeal. It was considered good enough for those amenable to their
jurisdiction, whom Imbert calls "the provost marshal's jail-birds ;
these were in former times the vagabonds and especially *the
armed men roaming over the country and eating honest men's
poultry.' " - The States-General, however, had often complained
of the disorders which this jurisdiction brought in its train.' The
new Ordinance ought at least to regulate it in a precise way ; this
was the object of a part of Title I and of the whole of Title II.
Article 13 of Title I really extended the jurisdiction of the provosts,
and it did not pass without opposition.^ President Lamoignon
declared " that it might be affirmed that the greatest abuses met
with in criminal justice have originated with these officers . . .
who oppress the innocent and discharge the guilty. The majority
of them are more to be feared than the thieves themselves." This
constituted such a great evil that the defenders of the institution

' Laboulaye, Revue des cours litt^raires, year 1865, p. 723.

* Imbert, Book II, ch. V, No. 4.

» PicoL, op. ciL, I, 447; II, 135, 172-175, 529, 530; IV. 63-65.

* Besides the offenses committed by vagrants and excesses by the sol-
diery, it was the duty of the provosts to try '* unlawful assemblies and thefts
upon the highways, nocturnal thefts in the towns, sacrileges accompanied
by breaking in, premeditated murder, sedition, popular tumults, and
coinage of false money, whatever the station of the perpetrators might
be."

216

Title I, Ch. II] ORDINANCE OP 1670 [§ 2

themselves are compelled to acknowledge it. "The provost
marshals," says Pussort, " being men of no uprightness of life,
their bad conduct has brought them into very great disrepute."
Talon for hb part says that " as neither the officers nor their archers
have any fees to live on, there are no malversations to which they
have not given themselves up ; they perform no duty unless they
hope to get some emolument from it." Finally, president de
Novion adds " that this was not for the purpose of establishing tjie
public safety but of extending the power of the provost mar-
shals." ^ Royalty, however, desired the preservation of this
jurisdiction, and the discussion was restricted to matters of detail ;
the list of " prgvdtal " cases which the draft contained was passed
with very few exceptions.

While maintaining the " pr6v6tal " jurisdiction, the safeguards
which had been contrived by judicial decisions to regulate and curb
it were also retained and increased. First, The provosts must
necessarily have their jurisdiction passed upon by the presidial in
the jurisdiction in which the capture took place " within three
days at latest, although the accused has put in no declinatory
plea." * Second, Within twenty-four hours of the capture, the
accused must be interrogated by the provost in the presence of
the provost's assessor, who was a graduate in law; and it was neces-
sary to declare to the accused at this first interrogatory that it
was intended to try him " pr6v6tally." Third, The jurisdictional
judgments could not be rendered by less than seven judges, like all
the other " pr6v6tal " decrees, whether preliminary, interlocutory,
or final.^ Fourth, When crimes, "prevotal" by their nature and
not by the character of the person, were concerned, the provosts
had no cognizance of them if they had been committed in the cities
where the provosts resided. This provision was an indication of
the true character of the institution. The provosts, " road watch-
men," had been created to beat the country in increasing circuits ;
the old Ordinances were very strict in that respect. " Going up
and down the country, they will not stop in one place more than a
day, unless for necessary cause (Orl&ins, 68; Moulins, Art. 43)."
To call upon the provosts to try the crimes committed within the
towns of their residence would have been to invite them to reside
there continuously. Fifth, Minute precautions were taken to
avoid disorders and malversations;* in particular an inventory
must be made of everything found upon the captive, and that had

Procfe-verbal," p,2Set seq. * Tit. II, Art. 13 ; see also Arts. 19, 20.
» Tit. II, Arts. 18, 24. * See Tit. II, Arts. 10, 14.

217

§ 3] PBOCEDUBE IN THE 1600 8 AND 1700 S [Part II

to be done " in the presence of the two inhabitants nearest to the
place of capture, who shall sign the inventory." * Sixth, The right
of precedence over the marshals was given, or rather confirmed, to
the presidials. In " pr6v6tal " cases the tla^tter had jurisdiction
" preferably to the provost marshals, criminal lieutenants of the
short robe, vice-bailiffs, and vice-seneschals, if they had issued de-
cree either before the latter or the same day ; " in order to give final
judgment they had to observe all the rules we have just laid down.
The ordinary' judges, in a " prfevfital " case, could only inquire and
decree in case of capture in the act, and were obliged to refer the
case to whom it might concern.

The Ordinance of 1670 was not destined to be the last word of the
old law upon this matter : in 1731 (5th February), a royal Dec-
laration was issued upon " pr6v6tal " and presidial cases. It
contained thirty articles and was much better drawn up than the
corresponding titles of the Ordinance. It for the first time clearly
distinguished the cases which were " prevdtal " by the character
of the persons from those " pr6v6tal " by the nature of the crimes.
It was also more lenient than the old law on several points.*
Gentlemen not previously condemned were excepted from the
" pr6v6tal " or presidial jurisdiction in the last resort. If we have
dwelt at some length upon the " pr6v6tal " jurisdiction, it is not
merely because of the important place which it occupies in the
Ordinance and in the ancient French social life ; but also because
we shall see it reappear at the conunencement of the 1800 s, soon
after to disappear for ever.

We may note, in concluding this explanation of the principles of
jurisdiction, that the clergy, gentlemen, king's secretaries, and offi-
cers of judicature had the right to be tried in the " Great Chamber
of the Parlement and not in the criminal Toumelle ... on
appeal only, and provided they petitioned for a reference (to the
Great Chamber) before the voting began in the Tournelle." '

§ 3. The Procedure. — The Ordinance left the procedure to
rest upon the rules established by the prior judicial practice. In
future, and more than ever, it can be truly said that there is but
one true accuser, the king's procurator or that of the seignior:
the private prosecutor could only ask for damages. The last
traces of the old accusatory system had not, however, yet disap-
peared. For offenses which did not merit corporal punishment,
the intervention of a settlement between the injured and the
guilty parties suspended and even put an end to the public action

1 Tit. II, Arts. 9, 11. « See Arts. 17 and 20. » Tit. I, Arts. 21, 22.

218

Title I, Ch. II] OBDINANCE OF 1670 [§ 3

also.^ Title III speaks of accusers at the same time as it speaks of
denouncers;^ and the law always places private individuals in
the first rank in the prosecution of crimes ; " If there is no civil
party, the actions shall be prosecuted at the instance and in the
name of our attorneysor of the attorneys of the seigniorial courts." ^
The public prosecutor would seem not to make his appearance
except following and in the absence of complainants ; but this is
only an empty appearance ; or rather whatever reality there is
in this presentation of the matter is from a fiscal point of view ;
if there is a civil party, it is he who bears the cost of the action ;
if not, it is the king or the seigniorial judge.^ In other respects
the theory of the civil action in the shape in which it has come
down to us was finally settled in its broad details ; it is in anno-
tating the title on Complaints that our old authors have made that
subtle and deep study which may still serve as a model for us
to-day.

I. The Ordinance clearly distinguishes denunciations from
complaints. The denouncers address themselves to the king's
procurator; they write and sign their denunciation, or the clerk
of court writes it out in their presence ; subsequently, if the ac-
cused is acquitted, they can be sentenced as calumnious or im-
prudent ; but they do not figure in the action. The act makes an
innovation in regard to complaints. They can be made by re-
quest addressed to the judge, who shall answer them (Art. 1).
This is the old request for permission to inform. Or again, they
may be written by the clerk of court in the judge's presence ; but
they must always be addressed to the judge. Faithful to the
spirit of reform in which it was conceived, the Ordinance rejects
in this matter sheriffs, officers of the court, archers, and
notaries. But here is something which possesses novelty and im-
portance. Down to that time every complaint, being the request
for a permission to inform, by the very fact of its being made, con-
stituted the complainant a civil party, imposing on him the heavy
burden of costs. Private individuals were, therefore, naturally
reluctant to ask the judge to take cognizance; they remained
inactive or constituted themselves denouncers to the king's proc-
urator, who did not always act. The Ordinance declares that
" the complainants shall not be deemed civil parties unless they
so declare formally by the complamt." ^ It does more ; formerly

» Tit. XXV, Art. 19.

* Tit. III. "Des plaintes, d^nonciations, et aoousations."

» Tit. Ill, Art. 8. * Tit. XXV, Arts. 16, 17. » Tit. Ill, Art. 5.

219

§ 3] PROCEDURE IN THE 1600 S AND 1700 S [Part II

one did not become a civil party except by a complaint ; his in-
tervention in the course of the action was not thought of. Hence-
forth it could be accomplished in a " subsequent document which
could be drawn up at any stage of the action." Finally, as a
last favor, the civil party was allowed to abandon " within twenty-
four hours and not afterwards " ; and in case of abandonment he
was not held liable for costs subsequently accruing. These were
innovations enough for one single article. They were excellent,
and so president Lamoignon said. " The article," he said, " is
new, but it appears to be excellent." ^ The judge having taken
cognizance, he proceeded first of all to establish the " corpus delicti, "
and the Ordinance contains very judicious provisions as to the
official reports of the judges and the reports of physicians and
surgeons.^

II. Title VI of this act, which had so far adhered to the chrono-
logical order of events, was devoted to inquiries, the chief part of
the action. The principle of the secrecy of the procedure was
rigorously followed : " The witnesses shall be heard secretly and
separately."^ — "The clerks of court are hereby forbidden to com-
municate the inquiries and other secret documents of the action." *
These provisions seemed so natural that they did not give rise
to any criticism. But alongside of this traditional severity the
Ordinance contained admirable reforms in matters of detail.
The custom of causing " an officer of court and a notary " to make
the inquiry was entirely abolished. Henceforth the deposition
is to be written " by a clerk of court in the presence of the judge." ^
— The witnesses must, before testifying, " produce the writ which
has been served upon them to testify, of which mention shall be
made in their depositions." This was a way of insuring obedience
to the rule that the witnesses should only be brought by the public
prosecutor or by the civil party ; ® to prevent witnesses for the
accused being insinuated into their number, production of the
citation must be made necessary.^ — Everything was devised so
that the information, so important a document, should be true
and unaltered ; the oath to be administered to the witnesses, the
questions to be put to them, the reading of the depositions, the
prohibition of interlineations, the necessity for the ratification of

1 "Proc^verbal," p. 66. « Tits. IV and V.

» Tit. VI, Art. 11. « Tit. VI, Art. 15.

» Tit. VI, Art. 9 ; c/. Art. 6. • Tit. VI, Art. 1.

^ This provision has been incorporated in the Code of Criminal Examina-
tion (Art. 74), but it has not the same value, the accused being always able
to summon to the hearing the witnesses for the defense.

220

Title I, Ch. II] ORDINANCE OF 1670 [§ 3

erasures, the material effect of the register (Articles 5, 9, 11, 12),
— all these provisions were prescribed on pain of nullity.

The witness fee was fixed by the judge (Art. 13). The com-
missioners' draft added that payment of it should be made by the
hands of the clerk of court, forbidding the parties to give any-
thing in addition ; but the First president observed " that the
witnesses were sometimes at a distance ; and if the parties were
not careful to see that they came, and to pay their travelling ex-
penses, they would neglect to appear." The words "by the hands
of the clerk of court " were struck out, and the parties were merely
forbidden to give anything in addition to the fee taxed. La-
moignon had helped to retain an abuse.

The monitories followed the informations (Title VII). The
judges decreed permission to obtain them, and the official was
obliged to obey. This was also possible " even though no proof
had been begun, or on refusal of the witnesses to testify ; " this was
excessive, especially as it was said that the judgment which would
intervene on attachment, if there should be any, would be exe-
cuted notwithstanding " appeal even as from abuse." Lamoi-
gnon observed " that the examination of an action is not begun
by a ' monitory ' ; " ^ but everything was passed.

III. If the information contained charges, it resulted in an
order which had always to be given upon the motion of the
king's procurator.^ The draft of the act provided that " neither
judges' fees nor commissions" could be claimed for these motions.
Lamoignon protested, Pussort vainly argued, " that the king's
purpose was not to diminish the emoluments of his officers, but
rather to curtail the actions, by depriving them of the opportunity
of claiming decrees too readily and too causelessly." ^ The pro-
vision was suppressed.

The Ordinance allowed three kinds of writs, that of summons
to be heard, that of personal citation, and that of arrest. The
first, which we have not found in Imbert, had been introduced by
judicial decision. It was milder than the personal citation, inas-
much as it did not entail, as the latter did, the prohibition of ex-
ercising all functions.* In order to choose between these different
writs, it was necessary to take into account the nature of the
crimes, the proofs, and also the persons. A warrant of arrest could
not be granted against a resident " except for corporal or igno-
minious punishment." The writ of summons for hearing was,

» "Proc^verbal," p. 74. « Tit. X, Art. 1.

' "PJroc^verbal," p. 108. * Tit. X, Arts. 10 and 12.

221

§ 3] PROCEDURE IN THE 1600 S AND 1700 S [Part II

on default of appearance, converted into a writ of personal cita-
tion, and that, in the same circumstances, into a warrant of
arrest,^ at least if the accused did not plead a hindrance or excuse
in the forms prescribed by Title XL These were the " essoins
of accused persons," and this is the last time that this description
of dilatory exception, formeriy so important in the feudal pro-
cedure, will appear in our laws in the proper sense of the term.^

Writs could not be granted without a prior information. That
was the general rule, but it was subject to many exceptions, not
only in the case of capture in the act, but also on other less favor-
able hypotheses. " Arrest may be decreed on notoriety alone for
duelling ; on the complaint of our procurators against vagabonds,
and on that of the lawyers for crimes and domestic offenses." ^

The warrant of arrest placed the accused in a state of detention
pending trial ; and an order of the judge was always necessary
for release (Art. 23). But release on bail was not always possible
in the "extraordinary" action.* After the interrogation, however,
if there had originally been only a personal citation, and the
warrant of arrest had only been issued in default of appearance,
the accused could be released (Art. 21). This provision was very
severe, and paid little regard to individual liberty. At the- same
time, it was more precise than any of the earlier Ordinances, and
contained several safeguards. The king's procurators were
obliged to send twice a year to the attorneys-general a " statement
signed by them and the criminal lieutenants of the entries in the
jail-book and detainers made during the preceding six jnonths
in the prisons of their jurisdiction, which had not been followed
by a final judgment, with the dates of the warrants, jail-book
entries and detainers, the name, surname, designation, and resi-
dence of the accused, and the title of the accusation in brief and
the stage of the procedure." ^ This was an admirable provision,

1 Tit. X, Arts. 3 and 4.

* If he who was personally cited should appear, he could not be impris-
oned unless new chajrges were brought up (Art. 7) ; or '*by secret delibera-
tion of our courts, it has been resolved that he shall be arrested on his
appearance, which cannot be ordered by any other of our ludges." — This
*'retentum'' well illustrates the spirit of this procedure, which often plays
with the accused to the very end.

* Tit. X, Art. 8 ; c/. Arts. 5 and 6. — The decrees could be issued by the
examining judge alone. Bomier, it is true, considered them as null '* when
they were rendered by a single judge without the opinions of any others"
(p. 348) ; but the prevailing opinion was to the contrary. "The decrees
are usually rendered by the examining judge." JoiLsae, ''Comment," p.
187. — '*The contrary usage sufficiently proves that Bomier's idea does
not conform to the rules." Serpillon, "Code crim." p. 532.

* Tit. XV, Art. 12. * Tit. X, Art. 20.

222

TiTLB I, Ch. II] ORDINANCE OP 1670 [§ 3

and it undoubtedly inspired articles 249 and 250 of the Code of
Criminal Examination.

After dealing with the warrants the compilers of the Ordinance
naturally turned their attention to the policing of the prisons.
This they did in Title XIII. The prisons of the 1600 s and the
1700s were atrocious places: "Dare to descend for an instant
into these gloomy dungeons, into which the light of day never
penetrates, and gaze on the disfigured features of your fellow-crea-
tures, bruised by their chains, half-covered with some rags, poi-
soned by an air never renewed, and apparently impregnated with
the poison of crime, eaten alive by the same vermin which devour
the corpses in their graves, hardly kept alive with some coarse
food sparingly distributed, kept in a constant state of terror by
the groans of their unfortunate comrades and the threats of their
keepers." ^ These are the words of a magistrate in an opening
address and the poignant truth is apparent under the rhetorical
amplification. Voltaire said later : " A prison need not resemble
a palace, but no more is it necessary that it should resemble a
charnel-house. It is a common complaint that the majority of
the jails of Europe are cloacae of infection, which spread disease
and death, not merely within their precincts, but throughout
their neighborhood. DayUght there is none, and the air is stag-
nant. The prisoners communicate to each other only their
tainted exhalations. They suffer a cruel punishment before they
are tried. Charity and good policy ought to suggest a remedy
for such inhuman and dangerous negligence." ^

The Reports of 1789 furnish irrefutable testimony to the same
effect. The Third Estate unanimously demands that "the prisons
be made safe and healthy, that they do not impair the health of the
prisoners, and that hospitals be instituted." ^ — The same protests
appear in the Reports of the NobiUty : " the prisons," says one of
them, " are in an inhuman and indecent state." * The Clergy
are equally vehement : " let the prisons, where too often the inno-
cent suffer side by side with the guilty, cease to be, against the
spirit of the law, a seat of horror and infection; let the poor wretches
at least have fresh air, and wholesome and sufficient sustenance ;
let the prison hospitals be aired and so equipped that they may be
of service to the sick." ^ These are incontrovertible facts.

It must not, however, be thought that the legislatures and the

* Seruan, "Discours," etc., p. 14.

* "Idfie de la justice et de 1 humanity," Art. xxv.

» Prudhomme, "R6sum6 des cahiers," III, pp. 588, 173, 174.

* lbid,f op. cit.9 II, pp. 152 and 411. ' Ibid., op, cit.^ I, pp. 163 and 357.

223

§3] PROCEDURE IN THE 1600 S AND 1700s [Part II

magistrates of ancient France showed themselves indifferent to the
fate of the prisoners. This harsh discipline and these sufferings
appeared to them natural and necessary. But, on the other hand,
numerous precautions were taken to prevent peculation and vexa-
tions on the part of the jailers. Certain court practices touched
upon the matter. Thus the Toumelle of the Parlement of Paris
held a sitting annually on the day before Ascension to listen to the
grievances and inquire into the lot of the prisoners.^ The Parie-
ments frequently made regulations for the police of the prisons of
their jurisdiction. That of the Pariement of Paris of 1st Septem-
ber, 1717, is celebrated and very extensive. The compilers of the
Ordinance were inspired by the same sentiment. In Title XIII
we find few provisions concerning the penitentiary question, as we
would call it nowadays. The sexes must be separated (Art. 20) ;
the turnkeys shall visit the prisoners every day in their dungeons,
and must report those who are sick, so that they may be visited by
physicians and if need be transferred to rooms (Art. 21) ; the pris-
oners must be given " bread, water, and straw in good condition,
according to the regulations '' (Art. 25). That is all. Nearly
all the other Articles are directed towards the repression of the
peculations of the keepers. They disclose serious disorders and
above all a shameful venality (Arts. 2, 6, 7, 9, 15, 19, 10, 11,
14, 18, 22, 28, 30, 33). The jailers are constantly forbidden to
take money for the performance of their prescribed duties.
The king's procurators or those of the lords are commanded " to
visit the prisons once a week to receive the complaints of the
prisoners " (Art. 25).^

IV. The accused, whether summoned or arrested, must be
interrogated by the judge. This was an act of the greatest im-
portance. We shall see that in the majority of cases, in the ab-
sence of the accused's confession, the heavier sentences could not
be pronounced. The art of interrogating was therefore a very
valuable qualification of the examining magistrate, in this secret
procedure. The authors of treatises on criminal law laid down a
series of rules on this subject which have become standard, the

***Oii Ascension Thursday the Parlement holds its sitting at the
Chfttelet for the prisoners. The last appointed president, at half past
ten o'clock, goes to Ch&telet with the councillors of the Toiirnelle. The
hearing ceases on their arrival, the civil lieutenant leaves his place, and
while the Parlement holds the hearing, the criminal lieutenant, the king's
procurator, and the criminal lieutenant of the short robe are on the bench
of the king's people, so that they may be able to answer should there be
any complaint against them." Barhier, ** Journal," II, p. 328.

* Compare Article 610 et seq. of the Code of Criminal Examination.

224

TiTLl I, Ch. II] ORDINANCE OF 1670 [§ 3

fruit of experience and study. The remarks with which Jousse
prefaced Title XIV of the Ordinance remain the most judicious
of these short treatises, which are somewhat reminiscent of the
manuals of the confessional. «

A slight amelioration was introduced into the practice of the
interrogatories, which had to be begun within twenty-four hours
from the imprisonment at the latest ; but the severe rules intro-
duced by judicial practice and the Ordinances were retained and
even aggravated. The interrogation must take place secretly,
before the judge and his clerk. The oath introduced by custom
was expressly ijnposed upon the accused (Art. 7).

A memorable discussion is known to have occurred on this point
during the preliminary conferences. President Lamoignon showed
all the nobility of his great heart, and gave voice to the opinions
of the old magistrates whom he cited as precedents. He strove
with all his power to have the necessity for the oath done away
with. He pointed out that it was only a mere custom, which was in-
troduced, "like those things neither the origin of nor the reason for
which were well known." He recalled the sanctity of the oath.
" If it is obligatory, it will infallibly invite the accused to commit an
additional crime, and to add to the untruth which is inevitable
at such junctures a perjury which could be avoided. If it is not
obligatory, it is taking the name of God in vain." — " In France
it is universally said that it must be done in this way without
inquiring into the reason for its being done ; for none of the na-
tions from whom we have taken all our good maxims has so prac-
tised it." He pointed out " that the civil law, far from sanction-
ing it, was undoubtedly opposed to it, and that there is not the
slightest trace of it even in the Canon law before that was con-
founded with the formalities of the Inquisition." He observes
that the "Carolina" (of Charies V of Germany) does not speak of
it, nor had it made its way into the Netherlands at least. He
finally invoked the tradition of the old French magistracy. " No
one is bound to condemn himself out of his own mouth," President
Lemattre had said ; and De Thou, " whose memory is held in such
high esteem in the courts of justice and elsewhere ... in inter-
rogating a person accused of a named crime would never make
him take the oath, because there was no Ordinance compelling
the judges to exact it from the accused, and he would not invite
him to a manifest perjury." ^

Pussort attempted a refutation of this vigorous reasoning;

1 "Procfts-verbal," pp. 153, 159.

225

i 3] PROCEDURE IN THE 1600 S AND 1700 S [Part II

but his efforts were feeble. " The arguments which have been
advanced cannot be admitted, as it is in no case permissible to do
evil to attain the greatest good ; natural law when opposed to that
of Christianity must naturally give way to it, nobody doubting
that death is preferable to a mortal sin . . . the use of the oath
is very old, and was observed before the Ordinance of 1539 . . .
and the use of it is much more solemn, inasmuch as it has been es-
tablished without law ; ... it is not entirely useless ; . . . timid
consciences are to be found which the fear of perjury might force
to acknowledge the truth.'* M. Talon supported Pussort. He
maintained '' that in Spain, Italy, and, it might be said, among all
the nations of Europe, the oath was administered to the accused
before they were interrogated. . . . This obstacle," he said,
** having been raised, it was absolutely necessary to make it the
subject of an article in the Ordinance." Lamoignon, who really
remained, unanswered, asked that the king be consulted. The
king retained the article.

But to command a thing to be done is not the same thing as
having it done. What was to be done if the accused refused to
take the oath? The Ordinance had foreseen the probability of
an absolute refusal by the accused to answer.^ It provided that
action should then be brought against him as a voluntary mute.^
After being called on three times to reply, and after three warn-
ings of the consequences of his silence, the judge proceeded, re-
cording, whenever there was occasion for the appearance of the ac-
cused, that he refused to speak. All the proceedings were, however,
valid, and even if the accused should subsequently wish to reply,
nothing was reopened, not even the confrontation. This very
rigorous procedure, more severe than that followed in the case of
contumacy, furnished a means of indirectly forcing the accused
to the oath. He who was willing to answer, but without taking

^ Title XVIII, concerning the deaf and dumb and those who refuse to
answer.

* A person present was not allowed to figure as a contumax. ''There
was formerly a contumacy, the party being present, when the examination
was against voluntary mutes, but that form of procedure was disapproved
by resolution of the Parlement of Paris of 1st December, 1663." Ser-
pillorit **Code crim." p. 900. — "Formerly a ciu*ator was appointed for
voluntary mutes, but the Ordinance has thought fit to abrogate this usage,
and to deprive them of an aid of which they showed themselves unworthy."
Muyart, " Inst, crim." 1st part, p. 684. — "The practice of the Ch&telet has
changed at different times as to the form of Dringing an action against
voluntary mutes ; formerly a curator was assigned to them, but the in-
convenience of this, due to the necessity of recommencing the procedure
when the accused offered to reply orally, was recognized." M, Talon^
"Procfe-verbal," p. 217.

226

TlTI* I, Ch. II] ORDINANCE OP 1670 [§ 3

the oath, was put in the same position as a voluntary mute. So
Jousse decided. After speaking of the voluntary mute he adds,
" it is the same if the accused refuses to take the oath, as some-
times happens." ^ And Serpillon, while protesting against this
practice, appears to declare it. " He who answers, saying that
he does not wish to take the oath, cannot be considered as
such (a voluntary mute). He does not refuse to answer, he does
not remain silent, and no punishment is pronounced against him
who refuses to take the oath. It is, however, true that MM. the
commissioners of the Parlement of Paris, in the proceedings
against the infamous Damiens, op 8th February, called upon that
accused three times to take the oath, which he refused to do ; which
proves their custom in that respect." ^

The aid of counsel was once more prohibited by the Ordinance.
The accused must always answer personally. This applied not
only to the first interrogation, in which case it could be easily
understood, but throughout the whole course of the examinations,
whether before the criminal lieutenant, or before the assembled
bench. If, however, a crime not capital was concerned, "the
judges might, after the interrogatories, permit consultation
with whomsoever they pleased," without there being any ques-
tion of a defense being turned into a speech at the bar. If, on
the contrary, a capital crime was concerned, all consultation
was forbidden, " notwithstanding all customs to the contrary,
which we repeal, except for the crimes of peculation, extortion,
fraudulent bankruptcy, theft by clerks or partners in financial
or banking affairs, in regard to which crimes the judges may order,
if the matter requires it, that the accused may communicate with
their clerks after the interrogation." Such was the plan proposed.
Although it had all the appearance of imposing a less absolute
prohibition than that of the Ordinance of 1539, it really went
beyond the latter, the somewhat vague language of which left a
certain power to the judges. Lamoignon here again raised his
voice in favor of the accused. " This Article forbids the judges to
assign counsel to the accused, even after the confrontation. This
is new and very hard on the accused." Taking up the cause of
free defense, his language seems antedated by a century. " If
counsel has saved some guilty persons, it might also happen that
innocent persons might perish for lack of counsel. — No evil which
could happen in the administration of justice is comparable to
that of causing the death of an innocent person, and it would be

» " Comment," p. 384. * "Code crim." p. 902.

227

§ 3] PROCEDURE IN THE 1600 S AND 17008 [Pabt II

better to acquit a thousand guilty. — This counsel which has been
granted to the accused is not a privilege accorded either by the
Ordinances or by the laws. It is a liberty obtained from natural
law, which is older than all human laws. — Our Ordinances have
deprived accused persons of so many advantages that it is highly
just to preserve to them what they have remaining. — If our
procedure is compared with those of the Romans and other na-
* tions, it will be found that the latter are not so rigorous in this re-
spect as in France, especially since the Ordinance of 1539. — It
might be ordered generally that the judges should not grant coun-
sel to accused persons except for crimes of a complex nature, but
it would appear to be exceedingly dangerous to specify particularly
what these crimes were, and by so doing exclude all others." ^

In opposition to Lamoignon, Pussort anew constituted himself
the advocate of inflexible repression. " Experience taught that
the counsel which was granted deemed it an honor, and thought
themselves at liberty with a clear conscience, to secure the impunity
of the accused by any method." He was bold enough to recall
the action of Chancellor Poyet to mark the import of the Ordinance
of 1539. *' It is true," he said, " that the silence of the Ordinance
has been variously interpreted. ... It has given the judges
the opportunity to use it in various ways, some refusing (counsel)
entirely, others granting it in all kinds of accusations, and still
others only in certain cases. . . . We know how fertile these kinds
of counsel are in finding openings to frame conflicts of jurisdiction,
how they often scheme to discover nullities in the proceedings
and to give birth to an infinitude of side issues. An accused is
refused nothing, and it is necessary to read all the documents of the
action, as well those which lead to his acquittal as those for his
conviction. Provided, therefore, he has the means of employing
enough advocates and furnishing the costs, expedients are not
wanting to make the action go on forever. It is therefore pecul-
iarly in the interests of the wealthy and of impunity that counsel
is granted." ^ Here, as an eminent criminal law-writer has re-
marked, Pussort found himself in opposition to a truth taught
by experience. By a logical necessity, it must be that the
written and secret procedure, overburdened by formalities before
it can deserve the name of procedure, offers to chicanery an
admirably tilled soil.

M. Talon proposed a compromise. He wished that counsel
should be excluded in a general way " in causes which depend

1 " Proc^s-verbal," pp. 162-164. » Ibid,, pp. 164, 165.

228

Title I, Ch. II] ORDINANCE OF 1670 [§ 3

solely on witnesses," but that they should be granted, also gen-
erally, and without proceeding to a dangerous enumeration " in
accusations in which documents are produced for the conviction
of the accused and where he is able to produce them in his defense/'
He cited as examples the trust-entails of children and wished the
addition of the clause : " and others of the same nature." The
article passed, after being modified by the addition to the cases in
which counsel for the defense would be permitted "the trust-entails
of children and other crimes where personal status is involved." ^
It was considered that enough was done to safeguard the rights
of the defense by inserting in the text this reservation : " It is
left to the sense of duty and the good faith of the judges to investi-
gate before giving judgment whether there is any error in the
proceedings." This was the same idea which prompted the dec-
laration that the testimony in the inquiry should be taken " for
the prosecution and for the defense." Under this system the judge
in a manner played the part of Providence. He is infallible, and
defends the accused at the same time that he prosecutes him.

All the formalities of the interrogation were, however, minutely
and carefully regulated.^ The interrogation was at once commu-
nicated to the public prosecutor and the civil party (Arts. 17,
18), who, if there was a confession, could take law immediately,
that is to say, ask for judgment, but only, as we shall explain later,
if the crime did not merit corporal punishment. The accused in
the same circumstances could ask to take law on the charges,
which were then communicated to him. On either hypothesis
there were requests addressed to the judge by the prosecutors and
answers on the part of the accused (Art. 20). If it was not appro-
priate to take law in this way, the civil party and the public prose-
cutor presented their motions in law asking for a ruling to the "ex-
traordinary " action. The accused could also present a request to
be received in "ordinary" action; but this "civilizing" of the
action was only allowed when the offense entailed merely a
pecimiary punishment.^

V. The ruling to the "extraordinary^" action resulted in an
order stating that the witnesses heard in the inquiry were " heard
anew, confirmed in their depositions, and, if necessary, confronted
with the accused." ^ By whom was this important judgment to

» Tit. XIV, Art. 8. « See Arts. 9, 11, 13, 16.

' The effect of Tit. XX, Art. 3, of the Ordinance was that the conversion
to the "ordinary" action could take place even after the ruling to the
** extraordinary ' action, provided it was done before the confrontation.

* Tit. XV, Art. 1.

229

§ 3] PROCEDURE IN THE 1600 S AND 1700 S [Pabt II

be rendered? " By the judge/' said the Ordinance. It seemed
logical to conclude from this that the judge of examination alone
was meant. Besides, he alone had so far appeared upon the scene.
Jousse, however, no doubt taking into consideration the immense
power which would thus be put into the hands of one man, was
of the contrary opinion " that this order should be rendered
in the Chamber, as a judgment «on the merits, by three judges if
the judgment is subject to appeal, and by seven when it is final.'* *
But he was alone in this opinion. " In the bailiwicks and other
jurisdictions subject to appeal, the examining judge may alone
render a judgment of confirmation and confrontation. — It is matter
for surprise that M. Jousse, so conversant with this fact, should have
observed upon this article that the ruUng to the * extraordinary '
procedure should be rendered by three judges if it is subject to
appeal. That is contrary to the authorities which he cites, since
they only speak of the last resort, which implies that the criminal
lieutenants can, alone, render them to the 'ordinary' procedure, as
a multitude of rulings have decided. Besides, it is the custom of
all the courts of the kingdom that the examining judge by himself
renders the judgments to the * ordinary ' procedure. It would be
tedious to cite the regulations in refutation of this error." ^

The confirmation was necessary in order that the deposition should
constitute a charge against the accused; but in the inspection
(" visite ") of the proceedings, on the contrar}'', the depositions
of the witnesses for the defense were read although they had been
neither confirmed nor confronted, in order to be noticed by the
judges.' Consequently, it was asked if there was any necessity
for confronting all the witnesses ; that appeared to be more just ;
however, it was usually decided that only those for the prosecu-
tion ought to be confronted.

The confrontation \Vas the first opportunity that this merciless
procedure gave to the accused to acquaint himself regarding the
charge, until this time kept a secret from him. But the Ordinance
rendered this resource almost entirely illusory. Originally, the
object of the confirmation had been to allow the judge to check
the inquiry which had been made by a mere officer of the court,
assisted by a notary. Now it was of no more use for this purpose,
the judge always making the inquiry himself. The confirmation was
made a means of clinching the testimony so as to render all argu-
ment at the confrontation useless. " The witnesses," said Article

1 "Comment, sur Tord. de 1670," p. 296.

» Serpillon, "Code crim." p. 690. • Tit. XV, Art. 10.

230

Title I, Ch. II] ORDINANCE OF 1670 [§ 3

11, " who, from the time of the confirmation, retracted their dep-
ositions, or changed them in essential particulars, shall be prose-
cuted and punished as false witnesses." Lamoignon, for the
third time, protested on behalf of the defense. " It may be
dangerous to enact so strict a law, because sometimes an ac-
cused could put a witness right on important points and bring
to his recollection the truth of a fact which had escaped him.
That could sometimes be done in good faith, both on the part of
the accused and of the witnesses, and the accused's situation would
be rendered much worse if the witness were not allowed to retract
at the confrontation without being treated as a criminal. . . .
Everything is against the accused down to the confrontation;
for it is then that he commences to reaUze his position and to be-
come acquainted with the nature of the crime and of the proof.
That is why it is more fitting to leave the matter in the judge's
discretion ; he is able to perceive whether the contradiction which
occurs between the deposition, the confirmation, and the confronta-
tion of the witness savors of bad faith or is clearly the result of
want of knowledge."^ Better sense could not be uttered; but
Pussort said " that so far it has been considered an invariable
rule, established by the authors and sanctioned by usage, that
no man who has taken two oaths in the presence of the court
can change with impunity ; . . . that the article had been con-
sidered necessary for the public safety, and, far from being pro-
ductive of perjurie3, it would, on the contrary, from the necessity
which it would entail upon them of confirming their testimony
at the confrontation whether it were true or false, compel the wit-
nesses to be circumspect and not to give their depositions without
reflection . . . and that, besides, the essential circumstantial
clauses of the article cover everything." The power of certain
preconceived ideas is truly astonishing. After having resolved
upon the article as Pussort wished, this provision was inserted :
" If the accused discovers in the witness's deposition some con-
tradiction or circumstance which could clear up the fact or prove
his innocence, he can require the judge to call upon the witness to
acknowledge it." This has to-day almost the appearance of a
jest.

Although the confrontation could hardly any longer be of use
to the accused in contesting the depositions, it was still useful
for the pleading of his objections to the witnesses ; but the rule in-
troduced in 1539, according to which he was bound to plead his

1 '•ProcSs-verbal," p. 178.
231

§ 3] PROCEDURE IN THE 1600 S AND 1700 8 [Part II

objections immediately and prior to the reading of the deposition,
was retained;^ he was not allowed to plead them afterwards.
That passed without remark. It was a point which had been
admitted for a long time. Care was merely taken to declare ex-
pressly that the accused could " at any stage of the action plead
his objections to the witnesses, provided they were proved by
writing" (Arts. 20).

VI. When the informations, interrogations, confirmations, and
confrontations were finished, the action was said to be examined
(" instruit ") and passed from the hands of the examining judge
into those of the reporting judge, whose duty it w^as to analyze the
proceedings and to exhibit the results to the whole assembled bench.
But first of all the record was intrusted to the king's procurator,
so that he might make his final motions.^ This he was bound
" to do immediately." These motions might claim the pro-
nouncement of the penalty, but they might also claim the appli-
cation of torture or the proof of justificative facts. They were
" lodged in writing and sealed/' and were not to be opened until
later, after the report. They must not " contain the reasons upon
which they were based. " * At this point the report intervened,
" When the action has been completely examined, and the king's
procurator or fiscal, after having taken communication of it, has
sent it back to the clerk of court's ofiice with his motions, sealed,
the process shall be remitted to one of the judges, who makes the
report of it to the assembled bench." * This was extremely im-
portant. No doubt the documents of the proceedings were read
before the councillors ; but how were these magistrates, coming into
the matter for the first time, to obtain a thorough knowledge of it ?
They judged by the report. The reporting judge must therefore
" give his opinion first. This is the invariable custom in all the
courts, and the reason for it is that the reporting judge is presumed
to be better acquainted with the facts of the action than the other
officers. " ® The fact that the reporting judge had such great author-
ity made the choice of this magistrate a matter of importance ; but
it was not a point determined by the Ordinance. In the bailiwicks
the criminal lieutenants reported the actions. " They have the
right," says Serpillon, " founded on the Edict of May, 1553, to
report all the actions in their jurisdiction." He also cites an
Edict of 1537 and a multitude of decrees and regulations, which

1 Tit. XV, Arts. 15 and 16. * Tit. XXIV, Art. 1.

> Tit. XXIV, Art. 3. * Pothier, *'Instr. crim." p. 466.

^Serpillon, "Code crim." p. 1052.

232

TiTLB I, Ch. II] ORDINANCE OF 1670 [§ 3

show that the question of judges' fees was always involved.^ But,
on the other hand, the criminal lieutenant was the examining judge ;
and the action was thus almost entirely confided to his discretion.
This was an abuse which the Ordinance of Blois had aimed at
suppressing ; * but as it only spoke of the Pariements, its pro-
vision was not applied to the jurisdictions trying cases in the first
instance. It is surprising that those who drew up the Ordinance,
usually so solicitous in settling the details of the administration
of justice, passed over this point in silence.

No one except the judges was present at the inspection (" visite ")
of the process, or at the report. Even the "•king's people " were
expressly excluded.' Before proceeding to the judgment, how-
ever, the accused was made to appear for the purpose of under-
going another interrogation. This was the first time that the
magistrates, with the exception of the examining judge, saw him
or heard him speak. When the motion of the public prosecutor
demanded corporal punishment, the final interrogation had to
take place upon the " sellette " or prisoner's seat/ In other cases,
it took place " behind the bar of the court-room . . . the accused
then stand publicly behind the railing forming the bar." ^ The
Ordinance does not mention any necessary formalities other than
interrogations upon the prisoner's seat. The abuse had also
insinuated itself into several jurisdictions not to hear the accused
when there were no motions for corporal punishments. A
royal Declaration of the 13th April, 1703, suppressed this abuse.

It never was the spirit of our Ordinance of 1676," it was said,

to deprive accused persons in any case of their natural right to
plead orally, nor to take from the judges the means they possess
of enlightening themselves regarding the circumstances of actions
prosecuted ' extraordinarily.' " The accused must always he heard
either upon the prisoner's seat or behind the bar.

It might happen, however, that the examination of the action
was not finished. " When, after the inspection of the process
and the final interrogation of the accused, the -judge comes to the
conclusion that the proof is not suflSciently full, and that he is still
in doubt as to the judgment which it should entail, then it may
happen that these doubts are met by strong presumptions, which

^ Op. cit.j p. 1230 et seq.

"Art. laiO: "The criminal actions brought or examined before the
Pariements in the first instance, cannot be reported by him who shall
have made the confirmations and the confrontations, and examined the
said actions."

» Tit. XXIV, Art. 2. * Tit. XIV, Art. 21.

^Serpillon, "Code crim." p. 682.

233

it
it

§ 3] PROCEDURE IN THE 1600 S AND 1700 S [PaRT II

arise against the accused in such a way as to make him appear
rather more guilty than innocent, and that nothing is wanting for
his conviction but his own confession. In this case torture can be
ordered. . . . Or, again, it may happen that these doubts make
the balance swing in the prisoner's favor, as when he has, in his final
interrogation and his confrontation set forth certain facts or fur-
nished certain objections to the witnesses, the proof of which would
completely show his innocence. In this case the judge shall, at
the request of the accused, or even of his own accord, choose from
aniong these facts or objections those which appear to him to be
the most relevant, inorder to make them the subject of an inquiry
which he shall order by a special judgment, and which is called
admitting the accused to his justificative facts." ^ Let us examine
both sides of this alternative.

VII. There were more than one variety of this torture, the la-
mentable progress of which we have related. Looked at from the
point of view of intensity of the pain, it is divided into ordinary
torture, and extraordinary torture. The judge always had full
power to stop with the first, or to go on to the latter.^ Looked at
from the point of view of the function which it fulfilled, there was
the preparatory torture, which was used to extort from the accused
the confession of his crime, and the preliminary torture, which was
administered to condemned persons to compel them to disclose their
accomplices. It is of the preparatory torture that we now speak.

The Ordinance regulated the circumstances under which recourse
could be had to torture. It required that the "corpus delicti" be
established ; and that there should have already been *' consider-
able proof." ^ The decrees sentencing to torture were appealable
as a matter of right.* The accused, interrogated before being
tortured, must be interrogated immediately after, so that it could
be seen if he stuck to his confessions. An important point was
that " whatever new proof appeared, the accused could not be put
twice to the torture for the same fact ; " ^ and, if he had been re-
leased and entirely -withdrawn from the torture, he could not again
be put to it." ® These provisions somewhat alleviated this horrible
proceeding; but as a counterbalance the Ordinance sanctioned
the torture under reservation of proofs, which had been introduced
by judicial decisions, and of which we shall speak later. All this

* Muyart de VouglanSf "Inst, crim." p. 390.

'This calls to miDd *'the little and the great horse" in the "Registre
criminel du Ch&telet."

» Tit. XIX, Art. 1. * Tit. XIX, Art. 7.

« Tit. XIX, Art. 12. • Tit. XIX, Art. 10.

234

Title I, Ch. II] ORDINANCE OF 1670 [§ 3

passed without encountering any opposition. It was a natural
thing at that period. Lamoignon and Pussort, surprised, no doUbt,
to find themselves in agreement, both spoke against the prepara-
tory torture, but without pressing the matter, and as if merely
to salve their consciences. Pussort declares " that the preparatory
torture had, in his opinion, always seemed useless, and that if it
was desired to do away with the practice of an ancient custom, it
would be found that it is rare that it has drawn the truth from the
mouth of a condenmed man."

The president " said that he saw great reasons for doing away
with it, but that was only his individual opinion." ^ Lamoignon,
however, had something more practical to propose. No fixed rule
existed as to the mode of administering the torture ; the usages
of the companies of judges were the only law. Was it not
urgent to put an end to all arbitrary action in this respect ? " It
is to be wished that the method of administering the torture be
uniform throughout the whole kingdom, because in certain places
it is administered so harshly that he who suffers it is unfitted for
work and often remains a cripple for the rest of his life." To that
Pussort made this astounding reply : " It was difficult to make
torture imif orm ; . . . the description which it would be necessary
to make of it would be indecent in an Ordinance ; . . . but it is
implied in the article that the judges shall take care, when they
cause it to be administered, that the persons condenmed to it
are not made cripples." ^

Nothing was therefore settled in this respect, and the practices
differed as in the past. We find in Muyart de Vouglans the
following concise description of the most frequently used
methods : " In the Parlement de Paris, the torture is adminis-
tered in two ways, by water and by the boot." The Parlement,
by decree of 18th July, 1707, gave a detailed memorandum in
regard to torture, which comprises twenty-three articles. This
is a very curious document, wherein everything is provided for.*
This regulation was adopted in many jurisdictions, but in certain
others the old methods were adhered to, *' In the Parlement of
Brittany it (torture) is administered by squeezing the thumb or the
fingers or a leg of the patient with iron machines called ' valets.'
... In the Parlement of Brittany the naked feet of the sufferer
are placed together (he being seated), and attached to a chair in
front of a fire. ... In the Parlement of Besan9on, torture

» "Procfts-verbal," p. 225. « *'Proc6s-verbal," p. 224.

'See in SerpUlon, Code crim.*' p. 930 et seq,

235

§ 3] PROCEDURE IN THE 1600 S AND 1700 S [Part II

is administered in two ways. The sufferer, whose anns are tied
behind his back, is raised into the air by a pulley attached to his
bound arms ; ... for the extraordinary torture, a large iron or
stone weight is attached to the large toe of each foot, which, when
he is raised, remain suspended from his feet." ^ Serpillon, on his
side, describing the torture by boiling oil, as it is administered in
the Autim presidial, adds, " I do not know of any other court in
the province which practises this cruel torture, which is said to
have been in vogue of old throughout all France." ^

As to the preliminary torture, the Ordinance merely declared
that " it could be decreed by the judgment."

The old rules as to justificative facts were retained and more
explicitly laid down than they had ever been before. " Judges '*
were " forbidden, even in the courts, to order the proof of any-
justificative facts, or to hear the witnesses to arrive at such proof,
until after the inspection of the process." ' Nothing could be
admitted to proof except " the facts chosen by the judge from
among those which the accused shall have set forth in the interroga-
tions and confrontations," and the latter must immediately name
the witnesses, who were subpoenaed at the request of the public
prosecutor and heard without being seen by the accused. The
helplessness of the defense is apparent ; it was, however, neces-
sary that the claims which the civil party presented to the
judges and the documents relating thereto be communicated to the
accused. "A copy of them shall be delivered to the accused,
otherwise the claims and documents shall be rejected." *

VIII. The next thing was the pronouncement of the judgment.
The Ordinance repeats the traditional provisions commanding the
judges to give criminal matters the preference over ci\'il causes and
forbidding them to try important cases " of an afternoon." ^ But
they also contained new and important provisions. In all the juris-
dictions where sentence was passed subject to appeal, the sentence
must be pronounced by three judges at least " if there are so

1 MuyarU "Inst, crira." p. 403. * "Code crim." p. 967.

» Tit. XXVIII, Art. 1.

* Tit. XXIII, Art. 3. It was asked whether communication of the deposi-
tions of the witnesses upon the justificative facts ou^^ht to be made to the
accused. See Pouiiatn du Pare, "Principes du droit fran^ais,'* vol. XI,
p. 374. "Article 8 only orders the communication of the inquest to the
public prosecutor and the civil party, which leaves room for the belief that
the accused cannot demand its communication. This, however, is not an
infonnation, but an inquest ; and since the civil party ought to have com-
munication of it, it appears unjust to refuse it to the accused. The silence
of the Ordinance is not negative of this communication, although it gives
rise to a considerable difficulty on the point.''

» Tit. XXV, Arts. 1 and 9.

236

Title I, Ch. II] ORDINANCE OF 1670 [§ 3

many on the bench, or graduates in law, who shall go to the place
where the court sits, and where the accused is imprisoned, and who
shall be present at the final interrogation/' ^ This was an admi-
rable reform, especially considering what manner of judges those of
the seigniors were. Lamoignon, however, made some opposition.
He still defended the interests of the seigniorial courts. He even
wished that it should not be required that the assessors always
be graduates in law ; " in the minor jurisdictions there might be
counsel of good sense and fit to be officers who are nevertheless
not graduate." But Pussort successfully replied : " Too great
precautions cannot be taken when the lives and honor of the king's
subjects are concerned, especially if it is considered that gentle-
men might be amenable to the judges of the seigniors, who are
all inexperienced and who might easily be bribed." ^

As to judgments in the last resort, they must always be rendered
by seven judges, whether in the case of judgments of examination
or judgments on the merits. In default of judges, resort was had to
graduates.' The accused always had the benefit in the event of a
divided court, and the most severe judgment could not be passed
in the case of a sentence in the last resort except by a majority
of two votes (Art. 12). Montesquieu called the last-mentioned
provision a divine law.

The Ordinance fixed a scale of punishments, so as to make it
dear what the most severe sentence was.* This was very important,
in \iew of the system of arbitrary punishments which governed
the ancient law. It is to be noted that torture figured as a pun-
ishment in this enumeration, whereas elsewhere it was settled
that it was only a method of examination. The real truth of the
matter had to be acknowledged. The benefit which this article
appeared to insure was not, as a matter of fact, very great. This
list of punishments was not complete. Many others were recognized
by judicial practice. A perusal of the old authors makes this
readily apparent.^ They were divided into corporal and afflictive
punishments, punishments merely afflictive, degrading punish-
ments, and slight punishments which were not degrading.

The Ordinance did not require that the judgment recite the
facts found as its basis. The inferior judges, however, " must

> Tit. XXV, Art. 10. « "Proc&s-verbal/* p. 246. * Tit. XXV, Art. 11.

* Art. 13 : ** Next below the punishment of natural death the most severe
are those of torture with reservation of proofs in their entirety, the galleys
for life, perpetual outlawry, torture without reservation of proofs, the galleys
for a term, the lash, the * amende honorable* and temporary outlawry."

*See especially the enumeration given by Jousse, "Comment." pp.
20a-21L

237

§3] PROCEDURE IN THE 1600 S AND 1700 S [P ART II

■

state the basis of the condemnation or that of the acquittal.
Thus, whenever that is lacking {i.e. that they do not state the
basis) the Parlement or other court annuls the sentence or the
judgment; nevertheless it pronounces what is the same thing as
the sentence. But the Parlements and courts are not bound by
this formality. The decree merely rehearses that the accused is
condemned for the crimes are named in the charge." ^

The old provisions as to the payment of costs were retained. If
there was a civil party to the action, they were borne by him ; if
there was not, by the king or by the seigniors. The accused was
never directly condemned in the costs, although the civil party
had recourse against him ; and when the kmg paid the costs of the
action, a penalty was pronounced against the accused, which consti-
tuted a kind of set-off.

The decrees of condemnation had to be executed on the same day
they were pronounced. Only in the case of women big with child
was the execution delayed until their delivery. The sacrament
must be offered to those sentenced to death.^

If the accusation was found to be baseless, it would seem that
judgment of acquittal should always be pronounced ; but that was
not the case. When condemnation did not take place, three
solutions were possible : acquittal^ putting out of court, and
" further inquiry." Acquittal was the pure and simple rejection
of the accusation, and gave the accused the right to proceed for
damages against the civil party. The "out of court " was a less
complete acquittal: "when the accused is not discharged ac-
quitted, but merely sent out of court, he cannot claim damages, not,
being completely absolved. This kind of judgment leaves the
accused under suspicion ; he escapes through lack of proof." *
This kind of judgment was, however, allowed only in the supreme
courts.* Lastly, the " further inquiry " was merely a provi-
sional acquittal ; " this last appears to be the safest and most
regular of all, as being the most conformable to the spirit of the
Ordinance, and it should take place when there are not enough
proofs to condemn, and still enough to prevent acquittal." ^ It was
either for a time or indefinite : " the * further inquiry ' for a time
is given for crimes which are not absolutely atrocious or the
presumptions of which are slight; it also takes place in all cases
where there is no other party than the king's procurator or that

* Rousseau de Lacombe, "Mat. crim." p. 437.

« Tit. XXV, Arts. 23 and 24. » SerjnUon, "Code crim," p. 409.

* Ibid., "Code crim." p. 1069. » Muyart, "Inst, crim." p. 362.

238

Title I, Ch. II] ORDINANCE OP 1670 [§ 3

of the seigniors, and where it would have been proper to put out
of court, if there has been a civil party . . . the indefinite
'further inquiry,' on the contrary, is only pronounced in
serious cases and where the presumptions are strong. The
effect of this is to cause the accused alwavs to remain * incerti
et dubii status,' and the public prosecutor can, if new proofs
are discovered, again take up the prosecution against him . . .
it is the punishment, not of the crime, but of the presumptions
and of the strong indications, not purged." ^ It seems that
any one once taken in the coils of this procedure must of neces-
sity leave behind him something of his honbr and his liberty.

IX. The Ordinance devoted an entire title (Title XXVI) to
a'pyetds (" appellations"), and here it was apparently generous.
The accused could appeal from all the judge's decisions, not merely
from the judgments on the merits, but also from the preliminary
and interlocutory judgments of examination.^ In the case of a
condemnation to an afflictive punishment, the appeal was taken
directly before the courts ; in other cases it was taken to the baili-
wicks or to the courts " at the choice and option of the accused."
For certain very serious condemnations to corporal punishments,
the galleys, perpetual outlawry, the " amende honorable," the
appeal was a matter of right and the cause was necessarily brought
before the courts.*

The appeal might offer some resource to the accused. The
procedure was not necessarily secret nor the aid of counsel abso-
lutely forbidden. It appears, at least before the Ordinance of
1670, that one distinction must be made. If a sentence entailing
afflictive punishment or torture was involved, the action on appeal
was continued in the same forms as in the first instance and with-
out counsels' speeches. The other appeals, on the contrary, and
especially those from the decisions of examination, were judged
^^ the same form as the civil appeals ; * if the appellant chose
the oral procedure, the " oral appeal," ^ instead of the written
P^cedure, as he was entitled to do, they were judged in court and
wpon counsels' speeches. The Ordinance of 1670 ratified this
practice. Article 2 of Title XXVI declares, in effect, " that appeals
I^^ permission to inform, decrees, and all other examinations
.^" be brought in the hearing of our courts and judges." But
^*s sought to restrict this provision, which had only been pre-

\MuyaTU "Inst, crim." p. 363. * Tit. XXVI, Art. 1.
J yit. XXVI. Art. 6. * ^Pratique de Boyer," pp. 117. 119.

^6id., pp 220, 221.

239

§ 3] PBOCEDURE IN THE 1600 S AND 1700 S [Pabt II

scribed to accelerate the judgment of appeals upon the measures
of examination. '' The appeals from judgments of examination,
or preliminary judgments," says Muyart de Vouglans, " should
be brought before the courts and judges at public hearing. Con-
sequently, the appeal from interlocutory judgments, which are not
mentioned in this article, should, like that from final judgments,
be judged in the chamber with closed doors and be subject to
judges' fees, in the same way as those in written actions." ^ This
power was, moreover, rendered almost illusory by the article of
the Ordinance which provided that " no appeal can prevent or
retard the execution of the decrees, the examination, and the
judgment." ^ If the action was judged with sufficient celerity on
the merits, the incidental appeal was judged at the same time and
in the same form as the appeal upon flie merits.^ Here, however,
one door was open to the defense. It was possible to plead his
cause, not upon the merits, but upon an incident ; only, he must
not delay, and credit and money were necessary for this. " In
the lower criminal courts, and in the debates created by various
incidents relative to appeals and certain acts of examination, the
counsel's speech will, erelong, be admitted. President S%uier also
remarked that the Toumelle has granted hearing ' subsequently and
for a very long time.* The *feuillesd'audience' prove this custom."*
The only safeguard which the accused foimd in the procedure
of appeal from final judgments in the actions sent to the criminal
side was the higher standing of the magistrates. There was no
real argument. Attomey-Greneral Siguier is compelled to ac-
knowledge " that the Ordinance limits almost all the appeal pro-
cedure to interrogating the accused upon the prisoner's seat or
behind the bar. " * — " This interrogation in the court is the time

» "Inst, crim." p. 832. » Tit. XXVI, Art. 3.

* Serptllon, "Code crim." p. 1141: "This article does not indicate
that the appeals which it mentions shall be adjudged at the hearing ; it
only provides that they may be brought there ; this leaves the judge at
liberty, when a final judgment has intervened in the court of first instance
after the appeal, to judge by writing in case of appeal. It is proper then
to decide not only upon the examination, but also upon the appeal from
the final judgment rendered, on a consideration of the documents. Al-
though that rule is not observed in the jurisdiction of the Parlement of
Paris, we in Burgundy are accustomed to follow it."

* "Notice sur les archives du Parlement de Paris," by A. Grun, in
BoutariCt "Actes du Pariement," vol. I, p. 227. — There was, however,
a tendency to restore the inferior criminal courts to the purely written
procedure: "In Burgundy, minor crimes are often tried by written pro-
ceedings" {Serpillon, p. 977). We note, conversely, that there was still
trial in court and pleadings when a monitory was issued and an objection
was lodged to its publication.

* !'R6quisitoire cle 1786," p. 157.

240

Title I, Ch. II] ORDINANCE OF 1670 [§ 3

for the accused to allege his complaints against the sentence,
and consequently his justification. This is the reason that the
dause, ' Heard the accused as to his reasons for app)eal and crime
imputed to him ' is always put into the decrees." ^ In this re-
spect, most of all, the reporting judge was all-powerful. It must
not be forgotten, besides, that those accused .of " pr6v6tal " and
presidial crimes were tried in the last resort by the provost
marshals or the presidials.

The prosecution, on its side, could appeal. " The king's pro-
curators or procurators-fiscal may appeal * a minima ' from sen-
tences which they do not consider to be in proportion to the kind
and seriousness of the crimes, and in that respect do not con-
form to their motions." * The civil party could also appeal " on
account of an inadequate award of civil reparation, civil interests,
or damages.' ' In those cases where the appeal was not a matter
of right the different parties could make it, so long as the action
had not imdergone limitation, but waiver of this right and ac-
quiescence in the judgment was allowed.

The appeal was, in general, suspensive (we refer to the appeal
lodged, not to the period granted to make it). If a sentence of
condemnation was involved, the execution of the punishments
was suspended; but pecuniary punishments were executed pro-
visionally, provided they did not exceed a certain amount.^ Where
decisions of examination were involved, on the other hand, the
appeal was not suspensive ; the only exception was when the exe-
cution of the decree would have caused irreparable damage, as
in the case of sentences to torture. The custom of " decrees for-
bidding the continuation of the examination " was not totally
abrogated ; but it was restricted.* As to judgments of acquittal,
in the case of appeal by the public prosecutor, the accused must
remain in prison, and if '' the appeal ' a minima ' has not been
lodged until after the prisoner shall have been released and freed
from imprisonment at the time of the pronouncing of the judgment,
the prisoner shall be bound to be in readiness at the time of
the judgment of the action." ^ If the civil party alone had
appealed, the appeal proceeded as in a civil action. In regard
to details, the Ordinance minutely regulated the procedure as
to the appeal; it also restricted the right of evocation of the
courts.*

' " Rfiquisitoire de 1786," p. 159.

* Rousseau de Lctcombe, **Mati6res crim." p. 481.

* Tit. XXV, Art. 6. * Tit. XXVI, Art. 4.

* Rousseau de Lacombe, "Mat. crim." p. 480. • Tit. XXVI, Art. 5.

241

5 3] PROCEDURE IN THE 1600 S AND 1700 S [Part II

X. A final recourse might be available to the condemned person,
but it was not mentioned in the Ordinance, for the reason which
we shall state. This was the recourse to the king's council, the
application for a writ of error. The judgments of the supreme
courts were final and, on principle, could not be attacked. They
might, however, be annulled, thanks to a theory which plays a great
part in ancient law, and of which we shall have to speak very soon,
that of justice reserved. All justice resided in the king and ema-
nated from him. In delegating its exercise to his oflScers, he none
the less retained the plenitude of it within himself, and could
quash decisions, including those of the supreme courts.^ But the
appeal could only be based on a violation of the law. " It is
equally permissible to claim the quashing of a judgment when it
has been rendered contrary to the provisions of the Ordinances
and the customary law. The reason of this is that the supreme
courts are no less under the obligation to observe the laws than
the inferior judges." ^ Attorney-General Siguier, in one of his
addresses to the court, which we have quoted several times, ex-
plains the doctrine at length. " The legislature has not forgotten
that the dignity of the magistracy does not shield it from the de-
ceptions and weaknesses common to human nature. It has
recognized, probably by personal experience, that to err is human,
and that even the most careful of men may make mistakes, without
being subject to the accusation of bias or betrayal of his trust.
The law, the guaranty of the rules made by itself, jealous, at the
same time, of the forms which it has sanctioned, and in which alone
it recognizes its work, has, from an excess of precaution, thought
fit to allow, after all the stages of jurisdiction have been exhausted,
recourse still to the Sovereign himself, in cases where judgment
has been rendered contrary to the provision of the Ordinances,
and in all those where the prescribed forms have not been exactly
observed. Every condemned man has thus a way of escape from
the condemnation." ' The application was brought before the privy
council " consisting of the Chancellor, four secretaries of State,
State councillors, and masters of requests, who serve in it by rota-
tion . . . the masters of requests report the matters to the privy

^ Before the theory of appeal to the court of cassation took shape, there
existed another metnod or attacking the decrees of the supreme courts,
namely, the assignments of errors which, moreover, lasted for a long time
concurrently with the recourse to the court of cassation, and which the
Ordinance of 1667 abrog^ated. See Guyot, ** Repertoire,'! under ** Cassa-
tion."

* Ouyotj "Repertoire," see "Cassation.**

» " R6quisitoire de 1786, ** p. 9.

242

Title I, Ch. II] OBDINANCE OF 1670 [§ 3

council." ^ Refusal of the application followed, or quashing and
remand to a new jurisdiction, according to the particular case.
The procedure was settled in a definite fashion by the regulation
of the Council of 28th June, 1738, the provisions of which, as we
know, have partly passed into our modem legislation. In criminal
matters, this regulation required the deposit of a penalty and the
"mise en 6tat," provisions which were adopted by our Code of
Criminal Examination.

This was, to all appearance, a powerful weapon to place in the
hands of the accused. These proceedings, written and bristling
with formalities, were bound to be very often riddled with errors
rendering them null, and memorials could be presented to the king's
council, which were unfailingly published.^ Yet, it amounted to
nothing. The possibility of bringing this recourse was often the
result only of royal favor. In effect, the appeal to quash, when
brought, did not stay the execution of the judgment. In civil
actions, it did not prevent the claim from producing its result,
execution having no irreparable consequences. In criminal pro-
ceedings, the hand of the executioner had often intervened before
it had been possible to reach the king's coimcil. An additional
favor of His Majesty was necessary before a quashing was
possible, in the shape of an order from the sovereign staying the
execution. " In civil actions, the judgment which is attacked is
executed all the same ; but in criminal matters, the extraordinary
remedy of appeal to the sovereign should be preceded by a sus-
pension of execution of the judgment, because it is not in the power
of the magistrates to suspend the condemnation which they have
pronounced." * This saving order intervened frequently. The
last years of the absolute monarchy are not alone in offering fre-
9^€nt examples of it.* In order to obtain it, influential entreaties
^^e necessary, or some happy chance, such as the passage of some

Ouyotf "Rupert.," aee "Conseil." He remarks that "no petition
^JI'J^sIi can be brought before the council until it has been first comma ni-
?(^ t© the commissioners generally appointed for the investigation of
^ in cassation."

* G%iyo(, "Rupert.," under "Cassation." "No request may be dis-
i«X.iK\/ea, nor consultation nor memorial printed relative to claims in cassa-
, ^, before these claims have been ordered to be communicated. This is
Wy advocates in the Council are forbidden to sign writings of this kind.
yfjne parties or their counsel can only distribute among commissioners or
^tber judges their pleadings in manuscript."

^Siguier, " R^quisitoire, " cited pp. 9, 10.

< See, for instance, "CorrespondaBce administrative sous Louis XIV,*'
vol. II, p. 184, dealing with sorcerers condemned to be burned aUve ; the
courier arrives on the very day appointed for the execution; p. 190
deals with the case of a woman who was hanged and survived ; cf. p. 206.

243

§3] PROCEDURE IN THE 1600 S AND 1700 S [Part II

great personage through the province. Frequently, the messenger
who bore the order did not, as in the old tales, arrive until the
scaffold was already prepared.^ The application for a writ of
error was the only method of extraordinary recourse available
against criminal judgments in the last resort. They could not,
in effect, be attacked by the bill of re\iew.^

XL The procedure by contumacy which the Ordinance contains
is that of the prior law, simplified and stated precisely. If it was
found impossible to execute the warrant for the arrest of the ac-
cused, search for his person and an inventory of his property
might be made. Then came a subpoena at a fortnight's notice,
and a summons at a week's, by a single public proclamation ; any
other delay was forbidden.* Next, a judgment intervened upon the
motions of the public prosecutor, ordering the confirmation of
the witnesses, which was equivalent to confrontation. Finally,
" the same judgment shall declare the contumax properly examined,
make the award, and contain the condemnation of the accused."

The essentially revocable nature of the judgment of contumacy
was clearly shown by the prohitition to insert the clause " If taken
and apprehended can be." Instead of real execution, that being
impossible, an execution in effigy was organized for capital pun-
ishment, for some other punishments posting up upon a list
in a public place, or still others the service of the judgment at the
accused's residence. This was a matter of great importance; it
made the periods begin to run, at the expiration of which serious
forfeitures were incurred.

At whatever period the condemned person might present himself,

' This is what we read in a Memorial which we shall examine later ;
**Come to your senses," the abb^ said to him, "all is not lost ; try to tell
your story; the keeper of the seals is here;" [which was the case], "I
shall have him present a request by a person having due credit at the

French court The wisdom of the legislature, and the vigilance of

the worthy chief justice sent to M. the Marquis of Belboeuf, procurator

feneral to the Parlement of Rouen, the order to stay the execution. . . .
t was time, for the orders were given and the execution fixed for the next
day" (M6moire de Lecauchois, pp. 7, 8, 11).

* The contrary would seem to result from certain testimonies of our old
jurisconsults; see Muyart de Vouglana, "Institutes," p. 368. But that
should be understood only in the case where the action follows the "ordi-
nary " form, that of civil actions. Jousse explains it very well : "One can
also appeal by bill of review against the decrees and judgments in the last
resort rendered in criminal matters, although final, when they have been
rendered in public hearing, and generally against all those of examination"
(" Commentaire sm* TOrdonnance," p. 329). — Guyot, "Rupert." Voce
** Revision": "Letters of revision are in criminal matters very nearly
what bills of review are in civil matters." C/. Dupaty, "Moyens de
droit," p. 67.

» Tit. XVII, Arts. 7-10.

244

Title I, Ch. II] ORDINANCE OF 1670 [§ 4

as long as the action was not prescribed, the judgment by contu-
macy dropped as a matter of law ; ^ but at the end of a year or of
five years certain effects remained. At the end of a year, the
accrued profits on the personal property of the contumax and the
purchase price arising from the sale of his movables were finally
lost to him ; at the end of five years, "the pecuniary condemnations,
penalties, and confiscations, were regarded as awarded after hearing,
and ranked as if ordered by judgment." ^ Civil death was then
incurred in a definite fashion if the punishment carried by the
judgment was of a character to warrant it.

\Mien the contumacy was purged, the confrontation of the wit-
nesses with the accused was proceeded with, notwithstanding that
it had already been declared in a judgment that the confirmation
was equivalent to confrontation.' If, however, the witnesses had
died, or if it was impossible to confront them, their depositions
remained admissible ; . only a confrontation on paper was made,
and the only possible objections to witnesses were those supported
by documentary evidence. If the accused had been captured at
the outset, and had escaped, but only since his interrogation, the
action continued confrontatively, notwithstanding his absence.*

Besides the procedures which we have sketched, which were the
normal ones, the Ordinance described several followed in excep-
tional cases. These were the actions brought against deaf and
dumb persons,^ those brought against communities, — cities,
towns, villages, corporations, and societies ; and, finally, the odioys
prosecutions which the ancient law sometimes directed against
the corpse or the memory of a deceased person.®

§ 4. EeserTed Justice, and Letters from the King. — Such were
the rules of criminal procedure according to the Ordinance of 1670 ;
but certain circumstances might interfere with it or stop its course.

In ancient France it was quite true to say that all justice ema-
nated from the king. Although he had undoubtedly delegated its
exercise to the judicial officers, he could intervene whenever he
chose. This was the theory of reserved justice; and it gave rise
to letters of mercy (" lettres de grfice ") emanating from the king,
a generic term embracing numerous varieties. " Nothing was more
worthy of the good-will of our kings than the reservation they made

> Tit. XVII, Art. 28.

* Down to that time the parties had been entitled to sue forpayment of
their damages, but on giving security (Serpillon, p. S70). This system
was very simple and it <
under the existing law.

on giving security {iserp
was very simple and it obviated many difficulties which present themselves

* Tit. XVII, Art. 10. * Tit. XVIII. Art. 24.

» Tit. XVIII. • Tit. XXII.

245

§ 4] PROCEDURE IN THE 1600 S AND 1700 S [Part II

of this power, at the same time that they intrusted to the magis-
trates the care of rendering justice to their subjects ; it is equivalent
to saying that the power of the latter is, above all, limited to pursue
the crime, to pronounce the punishments and see that they are
executed ; but that the prosecutions, the condemnations, and the
execution cease immediately it pleases the monarch to interpose
his authority and to declare the crime and the accusation to be
extinct." ^ That was not all. The king, as the depository of
omnipotence, could not only stay the course of justice, but could
also supplement his action in a mysterious way by means of " lettres
de cachet." Let us examine these two kinds of letters a little
more minutely.

The term " gr&ce," mercy, or king's pardon, according to Jousse,
is a generic term embracing all the letters emanating directly
from the sovereign power.^ There were numerous kinds of them,
and the Ordinance carefully specified them all, but they all be-
longed to two types. The first of these appeared after a sentence
pronounced, for the purpose of staying its execution. The others,
more forcible, stopped all procedure and even obliterated the crime.
The latter corresponded to what we call to-day an act of amnesty,
with this diflFerence, that they were granted in the interest of a
mere private individual.

The most important of the letters of mercy were those of royal
pardon ("abolition"). "These are they which His Majesty
grants for .private individuals, accused of crimes which, according
to the provision of the laws and ordinances of the kingdom, deserve
capital punishment. They are only granted in rare cases and for
weighty reasons, and are only given out in the office of the great
seal." They usually intervened before the sentence ; however, " as
the king declares that he pardons the crime, no matter how it
happened . . . they could be obtained even before the judgment
of condemnation." * The letters of remission (" lettres de remis-
sion ") were of rather a curious character ; they were granted for
" involuntarv homicides onlv, or those which had been committed
under the necessity of a lawful defense of one's life." What was
the necessity for these letters of remission when la\^^ul self-defense
excluded all culpability ? The reason was that in France, at that
period, " although the crime had been committed for reasonable

1 Afut/ar^ "Inst." p. 103.

* "Comment/* p. 322. They were distinguished from letters of justice
properly so called, like those of appeal, or of bills of review, which were,
so to speak, mere formalities of procedure.

* Muyart, "Inst." p. 110.

246

Title I, Ch. II] ORDINANCE OF 1670 [§ 4

•

cause and under the necessity of lawful self-defense, one could
be punished for homicide in the absence of letters of remission/' ^
For involuntary or accidental homicide, the same thing was allowed.
At bottom this was nothing but a fiscal proceeding. There was
also another kind of letters of remission. This was a reproduction
of letters of royal pardon (" lettres d'abolition ") couched in differ-
ent terms. The letters of pardon (" lettres de pardon ") were
granted for those crimes " which do not involve the punishment
of death, but which, nevertheless, cannot be excused." All these
letters, which arrested the course of justice, constituted one of the
plagues of the Old Regime, and the States-General had often pro-
tested against this abuse ; ^ but it had not been able to obtain any-
thing but the declarations contained in the Ordinances, by which
the king renounced his right of pardon in the more serious cases.
The Ordinance of 1670 contained an enumeration of this class of
crimes.'

The other letters which remain to be mentioned did not inter-

vene until after the condemnation. These were, first of all, the
letters to be at law, " pour ester k droit," which were necessary to
the contumax five years after the execution by effigy, in order to
prevent the confiscation of his property ; then the letters of recall
from banishment of the galleys, " ban de galfires," and the letters
of commviation of punishment, " commutation de peine," similar
to the letters of pardon in force to-day ; the letters of rehabilita-
tion, " rehabilitation," granted for the purpose of reinstating the
condemned in his honor and his property; in them it is always
presumed that he had satisfied the punishment, and paid the
dvil damages ; they are obtained for those who have died as well
as for living persons. " Finally came the letters of rehearing
* lettres de revision,* granted by the king for the reexamination
and new trial of a criminal action, either on account of defects
of nullity in regard to form, with which it may be tainted, or be-
cause of the apparent injustice in substance which it contains.
These perform the same duty in criminal actions as the letters in
the form of a bill of review do in civil actions." *

Although all these letters constituted the exercise of reserved
justice, they were, however, connected with the delegated jurisdic-
tion in so far that they had to be enrolled and ratified, " entlri-

^ Rousseau de Lcuiombe, p. 83 ; cf. Muyart, ''Inst.'* p. 542. This was not

Siiite in accordance with the theory which proposed to class lawful seU-
efense among the justificative facts. See Jousse, p. 495.
»See Picot, I, p. 121 ; II, 191, 555, 556; III, 186; IV, 84.
» Tit. XVI, Art. 4. * Muyart, ."Inst.'' p. 114.

247

§4] PROCEDURE IN THE 1600 S AND 1700 S [Part II

ii6es," by the tribunals ; to wit, by the courts, if gentlemen were
concerned, and by the presidials and bailiwicks, if plebeians were
concerned (Arts. 12 and 13). This ratification was not always
a mere formality. In certain cases, the judges were required to
make certain whether the letters " conform to the charges and
informations," and if there was not agreement between them in
this respect they proceeded with the judgments; "His Royal
Majesty having been deceived, the crime which is then prosecuted
is not the one which His Majesty has pardoned." It was the
same in the case of the letters of royal pardon, remission, and par-
don. If, on the other hand, the crime was heinous, or especially
if it was one of those in regard to which the king had renounced
his right of pardon, the tribunals could present protests, the courts
to the king directly, and the other jurisdictions to the Chancellor.
In the cases of letters of recall from condenmation to the galleys,
commutation of punishment, and rehabilitation, they must be rati-
fied "without inquiring as to whether, they conformed to the
charges and informations, except as regards the right of representa-
tion " ; but as a guaranty of good faith, the decree or judgment
of condenmation had to be attached " under the counter-seal of
these letters." The * Ordinance originated a kind of litigious
procedure for the ratification of the letters, in which the private
prosecutor and the public prosecutor took part. The letters of.
rehearing gave rise to a regular action. It was necessary, in order
to obtain them, to bring an action before the king's council (Arts.
8-10).

The " lettres de cachet " constituted a very much more strenu-
ous act of the royal power. They derived their name from their
form. "This is a letter written by order of the king, counter-
signed by a secretary of State, and sealed with the king's seal." ^
They might contain all sorts of commands, and especially an order
of exile or of imprisonment. " The king being looked upon as the
fountain head of all justice, has the peculiar privilege of being able
to dispose of the liberty and property of citizens without trial, at
his own free will." ^ And it must be understood that it was not
a matter of addressing these letters to courts of justice ; we are
here in the domain of the king's good pleasure. " This description
of letter is carried to its destination by some police ofiicer; . . .
the person who is commissioned to deliver the letter makes a kind

^ Guyotf "Rupert." voce **Lettre,de cachet." See Mirabeau, **Des
lettres de cachet et des prisons d'Etat." A work composed in 1778,
Hamburg 1782 (all the first part).

* Lahoidayey ** Revue des Cours litt^raires," year 1868, p. 9.

248

Title I, Ch. II] ORDINANCE OF 1670 [§ 4

of official report as to the execution of his trust/* ^ We are aware
of the use to which royalty put this lamentable expedient. The
criminal laws were silent on the point. A thing which is essentially
arbitrary is not a subject for regulation. Protests were, however,
often raised, and sometimes from high places. Malesherbes, es-
pecially, speaking for the Court of Accounts, once presented
to Louis XV a protest of great force ; ^ and the Parlement, in the
strifes which disquieted the reign of that king and which re-
cent researches have laid bare, come to the point of disputing
the "lettres de cachet." In 1753 (April), while speaking of cer-
tain protests, the lawyer Barbier thus expresses himself : " Particu-
lar mention is made of the article regarding * lettres de cachet.'
This article goes the length of impugning the authority of all the
ministers, and, besides, also attacks the king personally, as if it
presumed that he would sign ' lettres de cachet ' without knowing
what he was doing, or that the ministers would have it in their
power to issue them without consulting the king." ^ He says
again, the same year : " The protest of the Parlement of Rouen
has not yet been -printed, but the Jansenists have spread the
reasons for this protest through Paris. The reasons given cannot
be the true ones, seeing that it openly attacks the sovereign au-
thority. It is expressly said that the king is not entitled to make
use of * lettres de cachet ' except in regard to his ministers and
household oflBcers, but not against any private subject; that if
such an one is guilty or suspected of being guilty in any matter,
the king should leave him to justice to be tried by the courts and
according to law.'* *

Another manifestation of the sovereign power was the appoint-
ment by the king of conmiissaries charged with the trial of
criminal actions, or the evocations which he made of them to his
council. " In France a distinction is made between commissaries
appointed by the king and those appointed by the courts and
other judges. . . . The general commission is granted by letters
from the chancellor's oflBce and only the king can grant it. The
king alone can grant extraordinary commissions, and these com-
missions must contain the extent and limits of the authority
granted to the commissaries. Any description of private individual
can be selected by the sovereign either to judge or to reverse. . . .
The commissaries so appointed should publish their letters of com-

* Guyoi, loc, cit. .

*See Laboulaye, " Revue des Cours litt^raires," 1864, p. 643.

» ."Journal," VI, p. 368. * !' Journal," V, p. 415.

249

§ 4] PROCEDURE IN THE 1600 S AND 1700 S [Pabt II

mission at the place where they intend to use them, especially
when it is a question of doing some act of justice or of severity.
If they do not do so, one may refuse to obey them. In the exami-
nation and judgment of the matters in regard to which they have
been appointed, they are bound to act in conformity with the laws
and Ordinances of the kingdom in the same mianner as other judges.
No appeal is allowed from a judgment of commissaries appointed
by the king unless they have exceeded the limits of their commis-
sion. . . . When they are appointed for the trial of any criminal
matter they may set aside their procedure if it is defective and order
its recommencement. Extraordinary commissions, moreover, are
considered a dangerous expedient. For that reason they are not
readily permitted by the Parlements." ^ We know of what
abuses royalty sometimes made this institution the medium, and
the States-General frequently protested against it.

* Guyot, "Rupert.*.* voce .''Commissaires.'*

250

Title I, Ch. Ill] THEORY OF PROOF [§ 1

Chapter III
THEORY OF PROOF

§ 1. Proof 8 under the Customary Law. — The criminal procedure
which has been the subject of our study, that terrible mechanism
which was gradually organized until it reached its utmost tension,
in the Chxfinance of 1670, must, in order to be properly understood,
be correlated with the theory of proof which was formulated during
the same period. This theory is the system known in the history
of law as that of legal proofs. Its chief essential is that, before
the judge can condenm, he must bring together certain predeter-
mined proofs; but, on the other hand, confronted with these
proofs, he must, of necessity, condemn ; in either case, his personal
opinion goes for nothing. The leading maxim of the ancient law in
this respect is that judgment must be rendered '' secundum allegata
et probata.^' ^ The judge may be likened to a harpsichord, re-
sponsive according to the particular keys which are struck. This
tyranny of proof was invoked as a necessary counterbalance to the
inquisitorial and secret character of the procedure, and it would
appear as though such proof, "clearer than the sim at noonday,*'
was required in the interests of the defense. But, on the other
hand, the theory of legal proofs boimd still more firmly the fetters
of the criminal procedure by rendering the conviction of the guilty
person more difficult to obtain ; the double movement led inevi-
tably in the same direction.

The system was of gradual growth. Its primitive elements
were found by the bailiffs and provosts in the texts of the Roman
law ; but it was in existence in all its power at the time when the

^ Laysd^ "Inst, cout." Title od Judgments, rule 11. — "Neo presu-
mant judicee judicare secimdum eorum conscientias, ut faciunt Veneti juris
et jiiBtiti» ignari, sed solum secuDdum leges et jura et probationes sibi
faotas, licet aliud viderunt ooulata fide, vel habeant in conscientia sua
quantiun sit probatum, nisi eis esset Dotum et judici." Constantin,
f Ck>mment. de TOrd. de 1539," p. 238. — " It is not enough that the judge
is as thoroughly convinced as any reasonable man could Be by a collection
of presumptions and facts leading to presumptions. This is a most er-
roneous way of judging, and is really nothing but the expression of a more
or less b€ts^ opmion." Paullain du Pare, ''Principes du droit frauQais,"
vol. XI, p. 112.

251

§ 1] PROCEDURE IN THE 1600 8 AND 1700 S [Pabt II

jurists took the place of the " men judgers," in the feudal courts.
When a body of permanent magistrates has for a long period had
the sole administration of the criminal law, the slow formation of a
system of legal proof is inevitable ; and on the improbable assump-
tion of the disappearance of the jury from our system of laws,
we might expect to witness the revival of this subtilty and casu-
istry, at present so remote.

The Ordinance of 1670 did not expressly state these minute
and complex rules ; but it took them for granted. Such a state-
ment would have been inappropriate in a legislative statute ; but
notwithstanding the fact that they are only to be found in the
books on doctrine and judicial practice, these rules had none the
less the authority of regular laws. We shall briefly inquire into
the introduction of these principles into our law, explain the
theory as it developed in the 1600 s and the 1700 s, and show
how it harmonized with the forms of the procedure.

(l) Although, in the feudal procedure, the proofs were of a
rude nature — often rather irrational — their * appreciation was
easy ; the judge, a mere spectator, had, as a general rule, only to
establish one material fact. The confession was the most com-
plete proof, even obviating the necessity for any further pro-
cedure ; but neither force nor subterfuge was employed to obtain
it. This feature the English procedure still retains. If the ac-
cused pleaded not guilty, recourse was had either to the judicial
duel or to witnesses. In the former case, victory or defeat in the
combat dispelled all doubt. In the latter, the testimony orig-
inally consisted of a set formula ; there was no weighing of the
evidence by the judge. Nothing could be simpler than such
methods of proof, and their very simplicity made them acceptable
to the uncultured intellects of the time, puzzled by the problem of
proving and placing beyond all doubt a thing denied. The list
of proofs did not, however, end with these. Presumptions were
also recognized. These were, however, equally simple, rude, and,
so to speak, formal. Thus, it was held that an accused prisoner
who made his escape thereby acknowledged his guilt. " WTien
any one imprisoned on suspicion of a crime makes his escape a
presumption is raised so clear as to be equivalent to proof of the
fact; for his flight raises such a strong presumption that he did
not dare to stand law that he is punished for the crime if he is
recaptured." ^ — " Those arrested, charged with or suspected of
any offense, who make their escape or break bounds, and are seized

1 Beaumanoir, XXXIX, 15 (Salmon, 1160) ; XXX, 13 (Salmon, 836).

252

Title I, Ch. Ill] THEORY OP PROOF [§ 1

beyond their bounds, are convicted of the oflFense for which they
were arrested and punished according to the offense/' ^ In the
same way, repeated defaults, leading to outlawry, in the procedure
for contumacy, are considered bj^ the custumal law-writers as
equivalent to an irrebuttable presumption of giiilt.^

In the special proceedings which took place when the person
under suspicion accepted the inquest by the country, the judge
doubtless had a freer appreciation and a more delicate task ; but
we have hardly any information about this form of judgment,
which was destined to disappear from our law at an early date.

When the Ordinance of 1260 suppressed the formal testimony
produced in open court, the theory of proof was thereby altered.
The judge had to weigh the deposition ; but the old principle was
retained, whereby two eye-witnesses agreeing upon the facts were
required for a condemnation. The " aprise " in particular, aug-
menting, as it did, the powers of the judge, exercised a great in-
fluence upon the development of the theory of proof .^ From the
very outset there was an evident disposition to be very exacting
as to the proof, but at the same time judicial practice strove to
devise means of finding combinations of presumptive evidence
which had been thus far overlooked. Presumptions were made
the chief studv.

Some of the ancient presumptions and the ancient proofs lost
their force. This happened very soon in regard to the confession ;
alone and unsupported, it no longer constituted a complete proof.
This was because it was not free and spontaneous, but extorted
by skilful questionings, and it is a rule which allows of hardly any
exceptions in the history of law that the confession does not con-
stitute a complete proof against the guilty party except where it
is absolutely voluntary. It would even seem, according to one
authority, that at a certain period both confession and testi-
mony were required jointly for a condemnation, but the passage
in the " Livre des Droiz," making this assertion, should not be
considered as going farther than to demonstrate the decreasing
force of the confession among the methods of proof.^ The pre-

> "livre des Droiz," §333.

» Beaumanoir, XXXIX, 16 (Salmon, 1161) ; XXX, 13 (Salmon, 836).
** livre des Droiz, " § 331 . This is ths period when con tumacy resulted in a
condemnation for the offense and no longer in mere outlawry.

*8ee Beaumanoir, XXXIX, 12, 13. 14 (Salmon, 1157, 1158, 1159).

* { 644 : "The law is that if a man is condemned to death by any court
of law, he, or some of his lineage on his behalf, can appeal to the supreme
judge. . . . And the law provides that if he who is condemned is not
convicted by confession and witnesses his sentence is null and void ; and if
there should have been confession mthout witnesses or witnesses without con-

253

§ 1] PBOCEDUBE IN THE 1600 S AND 1700 8 [Part II

sumption of guilt flowing from contumacy also diminished, and
it was in course of time held that the judge should not, in that
case, necessarily pass sentence. The flight of the prisoner became
no longer an insuperable imputation against him.

On the other hand, however, new presumptions, firmer and
more subtle than the old, were introduced. Very few of these,
it is true, were of such a nature as to ground a condemnation
upon. Beaumanoir divides them into two classes, as follows:
" Some can make the fact so clear that it is proven by the pre-
sumptions, and the others are so doubtful that they do not of them-
selves prove the offense. *' * Among the first he specifies several
the force of which never diminished, — that, for instance, which
consists, in the case of manslaughter, in the fact that two witnesses
have seen the accused in flight holding in his hand a naked and
bloody sword.- But others grew weaker, such as that which con-
sists in the fact that threats were uttered before the crime. The
utterer of the threats, when he denied them, was regarded as the
perpetrator of the crime, " when a threat is made and, after the
threat, the thing is done of which the threat gave promise." * Very
soon this was nothing more than a '' proximate presumption."
But the number of presumptions strong enough to cause the con-
demnation of a man was exceeding limited, and whatever the
number of other presumptions might be, they could not effect
a condemnation. " No one should be punished on account of
presumption alone, unless the presumption is very plain, as we
have said before, although there may be many probable presump-
tions against the prisoner." *

fessiant and both of these should not have concurred^ the sentence shall be
unlawful."

1 Beaumanoir, XXXIX, 11 (Salmon, 1156).

* " They saw Jehan leave the throng carrying a naked and bloody knife,
and heard the man who was slain say : *He has killed me.* And in this
'aprise' it was impossible to prove this notorious crime except by pre-
sumption, for no one saw the blow dealt ; nevertheless the said Jehan was
sentenced and executed on that presumption." XXXIX, 12 (Salmon,
1167).

* Beaumanoir, XXXIX, 13, 14 (Salmon, 1158, 1159). — "Ancienne
coutume de Bourgogne," Art. 53 : "Also, if I threaten any one personally
or as to his property and subsequently injury and damage happen to him,
and I deny threatening him and he proves it, the judge shall have and
hold as proven what has been done to the threatened person; and if I
confess to having threatened him, and swear that no injury or damage has
happened to him by me or mine, although I have threatened him, such
threats will not avail him ; and if after I have so sworn he ofifers to prove
that injury and damage has happened to him through the said threats, he
shall not prove it by witnesses nor by inquest but by wager of battle."
Ch, Giraud, "Essai sur Thistoire du droit fran^^is," II, p. 278.

* Ibid., XXXIX, 18 (Sahnon, 1162).

254

TiTLB I, Ch. Ill] THEORY OF PBOOF [§ 1

Such a theory, marked probably by exaggerated scruples,
could not have been other than worthy of approbation had it
not been that the judge, finding his way barred by these accu-
mulated obstacles, hit upon a means of surmounting them. This
means, as we have already said, was torture. When there was
but a single eye-witness testifying against the accused, or when
a verj' strong, but not, according to the law, irrebuttable presump-
tion existed, the court, placed as it was between the two alterna-
tives, either to allow a man whom it thought guilty to escape, or
to complete its proof at all hazards, did not hesitate to have re-
course to torture.

The jurists thought to find, and, indeed, did, to a considerable
extent find, these new principles in the texts of the Digest and the
Code. At Rome, as long as the jurors of the " qusestiones
perpetuce " continued to be the judges, no very precise
theorj' of proof was developed. The rhetoricians had merely
distinguished a certain number of rules for the facilitation
of the drawing up of pleadings and the greater assurance
of oratorical success. But when the power of judging passed
into the hands of permanent magistrates, a theory of legal
proofs began to see the light of day, along with the principle of
arbitrary punishments and the resource of appeal. This result
was due to judicial practice, and the jurisconsults of the period
contributed exclusively to the formation of the theory although
it never attained perfect development.^ It was very soon agreed
that the confession should not constitute a complete proof unless
it was supported by corroborative evidence.^ The causes which
could result in the rejection of evidence were determined, thus
limiting the judge's unrestricted rating of the evidence ; we even
find traces of a classification of presumptions and the rudiments
of a doctrine of written proof. The use of torture is also governed
by settled rules, showing, on the one hand, that it is a resource
which should only be employed on the failure of all others, and on
the other hand, that forcible presumptions must be found before
it is allowed.'

These are the principles which the authors of the 1400 s and the
1500s set out in detail and in so doing developed and expanded;
they constructed from them a theory which was certainly no more
than " in gremio " in the Roman laws. This theory, for which

^Geib, "Qeschichte der Rom. Criminalprozess bis auf Justinian,**
p. 611 el seq. •

'Book 1, §§ 17, 27, D. 48, 18.

•Book 8, pr. Book 1, § 1. Book 18, § 2. Book 20, D. 48, IS.

255

§ 1] PROCEDURE IN THE 1600 S AND 1700 S [Part II

thanks are due chiefly to the Italian criminal law-writers, im-
posed itself wherever the inquisitorial procedure was introduced.
We find certain traces of it in Bouteiller, and the Ordinance of
1498 owes to it, among other provisions, one which is very re-
markable. It declares, as we have seen, that if no result has
been attainable by the ** extraordinary," or criminal proceedings,
the parties must be sent to the " ordinary " action, that is, to
civil forms of action ; * this is explicable if we consider that
quite special proofs were necessary before pronouncing capital
punishment, the normal aim and end of criminal proceedings.

(2) The system of legal proofs was thoroughly settled in the
1500s and the 1600s. It continued in vogue as long as the
criminal procedure of the Ordinance lasted; that is to say,
down to 1789. We shall attempt to describe it briefly, taking
our information principally from Muyart de Vouglans, who has
devoted Part VI of his " Institutes du droit criminel " to this
subject, summing up and coordinating the theories of the law-
doctors, or at least of those who had accepted French judicial
practice.

Four methods of proof were recognized : witnesses, the confes-
sion, or vocal proof, written documents, or instrumental proof,
and presumptions, or conjectural proof.^ These are, to be sure,
found in all systems of law ; but these various modes might afford
many combinations peculiar to the present system. What was
wanted was a complete proof, sufficient to warrant a capital sen-
tence. That was the h^'pothesis the criminal law-writers always
put to themselves, capital crimes constituting, in their opinion,
the very foundation of criminal law.^ The rigor of the rules as
to proof was not retained in regard to less grave accusations.*

* See above, p. 146 et seq.

* This is impbedljr recognized in the Ordinance, Title XXV, Art. 5 : "Ac-
tions can go to examination and judgment although there is no information,
if there is otherwise sufficient proof by the interrogations of the accused
or by authenticated documents or documents acknowledged bv the ac-
cused, or other presumptions and circumstances of the action.'

' "There being no law authorizing the punishment of innocent persons,
a complete proof is essential before capital punishment can be pronounced,
no matter what the crime may be, and such proof can be jjroduced only
according to the forms prescribed by the law. . . . Failing that, any
judgment of condemnation is at least rash ; and it may, in a sense, be said
that such a judgment is unjust, even when the accused is really guilty."
Poullain du Pare, vol. XI, pp. 112, 113.

* Poutlain du Pare, vol. XI, p. 116: "In non-capital accusations, it is
evident that such strong proofs are not required. . . . But when there
are only strong presumptive facts, their force can only ground pecimiary
punishments, unless the judge adopts the alternative of sending the case
*quousque,' that is to say, for 'further inquiry."*

256

Title I, Ch. Ill] THEORY OF PBOOF [§ 1

Our ancient authors proceeded, in the most logical way, to teach
that two things must be proved to warrant the conviction of the
accused person : 1st, that a crime had been committed ; 2d, that
the accused was the perpetrator of it.

Proof of the first point meant the establishment of the ** corpus
delicti " : " De re priusquam de reo inquirendum." ^ This pre-
liminary proof was already required by the old " coutumal " laws ;
but it was then of a rude and formal character ; it was necessary
to exhibit to the judge the wound or the corpse itself. " Be it
known that in such proceedings, if the blood and the misdeed
are not exhibited to the court and sufficiently ascertained, battle
ought not to be waged in cases entailing death or mutilation." ^
In case of necessity, the judges visited the scene of the crime, in
order to proceed " 4 la vue," — by what they saw, — which they
immediately put on record. " In Saint Louis's time, assault could
only be proved by the judges' inspection of the blood or the wound,
judicially seen." ^ But at an early date this rude method gave
place to inspection by professional people. In the " Registre de
Saint-Martin," the " mire jur6 " (sworn doctor) and the " ma-
trone jurfe " (sworn matron) play an important part and make
numerous reports.

Two kinds of offenses were distinguished in regard to the es-
tablishment of the " corpus delicti." The first were those which
leave physical traces, " delicta facti permanentis " ; homicide,
arson, and robbery, for instance. In such cases the physical fact
of the doing of the deed could be ascertained and the establish-
ment of the traces that it had left became the judge's first duty.
This was accomplished by means of the minutes of the magis-
trate, who proceeded to the spot ; or, if the facts in question re-
quired technical knowledge, by means of reports by physicians,
surgeons, and experts. No other proof was, as a rule, allowed,*

» Muyart de Vouglans, "Inst." p. 308.

' ** Qrand Coutumier de Normandie," ch. LXXV. Compare the language
of the eomplaiiit in the **Livre de Jostice et de Plet/' XIX, 9, § 1 : **And
saw the wrong openly." — Ibid., XIX, 2, § 2: "And if any one accuse
another of the murder of a man who is not found, it is asked what the law
says of that ? The reply is that there is no cause of action, nobody having
been seen murdered, unless the murder has been actually witnessed, or
the body of the slain man has been actually seen. It may be properly
said that the murder of a man who has been thrown into the Loire and is
not found has been witnessed.

' Dupaty, ''Moyens de droit pour trois hommes condamn^s I, la roue,*'
1786, p. 1 17 et seq.

* Muyart de Vouglans, "Instit." pp. 308, 309: "This proof is so es-
sential, that its place cannot be supplied either by the testimony of wit-
nesses, or by mere presumptions and conjectures, whatever value these
may otherwise have, not even by the accused's confession."

257

§ 1] PROCEDURE IN THE 1600 8 AND 1700 8 [Part II

save in exceptional cases where such action was impossible.^
This matter of minutes and experts' reports had been carefully
regulated by the Ordinance (Tits. IV and V), and, strange to say,
early judicial practice recognized the accused's right to demand
a second inspection and report. " He is entitled to ask permission
to have a second inspection made by other surgeons at his expense,
which he easily obtains on his petition, provided he presents it
within a few days after the first inspection.'* ^ In regard to those
offenses which leave no lasting traces, " delicta facti transeuntes,"
slander, for instance, it was impossible to separate the establish-
ment of the " corpus delicti " from the proof of guilt. In this
case, certain authors, such as Jousse, declared that " the corpus
dfelicti could not be proved at all " ; others, including Muyart
de Vouglans, stated that in such a case " proof of the * corpus
delicti ' cannot be obtained otherwise than by the accused's
confession added to presumptions and conjectures." But, funda-
mentally, these were merely different ways of expressing one and
the same thing.

To establish the second point we have mentioned, namely, the
guilt of the accused, the theory of proofs appeared to its fullest
extent. The whole of the methods of proof, considered in regard to
their value, were divided into three classes, complete proofs, prox-
imate presumptions, and remote presumptions. Each of these
classes comprised totally different methods. Only the complete
proof was sufficient, unsupported, to ground a capital sentence.
" When all the conditions laid down by the law are fulfilled, the
proof is then deemed legal and complete, which is absolutely neces-
sary to effect condenmation to capital punishment.*' ' It could,
however, be obtained, first, by testimony, second, by the produc-
tion of documents, or third, by presumptions. Did the confession
constitute a complete proof ? That was not generally conceded.

* PovUain du Pare, vol. XI, p. 81 : **^It does Dot follow that the crime
ought to go unpunished in every case where it is impossible to establish
the 'corpus delicti.' But the judges should then proceed and judge with
greater circumspection, because it may be that the crime is imaginary, as
turned out in the case- of Pivardi^re and in several ^others." p. 109:
"When the * corpus delicti ' is not found, clear proofs are necessary of suffi-
cient force as to make it possible, in a way, to say that the crime must
have been committed."

* Muyart de Vouglans, **Inst." p. 226. It is true that the first inspec-
tion was often made at the request of the party prosecuting for civil amends
before the judge took cognizance. The accused did not get production of
the judge's minutes. PovUain du Pare, vol. XI, p. 90 : " It is tne invariable
rule in Brittany that the accused shall not be summoned to the judge's
minutes nor to the reports of the experts."

» Ibid,, "Inst, crim." p. 307.

258

TlTLB I, Ch. Ill] THEOBT OF PBOOF [§ 1

First. Testimonial proof was naturally considered the proof
" par excellence " in criminal cases, '' it being impossible to prove
the majority of crimes in any other way ; " but numerous condi-
tions had to be reaUzed before this proof became complete. It was
absolutely necessary that there should be two witnesses testifying
to the same fact ; that was the unquestioned tradition. '* Testis
unus, testis nullus," or as Loysel said, " Voice of one, voice of
none." The testimony of a single witness was not regarded as
being absolutely valueless, but it could not alone be the basis of
a capital sentence ; ^ "it is, generally speaking, certain that dep-
ositions of witnesses turning upon isolated and different facts
can constitute no proof."* It was, besides, necessary that both
witnesses should have been eye-witnesses, — " that they should
have seen the accused conmiitting the crime." Hearsay witnesses
could never furnish a complete proof, whatever might be their
number ; nor those called " testes ex auditu proprio," who testi-
fied to ''having heard the accused's threats and the cries of a
person dying " ; nor those styled " testes ex parte accusati,"
who claimed to have received from the accused the confession of
his crime ; nor " a fortiori " the mere hearsay witnesses, " testes
ex auditu alieno."

That is not all. The witnesses had to make a decided deposi-
tion and give a reason for it. If they expressed themselves in
qualified terms, as '' I beUeve ... if I am not mistaken . . .
it might have been ... if I remember rightly," they were
called " vacillants " and " could not be used in criminal cases,
such evidence not constituting even a presumption." The depo-
sition must always have remained identical in every particular
throughout the three examinations undergone by the witness, in
the information, or preliminary inquiry, the confirmation, and
the confrontation. We know, moreover, that the Ordinance had
taken precautions to insure that at the confrontation at least no
variation should be possible. Lastly, it was essential that the
witnesses should be neither incompetent nor objected to. Although
the iwe of the right of objection had been notably hampered in
the procedure, judicial practice had, by way of counterbalance,
multiplied the causes of objection : affection, fear, mortal enmity^

> A complete proof oould not be drawn from the testimony of two iso^
lated >Rdtnesses, that is, testifying to different facts, unless in the case of
crimes "which are committed by repeated acts, such as incest, adultery,
blasphemy, sodomy, peculation, concussion, usury, and theft." Muyart
de Vouglans.

* Muyart de Vouglans, "Inst, crim." pp. 322, 323.

259

§ 1] PBOCEDUBE IN THE 1600 S AND 1700 S [Pabt II

weakness from age and weakness of intellect, infamy, personal
interest, relationship, and many other causes still, were all
admitted. The list of persons subject to objection given by
Muyart de Vouglans begins with relatives and ends with " paupers
and beggars," whose testimony could be excluded in certain cir-
cumstances. When these two " rarae aves," the perfect witnesses,
were met with, they inevitably entailed condemnation ; the judge
was bound thereby.

Second, Next to the testimonial proof came the written proof,
much rarer in criminal cases — so rare, even, that certain law-
writers maintained that it was an impossibility. Erroneous as this
opinion is, it is comprehensible when we bear in mind that, in
this system, there had to be direct evidence of the perpetration
of the crime.^ On a closer examination it was seen that there
were certain crimes which could hardly be proved except by
writing, " because they consist chiefly in the thought or the in-
tent, such as heresy, confidence, plotting against the prince, usury,
subornation of witnesses ; " and others " where the testimonial
and instrumental proof concur," such as forgery. In order that
the writing, where it was thus admitted, should constitute a
complete proof, it was first of all necessary " that it should be pre-
cise as to the fact of the crime ; that is, in questions of insult,
lewdness, subornation, or conspiracy, it was necessary that the
facts should be expressly mentioned in the very document which
it was proposed to produce against the accused. Consequently,
if it was used only to draw inferences against the accused, it ceased
from that time to be regarded as complete proof, and entered into
the class of conjectural proofs." ^ In the second place, it was
essential that the writing should be authenticated, or, if it was
signed by the accused, that he should acknowledge it. This was
implied by Article 5, Tit. XXIV, of the Ordinance of 1670. A
verification of handwriting could never furnish a complete proof.
" In effect," says Muyart de Vouglans, " in addition to the fact
that the experts always explain themselves in a vague and uncer-

^ Muyart recognized that there are numerous cases where testimonial
evidence entirely excludes instrumental evidence, "as in the case of such
crimes as slander, blasphemy, adultery, rape, or the coinage of false
money." "Inst, crim." p. 327.

^Muyart de Vouglans^ "Inst, crim." p. 330. — "It is essential that
the document should contain and prove in a precise manner the fact in
question, for if the passage does not expressly contain the crime or mis-
demeanor in question, and it is only used to draw inferences and deduc-
tions from, such proof can no longer be called complete documentary
proof; it is merely a conjectural and imperfect proof." Rousseau de,
Lacombej "Mati^res criminelles," p. 371.

260

Title I, Ch. Ill] THBOBY OF PROOF [§ 1

tain manner in such phrases as, ' We believe, we consider,' every-
body knows that their art is, of itself, subject to a multitude of
errors." ^ — "If it is a private writing and requires to be judicially
authenticated to be available against the accused, it is no longer
properly a complete proof, since it is no longer the document which,
by itself, proves the fact ... so that it is nothing but a mere
conjecture and a testimonial proof." ^ These qualifications were
exceedingly reasonable; the art of the handwriting experts was
uncertain, as it may be said to be still. In the draft discussed
among the parlement oflScers and the commissioners in 1670, there
was even an article in the following terms : " No sentence of affic-
tive or degrading pimishment can be based on the deposition of
experts alone, unsupported by other proofs, adminicles, or pre-
sumptions." * It was suppressed, upon the observation of M.
Tidon, that the judges " were only too circumspect in such mat-
ters, without there being any need to tie their hands." * But the
theory' remained, all the same, as it had been. In this system, the
personal writings of the accused, even when he had acknowledged
them, could never constitute full proof against him, for they could
contain nothing more than an extra-judicial confession, and, as
we shall see by and by, the judicial confession itself did not have
that effect.^

Third, Complete proof could also result from presumptions,
on condition, it must be understood, that the fact from which the
inferences were to be drawn had itself to be sufficiently established,
t.e., by two eye-witnesses or by writing. Judicial practice had in
fact kept some of these presumptions incontrovertible, as we have
found them in the very ancient law ; they were called manifest
and necessary presumptions and they were often compared with
the presumptions, " juris et de jure " of the civil law. The fol-
lowing is an example : " When in a case of manslaughter two wit-
nesses not subject to objection testify to having seen the accused,
with a naked and bloody sword in his hand, leaving the place where
soon afterwards the body of the deceased has been found woimded
by a sword blow." ®

* Muyart de Vouglans, "Inst, crim." p. 330.

* Rousseau de Lacombe, "Matidres criminelles/' pp. 371, 372. C/.
Poxdlain du Pare, vol. XI, p. 191 et seq.

» This was Art. 15 of Title VIII. * "Frocks-verbal," p. 99.

^Muyart de Vouglans, "Inst, crim." p. 336. The Ordinance (Tit.
IV, Art. 2 ; Tit. XIV, Art. 10 ; Tit. II, Art. 9) nevertheless provided that
an inventory of the accused's papers should be made.

* Ibid., "Inst, crim." p. 346. Cf, Poullain du Pare, vol. XI, p. 118:
"The comparison of manifest presumptions with the presumption * juris
et de jure does not appear to me to be warranted . . . evidence is very

261

§ 1] PROCEDUBE IN THE 1600 8 AND 1700 S [Pabt II

The authorities were not in agreement as to the value as proof
of the accused's confession made in^ court. Some of the most
celebrated, Jousse, for instance, held to the ancient opinion ac-
cording to which it was the proof " par excellence " and the most
complete ; "of all the proofs which can be had in criminal cases,
the accused's confession is the strongest and most certain ; conse-
quently that proof is sufficient. . . . Such a confession is the most
complete proof that could be wished for." ^ Jousse relied upon
the authority of Bartolus, Paul de Castro, and Julius Clarus. He
declared " that it could never be presumed, without subverting
all the laws of nature, that a man would in cold blood accuse him-
self of a crime which he had not conmiitted." He also cited in
support of his opinion the formalities of the interrogations, so thor-
oughly regulated by the Ordinance^ and asked if so much care
would have been taken to obtain a confession, if it had not had a
decisive value ? * It was in reality these very formalities which
prevented the ascription to the confession of its natural force.
Jousse's opinion therefore remained a solitary one, and this was
what was in general decided. In the case of a crime grave enough
to entail capital or even merely afflictive punishment, the confes-
sion was not sufficient to ground such a sentence : " Nemo auditur
perire volens ; " it was essential that the confession should be
corroborated by urgent presumptions or the deposition of a com-
petent witness. That was Louet's^ opinion, and, later, that of
Domat ^ and of Duplessis.^ The authors of the 1700 s are no less

rarety admitted in rebuttal of the presumption 'juris et de jure,' while in
crimmal cases evidence is admitted in rebuttal of manifest presumptions."
This evidence in rebuttal of which Pouliain du Pare speaks consists, as he
explains, of the justificative facts, lawful self-defense, for instance.

> Jousse, **Comm. sur TOrdonn. de 1670," on Art. 5, Tit. XXV, Nos. 1
and 2.

' Jousse, however, only recognized the confession as a complete proof
when the "'corpus delicti' is indubitable and properly verified by means
of an inspection or an official report of the judge or by the deposition of
witnesses." If, however, the crime was one of those "which could only
be committed in the intention, such as heresy, in feelings not outwardly
manifested ... it being impossible to prove the 'corpus delicti,' the
confession of the accused could not be sufficient to cause his condemna-
tion." Jousse, p. 434. » Letter C, No. 34.

*"Le droit public," Book III, Title I, "Concerning crimes and mis-
demeanors": "Although the accused acknowledges the crime (if it is a
capital ofifense) the production of the evidence is not abandoned ; for it
would be unjust to condemn an innocent person on a false confession."

' "R^ponse de Duplessis & Colbert sur le proc^ de la Voisin" : "The
bare confession by a criminal of his crime cannot effect his condemnation ;
but if, besides his confession, there is a single witness, that is sufficient.
In the same way, if in addition to his confession there is some presumption,
either real or arising from the deposition of even a single witness, tnat is
sufficient for his condenmation.': i'licttres, etc., de Colbert," vol. VI,
App. p. 429.

262

Title I, Ch. Ill] THEORY OF PROOF [§ 1

explicit. " The confession from its nature cannot effect the con-
demnation to capital punishment; for that the concurrence of
several other circumstances are necessary ; ... it must be accom-
panied by several weighty presumptions or the deposition of a
competent witness." ^ — " The free and voluntary confession of
the accused does not constitute a complete proof against him:
' Nemo non auditur perire volens.' " ^ Lastly, Serpillon disputes
Jousse's opinion most respectfully, but at the same time most ener-
getically.^ If, on the contrary, a slight punishment was in ques*-
tion, it was admitted that the sentence could be grounded on the
confession made in court, provided that the " corpus delicti " was
conclusively established : " It is true that there are judgments
which have sentenced the accused upon their confession alone,
but to lighter punishments than the crimes deserved." *

The provisions of the Ordinance of 1670 were, however, per-
fectly in harmony with this theory. Article 5 of Title XXV pro-
vides ** that criminal actions can be examined and judged although
there are no informations, and if there is otherwise sufficient proof
by the interrogations and by documents, either authenticated or
acknowledged by the accused, and by the other presumptions and
circumstances of the action." From this it is evident that to ob-
viate recourse to testimonial evidence the culprit's confession
was not, of itself, sufficient ; it was still necessary to add to that
the written proof or presumptions.^ Article 17 of Title XIV pro-
vides that inmiediately after the appearance of the accused, and
before proceeding further, " the interrogations shall be at once
produced to our procurators or to those of the seigniors, to take law
upon them or to make such motions as to them appear advisable ; "
and the authorities have always understood this provision to mean
that if a crime meriting a severe punishment was in question, the
motion, notwithstanding the confession, should not be for an im-
mediate sentence. " If the crime should appear to him (the public
prosecutor) to be a serious one, he moves for the criminal ruling
of confirmation and confrontation ; for in this case, even when the
accused should have confessed to all the counts of the accusation
on which he is charged, a full examination under the criminal forms
is none the less necessary." ® Finally, Article 19 of the same

* Muyart de Vouglans, *'Inst. crim." p. 339.

* Rousseau de iMCombe, '*Mati&res criminelles," p. 372.

» **Code criminel," p. 1012. * Serpillon, loc. cit»

***Real presumptions which naturally appear from the thing itself

and do not arise from the testimonial evidence are here spoken of." Du--

plessis (** Lettre & Colbert," above cited).
' Serpillon, upon this article.

263

§ 1] PROCEDURE IN THE 1600 8 AND 1700 8 [Part II

Title XIV is also in perfect harmony with the whole of this theory :
it permits the accused of crime " for which he will not be liable to
affictive punishment " to " take law " on the charges after the in-
terrogation. This power remotely recalls the plea of " guilty "
of the English procedure; it was serviceable to the accused, by
permitting him to avoid the delays of a criminal trial. It is
conceivable that it did not exist unless there was a confession, but
the confession was not enough ; it was still necessary that the crime
should be one not punishable by afflictive punishment; other-
wise the procedure had to be followed through to the end. Al-
though the ancient authorities have sometimes attempted to
explain this rule in other ways, it is quite conceivable that
although admitted in serious crimes the confession did not by any
means constitute a complete proof. The importance of the con-
fession was, nevertheless, considerable ; added to what was called
a proximate presumption, it constituted a real and sufficient
proof; and these proximate presumptions were of much more
frequent occurrence than complete proof.

The proximate premcmptions were also called half-proofs. This
term, against which Voltaire's common sense afterwards protested,
was not adopted by all the jurists ; ^ but it was, nevertheless, in
use, and not without reason, considering the system of which it
formed a part. The proximate presumptions could not, by them-
selves, justify a capital sentence of the accused. Some of them
were strong enough, however, to make it seem very difficult to
forbear from inflicting upon the guilty person the chastisement
he deserved. If the voluntary confession had been obtained,
that would have been possible ; in default of a voluntary confes-
sion, a forced confession had to be obtained, and this was done by
means of torture. The principal effect of proximate presumptions
in grave accusations was, therefore, to permit of the administra-
tion of torture. This is declared in the clearest manner in the
1500s, the 1600s, and the 1700s. " \Vhere there shall have
been neither full nor entire proof against the accused, but there
shall have been half-proof of the crime by a witness of notable
standing and not of mean station, testif\'ing to the principal fact,
which witness shall be free from any objection or suspicion what-

* *' Several authors have defined the half-proof as a means of taking
the false for the true." Denisart, ** Half-proof ." — "There is no such thing
as half- proofs ; several of the authorities deprecate this expression. It is
a barbarous and fictitious term ; this is proved by the fact that not a single
text on law mentions it. Half of the truth cannot be discovered ; there is
no such thing as a half-truth . . . half-proofs are as impossible as half-
men." Serpillorit *'Code criminel," p. 1074.

264

Title I, Ch. Ill] THEORY OP PBOOP [§ 1

ever, or where there shall be strong conjectures and presumptions
at least equivalent to the said half-full proof, not avoided or dimin-
ished by the proof which shall have been produced * ex officio *
for the justification of the accused, sufficient for the administra-
tion of torture, (the judge) shall proceed to the judgment of tor-
ture." * — "It is clear that every presumption constitutes a half-
proof which may be sufficient to warrant the administration of
torture." ^ — " There are some crimes of a nature deserving of
capital punishment, and it is in regard to these in particular that
the presumptions may give cause for torture."' So that this
theory, apparently so favorable to the accused, resulted in render-
ing torture almost inevitable ; it became the indispensable corol-
lary of this system of proof.

Another means of arriving at a capital sentence had been to
add the presumptions together , and this was admitted by certain
jurisconsults : " If there were two weighty presumptions, each
proved by two witnesses, they could unquestionably constitute
complete proof, according to their quality . . . i^ these presump-
tions were of such a quality that a natural connection existed be-
tween them, uncontradicted, and they all belonged to the class
of proximate and weighty presumptions, it might be said that
they proved each other, and that the incomplete proofs in regard
to each fact should be cumulated so as to constitute a perfect proof,
which should be sufficient for a condemnation." * But the suf-
ficiency of these combinations was, in general, denied. " The
half-proof is no more conclusive than a half-truth ; and, for the
same reason that two uncertainties cannot make a certainty, two
half-proofs cannot constitute a complete proof." ^

Although the proximate presumptions were not sufficient to
base a capital sentence, they permitted the judge to inflict " cer-
tain afflictive, degrading, or pecuniary punishments," * if he deemed
them strong enough for that purpose. But care was taken to add
that " before imposing a punishment not commensurate with the

» "Pratique de Lizet," 1577, p. 28.

* DuplessiSj "Lettre & Colbert," cited above.

* Muyari de Vouglans, "Inst, crim.** p. 351.

* Duplessis, loc, cit. * Denisarty "Half-proof."

^ Muyart de Vouglans, "Inst, crim." pp. 346, 351. Poullain du Pare
(vol. XI, p. 115) even shows that the judge can in such case sentence to
the galleys for life : "The preparatory torture under reservation of proofs
is more severe than the galleys for life ; and since it can be decreed upon
considerable evidence (although insufficient to base a capital sentence),
it must necessarily follow that the judge can sentence to the galleys, how-
ever atrocious the crime may be, upon considerable evidence, when there
is not enough to warrant a capital sentence. For the same reason, if the
evidence is less considerable, the judge can modify the punishment."

265

{ 1] PROCEDURE IN THE 1600 S AND 17008 [Part II

character of the crime, for the reason that the evidence, although
considerable, was not sufficient to sustain a capital sentence, it was
necessary that the judges should have exhausted all the means
indicated by the Ordinances for the proof and the investigation
of the crime." ^

Attempts were occasionally made to maintain that complete
proof of atrocious crimes was not necessary for the capital sentence :
** In atrocissimis leviores conjecturse sufficiunt et licet judici
jura transgredi." " Such a barbarous and absurd idea," says
Poullain du Pare, " has never been entertained in France. It is
the badge of tyranny and cruel despotism. The more atrocious
the crime, the more terrible should be the punishment; conse-
quently, the evidence against the accused should be so much the
clearer in proportion to the atrocity of the crime with which he is
charged."^ What facts constituted proximate presumptions?
Here again the Ordinance furnished no details. It merely de-
clared that torture could only be administered where the crime was
one deserving of capital punishment, and where there was a con-
siderable amount of evidence, which, however, " was not suffi-
cient." * This necessarily left a wide discretion to the judges.
*' The Ordinance not having determined in the article . . . the
nature of the presumptions and circumstances which it proposes
should constitute proof in criminal actions appears to have left
the matter in the discretion of the judges." * — " When the wit-
nesses do not testify to having seen the blow struck, and they
furnish nothing but presumptive facts, it being possible that some
of the presumptions may be more weighty and conclusive than
others, and that the judges may be more impressed by some facts
than by others . . . the matter usually lies in the judges' dis-
cretion." ^ Certain rules were, however, laid down by precedent.

Among the half-proofs we find, first of all, the testimonial proof,
or imperfect writing, the deposition of a single eye witness, or
personal writing verified by experts, and also the extrorjudidal
confession of the accused, when it was denied by him, but proved
" by two competent witnesses," or by his " diaries and house-
hold papers." * Then in this category of proximate presumptive
facts a crowd of presumptions began to be marshalled. Muyart

> Poullain du Pare, XI, p. 116.

» Ibid., XI, p. 110. C/. Dupaty, "M^moire" and "Moyens de droit
pour trois hommes condamn^s h la roue," passim.
» Ordinance of 1670, Tit. XIX, art. 1.

* Muyart de Vouglans, "Inst, crim." p. 347.

* Duplessis, "Lettre d. Colbert," cited above.

* Muyart de Vouglanst !*Instit. crim." pp. 336, 350.

266

Title I, Ch. Ill] THEORY OF PROOF [§ 1

de Vouglans divides them into general presumptions and pre-
sumptions peculiar to certain crimes. He enumerates sixteen
belonging to the former class, some of which are very curious ; we
find among them, '' the status of the accuser, whether or not he is
a person of standing, or the head of a house, in regard to offenses
committed by his domestic servants ; " the " status of the accused,
whether or not he is a vagrant or a non-resident." The presump-
tions peculiar to certain crimes are specified with great care ; the
nomenclature of some of them would be laughable, if we did not
catch a glimpse of the torture lurking behind them. Thus we
find ranked among the proximate presumptions of the crimes of
magic and of sorcery the following things : "If there have been
found in the accused's house books or instriunents relating to
magic, such as sacrifices, human limbs, waxen images transfixed
by needles, the bark of trees, bones, nails, locks of human hair^
feathers intertwined in the form of a circle or nearly so, pins, em-
bers, parcel of embers found at the head of children's beds . . .,
2d, If he has been seen placing anything in a stable, and the cattle
therein have soon afterwards died, 3d, If a document has been
found upon him containing a compact with the devil . . ., 7th^
If those living in intimacy with the accused have been seen to
change their abode immediately after his arrest . . ., 8th, If he
has the name of the devil constantly upon his lips, and if he is in
the habit of calling his own children or those of other people by
that name." ^ This was written in the 1700 s ! Muyart de Vou-
glans adds, it is true : '^ All these presumptive facts might, ac-
cording to the authorities, be a reason for torture, but we shall
see, in treating of this crime (sorcery), with what circumspection
the judge ought to behave in such a delicate matter and one which
the inordinate credulity of the common people might cause to
degenerate into dangerous superstition."

All the proximate presumptions could, as a rule, be the occasion
for the administration of torture, provided they were themselves
proved, and for that a single witness was suflBcient. For a large
number of half-proofs, however, it was necessary to add a remote
presumption at least, in order to justify torture. At this point
a third class of presumptions made their appearance, under the
name of adminicles; these had only a corroborative value.^
This was a very slender safeguard, for very little was required
to give rise to remote presumptions. Muyart de Vouglans gives

^Muyart de VoiLglanSt "Instit. crim." p. 353.

« See Muyart de Vouglans, "Inst, crim." pp. 346, 350, 351.

267

§ 1] PROCEDURE IN THE 1600 S AND 17008 [P ART II

the following examples of them: "The changeableness of the
accused's discourse, the tremor of his voice, his uneasiness of mind,
his taciturnity, . . . the proximity of the accused's house to the
place where the crime was conmiitted, . . . the accused's feigning
deafness, or to have lost his mind or his memory when he is ques-
tioned, . . . the accused's bad expression, or the ill name he
bears." ^ The remote presumptions had to be proved by two
witnesses, or by the judge's minutes.

Certain authorities, however, showed themselves to be more
exacting. " It cannot be too often repeated, that several pre-
sumptions in combination are necessary to furnish a consider-
able proof, such as is required by this article of the Ordinance.^
The majority of the authorities require three presumptions;
but manifest presumptions must be distinguished from remote
presumptions; the former furnish necessary inferences from a
certain fact, ... an example of a manifest presumption is the
case of two competent witnesses who testify to having seen the
accused leave a place where a murder has just been conmiitted
carrying a naked and bloody sword; this presumption would
appear to be ' luce clarior.' ^ For a sentence to torture, however,
other presumptions called remote are also required, such as prior
threats, proven enmity and such like * adminicles,' unless, at all
events, the accused was a vagrant or a person of bad reputation." *
Duplessis holds a similar opinion. " Three kinds of presumptions
are usually distinguished, namely : 1st, (Jeneral and remote pre-
sumptions, as from the general bad conduct of the accused, if he
has been already arrested for similar crimes ; these can have little
more effect than to put the judges on inquiry and merely arouse
their suspicion; i2d. Nearer presumptions, which, however, are
not immediately connected with the act, as, in homicide, where
the accused was the mortal enemy of the person slain, or where he
threatened him or boasted that he would kill him, etc. ; these are
somewhat stronger, but they are in no ways conclusive, and do
not constitute even a half-proof; 3d, Proximate presumptions,
immediately connected with the act, as, where a man has been
slain in a house or in a wood, and at the same time the accused
has been seen to leave the house or the wood in flight, with naked

* Muyari de VouglanSy "Instit. crim." p. 350.

* Art. 1, Tit. XIV, specifying the circumstaDces under which the sentence
to torture can be passed.

' The classification here, compared with that of Muyart de Vouglans,
would seem to carry the various presumptions down a step lower in the
scale. Cf. Poullain du Parc^ XI, p. 119.

* SerpUlon, "Code criminel," p. 912.

268

Title I, Ce. Ill] THEORY OF PROOF [§ 1

and bloody sword. . . . These facts raise thoroughly conclusive
presumptions that the accused has committed the crime^ but still
they are not absolutely irrebuttable ; presumptions of this descrip-
tion go under the name of ' full presumptions/ and they usually
constitute half-proof." ^ When all is said, it must be acknowl-
edged that it was difficult to indicate with sufficient certainty the
evidence upon which torture would be administered. "The
diflBculty is to ascertain what evidence should be regarded as con-
siderable. What might come under that description when ap-
plied to a vagrant or other bad character ought not to be so con-
sidered when the accused is domiciled and of good character;
consequently nothing is so arbitrary or difficult to settle. It de-
pends upon the place, the time, the status of the persons concerned,
and a multitude of other circumstances." ^

Remote presumptions, unsupported, permitted the judge to pro-
nounce pecuniary punishments, or a " further inquiry " ; he could
also, if there was a party prosecutor for civil reparation, send the
action to' the civil side. " And where by the proceedings there
has been neither full nor half-full proof, but merely some pre-
sumptions or conjectures less than the said half-full proof and not
sufficient for the administration of torture, and a likelihood result-
ing from the proceedings that the complainant in a criminal case
could more fully prove and verify the crimes charged by him against
the accused in a civil action, in such a case, if the judge has done
all that could and should be done to end the criminal action, he
should refer the parties to a civil action." ^ — " When there are
only strong presumptions, their force can determine nothing but
pecuniary punishments, if the judge does not enter an adjournment
' quosque,' that is to say, for ' further inquiry.' " *

In the midst of these waverings and hesitations^ one point re-
mained certain and acknowledged on all hands, namely, that a
sentence of capital punishment was impossible in the absence of
a complete proof ; and it was exceedingly difficult to procure one.
Except where that had been obtained, it was essential to add to
weighty presumptions tlie confession of the accused. To this
end two powerful mechanisms were organized; one was the in-
terrogation— subtle and secret — where the accused, without
the opportunity of pleading any defense, was obliged to swear to
reveal the truth, and by which the so-called voluntary confession
was obtained ; the other was torture, by which the forced confes-

'Dupleasia, loc, ciL * Serpillon, "Code crim." p. 911.

** Pratique de Lizet," p. 28. * Poullain du Pare, vol. XI, p. 116.

269

§ 1] PROCEDURE IN THE 1600 S AND 1700s [Pabt II

sum was extorted. That was the end and aim of the system of
legal proofs ; and in the supposed necessity for a confession must
be found the real reason for the maintenance and continuance of
torture. This is most explicitly stated by Muyart de Vouglans.
" The reasons which appear to necessitate its authorization are
based upon the fact that it being often impossible to obtain a full
conviction of the crime, either by the depositions of witnesses or
by documents, or by presumptions, which rarely concur in such
a way as to constitute that proof, clearer than day, which is essen-
tial for a condemnation, there would be no less injustice in send-
ing away absolved the person who is otherwise suspected of crime,
than there would be in condemning him who is not completely
proven guilty ; not to mention the fact that the welfare of humanity
demands that crime should not remain unpunished. It is for
that reason that, in the absence of other means of arriving at this
complete proof, we are obliged to torture the body of the accused." ^
Unsympathetic remarks such as these are not surprising, coming
from Muyart de Vouglans, who invariably constituted himself
the advocate of this odious procedure ; but they expressed a logi-
cal necessity which imposed itself without discrimination on all.
" In the perplexity in which the judges find themselves," says
Poullain du Pare, ** when they see very strong presumptions
against an accused, and when all the means of proof are exhausted,
they are driven to the resource of the preparatory torture." *
And this is what Serpillon, who himself had begun to protest
against torture, has to say: "About twenty-five years ago we
were still compelled to sentence to the preparatory torture the
notorious Auribaut, of the parish of Planch6-en-Nivemois, ac-
cused of about a dozen crimes, the majority of which were murders
on the highways. Without this not a single one of them would
have been fully proved." ' By what was Serpillon " compelled " ?
By the theory of legal proofs.

There might, however, remain to the accused one last resource.
If he resisted the torments of the torture without confessing, the
accusation was doubtless completely purged, and the strong pre-
sumptions which had made the administration of the torture
possible were totally obliterated. But this last hope might prove
to be a vain one ; there was such a thing as torture under reserva-
tion of proofs. Then, although the accused, by dint of constancy,
refused any confession, it was possible, nevertheless, by virtue of

1 "Inst, crim." p. 341. « Volume XI, p. 114.

» "Code criminel," p. 909.

270

Title I, Ch. Ill] THEORY OF PROOF [§ 1

the presumptions, to sentence him to some punishment other than
death. The use of torture under reservation of proofs is of very
ancient date. Imbert describes it in the following extraordinary
language. After saying that there are criminals '^ so wily and
malicious that whatever they have confessed under torture, they
altogether deny when they are questioned next day," he adds :
" For which reason, when the judge sees that there is not sufficient
proof to justify corporal punishment, but merely pecuniary pun-
ishment, in order that he may not, by denying everything obtained
by torture, elude the pecuniary punishment which he ought to
suffer, he orders that the delinquent be put to the torture, without
the presiunptions resulting from the prior proceedings being purged
on that account. For although capital punishment or other
serious corporal punishment ought not to be based upon pre-
sumptions, even though unquestionable, pecuniary pimishment
and some slight corporal punishment can always be adjudged." ^
Would not the appropriate inscription above the doors of the
criminal courts have been: '' Abandon hope, all ye who enter
here"?

» !* Pratique." Book III, ch. XIV (p. 739).

271

§1]

PROCEDURE IN THE 16008 AND 1700s

[Pabt II

Chapter IV

INFLUENCE OF THE ORDINANCE OF 1670 UPON THE

ADMINISTRATION OF JUSTICE

81.

2.
3.

The Procedure regularized
and stated precisely by the
Ordinance.

Observance of the Ordinance.

Persistent Defects in the Ad-
ministration of Justice. The
Question of Money. The
Written Procedure.

8 4.

8 5.

Effect of Influence and Money
upon the Enforcement of
the Rigorous Provisions of
the Ordinance.

Commentators on the Ordi-

nance.

The purpose of the Ordinance of 1670 was to refonn, not to
make innovations. The principles which it sanctions were al-
ready in existence, and the severities which it registers, though
new to all appearance, were, for the most part, already found in
practice. Its influence, however, was very great. The appear-
ance of a Code in a country is always a matter of the utmost im-
portance. It is the law at one and the same time made uniform
and transformed. Although diversity of the systems of juris-
prudence does not wholly disappear, its influence is felt only in
matters of detail. Change in the institutions by an imperceptible
advance is no longer possible ; scientific interpretation alone can
tread these decreed paths, and can sometimes, in elucidating, de-
velop the law. The Ordinance of 1670 is a real code ; it is exact
in its details, and it is also exact in its phraseology ; this has stood
the test of long experience. It was able to root itself firmly;
the future had in store for it a life of a hundred and twenty years.

§ 1. The Procedure regularized and stated precisely by the
Ordinance. — At the time Louis XIV caused the Ordinance to
be drawn up the administration of justice was uncertain. Dif-
ferent systems of judicial practice sprouted like rank and hardy
weeds. Abuses abounded on all sides: non-observance of the
forms, which at that time constituted the sole safeguard of the
accused ; the disastrous influence of the inferior officers and agents
on whom the judges devolved part of their duties ; the high price
of justice caused by the addition of abnormal gratuities to the

272

Title I, Ch. IV] INFLUENCE OF THE OBDINANCE OF 1670 [§ 1

regular lai^e costs; this has all been shown by the authentic
documents which we have analyzed.

The Ordinance of 1670 unified the forms of criminal procedure.
Certain special usages it did undoubtedly respect, particularly
those of the Chfitelet of Paris, the situation of which, in the heart
of the large city, justified certain privileges ; but that very seldom
happened.^ Although differences did arise in the future, these were
only in regard to points not provided for by the Ordinance, which,
it cannot be denied, had sometimes passed over rather important
matters in silence. We must not forget that it was silent as to
the mode of administration of torture and as to the choice of re-
porting judges of criminal actions. The numerous regulations of
the different companies of judges agreed upon between their
officers or settled by parlementary decree might throw doubt
upon the regular operation of our law ; ^ but a close inspection
will show that these deal either with questions of internal regula-
tion, which no Code could provide for, or matters, such as that
of royal causes, where an intentional uncertainty in the wording of
the act had necessarily opened the door to arbitrariness.

The Ordinance absolutely prohibited the intrusting to officers
of court, notaries and clerks of court, those duties, so important
(informations and interrogations), which had been formerly
handed over to them.' In the inferior courts assessors were pre-
scribed for the judge. These were subjected, by means of reports
addressed to the king's procurator, to a supervision, which it was
sought to render effective.* The cheapening of actions was
studied, by the suppression of a number of needless items of costs.®
In numerous articles the Ordinance forbade divers functionaries,
under severe penalties, to accept any perquisite to which they were
not strictly entitled ; and these prohibitions were addressed, not
only to jailers and keepers of prisons,* and to clerks of court, but
also to the judges.^

Pecuniary economies were also realized by other articles, the
direct and chief aim of which was to expedite the procedure, by
stripping it of useless writings with which it was encumbered : " We
hereby abrogate the orders to * hear law,' to deliver pleas in ex-
tenuation, reasons and pleas of nullity, responses to furnish pleas

> See Tit. I, Art. 29 ; Tit. II, Art. 28 ; Tit. Ill, Art. 3 ; Tit. XIV, Art.
14 ; Tit. XXV, Art. 9.

•They occupy over two hundred and thirty-two pages of Serpillon*s
"Code criminer' (from p. 1229 to p. 1463).

» Title III, Art. 2 ; Tit. XIV, Art. 2. * Title X, Art. 20.

» See, for instance. Tit. VI, Arts. 9, 18 ; Tit. VII, Art. 7.

• Title XII, Arts. 19, 22, 29, 30. 33. ^ Title XIV, Art. 16.

273

§ 1] PROCEDURE IN THE 1600 S AND 1700 S [Part II

of obreption and to inform, to submit civil conclusions, and all
other orders ; we also abrogate the custom of lodging civil mo-
tions, notifications, inventories, objections, reasons for and pleas
of nullity, or of appeal, complaints and answers, orders and fore-
closures to produce or object taken in court or in the clerk's office." ^
The length of this list shows what relief must have been furnished.
''All these ancient forms mulcted the parties in costs and occa-
sioned indefinite delays, but this article has abrogated them, with
the purpose of simplifying criminal procedure as much as pos-
sible." * In regard to the acceleration of the procedure the re-
s mictions placed upon the misuse that was made of the orders to
answer (" arrets de defenses ") must also be noted.

The Ordinance settled the formalities for the different docu-
ments with great precision. Henceforth the judges had a certain
and methodical guide, and they could no longer invoke the au-
thority of customs or the silence of the laws to justify their neglect.
The better to insure the execution of its provisions, the legislature
had, in the majority of cases, taken care to require that the ob-
servance of formalities be stated in the official reports. This is
the safeguard to which every formal and written procedure has
recourse. It is true that where there is secrecy in the proceedings
it loses very much of its efficacy. The Ordinance sometimes
inflicted severe punishment upon erring judges. It usually con-
sisted in their suspension, or also of heavy penalties and an action
for damages available to the injured parties. The system was
very severe, and Lamoignon, the faithful defender of the magis-
tracy, protested vigorously against these provisions, as he had
already done when the Ordinance of 1667 was drawn up.^ A
special effort was made to have all the writings made regular and
accurate. The prohibition against leaving interlineations and
blanks, the compulsory authentication of erasures, and the signa-
tures of officers and parties are recalled at every step. It was
not considered that this was descending to insignificant details,
but, on the contrary, acting in the highest interests ; this must
be so in every written procedure. It was even desired that each
class of documents in the proceedings should be recorded in a
separate record. " The Ordinance wishing to prevent confusion,
a record or report was necessary upon which all the decrees and
the order of examination should be written, as well as the
motions of the civil party for reservation of final proofs.

1 Title XXIII. « " Code criminel," p. 977.

• "Proc^verbal de TOrd. civile," p. 476 et seq,

274

Title I, Ch. IV] INFLUENCE OF THE ORDINANCE OF 1670 [§ 2

Separate reports are necessary for each interrogation, another
for the confirmation of the witnesses, and another for the con*
firmation of the accused; as many reports of confrontation as
there are accused persons are also necessary." ^

It may safely be asserted that these various provisions of the
Ordinance were beneficial. The procedure, regulated, , acceler-
ated, and freed from very heavy expenses, was purged of grave
abuses. But, on the other hand, this precision of the law rendered
impossible certain indulgences by the magistrates, which had
been very valuable to the defense. Henceforth the courts, which,
under the rule of the Ordinance of 1539, " granted counsel in all
prosecutions," or '* in certain cases," as Pussort put it, must be
more severe; a strict law barred the lawyers from the criminal
courts. From this time forward, the magistrates cannot imitate
de Thou in his refusal to administer the oath to an accused " be-
cause he knew that no Ordinance compelled the judges to exact
it from accused persons." Whatever might be their private opin-
ioDy judges must in future condemn as a perjurer the witness
*' who varied in some essential particular at the confrontation."
But as judicial practice inclined to these extremes of its own voli-
tion, it must be owned that, on its appearance, the Ordinance of
1670 leaned to the side of leniency rather than that of severity.
The abuses which it abolished would not have corrected them-
selves, and the severities which it sanctioned were imposed with-
out the aid of the law.

§ 2. Obtervance of the Ordinance. — But how was the Ordi-
nance observed in reality? It is rather hard to say. To deter-
mine with exactitude the influence exercised by the new code of
criminal procedure, it would be necessary to have for the 1600 s
and the 1700 s accurate statistics, and these we do not possess.
We are not, however, absolutely destitute of documents. The
'* Correspondance administrative sous Louis XIV " contains a
whole part devoted to justice. For another thing, the criminal
law-writers of the 1700 s sometimes make observations which
are so much the more important in that they content them-
selves with interpreting the texts. Finally, the arguments which
distinguish a certain number of criminal actions on the very eve of
the French Revolution contain bitter criticisms and grave allega-
tions. All this allows us to ascertain a certain number of facts*'

^SerpUlon, "Code oriminel," p. 733.

> The " Arohives de la Bastille, documents io^dits publics et recueiUis/*
by M, Francois Ravaisaon, may also be very profitably consulted. A

275

§ 2] PROCEDURE IN THE 1600 S AND 1700 8 [Pabt II

Let us first of all glance at what concerns the unity and regu-
larity of the forms of the criminal procedure. One of the chief
aimS; if not the chief, of the compilers of the Ordinance was to
realize this unity. At first sight it would seem that they were
successful. Shortly after the publication of the new law, Du-
plessis said, in a Memorial addressed to Colbert, which we have
already quoted : *' It is difficult to find any flaws in the procedure.
The proceedings in criminal matters are very simple ; the essentials
are merely the information, the interrogations, the confirmations,
and the confrontation, and the formalities are so thoroughly
denoted by the Ordinance that it is not easy to make mistakes
regarding them." ^ But this was really too eulogistic. Nothing
was so complex as this written procedure, strewn with formalities.
We can see at a glance the irregularities which were perpetrated
and ere long the existence of local systems of judicial practice.
On 17th June, 1687, the Chancellor of Pontchartrain writes to the
Parlement of Rennes : " I have learned that several abuses have
found their way into your court and into the bench of your
jurisdiction, which, it appears to me, must be remedied, if they
are established. . . . 1st. It is claimed that the royal judges as
well as those of the seigniors, who sit in the jurisdiction of the
Parlement, cause monitories to be published in all criminal ac-
tions which are brought before them, whatever proof there is of
the crime either by the informations or by the interrogations of
the accused, and that is done solely from the fear that the Parle-
ment will quash their proceedings if they have been defective,
which is declared to have happened very often. This custom is
very mischievous and even very dangerous ; . . . recourse to moni-
tories was not introduced among us in extraordinary actions ex-
cept in default of all other methods, when the truth cannot be
otherwise arrived at. . . . Accused persons may take advantage
of this method of obtaining a hearing of the witnesses for their
defense and as to such facts as they deem appropriate. . . . 3d.
It is alleged that you allow an accused without objection to un-
dertake to prove falsehood in the depositions of the witnesses,
which is very mischievous. Besides piling up the expenses and
lengthening the trial of actions,^ this would be tantamount to

large part of this, it is true, refers to a period prior to 1670. Side by side
will there be found regular proceedings, interrogations, and official reports
of torture, as well as letters and reports showing the part played by **lettres
de cachet" all the time they were in use.

1 " Lettres, etc., de Colbert," vol. VI, App^. 422.

• C/. Poullain du Pare, "Principes," vol. Al, ch. XIV, p. 350 ei seq.

276

Title I, Ch. IV] INFLUENCE OF THE OBDINANCE OF 1670 [§ 2

admitting the accused to his justificative facts before the inspec-
tion (' visite ') of the action, which is expressly forbidden by
the first Article of Title XXVIII of the Ordinance of 1670." ^

The same Pontchartrain, on 28th September, 1710, expostulates
vigorously with the magistrates of the city and borough of
Fumes. He declares **that it is unprecedented to confronta-
tively condemn an accused without first hearing him, as expressly
appears from Articles 5 and 15 of Title XXVI of the Ordinance of
1670, which provide that in such case the accused shall be re-
mitted to the courts of the jurisdiction of the judges who tried him
in the first instance, and that he be interrogated upon the pris-
oner's seat at the time of the judgment. It is not enough to pro-
duce there all the proceedings had against him, because it is
thought that by the new interrogation, circumstances may be
learned which may serve to acquit him or condemn him to more or
less severe pimishments." ^ Sometimes the courts also aggravate
the severities of the law. On 6th August, 1679, Chancellor Le
Tellier, writing to d'Aguesseau, steward of Languedoc, is compelled
to state " that there is no impropriety in a witness, after having
said in his deposition that he saw the accused in the action and
ha\ang repeated this in his confirmation, stating his doubt, at the
confrontation which is made between him and the said accused,
whether he is the same person he intended to speak about.'* *
The authors make equally grievous criticisms on Article 20 of
Title X of the Ordinance, which commands the king's attorneys
to send every six months to the attorney-general a statement of
the jail-books with a statement of the procedings. Serpillon
declares *' that this is the worst executed article of the Ordinance,
important as it is, in order that the superiors may be made
acquainted with the proceedings that have been neglected
and suppressed. . . . There have never, at any time, been any
decrees regulating this subject." ^

' " Correspondance administrative sous Louis XIV," vol. II, pp. 450, 452.

* " Correspondance administrative," vol. II, p. 489. C/. lor certain
usages of the Parlement of Toulouse, ibid., p. 484.

* Ibid., vol. II, J). 215. This correspondence contains here and there
curious interpretations of the usages. President de Lamoignon writes as
follows to attorney-general de Harlay: **I have always understood that
the Parlement never gives the reasons for its decrees in writing ; that is
only done in the provincial Parlements. Among several reasons which
could be given for this difference there is one essential reason applicable at
all times; this is, that the attorneys-general of the other Parlements
express themselves in writing because they are far away; but that of
the Parlement of Paris is close to the king and must orally account
for all that His Majesty desires to be informed about" (p. 174).

*"Code criminel," p. 574.

277

§ 2] PROCEDURE IN THE 1600 S AND 1700 S [Part II

D'Aguesseau, on his side, raised serious objection to the local
customs, protesting " that in criminal matters the customary
laws of the provinces themselves and, with greater reason, of their
courts, should never prevail against the provisions of the Ordi-
nance." At the end of the 1700 s, the diversity of the systems of
judicial practice in criminal matters is a matter of notoriety. " I
must own that the defect of the wording which I object to is a
practice in the Parlement of Paris and perhaps in other Parle-
ments of the kingdom. In truth, other Parlements, and these are
in the majority, adhere to the letter and spirit of the Ordinance,
which imperatively enjoins upon them, they say, the setting out
in writing." ^ " Several of the supreme courts allow the rela-
tives of the private prosecutors to testify, and others, on the con-
trary, reject them ; with the result that among the courts certain
depositions are like the coinage among the nations; certain
depositions are current in one court and not in another."*
Poullain du Pare, in the volumes which he devotes to criminal
law, frequently stops to state the particular practice of the
Parlement of Brittany.'

This diversity of systems of judicial practice was, moreover, a
natural and inevitable occurrence. The compilers of the Ordi-
nances had certainly endeavored to avoid this result. Pussort
had pointed out the evil in his usual clear and forcible manner.
"There remains as a final remedy to withdraw from the sovereign
companies of judges the liberty which they have usurped of
construing the Ordinances. This is an encroachment upon the
royal authority, to which alone belongs the making of the
laws; from it should also come their interpretation. This
right is one which was always reserved by the Roman em-
perors, so much so that the provincial judges were invariably
obliged to consult them when some case occurred with them
which had not been foreseen by the laws, or as to which
the laws were not sufficiently explicit. The emperor Justinian,
who compiled and reported what the emperors Julian and
Adrian had ordained, gives an excellent reason for this. It is,
he says, because God has intrusted the emperors with the gov-
ernment of men, so that they may reform whatever may be de-
fective and prescribe limits and precise rules as to matters which
come up for the first time and have not been provided for. This

^ Dupaiy, '"M^moire pour trois bommes condamn6 d. la roue," 1786,

of t:

278

Title I, Ch. IV] INFLUENCE OF THE ORDINANCE OP 1670 [§ 3

rule was followed by all the jurisconsults, who unanimously agreed
that it was not within the province of the pretorian courts (with
which the supreme courts in this kingdom are synonymous) to
construe the laws upon any equitable pretext whatever, for two
weighty and sufficient reasons. The first is that if this liberty was
left to them they could, by their constructions, nullify the authority
of the laws and erect themselves into legislators ; the second is
that if it were allowed, all the judgments would be arbitrary and
dependent upon the whim, the caprice, the passion, and the in-
terest of the judges, and there would be no certainty." ^ The
Ordinance of 1667 also read (Title II, Article 7) : " If in the judg-
ments of actions which may be pending in our Courts of Parie-
ment and our other courts, any doubt or difficulty arises as to the
execution of any articles of our Ordinances, Edicts, Declarations,
and Letters Patent, we forbid them to construe them ; but it is
our will that in such cases they adjourn, and learn from us what
may be our intention." But this prohibition was bound to be
vain. Pussort was striving against a kind of natural law, — a
logical necessity, — and he was bound to be defeated.

§ 3. Persistent Defects in the Administration of Justice. The
Question of Money. The Written Procedure. — Several causes
in particular were bound to render the Ordinance ineflFectual upon
many points. The question of money ranked first. We already
know from the Memorials of the State's Councillors what part
judges' fees played, even in criminal matters, and in this respect
nothing was changed,^ with the exception of some economies which
had been brought about. But that was not all. When there
was no private prosecutor in the action, it was the seigniors in
regard to their jurisdictions, and the royal tax-collectors in
regard to the royal jurisdictions, who had to defray the expenses.
But neither of these, the one more than the other, were disposed
to put their hands in their pockets. From this it frequently re-
sulted that for want of money the course of justice was stopped.
In 1664 the attorney-general of the Parlement of Bordeaux wrote
to Colbert : " It is impossible to compel the tax-collectors to
defray the expenses necessary for the punishment of criminals

[» "Melanges Cl^rambault," No. 613, p. 438 (M^moire de Pussort).

•See "Lettre du ohanoelier Le Tellier" to DaulMe, first president of
the Parlement of Guyenne, 21st July, 1679. He states, among other
things, that the reporters do not send the decrees to the offices of the
clerks of court until after they have been paid their judges* fees (*' Corresp.
admin, sous Louis XIV,'' vol. II, p. 214). See also 11th June, 1664;
letter from Steward Courtin to Colbert, describing the extortions of the
judicial officers of Arras (ibid,, p. 136).

279

§ 3] PROCEDURE IN THE 1600 S AND 1700 S [ParT II

and to carry them through their appeal. They say that they
have no funds, so that many heinous crimes remain unpunished.^
In 1879, in Guyenne, the convicts' chains could not be loosened for
want of money ; ^ in 1707, a letter from the chancellor of Pont-
chartrain to the steward of Burgundy indicates similar inconven-
iences : '* There are men condemned to the lash languishing in
the prisons of Bourg en Bresse, because the tax-collector cannot be
persuaded to send sixty livres to the executioner of Dijon." ' In
the growing disorder of the finances of the monarchy, these scan-
dals showed no signs of coming to an end.

The question of money not only hampered the prosecutions, it
often vitiated them. It interposed itself before the accused at
every moment during the course of the procedure. Rousseau
de La Combe observes as to Article 14 of Title X of the Ordinance :
*' All clerks of court, jailers, and the prisoner who had been longest
in the prison (called the dean or provost) are forbidden to accept
or exact anything from the prisoners in the shape of money, wine,
or victuals in return for the initiation of the prisoner. This was
called right of entry, or initiation. It was a mischievous custom,
which the Ordinance has suppressed, corrected, and prohibited.
The prisoner who would not bear this expense was even beaten and
insulted, and even now it is very difficult to prevent this abuse." *
In 1786 a former prison doorkeeper refers to this exploitation of
prisoners as a natural thing : '^ It was necessary to pay the rent of
a room to avoid having to share the straw with the vilest criminals,
and to obtain the other usual necessities, without which the prison
would be a terrible habitation, worse than death itself." ^ In
this respect the Ordinance had been absolutely powerless; the
sale of offices, from the highest to the lowest, and the lamentable
financial system, were insurmountable obstacles.

The compilers of the Ordinance had endeavored to insure to
accused persons the only safeguard of which the system adopted
by them allowed, namely, accuracy and regularity in the record,
and observation of the forms. But here once more they found
themselves face to face with practical impossibilities. This written
procedure was too minute and complex not to be capable of falsi-
fication, especially in the hands of inferior officers. Testimony as

* "Correspond, admin, sous Louis XIV," vol. II, p. 133.

« IHd., vol. II, p. 214. » /6id., p. 448.

***Mati6res criminelles," p. 36. These customs were very old. See
Edict of October, 1485, {Isambert, XI, p. 150).

'**M6moire d. consulter et consultation" for M. Lecard^, late clerk
of court of the oonciergerie of the Rouen courts of justice, against M.
Lecauchois, advocate in the Parlement of Rouen, Paris, 1786, p. 22.

280

Title I, Ch. IV] INFLUENCE OF THE ORDINANCE OF 1670 [§ 3

to the existence of abuses abound on the eve of the Revolution.
Particularly in the case of the answers of accused persons and
witnesses, it was undeniable that the transcription made by the
clerk of court was very often but a faint echo of the spoken words.
" Consider, I pray, that the translation by which the replies of
accused persons in the lower courts are often reported is at times
very incorrect. Here is an example of this in the present proceed-
ings. The provost asks Simare if he had had no relations with
Bradier. Simare, who does not understand what is meant
by this phrase, replies in the negative. Bradier, however, is
his brother-in-law. In answer to the next question, however,
Simare admits having been at Salon with Bradier. Unfortunate
people ! they do not understand the questions asked of tbem and
they, in turn, are not understood ! You word your question and
translate their replies. ... Ah I the duty of the first judges, who
alone interrogate, who alone translate and who alone draw up,
is certainly a delicate one ! " ^ Such a defect was really irrep-
arable. And, again, it often happened that the writing out was
not done on the spot. The clerk of court merely took notes and
afterwards transcribed at his leisure. " I shudder when I call
to mind that it is now customary in more than one court of the
kingdom to take only notes of the depositions of the witnesses, or
the answers of accused persons in the court-room, and to write
them out afterwards out of court at leisure and to his liking." *
All this was no doubt forbidden by the law ; but human nature
showed itself here, and nothing was easier when the accused and
the witness could not sign their names.

The magistrates did not read the whole of these documents
upon which their judgment was based. The reporting judge was
heard, and faith was placed in him. '' I find that four hours and
a half at least were necessary for the mere reading of the pro-
ceeding, whence I calculate that it was impossible that this action
could have been reported to the bench in three-quarters of an
hour in the absence of the king's attorney-general." * Finally,
the copies sent to the appellate judges were too often defective.
** In all the supreme courts judgment is rendered only upon
copies made and sent by a clerk of court and often by a deputy
clerk of court, of the seigniorial jurisdiction. This makes one
shudder. I could mention several examples of this where the

' Dupatf/t "M^moire pour trois hommes condamn^s ^ la roue/' p. 139.
* Ibid., p. 66.

•**M6moire justificatif" for Marie, Fran^oise, and Viotoire Salmon,
by M . LecauchoiSj advocate of the Parlement of Rouen, Paris, 1786, p. 10.

281

§ 4] PROCEDURE IN THE 1600 S AND 1700 8 [Part II

copies were falsified. And yet we are asked to hold our tongues
about our criminal Ordinance I " *

Official mistakes and violations of the rules laid down in the
Ordinance were especially numerous in the inferior seignorial and
royal courts. " His majesty's council is without doubt far from
approving of this truly alarming system, which continually gets
worse, owing to loose methods and lack of zeal, but the inferior
judges must not be discouraged in their administration, and
their number, already too small, further diminished by severi-
ties, however lawful these may be. . . . Complaint is raised from
almost every side against the betrayal of trust of the inferior tri-
bunals, and this clamor has been regarded in some quarters as
seditious. No, it is by no means seditious. If it has been silent
hitherto, that is because its utterance has been stifled for nearly
two centuries." ^ It is no exaggeration to say that some of the
trials laid bare " the mysteries of the inferior courts." '

§ 4. Effect of Influence and Money upon the Enforcement of
the Rigorous Provisions of the Ordinance. — If the beneficent pro-
visions of the Ordinance of 1670 were not always respected, neither
were its rigorous rules always observed. One point in particular
is to be noted. The Ordinance made secrecy of the procedure
an inviolable rule. The accused must never be made acquainted
with the charges, nor ever have counsel before his interroga-
tion, and seldom after it. But it is easy to show that these
principles yielded readily enough to two things, — potent at all
times and especially then; these were, official influence and
money.

Favor or money could procure communication of the documents
either to the accused, or to their friends. Those who directed
the administration of justice and those who expounded the Or-
dinance invoked in vain the prohibition contained in the law.
On 25th July, 1677, the marquis de Seignelay writes to the lieu-
tenant of the Admiralty court at Dieppe : " I have to inform you
that the informations are documents which must be kept secret,
and that you must not communicate (them) to any one without
His Majesty's express mandate." * Here is some testimony
gathered from the '* Archives de la Bastille." A member of the

1 Dupaty, "M6moire," p. 232. See "M6moire" for Catherine Estmfts
against the officers of the royal bench of Riviere, by M. Lacroix, advocate,
Toulouse, 1786.

* Dupaty^ "Moyens de droit," for Bradier, Simare, etc., Paris, 1786,
p. 60.

' "M^moire" for Catherine Estin^s, p. 54.

* "Corresp. admin, sous Louis XIV, vol. II, p. 206.

282

Title I, Ch. IV] INFLUENCE OF THE ORDINANCE OF 1670 [§ 4

judicature writes to Seignelay on 22d May, 1695 : " M. de Pom-
ponne gave M. the ambassador of Savoy a copy of the first in-
terrogation. The latter gave consultations based upon that, on
behalf of Colonna. He now asks me for a copy of the rest of the
proceedings. . . . I have deemed it my duty to adhere to the rules
and refuse it. M. de Pomponne having done me the honor to
write to me that it was the king's wish, I have obeyed." * Another
letter of 24th April, 1676, from an agent in the accused's interest,
reads : *' I have not been able to ascertain more exactly what
Mainrot said in his interrogation upon the prisoner's seat, although
I sent some one to the clerk of court. He would not let him see
it, and said, when asked for a perusal of it, that he had orders to
keep it secret." ^ " The Ordinance," says SerpiUon, " provides
that the witnesses be heard secretly, and Article 15 forbids clerks
of court to make communication of the proceedings. There are,
however, numerous contraventions of this rule, so strictly enjoined,
and many oflScers who, in derogation of their official duties, com-
municate the proceedings to the parties, especially in petty crimes,
under the impression that the prohibition relates to serious crimes
only, while the Ordinance makes no distinction. Private prose-
cutors misuse it to suborn witnesses at the time of the confirma-
tions and confrontations; the accused concocts replies on the
knowledge he possesses of the depositions. In this way the truth
cannot be discovered, justice is not administered, and crimes re-
main unpunished." ' Jousse is no less to the point : " This pro-
hibition of communicating the secret proceedings is badly enough
observed in practice, and too often it happens that it is violated
with impunity." *

At the end of the century, when greater freedom of speech pre-
vailed, it was openly told how the thing was done. The clerks of
court provided the documents, and the lawyers quoted them in
their briefs. The forms were, however, respected in some briefs.
In the brief of lawyer Lacroix on behalf of Catherine Estines,
the author often, in quoting from the deposition of a witness,
makes use of the formula, " Such witness ought to have said."
These surreptitious communications were, moreover, not usually
complete. In 1786, Attorney-General Siguier was able to say in a
celebrated address : " Everybody knows, and the jurisconsults
themselves admit, that a criminal brief is nearly always only a
collection of facts and circumstances furnished by the accused

» Vol. VI, p. 93. » Vol. VI, p. 184. » "Code criminel," p. 483.

* "Comment, but rOrdonnance de 1670," p. 165.

283

§ 4] PROCEDURE IN THE 1600 S AND 1700 S [Part II

persons. Counsel almost invariably labor under the sad impossi-
bility of verifying its accuracy. They are compelled to rely upon
the statement of their clients." ^

A curious debate, which took place in 1790 in the National
Assembly, shows that, in later times, the practice under the
Ordinance, as to the secrecy of the proceedings, had become
somewhat divergent. The new law destined to take the
place of the Ordinance, was being discussed. " Formerly," said
M. Rey, " the confirmation of the witnesses was made in presence
of the accused. The Magistrates, following the spirit rather
than the letter of the law, even allowed communication of
the charges." M. FrSteau: "In my capacity of judge I
ought to state that this is not true. I have narrowly escaped
expulsion from the Parlement of Paris for having given access
to an indictment. Not only has the accused no such right,
but no human means can confer upon him the privilege of
becoming acquainted with the charges, and I must be permitted
to deny, on behalf of the entire magistracy, the statement
that your committee's draft is more absurd than the old Or-
dinances." M. GoupU: "And on my part I bear witness that
in the Pariement of Rouen the accused were given copies of
the charges whenever they asked for them. I have had in my
office the charges of various proceedings, which I have quoted in
italics in briefs. ... It is not true that the Ordinance of 1670
absolutely prohibited this conununication ; it prohibited it only
in the absence of an order of the judges. The Naval Ordinance
drawn up in 1681 under the eyes of these same magistrates and in
the same spirit did not forbid the judges' right to grant communica-
cation." M, Rey: " Communication was customary in the juris-
diction of the Parlement of Toulouse." ^

It was equally possible to have a lawyer for counsel. The ro-
mances of the 1700 s are not alone in showing us accused persons
communicating with their counsel, even prior to the interrogation.
Judicial documents also prove that this irregularity was not with-
out precedent.^ The aid of a counsel seems to have been a matter

^ ''R^quiaitoire de 1786," against Dupaty's memorial, p. 14. At
page 26 he points out that the author of the memorial *' seems to have
had cognizance of the procedure."

« Sitting of 28th October, 1790 ; Moniteur of the 29th.

• See "Archives de la Bastille/' VI, p. 150. " I immediately afterwards
went the same day to the most eminent advocate of the Parlement in
crinunal matters, called M. Beurey, to consult him upon the means that
could be taken to prove the calumniousness of what Colonna has stated
in his interrogation . . . but before explaining myself to him, having
asked him if he had been consulted by any one in Colonna's matter, he

284

Title I, Ch. IV] INFLUENCE OP THE ORDINANCE OF 1670 [§ 4

of right in all cases when, a delay being granted, the accused sought
the reversal or review of the decree.^ When the compassion or
connivance of the jailers or keepers of the prisons was gained all
difficulty vanished.^

But all this was a matter of solicitation and influence. It was
always arbitrary, and sometitoes the liberty of defense was bought
for cash. It constituted a shocking inequality between rich and
poor ; that was to be acknowledged later on. " Our criminal
Ordinance is strangely inconsistent. It is so distrustful of the
enlightenment and the accuracy, of the remoteness and obscurity
of the lower criminal courts, that it grants to accused persons the
remedy of appeal to the supreme courts from all their judgments
whatever; and in the meanwhile, by depriving the accused of
counsel, it deprives them of every means of making use of the
appeal. — What am I saying ? They were able, these unfortunate
people, to take advantage of the resources which the Ordinance
grants to them; they could even have a counsel. How? By
what means ? Is it necessary to say how ? If they had not been
poor. Alas I yes. But for their poverty they would, like the
rich, have had counsel ; like the rich, they would have appealed ;
like the rich, they would have penetrated the secrecy of the pro-
ceedings either in the court-room, or they would have purchased
it in the offices of the clerks of court ; they would have presented
petitions; they would have issued briefs. And, is it credible
that the* judges of Chaumont would have immured three wealthy
men in their dungeons for a period of thirty months? Whatl
Shall those laws, designed for the relief of the unfortunate in pro-
portion to their misery, be used, on the contrary, to oppress those

told me that he had been consulted on behalf of the Marquis de Livourne
along with another advocate called M. Lambin."

* Dupaty, **M6moires," p. 221. "Arrived at the prison, I ask to see
these tnree unfortunate men. I am shown into a room where I wait."
— Lecauchoia, **M6moire" for the girl Salmon, p. 16: "Consider the ob-
stacles I had to encounter in the coiu'se of the fifty to sixty hours of inter-
rogation which I have had of this girl . . . what precautions I have had
to take to draw from the accused, with the help of my discoveries from
other sources, the information within her knowledge, under these argus
eyes, without their learning anvthing. . . . Besides, I know of no law
which ordains that the counsel for the defense shall not question his
client or confer with him except in the presence of witnesses/

' In the case of the girl Salmon, Lecardd, keeper of the prison, receives
six letters from the accused, after her transfer to another jail ("M^
moire" for M. Lecard^, pp. 6-9, 12, 15). See "Archives de la Bastille,"
VI, p. 159. "The day oefore yesterday, the said Rencontre, detained
for two years in this town in the prisons and by order of M. the pro-
curator-|peneral of the Parlement, twice indicted and detained, went to
drink with the jailer in a tavern outside the prison, where he made the
jailer drunk, and escaped."

285

§ 5] PROCEDURE IN THE 1600 S AND 1700 S [Part II

unfortunate, and in proportion to their wretchedness! What I
shall the poor, the wretched, and, as arrogance calls them,
the dregs of the nation, twenty millions of human beings, be re-
duced in the future to learn that they have a king only through
the molestations of the tax-collectors, magistrates only by the
sight of scaffolds, and to know of God only after their death ! '* *
— '* Are you men of influence not yet contented with your crim-
inal courts of justice ? Only look at all that has been done for
you for more than two centuries, since the time of Poyet down
to that of Pussort. It has bereft the defense of accused persons
of all communication of the proceedings and all counsel, and solely
to the prejudice of the masses, for you are rich. It has deprived
the defense of the accused of the publicity which watches over the
courts and keeps them solicitous ; and this solely to the detriment
of the masses, for yowt whole existence is so important and so
valuable! It has curtailed for the defense, by more than half,-
the power to vindicate itself, and solely to the detriment of the
people ; for who would, in effect, dare to incriminate y(mi And,
finally, it has stripped punishments of all moderation and propor-
tion, and solely to the prejudice of the people, for all the judicial
machinery of kings is often necessary to enable the justice of the
laws to reach you I " ^

§ 5. Commentaton on the Ordinance. — A final effect of the
publication of the Ordinance of 1670 remains to be pointed out.
In the compilation of this code, the compilers fumishwl a solid
foundation for criminal law. They laid a basis for learned com-
mentaries, which did not fail them. The Ordinance made a
scientific study of criminal procedure a possibility. Hitherto
the practice had been explained rather than the laws expounded.
In the works of the jurists the texts of the Ordinances only
intervened at intervals, in support of the exposition; they did
not constitute its true basis. A perusal of Imbert's treatise, for
example, is sufficient to convince us of this fact. Thereafter an
expounder of the law would take up the articles of the Ordinance
point by point, to deduce all their consequences. The cotm-
mentaries succeeded the books of practice; or at least the former
held the chief place. The exegesis was not drawn from the Or-
dinance alone. Several works bore titles displaying an extensive
synthesis — the " Code Criminel," or the " Institutes de droit
criminel." This contributed potently to give to French criminal

» Dupaty, "M^moires," p. 237.

* Dupaty, "Moyens de droit pour Bradier," etc., pp. 43, 44.

286

Title I, Ch. IV] INFLUENCE OF THE ORDINANCE OF 1670 f§ 5

procedure that clearness and at the same time that severity ever
unknown among the congenerous usages of neighboring countries.

This importance acquired by the commentators was by no
means to the liking of Pussort, the chief author of the Ordinance.
His wishes were utterly opposed to it, and he did not conceal his
opinion on the subject. He advised the king *' to forbid any one
whomsoever to make any notes or commentaries upon the Ordi-
nances, or any collection of decisions, under penalty for forgery,
a fine of ten thousand livres and confiscation of the copies ; the
commentaries on the Ordinances and the reasonings drawn from
the decisions only having the effect of weakening their authority
under the specious pretexts of equity and of the weight of the
matters judged." ^ But in this case once more Pussort was
stri\'ing against an inevitable tendency.

The works of the criminal law-writers, especially those of
Jousse and Muyart de Vouglans, were very soon incorporated
with the Ordinance, so to speak. They were as much obeyed
by the courts as the law itself. " Jousse wrote that, and Jousse
is the spirit, the reason, and the judicial practice of the courts
of the kingdom, yes, the very court practice. Did not the juris-
consult Meynard say in dealing with a question : * the jurisconsults
have ordained ' ? And they did in fact ordain, especially in re-
gard to criminal justice. All the blanks in our criminal legisla-
tion, incomplete, disjointed, falling into ruins as it was, are, if
I may say so, filled up by the maxims of the criminal law-
writers." * — " Certainly not from the inferior courts is it worth
while to demand or even to hope for the abjuration of all the
barbarous maxims which the criminal law-writers have incessantly
established in the criminal jurisdiction. For criminal law has
been so far abandoned to the criminal law-writers by our
monarchs, too much occupied for the most part in increasing
their power to concern themselves with the happiness of their
subjects." '

» "Melanges Cl^rambault," No. 613, p. 453.

« Dupaty, !*M6moire," p. 156. » Ibid,, p. 227.

287

§1]

PROCEDURE IN THE 1600 S AND 1700 S

[Part II

Title II

CRIMINAL PROCEDURE IN EUROPE GENERALLY

Chapter I
CRIMINAL PROCEDURE IN OTHER COUNTRIES

§ 1. Introductory.

1 2. Italy.

I 3. Spain.

§ 4. Germany ; The Netherlands.

§ 4a. Addendum on German Crimi-
nal Procedure,
i 5. England.

§1. Introductory. — The criminal procedure developed in
France was not a purely national institution ; on the contrary,
it formed part of the common law of Europe. We can convince
ourselves of this by taking a glance at the nations surrounding
ours, — Italy, Spain, Germany, and the Netherlands. There
also the same evolution took place; there also had the Canon
law introduced the inquisitorial action and the Roman law ex-
ercised its influence. To the accusatory and public procedure
had succeeded the written and secret examination. To the rude
proofs of the feudal period had succeeded the learned doctrine
of presumptions.

The French procedure, however, is distinguished from other
kindred procedures by features peculiar to itself. Nowhere had
the forms become better settled, or the rules more clearly and'
firmly established, and from this point of view Muyart de
Vouglans could write without exaggeration : *' It can be said to
the honor of France that its practice in this respect has been
brought to a degree of perfection which gives it a preeminent
position among enlightened nations." ^ But, at the same time,
nowhere had the severities of the system been more rigorously'
enforced, or the defense more rigidly hampered. For good as for
ill, the system had been carried to extremes. One exception must
be made, however, in regard to torture; this was resorted to
by Italy and Germany especially with a harshness exceeding
that practised in France. One institution in particular, that of

1 "Lettre sur le livre des d^lits et des peines," p. 20.

288

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 2

the public prosecutor, distinguished France from the neighbor-
ing nations. Not that it was not also found abroad, but it had
either been introduced by French influence, or it was imperfect
and did not form, as with us, an essential part of the machinery
of the procedure.^

In contrast to France, a new juridical world was making its ap-
pearance on the other side of the English Channel. England had
preserved the accusatory and public procedure, and the liberty of
defense of the accused. Developing elements which the other
European nations had also possessed, but which they had allowed
to perish, it had created the procedure by jurors, which then
constituted a kind of anomaly, but which was destined to spread
its powerful influence over the whole of Europe.

We shall endeavor in a few pages to point out some of the main
features of the several systems.

§ 2. Italy. — Italy, under the dominion of the Lombards, had*
become familiar with the procedure and the criminal law of the
Germanic customs, the " compositions," the private accusation,
the oral and public trial, the exculpations by oath and the co-
swearers ('* cojurantes "), the ordeals, and especially the judicial
duel.* But Italy was the country where the law of ancient Rome
had developed, and where that of modern Rome had gradually
been elaborated. More than any other country it was bound to
feel the influence of the Roman law and the Canon law. It is
proved to-day that the study of Roman law had never been in-
terrupted. The Bologna school was not a revival. It was the
new growth on an old tree, which had, for long, pushed forth but
slender branches, but in which the sap had always been flowing
under the bark.

Schools of law there had been in continuous succession, first at
Rome, then at Ravenna, at Pa via from the first half of the 1000 s,
and at Verona at the same period. This brings us to the Bologna
school, which, from the first half of the 1100 s, attained such a
high standard that '^ all that had gone before had soon fallen into
oblivion." * The Bologna professors were, at the same time, men
of business. " The Bologna school was not merely the initiator
of a scientific movement. It also exerted an influence on the prac-

' Biener, "Beitrage zu der Geschichte des iDquisitionsprozesses," p.
208 et aeq.

*See SdopUy "Histoire de la legislation Italienne," vol. I, p. 199 et
ceg.

* M, RimeTj "La science du droit dans la premiere moiti€ du Moyen-
Age" (Nouvelle revue historique de droit fran^ais et etranger, 1877, p. 1
ei seq,).

289

§ 2] PROCEDURE IN THE 1600 S AND 1700 S [Part II

tice of law ; for the * glossatores ' made it their study to apply the
laws to the facts of life." ^ If they saw the accusatory system dom-
inate in the " Corpus juris," they, at the same time, found torture
there. They also found there the germs of that theory of pre-
sumptions which they were the first to build up, and which spread
from Italy throughout Europe. In addition to these, the canon-
ists built up the inquisitorial procedure, which was to be finally
sanctioned by the papacy.

Statutory laws were also enacted. These were, originally, mu-
nicipal statutes, the laws of free cities. " The cities, under the
inspiration of the Roman and Christian principle, adopted high
ideals and punished offenses according to their deserts and for
the common welfare. In the constant revision of these statutes,
the influence of the Roman law always continued to increase." '
The same thing happened in regard to the Canon law, and gradually
the inquisitorial procedure took its place alongside of the accusa-
tion. The judicial organization varied according to the cities,
but two successive types of communal government were distin-
guishable. Originally the towns were governed by consuls.*
The origin of this magistracy is doubtful. M. Fertile thinks that
the consuls sprang originally from the council, with which the
bishops surrounded themselves for the administration of their
dioceses and temporal sovereignties.^ To the number of two or
three, according to the places and the times, they tried civilly
and criminally, exercising the repressive jurisdiction in common.^
They were, besides, assisted by a college of judges or a council
of practitioners.* A revolutionary change afterwards took place
in the government of cities, putting the power into the hands of
one alone,^ who presided over the courts of law as in the other de-
partments of the administration ; but the forms changed little in
regard to the jurisdiction. " When the attempt is made to bind
together more closely the political and civil forms, and the * po-
desta,' the foremost magistrate of the republic, is called upon from
without, it is requisite that he have judges with him, or counsellors
be furnished for his assistance." * These counsellors, or assessors,
were almost always learned jurisconsults, celebrated professors.

• Pessina, '*ElemeDti di diritto penale" (3d edit., p. 51) ; c/. PertiUf
^'Storia dd diritto Italiano/' § 168: *'The Glossators and their suo-
cessors annotated and practised even the criminal law of the Pandects
and the Code as if it were a living universal law."

• Fertile, op, ci«., § 168. ' » Ibid., vol. II, PSit I, § 48.

• Ibid., vol. II, Part I, p. 25. » Ibid., vol. II, Part 1, p. 25.

• Ibid., § 49. ^ IHd., § 40.

• Sclopis, op. ciL, vol. II, p. 293. •• Ibid., vol. II, p. 113 ei 8eq.

290

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 2

Among the old Italian laws those of Sardinia ought to be cited
(" Carta di Logu ")> settling "the rules of procedure ; the accusa-
tion is here the rule, but the necessity of an ' inquisitio ' is recog-
nized, in the absence of accusers." ^ In lower Italy appeared the
" Constitutiones Regni siculi," united with a Code by Frederic
II in 1231. By these laws feudal and ecclesiastical courts of
judicature were abolished and bailiffs and justiciars and the high
court of the kingdom substituted for them.* Criminal law was,
in particular, resuscitated from its Roman source, and the vio-
lences of private feuds and the judicial duel were abolished.
The influence of the Roman law also made itself felt in the intro-
duction of the inquisitorial procedure.'

But it was, in truth, the practice and the writings of the juris-
consults that brought criminal procedure to its perfect develop-
ment. The procedure of the " inquisitio " rapidly took the lead,
and put the old accusation in the background. We cannot give
the long list of jurists whose works contributed to this evolution.*
We shall merely cite several names which overtop the others and
mark halting-places. About 1271 Gvlielmua Durandus publishes
his " Speculum jms." ^ A canonist, he describes the " inquisitio "
chiefly according to the canon law, but shows that it had its place
also according to the civil law : *' leges . . . semiplene de inqui-
sitione tractant, sed secundum canones plenius patet forma et
natura inquisitionis et quando et qualiter in ea procedatur."
AJberhis Gaudimis, who died probably in 1300, admits the inquisi-
torial procedure as a common law institution : " hodie de jure civili
judices potestatum de quolibet maleficio cognoscunt ex ofBcio suo
per inquisitionem. Et ita servant judices de consuetudine et ita
vidi communiter observari, quamvis sit contra jus civile." *

At the beginning of the 1300 s, Bartolus and Baldics describe and
explain the ** inquisitio." ^ In the 1400s, Angelus de Gamhilioni"
bus de Aretio in his "Tractatus de maleficiis" explains the in-
quisitorial proceedings at length, torture, and the theory of pre-
sumptions.* But it is chiefly in the 1500 s that the Italian crimi-
nal law-writers shine with incomparable lustre. Italy seemed

* Sdopis, op. cit., vol. II, p. 113 et seq. * Ibid,, vol. II, p. 254 €< seq.
» Pessina, **Elemeiiti," pp. 46, 47.

* See M. A. du Boys, "Histoire du droit eriminel de la France du XVI®
au XIX* sidole, compu^ avec oela de Tltalie/* etc., vol. I, p. 125 et seq. —
Biener, * * Beitr&ge, * Chap. I V ; * * Glossatoren und italieni sche Praktiker, * '
p. 78 et seq.

*Upon Durand, see M, Glasaen, Nouvelle Revue historique, 1881,
pp. 417, 418.

* Biener, op. cit., p. 96. ^ Ibid., p. 98 et seq.

' Du Boys, op. cit., 1, pp. 300, 311 ; Biener, op. cit., pp. 106, 110.

291

§2] PROCEDURE IN THE 1600 S AND 1700s [Pabt II

then to be the home country of criminal law, as, strange to say,
a similar movement appears to be again taking place in our
own days. Hippolytus of Marseilles, ^ Julius Clarus? Fatinacms^
Menochius* to mention merely the most celebrated jurists of that
period, definitely establish the principles of criminal procedure and
the system of legal proofs. Hippolytits of Marseilles makes a
special study of torture, and Menochitis of the theory of presump-
tions.

Along with the " inquisitio," which is approved almost without
restriction, the accusation is still recognized ; but it plays only a
secondary and barren part.* The judge takes action either '' ex
oflScio " or " ad instantiam partis," and in the latter case we have
the " inquisitio cum promovente," which we have mentioned
several times. Clarus also carefidly describes, along with the
accusation, the " querela partis offensse,*' which bears a strong
resemblance to our civil action.* If a " delictum facti permanentis "
is in question, the first necessity is the establishment of the " corpus
delicti." This done, the judge proceeds with an " informatio,"
the purpose of which is to establish the " diffamatio." He hears
the witnesses secretly and takes their depositions in writing. This
first phase of the action is concluded by the drawing up of the
" charta inquisitionis " or " libellus criminalis," a kind of indict-
ment, which will be used as the basis of the subsequent procedure J

^''Practica causarum oriminalium" (Lug^duDi, 1528). See Biener,
op. cit., pp. 110, 112.

* " Sententiarum receptarum liber quintus" (Lyons, 1772).

» "Farinacii opera" (Duaci, 1618).

^''De prcesumptionibus, conjecturis, signis et indiciis commentaria '*
(1628 ed.).

^Jul. Clarus, "Practica crim.," qu. 3, Nos. 6, 8, p. 416: **Sed certe
quidquid sit de jure communi hso omnia cessant ex consuetudine pree-
sentis temporis ; nam etiam de jure civili hodie in quocumque casu per-
missum est procedere ex officio et sic per inquisitionem . . . et coose-
quenter hodie superflua est etiam ilia practica quam tradit Alex, in apost.
ad Bar. quod scilicet judex oinnino statuat parti offens® terminum ad
accusandum, quo elapso poterit deinde, ubi pars non accusat, ex officio
procedere, nee poterit postea pars etiamsi'velit accusare impedire proces-
8um ipsius judicis inquirentis.

• Qu. 10, No. 1, p. 428 : " Licet isti duo modi procedendi so. ad querelam
et ex officio videantur non modo diversi, sed etiam quodammodo incom-
patibiles, tamen consuetudo admittit quod suj>er querela partis index
statim incipiat inquirere. Scias autem quod hsde querela multum differt
ab accusatione ; ... si non esset via aperta judici ad inquirendum aliter
quam per querelam, puta quia non praecederet denunciatio neque diffamatio
neque aliquid ex his . . . non deberet judex procedere super hujusmodi
querela, nisi haberet legitima requisita, licet contrarium plerumque ob-
servetur de consuetudine. ... Si talis instigator prius querelavit et ad
ejus querelam judex inquisivit, tenet locum partis et ideo est citandus."

"^ Jul. Clarus, qu. 7, No. 1, p. 424: "Facta denuntiacione, judex super
ea assupiit informationes et indicia et eis assumptis format hbellum, sive

292

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 2

Then the accused is summoned or arrested and subjected to
the '- libellus " ; he is obliged to answer regarding the points
therein contained. If he pleads not guilty, the judge hears the
witnesses anew, after they have taken the oath in presence of the
accused.^ Then comes the torture, if its administration is proper,
and lastly the judgment. This written procedure takes place
secretly.^

All this very much resembles the criminal action which we
have described as conducted in France. In Italy we merely find
more of the " libellus criminalis " and less of the confrontation.*
It must also be borne in mind that the freedom of the defense was
greater there, and the treatment of the accused less severe than with
us. No doubt the accused was usually required to take the oath at
the time of the interrogation ;* he was not present at the deposition
of the witnesses, nor could he even give in a list of questions to
be put to them.* But he received communication of the written
depositions, according to the old principles,*^ and was entitled to
have witnesses heard in his defense. Only, he could not make use
of these powers until he had answered the interrogation.^ It must
be noted, in particular, that the aid of advocates was allowed, and
that the judges could even sometimes appoint them officially for
the accused. * These defending counsel were not allowed to assist
their client at the time of the interrogation ; ^ and a copy of the

iiiquisitionem, in quo narrat quomodo propter denunciatioDem datam . . .
intendit ex officio procedere, et ltd. eommunlter servatvu* in practica.*'

* Jul. Clarua, qu. 7, No. 1, p. 552 : "Si neget, itemm examinant testes,
eo citato ad videndum eos jurare, et valde graviter erraret judex qui,
omissa tali repetitione testium, procederet adf torturam vel condemn a-
tionem ; nam testes recepti ante iitiscontestationem nullam fidem f aciunt
contra reum."

» See Sclopis, op, dt.y I, p. 208 et seq.

* It was not unknown, but it was not necessary.

* Jul. ClaruSj qu. 45, No. 9, p. 551 : " Magis est communis opinio quod
deferendum reo juramentum de veritate dicenda."

* In that respect his treatment was similar to that of the private ac-
cuser. Clarus, qu. 23, No. 3, p. 457 : ** Consuetudo observat quod inquisitus
vel accusatus nunquam dat mterrogatoria testibus pro fisco deponentibus
non etiam dat accusator interrogatoria deponentibus ad defensam : sed
judex aut fiscalis eos interrogat, prout sibi videtur."

* Jul. Clarus, qu. 49, No. 3, p. 580 : "Etiamsi contra aliquem procedatur
per viam inquisitionis nomina testium contra eum productorum nee non
et dicta ipsorum (competenter) publicanda sunt, ad effectum ut possit
se ipsum defendere."

''Ibid., qu. 45, No. 8, p. 551: "Consuetudo servat totum oppositum^
quod sc. reus interrogetiu* et examinetiir ante datas defensiones et copiam
indiciorum."

' Ibid., qu. 49, No. 11 : *'Dicit Blanc, quod ita quotidie servatur, quod
scilicet ju(tices dant advocatos carceratis. '

* Ibid., qu. 45, No. 11 : "Queero etiam, quando fit examen rei, debeant
esse patroni causarum ? Resp. quod de jure videtiir dici posse quod sic ;
ted certe usus et curiarum stylus hoc non observat.'*

293

I 2] PROCEDURE IN THE 1600 S AND 1700 S [Part II

information was given them with some hesitancy ; * but they were,
none the less, a great help. Farinacius composed a portion of his
works from the pleadings which, in the first part of his career, he
had prepared in the defense of accused persons.

Did the institution of public prosecutor exist in Italy ? There
was originally another institution which must not be confused with
it, which, however, partially answered the same purpose. The
judges often had functionaries placed under them whose duty it
was to denounce the crimes which came to their knowledge ; but
these inferior oflScers were really merely official denunciators.
*' Albertus Gandinus, Bartolus, Angelus Aretinus, and Hippolytus
of Marseilles recognized these personages, whom they called * syn-
dici,' * consules locorum et villarum,* * ministrales,' * officiates.'
I find these officers mentioned in several statutes of Italian towns ;
in the statutes of Verona they are called ' jurati contratarum '
and / massarii villarum ' ; in the statutes of Roveredo, ' massarii,'

* jurati,' ' syndici villarum ' and * plebatuum.' " ^

But there is also a question of a true " procurator fiscalis "
in the authors.' " About the end of the Middle Ages Venice had
a magistracy combining all the characteristics of a public prose-
cutor liberally constituted; it is the same thing as the 'avouerie'
of the commune which existed in the 1200s.''* But, generally
speaking, the institution was of imperfect development. That
would, at least, appear from the following extracts from eminent
authors: "In Italy, in the 1500s, we find, more plainly than
before, the inquisitorial procedure, with the participation of a

* procurator fiscalis,' particularly at Rome, Naples, and Milan.

^ Jul. Clarua^ qu. 6, No. 23: "Reus dicit judici ut priusquam ad al-
teriora procedat det ei copiam indiciorum qusB super diffamatione assump-
sit. Anp^el. dicit quod cauti advocati hoc petuut, ut possint impug:iiare
testes diffamantes . . . non video quomodo sit dan da ejus copia reo
petenti."

* Biener, " Beitrage," pp. 92, 93. The author remarks in a note that in
Faiinacius (Book I, tit. I, No. 17) they are called : " Antiani seu parochiani,
qui statutis tenentur denunciare delicta commissa in eorum villis seu paro-
chiis." But this may be a relic of the "testes synodales."

* Julius Clarus clearly distinguishes the three classes of personages who
are entitled to invoke the inquisition. Qu. 10, No. 3, p. 428: "Scias
i^tur quod tria sunt genera eorum qui instigatores seu promotores inquisi-
tionis appellantur. Aliqui enim id faciunt ex necessitate, vel saltern ex
debito eorum officii, prout sunt advocati et procuratores, seu syndici
fiscales, ad quos maxime pertinet instare assidue ut judices contra de-
linquentes inquirant. Alii vero faciunt ex pr»cepto sive deputations
judicum, qui solent deputare aliquem coadjutorem, qui loco partis se^
fiscalis assistat inquisition] . . . postremo aliqui id faciunt sponte quiia
comparent in judicis et subministrant testes et indicia contra reos inquisji-
tos."

* SclopiSf op, ciLf p. 260.

294

Title II, Ch. I] CBIMINAL PROCEDURE IN OTHER COUNTRIES [§ 3

But what this participation of the fiscal was cannot be determined
without elaborate research, for which the authorities are usually
lacking, since only local institutions are found. Julius Clams
himself, who, in his works, chiefly based upon the common law,
gives such ample information as to the Milanese practice, makes
only a passing mention of the procurators fiscal of Milan, because
they did not constitute a common law institution. In short, it
must be admitted that the fiscals were introduced into certain
districts of Italy only from the end of the 1400 s, and the principal
cause of their introduction was the influence exerted upon Italy
by France and Spain. Especially in the 1500 s we find in Savoy
the criminal procedure with a fiscal quite in the French form,
which must be attributed to the influence exercised by France upon
Savoy from the end of the 1400s." ^ — " The fiscals to which we
find allusions made, in Julius Clarus for example, are not, properly
speaking, public prosecutors; they intervene in support of the
prosecution after the judge has taken office on denunciation or
officially, but they have no initiative of prosecution ..." it
is only " when the inquisition has opened that they are admitted,
as the private accuser or the complainant would be, to argue pre-
sumptions and to appear at the trial." ^ These observations are
well founded, but they might profitably be more precise. It
must be acknowledged, too, that Julius Clarus on several oc-
casions plainly states that the procurator fiscal is truly party
to the criminal action;' and although, on the other hand, the
fiscal can primarily do nothing more than instigate the judge to
open an inquiry, taking no active part until the latter has issued
results, that is perfectly in conformity with the principles which
govern the powers of the public prosecutor in France in the 1400 s
and the 1500 s.*

§ 3. Spain. — Spain had been thoroughly imbued with Roman
civilization, and after its invasion by the barbarians, it still had
the law which, among the "Leges barbarorum," bears the

» Biener, "Beitrage," pp. 213, 214. « Du Boys, op. ciL, I, p. 322.

* Jul, Clarus, qu. 10, No. 4, p. 429: **Qu»ro numquid instigator sit
citandus in causa inquisitionis ? Resp. De advocato seu syndico fiseali
DuUi dubium est quin sit citandus; nam in quocumque judicio, in quo
potest ex officio procedi, fisciis est loco partis."

* Ibid., qu. 10, No. 6: "Tu scis quod hodie, nemine quasrelante, fiscus
succedit loco accusatoris. . . . Numquid debet eo casu fiscus querelam
seu aecusationem porrigere, super quS, judex deinde procedatf Resp.
quod non, sed tantum procedi tur ad informationem eo instante. Et ita
se habet communis observantia omnium curiarum, et dicunt semper in-
Btare fiscum ut procedatur contra delinquentes, etiam si de hujusmodi
instantia in actis non appareat ; debet tamen prius esse aperta vise judici
ad inquirendum aliter quam per instigationem ipsius fiscalis."

295

§ 3] PROCEDURE IN THE 1600 S AND 1700 S [Part II

clearest imprint of the Roman law. Certain usages also,
which the rest of Europe were not to take up imtil the renaissance
of Roman law, torture, for example, had never disappeared
from Spain. Torture is found in the " Forum judicum," with
some restrictions, it is true.^ The " Fuero-Juzgo " also sanc-
tioned the institution of delators, or informers, whom it even
compensated,^ but it maintained the accusatory system as a
principle.^

The Mussulman conquest and the strife following it gave Spain
a peculiar position in European histor>% and in the midst of these
convulsions the Code of the Visigoths fell into oblivion. The ma-
jority of the people were ignorant of the existence of a '* Fuero
Juzgo," and had no rule of government except what they saw
practised in other parts of the country. The only laws which
governed the administration of the courts of justice were the good
sense of some practical men, and the precedents made by judg-
ments passed in similar cases.* " The Spanish feudal system was
originated at that time, and with it the criminal procedure, which
everywhere ruled in the feudal Courts, and of which the judicial
duel was the principal expedient.^

Under the influence of the crown a considerable advance was
made, namely, in the constitution of " Fueros." The towns in
great numbers obtained charters insuring to them certain privi-
leges and organizing their courts. Very soon this privileged right
became a common right,^ what the Spanish authors usually call
the foral government (" gobierno foral "). ^ The " fueros " date
back to the 1000 s, the llOOs, and the 1200 s; two of the most
celebrated were that of Leon, conceded by Alphonse V, and the
" Fuero Viejo " of Castile. Generally speaking, the criminal

* See supra, p. 109. Cf. "Historia del Derecho Espaliol/' by Don Juan
Sempere (Book II, chap. XIX, p. 95).

* Book VII, tit. 1.

* ''Ni el conde ni el juez podien proceder de ofieio en causa alguna
criminal, como no constava por pruebas muy manifestas el autor de de-
lit to" (Semper Cf op, cit., p. 40). See, however, as to the official prose-
cution, supra, p. 97, note 2.

^Sempere, **Historia," p. 132.

6 Ibid., "Historia," Book II, chaps. Ill to V.

* Sempere, ** Aquellas cartas pueblas y al parer cartas privilegios fueron
amphficando cosi insensiblemente los derechos y representacion del estado
general."

^ Sempere, " Historia," Book II, ch. VII et seq. — Don Francisco Martinez
Marina, " Ensayo historico critico sobre la legislacion y principales cuerpos
legales de Leon y Castilla " (Books IV and V). — ** Historia de la legislacion
y recitaciones del derecho civil de Espana, por los abogados Amalio
Marichalar marquez de Montesa y Cayetano Manrique," 1861-1876, in
particular, vol. II, p. 162 et seq.

296

Title II, Ch. I] CBIMINAL PROCEDUBE IN OTHER COUNTRIES [§ 3

law contained in them is that known at that period to the towns
of other countries. We find in them the accusatory procedure,
the oath of purgation, the ordeals by red-hot iron, but we also
find the " informatio " of veracious witnesses. There, as in
the French towns, we see the beginnings of the official prosecu-
tion in the inquest or " pesquisa," of which we shall treat
immediately.*

Certain circmnstances were, however, to give to the Spanish
law a decisive direction. First of these is the ever increasing influ-
ence of the Church and the Canon law in Spain, leading to what
the Spanish authors call the " nueva jurisprudencia ultramon-
tana";^ and in the second place is the renewed study of the
Roman law, which was hailed with enthusiasm. " On the open-
ing of the law schools at Bologna and other Italian towns in the
middle of the 1100 s, a great number of Spaniards flocked into
these schools ; down to the foundation of the University of Lerida
in the year 1300 all the lettered men of Aragon were trained in
Italy . . . the University of Valencia had been founded at the be-
ginning of the 1200 s, but it did not last long ; afterwards that of
Salamanca was erected, and the best-endowed chairs were those
of the civil and canon law. It must be noted that in the teaching
of the law, while there was but one chair of civil law, there were
three of Decretals, which clearly shows the preponderance of the
new ultramontane ideas at that time. . . . They increased
so rapidly that very soon the laws, *fueros', and national
customary law were forgotten and set aside in favor of the
new Italian maxims. In order to check this abuse, the Cortes
of Barcelona, in 1251, demanded that the practice of the civil
law and the canon law be absolutely proscribed in the civil
courts." '

It was at this time that Alphonse X, the Wise, thought it neces-
sary to settle the laws in new codifications. First to appear was the
" Fuero real," or "Fuero de las leyes," "an excellent compendium
of laws, concise, clear, and methodical, comprising the most im-
portant laws of the municipal ^ fueros,' adapted to the Castilian
customary law and to the * Fuero-Juzgo,* whose rules were
very often literally copied."* Book IV, and last, is devoted to
criminal law, and it is not surprising to find there, side by side
with the accusation, which forms the rule, the " pesquisa " or

* Sempere, p. 161. — Alb. du Boys, !*Histoire du droit criminel en Ea-
pagne/' pp. 54-130.

» Sempere, "Historia," Book II, oh. XVIII to XXII.

» Ibid., "Historia," pp. 160-162. * Manna, "Ensayo," p. 277.

297

§3] PROCEDURE IN THE 1600 S AND 1700 S [Part II

inquest, which is the prosecution " ex officio " and which takes the
form which it was to bear everywhere in Europe.^

But the king meditated the promulgation of a more extensive
and more detailed kw. This was the Code of seven parts, the
" Septenario " or y'^Siete partidas." ^ This work, conmienced in
1256, was completed m 12b3 or;1265. Such a codification, un-
dertaken in the midst of the changes which Spain was then imder-
going, was bound to be of a somewhat hasty character. " Fre-
quent contradictions are met at each step in the confused mixture
of so many systems of legislation, ecclesiastical, lay, feudal, foral>
and royal." *

The criminal procedure is found in Parts III and VII. It was
already fixed in its positive features. The law recognized three
methods of prosecution, the accusation, still holding the first
place, the denunciation, and the official prpsecution. The last
mentioned was made effective by the " pesquisa " or inquisition,
which thus intervened in case of denunciation ; * a brief description
of it according to the " Siete Partidas " is as follows. " * Pesquisa '
in romance language has the same meaning as ' inquisitio ' in
Latin and it refers to money matters. . . . The * pesquisas '
could be made in three ways. . . One, when a general ' pesquisa *
is made as to a large territory, or as to any city or town or other
place, the ' pesquisa ' being made as to all and any of the inhabit-
ants thereof. . . .* The second . . . when it is made as to the
deeds of any who are traduced, or other indicated deeds the doer
of which is not known ; the third way is when the parties appear,
praying that the king or the person having the power to judge
order the * pesquisa ' to be made." * But the right to have the
** pesquisa " made appears originally to have been a privilege of the

* Book IV, Tit. XX: '*Accusationes y pesquisas.** — See du Boys, op,
cU., pp. 175-185.

^ See ''Los Codigos Espafioles concordados y aDotados*' (Second
edition, Madrid, 1872-1873), vol. Ill,
» Sempere, "Historia,'* p. 276.

* These three methods are also those pointed out in the customary laws
of Tortosa of the 1200 s ; see " Historia del Derecho en Cataluna Mallore&
y Valencia, Codigo de las Costumbres de Tortosa,** by Doctor Bienvenido
Olivier, vol. Ill, p. 590 et seq.

* This is the "inquisitio generalis** of the canonists and the jurists.
•"Partida III,'* Tit. 17, ley. 1: "Pesquisa en romance tan to quiere

dezlr en latin como inquisitio et tiene a muchas cosas ... las pesquisas
pueden se fazer en tres maneras. La una quando fazen pesquisa commu-
nalmente sobre una gran tierra, o sobre alguna cibdad, o viUa o otro lugar,

3ue sea fecha pesquisa sobre todos los que y moraren, o sobre algunos
*ellos. ... La segunda . . . quando la fazen sobre fechos senakdos,
que non saben quien los fizo. La tercera quando las partes se avienen
queriendo que el Key o aquel quel pleyto ha de judgar mande fazer la pes-
quisa.**

298

Title II, Ch. I] CRIMINAL PROCEDUBE IN OTHER COUNTRIES [§ 3

sovereign power, as in France.^ The inquisitors, or "pesquesi-
dores," were always required to have a warrant from the king or
the " Merino major," and, where towns and cities were concerned,
from the person with right to try in these places. We also find
inquisitors at regular stations.^

The " inquisitio " ought, in principle, to be made officially only )
to learn the truth regarding doubtful and hidden matters, of which
certain persons are suspected of being the perpetrators, and are on
that accoimt defamed.* There ought to be at least two inquisitors,
with a clerk ("dos pesquesidores a los menos e un escrivano").*
They ought to be " God fearing men of good repute ; for by their
'pesquisa ' many may die or suffer other bodily punishment." ^

The "pesquisa" takes place in secret. The inquisitors make
the witnesses take the oath, " then they take each of them aside
and examine them ; then when they have examined them, and the
witnesses have said that they have nothing more to tell, they ought
to forbid them on the oath which they have taken, to reveal to
any living being what they have said in the ' pesquisa.' " ® On
the conclusion of the inquiry they must be handed over to the
judges (" e si deven la dar a aquellos que la ovieren de judgar").^

The accused is then summoned or arrested, and his interrogation
is proceeded with ; the judge makes him swear to tell the truth and
has his replies written down by the " greffier," or clerk.® Torture

> "Partida VII," Tit. 16, ley. 2: **Si el Rey de su officio mandasse
fazer pesquisa." C/. ibid,, law 3. — As to the " justicia" of Arafi:on and
his power of inquiry, see Marichalar and Manrique, op. cil,, vol. VI, p.
332 et seq.

* *'Otrosi pueden poner pesquisidores los sefiores de algunos lugares
honrrados, si han poder de fazer justicia en aquel lugar, do quieren fazer
pesquisa. Otrosi pesquesidores y a que deven ser puestos para pesquesir
en las cibdades e en las villas. Et estos deven poner aquellos que han
poder de judgar o de fazer justicia con el consejo et con omes buonos sefia-
fcdos de cada collacion." " Partida III," Tit. 17, ley. 2.

Gloss: *'Istos intelli^e eos qm de jure communi syndici, vel officiales
jurati seu testes synodcQes dicuntur." There were not at that time in-
quisitors, properly speaking, but official informers.

•"Partida III," Tit. 16, ley. 3: "llamanlos (los lestigos) por saber
dellos la verdad de las cosas dubdosas, que son mal fechas abscondida-
mente, de que algunos son infamados."

* Ibid., Tit. 17, lev. 4. — Gloss : "Optima certe provisio si esset in usu ! "

* J bid. J Tit. 17, ley. 4: "Buenos omes que temon a Dios e de buena
fama deven Bet los pesquesidores, puesque por su pesquisa han muchos
de morir o de sofHr otra pena en lor cuerpos."

* Ibid., Tit. 17, ley. 9. ^ Ibid., Tit. 17, ley. 9.

* "Part. VII," Tit. 29 : Djb como deven ser recabdados los presos: "E es-
tonce ei Rey o autel Judgador (que lo mande prender ) deven le fazer jurar que
diga la verdad de a^uel fecho sobre que la recabdaron, et deve lo todo
fazer escreir lo que dixere et andar adeJante en el pleyto." — And the gloss :
"Per istam legem est quotidie in practica quod accusato vel inquisito
recipitur ab eo juramentum de ventate dicenda."

299

§ 3] PROCEDURE IN THE 1600 S AND 1700 S [Pabt II

was extensively employed; "the old sages held it proper to
torment men in order to leam the truth from them." ^ — " Ac-
cording to the ' Fuero-Juzgo ' the judge ought not to proceed to the
torture unless at the request of the party ; the ' Partida ' states
that it is the magistrate's affair, and even obliges him sometimes
to have the torture administered officially; the Gothic law re-
stricts their procedure to serious and important cases, the * par-
tida' assigns no limit to it/' ^ However, the " Partida," following
the example of the Roman law, takes care to exempt certain classes
of persons from the torture.^ Torture was not a feature essential
to the inquisitorial procedure, and it seems that as much should
be said of the oath exacted from the accused.*

What latitude was allowed to the defense in the proceedings
following the inquest? The accused ought, in theory, to re-
ceive communication and copy of the ** pesquisa," so that he might
have, against those who had testified therein, " all the objections
that he had against other witnesses." ^ The text adds, however,
that if the king, or his agent ordering the inquest to be made,
sees fit, the names and testimony of the witnesses shall not be
commiinicated to the accused.® The glossary, moreover, conclu-
sively shows the origin of this provision : " Vide casum specialem,
in quo non datur inquisito copia testium et nominum eorum ; sic
etiam in causa hoeresis propter timorem futuri scandali subti-
centur nomina testium." According to the '*Siete Partidas,"
the assistance of the defeu3er^"'*personero," is forbidden in

^ "Part. VII,'* Tit. 30, de los tormerUos. " Porende tenieron por bien los
sabios antig^uos que fizieron tormentar a los omes, por que pudiessen saber
la verdad ende oellos.'*

» Manna, **Ensayo," p. 390.

»**PartidaVII,"Tit. 30, ley. 2; Persons not tortured : "Menordeca-
torce anos, cavallero, fidalgo, maestro de las leyeso deotro saber, ome quo
fuesse consejero senaladamente del Rey o del comun de alguna cibdad, o
villa del Rey, los fijos dessos sobre dichos, mujer que fuesse prenada.*'

* See the gloss cited above, uote 8, p. 299.

'"Part. Ill," Tit. 17, ley. 11 : " Seyendo la pesquisa feoha en qualauier
de las maneras que suso diximos, dar deve el Rey o los judgadores traslado
della a aquellos a quien taoxere la pesquisa de los nombres de loa testigos
et de los dichos, por que se puedeu defender a su derecho, diziendo contra
las person as de la pesquisa o en los dichos dellos, et ayan todas las defen-
siones que aurian contra otros testigos."

* " Pero si el Rey o otro alguno por el, que mandassa fazer pesquisa
sobre conducho tornado, estonce non deven ser mostrados los nomes ni los
dichos de las pesquisas a aquellos contra quien fuere fecha la pesquisa, e
esto mismo deve ser guardado quando las partes se avienen en tal manera,
que se libre el pleyto por ell a, e non sean mostrados los testigos nin los
dichos d'ellos."

"Partida III," Tit. 17, ley. 11 : The last words appear to allude to a
practice recalling somewhat the acceptance of the inquest of the old French
law; see upon this point the gloss: "Videbatur contrarium dicendum in
causa criminali, ubi non potest renuntiari defensio."

300

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 3

criminal proceedings. The accused must conduct his own
defense.*

There is no mention of the " procurator fiscal " in the " Parti-
das." But in the ** Leyes de recopilacion," which appeared in
1566, in the reign of Philip II, there is a title bearing the
heading " de los procuradores fiscales.'* ^ There exist several
Ordinances of 1436, estabUshing procurators to act before the
courts in the absence of other accusers, and fixing their duties.
In the procedure of the Spanish Inquisiti6n in matters of heresy,
we also find from the beginning, that is to say, at the end of the
1400s, a "promotor fiscal," whose influence is very extensive.
This personage appears to have been created in Spain during
the first half of the 1400 s, and to have been imported into the In-
quisition against heretics, which thus assumes the character of a
state institution.^ In all cases, there is, first of all, a preliminary
examination ; the fiscal cannot accuse before the fact of the crime
and the presumptions have been made known by a denunciation
or by public notoriety. Then the '* libellus criminalis " is communi-
cated to the private accuser or to the fiscal ; the procedure then
follows its course in the accusatory form.*

The " Siete Partidas " became, after some opposition, it is true,
the general law of Spain. In criminal matters, the laws which
followed it, the "Nueva Recopilacion " and the "Novissima Re-
copilacion," did no more than repeat, more in detail, the principles
they had laid down.® The system of criminal procedure, without
ever attaining the preciseness it had in France, presents the essen-
tial features which make it easily recognizable ; it is the secret and
written procedure, the hampered defense, and torture.®

* "Part. Ill," Tit. 5, ley. 12: **En pleyto sobre que puede venir sen-
teneia de muerte o de perdimiento de miembro o de desterramieoto de
tierra i)ara siempre . . . non deve ser dado person ero, ante diximos que
todo homo est tenudo de demauder o defender se en tal pleyto come esta •'
por si mismo e non por personero." C/. Marina, **Ensayo," p. 367.

« Book II, Tit. 13.

* We leave altogether out of cod si deration the Spanish Inquisition^
properly so called.

* Biener, "Beitrage," pp. 208, 209.

* Marina, "Ensayo," p. 434 et seq. Sempere, "Historia," p. 457 et seq.
See '*Novissima recopilacion," Book XII, Tit. 32 : " De las causas criminales,
y de modo de proceder en ellas y an el examen de testigos " (I^os Codigos
Espafioles, vol. X). — The "Neuva recopilacion de las leyes," in the reign
of Fhilip II ; the first edition appeared 1569 by Alnala de Honares. ^e
Marichalar and Manrique, op. dt., yol. IX, p. 251 et seq, — The **Novis-
sima recopilacion" is of the reign of Charles IV; it is dated 1806. See
Marichalar and Manrique, IX, p. 533 et seq.

* These severities were accepted as in Irance. However, a protest of
the Cortes in 1592 against excessive torture inflicted upon accused persons
must be noted. See Marichalar and Manrique, op. cit., IX, p. 318 : *'Cia-

301

§4] PROCEDURE IN THE 1600 S AND 1700 S [Pabt II

§ 4. Oerxnany. The NetherlandB. — Germany preserved the
old Germanic customs in its judicial organization for a long time.
For the men of entirely free condition, we still find in the 12003
and 1300 s the jurisdiction of the old " mallus legitimus " under
the name of " Landgerichte " ; criminal causes where only persons
of quasi-servile condition figured, were tried by the Dizaine or
'* Zent." The old forms of the Germanic procedure were naturally
maintained before these tribunals. In principle, there was no
official prosecution; before a criminal trial could take place a
complainant must present himself ; *' War kein Klager ist, darin
soil och kein Richter sein ; " where there is no complainant, there
is no judge.^ And the complaint could be made only by "parentes
et consanguinei, swermach." The action was oral and public ; the
proofs were the oath with "cojurantes,'* the unilateral ordeals, and,
above all, the judicial duel. The complainant and the accused
must both be imprisoned, as in our old prosecution by formal
party .^ But there, as in our customary laws of the Middle Ages,
the capture in the act played a very important part ; it allowed a
prosecutor to be dispensed with, and neither the ordeals nor the
oath of purgation were then admitted. We find the clamor of
'* haro " under the name of " Genichte," or " Greriifte." Accord-
ing to certain customs a kind of public prosecution was also known,
called the " Riigegerichte." In the judicial assemblies, on certain
days, it was the duty of the mayor, " Bauermeister," or the mere
peasant, to denounce those known to them to be guilty of serious
crimes, and that was sufficient to put the denounced person upon
his exculpation.^ This custom undoubtedly dated from the eccle-
siastical and lay institutions of the Carlovingian period, which
we have already described.^

Sometimes the judge constituted himself prosecutor; "when
he had, of his o\^ti knowledge, the conviction that a person was

ma«roD (the cortes) . . . contra el rigor de los jueces en aplicar el tonnento a
los processados, usando de medios crueles e unusitados, hasta el punto de
c^ue los reos, desperados de sufrirlos, se hayan levantando testimonios a
81 mismos y culpado a otros falsamente."

* Halinus, "Glossarium Gerraanicum medii aevi." Anklaga.

* Upon all these points, see Zoevfl, ** Deutsche Buchtsgesehichte,"
vol. Ill, § 131. — Biener, **Beitrage,'' p. 134 el seq. — "Sachsenspiegel,"
I, 63, §2; III, 28. — **Schwabenspiegel," ch. 78, 79, 234.

' Zoepfl, op. ciL, vol. Ill, p. 432. — Biener, "Beitrage," p. 135.

* Haltaus, V° "Rugen" "specialissiine publicare, indicare, denuntiare
magistratui aliquid, deferre delictum vel excessum denuntiatione oerta
fideli, et jurata qusB pro fundamento sit inquisitioni et convictioni, ad eum
finem ut mag[istratus mulctet aut puniat. In instrumento notarii anno
1457 : Villani de Synodo sancte tanquam obedientes filii representare
ibidemque excessus commissos contra ritum statu torum sanctcB matris
EcclesisB publicare.'*

302

TiTLB II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 4

guilty, in default of other means of proof, he ought to affirm the
guilt by oath, supported by * cojurantes/ " ^ This resembles the
curious institution of the " Besiebnen/' This is what Haltaus
says of it : " Deinde moribus datum erat libertati gentis nostras
ut maleficus in facto non deprehensus, semper, sive adesset accusa-
tor sive minus, per septem testes pans conditionis et status esset
convincendus, durch das Besiebnen. Cum vero segre tantus in-
veniretur testium numerus et magna esset pejerandi licentia, seepe
etiam maleficia transmitterentur impunita ; his quoque in com-
modis, his malis quserendum erat remedium. Itaque non paucse
civitates sseculo xiv et sequent! impetranmt per privilegium ut
quemcumque major pars magistratus sub jurisjurandi sui obtesta-
tione maleficumex publica infamiaaffirmasset, is condemnaretur pro
maleficio." ^ In this transformation we can see the first traces of the
" inquisitio," hidden under the old forms and the old names. This
disguise of foreign institutions appears in Grermany more than once.

Very soon the institution becomes settled ; the judges of different
cities obtain the right to prosecute and judge "upon bad repute,"
" auf bosen Leumund." In 1258, for example, we find that the
archbishop of Cologne could " control publice infamatos inquir<ere
et judicare etiam nuUo conquerente." ' This is equivalent to the
introduction of the " inquisitio " of the Canon law.

In the 1400 s, the old state of matters is everywhere changed
by the operation of a great work. The old courts, the "Schof-
fengerichtes," the " Landgerichtes," cease to be judicial assem-
blies. The populace, however, tired of the "pleading duty"
joyfully accept the relief offered them. The task of the ad-
ministration of justice tends to pass into the hands of the
jurists and trained men. In the enfiefed seigniorial courts, the
judges are functionaries appointed by the seigniors ; beside them
sit the judgers, the aldermen, similar to the council of prac-
titioners whom we have found, in France, around the judge. The
Carolina again mentions them in the 1500 s.* The procedure, the

* Zoepfl, op. et loc. cU., p. 437.

*Voce "Faem." See the charters cited by Haltaus; he adds "habes
lector, si non origines, at memoriam et veram indolem processus inc^^uisi-
torii in Oermania, jam inde a medio ssBculi xiii, quem ex inquisitono et
accusatorio mixtum appellaveris."

» HaUaus, Voce " F»m." — Biener, " Beitrage," p. 138 et seq. — Some-
times the judge also appoints a prosecutor officially (who is called " Klagen
von Amtswegen"), especially where indigent people, the victims of a
crime, are concerned. See HaUaus^ Voce "Elendig ; Biener, "Beitrage,"
p. 140 ei seq.

*Ch. 1: **Von Rich tern, urtheilem und gerichtspersonen.** See
Stintzing, '*Geschichte der deutschen Rechtswissenschaft," p. 61 et aeq,

303

§ 4] PROCEDURE IN THE 1600 S AND 1700 S [Pabt II

fruit of the Roman and Canon law, as developed by the Italian
doctors, made rapid progress. At the beginning of the 1400 s the
" Klagspiegel," the success of which was so great, carefully de-
scribes, besides the accusatory procedure, the inquisitorial proced-
ure. When the judge had established the bad repute (" Leumund,
Geschrei'0> he could bring the action officially, provided a serious
crime was concerned. The employment of torture was allowed,
when there were sufficient presumptions (" Warzeichen ")}
" The reason for the employment of torture, following the Italian
example, was that, on one hand, ordeals and co-swearers were no
longer believed in, and, on the other hand, it was not desirable to
pass sentence upon presumptions alone, whatever their weight
might be." ^ At the end of the 1400 s, these principles, borrowed
from the Italian doctrine, had triumphed in Grermany, and were
confirmed in several special laws, such as the " Wormser
Reformation " of 1498, and the " Tiroler Malefizordnung " of
1499.'

But these changes were not accomplished without giving rise
to grave abuses. This procedure, as we have seen, with its com-
plex theory of proofs, was a delicate and difficult tool to handle.
Now, all the culture possessed by the (Jerman judges and alder-
men often consisted of the lessons of local practice. They had
no way of imbibing the necessary knowledge from the learned
books containing it. Most frequently, incapable of combining
and weighing the value of presumptions, they found themselves
sorely perplexed. In the fear that they had not got together a
complete enough collection of evidence, they employed torture
to extort a confession, no matter what presumptions had been al-
ready obtained. At the end of the 1400 s general complaints are
raised against the bloody and arbitrary justice administered in
Germany.^ In 1498, in accordance with a decision of the " Reichs-
Kammergericht," the emperor officially appoints a doctor of law
as president of each seigniorial court. But the best remedy for
these disorders was bound to be a written law, simple, clear, and
detailed enough to serve as a faithful guide to the magistrates.
We therefore see an important legislative movement take place

^ Stintzingf op. ciL, p. 43 ei seq.; 609.

* Zoepfl, op. et loc. cit. * StinUing, op. ciL, p. 610.

* Ihia., p. 610 el seq. See especially p. 611 : ** Es war der Ausdruck
des Allgemeinen Nothstandes, als des Kammergericht dem Reiohstage
zu Lindau 1496 eine Vorstelluii|: ubergab, in der es hiess dass ihm taglich.
die Klagen gegen Fiirsten, Reichstadte und andere Obrigkeiten vorge-
bracht wurden, das sie Leute unverschuldet ohne Reoht und redliche
Ursache zum Tode venirtheilen und richten liessen."

304

Tnxs II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 4

in this direction, the principal agent of which was an eminent man,
Johann, Freiherr of Schwarzenberg and Hohenlandsberg.^

Schwarzenberg was not a learned man, but a statesman, and a
man with the talent for popularizing scientific knowledge. After
a stormy youth, we find him in the service of the bishop of Bamberg,
whose chief functionary, " Hofmeister," he became. In this posi-
tion he shared in the administration of justice, and conceived the
idea of a reform of the criminal procedure. This idea culminated
in the compilation of an Ordinance, the *' Bambergische Halsge-
richtsordnung," which Bishop Georges published in 1507 with the
force of law. Schwarzenberg accomplished his work successfully
by surrounding himself with learned and devoted collaborators.
In the same way he had Cicero translated and published, although
himself ignorant of Latin.^ The Ordinance appeared in the form
of a book of practice, with diagrams C* Figuren und Reime ")•

Schwarzenberg afterwards passing into the service of the mar-
graves Casimir and Greorge de Brandebourg, a new adaptation of
the Bamberg Ordinance was made, under the name of '* Branden-
burger Halsgerichtsordnung." But it was expedient to under-
take a larger work, which would give a Criminal Code to the
Empire. The proposal had been made and accepted at the diets
of Fribourg (1497-1498) and Augsburg (1500) to draw up a single
criminal Ordinance for the whole Empire, the work being com-
mitted to the care of the government of the Empire, assisted by the
" Reichs-Kammergericht." The matter, however, himg fire,
and it was only at the diet opened by Charles V at Worms in
January, 1521, that a decided step was taken. A commission
was appointed to draw up the Ordinance, and a first draft was pre-
sented by it in the month of April. The conmiissioners had,
naturally enough, taken the already celebrated " Bambergensis "
as a basis for their work.' The diet of 1521 delegated to the gov-
ernment of the Empire the care of submitting the prepared draft
to a revision.^ The enterprise was, however, still destined to

> Schwarzenberg^'s life, as well as the legislation due to or inspired by
him, have been the subject of interesting studies. Weissel, "Hanns
Pr. V. Schwarzenberg," 1878. — Guterbock, "die Entstehungsgeschichte
der Karolina," 1876. — Brunnenmeister, "die Quellen der Bambergensis,"
p. 1879. — Stintzing, "Geschichte der deutschen Rechtswissenschaft"
(ch. 14), 1880. Stintzing summed up the researches of his predecessors.
More recently Josef Kohler and his associates have made elaborate re-
searches into the history and influence of Charles V's criminal statute :
"Die Carolina und ihre Vorgangerin," ed. Kohler and Scheely 3 vols.,
1902-04.

« Stintzing, op. ciL, pp. 613, 716 et acq, » Ibid., pp. 621, 623.

* Schwarssenberg was connected with the Imi)erial government from
1521 to 1524 {Stintzing, op, dt,, p. 623).

305

§ 4] PROCEDURE IN THE 1600 S AND 1700 B [Pabt II

slumber for a time. In 1524 a new draft was presented to the diet
of Nuremberg, but not discussed. A third was, in 1629, submitted
to the diet of Spires, and finally debated at that of Augsburg in
1530. It was not, however, finally adopted, owing to the opposi-
tion of certain States, which refused to renounce their special cus-
tomary laws. At last, in 1532, at the diet of Regensbourg, the
final vote was obtained, thanks to the insertion of a clause, called
" salvatorische Clausel," guaranteeing to each State the main-
tenance of its good and ancient customary laws.^ On 22d June,
1532, thirty-five years after the work was first undertaken, the
States announced to the Emperor its completion.^ The Ordinance
was promulgated as a law of the Empire by Charles V on 27th
June, 1532, under the title of " Keyser Karls des funften und des
heyligen romischen Reichs peinlich Gerichtsordnung." Erelong
it was usually called ** Constitutio criminalis Carolina," or merely
the " Carolina." ^

These laws are not learned Codes, their aim being to furnish a
convenient guide to practitioners of little education. They mingle
the criminal law and the criminal procedure, and the most part
of their provisions are devoted to explanation of the theory of proofs
and presumptions, that complex machinery, complex especially
for uncultivated intellects.^ The law formulated by them is,
however, that created by the united action of the Canon law and
the Roman law. A very remarkable thing is that they contain,
upon many points, the outward forms followed according to the
old Germanic custom ; but these fortns are, in a way, nothing more
than the scenery, and the real drama takes place behind the scenes.

The Carolina, which we select as a type of these kindred laws,
still expounds at length the rules of the accusatory procedure.^

^ The following is the clause: "Doch wollen wir duroh diess gnadig^e
Erinnerung Kurfiirsten, Fursten und Standen an ihren alten woUherge-
brachten rechtmassigen und billigen Qebrauchen nichts benommen

haben." — "In spite of that," says Stintzing (p. 627), " the Carolina was
promulgated as a real Imperial law, the mandatory force of which was
independent of the will or the States; but the 'salvatorische Clausel*
assigned it a subsidiary place ; it made it subsidiary to the local law, al-
though, when the work was undertaken, it was intended to establish an
absolutely inverse relation."

^Stintzing, op. cit.^ pp. 621, 625.

» It is often cited as: "C.C.C.," the "Bambergensis," the "Branden-
burgensis." The Carolina is to be found, along with its various prelim-
inary drafts, in the following edition: *'Die peinliche Gerichtsordnung
Kaiser KarFs V. nebst der-Bamberger und-Brandenburger Halsgerichts-
ordnung," edited by Heinrich Zoepfl, second edition, 1876, and in the
monographs cited by Josef Kohler, above cited.

^ Stintzing says of the Carolina : " It is at once a Code and a textbook,
very like the Institutes of Justinian." Op. ciL, p. 629.

» !* Carolina," Art. 11 et seq.; "Bamb.'^ Art. 17 et aeq.

306

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 4

We find in it the imprisonment of accuser and accused according
to the old principles, the bail, the promises of proof on the part of
the accuser. On the other hand, but few articles are devoted to
the official prosecution ; but in those texts addressed to the practi-
tioners, it has the first place in the order of the articles.^ It ex-
pressly appears, moreover, with its traditional characteristics;
this is the case where '* jemandt eyner iibelthat durch gemeinen
leumut beriichtiget oder andere glaubwirdige anzeygung verdacht
und argkwonig, und derhalb durch die oberke^i: von ampts halben
angenommen wurde." ^ Whether accusation or inquisition is
concerned, the witnesses are heard by commissioners in the well-
known form of the inquest, and the testimony is taken down in
writing.' Complete proof can only result from the confession, or
the testimony " of two or three competent and credible witnesses.^' *
In the absence of such proof, recourse must be had to torture, and
pains are taken to explain in detail what presumptions are sufficient
to cause torture to be administered.^ It seems, besides, that the
confession obtained by torture cannot be dispensed with. Thus
torture will be made use of even when a manifest fact is in issue,
as where a thief is captured in the act, in possession of the stolen
property, and this " so that in regard to such public and undeni-
able facts the final judgment and the punishment may be prose-
cuted with the least possible expense." • According to the " Bam-
bergenais," art. 80, even when there was sufficient proof, the cul-
prit should nevertheless be tortured to extract a confession ; ^ but
the Carolina does not contain this monstrous provision (art. 69).

In regard to the final act of the judicial drama, the '' entlich
rechttag," the Carolina has preserved the traditional forms and
solemnities.^ " On the day appointed," says the old text, " on

* "Carolina," Arts. 6-10 : ** Annemen der angegeben tibelthetter von der
oberkeyt und ampts wegen." — **Bamb." Arts. 10-16.

« Ibid,, Art. 6. » Ibid,, Art. 6.

*Ibid,, Arts. 70-87; ''Bamberg." Arts. 81-90; **CaroUna," Arts.
65-68; "Bamberg." Arts. 77-79.

» Ibid., Arts. 19-45; "Bamberg." Arts. 27-55.

' Ibid,, 16: "So soil jn der ricnter mit peinlicher emstlicher frage zu
bekantnuss der warheyt halten, damit inn solchen unzweiffenliehen mis-
thatten, die entlich iirtheyl und straff mit dem wenigsten kosten, als gesein
kan, gefiirdet und volntzogen werde.t'

^ "Item so der beclagt nach gnugsam beweysung noch nicht bekennen
w5lte sol der alssdann vor der verurtheilung mit peynlichen frage weiter
angezogen werden, mit anzeygung das er der missetat uberwisen sey, ob
man dadurch sein bekentnuss dester ee auch erlangen mocht, ob er aber
nicht bekennen wdlt, des er doch (als ob stet) gungsam bewisen were, so
solt er nicht dester weniger der beweysten missetat nach verurteylt
weiden "

• "Carolina," Art. 78 et seq.; "Bamb." Art. 91 «« »«j.

307

§4] PROCEDURE IN THE 1600 S AND 1700 S [Part II

the arrival of the accustomed hour, the crimiDal hearing may be
announced, in the usual way, by ringing of bells, and the judge
and the judgers should repair to the place of justice, where the
court of justice is usually held, and the judge should tell the judgers
to seat themselves, and he himself should sit, holding in his hand
his staff of office or his naked sword, according to the ancient cus-
tom of each place, and remain gravely seated, until all is con-
cluded." ^ There the judge and the judgers decide, finding ac-
cording to the old formulas that everything is in order.^ The
accused is brought in, the accuser, if there be one, being present ;
spokesmen, ** avant-pariiers," ' or " Fiirsprecher," are assigned to
the parties. There is always one of these for the complaint and one
for the defense ; even when the prosecution takes place officially
an " avant-pariier " proceeds to deliver the formula of the com-
plaint in the name of the sovereign.* The spokesman for the
accused makes a short speech claiming his acquittal.^ This bears
a great resemblance to a real oral action. But it is a mere matter
of form ; the judges have decided upon their judgment before the
day of the hearing, and the judgment is already written. " Before
the final sitting the judge and the judgers shall cause to be read all
that has been written (that is to say, the process) . . . and which
has been brought to their notice. Then the judge and the judgers
confer among themselves and decide what judgment they w^ill
render; if they are in doubt, they shall seek advice among the
jurisconsults, as is provided by this ordinance, and they shall
cause the judgment decreed to be put in writing ... so that it
may be opened at the final sitting." • In fact, at the desired mo-
ment, the judge unfolds the written judgment and reads it aloud.^
This whole procedure was extremely harsh ; but we find traces
of a less implacable spirit in these laws. We find there the maxim :
" It is better to acquit a guilty person than to condemn an inno-
cent one to death." ^ There is a certain consideration for the
defense. Before the emplo>Tnent of torture the judge should
' take care to ask the accused if he is not able to urge some justi-
ficative fact, such as an alibi, showing that he is innocent ; and it is

1 "Carolina," Art. 82; "Bamb." Art. 95.

2 Ihid., 84-85 ; "Bamb." 97.

» Ibid., Art. 88 et seq.; "Bamb." 101 et seq,

* Ibid. J Art. 89: **Bitt des fursprechen der von ampts wegen odersuDSt
klagt." — "Bamb." Art. 103.

» Ibid., Art. 90 ; **Bamb." 105. • Ibid., Art. 81 ; "Bamb." 94.

''Ibid., Art. 94; "Bamb." 110.

* "Bamberg." Art. 13: ''1st besser den schuldigen ledig zulassen das
den unschuldigen zum tode zunerdampnen."

308

Title II, Ch. I] CRIMINAL PROCEDURE .IN OTHER COUNTRIES [§ 4

observed that this warning is necessary " because many, by igno-
rance or terror, although they may be innocent, have not sufficient
knowledge to allege pleas in justification." ^

It was not the law, but science, which was specially destined to
regularize the German criminal procedure. At first, however,
the scientific movement was ineffectual; the authors drew all
their knowledge from the Italian doctors, of whose works they
presented anaemic copies. They did not think much of the Caro-
lina, and judicial practice was then bound to be somewhat hazy
and uncertain.^ In 1620 the Prussian " Landrecht " borrowed its
criminal procedure from the work of the Flemish Damhouder,
of w^hom we shall speak later.^ But in 1635 appeared the work
of a great jurisconsult, which had an immense vogue, namely,
the " Practica nova imperiaUs Saxonica rerum criminalium " of
Carpzov. The author made use of the Roman law, the Canon
law, the Saxon law, and the Carolina ; and he succeeded in con-
structing a complete and logical system.

In Carpzov's eyes, the accusatory procedure is still the usual
procedure.^ But he assigns the greatest place to the inquisitorial
procedure, " nuUo accusatore existente." It is true that he in-
quires, at length, whether this form can be lawfully defended
" num processus inquisitorius jure defendi queat " ; ^ but that is
merely a scholastic doctrine, and not a serious obstacle. He wishes
merely to demonstrate that the inquisitorial procedure is based
upon texts of the Roman law ; he concludes by recognizing that in
his time it is the ** remedium ordinarium." He only admits it,
however, for grave crimes. And he concludes by recognizing a pos-
sible combination and mixture of both forms.*

He divides the " inquisitio " into two parts, the " inquisitio
generalis," which is none other than our " information " ; " Tan-
tmnmodo prseparatoria ad inveniendum delictum et investi-
gandum delinquentem ; '' then the " speciaHs," which " solennis
et ordinaria est ad puniendum et condemnandum." ^ The rules
as to the admission of evidence in the information were very
much the same as in other countries. The " inquisitio specialis "
ended in the appearance of the accused, who was interrogated as
to the " articuli inquisitionales," drawn up beforehand, an essential

» "Carolina," Art. 47: "Und solcher erinnerung ist darumb not, das
manoher auss eynfalt oder schrecken, nit fiirschlagen weist, ob er gjeich
unschuldig ist, wie er sich des entschuldigen und aiissfiiren soil.'*

* Biener, "Beitrage," pip. 160, 161 ; cf. Stinlzing, op, ciL, p. 630 et seq.

» Ibid,, "Beitrage," pp. 164, 165. * Quflestio 103, No. 17.

» Ibid, 103, Nos. 23-30. • Ibid, 107, No. 37. ^ Ibid. 107, No. 14.

309

§ 4] PROCEDURE IN THE 1600 S AND 1700 S [Part II

document of the procedure. Then came the production of evi-
dence; it was doubted, however, whether the witnesses should
always be confronted with the accused.^ The theory of proofs
and torture intervened under the conditions already known.

But the defense was admitted by Carpzov with a liberality un-
known in France : " Cum in processu inquisitorio nee interroga-
toria inquisiti nee reprobatio admittatur, utique omnis facultas
probandi reo adempta sit, remedium defensionis legitime dedu-
cendae ac probands^ ipsi concedendum erit. Idque tanto minus
inquisitio est denegandum quanto certius est defensionem esse
juris naturalis, adeo ut ne bestiis quidem, nedum homini imo dia-
bolo auferri debeat." ^ " It must," he says again, " be held as
certain and indubitable that he has the right (to offer a defense)
during the whole course of the inquisitorial procedure . . .
whether he offer to prove his innocence before the proof of the of-
fense and the deposition of the witnesses, or whether he offer to
do so later, and even after the torture, he ought to be heard." '
Although in the following numbers he attaches some restrictions
to this liberal principle, we are, here, very far from the " justi-
ficative facts " of the French Ordinance of 1670.

Carpzov's doctrine as to the means of presenting the defense is
likewise very liberal : " Moribus fori Saxonici hactenus triplex
modus procedendi obtinuit. Aut enim 1^ inquisitus causas et
argumenta innocentise judici significat, eaque simul articulis
inquisitionalibus includit, ac testes super iis examinari rogat ; 2^
aut peculiares articulos defensionales, quibus argumenta inno-
centiae continentur, judici exhibet, testes que producit ac eos
desuper examinari facit ; 3^ vel etiam absque productione testium
argumenta defensionis suae, quae vel in jure forsan consistunt, vel
jam in inquisitione probata fuerunt, pro informatione judicis in
scriptis disputat, deductionem innocentiae conficit, vulgo ein
Defensiori'Schrift, eamque judici exhibet." ^

Carpzov has no hesitation in admitting that the accused is en-
titled to the assistance of counsel, and he very ably meets the objec-
tion, drawn from the Roman law, that one cannot act by attorney
in a criminal proceeding.^ He is not, however, overfond of advo-

1 Qu808tio 114. Nos. 75. 76. « Ibid. 115, No. 1.

» Ibid, 115, Nos. 21-23. * Ibid. 115, No. 69.

* Ibid. 115, Nos. 88-90: "QucBritur num ex parte inquisiti ad de-
duoendam et probandam ejusdem innocentiam advocatus intervenire
queat ? Quod adfirirvsire Don dubito, et si eoim procurator inquisiti non
admittitur. ut qui nee dominus litis est nee in eum sententia capitalis
ferri potest, aliter tamen res se habet in advocato qui litis dominus non
fit sea reum in judicio prsesentem defendit et consilio suo juvat."

310

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 4

cateSy and he does not admit them all indiscriminately : " Non
tamen indifferenter admittendi sunt advocati^ sed tantummodo
honesti, probi et docti viri, non litium criminalium confusores,
nee rabulse loquentes non eloquentes . . . quales advocati ipsius
diaboli sunt mancipia quae lites alunt ut sua farciant marsupia,
et litigaturientes denudent . . . idque ut assequantur majusque
pretium lucrentur in deductione innocentiae farraginem allega-
torum hinc inde coUigunt et scripta sua in infinitum fere extendunt,
quod s£epissime haud absque t^io et insigni molestia acta in-
quisitionalia legens expertus sum." ^ But what exasperates him
more than anything else is the presumption of advocates who dare
to lecture the judge: "Audent scilicet informare judicem alle-
gationibus suis et demonstrare ex Corpore juris, Glossa aut in-
terpretibus quid de lite criminali judicandum, id quod venditant
pro magisterio, es sey ein Meister-Stilcky quod tamen seque ridi-
culum et inconveniens est ac si segrotus medico curam prsescri-
bere vellet." ^ But he has nothing but respect for good advo-
cates : " Abstineant ergo probi advocati (quorum oflScium honest-
issimum et humano generi non minus proficuum est quam militia)
a "tali stultitia et malitia." ^

Before the right of defense can be useful to him, it is essential
that the accused should know the charges. Carpzov recognizes
that, according to the common law, a copy of them is given to
him, but according to the practice in Saxony, it is considered suffi-
cient to communicate the " acta " to the advocate. " Denique
quseritur: an inquisito innocentiam, ac defensionem suam pro-
band ac deducenti danda sit copia indiciorum aliorum que actorum
inquisitionialium ? quod de jure communi difficultatem et du-
bium non habet secundum Julium Clarum, 1. V. Sentent. § ultim.
qu^est. 49, n** 2 . . . et quod danda sit reo copia indiciorum dicit
esse communem opinionem Ripa . . . sed. in foro Electoratfls
Saxoniffi paulo aUter res se habet : facultas enim indicia, testium
attestata alia que acta inquisitionalia in judicio inspiciendi in-
quisito ejusque advocato conceditur, ita ut liberum sit ipsis in-
dicia alia que quae sibi proficua fore putant, ex actis inquisitio-
nalibus decerpere et consignare. . . . Copia vero actorum dari
non solet." *

The institution of the public prosecutor is unknown in Ger-
many ; in certain districts, no doubt, we find fiscals, but they are
merely the agents of the accusatory procedure, which " follows

> QuiBStio 115, Nos. 9^-95. « Ibid, 115, No. 96.

» Ibid. 115, No. 97. * Ibid, 115, Nos. 99, 101, 102.

311

§4] PROCEDURE IN THE 1600 S AND 1700 S [Part II

the same path whether one is face to face with a private prose-
cutor or a fiscal. In the ' Landesordnung ' of Bavaria of 1553,
the institution of a public prosecutor for crimes is provided for.
A criminal Ordinance for Treves of the year 1726 regulates with
considerable preciseness the oflScial prosecution by a procurator
fiscal." * But there never was a national institution of such a
nature.

In the Netherlands the same movement was taking place as in
the countries we have already noticed. In that countr>^ of local
boroughs the administration of the criminal law remained in
the hands of the municipal oflScers, but there also the secret and
written inquisitorial procedure, the theory of legal proofs, and tor-
ture were introduced. In the 1500 s the transformation is com-
plete. Undoubtedly, the Ordinances of the 5th and 9th July,
1570, prescribed by the duke of Alba, appeared iniquitous and
" almost in themselves gave rise to a revolution." * Neverthe-
less, they tallied pretty well with the generally admitted practice,
and although they were suspended by the peace of Ghent (art. 5),
a certain number of their provisions continued, in fact, to be ob-
served.' However,one of their compilers, Jodoc us Damhouder,
of Bruges, had published a " Praxis rerum criminalium," which
the edition issued in 1601, after the author's death, styles " opus
absolutissimum," * and which we may consider a faithful mirror
of the Flemish practice.

Damhouder still gives the accusation the leading place ; but he
gives a wide field to the " inquisitio," " quam vulgo informationem
prsecedentem appellamus." ^ He admits it in all grave cases;
" ad hoc requiritur ut crimen sit magnum, inquisitione dignum ;
non enim inquirendum est nisi de majoribus criminibus, puta
Iflesse majestatis, homicidii, sodomise, adulterii, perjurii, in-
cestfls, raptfls, furti et hujusmodi." • Under the name of " in-
quisitio," however, he comprehends but the " information," which
must take place officially, or following on a denunciation, or at the
instigation of the fiscal. Then come the other parts of the pro-
ceedings, — except the confirmation and tlie confrontation, which
are wanting,^ — that is to say, the interrogation, the examination,

1 Biener, "Beitra^," pp. 142-144.

* See Allard, ** Histoire ae la procedure criminelle au XVI® si^le," § 236.

» AUardy •'Histoire," p. 425. * Chap. V, 1601 edition.

» Chap. VIII, No. 6. • Chap. VIII, No. 19.

^ Chap. VIII, No. 19 : "Id inquisitionibus per judicem aut fiscum aut
^uempiam ex ipsorum maDdato peragendis, nee ante nee post litis contesta-
tionem voeanda fuerit pars ad videndam in format] onis deductionem vel
ad audienda testium juramenta."

312

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 4

the " visite " of the action, and the judgment. The theory of legal
proofs and torture play their accustomed parts. Damhouder is
even one of those authors who have furnished the most ample de-
tails as to torture. He has, however, formulated a maxim as to
its employment as a means. of proof for which he must be held to
account : " Nunquam maleficus traditur qusestioni cum pars
formalis et adversa oflert criminis manifestam probationem aut
quum res percipi potest per probationem ordinariam." ^ On the
other hand, he admits certain rights of the defense unknown in
France. First is the aid of counsel. " In quovis crimine tam
capitali quam alio concessum est reo per se et item per causidicos,
advocatos et procuratores in judicio respondere et proponere
quaslibet suas exceptiones dilatorias, declinatorias, et peremptorias,
sive rectius elusorias, perinde atque in civilibus negotiis : verum
in principali rerum cardine plane oportet reum ipsum respondere,
proprio ore fateri aut diffiteri.'* ^ As to the copy of the documents,
Damhouder admits that it must be given to the accused as a rule,
especially in the case of a prosecution brought upon the complaint
of a private individual: "judex et fiscus obligantur dare parti
inquisitionis copiam priusquam partem ream cogere possint ad
respondendum, potissimum si fuisset facta inquisitio ex auctoritate
voto et mandato ad instantiam partis, teste Angelo summi judicii
viro.'' But when the prosecution has been brought officially
by the judge he declares that the practice is rather to the contrary :
" Sin autem facta fuerit ex mero judicis oflScio absque alicujus
requisitione, non debet reo de jure tradi informationis copia. In
praxi autem sen Concilio Flandrise Procurator generalis nunquam
dat parti inquisitionis seu informationis prsecedentis copiam;
licet id fieri videamus in multis aliis Flandrise curiis ubi obli-
gantur accusato aut denunciato etiam dare testium nomina ac
cognomina nee non totius inquisitionis seu informationis copiam,
si quando id postulet." '

In the United Provinces in the 1600 s the same principles gov-
ern. We have, as testimony to this, an illustrious criminalist,
Antonius Mathaeus, professor at Utrecht, who, in his book " De
Criminibus," after having studied books xlvii and XLViii of
the Digest, comments on the statutes of his town. He mentions
the complete disappearance of the accusatory system : " Accusa-

> Chap. XXXV, No. 1. » Chap. XXXII, Nos. 1, 2.

• Chap. VI 1 1, Nos. 21-23. It is apparent, from our various citations,
that Damhouder is acquainted with the institution of the public prosecutor
and has seen it in operation in Flanders. It came from France. See
Biener, "Beitra^e," pp. 211, 212.

313

§4a] PROCEDURE IN THE 1600 S AND 1700 S [Part II

toris in jure municipali civitatis hujus mentio vix nulla; sermo
oninis ad prsetorem dirigitur ; cur id fiat non est obscurum, fere
enim desierunt accusare privati, solusque fisci procurator ac pra?-
tor eo munere funguntur. Accedit quod Gallorum et reliquorum
Belgarum moribus privatis quidem licet deferre, nunciare crimina,
actione civili damnum pecuniarium persequi, non tamen accu-
sare." * He treats very clearly of the " information " and of the
decree following thereon, then of the interrogation. He repudiates
the oath exacted from the accused : " Cur enim deferatur jusjuran-
dum pejeraturo ? aut cur speremus eum qui, spreto Numine, caedi-
bus, adulteriis, sacrilegio se contaminavit, idem Numen reveri-
turum injecta jurisjurandi religione V*^ Lastly, he allows the
intervention of a defending counsel : " post interrogationem et
responsionem rei, quoniam non solum de facto sed et de jure quseri
solet, advocatus denegari non debet." ^ But he declares that the
" information " shall not be communicated to the accused ; " vero
informatio reo non editur."

[ § 4 a. Addendum on Oerman Criminal Procedure from the
14001 to the 17001.^

(1) Influence of the Canon Law upon German Criminal Procedure.

The Canon law ^ exerted a great influence in the development
of the criminal procedure obtaining in the German States, because
of the idea, inherent therein, of punishment as a means of atone-
ment and expiation of crime, in the public interest.* Although
this idea appeared in the beginning, only in relation to the criminal
law of the Church, yet it later found a universal acceptance, and
is important as an explanation of the origin of the inquisitorial
procedure. The development of the inquisitorial procedure was
also stimulated by the " denuntiatio evangelica," ^ although the

> "De criminibus," 1715 edition (pp. 627, 628).

« Ibid., p. 632. » Ibid,, p. 633.

* [This Addendum = Chapters XIV and XVII of Professor Mitter-
M AiE R* sJlProgress of German Criminal Procedure." For lliis author and
work, see the Editorial Preface.

It was thought best to ofifer this additional survey of the Oerman de-
velopment, even though it covers the same period ; first, because the
German point of view is here desirable, and next, because two or three
additional topics are considered. — Ed.]

' See RoccOf ** Jus canonic, ad civil, jurisprud. perficiundam quid
attulerit" (Panormi 1839).

* Jarkcy "Handbuch des deutschen Strafrechts," I, p. 51. Guizot,
"Cours de Thistoire modeme, histoire g6n6ral de la civilizat." pp. 12-17.
Abegg, "Lehrbuch des gemeinen deutschen Criminalprozesses, p. 24.
Otto Meier, **de diversit. summor. XKsnal. princip. in jud. rom. et apud"
(Goetting. 1843).

^ This was based upon a passage in the Bible, — Matthew, xviii,
15-17.

314

Title II, Ch. I] criminal procedure in other countries [§4a

original denunciation in the Christian congregation of a wrong that
had been committed, was made only in the name of the Church
and subjected the wrong-doer to penance.^ From the eariy right
of the Church to keep watch over the morals of its congregation,*
there arose a certain ecclesiastical jurisdiction over the laity, in
that the Church on account of certain offenses withdrew from the
offender its privileges. As the power of the Church increased,' the
greater became the range of its criminal jurisdiction, and the more
so, as the Church was sustained in its punishment by the tem-
poral power/ This expansion, however, resulted in the temporal
power in (Jermany (as everywhere else in Europe) ^ declaring itself
opposed to the encroachments of the ecclesiastical jurisdiction.'

(2) Special reasons for this influence.

Of especial importance was the institution of the " Sendge-
richte."'^ These courts grew out of the old system* of visitation
by the bishops (upon whom there was frequently imposed * a
more stringent duty of visitation in their capacity as " missi
dominici "), and were held at certain times of the year by the bishop
or his representative, usually the archdeacon, for the purpose of
investigating the morals of the Church and punishing transgres-
sions. The custom of examining in the Church ^® certain sworn

' See especially Jan, a Costa, Com. ad decretal, pp. 334-349. Schil-
ling, " De origine jurisdict. eocles." p. 66. Biener, ''Beitrage zur Ge-
schichte des deutscnen Strafrechts/' p. 17.

» Walter, "Lehrbuch des Kirchenrechts," No. 183. Jarke, I, p. 56.
RoBskirt, "Geschichte und System des deutschen Strafrechts" (Stuttgart
1838), I, pp. 128-138; p. 172. HUdenhrand, "Die purgatio canonic u.
vulg." (Munchen 1841), p. 36.

' In regard to the ecclesiastical .jurisdiction in the Middle Ages, see
Beaumanoir, **CoiUume8 de Beauvoisis," chap. XI, and also Beugnot, in
the preface to his edition (Paris 1842, 2 vols.), p. lii. H^lie, '* Traits de
rinstmction criminelle" (Paris 1845), I, p. 350. Negroni, "Delia giuris-
dizione eoclesiastica nelle cose crim." (Novarra 18^). Richter, "Lehr-
buch des Eirchenrechts," No. 191.

* Constitut. Friederici II, de jurib. princip. eccles. 1220. "Schwaben-

Louis, et de la 16gislat. de ce prince'' (Paris 1822), p. 156. As to England,
see MiUar, ** Histor. Entwurf der englischen Staatsverfassung," Part I,
p. 227 ; Part II, p. 94:

• Kopp, I, pp. 150, 155^158.

» Boehmer, "Jus eccles. Prot." Lib. Ill, Tit. 39. Kopp, Part I, pp.
118-143. WaUer, "Lehrbuch," pp. 194-199. Biener, "Beitrage," p. 28.
Richter, "Lehrbuch des Kirchenrechts," No. 185.

•Capit. 742, No. 3. Capit. 769, No. 7. Biener, p. 30. Eichhorn,
"Grunds. des Kirchenrechts,'^ II, p. 73. de Kock, "Diss, de potestat, civil.
episeop." pp. 31-62. Unger, "Die altdeutsche Qerichtverfassunf," p. 392.

• de Koch, "Diss. Trajectin. in regno Francor. initiis." Trajecti 1838.
p. 19.

» L. 13. X. "de judic." Rosshirt, " Geschichte," I, p. 181.

315

§4 a] PROCEDURE IN THE 1600 S AND 1700 S [Part II

synodal witnesses, in regard to wrongs and crimes known to them
(the number of which was constantly increased)/ laid the founda-
tion of an institution which could easily destroy the old accusa-
torial procedure. The statement of these informants was the
equivalent of an indictment (" infamatio "), and led to a further
proceeding against .the accused.^ So great was the effect of the
mere accusation of one of these informants that the accused who
was regarded as " infamatus," was obliged to vindicate himself.'
These " Sendgerichte " continued to exist well into the Middle
Ages, although much opposition to them arose in the cities.*

The Canon law exerted special influence because of the fact
that in the spiritual courts, over which judges presided, juridical
proceedings, (with frequent reference to the Roman authorities),
conducted in an attempt to ascertain the truth by systematic
methods, brought about the development of a written procedure.*
The accused was allowed a representative, "Fiirsprecher," learned
in the law, and the widely spread system of appeals made a written
procedure necessary. Because of its inquisitorial basis and the
views relative to the taking of evidence, the procedure gradually
became a secret one.^

The Canon law was influential also because of the fact that,
with its manifest advantage of a purer theory of proof, it soon de-
clared itself opposed to certain features of the Grermanic procedure ;
it was also opposed to the institution of appealing to a judgment
of God (pronounced by the priests), — an institution^ which for
a long time obtained in several countries ® — as well as ® to
trial by battle.^^ Because of this attitude it brought about a change
in the Germanic procedure.

1 Boehmer, c. 1, pp. 34-37. Kopp, pp. 124, 136. Biener^ p. 34.

* Biener^ p. 34. » HUdenbrand, p. 102.

* Warnkoenig, '^Rechtsgesohichte von Flandern," I, p. 436. As to their
duration into the Middle Ages, see de Kock, "diss." p. 45. In Frankfurt
there were "Sendgerichte" until 1370. See Thomas, "der Oberhof zur
Frankfurt," p. 205, also p. 206 in regard to their jurisdiction.

» RosshirU "Geschichte," p. 129. HHie, "Traits," I, p. 387.

* miie, "Traits," I, p. 491.

' E.g., this was the case in Germany. Hildenbrand, p. 117.

* These forms were even used in the " Sendgerichte." See HUdenhrand^
p. 104, and p. 22, as to early views of the Church.

" C. 1. 3. X. "de purgat. vulg." Gonzalez de Tellez, "Ad decretal, ad
Lib. V. Tit. 35," vol. V, p. 497. Judgment of God was in use in the spiritual
courts at an earlier date. c. 20. C. II, qu. 5. Biener, p. 34. In regard
to the opposition of the Church to appeal to the judgment of God, see
Hildenbrand, p. 118. Rocco, loc. cit., p. 46.

^^ There was also judicial trial by battle in the spiritual courts. Gon-
zalez de Tellez, vol. V, p. 496. But at an early date, there were prohibi-
tions of its use. C. 22. qu. 5 C. 1. X. "de cleric, pugnant."

316

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§4a

There were also incorporated in the Canon law, many legal
institutions, purely Germanic in origin.^ They were here first
moulded into the form ^ in which they later appeared in our com-
mon law procedure. On the other hand it is a mistake^ to ascribe
to the courts for the investigation of heresy * the development of
institutions later passing over into the German procedure. The
procedure obtaining in these courts was different from that de-
veloped by the other ecclesiastical courts, and rested ^ upon special
sources of law.* There is no doubt,^ however, that this special
procedure against heretics, before certain heresy courts, was to be
found both in Switzerland * and in certain parts of Germany.®

(3) The '' Carolina:'

Even in the early ISOOs the chief and ultimate source of the
Gennan common law was the " Carolina." This was due to
the appeal of the States to the Reichstag in 1498.^^ Preparation
was made for it by the appearance of the " Bambergensis." ^^ It

* Hommd, "De jure canon, ex ^rman. leg.** (Idps. 1755).

* E,g., acquittal upon oath (Reinigungeid). Later it will appear that
this oath was especially developed in the Canon Law. Hildenbrand,
p. 49.

* For the correct view, see Biener, "Beitrft^,** pp. 60, 151. In regard
to the relation of the heresy courts to the inquisitorial procedure, see
Biener^ " (Jber die neueren Vorschlage zur Verbesserung des Strafver-
fahren,*' p. 122.

* For a knowledge of these heresy courts, the book by N, Eymenicus,
director-inquisitor, is especially useful.

* In Spain there were special sources. Biener, p. 64.

* Contained in the decrees of the councils.

^ For a knowledge of the formation and procedure of the ecclesiastical
courts a book dealing with the English courts is especially useful, viz.
Ougkton, ''ordo judi^ior. sive method. *procedendi in negotiis in foris eccl.
Britan.** (London 1778). See the report in the "Zeitschrift fur ausland.
Gtesetzgebung,*' VII, p. 477, in regard to the statements relative to the
English spiritual courts (1832 and 1833). For a knowledge of the practice
of the spiritual courts, the commentators of the Middle Ages are important.
See Tancredus (1214) in Bergmann, "Pillii Tancredi Gratiae** Hb. de
judic. ordin. (Qoetting. 1842). Savigny, "Geschichte des romischen
Rechts,'* V, p. 107. Rofredus (Savigny, V, p. 164). Pope Innocence IV
(Biener, "Beitrage,** p. 84). Durandus, "Speculum juris cum Joann. Andr.
Baldi et aUor. not.*' (Patav. 1479) (Biener, p. 87. Savigny, V, p. 501).

* Important reference, e.g. in regard to the heresy trials of 1439, 1481,
before the ecclesiastical "inquisitor hsereticaB pravitatis** in the French
portion of Switzerland, can be found in Matile, "histoire des institutions
judiciaires et legislatives de la principaut^ de NeuchAtel'* (Neuch&tel 1838),
pp. 230-243.

* Since the Reformation the civil courts are believed to have taken action
against heretics. However, see Trummer, !'Vortrage uber Tortur,** I,
p. 111.

^ M<Uhlankt "Geschichte der peinlichen Gerichtsordnung," p. 174
(Numb. 1783).

" In regard to the importance of the Radolphzeller and Tyrolean
^'Halsgerichtordnung,** wMch abolished publicity, see Neues Archiv des
Criminalrechts (HaUe), IX, p. 46. Mitlermaier^ in Archiv des Crim.
Neue Folge (1836), p. 319. Waechierj "Ad histor. const, crim.** (Lips.

317

§4 a] PROCEDURE IN THE 1600 S AND 17008 [Part II

was compiled by Freiherr von Schwarzenberg, the author of the
work last mentioned, and published in 1532.^ It cannot be doubted
that in the writing of the " Bambergensis," ^ which formed the
basis of the " Carolina/' there were present in the mind of the
author ^ certain law books ^ which existed in particular parts of
the empire. One need not, however, therefore assume that
Schwarzenberg used these laws as the foundation of his work.
The particular merit of his work lay ^ in the assertion of funda-
mental principles; in a scientific interpretation of criminal law;
and, as far as criminal procedure is concerned, in the arrangement
of a system of procedure in harmony with the newly developed
forms, and with a better theory of evidence, and calculated to
better protect the innocent.* Schwarzenberg ever^'where con-
formed to the common law of his time.^ Yet he also drew heavily
upon the opinions laid down by the learned jurists of the Middle
Ages, relative to the application of Roman and Canon law,® with
an effort * to give to the unlearned judges exact instructions ; to
rectify certain errors that had crept in; and to insert into the
procedure, wherein torture was necessary (for the purpose of pro-
curing a confession), certain conditions that would render it less
dangerous to the innocent.^® Both the accusatorial and inquisi-
torial forms of procedure were allowed. The former was pre-

1835). As to the importance of other early oompilations and sources of
law, contemporaneous with the Carolina, see Birnbaum, in Neues Archiv,
XI, No. 14.

1 Rosahirt, in "Neues Archiv," IX, No. 10.

* See important explanations in Zdpfl, '*Das alte Bamberger Stadtrecht
als Quelle der Carolina" (Heidelberg 1838), p. 167.

* As to the influence of the '*Tyrolensis, see v, Wendt^ in the Baier.
Annalen, 1834, Nos. 137-153. Zdpfl, p. 159.

* The "Landgerichtsordnung" by Maximilian for Austria (1541) which
was published by Prof. Heyn, in Vienna, in the Zeitschrift fiir dsterreich.
Rechtswissenschaft, is especially valuable.

* Rosshirtf " Gteschichte und System des deutschen Strafrechts," I, p.
238.

* Tittmann, *'Oeschichte der deutschen Strafgesetzg.'' (Leipzig 1832),
p. 266.

"^ Zdpfl, p. 170. As to the relation of the "Carolina" to the epitomes
thereof, see Zopfl, **Die peinl. Gerichtsordnung und Projekte" (Heidel-
berg 1841).

* The opinion of Ger stacker , in Archiv, VII, pp. 367 and 462, and in the
*'pro^r. num origo const, crim. bambergens. a TorquemadsB instruction ib.
repeti possit" (Lips. 1837), that he followed the Spanish inquisitions for
heresy, is without foundation. Biener, "Beitrage zur Geschichte der
Inquisitionsprocesses," p. 151. Frey, "observat." p. 53. The contents
of.. notes 2&-30, in Chapter XIV, antcy apply here. See also Biener^
*'Uber die neuem Vorschlage der Verbesserung des Strafverfahrens," p.
123.

•Rosshirt, in "Archiv," IX? p. 616. RosshiH, ."Geschichte," I, p.
243. Biener, "Beitrage," p. 151.
«» Art. 20, 48-61, C.C.C.

318

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§4a

sumed to be the regular forin,^ but it was altered by the insertion
of provisions to the advantage of the accused ; * also by the em-
ployment of torture and by an increased activity of the judge.
Likewise in the inquisitorial form of procedure^ there was inserted
an accusatorial element, in that a trial day * was set at its conclu-
sion, on which only the proceedings theretofore taken place were
read. This inadequate formality would seem to be a remnant
of the old publicity.

The official complaint,* in the form of an accusation lodged by
a public accuser, since it was in use in many countries, was given
recognition. As to the inquisitorial procedure, it is apparently
true that this was regarded as applicable only in the case of the
gravest crimes, and even then only in case no accuser appeared.'
The procedure was written.^

On the whole, the " CaroUna '* seems to have regarded the theory
of proof,* as advanced by the practitioners of that time, as an im-
portant matter, and especially to have made an effort, in cases
where the evidence, however strong, was only circumstantial, to
prohibit punishment, and allow only the application of torture
(to obtain a confession).

(4) Influence of the " Carolina,"

It was impossible that the " Carolina "should immediately gain
a general acceptance everywhere in Germany, or be everywhere
accepted to the same extent.* It depended upon how much the

1 Art. 11, 99, 181, C.C.C. Leue, ** Der dffentl. mundliohe Anklage-
process und der geheime sohriftliohe Untersuchungsprooess '' (Aaohen,
lo4U}.

* Art. 47, C.C.C.

'Art. 6, 10, 211, 212, C.C.C. It is certain that the inciuisitorial pro-
cedure in its later dan&ferous development was not anticipated in the
C.C.C. Maureft **Ge8cmchte des G^richtsverfahrens," p. 355.

* ;'Rechttag." Art. 81, 91, 92, C.C.C. compared with the "Bamber-
gensis," Art. 94, 107, 123, shows that in the latter, this institution was not
so definitely established as in the C.C.C. Biener, p. 156. As to the nature
of the "Rechttag" of that time, see Maurery p. 357. Leue, p. 65.

•Art. 88, 89, 188, 165, 201, C.C.C. Biener, p. 142. Schweizer,
Vierteljahrschrift, 1842, 4 Hft., p. 550, contains valuable information
relative to the continuance of the old forms and official accusations.

*A valuable description of an accusatorial procedure conducted in
Brandenburg in regard to a murder is given in the Baierischen Annalen,
1835, Nos. 37-39. (Explanations by Wendt.) Therein is shown the
wide range of the accusatorial procedure, and with what difficulty even at
that time the inquisitorial procedure was admitted.

' Art. 73, 92, 181-203, C.C.C. The old procedural steps were other-
wise very simple and short. See also Leue, p. 60.

■ Art. 32, 69, C.C.C. That Schwarzenberg had in mind the ** Reforma-
tion" of Worms (1495) is certain. Mittermaier, Archiv, IX, p. 57.

* It is interesting to notice the manner of the development of criminal
procedure in accordance with the C.C.C, in countries other than Germany
iQ which the C.C.C. was received, e,g» in that of Liittich. Relative hereto,

319

§4 a] PROCEDURE IN THE 1600 S AND 1700 S [Part II

German institutions were still adhered to, and especially upon
the extent to which the " Carolina " was applied in conjunction
with the Roman law.^ In any district, the longer the folk courts
remained, the longer the accusatorial form of procedure continued
to maintain its existence.^ The special ordinances of the 1500 s,
dealing with the regulation of the courts,^ and also the formula
books of that time,'* reveal many traces of the old institutions.^
The system of having a public accuser on the trial day® lodge
a formal complaint upon which the trial would take place is found
in several of the old court rulesJ The development of criminal
procedure was brought about through the usage of the courts
and by the publicists who exercised an influence upon its growth
and taught the relation of the passages of the Roman and Canon
law to the provisions of the *' Carolina." *

see Sohetj "Instituts de droit pour le pays de Lddge/' Ldv. V, Tit. 35.
For a presentation of the local criminal procedure, see von TheUen^
"Forme et maniere de proceder en criminel." (Herve 1789). Birn-

haum, in the Krit. Zeitsclurif t fur Rechtswissenschaft und Oesetzgebung des
Auslandes, I. Thl., p. 198. WynantSf *'Rep curisB brab. decis." In the
2d part is an excellent chapter ; "de publicis judiciis/' p. 257.

For the Netherlands, the "crimin. ordinantie*' of Philip II (1570) is
important. See also von Voorda^ "De crim. ordantien etc." (Leyden
1792). For the history of criminal procedure in the Netherlands see
Boscher Kemper^ "Wetboek van Straf verordering " (Amsterdam 1838),
vol. 1, pp. bdv-cxxiii. The C.C.C. was accepted in Fnesland. As to the
Dutch criminal procedure, see also van Linden^ " Regtsgeleerd practi-
caal," p. 387 et 8eq,>

* As to the procedure in Kiel, shortly after the C.C.C, see Falks^
Staatburgerl. Magazin, IV. Bd., p. 209. As to the brevity of the
criminal proceedings of that time, see Dreyer, " Nebenstunden, p. 173.
Maurer, p. 356. As to the length of time before the C.C.C. was accepted
in many parts of Germany ; Birnbaum, in Archiv, XI, p. 422. In Ham-
burg, even in the 1500 s, there was a pubUc penal accuser. It was not
until the 1600 s that the inquisitorial procedure came to prevail. Trummer^
"Vortrage uber Tortur" (Hamburg 1844).

' Examples in Dittmer, "Das Sassen und Holstenrecht " (Lubeck 1843).

» Such were the "Badisches Landreeht" of 1588, Thl. V; the "Pfal-
zische Landrecht" of 1582; and especially the "Henneberger Landes-
ordn." of 1539, Book XII. "Reformat, der brandenburger Halsgerichts-
ordn." of 1582.

*Tenglers, "Laienspiegel," Fol. 132-144. Sawr, "Strafbuch," p.
447. Brand, " Klagspiegel," Fol. 103. Alcial, "Compend. processus
civil." p. 285. In regard to the works of Perneder, Rauchdornj see IVaechtery
in Archiv (Neue Folge 1836), p. 115. Rosshirt, "Geschichte," I, pp. 287,
230.

*A remarkable trial in the Freiburg "Malesizgericht" of 1555, in
Schreiher, " Fortgesetzte Beitrage zur Geschichte von Freiburg," p. 35.

•As to its form in the interesting "Henneberger Landesordn." of
1539, Buch VII, Tit. 3. "Badisches Landrecht" of 1588, Buch V, Tit.
VI.

^"Badisches Landrecht" of 1588, Buch V, Tit. VI, No. 2. Also
for later traces, see A/aurer, p. 357.

*Here belongs: Carpzov, "Pract rer. crimin.". (1635); Brunemann^
"Tract, de inquis." (1674); Kayser, "Praxis crim." (1678) ; Ludovici,
" Einleitung zum peinl. Proc." (1707). See Beiner, "Beitrage," p. 165.

320

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§4a

(5) Later development of German procedure.

Because of the victory of the newer poUtical and social condi-
tions and opinions, the old criminal procedure gradually but com-
pletely disappeared,^ and the inquisitorial fonn of procedure sup-
planted the accusatorial.^ Because of the custom of referring
cases and actions to the universities for decision, and because of
the peculiar attitude of the unlearned " Schoffen," who could
no longer satisfy the requirements of scientific knowledge, and of
their own accord withdrew from the courts, the old system of
" Schoffen " ' gradually disappeared, and the trial day (" Recht-
tag ") was done away with in practice or by statute.'* The loss of
the desire for civic freedom,* the development of the active
functions of the police, and the nature of the court organization,
in which the civil and criminal jurisdiction was exercised by the
same officials, brought about th^ result, that, in the German pro-
cedure, the disadvantage of the secret written inquisitorial pro-
cedure was made more and more evident.

The deterrent theory of crime, becoming prevalent, produced
many harsh features in criminal procedure. Imprisonment of
the accused was favored; acquittal and appeal were restricted;
and the inquisitorial method was applied without restriction. On
the other hand it came about in German procedure, through the
effort of the judicial body, which seems to have been satisfied

Rosshirtj **6eschichte,** I, p. 291. See especially Waechtert ''Gemeines
Reeht/' p. 92, as to CarpzoVj p. 103.

^ Traces of the continuance of the old forms are frequently found. See
Oesterlei, **Handbuch iiher das Verfahren in Straff alien fur das Konigxeich
Hannover" (Gdttin^n 1820), III. Thl., p. 104, note, for the interesting pro-
cedure, as late as 1802, in the ''Strafeericht Jork." And as to the con-
tinuance until 1756, in Baden, of the old criminal courts, degenerated into a
mere comedy, see t;. Draia^ '*Geschichte der Regierung von Baden unter
Carl Priedrich," Bd. I, p. 60. See also a Protocol of 1726 in DuUlingers,
Archiv fOr die Rechtspnege in Baden, I. Bd., p. 547. And for remnants
of the old forms, cf. Zentner, ''Das Gesohwomengericht mit Oeflfentlich-
keit " (Preiberp: 1830), pp. 147-176. For an interesting collection of statutes
showing pubhcity, see Niederrheinischen Archiv, IV. Bd., pp. 200-236.
A remarkable mingling of the old and the new (although not for pro-
tection of the innocent) can be found in the democratic ''Urcantonen"
of Switzerland. See Siegwart MvUer^ " Das Strafrecht der Kantone Uri,
Schwyz" (St. Gallen 1833), p. 112. Examples of " Blutgerichten " in
Switzerland in 1634, in Schauherg^ Zeitschrift fiir ungedr. schweizerische
Rechtsquellen, I, pp. 142, 147. See also Reyscher^ in Zeitschrift fur
deutsches Recht, VI, p. 355.

* A Prussian statute of August 24, 1724, entirely abolished the ac-
cusatorial procedure.

» Jarke m Archiv, IX, p. 84. Maurer, p. 353.

^Interesting reasons m the !'baier. Malefizordnung" of 1616, Tit.
VI, Art. 4.

^ Mittermaier, **Ueber die ofifentliche mundliche Strafrechtspflege*'
(Landhut 1819), p. 15.

321

§5] PROCEDURE IN -THE 1600 8 AND 1700 S \ [Part II

only if it could obtain a confession of the accused^ that the aim of
the entire investigation was, through ingenious contrivances, to
procure a confession. Therefore the procedure tended to become
more slow.

While the German procedure sought to insure the safety of the
accused by means of various reasonable restrictions upon the pro-
ceedings against him, through the withdrawal of the lay judges
(" Schoffen "), and by means of theories of evidence given statu-
tory expression, and also by means of a multiplication of legal
remedies, yet the foundation was too faulty for these means to
guarantee a procedure corresponding to the demands of the times
and in accordance with the prevailing respect for freedom. The
custom of referring cases to faculties, which rendered opinions,
tended only to the development of the form and classification of
procedure.

For the court regulations of the 1700 s, the Hanoverian Criminal
Instructions,^ the (jothia Regulations of Procedure,^ the Prussian
Criminal Regulations,^ and the Bavarian Statute Book^ give a
picture of the common law procedure of that time. The Saxon
statutes ^ were directed rather towards the satisfying of special
local requirements.]

§ 5. England.' — Everywhere upon the continent, in France
and elsewhere, the inquisitorial procedure, secret and written, was

1 "Hannoverische Criminal-instruotion" of April 30th, 1736; printed
in the "Churbraunschweijg^'luneb. Landesverordn." (Qottingen 1740),
II. Thl., p. 796. See especially Freudenheit, in the supplement volume of
the Archiv, 1838, p. 62, and see also p. 68 in regard to the "Criminal-
instruction" published on December 6tn, 1748.

* "Gothaische Processordnimg " of 1776 in 3 vols, (often corresponding
almost word for word with the Hanoverian).

» "Preussische Criminalordnung" of 1717. See relative thereto,
Beiner, "Beitrage," p. 183. Ahegg, "Q^schichte der preuss. Strafgesetz-
gebung" (Neustadt 1841), p. 81.

^ *' Codex Maximil. bav. crim.," 1751. As to this, see B. v. Kreitmaier,
' " Generalverordnung wegen des Verfahrens in Untersuchungssachen,"
of October 27th, 1770. "Instruction, die Abstellung der Marter"
of December 2d, 1770. "Generale wegen des Verfahrens in Untersu-
chungssachen" of April 30th, 1783. See also Pfotenkauer, "Hand-
buch der neuesten in Sachsen erschienenen Criminal-G^setze" (Leipzig
1811). For the best treatment, see Weiakcj "Handbuch der Straf-
gesetze des Konigreichs Sachsen von 1572 bis auf die neueste Zeit"
(Leipzig 1833). Volkmann, "Lehrbuch des im Konigreich Sachsen gelt-
enden Criminalrechts" (Leipzig 1831). WeiBke^ "Handbuch des
Criminal-proc. mit Rucksicht auf sachsisches Recht*' (Leipzig 1840).

• When the present book was written in 1880, for an award of a competi-
tion by the Academy of Moral and Political Science, and appeared in 1882,
the histoQT of the English jury was far from being as well defined as it is
today. There had already been published, on the origin of the jury, the
authoritative work of Brunner, "Die Entstehung der Schwurgerichte,"
which has retained its place of authority, and Bigelow's two ^x>ks, the

322

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 5

now established, a product of the Roman and the Canon law, with
their defects more or less accentuated according to the country.
One European nation, however, had resisted and escaped the conta-
gion, and was destined later to serve, to a large extent, as a model
for the legislation of the French Revolution. This was England.
By utilizing and developing those elements which had to the
same extent existed upon the continent, but had there become
sterile, it had constructed a criminal procedure of its own, which,
though it was not exempt from defects, was oral and public,
and offered material safeguards to the defense. This result it
owed chiefly to two causes, the institution of the jury and the
accusatory principle. It had, at the same time, reduced the pre-
liminary examinations to the limits of strict necessity.

The jury is used by the English in both civil and criminal actions ;
and in criminal matters it is used twice in the course of each action,
as the grand jury, or jury of accusation, and as the petty jury, or
trial jury. Although it is only with these two juries that we are
here concerned, it is necessary, first of all, to speak briefly of the
jury in general, and of the civil jury in particular.

1. Brunner established the fact, confirmed by the later English
works, that the jury in Normandy and afterwards in England, is,
in its origin and early manifestation, merely an application of the
Carlovingian ** inquisitio," a method of proof employed when
the king's interests were concerned, or those of persons to whom
he conceded the -right of recourse to this procedure. It was a
proof by witnes3es, but very different from that of the common
law, where the witnesses had merely to affirm upon oath a formula
settled by the judgment. In the *' inquisitio," on the other hand,
he who conducted it chose from among the inhabitants of the place
where the deed was done a certain number of the most notable
and credible, and, binding them on the faith of their oath to tell
what they knew of the matter, received their report.

The practice of the " inquisitio " was preserved in French law,
with applications varying according to the districts and according

•* Placita Anglo-Nonnannica " and the " History of Procedure in Eng-
land." But the writings of Pollock and Maitland/ of Thayer,* and
of HoLDSwoRTH,* which shed such a great light upon the development of
this institution, had not yet appeared. Sir James Fitzjames Stephen's
" History of the Criminal Law of England '' itself was published in 1883.^ I
have therefore taken the opportunity in the present translated edition to re-
write completely my original accounts, in the light of these notable works.

* " The History of English Law before the time of Edward I," 2 vols., 1895.
* Thaper, " A Preliminary Treatise on Evidence at the Common Law " (Boston, 1898).
*HoIdmrth, "A History of English Law. " vol. 1 (1903). I shall principally cite the two
last-mentioned works, those of Thayer and Holdsworth.

*8ir J. F. Stephen, " A History of Criminal Law in England." 3 vols.. 1883.

323

§5] PROCEDURE IN THE 1600 S AND 1700S [Pabt II

to the times ; it was especially preserved in Normandy, whence it
passed into England at the time of the Norman Conquest. It
was used most of all in administrative and fiscal matters, which is
to be expected from its origin. The authors above mentioned
state that a great portion of the data contained in the ** Domesday
Book " are the result of such " inquisitiones." ^
. The jurors were, therefore, originally witnesses, and they re-
tained this leading characteristic for a long time. But they were
always witnesses of a particular kind. Not only did they differ
from the common law witnesses, but, from their origin, they were
chosen from among the aggregate of the inhabitants,^ and they
were not always interrogated minutely, but often replied by
a mere formula, which was like a judgment ready prepared.'
Thayer says, very truly, that they were *' selected persons," who
gave, upon interrogation, " a sworn answer." * The same author
remarks, moreover, that for more than a century after the Conquest
we are without information as to the operation of the " inquisitio "
in England. " In trying to follow its English history we remark
at once that for more than a century there is little clear, authori-
tative information. We get our knowledge mainly from the scat-
tered accounts of cases in the Domesday Book and in chronicles
and histories. These have been collected by a competent and
careful hand in the ' Placita Anglo-Normannica ' of Dr. Bigelow.
The noble series of extant English judicial records does not begin
until 1194 (Trin. 5 Richard I). Our first law treatise, Glanvill, was
written not before 1187. Our existing law reports begin not earlier
than two centuries and a quarter after the Conquest, in 1292." *
From Glanvill's time, however, the jury really exists, not merely
in civil, but also in criminal matters, and we have but to follow
the development of the institution. It was, moreover, regulated
in civil matters earlier in Normandy than in England, in the pro-

* Thayer f "Evidence," p. 50. — Holdsworth, op. cit., vol. I, p. 145.

* See especially the document of the year 892, quoted by Flach, "Les
origines de Tancienne France," vol. Ill, p. 381, noteS : ** Itaque exhis omni-
bus xiiii electis, in ecclesiam sancte Marie progressi itemque ab ipso vicis-
oomite per prdinam interrogat et discussi absque uUa varietate testificantes
jurati dixerant."

^ Brunner, '*Zeugen-und Inquisition be weis der Karolingischen Zeit,"
p. 157 : **Nicht immer gehen die Aussagen der Oeschworenen so sehr in's
Detail. Haufig werden sie im derselben knappen Form abgegeben, wie die
ZeugeDaussage, welche bekanntlich mitunter That- und Rechtsfrage
zugleich umfassen. Die Aussage beschrankt sich auch bei den Greschwore-
nen nicht selten auf die einfache Formel Res plus debet ease Petro
^iiam Mar lino, so dass die Nebenzeugungsmomente, welche den Einzelnen
zu dieser Aussage veranlassen, latent bleiben. Die Aussage hat in sol-
chen Fallen den Charakter eines Ausspruches."

* Thayer, " Evidence," p. 48. * Ibid., p. 50.

324

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 5

ceeding of " recognitiones," ^ and we shall see presently that it
was introduced at a later date and with greater difficulty in crimes
than in civil actions. For the moment I merely wish to state in
what sense its general and civil development took place.

The institution was slow in taking definite shape. Certain
characteristics which appear essential to the English jury were not
settled until very late. Thus the number of twelve jurors, which
would appear to be one of the fundamental points in the organiza-
tion of the trial jury, was not settled until a somewhat late date.
Not only has the grand jury, the jury of accusation, remained at
twenty-four jurors (twenty-three in reality, in order that the ma-
jority of twelve, entailing the arraignment, can come into play),
but the early constitution of the civil and petty jury was rather
fluctuating and complicated. It included, besides the knights and
the " legales homines " of the county and the " hundred," men
from the four " villse " adjacent to the place where the events
happened.^ Various combinations, moreover, were formed, some-
times of multiple juries and separate juries for the same matter.'
Then, for the petty jury, we see the figures, without being fixed
and unchangeable, usually being settled at the number twelve,
and oscillating around' that number, — fourteen and sixteen, for
instance,^ and sometimes ten or eleven. About the end of the
1300s the necessity for a jury of twelve members was finally re-
garded as essential.^ Although it was the old elements which
conduced to that result, they took effect very slowly. The in-
trinsic merits recognized in the number twelve, and its multiples
and submultiples,' also undoubtedly played a part in the matter.^

Another characteristic and important feature of the English
jury is that its verdict must be unanimous. This was a safeguard
which would appear to be fundamental. But this was not an
original rule. It was perfectly natural, for it is in conformity

» Thayer, "Evidence," pp. 53-55, 59.

' Ibid.t pp. 53, 83. This appearaDce of the four "villcB** in the pro-
oeedingB appears to tally witn very old ideas. A chapter of the "Lex
Salica" treats '*de hominem inter duas villas occisam" (Merkers edition,
t. 73). The new jury charged with the trial of the members of a former
jury, accused of malversation by an "attaint, " usually consisted of twenty-
four members (Thayer, p. 86).

» Ihid., p. 93.

* Ibid., notably pp. 53, 57, 61-63, 82, 84, 86.
» Ibid., pp. 88, 89.

• Ibid., p. 90. — Cf. " BuU of Boniface VIII," preceding "Liber Sextus " :
"Senarium (qui est numerus perfectus) librorum, iUo adjuncto, com-
prehendens."

^Upon this question of the number of jurors fixed at twelve, see
Holdsivarth, op. cit., vol. I, pp. 149, 155 et seq. — Cf. Blackslone's "Com-
mentaries," Book IV, p. 302.

.325

§5] PROCEDURE IN THE 1600 S AND 17008 [P ART II

with the primitive tendencies of the popular mind. We often
find it in the old elections. But it was not enjoined upon the
English jur}^ during the eariy ages of its existence; a majority
was sufficient.^ A passage quoted by Stephen from Britton is
quite emphatic and suggestive in this respect. "And afterwards
let the jurors be charged of what fact they are to speak the truth,
and then go and confer together and be kept by a bailiff. ... If
they cannot all agree in one mind, let them be separated and exam-
ined ^ why they cannot agree ; and if the greater part of them
know the truth and the other part do not, judgment shall be ac-
cording to th^ opinion of the greater part. And if they declare
upon their oaths that they know nothing of the fact, let others be
called who do know it." ' It was only about the end of the 1800s
that the rule of the necessity for unanimity was introduced.^ It
was, apparently, a consequence of the other rule which required
twelve jurors to constitute a petty jury ; it was thought that the
declaration of twelve jurors was necessary to make a valid ver-
dict and, the jury comprising it being henceforth solely and essen-
tially twelve in number, that it was their unanimity which was
necessary.*

The jurors being, originally, witnesses of a peculiar kind, and
not judges, no means of proof were at first produced before them,
neither witnesses, nor other proof. It was they themselves who,
in a way, produced proof to the Court. Fortescue, who was chief
justice of the King's Bench from 1442 to 1460, in his essay ** De
laudibus legum Angliae," probably written before 1470, contrasted
this system of proofs with that of the proof by witnesses (especially
in civil cases) in use upon the continent. " Slender in resource
must he be thought, and of less industry, who out of all men he
knows cannot find two so void of conscience and truth as to be will-
ing, for fear, favor, or advantage to go counter to the truth. . . . •
Who then can live in property or person under law like this, giving
such aid to any one who would harm him (c. 21). Under that
system (c. 23) justice constantly fails from the death or failure

* Thayer, "Evidence," p. 82 et seq. — Holdsworih, vol. I, p. 157 et seq.

* The rdle of witnesses is apparent here as well as that of jurors ; it
recalls certain "inquisitiones" of the Carlo vingian monarchy.

* Britton, Nichols Edition, p. 31. — Stephen, op, cit., I, p. 258.

* Thayer, "Evidence," pp. 88, 89.

* In the grand jury or twenty-three, a majority of twelve is still
sufficient.

* In the 1400|s and the early 1500 s suborned and bribed witnesses were
numerous in France. Rabelais is full of satire on this point. Reform
was brought about in this respect in 1566, by the Ordinance of Moulins,
which restricted testimonial proof in civil matters to unimportant actions.

326

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 5

of Witnesses. In England, on the other hand (c. 25, 26) the wit-
nesses must be twelve; they are chosen by a public official of
high standing, acting under oath, from among persons of the
neighborhood where the matter in question is supposed to exist
or take place, men of property, indifferent between the parties,
subject to challenge by both, acting under oath." ^ The method
of the constitution of the jury also rendered possible the opera-
tion of such a system in early days. The jurors were not taken in-
differently throughout the whole county. They must be men of
the neighborhood " de vicineto.*' ^ The sheriff' always chose a
certain number of them in the same '^ hundred " where the affair
took place, and these had frequently a decisive influence over the
others.^ It was according to their own knowledge of the facts
that the jurors decided, and not according to proofs furnished
them by a regular procedure ; in 1499 their verdict was approved
although it was rendered without any evidence having been pro-
duced before them pre\aous to their separation.^

They had, however, certain means of getting information pri-
vately. They were allowed to make a visit and entry upon the
places,^ and they must sometimes have heard witnesses then.
The parties were allowed to give information to the jurors before
the trials. " Long after^vards it was regarded as the right of the
parties to ' inform ' the jury after they were empanelled and before
the trial."® In 1361, in a real action, the officer charged with
the custody of the jurors received a box containing a deed which
he transmitted to the jurors.^

But the admission of the methods of proof, testified to before
the jurors in open court, and placed at their disposal, was arrived
at slowly and with difficulty. It began, it would seem, by the
submission to the jurors, for their examination, of written and
authentic writings (charters and other documents).® This kind
of proofs was even what appears to have first borne the name of
"evidence."® Then the practice extended its scope; and the
comparison of documents not authenticated was allowed.^*' But
progress was attended with more difficulty in regard to witnesses.
The story is admirably told by Thayer.^^ At first there were
admitted, following a tendency common to many systems of old

* Thayer, "Evidence," p. 130 summarizing Fortescue.

» Ibid., p. 90. « Ibid,, pp. 90, 92.

* Ibid., pp. 132, 133. ^ ij^id,^ p. 157.
« Ibid., pp. 91, 92. ^ Ibid., p. 110.
» Ibid., p. 104. 9 IHd., p. 104.

w Ibid., pp. 106, 107. » Ibid., pp. 105-133.

327

§ 5] PROCEDURE IN THE 1600 S AND 1700 S [Part 11

law, only documentary witnesses, in confirmation of the docu-
ments to which they had been witnesses.^ Gradually, however,
testimonial proof was more freely admitted. From the first
half of the 1300 s the witnesses are clearly distinguished from the
jurors.^ But during the whole of the 1400 s, there are only volun-
tary witnesses, and these could only testify with the authority of
the Court.^ And they often incurred a heavy liability by the
mere fact of giving their testimony. WTiat appears to have played
an important part in this development was the interv-ention of
the counsel of the parties, who had a great infiuence from the 1300 s.
The explanation made by them of the pleas urged by their clients
in the statements of counsel carried great weight, and in the
1400 s were even regarded as evidence.* They announced and
explained the testimony which it was in their power to bring,
and the hearing of that was, in a measure, a supplement to the
statement. It often happened that the witnesses announced by
the counsel were not heard; but even in the 1400s they were
not usually in Court.^ It was in the 1500 s that the general
rule was at last introduced, according to which the witnesses testi-
fied in open court, before the jurors, and were examined by the
Court or the jurors.'

But now that the proofs were produced before them, the jurors
necessarily became judges — judges of the fact,^ and ceased to be
witnesses. That involved two things. Logically, the jurors
must»altogether cease to play the part of witnesses. Otherwise,
confusion would arise; two kinds of witnesses appearing in the
case, one set at the same time judging the testimony of the other.*
But although the status of judges of the fact became more
and more dominant as regards the jurors, the result was slow in
taking place. In 1670, in Bushel's case, the Court of Common
Pleas, in an opinion of Chief Justice Vaughan, still admitted
very plainly that the jurors could rely upon the proofs of which
they had a " private knowledge," and which were unknown to the
Court. " The judges cannot know all the evidence which the
jury goes upon ; they have much other than what is given in court.
They are from the vicinage, because the law supposes them to be

» Thayer, "Evidence," pp. 92 et seq., 102, 113.

« Ibid., p. 100. » Ibid,, pp. 129, 130. I

* Ibid,, pp. 112, 119. » Ibid,, pp. 119, 121-123. !

• Ibid., pp. 102, 133. Cf, upon the whole history of witnesses, Holds-
worth, op, ciL, 1, 158 ef seq.

' Thayer, "Evidence," p. 165 et 8eq, Holdsworth, op, cii., I, p. 164 et seq.
» Thayer, "Evidence," p. 137.

328

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 5

able to decide the case though no evidence at all were given in
court on either side. They may, from this private knowledge of
which the judge knows nothing, have ground to discredit all that
is given in evidence in court." ^ No doubt it had been endeavored,
by the doctrine of '* maintenance," ^ to repress the abuse of the
influence which one juror might be able to exercise over the others
in favor of one of the parties. But the principle remained intact ;
the jurors could use and rely upon their personal knowledge.

This principle, however, was destined to disappear ; it was essential
that the jury should be led to decide solely upon the proofs furnished
in court. But that rule was introduced slowly and gradually.
The court began by inviting those of the jurors who possessed a
personal knowledge of the facts to produce it, as a witness would,
in open court.' Finally it became a rule of law that the jurors
could not rely upon their personal knowledge, but only upon the
evidence produced in court : " It was necessary to accompany
this practice by an endeavor to make the jury declare publicly
their private knowledge about the cause. This effort prospered
but slowly. The old function of the jury was too deeply ingrained
to give way in any short time ; the judges long contented themselves
with advice, with laying it down as a moral duty that the jury
should publicly declare what they knew. But while the jury's
right to go upon their private knowledge was emphatically recog-
nized in 1670, and continued to be allowed in the books well on into
the next century, yet the enlarged practice of granting new trials,
and the growth and development in the seventeenth and eighteenth
centuries, was steadily transforming the old jury into the modem
one ; and at last it was possible for the judges to lay it down for law
that a jury cannot give a verdict upon their private knowledge." *

The English law had, in this way, applied to the jury one of
the fundamental rules of the Romano-Canonic system, as that
governed upon the continent ; it was, indeed, its point of depar-
ture that the judge must judge " secundum allegata et probata,"
and that he must take into consideration only those facts which
he kaew as a judge and not as an individual.

I have said that, to make the jury true judges of the fact, a
second element was essential, and that also related to the system
of legal proofs. It was admitted that the jury must decide accord-
ing to the evidence, the testimony.^ But that was open to two

1 Thayer, "Evidence," pp. 167, 168.

* Ibid,, p. 126 et aeq. » Holdaworth, Op. ciL, I, 160.

* Thayer, "Evidence," p. 170. » Ibid., p. 162.

329

§5] PROCEDURE IN THE 1600 S AND 1700 S [Part II

constructions. In the first place, it might be understood as apply-
ing the system of *' moral proofs," that is to say, making the con-
vincement of the jury the sole rule by which to weigh the value
of the testimony and the evidence in general. It cannot be doubted
that this was the rule first of all followed, and it was a* necessary
consequence of the rule allowing a juror to decide according to his
private knowledge : " An independent original knowledge of the
facts was attributed to the jury, and not a merely inferential and
reasoned knowledge. So long as this theory was true and was
really a controlling feature of trial by jur>', witnesses must needs
play a very subordinate part. They were not necessary in any
case. When they appeared, the jury could disregard all they said ;
and should, if it were not accordant with what they knew. Grad-
ually it was recognized that, while the jury might not be bound by
the testimony, yet they had a right to believe it, and that they
were the only ones to judge of its credibility." ^

But the juridical minds of the English, at an early date, decided
against this complete independence of the jury, as so understood.
It was always admitted that the court, that is, the judges, must
direct it and exercise a certain control over it. It was always the
presiding judge who had the function of " charging " the jury,
that is, reminding them of their duties and pointing out to them
the questions which they had to solve. And in good time the
theory of legal proofs took shape in civil matters, destined to lead
to the modem law of evidence.^ The proofs were objective, and
the judge had to follow them; should the jury not be made to
respect them? Must the court allow them to render verdicts
contrary to the manifest proofs, "against law and evidence"?*
It was thought not ; but, on the contrary, that the jury should
be punishable when it rendered an arbitrary verdict, and one con-
trary to the law : '* It became the chief question whether they had
such evidence before them as justified their verdict. If they had,
they were not punishable." ^ But how were the jury to be com-
pelled to act thus ? "If they had not (sufficient evidence) , why pun-
ish them for what, perhaps, they did not know ? "^ The old English
law recognized a proceeding, the " attaint," by which the injured

' Thayer, "Evidence," pp. 137, 138. See also, upon the question of
"moral proofs" and "legal proofs," ibid., pp. 105, 109, 111, 114, 120, 133,
137, 139, 140, 162, 164.

2 Ibid., p. 179 et sea. ; Ch. VI, p. 263 et seq.

' Ibid., pp. 164, 167, 169, 181.

* Ibid., p. 138.

^ Ibid., p. 138 (this is the remainder of passage cited in the preced-
ing note).

330

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 5

party could have the jurors who had rendered an unjustifiable
verdict sentenced to severe punishment and could also have the
reversal of the judgment pronounced. This form of action, origi-
nally restricted to certain hypotheses, became generalized (except
in criminal cases) ; the accused jurors were judged by a new jury,
who could only consider the evidence produced on the first trial.^
But this method was ineffective ; the proceedings w^ere complicated,
and the jurors for the " attaint " were indisposed to serve against
those of the first action. The " attaint," therefore, fell into desue-
tude.^ Another system was then introduced; the guilty jurors
were proceeded against penally, for the infliction of an arbitrary
penalty or imprisonment. Numerous prosecutions took place,
under these circumstances, before the Star Chamber, especially
on account of acquittals in political actions.^ After the abolition
of the Star Chamber, the courts of common law were themselves
in the habit of sentencing to imprisonment or fine jurors whom they
considered guilty of having rendered groundless verdicts, contrary
to the court's directions.^ But the law changed. In 1670 it
was finally settled in Bushel's Case that the jury could not thus
be condenmed under these conditions, as they were judges of the
fact.*

The courts, however, bethought themselves of another pro-
ceeding, which had received prior applications, but which was
enlarged, extended to new hypotheses, and which contained
nothing penal. It was, to consider the verdict as void and to
grant the party complainant a new trial. " The courts found a
remedy by a simple extension of their very ancient jurisdiction
of granting new trials in case of misconduct. If a jury should
accept food from one of the parties while they were out, or should
take from him a paper not delivered to them in court, and should
afterwards find for him, the court would refuse judgment and
grant a new ' venire.' Why not, then, if the jury should go plainly
counter to law, or should give an irrational, absurd, or clearly
false verdict, do the same thing ?"*^ This practice developed
in the second half of the 1600 s and in the 1700s,^ and English
judges had thereby arrived at the point of imposing upon the
jury a system of legal proofs. This is what makes the English
jury so different from the French jury, in criminal cases (although

* Thayer, "Evidence," p. 143 et seq. — Holdsworth, op, ciL, I, p. 165 et aeq.

* Ibid., "Evidence," p. 149 et seq. » /6id., pp. 162, 163.

* Ibid.y pp. 163, 164. « 75^.^ pp. 165-168.
•/Wd-, p. 169; c/. p. 139.

' Upon the growth of new trials, see Holdsworih, op, ciL, I, p. 169 et seq,

331

§ 5] PROCEDURE IN THE 1600 S AND 1700 S [P ART II

a new trial is not granted as a general rule in England) ; the French
jury following, and even exaggerating, the system of moral proofs.
The English system of legal proofs — the " law of evidence " —
is, moreover, very wide in a certain sense : all methods of evidence
are always admitted, on principle; but, to constitute evidence,
the data offered ought, in such and such a case, to present pre-
scribed characteristics; for instance, witnesses who have only
learned facts from hearsay are not competent. The judge tells
the jury what constitutes evidence and w^hat does not, and they
must follow his instructions under pain of seeing the verdict (in
civil actions) set aside by the granting of a new trial by a higher
court. The instructions given by the judge to the jury are thus
of vital importance, and under the existing law a new trial ought
also to be given in case of misdirection by the judge.

2. The application of the jury to crimes presents certain special
features. It began, it would seem, by the jury of accusation, or
grand jury. It distinctly appears in the Clarendon Assize of
1164.^ It is manifestly an application of the jury of denuncia-
tion, which we have seen in the Capitularies and the Church
procedure. The jurors were obliged to denounce the culprits
of whom they knew as to crimes specified by the authorities. But
the denunciation thus made did not entail, as a necessary conse-
quence, that the persons denounced should be tried by a jury-
It would seem to be lawful that, according to the tradition of this
system, they should exculpate themselves by the " ordeals "
or by the oath-helpers, " co-jurantes *' ; but the Assize itself
appears to discard the ordeals in favor of another solution, which
it does not clearly indicate, except as to imprisonment, which may
be of prolonged duration.

The trial by jury was, however, already there, and it is known to
Glanvill, who describes it. He already calls it by its name of
" inquest by the country ** ; he who submits himself to it is said
to refer to the " patria " — to the country. But it makes its
appearance with a very notable characteristic, and one which it
will retain, partially at least, down to the 1800 s. Trial by jury
must be expressly accepted by the accused. He could not merely
declare whether he acknowledged himself to be guilty (in which
case sentence followed without further procedure), or whether
he claimed to be innocent (pleaded guilty or not guilty),^ but must

1 Thayer, "Evidence," p. 57, — Holdsworth, I, 147.
* Cf. "Tr^s-ancienne Coutiune de Bret«gn^e/' PlanioVa edition, c. 101,
p. 144.

332

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 5

also expressly declare that he " put himself upon the country/*
This was even a rule which would be retained in the arraignment.
He who remained silent and persisted in not making this declara-
tion could not be tried, either as confessing or denying. To com-
pel him to accept, a horrible torture was made use of, the '* peine
forte et dure," which, however, came into vogue gradually,^ and
which is well enough known to us, for it is described by Victor
Hugo in his novel, "L'homme qui rit.'* It would have been a
simple enough matter to regard this silence as equivalent to a
confession. Bracton already suggested this solution in the 1200 s ;
but it was only adopted by the English in 1772 in the majority of
cases, and absolutely in 1827.^

What was the reason for this necessity for acceptance? Vari-
ous reasons are given by the English authors. According to some,
it arose from the fact that, proof by jury having succeeded the old
methods of proof, which had never been abolished, the consent of
the defendant was necessary, so that the proceedings should be
regular ; it was, in a way, a renunciation on his part, of his right
to make use of the old methods. Others (and this is funda-
mentally the same idea in another guise) claim that it is merely
an application of the " jurata," which was, in civil matters, an
application of the jury, which latter intervened, aside from any law-
ful provision, from the consent of the parties to the cause.' But
it would seem that another derivation is possible. The inquest by
the country, in our ancient France, had to be accepted ; now, the
English trial jury bears the same name, and, in its origin, is cer-
tainly a descendant of that institution. We have even seen that,
in Normandy, when the inquest by the country had replaced the
ordeals in criminal matters, imprisonment ** with little to eat and
drink " was used to compel the accused to accept it.

The criminal jury was not yet much in use in Glanvill's time.*
But it gained ground in the 1200 s and especially in the 1300 s.^

* Thayer, ** Evidence,'* p. 69 et seq. This erelong consisted in a horrible
proceeding. The prisoner was put in a dungeon, and stretched, naked,
upon his back ; an iron weight, as heavy as he could bear, was placed
upon him, and, for sustenance, he was given, the first day, nothing but a
piece of bread, the second day, three mouthfuls of stagnant water, found
nearest to the prison, and so on, 6n alternate days, until he died or
answered. Before pronouncing this sentence, a triple admonition, "trina
admonitio," was made to him, recalling what we have found in our own
proceedings against voluntary mutes. See Blackstone, IV, p. 327 et seq,

* HoldsvxyHh, I, pp. 153, 154.

' Thayer J ** Evidence," pp. 59 et seq,, 69 et aeq. — Holdsworih^ 1, 151 et 8eq.

* Thayer, "Evidence," i>. 64.

' • Ibid,, p. 67 ; see the information as to the years 1307 and 1346 there
given, and especially the notable bull of Clement V.

333

§51 PROCEDURE IN THE 1600 S AND 1700 S [Part II,

However, the old procedure by battle, the " appeal," always
remained in existence; it was not to be abolished until in the
1800 s. While that is true, it gradually lost public favor. At an
early date the exception " de otio et atia " could be opposed to an
appeal, allowing the accused to claim trial by jury.^ But the event
which most contributed to render the use of the jury usual was the
suppression of the ordeals, decreed by the Lateran Council of 1219.*

But (laying aside the number of jurors) how was the petty jury,
the trial jury, composed? It seems highly probable that, most
frequently, the jurors were taken from among the members of the
grand jury, to judge the affairs of the same " inquisitio." It there-
fore happened that it was, in part at least, the same persons who
in the first place decided upon the arraignment, and then upon the
guilt of the accused. But a reaction set in ; it was acknowledged
that the grand jurors and the trial jurors ought to be different
persons, and from the beginning of the 1300 s the accused could
challenge whosoever had made a part of the grand jury for that
reason alone.^ The system of challenges, in effect, was established
at an early date; it is a feature differentiating the jurors from
witnesses and assimilating them to judges. The dignity of the
jury, moreover, always continued to increase, and in the 1500 s
Thomas Smith calls them " the representatives of the people.** *

The criminal jury, like the civil jury, first of all judged without
" evidence," without witnesses testifying before them.^ The ju-
rors were deemed to have made each his own inquiry beforehand.
Only the party complainant, the pursuer, was permitted to ex-
plain the case. A passage in Britton, quoted by Stephen, and
which we have already used, furnishes important information in
this respect. " We will also that any man, when he is indicted
of a crime touching life and limb and perceives that the verdict
of the inquest upon which he has put himself is likely to pass against
him, desires to say that any one of the jurors is suborned to con-
demn him . . . the justices thereupon shall carefully ask the
jurors whether they have reason to think that such slander is
true. And often a strict examination is necessary, for in such a
case inquiry' may be made how the jurors are informed of the truth

•

» Thayer, "Evidence," p. 68.

* Ibid. J p. 69. — We have seen the same statement in the **Summa de
legibus NormanniflB."

^ Ibid. J "pp. 81, 82; cf, Stephen, "History of Criminal Law," vol.
I, p. 253.

* Thomae Smithii Angli, "De republica Anglorum libri tres," Lugduni
Batavonim, 1630, Book III, ch. 26, p. 237.

* Stephen, "History of Criminal Law of England," Vol. I, p. 255 et «eg.

334

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 5

of their verdict ; when they will say by one of their fellows, and he
peradventure will say that he heard it told for truth at the tavern or
elsewhere by some ribald or other persons unworthy of credit, or
it may be that he or they by whom the jurors have been informed
were intreated or suborned by the lords or by the enemies of the
person indicted to get him condemned, and if the justices find this
to be the fact, let such suborners be apprehended and punished by
imprisonment and fine. And if the jurors be in doubt of the
matter and not certain, the judgment ought always in such case to
be for the defendant." ^

The introduction of witnesses before the jury followed very
closely the same development in criminal as in civil cases, except
for particular rules, which will be mentioned a little later on. It
was in particular because of acquittals rendered by the jury con-
trary to the evidence that the judges of the various courts pro-
nounced punishment of fine against the jurors during the whole
of the 1500 s and the greater part of the 1600 s.^ Certain special
rules, however, prevented their action from being as effectual as
in civil matters. In the first place, the " attaint *' was quite
possible against the grand jury,^ but not against the petty jury ;
which appears to have reference to the rule according to which the
'* attaint " was not possible when both parties had expressly ac-
cepted the jury.* Finally, according to a rule of law settled in
the second half of the 1500 s, a new trial was not granted in crimi-
nal cases for felonies (neither in case of acquittal nor in case of
conviction), neither for nor against the king; it could be granted,
but very rarely, for simple misdemeanors.^ There was still another
special jury in criminal affairs, which was not a trial jury, but a
jury of accusation ; it had a tremendous importance in the eyes
of the men of the 1700 s, and it is still in existence ; this is the coro-
ner's jury. The coroner (" coronator," — representative of the
crown) was of very ancient origin. Stephen, following Stubbs,
makes the office date from the year 1194; ^ but more recent re-
searches attribute to it a greater antiquity. It probably goes
back to the early days of the Norman monarchy, which in this had
only to follow the customs of the Anglo-Saxon monarchy. The
coroner was originally an officer charged with watching over the
fiscal interests of royalty, and, for that purpose, he made adminis-

^SUphen, "History of Criminal Law," Vol. I, p. 259.

« Thayer, "Evidence," p. 62 et seq. « Ibid., p. 161.

* Ibid., pp. 161, 162.

» Ibid., pp. 163, 175-179. — Holdswarth, I. pp. 85, 86.

« Stephen, " History of Criminal Law," Vol. I, p. 217.

335

§5] PROCEDURE IN THE 1600 S AND 17008 [P ART II

trative *' inquisitiones " by " jurati," whom he convoked. Among
his many duties he had the task of visiting the spot when a mur-
der had been conmiitted or a sudden and suspicious death had taken
place. His duty was to inquire into the cause of the death, and,
in case of crime, to search for the guilty parties. For this pur-
pose, be convoked a jury of twelve members and four, five, or six
persons from each of the adjacent " villae.'* These four " villse,'*
in case of murder, the corpse being found, already played a part
in Anglo-Saxon laws.^ This coroner's inquest was kept up and
regulated.^ The coroner had power to compel the witnesses he
had heard to come to testify judicially at the time of the trial.
The verdict rendered by the coroner's jury, when it is affirmative
against one or several certain persons, allows him alone, without
other accusation, to prosecute them criminally: "The inquisi-
tion of the coroner always was and still is a formal accusation of
any person found by it to have committed murder or manslaughter
(or to have found and concealed a treasure),' and a person may be
tried upon an inquisition without any further accusation." *

3. The English criminal procedure is essentially accusatory, and
it is a system of free accusation, that is to say, the right to prose-
cute and accuse belongs indiscriminately to every citizen, " cuivis
ex populo," whether he be or be not personally interested in the
crime which he prosecutes. Stephen gives the following striking
formulae of this system : " In England and so far as I know, in Eng-
land and some English colonies alone, the prosecution of offenses
is left entirely to private persons or to public officers who act in
their capacity of private persons and who have hardly any legal
powers beyond those which belong to private persons. . . . The
[modem] director of public prosecutions, when he has instituted a
prosecution for the most serious offense and one in which the whole
country has a deep interest, has no other powers than a private
person would have in respect of the prosecution of a fraud which
affected no one but himself. — It is perhaps more singular that
the converse is true. Every private person has exactly the same
right to institute any criminal prosecution as the Attorney-Gen-
eral or any one else. A private person may not only prosecute
any one for high treason or a seditious conspiracy, but A may
prosecute B for a libel upon C, for an assault upon D, or a fraud

1 Holdsworth, I, pp. 148. 149.

^Stephen, "History of Criminal Law," Vol. I, pp. 217, 218, especially
the details as to the "Statute de officio coronatons of 1276.

* This is one of the powers remaining to the coroner in fiscal matters.

* Stephen, "History of the Criminal Law," Vol. I, pp. 218, 219.

336

Tttlb n, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 5

upon E, although A have no sort of interest in the matter, and
C, D, and E may be altogether averse to the prosecution/' '

This system, well known in ancient history, and which was in
full vogue at Rome at the period of the " questiones perpetuse,"
permits the admission of two distinct elements.

In the first place, the procedure is thoroughly accusatory in this
respect, that there can be no criminal action vrithout an accuser.
In the 1500 s this applied even in a formal manner. At that time,
even when a person had been arraigned by the grand jury, even
when he had confessed before the magistrate, he was released if
no accuser presented himself before the trial jury and a formal
appeal was drawn up petitioning for the accuser.

This is explained by Thomas Smith in very clear terms : "Ex
quibus apparet delationem aut in judicium postulationem {indicts
ment) nihil aliud esse quam duodecim virorum (the twelve jurors'
making the majority) prejudicium quod finem tamen principali
n^otio nullum affert, sed conjecturam aut opinionem verius,
quinetiam de absentibus etiam inquiritur et de non citatis. Nam
tametsi aliquis delatus fuerit, si nemo eum in judicio stantem
reum peregent, nemo ibi aliquid objecerit, confertim absolvitur.
. . . iEterum ubi incarceratus omnino non est delatus sed in
carceren ex vehementi aliqua suspicione traditus, neque aliquis
ilium facti insimulat, dracone judiciario hoc verba clara voce re-
dtante: ^ AB vindvs ad sceptum Curiae adstat. Si quis ilium
criminis postulare vduerU, accusaiianem nunc iwftUuai, nam vino-
tus liberaiionem expectat.' Si nemo eum tunc accusavierit, m
libertatem pristinam asseritur, postquam ergastulario stipendia
sua persolverit. Qui sic liberantur voce preconis liberati
dicuntur." *

At the present day, the grand jury always makes its present-
ment and finds the indictment upon an accusatory document,
a " bill," which is presented to it by the prosecutor. There is
always a prosecutor, although these are of very different kinds :
" Some one is bound over to prosecute — sometimes the person
who has been injured, sometimes a policeman, sometimes the magis-
trate's clerk. There is a considerable diversity of practice in differ-
ent parts of the country, and in some towns one and the same per-
son— a solicitor — is bound over to prosecute in every case.'*'
To this rule is related the power which belongs to the courts occa-

^ Stephen, "History of the Criminal Law," Vol. I, pp. 493, 495.

* "De republica Anglonim." Book III, ch. XXVI, pp. 228, 229.

• Maitland, "Justice and Police," p. 138.

337

§ 5] PROCEDURE IN THE 1600 S AND 1700 8 [Part II

sionally to compel certain persons to prosecute, or to take their
recognizances in that respect.^

The second element of the system is the right, referred to
above, of every citizen to institute any. prosecution whatsoever.
How did this system arise? It was not original. The grand
jury, when it appeared, appears first of all as a jury of denunci-
ation, whose members were obliged to name those whom they
believed to be guilty of certain crimes. In the 1700 s the grand
jury had still the right of spontaneously arraigning those whom
they deemed guilty, without any " bill " having been laid before
them. This was a " presentment " in the strict sense of the
word, and it is with this that Blackstone begins his explanation of
the methods of prosecution : " A presentment, properly speaking,
is the notice taken by a grand jury of any offense of their own
knowledge or observation, without any bill of indictment laid
before them at the suit of the King, as the presentment of a nui-
sance, a libel and the Uke ; and upon which the officer of the Court
must afterwards frame an indictment, before the party presented
can be put to answer it." ^ It is evident from these last words
that there was an endeavor being made as far as possible to restore
the " presentment " to the common law.

How, then, is this accusatory system arrived at? Not by
preconceived idea or by legislation, although the English authors
readily present it as offering to society all safeguards.* This is
what Stephen says in this respect : " I do not think that the exist-
ence of this state of the law can properly be regarded as the re-
sult of design. It seems rather to have been the effect of histori-
cal causes already referred to. One cause is no doubt to be found in
the system of appeals or private accusations. They were in nearly
every respect in the nature of civil actions, and were conducted
like other private litigations. But another cause is to be found in
the history of trial by jury. So far and so long as trial by jury
retained its original character of a report made by a body of
official witnesses of facts within their own knowledge, a criminal
trial was a public inquiry, or rather a report upon a public inquiry,
into the truth of an accusation of crime; but, when the jury as-
sumed its present character, the preparation of a case for trial
consisted no longer in inquiries made by the jurymen themselves,
but in the collection of evidence to be submitted to them. No

1 Maitland, "Justice and Police," p. 138.

« "Commentaries," IV, o. 23, 301.

» Stephen, "History of the Criminal Law," Vol. I, pp. 495, 496.

338

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 5

direct express provision was ever made for this purpose, unless
the appointment of justices of the peace is to be regarded in that
light. Justices did no doubt concern themselves with the detection
and apprehension of offenders and the collection of evidence
against them to a greater extent and down to a later period than is
commonly known, and to that extent they may be regarded as
having for some centuries discharged more or less eflSciently and
completely'the duties which in other countries are imposed upon
public prosecutors. By degrees, however, their position became
that of preUminary judges, and the duties which they had origi-
nally discharged devolved upon the police, who have never been
intrusted with any special powers for the purpose of discharging
them. It was thus by a series of omissions on the part of the
legislature to establish new officers for the administration of justice,
as the old methods of procedure gradually changed their character,
that English criminal trials gradually lost their original character
of public inquiries and came to be conducted in almost precisely
the same manner as private litigations. Perhaps the strongest
illustration of the length to which this process has gone is to be
found in the way in which business is conducted before a coroner.
The coroner was the predecessor of the justice of the peace, and
it was his duty on the one hand to receive appeals or private accu-
sations and on the other to inquire into cases of homicide in the
interest of the public. The inquiry was made originally by th^ reeve
and the four men of a certain number of townships. It is now
made by a jury, before which witnesses may be and are summoned,
but if the inquiry appears likely to result in a criminal charge the
inquest practically assumes the form of a litigation. The friends
of the deceased and the suspected person are represented by advo-
cates, and are entitled, or at all events permitted, to examine and
cross-examine witnesses exactly as if the suspected person whom
it is proposed to accuse was on his trial, and the coroner and jury
occupv a position closely analogous to those of a judge and a jury,
and very unlike the positions of persons holding an inquiry and pur-
suing their own independent investigations for the discovery of
the truth." ^

May a foreigner be permitted to add some comments ? The old
" appeals " were certainly private accusations, but they could
only be instituted by the victim or his nearest relatives as in our
old French law.^ The principle of the " publica accusatio "

" Stephen, "History of the Criminal Law," Vol. I, pp. 496-498.
* Blackslone, "Commentaries," IV, c. 23, pp. 214, 216.

339

•^

IT
f

§ 5] PROCEDURE IN THE 1600 S AND 1700 S [Part II

was; therefore, not introduced by these actions. But this prin-
ciple nevertheless existed in the very old English law and mani-
fested itself by way of " appeal " in case of high treason ; any
subject could accuse another on that ground. This right was, it
is true, abolished as to its principal application in the reign of
Edward III,^ but it could easily be transformed into a right to
accuse and to instigate an indictment, and thence to pass on to accu-
sation for felonies. The grand jury could decide upon a bill pre-
sented to it by a private individual, as well as upon its own hfuyvolr-
edge by way of presentment, and it is conceivable that this more
convenient practice was introduced without difficulty.

Another cause should likewise have helped to facilitate the ad-
mission of the " publica accusatio." This is, that, by the doctrine
of " pleas of the crown," the crime was not prosecuted in the name
of the private individual, but of the king; crimes were always
prosecuted and indictments issued in the name of the king.^ As
Blackstone says somewhere, the king could not but lend his name
and his authority to private prosecutors.'

4. Thanks principally to the jury and the system of accusatory''
procedure, England had escaped the criminal procedure which
had swept over the continent. It had, however, been threatened
by this system, founded upon the Roman and the Canon law,
and it had for a time experienced some of the defects which it
entailied.

It was notably in the special courts which were recognized in
the 1500 s and the 1600 s that this deviation took place. The
High Court of Commission for Ecclesiastical Causes, from 1558
on, compelled accused persons to answer the interrogatories on
oath.^ This occasioned a prolonged struggle, and the practice
was only in course of disappearance when Coke became Chief
Justice of the Common Pleas.^ But it was not forbidden by

^ Blackstone^ "Comm." IV, ch. 23, 314: "It was anciently i)erniitted
that any subject might appeal another subject of high treason, either in
the courts of common law, or parliament, or (for treasons committed
beyond the seas) in the court of the high constable and amiral . . . but
that in the first was virtually abolished by the statutes 5 Edward III, eg,
and 25 Edw. Ill, c. 24, ana in the second expressly by statute Henry IV,
c. 14."

* Pollock and Maitland, "History of English Law," Book II, ch. IX, and
Book II, pp. 491-496. — For the contemporaneous indictments, Maitland,
"Justice and Police," p. 137.

' Another advantage was that the prosecutor bore the costs of the pro-
ceedings : Stephen, "History of the Criminal Law," Vol. I, ^. 498.

* John H. Wigmore, "The Privilege against Self -crimination," chap. 78
§ 2250 in " A Treatise on the System of Evidence in Trials at Common
Law " (1905), Vol. IV, p. 3077.

8 Ibid., loc, ciU, pp. 3079-3080.

340

Titus II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 5

law and generally until 1641 : " In March, 1641, a bill was intro-
duced to abolish the Court of Star Chamber as well as (then or
shortly after) a bill to abolish the Court of High Commission for
Ecclesiastical Causes. These were both passed July 2-5 of the same
year ; and in the latter statute was inserted a clause which forever
forbade, for any ecclesiastical court, the administration ex officio of
any oath requiring answer as to matters penal." ^ The celebrated
Star Chamber had adopted the worst practices of the inquisitorial
procedure. This was early recognized, and Blackstone says so
frankly. But the fact is definitely established by researches made
and published in our own days, based upon the proceedings fol-
lowed before the Court. Not that modem historians attack the
Star Chamber; they rather incUne to rehabilitate it, doing
justice to the services which it rendered.^ But it is certain that
it practised the interrogation of the accused, who was obUged
to take the oath.^ It also employed torture,^ which was at
the time practised in Scotland. It could not, it is true, inflict
capital punishment; but it imposed imprisonment, enormous
fines, and mutilation.^ The Star Chamber was finally abolished
in 1641 and its system of practice died with it.

In certain respects, however, analogous practices were
followed before the courts of Common law with the jury. In
many cases in the 1500 s and the 1600 s a preliminary pro-
cedure was carefully carried out before the justices of the peace
and the trial begun by the reading to the jury of the official report
which had been made of it : " Most notably it was required that
every accused felon be examined by the justices of the peace, and his
examination to be preserved for the judges at the trial ; and, so
far as appears, not a murmur was ever heard against this process
till the middle of the 1700 s ; and no statutory measure was taken
to caution the accused that his answer was not compellable, until
well on in the 1800 s. The everyday procedure in the trials of the
1500 s and the 1600 s, and almost the first step in the trial, was to
read to the jury this compulsory examination of the accused." ®

* John H, Wigmore, loc. ciL^ p. 3082.

* Holdsworlhy I, p. 284 et seq, Thayer, "Evidence," p. 162 et seq.

* John H. Wigmore, loc. ciL, p. 3080 et seq. Holdsxoorih, I, p. 280.

* Holdsworth, I, p. 280. ^ Ibid., I, p. 279.

* John H. Wigmore, loc. cit., pp. 3084, 3085. — This, moreover, did not pre-
vent the accused from pleading guilty, even if he had confessed during the

Freliminary examination. Thomas Smith j ** De republica Anglorum," Book
II, ch. XXVI, p. 232 : "Sireumseesse pemegaverit . . . tametsi factum
coram seirenarcna (justice of the peace) prius non inficiatiu* aut in flagranti
crimine deprehendatur, scriba forensis ipsum intcrrogat quo modo decerni
velit."

341

§5] PROCEDURE IN THE 1600 S AND 1700 S [Part II

That is not all. In the course of the trial the accused was sub-
jected by the judge to a formal examination, properly so called :
" Purthennore, as the trial goes on, in all this j)eriod of 1500-1620,
the accused is questioned freely and urged by the judges to an-
swer." ^ He was not, it is true, compelled to answer under oath ; he
had not even the right to do so, for it was thought that the taking
of the oath (which would in all probability be broken by him) would
give a greater weight to his answers ; ^ this is an idea which we may
find among the English to-day.

In the 1700 s the reading of the official report of the information
and the interrogation of the accused vanished. But in two other
respects the freedom of the defense was for a long time trammeled.
The accused could not have witnesses heard in his defense, or
have the assistance of a counsel. These restrictions were both
justified in this way, that the accused could not be condemned
unless clear and convincing proofs, " luce clariores," were brought
against him, and that the judge attended to the interests of the
accused better than an advocate could have done.

In the latter half of the 1600 s, however, the practice of
the courts was relaxed in severity. The accused in capital cases
was allowed to produce witnesses in his defense, but they were
heard without taking the oath. Thayer cites a whole line of prece-
dents to this effect, running from 1640 to 1685.* The law at
last intervened to allow witnesses for the defense to take the oath,
first of all in cases of treason in 16S5, and then in prosecutions for
felony in 1707. The aid of counsel remained forbidden, as a rule,
and Blackstone gives the standard reasons therefor.* It did not
become a legal right until 1836. In the 1700 s, however, it was
often tolerated by the courts, but with material restrictions.^

5. Let us glance rapidly at the criminal action as it has devel-
oped according to these principles. As early as the 1500 s Thomas
Smith presented an interesting picture of it; he shows its equi-
table and reasonable character, without speaking, it must be un-
derstood, of the absence of witnesses for the defense and of counsel.
But what chiefly concerns us is the procedure of the 1700 s, be-

* John H, Wigmore, loc. cit.

* Ibid., p. 3085. "He is not allowed to swear, for the reasons already-
noted, but he is pressed and bullied to answer." Ibid,, p. 3084, note 81 :
*'the reason for this was merely, as before, that the oath was thought to
give to the accused's statements a solemnity and a weight which would
be too great an advantage/'

' See the passages from Coke, cited by Thayer, "Evidence," p. 158, note.
See upon the question the whole of Thayer's long note, beginning on page
157 (note 4) and ending on page 160.

* "Commentaries," IV, 355. » Thayer, " Evidence," p. 161, note.

342

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 5

cause it served as a model for the Constituent Assembly. It is
principally to Blackstone that we appeal for information.^

Each case necessarily passed before two juries, one of accusa-
tion and one of trial. It began with a kind of preliminary ex-
amination, very short and quite elementary. The prosecutor
began by asking for a warrant or summons against the ;>erson he
accused, and for that purpose he usually had to apply to the magis-
trate, who had become the chief oflScer of judicial police, the justice
of the peace. The latter investigated the facts alleged by the prose-
cutor, from whom he required an affirmatory oath, and he issued,
if there was cause, the warrant or order for arrest.^ It was the
duty of the oflBcer charged with the execution of the warrant to
bring the person arrested before the justice of the peace, who then
made a kind of exammation, " And to this end, by statute 2 and
3 Ph. and M. c. 10, he is to take in writing the examination of such
prisoner and the information of those who bring him ; which, Mr.
Lambard observes, was the first warrant given for the examina-
tion of a felon in the English law. For, at the common law, 'nemo
tenebatur prodere seipsum.' " '

This was the only examination to which the accused was sub-
jected during the whole course of the proceedings ; and English
custom, in its solicitude, even provided, subsequently to the
period we are writing about, that the justice of the peace must
expressly warn the accused that he is not bound to answer, and that
what he says can be afterwards used against him. — This first
part of the proceedings might be secret.

The justice of the peace then comes to a decision. If there
appears no serious charge, he releases the prisoner and discharges
him from the prosecution; in the contrary case, he must
detain him pending trial ; that is the " commitment." But
both custom and law provide that if the accused furnishes a
sufficient surety, he must be released on bail. In the time of
Blackstone, however, although liberation on bail was a matter of
right for minor crimes, it was not permitted in the case of a capi-
tal crime.* Certain specified classes of suspected persons were

' See especially *' Recherches sur les Cours et les procedures criminelles
d'Angleterre, extraites des commentaires de Blackstone sur les lois An-
glaises," preceded by an essay upon the provisions of these procedures and
upon the abolition of capital punishment, Paris 1790.

* Blackstone, Book IV, p. 290: ''It is fitting to examine upon oath the
party re<}uiring a warrant, as well to ascertain that there is a felony or other
crime, without which no warrant should bo granted."

» Ibid., p. 296.

* Ibid,, Book IV, ch. XXII, No. 1 : "Commitment being onlv for safe
custody, where a bail will answer the same intention it ought to be taken,

343

§ 5] PROCEDURE IN THE 1600 S AND 1700 S [Part II

declared not bailable. Individual liberty was protected by the
laws, which punished the magistrate when he unjustly refused
bail or fraudulently exacted an exorbitant amount, and by the
statute of Habeas Corpus, which allowed proceedings for release
from unlawful imprisonment to be brought before all the higher
courts of England.

At this stage of the case, it becomes necessary, before proceed-
ing further, to ask the grand jury to make the presentment.
This grand jury is composed of freeholders, convoked by the sheriff
to decide upon the indictments, at every session of assizes held
by the high judges in each county. The grand jury is composed
of at least twelve persons and twenty-three at most, and renders
its decisions by a majority of twelve votes. Previous to this
there had been drawn up an " indictment," one of the most im-
portant documents of the English procedure ; the formal wording
of which is a somewhat difficult matter. The indictments were
presented by the crown officers in the name of the king, but at the
request of private individuals.^ Besides the information contained
in the indictment, the jurors heard the witnesses, but only " for
the prosecution *' ; they then finally decided whether the charges
were sufficient and whether there was or was not cause for prose-
cution ; in the former case, they wrote at the bottom of the in-
dictment " billa vera," or, a true bill ; in the latter, " ignoramus,"
or " not found."

The presentment being made, it was essential to proceed
to the trial. There was no recourse to the ordeals, as in the
olden days, but, instead, to the trial jury or petit jury. These
trials were had at the assizes, which, at the time of which
we write, were already of two kinds. The first, called sessions
" of oyer and terminer and general jail delivery," were held
twice a year in each county by the chief judges of the Court of
Westminster.^ They owe their name to the fact that the judges
were required to terminate all the actions and empty the prisons
of all the individuals held for trial. The other assizes, or quarter
sessions, were held by the justices of the peace of the county assem-
bled every three months, but they tried only the minor offenses.
The jurors, " boni et legales homines de vicineto," were convoked

as in most of the inferior crimes ; but in felonies and other offenses of a
capital nature no bail can be a security equivalent to the actual custody
of person."

» Blackatone, Book IV, p. 303.

*As to these circuits of the grand judges see Max Budinger, op, cU.^
p. 153 et aeq.f and Bigelow^ op, cit.y ch. III.

344

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 5

by the sheriff to the number of forty-eight ; and from among these
the twelve judgers were chosen.

The indictment, already voted by the grand jury, merely
served to put matters in such a form that the accused should
and could be tried by the trial jury. It was still essential that
he should have denied his guilt and that he should accept the trial
by jurors.^ For this purpose, the prisoner was brought into
open court. This is the " arraignment " : The indictment was
first read to the accused " in the English language," and
the judge then asked him if he was " guilty or not guilty.'*
If he confessed, the intervention of the jury was needless;
nothing remained but to award the punishment. We see here
the weight of the confession as shown in the feudal proced-
ure; it is the weight which it naturally retains in every pro-
cedure where no effort is made to obtain the confession. If the
accused pleaded not guilty, it was furthermore necessary that he
should accept, or, at least, that he should not refuse to submit to,
the judgment by the country. If he absolutely refused to answer,
or if, after having pleaded not guilty, he refused to put himself
" on the country," the progress of the proceedings was impeded
and the trial could not go on. This led to the application of
the " peine forte et dure." In the 1700 s that was still the state
of the law, and it was not until George IIFs reign that, in all
cases, voluntary silence was held as synonymous with a confes-
sion.*

It is conceivable that the accused usually accepted the judgment
by the jury ; and then the tried proceeded. ^ The names of the
jurors were drawn by lot, and the accused had the right of chal-
lenge. He could always challenge for cause, but he could also
make use of thirty-five peremptory challenges. The twelve jurors
thus obtained were sworn and the trial began. Nothing is more
simple than this trial, which does not allow of any interrogation
of the accused. The indictment was read, and then the counsel
for the party prosecuting, whether it was the king or a private in-
dividual who prosecuted, produced his evidence, and had his wit-
nesses heard. The trial was essentially oral.^

It is a strange thing that, in this system, where the rights of

* By doing so he is said to *'put himself on the country."
> See note 1, p. 333.

' He was entitled to an interval between the arraignment and the trial,
but usually the latter followed immediately.

* "When the jury is sworn . . . the indictment is usually opened, and
or prosecution.*' Blackatoncy Book IV, p. 355.

jury IS sworn . . . tne maictment is usuauv oi
evidence marshalled, examined and enforced by the counsel of the crown

k IV

345

§5] PROCEDURE IN THE 1600 S AND 1700 S [Pabt II

the accused are resj)ected to the extent of not making him submit
to an examination, two features nevertheless recall the procedure
followed upon the continent. First, no counsel could be granted
to the accused where a capital crime was concerned, English judges
and jurists, like the Ordinance of 1670, justifying this rule by say-
ing that "the judge shall be the counsel for the prisoner";^
second, it was admitted, as a common practice "derived from
the civil law and still observed to-day in the kingdom of France,"
says Blackstone, that the accused " cannot exculpate himself by
the testimony of any witnesses" ^ The practice of hearing the
witnesses on behalf of the prisoner was, however, slowly intro-
duced, but " not upon oath." ^ It was not until the reigns of
William III and Anne that the latter restriction disappeared.

The trial at an end, it remained for the jurors to give their
verdict. Having received the judge's instructions, they retired
to deliberate and vote if the case presented any difficulty. Una-
nimity, in either direction, was essential to a valid decision. This
is a strange rule, which, moreover, does not always appear to
have been followed in England.* We know, besides, what methods
of indirect constraint the English law allowed to be employed.
The verdict having been found, the judge had nothing to do but
conform the sentence to it; this was due to the distinction
between the question of guilt and that of punishment, between the
fact and the law.

The sentence thus passed was not, on general principles, sus-
ceptible of any recourse ; the jury is not compatible with the
system of appeals. Except where the decision was given by a
jury without jurisdiction, a jury "non legal," as our law will
subsequently express it, there was no recourse except by " writ
of error." That was brought, against the decisions of the inferior
courts, before the Court of King's Bench, and, against the decisions
of that court before the House of Lords.^ But it was only per-
mitted in the case of an error in law, if, for instance, there had
been an erroneous application of the punishment or the omission
of an essential formality. Aside from these cases, the condemned
person could only petition for pardon from the king.

Finally, the English law recognized a rather curious procedure

> Blackstone, Book IV, ch. XXVII ; he adds, it is true, that this rule
*' seems to be not at all of a piece with the rest of the humane treatment of
prisoners by the English Law."

* Ihid., IV, 359. » Ibid,, Book IV, pp. 359, 360 and citations supra.

* See Brunner, op, ciL, pp. 363, 371 ; cf, Blackstone, Book III, ch. 23.

* Blackstone, Book IV, ch. 30.

346

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 5

by contumacy, resulting in the confiscation of the chattels and the
outlawry of the accused, thus keeping up the traditions of the
feudal period.

Such is, in its main features, and laying aside a great number of
sometimes very interesting details (the benefit of clergy, for in-
stance), the trend of that English procedure which, although pos-
sessing serious imperfections, presented the most rational form of
criminal proceedings yet known to humanity, and which the phi-
losophy of the 1700 s even considered as perfect. It had, however,
its weak points, especially the preliminary proceedings and exami-
nation ; and, in its desire to imitate it even upon these points, we
shall see the French legislation go astray in its early reforms,
and waver long before finding its equilibrium.

6. English criminal procedure has remained, in the 1800 s and the
1900 s, substantially as it was in the 1700 s. Several material
changes have, however, been made in it, which it is important
briefly to scan. I do not refer to the abolition of the " appeals,"
by " wager of battle " in 1833 ; that was a legislative declara-
tion of their desuetude; I allude to more real innovations.
There is, first of all, the adaptation of the accusatory system in
such a way as to counteract its disadvantages. In 1869, the legis-
lature, with reference to a whole series of offenses, subjected
the private prosecution to the preliminary consent of certain judi-
cial authorities or upon special conditions.^ Before that date
the action of the attorney-general could interpose to put an end
to it.* For another thing, the creation of a Director of Public
Prosecutions in 1879 added a new and important factor to the
public action,* and we are aware that by very simple means a
private prosecutor could always be found, when that was necessary
or expedient.* Lastly, the law permits the courts to relieve the
private prosecutor of the costs of the proceedings.^

But most notable of all is the part taken by the police depart-
ment in the pursuit of offenders and the search for evidence.
It is in reality, in almost all cases, the active agency in this re-
spect. Without losing its individual character, it has become
the necessary and invariable auxiliary to the judicature. It ful-
fils the task which, with us, devolves upon the collaboration of
the State's attorney and the examining magistrate in the pre-

» MaiOand, "Justice and Police," p. 138.

» SUphen, "History of Criminal Law," Vol. I, p. 96.

« Ibid,, "History of Criminal Law," Vol. I, p. 501.

* MaiOand, "Justice and Police." p. 138.

» SUphen, "History of Criminal Law," Vol. I, pp. 498, 499.

347

§5] PROCEDURE IN THE 1600 S AND 1700 S [P ART II

liminary examination. The most authoritative English writers
no doubt state that, save on certain points, the officers of the police
have no privileges ; that they exercise the same rights as a pri-
vate individual. " The police," says Stephen, " in their dif-
ferent grades are no doubt officers appointed by law for the
purpose of arresting criminals ; but they possess for this purpose
no powers which are not also possessed by private persons.
They are, indeed, protected in arresting innocent ;>ersons upon a
personal suspicion that they have conmiitted felony, whether a
felony has in fact been committed or not ; whereas the protection
of a private person in such a case extends only to cases in which a
felony has been conmiitted, and they are, and private j)ersons are
not, under a legal duty to arrest when the occasion arises ; but in
other respects they stand upon precisely the same footing as pri-
vate persons. They require a warrant and may arrest without
warrant in the same cases. When they have arrested they are
under precisely the same obligations. A policeman has no other
right as to asking questions or compelling the attendance of wit-
nesses than a private person has; in a word, with some few
exceptions, he may be described as a private person paid
to perform as a matter of duty acts which, if so minded,
he might have done voluntarily." ^ But this interpretation of
the principles does not accord with the actual facts. It is a
great deal for a poUce officer to have the right of arresting,
without a warrant, a person whom he suspects of having conunitted
a crime, and of being shielded from all liability in regard thereto,
if he acts in good faith, although no crime has been committed.
We may add that he has, to a great extent, the right of search.
Although the rights of private individuals may be ample in such
matters, they must hesitate to exercise them, for they vnil involve
themselves in liability. It is, therefore, plain that a policeman
occupies a peculiar and privileged position, and it is quite evident
that the arrest of accused j)ersons and the search for proofs and
witnesses are matters for him. It is true that he cannot try to ex-
tract confessions from the person arrested ; but the examination
of the accused no longer figures in the English procedure. It is
true that, in order to validate the arrest, he must bring the prisoner
before the magistrate with the least possible delay; but that is
only just, and this appearance before the magistrate has trans-
formed the " preHminary examination " in England.

^Stephen, "History of Criminal Law." Vol. I, pp. 493, 494. — C/.
Maitland, ''Justice and Police," p. 122.

348

Title II, Ch. I] CRIMINAL PROCEDURE IN OTHER COUNTRIES [§ 5

We have seen how this preliminary examination was formerly
made before the justice of the peace. Before him it can always be
made. But in important towns it is made before the magistrates,
— the " stipendiary magistrates," — attached to the Police Courts
created in the 1800 s in London and other cities.^ It is before
the magistrate, often an eminent man, who holds this court, that
the person arrested must be brought, and the preliminary exam-
ination there made; and this proceeding has acquired a new
and notable form in its new environment. This form is now a
judicial one. The judge has no doubt the right to bar the public
from this trial, but it is one of which he rarely avails himself.
Usually everything takes place in open court. The prisoner is
warned that he is not compelled to say anything, but that every-
thing he does say can be used against him. The witnesses pro-
duced by the police, or by the private prosecutor, are heard, and
the solicitor of the prosecutor examines them should he desire to do
so. The accused is entitled to have his counsel, who cross-examines
these witnesses, makes a statement, and produces witnesses for
the defense if he wishes. This is really a judicial trial, and, as
Maitland says, a " preliminary trial." * The evidence is reduced
to writing, but the rule is that it cannot be read to the jurors at
the " trial " proper.^ On the conclusion of the trial the magis-
trate gives his decision. If he does not find the charge to be seri-
ous, he sets the prisoner at liberty. In the contrarj'^ event, he
decides that he shall appear at the assizes, and continues the
imprisonment, unless he releases him on bail.

But this preliminary examination, thorough as it is, does not
dispense with the indictment by the grand jury, which must al-
ways intervene. But the composition of that body has changed.
" In practice at the assizes the grand jury for counties is always
composed of the county magistrates, whose names are called over
by the oflBcer of the court until twenty-three at most have appeared.
The magistrates, however, have no special legal right or duty in
the matter." ^ It is conceivable that, in these circumstances, the
grand jury generally ratifies the decision of the magistrate in
the preliminary examination. Maitland says, however, '* Their
inquiry is quite independent of that which has taken place before
the magistrate. The grand jury system saves a certain number

> Maitland, "Justice and Police," p. 101 et seq,; Stephen, "History of
Criminal Law," Vol. I, p. 232 et aeq.

« Ibid., "Justice and Police," p. 129; cf, p. 123.

• Ibid., "Justice and Police," p. 132.

* Stephen, !* History of Criminal Law," Vol. I, p. 254.

349

§ 5] PROCEDURE IN THE 1600 S AND 1700 S [Pabt II

of innocent persons from the shame and annoyance of public
trial, and seems necessary so long as proceedings before a magis-
trate are not made essential in all cases ; but such proceedings are
now so usual that for a grand jury to ignore a bill has become a
rather rare event." ^

The abolition of the examination of the accused during the
trial often rendered the accused a mere passive participant in the
proceedings, especially when he was represented by counsel.^
This was j)eculiar, and fruitful of disadvantages. The courts,
it is true, usually allowed him to make a " statement " when he
desired to do so. But what he said, not being stated on oath,
lacked authority, according to preconceived English ideas. The
Criminal Evidence Act of 1898 made the accused a voluntary
witness in his own behalf. He may, if he wishes, go into the wit-
ness box, take the oath, and testify. He is not obliged to do so,
but he can no longer make a mere statement, as he could before
the passing of that act.'

Lastly, the latest important reform has been brought about by
the Act of 28th August, 1907, instituting a Court of Criminal
Appeal and amending the law in so far as it concerns appeals in
criminal matters.^ The introduction of the appeal in criminal
matters is a great reform. The older methods of recourse (writ
of error and grant of a new trial) were lacking in efficacy in this
respect. Proceeding to show this, Mr. Holdsworth, in 1908, thus
begins his explanation upon this point : " It is a pecuUarity of our
system of criminal jurisdiction that there is practically no pro-
vision made for an appeal either from the finding of the jury on a
question of fact, or from the ruling of the judge on a question of
law." ^ The act of 1907 makes the appeal available on both ques-
tions. It is very important from a technical point of view of Eng-
lish law, but that is an investigation upon which we cannot enter.
We may merely state that the EngUsh have not been restrained by
any idea that, the jury being representative of the people in
criminal matters, its verdict was incapable of reversal.

* Maiiland, "Justice and Police," p. 139.

« Dickens, "The Old Curiositv Shop/' ch. 63.

* Esmein, ** Le * Criminal Evidence Act ' de 1898 et le serment des accuses
en Angleterre," in the Revue politique et parlementaire of November, 1898.

* "Annuaire de legislation 6trang&re," published by the Society de le-
gislation compar^e, 1908, p. 14 ei seq.

» !* History of English Law," Vol. I, p. 84.

350

Title II, CTh. II] PUBLIC OPINION IN THE 1600 S and 1700 s [§ 1

Chapter II

CRIMINAL PROCEDURE AND PUBLIC OPINION IN THE

1600 s AND 1700 s

§ 1. Reoeption of the Criminal Pro-
oeaure in the 1600 s. La
Bruydre, Augustin Nicolas,
Despeisses.

S 2. The Philosophic Movement of
the 1700 s.

i 3. Montesquieu and Beccaria.

The Criminal Law in Vol-
taire's Works.

§ 4. Opinions of the Jurists of the
1700 s.

§ 5. D'Aguessau's Reforms.

§ 6. Progress of the Spirit of
Reform.

§ 1. Reception of the Criminal Procedure in the 16008. La
Bruyere, Augustin Nicolas, Despeisses. — The public temper, in
the 1600 s, was by no means hostile to this inquisitorial and
secret procedure which we have described. At that time it was
looked upon as a necessary severity. It was accepted without
question and instinctively, so to speak, like the absolute power
of kings and religious intolerance. A great need of ready sub-
mission then filled all minds. This is well shown by the fact that
it was possible to s;>eak on the stage of the most odious feature
of this procedure, torture, and that not in a satirical vein, but in
the light of a jest. We know the scene in the ** Plaideurs " and
Dandin's proposal to Isabelle :

D. Have you never seen the torture administered?

L No, and I do not believe I ever shall, all my life.

D. Come with me, I want to satisfy your desire.

I. Oh ! sir, how could we look at the sufferings of the unfor-
tunate people ?

D. That will be all right ! it will serve to pass an hour or two ! " ^
Racine no doubt puts a sympathetic tone in a woman's mouth ;
but he does not mean to hold Dandin up as a monster and excite
the horror of the audience. In the same way, Molifere makes
Harpagnon, whose cash-box has been stolen, say : " I am going
to seek out the judge, and have the torture administered to all
my household, servants, valets, son, and daughter, and myself
into the bargain." ^ That made no one shuilder, and yet Har-
pagnon's idea, so far as his valets were concerned, might have been
» " Les Plaideurs," Act III, so. 4 (1668), « " L'Avare," Act IV, so. 7.

351

((

§ 1] PROCEDURE IN THE 16008 AND 1700 S [Part II

a stem reality any day. The master's accusation constituted a
presumption sufficient to cause a domestic servant to be put to
the torture. Madame de Sfivigne mentions torture ver>^ uncon-
cernedly.^ Among the litterateurs, La Bruyere is almost alone
in protesting against torture. But his protest is a vehement one.
It might be classed with his famous tirade upon the peasant.
*' Torture is a wonderful invention and may be counted upon to
ruin an innocent person with a weak constitution and exonerate
a guilty person bom robust. The punishment of a guilty person
forms a warning to scoundrels ; the condemnation of an innocent
person is the affair of all honest men. I might almost say in
regard to myself, 'I will not be a thief or a murderer ' ; but to say,
* I shall not some day be punished as such,' would be to speak very
boldly. — The situation of an innocent man in whom haste and
the procedure have detected a crime is lamentable. Could even
that of his judge be more so ? " ^ — And elsewhere : *' I admit that
imprisonment and corporal punishment are necessary things, but
justice, laws, and necessities aside, it is always a strange thing
to me to see with what ferocity human beings treat their fellows." *
Truly, Beccaria and Voltaire do not put the case better ; but this
eloquent voice is a solitary one !

About the end of the 1600 s, however, eleven years after the
great Ordinance, another voice is raised, loud and touching. It
is that of a magistrate, Augustin Nicolas, president of the Parle-
ment of Dijon. He is an intellectual descendant of Pierre AjTault,
and one of those magistrates who unite science with nobility
of heart. It may be said that he has been discovered in recent
years by MM. Laboulaye and Faustin H61ie.* He is worthy of
a place with Lamoignon in this historic study. He is a link be-
tween Ayrault and the publicists of the 1700 s, and it is a pleasure to
show that in France, even in the worst times of criminal procedure,
the torch of truth was never quite extinguished, and that there
w^ere courageous men to pass from one to the other the sacred flame.

Nicolas's work is not a large book.^ He does not deal with

' ** At last, all is over, and La Brinvilliers is in the air ; after the execu-
tion, her poor little body was thrown into a larg:e fire and her ashes scattered
on the wind. . . . They threatened her with the torture, though she said
it was unnecessary and that she would tell everything. ... In spite of
this confession, they administered the ordinary and extraordinary torture
to her; but she confessed nothing more." Letter of 17th July, 1676,
edited by Monmerqu^, vol. IV, pp. 528, 529.

^ "Les caractdres," De quelques usages. ' Ibid., De Thomme.

* See M, Laboulaye, Revue des cours litt6raires, vol. II, p. 770.

* It is entitled **<Si la torture est un moyen s^r a verifier les crimes secrets ;
dissertation morale et juridique, par laquclle it est amplement traiii des abus^

352

Title II, Ch. II] public OPINION IN THE 1600 S AND 1700 S [§ 1

criminal procedure as a whole. He has concentrated all his efforts
on a single point, the most hateful of them all ; he treats of torture,
and especially of its employment in proceedings against witch-
craft. Augustin Nicolas, however, is no rebel. That would be
strange in a magistrate of the 1600 s. He respects all authority
and dedicates his book to the king himself. In his preface, follow-
ing the fashion of the period, he compares the king to Hercules :
*' You, Sire, will achieve with less effort than he the same results
on behalf of the helpless and the innocent if you deign to under-
take the protection of the present work, and add your authority
to the reasons which support its argument. Only to a king as
mighty as you, Sire, belongs the task of correcting throughout
his dominions the abuses which these later ages have imbibed from
the most corrupt sources. It is for a French monarch to extirpate
from his kingdom by means of his absolute power, and to invite,
by such a noble example, the other Christian princes to correct
in their dominions, so many wrongful methods of arriving at the
ascertainment and chastisement of crimes. So many poor inno-
cents who have perished during all these years by the horrible
violence of torture, so many poor women as cruelly martyred as
unjustly condemned for witchcraft upon confessions forcibly ex-
torted by imbearable torments, stretch out their hands to the
throne of the great Lord of the universe, who has intrusted to you
the government of so many people I . . . Not for the first time
has your majesty taken pains to safeguard his dominions from the
sad results of the chicanery and brigandage of so many improper
procedures. France, which to-day leads all the nations in the
world in regard to science and culture, furnishes you with great
geniuses in abundance to whom this humble effort of one of your
subjects may be submitted." Nicolas is so impressed with the
importance of the ideas which he is promulgating that he addresses
himself to all the kings of Christendom. " Since I think that in
this discourse I am rendering to the Christian republic the highest
service possible, I am not afraid to address it to all Christian princes,
nor to pray them most respectfully to cause it to be read and in-
vestigated seriously." ^ In the same way as to witchcraft, he
appeals to the approaching Council of Prelates.^

qui S€ commetterU partout en Vinstruciion des procbs criminels^ et parficu-
tikrement en la recherche du soriilhge. A Amsterdam chez Abraham Wolf-
gang, prte de la Bourse. 1682.'*

' p. 188.

* "I humbly beg the first council-general which shall lawfully meet to
investigate my reasons regarding these matters; to their judgment I
implicitly defer."

353

§ 1] PROCEDURE IN THE 1600 S AND 1700 S [Pabt II

Not only does he respect established authorities, but even con-
temporary prejudices. Although his whole book shows his dis-
belief in sorcery, he declares that " it is a very certain mark of
ignorance to deny the existence of sorcerers." ^ He feels that the
formidable power of preconceived ideas is against him. He has
for long hesitated in " the fear of putting before the public some-
thing which might seem contrary to everyday opinions." ^ He
is aware that he will have against him " those who think to refute
an argument by assailing its author with the scurrilous reproaches
of being an advocate of sorcerers and the protector of impunity." ^
But he also feels that he has a duty to perform, and he says in
an elevated strain : '* It would be futile to wait until monarchs
take the matter up of their own accord. So long as the
learned and the wise dare not give utterance to their opinions
on the subject, princes who rely upon their officers in re-
gard thereto will never have any authoritative information
about it." ^

There are, in this book, two intellects, so to sj)eak, which inter-
twine like two different threads in the woof of a piece of cloth.
On one side are the arguments addressed to his contemporaries.
These may appear to us to be long, tedious, puerile perhaps ; but
they were the kind of arguments of use fot the men of that period,
couched in language they understood. Thus Nicolas insists that
torture is an institution of Roman paganism, and he frankly de-
clares it to be an invention of the devil. ^ He strives very hard
to show that there is no trace of it in the Mosaic law, nor in the
mild law of Christ, and that the Canon law does not allow it.*
In particular, he subjects to a careful examination, too long for our
purpose, all the texts of the Roman laws regulating torture, and
the passages from Cicero and Aristotle invoked in its behalf. It
must, however, be observed that he gives proof of the possession
of a sufficiently accurate historic sense. He is well aware that
" the early Romans who made use of it dared only practise it
upon their slaves " ; and that this was the case " during the good
ages of the Roman RepubUc." ^ He shows clearly that the " ac-

^ p. 153 ; but compare p. 154 : **It is a kind of madness to believe that
sorcerers are responsible for all the mischiefs attributed to them." —
p. 137 : "Whatever German doctors say as to the number of sorcerers in
their country, they are not so g:reat sorcerers as they imagine."

• p. 7. » p. 52. * p. 189.

• Here is one passage among many, p. 33 : "Whoever reflects upon thei
origin and the originators of torture can hardly help agreeing that it is
an invention of the Devil, suggested to pagans and tyrants, for the op-
pression of an infinitude of honest people."

• p. 190. Compare p. 81 el seq, ^ p. 10.

354

TiTLB II, Ch. Ill PUBLIC OPINION IN THE 1600 S AND 1700 8 [§ 1

cusations de majeste " of the Roman law were totally different
from the crimes of high treason of the French law.^

But apart from all that, there are other reasons, which certainly
appear to him to be the proper and true ones. And here, speaking
above the heads of his contemporaries, he addresses himself to the
intellects of posterity which will be able to understand him.
When he claims the rights of reason and of good sense, we seem to
be listening to a man of the end of the 1700 s : " Although I have
as much respect for the authority of human laws as anybody, I
cannot submit to it when common sense is repugnant to it, as in
this case, and when natural reason contradicts it." ^ — " We are
relegated to natural equality and to the justice of common right,
which demands that where the danger is greatest we take the
most abundant care and precautions for the sureness of the trial." •
Augustin Nicolas, in fact, is not, in many respects, a man of his
time. He is an advocate of religious tolerance,^ and he has that
regard for accuracy of observation and familiar and picturesque
detail which characterizes our present day modes of thought.^ He
puts his personality into the foreground and appeals to the in-
dividual conscience. " I consider my own case first of all, and I
frankly confess that I am one of those who would prefer a speedy
death to such intolerable sufferings (as torture), . . . and I
have no doubt that every virtuous man who is neither a stoic
nor an athlete would make the same confession in regard to
himself." «

From this mode of thought we can surmise how Nicolas re-
garded torture. " No one," he says, " will deny that a single
half hour under torture contains more of martyrdom than three
punishments of gallows or scaffold. . . . Do suflBcient reasons
exist for dismembering a man alive and exposing ourselves to the
chance of finding him innocent, and at the most setting him at
liberty, however criminal he may be, if he has the good fortune to
possess a charm or a constitution to endure these torments, or to
top the injustice by adding a final punishment to an innocent
person who confesses himself guilty under compulsion, to the first
martyrdoms which we have already made him suffer? Does not
this happen every day ? " ^ He sets forth numerous examples of

» p. 66. « p. 15. » p. 26.

« "Our profession of Christianity has not been exempt from these shame-
ful excesses, when an ill-advised zeal has caused us to take arms against
our brothers rebellious to avenge upon them the interests of the Divinity and
any supposed impairment of his worship and the faith we owe him" (p. 50) .

■ See as to witchcraft, p. 105. • p. 29. ^ p. 18.

355

§ 1] PROCEDURE IN THE 1600 S AND 1700 S [Pabt II

innocent people having confessed under torture, and shows with
a striking verisimilitude the judge growing more and more exas-
perated at the accused who will not confess.^ The torments he
refuses to describe. *' Whoever wishes to learn the apparatus
used in this butchery has only to read the Italian authors who deal
with the subject. . . . The Spanish vigil (torture by prevention
of sleep), which compels a man to keep himself suspended in the
air for the space of seven hours, so that he may not lean upon a
sharpened iron which would puncture him in the rear, causing
intolerable pain; the Marsile or the Florence vigil, . . . ouf
half red tripods on which are seated imbecile women accused of
witchcraft, macerated in a horrible prison, loaded with chains
and manacles, half rotting in the filth of a stinking and gloomy
charnel-house, emaciated and half dead, — and a human body is
required to endure tortures so diabolical I " *

The style, it is apparent, is touching and highly colored; but
the language is usually moderate, the outcome of pity, not of
anger; the insight of a wise man is perceptible.' Sometimes,
irritated by the language of authors who speak of torture in the
manner of past-masters of the art, he raises his tone to powerful
irony. " Binsfeld eulogizes the invention of Marsile, who had
found a gentle method of making all kinds of accused persons
confess without breaking their arms or legs (by the prevention of
sleep). ... Is this not a pleasing method of finding out lies and
killing innocent people ? And must it not be a strange strength
of prejudice which would describe this to us by the lips of a priest
and a theologian as a small martyrdom or, as Marsile says, a
ridiculous torment ? * The deplorable thing about these people who
bow unreservedly to authority without any regard to reason is
that as learned a man as Jean Bodin allowed himself to become
infatuated with the barbarous and inhuman severity of these mar-
tyrdoms, citing the torture of the Turks, which is to fix iron points
like awls between the nails and flesh of all the sufferer's fingers
and toes, and that method of torture of Italy which he calls the
Florentine vigil, admirable kinds of torments to cause a sufferer to

* p. 29 : "There are criminal judges so implacable in drawing the con-
fession from every accused person, that they delight in inventing new tor-
ments, in which they add some atrocity to those existing in order to compel

an accused to confess at all hazards/' i

*p. 36. , I

' Maxims scattered here and there bear witness to this breadth of mind. !

p. 1^4: **It is an invariable rule that the majority of controversies i

evince more passion than reason." — p. 70: *'It is a common enougli !

failing for men to measure God by their own standard." '

* p. 30.

356.

Title II, Ch. II] PUBLIC OPINION IN THE 1600 s AND 1700 s [§ 1

say whatever he is wished. . . . Does not Binsfeld know that the
Italians are the promptest people in the world to make use of
torments, because it is an invention of their country ? He says
that Marsile caused the hardiest to confess, but he does not
say that we shall know a day too late for many judges how many
martyrs he has made in the belief that he was dealing with crimi-
nals." '

What could be said in reply to all this? One objection was
possible, and Nicolas foresaw it. It is, that, granted the system
of legal proofs such as we have described, torture appeared to
be its necessary complement, being the only means of avoiding
scandalous impunities. This objection does not stop him ; and,
although he does not clearly formulate the theory of moral proofs,
he allows it at least to be hinted, and in this way, returning to the
truth, finds the true solution. " But, it may be said, if you dis-
card the confession extorted by torture, you breed impunity for
crime in a State, and as conviction is not always very easy, you
wiU be compelled to let several presumed criminals go^for lack of
proofs and confessions. There are enough criminals to keep them
(men of law) busy when justice limits them to lawful methods of
conviction, without staking its success and the equity of its judg-
ments upon confessions extorted by dint of intolerable torments,
and God will be no less well served by sparing the blood of so many
innocents as by spilling that of some culprits.^ ... It is said
that it is enough for a judge to content himself with probable cer-
tainty, and rest his conscience upon what the laws and practice
lay down for the regulation of his conduct. But if it is apparent
to his conscience that the proof upon which he bases his judgment
upon the life of a human being is uncertain, I do not see how, in such
a serious matter, he can have enough assurance to be easy in his
own mind in regard to the matter, nor how the public authority
which he wields can afford enough justification before God or
man." ' He shows, above all, the inanity of these innumerable
precautions by pointing out that, in secret crimes, even witnesses
open to objection are, in time, admitted.*

Nicolas's book, be it understood, convinced no one. It must not
be thought, however, that it went unnoticed. In the 1700 s, we
shall see Rousseau de La Combe quoting it with the highest
eulogiums.

We may finally register, for the 1600 s, two other less striking
protests against the criminal procedure then followed. There is,

» p. 32. « p. 43. » p. 55. * p. 17.

357

§ 1] PROCEDURE IN THE 1600 S AND 1700 S [Part II

first, a short note by the Abb6 Fleury, tutor to the Duke of Bur-
gundy. This is what he says in his " A\ds k Louis, due de Bour-
gogne, puis dauphin " (p. 146) : " To reform our criminal procedure
derived from the inquisition ; it tends more to the discovery and
punishment of the guilty than the vindication of the innocent." ^
The other criticism is directed against the use of torture. It is
buried in the " Traits des crimes et de Tordre judiciaire observe
es causes criminelles " by Despeisses.^ " Credence must not
always be given to what is said under torture ... for an uncertain
fact the accused is made to suffer a certain punishment. This
invention of torture is rather a trial of patience than of truth ;
for he who is able to endure (the torments) conceals the truth, and
likewise he who cannot endure them. Suffering will as readily
force me to say what is not true as it will compel me to confess
what is. If he who has not done that of which he is accused is
patient enough to endure these torments, why wnll not he who has
done it, when such a handsome reward as that of his life is held out
to him? Etiam inrwcentes coget mentiri dolor! Whence it hap-
pens that he whom the judge has put to torture to prevent an inno-
cent man dying, dies innocent and punished ! for thousands have
burdened their souls with false confessions. It is a terrible thing
to destroy a human being for a misdeed as to which there remains
a doubt. What power has he over the judges' ignorance of the
fact? Does it not seem iniquitous that in order to avoid killing
a man without cause, one should do worse than kill him, submit
him to this inquiry, more painful than corporal punishment ? There
are those who are so hardened to the torments that they might
never tell the truth under them ; and there are others who would
rather die confessing falsely what they had not done than suffer
the torments.*'

But these reflections of some isolated minds were not addressed
to the multitude. In 1750 the lawyer Barbier finds nothing more
to say in regard to an innocent person put to the torture than
this : ''A poor publican of Charenton, after a long imprisonment,
was condemned to the torture, ordinary and extraordinary, which
he suffered for highway robber>% of which he was innocent, accord-
ing to the confession of the real thief, who has been captured and
broken on the wheel. This is evidence of the delicacy of the judge's
function in criminal affairs ! " '

* Quoted by Poullain du ParCy vol. XI, p. 5.
« Part I, Title X (Lyons edition, 1750, p. 1713).
» "Journal," IV, p. 446.

358

Title II, Ch. II] PUBLIC OPINION IN THE 1600 s AND 1700 s [§ 2

§2. The Philosophic Movement of the 17008. — Gradually,
however, the old ideas, the old conception of society, were destined
to yield to the pressure of a new way of thinking. The philosophy
of the 1700 s made its appearance ; and it admitted only two prin-
ciples for the decision of all social problems, reason, and that senti-
ment of sympathy for the human race which they called humanity
or human nature} The battle-cry of the philosophers, according
to one of their disciples, was reason, toleration, and humanity.^

What could be more unreasonable than a criminal procedure in
which the prosecution counts for everything and the defense for
nothing; where the judge, armed with a terrible power, at the
same time feels himself chained down by a theory of proofs which
dictates his decision to him and controls his personal conviction ?
What a strange idea of infallibility, contradictory in its terms!
What could be more inhuman than those long imprisonments,
those secret and ensnaring interrogations, and, finally, that torture
crowning the work? " I hear Nature's voice crying out against
me," says Montesquieu, proceeding to expound torture.^

" If these people are guilty," Servan says, *' they are still deserv-
ing of pity ; but if they are innocent, oh, the horror I oh, the pity
of it ! At that idea, humanity utters a terrible and sympathetic
cry from the bottom of its heart ! " * Beccaria declares that the
fight must be carried on *' with the weapons of reason " ; he in-
vokes the time " when gentleness and humanity achieve more
than the power of princes." ^ Before these new authorities, the
old criminal law could not long hold its ground.

That is not all. These active intellects, seeking universal re-
form, undertook a wide inquiry into the past and the present.
They inquired into the former and the existing state of affairs
abroad. And in these investigations the institutions of two na-
tions especially attracted their attention : those of the Romans
and those of the English. And they found that in Rome at the

* See Taine, "Les orig:ines de la France contemporaine," vol. I,
Book III, ch. Ill, pp. 266 et seq, ; 276 et seq. ; Book IV, p. 384 et seq.

^ Condorcety "Tableau historique des progrfes de Tesprit humain, 9®
€poque." Condorcet defines the term humanity or human nature. "It
is the feeling of a tender, active compassion for all the sufferings that
afflict the human race, and of a horror of everything which, in our public v^
institutions, acts of government, or private actions, adds new sufferings to
those to which all flesh is heir."

» "Esprit des lois," Book XVI, ch. XVII.

* "Discours de Servan" (prefixed to Serpillon's "Code criminel," p. 14).
It concludes with these words : "He who does not love his fellow-men is a
blind man who does not know nature. He who can hate them is a monster
who outrages it."

* "Des d^lits et des peines," preface.

359

§ 2] PROCEDURE IN THE 1600 S AND 1700 S [Part II

best period of its histor^'^ and in England at that very moment, a
criminal procedure totally different from that in France was to
J be seen, namely, publicity of trials, full liberty of defense, and
judgment by jurors. No doubt, there was no lack of knowledge
before that time as to what was the criminal procedure of the
Romans. Old Ayrault had elucidated it in a scientific manner
which makes his excellent book a classic, to which French and
German criticism still go for information. It was, indeed, that
example of the ancients which he incessantly invoked against the
detestable methods of his age. But he had not been heeded. The
historic idea of these facts none the less remained, as we find in
Imbert.^ Lamoignon said in the conferences upon the Ordinances :
** If it is desired to compare our criminal procedure with that of
the Romans and of other nations, it will be found that theirs is by
no means so rigorous as that observed in France." * " At Rome,"
writes Muyart de Vouglans, " the prosecution was public, the
accused had the opportunity of learning at the same time both
who his accuser was, so that he could discredit him, and who
the witnesses against him were, so that he was able to object to
them, and, finally, of what crime he was accused, so that he could
at once lodge his defenses, to which the accuser was obliged to
reply immediately or within a brief delay granted to him; the
accused could, moreover, have the aid of a lawyer." *

All this did not disturb our jurisconsults nor cause them to doubt
the excellence of their practice. But the reformers eagerly picked
up that weapon. Montesquieu constantly cites the Roman laws in
criminal matters. Voltaire writes : " Among the Romans the
witnesses were heard publicly, in the presence of the accused, who
could reply to them, question them himself, or employ an advocate
to do so. That procedure was noble and frank ; it breathed Ro-
man magnanimity." * In the Constituent Assembly the jury is
spoken of " as among the Romans." ^ But it is especially towards
England that they look, the country which had known how to
maintain its political liberty and with that all the other liberties.
Our philosophers often put their political theories in the mouth
of an Englishman.* Their criminal procedure is among the most
perfect of the institutions of the. English people. Montesquieu

1 "Pratique," Book III, chap. XIII, No. 3. » "Proc^verbal," p. 163.
» "Instit. mm." Part III. ch. II, p. 69.

* " Commentaire sur le Traits des d61its et des peines," ch. XXII.

' M, Mougirif " The establishment of some jurors according to the
method formerly in use among the Romans." Sitting of 27th October,
1790. Moniteur of the 29th.

• Mably, "Des droits et des devoirs du citoyen."

360

Title II, Ch. II] PUBLIC OPINION IN THE 1600 s and 1700 s [§ 2

often cites it, even without naming it/ and Voltaire constantly
refers to what passes on the other side of the Channel. " C.
Which of all the nations appears to you to possess the best laws,
and a system of justice most conducive to the general wel-
fare and the happiness of the individual ? — A. Our own country
(flngland) unquestionably. That is proved by the fact that in
all our arguments we always extol our own excellent Constitution,
while in nearly all other countries they are sighing for a change.
Our criminal laws are equitable and by no means harsh. We have
abolished torture, against which nature cries out in vain in other
countries. This shocking method of destroying a weak innocent
person, and vindicating a robust criminal came to an end with our
infamous Chancellor Jeffreys, who made use of the atrocious cus-
tom with a savage joy in James II's reign. We do not put a wit-
ness who has given his evidence too heedlessly to the necessity
of lying by punishing him should he retract. We do not make
the witnesses testify in secret ; that would breed informers. The
proceedings are pubUc ; secret trials are the invention of tyrants." *
— " Fortunately, in England no trial is secret, because the chas-
tisement of crimes is intended to be a public lesson to the people
and not a private vengeance; the examinations are made with
open doors and accounts of all the trials of interest are published
in the newspapers." ' — "In England, the slightest unjust imprison-
ment is indemnified by the official who ordered it." — " In England,
that island famous for so many atrocious crimes, and so many
good laws, the jury were themselves the advocates of the accused.
Since the time of Edward VI they assisted their weakness, and
suggested to them every way of defending themselves. But in
the reign of Charles II, the assistance of two counsel was granted
to every accused, because it was considered that the jury were
only judges of the fact, and that the lawyers were better acquainted
with the snares and evasions of the law. In France the Criminal
Code seems framed purposely for the destruction of the people;
in England it is their safeguard." *

Erelong de Lolme's imperfect but ver;^'' lucid book was to draw
attention to the procedure by jury as to all other English institu-
tions ; ^ the translation of Blackstone's Commentaries was to pass

» "Esprit des lois," Book VI, chs. II and III ; Book XII, ch. II.

* **L'A. B. C, ou Dialogues entre A, B, et C " (fifteenth conversation).

* "Histoire d'Elisabeth Canning et de Galas," "Comment, des d61its
et des peines," ch. XXXII.

* "Prix de la justice et de Thumanit^," Art. 23 (1777).

* "Constitution de rAngleterre," hyM.de Lolme (new edition, Geneva,
vol. I, Book I, chs. XI and XII. On criminal justice.

361

§ 3] PROCEDUKE IN THE 1600 S AND 1700 S [Pabt II

from hand to hand ; ^ and when the Revolution comes to give
eflFect to the programme of the philosophers, it is England that
is to furnish the Constituent Assembly with a model for criminal
law.

These are the new principles and the new models which it is
proposed to follow. The old criminal law and the old procedure
are assailed from every side. In 1721, Montesquieu, in the " Let-
tres persanes,'* lays down his profound axioms on the nature and
effectiveness of punishments.^ Then, in Books VI and XII of
the " Esprit des lois," he lays down the true principles of the crimi-
nal law and of criminal procedure. Afterwards comes Bec-
caria, Montesquieu's disciple (1766). Rousseau, preoccupied
above all wuth moral and political problems, concerned himself
little with the criminal law. He devotes a passing word to them
in the " Contrat social." But upon the criminal law his prin-
ciples are destined to have the greatest influence in the future,
Voltaire was the greatest apostle and propagator of the whole-
some and proper doctrine in these matters. He returns to it
unceasingly in his numerous writings : " M6moires pour les Galas ; "
" Histoire d'Elisabeth Canning ; " " Relation de la mort du cheva-
lier de La Barre ; " "La meprise d'Arras ; " " Proces criminel du
sieur Montbailly et de sa femme ; " " Conamentaire sur le Traits des
delits et des peines ; " " Traits de la tolerance ; " " Prixde la justice
et de rhumanite." The list is a long one, and is still incomplete.
These are but the loudest voices. Alongside of the masters speak
their numerous disciples. We cannot mention their works in
detail ; but it appears to us to be useful to analyze the ideas of
the three men who, among the philosophers, did the most for the
reform of criminal law : Montesquieu, Beccaria, and Voltaire.

§ 3. Montesquieu and Beccaria. The Criminal Law in
Voltaire's Works. — In regard to criminal procedure, as in regard
to criminal law, Montesquieu keeps to general ideas : " Political
liberty," he says, ** consists in security, or, at least, in the idea
that we enjoy security. This security is never more dangerously
attacked than in public or private accusations. It is, therefore,
on the good quality of criminal laws that the liberty of the sub-
ject chiefly depends. . . . The knowledge already acquired in
some countries, or that may be hereafter acquired in others, con-
cerning the safest rules to be observed in criminal judgments, is

* See also "Recherches sur les cours et les procedures criminelles d' An-
gle terre, extraites des Commentaires de Blakstone," 1790.
2 "Lettres persanes," Letter 78.

362

Title II, Ch. II] PUBLIC OPINION IN THE 1600 s and 1700 s [§ 3

more interesting to mankind than any other thing in the world.
Liberty can be founded on the practice of this knowledge only;
and supposing a State to have the best laws imaginable in this
respect, a person tried under that government, and condemned
to be hanged the next day, would have more liberty than a pasha
in Turkey." ^ That is an excellent axiom. The criminal proced-
ure does not only consider the evil-doers ; it is the safeguard of
the liberties of all ; it is as Rossi said : " The English Jury and its
Parliament are columns of the same edifice."

But under what conditions will the criminal laws be really pro-
tectors? Two things are necessary, certain forms and the possi-
bility of liberty of defense. " In republics, it is plain that as many
formalities at least are necessar^*^ as in monarchies. In both gov-
ernments, they increase in proportion to the value which is set
on the honor, future liberty, and life of the subject. In moder-
ate governments, where the life of the meanest subject is deemed
precious, no man is stripped of his honor or property imtil after
a long inquiry ; and no man is bereft of life till his very country
has attacked him — an attack that is never made without leav-
ing him all possible means of making his defense." ^ Add to this
the necessity for fixed laws that leave nothing to the judge's dis-
cretion,^ and we have Montesquieu's doctrine. As we have said,
he has not dealt much with details ; only two or three points have
been selected by him. In regard to the prosecution, he admits
the institution of the public prosecutor, a necessary survival of
the ancient law, after a short disappearance : " We have at pres-
ent an admirable law, namely, that by which the prince, who is
established for the execution of the laws, appoints an officer in
each court of judicature to prosecute all sorts of crimes in his
name ; hence the profession of informers is a thing unknown to us,
for if this public avenger were suspected to abuse his office, he
would soon be obliged to mention his author." ^ Montesquieu
stigmatized torture ; ^ but, strange to say, he gives his approba-
tion, if not to the entire system of legal proofs, at least to the rule
providing that two witnesses shall be necessary to justify a con-
demnation ; • upon this point Voltaire was more far-seeing.

The " Treatise on Crimes and Penalties " of the IMarquis of Bec-
caria was published at Milan in the Italian language,^ but a trans-

' "Esprit des lois," Book XII, ch. II. ^ 75^^.^ Book VI, ch. II.

» Ihid., Book VI, ch. III. * Ihid., Book VI, ch. VIII.

» Ibid., Book VI, ch. XVII. • Ibid,, Book XII, ch. III. .

^ As to the influence of the French philosophers on Beecaria, see M, Paul
Janet, ** Histoire de la philosophic morale et politique," vol. II, p. 412 et seq.

363

§3] PROCEDURE IN THE 1600 S AND 1700 S [Part II

lation into French by Morellet appeared in February, 1766.^
Its influence, which was immense, was even much greater in
France than in Italy.

With Beccaria we enter into details. After several chapters
devoted to the necessity for fixed punishments, he attacks the
abuseof detention pending trial (ch. VI), secret accusations (ch. IX),
the oath imposed on the accused (ch. XI), ensnaring questions (ch.
X), and lastly, torture. He demands publicity of judgments and
proceedings. " Let the judgments be public ; let the proofs of
the crime be public, and public opinion, which can be the only
social restraint, will keep violence and passion in check" (ch. VII).

As to the system of proofs, he evidently has a leaning toward
moral proofs. He prefers " the ignorance which judges by senti-
ment " — " all that is necessary to judge is mere good sense, and
this guide is less misleading than the learning of a judge."
He also says, however, " It is important, in a good system of laws,
to determine in a precise manner the degree of confidence which
should be placed in the witnesses and the nature of the proofs
necessary to establish the offense " (ch. VII).

It is apparent that the reforms Beccaria demands are, in reality,
not particularly daring. They do not go verj'' far beyond those
already demanded by President Lamoignon. But the fact that
^' this was all claimed by right of reason makes the great commo-
tion which the book caused comprehensible. Besides, the prin-
ciples of criminal law, properly so called, held an important place
in the book. " Beccaria," says Condorcet, " refuted in Italy the
barbarous maxims of French jurisprudence." Morellet, the trans-
lator of the work, sent Beccaria the congratulations of all French
philosophers. " I am especially enjoined to send you the thanks
and compliments of M. Diderot, M. Helvetius, M. de Buffon.
... I have submitted your book to M. Rousseau. . . . M.
Hume, who has been staying with me for some time, commands
me to tell you a thousand things on his part. ... M. d'Alembert
is going to write to you." ^

Voltaire annotated the " Treatise on Crimes and Penalties " ;
but his works devoted to criminal law possess for us a much more
living interest than Beccaria's book. In Voltaire, in fact, instead
of elevated generalities and magnificent tirades, we shall find accu-

* Letter from Morellet to Beccaria, 1766 : ** It was M. Malesherbes, with
whom I have the honor to be connected, who suggested to me the transla-
tion of your work into our lang^uage. My translation appeared eight days
ago."

2 Letter of Morellet to Beccaria, February, 1766.

364

Title II, Ch. II] PUBLIC OPINION IN THE 1600 S AND 1700 s [§ 3

rate, almost technical, criticism of the Ordinance of 1670. He
brings to it the insight of his admirable good sense, in addition to
his gift of accurate information, a very necessary quality.

" The Criminal Ordinance," he says, " seems on several points
to have been directed only towards the destruction of those ac-
cused. It is the only uniform law in the whole kingdom. Should
it not be as favorable to the innocent as it is terrible to the guilty ? *
This procedure is much more rigorous since 1670; it would have
been much milder if the majority of the commissioners had been
of the same mind as M. de Lamoignon." ^ We can follow all
the phases of the procedure in Voltaire's criticism of it. He says
nothing about the complaints and denunciations by which the
proceedings begin; and, in fact, there was nothing in regard to
them but wise provisions, which have survived.' Arrived at the
information, he finds himself face to face with two abuses, secrecy
and the monitories : '* Although there are some cases in which a
monitory is necessary, there are many others where it is very dan-
gerous ; it invites men from the dregs of the people to bring accu-
sations against their superiors in rank of whom they are always
jealous. . . . There is probably nothing more illegal in the tri-
bunals of the Inquisition ; and a great proof of the illegality of
these monitories is that they do not proceed directly from the
magistrates ; it is the ecclesiastical power which issues them.'* *

He has much to say about the secrecy of the procedure : " All
these secret procedures may, perhaps, be compared to a match,
w^hich bums imperceptibly, but sets fire to a bomb." — " Is it for
justice to be secret? Secrecy belongs to crimes alone. It is
the procedure of the Inquisition." ^ — " With us, all is conducted
in secret. A single judge, only attended by his clerk, hears each
witness separately. This custom, established by Francis I, was
confirmed by the commissioners who were employed to digest
the Ordinance of Louis XIV in 1670; which confirmation was
entirely due to a mistake. They imagined, in reading the code

* " Commentaire du Traits des d61its et des peines," ch. XXIII.
» Ibid,

* By a strange idea, he regrets the disappearance of the old accusation
by formal party: "Happy are those nations that have been wise enough
to ordain that all accusers should be confined in prison as well as the ac-
cused ! Of all laws that is the most just." "Prix de la justice et de Thu-
manit^," Art. XXII, §3.

* "Relation de la mort du chevalier de La Barre." "There was no
proof against my relatives," says Donat Galas in his " M^moire," " and there
could be none, so they had recourse to a monitory. . . . The crime was
suspected, sa they demanded the ^disclosure of proofs."

» "Prix de la justice," Art. XXII, § 6.

365

§ 3] PROCEDURE IN THE 1600 S AND 1700 S [Part II

' de Testibus/ that the words, * testes intrare judicis secretum '
signified that the witnesses were examined in private ; but * se-
cretum ' means here the chambers of the judge. * Intrare se-
cretum/ if intended to signify private interrogation, would be
false Latin. This part of our law, therefore, is founded on a
solecism." ^ Here Voltaire yields to that propensity to anec-
dote that often leads him to seek in insignificant facts for the
cause of great events ; we no doubt find in Bomier, whom he quotes,
that misunderstanding cited as the cause of " that custom, or
rather that abuse of hearing the witnesses secretly," - but we
know how the secret procedure was introduced and kept up.
However, everything was fish that came into the publicist's net.
The confirmation did not appear less defective to Voltaire than the
first deposition : " The deponents are usually from the dregs of
the people, whom the judge, when he is shut up with them, can
make say an^iJiing he likes. These witnesses are heard a second
time, still in secret ; this is what is called the confirmation." ^

How is the accused to be able to confute these witnesses ? By
means of the confrontation ; but " it would seem as if the law com-
pelled the magistrate to conduct himself towards the accused
rather as an enemy than as a judge. It is in the judge's option
to order the confrontation or omit it (* if need be, confront,'
the Ordinance says). Custom in this respect seems to be contrary
to the law, which is ambiguous. There is always confrontation ;
but the judge does not always confront all the witnesses ; he omits
those who do not seem to him to be favorable enough for the prose-
cution. However, any such witness who has not testified against
the accused in the information can testify in his favor at the con-
frontation ; the witness may have forgotten certain circumstances
favorable to the accused. The judge himself may not have at
first recognized the importance of these circumstances and may
not have recorded them." *

The confrontation, moreover, is illusory : "If, after the confirm-
ation, they retract from their deposition, or vary in any material
circumstance, they are punished as false witnesses. So that if a
simple, honest fellow, recollecting that he has said too much, that
he misunderstood the judge or the judge him, revoke his deposi-
tion from a principle of justice, he is punished as a reprobate.
The natural consequence of this is, that men will confirm a false

* "Comment, sur le Traits des d61its et des peines," ch. XXIII.

2 Bomier, upon article 11, title VI of the Ordinance of 1670 (vol. II, p. 82) .

* '*Commentaire sur le Traits des.d61its et des peine<»." ch. XXIII.
* '*Commentaire des d^lits et des peines," Art. XXIV.

366

Title II, Ch. II] PUBLIC OPINION IN THE 1600 S AND 1700 S [§ 3

testimony rather than expose themselves, for their honesty, to
certain punishment." '

Furthermore, the accused is cut off from everybody, and with-
out counsel : " To cast a man into a dungeon ; to leave him there
a prey to the horrors of imagination and despair; to examine
him only when he is bereft of his memory by the anguish of pain,
and his whole frame is disordered ; is it not like enticing a traveller
into a den of thieves to assassinate him ? Nevertheless that is the
custom of the Inquisition. That single word impresses the im-
agination with horror.'* * — "A man, being suspected of a crime,
knowing that he is denied the benefit of counsel, flees the country ;
a step to which he is encouraged by every maxim of the law. . . .
Do your laws, then, allow the privilege of counsel to an extortioner,
or a fraudulent bankrupt, and refuse it to one who may possibly
be a very honest and honorable man ? " '

Finally comes the crowning cruelty, the crowning absurdity,
torture : " Since there are yet Christian people — What do I say ?
Christian priests and Christian monks, who make use of tortures
for their principal argument, we must begin by telling them
that a Caligula, or a Nero, never dared to inflict such cruelties on
a single Roman citizen. . . . We meet with nothing in the books
which take the place of a code in France but these horrible words :
preparatory torture; ordinary torture; extraordinary torture;
torture under reservation of proofs; torture without reservation
of proofs ; torture in presence of two counsellors, tprture in pres-
ence of a doctor, of a surgeon, torture to be administered to women
and girls, if not with child. One would think that all the books
had been written by the executioner." *

I^ter, quoting a passage from d'Aguesseau, in w^hich the latter
states that if the proof is not complete, torture or a further in-
quiry cannot be ordered, he cries : " What then is the power of
precedent, illustrious chief of the magistracy ? What ! you have
no evidence, and for two hours you punish an unfortunate man
with a thousand deaths, in order to deal out to him a single one
which will only last a moment. . . . Can it be possible that you
are capable of ordering torture or a further inquiry ! What a
frightful and ridiculous alternative ! " He was well acquainted
with the judicial practice on this point : ** Unfortunately
we are not too well agreed as to what presumptions are strong

^ ** Comment, des d^lits et des peines," Art. XXIV.
« "Prix de la justice," Art. XXXIII.

* "Comment, des d^lits et desjpeines," ch. XXIII.

* "Prix de la justice," Art. XXIV.

367

§3] PROCEDURE IN THE 1600 S AND 1700 S [Pabt II

enough to induce a judge to begin to dislocate the limbs of his
fellow-man by torture. The Ordinance of 1670 has decided noth-
ing regarding that shocking preliminary operation. A presump-
tion is nothing more nor less than a conjecture. Torture should
not be ordered in France until a ' corpus delicti ' is established, at
all events." ^

Voltaire has attacked legal proofs more savagely than any one
else, without, perhaps, taking into consideration, too carefully,
their importance in the system as a whole : " God of justice !
what examples of these mistaken murders appear every year in
Europe, in almost all the courts that are governed by the Tri-
bonian compilation, or by the ancietit feudal custom ! . . . The
heart shudders, and the hand trembles, when we reflect how many
horrors have issued from the bosom of the laws themselves. Then
ought we to be contented to wish that all laws were abolished, and
that there were no others but that of the conscience and the good
sense of magistrates ? — who would answer that this conscience
and this good sense would not go astray?"^ And elsewhere:
" The Parlement of Toulouse has a very curious custom in its
proofs by witnesses. Elsewhere half-proofs are admitted, which
is a palpable absurdity, for we know that there are no half-truths.
But at Toulouse they allow quarters and eighths of a proof.
For instance, a hearsay may be considered as a quarter, and another
hearsay, more vague than the former, as an eighth ; so that eight
hearsays, which, in fact, are no other than the echo of a groundless
report, constitute a full proof. It was upon this principle that
Galas was condenmed to the wheel. The Roman laws required
proofs * luce meridiana clariores.' * . . . Who would not be terri-
fied at such a procedure ? Who could be sure of not falling a vic-
tim to it ? Oh, judges, if you would not have the innocent accused
take flight, facilitate the means of his defense ! "

The rights of the defense — these words are in all mouths.
What is necessary to insure the payment of proper respect to
these sacred rights? Publicity, the assistance of an advocate,
the abolition of torture, the doctrine of legal proofs ; for the time
being the claims of the publicists are limited to these points ; on
these they demand legislative reform. " If it should ever happ>en
in France," says Voltaire, " that the laws of humanity soften some
of our rigorous customs, without facilitating the commission of

' "La m6prise d'Arras." « "Prix de la justice," Art. XXII, § 2.

f " Commentaire du Traits des d^lits et des pemes," ch. XXII. In ad-
dition to the passages quoted, see another in which Voltaire summarizes
his whole argfument ("Comment." eh. XXIII).

368

Title II, Ch. II] PUBLIC OPINION IN THE 1600 S and 1700 s [§ 4

crime, we may hope for reformation in these legal proceedings
wherein our legislators seem to have been influenced by too much
severity." ^

But, beyond all that, the philosophers looked forward to some-
thing higher and more just, the trial by jury : " In England,"
says Montesquieu, " the jury give their verdict whether the fact
brought under their cognizance be proved or not ; if it be proved,
the judge pronounces the punishment inflicted by the law, and for
this he needs only to open his eyes." * Montesquieu does not
merely praise the jury ; he lays down the rule which should govern
their action : " The people are not jurists ; all these restrictions
and methods of arbitration are above their reach ; they must have
only one object and one single fact set before them ; and then they
have only to see whether they ought to condenm, to acquit, or to
suspend their judgment." ' *' That is a very wise law," says
Beccaria, " and one invariably leading to satisfactory results,
which provides for the trial of every one by his peers ; for, when
the fortune and the freedom of the subject are at stake, all senti-
ments conducive to inequality ought to be suppressed." * In
Voltaire's " A. B. C.,"one of the speakers, as we have seen, mentions
England as the country possessing the best laws : " Every person
accused," he says, " is tried by his peers ; he is not accounted
guilty unless they are agreed upon the fact. The law condenms
him, not upon the arbitrary sentence of the judges, but for the
crime as proved by the evidence." ^ — " Not only the freeman,"
Voltaire writes elsewhere, " but the stranger, finds equal security
in their laws, since he is at liberty to choose six out of the twelve
who are to judge him. The privilege is available to the whole
universe." • Rousseau also extols the jury : " In England, when
a man is accused of a crime, twelve jurors are shut up in a room to
give their opinion, based upon the examination of the proceedings,
as to whether such accused is guilty or not ; and they are not al-
lowed to leave that room, and get nothing to eat until they come
to an agreement, so that their verdict is always unanimous, and
decisive of the fate of the accused:" ^

§ 4. Opinions of the Jurists of the ITOOs. — We have seen how
the philosophers, in the name of reason and humanity, passed

* *'Commentaire du livre des d^lits et des peines," eh. XXII.

» "Esprit des lois," Book VI, ch. III. » Ibid., Book VI, ch. IV.

* "Des d^lits et des peines,'' ch. VII.

• "L'A. B. C." (fifteenth conversation).

• "Prix de la justice," Art. XXIII.

^ " Correspondance, " year 1761. Letter to M. d'Offreville, at Douai.
— Cf. ."Rousseau juge ae Jean-Jacques," Dialogue I.

369

§ 4] PROCEDURE IN THE 1600S AND 1700 S [Part II

sentence upon the criminal procedure. What estimate did the
jurisconsults, who commented upon it in their books and applied
it in their courts, put upon it ? Here the scene is changed and the
spectacle is sometimes saddening. The governing principle of
the jurists, so different from that we have been studying, consists
of two things excellent in themselves, but apt to be fatal when
carried to an extreme : the spirit of conservatism and respect for
the law. It is not that they are, to all appearance, opposed to the
prevailing spirit of the age. All of them, even the most inflexible,
bow to the contemporary divinities, reason and humanity. " I
pride myself on sensibility as much as any other," says Muyart
de Vouglans in a curious tract in which he sets out to refute Bee-
caria's book.^ "This solemn decree left the law to stand as it
was in all its authority, and reason loses none of its rights," says
Louis Seguier.^ But this compliance comes to nothing. Some
tax their ingenuity to prove that the criminal procedure is not
opposed to the principles of philosophy ; * others, and these are
the most numerous, acknowledge the chief defects of the Ordinance,
but they nevertheless bow before the law. This Ordinance of
1670, so solemnly discussed, already in force for a century, and
whose rules go still farther back into the past, appears to them to
be inviolable. Even the faultfinders do not dream of disobevdng
it. The spirit of authority stifles the spirit of reform within them.
The Ordinance has spoken, they say, and they bow down. The
remark has been made that " the jurisconsults are accustomed to
live with the existing law ; they contract a respect for it ; and, not
being excessively cultured, they delude themselves ; they imagine
that the alteration of existing things will involve a revolution. . . .
The jurisconsults are useful, they are a conservative element ;
they cling to the laws of the past, but as to the future, it is never
they who demand change, but people outside of the profession." *
Among the most ardent apologists for the Ordinance of 1670,
Muyart de Vouglans figures in the first rank. His is probably the
clearest intellect among the criminal law writers of the 1700 s. He
has expended his opinion on the subject " ex professo " in his " In-
stitutes au droit criminel ; " ^ but it is especially in his polemic
against Beccaria that he must be studied. Here we feel that he

ip. 4.

* Decree of the Parlement of Paris of 11th Augrust, 1786, oondemning
Dupaty's Memorial to be suppressed and burned. "IWquisitoire," 1786,
p. 175.

* * * To do otherwise than assert that they could never be really inhar-
monious is to wrong reason and law." Siguier , p. 175.

* M. Laboulaye, Revue des Cours litt^raires, 1865, p. 745. • p. 69.

370

TlTLB II, Ch. II] PUBLIC OPINION IN THE 1600 S AND 1700 S [§ 4

does not understand the situation ; he thinks he has to deal with a
madman/ or a criminal, with whom he takes very high ground,*
and whom he picks out for castigation. " I leave," he says, " to
those who are specially concerned with this branch of our public
law, the task of using their censure and employing all their author-
ity to arrest the contagion." ' It is not the author's revolutionary
spirit which surprises him most, nor his " disrespect even for the
sacred maxims of government, morals, or religion." ' It is to find
a book on criminal law which is not, above all things, technical and
devoted to positive law. " You, sir, no doubt expect, like myself,
to find under the title of a ' Trait6 des delits et des peines,' an
accurate and methodical study of the laws and principles relating
to the subject, citations of authorities on the questions which may
arise thereupon, and especially a precise enumeration of the dif-
ferent kinds of crimes and their punishments, as well as the pro-
ceedings necessary to arrive at their establishment and proof.
You will, however, be astonished to see that nothing of the kind
is to be found in this book." *

He has the most perfect faith in the law as it exists ; a belief
in it without the shadow of a doubt.' And he contrives to extract
from Beccaria's book and hold up to public indignation ^ a list of
propositions now regarded, for the most part, as truths of good
sense and axioms of criminal law. His amazement at the prin-
ciple of equality of punishments and the exclusion of the idea of
divine vengeance in criminal prosecution is unbounded. "The
author claims," he says, " that the status of the victim of the
crime should no longer influence the infliction of the punishment,
and the only reason he gives for this is that everybody is depen-
dent chiefly on the social body to which he belongs. For the
same reason he wishes that those of the highest rank be punished

'"This sham illuminee in whose eyes the Solons, the Lycurguses,
the Papinians, the Cujas, in a word, the wisest philosophers of Greece, Ital]^,
and France are but pure sophists, and the ages of Augustus and Louis
XIV but ages of errors and darkness" (*'Lettre con tenant la refutation
de quelques principes hasard^s dans le Traits des delits et des peines,"
Geneva 1767, p. 22).

' "Undoubtedly I do not have the highly strung organization of our
modem criminalists ; for I have not experienced the pleasing shudders
they speak about. The feeline which has affected me most, after reading
several pages of this book, has been that of surprise, to say the least of it.

' ^'p. 17. *p. 5. »p. 25.

• It may be said for the honor of France that its jurisprudence has
reached a stage of perfection which gives it a distinguished place among
civilized nations ; so much so that some of them have even taken it as a
model for the reform of their criminal codes,*' p. 20. C/. p. 50.

^ pp. 6-17.

371

§ 4] PROCEDURE IN THE 1600 S AND 1700 S [Part II

♦ like the lowest of the people. The danger and absurdity of such
a principle is self-evident. . . . Following out this system, the
author goes so far as to claim that the seriousness of the crime in
relation to its offense against God should not be taken into con-
sideration." ^ Finally, without the slightest hesitation, he de-
fends all the atrocities of the old system, and especially the oath
of accused persons and torture. The fragment deserves to be
quoted almost in its entirety. " The author cries out against
the compulsory administration of the oath to the accused, and with
so little reflection that he does not even cite the most specious
reason which could be given against it, one which has led certain
nations, Germany among others, to relinquish this practice;
namely, that it is presumable that a person who has been capable
of committing the crime is capable of committing perjury to con-
ceal it. The reasons adduced by our author are, on the one hand,
that it is unnatural for the culprit to accuse himself ; and on the
other, that experience proves that the oath has never made a
guilty person tell the truth. But if it is necessarj'^ to abolish the
oath because it is not natural for the culprit to accuse himself,
the interrogation must be abolished for the same reason, notwith-
standing that the author acknowledges that to be an essential
step of the procedure. As to experience, it is indeed necessary
that it should be as well established as the author claims, for this
practice has been preserved with us and almost all other civilized
nations, despite the reiterated efforts which have been made for its
abolition.^ If the author is to be believed, the abolition of tor-
ture is also necessary, as a proceeding at once cruel, unjust, useless,
and dangerous. We may, at the outset, refute in a single word
everything the author says on this subject by observing that he
merely repeats what has been said by other authors, who have,
like him, inveighed against this practice without having been able
to prevent its perpetuation down to the present time. The non-
success of these early attacks may even be the more plausibly opn
posed to him seeing that these authors all wrote before the Ordi-
nance of 1670. That Ordinance, by the rigorous precautions
it established, has, for the most part, remedied the disadvantages
which aroused the zeal of these authors. We have, while treat-
ing of the procedure, indicated the nature of these precautions,
and demonstrated that they are such that the person likely to ex-
perience this torture must be regarded as more than half convicted

• of the crime, so that the danger of confusing the innocent with the

1 pp. 102-104, 106. * pp. 70-72 ; c/. "Institutes du droit criminel," p. 358.

372

Title II, Ch. II] public opinion in the 1600 s and 1700 s [§ 4

guilty is not nearly so much to be feared as before the law was passed.
It may also be confidently asserted that for a single example of an
innocent person who has yielded to the violence of the torture for
a century, a thousand others can be cited to prove that, without
the aid of this proceeding, the majority of atrocious crimes, such
as murder, fire-raising, and highway robber^', would have remained
unpunished, and this impunity would have engendered disadvan-
tages much more dangerous than those of torture, by making a
multitude of people the innocent victims of these wily rascals.
. . . Several other instances might be adduced where experience
has equally proved the utility of torture, if that utility were not
found to be othenvise sufficiently proved, both by the peculiar
advantage the accused himself finds in its rendering him the judge
of his own cause and putting it in his power to evade the capital
punishment entailed by the crime of which he is accused, and by
the impossibility hitherto experienced of substituting for this pro-
ceeding another means as effectual and subject to fewer disad-
vantages. A final argument in its favor is tlie antiquity and uni-
versality of the custom, which dates back to the early ages of the
world, and has been adopted, as we know, by every nation, includ-
ing the Romans themselves. Although the latter, in early times,
usually employed it only against slaves, they did not fail to extend
it afterwards to freemen. . . . Besides, the examples of one or
t^'o nations claimed to have discarded the custom form but excep-
tions the better to confirm the general rule. But finally, were it
a question of deciding by precedent, such might be cited which
would appear less suspicious and, at the same time, more to be
respected in the author's eyes than those furnished him by his
own country or generally by any of the States descending from
the Empire. It is suflBcient, to leave no ground for his objec-
tions upon this point, to meet them with the provisions of Articles
54 and 61 of the Ordinance of Charles V, conmionly called the
Carolina." ^

After this astonishing outburst, Muyart de Vouglans calms
down and bequeaths his ideas to posterity. ''We cannot do
better than conclude this analysis with those general reflections
based upon unalterable principles, tried by constant experience,
and against which any systems bom of a spirit of contradiction
and innovation are bound to fail." ^ It is almost incredible that
this should have been written and published in 1767.

On the very eve of the Revolution, we find another apologist
1 pp. 73-81. »p. 118.

373

§ 4] PROCEDURE IN THE 1600 S AND 1700 S [Part II

for the Ordinance, less hysterical, but no less resolute. This is
Attorney-General Louis Sfeguier^who, on 7, 8, and 10 August, 1786,

delivered a long address before the Parlement _of Paris, demanding
the suppression of a memorial become famous under the name of
the " M^moire pour trois hommes condamnes a la roue." Du-
paty was the author of this memorial, and it made criminal pro-
cedure the subject of a vigorous onslaught. S^uier's address
was like the swan song of the old legislation. Seguier did not
have to justify torture. At that period, as we shall state immedi-
ately, the most reprehensible torture, namely, the preliminary
torture, had been suppressed, and the attorney-general was able
to congratulate himself on that.^ But in his opinion, " during
successive generations our laws have attained that stage of per-
fection of which human legislation is susceptible." ^ He is in-
dignant at the attack on the Ordinance. " This law, framed by
the cooperation of the most profound, experienced, and cautious
intellects, this law, based on such judicious reasoning and of such
venerable authority, so inviolable in its execution, is unblushingly
held out to a gracious monarch as an attempt to subvert natural
law, as emanating from the courts of justice of Tiberius and the
prisons of the Inquisition, as worthy of the heart of Claudius or
Caligula. How astonished would be the illustrious shades of Lamoi-
gnon and d'Aguesseau, of Mole and Talon to hear it contended
that this law is based upon a in^xim invented in one of the dark
ages of the human intellect i^The age of Louis XIV, the rival
of the age of Augustus, an age of darkness and barbarity !> Has
it been reserved for our administration to reply to such indecent
charges ? " ^ Siguier also does not hesitate to justify all the severi-
ties of the Ordinance, against which the public temper of the time
protested. In his eyes " the jurisdiction of the provosts is of
evident utility; " ^ the oath required of the accused is perfectly
lawful.^ He approves of the accused not being allowed to present
his justificative facts until after the inspection (" visite ") of the
process or to prove them except by the judge's consent.* For him
" secrecy is the immovable foundation of the law. It is enjoined
in order to avoid the snares of bad faith, and to prevent conspira-
cies leading to subornation. It is enjoined because the attorney-
general is the sole prosecutor, and in no case can he be suspected
of prosecuting an accused from animosity or a desire for ven-
geance." ^ Lastly, he glories in the absence of counsel for the

1 " R^quisitoire," p. 48. » Ibid., p. 221. » pp. 245, 246.

* p. 26. » p. 162. • p. 171 et seq, ^ p. 246.

374

Title II, Ch. II] PUBLIC OPINION IN THE 1600 S AND 1700 S [§ 4

defense. " 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 formali-
ties 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 fre-
quently only one principal fact, and to answer to such a simple
fact a counsel is useless. Preparation shows more plainly the de-
sire to distort the truth than the wish to do it homage." ^ This
plausible ingenuity confuses the mind.

Seguier was, however, well aware that those laws which discarded
counsel and ordered secrecy in the proceedings did not always rule
in France.^ But in his opinion the severities introduced are so
many improviements realized. He knew that at Rome the pro-
cedure was formerly accusatory, public, and fully confrontative.*
But he had Uttle respect for the customs of " popular or semi-
popular States." ^ This man, speaking on the eve of the Revo-
lution, knew of A>Tault, one ©f whose opinions he reproduces
verbatim without acknowledging its source ; * yet he is insensible
to the sentiments which stirred the heart of the old jurist. He was
also acquainted with the English procedure, for which he has
nothing but distrust. ** The use of the double examination was
not buried under the debris of the Roman Republic. It still
exists to-day in the English courts of judicature. One of the laws
of their national constitution is that all accused persons must be
tried publicly and by their peers. This form is maintained there
because of its analogy to the constitution of a state where the nation
enjoys legislative power and controls the ministry by its repre-
sentatives ... in a word, shares the public authority. In ordi-
nary crimes the judges hear the accuser ; the accused presents his
pleas in defense, the witnesses are heard, objected to, publicly
confronted, and the accused is free, if he gives bail, throughout
the whole examination. The jurors decide, but they decide only
the question of fact ; the law alone inflicts the punishment. . . .
The British laws bear the impress of the genius and customs of
the people who established them. The thoughtlessness and rest-
lessness of some minds would like to see this form of procedure
naturalized with us. Do the French Anglomaniacs fully under-
stand this system of laws of which they declare themselves the
admirers? Who among them would not be afraid to be left to
the discretion of twelve judges known as jurors, who have no other

» p. 247. « p. 230 e/ seq. » pp. 217, 218. * p. 220. » p. 229.

375

§ 4] PROCEDURE IN THE 1600 S AND 1700 S [Part II

way of giving their opinion than by the words, ' Guilty ' or * Not
Guilty ' ? And these judges, chosen from each class of the people
relatively to the accused's station or calling, remain shut up,
unable to leave until they are of an unanimous opinion, — a kind of
conclave in which he whom nature has endowed with the most
robust constitution can compel his associates, by dire necessity,
to come to his opinion upon innocence or guilt ; with the result
that a single juror can decide the fate of the guilty or of the inno-
cent. Strange laws ! '* ^

Seguier detests " those citizens, foreigners in their fatherland,
who reserve their admiration for the States adjacent to France,
or those reformers occupied solely in overturning our laws under
the pretext of assimilating them to the Code of Nature." ^ He is
sparing neither of exhortations nor ominous prophecies. " Such
are the principles transmitted to us by our wise predecessors, and
a virtuous indignation fills us at the sight of the contrary principles
which to-day find supporters. It is the opinion of some enthu-
siasts that some people would substitute for public opinion.'
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." ^ The Revolution was, in fact, about
to break out ; but it was certainly not precipitated by the putting
in operation of reforms.

Siguier's strange speech has taken us a little ahead in point
of time. Let us return to the jurisconsults of somewhat earlier
date. Poullain du Pare, in the beginning of the first of the two
volumes which he devotes to criminal procedure, examines the
question as a whole. " The forms of criminal procedure," he
says, " are entirely different from those prescribed for civil pro-
cedure. Those who do not thoroughly examine the reasons for
these forms cry out against the rigor of the law, which, in a matter
touching the honor and the life of an accused, presumed innocent
until he is convicted, holds out a constant snare to him and does
not permit him to prove his innocence until after the examination
C instruction ') has been completed. It is sufficient, to justify
» p. 218, 219. * p. 13. » p. 255. » p. 224.

376

Title II, Ch. II] PUBLIC opinion IN THE 1600 s and 1700 s [§ 4

the law against this reproach, to say that since the establishment
of these forms it is exceedingly seldom that the innocent have suf-
fered the punishment of the guilty, and that, in spite of the rigor
of the law, several culprits prosecuted have escaped punishment
for lack of sufficient proof. But further reflection, leading to a
recognition of the spirit of the different provisions of the Ordinance
of 1670, proves the excellence of the law. From the time the prose-
cution is instituted, the sole aim which should be adhered to is
the discovery of the crime, of the perpetrator, and of his accom-
plices. The public safety requires that to be done promptly,
and that woidd be impossible if a procedure, confrontative be-
tween accuser and accused, was admitted from the commencement,
like that established in civil matters between plaintiff and defend-
ant. But in ordaining that this examination be rigorous and
prompt, the law has taken every precaution that the accused be
kept secure from calumny." ^

Our author then briefly describes the various documents of the
procedure, and continues : " Such is the general spirit of the law,
• . . I am also surprised to find the judicious Abb6 Fleury make,
in a few words, the most extravagant criticism of our criminal
procedure. He expresses himself thus : ' To reform our criminal
procedure derived from that.of the Inquisition. It tends more to •
the discovery and punishment of the guilty than to the vindica-
tion of the innocent.' This is to attribute to the procedure an
origin as false as it is odious. The Inquisition admits, as witnesses,
all kinds of informers, whom it does not confront with the accused,
— convicts, prostitutes, the nearest relatives, son against father,
brother against brother, spouses against each other, are considered
unimpeachable witnesses. The accused is compelled to guess at
and confess his crime, real or suspected. The most secret thoughts
are judged, and they do not stop at holding out continual snares
to the accused in order to find him guilty; it would seem as if
they avoided and endeavored to destroy every means of finding
him innocent. These are the principal defects of that tribunal,
erected at once in the face of the liberty of the people and the
power of their rulers. It is surprising that any one should have
thought of comparing this detestable procedure with that of France,
where the tribunal of the Inquisition, after having made its early
ravages, came to nothing of its own accord, as it were, by rea-
son solely of its defective constitution and procedure." ^

^ "Principes de droit fran^ais suivant les maximes du Parlement de
Bretagne," Rennes 1771, vol. XI, pp. 2, 3. « Vol. XI, pp. 5, 6.

377

§ 4] PROCEDURE IN THE 16008 AND 1700 S [Part II

Poullain du Pare, like S^uier, resents the idea of the introduc-
tion of the English procedure into France. " Some authors, in
their condemnation of our criminal procedure, laud that of Eng-
land, where the whole of the examination, including the depositions
of the witnesses, takes place in presence of the accused. I do not
know whether that form has any disadvantages in a nation whose
lowest subject considers himself independent of those of the high-
est rank ; but in France, the subordination existing in the various
stations of life would be sufficient to intimidate those witnesses
who would have to testify in presence of an accused of superior
rank. The genius and temper of the two nations are so dissimi-
lar that it is impossible to draw just conclusions from a compari-
son of their respective procedures.'* ^

He is not inimical to all reform, however, and he makes this
suggestion. " The only excessive severity to be found in our
criminal procedure is from the time of the confrontation! When
that has revealed to the accused all the details of the charges,
why should he not be entitled to claim the full communication of
the criminal process, so that he may be put in a position to bring
together everything that can help in his vindication and to prove
the contradictions or the falseness of the depositions, the nullities
in matters of form, the inadequacy of the examination, and the
means neglected to be employed by the judges in thoroughly in-
vestigating the truth? However little of complexity there may
be in the examination, it is impossible for the most observant
accused to remember all the important points brought to his no-
tice in the confrontation. So it may be said that the intention
of the law is to devolve the defense of the accused upon the judges,
since it puts the employment of all lawful pleas out of his power
and permits counsel to be granted to him in a few matters only.
Is this severitv in accordance with the aim of all the laws, which
IS to use every possible means for the preservation of the honor
and the lives of innocent people V*^

The other criminalists do not examine the question of legisla-
tion directly and as a whole. But, it must be admitted, they
often point out the severity of the Ordinance, without, however,
demanding any reforms. The following are some opinions on the
principle points. First of all, Serpillon gives an account of the
debate which took place in the conferences as to the oath imposed
on the accused, and adds: "These observations . . . resulted
for the first time in a precise law prescribing the necessity for the
1 Vol. XI, p. 7. * Vol. XI, pp. 6, 7.

378

Title II, Ch. II] PUBLIC OPINION IN THE 1600 S AND 1700 S [§ 4

oath. ... It is, however, notorious that there is actually almost
as much perjury as there is oath on this occasion ; but the accused
cannot be punished for such false swearing." ^ Pothier remarks
" that there is in the official report of the Ordinance an admirable
speech against the use of the oath." ^ " Among the Romans,"
says Serpillon, " and even in France, an accused might be defended
by an advocate even for the most serious crimes ; but it was foimd
to be more fitting to compel accused persons to defend themselves
without the aid of any brief or prompting at hand." ^ Rousseau
de La Combe recalls "that formerly the accused might plead
through the agency of advocates and not by their own word of
mouth, or interrogation ; the charge might often be decided upon
a pleading." ^ And Pothier : " In regard to capital crimes, the
Ordinance forbids counsel to the accused, even after the confronta-
tion. In this respect our system of practice is more severe
than that of any other European country." ^

The dominant note in these remarks is usually nothing more
than a feeling of regret. Serpillon criticises the provision com-
pelling the accused to lodge his objections to the witnesses before
the reading of the deposition. " The Ordinance," he says, " is
certainly strict as to the examination. . . . Ayrault, in his ' Pra-
tique judiciaire/ also inveighs against the provision of the Ordi-
nances in this respect, and in reality, even to-day, if an accused
alleges strong objections to a witness and sets forth notorious
facts, there are few judges who would not be influenced thereby,
although the facts might not be proved in writing." • He speaks
in similar terms about the article regulating the proof of justifi-
cative facts. " It may be said that this provision of the Ordinance
is severe, since it requires an accused, often illiterate and imprisoned
in the dungeons, sometimes for a year, to nominate his witnesses
immediately. . . . The Ordinance does not even allow the judge
to grant him a delay." ^

The critics are somewhat more severe on the subject of torture.
Pothier, as we know, protested in quite a personal way : " They
avoided assigning to him criminal actions wherein it was foreseen
that torture might be ordered, because he could not endure the sight
of the sufferings ; an inability which was occasioned a great deal
more by the sensitiveness of his physical organization than by

» "Code criminel," p. 659.

• "Procedure criminelle" (Bugnet edition).

» "Code criminel," p. 662. * Ibid., p. 341.

•"Procedure criminelle'* (Bugnet edition), p. 341.

• "Code criminel," p. 730. ^ Ibid., p. 1212.

379

§ 5] PROCEDURE IN THE 1600 S AND 1700 S [Part II

moral sentiment." ^ Despite the explanation of his panegj'rist,
we ought to note with pious care this mark of feeling in the great
jurisconsult. " The public," Serpillon writes, ** has complained
of torture for a long time. Protests were even made about it
at the time of the conferences on this title. . . . Nothing more
cruel or unjust than the preparatory torture can be found. The
Romans administered it to their slaves, but that was because they
looked upon them as domestic animals. They never condemned
a citizen to it, and there is much stronger reason why Christians
and Christian races ought to abstain from it. . . . These dis-
advantages have decided several sovereigns to abolish this tor-
ment. This was done about fifteen years ago in Prussia; the
prince did not wish the innocent to suffer with the guilty. Tor-
ture is no longer in use in England, according to Despeisses, who
has declaimed very loudly against its use in France. Several
innocent people have died under the torture : that is a fact too
notorious to need to be proved in detail." ^ And Rousseau de La
Combe : " Accused persons hardly ever confess anything, so that
usually the preparatory torture is ineffective. The accused suffer
the torments of torture without confessing anything, and if they
do speak, it is to deny everything. . . . We may take the liberty
to represent to magistrates that to condemn an accused to the
preliminary torture is a very delicate matter. ... He is often
crippled for life, although cleared of the charge by the final judg-
ment. . . . An old criminalist makes the remark that torture
is rather a trial of patience than of truth. . . . We have a con-
siderable number of writers against torture, among others M.
Nicolas, president of the Parlement of Besan9on, in a special
treatise in which he gathers all that could be said to show the use-
lessness of torture. . . . However that may be, it must be ad-
mitted that, at least, the preliminary and final torture are often
wonderfully effective in regard to the discovery of accomplices." '
§ 5. D'Aguesseau's Reforms. — Whatever the opinion of the juris-
consults might be, they were no longer the speakers to be listened
to. The real ruler of the age was the public temper ; its progress
may be traced step by step, for its history has been written.*

1 '*Elop de Pothier." "(Euvres" (Bugnet edition), vol. II, p. 54.

' "Code criminel," p. 907. Also, speafin^ of the torture administered
at the Autun presidial : **We find it so orud," he says, "that we have,
since these accidents, refrained from condemning any one to it prepara-
torily."

» " Mat. Crim." pp. 424-426.

1 '*L*esprit r6volutionnaire avant la Revolution," by Af. Fdix Rocquain,

lo7o.

380

Title II, Ch. II] PUBLIC OPINION IN THE 1600 S AND 17008 [§ 5

We are about to look on at its triumphs, from our particular point
of view. For a long time confined within books, the spirit of re-
form is about to assert itself oflBcially. It will gain admittance
into the solemn hearings of the courts and into the literary societies,
sometimes even into the legislature. No reform, in the direction
we are about to point out, had been brought about under Louis
XV. D'Aguesseau, however, entertained the idea of ameliorating
the French laws, and bringing them together in a single body.*
He went to work on almost the lines followed for the reform of
justice under Louis XIV, calling for memorials, consulting the
principal members of the Parlements,^ and having all the questions
revised by a higher commission, which did duty as his privy coun-
cil. It consisted of Joly de Fleury, Machault d'Amouville, two
elder sons of the Chancellor, d'Argenson, Fortia, with, sometimes,
the addition of Ormesson and Trudaine.^ This work naturally
included criminal procedure. The Ordinance of 1670 must be
taken up again, but, it would appear, only to perfect it technically ;
at least that is presumable from an examination of some detached
portions of the whole, which, ready before the rest, saw the light
of day.

At one time, the Chancellor writes as follows to one of his friends :
" The memorial upon forgery is to be immediately examined by
the council, and, apparently, th'ere will remain very little to do
but give it the finishing touches. The next most pressing matter
is the jurisdiction of judges, and marshalcies, and the title upon
defaults and contumacies." ^ These various points were made,
under Louis XV, the subject of Declarations or Ordinances. First
comes the Declaration in the form of an Edict of June, 1730, con-
cerning criminal proceedings. Its object is merely " to interpret,
by additions. Articles 2, 3, 7 and 9 of title XVII of the Ordinance of
1670,'* regulating matters of detail alone. ^ In 1736 appeared
the Declaration as to pr6v6tal and presidial crimes, of which we
have already had occasion to speak. Here also the desire of the
legislature is merely to regulate. The preamble recalls that " one
of the principal objects of the Ordinance of 1670 was to fix definite
limits between the ordinary judges and the provost marshals . . .

^ See Francis Monnier, ''Le Chanoelier d'Ag^esseau,'* 2d edition,
1863, p. 286.

» Ibid., pp. 288, 290, 293. « Ibid., p. 288. < Ibid., p. 339.

• "These articles concerning defaults and contumacies met with very
many difficulties in practice in respect to the places where the search for
the accused ought to be made, and the summonses ^ven." SalU, "Es-
prit dee Ordonnances, Edits et D^larations de Louis XV ** (vol. Ill, pp.
155, 156).

381

§ 6] PROCEDURE IN THE 1600 S AND 1700 S [Part II

experience had taught that there remained several important
points which every day gave birth to dispute between the ordinary
courts and the judges of pr6v6tal cases." These are the difficulties
it was desired to remedy.

Finally, the Ordinance upon forgery of 1737 is one of d'Agues-
seau's chief titles to glory. It is really a law of almost perfect
technical accuracy. The preamble would even seem to disclose
the idea of amending the Ordinance of 1670 as a whole, but not
of changing its general features. It states merely that *' the diver-
sity of opinions and the different constructions placed upon the
diverse provisions have produced such a great variety in the prac-
tice of several courts, that proceedings which appear regular and
sufficient to some, are considered by others nidi and defective.'*
It is thought " that instead of being satisfied with curing the de-
fects of procedure as they appear, it would be much more expedient
to drain their source by a new Law, which would form at once a
supplement and an interpretation of prior Ordinances. But, la-
boring as we do under the necessity of dividing up such an exten-
sive work, we concluded that the revision of the Ordinance of
1670 upon criminal procedure should first of all engage all our
attention. And we have deemed it proper to make a choice even
in that Ordinance by commencing such a useful work by the titles
on the acknowledgment of writings or signatures, and forgery,
principal and incidental."

In Louis XVI's reign we verge on the era of true reform. Those
reforms which were brought forth before the convocation of the
States-General were, however, insufficient. We note for the
time only one Declaration of 24th August, 1780, which, without
entirely abolishing torture, does away with its most reprehensible
application, the preparatory torture. " We were of opinion,"
the king said later, " that torture, always unjust when used to
perfect the proof of offenses, might be necessary to obtain the dis-
closure of accomplices." ^

§ 6. Progress of the Spirit of Reform. — The new spirit, how-
ever, made rapid progress. It won over the great mass of the citi-
zens; it insinuated itself into the constituted societies of the
State; Royalty itself received it very kindly. This is what a
man holding court appointments wrote in 1775, in a book dedi-
cated to the king, and of which the king accept^ the dedication : ^

1 Preamble of the Edict of 1st May, 1788.

* "Les devoirs du prince r^duits & un seul principe, ou Di scours sur la

i'ustice," dedicated to the king, by Moreau.'VSee Didot's "Nouvelle
>iographieg6n6rale/* vol. XXX VI, p. 480. "Moreau was commissioned

382

r-y.

Title II, Ch. II] public OPINION IN THE 1600 s AND 1700 s [§ 6

" You will no doubt one day inquire if, in our criminal Ordinances,
the oldest of which was for the repression of the fiercest barbarity,
more was not thought of the conviction than of the defense of
the guilty ; if that formidable and profoundly secret examination,
which takes the accused unawares, so to speak, is not as much
fitted to cause consternation in the heart of an innocent person
as to spread terror into the heart of the guilty ; if there are any
kinds of prosecutions in which it could be just to refuse the ac-
cused the aid of a counsel ; if it is not more consistent with the
spirit of humanity to leave him, from the beginning of the pro-
ceedings, the same liberty to prove his innocence as the accuser
has all the time to prove the crime ; if it is right to compel the
accused to wait, before presenting his justificative facts, until
the edifice of accumulated proofs against him has acquired all
the perfection of which it is susceptible. ... It would seem,
in effect, Sire, that our criminal laws have looked upon the ac-
cused in the light of an already convicted culprit, and although
it is to-day very diflBcult for the latter to escape the punishment
which he deserves, it is also very easy for the honest man, or the
person accused by public mistake, or arrested from private malice,
to become the victim of the pain and vexation caused him by op-
pression. It has hardly ever happened in France that the arrested
criminal has evaded condemnation; but it has happened more
than once that innocence, unjustly prosecuted, has not been recog-
nized until after the infliction of the punishment. The wisest
and most just courts have sometimes had to tremble for a mur-
derous mistake, into which they have been led by the very regu-
larity of their procedure. The law has nothing with which to*
reproach them in such a case, but justice might probably blame
the imperfection of their forms." ^

The spirit of reform, despite the opposition of a section of the
magistracy, is affirmed in the " Discours de rentr6e " of the Courts.
In 1766, Servan delivers that celebrated oration, in which he wages
war ^gaimt* detention pending trial, the insidious interrogations,
torture, and the doctrine of legal proofs. He throws doubt upon
the lawfulness of capital punishment, and demands settled and
accurate laws. It is hard to conceive of anything more daring

by the Court to draw up several works, among others the preamble of the
Edicts of Chancellor Maupeou, and was rewarded for his zeal by the offices
of the kind's brother's first counsel, librarian of Queen Marie-Antoinette,
and historiographer of France.'* The work quoted was originally written
for use in the education of Louis XVI. See its preface, pp. 10, 11.
> Op. cit., pp. 436-438.

383

§6] PROCEDURE IN THE 1600 S AND 1700 S [Part II

from the lips of a magistrate. " Raise your eyes," he says to his
colleagues, " and see over your heads the likeness of your God
who was an innocent accused ; you, who are a man, be human ;
you, who are a judge, be reasonable ; you, who are a Christian, be
charitable. Man, judge, or Christian, whoever you be, respect
misfortune." ^ In conclusion he loudly demands the amendment
of the Ordinance of 1670.

This was not an isolated case. Servan had imitators. In 1786,
for instance, Attorney-General H6rault de S6chelles predicted
the passage of new laws in the near future.- The literary societies,
which exercised such a great influence at this period, eageriy as-
signed for competition questions of criminal legislation. " The
learned societies and the academies, which sw^armed in the 1700 s,
assisted in conserving this new spirit in the provinces, and the
latter, following the example set by Paris, applied themselves to
problems of criminal reform. It became a fashion. . . . In 1777
the ' Soci6t6 Economique ' of Berne offered a prize of twelve hun-~
dred francs to the author of the best memorial drawn up according
to this programme : * To compose and write out a complete and
detailed plan of criminal legislation from this triple point of view :
1st, crimes and the proportionate punishments to be applied to
them; 2d, the nature and weight of proofs and presumptions;
3d, the method of attaining them by means of the criminal pro-
cedure, so that mildness of examination and of punishment may
be reconciled with the certainty of prompt and exemplary chas-
tisement, and so that society shall find the greatest possible se-
curity for liberty and humanity.' When Voltaire saw this pro-
gramme, of which he has been suspected of being the author, he was
seized with enthusiasm, sent fifty louis more, and himself pub-
lished a reply to these questions. His book is entitled * Prix de
la justice et de I'humanite.' . . . Competitors appeared from
all quarters. The Society of Berne, after having adjourned the
award of the prize, gave it, in 1782, to two Germans, Von Globig
and Hulster. Their book was^rinted in German ;*4l does not
appear to have received any consideration in Germany.

" Among the competitors were two men destined to play, later,
a great part in the Revolution, and who at that period contended

* See "Diseours" prefaced to Serpillon's "Code criminel," p. 26.

2 See *' Rehabilitation de deux accuses et justi^cation de trois autres,"
by M. Godardy advocate, Paris, 1787, p. 113. '*We are permitted to an-
nounce discoveries which may make a nation happier, to predict the pas-
sage of new laws, told in a solemn address by a young and eloquent magis-
trate.'*

384

-^ ->

Title II, Ch. II] PUBLIC OPINION IN THE 1600 S AND 1700 s [§ 6

for the prize for justice and humanity. One was Brissot, the publicist
of the Girondists, and the other a person less noted for his hu-
manity, ]Marat. The latter had his work printed in 1781 and
published at Paris in 1790. . . . That work is one of extraor-
dinary mediocrity. . . . Not so with another work, written by
Brissot, which was more successful. It is entitled " Tfaforie des
lois criminelles,' a work which the Society of Berne did not allow
to compete, because it had been published." ^

In 1780, a French society, the Academy of Ch&lons-sur-Mame, j
decided a competition which it had set upon the following
subject : " On the means of softening the rigor of the French crimi-
nal laws, without detriment to the public safety." * The Society,
in publishing the addresses, declares that " it does not intend to
ratify the views of the authors, but has given its approbation to
their talents, their humanity and the useful ideas which it has
thought to have discovered in their works. The very nature of
the subjects suggested shows its desire to spread new lights upon
philosophy and political economy. But at a time when zeal
against the old prejudices too often degenerates into innovations
still more dangerous, it thinks it proper to announce that it has
made a rule to exclude from the competition any memorial not
written with all due respect to ReUgion and Grovernment."

At least twenty memorials were sent to the Academy. Two
of these were awarded prizes, that of Brissot de Warville, and that
of Bemardi, an advocate in the Parlement of Aix. They all put
forward claims, tending more and more to constitute a common ,
progranoone and which were to be registered in the Cahiers of 1789. ,
They demand publicity of the proceedings,' the suppression of the
oath by the accused,^ and of torture,^ complete liberty of defense,*
and the system of moral proofs.^ They, finally, demand the jury,
as the restoration of an ancient national institution.® They call

' M. Labovlaye, Revue des Cours litt^raires, vol. II, 1864-1865, pp.
782. 783.

' "XHiicm»8 couronn^ par rAoad^mie de Chdlons-sur-Mame en 1780,''
followed by the second best, and by extracts from several other memorials
presented to the Academy. Ch&Ions-sur-Marne 1780.

» Brissot, p. 94 ; Bernardi, pp. 176, 177.

• Brissot, p. 95 ; Bernardi, p. 162.

» Brissot, p. 103 ; Bernardi, pp. 164-166.

• Brissot, pp. 96-98 ; Bernardi, pp. 178-182.

' Brissot, p. 101 et sea. ; Bernardi, p. 145 et seq.

• Bernardi, p. 202. * Let us remark that this usage that every man be
judged by his peers was formerly followed in France ; that it was the intro-
duction of jurist judges and of the Roman law that led to its abolition ;
and that the reason for its existence still in England and some of the dis-
tricts of the North is that they have known better than we how to preserve
the wise and equitable principles of their ancestors."

385

§ 6] PROCEDURE IN THE 1600 S AND 1700 S [Part II

for early reforms, in that bombastic and inflated diction charac-
teristic of the 1700 s : " People I Oh, ye who have so long groaned
under the weight of your chains, — at last you begin to breathe ;
raise a serene brow ; the age of tears is past ; your misfortunes
approach an end. ... let the torch of reason burn a little longer
and the universe will know no more gloom." ^ — " Happier reigns
are da^oiing over Europe. Oh ! friends and brothers, let this
work prove to you my desire for the alleviation of your suffer-
ings ! " 2

These demands, prayers, and appeals at last come to be addressed
to the judges themselves. They do not make themselves heard
in legal pleadings, for pleading there is none in criminal cases.
But what cannot be said may be printed, and the " MSmoires
justificatifs " for innocent people unjustly condemned continue to
multiply in the years immediately preceding the Revolution.
That method of appeal in the last resort, the import of which we
have explained, is used. Royal orders are obtained allow-
ing the stay of executions and the review of actions. The authors
of these memorials, eagerly read by the public, are advocates,
sometimes magistrates, who become the heroes of the hour.'
Each of these pleadings, speaking for a people rather than for an
accused, contains an appeal for necessary reforms. Let us briefly
refer to some of these cases.

In 1785, there is the case of an unfortunate girl, Catherine
Estinte, sentenced by the bench of Rivifere to be burned alive
for parricide. It is discovered, ere long, by the Parlement of
Toulouse, that the process has been falsified. A complaint for
forgery is lodged against the oflScers of RiviSre and a justificative
memorial for the accused is presented by M. Lacroix, advocate.*
The author, in concluding, makes his client say: "Who
knows whether, the report of my misfortunes reaching the throne,
this example, added to so many others, may not hasten the re-
form of our criminal laws, so earnestly desired by all honest
people ! Oh ! how I should then bless my past torments and my

* BrissoU p. 111. ' Bemardi, p. 218.

* The charges are freely communicated. It is often *' tender-hearted"
jailers who take to heart the facilitation of the defense. **They brought
me the promised information," says M. Lecauchois, in his memorial for
the girl Salmon ; "a little over two hundred and fifty pages small-haad
folio." — Lecard6, clerk of court, keeper of the prisons of Rouen, bears
witness to the influence he exercised on the salvation of the girl Salmon :
"The public will learn that the keeping of prisons is not incompatible with
kindness and humanity. ... I have collected a mass of inportant in-
formation for the clearing up of the action."

* "M^moire pour Catherine Estinds," Toulouse, 1786.

386

Title II, Ch. II] PUBLIC OPINION IN THE 1600 S AND 1700 S [§ 6

present sufferings! A proper system of criminal laws is the
best gift a sovereign could make to his people. France re-
spectfully waits such a gift, worthy of her and of her king.
. . . Our criminal Ordinance contains so many wise pro-
visions ; and it would cost so little to modify those less wise." ^

In 1780, five individuals were sentenced by the Parlement of
Dijon, for nocturnal burglary accompanied by threats, to various
punishments: one was hanged, another died at the galleys;
one of them had been subjected to the preliminary torture. They
were innocent; the real culprits were subsequently discovered
and condemned. Letters of review were then obtained and a
justificative memorial drawn up by M. Godard, advocate at the
Paris bar.^ An opinion is annexed to the memorial, signed by
MM. Target, Th^tion, Sanson, Martineau, de La Croix, Blonde,
Hardoin de la Reynerie, Foumel, Bonhome de Comeyras, Henry,
Lacretelle, de Sfee, and Bonnet. "This great error," says the
author of the memorial, " will make the cause of five unfortunate
men a national cause, in which people of all classes will take part,
since it will force them to turn their attention to their own case ;
and it will finally no doubt bring to a head that long looked for
reform in our criminal laws. ... He will be the descendant of
Lamoignon. ... He will inherit his virtues and his insight, as
weU as his fame, who, taking up after more than a hundred years
the immortal thoughts of his predecessor, will cause the sovereign
to give them the sanction due to them, and will obtain from the
beneficent justice of the monarch a new code, the first object of
which will be the happiness of this empire, and which will after-
wards enlighten foreign nations, as the recent codes of two great
European princes now enlighten ours." '

In 1786 there is another cause, that of a poor servant girl, Marie-
Pran^oise-Victoire Salmon.* Condemned to be burned as a poi-
soner by the Parlement of Rouen, on 17th May, 1772, the keeper of
the prison and certain clergymen interested themselves in her case ;
a reprieve was obtained, and the action was reviewed. This time
she was condemned to an indefinite further inquiry and de-
tention in prison ; finally the validity of this new sentence was
itself contested before the King's Council. M. Lecauchois, an ad-

* ''M^moire pour Catherine Estin^,'* p. 54.

'!' Rehabilitation de la m^moire de aeux accuses et justification de
trois autres," Paris, 1787.

•pp. 112, 113.

*8ee "Mfimoire justifioatif/' by M. Lecauchois (Paris, printed by
CaiUeaux, 1786).

387

§ 6] PROCEDURE IN THE 1600 S AND 1700 8 [Part II

vocate of Rouen, drew up two memorials for the girl Salmon and
to. the second is annexed an opinion by Foumel, an eminent Paris
advocate.^ This action stirred public opinion to a great degree.
" Her protectors having aroused public sympathy, charitable con-
tributions to a large extent found their way to the girl Salmon in
her prison." ^ The memorial had an extensive sale. Finally,
a decree of the Parlement of Paris, deciding her appeal, was
issued on 23d May, 1786, discharging the accused from all the
accusations and complaints brought against her; and all Paris
joined in an ovation to the unfortunate woman and her defender.*
But the most celebrated cause was that which soon bore the
name of the " Trois Rou6s." For nocturnal robbery, three unfor-
tunate men, Bradier, Lardoise, and Simare, are, in 1785, condemned
to the galleys for life by the bailiwick of Chaumont. The Parle-
ment of Paris increases the punishment to that of the wheel.
A reprieve is obtained, an appeal to quash lodged, and very soon
a justificative memorial appears, followed by a short opinion.*
The opinion was signed by Legrand de Laleu. The memorial
was anonymous, but everybody knew the author to be Dupaty,
magistrate, philosopher, and literary man, and president of the
Parlement of Bordeaux. The memorial was immediately fol-
lowed by another document entitled : " Pleas in law for Bradier,
Simare, and Lardoise, condemned to the wheel." * These were
notable and impassioned works, which went far beyond the
material interests involved in the cause. The memorial in par-
ticular is an excellent piece of pleading, forcible and glowing, ex-
pressing in an ardent style the claims which erelong will prompt
the law. Importunate and fiery appeals to royal justice and clem-
ency succeed each other : " No, I will not be silent as to the de-
fects and severities of our criminal Ordinance, now that France
and humanity have Louis XVI to appeal to. ... * Magistrates,

^ " ConsiiltatioD pour une jeune fille condamn^ h, dtre brdll^ vive/'
Paris, 1786.

* **M6moire pour le sieur Lecard^/' keeper of the prisons of Rouen,
p. 28.

' Witness the recriminations of M. Lecard^, who desired his share
in the glory : **From that day he (M. Lecauchois) has continually dragged

swaggering
(p. 25).

* " Three Men broken on the Wheel." "M^moire justificatif pour trois
hommes condamn^s h la roue," 1786, Paris.

* Printed at Paris by PhUippe-Denys Pierre, 1786.

•"Mtooire,"p. 233.

388

Title II, Ch. II] PUBLIC OPINION IN THE 1600 S AND 1700 8 [§ 6

there exists in your Ordinance a law, which grants, — I should
rather say, which orders that every deaf and dumb accused shall
have a counsel. . . . Extend, extend that humane law to the poor
and indigent. It certainly concerns them. . . . the disability
of misery is at least as deserving as natural disability. Nay,
more so. The poor and indigent are themselves deaf and dumb,
not merely by the irreparable loss of the organs of speech and hear-
ing, but by the resourceless deprivation of the intellect which com-
prehends, and the reason which elucidates." ^

" Ah I Sire, from the height of your throne, in the midst of that
resoimding chorus of Fame which spreads your wisdom and glory
throughout the universe, deign for a moment to lend an ear to
the blood of Calas, Montbailly, Langlade, Cahusac, Barreau,
and their fellows, and the innocent blood of the three unfortunate
men about to flow. All that innocent blood, in the midst of gal-
lows and wheels, continues to cry out to you in piteous tones:
Oh, prince, friend of mankind, do not leave your throne with-
out deigning to listen to us ! . . . Deign, deign from the height of
your throne to cast a single glance upon all the bloody reefs of our
criminal laws whereon we perished, whereon innocent people
perish every day. . . . ^ Sire, do not believe those who may tell
you that it is essential to maintain laws, rigorous, no doubt, but
so old, — centuries old. Sire, reason and humanity are eternal ; —
do not believe those who tiell you that systems of laws ought to be
stable in empires, so that the empires themselves may retain
their stability, as if the laws, designed to follow individuals, com-
munities, and mankind in the circle within which they revolve,
ought not to have their share in such revolutions and run a course,
like mortal things ; — do not believe those who tell you that it is
dangerous to diminish the respect due to the laws by too open
criticism, as if anything could dishonor them more than the mil-
dew of barbarism which covers them, or the innocent blood with
which they drip, — who, finally, tell you that the making of a
new criminal code is a difficult work, which requires time and
meditation to ripen, as if that were not an additional reason to go
about the task without delay 1 " * . . . " Sire, the Code we crave
from you has not still to be made. It is made, written, and en-
graved. Grod himself has engraved it in your heart, and nothing
remains for you to do but to have it interpreted immediately by
the chief of your magistracy, who ought not to find it difficult to

»"M6moire,"pp.237,238; c/.p.57; c/. "Moyensdedroit,"pp.43,44.
* !*M6moire," p. 240. > Ibid., I, pp. 243-245.

389

§ 6] PROCEDURE IN THE 1600 S AND 1700 S [Pakt II

understand and to give an example of it to your Empire, to the
whole world 1 " ^ — " Hasten, oh, prince, friend of justice, truth,
and humanity ... for perhaps in some remote province of your
Empire, your criminal laws, and especially the laws of your crimi-
nalists, are, even at this moment, sending to the scaffold men
who, like Bradier, Lardoise, and Simare, are deprived of all coun-
sel, who languish in prison like them, have for years been, like
them, the sport of the injustice and the ignorance of the lower
judges, and, like them, are innocent. You are the king. . . . " -

Dupaty's memorial had a prodigious effect. It was extensively
sold, with the author's portrait and that of Legrand de Laleu.
Louis Siguier himself bears witness to the great emotion it caused
in the motions which he lodged for the suppression of this docu-
ment, and which we have already analyzed. " This memorial,
claimed to be justificative, has permeated the capital, all France,
the whole of Europe. It was ostensibly written to sell for the
benefit of the three condemned men, in order the further to engage
public sympathy. . . . This venal distribution, hitherto unac-
customed, has produced the keenest ferment; the cause of the
three criminals has become that of nearly every citizen. ... At
this time of ferment a general clamor is raised against the criminal
Ordinance." ^ The attorney-general considers all this as a passing
excitement. " It is reserved for our administration to vindicate
a public accuser, to reassure minds prone to be led astray, to lay
down the true principles, unknown to the majority of citizens of
all ranks and stations, to justify the laws and to settle their true
meaning, to reestablish the authority of jurisprudence, by oppos-
ing the calmness of reflection to the transports of the imagination,
the general welfare to the empty desire for notoriety, to enable this
and every nation to realize that it is merely a mania for reform
which guides the pen of this writer." *

What Siguier took for a passing storm was the all-powerful
breath of the French Revolution.

1 "M^moire," I, p. 248. « Ibid., I, p. 249.

» Ibid., I, pp. 3-5. * Ibid.,'' I, p. 5.

390

Part III

HISTORY OF CRIMINAL PROCEDURE SINCE THE

FRENCH REVOLUTION

391

Title I, Ch. I] AMENDMENTS TO THE ORDINANCE OF 1670 [§ 1

Title I
THE LAWS OF THE FRENCH REVOLUTION

Chapter I
THE AMENDMENTS TO THE ORDINANCE OF 1670

§1. The Edict of 1788.
S 2. The Cahiera of 1789.

§ 3. First Reforms effected by the
Coostituent Assembly ; the
Decree of 8-^ October. 1789.

§ 1. The Edict of 1788. — The growing pressure of public opinion
was bound to lead to reforms in Louis XVI's reign, even before
the convocation of the States-Greneral. In this respect, however,
as in other matters, the amendments made at that period were
partial and wavering. They precede by very little the convoca-
tion of the States-General, and will disappear in the great renova-
tion following 1789. In 1788 a step forward was made.

An edict was introduced in the famous Bed of Justice of 8th May,
one of the last throes of the old monarchy. The necessity for a
wholesale reform of the criminal procedure was recognized by the
government. Homage was paid to the great Ordinance of 1670
in the preamble of the Edict, but the necessity of a revision was
at the same time announced. " We shall not conceal that while
retaining the greatest number of its provisions, we could advan-
tageously 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 Com-
missaries 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
advance of knowledge alone since the drawing up of that Ordi-
nance should be sufficient to induce us to revise its provisions care-
fully, 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

393

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

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." ^ The keeper of the seals, in his speech
at the bed of justice, was still more precise. " The necessity
of a reform of the criminal Ordinance and of the criminal code b
universally recognized. 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." * But it
was desired that this general reform should be the fruit of long
planning. The method of inquiry proposed was notable. "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." *

Pending this general reform, the Edict abrogated "several
abuses which this appeared a moment to remedy."

1st, The use of the prisoner's seat was abolished. " We ordain
that there shall be placed, in our courts and jurisdictions, behind
the bar, a wooden seat or bench, suflSciently raised that the ac-
cused can be seen by all their judges ; we leave it to the choice of
the siaid accused whether to sit or remain standing ; the presi-
dents of our courts and the judges who preside at the trials in the
jurisdictions shall warn them of their rights" (Art. 1).

2d, The rendering of judgments not evidentially based was for-
bidden. " Neither our judges nor our courts shall be entitled to
pronounce sentence, for the crimes rentlting from the action; it is our
will that every decree or judgment shall set out and expressly name
the crimes and offenses of which the accused shall have been convicted
... we except decrees merely affirmative of the sentences of the
judges in the first instance, in which the said crimes and offenses
are expressly set out; provided that the courts shall cause to be
transcribed in the introductory part of their decrees the said judg-
ments of the judges of the first instance, all on pain of nullity "

1 IsamherU " Anc. lois/* t. XXVIII, p. 727.

* Buchez and Roux, **Histoire parlementaire," vol. I, p. 239.

» Preamble of the Edict. Isambert, t. XXVIII, p. 527.

. 394

Title I, Ch. I] AMENDMENTS TO THE ORDINANCE OF 1670 [§ 1

(Art. 3). This was a very wise reform, and one long needed.
" The very dignity of our judgment demands the express statement
of the offenses/' said the keeper of the seals. " What tribunal
could be anxious for the prerogative of inflicting capital punish-
ment without giving a reason for its decrees ? — The king there-
fore thinks, gentlemen, that every solemn condemnation, which
makes punishment follow the offense, should show the offense as
well as the punishment." ^

3d, The abolition of the preparatory torture was confirmed,
and preliminary torture was abolished (Art. 8). " New reflec-
tions have convinced us of the deceptiveness and the incon-
veniences of this kind of proof, which never leads to the discovery
of the truth with certainty, usually fruitlessly prolongs the punish-
ment of the condemned, and may more frequently mislead our
judges than enlighten them." A final interrogation by the
judge commissioner was substituted for it. This was made
on the very day of the execution, with confirmation and con-
frontation, if need be (Arts. 9-12). This was substituting
a moral constraint for physical torture, the condemned person
being obliged to take oath in this interrogation as in the others,
according to the general rule, which was retained. It was " a
milder, but no less effective, method to compel evil-doers to name
their accomplices. We have thought that, the law having intrusted
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 pro-
visionally at least, reserving the right, although with regret, to
reestablish the preliminary torture if, after some years' experi-
ence, it is shown by the reports of our judges to be absolutely
necessary." ^

4th, A majority of two votes was no longer enough to sustain a
capital punishment; three were necessary (Art. 4). Finally
came two provisions, which appeared to the legislature to be the
most important of all it decreed, and which are, in reality, very
important.

5th, It was said : " No sentence involving natural death
shall be executed until one month after being passed . . .
except judgments rendered for the crimes of sedition and riot, in
which the said judgments shall be executed on the day they are

* Buchez and Roux, ''Histoire parlementaire," vol. I, p. 241.

* Isambert, t. XXVIII, p. 528.

395

§ 1] PROCEDUBE SINCE THE FRENCH REVOLUTION [Part III

pronounced/* Why this delay, not allowed by the Ordinance?
Was it to inflict upon the condemned the agonies of a horrible
suspense? No. In spite of that disadvantage, which seems to
have been taken into consideration, the intention was a noble
one.^ "The king wishes to insure to all condemned per-
sons the time necessary to beg for his mercy and to make
sure of his justice." It was a very humane measure, loudly
demanded by Voltaire. "It is well known," said the keeper
of the seals, "that in the most enlightened countries of
Europe all capital sentences are subject to the approval of
the sovereign." The better to insure this safeguard, the edict
provided that the attorneys-general should transmit capital sen-
tences to the keeper of the seals with the necessary information
(Art. 5). These provisions, which were bound to be " equally
valuable for preservation after the reform of the criminal laws,"
are not found in the laws of the intermediary period. That is
comprehensible ; the right of pardon then no longer existed, and
the appeal to quash had henceforth a suspensive effect in criminal
matters. Subsequently, although the right of pardon was rees-
tablished, the Code of Criminal Examination, copying the Code
of Brumaire, year IV, ordained, in Article 375, the execution of
capital sentences immediately they became final. The Ordinance
of 1670 was to the same effect.^ But that authority was not ap-
plied, and a circular of the keeper of the seals, of 27th September,
1830, even orders attorneys-general to lodge a memorial upon every
capital condemnation. The keeper of the seals himself, after
the matter has been considered by the directorship of pardons, ad-
dresses a report to the head of the State. " Pardon may be granted
in the interests of justice and humanity." It is evident that it
is really the provision of the Edict of 1688 which has been revived
in our own times.

6th, Finally, it is notable that accused persons who were
acquitted were awarded an honorable reparation. " I am
able to state," says the keeper of the seals, " that His Majesty
has been very much surprised to see that the laws of his kingdom
have not yet made any provision in their favor, and that if there
was no private prosecutor to the action who could be condemned
in the costs of the printing and publishing of the judgments of
acquittal, even that small indemnity was not granted to inno-

* Speech of the keeper of the seals. Bucket and Roux, "Histoire par-
lementaire/' vol. I, p. 240.
« Title XXV, Art. 21.

396

Title I, Ch. I] AMENDMENTS TO THE ORDINANCE OF 1670 [§ 2

cence." ^ Article 7 therefore provided as follows : " Our courts
and judges shall order that every decree or judgment of acquittal
rendered in the last resort, or which is not appealed, shall be printed
and published at the expense of the private prosecutor, if there is
one, and if not at the expense of our exchequer." *

Such was the Edict, which left the system of the Ordinance in-
tact, but which was more liberal upon certain points than the
subsequent laws proved to be. We know what opposition it
raised in the Parlements. It is an interesting historic document ;
but it was not, in reality, a law which was ever applied. This was
the last time royalty exercised, in criminal matters, the absolute
and independent legislative power recognized in it by ancient
France. On 5th July, 1788, the decree of the Council in regard
to the convocation of the States-General was issued.* After that
date it is the nation that speaks. Before observing how its repre-
sentatives are going to interpret its wishes, it is expedient to find
out how it expresses these in certain famous " Cahiers " * which
the constituents then delivered to their representatives.^

§ 2. The Cahiers of 1789. — In regard to criminal legislation
the Cahiers are a faithful mirror of the public mind. We shall
once more here meet with the majority of the demands already
voiced by the publicists, and again the path traced out by some
of them will be faithfully followed by the Constituent Assembly.
On important points the three Orders are almost always unani-
mous.

The publicity of the proceedings is the first thing demanded.
" The publicity of the proceedings, formerly established in France,
and in practice in all ages with nearly all enlightened nations,
should be reestablished, and henceforth the examination should
take place with open doors and in full audience." • — "Above
all, let the publicity of the procedure be reestablished." ^ — "As
to the reform of the Criminal Code, the Clergy's desire would be

^ Buchez and RouXy **Histoire parlementaire," vol. I, p. 242.

* The number of copies allowed by the State varied from one hundred
to two hundred, according to the importance of the jurisdictions.

» IsamberU t. XXVIII, p. 601.

* [The " Cahiers," or "Portfolios," were the written instructions given
by the respective constituencies to their delegates or representatives
elected for the assembly of the States-Qeneral. They contamed a reporf
of the united views and wishes of the constituencies as to matters likely
to come up for legislative reform. — Trans.]

* We follow the "R^sum6 des Cahiers," by Prudhofnme; 3 vols., 1789.

* "Cahier du Tiers," City of Paris, Prudhomme, III, p. 159. For the
unanimity of the Cahiers of the Third Estate and of the Nobility in this
direction, see Prvdhomme, III, p. 588 ; II, p. 387.

^ "Noblesse," City of Paris, 11, p. 145.

397

■V

■ t

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

. . . that the examination of criminal proceedings take place
publicly, — the interrogation, deposition of witnesses, confirma^
tion, and confrontation." ^

The accused should be allowed the aid of counsel. On that
point the Cahiers of the three orders are unanimous.* Cer-
tain of the Cahiers demand that the defending counsel be appointed
gratuitously ; this is the official advocate of the future.' Some-
times it is desired that the accused have the aid of counsel from
the beginning of the proceedings. " Let counsel be assigned to
the accused in all cases and from the beginning of the examination,
and let him be authorized to have communication of the process
whenever he shall find it necessary." * — "A judicial defender
should be assigned to him from the beginning of the criminal ac-
tion." ^ Others wish that the defending counsel intervene only
after the interrogation of the accused. " Let a counsel be as-
signed to the accused after the first interrogation." ® — " Let the
accused have counsel for the confrontation and the subsequent
proceedings." ^

The oath imposed upon the accused ought to be abolished.®
*' Let the oaths or rather the perjuries required from the accused
be suppressed." • — ** The oath exacted from the accused being
clearly contrary to the natural sentiment of self-preservation com-
mon to all, is but a violence done to human nature, unavailing
for the discovery of the truth, and only qualified to impair the
horror of perjury." ^® The Clergy are no less urgent than the
Third Estate. '* The suppression of the oath required of the
accused should be demanded ; it compels him to perjure himself." "
— " Let the reform of the criminal code also be taken up, the means
of defense assured to the accused, and the use of the oath, which
nearly always makes the accused perjurers, be abolished." ^*

The defense should be put upon an equal footing with the prose-

1 "Clerj^," Mantes and Meulan.

"Unanimity of the Cahiers of all the bailiwicks: "Clergfi," Prud-
komme, I, p. 335 ; "Noblesse," II, 377 ; "Tiers," III, p. 548.
» Vannes, "Cahier du Tiers," III, 161.

* La Rochelle, "Cahier du Tiers," III, 161.
» City of Paris, !*Cahier du Clerg6," I, 159.

• Lyons. "Cahier du Tiers," III, 163.

. » IMd., "Cahier de la Noblesse," II, 146.

' Pnidiiomme points out the unanimity in this direction of the Cahiers
of the Third (III, 348), and the Cahiers of the Clergy of ninety-one baili-
wicks (I, 335).

•Vannes. ''Cahier du Tiers," III, 161.

10 City of Paris, "Cahier du Tiers," III, 162.

" Douay, "Cahier du Clerg6," I, 162.

^2 Auxerre, "Cahier du Clerg6," I, 162.

398

Title I, Ch. I] AMENDMENTS TO THE ORDINANCE OP 1670 [§ 2

cution in the sense that the accused could, from the start, allege
and prove facts in support of his acquittal ; and the justificative
facts be no longer driven into the most remote comer of the proceed-
ings. This was expressly stated in numerous Cahiers. " We
would ask for the accused the power of alleging and establishing
their justification by right, or by inquests immediately after their
first interrogation." ^ — " Let a counsel be appointed for the
accused, free, after the first interrogation, and every document
of the proceedings be communicated to such counsel, who shall
have free communication with the accused persons at all times,
and shall plead in their favor and upon free paper their justifica-
tive pleas at every stage of the case." ^ — " Let the accused be
entitled, with the constant aid of his counsel, to bring all justifica-
tive proofs from the beginning to the end of the procedure, and all
judges be forbidden to refuse to allow them aid to do justice." *

It was necessary to restrict the great powers of the examining
judge, who, alone, as we know, pronounced the ruling to the " ex-
traordinary " action and issued the decrees, who confronted and
confirmed -alone, thus bringing together the written dociunents on
which the action was decided. " A judge who hears the witnesses
in the first instance, and takes their depositions, is often a judge
of little education and sometimes prejudiced. The accused is
already practically condemned to death, without any hope of
escape, since the appellate court judges only upon the procedure,
and upon the depositions taken by the trial judge." * We thus
find many Cahiers demanding the presence of two or three
judges, or even the intervention of the whole bench before proceed-
ing with the informations and interrogations or issuing decrees.^
" Let it be no longer permissible for the judge to proceed with
the interrogations and other steps of the examination except with
the assistance of two other judges; let it be forbidden to issue
warrants of arrest or personal citation except with the advice of
two judges." * — " Let the informations take place, not before a
single judge, but before two judges, and the interrogations before
the entire body whose duty it is to judge." ^ — " Let the informa-

» Saintes, "Cahier du Tiers," III, p. 159.
» Valines, •*Cahier du Tiers," III, p. 162.
» Dourdan, *'Cahier de la Noblesse," II, p. 146.

* Blois, " Cahier de la Noblesse."

* According to Prudhomme (II, 399), the Cahiers of the Nobility ore
unanimous in demanding that a judge should never be entitled by himself
to issae a warrant of arrest.

* La RocheUe, "Cahier du Tiers," III, p. 160.
'Toul, "Cahier du Tiers," III, p. 160.

399

§ 2] PBOCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

tion and the first interrogation take place in the presence of three
judges." ^ — " Let no decree be issued in criminal matters except
by all the assembled judges of the jurisdiction." * /

Other reforms are demanded which had already been effected
by the ephemeral Edict of 1788. The decrees, including even those
of the supreme courts, ought to be evidentially based in a precise
fashion.^ Torture was to be abolished forever, and the use of the
prisoner's seat suppressed.* The abolition of exceptional courts
was desired. " Let the jurisdiction of the provosts be abolished,
so that every person accused may have the benefit of two steps of
jurisdiction." * The extraordinary commissions in criminal mat-
ters are doomed.

Individual liberty was to be effectively protected. The inter-
rogation of the captive ought to take place within twenty-four
hours.® Liberation on bail should be granted whenever serious
crime is not involved. " Let provisional release on bail always
be granted after the first interrogation, except in those cases where
the prisoner is held for an offense involving corporal punishment." ^

TTie practitioners (who often drew up the Cahiers of the
Third Estate) did not forget the provision of the Ordinance which
punished as a false witness the witness who retracted at the con-
frontation. " Freedom is also asked for the witnesses to retract
at the confrontation without the risk of incurring the punishment
for forgery so long, at least, as the retraction is not fraudulent." *

The Clergy alone, strange to say, demand the suppression of the
monitories, " except in the more serious cases." • But again, the
Third Estate demands that the ecclesiastical courts have no longer
a place in criminal procedure. " We would ask for the abolition
of the joint examination by officials and criminal lieutenants, as
a dangerous custom, calculated to double the costs, and increase
the opportunities for quashing. The conferring on the ordinary

1 Lyons, "Cahier du Tiers," III, p. 162.
•ISfivemois, **Cahier du Tiers." Ill, p. 163.

* Unanimity in this direction in the Cahiers of the three orders : Clergy,
I. 351 ; c/. p. 153 ; NobiUty, II, p. 399 ; c/. p. 147 ; Third Estate, III,
p. 573; c/. p. 172.

* Unanimity of the Cahiers : Clergy, I, 161 ; Nobility, II, 149 ; Third
Estate, III, 165.

* Alen^n, "Cahier de la Noblesse," II, p. 154; in this direction, the
Nobility of forty-three bailiwicks, II, p. 400.

* I, 122 ; 352.

^ Alen^on, Labour ; "Cahiers de la Noblesse," II, p. 145 ; in this direc-
tion, the Nobility of fifty-nine bailiwicks, II, 391.

* III, 159, and in this direction, the Third in thirty-two baHiwioks, III,
p. 594.

•I, pp. 154 and 168.

400

Title I, Ch. I] AMENDMENTS TO THE OKDINANCE OP 1670 [§ 2

royal judges of the cognizance of these privileged cases of which
the clergy could be accused would follow, without prejudice to
separate prosecutions which the promoters could bring for the
maintenance of ecclesiastical discipline." ^ The citizens of 1789
were here claiming exactly the same measure as Louis XIV's
commissioners had proposed in 1670. The publicists had been
preaching all these reforms for fifty years. The desire was now
to put them into effect without delay. But the Cahiers show that
the public temper had gone beyond them. It was to England
that they went for models for the organization of criminal justice,
as they did for the foundation of political Uberty.^ It was, first
of all, necessary to suppress the crying abuses of the old system,
and then to introduce with us the oral procedure, by juries.

The Third Estate of fifty-eight bailiwicks demanded the dis-
crimination of judges of the fact from judges of the law.' " In-
criminal matters the determination of the fact should always
be kept separate from the judgment of the law. The institution of
jurors for the determination of the fact appearing more favorable
to personal safety and public liberty, the States-General should
find out by what means this institution could be adapted to our
jurisprudence." * Others we find pointing to the " twelve sworn
peers pronouncing solely and exclusively upon the facts, and whose
unanimity is essential to entail condemnation." * These are the
characteristic features of the English jury.* Other Cahiers, it
is true, refer to old French customary laws erroneously construed.
" Let no criminal action be examined against any citizen unless
the judge be assisted in every step of the proceeding by one or more
citizens of the same rank as the accused, and let all citizens enjoy
the same rights and privileges as the clergy, conformably to the
old French usage." ^

Lastly, the Cahiers demand the suppression of that reserved

^ III, p. 122, in this direction, the unanimity of the Cahiers of the
Third, III, p. 560.

' '* Let there be formed at the beginning of the next session of the States-
General a council composed of the most enlightened^ persons to deal with

ibjc

such an important subject as the reform of the Criminal Code. This
council ought not to consist of magistrates and jurisconsults alone. The
most enlightened virtue is not altogether proof against the wiles of preju-

council ought not to consist of magistrates and jurisconsults alone. The

jhtened virtue is not altoget "
dice. Citizens of all the estates, or all the orders, and especially those who

have had the o'pportuniiy to study the criminal iurisprvdence of England must
be admitted mto it." — Blois, "Cahier de la Noblesse," II, 142.

• III 574

* aty of Paris, "Cahier du Tiers," III, 163. » II, 144.
•Ninety-one Cahiers of the Nobility demand that *' the unanimity of

the sworn peers should be necessary to bring about a conviction subjecting
an accused to capital punishment. ' II, 387.
' Vermandois, "Cahier de la Noblesse," II, 144.

401

§ 3] PBOCEDUEE SINCE THE FRENCH REVOLUTION [Paet III

justice, and that exercise of absolute power, which had been caus-
ing so much trouble in the administration of justice. The " lel-
tres de cachet " are to be abolished.^ They have been stigma-
tized by the man who is to be the first great mouthpiece of the
Revolution. As for the letters of pardon, they can no longer in-
tervene until after the judgment. *' He should not be entitled
to a grant of letters of pardon except after the final judgment and
in the last resort." ^ — "It should be in the king's power to com-
mute all punishments pronounced to a less severe punishment,
and to pardon at his pleasure by letters emanating from His
Majesty in due form, except in the case of the crimes of treason,
peculation, and extortion ; but in no case should he be entitled
to prevent the pronouncing of the judgments." * The above, in
their broad outlines, are the reforms that the Constituent Assembly
■is about to put into operation.

^.3r First Befomui effected by the CoiiBtituent Assembly;
the Decree of 8-9 October, 1789. — The Constituent Assembly
passed two Laws on the subject of criminal procedure, both of the
greatest importance ; that of 8-9 October, 1789, and that of 16-
29 September, 1791. It may appear strange, at first sight, that
these Laws should have been passed in such rapid succession, and
that the Assembly should so soon have thought it necessary to
retouch its work. But the explanation is simple. The first of
these two Laws carries out the reform of the graver abuses which
would not wait ; but as its preamble shows, it merely establish-'s
a provisional state of things.* The second effects that adaptation
of the procedure by jurors, and, in a more general way, of the
English procedure, which has been ranked among the definitive
institutions of France.

The Decree of 1789 by no means destroys the order of procedure
in use down to that date. The Ordinance of 1670 still remains
in full force. " The Ordinance of 1670 and the edicts and rulings
concerning criminal matters shall continue to be observed so far
as consistent with the present Decree, and except as otherwise
formally ordained" (Art. 28). We still find the same written

1 Unanimity in the Cahiers : Clergy, I, 352 ; Third, III, 576 and 58 ;
for the Nobility, II, 56 et seq.

>Meaux, **Cahier du Tiers," III, 174; in this direction the Third of
eifi:hty-eight bailiwicks. III, 570.

» Tourraine, "Cahier de la Noblesse," II, 152.

* "Although the execution of the whole of this reform requires leisure-
liness and the maturity of the deepest reflection, it is, nevertheless, pos-
sible to enable the nation to enjoy the benefit of various provisions, which,
without subverting the order of procedure at present followed, would re-
assure the innocent and facilitate the vindication of those accused."

402

Title I, Ch. I] AMENDMENTS TO THE ORDINANCE OF 1670 [§ 3

and complex procedure. The information, the decrees, the in-
terrogation, the ruling to the "extraordinary'' action, the confirma-
tion and the confrontation, the report of the action, the final in-
terrogation, — all these find their places in the new text (and, at
the same time, there are no jurisdictional changes). But certain
novel elements are added to the old work. These consist of de-
fense allowed and assured, and a wide publicity. In these re-
spects the act grants safeguards which will subsequently disap-
pear. The knowledge of this enables us better to understand how,
at the time of the drawing up of the Code of Criminal Examina-
tion, certain minds wished to return purely and simply to this,
the first reform effected by the Revolution.

The safeguards assured to the accused by the Decree of 1789
consist principally of the publicity of the procedure and the aid
of coimsel. It was not, however, the intention of the legisla-
ture to let in the full Ught of day from the first steps of the arrest
and the examination. So long as proofs were still being sought
for, which it might be easy to conceal, it would be highly inexpedi-
ent to put all the interested parties upon the alert. The complaint
and the denunciation are made secretly : " the information pre-
ceding the decree will continue to take place secretly" (Art. 6).
But another safeguard is originated, to form a substitute for the
publicity which would be dangerous at that early moment. The
judge is given colleagues, " adjoints," citizens appointed by the
municipalities or communities of resid.ents. Their presence takes
the place, as far as possible, of the control by public opinion;
and, at the same time, all danger is avoided, for " they take oath
to the commune (administered by the municipal ofiicers or the
syndics) . . . faithfully to discharge their duties, and above
all to maintain inviolable secrecy regarding the contents of the
complaint and other documents of the procedure " (Art. 2).^ In
being present they, in a measure, personify the public, and they
also take the place of counsel. That this is their r61e is well shown
by the fact that, when publicity is established and counsel ad-
mitted, they retire and disappear. When the accused appears,

^ These notables should be twenty-five years old at least, and chosen
"from among the citizens of good principles and acknowledged probity."
In the cases of ui^ency and capture in the act, they might be replaced by
•*two of the principal residents who are not to be heard as witnesses in the
case, and wno will immediately take oath before the examining judge"
(Art. 8). Under another hypothesis (necessity for traveling to points too far
from the chief place of the jurisdiction) they mi^ht be replaced by ** mem-
i>er8 of the municipality of the place, chosen by the examining judge '!
(Art. 5).

403

§ 3] PROCEDURE SINCE THE FRENCH REVOt.UTION [Part III

" all the steps of the examination shall take place confrontatively
with him, publicly, with the doors of the chamber of examination
open ; from that moment, the aid of the * adjoints ' shall cease '*
(Art. 11). Such is the general idea prompting the act. Let us
briefly examine it in detail.

The provisional scope of the law is shown from the ver^'^ begin-
ning of the proceedings, when the judge is made to take cognizance
by the private j>rosecutor or by the public prosecutor. If they
begin by a complaint, " it can only be presented to the judge in
the presence of two witnesses, produced by the complainant. . . .
The fact of their presence and their names will be stated in the
order which is issued upon the complaint, which they will sign,
along with the judge, on pain of nullity" (Art. 3). In the case
of an official prosecution, the '* adjoints *' are present, and the law
requires that the king's procurator shall then state if he has an
informer, and who he is, so that such informer " may be known
to the judge and the * adjoints ' at the information, before it is
begun " (Art. 4). " Two ' adjoints ' should also be present at the
drawing up of the official report (which is drawn up upon the spot)
to establish the ' corpus delicti.' " " They are entitled to make
any remarks they wish, which will be noted, and they will sign
the official report on pain of nullity" (Art. 5). Two " adjoints "
are present at the information and hear the witnesses (Art. 6).
They are " bound, on soul and conscience, to make to the judge
such observations as well for the prosecution as for the defense as
they shall find necessary for the explanation of the testimony of
the witnesses or the clearing up of the facts testified to " (Art. 7).

The information ending there, it remains to issue the writ.
On that point, the law fully satisfies the demands of public opin-
ion, recorded in the Cahiers. " Warrants of arrest cannot be issued
against residents, except in the case of a crime entailing corporal
punishment," and " warrants of personal citation or of arrest
cannot be granted except by three judges at least or by one judge
and two graduates" (Art. 9).^

If the accused obeys the warrant or is arrested, the procedure
immediately becomes public, and he will have the aid of a counsel
from the first interrogation. If he is not able to have one of his
own, the judge will appoint one for him officially, on pain of
nullity (Arts. 10 and 12). When the accused appears before the
judge, the latter begiris by " causing to be read to him the com-

* "The judges could, nevertheless, order immediate arrest in the case
of capture in the act or of resisting the law."

404

Title I, Ch. I] AMENDMENTS TO THE ORDINANCE OF 1670 [§ 3

plaint, the statement of the name of the denunciator, if there is
one, the official report and reports and the information," then " he
shall ask him if he has chosen or intends to choose a counsel, or
if he wishes one to be appointed for him officially ; in the latter
case, the judge shall api^nt the counsel and the interrogation
shaU not he commenced until the follomng day " (Art. 13). Have
we not here a law which respects the rights of the defense, even
to the point of exaggeration? The English law, which to-day
orders the justice of the peace or police magistrate to warn the
prisoner brought before him that he is not bound to reply, " that
he ought not to obey from any fear, or yield from any hope," is,
in truth, less liberal.^

It must be understood that in this interrogation, to prepare
for which the accused has almost a day and a night, no oath is
required from him. There is, however, one case in which the
prisoner must still take oath, namely, " when he wishes to object
to the competency of the witnesses." ^ But in that case it is a
kind of " juramentum calunmiee."

Immediately after the interrogation, " a copy of all the docu-
ments of the process, signed by the clerk of court, shall be de-
livered to the accused, free of charge, upon free paper, if he asks
for it." * His counsel is at all times entitled " to see the minutes "
(Art. 14). The proceedings being from that time public, the con-
tinuation of or additions to the information, if any, took place
publicly and in presence of the accused (Art. 15) who could ques-
tion the witness after his deposition ; but " the confessions, varia-
tions, or retractions of the witness at that early stage did not con-
stitute him a false witness " (Art. 16).

The information at an end, ruling to the^'* extraordinary " action
might take place, as before. But it W9^ said : " Criminal actions
cannot be ruled to the extraordinary except by three judges at
least " (Art. 17). The confirmatiofi of the witnesses and the con-
frontation immediately follow^. All this took place publicly.
The accused was present fron^^e time of the confirmation, and his
counsel was also entitled to be present, but " without being en-
titled to speak on behalf/of the accused or suggest to him what
he ought to say or reply, unless in the case of any new examina-

* Stephen, "Commentaries on the Laws of Enfi:land/' vol. IV, p. 347
(1873 edition).

* Art. 12. "The accused's oath shall not be required for this or any
other interrogation, and he shall not take it during the whole course of the
examination, unless he wishes to object to the competency of the witnesses.''

* Art. 14. This provision repeats the prior law, but in criminal cases
only, and the time for the delivery of the copy is deferred.

405

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

, tion (' visite ') or report wlm<!soever, when he could make re-
i marks, which had to be noted in the official report " (Art. 18).
\ The freedom of the defense was assured. " The objections to
the competency of the witnesses may be lodged and proved at any
stage of the action, after as well as befonAcognizance of the charges,
and the accused shall be allowed to prove them, provided they are
found by the judges to be relevant and admissible " (Art. 17).
The accused could also, as the Cahiers demanded, *' plead his de-
fenses and justificative facts or facts in extenuation, at any stage
of the case, including even the fact of insanity, although it had
not been set forth in his interrogation or other documents of the
proceedings. The witnesses the accused may wish to produce,
without being bound to name them at once, shall be heard pub-
licly, and may be heard at the same time as those of the accuser,
upon the continuations of or additions to the information *' (Art. 19).
These witnesses for the defense no longer had to be cited by the
public prosecutor. The accused had the option "either of summon-
ing them on his request, or of pointing them out to the public prose-
cutor, so that he might subpoena them." But he ought to act
" within three days from the decree allowing the proof " (Art. 20).
The procedure, besides, retained, as we have said, its characteris-
tic of being a written procedure. The various steps which we have
described were carried through before the examining judges and
were then recorded in the documents which swelled the record of the
action. So that when the time came to appear before the court
to obtain judgment, the formality of the report was still necessary.
" The report of the action shall be made by one of the judges, the
public prosecutor's motions lodged immediately thereafter, with the
reasons assigned therefor (* motivfes *), the final interrogation
made, and judgment pronounced, all in public court " (Art. 21).
Except for the introduction of publicity, it would seem that nothing
in the last act of the judicial drama was changed. Even '^ the ac-
cused shall not appear at this hearing except during his interrogation,
afterwhich,if he be a prisoAer,he shall be again removed'* (Art.21).
Another important modification had, however, been introduced.
The accused, even when absent, could be represented by his
counsel, who could speak, and lodge pleas in defense. " The
counsel shall .be entitled to be present during the w^hole sitting
and speak for the defense after the report has been concluded, the
motions lodged, and the final interrogation taken." Criminal
lawyers were once more about to make the court-rooms resound,
whose echoes they have not disturbed for a good many years.

406

Title I, Ch. I] AMENDMENTS to the ordinance of 1670 [§ 3

The judges were then required to retire to the council chamber
for deliberation; after which they immediately resumed "their
public session for the pronouncement of the judgment " (Art.
21). Reasons must be assigned for every condemnation to afflictive
or degrading punishment whether in the first instance or in the last
resort (Art. 22). No condemnation to an afflictive or degrading
punishment could be pronounced except by two-thirds of the
votes cast, and final sentences of capital punishment could be passed
only by four-fifths of the votes (Art. 25). The usages of torture
and of the prisoner's seat were abolished forever (Art. 24).

Such are the new features under which the old procedure was
presented in the Decree of 1789. That law, for which its authors
did not look for more than an ephemeral existence, was, neverthe-
less, harmoniously put together. The fact was that it had been
in readiness for a long time ; and the reforms it introduced, often
demanded, had been, so to speak, digested by public opinion. It
proved to be more liberal in regard to the first part of the criminal
action, that is, the information, the interrogation, and the warrant,
than were the subsequent laws. The latter established a safe-
guard, which, in contemporary opinion, formed a substitute for
all the rest, that double barrier protecting English liberties, as
Blackstone says, the grand jury and the petit jury.

One point worthy of remark is that the Decree of 1789 is silent
on the subject of the doctrine of legal proofs. Was that an
intentional omission ? Was it considered unnecessary to abrogate
by a law that system, which had not been imposed by any law,
but was merely the creation of jurisprudence?

In addition to that Decree and the Decree of 22-25 April, 1790,
explaining and completing it, the Constituent Assembly pre-
scribed several other temporary provisions before constructing its
final work upon criminal procedure. By a Decree of 12-19 Octo-
ber, 1790, it provisionally commissioned the district tribunals to
try criminal causes. It had previously suspended the procedures
and the trials of the " prevotal " courts.

In the month of September, 1791, there was promulgated a Law
organizing criminal procedure on totally new foundations. The
Ordinance of 1670 is from that time abrogated ; that is the hour
of its death. It had existed as a law in force for a hundred and
twenty years ; and although henceforth its text appears only as
a matter of history, its influence, totally obliterated for a time, will
later make itself forcibly felt.

407

§11

PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

Chapter II

THE CODES OF THE INTERMEDIARY PERIOD

§ 1. The Prooedure by Jury. Law
of 16th and 29th September,
1791. The System originated
thereby.

§ 2. Discussion of Bill in the' Con-
stituent Assembly. Strife

between the Old and New

Principles.
§3. Ckxie of Offenses and Punish-
ments oi 3d Brumaire in the
year IV.

§ 1. The Procedure by Jury. Law of 18th and 29th September,
1791. System Originated Thereby. — The Cahiers of 1789 de-
manded trial by jurors in criminal matters; they recommended
the study of English institutions. For at least fifty years the
eyes of France had been turned towards England^ that country
where every person accused is tried by twelve of his fellow-citi-
zens. These wishes were about to be given effect to by the C-on-
stituent Assembly. England was to be the model for imitation ;
and in order to make the imitation complete some of the finest
creations due to French genius were to be sacrificed. The in-
stitution of the public prosecutor, that admirable feature so well
elucidated by Montesquieu, was to disappear temporarily from
our judicial organization. The English laws were incessantly
cropping up in the debates. " It is easy to see,'* says M. Bergasse
on 17th August, 1789, " that no methods are talked about here
except those furnished by the system of jurisprudence adopted
in England and free America for the prosecution and punishment
of offenses. This system, in fact, formerly in use in our own
country, is the only humane system of practice ; we cannot
do better than adopt it \^dthout delay, ameliorating it, however,
in certain details." ^ Later on, in the debate on the Law of 1791,
Thouret made this statement : " We have had the benefit of con-
ferences with several of the first jurists of England, who have
passed some time in this capital." ^

The importation into France of the English criminal procedure
was, however, an arduous task. The two systems of legislations

* Buchez and Rout, "Hist, parlement," vol. II, p. 257.
« Sitting of 28th December, 1790; Moniteur of the 29th.

408

Title I, Ch. II] THE CODES OF the INTERMEDIABY PERIOD [§ 1

were in direct opposition upon most points, even now when
publicity had found its way into French procedure, and the
accused had, with us, the aid of a defending counsel, a
privilege which the English law still hesitated to grant
them. In France, the prosecution was wholly, so to speak,
in the hands of the public prosecutor; the prtvate parties
could merely proceed for damages. In England, while all crimes
(felonies) were presented to the grand jury by pleas of the crown,
only the private prosecutor came to the front in the procedure,
which was, of necessity, accusatory; the attorney-general only
rarely constituted himself prosecutor. In England, the exam- «
ination prior to the trial did not amount to much; intrusted'
almost entirely to justices of the peace, it formed but an insignifi-
cant element in the final action. In France, down to that date,
the examination of the action by the examining judge had absorbed
the greatest part of the procedure ; it was the groundwork and '
the keystone of the whole edifice. Again, in England the pro-
cedure was entirely oral, and the law did not even permit the read-
ing of written depositions to the trial jury. In France, writing
played a preponderant part, even after the reforms brought about
in 1789 ; the actions were judged chiefly upon the written docu-
ments. This is enough to show the absolute contrariety between
the two systems, although we have taken notice only of the most
salient points. Was it possible to introduce the English system
with us, as a whole ; could it exist in the midst of usages and tradi-
tions so different from those which had presided at its birth and
followed its slow development ? For another thing, in the event
of the retention of the old French institutions, how were the grand
jury and the trial jury, voted by acclamation in the sitting of 30th
March, 1790, and which ought to figure in the number of essential
safeguards guaranteed by the Constitution, to be amalgamated
with them ?

There was, as a matter of fact, little hesitation in the minds of
the compilers of the new plan. They sacrificed the traditional
institutions to the principles of the English procedure. — " Your
committee have felt from the outset that this new institution (that
of the jury) cannot be in any respect in accord with our Ordinances
and our present form of examination. It has appeared to us to
be necessary to recast everything so as to form a complete and
harmonious system." ^ The principles of the English law were,

> M. Duport on behalf of the committees on Legfislation and Criminal
Jorisprudence. Sitting of 26th December, 1790 ; Monitenr of 27th. —

409

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

in fact, peculiarly in harmony with the spirit of the Revolution.
The dominant power of the justice of the peace at the commence-
ment of the action, the wide initiative left to citizens in the prose-
cution of offenses, should, in the eyes of the members of the Con-
stituent Assembly, be sufficient to hold in check the institution
of public prosScutor. It was clear that no servile imitation of the
English system was possible; that must be changed in many
particulars before acclimatizing it with us. This was done by the
bill which was destined to become, almost without modification,
the Law of 16th September, 1791.

The party representative of tradition did not yield without a
struggle. A long and bitter debate arose, not upon the details
of the plan, but upon two or three of its fundamental principles.
A number of members of the Assembly desired to retain the an-
cient procedure, shorn of its defects and its harshness, with or
without the jury. They protested against any daring innova-
tions, attributable to foreign importation. This Ordinance party,
if it is allowable so to describe it, was, for the time, completely
vanquished. The majority of their demands were, moreover, in-
spired by a mistaken desire for conservatism. It was partly in
the right, however ; some of the institutions which it then wished
to save from destruction had not long to wait for reappearance
and restoration. Later still even, this party will be found on the
point of taking complete revenge at the time of the drawing up
of the Code of Criminal Examination.

On 26th December, 1790, M. Duport, on behalf of the commit-
tees on Legislation and Criminal Justice, introduced in the As-
sembly the draft bill upon the procedure by jurors. Its principal
features must be sketched at this point ; these are, summary ex-
amination before the officer of judicial police, at the canton ; —
district trial before the grand jury ; — final trial and judgment
before the criminal court of the department : such were the three
phases through which the proceedings ran.

The justice of the peace was primarily the magistrate of
detective police ( "surety ") " par excellence." ^ He caused the ap-
pearance before him of those accused of crimes or misdemeanors
by means of a warrant for "production of the accused (" mandat
d*amener ") analogous to the warrant of the justice of the
peace, executory, if need be, by the public authorities.^ He

M. Bergasse had already said on 17th August, 1789 : '*The culprit should
not be brought before any judges other than the justice of the peace ''
{Buchez and Roux^ op, cit., vol. II, p. 294).

» Tit. I, Art. 1. « Tit. I, Arts. 2-4.

410

Title I, Ch. II] THE CODES OP THE INTERMEDIARY PERIOD [§ 1

proceeded with the first steps of the information ; ^ that is to say,
the hearing of witnesses and drawing up of official reports. If,
after interrogating the accused, he* thought there was no
ground for criminal prosecution, he liberated him ; if not, he
caused his imprisonment by virtue of a warrant of arrest}

The justice of the peace acted either officially, or on the sugges-
tion of private individuals. He acted officially in the case of
capture in the act,' or, again, when a death was brought to his
notice, the cause of which was unknown or suspicious, in which
case it was his duty to visit the spot.* — Private individuals put
him in action by means of the complaint or the civic denunciation.
The complaint was the act of the injured party .^ In that particu-
lar the terminology of the ancient law was preserved; but the
share of the private individual was much more important than
formerly. The justice of the peace was obliged to take the deposi-
tions of the witnesses produced by the complainant,* and to draw
up, if need be, official reports upon his requisition. He was cer-
tainly not obliged in this case to issue the warrant of arrest, nor
even that of production ; he could, no doubt, refuse to summon
the accused, or liberate him if he had summoned him. But the
party complainant could demand from him " a document showing
refusal " ; ^ and the former then had the right to submit the matter
directly to the grand jury. The denunciation by a person not
interested, being a civic duty, bore the name of " dSnonciation
civique." If the denouncer " signs and affirms his denunciation,"
it was the duty of the justice of the peace to proceed as in the case
of a complaint, and the denouncer had the same recourse as the
complainant.® If the denouncer refused to sign and affirm the
denunciation, the justice of the peace was not bound to do any-
thing, but he was entitled to prosecute officially if he thought
proper. — The officers of the gendarmery exercised the function^
of judicial poUce concurrently with the justice of the peace, ex-
cept in cities where there were several justices of the peace.*

The cause went from the canton to the district. The grand jury
sat there, the jail was there, and a permanent magistrate was
there, called director of the jury, chosen by rotation every six
months from among the judges of the district court. He took

» Tit. V, Art. 8 ; Tits. Ill and IV ; Tit. IV. Art. 3.

« Tit. VIII, Arts. 5-7. • Tit. IV.

* He was also required to seoure the presence **of two active citizens,'*
Tit. Ill, Arts. 2 ana 3. This is a reminder of the ** adjoints " of the Decree
of 1789; and also of the procedure followed before the English coroner.

» Tit. V, Art. 1. 'Tit. V. Art. 6. ' Tit. V, Art. 20.

• Tit. VI, Art. a » Tit. I.

411

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

the control of the case. He received the documents of the pro-
ceedings made out by the justice of the peace, inspected them, and
even interrogated the prisoner in jail.^ If he was of opinion that
there was no occasion for prosecution, he submitted the matter,
within twenty-four hours, to the district court, which pronounced
upon that question after having heard the king's commissary.
If he thought there was ground for prosecution, or if, contrary to
his opinion, the court so determined, it became the duty of the
director to draw up the " acte d'accusation " for presentation to
the jury, as in the case of the indictment of the English procedure.*
He could, in the meantime, go on with the examination.^ If the
eventual punishment was merely degrading, and suflBcient bail
was offered, he could grant the prisoner provisional liberty.*

If there was a civic denouncer or a complainant in the action,
these rules underwent material modification. Provided this
party presented himself within two days, the director of the jury
no longer retained his full freedom of action. If he thought there
were grounds for prosecution, he must act in concert with the
party in drawing up the indictment; in case of disagreement,
each drew up his own indictment, and the jury subsequently made
their choice between the two. If the director of the jury thought,
on the contrary, that there was no ground for prosecution, he
could not, as formerly, have the question decided by the district
court ; but the party could, nevertheless, draw up his indictment
alone.^ Moreover, if the justice of the peace had refused to act,
the complainant and the person who had affirmed his denunciation

^ See "Instruction du 21 Octobre, 1791" upon the execution of the
decree settling the procedure by jurors. "As the formality of the hearing:
of the accused within twenty-four hours is obligatory, and it is importAnt
to know if it has been complied with, the director of the jury should draw
up an official report of it, wiiich should contain the statements and answers
of the accused. It is unnecessary to observe the old forms of interroga-
tions, or to take the oath of the accused, that he will tell the truth ; mere
good sense shows the uselessness and inquity of such an oath, which places
the accused between perjury and punishment. . . . The director of the
jury should not allow himseft to put any captious questions ; he ought to
hear the accused's free statement."

» Part II, Tit. I.

* Part II, Tit. I, Art. 1 6. "The witnesses who have not made their state-
ment before the police officer shall make it before the director of the jury.
These statements shall be received in writing before the witnesses are
examined orally by the grand jury." Here also care is taken to insure
that this examination is of quite another character from that formerly
made. — Instructions as to the jury of 21st October: "If there are new
witnesses who have not yet been heard, the director of the jury shall re-
ceive their depositions secretly, and they shall be transcribed by the clerk
of court, not m the form observed under the Old Regime for the inquiries,
but as mere statements designed to serve as information only. "

* Part II, Tit. I, Arts. 30, 31. » Part II, Tit. I, Art. 12.

412

Title I, Ch. II] THE CODES OF THE INTERMEDIARY PERIOD [§ 1

could, respectively, on the " refusal stated " of the justice of the
peace, " present their charges to the grand jury directly." ^ But
all the indictments had to be submitted to the king's commissary,
who put his " visa " on them ; " the law authorises " ; or his
" veto " ; " the law forbids " ; but, in the latter case, the dispute
was decided by the district court.^

The jury of accusation, consisting of eight jurors,^ was presided
over and instructed in its duties by the director of the jury ; the
documents of the proceeding were sent to him " with the exception
of the written statements of the witnesses." — " First of all, the
documents were read, then the witnesses produced were heard
orally, as well as the party complainant or the party denouncing,
if present." * All this took place with closed doors. Then the
jurors, left alone by the director of the jury, and having for fore-
man " the oldest," deliberated and decided by a majority. The
foreman then wTote at the foot of the indictment " there are
grounds," or " there are no grounds," formulas synonymous with
the English " found " or ** not found." If the jury allowed the
prosecution, the director of the jury issued " immediately an order
of arrest against the accused, by virtue of which, if he has not
been already arrested, he will be seized wherever he may be found
and brought before the criminal court ; " ^ or, again, in a proper
case, liberation on bail was granted by the criminal tribunal, if
it had not been already done.*

The matter then passed to the criminal tribunal established

1 Part II, Tit. I, Art. 12.

* Part II, Tit. I, Art. 13. The investifi:ation of the king's procurator is
merely for the purpose of ascertaining whether the offense, in the event of
its being proved, deserves corporal or degrading punishment. See In-
structions as to the jury, of 2l8t October : "This opposition by the king's
commissioner stops the presentation of the indictment to the jury if, be-
sides, the director of the jury was of the same opinion as the king's com-
missipner ; for in that case the party would be the sole judge of the nature
of the offense ; but the law allows the question to be then determined by
the court, to whom the party, the king's commissioner, or the director of the
jury may refer it. . . . It decides whether the offense is or is not of a
nature deserving of corporal or degrading punishment ; " in case of a nega-
tive decision, ''the indictment is void, and the same judgment pronounces
the release of the prisoner."

' Upon the method of constituting the jury of accusation, see Part II,
Tit. X. "Every three months the syndic procurator of each district draws
up a list of thirty citizens from among all the citizens in the district pos-
sessing the qualifications of electors. . . . Eight days before the day of
the Assembly, the director of the jury causes the names of thirty citizens
registered upon the list to be put into a vase, and in the centre of the court-
room, in presence of the public and of the king's commissioner, he causes
the names of eight citizens to be drawn." — Instructions as to the jury.

* Part II, Tit. I, Art. 20. » Part II, Tit. I, Art. 29.

* In case of a negative answer by the jury of accusation, the accused
should be set at liberty, if he had been arrested.

413

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

in each department, composed of three judges and a president,
whose duty it was to determine the punishment, while the jury
decided upon the question of fact. Attached to this tribunal were
also a public accuser and a king's commissary. The former, an
elective functionary,^ was charged with " the prosecution of oflFenses
on indictments approved by the first jury." ^ He produced the
witnesses for the prosecution,^ explained the case and spoke for
the prosecution.* He was, in reality, a public prosecutor ; the
complainant, moreover, had also the right to have his witnesses
heard in support of the prosecution. — The king's commissary
was a magistrate charged with seeing to the execution of the
law and securing its application.^ It was he who, in the case of
an affirmative verdict, asked for the application of the punish-
ment.®

The president of the criminal court interrogated the accused
within twenty-four hours of his arrival at the court-house,^ in
presence of the public accuser, and notes of this interrogation were
taken. He could, besides, continue the examination in a general
way, hear new evidence produced by the public accuser, the private
party, and even by the accused.^ But it was understood that these
written depositions were only to be used as information ; they were
neither read nor submitted to the jury.*

English tradition was not followed in regard to the constitution
of the trial jury. A somewhat unsatisfactory system w'as
contrived. Every citizen entitled to vote must be enrolled in a
register kept for the purpose by the secretary-clerk of each dis-
trict (Part n. Title XI, Art. 2) . These entries, sent to the attorney-
general-syndic of the department, constituted a general jury list,
from which the said magistrate every three months chose two
hundred names, which, after the choice had been approved by
the director of the department, composed the session lists (Art. 6).
On the 1st of every month, the president of the criminal court
caused the list of the trial juries for the session which was to open

1 Part II, Tit. 11, Art. 5. * Part II. Tit. IV, Art. 1.

> Part II, Tit. VI, Art. 12 ; Tit. VII, Art. 3.

• Part II, Tit. VII, Arts. 3, 18.

• Part II, Tit. V, Art. 1 : **He must acquaint himself with the documents
and proceedings and be present at the investigation and the judgment." —
Art. 2: "The kinp:'s commissioner is always entitled to lodge with the
judges all the requisitions he may deem proper, of which he shall be given
an official certificate.''

• Part II, Tit. VIII, Art. 5. ^ Part II, Tit. VI, Art. 10.

• Part II, Tit. VI, Art. 12.

• Part II, Tit. VI, Arts. 11, 12 ; ** These new depositions, as well as the
old, will all be laid before the president, to serve as information only.'*

414

Title I, Ch. II] THE CODES OP THE INTERMEDIARY PERIOD [§ 1

on the 15th to be made up. For this purpose, in presence of
the king's commissary and of two municipal officers who took an
oath of secrecy, he presented the list of two hundred jurors to the
public prosecutor, who was entitled to exclude twenty without
assigning cause. The remaining names were put into a box, and
twelve trial jurors were drawn by lot. But the accused's right of
challenge had to be taken into account. For this the list of twelve
names was exhibited to him, and within twenty-four hours, he could
challenge those composing it, which were replaced by lot (Art. 10).
In this way he was entitled to make use of twenty peremptory
challenges. This privilege exhausted, he could still challenge
indefinitely, but only on assigning the reasons for his challenges,
of the validity of which the criminal court were the judges. This
fantastical system of successive and " out of presence " challenges
was undoubtedly one of the mistakes which hampered the working
of the jury at the outset.

The accused was at last brought before the criminal tribunal,
composed of the magistrates we have mentioned and twelve
jurors. There an oral and public, and very simple, procedure
took its course. It is described in Titles VI, VII, and VIII of the
second part of the IjSlw of 1791, which fixed in a definite manner
the rules for actions before the jury. These rules have been ex-
panded and stated precisely by the " Code of Offenses and Pun-
ishments," and simplified by the " Code of Criminal Examina-
tion," but their broad features remain as they were traced in 1791.
We shall not dwell upon the details, which will be found in the
modem treatises upon criminal procedure ; but it must be noted
that the oral character of the procedure was most carefully and
insistently specified. " The examination of the witnesses shall
always be made orally and without writing out their depositions." ^
The only documents the jurors received were the indictment and
the official reports, if there were any.^ At the same time, the
legislature expressly declared its intention to repudiate the system
of legal proofs and to refer the matter to the personal conviction
of the jurors alone. This was shown by the phraseology of the

1 Part II, Tit. VII, Art. 3. C/. Tit. V, Art. 16 : "The witnesses can never-
theless be heard at the trial, although they have not been summoned or
received to de'oone preliminarily in writing,'^ — *' During the investigation,
the jury and the judges may take note of what appears important to them,
provided the discussion is not thereby interrupted" (Tit. vll, Art. 16).

' Instructions as to the jury. "Tney ought to examine the documents
in the action, among which need not be included the written statements of
the witnesses, which ought not to be submitted to the jury, but only the
indictment, the official reports, and other such documents.*'

415

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [ParT III

oath administered to them. " You swear ... to give your de-
cision according to the charges and the pleas in defense, and fol-
lowing your conscience and your personal conviction, with the
impartiality and firmness proper in a free man." ^ Elsewhere it
was said : " The accused shall be entitled to bring witnesses to
attest that he is a man of honor and probity and of irreproachable
conduct; the jurors shall give reasonable consideration to this
testimony." ^

English tradition was discarded in one important particular.
In England, the judge, whose influence upon the jurors is very
great, re-states at the conclusion of the argument the issues
which must be solved. The French legislature certainly or-
dained such a statement ; ' but it did more ; it provided from
the outset, that the issues should be put to the jurors in
writing, so that they had only to reply by "yes" or "no."
This idea was a fertile one; a most ingenious mechanism was
bound to result from it. After prolonged efforts to perfect the work-
ing of this tool, as delicate as it is certain, a happy precision was
arrived at, which still grows more precise every day. The first
principles were laid down in 1790. Montesquieu's idea, in partic-
ular, namely, to present to the jurors but one fact, a single fact
at a time, was followed in practice. It was not obligator>% more-
over, to follow the indictment alone in the stating of the issues.
That might be imperfectly drawn or " have changed by the ac-
cused's defense and the proofs furnished by him." — " The im-
possibility of limiting the jurors strictly to the contents of the
indictment without revolting injustice must be acknowledged .
The law therefore ordains that, when they have found the commis-
sion of the offense and that the accused was guilty of its commission,
they shall return a third equitable finding as to the particular
circumstances of the fact, either to determine if the offense was
committed wilfully or involuntarily, or with or without intent to
injure, or pronounce in extenuation of the particular character
of the offense." ^ But how are all these degrees to be treated ?
" Must they put to themselves in every case as many questions as

1 Part II, Tit. VII, Art. 24. « Part II, Tit. VII, Art. 14.

' Wise advice was given in this respect from the beginning. Instruc-
tion as to jurors : "The president of the court makes a statement of the
case, reducing it to its simplest poinj^s. He specifies the i)rincipal proofs
produced for or against the accused. This statement is intended to
enlighten the jury, to concentrate its attention, and to guide its judgment,
but it ought not to restrain its freedom. The jury owe to the judge respect
and deference . . . but they do not owe him the sacrifice of their opinion,
for which they are accountable only to their own consciences."

* Instruction as to the jury.

416

Title I, Ch. II] THE CODES OF THE INTERMEDIARY PERIOD [§ 1

there are admissible degrees between wilful murder and lawful
homicide ? That would result in a useless and absurd complexity
in the stating of the questions. ... It will therefore be for the
judge who superintends the procedure and who presides over
and directs the course of the action, carefully to group the va-
rious issues relative to intent, to which the nature of the deed
and of the charges could give rise, to be pointed out to the jury
and its deliberation directed to these points. After having taken
the opinion of the court upon the manner of putting the questions,
he will put them in presence of the public, the accused, counsel,
and jurors, to the last of whom he will submit them in writing,
arranged in proper order for deliberation." ^

The English traditional rule requiring the jury's decision to be
unanimous was not adhered to. " But the opinion of three jurors
ought always to be sufficient, in the accused's favor, either to
decide that the fact is not certain, or to decide in his favor the
questions put by the president relative to intent." ^ The theat-
rical spirit of the time was well shown in the way in which the
jurors gave their opinions. One of the judges appointed by the
president, the king's commissary, and the foreman of the jury met
in the council chamber. There, each juror in succession, begin-
ning with the foreman, " in the absence of each other," had to
give his verdict, " putting his hand upon his heart." Each, then,
as a check, deposited in a white or black box a ball of the same
color, for each verdict. The boxes were opened in presence of
the assembled jurors, the votes were counted, and the foreman of
the jury announced the verdict in open court.^ The judges then
decided upon the terms of the punishment, beginning with the
youngest and ending with the president.*

There was no appeal from the jurors' decision. That appears
to be a universal characteristic of the jury in criminal matters.
" The jurors' decision can never be subject to appeal. If, however,
the court is unanimously of opinion that the jurors are mistaken,
it will order three jurors to be added to the first twelve to give a
verdict by four-fifths of the votes." ^ An appeal to the Court
of Cassation was alone possible, either on behalf of the condemned,
or on behalf of the king's commissary in the name of the law. It
had to be lodged within three days ; and in case of acquittal the
commissary must act within twenty-four hours. The only grounds

* Instruction as to the jury. Law, Part II, Tit. VII, Arts. 20 and 21.
« Part II, Tit. VII, Art. 28. • Arts. 23, 29, 30, 32, 33.

< Tit. VII, Art. 9. » Part II, Tit. VIII, Art. 27.

417

i 1] PBOCEDURE SINCE THE FBENCH REVOLUTION [Part III

for appeal were the omission of the forms prescribed on pain of
nullity or the erroneous application of the law. In the case of
quashing, a new trial began before a different criminal tribunal,
unless there was merely error in the application of the law, in which
case the first jury's verdict stood.^

We see that practically nothing of the ancient institutions re-
mains. One main fact is that the institution of the public prose-
cutor suffered total destruction. Not only were the duties for-
merly fulfilled by the king's procurator uselessly shared between
the king's commissar^'' and the public accuser,^ but the prosecu-
tion of crimes did not in reality belong to the latter at all. Un-
doubtedly, the law gave him " supervision over all the police
oflScers of the department, whom he could admonish in case of
negligence on their part, or even bring before the criminal tri-
bunal for discipline ; " ' but he did not intervene personally until
the prosecution had been already decreed — he only appeared in
the same way as an advocate chosen after the commencement of
the action. The accuser could prosecute only when an oflScer of
judicial police was guilty of breach of office ; * in any other case,
on receipt of a denunciation he had to transmit it to the justice of
the peace.^ However, M. Duport, the reporter of the bill, con-
gratulated himself on this result. " It is now by the decision of
his fellow-citizens that he (the prisoner) is prosecuted. Society
is about to intrust to a public officer the duty of exercising its
rights and of prosecuting in its name. This officer, who will be
the public accuser, ought not to be any of those who have already
acted . . . such a man will be more considered, more formidable
than the law itself ... he will have the superintendence of all.
the police officers ; but he will not be entitled in any way to sup-
plant them in the exercise of their duties." •

1 Part II, Tit. VIII, Art. 14 ei seq,

* It was, besides, the application of a g:eneral system based upon an
erroneous idea : ''In England, the king is the sole executive power. The
execution of the laws, once they are made in Parliament, belongs to him
alone, and for that purpose he appoints executive officers, judges, adminis-
trators, fiscal officers. ... In France, the king is merely the supreme
head of the executive power : he does not appoint the executive officers for
the interior, he merely makes use of their services ; it is the country which
chooses them for him, which puts them into the king*s hands, to be em-
ployed by him. . . . The fundamental maxim of our government is that
the executive arm of the monarch can never reach individuals except by
the necessary medium of agents elected b^ the people. Now, this prin-
ciple would be violated if the king's commissioners could accuse citizens.*'
Duport, sitting of 26th December, 1790 ; Moniteur of the 27th.

« Part II, T\i. IV, Art. 5.

* Part II, Tit. IV, Art. 7. » Part II, Tit. IV, Art. 2.

* Sitting of 26th December, 1790 ; Moniteur of 27th. It is certain that,

418

Title I, Ch. II] THE CODES OF the intermediary period [§ 2

The right of prosecution was partially conferred on mere pri-
vate individuals. The action of complainants and civic denun-
ciators was incomparably more e£Bcacious than that of the old
civil action. Either could constrain the justice of the peace, if
not to issue warrants, at least to begin an examination by taking
depositions. They could, afterwards, of their own authority,
cause the grand jury to take action. In all cases they took part
in the drawing up of the indictment. Again, the power of the
justice of the peace to proceed oflScially, not only in case of capture
in the act or suspicious death, but even upon a mere unconfirmed
denunciation, united in his person two qualifications which should
have been kept separate: those of prosecutor and of examining
magistrate.

The preparatory examination, which formerly took in nearly
the whole of the action, was reduced to a mere trifle. It con-
sisted merely of summary examination by the police oflScer, possi-
ble hearing of witnesses by the director of the jury, and interroga-
tion of the accused by the president of the criminal tribunal.
This fragmentary inquiry, at diflferent hands, could neither be
quite real nor quite complete. Finally, its characteristic of
orality was absolute. The depositions were certainly taken in
writing before the various examining magistrates, but their pur-
pose was to serve merely for information ; they were submitted
neither to the grand jury nor to the trial jury ; for that very rea-
son, the public accuser, as well as the president of the criminal tri-
bunal, had cognizance of them; but they were communicated
neither to the accused nor to the counsel chosen by him, or offi-
cially appointed for him by the president at the time of the in-
terrogation. The jury judged only according to what was said
before them, and nothing of what was then said was written down.

§ 2. DiacuBsion of the Bill by the Constituent Assembly. Strug-
gle between the Old and New Principles. — This radical revolution
in criminal procedure was not consummated, as we have said, with-
out strenuous opposition. The foregoing analysis of the Law
shows, of itself, how complete was the defeat of its opponents.
It is no less interesting to recall the principal incidents of the
discussion. This will show that, although the majority of those
who opposed these innovations were magistrates imbued with
the principles of the old law, they sometimes had supporters whom
we are surprised to find fighting on their side.

baving an elective character, the public accuser, master of the prosecution,
would have been a formidable power ; this was a mischievous circle.

419

S 2] PROCEDUBE SINCE THE FRENCH REVOLUTION [Part III

Among those who opposed the bill were, first of all, the warm
upholders of tradition, who did not hesitate to present as ideal
the old procedure, ameliorated, and the Ordinance of 1670, cor-
rected and amended. " M. Duport," said M. Mougin, " has
seen everything from a philosopher's, and almost nothing from a
magistrate's, point of view. First of all-, I appeal to all who are
acquainted with the principles of criminal law if the Ordinance of
1670, regulating the formalities of accusations and complaints, does
not exhibit, after some few amendments, a perspective and a clear-
ness in its principles, calculated to reassure society as to the protec-
tion of innocence and the detection of crime ? And you have put
into force the very amendments which that Ordinance required
to attain perfection. The friends of humanity have witnessed
with emotion the attainment of what was entreated by reason and
justice. A counsel is granted, a thing the civil law has no right
to refuse, because it is conceded by natural law. You have or-
dained that tutelary publicity, which can only be detrimental
to ignorance and bad faith. You have proscribed that shameful
prisoner's seat, the use of which ignominy dared to dispute with
the pity which created it. The ferocious institution of torture
also is no more, that impious remnant of the barbarous ages.
Add to all these reforms, demanded by nature and humanity, the
establishment of several jurors, following the method in use with
the Romans, and you have done all that is possible for justice and
humanity." ^ M. Rey spoke to the same effect at the sitting of
28th December, 1790 ; and the Abb6 Maury reminded his hearers
that the Ordinance of 1670 had governed Prance for upwards of
a century and that it was proper that ineradicable traces of it
should remain. But such proposals were nipped in the bud.
The majority of the Assembly, in common with the majority of
the country, ardently desired the jury, that institution which had
grown with the growth of English liberty. The men of that time
felt vaguely that here was an institution which formed a true dis-
tinguishing mark of free coimtries.

Upon certain matters of detail the opponents of the bill were
sometimes better inspired. At the sitting of 28th December,
M. Prugnon referred to the disappearance of the public prose-
cutor, and the great void thereby left. " Is there to be a public
party charged with lodging complaints and prosecuting crimes?

1 Sitting of 27th December, 1790 ; Moniteur of the 29th. This is
what the speaker understood by the jury of ancient Rome : ** The jury
were not chosen for every individual crime. Ten or twelve citizens were
appointed every year who performed the duties imtil the following year."

420

Title I, Ch. II] THE CODES OP THE INTERMEDIARY PERIOD [§ 2

It seems to me of the highest importance in all the systems, that
you should consider the utility of this officer, suppressed by your
committee, who played such an essential part in the old criminal
procedure ; for it surely will not be claimed that his place is filled
by the public accuser who is proposed to you and who will be
charged with almost useless functions. You must be the judges
whether it is necessary to call upon all the people, as your com-
mittee proposes to do, to publicly denounce their fellow-citi-
zens." *

The choice of police officers was also criticised, from various
quarters. These were, as we know, the justices of the peace and
tiie officers of gendarmery. M. Prugnon attacks the former. He
is indignant " at seeing the right to arrest a citizen without pre-
liminary formality intrusted to a man on whom it was not thought
desirable to confer the trial of matters above fifty livres." He
remarks that the English justices of the peace, taken as a model,
are quite different types of personages from those of France. "The
English justices of the peace do not resemble ours ; not only do
they receive no salaries, not only is their jurisdiction more exten-
sive, not only are they chosen from among the most enlightened
citizens, but they must have an income of £100." ^ — The same
speaker also deals with the officers of gendarmery. It is wished
"to combine in the same hands, namely, in those of an officer
of the marshalcy, the two most horrible despotisms, judicial
despotism and military despotism." M. Mougin asks "if any
one believes it to be prudent to entrust to a marshalcy trooper or
a justice of the peace the terrible right to issue a warrant of ar-
rest, or, what is the same thing, a warrant of production." ' Robes-
pierre, finally, makes a protest to the same effect : " I am at a
loss to know in what respect the Old Regime was more defective
than this. It is almost enough to make us regret even the ' pr6-
v6tal ' jurisdiction, less odious. in many respects, and which had
all the appearance of a political monster, precisely because it put
in the same hands a civil magistracy and the military power." *
In spite of all, that part of the bill devoted to the police of safety
was retained. The question of ascertaining to whom these func-
tions should be intrusted had been reserved to begin with. These
Articles were subsequently adopted in their original form.

But the keenest strife centred upon two points of vital impor-

» Moniteur of 29th December, 1790.

* Sitting of 28th December, 1790.

» Moniteur of 29th December, 1790. * Ibid.

421

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

tance. Here the adversaries of the bill appeared at first to have
the upper hand. By a combination excellent in appearance,
they wished to add the benefit of new principles to the old prac-
tices. Depositions in writing would continue to be taken, and
these documents would be submitted to the jurors, who, however,
would hear the witnesses testify orally ; precise documents would
thus come to the aid of their personal memories, sometimes evanes-
cent. This procedure permitted an easy review of criminal ac-
tions ; and the Abb6 Maury exclaimed, in the course of the debate,
referring to a very celebrated case : " If we had not had the writ-
ten procedure. Galas could not have been rehabilitated." * M.
Rey stated the undeniable fact, that the written procedure renders
the task of the counsel for the defense easier, and their aid more
efficacious.2 The law was to determine what proofs must be
brought together to warrant a condemnation*; but the judges
should never, whatever the charges might be, condemn an accused
contrary to their personal conviction.

These ideas and proposals were brilliantly debated on oppo-
site sides of the Assembly. " Your committee," said M. Mougin,
" abjures written proofs ; everything is done orally ; the judgment
alone will be written, the proof will not be written . . . that is
to say, an accused will be judged on speculation and upon a mere
rough estimate. And if the juror and the judges are mistaken,
the accused will be without hope, as without recourse." ' — "To
intrust the depositions to memory alone, is like writing upon water
. . . the committee wishes to transport us back to the ages be-
fore the invention of writing ... it must be that since the ' Hopi-
tal ' all our legislators have been ra\ang." — "If legal proofs are
no longer necessary to establish the guilt of an accused, everything
must become conjectural, and the life and honor of the citizens
are brought before a court of conjectures . . . the proof wdll lie
in the individual perception of each juror." M. Prugnon thus
expresses himself at the sitting of 3d January, 1791.* Next day
M. Rey, M. Goupil, and Robespierre, whom we find among the
opponents of the bill, speak to the same effect. " The law," says
Robespierre, "has laid down certain rules for the investigation
into, and the admission of, proofs, rules without the observance
of which the judges would not be entitled to condemn, whatever
their personal conviction may be ... it is necessary to establish

* Sitting of 17th January, 1791 ; Moniteur of the 19th.

« Sitting of 28th December, 1790 ; Moniteur of the 29th.

* Sitting of 27th December, 1790 ; Moniteur of 29th.

* Moniteur of 4th January.

422

Title I, Ch. II] THE CODES OF THE INTERMEDIARY PERIOD [§ 2

undeniably that these have been followed, and the method of
doing so is by writing . . . the confidence due to legal proofs
must be united with that warranting the judge's personal con-
viction." He makes the following motion : *' 1st, The deposi-
tions shall be reduced to writing ; 2d, The accused cannot be de-
clared convicted in the absence of legal proofs ; 3d, The accused
cannot be condemned on legal proofs, if they are contrary to the
knowledge and the personal conviction of the judges." ^

The man who spoke most authoritatively in this direction was
Thouret. At the sitting of 5th January, without, however, say-
ing anything about the doctrine of legal proofs, he proceeded to
maintain the advantages of the written procedure combined with
the oral testimony of the witnesses. This he did with great moder-
ation, sometimes quoting striking anecdotes, and, on concluding,
he proposed an amendment in the following terms : " The As-
sembly ordains that the criminal examination and procedure shall
be conducted pubHcly, in the presence of judges and jurors, that
it shall be written and immediately put before the jurors to receive
their reasonable consideration." This speech made a great im-
pression upon the Assembly, which voted for its printing, and the
debate wa« even adjourned for several days to allow the represen-
tatives to reflect upon these diflicult questions.

How were the supporters of the bill able to repulse these attacks ?
How did they come to refuse to accept the written procedure and
the system of legal proofs, as it was presented to them, that is,
hitherto apparently harmless and only beneficial ? Such conduct
might appear inexplicable; however, it must be acknowledged,
although these men had the logic of reasoning against them, they
had in their favor the logic of facts. They sometimes found it
diflScult to make their ideas understood, but they felt very plainly
an incompatibility between the old method of trial and the new,
that the two systems could not be mingled, and that to import
into the trial by jurors the complexities of writing and the learned
theory of legal proofs, would be to impair an admirable institution,
under color of ameliorating it; this was a graft the young tree
could not bear. This was maintained by Duport, Chabroud,^
Baumetz,^ and Petion.* **The institution of the jury," said Duport,
" is a primitive one, which still bears the impress of its rude origin,
and breathes lustily of nature and instinct. We do not speak of it

* Sitting of 4th January, 1791 ; Moniteur of the 5th.
- Sitting of 3d January ; Moniteur of the 4th.
' Sitting of 4th January ; Moniteur of the 5th.
^ Sitting of 17th January ; Moniteur of the 19th.

423

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

enthusiastically, or love it passionately, but a strong and healthy
heart is necessary to appreciate all its beauty, or perhaps,
even, to employ it at all. . . . The pleasing element in the
establishment of the jury is that, with it, everything is decided by
force of honesty and good faith, a simplicity much preferable to
that useless, melancholy mass of subtleties and forms, called, down
to this day, justice." ^ Later on, in a more precise discussion,
he demonstrated how the written procedure could not be combined
with the oral procedure. The collection of all the testimony in
writing would indefinitely prolong the actions; the tired jurors
would lose interest in an action the course of which they could
no longer follow; when they returned to the chamber of their
deliberations, instead of taking away \\nth them a sufficiently clear
impression to dictate their judgment, they would get lost in the
inspection of a voluminous procedure, a task beyond their capac-
ity. " Some have thought that it would be very advantageous to
combine the written proof and the oral proof, and thus to have
the benefit of both systems ; but that is impossible. . . . Arrived
in their chamber, the jury would read the depositions, weigh them
and compare them, like the judges of the Tournelle, and the result
would be, as I have said, bad judges instead of good jurors." ^

The same speakers maintained that there was an equal incom-
patibility between the institution of the jury and the system of
legal proofs, even construed in favor of the accused. Here the
matter was not so clear. It was no doubt clear that the minute
and complex theory elaborated by traditional practice, which
had never found a place in the law, was too delicate a tool to put
into the hands of jurors ; but it was a different matter with re-
gard to certain very simple rules, such as that which required two
eye-witnesses for a condemnation. That rule was, in certain cases,
observed in England in the procedure by jury ; and to-day, still,
the theory of proofs plays a great part before the English jur^^'
There was, however, every reason to reject the system " in toto."
In England, in effect, the rules of evidence in criminal cases are
really only a series of rather elastic maxims established by judicial
practice, and the observance of which is imposed upon the jurors
by the president of the assizes, by virtue of his high authority.
To settle by a law the evidence necessary for condemnation would
have been to pass a delusive measure. The jury, not being re-

1 Sitting of the 26th December ; Moniteur of the 27th.

2 Sitting of 4th January ; Moniteur of the 5th.

• Blackslone, Book IV, chap. 27 ; see Mittertnaier, "Traits de la proce-
dure criminelle en Angleterre," Chauffard*s translation, § 20.

424

Title I, Ch. IT] THE CODES OF THE INTERMEDIARY PERIOD [§ 3

quired to assign a ground for its decisions, would always have been
able to evade it ; and it would, above all, have had the eflFect of
furnishing the jurors with a convenient pretext for unjustifiable
acquittals.

When, on 17th January, 1791, the Assembly resumed the debate,
a change had already taken place in the members' opinions. A
vehement speech by Maury, defending the written procedure,
was no doubt still listened to. Attacking Anglomania, he asserted
that the reason the English procedure was oral was, that in the
1200 s, when the jury was instituted, no one was able to write.
But Tronchet, representing the spirit of compromise, proposed a
middle course, a system less pronounced than that of Thouret.
" The procedure shall be oral, but the accuser and the accused
may require an epitomized oflScial report of the actions." Ar-
rived at this point the cause of Duport and his supporters might
be said to be won ; Tronchet's motion had really no bearing on
the question, and was therefore rejected, and the bill was definitely
adopted in the form in which it had been presented.

Such was the work of the Constituent Assembly in regard to
criminal procedure. To pass judgment upon it, it must, we be-
lieve, be divided into two parts. In regard to the proceedings
before the trial jury, definite rules were laid down. The Assembly
had endowed France forever with this magnificent institution,
which has since spread throughout Europe with the representative
regime. It is one of the great benefits for which we must be
eternally grateful to it. But in respect to the arrest and prelimi-
nary examination, always necessary in these serious matters, the
Assembly had disorganized the old institutions due to French
genius, and had substituted for them an imperfect and inadequate
mechanism, which could never work in a satisfactory manner.
It had mixed up the public action and the civil action, overturning
that equitable distinction, elaborated in the protracted evolution
of the ancient law. After long hesitation, the institution of the
public prosecutor was again taken up. The Assembly had left this
difiicult problem unsolved ; how was the preliminary examination,
necessarily written, to be welded with the necessarily oral pro-
cedure by jurors ?

The Law of 1791 being as we have described it, it would seem as
if nothing at all remained of the old procedure. We may, however,
find some traces of it left by the Ordinance of 1670. The recep-
tion of complaints by a policeoflBcer (Tit. V, Arts. 2-5) is, in respect
to its details, copied almost verbatim from Title III of the Ordi-

425

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

nance. For Title IX, on Contumacy, a part of the provisions of
the Ordinance had been borrowed, particularly the proceedings
ending in the verdict of contumacy and the resolvable character of
the sentence.^ But there again the jury made its appearance,
although the procedure was not oral in the true sense of the word :
" the depositions of the witnesses taken in writing shall be read to
the jurors, who shall be drawn by lot." — The provisions on for-
gery are an echo of those of the Ordinance of d'Aguesseau. Finally,
in its Title XIII, the Decree repeated certain precepts of the Ordi-
nance of 1670.^ These are but slight vestiges, but we note them
here. Although there are only broken links here, we shall find,
later, important fragments of the chain.

The Law of 29th September is not the only one devoted to crimi-
nal procedure passed by the Constituent Assembly; it had pre-
viously organized the municipal and correctional police in the
Law of 19-22 July, 1791, adopted almost without discussion on
the report of Desmeuniers.' Here, concurrently with the initiative
of the citizens, the Law organized the action of a kind of public prose-
cutor. "Art. 44. The prosecution of these offenses shall be made
by the procurator of the commune or his deputies if any such there
be, or by lawyers empowered to that effect by the municipality."
Nobody, however, appears to have had the right of direct citation
before the correctional tribunal; the pursuers must make their
denunciation to the justice of the peace, who, having summoned
the prisoner before him by a warrant of production, remanded
him, if there was cause, before the tribunal (Arts. 45 and 57).
The examination took place in public court (Art. 58) ; a summa-
rized official report of the action was drawn up by the clerk of court ;
and appeal to the district court was permissible.* In municipal
police matters, the prosecution took place on the petition of the
procurator of the commune or of private individuals, and the
court took action bv virtue of a direct summons issued in the name
of these persons (Art. 35).

§ 3. The Code of Offenses and PtmSdunents of 3d Brumaire,
year IV. — The Law of 1791 was not destined to last much longer
than that of 1789, for which it had been substituted ; it had to
yield place to the Code of Offenses and Punishments of 3d Bru-

* Contrary to the provisions of the Ordinance, the law for the first time
treats alike, in the proceedings for contumacy, the escaped prisoner and
the fugitive who has never been arrested (Art. 1*4).

2 See Tit. XIII of the Law of 1791, Arts. 4, 5 ; and Tit. XIII, Ord. 1670,
Arts. 6 25.

» Moniteur of 6, 7, 8, 9, 13, 14, arid 21 July, 1791.

* Law of 16th August, 1790, Tit. XI, Arts. 2 and 6.

426

Title I, Ch. II] THE CODES OF the intermediary period [§ 3

maire, year IV. It was not invariably respected during the time
of its rule. This is not the place to speak of the revolutionary
tribunals and procedures, which proceeded to erect, alongside
of the common law, a frightful exceptional system of law ; still,
it is unquestionable that numerous illegalities crept into the ordi-
nary procedure.^ But the forms introduced by the Law of 1791
were, none the less, looked upon at that period as a completed
institution, and it was not for its destruction, but for its perfection,
that the Convention took up the work of the Constituent Assembly.
The special purpose, in compiling the new Code, was to have a
work at once sjiithetic and detailed, as distinguished from the
prior laws. It was to embrace the procedure in regard to mis-
demeanors and contraventions as well as crimes. The Conven-
tion, on 3d Flor^al, year II, commissioned Cambac^rfis and Merlin
to prepare a general work upon the legislation as a whole. Mer-
lin devoted himself in particular to criminal legislation, and at
the end of eighteen months, he presented to the Convention the
Code of Oflfenses and Punishments, unfinished, but comprising
646 Articles, the first 598 and the 646th of which were devoted to
criminal procedure. The Assembly, on the eve of breaking up,
passed it on trust and without debate. Here preliminary labors
were lacking. As documents tbeyare limited to this short report
by Merlin : " By a Decree of 23d Fructidor, you commanded
your commission of eleven to present to you a draft * Code of
police of safety and correctional police ' adapted to the Constitu-
tion, and in consonance with the judicial organization. In devot-
ing itself to the carrying out of this Decree, your commission of
eleven thought that, the better to fulfil your wishes, it ought to
extend the scope of its labors, and propose to you a general re-
casting of all the laws passed since the beginning of the Revolu-
tion, to regulate and direct the prosecution and punishment of
oflfenses of all kinds. You already perceive the innumerable
advantages which ought to ^result from such a work. The main-
tenance of the republican Constitution, accepted by the French
nation, is your desire as well as your duty. The most important
steps to attain that end are the repression of anarchy, the estab-
lishment of the reign of law, the guarantee in a thoroughly efficient

'See the Law of 22d Vend^miaire, year IV, forbidding any police
officer to bring before the director of the jury any citizen for an act not
provided for and specified in the criminal laws, and declaring null all
indictments drawn up on account of such acts. CJ. Taine, "Les origines
de la France contemporaine." The Revolution. Vol. II, pp. 184, 251,
255, and 329.

427

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

way of the safety of person and property ; they are, in other
words, to give to the police and the courts of judicature all possible
power of action and elasticity, and this you can only accomplish
by simplifying and classifying in a clear and methodical order the
innumerable regulations proper for the guidance of magistrates
in the search for and the repression of offenses. There is no
worse state than- that of a government whose magistrates do not
know, or are liable to know only imperfectly, what their duties
are ; but, that is the position in which our public functionaries
charged with the repression of offenses find themselves, owing
to the multitude and confusion of our criminal laws. That ob-
stacle, however, you can very easily remove. All that is required
is to give the nation a sufficient Code of Offenses and Punishments,
and it is the draft of such a Code which we now offer for your
inspection. Begun eighteen months ago, in pursuance of the
Decree which ordered the classification and recasting of the laws
promulgated by three representative assemblies, this draft has
required much research, long study, laborious work, and it is
not yet as complete as its title would seem to indicate." ^

The Code of Brumaire, year IV, was really the work of Merlin,
a prodigious task for one man. And it exhibits a character in
strict conformity with its origin.. It would be diflScult to find
a composition with parts forming a more harmonious whole. We
feel that the backing and filling of parliamentary commissions has
had no share in this, and that the brain of a capable jurisconsult
is responsible for this comprehensive law. No law could be mose
punctilious and minute ; it increases the safeguards of the defense,
and traces step by step the path which ought to be followed ; but
at the same time it unconscionably multiplies the protecting for-
malities, so that the magistrate can make no progress in the midst
of nullities, ready to bar his way. No law has ever regulated
more logically the questions for the jury, and that part of the
Code of Brumaire is no less ingenious than the delicate and learned
composition of the Roman Formulae ; but the jurors, still more
than the magistrate we have mentioned, are bound to find them-
selves at a loss before this over-learned apparatus, before these
really complicated simplifications.^ We know that this theoretical

. * Sitting of 30th Vend^miaire (Journal des D^bats, No. 1124, pp.
458-459).

* See Arts. 373-379. This is, as we know, the system of specific issues
carried to extremes. In reality, the Code of Brumaire made little innoviv-
tion on this point. As elsewhere, the precepts included by the constitu-
ents in their Instruction as to the jury of 21st October, 1791, were incor-

428

Title I, Ch. II] THE CODES OF the intermediary period [§ 3

masterpiece was found to be exceedingly defective in practice;
this admirable machinery had been conceived without taking
the inevitable friction into account. But it is not from that point
of view we would study the Code of Brumaire ; we must, above
all, find out if it absolutely continues the tendency of the Law of
1791, discarding to the same extent the rules of the old French law.
There was no change in the broad features ; but important altera-
tions were made in the details. Some of the excessive principles
affirmed in the Law of 1791 were somewhat palliated, and, upon
certain points, a partial return to ancient tradition was noticeable.
We find one distinction in the introductory articles of the Code
of Brumaire, a fundamental axiom of the ancient law, abolished
by the Law of 1791, the distinction of the public action from the
civil action. — "Art. 5: The object of the public action is to
punish injuries to social order. It is essentially a function of the
people. It is exercised in their name by functionaries appointed
for that purpose. — Art. 6 : The object of the civil action is repara-
tion for the damage caused by the offense. It belongs to those
who have suffered the damage. — Art. 8 : The civil action may
be prosecuted at the same time and before the same judges as the
public action, or separately." These are, almost verbatim. Arti-
cles 1 and 3 of our Code of Criminal Examination, but the same
thing was said under the rule of the Ordinance, and in the " Idfe
de la justice criminelle," for example, with which Jousse prefaces
his Commentary, we find the distinction expressed in identical
terms.^ From that time, as a matter of fact, the popular accusa-
tion, instituted by the Law of 1791, disappeared. The rights of
private individuals in the prosecution are, no doubt, still very
important. The civic denunciation remains in the Code of Bru-
maire with all its eflfectiveness (Arts. 87-93). The denunciators
and the complainants no doubt still participate in the drawing up
of the indictment (Arts. 224-227).^ But we know that now the
private party acted merely for the purpose of obtaining damages
(Art. 430) ; this leading principle was clearly laid down, that
the action for penal satisfaction belongs only to the people and

porated in that law. We pass over the details, which are to be found in all
the treatises upon criminal procedure.

* Page xxiii : "In our practice two classes of persons concur in the pun-
ishment of crimes : First, the private prosecutor, who claims reparation
for the trespass committed against him, and his damages ; Second, the
public prosecutor, who prosecutes the punishment of the crime and the
sentence to the punishment it merits."

'It appears, however, as we shall state later on, that the private prose-
cutor can no longer directly put the jury of accusation in action ; he must
address himself to the director of the jury.

429

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

the functionaries chosen by them, a principle which, still obscure in
application, is subsequently to bear fruit ; it contains the germs
of the reconstitution of the public prosecutor.

The Code of Brumaire retains the officers of judicial police
instituted in 1791, the justices of the peace and the officers of gen-
darmery ; but it adds to the list the police commissaries and the
wardens of fields and forests. For the first time, the directors of
the jury, who, down to that time, were merely examining magis-
trates in the second degree, could, in certain cases, prosecute crimes
and take cognizance directly (Arts. 21, 140, and 142). The law
established a certain hierarchy among the police commissaries
and the wardens (Arts. 2, 5-47). They still confused in their
hands the prosecution and the examination ; they acted " either
upon an official denunciation, or upon a civic denunciation, or a
complaint, or officially." The denunciator who signed his civic
denunciation and affirmed that it was not dictated by any personal
interest, thereby compelled even the police officer to issue a war-
rant of production (Art. 90), but he could not directly put the grand
jury in action. As for the complaint, it obliged the justice of
the peace to hear the witnesses produced, but that was all. This
magistrate could refuse to proceed further. In case of refusal,
the complainant could no longer, as formerly, move the grand jury-
to action. He could only appeal to the director of the jury (Arts.
98 and 147). This provision, again, recalled a principle of ancient
law, namely, that the judge is not bound by the complaint.

The chief officer of judicial police was always the justice of the
peace. He performed the most important part of the preliminary
examination ; for the results at which he arrived were subsequently
obligatory on the director of the jury.^ The Law of 1791 was
exceedingly brief regarding this examination ; the Code of Offenses
and Punishments, on the contrar^^ goes very fully into details.
Articles 102 to 131, devoted to this subject, are grouped under the
headings of " official reports,'* of " hearing of witnesses," and of
** documents of conviction." Many of them were subsequently to
pass, with slight alterations, into tlie Code of Criminal Examina-
tion. The rules as to the official reports and the hearing of wit-
nesses were a strangely perfected imitation of Titles IV, V, and VI

' Art. 242 : ** The director of the jury has no right to investigate whether,
in a proceeding brought by an officer of the judicial police, relative to an
offense entailing, by its nature, corporal or degrading punishment, the
circumstances or the proofs are or are not serious enough to determine
upon a prosecution ; and he cannot, on that pretext, refuse to draw up
the indictment."

430

Title I, Ch. II] THE CODES OF THE INTERMEDIARY PERIOD [§ 3

of the Ordinance of 1670. The testimony of the witnesses was,
as fonnerly, reduced to writing on a separate cahier. The wit-
nesses were heard separately and apart, but the new law ordained
that, if the accused was already under arrest, the deposition should
be taken in his presence (Art. 115) ; and if he was not arrested
until afterwards, the justice of the peace, before interrogating him,
should grant him a perusal of the depositions taken, without giv-
ing him a copy (Art. 116). These precautions already indicate
that writing is in future to play a more important r61e in the pro-
cedure than in the past.

The warrants were the subject of Articles 36 to 80. The
Law of 1791 recognized but two, that to bring the accused before
the court (" d'amener ''), and the writ of attachment ; it did not,
in repressive matters, allow of citation pure and simple, analogous
to the summonses of the civil procedure, showing itself, in that
respect, more severe than the Ordinance, which, along with the
decree of arrest, placed not only the personal citation, but the
decree of summons to be heard. The Code of Brumaire intro-
duced a new warrant, in the nature of a simple citation, that of
appearance; but its use was very restricted. The warrant for
production or to cause to appear (" d'amener ") was always the
first to be issued ; but when the accused had obeyed this warrant,
if the offense was punishable " by a fine above the equivalent of
three days' work" the justice of the peace "ordered the accused to
appear on a specified day before the director of the grand jury."

The case passed, as formerly, from the justice of the peace to
the director of the jury ; that magistrate, chosen by rotation every
three months from among the judges of the district court (Arts.
171, 211), at the same time held the position of president of the
police correctional court. He carried the examination that had
been commenced to its completion. He interrogated the accused
within twenty-four hours of his arrival at the departmental
prison, and caused a note of his replies to be made. He could also
hear new witnesses, but on this occasion the hearing did not take
place in the presence of the accused. The law provided that the
director of the jury " should take their statements secretly and
have them written down by the clerk of court " (Art. 225). Tliat
done, after having stated that the procedure was in order, he
issued an order (" de renvoi ") to remand the accused either to
the court of correctional police, or before the grand jury (Arts.
219, 220). All these ordinances must, on pain of nullity, be pre-
ceded by the conclusions of the commissary of the executive power,

431

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

and within three days an abstract of them must be delivered to
the public accuser. As we already know, the director of the jury
could not issue an order of " not found " based upon the insuffi-
ciency of the charges, when the process had been transmitted to
him by an officer of the judicial police.^ For the moment no re-
course against these orders was possible.

The director of the jury must also decide upon requests for
provisional liberty. According to the principles laid down by
the Law of 1791, the Code of Brumaire decided that setting at
liberty was a matter of right whenever the eventual punishment
was merely degrading or correctional, subject always to the bond
of a solvent bondsman, who must deposit 3000 livres (Art. 222).
If a crime involving afflictive punishment was concerned, pro-
visional hberty was never allowed. It was either a matter of
right or it was not. The powers of the director of the jury were
then completed and detailed by the Code of Offenses and Pun-
ishments. The examining judge, who, later on, was to be dis-
tinguished from the director of the jury, was already designated.
Some features of the new plan are borrowed from the old law ; the
hearing of witnesses secretly, for example, and the conclusions of
the commissary of the government, prior to the orders.

After the order " de renvoi," sending the accused before the
grand jury, the director of the jury drew up the indictment, the
private party participating under the same conditions as before
(Arts. 226-230) ; and he immediately communicated it to the com-
missary of the executive power, who put his " visa " on it (Art.
230). The procedure before the grand jury, as set out in the Code,
was not altered. The director of the jury explained to the jurors
their duties, and read to them a long instruction, the text of which
has passed into the Code of Criminal Examination. Then the
commissary of the executive power read the documents of the
procedure, with the exception of the depositions and the interroga-
tions ; the witnesses and the party complainant were heard.

If the jury decided that there were groimds for prosecution,
the director issued an order of arrest against the accused (unless
he had been admitted to bail ^ ), by virtue of which he was conducted

' No doubt he could decide that there was no ^ound of prosecution,
when he was invoked by the party complainant, in appealing from the
refusal to act opposed by the justice of tne peace (Art. 98), or when, by
exception, he had been able spontaneously to begin the prosecution.

^ In this case, the director issued an order enjoining the accused to pre-
sent himself before the criminal court at all the steps of the proceedings,
and to remain in the place where the court sits. (Art. 257.) The ar-
raignment did not terminate the provisional freedom.

432

Title I, Ch. II] THE CODES OF THE INTERMEDIARY PERIOD [§ 3

to the court-house. There he was notified of the order of arrest
and the indictment (Art. 259). From that time the action was
carried on before the criminal court. There was little change in
the composition of the criminal court. *^ It is composed of a
president, a public accuser, four judges taken from the civil court,
the commissary of the executive power, attached to the same tri-
bunal, a deputy specially appointed for him by the executive di-
rectory for service in the criminal court, and a clerk of court *'
(Art. 226). The public accuser did not intervene, as in the past,
until after the arraignment (Art. 278) ; although he had the super-
intendence of the various officers of the judicial police, he did not
have the direct prosecution (Art. 283). However, he could,
henceforth, receive denunciations and complaints, not only from
the various authorities, but also from private citizens (Art. 281) :
"he transmits them to the officers of judicial police and sees that
they are followed." Was this a survival of the system in which
the king's procurator was specially charged to receive the denun-
ciations? The commissary of the executive power still retained
his other fimction of public prosecutor ; he made the requisitions
by virtue of the law (Art. 293).

The president of the criminal court interrogated the accused
within twenty-four hours after his arrival at the court-house, and
the official report of the interrogation had to be ** added to the
documents " (Art. 315). The public accuser, the private party,
and the accused were entitled to a hearing of new witnesses before
him. It was only then, contrary to the Law of 1791, that the regu-
larity of the proceedings was solemnly verified. The commissary
wrote upon the indictment the words, " the law authorizes *' or
" the law forbids," and it was the president's duty to assemble
the court within twenty-four hours " to decide in court upon the
legality or illegality either of the warrant of arrest, or the exam-
ination " (Art. 326). If a nullity was discovered, the court
ordered matters to be taken up anew at the point of the earliest
null document.

The Code of Brumaire dealt minutely and at length with the
proceedings before the trial jury. It was the development of
institutions unknown to the old law, and it gradually became pre-
cise and regularized, without borrowing anything from a legal
system which had never had a jury. What place did the Code
make for the written procedure in this final stage of the action?
The Law of 1791 had pushed to an extreme the fear of seeing writ-
ing insinuate itself into the procedure by jurors. While main-

433

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt IIT

taining firmly the principle of orcdityf the new law was less exclu-'
sive. Not only had the preparatory and written examination
increased in importance; but a place was made in the trial for
the production of these writings. Until then these documents
had only been conmiunicated to the public accuser, who alone
gathered information from them ; henceforth, they are communi-
cated to the accused, who, by their means, with the aid of his
counsel, can bring together the elements of his defense ; a plan
of defense was as possible as a plan of attack. The texts are pre-
cise. Article 319 says, speaking of the depositions taken by the
president of the criminal court : " They shall be conmiunicated
to the public accuser and to the accused on pain of nullity of all
subsequent proceedings." And Article 320 adds : " The accused,
after his interrogation, receives in the same way, and under the
same sanction, a copy of the other documents of the procedure.
This copy is delivered to him gratis by the clerk of court." Some
of the depositions were already known to the accused; those
taken by the justice of the peace had been read to him ; but he
was ignorant of the contexts of those collected secretly by the
director of the jury. This written procedure was, to a certain
extent, to figure in the trial. Articles 365 and 366 state in effect :
" Article 365 ; No written deposition of witnesses not present in
court can be read to the jurors." " Article 366 ; As to written
statements which the witnesses present have made, and written
notes of the interrogations to which the accused has been subjected
before the police officer, the director of the jury, and the president
of the criminal court, nothing but what is necessary to bring to
the notice, either of the witnesses or of the accused, the variations,
contradictions, and differences which may be found between what
they say before the jurors and what they said previously, can be
read in the course of the trials." Finally, in pursuance of Article
382, the president puts before the jurors " all the documents of
the action, with the exception of written statements of the wit-
nesses and written interrogations of the accused." Such was the
combination by which Merlin had thought to utilize the prelimi-
nary examination in the oral procedure. It was a wise compro-
mise, and it has turned out that these rules have been almost
definitive ; these provisions, somewhat modified, have passed into
the Code of Criminal Examination.

The doctrine of moral proofs was maintained with more firmness
than ever. A long instruction, designed chiefly to bring them to
the notice of the jurors, was required to be read to them by the

434

Title I, Ch. II] THE CODES OF THE INTERMEDIARY PERIOD [§ 3

president and posted conspicuously in the jury room. The method
of composingthe trial jury, thesystem of challenges (Arts. 502-512),
the majority by which the verdict should be rendered, and the
mode in which the jurors gave their opinion, and finally the appeal
to quash, remained very neariy as they were in the Law of 1791.

In the procedure for contumacy, the Code of Offenses and
Punishments, like the Law of 1791, to a certain extent reflected
the provisions of the old law. Although there were jurors, the
witnesses were not heard; their written depositions were read
(Art. 471). The appearance of the condemned within the pre-
scriptive period of twenty years ipso facto extinguished the judg-
ment, and the proceedings went on in common form, subject at
that time to the admission of an exception to the principle pro-
hibiting the reading to the jury of the depositions of absent wit-
nesses. " Article 477. The written depositions of witnesses who
have died during his (the contumax's) absence shall be read to
the jurors, who will give them reasonable consideration, always
bearing in mind that the written proofs do not alone control their
decisions, but are to be used only informatively."

The court of correctional police was composed, according to the
Code of Brumaire, " of the director of the jury, who presided,
and two justices of the peace." It took oflSce either by virtue
of the order of " renvoi " of the director of the jury after prelim-
nary examination, or of the direct citation of the injured party,
who thus acquired a new right. This citation must' invariably
be previously indorsed (" vis6 ") by the director of the jury, who
had to assure himself that he had before him a correctional offense
(Arts. 180-182). Appeal, always possible, was taken to the crimi-
nal court (Art. 198). The right of appeal belonged to the con-
demned, the civil party, the commissary of the executive power,
and the public accuser of the department. The majority of these
rules, as well as those settling the procedure either in the first
instance, or on appeal, have passed into the Code of Criminal
Examination. The municipal police court was composed of the
justice of the peace and two assessors (Art. 151) ; the prosecution
took place either at the request of the commissary of the executive
power attached to the municipal commission, or at that of the
injured party. The examination always took place in open court ;
there was no appeal.

The Code of Offenses and Punishments had really made few
alterations in the rules laid down -by the Law of 1791. An un-
questionable tendency, however, existed in it to make the prelim-

435

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt

inary examination, secret and written, the important prelude to
the proceedings before the jury. Very soon a further step was
destined to be taken. France, wounded and weary, lost her in-
terest in the liberty for which she had suffered. By a \'iolent
reaction, she returned to the principle of authority. She ^n
turned her eyes towards the institutions of the ancient monarchy ;
and little was lacking to put the Ordinance of 1670, almost as it*
had been amended by the legislators of 1789, into its old place
among our laws.

436

Title I, Ch. Ill] the laws of the year ix

[§1

Chapter III
THE LAWS OF THE YEAR IX

i 1. Law of 7th Pluvidse, Year IX.
The Magistrates of Detective
Police. Reconstitution of the
Public Prosecutor. Changes
in the Examination.

§ 2. The Jury put to Trial : Political

Passion; Brigandage.
§3. Law of 18th Pluvidse, Year

IX. The Special Tribunals.

Revival of the "Pt^vdtal"

Courts.

§ 1. Law of 7th PluTiSse^ Year IX. The Magistrates of Detective
Police. Public Prosecutor Reconstituted. Changes in Exami-
nation. — Criminal procedure, as organized by the Code of Brumaire,
year IV, was destined very soon to undergo radical changes. In prac-
tice it had shown itself ineffectual for repression. This was partly
due to the enfeeblement of the prosecution and the preliminary
examination, but it was due principally to the environment in
which the institution of the jury did its work at the outset. Per-
verted by political passions, powerless to cope with the brigandage
which spread over a whole section of France, its destruction in
the terrible crisis which shook the country at that time was
assured. To the desire for progress succeeded an overwhelming
need of rest, and the difficulties of the present well-nigh gave the
victory to the past.

An early amendment of the rules of criminal procedure was
brought about by the Constitution of the 22d Frimaire, year
VIII. It combined the duties of the public accuser and those of
the commissary of the executive power attached to the criminal
court; and the functionary to disappear was he who took his
title by election.* The old oflSce of public prosecutor appeared
in its entirety at the hearings in the criminal courts ; but it was
of more importance still to reconstitute it fundamentally, and
hand over to it the prosecution ; and that was the work of the
Law of 7th Pluvifise of the year IX.

This Law did more. It at the same time reorganized the pre-
liminary examination, following a type which bore a strong re-

> Const, of 22d Frimaire, Art. 63. The Law of 27th Ventdse, Art. 35,
allowed of the appointment of a deputy to this commissioner, in those
towns where the government thought it beneficial.

437

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

semblance to the old procedure, and materially altered the pro-
ceedings before the grand jury. " The dominant idea of the bill,"
said Thiess^, chairman for the bill in the Tribunate, " is the idea
of a public prosecuting party and an examining judge, with a
distinct distribution of their duties/' ^ It created in each arron-
dissement deputy governmental commissaries, true state's at-
torneys, appointed by the First Consul and revocable at will
(Art. 24) ; they were deputies of the commissary, in the same sense
that the king's attorneys had formerly been deputies of the at-
torney-general.

They were charged not only with the search for, but mth the
prosecution of, all correctional police offenses and all crimes (Art.
1). It was, henceforth, their duty to receive denunciations and
even complaints (Art. 3). The justices of the peace and oflScers
of the county police still retained the right to receive them also,
but these officials were placed under deputies' orders, and so be-
came mere assistants of the public prosecutor (Art. 4) ; a role they
have retained ever since.

The power of arrest was the subject of new rules. The justices
of the peace and officers of the county police could have the ac-
cused seized in three cases : capture in the act, accusation by public
rumor (Art. 4), and in the case of an offense entailing afflictive
punishment, provided there were sufficient presumptions.^ But
the agency ordering the arrest was bound to have the accused
brought before the deputy with the least possible delay. The
deputy then issued a warrant of conmiitment (" de depot ")
against the accused and had him imprisoned in the depart-
mental prison (Art. 9). He had also received the complaints
and official reports, collected or drawn up by his assistants, the
police officers.

This was a new creation, which certainly gave the public prose-
cutor a power he never had before. The barrier said to have been
erected between the examination and the prosecution was lowered
for him. All the documents found their way into his hands and
he ordered the detention pending trial. But, as a counterbal-

» Sitting of the Tribunate of 27th Ventdse, year IX ("Archives par-
lementaires de 1800 k 1860," vol. II, Part I, p. 94); cf, ** Expose des
motifs": "The present bill constitutes a true public prosecutor, who,
raised above all local influences and considerations, can display all the
zeal and activity demanded by his duties. . . . The division we have
made into what concerns the judgment and what concerns the prosecution
extends to all parts of the criminal procedure, and presents a regular and
complete double system of hierarchy."

'In the first two cases, the mayors, !*adjoints," and commissioners of
pohce have the same right.

438

Title I, Ch. Ill] THE LAWS OF THE YEAR IX [§ 1

ance to this power, the law limited its duration. Within twenty-
four hours after the issue of the warrant of commitment, it was
his duty to advise the director of the jury, who was bound to " take
cognizance of the matter and to proceed therein with the least
possible delay '* (Art. 8). From that time the examination pro-
ceeded nearly in accordance with the principles of the ancient
Pkactice. The public prosecutor and the examining magis-
trate acted in concert, the former charging, the latter deciding
and examining (Arts. 12 and 13). The witnesses were, as formerly,
produced by the public prosecutor and the civil party .^ A most
important fact was the reappearance of the secret procedure.
The witnesses must be heard " separately and out of the presence
of the accused." This was overturning the rules in force since
1789. The rules as to the interrogation were changed at the same
time. The judge did not, at the outset, give the accused any
information as to the charges brought against him. Something
still remained, however, of the liberal spirit of the prior laws.
After the interrogation, the director of the jury was obliged to
grant to the accused a perusal of the depositions, and the latter
could insist upon being interrogated anew (Art. 10).

On the conclusion of the examination, it was communicated
by the director of the jury to the deputy, who must, within three
days, lodge his motions in writing ; ^ then the examining magis-
trate issued an order reminiscent of the old ruling to the "extraordi-
nary" " action. " According to the various cases, and considering
the nature and weight of the proofs,*' he set the accused at liberty
(no grounds), or remanded him to the police court, or the police
correctional court, or the grand jur^'' (Art. 15). In case of an order
of remand, he granted provisional liberty, if that was proper
imder the old rules, or regularized the detention pending trial
by means of the writ of attachment.

The decision of the examining magistrate was subject to revision,
however, at the instance of the public prosecutor. Whenever
the order was not in conformity with the requisitions of the deputy,
the matter was necessarily taken before the district court, which
decided it after hearing the deputy and the director of the jury
(Art. 16). The deputy could thereupon, if he thought proper,
send the documents to the commissary attached to the criminal
court, who put that court into action in the third instance (Arts.

* Art. 9 : "The witnesses pointed out by the deputy and by the party
eomplainant shall be summoned by citation of the director of the jury. \
CJ. '^Ordonnance de 1670," Tit. V. Art. 1.

* C/. "Ordonnance de 1670," Tit. XVI, Art. 17 et aeq.

439

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

17, 18).^ In the last place, the commissary could appeal to the
Court of Cassation against the decision of the criminal court. No
right of appeal on the part of the accused was any^^here men-
tioned.

The new Law, a complete Code of preliminary examination,
radically altered the procedure before the grand jury, substituting
the written procedure for the oral procedure. " The indictment,"
said Article 20, " is dra\^Ti up by the deputy commissary attached
to the criminal court ; the director of the jury causes it, as well
as all the documents relative to it, to be read to the jury in his
presence." — " The party complainant,'* adds Article 21, " shall
not be heard before the grand jury, and the ^^dtnesses shall no
longer be summoned before it ; their depositions shall be submitted
to it with the interrogations and all the documents in support of
the indictment."

It is apparent that the Law of 7th Pluvidse marked a very
distinct return to the past. It restored all the secret, preliminary
examination dropped by the Laws of 1791 and of the year IV. The
reforms it brought about related to the following points: 1st,
the creation of a public prosecutor and an examining judge ; 2d,
the introduction of the warrant of commitment ; 3d, the hearing
of witnesses out of the presence of the accused ; 4th, the substitution
of written proofs for oral proceedings before the grand jury. It
is interesting to see how each of these features was praised in the
debate before the Tribunate.

The creation of a public prosecutor met with general approval.
Costg,^ Boutteville,3 Goupil-Prefeln,^ Challan,^ Caillemer,* Chabot
de TAUier,^ and Gillet,® successively upheld its legality and its
necessity. The system preferred by the men of 1791 was not,
however, abandoned without a contest. It found a warm sup-
porter in Ganilh. He recalled the memorable debate of 1790:
he invoked the shades of the famous orators taking part in it,
w^hose fame had grown since that time, and several of whom had
added the glory of martyrdom to their reputation for wisdom.
Then, reviving the memories of the Terror, he pointed out the
dangers of a public prosecution intrusted to the governing power .^

* He could appeal "not only on the ground of jurisdictional questions
or the erroneous application of the law to the nature of the offense, but also
on the ground of flaws in the examination or the procedure " (Art. 18).

* 1 Pluvidse, "Arch, pari.," loc. ciL, p. 119.

» 2 Pluvidse, "Arch, pari.," p. 141. * 3 Pluvidse, "Arch, pari.," p. 145.

* 1 Pluvidse, "Arch, pari.," p. 123. « 2 Pluvidse, "Arch, pari.," p. 139.
' 3 Pluvidse. "Arch, pari.," p. 149. « 3 Pluvidse, ibid.

* Sitting of 2 Pluvidse, "Arch, pari.," pp. 133, 134.

440

Title I, Ch. Ill] THE LAWS OF THE YEAR IX [§ 1

But answers to this were not lacking. The best reason given was
the necessity for strengthening the prosecution. " France has had
the fatal experience of inseparable disorders, first, the absence of
all government, and then a social organization too feeble to escape
extinction or to avoid usurpation." ^ Chabot, in refutation of the
subtle theories borrowed from the Constituent Assembly, remarked
that the organization then established had totally disappeared.
" Is not the government, as it is constituted in France, in itself
the sole executive power? That being so, the execution of the
laws belongs to the government alone, and to it belongs the duty
of finding out and causing the prosecution of violations of these
laws." ^ Finally, Gillet points out with much plausibility the
dangers of the popular accusation which it was desired to intro-
duce into our law. "We fear, in future, to confide the prose-
cution of offenses and its instigation to three hundred function-
aries, yet we are not alarmed at the thought that this power of
instigation at present exists in the hands of three millions of people."
It is notable that two speakers attributed the reconstitution of
the public prosecutor to Montesquieu's influence. The authority
of the author of the " Spirit of the Laws," weakened during the
troubled times, was greater than ever.^

The warrant of commitment met with the most vigorous op-
position. It was a new creation, something hitherto unknown.
Several speakers had nothing for it but distrust, and truly it should
be acknowledged that their fears were well founded, if we think
of the good luck experienced by this youngest bom of the warrants
of criminal procedure. An exact definition by the law of the forms
of this new warrant at least was demanded.^ Gillet, it is true,
very ably defended the bill: "The warrant of commitment,"
he says, " is a new term in the Criminal Code, but the thing itself
is no novelty. The preliminary examination, between the time
of the seizure of the accused and that of the issuance of the writ

* GoupH-Prefelrif 3 Pluvidse, "Arch, pari.," p. 145.

* Sitting of 3 Pluvidse, p. 146 ; cf. Uoupil-Prefeln, p. 145 : "I ask of
what use would the power of bringing the accusation before the trial
jury be to the government if the research and the prosecution before the
judges charged with the examination devolved upon functionaries inde-
pendent of it.*'

» CaiUemer: sitting of 2 Pluvidse (p. 138). Gillet; sitting of 3 Plu-
viOse. It is curious to notice that Chabot claims for the judges the right of
taking action directly, as formerly : '*! have made a second general obser-
vation upon the bill as a whole to the effect that the bill does not leave to
the judiciary authorities the right of research and prosecution of offenses
in cases where the government officers neglect or refuse to make researches
or prosecutions'' (p. 148).

* Costs, 1 Pluvidse, p. 120 ; Chabot, 3 Pluvidse, p. 148.

441

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

of attachment, is not always so simple and easy that it can be
carried through immediately and in a breath. . . . Well, during
all this interval, it would be- worse than imprudent to leave the
accused at liberty . . . the same police oflScer, therefore, exercises
three totally distinct powers upon the person of the accused : 1st,
he issues the warrant to bring the accused before the Court ; 2d,
he orders the accused to be provisionally detained during the course
of the examination in a place pointed out by him, and that is
what may be called the warrant of commitment; 3d, he issues
the writ of attachment. These officers being scattered through-
out a multiplicity of communes possessing no departmental pris-
ons, are often under the necessity of lodging the accused in a guard-
house, an inn, often in the old seigniorial prison, and sometimes even
in the village belfry. . . . According to Article 7, the accused could
no longer be lodged anywhere except in a departmental prison,
and, looked at in this light, the warrant of commitment put in
the power of the public prosecutor is, to say no more, already
much less irregular and alarming than those orders for provisional
detention emanating from justices of the peace." ^ So that the
warrant of commitment, in the opinion of the legislators, was but
a means of regularizing a practice, till then illegal, but unavoid-
able. It was, in all cases, an essentially provisional and tempo-
rary expedient, and it is not difficult to understand why the law,
in putting it in the hands of the public prosecutor, did not require
that, like the writ of attachment, it should state the cause of the
arrest.^

The secrecy introduced into the preliminary examination was
strenuously contested. It was felt that this was a serious measure,
and, we are in fact, still under the threat of the decision then
made. Ganilh was its most energetic opponent. He showed,
very correctly, that not only the rules of the Codes of 1791 and
of the year IV, but also those of the Law of 1789, were, in this re-
spect, abandoned. " It is proposed to you to-day, not only to
have the depositions written, but to have them taken secretly,
even when the accused is under arrest and could be present. It
is proposed to you to reestablish a part of the secret procedure,
that odious procedure, the suppression of which was demanded
by the Cahiers of all the bailiwicks, and which, before the institu-
tion of the jury, necessitated the adjunction of two notables in

J Sitting of 3 Pluvidse, pp. 156, 157.

* According to Challan (sitting of 1st Pluvidse, p. 124), this formality
ought, however, to be observed.

442

TiTLB I, Ch. Ill] THE LAWS OF THE YEAR IX [§ 1

every information. It is proposed to you to make this occult
and treacherous procedure the foundation of the grand jury's
decision, and to infect our criminal procedure, one of the greatest
blessings of the Revolution, with one of the greatest defects of
the criminal procedure under the Monarchy I Such an impure
mixture cannot be made; an insuperable obstacle interposes
itself. There can be no alliance between the oppressive forms of
the Monarchy and the protective forms of the Republic. They
are naturally repugnant to each other, and cannot concur in bring-
ing about the same end.'* ^ Remarkable words these. It was
clearly to the system of the Ordinance that a return was here
made. One important point of difference existed, the communi-
cation of the charges to the accused after his interrogations ; but
that difference was destined to disappear in the course of a few
years. It is perfectly certain that an effort was made to attain
a composite system, which would borrow from the Ordinance the
preliminary examination, and from the laws of the intermediary
period the procedure before the jurisdictions of judgment. This
mixture was possible, whatever Ganilh might say, as experience
has thoroughly proved.

Chairman Thiess6 vindicated the new provision as follows:
" The existing method is no doubt more liberal, but does it lead
more certainly to the manifestation of the truth ? Such is not the
opinion of your commission. The situation of the witness in the
presence of the accused is, at first, painful: and calmness and
confidence are necessary to him to testify to what he knows,
which should be done confidentially to the magistrate ; the moment
of the trial proper will come later. The witnesses and the accused wil 1
then enter into all necessary explanations, either for the conviction
of the crime, or for the manifestation of innocence. Till that
time the statements, like the interrogations, can be collected by
the magistrate. Innocence can lose nothing thereby, and truth
may be the gainer. The same remarks ought to apply to article
10, which requires the accused to answer before being aware of the
charges, and the examining magistrate, in his turn, not only to
make him acquainted with them after the interrogation, but also
to receive all the answers which he wishes to make afterwards
to the charges. The first interrogation should thus establish the
truth, the second correct errors arising from surprise." ^ Gillet
presented analogous observations. " It most frequently happens

1 Sitting of 2 Pluvidse, p. 137.
> Sitting of 24 Ventdse, p. 94.

443

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

that the accused is not present when the witnesses testify before
the police officer, for the good reason that the information ought
to precede the warrant of production, and that when the witnesses
arrive the accused has not yet appeared. If, however, the ac-
cused does happen to be present, and if, from that early moment,
when the production of the charges is begun, he has his eyes and
ears upon the witnesses who are developing them, the truth thereby
is apt to be greatly distorted. The witness is intimidated, and
explains himself with less confidence and frankness. . . . Un-
truthful replies are easily adjusted in proportion to the necessity
of each charge as it crops up. . . . The (new) path is clear since,
in following it, the accused has always and necessarily cognizance
of the charges before the warrant of arrest, and every facility is
allowed him to refute them.*' * After 1789, the point of view
changed ; the interests of the prosecution were given precedence
over the rights of the defense.

Of all the changes introduced by the new law, the most strenu-
ously contested was that substituting the written procedure for
the oral procedure before the grand jury. That may, at first
sight, appear surprising, for it appears to us to-day to be the least
serious. Since that time, we have expunged the grand jury from
our laws, and nobody asks for its reestablishment. Even in Eng-
land, the country of its origin, it is retained more from force of
tradition than from public approbation. But this opposition is
explicable, if we consider that this was a first blow struck at the
system of proofs established in 1791. "Without the oral testi-
mony of witnesses," said Chabot, " and with written documents,
there is, in reality, no grand jury. We may dare to assert that
written proofs may be sufficient for the jurors, but that is evidently
to recommence the fight between legal proofs and moral proofs.
It is to raise the question whether the procedure by jurors is pref-
erable to the Ordinance of 1670, whether, in short, the sublime
institution of the jury ought to be preserved or destroyed." And
the same speaker invoked his personal experience as a magistrate.
" As a commissary under a director of the jury, I have been pres-
ent for three years at assemblies of grand juries, and I can testify
that I have often Centered without having been able to form a
definite opinion upon the merits of the case, and if it had been
necessary for me, upon the mere perusal of the documents, to fulfil
the duties of a juror, I would have experienced grievous doubts.
I rarely failed to leave these assemblies better informed on

1 Sitting of 3 Pluvidse, p. 158.
444

• • •

Title I, Ch. Ill] THE LAWS OP THE YEAR IX [§ 1

the main points of the case than I was before." ^ — " Visit," said
another speaker, " all the nations possessing trial by jury, that is,
all free coimtries (for liberty and that sacred institution invari-
ably go hand in hand), ask the English, the Americans, go as far
back as the time when the Romans still had jurors, and ask them
all what they think of a written deposition." ^

One consideration, however, was of great weight in favor of
the bill, namely, that the accused was not present before the grand
jury. To suppress the oral testimony was to put the parties on
a more equal footing. This was brought forward by Challan,'
Caillemer,^ and Gillet, who added other observations of consider-
able practical value. " It is inadvisable that the testimony against
him (the accused) should appear alive, as has been said, with
all the sensations that render them expressive, while that in his
favor only appears expressed in writing. ... An eternal and in-
curable human malady urges the average man to wish to extend
his power beyond its just limits ; so that it often happens that, in
spite of every care of the magistrate who instructs the jurors, the
latter are tempted by the ignorance of their inner consciousness
to substitute themselves in place of the trial jurors, and that
they, in effect, deliberate with the same reasoning, and on the
same grounds, as if they had to pronounce the judgment. The
method proposed leaves them one illusion less to cause them to
make mistakes. . . . The function of witnesses in criminal matters
has become, in the present state of things, a very onerous burden,
since it requires at least three sessions and as many as five if the
indictment is annulled ... we ought to congratulate ourselves
on having, by suppressing the institution, at the same time relieved
the public treasury and the citizens." ^

In the Legislative Body the same considerations were debated
by the speakers of the government and of the Tribunate. The
Law was there adopted by 226 white balls against 48 black.
We have dwelt at some length on this Law of the 7th Pluvidse ;
but, we believe, not to an improper excess. It is, in fact, very
important, inasmuch as it forms the natural and necessary transi-
tion between the Codes of the intermediary period and the Code
of Criminal Examination. It marks the point of time when the
ordinary current of ideas changes its course. Along with it re-
enters into our legislation some of the principles registered in the

» Sitting of 3 Pluvidse, p. 152.

* BotUleville; sitting of 2 Pluvidse, p. 145. • 1 Pluvidse, p. 125.

* 2 Pluvidse, p. 140. » Sitting of 3 Pluvidse, p. 159.

445

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

Ordinance of 1670 and rejected by the Revolution. This element,
thus introduced anew, was to coalesce with the rules on oral and
public proceedings forever sanctioned before the trial jurisdictions ;
and that was to constitute the modem law.

The year IX witnessed the appearance of another Law, which,
considering that it contained but transitor}^ measures, was of no
less importance. It responded to the need for security which
at that time took precedence of all other needs, and it was, in
great part, borrowed from the traditions of the old law. In con-
cluding the debate on the Law of 7th Pluviose before the Tribu-
nate, Thiesse made a distinct allusion to this other bill ; he declared
that " it is in consequence of having neglected to give all the neces-
sary expedition to the search for and the prosecution of crimes,
that we often have recourse to extraordinary institutions, always
exceedingly dangerous."

§ 2. The Jury Put to Trial : Political Passion ; Brigandaffe. —
Political passion, whose terrible current at this time seized upon
ever}i;hing, had swept away the jury in its flood. This was proved
in the clearest way in the debate, in the year IX, on the bill as to
special tribunals. " The jury," said Jean Debry, *' belonged to
the dominant faction, from which its judgments religiously took
their color. It was not a case of facts, but of the opinions of per-
sons who spoke from a misguided conscience. It would probably
have taken a long time to give it that character of impartiality
which alone inspires respect and reassures innocence." ^ — " Till
now," said Chazal, " all and sundry have been taken as jurors ;
the function has been permeated by revolutionary passion. Till
now the judgment by jury has been neither the judgment of God,
nor that of the people, nor has it been the 'palladium' of liberty.
It has usually been nothing but the judgment of a collection of
ignoramuses, and during all the time of factions we have been wit-
nesses of the scandalous iniquity of the shameless acquittal by
the factionists of their accomplices, though men of the most ne-
farious character, and the remorseless destruction of their ene-'
mies." ^ — " The temporary juries of the year II were no less fertile
in assassination than the permanent jury of the revolutionary
tribunal. The Septembrist jury, which acquitted its accomplices,
was lawfully constituted. The juries of the reaction, under whose
protection the repubUcans were for long slaughtered with impunity,
were lawfully constituted. The juries of the departments of the

1 Sitting of 5 Pluvidse, p. 190.

* Sitting of 6 Pluviftse, p. 204. C/. 13 Pluvidse, p. 277.

446

Title I, Ch. Ill] THE LAWS OF THE YEAR IX [§ 2

West and the South, which acquit all guilty persons, even when
taken in the act, are also lawfully constituted. . . . Immediately
the prosecution and the defense assume a political character and
address themselves to the passions, the jury becomes terrible to
innocence, and the safeguard of robbers/' ^ This woful influence
of political passion upon the jury was proved anew in the State's
Council of the Empire, at the time of the debate on the Code of
Criminal Examination;^ but it would not have been sufficient,
in itself, to create a permanent state of insecurity.^ The jury
would very soon have recovered its proper position if it had not
had to struggle against a scourge which, from its very nature, it
was powerless to battle with : we refer to brigandage.

The original germs of this existed, and attained considerable
development, under the old monarchy. Recent works have shown
how miscreants, poachers, smugglers, and vagrants were in open
strife against social order ; ^ and, in regard to certain districts
at least, official documents of later date show that the mischief
was by no means of recent growth. Read what one of the com-
missioners, sent in the year IX by the First Consul to make a
general inquiry into the state of the South, says about that dis-
trict : " It would be unjust to ascribe to the Revolution all the
crimes committed in these unfortunate districts during the past
ten years. It can only be asserted that it found elements most
propitious to all )dnds of disorders, and that the various interregna
of governments and the absence or weakness of public authority
have allowed evils at other times scarcer and more circumscribed
to assume a more general and widespread character." ^ He spoke
with extraordinary accuracy. The destruction of the old organiza-
tion, the uncertainties and the weakness of the new authorities,
anarchy, fierce passions, all furnished an environment wonderfully
suitable for the development of these fatal germs. Erelong civil
war and foreign war did their share in furnishing new and terrible

* Birenger, 14 Pluvidse, p. 301.

« Sitting of 30 January, 1808 {Locr^, vol. XXIV, pp. 578-580). Sitting
of 8 Brumaire, year VII (Locri, vol. XXIV, p. 439. See also vol. XXV,
p. 580).

' "With us, since the Revolution, the jury has not quite come up to the
expectations conceived of it except in regard to the repression of ordinary
offenses, such as murder, theft, arson, etc. ; whenever these crimes present
themselves the jury become inexorable." DeZpterre, in the Tribunate,
7 Pluvidse, p. 216.

* Taine, **Les origines de la France contemporaine, " I. **The Old
R^me," p. 498 et seq,

'"Rapport de Fran^ais de Nantes, charge de Tinspection de la 8**
division militaire." — F. Rocquain^ "L'^tat de la France au 18 brumaire,"
p. 4.

447

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

recruits to the great army of brigandage. Where could deserters
find a better refuge ? And among those who took up arms in the
name of a political principle, how many were also tempted by the
hope of pillage, and, the civil war once at an end, continued to
carry on the campaign on their own account? "The origin of
this brigandage (in the Maritime Alps) is due," it was said, " to
the disbanding of several military bands called companies of Bar-
bets. The increase of brigandage since the union is attributable
to two causes : an increase in the number of travellers, and es-
pecially of Frenchmen going into Italy, and to the molestations
suffered by the inhabitants, either to their persons or their property,
at the hands of troops." ^ In Brittany, " besides the Chouan party,
there are brigands hardly distinguishable from them ; in both of
these bands are to be found Austrian deserters from their regi-
ments." ^ — ** Some leaders of the old Vendean rebels have put
themselves at the head of worthless characters of these depart-
ments, such as deserters, and artisans out of work, and plunder
the carriages upon the roads and in the forests. . . . These are
a remnant of the civil wars and internal broils ; the dregs of the
Revolution." ' In the middle districts, the causes of brigandage
are, according to Lacu^e, " the defective organization of houses
of correction, deserters, conscripts, the lack of police upon the
highroads and throughout the country, vagrancy, mendicity, and
the facility of carrying arms." * Thiers speaks of " that breed
of bandits formed from the dfibris of the armies and disbanded
soldiery of the civil wars," — " the Chouans and the Vendeans,
unemployed since the termination of the civil war, and who had
contracted tastes which the peace could not satisfy, ravaged the
highroads of Brittany, Normandy, and the outskirts of Paris;
refractory conscripts, and a number of soldiers from the army of
Liguria, whom misery had driven to desert, committed the same
acts of brigandage upon the roads of the Centre and the South." *
The great companies were threatening to re-form. Finally, dire
want went a long way to foster these disorders. " The distress
in these departments " (one of the- " missi " of the year IX is

*" Rapport de Fran^^s de Nantes." — F^ix Rocquain, **L*6tat de la
France," p. 14.

* ** Rapport de Maille-Marboise," of 13 Nivdse, year IX, upon the
state of the thirteenth military division. F. Rocqitainj op. ctt, p. 121.

' "Rapport de Fourcroy," of 13 Nivdse, year IX, upon the 12th mili-
tary division. — F. Rocquain, op. cit., p. 146.

* "Rapport sur la premiere division militaire." — F. Rocquaitit op. cit.,
p. 253.

» "Histoire du Consulat et de TEmpire," vol. II, p. 161.

448

Title I, Ch. Ill] THE LAWS OF THE TEAR IX [§ 2

speaking of Brittany) " is frightful ; the seamen are without employ-
ment or wages, the artisans and sailmakers have stopped work,-
for lack of openings, or because the excessive price of bread and
the scarcity of buckwheat C bl6 noir ') no longer permits the
employment of day-laborers. These causes, which have lasted
a long time, have afforded the bandit leaders a certain means of
maintaining the strength of their bands." ^

This scourge, always on the increase, called for exceptional
measures ; such emergencies, involving a struggle for life, are be-
yond the scope of the ordinary laws. First of all, the Law of 26th
Florfial, year V, inflicted capital punishment for the thefts struck
at by Articles 2 and 3 (Second part, Tit. II, § 2) of the Criminal
Code of 1791, when accompanied by one of the following circum-
stances : " 1st, If the culprits have gained admittance to the
house by force of arms ; 2d, If they have used their arms in the
house upon those they found there ; 3d, If the violence used against
those found in the house has left such traces as wounds, bums,
or bruises." This law had been called forth by the odious prac-
tices of the " chauffeurs," ^ as the executive Directory had explained
in urging this measure on 11th Frimaire of the year V : " Thieves,
distinguished by the name of * chauffeurs,' are scattered through-
out several departments and harass town and country. They
are not isolated malefactors . . . they are brigands mustered in
bands, organized under leadership, marching according to instruc-
tions, forming, in short, in the very heart of our social system, a
kind of confederated army, aiming at its elemental destruction." ^
Rousseau introduced the bill in the Council of the Elders, and
he had great difficulty in vindicating this severity of an evident
necessity. Muraire even secured an adjournment of the vote;
but the bill was passed on 26th Flor6al. It was, however, a totally
inadequate measure. Montesquieu's axiom that preventive effect ^
is produced, not by the severity, but by the certainty, of the pun-
ishment was to be verified once more. v.

Consider what magistrates the law appointed for the prosecu-
tion and trial of these bandits I Justices of the peace and jurors ;
timid functionaries and timorous citizens. The jury was no
match for brigandage ; that is a truth which Italy has recognized
in our own days. Let us quote some interesting testimony ex-
tracted from the reports and debates of the year IX. " The jus-

* *' Rapport de Barb^-Marbois." — Rocquain, op. cit., p. 122.

* [So called from their practice of applying fire to the soles of their
victims' feet to compel them to reveal their hidden treasures. — Trans.]

» "Journal des D^bats," No. 566.

449

5 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

tices of the peace of the South are execrable, and complaints are
■made in all four departments about the grand juries and trial
juries, destestable on account of their ignorance/' ^ — " Can you
conceal from yourselves that the subjection to the ordinary pro-
cedure of the brigands who incessantly attack public conveyances,
and murder soldiers and citizens, practically means the insurance
of their impunity, either because of the defects which still encumber
the institution of the jury, or of the effect of the terror inspired
by these wandering hordes ? " ^ — " You would call upon the juries,
the ordinary courts ? * Well, tribunes, visit these courts in several
departments of the Republic. Here you will see, on the one hand,
audacious crime-laden bandits, still dyed with the blood of their
victims, insulting the judges, threatening the witnesses, defying
the jury, and braving the scaffold. There you will find witnesses,
stupefied, silent, motiouless; further on, jurors more concerned
about the means of their safe return home than with the hearing
of insignificant actions, placed between the alternatives of acquit-
ting the culprits or delivering themselves over to the vengeance
of their accomplices. Let us pass into another department.
Here the jury is composed entirely of citizens shut up within the
walls of the town. It is impossible to assemble them in any other
section of the department. Jurors and witnesses alike much pre-
fer to allow themselves to be sentenced to pecuniary penalties,
to exposing themselves, upon the highways, to penalties much
more serious, those imposed by crime, not upon their purses only,
but also upon their lives. These are not the only results of the
existing state of affairs. The gendarmery have resigned in brigades,
because, after having fought against the brigands, risking their
lives in these actions, shed their blood, and fulfilled the expecta-
tions of their country, incapable juries have acquitted brigands
captured with arms in their hands." ^ On the 18th Frimaire of the
year IX, the minister of general police writes to the First Consul :
" Although the thefts from stage-coaches have not yet ceased, and
the pillage of the public funds continues, the fault cannot be im-
puted to the police department. The departmental prisons are
all filled with brigands, and hardly a single crime committed has
not been followed by the death or arrest of some of its perpetra-

^ F. Rocquain^ op, cit.j p. 25. "Rapport de Francis de Nantes."

* Trouvi, at the Tribunate, 7 Pluvidse, year IX, "Arch, parlement,"
vol. II, Part I, p. 130.

• Roujoux, at the Tribunate, 14 Pluvidse, "Arch, parlement," p. 300;
cf, Carretf 13 Pluvidse, p. 277; Garat, 13 Pluvidse, p. 296; Delpierre,
p. 216.

450

Title I, Ch. Ill] THE LAWS OF THE YEAR IX [§ 2

tors. Although these disorders have not yet come to an end, it
can be confidently asserted that many courts and jurors do not
do their duty. Scoundrels taken with arms in their hands have
been acquitted and set free by the tribunals." *

The necessity for exceptional courts was incontestable, but
successive measures, usually inadequate, were the means adopted.
A Law of 30th Prairial of the year III had conferred the trial of
the Chouans, Barbets, and others, upon the military courts. An-
other Law of the 1st Vendfimiaire of the year IV provided that
" the rebels, known as Chouans, or by any other name, and all
those. described in Article 3 of the Law of 30th Prairial, shall
be tried by the military councils established by the Law of the
second complemental day ; " * that is to say, by the courts-martial.
These rather vague provisions dealt especially with rebels. They
were affirmed by the Code of Offenses and Punishments.'

In the year VI something more was done : it was desired to
make a complete organization of the exceptional courts, settling
clearly their jurisdiction and the procedure to be followed before
them. The new Law specified the crimes constituting brigandage
and entaiUng capital punishment (Arts. 1 to 6) ; it then provided
that if these deeds, subject as a rule to the ordinary courts, had
been committed by an assemblage of more than two persons, the
prisoners, accompUces, aiders, and abettors should be court-mar-
tialed. The warrant to bring the accused before the court could
then be issued by the director of the jury, the justice of the peace,
the police commissary, the municipal agent or " adjoint " in com-
munes of under 5000 inhabitants, or by officers of the county
police, with the full concurrence of all these functionaries (Art.
9).'* The better to determine the jurisdiction, there was a regula-
tion analogous to that formerly practised in the " pr6v6tal " juris-
dictions, made by a civil magistrate, the director of the jury (Art.
11 ; cf. Arts. 12 to 16) ; this magistrate in all cases proceeded with
the preliminary examination.^

The bill was presented by Rcemers to the Council of the Five
Hundred, where several of its provisions were attacked. "The

• Speech by HanorS Duveyrier, speaker for the Tribunate in the Legis-
lative Assembly, 17 Pluvidse, year IX, *'Arch. parlement,'* p. 308.

' See the Report of Dubois-Dubay, ''Journal aes D^bats/* Venddmiaire,
year IV, No. 1093, p. 5.

• Art. 598. * See also Art. 10.

• The measure was, moreover, temporary. "Art. 22. It will remain in
execution for a year only, dating from its i>romulgation by its insertion
in the 'Bulletin des lois'; after that time it will be 'ipso facto* abro*
gated, failing its renewal by the Legislative Body.*'

451

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Paet III

name of military commission alone was a source of terror," says
one of the speakers. " You are afraid to intrust the civil juris^
diction to the military, and to recall an abhorrent system, all
resemblance to which must be avoided." * The Law was, how-
ever, passed by the Council of the Five Hundred on the 19th Ven-
tose of the year VI, and approved by the Ancients on the 29tb
Nivose. It was renewed in Brumaire of the year VII, but not in
the year VIII. The military commissions, who tried the brigands,
did not, on that account, disappear. They survived by virtue of
the Law of the 30th Prairial of the year III.^

But even this jurisdiction could only produce proper effects
with the help of physical force ; it was really necessary to make
war upon the brigands. Expeditions performed by mobile col-
umns were necessary. Meanwhile, things had come to such a
pass that it was necessary to arm the conductors of public convey-
ances and have them escorted by soldiers. There was a lack of
troops. " These brigands had chosen for their diffusion through
the country the moment when the absence abroad of neariy all
the military had deprived the interior of the forces necessary for
public safety." * In the year VIII the evil was at its height, as
an official document clearly shows : " Whole conmiunes have been
victims of their (the brigands') devastations and cruelty. . . . All
these departments beg for prompt aid, in the shape of men, arms,
and ammunition. These have been often promised, but the supply
has, so far, been insufficient." ^

It was the desire of the First Consul to be that destroyer of
brigands whom France had for a long time called for, whom it
then invoked, and who would afterwards be celebrated in mytho-
logical allusions.^ Numerous columns traversed the infested
districts, and in their train military conunissioners tried the
prisoners ; " the First Consul instituted military commissions in
the train of the mobile columns which pursued brigandage. . . .

1 "Journal des D6bats," Floral, year VI, No. 240, p. 154.

^ Savoye-Rollin at the Tribunate, 13 Pluvidse, year IX ("Arch. iHirle-
ment.," p. 284).

» Thiers, "Le Consulat et TEmpire," vol. Ill, p. 287.

^"R4sum€ des comptes rendus au Minist^ de rint^rieur par les
commissaires du Directoire ex^utif pr^s les administrations centrales des
d^partements," published by Rocquain, op. cU,, p. 377.

* "The peoples of Greece raised aJtars to the heroes who delivered them
from bandits" (Debate in the Council of the Ancients in the year VI).
— "Nothing less will do than the mighty hand of the modem Hercules, who
comes to our assistance, for the extermination of the brigands and the pre-
vention of the ruin of the social edifice" ("Expose des motifs du hvre
11, Tit. II," of the Code of Criminal Examination, Locri, vol. XXVIII,
p. 52).

452

Title I, Ch. Ill] THE LAWS OF THE YEAR IX [§ 3

These military commissions had already produced salutary effects
in Pluvidse of the year IX. The judges in military uniform, who
composed them, were not afraid of the accused ; they reassured
the witnesses testifying, who were often the soldiers themselves
who had arrested the brigands with arms in their hands." ^

But it must be acknowledged that this work of repression had
been somewhat irregular if singularly expeditious. Fran9ais de
Nantes states in his report, already quoted : " The result of
the military commissions from the Decree of 29th Frimaire (which
instituted them in the Var and the Bouches-du-Rh6ne) to the 30th
Grerminal following, that is, for a period of four months, has been
twenty-three brigands shot and taken bearing arms ; a hundred
and sixty shot after, examination and judgment ; fifty-eight set
free ; seven remitted before the ordinary judges ; one sent to the
Toulon bagnio; fifty remitted as strongly suspected before the
general in conmiand of the division, who asks for authority to trans-
port them for life. Two female receivers of stolen goods and ac-
complices of brigands have been condenmed to death." ^ Farther on
he deprecates " the way in which armed force has been employed
against the brigands. The colunms of scouts never appeared in a
commune without accomplishing some pillage. Their leaders
seem to have had no other end but to get money. . . . Some
individuals, arrested as Barbets, have been shot without trial,
either from personal hatred, or because they did not give up the
amount demanded. . . . Most of these facts are well known
throughout the department." ' In Brittany, Barb^Marbois
also demands that a check be put " upon the excessive readiness
of the gendarmes to fire upon the fugitives they are pursuing, and
still more upon the executions of those they have overtaken and
arrested, even if they were notoriously guilty. There are instances
of such executions, but it must be said that they are rare. Not
a single one must be allowed, and the institution of exceptional
courts does away with the pretext for them." ^

§ 3. The Law of 18th Pluvdise, Year IX. Special Tribunals.
Revival of the " Pr6vdtal " Courts. — The government was about
to demand, in effect, the establishment of exceptional courts. They
were generally demanded by the prefects ; ^ and if an exceptional
jurisdiction was necessary for the brigands, it must at least be
regular. The proposal would therefore seem to have been made

1 Thiers, "Le Consulat et FEmpire," vol. Ill, p. 339.

' Rocquairit op, cit., p. 69. ' Ibid., p. 15 ; cf. pp. 5, 6.

♦ Ibid., p. IJ^. » Ibid,, pp. 5, 19.

453

i 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

under very favorable conditions. The condition of France, in
the matter of amelioration, was far from being satisfactory. The
various characteristics by which we have attempted to portray
the plague of brigandage are taken, for the most part, from the
reports of the State's Councillors sent on missions of inquiry in
the year IX, or from the debates in the Tribunate of the same
year.^

The bill relative to the establishment of a special criminal tri-
hunal was presented to the Tribunate, with an able explanation
of reasons draw^n up by Portalis, 17th Nivdse in the year IX.*
According to the provisions of this bill, the government had the
right to establish, in the departments where it should be deemed
necessary, special criminal courts (Art. 1). These tribunals were
composed of the president and two judges of the criminal court,
three military men not under the grade of captain, and two citi-
zens having the qualifications required for judges. All five of
these were appointed by the First Consul (Art. 2). It looked like
a revival of the provost marshals and their assessors. The juris-
diction of these special courts still more strongly recalled that of
the old " pr^votal " courts. We find in the law of the year IX
all the deeds struck at by the Declaration of 5th February, 1731.
In the first place the cases prev6tal on account of the status of the
ojccusedy that is, crimes committed by vagrants, and those \dthout
means of subsistence, or not rehabilitated (Arts. 6 and 7) ; vagrancy
properly so called and the escape of prisoners (Art. 7) ; — then the
cases prStotal from the nature of the crime; thefts on the highways
or with violence, or the use of means or circumstances aggravating
the offense (Art. 8), thefts in the country and in habitations, and
country buildings (' b&timents '), accompanied by breaking in
... or when the crime was consummated with bearing of
arms or by an assembling of two persons at least (Art. 9) ; false
money (Art. 11) ; seditious assemblages, the parties having been sur-
prised in the act of such assemblages (Art. 12) ; murders contrived
by armed assemblages, the crime of enticing away, and machinations
practised outside the army and by civilians, to corrupt soldiers,
requisitionnaires, or conscripts (Art. 11). To this list, taken al-
most verbatim from the Declaration, were added certain deeds
the severe repression of which was demanded by the new state of
affairs : fire-raising and threats, excesses, and assaults committed

1 See also : Rocquain, op, ciL, pp. 5, 69, 70, 146, 147, 170, 252, 253, 262,
263 ; and the debate on the Law of Pluvidse ("Arch. i)arlement.,'' loc. cU.^
pp. 308, 309; 105, 106; 222; 299).

a "Arch, parlement," II, Part I, p. 70. _

454

Title I, Ch. Ill] THE LAWS OF THE YEAR IX [§ 3

on the recipients of national property, because of such acquisition
(Art. 11) ; finally, the special courts had also a concurrent juris-
diction with the ordinary courts, of premeditated murder (Art.
10).i

These crimes and offenses were oflScially prosecuted by the
government conmiissary, without any party complainant (Arts.
3 and 15). All oflScers of gendarmery and police officers were
entitled to issue the warrant "d'amener" (Art. 17). The details
as to the official reports to be drawn up, the inventories, the inter-
rogation, and the hearing of witnesses in the preliminary examina-
tion, were borrowed from the Ordinance and tl^e Declaration.

The special court having taken office on sight of the complaint,
the additional documents, interrogations and answers, and in-
formations, and the government commissary having been heard,
the court must first of all determine its jurisdiction, and that with-
out appeal (Art. 24). This was a survival of the past. The pro-
vosts had their jurisdiction determined by the presidials, and the
latter determined their own jurisdiction when they took cogni-
zance of " prSvotal " causes.^ This determination, intimated
to the accused within twenty-four hours, must be, within the same
period, intimated to the minister of justice for submission to the
Court of Cassation, which was obliged to take cognizance and
decide, to the suspension of all other matters (Arts. 25, 26). This
appeal, which, however, did not stay either the examination or
the judgment, but merely the execution (Art. 27), was borrowed
from the Law of the 29th Niv6se of the year VI. Finally, the
sternest feature of the " pr6v6tal " courts, namely, the fact that
their decisions on the merits were not subject to any appeal, also
characterized the special court; neither appeal nor review to
quash were allowed (Art. 29).

But the Law of the year IX differed materially from the pro-
visions of the Ordinance from other points of view. In con-
formity with the principle of the new law, it insured public hearing,

* If, the examination having been begun by reason of one of these
misdeeds, the accused was incriminated by reason of ordinary offenses,
"the special court," it was said, "shall examine and judge, whatever ma^
be the nature of these misdeeds" (Art. 13). The natural meaning of this
clause was that the special court would become incidentally cognizant;
that was what the old laws decided (Ord. of 1670, Tit. II, Art. 23 ; "De-
claration de 1731," Art. 18). The reporter Thiessi gives it another con-
struction : "That is to say, that the special court will not be ousted from
the examination and the judgment of the crimes conferred on it by the
law because of any misdeed foreign to its jurisdiction" ("Arch, pari.,"
loc. cU., p. 112) ; but see Benjamin Constant's reply (p. 321).

« Ord. 1670. Tit. II, Art. 15 ; Tit. I, Art. 17. See Chazal, at the Tribu-
nate ("Arch, pari.," loc. ciL^ p. 208).

455

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

the benefits of oral trial and moral proofs, and the aid of counsel ;
there was an indictment, drawn up by the government commissary,
perusal of which was allowed (Art. 28). Finally, the concluding
article provided " that the special court should be revoked, ipso
facto, two years after the peace (Art. 31)." *

It would seem that the bill should have been passed without
difficulty in this troubled period. The Laws of the year III and the
year VI had raised but few objections, and the bill offered safe-
guards rather than new severities. Nevertheless, it raised a
storm of opposition. In the Tribunate it gave occasion for long
debates, which lasted from the 17th Nivose to the 16th Pluvifise.
More than twenty speakers were heard, and among the adversaries
of the proposal we find Benjamin Constant, Daunou, Isnard,
Chazal, and Chenier.

Whence came this opposition? The Constitution of the year
VIII, like those which had preceded it, guaranteed (Art. 62), for
all deeds coming under the head of crimes, judgment by jury.
But it was replied that another article of the Constitution, article
92, decided that in case of armed rebellion or troubles threatening
the internal safety of the State, the law could, in determined times
and places, suspend the rule of the Constitution. Well, it was
said, here we do not go so far ; the authority of the Constitution
is only partially suspended. Moreover, the same constitutional
difficulty existed to a still more serious extent then, and it was not
raised; the real motive for the opposition must be sought for
elsewhere.^

^ The following is a comparative list, showing to what extent the bill
was copied from the provisions of the old laws dealing with the !*pr6vdtal"
courts:

Law or Pluvi^sb

Declaration of 1731

Art. { f

—

Art. 1 2;

Art.

[ 8.

.10.

—

Art. { i:

Art. 3, end

—

Art. 2.

Law of Pitlvi68B

Obdinancb of 1670, Trr. 11

Art. 14.

—

Art. 23.

Art. 21.

^—

Art. 9.

Art. 22.

——

Art. 10.

Art. 23.

—

Art. 12.

Art

.24.

—

Art. 25.

* "Neither the establishment of these (military) commissions, nor the
details of their powers, nor the law of 29th Nivdse, introduced by myself,
have excited among the representatives of the two councils or among the
citizens, the uneasiness which might be expected to-day." Jean DeSry in
the Tribunate, 5 Pluvidse, "Arch, pari.," loc. ciL, p. 190.

456

Title I, Ch. Ill] THE LAWS OF the teab IX [§ 3

It was felt that this was not merely a temporary measure,
but a system tending to become permanent. It was desired to
establish two jurisdictions, one of common law, the other of ex-
ception ; for some the jury, for others the special courts. Duvey-
rier, the chairman, ^id not conceal this. " Do you wish to safe-
guard the feeble and valuable remnants of the jury? Strip it,
from now on, of the usage which weakens and denatures it every
day. Let its purpose be to distinguish the vast difference between
those offenses which threaten social order in troubled times and
those rare errors which disturb it in a more peaceful time. Let it
be, so to speak, the prerogative of those people who occasionally
transgress, but who do not live for and by crime; who wound,
but who do not wage war on the established regime. Let an act
tried by the jury be such that if it does not carry with
it a presumption of innocence, at least does not bear the
character of a fault which has not been unworthy of that
beneficent institution. Let it, in short, exist for those to whom
it belongs, imperfect, but always susceptible of improvement by
wisdom and experience." ^

This duality was put forward merely as a make-shift: the
truth was that the provisional state of matters was bound to change
into a definite state. The government did not acknowledge the
fact at that time, but it declared it openly later in the " Expos6
des motifs " of Title VI, Book II, of the Code of Criminal Examina-
tion, which maintained the special courts as a permanent institu-
tion. M. R6al there said : " It was speedily recognized that the
law ought to be permanent and of universal application. The same
experience which had decided upon the necessity for its existence
had also decided upon the necessity for its permanence and its
universality; and the celebrated Ordinances, truly national and
popular, of Orleans, Moulins, and Blois have ordained this special
institution for all times and for all places. The commissaries
who drew up the Ordinance of 1670 had the good sense to place
the exception alongside of the ordinary rule. . . . Twelve years
of abuses have depraved public opinion to such an extent that at
the very moment when we return to principles, a well-informed
and powerful, but moderate and prudent, government, which de-
sired the guidance of nothing but prudence and conviction, was
compelled to compromise with that public opinion, and the Law of

» Sitting of 29 Nivdse, ** Arch, pari.," loc. ciL, p. 107. Delpierre, 7
Pluvidse, p. 219: "It must, in good faith, be acknowledged that the
establishment of special criminal courts comes very near to being the
suspension of the procedure by jury.''

457

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

18th Pluvidse of the year IX received, not in its universality, since
the government could apply it to all the departments, but in its
duration, a limitation, since it must cease to exist two years after
the peace. But although it was wise for an ameliorating govern-
ment not to seek for the permanence of the institution until after
proof by provisional trial, the government ought to be accused
of want of foresight and cruelty if to-day ... it foreshadows, in
presenting but an ephemeral institution, a period of misfortunes
and desolation, where the public safety will be once more delivered
over to the mercy of all the brigands." ^ The foresighted minds
of the year IX were not deceived on this point. The system was
destined to pass into the Code of Criminal Examination. The
special courts were afterwards, in 1815, to be r^laced by "pr6v6ta!
courts," a temporary institution, it is true,* but to which article 54
of the Charter of 1830 was to render the return forever impossible*
What was thus revived was one of the most odious institutions
of the Old Regime. M. RSal's report subsequently stated this
very plainly, and he put together all the Unks of the chain. This
was not acknowledged in the year IX, but the matter was too
evident to escape all eyes. " Were the proposed law," said Ben-
jamin Constant, " not infinitely more vague and the powers given
by it to the special courts much more extensive than what were
called under the Old Regime * pr6v6tal ' judgments, I would not
have broken silence." ' Desrenaudes evokes *' the idea of these
frightful commissions against which are raised, what do I say?
have been raised for a century, the voices of all the men honored
by humanity, and the question is immediately asked if the splen-
did conceptions of Montesquieu, Beccaria, Rousseau, Dupaty,
Servans, and so many others are to be destroyed in a day, or rel-
egated to the restricted sphere of some obscure crimes and some
mean offenses."^ — "The speaker for the government," says
Garat, *' will find these principles in the Ordinance of 1670 ; but
it is not these precedents we ought to follow or that should be
proposed to us." ^ Chazal contributed the most complete elu-
cidation. " The government," he began by saying, " asks you
to establish exceptional courts, which it has conceived upon the
model of the old ' pr^votal ' courts organized by the Ordinance
of 1670." ^ Then, taking separately, on one side the various

> Locrl, vol. XXVIII, pp. 54, 55. « Law of 20th December, 1815,

• In the Tribunate, 5 Phividse, "Arch, pari.," loc. cU., p. 187.
*6 Pluvidse, "Arch, pari.," loc. ciL, p. 193.

» 13 Pluvi6se, "Arch, pari.," p. 294.

• 6 Pluvidse, "Arch, pari.," p. 204 el seq.

458

Title I, Ch. Ill] THE LAWS OF THE TEAR IX* [§ 3

provisions of the bill and on the other those of the Ordinance and
of the Declaration of 1731, he showed their identity ; he made it
clear that in some respects the severities of the old law had been
increased ; he regretted not to find in the bill the power in the ac-
cused to be heard at the time of the jurisdictional judgment, the
judgment ruling to the " extraordinary " action, and the old
formal confrontation.

This was all so clear, that, in future, the speakers in support of
the bill could not misunderstand its parentage, and they were
obliged, to obviate the comparison, to insist upon the ephemeral
nature of the new law. ^' It is impossible to institute comparisons
between an essentially temporary institution in our political sys-
tem and a class of courts inherent in the monarchy and coor-
dinated to the general aspects of its criminal legislation." ^ Por-
talis, addressing the Corps Legislatif on behalf of the Tribunate,
said : " The provosts of the Old Regime, like the special tribunal,
are the outcome of disorder and brigandage. They were not in-
stituted by Louis XIV ; their origin is of earlier date ; they were
sanctioned by the deliberations of the States-General. But the
provosts were permanent ; the special tribunal is but temporary." ^
Several even attempted a mild rehabilitation of the " pr6v6tal '*
jurisdictions. " Whatever the ' pr6v6tal ' jurisdictions had of
value, so far as compatible with the present regime, has been taken
and the Law of 29th Niv6se blended therewith, and thereby ame-
liorated. A fatal dart was thought to have been launched against
the bill by saying that it is framed on one of the most despotic
establishments of Louis XIV. The * pr6v6tal ' jurisdictions
were not originated by Louis XIV ; they go back to much earlier
times, when, as at present, France, devastated by audacious hordes,
had need of a justice armed to war against them. The ' pr6-
votal ' jurisdictions were not essentially bad ; they merely had
the defects inherent in our old criminal procedure, which are not
to be found in the bill. The procedure here is not secret; the
accused pleads his defense publicly. The trials are open as in
the ordinary tribunals. The jurisdiction, which the provosts
settled by calling on the graduates within easiest reach, is controlled
in a much more reassuring manner." '

The Law was voted, but it passed the Tribunate by the majority
of forty-nine votes against forty-one only ; in the Legislative Body

^ Laus8at, sitting of 12 Pluvidse, "Arch, pari.," loc. ciL, p. 258: c/.
Trouvi, p. 231 ; Carret, p. 279.

* 1 Pluvidse, p. 332. » 17 Pluvidse, "Arch, pari.," loc. ciL, p. 316.

459

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

the bill obtained one hundred and ninety-two votes against eighty-
eight. It was a part of the Ordinance of 1670 which entered into
our laws ; and that is why we have dwelt at some length on this
curious page of our pariiamentary history. Many speakers de-
clared that in voting for the establishment of special courts, their
intention was to save the institution of the jury, which would have
been destroyed forever by prolonged proof of its powerlessness.
It is useful to record these testimonies, which we shall utilize a
little later. Here are some of them. First of all, Duveyrier,
the chairman for the bill in the Tribunate, says : " The institution
of the jury, a benefit and safeguard of liberty among all free na-
tions, is with us, of all the gifts of the Revolution, that which a
miracle alone can save in the midst of revolutionary storms. But
we all admit that, originally imperfect and inaccurate, it was also
discredited in the popular opinion by the barbarous use to which
the most atrocious tyranny condemned it; hampered since then
by a complexity of abstract forms and metaphysical combinations,
it drags along to-day, marking at each step its inadequacy against
the excessive evils of the times and scarcely allowing the good
which it might some day accomplish to be apparent. — Do you
wish to accelerate and consummate its destruction ? Would you
render it forever incapable of its natural functions ? then leave it
to struggle against obstacles which it cannot overcome ; . . • crush
it under the daily proofs of its nullity and powerlessness, until
it is no more in the eyes even of its most zealous partisans than a
fine philosophical conception, impossible to carry into practice,
and at all events inapplicable to our age and our social condition.
If, on the contrary, it is your desire to protect its deficient but
precious remnants, strip it from now on of the practice
which continues to impair and distort it." ^ — Trouv6: "It is
of course distressing to discard, even for the shortest period,
the benefit of one of the most sublime institutions, to
throw a veil, so to speak, over this ^palladium' of civil lib-
erty. But suppose this veil is the means of its ultimate pres-
ervation; suppose this momentary suspension is indispensable
to the safety of the State I " ^ — Caillemer : " The improvement
of the institution of the jury! As if this improvement did not
require radical, and consequently, gradual changes ; as if, besides,
this improvement could produce the effect looked for from it be-
fore the extinction of all revolutionary passion, and the complete

1 29 Nivdse, "Arch, pari.," he. cit, p. 107.
» 7 Pluviose, p. 230.

460 I

Title I, Ch. Ill] THE LAWS OP the year ix [§ 3

reestablishment of morality." ^ — Roujoux : " A decade of tran-
quillity may not suffice to bring back our minds to the feeling of the
sublimity of the institution of the jury. The memory of its present
ineffectiveness will not be easily obliterated. Save, then, tribunes,
save this institution from the outrage of circumstances, if you
would preserve the benefit of it.*' ^ — B6renger : " The juries of
the departments of the West and the South acquit all culprits even
when captured in the act . . . this institution is not rendered
tutelary by its forms, but by the jurors' impartiality, existing, in
case of ordinary crimes, even in time of revolution, and rendering
them capable of judging one accused of theft or murder, when
these offenses are isolated. But immediately the prosecution
or the defense assumes a political character, and addresses itself
to the passions, the jury becomes terrible to innocence, and is the
safeguard of brigands. Reserve it for times and places favorable
to it, and do not force it to undergo a comparison which will ren-
der it detestable. Let us calm public opinion, which so many
prolonged evils and so many unpunished crimes stir up against
it ; let us save this liberal institution from the wreck of the Rev-
olution by adopting the bill." *

All agreed in declaring that the jury had not given the results
looked for, and it was acknowledged by its most ardent supporters
that it was necessary to bring about radical changes in its organi-
zation. " In my opinion," said Daunou, " (the jury) is not so
much a prerogative as an incidental form, merely an essential
part of our judicial system, a part whose organization is no doubt
still very defective, but which it will be better worth while to
ameliorate than to suspend. The Constitution, which is confined
to sanctioning its existence, cannot prevent its improvement, and
this work, at least set in motion by the trials and observations of
ten years, will be more worthy of the enlightened men who now
draw up our laws, more worthy of their talents and the wisdom of
the principles they profess, than these long and wretched
decrees of exception and circumstances which they propose to us." *

1 8 Pluvidse, "Arch, pari.," loc, ciL, p. 243.

« 14 Pluviftse, "Arch, pari.," p. 300.

» 16 Pluvidse, "Arch, pari.," pp. 301, 302 ; c/. Delpierre, 7 Pluvidse, p.
216.

«7 Pluvidse, !*Arch. pari.," loc. ciL, p. 224; c/. Chazal, p. 204; Garat^
p. 296.

461

§1]

PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

Title II

THE FRENCH CODE OF CRIMINAL EXAMINATION,

1808

Chapter I

THE DRAFT OF THE CRIMINAL CODE

§ 1 . The Draft of the Criminal Code.

The Jury and the Ordinance

of 1670.
§ 2. "Observations" of the Supreme

Court and the Courts of

Appeal.

§ 3. ''Observations " of the Criminal

Courts.
§ 4. The Jwry and the Publicists.

§ 1. The Draft of the Code. The Jury and the Ordinance of
1670. — The substitution of the Empire for the Consulate brought
no change in the institutions which we have described. Certain
appellations were replaced by others, that was all ; the criminal
courts took the name of " Courts of Criminal Justice " ; the gov-
ernment commissioners attached to the courts of appeal were
called " attorneys-general/' the commissioners attached to the
other courts, " imperial attorneys.'* The public prosecutor re-
sumed his ancient titles.^ There was one single new creation —
that of the Imperial High Court, instituted by the Senatus-Con-
sultum of 28th Florgal in the year XII (Arts. 101-133). But
from that time on a recasting of the criminal laws was in prepara-
tion. It was a matter of necessity and was bound to figure among
the new codes at that time promised to France. The* Criminal
Code had not been retouched since 1791, and its practice had dis-
closed numerous imperfections. On the other hand, the criminal
procedure had been radically changed by the Laws of the year IX ;
the Code of Offenses and Punishments needed complete remodel-
ing. Finally, and above all, the rules as to the composition of
the jun^' must be remodeled and improved.^

* The deputies created by the Law of 7th Pluvidse, year IX, are, how-
ever, still called magistrates />f police in the draft of the Criminal Code.

* This composition had, moreover, varied very much during the Revo-
lution. The general jury list, instituted by the Law of 1791, including all

462

Title II, Ch. I] THE DRAFT OF THE CRIMINAL CODE [§ 1

The preliminary Idbor had been commenced in the year IX;
a Decree of the consuls of 7th Germinal of that year appointed a
commission, composed of MM. Vieillard, Target, Oudart, Treil-
hard, and Blondel^ whose duty it was to draft the Criminal Code
and to meet at the house of the Grand Judge Minister of Justice,
the work to be ready in Messidor of the same year.

This commission, indeed, drew up a vast plan comprising at
once the criminal law and criminal procedure, and containing
1169 Articles. In the second part, devoted to criminal procedure,
and which alone interests us, the commissioners had, subject to
very numerous modifications in detail, preserved the existing
institutions and the forms then in force They were very far
from thinking of suppressing the trial by jury : " The Law of
16th September, 1791, which mtroduced the trial by jury
among us, would be one of the finest productions of the 1700 s,
if the legislature had not been drawn m an opposite direction as
much by revolutionary violence, as by the force of old habits.
The trial by jury placed in the hands of the most useful
and enlightened part of the citizens could never be either oppres-
sive or anarchic." So M. Oudart expressed himself in the remarks
preceding the second part of the draft.^

The creation of magistrates called " praetors " was proposed,
who should hold assizes successively in several departments.^
They were to compose the criminal court, assisted merely by an-
other magistrate or " propnetor," " causing the same justice to
rule ever>'where and subjecting the passions to the government of
the same laws." This was' a return to the imitation of English
institutions ; the " praetor " was none other than the English
chief justice, and it was desired to give to the sessions of the
jury something of the solemnity of the English assizes. The
" propraetors " assumed the functions formerly exercised by the
directors of the jury^ *' Under the rule of the existing law, the
director of the jury exercises criminal functions for three or six
months, and quits them precisely when he is somewhat more in a
condition to properly exercise them ; thereupon the order of the

the electors, had suffered the counterblow of all the chang:es made upon the
electoral laws ; it had been successively altered by the Laws of 2d Nivdse,
year II, and of 6th Germinal, year VIII, and by the Senatus-Consultum
of the I6th Thermidor, ye&r X.

* **Projet de Code enminel," p. xxxiv.

* A Law of 9th Ventdse, year VIII, had formerly regulated this point :
•'Since this law, the First Consul selects from the Courts of Appeal as

many judges as there are departments, and sends them to preside for one
year over the criminal courts." "Observations" of Af. Ovdart, p.
zxxviii.

463

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

list calls upon that one of the judges who* is found to be the
least fitted. In our draft the ' propraetor ' is appointed for life
like any other judge, and as were the criminal lieutenants and
assessors." ^

Important changes were introduced as to the method of choos-
ing the jurors : " Since the month of Niv6se in the year 11/' said
M. Oudart, " the list of sp)ecial petty jurors ought to be thirty, and
the list of ordinary jurors ought to contain as many citizens as
there are thousands of inhabitants. . . . According to this division
a panel of 665 jurors was made at Paris ever^' three months, which
made in the course of the year twenty-seven hundred to twenty-
eight hundred ordinary and special jurors. Since the law provides
that such a great number of citizens should be called upon at once,
many more bad selections are made than good ones and the govern7
ment cannot hold anybody to account for an act essentially vicious.
The care of drawing up these lists is also almost everywhere left
to clerks, who, without more ado, copy the pages of the registers
of the population. Professional thieves, dead men, men who have
long left the district, men afflicted with incurable diseases, and
men who cannot either read or write have been registered on these
lists." It was therefore endeavored to obtain a better choice,
above all requiring jurors subject to a certain census qualification.
The challenges must henceforward be made upon a quadruple list
and in court. "We can," said M. Oudart, "finally restore to
the parties the invaluable right to challenge in court, a for-
mality religiously observed in England." * There was an attempt
to simplify the system of questions put to the jury, but in this
respect Articles 869 and 870 admitted discussions among the
jurors themselves and conferences of the jurors with the judges,
which presented serious inconveniences. Finally, the rule of
unanimity was suggested for the decisions of the trial jury, as in
England. This system, illogical in itself, aijd difficult of accept-
ance by the French spirit, had never been admitted with us for
acquittal ; for condemnation the Laws of 1791 and of the year IV
had required ten votes out of tw^elve ; the Laws of 19th Fructidor
of the year V, and of 18th Frimaire in the year VI, in principle,
required unanimity, but at the end of twenty-four hours spent in
vain efforts to obtain it a division of votes went to the benefit
of the accused, and a mere majority was sufficient for a condemna-
tion. The draft (Art. 864) exacted unanimity of votes to acquit
as well as to condemn, and it fixed no limit of time for the deliber-

1 "Observations," Locr^, vol. XXV, p. 17. » Locri, vol. XXV, p. 25.

464

Title IT, Ch. I] the draft of the criminal code [§ 2

ations.^ We shall very soon have to bring up again several important
features of this primary draft. We have analyzed these few pro-
visions to show that the commissioners hftd borrowed the prin-
ciples of the reforms which they suggested rather from England
than from the old French legislation.

A current, however, very powerful and always growing stronger,
existed, setting in towards the past. The nation was then tired
of political liberties, and the governing bodies, the magistrates
above all, turned their eyes with regret towards the criminal pro-
cedure of the Ordinance. The jury appeared to them to be a
barbarous and dangerous institution. They could not under-
stand why the evanescent oral testimony should be preferred
to the permanent written record, ignorance to knowledge, irreso-
lution to experience and to the professional sentiment of duty.
Was it not necessary to judge the tree by its fruits, and to return
to the old procedure, not certainly such as had been settled by the
Ordinance of 1670, secret and merciless, but such as the first
reforms of 1789 had purified ? Many gave utterance to this idea
and it wanted little to give them the victory. It was they who
spoke loudest in the great inquiry which had opened upon the draft
of the Criminal Code.

§ 2. " ObservatioDB " of the Supreme Court and the Courts of
Appeal. — An extensive inquiry was, indeed, ordered for the
purpose of collecting the observations of the magistracy upon the
work of the commissioners. The Court of Cassation and the
Grand Judge, the Appeal Court and the Criminal Courts in turn
gave their opinions. The Supreme Court and the Grand Judge
were required to express their opinions in a solemn fashion. By
virtue of a resolution of the 5th Ventose in the year X,^ the Court
of Cassation must every year in Fructidor send a deputation of
twelve of its members to acquaint the consuls, the State's Council,
and the ministers present of the defects which the experience of
the year had made apparent, and the changes and improvements
proper to be wrought upon the laws. In the same sitting the Min-
ister of Justice was required to give an account of the observa-
tions which he had made upon the same subject. Now, on the
third complemental day of the year XI, in obedience to the afore-
said resolution, the First Minister, M. Muraire,^ expressed himself

» See Af. Oudart (Locr4, vol. XXV, pp. 41, 42).

* Sirey, "Lois annot^es," I, p. 572.

'Along with M. Muraire, the deputation included MM. Maleville,
Cochard, Lassaussade, Bailly, Zangiacomi, Cassaigne, Brillat-Savarin, Bans,
Schwendt, Minier, Laeh^se, and M. Merlin, government commissary.

465

5 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

in regard to the jury in terms condemnatory of the institution.
** The sad result of the impunity of the greatest crimes, offending
public morality and terHfying society, has almost led to the doubt
whether the institution of the jury, so fine theoretically, has not
to-day been more harmful than useful in its effects. And very
soon, this first doubt, leading to a second, may make it necessary
to-day to investigate by the light of experience what was done by
the Constituent Assembly, but in a speculative manner ; perhaps
it may be to examine if in a country where there is neither class
distinction, nor feudality, nor privilege, the institution of the jury
offers very real benefits ; if the institution adapts itself perfectly
to the national character; if it can properly be allied with that
too usual sentiment of generosity and indulgence in some, of timid-
ity and carelessness in others, which will always induce to com-
miseration the man who is not fortified in the habit of trying and
who sees before him merely the man whom he is going to strike,
society being but in his eyes an abstract and invisible thing." ^

The Grand Judge on his side said : " Afraid of the result of
these trials, and considering, according to accurate report, that
the complexity of the subject, the subtlety of the discussion, and
ignorance and weariness, invariably embarrassed and often over-
whelmed the trial jury, composed of men strangers to that de-
scription of duty, many fine minds and a number of enlightened
magistrates have thought that it would probably be preferable
to keep merely the grand jur>', taking pains to fix the necessary
method of arriving at the best choice of jurors. In this system we
confer upon the courts the examination of the proceedings as well
as the judgment in regard to the individuals who have been declared
indictable, we maintain the publicity of the examination and also
the communication of the documents to the accused as well as his
counsel, and we leave them both all necessary latitude to plead the
facts and justificative pleas. The inequality of class distinctions
having been abolished, there is no longer reason to fear either the
prejudices or the oppression of one caste or one order. The judges
are, like the jurors, the true peers of the accused, and they have,
what the jurors have not, study, knowledge, and experience of
affairs." ^ He did not, however, dare to propose the abolition of
the jury. " Despite the sad experience which we have had, the
supporters of the procedure by jury are very far from thinking,
as many others believe, that this institution cannot be acclimatized

1 "Projet de Code criminel," p. 192; Locri, vol. I, p. 207.
« "Projet de Code criminel," p. 212.

466

Title II, Ch. I] THE DRAFT OP THE CRIMINAL CODE [§ 2

in France; they maintain, whatever may be said, that this in-
stitution is quite compatible with the genius and character of
the nation, that if down to the present time it has encountered
obstacles, these must be attributed principally to the numerous
dissensions to which the Revolution has given birth, and that
these dissensions being necessarily boimd very soon to disappear
by the effect of time its progress and success will not be further
hindered except by slight obstacles which it will not be difficult
to overcome. Now ! do not refuse an additional trial, and let a
third experiment decide between them and their adversaries/' ^

The observations of the Courts of Appeal are very interesting.*
Twelve courts: Aix, Amiens, Bourges, Colmar, Douai, Metz,
Nancy, Ntmes, Orl&ins, Pau, Riom, and Turin give their decision
against the procedure by jury ; five merely demand its mainte-
nance : Agen, Angers, Caen, Rennes, and Toulouse ; five do not
give any opinion upon this grave question ; the courts of Bordeaux,
Brussels, and Treves furnish upon the plan merely observations
of detail ; Ajaccio and Montpellier present a vague commendation.*
The Courts of Appeal hostile to the institution of the jury, bolder
than the Supreme Court and the Grand Judge, expressly demand
its suppression; some, however, express their opinion with cau-
tion : " In the uncertainty of the opinions, the Grand Judge pro-
poses a third trial of the institution of the jury. The expedient
is no doubt good, but the court sees in it great inconveniences,
that of prolonging the abuses of the jury and retarding the final
reformation of the criminal procedure." * Metz demands, for
the moment, but the abolition of the grand jury: "The grand
jurors still more than the trial jurors are exposed to entreaties and
seduction, because they are more approachable by the parties/' ^
Orleans desires the suppression of the trial jury, but an institution
dare not be absolutely renounced " the defect of which is not gen-
erally enough demonstrated and above all not generally enough
recognized." • But the majority are altogether in the affirmative :
" Everybody uniting intelligence with experience has declared
against the jury. What good will a new trial be ? Nothing brings
the authorities into disrespect more than useless and dangerous

1 The crand judge says ** third experiment," because the jury had already
been established twice, by the Law of 1791 and by the Code of Bnimaire,
year IV.

* "Observations des cours d*appel sur le projet de Code criminel,?
Paris, year XIII, 2 volumes. Imprimerie imp^riale.

* Ajaccio, "Observ.," p. 1 ; Montpellier, p. 2.

* Amiens, "Observ.," p. 2. » Metz, "Observ.," p. 21.

* Orleans, p. 16 ; cf. Aix, p. 2 ; Colmar, p. 4.

467

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

experiments." ^ — "An almost universal cry is raised against the
institution of the jury, and the majority of the court shares public
opinion in this respect." ^ — " The defects of the institution of
the jury being generally felt and universally recognized, the
best form of procedure in criminal matters will be to confer that
power upon the regular courts." ' — " The institution of the jury
is not suitable to France ; it will be dangerous to make a new trial
of it." * — " Experience has proved that the procedure by jury
offers too favorable opportunities to crime." ^ — " What originally
was such a fine and seductive speculation in practice offers nothing
but the worst results." • — "It appears to us that the moment
has not arrived to try the new experiment proposed, and that it
will be necessary to reserve it for that happy period when our
descendants see in the different French Revolutions nothing more
than historic facts." ^ However, the objections which these courts
advance regarding the jury were those which we have seen brought
forward in the discussion of 1791, and those which will always be
brought forward whenever the quarrel recommences: the igno-
rance and inexperience of the jurors, their fears, their hesitations,
their passions ; the repugnance of citizens to become jurors and
the difficulty of making up the lists ; the superior merits of the
written procedure, incompatible with the jury, and of which the
advantages are brought forward even for the defense ; all this was
brought forward. One of the characteristics of the jury naturally
repugnant to the magistrates was also urged, namely, the estab-
lishment of traditions and a settled practice with a constantly
renewed and changing body.'

It was the example of the English which had formerly popularized
the institution of the jury in France ; it was the English proced-
ure which served as a model for the compilers of the Law of 1791,
and the authors of the new bill had also borrowed from it in their
principal reforms. The courts whose words we shall quote set
themselves to point out that there was in all this merely a trouble-
some mania of imitation ; and this demonstration might at that
time be heartily indorsed. England had become the implacable
enemy of France, and much blood had flowed since 1789. " We
do not envy the English their tastes, their habits, their enthusiasm
for their laws ; we oppose to these declamations the experience and

* Bourges, p. 3. * Douai, p. 22. » Nancy, p. 6. * Ntmes, p. 9.
» Pau, p. 16. • Riom, p. 11. ' Turin, p. 3.

• Boui^es, p. 4 : "The greatest defect of juries is that they are always
composed of new people. What is this strange system of discarding in this
respect the light of experience ? "

468

Title II, Ch. I] THE DRAFT OF THE CRIMINAL CODE [§ 2

the opinion of one of the greatest magistrates of our time/ to whom
we could add an infinitude of others." ^ — " There is a jury in
England, there must be one in France ; grand jury in England,
there must be the same in France. But is this people wiser, better
governed, or happier than we ? If these institutions do not exist
here, it is by reason of their antiquity." ^ — " Let the English people
feed themselves upon illusions under a government which oppresses
them ; the French people desire free institutions and such as reach
their mark ; it has been proved by too long a chain of experiences
that none of the English institutions, which it is wished to trans-
port into France, prosper here, not even that of justice of the
, peace." * — " The judgment by jurors has been transplanted from
England into France, but it is clearly shown that the French char-
acter is not suited to this institution and that our ways are not
consistent with it. . . . Let us then allow the English to live
in their own way and let us live in ours." ^ — " The changing
picture of the crimes of that nation, which uses assassination and
the plague to repulse an enemy which it has provoked into break-
ing a solenm treaty hardly signed, ought not to induce us to adopt
its system in criminal procedure. The jury has not rendered that
people better ; and if we recall what travellers have told us, there
is no European country where theft, especially upon the highways,
is more frequent and better organized than in that island." •

If a wrong road was taken in following the example of the Eng-
lish, the national tradition must be taken up again ; it was neces-
sary to return to the point where it was abandoned. It is towards
the Ordinance of 1670, almost as it had been reformed in 1789, that
the Courts of Appeals turn their eyes. ** We do not hesitate to
think that the Ordinance.of 1670, modified by the Decrees of 1789,
offers more guarantees and more real grounds of safety. . . . With
the aid of counsel to the accused and the publicity of trials, the
Ordinance of 1670, amended, would probably be, we do not hesi-
tate to repeat, what would come nearest to perfection." ^ —
" The criminal courts have been too much decried, notwithstanding
that they have done less damage during the one hundred and
twenty years following the Ordinance of 1670 than the jury within
the short space of time which has followed its establishment." * —
" The principal objections made to the procedure established by
the Ordinance of 1670, are the want of publicity and the lack of

' Siguier y in his address of 1786 analyzed above. ' Aix, pp. 10, 11.

• Bourges, p. 5. * Douai, p. 25. • Nancy, p. 5.

* Nlmes, p. 7. ' Aix, pp. 2 and 12. ' Bourgfes, p. 3.

469

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [PabT III

ability experienced by the accused in making his defense heard.
The experience of several years has shown how easy it was to do
away with these inconveniences, however grave they may be sup-
posed to be. The Constituent Assembly had called for the re-
form of these abuses ; it might be added that it had prescribed
the power to grant to the accused peremptory challenges of one
or two judges. . . . Why seek among our neighbors an evanescent
perfection which always escapes at the moment when it appears
to be within reach, while it is so easy to give a valuable improve-
ment to our laws, already the best of all those which have so far
been in existence? " ^ — " Undoubtedly it cannot be denied that
the Ordinance of 1670, the fruit of the reflections of the most fa-
mous jurisconsults of the age of Louis XIV, has not attained in many
ways perfection in criminal legislation, and that, although it can
be reproached with some defects, it is inherent in all the works
of man in some point to pay a tribute to humanity." ^ — " The
procedure established by the Ordinance of 1670 was justly cen-
sured for two principal reasons : the first was that the examina-
tion was secret ; the second, that the accused was without counsel.
Instead of changing this defective order, the system of the Revo-
lution adopted an institution foreign to our usages." *

Finally, the court of Nancy sketched out the broad features
of this French procedure. The courts of the arrondissement,
with five judges at least, took cognizance in the first instance of
all the offenses entailing afflictive and degrading punishment ;
the magistrates of police remained as the Law of Pluvifise had
established them. A commissioner attached to each general court
performed the functions formerly attributed to the criminal lieu-
tenant; he heard the accused and the witnesses and caused the
answers to be recorded, but with the assistance of a substitute
of the same court ; then came the requisitions of the public prose-
cutor and the investigation of the procedure by the entire bench
to decide if there was cause for indictment. " The \iitnesses who
should have been heard in writing would be confirmed and con-
fronted by one and the same operation in the council chamber
by the judge performing the function of the criminal lieutenant,
in the presence of the substitute who had assisted him in the in-
formation and of the accused, who obtained the assistance of a
counsel and of the magistrate of police. . . . The public would
not be admitted at this step of examination of the procedure.
At the hearing, the witnesses would be exempted from appearing

» Metz, p. 17. « Orleans, p. 16. » Pau, p. 107.

470

Title II, Ch. I] THE DRAFT OF THE CRIMINAL CODE [§ 2

on account of the confrontation previously made. . . . The
magistrate of safety would perform here the functions of public
prosecutor; a reporter would be appointed for the purpose of
reading all the documents, the accused would be represented by
his official counsel, before whom all the documents of the procedure
would previously have been laid. The report and the judgment
would be public ; appeal would be a matter of right." ^ This was
the resurrection of the written procedure. Some of the courts,
however, which condemned the jury, demanded the maintenance of
the oral and public procedure : " Let the procedure of the investi-
gation and of the judgment remain public and oral ; let a president
supervise the trial, and let the judges secretly deliberate as a trial
jury, the president being excluded. . . . Let the judges publicly
give their opinions ds a jury, without being subject to any other
proof than their personal convictions, and let them afterwards
join with their president in deliberating ds a court upon the pun-
ishment to be inflicted upon the guilty party." ^

What of the courts who were favorable to the maintenance
of procedure by jurors ? They recalled the enthusiasm of the early
days and the real benefits of the institution; they showed that
the temporary lack of success was due merely to circumstances
and defects of organization : " Do not infect the general legisla-
tion with w^hat can be useful only under certain circumstances and
for certain men. . . . And has that end not been obtained by
creating special courts ? Those are sufficient for the extraordinary
cases of which we speak. Let them be allowed to remain so long
as the social interest shall demand them, and pray to Heaven that
this violent remedy be very soon needless and leave in all its purity
the ordinary institutions upon which our happiness and that of
posterity rest." ^ — " This ameliorative institution, independently
of the abuses for which it has been blamed, the outcome of times
of trouble and political strife, can nevertheless be suited to our
existing ways, and strike deep roots in proportion as minds keep
calm and congratulate themselves on being well governed." * —
'' The institution of the jury, for a long time awaited by humanity,
had signalized the first works of our modem legislature, at the
time when there existed in France but one single desire, that for
good institutions and good laws. This new system of criminal
jurisprudence was also universally approved and its benefits were
generally felt. But very soon this excellent harmony, which

> Nancy, pp. 10 and 11. ' Cobnar, p. 5.

» Agen, p. 4. * Angers, p. 7.

471

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [PabT III

looked at things from the true point of view, was disturbed ; party
spirit took possession of all minds; there was no hesitation in
finding bad what had formerly appeared to be good; not only
that, but an attempt was made to abuse it, and every means was
employed to run down this institution. The true cause of the
discredit of the procedure by juries is to be found in party spirit,
in a system followed for the destruction of the best institutions
produced by the Revolution." ^ It required a certain courage
in the magistrates to -use such pointed language at such a
time.

§3. ^'Obsenrations " of the Criminal Courts. — The observa-
tions furnished by seventy-five Criminal Courts were also pub-
lished by order of the government,^ and we believe they may
be classified in the following way. A fairly large number,
twenty-three, present merely remarks on matters of detail,
and do not explicitly give an opinion in favor of the jury,
maintained in the draft code, nor do they give an opinion
against it;' twenty-six pronounce against the institution of
the jury,* some rather feebly it is true; twenty-six demand its
maintenance.^

Here also a large number of speakers demand the return to the
written procedure without the co-operation of a jury ; the reasons
invoked were those which we have found in the observations of
the Courts of Appeal, sometimes presented with a great deal of
exaggeration. It is above all on the national character that they
fasten : " Experience is undoubtedly the surest of all guides, but
when the nations to be governed by it have arrived at maturity,
it is their own and not the experience of foreign nations which must
be chiefly consulted; and personal experience tells us that the
Ordinance of 1670 offered to good order a surer safeguard and

* Caen, p. 2 ; c/. Toulouse, p. 3.

' *' Observations des tribunaux criminels sur le projet de Code criminel/'
6 vols. Imprim. imp^riale, year XII.

' Criminal courts of the following departments : Aisne, Basses-Alpes,
Hautes-Alpes, Alpes-Mari times, Aube, Charente-Inf^rieure, Corrize,
Gers, Gironde, L^man, Jemmapes, Indre-et-Loire, Loire-Inf^rieure, Meuse,
Montblanc, Morbihan, Gise, Pas-de-Calais, Pd-et-Doire, Rhin-et-Moselle,
Sarthe, Yonne.

* Ain, Allier, Ard^he, Ari^e, Aude, Aveyron, Bouches-du-Rhdne,
Dyle, Doubs, Dordogne, Haute-Garonne, For^ls, Eiure-et-Loir, H^rault,
Isire, Lot, Meurthe, Lys, Lozdre, Orne, Basses-Pyr6n6es, Var, Vauduse,
Haute-Vienne.

* Cantal, Excaut, Gard, Indre, Indre-et-Loire (only the attorney-gen-
eral), Haute-Loire, Loire, Mame, Manche, Maine-et-Loire, Lot-et-Qa-
ronne. Moselle, NiSvre, Ptiy-de-Ddme. Hautes-Pyr6n6es, Pyr^n^es-Orien-
tales, Bas-Rhin, Haut-Rhin, Roer, Sa6ne-et-Loire, Sarre, Seine-et-Oise,
Stura-et-Tanaro, Vosges.

472

Title II, Ch. I] THE DRAFT OF THE CRIMINAL CODE [§ 3

more real grounds of safety than the institution of juries and pr»-
torships." ^ — " What a difference there is between our manners,
our customs, and our national character and those of the English
nation! Without entering upon the subject in detail and at
length ... it is sufficient to instance the comparison of Shake-
speare's plays and those of other English tragedians with those of
Coraeille, Racine, and Voltaire. ... In a word, the sad experi-
ence which we have had with the institution of the jury, notwith-
standing the various changes to which it has been subjected, proves
that it is irreconcilable with the national customs and character,
with those feelings of toleration and natural pity in the French-
man which incline his heart to commiseration." ^ — " The Eng-
lishman at the theatre only cares for apparitions, madmen,
dreadful criminals, murders long drawn out; he runs to animal
fights, and probably regrets those of the gladiators; who knows
if he does not seek the functions of a juror for the sake of the pleas-
ure of watching a criminal struggling with his conscience, with the
death that awaits him? The Frenchman, on the contrary, is
delicate in all his tastes; he eagerly flees from any sight which
could disagreeably awaken his sensitiveness ; could he have any
pleasure in wielding the bleeding sword of justice?"^ — "The
French Empire is in the centre of Europe, and Europe has only
courts without juries. The Revolution merely expanded and
strengthened the national character, it did not alter it. The
French will never cease to be what they have always been, gallant,
bellicose, witty, and frivolous. The reason that the institution of
the jury is analogous to the English constitution is probably be-
cause they have based the former upon their constitution alone.
It is the essential counterbalance of the royal prerogative, of class
distinctions, privileges, and of the feudality which it has been
their desire to retain. For the same reason the jury, which would
have been necessary before the abolition of the three orders and
feudality, has probably become useless here since all citizens have
become equal before the law.*' ^ — ** We unite in the general
desire for its abolition, and we say to the genius who has saved
France, and to all the generous and enlightened citizens whom he
has consulted, that there was a time when civil liberty should
have allowed the existence among us of the institution of the jury,
but that we have now arrived at the time when the interests of

* Ari^, vol. I, p. 1. * Aveyron, vol. I, pp. 15, 16.

* Doubs, vol. II, pp. 7, 8.

* Bouches-du-Rhdne, vol. I, p. 75 ; c/. Dordogne, vol. II, p. 25 ; Eure-et-
Loir, vol. II, pp. 9, 10 ; Haute-Garonne, vol. II, p. 41.

473

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

that same liberty demand its destruction." ^ — " We think that
the institution of the jury is the most undesirable gift which
England has made to us, and that it has against it not only the
result of an unfortunate experience but also the principles of -sound
philosophy." ^

The courts which demand the maintenance of the jury usually
speak less firmly ; most frequently they seize upon the idea ex-
pressed by the Grand Judge, that it is necessary to make a new
trial of it.^ Some, however, speak boldly: "The trial by
jurors, notwithstanding all the blemishes which tarnish it and all
the imperfections which disfigure it, has always appeared to us to be
the finest and the most liberal of the institutions which the French
people have derived from their political regeneration." * — " The
institution of the jury has still detractors. These usually judge
institutions only from the abuses which might result from them in
some particular, and not by the aggregation of good achieved by
them. If we go through the judicial records since the institution
of the jury we shall not find a single instance of an innocent per-
son having been condemned. It is true that guilty persons have
often escaped, but is it not much better that a hundred culprits
should succeed in evading the sword of the law than to see one inno-
cent person succumb to it ? On the other hand, go through the
annals of the old penal legislation ; what a large number of inno-
cent persons have perished upon the rack in the name of the law !
How much larger still the number of culprits who have not been
punished ! This parallel is sufficient to render homage to the
wisdom of the institution of the jury, and to carry conviction of
the necessity for its preservation. The criminal court of Maine-
et-Loire combines the two special courts of 18th Pluvi6se, year
IX, and 25th Floreal, year X. It has been, and it still is, easy for
it to estimate which of the two methods is preferable, either the
institution of the jury or the courts judging alone the fact and the
law. It does not hesitate to adopt the draft of the Code and to
maintain the institution of the jury." * — "Is it imagined that a
people must be almost entirely composed of philosophers and
legists, and do we look for an assembly of jurors equal in wisdom
to the Areopagus ? No people will ever be mature-minded enough

* Nord, vol. V, pp. 6, 7. ' Vauduse, vol. VI, p. 9.
■Phrases like the following are often foiind: "We agree with the

ma^strates, as respected as they are enlightened, who have already given
their opinion in favor of the preservation of the jury " (Sarre, vol. VI,
p. 6).

* Loire, vol. Ill, p. 2. * Maine-et-Loire, vol. IV, pp. 22, 23.

474

Title II, Ch. I] THE draft of the CRIMINAL CODE [§ 3

to suit those who are so exacting. Everywhere we find a few philos-
ophers, many of the rabble. Between these two extremes the mass
of the population is composed of simple honest men of good sense.
. . . We are not as good as the ancients, it is said ; we are not
even as good as the English ; I know nothing of that. . . . That
does not decide the question. The function of a juror is to de-
termine whether an accused is guilty of the deed imputed to him.
Well, what qualities are requisite to solve that problem? There
must be attention to the evidence, sufficient intelligence to grasp
it, and enough integrity to state in good faith the impressions re-
ceived from it. To say that the French are not worthy of enjoying
the institution of the jury is to say that they are not capable of
attention, or that they have not a certain degree of intelligence and
integrity." ^ — ** We cannot conclude without manifesting our
very pronounced desire for trial by jury. We are thoroughly
persuaded that it is the palladium of civil liberty. . . . We are
not less thoroughly alive to the necessity of preserving to the inno-
, cent accused the surest of safeguards. The whole evil comes not
from the institution itself, but from the defective organization
of the jury.'* ^ — *' Let the jury be abolished and the duty imposed
anew and forever on some jurisconsults, whom I shall even sup-
pose to be chosen from among the most upright and clear-sighted,
of pronouncing upon the honor and the life of accused persons, and
very soon they will regard as faulty that expression of the inner
consciousness, which we call conviction, whose voice is so dear
and powerful. They would have recourse (this we are forced to
believe, because a great many lawyers, and many judges, think
so eyen now), to the old rules of law in regard to evidence. . . .
And without desiring it they would be led into error much oftener
than juries could be, and in a manner much more regrettable." '
It must be noted that in no particular were the opinions always
absolute. Some in insisting on the maintenance of the trial jury
demanded the suppres^on of the grand jury ; others, on the con-
trary, wished merely to preserve the latter. " Experience has
shown that the grand jury is the most important part of the
institution of the jury. It is the door of the criminal sanctuary ;
and if it is always obstructed, as it has been down to to-day, it
must be closed altogether and an institution which offers more dis-
advantages than advantages discarded." ^ — ''It has been shown
that private citizens called upon to perform these sacred duties

* Manche, vol. IV, pp. 56, 57. * Pyr6n6ea-Orientales, vol. IV, p. 13.

• Sambre-et-Meuse, vol. VI, pp. 18, 19. * Aisne, vol. I, p. 8.

475

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

are never thoroughly imbued with the object of this institution.
It is impossible to make them understand that they are not judges
of the offense itself, but that other jurors are charged with that
duty." ^ — "I think that the institution of the grand jur^"^ is use-
less and that it even has bad effects. Without wishing to be accused
of desiring to innovate in attacking an established institution, I dare
to say that our constituent legislators in proposing to create among
us a new system of criminal procedure have not been sufficiently
on their guard against the spirit of imitation, which has caused
the introduction into their plan of proceedings well adapted to
the English system, but which are out of place in theirs." ^ — " The
grand jury will not be the subject of our observation. The in-
stitution in this particular is wanting in its chief element. The
jurors no longer judge upon oral depositions; they become in a
way judges of the written action." ^ — The following are opinions
to the contrary : " The members of the criminal court of the de-
partment of Lot are of opinion that with the help of a better choice,
which is proposed to be made, of the jurors, only the grand jury
ought to be preserved, and that the rest of the examination
and the judgment should be confided to the courts." * — " We
do not consider that the grand jury presents nearly so much danger
to society as the trial jury. Experience has proved that the jurors
more willingly determine to prosecute than to condemn. . . . The
adoption of this expedient would be to take the happy medium
between the opinion of those who would preserve the institution
of the jury and that of those who think it ought to be entirely
rejected." ^ — " The Grand Judge in his report, where he discusses
the organization of the jury, also seems to wish for its abolition.
That fact appears more strikingly on pages 214 and 215, relative
to the opinion which would preserve merely the grand jury, a
brilliant idea, which, wisely carried through, would probably be
the best way out of the difficulty of all the systems proposed." *
It may be asked if those w^ho wished to keep the grand jury only
really believed that that institution could exist for any length of
time deprived of its natural support. It was, we think, important
to set down the principal data of the inquiry ; it is curious to note
the prophecies then put forth on one side and the other, now that
time has given the solution.^

1 Loir-et-Cher, vol. Ill, p. 24. * Manche, vol. IV, p. 13.

» Eure-et-Loir, vol. II, p. 8. * Lot, vol. IV, p. 12.

» Orne, vol. V, pp. 8, 9. • Basses-Pyr^n^s, vol. V, p. 15.

^ We may say that the majority of the criminal tribunals were favor-
able to the retention of the jury. We may even regard as being won over

476

Title II, Ch. I] THE DRAFT OF THE CRIMINAL CODE [§ 4

§ 4. The Jury and the Publicists. — Besides the official inquiry
there was another open, to which all were summoned; it was
spontaneously made in books and pamphlets. The great ques-
tion of the jury preoccupied all minds ; the academies, as formerly,
offered prizes in regard to the question of criminal legislation.^
The pamphlets for and against the jury multiplied.^ There was,
with much less lustre and buoyancy, something recalling very re-
motely the movement of ideas preceding the reforms of the Revo-
lution. We had arrived at the moment of lost illusions; the
spirit of scepticism replaced the generosity of the early days ; both
camps no longer invoked the voice of nature, but the lessons of
experience. Let us say something of MM. Bourguignon and
Gach, whose works then attracted attention. In the year X the
Institute had offered for competition the question, " What are
the means of perfecting the institution of the jury in France ? "
This was clearly to indicate that the maintenance of procedure by
jury was not in doubt, and M. Bourguignon so states at the begin-
ning of his memorial, which won the prize. '' The importance of
the subject bears witness to the great wisdom of the learned men
who have proposed it and the general and liberal intentions of the
government, which manifests the most constant desire to amelio-
rate that institution." '

This memorial is an ardent pleading in favor of the jury. He
begins with a rapid comparison of the jury as it exists in France
with that of the Athenians, the Romans, and the English. '* The
lessons of experience are worth much more than abstract the-
ories." * Then, studying the principles which ought to determine
the formation of the lists of jurors, the author demands that only
citizens be admitted who have a certain amount of property,

to that opinion the tribunals who do not eive an opinion, acting on advice
which appears to come from the Grand Judge and the Court of Cassation.

* "Mfimoire qui a remport^ le prix en I'an X sur cette question propose
par rinstitut national : Quels sont les moyens de perfectionner en France
rinstitution du jury," by Bourguignon (Paris, year X). — "Moyens de
perfectionner le jury," by F. Canard, crowned work (Moulins 1802).

* See Bourguignony "Deuxi&me et troisiSme m^moire sur le jury." —
"De Texcellence de institution du jury et du syst^me des lois p^nales
adopt^s par T Assemble constituante," by Porcher (Orleans 1804). —
"Des vices de I'institution du jury en France," by M. Gach (Paris 1804).
— "R^sultatde Texp^Srience contre le jury fran^ais," bv M. . . . (Paris
1808). — Cf. " D4veloppement des lois cnminelles par la comparaison de
plusieurs legislations anciennes et modernes," by Scipion Bexon (Paris
year X).

* " Deuxidme et troisifeme m^moire sur le jury," p. 2. The author adds
in a note: "A commission composed of magistrates of the highest merit
is, by order of the government, exclusively employed in the preparation
of a bill upon this important subject."

* "Deuxi^me et troisi^me m^moire sur le jury," p. 7.

477

§ 4] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

and that they be chosen and not drawn by lot. Further, he says,
'^ Experience has proved that it is more disadvantageous to confide
the fonnation of that list to administrators than dangerous to
confer it upon magistrates . . . the administrative and judicial
authorities might, however, be made to concur in the choice of
jurors." ^ He demands that the method of challenge be altered,^
and that a simple majority of votes should suffice for condemna-
tion. " It is true,'* he says, " that according to our old criminal
laws the severest sentence only prevailed when it obtained a ma-
jority of two votes. This strange provision was no doubt adopted
to serve as a corrective or palliative of the barbarous forms with
which that Code was infected ; but it is not from that source that
the means for perfecting the jury ought to be drawn." * He pre-
sents very wise observations upon the drawing up of the questions
to be put to the jury, some of which might even be very useful
to-day.^ All these ideas, and many others contained in the work,
were perfectly judicious and capable of offering the legislator an
interesting subject for reflection.

M. Gach's work seems to have produced a rather striking im-
pression upon the minds of his contemporaries ; it was fairly fre-
quently quoted in the discussions of the State's Council. It was
a violent attack upon the institution of the jury, " that eldest
bom of the French Revolution, the illustrious conquest of the
eighteenth century over the wisdom of the preceding centuries ; " ^
but this pamphlet really contained nothing new, merely repeating
all the grievances we have so often heard raised, and that we shall
hear so often raised again ; the frivolity of the national character,
the ignorance of jurors. *' Considered in itself," said M. Gach,
" this institution is one of the finest conceptions of the human
mind ; but as experience has taught us to mistrust the most brill-
iant theories in matters of civil and political legislation, I under-
take to prove that the institution of the jury is merely a beautiful
philosophical dream, impossible of realization among us. French
soil, in other respects so fertile in celebrated and estimable men of

^ "DeuxiSme et troisi^me m^moire sur le jury," p. 34.

* IHd., p. 42. » Ibid,, p. 90.

^pp. 50-96: "The first method consists in publishing le^slative in-
formation as to the Penal Code, which shall include the exact and detailed
definition of every offense, in inserting in every indictment the legal defi-
nition of the offense, and in charging the magistrate, whose duty^ it is
to sum up the evidence, to explain to the jury how the characteristic fea^-
tures of the offense may be applied to the fact. . . . And I cannot help
observing on this occasion that this want of legal definition of offenses is
an important defect in our Penal Code " (p. 79).

' Gach, "Des vices du jury en France.'!

478

Title II, Ch. I] THE draft op THE CRIMINAL CODE [§ 4

all descriptions of talents and merits, will never produce good
jurors ; the obstacle is in the character, manners, vices, and even
the virtues of the nation. What advantages do you claim to draw
from the example of ancient and modem nations? Is there any
resemblance between the tribunals of Rome or Athens and the
French jury? What have the Greeks and Romans in common
with us, their manners with our manners, the time when they lived
with that in which we live ? The example of the English people
cannot be of great weight ; no nation in Europe except ours has
yet imitated them on this point ; and it is not reasonable to think
that the English alone are better advised in this particular than
the other nations of Europe." Elsewhere he says : " The mass of
jurors being composed of citizens of all classes, functionaries ex-
cepted, such jurors cannot usually but lack in intelligence. It
may be averred that the most intelligent nation in Europe, as well
as the most polished and good-tempered, is probably one of the
worst-informed. . . . There is no country where the mass of
citizens stagnates in more profound ignorance of everything re-
lating to the laws and public administration ; lacking the wish to
learn and too uneducated even to feel the value and necessity of
education, the Frenchman in general does not read, does not ob-
serve, does not reflect." This thesis was, moreover, relieved by
accurate observations upon the operation of the jury as then or-
ganized.

Bourguignon, however, resumed his pen and published two
more memorials upon the jury. In the second of these ^ his
object is to reply to the attacks against trial juries which in general
had their birth among the magistracy. '* I have heard juris-
consults and magistrates of the greatest merit cast doubt upon
the superiority of this procedure . . . the want of success, they
say, which it has obtained in France since it has been observed
there, proves to a nicety that, good as it is, it cannot be adapted
to our manners." ^ In his second memorial he sets out to refute
M. Gach's work, the endless objections in which, he says, have
been brought together and explained with very much force by a
very talented writer.* In these two works the courageous and
generous magistrate does not bring to bear any new elements to

^ "Deuxi^me m^moire sur Tinstitution du jury/' read in the j^eneral
dttingof the Academy of Legislation of the first Nivdse, year Xllf.

* "I)euxiSme m^moire," p. 3.

' "Troisi^me m^moire sur le jury," by M. Bourguignon, one of the mag-
istrates of the "parquet" of the imperial high court, judge in the court of
criminal justice of Paris (Paris 1808), p. 52.

479

§ 4] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

the debate, but he takes up ardently and lucidly the well-grounded
reasons for the maintenance of the jury. He furnishes, however,
some rather valuable statistics. In the second memorial he com-
pares the results obtained at Paris by means of the jury on one
side and the special court on the other in the years X and XL
Seven hundred and eighty-eight accused had appeared before the
jury, of whom five hundred and nineteen had been condemned
and two hundred and nine acquitted. Before the special court
one hundred and ninety-three accused had been brought; one
hundred and twenty-seven had been condemned and sixty-six
acquitted.^ In the third memorial he completes this information.
" During the years IX and X there were acquitted only one-fourth
of the accused persons tried by jury, although the very same court
acquitted more than a third of those that it has tried specially
and without jurors. The comparative abstract of the decrees
rendered by the same court during the years XI, XII, XIII, XIV
and onwards have given me almost the same results." ^

But it was thoroughly felt from that time that the solution of
this great problem depended upon the man in whose hands France,
weary and wounded, had placed her destinies. Bourguignon,
in his second memorial, addressed him without naming hun, when,
in a rather specific enumeration, he cites the celebrated men who
have been the partisans of the jury and those who have been its
adversaries. Among the first he counts Solon, Pericles, Aristotle,
Demosthenes, Lysias, the sons of Cornelius, Servilius Coepio,
Plautius, Silvanus, Marius, Sylla, Cicero, Pompey, Csesar; in
England Alfred the Great, John I, Henry III, Edward I ; among
the latter the thirty tyrants, and in England Henry IV, Henry
VII, Henry VIII, James I, Charles II.' He concludes by invok-
ing Augustus, a transparent allusion wanting neither in courage nor
dignity : " Augustus employed this all-powerfulness to pacify the
universe and procure for the Romans peace and safety ; but un-
fortunately he transmitted it entirely to his successors, who abused
it in the most shameful fashion. Posterity will have no right to
address these reproaches to him : Csesar, thou hast invested thyself
with absolute power, destroyed our institutions, overturned the
constitution of our ancestors; WTiat hast thou substituted for
these foundations of Roman greatness? The lex regia, that is
to say, absolute and arbitrary despotism. . . . Caesar, thy im-
providence has rendered it the author of all the acts of t\Tanny

1 "DeuxiSme m^moire," pp. 70, 71. * ."Troisifime mfimoire," p. 92.
' " Deuxifeme m^moire," pp. 59, 60.

480

Title II, Ch. I] THE DRAFT OF THE CRIMINAL CODE [§ 4

by which they (thy successors) have sullied the annals of the Em-
pire." * In concluding the preface to his third memorial he puts
up a prayer to his all-powerful master. " The polemical discus-
sion now taking place in regard to the jury will soon be finished.
. . . Persuaded that the advantages resulting from this im-
proved institution will not escape the vast genius which presides
over the destinies of the Empire, I would consider this final pam-
phlet absolutely useless if it did not serve to destroy the prejudices
sown among the different classes of society against a procedure
too little known." ^

* "Deuxi^me m^moire," p. 60.

3 r' Troisi^me m^moire," preface, p. 2.

481

§1]

PBOCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

Chapter II

THE QUESTION OF THE JURY BEFORE THE

STATE'S COUNCIL

§ 1. First Discussion of the Draft
before the State's Council.
Interruption of the Work.

§2. Resumption of the Work. Sup-
TOession of the Grand Jury.
Ketention of the P^tty Jury.

§ 1. First Discussion of the Draft of the Criminal Code before
the State's Council. Interruption of the Work. — The draft of
the Criminal Code had been sent, with the results of the inquiry,
to the section of the State's Council on Legislation, then presided
over by M. Bigot-Pr6ameneu, and composed of IVIM. Berlier,
Galli, R6al, Sim6on, and Treilhard.^ The debate in the State's
Council in regard to the Code, which, as formerly in regard to the
Ordinance of 1670, was necessarily to be the principal phase of
the preliminary work, did not begin till the 2d Prairial, in the year
XII (22d May, 1804). The official report of that first sitting is
very brief : " His Majesty, who presides over the sitting, author-
izes the section on Legislation to present within fifteen days the
fundamental questions on the draft of the Criminal Code." *
On 9th Prairial Napoleon renews this invitation; he declares
moreover, and this is very important, that the decision come to
upon this point shall not be final, " the Council remaining at liberty
to revise their first resolutions." ' It was also decided that the
commissioners who had prepared the draft should be present at
the sittings of the State's Council, but not at those of the section
on Legislation, where they would have formed the majority.
From that time everything is in readiness ; the work is about to
commence and was to be prosecuted until the 29th Frimaire, year
XIII. Then a long interval ensues, and it is only on 23d January,
1808, that the discussion is resumed, this time to end in the presen-
tation and the passing by the Legislative Body of the Code of
Criminal Examination.

* Locr^, vol. I, p. 205. The observations of the Courts of Appeal were
brought together only in the course of the year XII ; they are in |:eneral
dated in the months of Germinal, Flor^, Messidor, and Thermidor of
that year.

2 Ibid., vol. XXIV, p. 8. • Ibid,, vok XXIV, p. 9.

482

Title II, Ch. II] THE JURY BEFORE THE STATE'S COUNCIL [§ 1

One question for a long time delayed the Staters Council ; namely,
the one we have always met since 1789 whenever criminal legis-
lation has been discussed : Shall the procedure by jury be pre-
served, or a return made to the traditions of the old French pro-
cedure ? The judicial police, the prosecution, and the preliminary
examination also made some difficulty, but upon this point the
Law of Pluvi6se had cleared the way. As to the procedure be-
fore the trial jurisdictions, the broad features, as we have said,
had been definitely fixed by the Laws of the Intermediary Period.

Of the list of questions dealing with general principles, drawn
up by order of the Emperor and presented in the sitting of 16th
Prairial, year XII, the first eight deal with the jury.* Immedi-
ately discussion arises upon this point. Although the jury has
numerous opponents, it also counts supporters, and M. Regnaud
de Saint-Jean d'Ang^ly even proposes a kind of duel between
them by the creation of two rival commissions.^ MM. Sim^n,
Dupuy, Portalis, and Bigot-Pr&imeneu were heard in their turn, —
to cite but the chief speakers, — demanding the return to the old
forms of procedure, modified and rendered less severe. We al-
ready know their arguments ; they are those which we have found
in the observations of the Courts of Appeal and of the Criminal
Courts: "At the commencement of the Revolution useful re-
forms were made in criminal procedure, by introducing into the
information ' adjoints,' who supervised the examining judge,
by rendering the confrontation public, by giving counsel to the
accused, and by giving him communication of all the documents.
The wish for the best, which has done us so much harm in the
Revolution, subsequently led to the proposal of the jury." ^ —
*'In the publicity of the procedure and the trials lie the true
safeguards of individual liberty. With that publicity one would
be better and more justly tried by men whose office it is to do so,

^ The following is the complete list :

"I. Shall the institution of the jury be preserved ?

*' II. Shall there be a grand jury and a trial jury ?

*' III. How shall the jurors be appointed ; from what class shall they be
appointed ; by whom are they to be appointed ?

** IV. How is the challenge to be exercised ?

" V. Shall the examination be purely oral, or partly oral and partly
written?

** VI. Shall several questions be put to the jury, or only one : — * Is the ac-
cusedguilty or not guilty ? '

" Vli. Shall the verdict of the jury be unanimous or shall a certain num-
ber of votes determine the issue ?

" VIII. Shall there be magistrates entitled to hold assizes in certain dis-
trict criminal courts?" Locr6y vol. XXIV, pp. 11, 12.

« Locri, vol. XXrV, p. 22.

• M, Simion, Locrij vol. XXIV, pp. 3, 14.

483

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

and who have made a study and profession of it, than by all and
sundry." ^ — " The results of the jury may be judged from what
takes place among the English ; there is no country with a worse
police and less individual safety." ^ — " Portalis thinks that the
jury ought to be suppressed. . . . The best jurisconsults (Eng-
lish) are not favorably impressed with the jury. In England the
jury is the cause of very many disorders." ' — " The only point
in the new institutions which has obtained the general assent,
is the pubUcity of the examination. . . . Neither the accused nor
society finds a sufficient safeguard in the jury." ^

These are very categorical and rather strange assertions ; other
speakers arrive at the same conclusion, but by a less direct road.
" The institution of the jury has more disadvantages than advan-
tages, but it would probably not be proper to suppress it suddenly
now that we have become accustomed to it." ^ Without absolutely
repudiating the jury, the archchancellor defends the written pro-
cedure : " It is exceedingly extravagant to expend enormous sums
for a procedure of which no trace remains ... it is no less sur-
prising that the law attaches so little effect to the examination made
by the magistrate of police and by the director of the grand jury,
that it cannot be used even to enlighten the jury. See, besides,
how the written procedure could be established. The examina-
tion made by the magistrate of police would constitute a charge
against the accused, save for the proof offered by the evidence.
The evidence would not be writtien, but the confessions of the
accused and the variations of the witnesses would be contained
in the official report signed by them." • Cambac6r&, too, is a
supporter of the Ordinance of 1670 : " We ought not to be afraid
of taking some of the provisions of the Ordinance of 1670. . . .
The deprivation of counsel and defenders and the interrogation
upon the prisoner's bench certainly ought not to be reestablished,
but that does not apply to the confirmation in which a witness/an
correct himself, or to the confrontation where the accused is al-
lowed to object to the competency of the witnesses and to dispute
their depositions. With some alterations, the articles of the Or-
dinance of 1670 upon this subject could be usefully employed in
our new legislation." ^

Everybody, however, protests against the doctrine of legal

1 M. SimSon, Locri, vol. XXIV, p. 21.

* 3f . Dupuy, Locri, vol. XXIV. p. 29. » Locri, vol. XXFV, pp. 34-36.

* M. Bigot-PrkimeneUf Locri, vol. XXIV, p. 40.

* M. Boiday, Locri, vol. XXXIV, p. 22.

* Locri, vol. XXXIV, p. 27. ^ 75^.^ vol. XXXIV, p. 28.

484 •

Title II, Ch. II] THE JURY BEFORE THE STATERS COUNCIL [§ 1

proofs. The magistrates who would replace the jury should form
their conviction " not upon the proofs called legal, but with the
same means, the same elements as the jury and according to the
evidence." * Portalis even tries to show that heretofore the doc-
trine of legal proofs existed only in a sense favorable to the accused :
" It would be a mistake to suppose that this doctrine would compel
the judge to condemn when two witnesses agreed upon the same
fact ; it is limited to preventing the judge from condemning when
there are not at least two such witnesses." ^

There were in the Council, how^ever, men who did not abandon
the principles of that Revolution, which had in some cases drawn
them from obscurity and from the lowest ranks of the people to.
carry them to honor and power. The jury found capable and elo-
quent defenders: MM. Berlier, Treilhard, Defermon, Cretet,
Berenger, Frochot, and, lastly, the high constable M. Regnaud de
Saint-Jean d'Ang61y declared themselves in favor of its main-
tenance. They invoked the equitable and protective character
of the procedure by jury ; they showed above all that it had not,
so far, been in operation in France under normal conditions:
" Probably, had we been living under the rule of the Law of 1789,
prudence, the enemy of innovations and trials, would have coun-
selled us to remain as we were ; but the step has been taken, and
the same prudence forbids us to renounce an improvement so dearly
acquired." * — " Why do the English still so jealously guard it
(the jury system) ? There is reason to believe that it is because
nothing is more terrible than to give to a few the perpetual right
of life and death over all the others." * — " To-day, when the legis-
lature can follow the counsels of wisdom and reestablish the jury in
all its purity, the nation will probably see with surprise such a Uberal
institution obliterated from the Code of its laws, under a leader
whom it knows to be strongly attached to liberal sentiments." * —
" The nation is attached to the institution of the jury for the reason
that, although it has been the means of several scandalous ac-
quittals, it has at least the advantage of never putting the accused
at the mercy of individual passion." • — " So long as the institu-
tion of the jury has not been vitiated, it has had none but ad-
vantageous results."^ — The high constable declares that "he

1 M . Simion, LocrS, vol. XXXTV. p. 19.

» Locri, vol. XXXIV, p. 53. » M. Berlier, Locri, vol. XXIV, p. 25.

* M. Cretet, Locri, vol. XXIV, p. 30.

» M, TreUhard, LocrS, vol. XXlV, p. 33.

• M. Frochot, Locr4, vol. XXIV, p. 44.

' M. Defermon, Locri, vol. XXIV, p. 37.

485

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

has always heard the jury spoken of as one of the principal ad-
vantages which the French have derived from the Revolution,
and as one of the most certain safeguards of liberty." * — M. Re-
gnaud de Saint-Jean d'Angfly asserts that " the gravest incon-
veniences would follow its suppression. . . . From 1789 to 1791
attempts were made to bring to the form of procedure, introduced
by the Ordinance of 1670, the only modifications of which it was
susceptible. That trial had not been a happy one. Then the
jury was established, and obtained general approval." ^

The defenders of the jury especially triumphed when they
pointed out that it alone was compatible with that doctrine of
moral proofs that everybody would respect : " No law enjoins
upon criminal judges the subordination of their moral con-
viction to legal proofs, although the legal proofs might often
prevail." ' — "It would be arming professional judges with too
formidable a power to call upon them to decide upon the fact,
and to allow them to allege no other grounds for their judgment
than their private opinion, their conscience. The judgment of
the fact could not be intrusted to them without reestablishing the
doctrine of legal proofs; but since that system is acknowledged
to be pernicious the result is that it is not necessary to constitute
permanent jurors, and it is necessary to return to the jury." *
— " Might it not happen that each court would create its own
principles and constitute a body of doctrine upon the choice of
circumstances which ought to entail acquittal or condemnation ? " *

The supporters of the jury, moreover, accepted, either as a
transitory measure or as a permanent institution, the special
tribunals for the more dangerous criminals: "If allowance can
be made for special circumstances by temporary restrictions, why
destroy the principle and deprive our descendants of the benefit
of the institution? " • — " The right to be tried by jury is a civic
right: hence it cannot be claimed by vagrants and vagabonds.
There is no objection to the establishment for them of a * pre-
v6tal ' court of justice, provided it be better organized and less
rapid in its movement than the old. The crime of forgery should
also be remitted to these courts." '

In this important discussion, however, which really should

1 M. Defermon, Locri, vol. XXTV, p. 44. « Ibid., vol. XXIV, p. 38.

» M . Berlier, LocrS, vol. XXIV, p. 25.

* M, Birenger, LocrS, vol. XXIV, p. 43.
» M. Cretet, Locri, vol. XXIV, p. 31.

• Af. Berlier, LocrS, vol. XXIV, p. 24.

' M. Regnaud, Locrij vol. XXI V, p. 39.

486

Title II, Ch. II] THE JURY BEFORE THE state's COUNCIL [§ 1

have been decisive, although it was recommenced later on, all
eyes were turned towards the chief who presided over it.
Napoleon had intervened several times; he appeared greatly-
struck with the system expounded by M. Simeon : " His
Majesty says that no reply has been made to what M. Sim6on
has advocated, that the judges, not being compelled to decide
according to the legal proofs, are no more than jurors, but
have this advantage over the ordinary jurors, that they are
better trained and better chosen ; that it would be from such citi-
zens that jurors would have to be taken, although they were not
invested with the character of judges." ^ But the discussion
took a turn more and more favorable to the maintenance of the
jury. " M. Berlier says that the more the debate progresses,
the more satisfied he is of the sufficiency of the institution of the
jury, and that it merely needs some improvements." ^ Then the
Emperor found it expedient to close the debates; but he took
care to observe : " that he does not regard the Council as bound
by the resolution which has been taken, and that if, in organizing
the system, unforeseen obstacles should be encountered, the
Council are at liberty to revert to their original opinion." ' He
took the opportunity, however, of giving his opinion : " On both
sides very strong reasons have been adduced for and against the
institution of the jury, but it cannot be denied that a tyrannical
government would have a greater advantage with the jury than
with judges, who are less under its control, and who would al-
ways oppose it more vigorously. Had the most terrible tribunals
juries? Had they been composed of magistrates, the customs
and the forms would have been a rampart against unjust and arbi-
trary condemnations. The severity which the continued exer-
cise of these functions could impart is little to be feared, since the
procedure is public, and there are defenders and debates. His
Majesty, however, has no objection to the jury if it is possible
to insure its proper composition. ... It will also be necessary
to organize exceptional courts to take jurisdiction of offenses
committed by non-residents or by those united in bands." *
From that time (for the moment at least) the question was de-
cided: "The Council adopts the principle of the preservation
of the institution of the jury." ^ Immediately afterwards the
second question : *' Shall there be a grand jury and a trial jury? "

1 Locr^, vol. XXIV, p. 33. « Ihid., vol. XXIV, p. 45.

» lUd., vol. XXIV, p. 46. * Ibid,, vol. XXIV, p. 47.

» Ihid,, vol. XXIV, p. 48.

487

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

was answered in the aflSrmative, after very brief remarks by
MM. Treilhard and Bigot-Pr6ameneu.^

The choice of jurors was the next thing to occupy the State's
Council's attention; this point, however interesting it may be,
we may pass over ; but incidentally one of the debates brings up the
old ideas. Napoleon asks if in the opinion of the Council lawyers
should be allowed as counsel ; ^ and opinions unfavorable to the
liberty of the defense made themselves apparent. " M. Miot says
that in England the accused have not as a matter of right the
power to choose defenders. In all cases advocates are not admitted
to this dutv because it is feared that they would obscure the facts.
Counsel sit near the accused and help them with their advice,
but they plead only when they have obtained permission to do so." '
M. Regnaud de Saint-Jean d'Ang€ly went farther : " In the civil
courts the agency of lawyers is always necessary because there the
disputed points present questions of law, which could not be dis-
cussed except by men versed in the knowledge of the law ; but it
is different in criminal courts, where the only point is the discovery
of the truth of a fact. There, the accused himself can, by the
explanations he gives, clear himself from the charges brought
against him ; it is, therefore, not necessary for him to have a de-
fender. There are, it is true, men whom ignorance or timidity
prevent from explaining themselves, and it would be necessary to
make an exception in their case. The president of the court
would decide whether or not it was proper to admit this exception
and to grant a defender." This was, in fact, what was formerly
said in justification of the Ordinance.

This proposition, however, which Lamoignon had formerly
vainly opposed, gave rise to protests : " M. B6renger says that
it would never be possible to find an organization and forms per-
fect enough to give to the judge the certainty that he never
condemned an innocent person. Sometimes appearances are
against the accused, and because his confusion and fear prevent
him from explaining them away, he appears to be guilty. It is
therefore always necessary that he should have the aid of a de-
fender. This aid, moreover, cannot be refused without recalling
a too notorious law with which our criminal procedure ought not
to have any relation. M. Treilhard says that the accused to whom

» LocH, vol. XXIV, p. 48.

^ A few moments before he had said : " It is important to admit as de-
fending counsel for the accused men unacquaint^ with the customs of
the bar." Locr^, vol. XXIV, p. 52.

» Locri, vol. XXIV, p. 52.

488

Title II, Ch. II] THE JURY BEFORE THE state's COUNCIL [§ 1

a defender is refused would be convinced that there was a desire
for his destruction. The rule which M. Miot declares exists in
England is part of the law, but in fact an accused is never refused
permission to have a counsel." * It was not difficult to show that
the provision which would exclude counsel would be illusory and
that, moreover, their aid was legitimate and often necessary.*
'* It would be preferable to give a discretionary power to the presi-
dent, to authorize him to silence any advocate who does not keep
within the limits of a legitimate defense, and even to bar such an
advocate from the court when circumstances demand it." ^

In the same sitting, the Council decided upon the question of
the written procedure. In this respect the reformatory tendencies
seemed to triumph. Cambac6r6s expounded the proposal of
which we have spoken before : " As matters exist at present, the
examination is wholly oral ; for what has been written only serves
as information for the direction of the trial. . . . The first informa-
tion will continue to be made by the magistrate of police. . . .
This procedure will be transmitted to the director of the jury,
who will make the confirmation of witnesses. ... All these pro-
ceedings will be sent to the Court of Criminal Justice along with
the accused, who will be allowed to have a counsel visit him in his
prison. The trials will be opened by the reading of the proceedings
conducted by the magistrate of police and the director of the jury.
Witnesses will be summoned ; the accused, aided by counsel seated
near him, will be entitled to urge objections to their competency
and to disprove their depositions. The official report will not
contain the evidence in detail, but the attorney-general and the
accused will have the right to have the results thereof stated.
The whole will be submitted to the jury." — " His Majesty adopts
the idea of submitting a copy of the information to the jury.
He nevertheless thinks that that made by the police ought not to
be communicated to them ; for the police examines chiefly with
a view to discover all the culprits and all the circumstances of the
crime ; for this reason it ought to work in secret. The examining
judge, on the contrary, has no other purpose than to arrive at the

» Locri, vol. XXIV, pp. 53, 54.

' **M. Simeon says tnat the reg^ulation which would exclude advocates
would be evaded ; they would compose the pleas for the defense. [This re-
minds one of the "lo^o^phs" of Athens.] We should, moreover, see
gathering about the criminal courts, as formerly before the consids, men
who are not graduates, who would exercise the office of defending counsel
and would very soon acquire the art of circumventing justice as well as
the lawyers" (p. 52).

' M, BirengeTf LocrS, vol. XXIV, p. 54.

489

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

truth of the facts." — " The proposals of his Royal Highness, the
Archchancellor, are adopted with the modification that the exam-
ination made by the police is not to be communicated." ^ This
was a very important decision; it was making that mixture of
the written procedure and the procedure by jury, which the wis-
dom of the Constituent Assembly had repudiated. This would
probably have resulted in the destruction of the very institution,
the maintenance of which had been decided upon; but happily
this idea, as we know, was not carried into effect.

The debate continued throughout the sittings of 23d and 30th
Prairial. Other questions of principle were decided, the most of
which concerned criminal law, properly so called. The institu-
tion of '* Prsetors," against which the majority of the Courts of
Appeal and the Criminal Courts had given their opinion, was
vigorously opposed ; it was decided that the Courts of Criminal
Justice should be stationary.^ The discussion passed to the arti-
cles presented by the section on Legislation (this was the first part
concerning the criminal procedure to be taken up), which occupied
the sittings of 17th, 21st, 24th, and 28th Fructidor in the year
XII ; and 3d, 10th, 14th, 17th, 21st, and 24th Vendgmiaire in the
year XIII.»

Everything appeared to be going smoothly, when all at once
the jury was put in question anew. In the sitting of 1st Bru-
maire, in the year XIII, presided over by Napoleon, M. Bigot-
Pr6ameneu reported a deliberation which had taken place in the
section on Legislation " upon the union of the criminal courts
and the civil courts." The idea of the Revolution had been, on
the contrary, completely to sever the two courts of justice, and to
have criminal courts distinct from the civil courts. But the new
proposal appeared to simplify and increase the dignity of the magis-
tracy. The union of courts had already been recognized in re-
gard to the correctional police by the Law of 27th Vent6se in the
year IV ; the judgments were henceforth rendered in that matter
by the courts of the first instance ; it was destined very soon to be
the same in regard to the ordinary police courts, save for one slight
exception which has disappeared in our days.

The following was the proposed procedure in criminal matters.^
The accused would be brought by the examining magistrate be-
fore the court of the first instance (which would fulfil the func-

1 LocrS, vol. XXIV, pp. 56, 57. « /6id.,vol. XXIV, p. 99.

» Ibid., vol. XXIV, pp. 108-419.

* A bill was introduced in regard to this in the sitting of 8th Brumaire,.
year XIII (Locri, vol. XXIV, p. 428 et 8eq,).

490

Title II, Ch. II] THE JURY BEFORE THE state's COUNCIL [§ 1

tions of the grand jury), composed of six judges, with the addition
of the examining judge. The Courts of Criminal Justice were
united to the Courts of Appeal and bore the name of Imperial
Courts. In these courts one section was constituted, — re-
newed every year like the " Toumelle " of the old pariements ;
before it were brought not only the appeals of the correctional
police, but also the criminal actions in regard to which arraign-
ments had been decided upon. In the bill the jury was preserved.
Article 19 : ** The judgments in criminal matters will be rendered
upon the verdict of a jury."

A considerable revolution was thereby wrought in the working
of the jury. Up to that time, the union of the juries in each de-
partment had always been a principle, and it had become custom-
ary. The provision requiring the carrying to the chief seat of the
court of all the criminal matters of the jurisdiction had the effect
of rendering jury service, already obtained with great diflBculty,
impossible. It also meant the substitution, in the near future,
of the written procedure for the oral procedure, the transportation
of the witnesses to the chief seat of the court becoming too diffi-
cult and too costly. It was an indirect method, making the new
practice re-establish, by its own workings, the old procedure*
All this was foreseen from the very first; it was acknowledged
by the opponents, as well as the supporters of the jury. " It is
true," says M. Boulay, '' that the union of the criminal and civil
courts means the ultimate destruction of the jury. It is certain
that when the public sees on one side enlightened magistrates and
on the other ignorant and inexperienced jurors, the parallel will
not be advantageous to the latter ; it seems, then, that it would be
proper, if we decide upon the union, to decide frankly at the same
time upon the suppression of the jury." ^ M. Treilhard, with a
new warmth, takes up the defense of the threatened institution.
" The jury," he says, " is getting along much better than in the
past ; it will get along still better in the future. . . . How, with-
out enormous expenses and delay in the actions, can the accused,
the witnesses, and the jurors of seven or eight departments be trans-
ported to the chief places of the Courts of Appeal ? . . . Would
you dispense with the hearing of the absent witnesses? That
would mean the destruction of the accused." Finally, he addresses
to the Emperor a personal argument, containing at once a flattery
and an irony, but really also containing the truth : ** The
institution of the jury," he tells him, " will succeed if people are

1 Locr^, vol. XXIV, p. 416.
491

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

thoroughly persuaded that it meets with Your Majesty's views." *
Napoleon wished to mitigate the effect produced by the bill and to
conceal its consequences : " It is not," he interjected, *' a question
of the institution of the jury," ^ and later he added : '* That if it
was wished to return to the question of the maintenance of the
jury, it should be approached frankly, but that question had been
decided, and His Majesty shared the opinion of those who thought
the jury ought to be maintained. This method of procedure
appeared to be the best ; and besides, it was enough to insure His
Majesty's adoption that it had not been unanimously rejected." *
Erelong, in a long speech, he endeavored to refute M. Treilhard's
objections. But the truth was not long in reappearing. The
Archchancellor made this statement : "It may be objected that this
system is incompatible with the procedure by jury ; His Royal
Highness is not in favor of that institution and he thinks that
public opinion is not favorable to it." *

In the following sitting, the question was directly broached.
The suppression of the grand jurj'' was proposed. M. Treilhard
showed that the motion was unconstitutional, the constitution
of the year VIII guaranteeing the double jury. Deception was
tried ; it was said that the grand jury was not really suppressed,
that it was proposed merely to ** convert the judges into jurors." ^
But Napoleon himself declared that " the constitution declares
too imperatively that the accusation shall be admitted by jurors
to allow of this power being conferred upon judges without a
senatus-consultum." • This question was not of very great funda-
mental importance. MM. Treilhard and Berlier brought the
debate back to the leading point, that is to say, the trial jury, the
early destruction of which was assured by the bill ; for " to main-
tain an institution on paper means nothing when the germ of its
destruction is planted there." ^ They demanded urgently that
the question should be definitely settled, and they easily won their

1 Locri, vol. XXIV, pp. 420-422. * Ibid., vol. XXIV, p. 420.

» Ibid., vol. XXIV, pp. 422, 423.

* Ibid., vol. XXIV, p. 439. Napoleon also expressed the idea that he
desired large judicial bodies, ''because it is necessary that, if the public
prosecutor neglects his duties, the criminal court should be able to send for
him and order him to prosecute.'* M. Treilhard replied that *'all this time
the of&ce of the person who prosecutes has been distinguished from that of
the person who judges, because it would be contrary to law to make the
same individual a judge and a party." — "His Majesty says that it does
not enter into his ideas to allow the courts of judicature to directly prose-
cute crime, but that he wishes that the courts may be able to order the
prosecution thereof" (pp. 418, 419).

« M. SirrUon, Locri, vol. XXIV, p. 437.

• Locri, vol. XXIV, p. 439. ' Ibid., vol. XXIV, p. 443.

492

TlTLB II, Ch. II] THE JURY BEFORE THE STATE'S COUNCIL [§ 1

point. *' His Majesty allows the renewed discussion of the ques-
tion of whether the jury shall be retained." The discussion was
short. MM. Fourcroy and Montalivet spoke in favor of the jury,
and the " Council adhered to the resolution which it had taken
in the sitting of the 16th Prairial for the preservation of the jury."
The strategy had been baffled almost without a struggle.
But the battle was not yet finally won : the organization of the
criminal courts was still threatened.

Then M. Berlier had a fertile idea. Adopting the principle
of the union of the two Courts of Judicature, he found the means of
reconciling this with the normal working of the jury : " Let us
commence by uniting all the judges of both jurisdictions, so that
they will form but one body, from which will be taken successively
judges who will proceed to hold, in criminal matters, periodical
assizes in the chief place of each department, and who, on their
return to the Court of Appeal, will there decide upon the civil
disputes of their fellow-citizens." ^ This was, it is evident, the
system which was destined to triumph, and which experience has
sanctioned, — a system much preferable, it must be said, to that of
the Constituent Assembly, because the president of the assizes
is required to be a magistrate elevated in rank and chosen with
care. M. Treilhard also openly came to his aid. This proposal,
however, was contested by the Archchancellor ; he declared " that
if the jury is admitted, it is to please some noble minds, but he is
persuaded that it will rather be by forming great bodies than by
this institution that the establishment of a rigorous and imposing
juridical system will be attained." ^ Finally, the Council decides
the principle, " that civil and criminal justice will be rendered
by the same court; that these courts shall be stationary, not-
withstanding which, in cases of necessity, the criminal section
could ga and hold its assizes away from the place where the court
sits." * A merely illusory concession was made to M. Berlier's
idea ; but the germ deposited was to grow till it penetrated every-
where.

In the sitting of 15th Brumaire, year XIII, the supporters of
the jury gained a new advantage, which, however, could not
be lasting : " the Council adopts the principle that the verdict
that there is or is not ground for indictment shall continue to be
given by jurors." *

The discussion of the bill upon the union of the two Courts of

» Loer^, vol. XXIV, p. 445. « Ihid.y vol. XXIV. p. 447.

» Ibid., vol. XXIV, p. 452. * Ibid,, vol. XXIV, p. 454.

493

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

Judicature was continued in the sittings of 22d and 29th Bru-
maire, and 20th Frimaire in the year XIII. Three new drafts
were proposed and discussed. Suddenly an interruption occurred.
Proceedings were taken " to report to His Majesty observations
presented by the magistrates who have been summoned to the
coronation." The chief justice declares that, consulted upon the
union of the two systems of justice, " the president and attorneys-
general of the criminal courts have not attacked the system in
itself, but there appears to be a general fear that it cannot be recon-
ciled with the summoning of jurors and witnesses. However, the
magistrates are sure that the examination by juries has for some
time taken a better direction. The increase in crimes is verv
much less." ^ The Archchancellor " has found more magistrates
than he thought of the opinion that the examination by juries
ought to be preserved, but with modifications. This opinion is
shared even by those who were the loudest in their complaints
on account of the direction the jury had taken in several partic-
ular circumstances; they agree that matters are improved and
that there are fewer abuses. In regard to the union, the system
appears to them to be good, but one difficult of execution, so far
as regards the jury." — " Opinion is unanimous," says M. Treil-
hard, " upon the impossibility of preserving the jury if criminal
and civil justice are united." ^ M. Berlier asserts that " according
to several magistrates wdth whom he has had occasion to speak,
the abolition of the jury will be the necessary and early conse-
quence of the plan of union resolved upon in the recent sittings.
But that does not constitute the only risk which this bill incurs ;
it also endangers the oral examination and the public trial. Now,
although opinion is divided upon the institution of the jury, everj--
body at least agrees in thinking that the abolition of the oral ex-
amination of the trial will be a public calamity ; that, however,
will not be long in happening if the bill goes through. ... As no
one dares to propose that it shall be sufficient to submit simple
copies of the depositions, as was practised under the Old R6gime,
the existing courts must be maintained as the only kind of organiza-
tion to which the beneficent institution of the publicity of trials
can be adapted." ^ — " M. Defermon says that the general opin-
ion is that the union would destroy the jury, in the course of time

* Locri, vol. XXIV, p. 509 ; he adds later "that before having heard the
observations of the magistrates he was persuaded that the institution of
the jury could be reconciled with the two systems of justice; now he
thought it impossible " (p. 516).

« lbid.y vol. XXIV, p. 510. » lUd,, vol. XXIV, p. 510.

494

Title II, Ch. II] THE JURY BEFORE THE STATE's COUNCIL [§ 2

at least ; but what is of especial importance is to ascertain if this
institution can be abandoned without abandoning at the same time
the public trials, which are the accused's safeguard." ^

The Emperor then demanded if the tribunals had '' expressed
a positive opinion upon the institution of the jury." ^ The replies
were very clear : ** The majority," says the chief justice, " decide
against any institution with which the jury cannot be reconciled ; " *
and the Archchancellor " has found the opinion of the magistrates
more favorable to the jury than he thought." Public opinion was
clearly expressed ; so Napoleon, unveiling his true thoughts, de-
clared that *' the opinion upon the institution of the jury appears
to besodoubtful that its suppression would not excite any regrets." *
The Council, however, " resolves that criminal and civil justice
shall continue to be administered by different tribunals."

From that time everything seemed to be at an end upon that
point ; there remained nothing but to discuss the articles of the
draft of the Penal Code. This discussion was effectually resumed,
and in the three sittings of 22d, 27th, and 29th Frimaire, in the
year XIII, a new draft of the first ninety articles was examined.
Then the work was suddenly stopped, and was not taken up again
until after the lapse of three years, in 1808. How is this to be
explained ? ^ Was it not that the Emperor had determined on the
suppression of the jury, but had decided that as the moment was
not favorable, he must wait, thinking that probably several years
would suffice to efface the sympathies which this institution still
retained? The work, therefore, remained uncompleted and the
thread suspended. " Pendent opera interrupta minseque I "

§ 2. Resumption of the Work. Suppression of the Grand Jury.
Retention of the Petty Jury. — WTien the work was resumed in
1808, the great debate was again taken up. The first sitting
(23d January, 1808) is opened by the report of M. Treilhard : " He
reports regarding the trend of the discussion which took place in
the year XII, and adds that the matter was reduced to the pres-
entation ot various questions, the solution of which ought to fix
the foundations of the bill ; that several have been decided, and
that others remain undecided." He had these questions read,
the first being : " Shall the institution of the jury be preserved ? "

> Locri, vol. XXIV, p. 512. * Ibid., vol. XXIV, p. 516.

> Ibid,, vol. XXIV, p. 517. *Ibid., vol. XXIV, p. 519.

^ Napoleon had previously stated that it was necessary to make haste ;
''there is no advantage in dela3dng the drawing up of the Criminal Code ;
next vear would find them in the same state as at present. Time alone
would not bring about unanimity of opinion, nor would it remove doubts
or furnish ideas.*' Locri, vol. XXIV, p. 440.

495

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

The great problem still presented itself, mingled with that of the
union of the two courts of justice, to which Napoleon steadfastly
clung. In this first sitting the attack and the defense of the threat-
ened institution took place under very much the same circumstances
as in the years XII and XIII. Three times the Emperor asked
how the jury had worked during the three years. The chief jus-
tice replied rather vaguely *' that in general, the jurors fulfilled
their functions rather feebly, and that they encouraged crime by
the resulting impunity." ^ But M. Treilhard, while acknowledging
that he could not speak to the point upon the existing condition
of the jury, declared ** that, after all, the number of offenses has
diminished. The special tribunals, it is true, have contributed
very much to stop the disorder; however, many crimes are still
tried by juries." ^ M. B6renger " remarks two facts : one is no-
torious, that offenses are diminishing in number ; the other, which
nobody disputes, is that there is not a single example of an unjust
condemnation." ' Cambac6r^s asserted anew that the jury " is
not in accordance with the character of the nation," * and M. Jau-
bert " that the greater part of the French nation repudiates the
institution of the jury." But Napoleon always intervened per-
sonally with great energy ; there was a sort of argument between
him and M. Treilhard : " M. Treilhard said that the bill had the
disadvantage of destroying, in fact at least, the publicity of the
trials, which is the greatest safeguard, and the want of which an
examination in writing caniiot supply ; nothing was more disas-
trous than the secret procedure. — His Majesty said that there
was no question of reestablishing the secret procedure. — M.
Treilhard replied that that was what would inevitably happen by
force of circumstances. — His Majesty asked if the union of the
two systems of judicature did not present any advantage. — M.
Treilhard replied that it would form great bodies, but that he does
not see in that the means of gaining more respect for the magis-
tracy.— His Majesty said that there would result from it the ease
of converting civil actions into criminal actions, whenever that
was proper to be done. — M. Treilhard protested that this conver-
sion was very rare.^ — His Majesty said that it would be very
extraordinary if, for the slightest civil interest, a citizen should
have the option of being tried successively by two courts, and that
when his honor and his life were concerned he should be allowed

1 LocrS, vol. XXIV, p. 579.

« IHd., vol. XXIV, p. 581. » Ibid,, vol. XXIV, p. 591.

* Ibid., vol. XXIV, p. 591. » Ibid,, vol. XXIV, p. 587.

496

Title II, Ch. II] the JURY BEFORE THE state's council [§ 2

but one stage of jurisdiction. — M. Treilhard said that there
were also two stages in criminal prosecutions, since the accused
was examined by the grand jury and by the trial jury. — His
Majesty said that did not constitute two stages." ^ Finally the
Council, once more, " decides that the jury be preserved, but that
the cognizance of certain offenses shall be reserved for special
tribunals."

It might be thought that the question was irrevocably settled,
that it would not appear again. That, however, was not the case ;
it was taken up in the following sitting, on 2d February, 1808.
The first speaker was M. Jaubert, one of the most decided oppo-
nents of the jury, and his first words clear up the situation : " It is
not denied that the opinion appears to be formed in the Council,
that the maintenance of the jury is decided upon, and that there
remains as a counterbalance to these deciding votes nothing but
His Majesty's genius and authority." ^ M. Jaubert's forcible
address, in which he maintains '' that the old institutions had
specific advantages over this modern institution," concludes with
a demand " for the suppression of the jury, for the formation of a
great body to exercise at once both forms of justice; for the
organization of a procedure which shall preserve publicity of
actions and the use of counsel in defense." *

Thereafter the discussion started again. The Minister of Reli-
gion disputed the possibility of separating law from fact; he
asserted that in England the jury was regarded ** as a regrettable
institution " ; * and that " although Europe has made great prog-
ress in civilization for several centuries, no nation has adopted
the trial by jury." M. Berlier proceeded once more to defend
the noble cause which he had hitherto so energetically supported :
"The institution of the jury is thoroughly tested; it has in its
present shape rendered great services to society, and it will ren-
der still greater services in its future form." * The Emperor
himself appeared this time to have come to a decision : " His
Majesty says that he prefers the old legislation to a system where
the same judges would always decide as jurors ; habit would ren-
der them callous, and the accused would no longer have the same
safeguards as formerly. It is necessary that the functions of the
juror be performed but rarely by the same person." The Council
" adopts the trial by jurors anew."

> Locri, vol. XXrV, p. 588.

* Ibid., vol. XXIV, p. 603. > Ibid,, vol. XXIV, p. 607.

* Ibid,, vol. XXIV, p. 613. » Ibid., vol. XXIV, p. 618.

497

% 2] PROCEDURE SINCE THE FRENCH REVOLUTION [ParT III

This decision was taken for the fourth time. The matter will
not come up again. The institution, however, did not emerge
entirely unscathed from the attacks made on it ; the grand jury
was abolished. M. Jaubert declared " that with the grand jury
society has no longer a safeguard ; " and Napoleon, in a very able
statement, showed that this jury was singularly inappropriate for
the task it ought to fulfil. *' The Council decides that the grand
jury shall be suppressed." ^

There remained the important question of the organization of
the criminal courts and the union of the two systems of justice.
A plan had been submitted by Napoleon at the sitting of 23d Janu-
ary.^ At that of 2d February he submitted a new one.* The
section on Legislation set to work upon these proposals, and,, in
the sitting of 6th February, Treilhard presented another draft ; *
he stated that the section had blended the two plans, chiefly fol-
lowing the second : " Besides, it presents but the foundations for
the opinions of His Majesty and his Council." A discussion then
arose, resulting in the section on Legislation preparing seven
new articles, which were discussed in the sitting of 16th Febru-
ary.* A fifth, sixth, and seventh draft were successively submitted.
Finally, after all these waverings, it was decided, as M. Berlier
had already proposed, that the criminal courts should be united
with the civil courts, but that the juries of each department should
meet at the chief place of each department. The two principles
were reconciled by substituting for the permanent criminal court
assizes presided over by members of the Court of Appeals, sitting
along with assessors, chosen from among the members of the court,
or from among those of the courts of the first instance. The solu-
tion of the problem had been found.

There was also some hesitation as to the arraignment : " The
Council," said M. Treilhard, " originally placed the prosecution
with the courts of the first instance ; afterwards it was delegated
to the Imperial Courts. In order to do away with this system,
which the section believed to be dangerous, it attempted to put
the matter in the hands of the imperial procurator and the exam-
ining magistrate." • If these two magistrates were agreed, the
accused must be brought before the assizes ; if they were of differ-
ent opinions, the matter was referred to the court. This was
something abnormal ; and a new draft, that of 7th February, 1808,

1 Locr6, vol. XXIV, p. 622. * Ibid., vol. XXIV, p. 582.

» Ibid., vol. XXIV, p. 591 et seq. * Ibid., vol. XXIV, p. 601.

» Ibid,, vol. XXIV, p. 624 et seq. • Ibid,, vol. XXIV, p. 656.

498

Title II, Ch. II] THE JURY before the state's council [§ 2

here again furnished the solution to the problem. It created the
Council Chamber, composed of three judges, including the exam-
ining magistrate whose duty it was to pass upon the conclusions
of the public prosecutor in all matters in which the examination
was complete. A single vote, if a crime were concerned, was
sufficient to necessitate the submission of the documents to the
court, the criminal section of which finally decided upon the arraign-
ment, subject to appeal to the Court of Cassation. Then only
was the indictment drawn up by the attorney-general.

The decision lay with the Council Chamber ; this' was the old rul-
ing to the " extraordinary" action, with this difference, demanded
by the Cahiers of 1789, that three judges took part in it instead of
one alone: " Formerly," says M. Regnaud, "the decree finding a
true bill was rendered by a single criminal judge ; one can recall
the applause excited by the resolution of the Constituent Assem-
bly, appointing assessors to this judge, who up to that time acted
alone. It was because the Council had counted upon the main-
tenance of that order of things that it had voted for the suppression
of the grand jury." ^ The branch of the Court of Appeal which
sat as the court of last resort was synonymous with the grand
jury, whose functions were conferred upon certain magistrates.
The new system had thus united and welded together the prin-
ciples of the old jurisprudence and the rules of the recent laws.
It was first thought that a " senatus-consultum " w/is necessary to
sanction these radical changes in the organization of the procedure
by jury, and a bill for the purpose was even presented in the sit-
ting of 5th March, ISOS.* But M. Treilhard, who, down to that
time, had seen in every attack upon the jury an attack upon the
constitution, maintained the contrary opinion, now that the trial
jury was conclusively saved. "The constitutions," he says,
" ordain that there shall be a grand jury, but they do not forbid
that its duties be intrusted to a tribunal ; " ^ and they passed on
to other matters.

» Locr6, vol. XXIV, p. 666.

« Ibid,, vol. XXIV, p. 667 et 8eq. » Ibid., vol. XXIV, p. 692.

499

§1]

PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

CThapter III

THE ORDINANCE OF 1670 AND THE REVOLUTIONARY LAWS
IN THE CODE OF CRIMINAL EXAMINATION

{ 1. Separation of the Powers of the
Public Prosecutor and the
Examining Magistrate.

{ 2. The Documents and Forms of
the Preliminary Examination.

§ 3. The Proceedings before the Trial
Jurisdiction. Moral Proofs.

§ 4. The Special Courts.

§ 5. Res Judicata. Reserved Justice.
Rehabilitation and Revision.

§ 1. Separation of the Powers of the Public Prosecutor and the
Examining Magistrate. — In the great strife which lasted so long
between the procedure by jury and the Ordinance of 1670, the
former gained a decisive victory. Posterity ought to give recog-
nition to the men who, in the State's Council of the Empire, were
able to resist the undisguised will of the Emperor, and to whose
courageous efforts was due the retention of the jury in our laws.
But the system of the old procedure, finally discarded upon this
point, left deep traces in other parts of the law where it sometimes
has the upper band ; the preliminary examination was, in partic-
ular, marked by its harsh imprint.

When the Articles of the draft of the Criminal Code were dis-
cussed before the State's Council for the first time in Fructidor,
year XII, and in Vendfimiaire, year XIII,^ they presented a rather
curious system in regard to the preliminary examination. The
bill retained a magistrate of police and an examining magistrate
in each district ; but their functions were yery different from those
finally resolved upon. The magistrate^ of police did not only act,
they also examined; and in that respect an improvement was
made upon the Law of the year IX.* They received denimciations
and complaints (Articles 39 to 42 ; 44 to 52) ; it was they who, in
the ordinary case, heard the witnesses; and Articles 64 to 79,
placed under the heading of hearing of witnesses, which later passed

1 Locri, vol. XXIV, pp. 408, 409.

* "Projet primitif," Art. 480: "The magistrates of police, considered
as officers of judicial police, are charged, 1st, with receiving denunciations
and complaints . . . ; 2d, with establishing the traces of the offenses by
official reports ; 3d, with gathering the facts leading to presumptions and
the proofs existing against those accused ; 4th, with bringing them before
the propraetors."

500

Title II, Ch. Ill] OBD. OF 1670 AND REVOLXTTIONABT LAWS [§ 1

almost integrally into the Code of Criminal Examinatidn, were
copied from the Ordinance of 1670; in the discussion this was
specially alluded to.^ It was the magistrate of police who made I
house searches and seizures (Articles 80 to 86 : " Concerning writ-
ten proofs and documents of conviction ")• It was also he who
issued warrants to bring the accused before the court, summonses
to appear and warrants of commitment, and who interrogated
the accused (Articles 87 to 92). It must be noted that the warrant
of commitment was defined as the order according to which " the
accused was provisionally maintained in a state of arrest," ^ and
that the magistrate of police must " send within twenty-four
hours either from the warrant of detention, or of appearance, or of
any other final step of his proceeding, all the documents to the
clerk of the correctional court, after having numbered them and
advised the examining magistrate of what he had done." The
examining magistrate did not appear until this moment (Articles
103 to 106) ; ^ he completed and even, if need be, recommenced
the proceedings, communicating them inunediately to the magis-
trate of police. It was his duty to interrogate the accused anew ;
in conformity with the Law of the year IX, the latter was then
made acquainted with the charges,^ and then the examining judge,
if there was occasion, issued the writ of attachment. Lastly he
issued the orders of " renvoi " or of " non-lieu " (no ground for
prosecution), but should it happen that he did not adopt the
requisitions of the public prosecutor, the questions of fact as
well as of law were submitted to the Court of Criminal Justice
in the Council Chamber; the decision taken could, within
twenty-four hours, be attacked by the attorney-general before
the Court of Cassation.
The first time that the Articles came up for discussion they passed

^Art. 72 provided that minors under fifteen years of ag:e could be
heard on making an affirmation and without taking the oath. The Arch-
chancellor asks, ''that in order to leave no doubt as to the use which the
court could make of the affirmations spoken of in this article, these words
should be added, which are found in the ordinances : ' except as may be
considered reasonable.* M. Targ^et says that these expressions of the
Ordinance have been considered too vague." Locri^ vol. XXIV, pp. 167,
168.

2 Art. 80.

* Art. 103 : "He is charged with completing the examination begun by
the magistrate of police, or even with making it anew in whole or in part,
when he deems that proper.'*

* "The examining magistrate shall interrogate the accused before the
latter has had cognizance of the charges. He shall cause them to be read
to the accused alter his interrogation, and if he requests it, he shall be
immediately interrogated anew. This communication by mere reading
recalls, to some extent, the proceedings under the Ordinance.

501

§1]

PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

without 'objection ; but when they came up again in the sittings
of 22d, 27th, and 29th Frimaire in the year XIII, there were
several protests. In the new draft it was proposed to give to the
imperial procurators, and in their absence, to their deputies, the
functions of the officer of police (a point which was not discussed
at that time) ; these functions, however, remained as we have
described them. The Archchancellor observed " that functions
have been transferred to the public prosecutor which formerly
belonged exclusively to the judge. This is a return, it is*^ true,
to the existing system w^here the magistrate of police takes the
double function of public prosecutor and examiner; but the old
system had the advantage of putting two officials in action,
in such a way that the inaction of a single official was not suffi-
cient to stay the course of justice." M. Defermon said that " the
old system also gave more safeguards to the accused ; the public
prosecutor claimed, the judge pronounced ; so that the authority
was not concentrated in the same hands. It was impossible to
see without consternation the same official receiving the com-
plaint or the denunciation, hearing the witnesses, and disposing
of the liberty of the accused.*' ^ But to this were objected the
necessity of a rapid procedure and the provisional character of
the measures taken by the magistrate of police. The question,
besides, was lost in the consideration of another greater one
put by Napoleon: What should be the relations between
the magistrates of police and the chief public prosecutors

C'pr6fets'0?

In 1808, when the discussion was resumed, the battle raged;
it lasted throughout the sittings of 4th, 7th, and 11th June, 1808.^
Once again the partisans of the old forms found themselves face
to face with those who adhered to the proceedings followed in the
laws of the intermediary period, but in this instance they had reason
on their side, and they won their case. The Minister of Religion
and the Archchancellor were very energetic : " From the nature
of the institution the public prosecutor is a party ; from his title
it belongs to him to prosecute, but for that very reason it would
be contrary to justice to allow him to conduct the examination
proceedings." ^ — " The imperial procurator would be a little
tyrant who w^ould make the city tremble. ... All the citizens
would shudder if they saw in the same official the power of accus-
ing them and that of bringing together proofs that might justify

1 Locri, vol. XXIV, p. 552.

« Ibid., vol. XXV, p. 123 et seq.

» Ibid,, vol. XXV, p. 124.

502

Title II, Ch. Ill] ORD. OF 1670 and revolutionary laws [§ 1

his accusation," ^ And M. Jaubert adds that '' care is taken that
the plan closes for a considerable time the access of justice to the
unfortunate prisoner. The imperial procurator draws up the offi-
cial report and he draws it up alone. ... He hears the witnesses,
he even takes custody of persons, and as long as they are in his
keeping it is impossible to seek the aid of any authority. To whom
is it proposed to intrust such a formidable power ? To a dismiss-
able oflScer and one under the orders of the procurator general . . .
in this respect this ancient legislation, so loudly inveighed against,
endangers the safety of the French people." ^

Tradition, as we see, spoke against the draft : ''On reading the
draft of the Code, it is evident that many of its provisions are
taken from the Ordinance of 1670. Among others is that concern-
ing the ruling to the ' extraordinary ' action. It is also necessary
to bear in mind that, in the system of that Ordinance, the two
functions were separate, and that the danger of combining them
was always foreseen." * " Formerly the attorney-general had
the most extensive power in regard to prosecution; the courts
could not prevent him from using this power. . . . But the
Ordinances consistently kept the attorney-general in the posi-
tion of a prosecuting party. That position it is important to
preserve." *

MM. Treilhard, Merlin, and Regnaud de Saint-Jean d'Angfily,
however, supported the draft : it was necessary, they said, that
the attorney, in order to conduct the prosecution, should be ac-
quainted with the facts ; this was, besides, the system inaugurated
by the Law of Pluvidse. They maintained that the old principles
could no longer be applied ; they stated that when the public prose-
cutor had made the first authentications it was his duty within
twenty-four hours to put the matter before the examining judge.
But their most specious argument was that speed was necessary,
and that to compel the attorney to petition the judge would entail
a dangerous delay. The Archchancellor, while making just allow-
ance for what they said, made this objection : he admitted that
in the case of capture in the act, if a crime were concerned, the
imperial procurator should be authorized to take any urgent steps
of examination : " In the case of capture in the act, it matters
little by whom the fact is established. There is no disadvantage,
for instance, in the imperial procurator establishing that a dead

1 Locr^, vol. XXV, pp. 12^131. * /6id., vol. XXV, p. 136.

* Cambacirbs, Locri, vol. XXV, p. 130.

* Ibid,, Locri, vol. XXV, p. 146.

503

§ 1] PROCEDURE SINCE THE FRENCH REVOLUTION [ParT III

body has been found, but it would be very dangerous to grant him
that power except in the case of capture in the act. . . . Who
would not shudder to see a single official, invested with such in-
quisitorial power, invade his home ? '' ^ This was satisfactory,
and it must be acknowledged **that the distinction between cap-
tures in the act and other cases appears to have a very reasonable
foundation for differentiating the powers discussed; by admit-
ting it the public safeguard experiences no appreciable abatement."*
M. Berlier also asked if it would not be possible "upon the claim
of the master or head of a house to allow the same form of arrest
or examination as in the case of capture in the act."

Thus the division of the functions between the judge and the
attorney, and the distinction between the pursuit and the examina-
tion, were accepted with these modifications. This is how jt
happens that capture in the act has taken an important place in
the Code of Criminal Examination, which it does not usually oc-
cupy except in primitive systems of law. For the same reason
it happens that the Law specifies, besides capture in the act prop-
erly so called, a certain number of*cases of a similar nature. In the
sittings of 18th and 21st June, 1808, a new draft of Chapters IV
and V was presented. The hearing of witnesses, the investigation
of written proofs, and the issue of warrants were intrusted to the
examining judge. Some traces of the original draft, however,
have remained. The section treating *' of the attorneys' method
of proceeding in the exercise of their duties " contains the rules
as to the making of the official reports of the examination, and that
in regard to capture in the act. — Conformably to the logic and
the traditions of the old law, the complaints, which put the court
in action, ought to be as a rule addressed to the examining judge
(Article 63), the denunciations being addressed to the attorney
(Article 31) ; but the complaints could also be addressed to the
attorney, who then transmitted them with his requisitions to the
examining judge (Article 64).

The traditional principles of the old law, as to the division of
functions between the two officials, thus triumphed. That
could not be other than a matter for congratulation. But, at the
same time, these principles were destined to reappear upon other
points and to give to the preliminary examination those rigorous
forms and illiberal rules, which it has for the most part preserved
to the present time.

' Locr^, vol. XXV, pp. 147, 148.

« M. Berlier, LocrS, vol. XXV, pp. 130, 131.

504

Title II, Ch. Ill] ORD. OF 1670 AND revolutionary laws [§ 2

§ 2. The Documents and Forms of the Preliminary Examination.
— The preliminary examination, necessary in the ease of a crime,
and optional in the case of a misdemeanor, was to be a secret and
written procedure. It did not include confrontation, and deten-
tion pending trial was the general rule, admitting very few ex-
ceptions. The preliminary examination of the Code of Criminal
Examination is the procedure of the Ordinance of 1670, down to
the ruling to the " extraordinary " action. First of all, the hearing
of the witnesses takes place secretly. The accused cannot be
assisted in the matter even should he be under detention when it
takes place; each witness testifies separately in the presence of
only the judge and his clerk. Articles 71 to 86, which deal ex-
haustively with the matter, reproduce title VI of the Ordinance
almost verbatim. One rather important difference, however,
should be pointed out. The Ordinance (Title VI, Article 1) de-
clares that " the witnesses are brought by our attorneys or those
of the seigneurs, as also by the civil parties." This absolutely pre-
vented the judge from hearing the witnesses the accused wished
to produce ; the Code of Criminal Examination provides that " the
examining judge shall cause to be summoned before him those
persons who shall be pointed out by the denunciation, by the com-
plaint, (ft othenvise." The addition of these last words allows the
judge to hear witnesses nominated by the accused, but it is purely
a discretionary power in him ; the accused could not cause his wit-
nesses to be summoned directly and compel the judge to hear them.

These Articles were, however, adopted almost without discus-
sion ; ^ and upon that point the observations of the commission
of the Legislative Body were insignificant.^ The Law of Pluviose
had prepared all minds for the acceptance of these principles.
The Committee's Report by M. Treilhard, is very laconic : " You
will find, gentlemen, in the chapter on examining magistrates, very
detailed rules upon complaints, upon the mode of constituting the
private prosecutor, upon the way in which the witnesses ought to
be heard, upon the oath which they ought to take, upon their
obligation to appear when they are cited, upon the methods of
coercion when iJiey fail to appear, and upon the going of the judge
to hear them when they are not able to be present. I merely
allude to these provisions, which cannot be susceptible of any
difficulty, and which, besides, are by no means new.'* ^

> Sittings of 21st June, 1808, LocrS, vol. XXV, p. 168 et seq,; 26th Aug-
ust, ibid., p. 192 et aeq. ; 4th October, ibid., p. 214.

» Locr6, vol. XXV, p. 215 et seq. » Ibid,, vol. XXV, p. 243.

505

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

In regard to searches and seizures, some safeguards are inserted
in the law. They must take place in the presence of the accused
if he has been arrested (Articles 39 and 89), and the latter was en-
titled to furnish explanations, identify the objects seized, and
initial the seals. These provisions were borrowed not from the
Ordinance, but from the Code of Offenses and Punishments (Arti-
cles 125 to 131). As to medical, legal, or other expert reports, no
confrontation is open to the accused ; Article 46, so important
on this point, settles but the oath to be taken by the experts.
The defense cannot contest the choice of an expert made by a judge ;
nor, w^ith more reason, have a counter expert proceed officially.
In this respect, it must be said, the Code of Offenses and Punish-
ments was even less liberal than the Ordinance (Code of Brumaire,
year IV, Article 103*, Ordinance of 1670, Title V).

There remain probably the most weighty points of the prelim-
inary examination: the appearance of the accused and his
interrogation, the detention pending trial, and the possibility of
provisional release. Here the old law reappears, although the
majority of the terms employed are borrowed from the Laws of the
Intermediary Period.

The four warrants, created successively by the Laws of 1791,
the year IV, and the year IX, are all preserved, and usually retain
their original character. The warrant of appearance and writ of
attachment cannot be issued except by the examining judge ; the
same applies generally to the warrant to produce the accused
(" d'amener ") ; however, in case of capture in the act, it can be
issued by the attorney (Article 40). As a general rule the
proceedings opened with a warrant to produce the accused;
only in a case where the accused was domiciled and where a mere
misdemeanor was concerned, could the judge content himself
with first issuing a warrant of appearance (Article 91). This
new function of the warrant of appearance was introduced at
the request of the commission of the Legislative Body : "Experi-
ence," it was said, ** has proved that there might be great
inconveniences in causing a resident person to be arrested and
exposed by being openly led away by the police, such person
being accused of having committed in a moment of passion what,
if proved, would entail but fifteen days' or a month's imprison-
ment. . . . These reflections lead us to regard it as advanta-
geous to leave to the discretion of the examining judge whether to
issue against the persons accused of police offenses mere warrants
of appearance. We might recall the wisdom of the article of Title

606

Title II, Ch. Ill] ORD. OF 1670 AND REVOLUTIONARY LAWS [§ 2

X of the Ordinance of 1670, where it is said : ' According to the
nature of the crimes, the evidence, and the persons, it shall be or-
dered that the party be summoned to be heard, cited to appear,
or arrested.' " ^ The warrant of arrest established the detention
pending trial ; it required the preliminary conclusions of the public
prosecutor, and stated the fact, the object of the prosecution,
and the law characterizing the act as a crime or as a misdemeanor
(Article 96). The warrant of commitment was retained, but
with its provisional character; it was issued by the imperial
procurator when, a warrant to produce the accused having been
issued, the accused was found, more than two days from its date,
outside of the district of the officer who had issued such war-
rant and more than fifty kilometres from the domicile of that
officer (Article 100).^ The warrant of commitment had, in the
Code of 1808, only two other cases of application, relating to ex-
ceptional h\T)otheses.'

The Code of Criminal Examination does not deal with the in-
terrogations except to fix the time within which the first interroga-
tion must take place (Article 93) ; but the observance of that
delay is the only safeguard which it insures to the accused in the
matter. The interrogation is to take place in secret, as the rule
has always been; the accused, alone in presence of the judge,
knows nothing of what has been done against him up to that time
except what the judge sees fit to communicate to him. All the
safeguards granted to the defense since 1789 had gradually dis-
appeared. In 1789 the complaint and all the documents which
had been brought together by the judge were read to the accused
before he was interrogated ; he had from that time a counsel with
whom he could confer before answering. The Law of 1791 pro-
vided that if the accused had been arrested he should be present
at the hearing of the witnesses (Title V, Article 15). The Code of

1 Locri, vol. XXV, pp. 228, 229. M. Dhaubersart's report also signal-
izes the warrant of appearance as a revival of the decree of siumnons to
be heard. Ibid,, p. 255.

* The Code of Brumaire, year IV, decides (Art. 74) that in such a case
the accused could "have himself kept in sight or put in a state of provi-
sional arrest.'*

• 1st, Art. 193. It deals with a prosecution brought for forgery in the
correctional police court, the act being of a nature to entail an afflictive
or degrading punishment. "The tribunal can immediately issue the war-
rant of commitment or writ of attachment, and transfer the accused before
the examining magistrate having jurisdiction." 2d, in case of appeal
from a judgment of the correctional police ( Article 214) : ** If thejudp^ment
is annulled because the offense is of a kind meriting an afnlctive or
degiuding punishment the court or the tribunal will issue, in a proper case,
the warrant of commitment, or even the writ of attachment."

507

5 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

Offenses and Punishments contained the same provision (Article
115), and it also decided that, if the witnesses had been heard
before the appearance of the accused, or before his arrest, their
statements must first of all be read over to him, without giving
him a copy thereof (Article 116). The Law of the year IX was
less liberal ; it provided that the accused should be heard and in-
terrogated without having had communication of the charges,
but he must afterwards be made acquainted with them and could
reply to them. Even this resource exists no more under the rule
of the new Code. During the whole course of the examination,
the accused might remain in complete ignorance of the proceed-
ings ; he does not receive a notification of any step, for the Code
of 1808 opens to him no right of opposition to the decision of the
judge except in the single case when he disputes the jurisdiction
of the examining judge, and the latter has not admitted his de-
clinatory plea (Article 539). No doubt the judge can orally com-
municate the charges to persons accused, confront the latter among
themselves or with the witnesses, but that is a mere discretionary
power in the judge. This is a return to the rules of the Ordinance
of 1670. Except for the want of some formalities in the writings,
a criminal lieutenant of the Old R6gime would find matters such as
he practised them.

Release on bail was one of the conquests won by ihe Revolution.
The old law did not recognize it, so to speak, for it did not admit it
in matters ruled to the "extraordinary action." The Code of Bru-
maire, year IV, had established a very simple system, excluding
all arbitrariness. It recognized only two situations: either pro-
visional Uberty was a right for the prisoner, or it could not be
granted. The first case occurred when the eventual punishment
was correctional or merely degrading; the second when it was
corporal (Article 222). The drift of the Criminal Code repro-
duced this distinction, attaching to it, however, other conse-
quences ; it declared release impossible when corporal punishment
might follow, but in the j>idge's discretion if the punishment was
only degrading or corr^tional; this was a radical change from
the previous legislation. It would seem as if the memory of the
laws in force had b^ien lost, for M. Treilhard declares that " the
section had followed the system of the Constituent Assembly." ^
The draft was found to be even too tolerant ; MM. Cambaceres,
Jaubert, and Kegnaud de Saint-Jean d'Ang61y, as well as the chief
justice, asked that the discretionary release be restricted to the

1 Locri, vol. XXV, p. 184.
508

Title II, Ch. Ill] ORD. OF 1670 AND REVOLUTIONARY LAWS [§ 2

case of a correctional police action;^ they gained their point.
M. Berlier attempted to have an absolute right recognized in the
defense in this respect, observing that " since release on bail ap-
plies only to police correctional offenses, the judges can have no
good reason to refuse that benefit to accused persons who have
complied with the law." — The Archchancellor said that " police
misdemeanors might entail imprisonment, and it would be im-
possible to release indefinitely without bail those who are accused ;
it was sufficient to leave that power to the judge." ^

The Code of Criminal Examination did not therefore regard
provisional release as a right of those accused of minor offenses ;
it was absolutely prohibited in the case of a crime (Article 113),
and also in correctional matters, when the accused was a vagrant
or had been convicted (Article 115). Bail of at least five hundred
francs was invariably required. The council chamber decided
upon the requests for release on bail, and its decisions could be
attacked by the imperial procurator and the private prosecutor,
but not by those accused of minor offenses (Article 135).

All the provisions which we have analyzed except that on pro-
visional liberty passed the State's Council almost without debate.
The longest time was spent in the consideration of Article 10,
conferring on the prefect certain powers of judicial police. This
was supported by Napoleon personally.^

Supposing the examination concluded, the judge now submitted
its results to the Council Chamber, so that the latter might decide
how to deal with the matter. In a criminal case, this control was
nominal rather than real, for a single voice, that of the examining
judge, was sufficient to have the documents transmitted to the
attorney-general and to have the arraignment branch put in action.^
The proceedings before the arraignment branch were secret, like
the first information or inquiry : ** the judges see neither the ac-
cused, nor the private prosecutor, nor the witnesses for either side.
Immediately after the reading of the documents, the attorney-
general retires, leaving his statement, written and signed. — The
greatest secrecy ought to preside over the deliberations of the
Imperial Court in all criminal matters submitted to it." ^ Since

^ The institution was even radically attacked : "M. Regfnaud says that
the Constituent Assembly has only established the system of provisional
liberty in imitation of the English, who release on bail, even when the most
severe punishments are concerned. But it is a question for ascertainment
whether this theory conforms to our customs." Locri, vol. XXV, p. 186.

« LocTi, vol. XXV, p. 191. » Ibid,, vol. XXV, p. 205 el seq.

* ** Expose des motifs,"by Treilhard, vol. XXV, pp. 246, 247.

» •* Expose des motifs," by M. Faure, vol. XXV, p. 566.

509

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

the Law of 7th Pluviose, year IX, the same applied to proceed-
ings befpre the grand jury. The new Law merely generaUy trans-
ferred to the arraignment branch the powers of the jury ; and a
part of the Articles regulating its functions were copied into
the Code of Brumaire, year IV ; sometimes, even, the adaptation
was hasty and the amalgamation badly made.^ On one point,
however, the new jurisdiction acquired a power which the old
lacked. The grand jury had no power " to investigate if the deed
specified in the indictment merits corporal or degrading punish-
ment " (Code of Brumaire, Article 241). The Chamber of Ac-
cusation, on the contrary, examines into the classification of the
deed (Inst. Crim. Article 231) ; that is logical, as the judges take
cognizance of the question of law, which the jury is forbidden to
do.

If the Chamber of Accusation remits the case to the Court of
Assizes, it falls to the attorney-general to draw up the indictment,
which formerly preceded the arraignment, of which it formed the
basis.^ In the *' Expos6 des motifs " by M. Faure, in the report
of M. Riboud,^ this change is made a matter for congratulation ;
but in reality the indictment merely reproduces, with some addi-
tional details, the decree of " renvoi " ; undoubtedly it, as well
as the latter, ought to be read to the jury, but that is a mere for-
mality. It is in practice a rapid reading, to which the jur}' pays
little attention; they are about to hear the witnesses and the
accused, and to see the drama unfold itself before their own eyes.

§ 3. The Proceedings before the Trial Jurisdiction. Moral
Proofs. — When, after the proceedings before the tribunals of
examination, we consider the trial before the tribunals of judg-
ment, the contrast is complete. We pass from obscurity into the
full light of day. There the procedure was secret, written, and
always favorable to the prosecution, not leaving to the defense
even the right of confrontation ; here everything is publicity, oral
trial, free defense, and full discussion. In the one case, there are
the traditions of the Ordinance of 1670; in the other, the prin-
ciples announced by the Constituent Assembly and put in opera-
tion in the Laws of the Intermediary Period.* Whatever may be

* For instance, Art. 225 : "The judges ahall deliberate anions: themselves
without dispersing and without communicating with anybody." This
was the last i)aragraph of Art. 238 of the Code of Brumaire ; but although
very appropriate for the jury, it was hardly applicable to magistrates, as
was observed in the State's Council. LocH, vol. XXV, pp. 431, 432.

2 LocTi, vol. XXIV, p. 507. » Ibid., vol. XXIV, p. 589.

*Thi8 truth was recently recognized in an official document: "The
compilers of the Code of 1808 adopted a system of conciliation: they

510

Title II, Ch. Ill] ORD. OF 1670 and revolutionary laws [§ 3

the tribunal before which appearance is made, the examination is
public, otherwise void (Articles 153, 190, and 309) ; the rights
of the defense are the same in every respect as those of the pros-
ecution ; it can produce its witnesses, and these are even the last
heard, just as the defending counsel and the accused are the last
to address the court. The accused may always have the assist-
ance of a defending counsel; the law officially assigns one to
all those accused.

But between these two extreme and opposed situations, is there
not an intermediary stage, within which the defense may begin
to become organized and make itself acquainted with the written
proceedings, in which, so far, all the proofs have been concentrated,
and from which the prosecution, to which it has been constantly
available, draws its weapons^ In criminal matters, where a pre-
liminary examination has perforce taken place, the legislature
established this intermediary phase, this period of transition.
WTien the decree of " renvoi " has been rendered and the indict-
ment drawn up, these documents were at once disclosed to the
accused (Article 242), who, within twenty-four hours, must be
removed to the court-house. Twentv-four hours after his arrival
there, the accused must be interrogated by the president of the
Court of Assizes or by the magistrate who takes his place (Article
294). By this means he has the opportunity to have his complaints
heard by a magistrate of high rank. This is not all ; the presi-
dent ought to warn him that he has the right to contest the validity
of the decree of " renvoi " before the Court of Cassation, ask him
if he has chosen a counsel for his defense, and, if need be, assign
him one officially (Article 294). This is one of the noblest pro-
visions of French law ; the reformers of the Revolution devised it
in the nobility of the national character ; it was not a borrowing
made from England, where this liberal law was unknown.

From that time counsel could freely communicate with the
accused, examine all the documents of the process (Article 302),

endeavored to satisfy both interests involved and to combine the different
elements offered by the various periods of our liistory. From the feudal
period ( ?) they borrowed publicity of hearing, the jury, oral proofs, and
the right of appeal ; from the monarchical regime they took the institution
of the public prosecutor, permanence of judges, and the use of proceed-
ings recorded in writing. They flattered themselves they had done enough
for the accused in assuring him impartial judges, the aid of a defending
counsel, and.publicitv of trial, at the moment when, the examination being
concluded, he was about to establish his innocence, if it had been unrec-
ognized.*' "Projet de loi tendant k reformer le Code d*instruction
criminelle,'* presented in the name of M. Jules Grivy, president of the
French Republic. Journal Officiel of 14th January, 1880, p. 302, col. 2
and 3.

511

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

and have a copy thereof taken (Article 305). A copy of the official
reports and the written statements of the witnesses is even gra-
tuitously delivered to the accused. This provision was contained
in the Code of Offenses and Punishments (Article 320) ; according
to it a copy of all the documents of the process was delivered, al-
though the formula employed by the Code of Criminal Examina-
tion excludes from the gratuitous copy the interrogations of
the accused. But these equitable provisions are made to apply
only to criminal matters ; the law does not deal with the case
where the preliminary examination was made in view of a correc-
tional offense. In the latter case there is no advocate officially
appointed, no communication of documents. The communica-
tion to the advocate .did often take place in practice, but it is
merely a gratuitous concession on the part of the office of the public
prosecutor. In important correctional police actions this is a
regrettable omission. It is conceivable that the texts regulating
the proceedings before the trial jurisdictions when the police court,
the correctional police court, or the Court of Assizes is concerned
were borrowed from the Code of Offenses and Punishments. A
glance over both Codes is sufficient to assure us of this fact.

The operation of the jury was slightly altered ; experience had
proved the necessity for such an alteration. The composition of
the jury lists was materially changed. Article 382 indicated the
categories of persons from whom the jury must be chosen. These
were first of all the members of the electoral colleges, as composed
by the " senatus-consultum " of 16th Thermidor, year X (Articles
14, 15, 18, and 19), that is to say, electors of the second degree,^
and the three hundred who were added; then came four **ali-
n6as," which effected for the jury what will be called later the ad-
junction of capacities. Finally, Article 387 permitted persons
who did not belong to any of these classes to petition for " the
honor of being admitted to jury duty " ; the prefect could include
them in the lists if he had obtained " favorable information "
regarding them, and if the Minister of the Interior gave his au-
thority. The prefects drew up the session lists " composed of sixty
citizens." Article 387 : " The prefects shall form upon their own
responsibility a list of I'urors, whenever they shall be required to

* They were appointed by the assembly of the canton "composed of all
the citizens resident in the canton, who were included in the communal
list of the district." There were two hundred at the most and one hun-
dred and twenty at least for the electoral college of the district; three
hundred at most and two hundred at least for the electoral college of the
department. They were appointed for life.

512

Title II, Ch. Ill] ORD. OF 1670 AND REVOLUTIONARY LAWS [§ 3

do so by the presidents of the Courts of Assizes. This requisition
shall be made at least fifteen days before the opening of the ses-
sion."

It is evident that the choice of jurors, so poorly made during the
Revolutionary period, was restricted within narrow limits. They
had even gone to the opposite extreme from the looseness of the
old laws. The composition of the jury was entirely in the hands of
the prefects, since they chose the session Usts at their pleasure
and at a date very near to the opening of the sessions of the as-
sizes. Drawing by lot played no part except in the composition
of the trial jury. The challenge in court was regulated ; there
could be no more challenges for cause as4gned (Article 399).^

The system of questions put to the jury was simplified. Here
they went even too far, and from one extreme they fell into the
other. A single question, the simple formula of which stamped
at once the material and moral element of the offense, comprised
the whole contents of the indictment ; that is to say, it stated not
only the principal fact, but also any aggravating circumstances
by which it might be accompanied (Article 338). This was even-
tually to oblige the jurors to make distinctions, and to enter into
an analysis (Article 365), which the previous laws had wisely
wished to spare them. The solution of this problem had not yet
been found.

Upon another point they were better inspired. Article 387
declared " that the decision of the jury should be reached for
or against the accused by a majority, otherwise to be void. In case
of a tie, the opinion favorable to the accused should prevail."
Rejecting the English principle of unanimity, and the hesitations
of the Intermediary Period, the Code of Criminal Examination
adopted this very logical and reasonable law of the mere majority,
which, however, was destined to be again rejected, to be finally
returned to in our own times. But the legislature of 1808 had not
dared to announce this principle in an absolute manner; it had
accompanied it with a restriction which was in reality illusory.
Originating an extravagant and complicated system, it provided
that, if the decision had been given against the accused by a mere
majority of votes, the jury should give its verdict to that effect

* It was thought necessary to prescribe strenuous means to compel the
citizens appointed to serve on the jury. Not only were fines imposed, as
at present, against defaulters, but furthermore, Art. 392 declared that those
who neglected, without just cause, to comply with the requisitions ad-
dressed to them for jiury service were ineligible for judicial and adminis-
trative positions.

513

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

(Article 341), and then the court itself, composed of five members,
was called upon to deliberate upon the question of guilt. This is
how the court's vote was combined with the vote of the jury:
Article 351 " If the opinion of the majority of the jurors is adopted
by the majority of the judges, in such a way that in adding together
the number of votes that number exceeds that of the majority of
jurors and the minority of the judges, the opinion favorable to the
accused will prevail/'

How did the Code decide two important points, upon which
the old practice and the law of the Revolution radically
differ: the written or the oral trial, and the theory of proofs?
First of all, the oral character of the trial is maintained ; but the
Code of Criminal Examination is less distrustful of writing than
were the prior laws. In the procedure before the jury, the Code
of Brumaire had pointed out very emphatically the use which
could be made of the information, and no trace of the trial was
recorded in writing. Article 365 : " No written deposition of
witnesses not present at the hearing can be read to the jury." —
Article 366 : ** As to written statements made by the witnesses
present and written notes of the interrogations to which the ac-
cused has been subjected before the police officer, the director of
the jur\% and the president of the criminal court, nothing can be
read in the course of the trial except what is necessary to bring to
the notice, either of the witness or the accused, the variations,
contradictions, and differences which may be found between what
they say before the jury and what they have previously said."
— Article 382 : *' He (the president) also submits to the jiuy all
the documents in the action, with the exception of the written
declarations of the witness and the written interrogations of the
accused." From these three articles the first has disappeared,
and this fact is important ; for, although the compilers of the Code
had no idea of derogating upon this point from the prior law,^ we
shall see what judicial practice has deduced from this omission.
As to the other two provisions, they were maintained, but in
a form which somewhat enlarged the function of the written

* This results from an article of the title on "Contumaces" ; Art. 477,
providine: for the confrontative trial which takes place when a contumacy
IS purged, is in these terms : "In the case provided for by the preceding
article, if, for whatever cause, witnesses cannot be produced at the trial,
their written depositions and the written replies of others accused of the
same offense shall be read at the hearing; the same shall apply to all
other documents, which shall be deemed by the president to be of a nature
likely to shed light upon the offense and the guilty parties." If that had
been possible accordmg to the common law, it would not have been in-
cluded in the article.

514

Title II, Ch. Ill] ORD. OF 1670 AND REVOLUnONABY LAWS [§ 3

documents. Article 318 : " The president shall cause a note to
be taken by the clerk of court of the additions, changes, or varia-
tions which may exist between a witness's deposition and his pre-
vious statements. The attorney-general and the accused may re-
quire the president to have notes taken of these changes, additions,
and variations." ^ Article 341 : '* The president puts the written
issues before the jury in the presence of the foreman of the
jury ; he adds thereto the indictment, the official reports establish-
ing the offenses, and the documents of the action other than the
written depositions of the witnesses." Henceforth the docimients
submitted contain the intetrogations of the accused persons.

Upon one point the written procedure was plainly improved.
In case of contumacy the Code of Brumaire provided that the jury
should intervene, as in the procedure of confrontation (Articles
462 to 482). The Code of Criminal Examination decided, on the
contrary, that the jury should not intervene; the court itself
decided upon the merits after having established the regularity
of the procedure (Article 470). This was logical, in effect, and the
reform was useful, as is very well shown in the " Expos6 des mo-,
tifs " by M. Berlier : " Since everything is reduced to the reading
of documents, to the investigation of a written procedure, and to
a cold analysis of circumstances more or less thoroughly estab-
lished in the action, it would be overthrowing all ideas not to leave
to the judges the duty of deciding upon the matter. To reestab-
lish them in this right is, moreover, to disentangle the examination
of the contumacy from elements which uselessly complicate it
without advantage to the contumax." * In such an action, there
is no defense, no oral trial ; it is a matter for the magistrates rather
than for a jury. The rules of the procedure in contumacy, which
the previous laws had in great measure borrowed from the old
French law, were, moreover, retained in the Code of Criminal
Examination.

In correctional police, there could be no question of forbidding
the judges to consult the information when one had been made ;
and this necessarily would influence their decision, although the
oral and public trial should always be the chief basis of that de-
cision. Before the courts of correctional police, as in ordinary

* C/. Art. 372 : "The clerk of court shall draw up an official report of
the sitting for the purpose of establishing the fact that the prescribed for-
malities have been observed. No mention shall be made in the official
report of the replies of the accused or the contents of the depositions, al-
ways without prejudice to the application of Art. 318/'

* Locri, vol. XXVII, p. 159; cf. Report of M. Cholet, ibid,, p. 72.

515

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [PabT III

police matters, the Code of Criminal Examination, following that
of Brmnaire, provides that, if not the entire trial, at least its prin-
cipal points should be set down in writing.^ In regard to police
courts, Article 155 (which Article 189 makes applicable to courts
of correctional police) declares " that the witnesses shall take
oath at the hearing to tell the whole truth and nothing but the
truth, and the clerk of court shall take note of their names, sur-
names, ages, professions, and residences, and of their principcd
statements,*' It was desired by this means to render less costly
the procedure on appeal ; this is a germ which is destined to future
development.

The legislature had maintained the system of moral proofs, one of
the reforms foe which the 1700 s had fought most keenly, and which
constituted a decided and final conquest. Before the jury this doc-
trine retained its absolute sway : whatever might be the proof fur-
nished, the jury could always acquit, and in the same way an affirma-
tive verdict could be rendered, whatever might be the weakness of
the evidence. Like the Code of Brumaire, the Code of Criminal
Examination puts before the eyes of the jury a long warning in
which they are reminded of this doctrine. Article 342: "The
law does not ask the jury to account for the means by which they
are convinced. It does not prescribe to them rules on which they
must particularly base the fulness and sufficiency of proof. It
enjoins them to interrogate themselves in silence and meditation,
and to seek in the sincerity of their conscience for the impression
made upon their reason by the proofs brought against the accused
and his pleas in defense. The law does not say to them : * You
will hold as true such a fact attested by such and such a number of
witnesses ; ' no more does it say to them : ' You shall not regard
as sufficiently established any proofs which shall not be consti-
tuted by such an official report, by such a document, by such pre-
sumptions ; ' it only asks them this one question, comprising the
whole measure of their duties : * Are you thoroughly convinced ? ' "

Before the other tribunals the same principle still prevailed;
but it allowed of several qualifications. Sometimes, though very
rarely, the judge could not decide according to the proof ; the law
chose several specially for him. This was the case in the offense
of adultery (Article 338, C. P.). In the same way certain con-
traventions, fugitive and ascertainable with difficulty, could not

1 Code of Brumaire, Art. 155: '* Their names (the witnesses*), ages,
and callings are inserted in the judgment ; — the clerk of court takes a
summary note of their principal statements, as well as of the principal
pleas in defense of the accused."

51G

Title II, Ch. Ill] ORD. OF 1670 AND revolutionary laws [§ 4

be proved except by a regular official report ; this is, at least, the
way in which judicial practice interprets the Laws of 17th Brumaire,
year VI, in matters of gold and silver, and of 9th Flor6al, year
VII, in regard to the customs, and the Decree of 1st Germinal,
year XII, upon the customs (Article 34). Conversely, in certain
cases, the decision, whatever might be the judge's opinion, will be
entailed by the production of a certain proof ; this is true of official
reports, as to the material facts which they state (Article 154,
Inst. Crim.) : some constitute evidence even in support of an
allegation of forgery, and so far as the allegation of forgery has not
been successfully brought they are binding on the judge; the
others are good until met by contradictory proof, but this proof
must be offered and produced in order to deprive them of their
authority.

The Code of Criminal Examination introduced few alterations
into the system of methods of appeal. The appeal was retained
and always admitted in correctional matters; for mere police
cases it was open to a sufficient degree. The appeal to the Court
of Cassation, with the exception of alterations in detail, was regu-
lated as in the Codes of the Intermediary Period.

§ 4. The Special Courts. — But this was merely the conunon
law procedure. There was also an exceptional procedure in crimi-
nal cases. This took place before the ** Special Courts " (Articles
583 to 599, Inst. Crim.). These courts were the offspring, but with
a different title, of the special tribunals organized by the Laws of
18th Pluvi6se, year IX, and of 22d Floreal, year X. They were
composed of five magistrates sitting in the Court of Assizes, and
three military men having the rank of captains at least (Article
556). They had jurisdiction of all crimes committed by vagrants
or vagabonds or by those condemned to corporal or degrading
punishments, as well as the crimes of armed rebellion, armed
smuggling, false money, and murder brought about by mobs and
assemblages (Articles 553 and 554). The whole of the preliminary
examination was the same as for a case brought before the jury,
and it was submitted to the Chamber of Accusation, which, in a
proper case, ordered the transfer of the proceedings to the special
court (Articles 566 and 567). This decree of transfer, determin-
ing the jurisdiction, was officially submitted to the criminal branch
of the Court of Cassation (Articles 568 and 570). Before the
Special Court, the trial was oral and public, and the defense free,
as before the Court of Assizes (Articles 573 and 579). The judg-
ment was rendered by a majority, a divided court benefiting the

617

§ 4] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

accused alone (Article 582). It was the docision of the court
of last resort, and could not be attacked on appeal (Article 597).

These Articles, compared with the Law of 18th Pluvi6se, pre-
sented material ameliorations ; the cases withdrawn from the jury
were less numerous, and they were made subject to appeal in
the debate in the State's Council.* In reality there was an aggrava-
tion in the sense that the system became definite ; it was no longer
an expedient for emergencies, but a regular and durable institu-
tion. The same spirit that prompted this change had, under the
old law, created and developed the pr6v6tal jurisdictions, and on
this point the Ordinance of 1670 triumphed. It was recognized
openly; we have already cited very explicit passages from M.
R^l's Committee Report. The secret procedure of the Old
R6gime was alone repudiated. " Formerly there was the examina-
tion, already very severe, of the Ordinance of 1670, intrusted to
the provost and his assessor. Thus the judge extraordinary, that
is, the military judge, alone took possession of the accused from
the first, and did not leave him during the examination; the
assessor was the reporter of the action. . . . Add to this pro-
cedure, thoroughly ' extraordinary,' the severity of forms, the two
kinds of torture, the perpetual secrecy which it borrowed from the
'ordinary' procedure of 1670. ... In the Law which we present
to you the ordinary judge examines in the ordinary form against
the crime of those accused persons who may belong to the juris-
diction of the special court, because this first secret and rapid exam-
ination is sufficient in both cases. ... It must be added that
the judgment of jurisdiction is no longer pronounced by an in-
ferior court, as by the system of 1670, nor by the director of the
jury, as was allowed by a later Law, nor by the Special Court it-
self, as was provided by the Law of Pluviose, year IX, but by the
Imperial Court, composed of the most experienced and the most
enlightened magistrates." ^ It was also declared that the exam-
ination was " in every respect superior to the prev6tal juris-
dictions of the Old R6gime " ; but it was the old tradition which
was adopted. In this respect, M. Real's very able Report is
most interesting. It contains a brief history of the prev6tal
courts. It commences by recalling that that institution " was
recognized and claimed by the States-Greneral " of the 1500 s and
that " the Ordinance of 1670 merely collected and assimilated
the old provisions scattered throughout the ordinances." He

1 Sitting of 9th August, 1808, Locri, vol. XXVII, p. 19.
» Locri, vol. XXVn, pp. 68, 70.

518

Title II, Ch. Ill] ORD. OF 1670 AND revolutionaby laws [§ 4

afterwards recalls that these courts were not affected by the early
reforms of 1789, and that the provost marshal continued to exist
down to the first month of 1790. " But on 6th March, in an even-
ing sitting, on the occasion of a complaint brought to the bar of the
Assembly by the municipality of Paris against a provost of the
Marshalcy of the Limousin, a member of the Assembly, by an in*
cidental motion, demanded that the prev6tal jurisdiction should
from that time be suppressed. It is true that this suppression was
postponed, but at this time it was provisionally decreed that all
the proceedings begun by the provost should be suspended. This
strange provisional decree decided the question on its merits,
and was equivalent in its results to the final suppression of the
pr6v6tal jurisdictions, of which nothing more was heard. . . .
Strange thing ! It seemed that the vagrants were less to be feared
than the provosts ; it appears that the pr6v6tal jurisdictions were
among those privileges destroyed in the memorable night of 4th
August, 1789, and that the whole nation must consequently re-
nounce the honorable privilege, which separated it from evil-
doers.'' ^ It is no less curious to see how the speaker explains that
no place was made for the exceptional courts in the Codes of the
Intermediary Period : " At the time when the new Criminal Code
was elaborated, the ideas of that severe and simple style, which
the great taleiits had introduced iiito the fine arts, had spread
among all minds; at the same time the principles of equality
advanced rapidly towards exaggeration. The legislators could
not entirely withdraw themselves from the influence of that double
impulse, and in the construction of the criminal system they fre-
quently sacrified soUdity to regularity. In the repair of .that old
edifice, the column supporting the central part of it, — this special
jurisdiction of which neither the strength nor the importance was
divined, — was suppressed because it was probably somewhat
contrary to the symmetry of the details and the unity of the plan." ^
It really seems as if David and his school were the cause of Mer-
lin's not having admitted the prev6tal courts into the Code of
Offenses and Punishments I

M. R^l, it is true, presented more serious arguments. He re-
called the inconsiderate ardor, the desire for change, the distrust
of established authority which characterized the Revolutionary
period, contrasting therewith the invariable tradition which de-
prived convicts of the benefit of the common law. " It was pre-
cisely at the moment when a Code more appropriate to the man-

» Locr^, vol. XXVIII, pp. 48, 49. « Ihid., vol. XXVIII, p. 49.

519

§ 4] PROCEDURE SINCE THE FRENCH REVOLUTION [PabT III

tiers, to the needs, to the opinions of the nation and the age, and
consequently milder and more humane, was about to replace the
Code of 1670, that it was necessary to preserve the exceptional
jurisdiction, such as it was, to keep down the brigands. How
was it that it did not occur to these legislators that what was
merely useful under the regime of 1670 became absolutely neces-
sary, indispensable, under the milder and more humane regime
which was about to replace it ? " ^ The speaker finally recalled
the brigandage which had devastated France, and the Law of the
year IX, with its happy effects : " It was very soon recognized
that the Law ought to be permanent and universal. . . . The
laws of circumstance, the provisional laws, were no longer suited
to the nation; still less did they suit that genius, which gives
birth but to secular plans, to the hero who founds empires and
dynasties, who, after having long revolved his vast conceptions,
engraves them upon bronze, and gives them the determined char-
acter which the founders of Rome alone have down to this day im-
printed on their laws, as upon their imperishable structures." ^
The report of M. Louvet, much more colorless, was but a repetition
of some of these considerations; the speaker was probably not
completely convinced of what he laid down as veritable truths,
for he declares that it was " necessary to leave to time the care
of altering or even abolishing this institution, if the ameliorations
which might be made in the state of manners of the nation should
one day make such a necessity felt." ^

There was no opposition to the bill in the State's Council ; it
is even interesting to state with what unconcern certain speakers
noticed the extravagant consequences of some provisions.* In the
debate on the first draft of the Criminal Code in the year XII
some scruples were still manifested, but these, it must be said,
were quickly set at rest. Let us note these words of M. Treilhard,
in the sitting of 30th Prairial, year XII : " M. Treilhard says that

1 Locri, vol. XXVIII, p. 51.

« Ibid., vol. XXVIII, pp. 55, 56. » Ibid., vol. XXVIII, p. 78.

* Art. 372 of the bill is discussed : the article is to the effect that the
judgment of the court shall be formed by the majority on pain of nullity.
*' Count Muraire says that the nullity will be illusory, since the judgment
is not subject to review. And it is therefore sufficient to state the rule
that the judgment shall be formed by the majority. — Count Berlier says
that, as M. Muraire has observed, the law does not allow of review, and
therefore it should not speak of nullities for which no redress could be
obtained. Therefore the last words of the article should be omitted ; but
if the rule of the majority of votes were not followed in the decree (a hv-
pothesis almost imaginary !) such a serious error, if it were thoroughly
established, would undoubtedly be ground for an action of damages against
the judges."

520

TiTLB II, Ch. Ill] OBD. OF 1670 AND REVOLUTION ABY LAWS [§ 4

the section is devoting itself to the organization of exceptional
courts ; this institution In itself has appeared dangerous to him
because some circumstances can always be found which might be
abused in rendering any of the citizens justiciable by the excep-
tional courts. This abuse would only be evaded by giving juris-
diction to these courts, not on account of the nature of the crime,
but on account of the status of the person. Second offenders, for
example, c6uld be remitted to them. Besides, this institution
already exists in the special courts which try the crimes which it
is not proposed to submit to the exceptional courts. — The special
courts must remain for two years after the peace. The section
has thus thought that if between the present and that time the
jury should fulfil the hopes conceived of it, these courts might be
dispensed with; that if, on the contrary', the new trial which is
going to be given to the jury should not be satisfactory, they could
be prorogued." ^ But this did not suit Napoleon : " His Majesty
says that the majority of those who have voted for the mainte-
nance of the jury have been swayed merely by the certainty that
the exceptional courts would continue to exist. . . . His Majesty
is of opinion that attempts against the gendarmery should be
judged by these courts, also second offenses and crimes conamaitted
by banded malefactors."^ Cambac6r^ supported these obser-
vations by rather curious reasoning : " It must not> be thought
that the establishment of exceptional courts must weaken the jury;
but the thing is to send before these courts only the men who have
not the right to claim trial by jury. To be tried by jury is, in
effect, to be tried by one's peers ; so that if this privilege is to be
given to vagrants and brigands we must have them tried by other
vagrants or brigands." ' From that time the matter was decided ;
the question came up again several times before the Council,
but no further objections were raised.* If these various delibera-
tions are considered together in their successive gradations from
the great debate which preceded the vote on the Law of 18th
Pluvi6se, year IX, we shall see what changes were made in their
minds. A few more observations upon two important points, and

1 LocrS, vol. XXIV, p. 106. « Ibid., vol. XXIV, pp. 106, 107.

* Ibid., vol. XXrV, p. 107. M. Treilhard having asked if before drawing
up a bill for this purpose it would not be necessary to wait for '*the arrival
of the observations which had been asked for from the tribunals, ... His
Majesty says that the section can, in the meantime, go on with this work»
and that the observations of the tribunals would be considered at the time
of the discussion."

* See particularly the sittings of 23d January, 1808 (Locri, vol. XXIV,
p. 591), and of 6th February (ibid,, p. 613).

521

§ 5] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

we shall have finished with the draft of the Code of Criminal
Examination.

§ 5. Res judicata. Reserved Justice. Rehabilitation and Re*
vision. — We recall the slight respect that the old judicial practice
had for " res judicata." When the judgment was favorable to
the accused absolution was very rarely pronounced, and when
evidence was lacking the " further inquiry " was the rule. This
is one of the points against which the public conscience pro-
tested most vehemently, and the liberating and final effect of the
acquittal by the jury was inserted in the Constitution of 1791.
The Code of Brumaire, year IV, twice made application of it:
in dealing with the grand jury, and in dealing with the petty
jury. Two perfectly contrary systems were thus brought face
to face.

Was there to be a turning back and the resumption of the tradi-
tion of the old law ? For an instant this might have been feared.
In the sitting of the State's Council of 30th Prairial, year XII^
the Archchancellor of the Empire spoke as follows : " At the pres-
ent time the head of a criminal court is not armed with sufiicient
means to hold in check the accused, the defending counsel, and
the public. He has not even the right to imprison on the spot
those who disturb the hearing. Is it desired that he should act
with proper firmness? that he should be invested with discre-
tionary power ; that the court should be able to dismiss the juror
faithless to his trust, that he should not be restricted to pronounc-
ing acquittal, pure and simple, of the accused for whom the ver-
dict of the jury is favorable, but that he should be able to place
him in the bonds of a * further inquiry,' and under police
supervision?"* Previously he had said in the sitting of 9th
Prairial : " There is still an alteration no less important, that
the acquittal of an accused should not always be a complete
triumph for him, but that the judges should find in the law the
power to put him under a ' further inquiry,' and to place him
under police supervision." ^ But this opinion found no favor,
and in the course of the debate it was not mentioned again ; the
articles of the Code of Criminal Examination, which reproduced
the two texts of the Code of Brumaire, year IV, of which we have
spoken above, passed without discussion whenever they came under
the eyes of the Council. The liberative effect of the acquittal was
even further strengthened. Henceforth the appeal to the Court
of Cassation could not be lodged except in the interests of the law

» Locri, vol. XXIV, p. 98. » Ibid., vol. XXIV, p. 28.

522

Title II, Ch. Ill] ORD. OF 1670 AND revolutionary laws [§ 5

against an acquittal pronounced in the Court of Assizes, and against
the procedure whrch had preceded it. The Court of Assizes also
has, in one case, the power to render ineffective the decision of
the jury, but that is when, the verdict being affirmative, the court
thinks the good faith of the jury has been deceived or misled, and
that the condemnation would be unjust.

We have not fprgotten the important part played in the old
criminal procedure by the letters of justice and pardon. These
letters disappeared even before royalty did. They were certain
applications of reserved justice ; and from 1789 it was agreed that
all justice emanates not from the king but from the nation. For
some of these letters, those which tended to hinder the courts of
justice, stopping prosecutions or imposing on the judges a manda-
tory acquittal, the suppression was destined to be final. Although
the head of the State, when the form of government was the Mon-
archy or the Empire, since that time enjoyed the right to grant
anmesties, this was in no respect a return to the old letters, which
were quite individual. As to the letters of remission and pardon
which formerly served to find not guilty homicides committed in
lawful self-defense, they constituted a bizarre system for which
there was no longer a raison d'etre} But there were others which
answered real needs : letters of reprieve, of rehabilitation, and of
revision. During the Intermediary Period endeavors were some-
times made to satisfy these needs by means of new institutions ;
sometimes it was considered that they were not legitimate or de-
serving of the interference of the legislature.

In regard to the right of reprieve, the Constituent Assembly
had deemed it incompatible with the new principles.^ It was
considered to be a kind of attack upon the decisions of the courts
of judicature, and Montesquieu had already declared that this
right was only admissible in the purely monarchical state. On
the other hand the sentences rendered upon the verdict of a jury
appeared to present such safety that all tampering with them
was useless. However, the reprieve answers a need which is the
same under all governments and in all countries : to ameliorate
too severe sentences, to correct judicial error, to compensate
the efforts of the condemned towards well-doing. So the right
of reprieve appeared under the consulate ; the organic " Senatus-
Consultum " of the 16th Messidor of the year X granted it to the

> See the "Expose des motifs" of Title VII, Book II of the Code of
Criminal Examination (Locri, vol. XXVIII, p. 164).

* See the Penal Code of 1791, Part I. Title VII, Art. 13.

523

§ 5] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

First Consul.^ Under the Empire the right to grant letters of
reprieve, an absolute right in the hands of the Emperor, could
be explained by a return to ancient principles ; according to the
" Senatus-Consultum " of the 28th Flor6al, year XII, justice was
rendered in the name of the Emperor.

The rehabilitation had not been, Uke the reprieve, expunged
from our laws during the Revolution. It had even become a right
for those offenders who, after having suffered their punishment,
returned to proper paths; but, confonnably to the new ideas,
it could not emanate from the executive power. The spirit of
the time is recognized both in the choice of the authority charged
with taking into account the improvement of the offender, and
in the spectacular forms by which the rehabilitation was sur-
rounded.^ The authority which decides it is the general council
of the commune (Articles 3 to 5).' If the vote, which takes place
after a delay of a month, is favorable, " two municipal officers
wearing their scarves of office . . . shall conduct the offender
before the criminal court of the department in the territory in
which he is presently domiciled . . . they shall appear with him
in the court-room in the presence of the judges and the public.
After having caused the judgment pronounced against the con-
demned to be read, they shall say in a loud voice : ' such an one
has expiated his crime by suffering his pimishment; meantime
his conduct is irreproachable; we demand in the name of his
country that the stigma of his crime be effaced'" (Article 6).
The president of the court then intervened, but only to register
the decision and to pronounce a formula (Article 7).. " The presi-
dent of the court without deliberation shall pronounce these
words : * upon the attestation and the demand of your country,
the law and the court efface the stigma of your crime.' "

The rehabilitation was little practised under this form, which
put in a vivid light the crime of which it was desired to obliterate
the traces. The institution was very unpopular at. the time when
the draft of the Criminal Code was under discussion.* The ques-

1 Art. 86: "The First Consul has the right of pardon. He exercises
this right after ha\ang heard in a privy council the grand-judge, two min-
isters, two senators, three State*s councillors, and two judges of the Court
of Cassation."

2 See the Penal Code of 1791 (Part I, Title VII).

• It is necessary that ten years elapse after the expiation of the punish-
ment, and that the person liberated shall have resided for two consecutive
years in the same commune (Arts. 1 and 2).

♦Sitting of 30th Prairial, year XII, *'M. Regnaud says that under the
old laws rehabilitation was put in force by letters from the king ; that the
Constituent Assembly has adopted a different method, but that circum-

524

Title II, Ch. Ill] ORD. OP 1670 AND REVOLUTIONARY LAWS [§ 5

tion of ascertaining if it should be maintained was one of the points
which is singled out from the beginning as one which ought to be
first of all decided. The prevailing opinion was that the institu-
tion should not be expunged from our laws, but there was an in-
clination to return purely and simply to the letters of rehabilita-
tion of the Old Regime. " The Archchancellor observes that the
Constituent Assembly resolved upon the rehabilitation under cir-
cumstances much less favorable than those in which we find it : at
that time the letters of reprieve were suppressed and the sovereign
could not interfere to grant the rehabilitation or to modify it.
It was granted to all the condenmed, and the local administra-
tions pronoimced it indiscriminately and without investigation.
Meanwhile, a different mode might be ladopted, one which would
make the rehabilitation a useful institution. It must' not be in-
trusted either to the general councils or to local administrations,
but granted only by letters from the prince, which should be issued
with a knowledge of the cause and with suitable modifications." *
This idea, however, which was a pure and simple return to the
traditions of the Old Regime, was not followed. A mixed system
was adopted, bearing the imprint of the systems which had suc-
cessively been in force. The condenmed, if he was not a second
offender, at the end of the time of probation fixed by the law, had to
present his claim to the Court of Appeal with the certificates of
the municipal councils of the conmiunes where he had successively
lived. The Court could deny the claim or, on the contrary, allow
it. Even if it admitted it that was not all ; the rehabilitation only
resulted from the "letters" of the chief of the executive power,
who was entitled to refuse it. "The rehabilitation," says the
Archchancellor, "ought only to be put in operation by decree
of the court, rendered with a knowledge of the cause, upon the
demand of the condemned, supported by the certificate of the
municipality, and upon the motion of the public prosecutor. The
court ought to have the right to suspend it, and the decree should
not become executory except by virtue of letters from the prince."^
This composite system did not pass without being contested in
favor of the old system. M. Regnaud declares " that he would
prefer that the letters from the prince should be obtained first of
all and that they should afterwards be ratified." * But M. Ber-

stances have not permitted its employment. This method had also the
disadvantage of sending back indiscriminately into society those who had
suffered their punishments" (Locriy vol. XXlV, p. 104).

1 Locri, vol. XXIV. p. 105. * Ibid., vol. XXVIII, p. 123.

» Ibid,, vol. XXVIII, p. 124.

525

§ 5] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

Her replies that " the act of the sovereign would thus be placed
at the mercy of the courts, and this old and dangerous prerogative
of the parlements should certainly not be resuscitated." In
reality, the new combination contained more than an inversion
of the order of the operations formerly followed. M. R6al brought
this out in his " Expose des motifs '' : " Since," he says, " it is no
longer a question of the right of reprieve and of its application pure
and simple, since it concerns the recognition of an acquired right,
the courts cannot remain in ignorance of the examination preceding
the judgment ; it is thus necessary, in this mixed matter, to admit
the concurrence of the courts in allowing recourse to the prince." ^

The aim of revision has always been to correct judicial error.
The Constituent Assembly did not allow it, thinking that it was
enough to' grant to the accused free defense and judgment by the
country; in this there was a reaction against the practices of the
Old Regime, where the letters of revision were frequent. The
Convention, however, introduced the revision, but in one single
case, that of two irreconcilable convictions, and it made it a
method of recourse before the Supreme Court. The Code of
Criminal Examination admits it, with the same characteristic^
and makes it available in three cases in favor of those condemned
to criminal punishment. Upon this point the system of the Or-
dinance does not reappear.

Concerning " lettres de cachet," as a matter of right at least,
there could be no question. However, in the debate in the State's
Council allusion was made to them. The draft of the Criminal
Code contained a strange institution. This was a " family jury " :
it was to judge the simple misdemeanors or contraventions com-
mitted ** by a son of the family not married or not established
in business, or by a married woman not separated from her hus-
band " when there were no stranger accomplices, and when stran-
gers could not raise any claim for civil damages. The decision of
this jury, which decided upon the guilt and upon the punishment
under the presidency of the justice of the peace, only became ex-
ecutory on confirmation by the president of the Court of Appeal,
who could reduce the punishment. This plan, which answered
the sentimental ideas of the 1700 s very well, was at first favorably
received. Some criminal courts even extolled it in their obserx'a-
tions.^ But when it was discussed in 1808, the practical spirit

1 Locr^, vol. XXVIII, p. 165.

« Tribunal of Loir-et-Cher, p. 36 ( " Observations," vol. Ill) ; Tribunal
of H^rault, p. 66 {ibid.). '

526

Title II, Ch. Ill] ORD. OP 1670 AND REVOLUTIONART LAWS [§ 5

had gained the upper hand, and the proposal was rejected in the
State's Council. However, a serious discussion of the matter
still took place, for it was recalled that the " lettres de cachet "
had formeriy often filled a function analogous to that which it
was wished to attribute to this family jury. " Count Regnaud
de Saint-Jean d'Angfily fears that this institution would intro-
duce arbitrariness. He acknowledges that formeriy, when the
' lettres de cachet ' were in vogue, there was still more arbitrari-
ness ; but the ' lettres de cachet ' were not much issued." ^ In
the sitting of 23d August, 1808, M. Treilhard also supported the
family jury : " He says that he does not claim that this institu-
tion is necessary, but that he is persuaded that it would be bene-
ficial, were it but to prevent a return to the ' lettres de cachet ' ;
powerful and influential men would not fail to invoke the author-
ity of the sovereign, if the law does not give them means of repress-
ing internal disorders in their families." ^ But the institution
was not capable of surviving ; it was not allowed to see the light
of day, and the " lettres de cachet " have not reappeared.

» Locri, vol. XXVIII, p. 107. • Ibid,, vol. XXVIII, p. 142.

527

§1]

PBOCBDUBE SINCE THE FRENCH REVOLUTION [Pabt III

Chapter IV

CRIMINAL PROCEDURE IN FRANCE SINCE THE.

CODE OF 1808

§ 1. Legislation and Judicial Deci-
sions.

§ 2. Changes in Ptocedure before
Trial.

§ 3. Changes in the Preliminary

EiXaminatioA.
§ 4. Plans for Reform.
§ 5. Recent Legislation.

§ 1. Legislation and Judicial Decisions. — Our task would seem
to be at an end. We began our study at the period where the
first traces of the inquisitorial and secret procedure show them-
selves in our laws. Then, following the course of the times, we have
seen this procedure expand, become imperative and grow precise
in detail, and finally become settled within the inflexible limits
of the great Ordinance. In the second half of the 1700 s a new
spirit brings up for examination the Criminal Procedure, in com-
mon with all the institutions of the old French social system ; and
erelong a great breath of liberty passes over Prance. The Laws
of the Revolution, copied from the English laws, establish among
us the jury, the oral and public procedure, and the free defense of
the accused. But some of the wisest institutions of the ancient
law were needlessly sacrificed ; in the midst of the terrible cir-
cumstances which form its environment, the new procedure
shows itself inefficacious; little is wanting but a strong wave of
reaction to secure the revival of the Ordinance of 1670. The in-
stitution of the jury, however, has been saved after much discus-
sion and strife, and we have witnessed the slow elaboration of the
Code of Criminal Examination, a composite work and one of com-
promise, which borrows from the Laws of the Revolution almost
all its rules regarding trials and judgments, and from the Ordi-
nance of 1670 almost all those of the preliminary examination.
It would seem that our explanation should be at an end, for the
Code of Criminal Examination is still in force at the present time.
A last chapter remains for us to write, however. The Code of
Criminal Examination is to-day already an old law ; it is more than
one hundred years old, and since its promulgation it has under-
gone numerous alterations, some of them very material, although

528

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 2

relating to matters of detail. The strife has continued between
the two tendencies, between which the legislators of 1808 wished
to establish a durable conipromise and a definite equilibrium.
Although there could be no question of new conquests for the pro-
cedure of the past, although the ground yielded by it was definitely
lost, the spirit of free defense was bound to insinuate itself at those
points where it had not been able to penetrate in 1808. The dis-
cussion has, in fact, continued ever since, in press and in parlia-
ment, in books and in speeches. This time, contrary to what
took place in the 1700 s, the attack has frequently been made by
the criminalists; their voices have been loudest in favor of hu-
manity and wise liberty.^ It is sufficient to mention the cele-
brated and honored names of Faustin Helie and d'Ortolan.

It must be said, however, that, with the exception of certain
reforms closely connected with the recollection of celebrated
trials, such as the rehabilitation in favor of the dead, these de-
mands have not aroused public opinion to the point of passion.
The governments which have proposed and adopted ameliorations
and reforms have yielded to scientific deduction rather than to
the exigencies of public opinion. It is easy, we believe, to explain
this tranquillity of mind, which is by no means indifference. We
have the trial by jury for the graver infractions ; for all of them
the procedure is public and oral and the defense entirely free.
It is, therefore, certain that in law and in fact innocence can easily
triimiph before the trial jurisdiction at the end of the contest.
Whatever may be the severity of the examination, it cannot abolish
the sentiment of safety given by the final proceedings. We shall
not describe the movement of minds as it appears in the parlia-
mentary debates, in the press and in books ; it is the very environ-
ment in which we live ; let us point out briefly what has been done
by legislation, from 1808 to the present time. We shall also note
the tendencies and the results of judicial practice where they have
been inspired rather by a general view than by the minute inter-
pretation of authorities ; judicial practice is everywhere and always
one of the most puissant factors among those contributing to the
development of a nation's laws.

§ 2. Changes in Procedure before Trial. — The Code of Crimi-
nal Examination, as we have seen, is composed of two quite dis-
tinct parts : the rules concerning the judgment, and those regu-
lating the examination. The former ought to be more stable than
the latter; they have derived little from the institutions of the
past. One borrowing, however, has been made from the most

529

i 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

unfortunate inspiration of the Old R6gime. The special courts,
descendants of the old pr6v6tal jurisdictions, formed a dark
stain upon the Code of Criminal Elimination. They did not
disappear along with the Empire. The constitutional charter of
14th June, 1814, maintained them as a normal institution. Article
62: "No one can be deprived of his natural judges." Article
63 : " Commissions and extraordinary courts cannot be created.
Under this denomination pr6vdtal jurisdictions are not included,
should their reestablishment be deemed necessary." A Law of
20th December, 1815, effectively organized pr6v6tal courts, com-
posed of a president and four judges, chosen from among the mem-
bers of the district court, and of a provost, taken from among the
military or naval ofBcers, having the rank of colonel and being
thirty years old (Articles 2, 3, and 4). They took cognizance of all
the crimes jurisdiction of which was conferred by the Code on the
special courts, but in addition thereto, their jurisdiction compre-
hended a great number of political offenses (Articles 8 to 14), and
this new jurisdiction was the real raison d'Stre of the institution.*
The judgments rendered by these pr6v6tal courts were not sus-
ceptible of any review ; the question of jurisdiction was submitted
to the chamber of arraignments, which decided finally without
the possibility of an appeal to the Court of Cassation (Articles 45
and 39). By the same means the special courts of the Code of
Criminal Examination' ceased to exist, and the new pr6v6tal
courts were not destined to have a long life. Article 55 and last
of the Law of 1815 provided " that the present law shall cease to
have effect if it has not been renewed in the course of the said ses-
sion." Well, it was not renewed ; at the very opening of the ses-
sion, on 5th November, 1817, Louis XVIII announced that he
did not consider the preservation of the pr6v6tal court any longer
necessary. The charter of 1830 prohibited their reestablishment
forever. Article 53 : " No one can be deprived of his natural
judges." Article 54 : " Extraordinary commissions or excep>-
tional courts cannot be created under any title or denomination
whatever." On this point, again, the Ordinance of 1670 finally
became a thing of the past; henceforward the pr6v6tal juris-
dictions belong but to history. The common law jurisdictions
remained : courts of assizes, tribunal of correctional police, and
police court.

For the procedure before the Court of Assizes perfection was not
attained in 1808 any more than in 1791 and the year IV. The

* Sirey, "Lois annot^es," I, p. 931.

530

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 2

alterations made later could not but be, it is true, merely improve-
ments in detail, but several very important points were retouched.
The rules as to putting questions to the jury were altered : with-
out returning to the complex simplifications of the Code of Offenses
and Punishments, it was decided that the only question which,
according to the Code of Criminal Examination, could clear the
indictment, should be resolved into its necessary elements.^ In
this respect the practice of the presidents of the Courts of Assizes
preceded the law and inspired the lawmaker.

Another reform assured the independence of the jurors in their
voting. We have already told how, according to the Law of 1791
and the Code of Brumaire, the jurors gave their opinions aloud,
one by one. The Code of Criminal Exaijiination did not preserve
these somewhat spectacular forms, but it maintained the prin-
ciple of the oral verdict ; it did not even isolate the jurors from
each other as had been previously done. When they had retired
into the jury room, and the discussion was at an end, the foreman
of the jury questioned them one after another and took down their
replies (Article 345). This method was bound frequently to put a
restraint upon timid dispositions and even falsify the voting. It was
changed by the Law of 9th September, 1835, establishing the vote
by secret ballot. " It is asked," said the Keepjer of the Seals, in the
Committee Report, " why, when everything is done among us by
ballot, it is not allowed to the courts of assizes to express one's
private conviction, — the proceeding used in elections at all
stages, and in the making of the laws." This new method of ballot
was afiirmed and detailed in the Law of 13th May, 1836.

In 1832 the jury acquires a new power, that of taking into con-
sideration extenuating circumstances in favor of accused persons
(Article 341). This reform, of prime importance, concerns crimi-
nal law more than it does criminal procedure. However, we ought
to remark that it was a partial lowering of that barrier which it
was desired to raise between the fact, left to the jury, and the
question of punishment, reserved for the magistrates. In grant-
ing extenuating circumstances the jury are often swayed by the
severity of the punishment: this is a tendency which could not
be prevented ; moreover, the Keeper of the Seals, in presenting
the Committee Report, recognized to a certain extent the law-
fulness of such verdicts. ** Undoubtedly," he said, " the opinion
of the jury will be found to be sometimes affected by the considera-

» Law of 9th September, 1835 (New Art. 345 of the Code of Criminal
Examination) ; Law of 13th May, 1836.

531

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

tion of the severity of the punishment ; but the influence of that
consideration cannot be totally avoided. It is better to allow the
jury some latitude than to expose ourselves to having the accused
freed entirely without punishment, and to allow the dangerous
doctrine of omnipotence to be sanctioned." ^ Force of circum-
stances baffled the preconceived ideas at first included in the law.

On two points numerous changes took place, the legislature
wavering between contrary tendencies. These two points were
the composition of the jury, and the majority by which it must
render its verdict of condemnation. Every time, so to speak,
that the government undergoes a notable change, a new law is
made to alter the composition of the jury. Thus there came in
succession the Law of 2d May, 1827, the Decree of 7th August,
1848, the Law of 4th June, 1853, the Decree of 14th October,
1870,^ and the Law of 21st November, 1872. These frequent alter-
ations, the result of current politics and changes, should not sur-
prise us. Roman history presents the same spectacle at the time
of the " quflestiones perpetuse " : the senators and the " equites "
dispute the right to sit on the criminal jury ; the changes brought
about in the choice of jurors are a triumph for one of the parties ;
and the laws succeed each other at short intervals, all tinged with
a political character.* We shall not enter into details at this
point. Let us only say that since the Law of 1827 there is one
more stage in the operations which ought to result in the petty
jury. This law in effect created an annual jury list, from which
the session lists are no longer chosen, but drawn by lot, fifteen
days before the opening of the assizes. This was a happy crea-
tion, which has always existed since that time, and which even,
in the more recent laws, has caused the general list, henceforth
useless, to be set aside. What has varied, and will undoubtedly
vary again, is the choice of authorities charged with drawing up
this list every year.

The legislature of 1808 had adopted for the decisions of the jury
the principle of a mere majority, but it had not openly proclaimed
it, and had constituted an illogical and complicated system which
could not last. The Law of 4th March, 1831, abolished this
anomaly. It provided no longer *'that the judges of the law
should take part in the declaration of the fact " ; but it provided

^ Sirey, "Lois annot^es," II, p. 126.

• It repealed the Law of 1853, and again put in force the Decree of 1848.

* See Geib, "Geschichte des romischen Criminalprocesses," p. 195 et sea,
Zumpty "Das Criminah-echt der romischen Republik"; Zweiter Band:
" Die Schwurgerichte."

532

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 2

that the decision of the jury should not convict the accused
except by a majority of more than seven votes. This was a
partial return to the principles of the Laws of 1791 and the year
IV ; and it was granting accused persons a dangerous favor. Very
soon, therefore, a reaction set in, and the Law of 9th March,
1835, reestablished the rule of the mere majority : " It is asked,"
said the Keeper of the Seals, " why, in a government by majori-
ties, it was to the minority that the right of deciding upon the
life and the possessions of the citizens was left." ^ In 1848 a
new oscillation of the pendulum took place in a contrary direc-
tion; there were even two laws passed upon this point in the
same year. A first Decree of 6th March, 1848, destined to repeal
the famous Laws of September, 1835, decided, in Article 4 : "A
conviction shall require a majority of nine votes; the decision
of the jury shall, to be valid, bear these words : ' Yes, the ac-
cused is guilty, by a majority of more than eight votes.' "
The preamble declares "that the conviction by the jur^*^ by a
mere majority is a provision which has the disapproval at once
of philosophy and humanity, and which is in direct opposition
to all the principles laid down by our various National As-
semblies." But on 18th October another Decree, passed by the
Constituent Assembly upon the report of M. Cr6mieux, reduced
the majority necessary for conviction to eight votes. Finally,
the Law of 10th June, 1853, again amending Article 347 of the
Code of Criminal Examination, reestablished the principle of the
mere majority, allowing the court, in Article 352, to " transfer
to subsequent assizes a case where it was convinced of the commis-
sion by the jury of a judicial error." ^ It is not likely that such
a wise rule, one that holds the balance equal between the accused
and the society accusing him will be abandoned in the future ;
it has now been long sanctioned by experience, and it may be said
to have passed into our customs.

* The Law of 1835, however, imported a restriction, very slight, it is
true. Amending Art. 352, Inst. Crim., which, in the case of an affirmative
verdict, allowed the judges, if they were unanimously of opinion that the
jury were mistaken upon the merits, to adjourn the case to another session.
It adds: "When the accused shall have been declared guilty by a mere
majority only (which the jury must declare) it will be sufficient that the
majority of the judges are of opinion that the judpncnent should be sus-
pended and the case adjourned to the following session, in order that this
modification be ordered by the court."

* The ** Expose des motifs" said : "This seeming innovation is not one
in realitjr. For the sixty years that the jury has been in existence in our
country it has not operated with specific majorities for verdicts of guilty
except during fourteen years ; it has operated during forty-six years with
a mere majority." Sirey, **Lois annot^s," 1853, p. 67.

533

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

To finish with the legislative amendments, which the organiza-
tion of the jury has undergone, let us say that a recent Law of
19th June, 1881,^ has suppressed the summing up made by the
president of the Court of Assizes after the close of the parties'
cases. This is a reform in favor of which a strong current of public
opinion had set in for a long time. This summing up, which ought
to present a faithful picture of the case, did not always represent
fairly the prosecution and the defense. From an unconscious
esprit de corps, from that professional sentiment which formerly
rendered the judges of the Toumelle unfavorable to the defense,
the. president, however strong might be his desire to prove himself
impartial, too often became the auxiliary' of the attorney-general.
The summing up was sometimes an amplification of the requisi-
tion of the public prosecutor. The prosecution and the defense
were probably not on an equal footing when, at the moment when
those waverings which precede difficult decisions were taking place
in the minds of the jurors, the president threw the weight of his
high authority into the scale. Conversely, moreover, it may be
said that the jurors, now accustomed to their duties, had their
minds made up at the close of the trial, and that they listened
impatiently to a summing up, which prolonged their session, and
delayed the decisive moment when the verdict was tcf be decided
on and announced.

If it is now asked how in judicial practice the rules of procedure
before the assize courts have been applied, we find first of all that
it has maintained with the greatest rigor the necessary formalities
in the procedure by jur>' : the forms are here one of the principal
safeguards. The Supreme Court, enlarging in a spirit of justice
the scope of nullities, declares to be error the omission of any for-
mality which is really material to the defense, even when the law
shall not have prescribed it on pain of nullity. But on the other
hand, judicial practice has introduced to a rather large extent the
use of written depositions before the Assize Courts. We have
seen with what care the Legislature of 1791 and the year IV with-
drew from the eyes of the jury the written depositions taken in
the preliminary examination ; not only was it forbidden to submit
these documents to them, but also, with some exceptions, to have
them read to them. The Code of 1808, while it was less precise
and less strict, had not rejected this tradition, as we have shown

^ New Article 346, Inst. Crim. : "The president, after the close of the
trial, cannot, on pain of nullity, sum up the pleading:s of the prosecution
and the defense.*' In Belgium this summing up was abolished by Decree
of 4th July, 1831.

534

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 2

above. Judicial practice, on the contrary, decided that the presi-
dent, by virtue of his discretionary power, could always let the
jury have a perusal of the written depositions. This law of the
courts, established at an early date,^ has been kept up in a
consistent fashion. Originally the wording of the decisions seemed
to restrict it to the case where the witness could not be cited or
appear by reason of ** force majeure," but the same principle was
in course of time applied to the case where the witness might have,
but had not been, cited ; whether the witness was present or ab-
sent, the president could cause his deposition to be read.^ This
is a practice well established to-day, and one which raises no pro-
test ; it gives the defense the same assistance as the prosecution.
Besides, although formerly the employment of written documents
had been so carefully prohibited before the jury, it was in the
fear that by this means the doctrine of legal proofs would be re-
formed of its own accord. It is easy to see that this fear was
groundless. The system of moral proofs is enjoined by public
opinion still more than by law.

In the procedure before the courts of correctional police, writ-
ten proof gained much more ground, and that by virtue even
of an express law. The organization o&the appellate jurisdiction
in correctional matters was in 1808 illogical and extravagant;
it could only be justified by the difficulty of communication at
that period. Some appeals only (those of the department where
the court sat) were brought before the Court of Appeal; the
others were brought before the court of the chief seat of the depart-
ment ; several to the court of the chief seat of an adjacent depart-
ment. There was neither harmony nor true hierarchy, and
historically as well as logically a wisely constructed hierarchy ap-
pears to be one of the natural conditions of the appeal. The Law
of 13th June, 1856, abolished these anomalies. According to the
new Article 201 of the Code of Criminal Examination, the appeal
should always be brought before the court. But, in spite of the
great development of the means of communication, this led to
making rather difficult and very costly the appearance of the
witnesses before the Court of Appeal. In the old state of things
they usually appeared only in the trial court, and the judges of

1 See Cas8., lOth January, 1817 ; Cass., 9th April, 1818 (Sirey, "Collect. I
nouv.," vol. I, p. 463). ^

* The law, however, retains the rule according to which the dominant
characteristic is that the proceedings are oral ; so that when a witness ap-
pears and testifies before the jury, the reading of his written deposition
cannot be made to precede his oral deposition. Cass., 12th September,
1867 (Sirey, 68, I, 319).

535

5 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

appeal decided according to the notes of hearing, taken by the
clerk of court in conformity with Articles 156 and 189 of the Code
of Criminal Examination. In 1856 this fact was stated to the
Legislative Body by the reporter of the Law, M. Nogent Saint-
Laurent : " The witnesses are always heard in the trial court ;
before the magistrates charged with the appeal their hearing
is always exceptional in practice." ^ Henceforward this prac-
tice could no longer be afBrmed. ^Vhat was to be done ? Accept
the necessity and the fact and, since the judges would most often
judge upon the notes of hearing, see that they were complete
and faithful. This was rather difBcult to manage, the task being
troublesome to the clerks of court. " How could they have suflS-
cient and complete notes? Nothing but stenography could keep
up with the testimony. Any other method dragged hopelessly
behind. Go into the court-room and observe the clerk of court ;
he is attentive ; absorbed ; he glances from the deponing witness
to the paper upon his desk. The testimony has hardly reached
his ear before he is writing as fast as he can. . . . The trial goes
on, however, without anybody concerning himself with the clerk.
Nobody comes to his assistance. He has a great deal to do. . . .
When the hearing is at an end his summary notes are riddled with
blanks, gaps, and contractions. The summary notes should at
all events present all the salient sides of the oral depositions, but
they rarely do so. Under the bill, however, oral depositions,
formerly so rare before the court, will become rarer still. The
consequence of this is evident; the notes of the evidence will
acquire a greater importance; consequently they must be im-
proved." ^ To achieve that this is what was done. Article 189,
as amended, contains the following provisions : " The clerk of
court will take notes of the statements of the witnesses and the
replies of the accused. The clerk's notes will be ratified by the
president within three days after the rendering of the judgment."
It was, therefore, no longer the principal statement (Article 155),
but all the statements of the witnesses, and, furthermore, those of
the accused, that the clerk must take notes of, and the president's
certificate guaranteed the faithfulness of these notes. An amend-
ment was presented by M. Picard, asking that the notes should be
communicated to the defense, which should be entitled to examine
them, and, if need be, make a protest, but this was not considered
by the State's Council.

* Sirey, "Lois annot^es," 1856, p. 58.

* Report of M, Nogent Saint- Laurent ; Sirey, "Lois annot^es," 1856, p. 59.

536

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 2

A prior Law, that of 30th January, 1851, upon judicial assist-
ance, had rendered the defense before the court of correctional
police easier for the accused. According to Article 29, " the presi-
dents of the correctional court shall appoint an official defender
to accused persons prosecuted at the request of the public prose-
cutor, or detained pending trial, when they demand it, and when
their poverty shall be established either by the documents referred
to in Article 10, or any other documents/' This same Law, in
the following Article, rendered it also possible for indigent accused
persons to have witnesses cited for the defense, although they are
not able to defray the expenses of the citation. Up to that time
the indigent accused had but one resource, to ask the public
prosecutor of his good will to cause the witnesses pointed out by
him to be cited (Article 321).^ Two methods of recourse in
criminal and correctional matters were enlarged or rendered
easier. The Law of 29th June, 1868, amending Article 443 and
the following Articles of the Code of Criminal Examination, pro-
vided that the appeal for revision, in the three cases where the
Code admits it, could be lodged after the decease of the con-
demned in order to rehabilitate his memory ; it makes this method
of recourse available to those condemned to correctional punish-
ments when the punishment is " imprisonment or total or partial
deprivation of civil, civic, and family rights." Quite recently a
Law of 2Sth and 30th June, 1877, amending Articles 420 and 421
of the Code of Criminal Examination, dispenses with the " mise
en 6tat " of the person condemned to a punishment depriving him
of his liberty, who lodges an appeal to the Court of Cassation,
when the duration of the punishment does not exceed six months ;
it also dispenses, in the same case, with the payment of the fine
by any one " condemned to a correctional or police punishment
entailing deprivation of liberty." This necessity, always imposed^
by the " mise en €tat," was a tradition of the old law.

* ** The i)residents of the courts of assizes and the presidents of the cor-
rectional tribunals can, even before the day fixed for the hearing:, order the
citation of the witnesses who shall be indicated to them by the indigent
accused, where the testimony of these witnesses shall be deemed useful
for the discoverer of the truth. All productions and authentication of
documents can likewise be ordered officially/ '

* At least whenever the punishment carried deprivation of liberty for
any length of time (old Article 421). — Along with these liberal Laws one
roa;^ be cited which appears harsh ; namely, that of 9th September, 1835,
which allows of the expulsion from the hearing of accused persons who,
''by means of outcries or any other means likely to cause disturbance shall
obstruct the course of justice," and which, however, declares that they will
be tried confrontatively in the same way as those who refuse to appear.
This, at first sight, recalls the proceedings of the ancient law against vol-

537

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

We have seen above that the Code of 1808 had preserved in
the clearest fashion the principle of res judicata, and the liberatory
effect of the acquittal pronounced by the Court of Assizes. It
is expedient to point out how the courts in general construed
Article 360 of the Code of Criminal Examination. Under the
rule of the Code of Bnimaire, it was provided that the effect of
the acquittal was to wipe out at once all the penal qualifications
of which the fact was susceptible, even those which had transformed
it into a simple misdemeanor, by the ehmination or the modifica-
tion of some of its elements. It is true that, on the other hand,
the Code of Offenses and Punishments ordered the president to
put to the jury the questions resulting from the trial which might
modify the gravity of the charge.^ Under the rule of the Code of
Criminal Examination was this tradition to be followed, or was it,
on the contrary, to be provided that, after acquittal in the Court
of Assizes, the accused might be prosecuted before the court of
correctional police for the same act, differently named and trans-
formed into a misdemeanor ? The question was not long in arising
before the Supreme Court. On 27th August, 1812, the Court of
Toulouse rendered a decree sustaining the prior rulings, " con-
sidering that the new Code of Criminal Examination has not in
this respect made any change upon the maxim * non bis in idem ' ;
it had but substituted a chamber of accusation for the grand jury,
and nothing prevents the president of the assizes from putting
questions arising in the course of the trial." ^ But this doctrine
was warmly contested by Merlin, in the sitting of the Criminal
Chamber of 29th October, 1812, and in conformity with his
motion the contrary theory was adopted by the Resolution of
29th October, 1812 : " be it understood that according to Articles
374 and 379 of the Code of Offenses and Punishments, the ques-
tions which were submitted to the trial jury must necessarily
relate not only to the fact which was the subject of the indictment,
but also to all the circumstances which, according to the trial or
the accused's defense, could modify the gravity of the deed, even
though they changed its character ; that in this way under the
rule of this law, the acquittal pronounced in favor of an accused
must absolutely free him from all prosecution, on account of the

untary mutes, but this comparison is hardly appropriate. The Law of
1835 applies only to accused persons who are in a state of open and violent
rebellion against the court, when it takes numerous precautions to compel
them to follow the course of the proceedings.

1 See Cass., 5th February, 1808; Sirey, ** Collect, nouv.," II, p. 484.

^ Merlin y ** Repertoire, additions. Nobis in idem, No. V bis."

538

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 3

act charged, and also on account of all its modifications, and all
the features of criminality of which it might be susceptible ; but
that the Code of Criminal Examination, by establishing other
rules, has necessarily restricted this principle." ^ This Resolu-
tion settled the judicial law on this point, which has not varied
since. This solution is probably regrettable, and with diflBculty
reconcilable with the broad and absolute terms of Article 360;
but it must 'be acknowledged that it rests upon a very strong
juridical reasoning ; ^ and if it should evg* be abolished by a law,*
such a law must logically at the same time impose upon the presi-
dent the obligation of putting to the jury the subsidiary questions
resultinfi^from the trial. _. ,

§ S^^Changes in the Preliminary Examination. — The prelimi- ,

nary examination was the part of the Code of Criminal Examina- I

tion most open to criticism; and important reforms had been !

already carried out in regard therewvand others, more important
still, are in preparation. But befcJre approaching the recital of
these reforms and the investigation of these plans, let us see whether
judicial law had in any way modified the system established by
the legislature of 1808. The Courts had been able to do only
one single thing : to open to the accused a recourse before the
Chamber of Accusation against the orders of the Council Chamber,
or against those of the examining judge, where the law had not
granted it to him expressly, but had not absolutely refused it.
In effect, it did something of the same kind in favor of the public
prosecutor. The Code had not allowed to the public prosecutor
and the civil party an appeal from the order of the Council Cham-
ber except in a single case, namely, when this order set the accUsed
at liberty.* But the Courts did not hesitate to enlarge this
provision and to give to the public prosecutor the right of appeal
in every case;^ they relied upon the principle that in criminal
matters appeal is a matter of right. " Is it necessary," said

* Merlin f "Repertoire/' loc. cit.

* "If the president of the Coiu't of Assizes," said Merlin, "ought not to
have interrogated the jury upon this point, it is very clear that the accused
cannot be deemed to have been put to trial upon this point before the
jury."

* A bill for this purpose was submitted to the Chamber of Deputies.

* Old Article 135 : "When the release of the accused shall be ordered
conformably to Articles 128, 129, and 131 above, the imperial attorney
or the private prosecutor shall be entitled to oppose his release."

* See C(w«., 25th October, 1811 {Sirey, "Collect, nouv.," Ill, I, p. 414) ;
Cass., 20th June, 1812 ("Collect, nouv./' IV, I, p. 128) ; Cass., 19th March,
1813 ("Collect, nouv.," IV, I, p. 308) ; Cass., 29th October, 1813 ("Collect,
nouv.," IV, I, p. 308); Cass., 29th October, 1813 ("Collect, nouv.," IV,
I. p. 454).

639

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

Merlin in his motion, " that this order be expressly ranked by the
Code of Criminal Examination in the class of those which are
susceptible of appeal? Certainly not. It is suflBcient that it
be not excepted from it, and why? Because this power to
attack all the acts of the Council Chamber of the court of the
first instance is a matter of common law." He had formerly
said : " It is not an appeal, properly so called. It is a method
introduced for the same purpose as the appeal."^ " But if this
were so, must not the .same right of appeal be given to the
accused? " It may be said for the aflBrmative," declared Meriin
in another matter where this question presented itself, " that
there is no Article of the Code of Criminal Examination allowing
the accused to protest to the judge against an order of this nature ;
no more is there any which forbids him, which interdicts him from
this method, although it is open to his adversaries, which destroys
all equality between him and his adversaries . . . that, besides,
the recourse to the superior judge against the orders of the first
judges is a matter of common right, and it is upon this principle
that you have relied in the Resolution passed by you on 29th
October last, determining, notwithstanding the silence of Article
135, that the orders which are sent to the correctional police in the
case provided for by Article 130 are subject to appeal." How-
ever, the eminent jurisconsult finds a reason for refusing to the
accused the right of lodging appeal : " The common law," he
continues, " is that the preliminary judgments are not subject
to appeal. It is, therefore, conforming to the common law to re-
fuse to the accused the power of protesting against the order
sending him to the correctional police." ^ Probably, as a matter
of good logic, it would have been possible by the same reasoning
to deny the appeal of the public prosecutor ; but, however that
may be. Merlin's argument triumphed, and the Supreme Court
decided that " the method of appeal is not open to the accused
against the order transferring him to the correctional court,
that this right belongs only to the public prosecutor and the
civil party." ' For a stronger reason it was determined that
the orders of the examining judge were not, except for a juris-

* Merlin, ** Rupert, addit." Appeal from an Ordinance of the Council
Chamber, No. 11.

^ Ibid., "Rupert, addit." Appeal from an Ordinance of the Council
Chamber, No. IX.

» Cass., 20th December, 1813 (Sirey, "Collect, nouv.," IV, I, p. 497) ;
— Cass., 7th November, 1816 {Sirey, "Collect, nouv.," V, I, p. 244) ; —
Grenoble, 29th March, 1834 (Sirey, 34, 2, 441) ; — Lyons, 31st January,
1834 (iSirci/, 34, 2, 381).

540

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 3

dictional cause, capable of attack by appeal on the part of the
accused.^

The revision of our Criminal Codes in 1832, so fertile upon other
points, produced nothing new in regard to these matters. But
under the Second Empire we find a series of very important re-
forms, although all bearing upon isolated points. The Law of 17th
July, 1856, suppressed one of the institutions which appeared to
the compilers of the Code of Criminal Examination to be the most
happy, that of the Council Chamber. It transferred its powers
to the examining judge alone ; he in future had the duty of ren-
dering the final decree which closes the examination, and decides
what the result of it will be (Article 127 et seq.). In the eyes of
the legislators of 1808 this had appeared a very important matter ;
it had recalled to them the ruling to the " extraordinary " action
pronounced by a single judge, an abuse against which the Cahiers
of 1789 had vigorously protested. But practice had shown that
the examining judge had a preponderating influence in the Council
Chamber. In law, if a crime was concerned, and, in fact, in all
cases, it was easv for him to obtain an order of transference. He
alone knew the proceedings thoroughly, and could present them
imder colors favorable to his opinion. By giving him the right to
decide alone, the proceedings, the progress of which became more
rapid, were simplified ; the responsibility of the decision was held
by everybody to lie upon him who usually gave it out. If we con-
sider what was said in 1856 in justification of the new Law, it
must be acknowledged that these observations were just. It
must be noted, on the other hand, that the nations which have
borrowed our Code of Criminal Examination, Belgium and Italy,
for example, have retained the Council Chamber ; and by giving
it new powers they have made it one of the most useful parts of
the general mechanism. We shall also see that it is proposed
to reconstitute it in France upon that model. The Law of 17th
July, 1856, still regulated this question of opposition to the orders
of examination, which we have already seen decided by judicial
law ; and it adopted the majority of the solutions admitted by
the Supreme Court. The new Article, 135, declares, in effect, that
" the imperial attorney can, in all cases, lodge appeal to the
orders of the examining judge. The civil party can lodge appeal
to the orders issued in the cases provided for in Articles 114,
128, 129, 131, and 539 of the present Code, and to every order
injurious to his civil interests." As for the accused, something

1 Paris, 17th AprU, 1833 {Sirey, 33, 2, 289).

541

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

more was done in his interest than judicial law had done. He
could lodge appeal, not only " in the case of Article 539," that
is to say, when he objected to the jurisdiction of the judge,
and when the latter was declared competent (which had never
been contested), but also " to the orders issued by virtue of Article
114." Article 114 applies to the order of the judge deciding upon
the demand for liberation on bail. But, at the same time, Article
135, by its very clear phraseology, as well as by reason of the
explanations furnished before the Legislative Assembly, effectually
prevented all judicial rulings aiming at the enlargement of the ac-
cused's right of opposition.

The question of detention pending trial and liberation on bail,
which we have met in Articles 135 and 114, was the primarj*^
consideration of the legislators of the Second Empire in the matter
of preliminary examinations. In 1855 they approached it for the
first time. According to the old Article 94, the examining judge,
after the interrogation, issued a writ of attachment when the act
entailed corporal or degrading punishment or correctional imprison-
ment ; but by the same authority he was bound thereby and no
authority was given him subsequently to withdraw this writ
spontaneously. The Law of 4th April, 1855, amending Article
94, provided that after the interrogation the judge could not issue
anything but a warrant of commitment and that " in the course
of the examination he could, upon the motion of the imperial
attorney, and whatever might be the nature of the charge, with-
draw every warrant of commitment, on condition that the accused
should be represented at all the stages of the proceedings, and
should be bound for the execution of the judgment immediately
upon his being required." This was preserving to the warrant of
commitment the character of a temporary measure, which had
always distinguished it ; and though here the temporary measure
could very easily become absolute, this extension presented more
advantages than disadvantages; it even allowed the rule for-
bidding liberation on bail, whenever a crime was concerned, to be
disregarded. But this gave rise to a somewhat serious abuse.
Subsequently a Law of 14th July, 1865, amending anew Article
94, allowed the judge to cancel the writ of attachment, like the
warrant of commitment, but it none the less allowed him the
option of issuing either a warrant of commitment or a writ of
attachment after the interrogation ; by this means it authorized
the practice, well established to-day, which regards both warrants
as identical in their functions as well as in their effects, although

542

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 3

the warrant of commitment is far from affording the accused the
s^e safeguards as the writ of attachment.^ _^

/ The Law of 14th July, 1865, completely altered the matter of the f

arrest, of detention pending trial, and liberation on bail. Con-
ceived in a truly liberal spirit, it allows the judge, whatever might
be the seriousness of the charge, to issue in the first place against the
accused merely a simple summons to appear; according to the
old Article 91, the warrant to bring the accused before the Court
(" mandat d'amener ") was essential when a crime was concerned.
Then, withdrawing all the barriers and prohibitions formerly exist-
ing, it provides (Article 113, New) that " in every case, the examin-
ing judge can, upon the request of the accused and upon the motion
of the imperial attorney, order the accus^ to be provisionally
liberated, on condition of his engagement to be represented at all
the stages of the proceedings and to execute the judgment imme-
diately upon his being required." This was the first time since
1789 that pro\dsional liberty was allowed in criminal matters.
Furthermore, the judge could always exempt the accused from fur-
nishing bail (Article 114). This provision was, it is true, of less
importance than might be thought : a Resolution of 23d and 24th
March, 1848, had suppressed the minimum of bail to be furnished.
These articles gave the judge great powers of liberation; they
gave him great powers, but they did not compel him to use them.
The Law of 1865, however, has gone farther, by providing that
in certain cases provisional liberation shall be a matter of right,
without being as broad in that respect as the Law of 1791 and the
Code of Offenses and Punishments. Article 113 (New) : " In
correctional matters liberation shall be a matter of right, five days
after the interrogation, in favor of a domiciled person, when the
maximum punishment pronounced by the law shall be less than
two years* imprisonment. The foregoing provision shall not apply
either to prisoners already condemned for crime or to those already
condemned to an imprisonment of more than one year." As a
last favor, in this case the judge cannot exact bail from the accused.
Article 114: " Provisional liberation may, in all cases where it is
not OiTrvaUer of rights be subordinated to the obligation to furnish
bail.'^ We know that the accused could submit to the Chamber

1 See Arts. 61 and 96, Inst. Crim.

* Articles 113 to 126, drawn up anew by the Law of 14th July, 186.5,
contain important details upon provisional release and bail which we must
omit. Let us only say that it is not merely during the preliminary exam-
ination that provisional liberty can be claimed. Art. 116: "Provisional
release can be clamied at every stage of the case." The prevailing practice,

^ 543

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

of Arraignments the order by which the examining judge decides
unen his request (Articles 135, 115, 113; cf. Article 119).
<^The Law of 14th July, 1865, has dealt with detention pending
tnal from another point of view; it has restricted, or, rather,
regulated, the power of the examining judge to pronounce the
" mise au secret," or prohibition of communication with the
accused. A certain number of serious occurrences have drawn
the attention of the public to the abuse of this practice. Article
613, drawn up anew in 1865, provides that " when the examining
judge shall think proper to prescribe in regard to an accused a
prohibition of communication, he can only do it by an order which
shall be entered upon the prison register. This prohiWtion shall
not extend beyond ten days ; it can always be renewed/]^ It shall
be reported to the attorney-general." ^

The Law of 14th July, 1865, whatever might be its importance
in other respects, had only touched upon one point of the pre-
liminary examination as organized by the Code. Another Law,
a little eariier in date, that of 20th May to 1st June, 1863, had
suppressed this examination for a whole class of infractions.
These were " flagrants d61its correctionnels," correctional offenses
where capture in the act had occurred. This Law, in some of its
provisions, also touched upon the question of detention pending
trial. Down to that time detention pending trial and the pre-
liminary examination' were two things indissolubly united, only
the examining judge being able to issue the warrant of com-
mitment or writ of attachment.^ This sometimes presented great
inconveniences. When an individual was taken in the act,
committing an infraction punished merely by correctional punish-
ment (a very frequent thing, especially in large towns), and
brought by the officers who had arrested him before the imperial
attorney, the latter had but two courses to take, both of them
somewhat unsatisfactory. If he did not wish to leave the accused
at liberty and have him directly summoned before the court of cor-
rectional police (Articles 182, 184, Inst. Crim.), which would have
been absurd, — in order to have him regulariy incarcerated he
would have had to require the examining judge to issue the warrant
of commitment or writ of attachment ; but this opened up an

however, by a somewhat strict construction of Art. 126, decides that liberty
cannot be claimed before the Court of Assizes.

* Since 1875, the prohibition of communication can have no further
object than to prevent communication with the outside, those detained
pending trial having to be subjected to the rule of individual separation.

* It must be understood that we leave aside the quite exceptional hy-
pothesis of Art. 100 (Inst. Crim.).

TLA A
KrxJL

TlTL£ II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 3

examination, which necessitated a certain number of steps and
entailed inevitable delay. This examination, which the law did
not impose in other matters, was entirely useless for such a simple
case. The proofs were all collected ; the witnesses were known,
and usually they were the officers who had effected the arrest.
Therefore Article 1 of the new Law, for the purpose of evading
these difficulties, gives the imperial attorney, in such circum-
stances, the right to issue the warrant of commitment : " Every
accused captured in the act, for a fact punishable by correctional
punishment, is immediately brought before the imperial attorney,
who interrogates him. ... In this case the imperial attorney
can put the accused under warrant of commitment." This
warrant is, moreover, in this instance, of an essentially provisional
character.

The Law of 1863, indeed, was not contented with suppressing
the preliminary examination for capture in the act ; it has mate-
rially accelerated and simplified the judgment. If, on the very day
of the arrest, there is a hearing of the correctional police court,
the imperial attorney can immediately bring the accused there
(Article 1). The witnesses are then " orally summoned by any
officer of judicial police, or officer of the public force. They are
bound to appear under the penalties provided by Article 157 of
the Code of Criminal Examination (Article 3)." The simple
proceeding is thus settled without delay and almost without
formality. This procedure was imitated by the Legislature of
1863 from that practised before the police courts in London,
which had achieved such great success. If on the same day as
the arrest there is no hearing of the correctional court, the imperial
attorney is bound to have the accused summoned for next day's
hearing. The court, if need be, is specially convoked (Article 2).
Again, the accused could reject, or rather delay, this expeditious
procedure. Article 4 : "If the accused should demand it, the
court grants him a delay of at least three days for the preparation
of his defense." The Law of 1863 has been productive of excel-
lent effects, although in practice its provisions are not altogether
observed except in large towns, which result, however, was foreseen
by the reporter before the Legislative Body. In the inferior
courts, one hearing a week is devoted to matters of correctional
police, and the court is not specially called together on the day
following the arrest, as provided for in Article 2 ; the individual
captured in the act may therefore remain for almost an entire week
under the warrant of commitment issued by the State's attorney.

645

§ 4] PROCEDURE SINCE THE FRENCH REVOLUTION [ParT III

§ 4. Plans for Reform. — The movement and the progress of
criminal legislation under the Third Republic have been more
active and more extensive than they were under the previous
regimes, since the years 1808 and 1810. They have not resulted,
it is true, in new codifications, although a revision of the Penal
Code and a partial revision of the Code of Criminal Examination
have been projected. But numerous useful amendatory Laws
have been elaborated. They are so important that the hannony of
the texts of the Code of Criminal Examination and the Penal Code
where they have been but partially inserted is thereby greatly
disturbed, and the man who studied French criminal law thirty
years ago and who has not kept in touch with the new legislation
possesses no more than an old law very different from the present
living reality.

Very many of these new laws deal only with the penal law prop-
erly so called ; the principal of these are the Law of 26th March,
1891, upon the extenuation and the aggravation of punishments;
the Laws of 14th April, 1885, 27th May, 1885, and 20th March,
1891, upon the banishment of the convict; the Ijslw of 14th
August, 1885, upon the conditional liberation of the convict;
the Laws of 16th August, 1887, and 10th March, 1898, upon judi-
cial rehabilitation; andthel^wsof 5th August, 1899, and 11th
July, 1900, upon legal rehabilitation, which operates by process
of law upon the expiration of the delay fixed by the law, if no
new conviction supervenes in the interval. These last-mentioned
Laws of 5th August, 1899, and 11th July, 1900, regulate also the
important institution of the judicial record ( " easier ") . Several of
these laws at the same time deal with the criminal procedure in this
respect that they have augmented the powers of the judges in such
matters. Such are the Laws of 1885 and of 1898 upon judicial
rehabilitation; the Law of 26th March, 1891 (with which the
name of my eminent colleague, M. B6renger, is connected), in so
far as it allows the judges to suspend the execution of the sentence
of imprisonment and fine in favor of certain kinds of ofTenders ;
it furnishes also a first example of legal rehabilitation, the
sentence lapsing, if a new conviction, with imprisonment or
to a heavier punishment does not intervene within five years
after. The laws upon banishment have also given to the courts
powers which they did not formerly possess. Such was the direct
object of the Law of 28th October, 1888, which allows the court,
on recognizing extenuating circumstances in correctional matters,
which wishes consequently to substitute a fine for the im-

546

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 5

prisonment imposed by the law, then to inflict a fine of 1000 to
3000 francs.

But besides these criminal laws^ which only incidentally touch
upon the criminal procedure, there are also some among these new
laws directly dealing with it and aiming at its reform. They relate
to three heads. Some aim at the reform of the preliminary exami-
nation, the chief object of this study ; a second group deal with
the jury and the procedure before the jury ; a last have reformed
the procedure of revision. I shall examine them briefly in that
order. I would observe before beginning that I lay aside what is
I>eculiar to the procedure in matters of press offenses, regulated
by the Law of 29th July, 1881, the principles of which I have ex-
plained elsewhere.^ y ^

§ 5. Becent LegiBlation. -^The defects of the system of prelim-- [

inary examination adopted by the Code of 1808 had often been
pointed out and were well known. When the Republic was finally
established and the government belonged to the Republicans, its
reform imposed itself as a most essential task. A bill was, there-
fore, introduced for the reform of the Code of Criminal Exami-
nation, and it appeared in the Journal Officiel of 14th January,
1880. "The government could not remain indifferent in the
presence of such a true statement of affairs. Already, in 1870, an
extra-parliamentary commission had been charged to investigate
the reforms to be introduced into the work of 1808. The melan-
choly events which almost immediately supervened did not allow
of the accomplishment of its mission. But in the month of October,
1878, upon the initiative of the Honorable M. Dufaure, Keeper
of the Seals, a commission, composed of jurisconsults and eminent
criminalists, to whom were added several members of parliament,
met imder the presidency of the minister of justice for the purpose
of studying and introducing into our laws the ameliorations de-
manded by theory and experience. Thanks to the activity dis-
played by its members, this commission was able, within the space
of several months, to prepare a first bill containing the subjects
in the first book of the Code of Criminal Examination." ^ Thi?
bill was presented to the Senate, in the sitting of the 27th of
November, 1879, and proved to be of a very weighty character.
It remodeled the whole of the first book of the Code and comprised
a great number of articles (Articles 8 to 221), introducing a methodi-

* Eamein, "Elements de droit constitutionel," 5th edition, p. 1050 et seq,

* Bill for the reformation of the Code of Criminal Examination. Ex-
s6 des motifs. Journal of&ciel of 14th January, 1880, p. 301, col. 3;

, col. 1.

547

§ 5] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

cal order where none had existed ; but what we have to notice is
the radical changes which it made upon the preliminary examina-
tion. The Committee Report shows on every page the result of
a new spirit which permeates the law, entailing a thorough change
of system.

First of all the origin of this preliminary examination, as regu-
lated in 1808, is pointed out : " The system of the Code of Criminal
Examination is no other than that of the Ordinance of 1670 with
less harsh forms ; " ^ and it must give place to new conceptions.
There was, however, no thought of suppressing the preliminary
examination, in order to establish a purely accusatory system
modeled on the English procedure. The institution of the public
prosecutor was highly extolled, and the dangers presented by the
individual accusation, usable by any citizen, were forcibly pointed
out.^ Not only was the preliminary examination retained, but it
must continue to be secret : " Our temperament is no less repugnant
to the regime of publicity ; not to speak of the difficulties which
might result therefrom in regard to the detection of guilty persons,
and notably of accomplices remaining at liberty, informed by the
progress of the examination of the moment when flight or the de-
struction of the 'corpus delicti ' would become necessary. Is it
credible that it would be easy to collect positive statements from
witnesses, exposed to the captious questions which have rendered
celebrated the ability of the English advocates in their cross-
examination ? In France, it is hard to get a witness, even at the
trial, to tell his story frankly, as he told it to the magistrate in
secret. Is it credible that the inhabitants of our country districts,
so timid when tlie accusation of a neighbor, whose rancor they fear,
is concerned, would dare to speak in all sincerity before the accused,
and before his relatives and friends, when they would be in addition
exposed to the more or less malevolent criticism of an advocate?
Let us add that with our temperament, the examination, if thus
carried out publicly, would most frequently have the effect of form-
ing opinions in a sense favorable to the accused or the contrary, and
dictating in advance the judgment of the court or of the jury." '

But what they desired and thought to be capable of realization
was to render the procedure confrontative in this first stage of the
action, and to place the defense upon a broad basis: "While
discarding the English system as impracticable, it is allowable to
ask if it is not possible to extract from it and retain one of its im-

» Journal officiel of 14th January, 1880, p. 302, col. 3.

» Ibid,, p. 303, col. 1. » Ibid., p. 303, col. 1.

548

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 6

portant elements, that of confrontation, between the prosecution
and the defense ? " ^

The expedients which the new bill brought together in further-
ance of this result appear to us to group themselves logically
around the three following points : First, the accused could have
a defender beside him, and would receive communication of all
the documents of the proceedings. Second, the defense would
not have a merely passive part ; it would be entitled to invoke on
the part of the judge or set into direct operation the measures
which should appear to it to be important for the discovery of
the truth. Third, a series of methods of appeal is available
to the defmse against the principal decisions of the examining
magistrates.\^

I. " It bedomes necessary to place beside the prisoner, often
ignorant and illiterate, from the first step of the information, the
aid of a defender, who is not allowed in the existing system until
the eve of the public trial." ^ (See Article 127 of the bill.*) As
a general rule the counsel must be present at the interrogations.
"Article 119- Except in case of urgency, if the prisoner is pro-
vided with counsel, the judge cannot interrogate him except in
presence of the latter, or except he be duly summoned." The
first interrogation of the prisoner was also a very limited one:
" the examining magistrate establishes the identity of the prisoner,
makes him cognizant of the facts charged against him, and receives
his statements, after having warned him that he is at liberty to
refuse to reply to the questions put to him." * — " The examining
magistrate ad\dses the prisoner that he has the right to choose a
counsel, and in default of such choice, the judge, on his request,
appoints one for him." This provision recalls, as will no doubt
have been already noticed, the provisions of the Law of 1789. It
is true that the following Article added : " The examining magis-
trate may, nevertheless, proceed with an immediate interrogation
and confrontations, if urgency appears, from the condition of a wit-
ness in danger of death, or the existence of evidence on the point
of destruction." ^

From the time that the prisoner declared either to the judge or
to his clerk, or to the chief warden of the prison (Article 127), that
he had chosen counsel for the defense, " except in urgent cases,
every time that the prisoner has to be interrogated or confronted,

^ Journal offidel of 14th January, 1880, p. 303, ool. 1.

* Ibid,, p. 303, ool. 2. » Journal officiel of 15th January, 1880, p. 333.

^ Art. 85. This is aknost identical with the English law. * Art. 86. ,

649

§ 5] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

the examining magistrate must summon the counsel at the same
time, twenty-four hours beforehand, by prepaid letter or by any
other form of notice which shall be decided upon by a regulation
of public administration." ^ — " Counsel may go into the judge's
oflSce of examination with the accused, whether imprisoned or
liberated, every time the latter is summoned there. He is for-
bidden to speak without having obtained the permission of the
examining magistrate. If the judge refuses permission, the fact
is mentioned in the minutes." ^ — " The State's attorney and the
civil party's counsel both have the right to be present at the in-
terrogation." ^ — " The public prosecutor should be present at the
examination, with the same authority, and under the same circum-
stances, as the defending counsel. The examining magistrate
decides between them." *

Free communication between the prisoner and his counsel was
regulated in the following way : " Article 130. If the accused is
kept prisoner, he may, immediately after his first appearance,
communicate freely with his counsel." — " Article 131. The
judge may, nevertheless, if he thinks it necessary, forbid communi-
cation of the accused with his counsel. . . . The prohibition
cannot extend beyond the tenth day counting from the first appear-
ance. When the necessities of the information demand it, the
Council Chamber can always, upon the report of the examining
magistrate, prolong the prohibition during a second period not
extending beyond the twentieth day counting from the first
appearance." The advocate henceforth was to appear at every
moment of the proceedings. It was for him that the defense was
to have cognizance of the more important documents.

The witnesses w^ere heard secretly, as above stated. It was not
even provided that the accused or his counsel be present at this
hearing. The judge alone could admit them or the representative
of the public prosecutor; but this was a power of which the
examining magistrates probably did not make much use; the
bill also provided for inspection of the written deposition by the
accused or his counsel. "Article 64. The witnesses may be
heard either in presence of the public prosecutor, of the civil
authority, of the accused, and their counsel, or without their
presence. In the latter case, the judge ought, as soon as possible,
and at the latest before the end of the examination, allow to the
accused or his counsel inspection of the depositions taken in their
absence." Furthermore, according to Article 133, during the

» Art. 128. « Art. 129. » Art. 119. * "Expose des motifs."

650

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 5

course of the examination, " counsel for the accused may examine
(the process) if the examining magistrate is of the opinion that
such production is compatible with the necessities of the exami-
nation.^ — In every case, he must immediately be given, if he de-
mands it, notice of every appealable order of the judge." Finally,
in case of a view, the counsel is apprised and may be present at the
investigation. Article 47 : " In every case where it appears to be
necessary', the examining magistrate visits the spot, after having
apprised the state's attorney and defendant's counsel for the pur-
pose of drawing up the official reports to establish the 'corpus
delicti ' and the condition of the place, and receiving the state-
ments of the witnesses."

II. The defense, as we have said, did not play a merely passive
part, and it sometimes took the initiative. In this respect, the
bill contains a general provision. Article 37 : " The public prose-
cutor, the civil party, and the aecused, may require the examining
magistrate to take all steps which they believe to be necessary to
discover the truth."

This text, for the first time, gave the accused in a clear fashion
the right to have witnesses heard on his behalf. Several Articles
contained the application of this principle. Articles 124, and
those immediately following, dealing with the confrontation,
provide as follows. Article 124 : " The accused may require
that a confrontation be allowed between him and the witnesses
heard by the examining magistrate in his absence. The judge
may, according to the case, order or refuse the confrontation." —
Article 125 : " If the requested confrontation is refused, no use
can be made of the deposition taken, unless the accused requires
it by an express declaration. This prohibition does not apply if
the witness is dead." — Article 126 : " In every case, before the
close of the examination, the accused, if he requires it, may be
confronted with his co-defendants." These were very curious
provisions ; they took up old provisions of the Ordinance of 1670.
The old formal confrontation was dropped at the time of the intro-
duction of the oral and public trial before the trial court. It was
proposed to return to the forgotten rules ; the witness who was
not confronted, could, as formerly, be called by the accused, but
could not give testimony against him. This is a sure sign that, as
we have said, the written procedure was regaining ground : since
the written depositions were often used before the trial courts, it

^ The public prosecutor can request for him production of the proceedings
at all stages of the information. Art. 132.

551

§ 5] PROCEDURE SINCE THE FRENCH REVOLUTION [PaRT III

was desired to surround them anew with safeguards which formerly
allowed them to constitute proof.

In one particular matter, the defense had the right to insist.
This concerned expert witnesses. The examining magistrate
selected the expert from a list " drawn up every year for the
following year by the courts of appeal on the opinion of the
Faculties, learned bodies, tribunals, and chambers of com-
merce.'* ^ — But, according to Article 49, " the public prose-
cutor, the civil party, and the accused could select an expert
from the said list, ha\'ing the right to be present at all the opera-
tions, and to address all requisitions to the experts appointed by the
examining magistrates, such expert being bound to record his
remarks either at the foot of the official report, or following the
report." Article 51 : " The examining magistrate decides, sub-
ject to appeal to the Council Chamber upon all the incidental
matters arising in the course of the expert examination." And
" the experts' reports must be held at the disposal of the parties
for forty-eight hours after they are lodged." * That is not all :
" If the expert examination has been finished before the 'mise en
cause*' or the arrest of the accused, the latter has the right, after
the communication of the report, to choose from the annual list
an expert to examine the work of the appointed expert, and lodge
his observations."

III. The examining magistrate retains, according to the bill,
very large powers ; if he could grant very much to the defense, he
could also refuse it very much. It was essential to give no
finality to his decisions or place above him a tribunal to which the
accused could appeal. This the bill did, and for this purpose it
revived the Council Chamber. Article 136 : " The Council Cham-
ber of examination is composed of three judges and the clerk of
court. The judge who has examined the case is never entitled to take
"part in their deliberation,'* Its function was not, as formerly, to
decide upon the result of the examination, when that was concluded ;
the examining magistrate retained the right of issuing the order of
closure. It was charged with passing upon the principal deci-
sions come to by the judge in the course of the information, when
they were contested by the parties. " From the time when there
are contentious decisions to be taken, he cannot remain judge in

* Art. 54 : "The Council Chamber can always," the article adds, "when
the circumstances require it, authorize the appointment of experts whose
names do not appear upon the annual list."

» Art. 52.

• The act of bringing a third, party into the cause. [Trans, note.]

552

Title II, Ch. IY] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 5

the last resort of the questions raised before him ; it is therefore
necessary to place about him a superior jurisdiction charged with
deciding finally the path to follow in all cases where disagreement
arises, and to decide upon certain questions which would entail
too heavy a responsibility upon the examining magistrate. It is
for this purpose that the bill reestablishes a Council Chamber,
suppressed by the Law of 1856 as a useless part of the machinery,
which will find in the existing organization a different and neces-
sary rfile." ^ Article 137 pointed out by whom, and in what
cases, the Council Chamber could be put in motion ; * but what
chiefly concerns us is the methods of recourse available to the
accused. Article 37 opened the appeal to him to a very great ex-
tent, by allowing him to take the initiative. This article, as we
have said, gave to the accused, as well as to the other parties in
the cause, the right " to require the examining magistrate to take
all steps which he should think necessary for the discovery of the
truth " ; and " upon his refusal he has the right to go to the Coun-
cil Chamber in the case provided for by the law." Various
Articles applied this principle : when the accused demanded to be
confronted with witnesses, the order refusing the confrontation
bore the reason assigned ; it was susceptible of appeal before the
Council Chamber.' " The examining magistrate decides, subject
to appeal to the Council Chamber, upon all the incidental matters
arising in the course of the expert examination." * It was, as we
know, the Council Chamber which decided upon the prohibition
of communication with the defending counsel, when that extended
beyond ten days (Article 133) ; and the prohibition of communi-
cation with other persons, which the judge could only pronounce
for ten days, could also be attacked before the Council Chamber
(Article 104). Finally, " where the examining magistrate has not
granted liberation on bail, it can be granted upon request addressed
to the Council Chamber " (Article 107). As a rule, the orders of
the Council Chamber could not be attacked. Article 142 : " No
judgment of the Council Chamber is appealable except as regards

^ ''Expose des motifs.*' Journal officiel of 14th January, 1880, p. 303,
col. 3.

* Art. 137 : "The Council Chamber is invoked in the course of the in-
formation in those cases provided for by the law, either by the examining
mag:istrate (Arts. 99, 104, 131), or by the public prosecutor (54, 107), or by
the private prosecutor or the accused (104, 107, 124, 153). It may be
vested in office by anybody in the case provided for by Article 44 (relating
to claims lodged in case of its vesting in office by the persons who claim,
rights in the matter) and bv witnesses sentenced to pay a fine in the case
provided for by Article 56.

» Art. 124. * Art. 51.

553

§ 5] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

the request for provisional liberation; appeal to the Court of
Cassation cannot be lodged against any of its judgments."

Concerning the orders by which the judge closed the instruction,
however, appeal was open to the accused in a certain number of
cases before the chamber of arraignments; Article 152. The
accused could lodge an appeal from the orders specified in the
old Article 539, and in the following cases : 1. For want of juris-
diction ; 2. If the act was not provided for and punishable by the
law ; 3. If the " action publique " ^ was extinguished ; 4. On
account of a nullity in the examination.

The bill also contained important provisions as to detention
pending trial. As to provisional liberation it, in general, retained
the rules established in 1865 ; ^ but it materially altered the system
of warrants. It replaced the warrant for appearance by a summons
to appear (Articles 73 to 75) ; as to the three others which it
retained, it provided them with a safeguard which up to that time
only the writ of attachment presented: "Article 77. Every
warrant contains the statement of the act and the reference to
the Law declaring that act to be a crime or a misdemeanor.'*
The warrant of commitment resumed its true character, and the
features which distinguished it well justified the epithet of pro-
visioTuU given to it : " Article 93. The provisional warrant of
commitment is the order by virtue of which the examining magis-
trate may, after his first appearance, have the accused detained in
prison for five days." — " Article 94. The warrant of commitment
cannot be renewed." — "Article 95. Twenty-four hours before
the expiration of the warrant of commitment the chief warden
is bound to advise the signing magistrate of the day when the
prisoner must be set at liberty. The accused shall be set at
liberty at the beginning of the sixth day."

The bill also took care to limit the duration of the writ of attach-
ment which might succeed the warrant of commitment. It was
here undoubtedly still possible, on the expiration of the five days,
to prolong the detention pending trial ; but for this a decision of
the Council Chamber was necessary: "Article 96. The writ of
attachment is the order by virtue of which the examining magis-
trate could have the accused detained in prison for thirty days,"
— It could not be issued against the accused who was present

* "Action publique" : a prosecution entered by the public prosecutor
against a person who has committed a wron^ giving rise to a civil action
for damages ("action civile'*) in favor of the injjured party. (Trans.)

' Article 107 expressly permits the Court of Assizes to grant provisional
liberty.

554

Title II, Oh. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 5

except on the expiration of the warrant of commitment. — The
writ of attachment could also be ordered against an accused who
had fled. — " Article 99. If the judge is of the opinion that the
period of thirty days provided for by Article 96 should be pro-
longed, he invokes the Council Chamber, which may, upon his
report, order the warrant to be kept in force for a new period of
tjHfty days. — This decision is renewable in the same way."
<^ The bill of 1880 did not come to anything, although it has been
s^eral times amended and discussed by the Senate. Even the
partial revision of a Code is, indeed, an arduous work, and a good
deal of time is required for its accompUshment. But it may be
said that it has been the basis, or at least the point of departure,
of a reform much less complete, but very important, which has been
effected in our preliminary examination by the Law of 8th
December, 1897, the object of which is to amend certain rules of
the preliminary examination in cases of crimes and misdemeanors.
It is due in great measure to Senator Constans, former Fellow of
the Faculty of Law. The eminent Senator was inspired by a
thoroughly practical idea. Seeing that it would be impossible
for a long time to consummate the complete reform of Book I of the
Code of Criminal Examination which was proposed in 1879, he
desired at least, without changing the principles and general rules
of the system, to introduce into it material safeguards for indi-
vidual liberty, — the liberty of the defense as far as that can exist
without complete publicity.

This Law first of all insures to everybody taken into provisional
custody for a crime or misdemeanor an appearance within a
period of twenty-four hours at most before the examining
magistrate, and in case of disobedience the law inflicts punish-
ment upon the head wardens of prisons and the officers of the
public ministr>\ A counsel is assigned to the prisoner, with whom
he can always freely communicate, and the interrogation bearing
upon the merits of the case cannot begin until the counsel has been
chosen or appointed. The day before each interrogation the papers
in the case are communicated to the counsel and he is immediately
made acquainted by the clerk of court with ever>' order rendered
by the judge. The interrogations and confrontations take place
in the presence of the counsel ; the latter, it is true (Article IX),
" cannot address the court until he has been authorised by the
magistrates to do so," Imt " in case of refusal the fact is men-
tioned in the minutes.'*/^ Another Law has suppressed the sum-
ming up of the evidence made by the president of the assizes to the

555

§ 5] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

jury, which was often nothing but a new address by the prosecu-
tion.

But liberal legislation did not stop there. On the second of
March, 1909, the Senate voted at the second reading a bill dealing
with the safeguards of irvimdual liberty} This was the result of
a number of proposals. One was made to the Senate by
M. Monis, former Keeper of the Seals. M. C16menceau had
introduced another before entering the ministry, and after becom-
ing Minister of the Interior he introduced a bill. The text passed
by the Senate first of all repealed Article X of the Code of Criminal
Examination, mentioned above, and relates, besides, to the follow-
ing subjects : First, its object is, without disarming the court, to
extend with us the application of the provisional liberation of
prisoners, which has been, since the Revolution, acclimatized in
France with difficulty.* At the same time, the purpose of one of
its provisions is to insure the exact observance of the forms pre-
scribed by the law for the warrants putting a person in provisional
custody or detention pending trial: "The non-observance shall
always be punished by a fine of fifty francs at least against the clerk
of court, and, if need be, injunction against the examining magistrate
and the state's attorney, and even an action for damages (' prise k j)ar-
tie ') on his failure." Second, the personal searches and domiciliarj*^
searches, either at the residence of the prisoner or at the residences
of third parties, are for the first time strictly regulated. " The
principle," said chairman Monis, " is the absolute imdolability
of the home ; the search may be a judicial necessity, but it can
only be justified after an examination has been already begun.
The frequent abuses which have been made of the domiciliary
search tend to cause this judicial ceremony to be practised upon
mere suspicion; they present themselves at a residence, make a
thorough search, and carry away all the papers which they can
find there, because, perhaps, by this police ceremony some incrim-
ination may be discovered." ^ The text voted consequently
reads : " The domiciliary search and the personal search are acts
of examination; recourse cannot be had thereto, unless, the

^ Journal officiel of 3d March, Senate, p. 153 et seq.

* Af . Ribotf at the time of the first reading in the sitting of 9th February,
1905 (Journal officiel of the lOth, Senate, p. 90) : "The number of pro-
visional liberations in proportion to the number of detentions pending
trial is too small. In England it is 22 per cent. With us it is 3 per cent
in the whole of the departments other than that of the Seine, and it is 18
per cent in Paris. ... It ought to be compared with the number of
arrests, which is much too large. Paris alone has 28,000 detentions pend-
ing trial compared with 88,0(S) for the whole of France."

» Journal officiel of 19th February, 1909, Senate, p. 89.

556

Title II, Ch. IV] FRENCH CRIMINAJi PROCEDURE SINCE 1808 [§ 5

examination having been begun, the individual in the residence
which it is wished to enter is thought to be the perpetrator of
the incriminating act, or an accomplice or is at least presumed to
have in his house objects relative to the offense. In the absence
of these conditions the examining magistrate who makes a domi-
ciliary search commits an arbitrary act entailing an action for
damages." It is also said : " Except in the case of capture in the
act, the examining magistrate himself makes the searches, except
in regard to what is said relative to conmMssions of inquiry."
— Finally, the " prise k partie," or action of damages against the
magistrates for the abuse of their powers, in cases where the law
allows it, is rendered more available to private parties : " No
magistrate can be sued for damages for abuse of his powers with-
out the prior authority of the first president (of the Court of
Appeal), who shall decide, after having taken the opinion of the
attorney-general. — In case of refusal, which shall be based on
evidence, the party complainant shall be entitled to invoke the
Chamber of Requests of the Court of Cassation. He will be
allowed the aid of an advocate and exempted from the deposit of a
fine. The Chamber of Requests shall decide in ordinary form and
in open court, after having heard the statements of coimsel for
the party complainant and the motion of the public prosecutor."

But in the Chamber of Deputies the bill did not pass. In
March, 1911, the Monis Cabinet inserted this item in its pro-
posals : " We request the Chamber to enact the bill repealing
Article X of the Code of Criminal Instruction and instituting
safeguards of personal liberty." But the Chamber was too
engrossed with other measures to take action on this. Article X
remains in force yet. In 1906, however, a ministerial circular of
August 4, addressed to all prefects, declares that Article X is
" a dangerous anachronism," and enjoins upon them " to make
use of it cautiously and exceptionally, and only after prior
application to the ministry."

In the discussion at the first reading, there was a question of
also introducing into the preliminary examination a safeguard
which would be worth all the rest, namely, pubUcity, — public
hearing. M. Ribot was the first to speak of it, recalling that
to-day, with the work of newspaper reporters and the indiscre-
tions of the press, the secrecy of the chambers of the examining
magistrate would be open to everybody : " If we are at the point
where, by confidences drawn from I know not whom, perhaps
from witnesses, perhaps from advocates, through depositions, we

557

§ 5] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

have arrived at constructing, besides the truth which is built up
in the judge's chamber, another truth for the use of the purchasers
of newspapers, I ask if it will not be wiser, as well as more cour-
ageous, to examine the problem as it stands, if it will not be
necessary to take a step farther than in 1897, and come to confron-
tation throughout the whole examination. If you accept the prin-
ciple of confrontation, save for allowing the judge to hear a witness
separately in certain cases, — which, moreover, will be excep-
tional, — and if at the same time you accept publicity, which is
the truest safeguard of all . . . ." — the chairman : " That is the
solution." — M. Ribot : " Yes, that will be the solution ; it
is, I am convinced, the solution of the immediate future. It is
not in the bill, but I have been of that opinion for a long time." ^

This is, in effect, the English system, which is characterized
by two salient features. On one side, all the preliminary re-
searches, those which put us upon the track and most frequently
lead to the arrest of the presumed perpetrator of the crime, are
made, not by a magistrate, but by the police, and the ability of
the English detectives is well known. The policeman, — the
constable, — to-day possesses very extensive powers to effect
arrest. But that accomplished, the prisoner is brought before the
judge with the least possible delay ; the judge in open court hears
the policeman and the witnesses he produces, and so proceeds
publicly with the examination, deciding at each appearance if the
prisoner shall be set at liberty or remanded. We may see in the
London police courts with what sureness and what safeguards
this examination is made.^

In this debate of 9th February, 1909, Keeper of the Seals Briand
showed himself favorable to the English system; but he added
with the prudence imposed upon him by his office : " I ought to
say that the application of this system in France will, because of
the general conditions of our judicial organization, inevitably
present certain difficulties in its execution, and it is because I have
not found the means of solving these difficulties that I dare not,
so far, make a solemn promise to the Senate; but the question,
I repeat, is one to be studied." It is not merely our judicial
organization which causes difficulty, but also the temperament,
the manners, the habits of the French people; it was on that
account that the bill of 1879 rejected publicity. I am, however,

* Journal officiel of lOth February, 1909, Senate, p. 91.
^ See an excellent r6sum6 of this system in MaiUand^ "Justice and
Police."

558

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1898 [§ 5

of M. Ribot's opinion, that publicity is the solution of the
future.

The Law of 8th December^ 1897, remedied a very palpable
defect in the organization of the correctional tribunals. Article
257 of the Code of Criminal Examination is to the following effect :
" The members of the Imperial Court who have voted upon the
arraignment cannot take part in the same case, nor preside at the
assizes, nor assist the president upon pain of nullity. This also
applies to the examining magistrate." This was just, for these
magistrates, having already known of the matter, as far as the
examination was concerned, necessarily have formed an opinion
upon it, and it is reasonable to suppose that the public proceed-
ings will not alter it. But, on the contrary, no text forbids the
examining magistrate from sitting as a judge of the correctional
tribunal in the trial of cases which he has examined, and in which
he has ordered the transfer of the prisoner to the tribunal of
correctional police. In fact, the examining magistrate almost
always sits there, owing to the organization of our courts of the
first instance and the small number of members composing them.
And not only has he his opinion formed, but, knowing the case
thoroughly, he almost always exercises a decisive influence upon
the other members of the court. Article 1 of the Law of 8th
December, 1897, renders this practice illegal : " The examining
magistrate cannot take part in the judgment of the actions which
he has examined."

The operation of the criminal jury and the procedure followed
before it have, as a rule, remained the same. Certain characteristic
modifications, however, have been made upon this procedure.
The constitution of the jury is regulated by the Law of 21 to 24
December, 1872, still in force, — one of those excellent laws
which we owe to the National Assembly (1871 to 1876). Gener-
ally speaking, all electors are qualified to be jurors, which gives a
considerable range in a country of universal suffrage. Certain
exclusions, however, there are, and these are amply justified.
'* No one," says Article I, " can fill the office of juryman on pain
of nullity of the verdicts of guilty in which he shall concur, if he
is not thirty years old, if he does not enjoy civic, civil, and family
rights, or if he is in a state of incapacity or incompatibility estab-
li^ed by the two following articles." Article IV adds *' Domestic
servants or hired servants (and) those who cannot read and write
in French." The first of these rules comes from the Revolution ;
it was a traditional electoral incapacity in the laws of that period ;

559

§ 6] PBOCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

our modem law does not retain it in electoral matters, but it makes
use of it in the selection of jurors ; the second rule fixes the mini-
mum qualification which can be required of them from an educa-
tional point of view.

The Law of 1872 has not established in each department a
general and permanent jury list; it establishes an annual list
of which it fixes the maximum and the minimum, and which is
formed by a double operation. In each canton a list, containing
twice the quota of jurors which each canton is required to furnish,
is drawn up by a commission composed of the justice of the peace
and his deputies and of the mayors of all the communes of the
canton. The list of each district is then made up by a commis-
sion presided over by the president of the court of first instance,
and composed of all the justices of the peace and general judges
of the district ; it reduces the number of jurors appearing upon
the lists of the various cantons to the figure fixed for the district.
It could also formerly add to it new names in a proportion of one-
third. It also draws up a list of substitute jurors resident in the
place where the court of assizes sits. The lists of each district
so drawn up are final, and the annual list is obtained simply by the
addition of all the lists of the district. From this district panel
the panel of each session is obtained by means of a drawing by lot,
at which the president of the civil court of the chief seat of the de-
partment presides in open court. From that session list, the draw-
ing by lot, combined with the challenges, furnishes the petty jury.

The Code of Criminal Examination ordains that the president
shall, on the termination of the trial, sum up the case to the
jury. Article 336 : " The president shall sum up the case. He
will draw the jurors' attention to the principal proofs for or against
the accused." This was, as we know, an adoption of the English
practice, where the summing up of the magistrate is of such great
importance. We also know that the English law has means of
correcting the errors which the judge may commit in this matter :
it grants a new trial on account of a misdirection of the jury by the
judge. But with us, as an eflFect of inquisitorial procedure, which
makes itself felt even in the trials of the court of assizes, the sum-
ming up of the president was looked upon as a final address for the
prosecution pronounced by the magistrate who had the highest
authority in the court, and to whom nobody could reply. It
must be added that too often the summing up of the president
justified these accusations. A Law of 19th June, 1881, has there-
fore abolished the president's summing up. The new article, 336,

560

Title II, Ch. IV] FRENCH CRIMINAIi PROCEDURE SINCE 1808 [§ 5

now reads : " The president after the close of the trial cannot, on
I>ain of nullity, sum up the pleas of the prosecution and the de-
fense." That is a measure calculated to surprise Anglo-Saxons.
They could not understand a jury without a magistrate to direct
them as to the rules according to which their verdict must be
rendered. It is true that their theory of proofs (evidence law)
renders this impossible. But their most enlightened and liberal
minds admit that the judge may use his authority to make the
jury feel the weight and the import of the evidence produced
against the accused.^

A more recent law ranks in the same order of ideas. Tlie
jurors, in general, once they go into their chamber of delibera-
tion, cannot leave it without having settled upon their verdict,
nor communicate with any one. Article 343 reads : " Entry
cannot be permitted during their deliberation for any cause
whatever, except by the president and in writing." But. judicial
practice has come to the conclusion from these last words that
the president himself can go into the jury room when he is
sent for by the jury. They may wish to have explanations upon
some point, or, as the French doctrine and practice admit Uiat
the jury may consider the eflFect of their verdict as regards the
punishment and that the coimsel for the defense can even point
out to them the possible consequences of their verdict in that
respect, probably they may desire to question the president on
that point, and even obtain from him certain assurances. There
were certain dangers in this secret conventicle in this respect.
The Law of 10th December, 1908, has amended Article 343 as
follows : " He (the president) shall not enter unless he is sum-
moned by the foreman of the jury and accompanied by the counsel
for the accused, the public prosecutor, and the clerk of court."
This is still an interview outside of the court-room; but both
adverse parties, the defense and the prosecution, are represented
in it and there remains an official report of what has been said.

One of the features of our procedure before the court of assizes
still frequently criticised is the interrogation of the accused by the

* "The letters of Charles Dickens," Tauchnitz edition, vol. Ill, p. 51
(to the Chief -Baron) : "I really have not been able to repress my admira-
tion of the vigorous dig:nitv and sense and spirit with which one of the best
of judges set right one of the dullest of juries in a recent case. " — p. 57 (to
M. de Cergat) : ''It is difficult to conceive anv other line of defense than
that the circumstances proved, taken separately, are slight. But a sound
judge will immediately charge the jury that the strength of the circum-
stances is in their being put together and will thread tnem together in a
fatal rope."

561

§ 5] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

president. This is not a matter, it must be understood, of a sum-
mary interrogation for the purpose of establishing his identity,
which is inevitable and harmless. I refer to the prolonged inter-
rogation contrived to extort confessions or produce contradictions
in the statements of the accused. It is with us a matter of in-
variable tradition. It is not prescribed by the Code of Criminal
Examination; but the persistent influence of the inquisitorial
procedure has kept up these learned interrogations of the judges
in the same way as the spirit of the accusatory procedure has
developed in the English courts the dexterity of English counsel
in the art of examination and cross-examination. Several authors
have wished to argue from this that Article 310 and the following
Articles of the Code of Criminal Examination form a Chapter IV,
bearing the heading : " De Vexamen du jugement et de Texficu-
tion,** but, " examen " and " interrogatoire de Vdccusi " are by
no means synonymous.

Sometimes it is a regular duel between the president and the
accused, which lasts during several sessions, and the conditions of
which are certainly not equal. The Steinheil affair, which has
interested the whole world, has sharply drawn attention to this
point. Ministerial circulars have recommended to the presidents
of the assizes moderation and prudence. An amendatory law has
been prepared and should not fail to bear results.

In France, as in other countries, the oath of the jurors has
raised difficulties; but that is somewhat outside the domain of
criminal procedure.^

The jury seems thus to possess the favor and the full confidence
of the legislators. There is being formed against it, chiefly in
the press, a movement of public opinion, which I believe to be
superficial, but which none the less exists.* It is provoked above
all by numerous acquittals, manifestly contrary to the law and to
legal truth. These take place, not merely in press prosecutions,
those for political offenses and those which, although common
law offenses, relate to strikes; there are also acquittals, legally
unjustified, of crimes called crimes of the passions, and even crimes
which do not present any particular or extraordinary feature.
The French jury, very unUke the English jury in this respect, is
particularly independent, impressionable, and jealous of its
absolute authority. This results from several causes which have

^ Esmein, ** tA6ment8 du droit constitutionel," 5th edition, pp. 1075,
1076.

'See the literature upon this point in Garraud, !* Precis de droit
criminel," lOth edition, 1909, p. 789, note 2.

562

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 5

already been, for the most part, pointed out. First of all, the
high magistrates who preside over it have never been able, owing
to the persistent memory of the inquisitorial procedure, to acquire
a real authority over the jury and to assume direction of it effi-
caciously. On the other hand, and above all, there is the system
of moral proofs, which rules the jury in the most complete fashion,
and the jurors, with the naive logic of the French mind, have a
growing conviction that not only is the fact of their being con-
vinced their only rule in deciding upon the guilt, but even that
they have but to follow their personal sentiments, their own
impressions as to the general questions of guilt and criminality
in each particular case. This is especially true as to the conse-
quences of the verdict upon the application of the punishment.
We have seen above the topical facts in this respect and the phe-
nomenon is so plainly evident that M. Briand, Keeper of the
Seals, prepared a bill legalizing this irresistible tendency : he al-
lowed the jury, under certain conditions, to deliberate and vote
with the judges composing the court of assizes, upon the applica-
tion of the punishment. Another consideration is that scientific
and Uterary men, unfamiliar with political science, find unreason-
able and unscientific this system where men without special or
even general education or professional knowledge decide upon the
guilt of citizens.

I believe, however, in the value of the jury in criminal
matters. I believe in its persistence and in its beneficial future,
in spite of defects, several of which, at least, can be remedied.
The jury, in effect, is one of these institutions, the happy product
of history in a particularly favorable environment, which is found
to answer the crying needs of civilized humanity. Bom among the
English, adopted by the French Revolution, it is being propagated
gradually along with modem civilization, like the constitutional
government and the civil State. A great civilized nation cannot
renounce it without losing its rank. It is, it may be said, one of
those conquests which, once achieved, are final ; the jury can no
more be abolished than universal suffrage, whatever opinion may
be held elsewhere about both these institutions. We have seen
how the jur>% before it had been twenty years in existence, vic-
toriously resisted the opposition of Napoleon's terrible will;
it has now existed among us for one hundred and twenty years ;
it is indestructible. The jury in criminal matters, in fact, satis-
fies two deep-seated needs and acts as a corrective of " that right
to punish, so terrible among men,'* as Montesquieu said. It

663

§ 5] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

insures to the accused, upon the question of guilty judges absolutely
independent of political power. These twelve citizens, stepping
for the moment from the ranks of the nation, and charged with
this onerous duty, may be ignorant, undisciplined, full of preju-
dices ; but they are not dependent upon any authority, and the
citizen does not feel really safeguarded unless he has perfectly
independent judges when his liberty or his life is in the balance.

In the second place, the necessary intervention of the jury in
criminal proceedings has by its very defects been the means of
rendering these proceedings humane. I mean by that that it
renders the application of the criminal law, of the right to punish,
conformable to the average conscience of society, to the popular
conscience, in the broad sense of the word. When a jury refuses
to recognize the guilt of an individual who is legally guilty, or when
it grants extenuating circimistances to an accused who does not
deserve it, considering too severe the punishment which a merely
aflBrmative verdict would entail, it puts penal justice in agreement
with impartial social feeling, and renders it comprehensible and
acceptable to other citizens of the same mental caliber as itself.
This is the necessary condition of the acceptance of repression
without resistance by our modern society. Chance no doubt also
takes part in this popular administration of justice; that is un-
fortunate, but inevitable. And such a system certainly also risks
the weakening of repression : but before the danger can be really
great the twelve citizens who judge must have a very strong feeling
of it and they will conform their decision thereto. It is above all
necessary that the public prosecutor, charged with the pursuit of
crime, should act energetically and speak clearly ; that he should
not hesitate to bring a necessarj' and exemplary prosecution from
fear of a possible acquittal, and that he explain to the jury firmly
and dispassionately the necessity for repression: the chances
are then all in favor of the twelve jurymen understanding and
following him.

I have said that the English jury is very different from ours.
It also has its detractors, however, especially in regard to the great
part it plays in civil cases, but the English do not think of renounc-
ing it: "The defects of the jury system are obvious. Thej'^ are
twelve ordinary men — a group just large enough to destroy even
the appearance of individual responsibility. They give no reasons
for their verdict. The verdict itself is not subject to any appeal/

^ This was written in 1903. Since that time the appeal in criminal
oases has been made available against the verdicts and the sentences;

564

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 5

and it is apt, in times of political excitement, to reflect the popular
prejudice of the da3\ Experience shows that they are capable of
being intimidated. It is said that they are always biassed when
a pretty woman or a railway company happen to be litigants.
Though a good special jury is admitted to be a very competent
tribunal, the common jury may be composed of persons who have
neither the desire nor the capacity to weigh the evidence, or to
arrive at a conclusion upon the facts in issue. In spite of these
obvious defects, distinguished judges who have spent many years
working with juries, have combined to praise the jury system.
Fortescue, Coke, Hale, Blackstone, and Stephen are witnesses
whose evidence should be conclusive. We may add to these names
that of Judge Chalmers, whose experience in the new county
courts leads him to the same conclusion." ^ The author of this
passage brings to the aid of his opinion simple and convincing
reasons. " The litigant gets a body of persons who bring to bear
upon the facts of his case average common sense,' ^ ^ And he recalls
the following profound remark of Hale in regard to the jury in
criminal cases : " It were the most unhappy case," says Hale,
" that could be to the judge, if he at his peril must take upon him
the guilt or innocence of the prisoner." ^

Different methods have been proposed to introduce, with us,
the jury in correctional matters also. Logically that would appear
to be only just; the reasons for it are the same as in criminal
cases. But this appears to be impossible. Jury duty, already very
heavy, would become intolerable for the citizen.

The Code of Criminal Examination made available the review
of convictions for errors in law, but only to a very limited
extent. It admitted it only for crimes, and only in cases specified
and strictly resolved upon by Article 443 : " (1) \\Tien, after a
conviction for homicide, documents shall be lodged, calculated
to exhibit sufficient presumptions of the existence of the claimed
victim of the homicide ; (2) when, after a conviction for a crime
or misdemeanor, a new decree or judgment shall have convicted,
for the same deed, another accused, and the two convictions
cannot be reconciled, their contradiction shall be the proof of the
innocence of one or the other of the persons convicted; (3)
when one of the witnesses heard shall have been, subsequently

Act of 28th August, 1907, instituting a Code of Criminal Appeal and amend-
ing the law relative to appeals in criminal matters, **Annuaire de la So-
ci6t6 de legislation compar6e," 1908, p. 14 ci acq.

1 Holdswarth, *'A History of English Law," vol. I, pp. 166, 167.

» Ibid., vol. I, p. 167. » Ibid,, vol. I, p. 169.

665

§ 5] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

to the conviction, prosecuted and convicted of false testimony
against the accused."

But this power of revision has been successively and consider-
ably enlarged. That has been done chiefly under the pressure of
public opinion. It is a natural tendency of the French heart to be
tender toward the innocent condemned. We have seen the first
manifestations of this in the reign of Louis XVI, and the same
phenomenon is repeated in our time with an added force.' The
first increase of the power of review was introduced in the last
years of the Second Empire, in 1867. It was not at that time a
matter of introducing the revision anew, but of allowing it after
the death of the condemned. The case struck at was that of
Lesurques, convicted and executed under the Directory for having
attacked and murdered the Courier of Lvons ; for the same of-
fense a later conviction of another person appeared to be
irreconcilable with the first. The family of Lesurques, a very
respectable one, presented ceaseless petitions to the government
and the houses of parliament. Public opinion became more and
more interested in this question; the conviction of licsurques
was commonly considered as an undoubted example of judicial
error, and a popular drama, " The Courier of Lyons,'* where the
facts were presented, has attracted several generations of specta-
tors. The Law of 29th June, 1868, promulgated 9th July, amend-
ing Article 443 ei seq. of the Code of Criminal Examination, allows
of review after the death of the condemned. It has also enlarged
the law from another point of view. Without creating new cases
for review, it has allowed it to be invoked by those convicted in
cases of simple misdemeanor, as well as in cases of crime; it also
makes the procedure more precise and improves the draft of the
Article. The private interests, however, in view of which the
amendment was effected, derived no satisfaction therefrom. The
Lesurques case was appealed in 1868, but the result was the dis-
missal of the appeal by the Court of Cassation on 17th December,
1868 (Dalloz, 1869 s, 41). The Supreme Court ruled that the
two convictions of separate persons for this crime were not
irreconcilable.^ The decisive step was taken in 1895. There
were still almost certain judicial errors, which did not, however,
come within the scope of the review, as it was then settled. The
Bourras and Vaux cases gave a new impetus to public opinion.
Numerous proposals, emanating from parliamentary initiative,
were introduced in the houses of parliament, and the movement

* Garraud, "Precis de droit crimiiiel,'* lOth edition, p. 947, note 2.

566

Title II, Ch. IV] French criminal procedure since 1808 [§ 5

resulted in the Law of 8th June, 1895.* This time, among the
numerous reforms which it introduced, the Law contained one
provision of prime importance : it introduced a new cause for ap-
peal, very liberally conceived. The new Article 443 allows a
fourth cause for appeal : " (4) When, after a conviction, a new
fact has happened or has come to light, or when documents un-
known at the time of the trial are filed, tending to establish the
innocence of the person convicted." ^ In this new case, moreover,
there is a safeguard against too great a facility for review. While,
under the other hyjxjtheses, the right of filing the claim belongs
not only to the Minister of Justice, but also to the person con-
victed and, after his death, to those of his successors designated by
the law, in the fourth case it belongs only to the Minister of Justice,
who does or does not file the appeal, after the opinions and de-
liberations prescribed by the new Article 444. The Law of 1895
(New Article 445) also authorizes the Court of Cassation, " in
case of admissibility, if the case is not in shape, to proceed directly
or by commission of inquiry, with all inquiries upon the merits,
confrontation, examination as to identity, interrogations, and
means proper to put the truth in evidence."

The Law of 1895 has increased the number of cases where the
Court of Cassation itself decides upon the merits of the case and
directly reviews it. The aim of the legislature at the outset was
certainly that, the claim for review being declared admissible by the
Court of Cassation, the latter should simply annul the judgment of
conviction and should transfer the case to a court of the same
grade as that which had pronounced the sentence, there to be
proceeded with by a new trial. Only on the hypothesis where,
after a conviction for homicide, the continued existence of the
person believed to have been killed was established, did the law
consider these new trials to be unnecessary, and did not prescribe a
new trial. The impossibility of a new trial sometimes even ren-
dered review inadmissible, as in the case of the death of the con-
victed person. The Law of 1895, while preserving the principle
of a new trial, allows the Court of Cassation, in the fourth case,
when only a single condemned person is concerned, to retain the
case and decide upon the merits, if no punishable crime or offense
exists after its judgment.

The Dreyfus case, which stirred France so grievously and so

* *' Annuaire de l^slation frangaise," published by the Society of Com-
parative Law, 19th jrear, 1896, p. 105 et seq.

* *' Annuaire de legislation fran^aise," above cited, p. 112.

567

5 5] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

long, twice brought the procedure of review under criticism. It
did not, however, definitely result in any new legislative reform in
this matter. It was really the means of having one imposed,
however. The Code of Criminal Examination and the subsequent
liaws of 1868 and 1895 gave the criminal branch of the Court of
Cassation jurisdiction of claims for review. When that branch was
vested with the first review in the Dreyfus case, the Law of 1st
March, 1899, called the Law of Divestiture (" dessaisissement ")
intervened, which transferred the jurisdiction to the Court of
Cassation (all branches together). Though this law was 'framed in
general terms and applied to the future, it also applied to the case in
hand, and it was for that that it had been passed. It was truly a
law that fitted circumstances. For, although in the Dreyfus case,
that passion in favor of innocent condemned persons, of which we
have spoken above, had a powerful influence, political interests
and passions operated in a contrary direction. Since that time,
moreover, the Law of 5th March, 1909, has repealed that of 1st
March, 1899, and given back to the criminal branch its natural
jurisdiction. The second review of the Dreyfus case simply led
the Court of Cassation, conformably to the motion of Attorney-
General Baudouin, to construe the Law of 8th June, 1895, in the
most liberal and widest sense.^

The I/aw of June, 1895, also effected another liberal and impor-
tant reform. This was the reparation granted by it to the victim
of judicial errors. This is of two kinds. The first consists of a
kind of honorable reparation, consisting of a wide publicity given
to the review obtained (New Article 446, end) : " The decree or
judgment of review, resulting in the innocence of the condenmed
person, shall be advertised in the town where the conviction was
pronounced, in that of the seat of the jurisdiction of review, in the
conmiune of the place where the crime or misdemeanor was com-
mitted, in that of the residence of the person claiming review, and of
the last residence of the victim of the judicial error, if he is dead.
It shall be officially inserted in the Journal Officiel, and its pub-
lication shall, besides, be ordered in five newspapers chosen by the
claimant, if he shall request it. The expense of the above pro-
vided publication shall be borne by the Treasury." The other
satisfaction is of a pecuniary nature ; it consists of damages granted
to the victim of the judicial error, or to his representatives. The
principle of such a reparation in the case of an improvident and

* "Cassation, chambres r^unies," 1st June, 1906. Sirey, 1907, I, 49;
Journal des Parquets, 1906.

568

Title II, Ch. IV] FRENCH CRIMINAL PROCEDURE SINCE 1808 [§ 5

unfounded prosecution, resulting in an acquittal, existed in the
ancient French law, but at the expense of the judge or of the pro-
curator fiscal, or king's attorney, according to the cases. It was
introduced along with the official prosecution, and the " Tr&
ancien Coutume de Bretagne " makes precise and rigorous ap-
plications of it.^ Where the prosecution was brought upon a
denunciation, the responsibility fell upon the informer, even when
he was not made a civil party : ^ the judge was not released by
revealing the informer. These principles were retained in our
ancient law with respect to the public prosecutor. The Con-
stituent Assembly retained the rule in regard to the justice of the
peace when he prosecuted officially without complaint or civic
denunciation.'

Our law has not retained these principles, however, and, with
the exception of the " prise Sl partie," the magistrate is not liable.
Ite damages granted by the Law of 1895 to the victim of a judicial
error are due to him, not from the public prosecutor, but from the
State. It is the resumption of the principle contained in the
Declaration of 1787. TTie Law of 1895 provides (New Article
446) : " The decree or judgment of review, resulting in the in-
nocence of a condemned person, may, upon his demand, allow
him damages, because of the injury occasioned him by the con-
viction.— If the victim of the judicial error is dead, the right of
claiming damages shall belong, under the same conditions, to his
wife and his ascendants and descendants. It shall not belong to
relatives further removed than such as can prove a material in-
jury resulting to them from the conviction. — The claim shall
be admissible at every stage of the proceedings for review. — The
damages allowed shall be borne by the State, subject to its recourse
against the civil party, the informer, or the false witness by whose
fault the conviction has been pronounced. They, shall be paid
as expenses of criminal justice. ' ' This was a check, and a thoroughly
justified one, on the general principle of the non-liability of the
State by reason of acts of public authorities done in its name.

* When there is torture or "joux ** (Planiol edition, c. 101, p. 145 et seq).
2 **Tr6s ancien Coutume de Bretagne '* (Planiol edition, c. 103, p. 146).

• Decree of 6-29 September, 1791, upon the criminal police and police of
safety. Title VI, Art. 8 : "If the informer refuses to sign and affirm his
information, the police officer shall not be boimd to consider it ; he can,
nevertheless, take cognizance of the facts of his own accord, hear witnesses,
issue a warrant to bring the accused before the court, and, in a proper case,
a writ of attachment, provided that he will be personally liable if it is
proved that he acted maliciously and from desire to injure."

569

[■

51]

PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

Title UV

CRIMINAL PROCEDURE SINCE 1800 IN OTHER

COUNTRIES^^

§ 1. Importanoe of Comparative
Law. Two Chief Groups of
Laws: (1) Combination of
Inquisitorial and Accusatory
Systems ; (2) Accusatory Sys-
tem as derived from English
Law.

§2. Legislation in Various Forei^
Countries : Germany, Austna-
Hungary, Belgiiun, Principal-
ity of Monaco, Grand Duchy

§3.

of Luxemburs:* Spain, Italy,
Switzerland, the Netheriands,
Great Britain, Russia, Grand
Duchy of Finland, the Bal-
kans, Scandinavia, Turkey,
Kgyptt North America, South
America.
Chief Rules of Prosecution,
Examination, and Trial under
the Principal Foreign Systems.

§ 1. Importanca of ComparatiTe Law. Two Principal Groups
of Laws: (1) Combination of the Inquisitorial and Accusatory
Systems. (2) The Accusatory System as derived from g"gn«i^
Law. — It is no longer possible to conceive of the isolated
study of any system of laws, without connecting it with
its sources, following its evolution, and comparing it with
the systems of other nations. Each of those European na-
tions styled by the Romans barbarians had, about the begin-
ning of the Middle Ages, its own particular customs in matters
of criminal law, but the procedures of all of them possessed many
features in common. The accusatory system, everywhere in force,
itself tended to uniformity. Repressive laws are, we know, in-
evitably dependent upon political organization. It follows that
the prevalence of the feudal system throughout Europe resulted in
the judicial systems assuming a similar aspect alniost everywhere.
Then, when absolute monarchy began to take the place of feudality,
it relied, for the impairment of the latter, upon the laws of the
Roman Emperors; and the influence of Roman law, which had
never altogether died out in certain European countries, even
at the height of the reign of the barbarian laws, helped materially
in the reconciliation of the various systems of law. But the dif-

» [Title III = Sec. IX of Professor Garraud's " French Criminal Pro-
cedure." For this author and work, see the Editorial Preface. — Ed.)

570

Title III] PROCEDURE SINCE 1800 IN OTHER COUNTRIES [§ 1

ferent countries did not advance at the same pace along the path of
the transformations which their procedures were destined to un-
dergo. All, however, with the exception of England, had discarded
the accus^ry system and had substituted for it the inquisitorial
system(^The French Revolution, by its system of laws, exercised
an influence in regard to the repressive organization and procedure
which marks an era in the legislative history of European nations.
The French Code of Criminal Examination of 1808, which con-
stituted a kind of compromise between the two systems of pro-
cedure, served as a type and a model for a great number of
nations. Its influence, more lasting than the conquest, still
remains.

In considering the differences of detail which we shall set out in
their jproper places, he who seeks to segregate the principles govern-
ing the laws of procedure of the nations of Continental Europe
discovers the fundamental unity which characterizes them. Every-
where there is the institution of the public prosecutor, the division
of the procedure into two stages, that of the preliminary examina-
tion which borrows its rules from the inquisitorial system, and that
of the trial (** jugement ")» which takes up all the safeguards of
the accusatory system. The jury has gradually conquered the
systems of law of foreign nations, and countries like Spain and
Austria, which have tried to suppress it, are forced to reestablish
it, owing to the imperious demands of the popular conscience, which
sees in the jury the true safeguard of liberty .\ In contrast with
this imposing group, which has found, in the French Code of 1808,
the model and framework of its institutions, are ranked the Anglo-
Saxon systems, which form an autonomous group, obeying
proportionately the same inspiration and animated by the same
spirit. They have been and still are the preservers of the accu-
satory system in Europe and America. In England there is
no public prosecutor. The prosecution is left to private initia-
tive. The equality of the struggle between the prosecution
and the defense is safeguarded by a series of institutions
which, thanks to the intelligence of the race, act without endan-
gering too much the social welfare. In the Anglo-Saxon system
the jury is the guarantee of the trial as well as of the accusation.

We shall point out briefly, on one hand, the legislative sources of
criminal procedure in the most important countries, and on the
other, the rules of that procedure, and attempt to distinguish
their general and typical features, — what may be called the
" dominants."

571

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

§ 2. Legislation in Various Foreign Countries: Gtormany,
Austria, Belgium, Principality of Monaco, Orand Duchy of
Luxemburg, Spain, Italy, Switzerland, the Netherlands, Oreat
Britain, Russia, Grand Duchy of Finland, the Balkans, Scandi-
navia, Turkey, Egypt, North America, South America. — With
the exception of England, where ideas of codification have, never-
theless, made some progress, all the European countries have now
codified their criminal law.*

^ I. GetTnany?

^N, (a) Demands for reform. — Through the application of scientific
investigation to criminal procedure,^ and because of the gradually
growing conviction of the injustice of torture,* the shortcomings of
the German criminal procedure, inherent in the law itself, and
rendered the worse by the practice, gradually became more ap-
parent. Through the statutory prohibition of torture in many
countries,^ criminal procedure lost one of its chief fundamental
elements. It became evident that many of the provisions of
judicial inquiry depended for their force upon torture, and that
many of the views of the Grerman theory of proof could no longer
exist. The legislation of the German States could no longer re-
main indifferent to the constantly increasing demands for reform.'
It was, however, insisted that the foundation of the secret

^ We shall not arrange the countries in groups, for example, 1st, Anglo-
American group; 2d, Komance group, north and south; 3d, Qerman
group ; 4th, group of other countries. That would be to acknowledge that
there is an eUmical relationship between systems of law, which is not the
case. We are therefore compelled to proceed by numeration. Upon this

goint see Pram von Liszt, **Le droit cnminel des peuples europ^ns" (Ber-
n and Paris 1894), Introduction, pp. xv and xvi.
' [Paragraphs a, 6, c, and d, of this account of German legislation are
interpolated from Chapters XVIII and XIX of Professor Mittermaier*a
** Progress of German Criminal Procedure." For this author and work,
see the Editorial Preface. — Ed.]

* In all the French and Italian works in regard to the scientific treatment
of criminal law, one of the chief subjects of discussion is the necessity of
the revision of criminal law because of the abolition of torture, of publicity,
and of the accusatorial procedure. As to the direction in which one must
regard criminal law as having been improved since the middle of the 1700 s,
see the interesting treatment by Brabant and the exchange of letters of
the Austrian cabinet, as to the plans of Emperor Joseph for improvement.
Cf. Vischers, in the "Revue beige " (Li^e 1834), Heft 11, p. 297, and Heft
12, p. 379.

* Gockinga, "De doctrinsB juris, crim. incrementis inde a seculo duode-
vigesimo media jam parte elapso" (Groningen 1826).

• Feuerhachj ** Themis oder Beitrage zur Gesetzgebung,*' No. V.

• The legislation of Tuscany of the 30th of November, 1786, relative
to criminal law, is important as an expression of the views at that time
obtaining for the improvement of criminal law. See CarmignQni, in the
'^Zeitschrift fUr ausl. Gesetzgebung und Rechtswissenschaft," II Thl.,
No. 20.

572

Title III] PROCEDURE SINCE 1800 IN OTHER COUNTRIES [§ 2

inquisitorial procedure be retained, also the effort to procure a
confession, and the German criminal procedure founded upon a
statutory theory of proof. Torture was to be abolished, and the
institutions therewith connected. The principles of evidence of
the " Carolina " were to be extended and the abuses that had
crept in were to be rectified.

(6) Earlier legislation. — These demands 'led to the Austrian
code of 1803 * relative to crimes and punishments,^ and the Prussian
criminal rules' of 1805* prepared through the introduction of

^ In regard to the history of the Austrian law, see Millermaier, '*Hand-
buch," I, p. 116. Graff y **Vers. einer Gesch. der Criminalgesetzgebung
in Steyermark." (Gratz 1817). Jenull, **Da8 dsterreich. Criminalrecht
nach seinen Grunden und Geist." (Gratz 1803-1813), I Bnd., p. 74.
Mauchery **Syst. Handbuch des oesterr. Strafgesetzes." (Wien 1844),
I, p. 12.

"Under the title, — "Gesetzbueh ttber Verbrechen," published on
September 3d, 1803. Here belong the commentaries of Jenull, **das
oesterreich. Criminahrechts" (see ante), IV vol. (vol. I in new edition,
1820). Hannamann, *'Das rechtl. Verfahren der Criminalgerichte uber
Verbrechen, nach dem Gesetzbuche in Beispielen dargestelTt, '' 3d Thle.
(Vienna 1806). Luzac, *'Versuch einer Anwendung der Gesetze iiber
Verbrechen." (Vienna 1806). v. Wagersbach, "Handbuch fiir Criminal-
richter und Bezirksobiigkeiten " (Gratz 1812), 3 vols. Examples of
statutes and discussion in ZeiUers, *' Jahrlichen Beitrage zur Gesetzkunde
und Rechtspflege," 1800-1811, IV vol. Pratobevera, "Materialien fur
Gesetzkunde und Rechtspflege in Oesterreich." VIII vol. (Vienna 1816- .
1824). Wagner f *'Zeitschrift filr osterr. Rechtsgelehr. und Gesetzkunde "
(Vienna 1825-1831, and since 1833, continued by Dollinger and Kudler,
yearlv, 12 vols., later continued by Stubenrauch), v, WUdner, Zeit-
schrift, '*Der Jurist." (Vienna, since 1839, vearly, 4 vols.). A collection
of all the laws enacted for the Austrian Code, and instructions, in Waser,
'*Da8 Strafgesetz iiber Verbrechen sammt den dazu geh5rigen Verord-
nungen" (Vienna 1839), and in fuller detail in Mauscher, '*Syst. Hand-
buch" (Vienna 1844).

* '"Criminalordnimg," published on December 11th, 1805. Supple-
ments thereto in Hofmann, "Repertor. der in Crim. Untersuchungssacnen
nahem Bestimmungen " (Zulichau 1817). Berger, ''Rep. des preuss.
Criminalrechts." (Zeiz 1819). v. Strombeck, in v. Kamptz, "Jahrbuch,"
XIII Hft., p. 35. Paalzow, "Comment, iiber die Criminalordnung "
(Berlin 1817), 2 vols. Comments and illustrations in Kleins, ''Annalen
der Gesetzkunde und Rechtsgelehrsamheit " (Berlin since 1788), 26 vols.
V. Kamptz, "Jahrbiicher filr die preuss. Gesetzgebung und Rechtswissen-
schaft" (since 1813), 127 vols to date. Hilzig, **Zeitschrift fiir die Crim-
inalrechtspflege in den preuss. Staaten" (Berlin 1825), to date 48 vols,
with supplements. See also Abegg, "Grundriss zu Vorlesungen iiber den

femeinen und preuss. Straf process." (KSnigsberg 1825). Abegg^ "Lehr-
uch des gemeinen deutschen Criminalproc." (1833), p. 36. Richter^
*' Handbuch des Straf verfahrens in den preuss. Staaten" (Konigsberg
1830), 4 vols. Temme, ** Comment, iiber Faragraphen der preuss. Crim-
inalordnung" (Berlin 1838). Alker, "Handbuch des preuss. Criminal-
processverf ahren " (Berlin 1842). For the later ordinances passed relative
to the "Criminalordnung," see, preferably, Mannkopf, "Preuss. Criminal-
ordnung in einer zusammenstellung mit der organzenden Verordnungen "
(Berlin 1839). A later Prussian statute which is important is the one of
August 5th, 1844, relative to the brief examination m court of summary
jurisdiction. In regard to the progress of the Prussian legislation, see also
Temme, in v. Jagemanna, "Zeitschrift," new edition, p. 307.

^ As to its composition, see Mathisy "Jurist. Monatsschrift," IV, p. 232.

573

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

systematic court niles.^ This latter, because of its failure to make
a distinction between preliminary investigations and investigations
in chief, because of its admission of extraordinary punishments and
punishments for contempt, and also because of its numerous re-
strictions upon acquittal, could not satisfy the legitimate require-
ments.^ The Bavarian Criminal Regulations,' because of the
completeness of their provisions, because of the favoring of ac-
quittal and means of defense, and especially because of the pro-
motion of that which, for the improvement of the German inquisi-
torial procedure and for the correction of abuses, was proposed
for legislation by scientific knowledge, seemed best to correspond
to the demands of the time.

(c) Defects of the earlier legislation. — But while all these codes
were so serviceable for their time, they contained only half meas-
ures.^ They lacked a proper foundation, and since they con-
tained the old court system with its inherent defects, they could
not render the accused secure against arbitrary action. They
retained the disadvantages of the inquisitorial procedure; they
placed undue restriction upon acquittal ; and through the admis-
sion of punishments for contempt they contained dangerous
elements. Moreover, they did not assure to the judges the means
of procuring the complete material requisite for a just verdict,^ and
because of the attempt at a theory of legal proof, they often

* As to the earlier history of Prussian law, see Mittermaier, **Hand-
buch/' I, p. 120. The general outline of September 16th, 1804, in Kleins^
*'Annalen der Gesetzkunde," XXIII, p. 213. As to the influence of cer-
tain commentators on the Prussian procedure, see Biener, "Beitrage zur
Geschichte des Inquisitionsprocesses," pp. 164, 182. See especially,
AbegQj "Geschichte des preuss. Strafrechts, in HUzig'a " Zeitschnf t," 1st
Supplementband (1835).

" See criticisms m Kldna, " Annalen," Bd. 24, No. 2 ; and " Glossen zum
preuss. Criminalrechts " (Breslau 1818). Temmey "Commentar liber die
wichtigeren Paragraphen des preuss. Criminalordnung " (Berlin 1838).

"Earlier history, see Mitlermaier, *'Handbuch," I, p. 109. The
" Criminalordnung " formed the 2d part of the Criminal Code of 1813.
The supplements ("Novellen ") were collected in the *' Sammlung der wicht-
igsten k. Rescripte in Beziehung auf das Strafgesetzbuch von 1813 *' ; and
DoppelmaiTt '*Sammlung der Erlauterungen und Rescripte*' (1824), and
also the single supplements ("Novellen"), given by v. Wendt, **Grun(iztige
des deutschen una besonders baier. Criminalprocesses " (Erlangen 1826).
See also v. Gonner and Schmidilein, ** Jahrbucher der Gesetzgeoung und
Rechtsk. in Baiem." (Erlangen 1818-1820), 3 vols. Zurhein, ^*Zeit-
schrift fUr Theorie und Praxis des baier. Rechts" (Mtinchen 1835),
2 vols. Seuffert, "Blatter fUr Rechtsanwend. in Baiem." (Auspach, from
1836.)

* MiUermaieTj in "Archiv des Criminalrechts" (Halle), XI, Nos. 7, 12,
15, 20.

» Mittermaier, in "Archiv" (Neue Folge, Halle 1837), p. 6. Cf. Ross-
hirt, "Zwei criminalist. Abhandl." pp. 3-88. As to the faults of the
German procedure, see Mitlermaier, in^*Archiv" (1842), pp. 71-93, 103.

574

Title III] PROCEDURE SINCE 1800 IN OTHER COUNTRIES [§ 2

caused the release of the guilty.^ The legislators hoped, through
a mass of general rules, to be able to guide the course of procedure,*
but in an unfortunate manner, they often went beyond what was
requisite and hindered the necessary free exercise of discretion.*
Moreover, they made so many exceptions to the rules that finally
the rules were without significance.*

Political changes, the increasing opinion that the former
German procedure did not satisfy reasonable requirements,
the greater respect for civil freedom, and the realization of the
necessity for securing it against attacks in the criminal procedure,
gave rise in the ensuing period to scientific investigation, and
much deliberation, e.g, in the legislative assemblies, in regard to a
regular re\asion of German procedure.

The gradually increasing knowledge of French procedure,
obtaining as law in many parts of Germany, and the occasional
questions arising as to the retention of the French procedure,
caused disputes,^ stimulated interest, and made foreign legislation
better known. In this way there increased in number scientific
works relative to the improvement of criminal procedure, often
occasioned by a discussion of codification. These also aimed at

^ For a concession of the faults in the German procedure, see Biener,
"Uberdie neueren Vorschlage zur Verbesserung des Criminal verfahrens
in Deutschland " (Berlin 1844). Also Puchia, **Der Inquisitionsprocess
mit Ruchsicht auf zeitgemasse Reform" (Erlangen 1844). In conse-
quence of this, Martin defended the German procedure in Richter'a *'Krit.
Jahrbuch" (1843), p. 110.

* Notice the statements of Fetierbach^ in his work, *'Betrachtungen
liber Oeffentlichkeit und Mtindlichkeit " (Giessen 1824), I Thl., p. 415,
and in the description of crimes, II, p. 191, note.

* E.g,y in regard to the testing of evidence. Gmelin, "Uber die pein-
liche Rechtspflege in Kleinstaaten " (Tflbingen 1831), p. 126.

* E.g,, in regard to arrest and the searching of premises.

* Here belongs v. Sandt a,nd zum Bach, *'Niederrheinisches Archivfiir
Gesetzgebun|: und Rechtswissenschaf t " (Kdln 1817-1820), 4 vols.
Also the articles appearing in v. Kamptz, **Jahrbucher," especially Heft
XXIII, pp. 91-202. Hadamar, "Die Vorztige der ofifentlich-mundlichen
Rechtspnege" (Mainz 1815). ''Grunde fur und wider die mtindliche
Rechtspflege" (Mainz 1816). Schramm, "Freimuthige Bemerkungen
nber offentl. mtindl. Verfahren" (Elberfeld 1817). THtterman, **Nach-
theile des 5ffentlichen Verfahrens" (Dusseldorf 1817). Moaqua, *'Pru-
fung der neuern Griinde fur offentliches Verfahren" (Berlin 1818). See
also MiUermaier, "Die offentlich-miindliche Straf rechtspflege und die
Geschwomenheit in Vergleichung mit dem deutschen Straf verfahren "
(Landhut 1819). Especially valuable are the conclusions of the " Immedi-
atcommission " (in Koln), "Uber das offentl. miindl. Verfahren in Unter-
suchungssachen, iiber das offentl. Ministerium, iiber das Geschwornen-

?:ericht (Berlin 1818). And in regard hereto, see also Gravell, "Prii-
ung der Gutachten der Iramediatcommission *' (Leipzig 1819), 2 vols.
Rebmann, " Andeutung einiger Forderungen an einegute Straf rechtspflege "
(Wiesbaden 1819). "Bemerk tiber Einf. der Oeffentlichkeit des ger. Verf.
und der Geschwomengerichte in Baiem." (Miinchen 1819). v. Feuerbach,
"Ueber Oeffentlichkeit und Mundlichkeit !! (Giessen 1821-1825), 2 vols.

575

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

a comparative study of the legislation of foreign countries, and of
those of its principles differing from the common German pro-
cedure.^ There was, however, the disadvantage that the legisla-
tors could not get away from their favorite deterrent theory and
their desire to obtain a confession.^

(d) Legislation of the early 1800 s, — In most of the German
States, other than those whose criminal codes have alreadv been
referred to above, the legislation dealing with criminal procedure
was in the form either of new codifications, or of new revisions
of old codes, or else through special statutes dealing with partic-
ular subjects. The basis of most of their laws was the common
German procedure, often changed, but not always improved, by
a few statutory enactments.

In several countries, single far-reaching statutes were passed
relative to individual points of criminal procedure, while for the
most part the common German procedure was retained^ Such
was the case in: Baden,^ the Kingdom of Saxony,"* Braun-

^ AhegQy "Beitrage zur Straf processgesetzgebung " (Neustadt 1841).
Leucy **Der milndUche offentliche Anklageprocess und der cfeheime schrift-
liche Untersuchungsprocess " (Aachen 1840). Hepv, Anklageschaft
Oeffentlichkeit und Mundlichkeit des Strafverfahrens (Tubingen 1842).
Lemanj "Tiber Oeffentlichkeit und MUndlichkeit des Strafverfahrens"
(Berlin 1842). Molitor in v. Jagemanns and Nollners, "Zeitschrift fiir
Strafverfahren," III. Bd., No. 1. Folir, "Uber Mundlichkeit und
Oeffentiichkeit des Gerichtsverfahrens " (Carlsruhe 1843) ; and Geib,
in his reference to Folir in Richter'a Eiit. Jahrbiichem (1844, Feb.,
p. 20). Biener^ *'Uber die neueren Vorschlage zur Verbesserung des
Criminalverf." (BerUn 1844). Here also belong the legal writings of
Schirach, in regard to the improvement of criminal procedure in Schleswig-
Holstein: ^'Uber die von holsteinischen Standen beantragte Reform des
Strafverfahrens " (Kiel 1843). The articles by Fa/fc, Hermann, Graha, in
the new Kieler Blatter, 1843, III Bd., p. 75; VI, p. 209; VII, p. 258.
Brinkmann, "Uber Schwurgerichte in Strafsachen (Kiel 1843). Es-
marchj "Uber Reform des Gerichtverfahrens in Schleswig" (1844). Carl-
heuser, in the "Jurist. Zeitschrift des scMesw. Advokatenvereins," I
Annual, 2. Hft., p. 269. As to the improvement of procedure, see espe-
cially Puchta, '' Der Inquisitionsprocess mit Rucksicht auf eine zeitgemasse
Reform" (Erlangen 1844). Rintd, "Von der Jury" (Mttnster 1844).
Hopfner, "Itber den Anklageprocess und den Geschwomengericht '*
(Hamburg 1844). Mittermaier, in "Archiv," 1842, Nos. 2, 8, 15.

* Hepp, "Darstellung der deutschen Strafrechtssysteme," 2d Abthl.,
pp. 383-392.

" Straf edict of 1803, with the supplements and examples of 1812, edited
by Rhenaus (Mannheim 1823). See also DonsbacK "Verfassung und
Process verfahren der Untergerichte " (Karlsruhe 1822). v. Hohnhorst,
"Jahrbiicher des badischen Oberhofgerichts zu Mannheim" (1823-1831,
6 vols.). Duttinger, Ketternaser and v, Weiler, ** Archiv ftir die Gesetzgeb.
und Rechtspflege in Baden" (Freiburg 1830, 4 vols.). Among the later
statutes dealing with criminal law, the statute of November 25th, in regard
to the abolition of punishments for contempt, and the statute of August
3d, 1837, in regard to retrial in criminal cases, are important.

* See ante. Chapter XVII, and especially the statute of March 30th,
1838. Changes of special features in the procedure in criminal cases —

576

Title III] PROCEDURE SINCE 1800 IN OTHER COUNTRIES [§ 2

schweig/ Holstein and Schleswig,^ Hanover,' Mecklenburg,*
Anhalt-Dessau,^ Weimar,* Altenburg,^ Schwarzburg,® the Grand
Duchy of Hesse,® and Oldenburg.^®
In other German States there was a secret written procedure, in-

see also in regard to the Saxon criminal procedure, the excellent article
in the "Zeitschrift Criminalist. Jahrbucher fUr das Kdnig^r. Sachsen,"
by Watzdorf&nd Siehdrat (Zvnok&u 1837-1841, and "Neue Jahrbucher''
since 1842). A new draft was laid before the High Court in 1843. It occa-
sioned many written articles. There was not an agreement as to funda-
mental principles and so the draft was withdrawn by the government. See
MiUermaier, in regard to this proposed revision in the "Archiv des
Criminahrechts " (HaUe 1842), p. 424.

» Verordnung of January 15th, 1814 ; of February 3d, 1814 ; of March
20th, 1823; and the statutes of 1832 and the statute of February 23d,
1837. Scholz, *'Abriss der Gerichtsverfassung und des Verfahrons in
Strafsachen in Braunschweig " (Altenburg 1841).

• Esmarch, "Prakt. Darstellung der Strafverfahrens in Schleswig,"

1840, with the supplements of 1843.

' Puffendorf, "Introd. in proc. crim." (Luneburg 1732). Oesterlei,
"Handouch iiber das Verf. in Straff alien fiir das Konigreich Hannover"
(as vol. Ill of the "burgerl. und peinl. hannov. Proc.") (Gottingen 1820).
Statute relative to the abolition of tortm-e, of March 15th, 1823. In
June, 1829, a revision of the criminal procedure was proposed ("Archiv
des Criminalrechts," X, No. 1). Gans, '*Entwurf der Criminalprocess-
ordn. fiir Hannover " (Gottingen 1836). In regard to the acts of the Com-
mission, see "Archiv," Neue Folge, 1837, p. 20. Statute of September
8th, 1840, in regard to the judicial procedmre in criminal cases. Statute of
November 19, 1840, in regard to offenses subject to the jurisdiction of a
police magistrate, v. Boihmer^ *'Erdrterun^ und Abhandlung aus dem
Gebiete des hannov. Criminalrechts und Criminalprocesses " (Hannover
1843).

• Criminalgerichtsordnung of January 31st, 1817 ; see "Neues Archiv,"
I Bd., No. 28. In regard to the Mecklenburg criminal procedure, see
Richter, **Handbuch des Meklenb. Criminalproo." (Gustrow 1830).
Also much in Kammerer, **Das Rechtsmittel der Revision in Criminal-
proc." (Rostock 1833). The statute of January 12th, 1838, in regard
to the regulations dealing with the jurisdiction of tne *' Criminalcollegium,"
is important. Also the statute of January 13th, 1838, in regard to '*Nie-
dergerichte" ; the statute of January 15th, 1838, in regard to the order of
speeches in criminal investigations; and the statute of January 12th»

1841, in regard to evidence.

^ Explanations, changes, and supplements to certain titles of the Anhalt
Landesordnung, of July l(>th, 1822 (pp. 141, 150 deal with criminal pro-
cedure).

• Weimar Criminalgerichtsordn. of October 5th, 1810. Weimar Ver-
ordnung of May 7th, 1819, in regard to the abolition of torture, the
admissibility of punishments for contempt, and circumstantial evidence.
Statutes of April 7th and 9th, 1839.

^ Altenburg. Statute in reeard to circumstantial evidence of Ai)ril
15th, 1837, and the statute of January 27th, 1837, in regard to successive
appeal.

• Statute of Februanr 2d, 1837, in regard to legal remedies.

• Ruhl, in Bopj)j "Materialien," I, p. 33. Bop'p, "Nachtrage zur hes-
sen-darmst&dt. Civilprocessordn. und peinl. Genchtsordnung " (Darm-
stadt 1838). The statutes passed at the introduction of the new Criminal
Code of September 17th, 1841, have an influence upon procedure.

*" There was later introduced a Bavarian Criminal Code, with many
improvements. See "Archiv," IV, p. 471. Important additions by way
of explanation of October 11th, 1821. An edition of the Code containing
all additions prior to 1836 appeared in 1837.

577

. § 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

quisitorial in nature, joined with a certain publicity and an oral
method of pleading, so that at the end of the procedure there was,
as it were, a public conclusion. This was the case especially in
the systems of many of the Swiss Cantons, e.g., Zurich,^
Lucem,^ Bem,^ Thurgau,* Glarus,^ and Freiburg.* In this
category also belonged the Criminal Regulations ^ of Wiirtem-
burg,* which contained a limited oral conclusion in the case of
• graver crimes,* and certain other institutions of the accusatorial
procedure.^® The Prussian Revision had in view a similar public
conclusion."

Other legislation chose as its foundation, the French procedure,
yet with a limitation upon the passing of judgment by jurors, and
with the effort to conduct the preliminary investigation thoroughly,
and to widen the range of the discretion of the presiding judge.
Here belong the codifications of the Netherlands,*^ and of the

^ Statute of June lOth, 1831.
> Luoem. Strafprocessordn. of June 17th, 1836.
•Statutes of March 7th, and December 15th, 1834 ("Archiv," Neue
Folge, 1837, p. 194).

* Statute of June 19th, 1834, and of November 19th, 1837, in regard to
the administration of justice.

^ Strafprocessordn. for the Canton Glarus, 1837.

• Statute of May 27th, 1839.

^ As to the statutes preceding the new regulations for criminal pro-
cedure, see Ordinance of November 18th, 1811 ; IV Organisationsedict of
December 31st, 1818, Nos. 193-226. and the edict of July 17th, in regard
to criminal forms and institutions. See also H of acker, " Systematische
Uebersicht des gemeinen und wtirtembiu'g. Straf processes " (Tubingen
1820). Also Hof acker, "Jahrbucher der Gesetzgebung und Rechtspflege
in Wurtemburg" (Stuttgart 1824-1830). A revision of the crimiiuil
statutes was proposed in the Assembly C'Stande") in 1830. See criti-
cism of the admimstration of justice, in Gmelin, " Uber die peinliache Rechts-
pflege in Kleinstaaten mit bes. Beziehune auf Wiirtemburg" (Tubingen
1831). See also many articles in regard to the WUrtemburg criminal
procedure in Sarwey, ''Monatsschrift fiir die Justizpflege in WUrtemburg "
(Ludwigsburg, 1837 to 1844, yearly, 4 vols.).

•Of June 22d, 1843. //oizi n^er, "Commentar iiber die Strafprooess-
ordnung fiir WUrtemburg** (Ellwangen 1844). Also Knapp, "Die Straf-
processordnung von Wiirtemburg mit Anmerk.*' (Stuttgart 1843.)

•That this is insufficient, see Miltermaier, in **Arcmv,*' 1842, pp. 88,
278 (as to the proceedings in the assembly, p. 270). Folir, *'Uber Mtind-
lichkeit und Oefifentlichkeit der Gerichtsverfahrens ** (Carlsruhe 1843),
p. 27.

^ Hepp, "Darstellung des deutschen Strafrechtssysteme,** II Abth.,
p. 384.

" Mittermaier, in "Archiv,** 1842, p. 293. Folir, p. 28. Temme, in
the Zeitschrift of Jagemann (New edition), I, p. 311.

** The last code went into efifect in ISS6. "Wetboek van Strafveror-
dering.*' Relative thereto, see Asser, in the '* Zeitschrift fiir ausland.
Gesetzgebung,** X Bd., Nos. 11, 20. Valuable remarks in regard to the
revision of 1828 in Rappard, *'het Ontwerp van een Wetboek van Straf-
verordering** (Zutphen, 4 vols.). See also den Tex and van Hallf "An-
merkingen over het Ontwerp" (Amsterdam 1829, 4 vols.). As to the
revisions prior to 1828, see Mittermaier, in the "Zeitschrift,** Bd. I, No.

578

Title III] PBOCEDURE SINCE 1800 IN OTHER COUNTRIES [§ 2

Canton ^ of Vaud, the Criminal Regulations for Baden,^ and the
e of Hungary.^

(e) Legislation under the Empire. — Since the proclamation of
the Empire, the task of the legislative unity of Germany has been
the constant subject of political thought. The year 1877
constitutes, in this respect, an important date in the history of
the country. It was marked by the promulgation of four leading
laws, the Code of Judicial Organization, the Code of Criminal
Procedure, the Code of Civil Procedure, and the Bankruptcy
Code, We propose to deal here only with the first two of
those.

(I) The Judicial organization law * substitutes, throughout the
German Empire, one and the same system of civil and criminal
tribunals in place of the different local jurisdictions. Justice is
administered by "amt" tribunals, district courts, superior dis-
trict courts, and the tribunal of the Empire. The principle of the
unity of civil and criminal justice governs this organization, with
two qualifications. In the lower stage of the hierarchy, the "amt,"
which corresponds very nearly to the French canton, there
are two tribunals, one civil, the "amt" court, "Amtsgericht";
the other correctional, the tribunal of lay assessors, " Schoeffen-
gericht." The " amt " judge sits in both : in the former, alone ;
in the latter, assisted by laymen. In the higher stage, assizes are
periodically held at the district tribunals to try criminal cases
which are not within the cognizance of the correctional chambers
or of the supreme tribunal of the Empire. The organization of the
German assize courts is identical with that of the French assize
courts. They are composed, on the one side, of a president and
of two judges, and on the other side of twelve jurors.

20 ; II, No. 6. There is a valuable treatment of this statute in Voorduin*
" Oeschiednis en beginselen der nederlandsche Wetboeken " (Utrecht
1839), 2 vols. Bosch' Kemper, "Wetboek van Straf ordering " (Amster-
dam, vol. I-III, 1840). Lipmann, "Wetboek van Straf ordering " (Am-
sterdam 1842).

^''Code de procedure p^nale du Canton de Vaud," Lausanne, 1836.
(See "Archiv," Neue Folge, 1837, p. 171.)

» The earlier revision was in 1835. See " Archiv," 1842, p. 80. The
date of the code is March 6th, 1845.

•"Entwurf einer Straf gesetzgeb. fiir das KSnigr. Ungarn,*' 2 Thl.
(Leipzig 1843).

* Code of 27th January, 1877. DuhaTle, ** Code d'organisation judiciaire
allemande," Introduction and translation (Paris, 2 vols., 8vo, "1885).

This Code forms part of the collection of the principal foreign Codes pub-

' t;ee on forei^ legislations of the
Ministry of Justice. See also '*Annuaire de legislation ^trang^re,'' 7, p.

lished imder the supervision of the committee

77. Laband, "Le droit public de TEmpire allemand,'' translated by Gau-
diUian (6 vols., 8vo, 1900-1904, Paris), may be consulted generally on the
judicial organization.

579

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

(IIKThe German Code of Criminal Procedure is directly de-
rived frdm the French Code of Criminal Examination.^ The
variations between them important enough to be noticed here are
not sufficient to make a distinct type so far as the procedure is
concerned.^Prior to this unifying legislation, the systems of law
of the German States might have been grouped as follows : Certain
states, notably the two Mecklenburgs and the two Lippes, followed
the German common law, from which they had borrowed a pro-
cedure fundamentally inquisitorial. Two states, Liibeck and the
Duchy of Saxe-Altenburg, had adopted the accusatory system, but
without jury or assessors. Finally, in the great majority of the
states, the laws of procedure retained, at least in the trial, the
accusatory system, by causing either jurors or assessors to take
part in the trial.^ It is in this last group that the legislators of
1877 sought their type and from it have taken their model, sanc-
tioning that evolution of the criminal procedure which in Germany,
as in the majority of the States of the European continent, had
followed the three successive phases; — the accusatory phase, the
inquisitorial phase, and the mixed phase. In the last system,
which sums up the existing traits of the German procedure, the
arraignment, which is the starting-po>nt of the action, is, as a rule,
the work of special functionaries.^. The examination reproduces
the forms of the inquisitorial procedure. But after the trial
jurisdiction is reached, everything takes place in the broad
daylight of courtroom and confrontation. The proofs are not
formal, but moral, and the judge has only his coQscience to guide
him in his estimate of the facts and the culpability.^

A law modifying the Code of Judicial Organization and the
Code of Criminal Procedure of date 27th May, 1898,* has
intervened to put the judicial organization in agreement with
the new German Civil Code on one hand and on the other to

* Fernand Daguin, **-Code de procedure aUemand" (Ist February, 1877),
translated, with notes (Paris 1884). The introduction is partioularly
notable.

* On the history of German procedure : Daguin, "Introduction, "p. vii
et aeq.; Feuerhach, "Lehrbucn des gemeinen in Deutschland giiltigen
peinlichen Rechts," edited by MiUermaier (14th ed., 8vo, Giessen, 1847) ;
Ch, LivUa^ "Precis de Thistoire du droit p^nal allemand depuis la Caroline
jusqu*lk nos jours," translated and annotated by Bourneville de Marsanqy
(Extract from the ** Revue crit. de legislation," 34 pages, 8vo, Pans,
Cotillon, 1862). For the very ancient law, J. J. Thonisaen, '* L'organisa-
tion judioiaire, le droit pSnal et la procMure p^nale de la loi salique" (2d
ed. 8vo., Paris, Chevalier-Maresq, 1882). See also, for the bibliography of
German criminal law, *'Le droit criminel des E tats europSens," Germany,
appendix, p. 363.

' Review, analysis, and translation in "Ann. de l^slation 6trang^re,"
3899,38, pp. 142-150.

580

Title III] PROCEDURE SINCE 1800 IN other countries [§ 2

remedy several disadvantages of procedure pointed out by
experience.^

II. AuMriorllungary, etc. — The Austria-Hungarian Empire is
ct^mposed of an amalgamation of States, nationalities, and legal
systems^

(a)^he Austrian Code of Criminal Procedure bears the date
23d May, 1873.^ It is the fourth which has been promulgated in
Austria since the beginning of the 1800 s. This country has, in
fact, been governed by the Codes of 1803, 1850 and 1853 ; it is
now governed by that of 1873. The Criminal Code of 1803 was
both a Penal Code and a Code of Procedure.^ As regards the
procedure it merely reproduced and developed the rules of the pure
inquisitorial system. The Code of 1850 was modeled on the
French Code; it introduced the oral and public procedure, the
accusatory principle, and the institution of the jury. But it
was swept away by the storm of reaction which raged in 1851.
The Act of 31st December, 1851, declared that a Code of Criminal
Procedure should be made for the whole Empire. That was the
Code of the 29th July, 1853, which remained in force until Januarj"
1st, 1874. That Code suppress3d the jury, allowed pubUcity to
subsist only in a relative degree, admitted of no defense until
after the close of the examination, and retained a system of legal
proofs.

The liberal movement and the constitutional reforms which
followed 1860 and 1861 attracted attention to the defects of the
criminal procedure. Numerous plans were successively studied.
In 1872, Minister of Justice Glaser, who had, in his capacity of
chairman for several of the commissions on reform, contributed more
than any one else to the preliminary labors, submitted the draft

' Consult, for the systematic explanation of German criminal law,
" Encyclopaedie der Recntswissenschaf t " of Franz von Holtzendorff (6tli ed.),
II. The criminal law is divided into three articles. To Af . Wachenfeld is
committed the general penal law, M. Beling explains the general criminal
procedure, and M. Weiffenbach has specially treated of nuBtary penal law
and criminal procedure. Ernst H enrich Roaenfdd, "Der Reiehs-Straf-*
prozess" (Berhn, Gutentag, 1903) may also be consulted.

5 This Code bears the title **Oesterreichische Saf process-Ordnung vom
23 mai 1873." It has been translated by MM. Edu, Bertrand and Ch.
Lyon-Caen under the inaccurate title of "Code d'instruction criminelle
annot^" ("Collection des Codes 6 trang^res," imprimerie national, 1875).
See the introduction, which treats of the three foUowing matters, Austrian
criminal procedure subsequent to the Codes of 1803, 1850, and 1853, the
history of the compilation of the Code of 23d May, 1873, and a general
sketch of the new Code.

' It has been translated into French in the collection of civil and crim-
inal laws of modern nations, published under the supervision of M. Victor
Foucher (vol. 1 of the collection).

581

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

which became the Code of 1873. Conforming to Germanic tradi-
tions, this law is called Regulations (" Ordnung ") of Criminal
Procedure/ but it is neither more nor less than a Code. In the
procedural legislation of the European continent, this Code may
be signalized as the expression of a progress remarkable both on
account of the prior state of Austrian legislation, and of the variety
of races, traditions, and customs of the nations who have entered
into the formation' of Austria. Its fundamental principles had
been already fixed by the Constitution of 21st December, 1867,
that is, the oral nature and publicity of the trial proper, the ac-
cusatory trial and the jury for the more serious offenses, political
offenses, and those of the press. For these last, the jury began to
act under the law of 9th March, 1869.

The Austrian Code of 1873 has received the unanimous approba-
tion of criminalists. It is inspired, no doubt, by the French Code
of Criminal Examination, of which it reproduces the type; but
how much modified and improved 1 The scientific mind of Glaser
is forcibly imprinted upon a law of procedure adapted to the neces-
sities of practical life. The influence of this Code of 1873 upon the
contemporary orientalization of criminal procedure is also a fact
which must be taken into account. Since the French Code of
1808, no legislation peculiar to one nation has been more widely
quoted and imitated elsewhere. \

(b) The history of criminaL.procedure in Hungary is the history
of the strife of a century between the inquisitorial and accusatory
systems. The Code of Criminal Procedure of 22d December,

1896, which now governs this country, has made uniform a system
of laws formerly very diversified, and has introduced the jury,
not only for press offenses, but for the more serious misdemeanors.
It institutes the accusatory procedure, with the public prosecutor.^

(d) Croatia-Slavonia has a Code of its o\\ti, the Regulation of
17th May, 1875, modeled upon the Austrian Code of 1873. The
jury, however, has not been instituted in this province.

III. Belgium, — Belgium has retained the French Codes,
notably the Code of Criminal Examination of 1808. But its

1 And not of criminal examination ("d'instniction criminelle") as the
translation of MM, Bertrand and Ch. Lyon-Can has it.

* Upon this Code, review by Meyer m !*Ann. de legislation 6 trangftre,"

1897, pp. 397-409.

» See the review of Meyer, Bull. soc. Wg. comp. 1891-1892, vol. 21, p.
398.

582

Title III] PROCEDURE SINCE 1800 IN OTHER COUNTRIES [§ 2

Constitution of 1831 directed their " revision with the least pos-
sible delay '' (Art. 139). This great work has been only partially
accomplished. Only, on the one hand, the preliminary title of a
new Code of Criminal Procedure, a title adopted in preference to
that of Code of Criminal Examination, has been promulgated,
17th April, 1878,^ and on the other hand, title IX of book III,
replacing Articles 443, 444, 446, and 447 of the Code of Criminal
Examination, that is to say, modifying the rules of appeal.^

The history of criminal procedure in Belgium embraces three
periods, which correspond with the periods of its contemporaneous
history.^ From 1795 to 1814 Belgium was French soil. It then
passed successively under the regime of the Code of Offenses and
Punishments of the 3d Brumaire, of the year IV, and of the Code
of Criminal Examination of 1808. After the events of 1814,
Belgium, as a part of the new Kingdom of the Netherlands, lived,
like the rest of that country, under the rule of the Napole-
onic legislation. But the Code of 1808 was almost immediately
amended in two important particulars ; the jury was abolished and
" the publicity of the trial in criminal and correctional matters
prior to the pleadings " was suppressed (Resolution of 6th Novem-
ber, 1814). After 1830 Belgium, henceforth forming an autono-
mous kingdom, took up again the French system of laws, which,
however, has been modified and amended by a series of provisions
which were the subject of a special investigation appropriate to
each of the institutions to which these provisions respectively relate.

IV. The Principality of Monaco. — The Code of Criminal
Examination of the Principality of Monaco, which bears date
31st December, 1873,^ is, as might be supposed, mainly copied

* *'Annuaire de l^slation 6trang6re," 1879, text, review, and notes by
Georges Louis, pp. <&3-457. All the parliamentary documents relating
to the introductory title of the new Code have been reproduced "in ex-
tenso" and coordinated by Nypels under the title of "Commentaire du
Code de procedure p^nale'* (Brussels 1878).

* This law, which bears date 18th June, 1894, is contained in the ** An-
nuaire de legislation 6trangSre" (1895, vol. 24, pp. 504-514. Review and
notes by A. le Poittevin). On the plan of reform of the Belgian Code
generally, S. Mayer, **Das Strafprozessrecht Belpens," in **Archiv fiir
Strafrecht" (1886); Vacca, "Le reforms del codice di procedura penale
nel Belgie," in "Rivista i)enale," 30, p. 109 et seq.

* Bibliography: Haus, "Principes g^n^raux de droit p^nal beige," vol.
2, book IV; Thonessen, "Travaux pr^paratoires du Code de procedure
penale," " Reports made to the Chamber of Representatives"; lAndotte,

Le Code de procedure penale appliqu^ et annot^" ; "Revue critique de
droit criminel (Criminal procedure) ; Ferdinand Thiry, "Cours de droit
criminel" (2d ed., 1895), Second part, "Proc6diu:e penale"; "Pan-
dectes beiges," passim; Nypels, "Legislation crimineUe de la Belgique,"
3 vols., 8vo.

* Of&cial edition, Nice, Cauvia & Co., 1874.

583

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

from the French Code of 1808. It, nevertheless, differs from that
in various respects, and notably in regard to the order of the
matters dealt with. The chief characteristic of this procedure is
the exclusion of the trial jury from criminal proceedings.*

V. Grand Dvjchy of Luxemburg. — The criminal legislation of
the Grand Duchy of Luxemburg does not possess the merit of
originality. The Luxemburg Criminal Code, promulgated 18th
June, 1879, reproduces the Belgium Penal Code of 1867. The
procedure of the Grand Duchy is still regulated by the French
Code of Criminal Examination of 1808, in which, however, impor-
tant changes have been made.^

VL Spain. — The Spanish Code of Criminal Procedure is
dated 14th September, 1882.^ The chief reform effected by this
Code is the substitution of the oral trial for the written procedure.
The Spanish people had been " educated for centuries in the
written procedure, secret and inquisitorial " ; they have renounced
that system to adopt the accusatory system, " carrying it,' so to
speak, even into the preliminary examination, since the legisla-
ture grants to the prisoner the guarantees which the ancient laws
refused him, and which the secrecy of the examination has main-
tained solely within the limits necessary to prevent the facts
leading to presumptions of the offense from disappearing." *

The jury, suppressed in 1875, was reestablished by the Act of
20th April, 1888,^ which gave it jurisdiction to sit in cases of the
more serious misdemeanors.

The origin of the Spanish public prosecutor appears to be of very
old date ; but the present organization of the office is traceable to
the laws of 1812. Its members, who are also called " represen-
tantes del ministerio fiscal " have the same powers as in France
in the repressive procedure. They institute the public action

^ Articles 76, 355, 358, and 444 of the Code of Criminal Examination
have been modified by a sovereign ordinance of 16th August, 1888, and
Article 467 by an ordinance of 22d May, 1891. Besides this, a plan for
the general revision of the Code was in preparation. See on tms plan,
De Holland, '*Projetde Code de procedure p^nale" (3 vols., 8vo, 1899-
1903). It is about to be sanctioned. See *'Code de procedure p^nale
de la principaute de Monaco" (8vo, 1905).

2 See Jacques Delahaye, "Bull, de TUnion intern, de droit p4nal," 1903,
p. 63.

' Translated in the collection of foreign codes by Gabriel Verdier and
Joseph Depeiges (Paris, Imprimerie national, 1898). See also Thouralt,
"Notice sur le Code de procedure criminelle du 14 Septembre, 1882"
("Annuaire," t. XII, p. 693). On the history, Du BoySy "Histoire du
droit criminel de I'Espagne" (1 vol., 8vo, 1870).

^ Report of the Minister of Pardons and Justice.

* This law has been translated in an appendix to the translation of the
Codes by Verdier and Depeiges.

584

Title III] PROCEDURE SINCE 1800 IN OTHER COUNTRIES {§ 2

in all cases except in those which, by law, cannot be prosecuted
except at the request of the injured party.

VII. Italy. — The organic repressive law is at present repre-
sented, in united Italy, by two chief authorities : 1st, the funda-
mental statute of the kingdom and the laws of constitutional and
political order ; 2d, the Code of Criminal Procedure and the laws
on the judicial organization.

(a) The royal statute contains several declarations and con-
stitutional provisions relating to individual liberty (Art. 26) ; the
inviolability of the home (Art. 27) ; the exclusion of exceptional
.tribunals (Art. 71) ; the publicity of hearings (Art. 72) ; the
immunity of senators (Art. 37) ; the political guarantee of deputies
(Art. 15) ; the institution of a High Court of Justice (Art. 36).
Other laws of a constitutional or political nature relate to cer-
tain points of judicial organization or of procedure, such as the
Act of 13th May, 1871, upon the prerogatives of the sovereign
pontiff, the edict or law relating to the press of 26th March, 1848,
etc.

(6) The Italian Code of Criminal Procedure is dated 1865.*
It must be supplemented, either by the law upon the judicial or-
ganization of 6th December, 1865, which is itself followed by a
regulation of 14th December, 1865, and by other laws, too numerous
to be mentioned here, relating to the magistracy and its functions.
Among these, however, must be noted that of 6th December, 1888,^
which confers on the Court of Cassation of Rome the exclusive
jurisdiction of all the penal matters of the kingdom and suppresses
the criminal branches of the six other Courts of Cassation. The
judicial organization greatly resembles the French organization.
The preetors, magistrates analogous to the French justices of the
peace, form the lowest step in the judicial hierarchy. Assize
courts, constituted like the French Courts of Assizes, administer
justice in criminal matters.' The office of public prosecutor is
organized on analogous lines.

^ Marcy, "Code de procedure p^nale du royaume d*Italie" (2 vols.,
8vo, 1881, Paris). The two principal commentaries on this Code are
Borsari and Casorati, "Codice di procedura penale commentato" (5 vols.,
Milan 1885) ; Saluto, "Commenti al Codice di procedura penale" (8 vols.,
8vo, 3d ed., Turin 1884).

^"Annuaire de legislation 6trang^re," vol. 17, p. 512.

' Law of 8th June, 1874 (** Annuaire de legislation 6trang6re," vol. 4, p.
357), and the law of 16th December, 1886, amending it (Annuaire, vol. 16,
p. 395).

585

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

discussion here of those which are due to parliamentary initiative.
But, among the plans presented in the name of the government, I
shall cite, in chronological order, the plan of Falco of 19th April,
1866, that of Filippo of 1868, that of Villa of 9th March, 1880,
and of Taiani of 25th November, 1885, etc. Finally, by the
Decree of 1st October, 1898, Keeper of the Seals Aprile instituted
a commission charged to study and propose amendments of which
the Code of Criminal Procedure may be capable, in the direction of
a more efficacious protection of individual liberty and a greater
celerity in the penal action.^ The proceedings of this commission
have been published.^ The commission finished its labors in
June, 1904. Without modifying the essential bases of criminal
procedure, it provides a series of reforms in matters of detail which
bear upon all the stages of the criminal action.'

[ (d) This Draft Code was finally enacted on June 20, 1912,
and now represents, in many respects, the most advanced views
in Continental criminal procedure.*]

VIII. Svdtzerland. — The Codes of Criminal Procedure of the
Swiss Cantons may be divided into three ethnical groups : 1st, the
cantons of German Switzerland; 2d, the cantons of French
Switzerland ; and 3d, the Italian canton of Tessin.

(a) The cantons of German Switzerland, Argovie, Saint-Gall,
Basle, Basle-Campagne, Lucerne, Schaffhausen, Zurich, Thurgau,
Grisons, Soleure, Appenzell, Unterwalden, Berne, Glarus, Schwyz,
and Zug, all have Codes of Criminal Procedure whose provisions
differ in their details, but which reproduce, in broad outlines,
the mixed system of procedure. It will sufiice to cite one of the
most original of the laws of procedure, that of the canton of
Appenzell of 26th April, 1880.^

(6) The laws of western Switzerland have almost all undergone
the influence of the French Codes. The peoples of the French-

" "Penal Review"), vol. 54, p. 489.

'"Lavori preparatori del Codice di procedura penale pel regno d*

lia" ("Preliminary Proceedings for a Code of Criminal Procedure in

* See Lucchinif "Qiustizia per tuti, " "Revista penale*' ("Justice for
All," "Penal Review"), vol. 54, p. 489.

Italia

the kingdom of Italy"), 3 vols., 4to, Rome. The first two volumes con-
tain the minutes of the commission. The third contains reports upon the
principal problems of criminal procedure. The Italian government with
courteous generosity has placed these volumes at the service of foreign
criminalists.

' See the r6sum6 of the discussions of the commission in the "Scuola
positiva" (1904), I), 441.

* [See V. Manzini, "Trattato di Procedura Penale secondo il nuovo
Codice di Procedura Penale Italiano" (1913, Boica, Turin). — Ed.]

' It is analyzed in the "Annuaire de 16giskition 6trang^re," vol. 10
(1881), p. 447.

586

Title III] PROCEDURE SINCE 1800 IN OTHER COUNTRIES [§ 2

speaking part of Switzerland have lived too long under the rule
of these codes to be able to reject completely and radically the
traditions and modes of thought which they have borrowed from
France. In the canton of Greneva, for example, the Code of 1808
remained in force until 1884. The existing Code is dated 25th
October, 1884, and was promulgated 4th January, 1885.^ The
Code of Criminal Procedure of the canton of Friburg is dated 24th
May, 1873, and was put in force 1st January, 1874. The Code of
Criminal Procedure of the canton of Valais, of 24th November,
1848, entered into force 1st July, 1849. The last-mentioned
Code might, however, have been dated a hundred years earlier,
offering, as it does, the curious example of a procedure of the
1700 s. It retains the system of legal proofs ; it still speaks of half-
proof, and the uniform depositions of two unimpeachable witnesses
are necessary to establish a fact. There is certainly an oral
trial, since the parties plead before the tribunal, but the tribunal
does not hear the witnesses, and judges solely from the documents
of the proceedings. In the canton of Vaud, the Code of Criminal
Procedure of 1st February, 1850, went into force 1st July, 1850.
The Code of Criminal Procedure of Neuch&tel, one of the most
recent and progressive, is dated 25th September, 1893, and came
into force 12th March, 1894.^ These various Codes differ so
widely and fundamentally from each other that it would be very
difficult to make a useful comparison between them.'

(c) In the canton of Tessin * the constitutional Decree of 8th
November, 1894, contains the foundations of a new organization in
criminal matters. According to the Act of Judicial Organization of
4th May, 1895, promulgated in pursuance of that Decree, jus-
tices of the peace have jurisdiction of offenses punishable by a
maximum of one hundred francs fine or seven days' imprisonment ;
the district assizes of offenses punishable by more than one hundred
francs fine or seven days' imprisonment or detention ; the cantonal
assizes of offenses coming under the head of crimes. An important
innovation is that the assize courts are composed of magistrates
and jurors, sitting together and having jurisdiction of the fact, the

* See Lefort, "Annuaire de 16g:islatioii €trang6re," vol. 14 (1885), p. 571.
' The earlier Code was dated 7th April, 1875 (**Annuaire de legislation

fitrang^re, " vol. 5, p. 762 ei seq,).

' This work has been done and well done by A. Gautier, only so far as
relates to the procedure of the examination (** instruction"). See **La
r^forme de I'instruction prgparatoire " ("Revue p^nale suisse," 1904,
pp. 25^273). As to the trial procedure, we shall often have to cite the
Geneva Code, which has established the correctional jury.

* See '*Annuaire de legislation etrang^re'* (1896, vol. 25, p. 560).

587

$ 2] PBOCEDURE SINCE THE FRENCH REVOLUTION [Part III

law, and the punishment. This Act, in 36 articles, was followed,
on the same date, by a Code of Criminal Procedure containing
344 articles.

IX. The Netherlands. — Holland possesses a Code of Criminal
Procedure which is characterized, like the rest of the laws of that
country, by its conciseness and brevity (49 Articles). It is divided
into twenty-two titles in which the subjects are arrayed in an
order very similar to that of the text of the French Code. The
absence of the jury is a matter for remark, as is a system of legal
proofs in a sense favorable to the defense. An Act of 15th January,
1886, introduced into this Code certain modifications to put it in
accord with the Penal Code of 1881, but the general principles
remain unchanged.^ Private persons cannot, as a rule, take part
in the bringing of the criminal action except by way of denuncia-
tion (Art. 11). The two actions, criminal and civil, are quite
distinct. This Code has absolutely forbidden the civil action before
the criminal jurisdiction. It has retained it before the correctional
and police jurisdictions only when, the sum demanded being below
a certain amount, it would be prejudicial to the parties to oblige
them to bring a second action (Arts. 231 and 233).

X. Great Britain. — We must take separately the procedure in
England, Scotland, and Ireland.

(a) In England the criminal procedure has not been codified.
This also applies to Scotland and Ireland. Even the attempts
due to Sir James Stephen, which were made in 1878 and 1879, to
obtain from the English Parliament the adoption of a plan of
codification, have been limited to the penal law. In the three
countries the procedure is based partly on the common law and
partly on the statute law. The common law is the customary
law contained in the decisions of the tribunals, or the law which
is created anew by the judges by the analogous application of the
provisions in force.^ Statute law is simply legislative law.

* See Van Swindererit "Esquisse du droit p^nal actuel dans les Pays-
Bas et h r^tranger," 5 vols., 4to, 1891-1903. The last two volumes are
supplements. The Code of the Netherlands has been translated by
Tripels. The Code of Criminal Procedure has been amended, as stated
in the text, by an Act of 15th January, 1886 ("Annuaire de legislation
etrang^re," 1886, p. 111).

* See as the source of our information on the English judicial organi-
zation and procedure, de Franqueville, '*Les institutions politiques, ju-
diciaires et administratives de I'Angleterre" (2d ed., 1864, 1 vol., 8vo) ;
*' Le syst^me judiciaire de la Grande-6reta|gne " by the same author (2 vols.,
8vo, 1893); Glasson, "Histoire du droit et des institutions politiques,
civiles et administratives de I'Angleterre" (6 vols., 8vo, 1881-1883);
Milter maier, "Traits de la procedure criminelle en Angleterre, en Ecosse
et dans TAmerique du Nord," translated into French by Chauffard (1 vol.,

588

Title III] PBOCEDUBE SINCE 1800 in other countries [§ 2

The characteristics of English procedure are : 1st, the system
of the free individual accusation ; 2d, the absence of a preliminary
examination by a judge ; 3d, the institution of a double jury, the
grand jury and the petty jury ; 4th, the institution of function-
aries, police judges, in certain towns, who have the right to try
summarily slight offenses and to remit serious cases to a higher
jurisdiction ; 5th, the necessity of unanimity of opinion of the trial
jury to determine culpability ; 6th, the assistance of a counsel to
the defense at every stage of the procedure ; 7th, arrest facilitated
by custom, but incarceration rendered difficult and exceptional ;
8th, the interrogation and examination of the witnesses by the coun-
sel of both parties, accuser and accused, by way of cross-examina-
tion.

In England, as in France, offenses are divided into three
classes (treasons, felonies, and misdemeanors). But this classi-
fication is not coordinate with the judicial organization. The
jury is the common law judge. The only division which has a
jurisdictional interest is that of causes into summary and in-
didable. The former are within the jurisdiction of the inferior or
summary jurisdictions, — justices of the peace, courts of petty ses-
sion, and police courts. The latter are begun in these inferior juris-
dictions, but remitted to the superior jurisdictions and submitted
to the verdict of the jur>^^

(6) The Scotch criminal procedure^ is halfway between two
great historiqal currents, — the Continental system and the Eng-
lish system. In certain parts it is strictly inquisitorial,' in others
it is clearly accusatory. For example, the penal action is intrusted
to special functionaries, at whose head is the Lord Advocate, a
member of Parliament ; but alongside of the official accusation, the

8vo, 1868); A. Prins, "Etude comparative sur la procedure p^nale k
Londres et en Belg:ique" (Brussels 1879); du Boys, "Histoire du droit
criminel de T Angle terre/' volume 3 of the history of criminal law of mod-
ern nations (Paris I860) ; Hallon, " Etude sur la procedure criminelle en
Angleterre et en Prance " (doctorate thesis, Paris 1898) ; Seymour Harris^
**Principii di dint to e procedura penale inglese," translated by Bertola
(Verona 1898) [and now the report of Edwin R. Keedy and John D. Lawson
on "Criminal Procedure in England/' American Journal of Criminal Law
and Criminology, 1910, vol. I, p. 607.— Ed.].

* Glaaaon, op, cit., vol. 6, p. 569.

* J. Dove Wilsouy professor in the University of Aberdeen, *'De la pro-
cedure criminelle en Ecosse," "Bull. del'Un. int. de droit p^nal," vol. 11,
1903, pp. 71 to 82. See generally, J. H. A. Macdonald, "A practical
treatise on the criminal laws of Scotland" (2d ed., 1877), pp. 246-550
[and now Edwin R. Keedy, "Criminal Procedure in Scotland," American
Journal of Criminal Law and Criminology, 1913, vol. Ill, p. 728. — Ed.].

» It is generally thought that the preliminary procedure is modeled
upon the French system of the 1500 s, to which, however, the Scottish
system originally bore a greater resemblance than it does now.

589

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

subsidiary accusation by the injured party is allowed.^ In order
that the Lord Advocate may be absolutely independent, he is
responsible only to Parliament for his acts. His action, therefore,
can have no effect when public opinion is against him.

(d) In the English colonies, the local laws and customs are
respected.

A Code of Criminal Procedure for the East Indies was pro-
mulgated 22d March, 1898. It takes the place of the successive
Codes of 1861, 1871, and 1882.«

Xl4(nu8sia, — The great social reforms which, in Russia^
markeo^e beginning of the reign of the Emperor Alexander II,
such as the enfranchisement of the serfs in 1863, and the recon-
stitution, on the same date, of the provincial administration,
" Zemstvo," were the prelude to the judicial laws of 1864.* On
20th November, 1864, the laws of criminal procedure which still
prevail in Russia came into force. The new judicial organization
rests on the principles of the separation of the administrative and
judicial powers, and the irremovability of the magistracy, and upon
the participation of the people in the administration of justice by
the institution of the jury and the election of justices of the peace.
The written and secret procedure is replaced by the oral and public
procedure, the theory of legal proofs by that of moral proofs.
The number of steps of appeal, which entailed indefinite delays,
is Hmited, and instead of the official appeal from judgments
it is left to the parties, interested to attack them. Finally, the
institution of a tribunal of Cassation, put into the care of the
directing Senate, insures everywhere the correct application of
the law. This code of criminal procedure takes the French system
as its basis, but it adapts that system to Russian ways and tradi-
tions. It is a national work, and not a mere copy of foreign
codes.^X

^ The private action has, however, fallen into desuetude. See Mitter"
maieTy op.cit.y pp. 214, 215; Glasson, "Histoire du droit et des institutions
politiques, civiles et judiciaires de TAngleterre," t. 7, p. 732.

^ The same phenomenon as in Scotland, the abandonment of the private
action.

* See review and analysis in **Annuaire de l€g:islation dtrang^re,
1899, vol. 28, pp. 968-976.

* KapnitZf Code d'organisation judiciaire de TEmpire de Russie,
edition of 1883-1890, translated and annotated, 8vo, 1893.

* Among the works written in Russia on criminal procedure, the most
important are those of Foinitski, "Cours de procedure p^nale" (1885);
Tollherg, "Cours de procedure p^nale" (1890) ; Ishebyshev-Dmitriev, **La
procedure p^nale russe" (1875); Slovishevaki, !*Cours de procedure

590

»»

i»

Title III] PROCEDURE SINCE 1800 IN other countries [§ 2

Following the political and social events which marked the end
of the reign of Alexander II, and the horrible crime of 1st March,
1881, a reaction against this liberal system made its way. This is
especially shown by tlie Act of 1889, which suppresses the election
of justices of the peace and again blends the judicial and adminis-
trative powers, subordinating the former to the latter. Neverthe-
less, the judicial laws and those of procedure of the 20th November,
1864, have exercised the happiest influence on Russian juridical life.
At the same time that the reform of the penal Code is in process of
completion, an analogous reform of the judicial laws is in course of
execution.^ The labors of the commission ended in 1899. They
have been published, and the plan has now been submitted to the
Council of the Empire. Its principal innovation consists in the
principle of a confrontative procedure from the beginning of the
examination.^

The Grand Duchy of Finland, which is united to Russia^
has a special and autonomous system of laws. Its substantive
law has the same origin as the Swedish substantive law, and the
history of the law of the two countries took the same course down to
the time when the political separation of Finland and Sweden
allowed each of these laws to develop in its ethnical direction.
The present Penal Code of Finland is dated 19th December, 1889.
It went into force on 1st January, 1891.' The criminal procedure
is not codified. It has been the subject of numerous and successive
laws, notably those of 27th April, 1868, 24th February and 3d
March, 1873, etc., which also deal with civil procedure.^

XII. The Balkan Countries. — We group under this head
Bulgaria, Servia, and Roumania.

(a) In Bulgaria, since the time of the Russian occupation, the

p^nale'' (1890-1892). None of these works, which are in Russian, has
been translated into French.

* See Margoline, "Apergu critique du nouveau Code.p^nale russe"
(Paris, 1905), with Garraud's preface.

* These reforms were inspired by the former minister of justice, Mou-
rawi^w, who sought to p^ive all questions concerning the administration of
criminal justice a very hberal and forceful direction. See Kapniiz, *' Docu-
ments relatifs h la revision des Codes d'organisation judiciaire et de pro-
cedure civile et criminelle enterprise par ordre de S. M. Tempereur Alex-
ander III, du 7 AvrU, 1894."

» The Penal Code of Finland has been translated into French by Lvr
dovic Beauchet^ professor in the Faculty of Law of Nancy (Paris 1890).
See the very interesting: appreciations of this system, by Henri Joly, **A
travers TEurope" (Pans, Lecoffre, 1898), In Finland, pp. 5-44. On the
legislation of Finland, a review by K. Montgomery ("Annuaire de legis-
lation etrangSre," vol. 9, 1880, pp. 727-756).

*0n the judicial organization, ** Repertoire general alph. de droit
fran^ais," Finland, t. 22, p. 256.

591

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

different procedures have been the subject of provisional regula-
tion inspired chiefly by the Russian Codes. These regulations
have since been replaced by new laws. The law relative to
criminal procedure alone remained in force. It has been replaced
by the Code of 1897,^ divided into five books, 1st, concerning
jurisdiction; 2d, concerning the preliminary examination; 3d,
concerning the procedure before the departmental tribunals (the
procedure before justices of the peace is regulated by a special law
of 3d June, 1880^) ; 4th, concerning the methods of appealing
against judgments ; 5th, concerning the execution of sentences.
The laws of 17th January, 1900, 26th January, 1901, and 20th
January, 1902, have amended and completed this Code of Criminal
Procedure.^

(6) The Servian Code of Criminal Procedure is dated 16th June,
1865. It is a faithful copy of the Austrian Code of 1853, which
served as its model. The provisional judicial regulations, elab-
orated at the time of the creation of the principality, have been
replaced by new laws, and the Code of 1865 was greatly modified
in 1880.

(c) The Roumanian Code of Criminal Procedure, inspired by
French legislation, was promulgated in 1864. The judicial organ-
ization and the procedure of this country present a very close
analogy to the French judicial organization«and procedure.

XIII. Scandinavia, — This group includes Denmark, Sweden,
and Norway.

(a) The Danish criminal procedure is governed by various
laws, the most important of which go back to 1845.* The public
prosecutor has the initiative in prosecutions. But the Danish
Penal Code of 1866 provides that, for certain offenses the pros-
ecution may be exercised by the injured party and in the forms
of civil procedure, in cases of slander and minor offenses of violence,
for example (§§ 116, 200, 212, 215 to 222, 226, 233). For others
the criminal action is subordinated to the complaint of the party
injured, for example, in cases of adultery, outrages against
morals, petty larceny, etc. (§§ 159, 174, 235, 236, 254, 278).

* Review and analysis in '* Annuaire de legislation ^trang^re " (1898, vol.
27, pp. 809-817).

* A law of 1896 has modified the criminal procedure before justices of
the peace C*Annuaire de legislation etrangfere," 1896, p. 778).

'The analysis will be found in the "BiHletin de 1' Union internationale
de droit p^nal, " vol. 12, p. 108.

* C. Goos, *'Der danske StraflPesproces " (Danish criminal procedure)
(Copenhagen, 1880). C. Goos must also be credited with the most im-
portant work on criminal law which has appeared in Denmark.

592

Title III] PROCEDURE SINCE 1800 IN OTHER COUNTRIES [§ 2

There is no jury. The crimihal and police tribunal of the lowest
grade, regulated, at Copenhagen, by two laws of 28th February,
1845, and 24th May, 1879, is composed of eleven members,
a president and ten judges, irremovable, and appointed by the
king.^ Every case must be tried by five magistrates. The tri-
bunal takes cognizance of all penal matters and tries without asses-
sors or jury, whatever may be the gravity of the offense. But
every sentence imposing a punishment exceeding a fine of
twenty crowns can be carried, by appeal, to the Supreme Court.

(6) Sweden is still governed by the Codes of 1734 (civil, penal,
and commercial) amended by a series of statutes which have
adapted it to existing institutions and conditions.*

(c) The Norwegian Code of Criminal Procedure of 1st July,
1887, came into force 1st January, 1890. Its chief innovation
consists in the introduction of the jury, formerly unknown in
Norway, and the adaptation of the procedure to the new institu-
tion.'

XIV. Turkey and Egypt — The Turkish Code of Criminal
Procedure bears date 25th June, 1879. It contains 487 Articles.

Egypt is governed by the Code of 3d November, 1883, amended
in 1899.^ There is little difference between these systems and the
French type which served as their model.

The Soudanese Code of . Criminal Procedure bears date 2d
October, 1899.^

XV. North America. — The United States of North America
are organized as a federal republic. They have two kinds of
systems of law, just as they have two kinds of tribunals: the
federal laws and the special laws of each State. The Constitution
contains the following provision : " The powers not delegated

1 P. Dareste, "Annuaire de l^pslation 6trang6re," vol. 9, p. 660; Beavr
cket, "Etude sur rorganisation judiciaire dano-norv6gienne," **Bull. soc.
legisl. comp.," 1884, vol. 13, p. 128.

* See Grasserie, **Le8 Codes suMois de 1734," followed by the laws sub-
sequently promulgated down to the present day, translated and annotated
(1 vol., 8vo., 1895).

»P. Dareste, "Annuaire de legislation 6trang6re," vol. 17, p. 711.
This Code has been translated into Italian by Brusa, "Codice di procedura

rmale norvegese" (Traduzione, note e ragionamento, Tunn 1900).
refer to that work, which is preceded by a remarkable introduction on
the history of criminal procedure in Norway and the chief features of the
new Code.

* Review by VidaUBey, "Annuaire de legislation 6trang&re," 1884, p.
782. Amendments in 1899, "Annuaire de legislation 6trang6re," 1900,
vol. 29, p. 534. The Turkish Code of Criminal Procedure is translated
into German in the collection of foreign Codes in the supplement to the
"Bulletin de T Union Internationale de droit p^nal," Berlin 1905.

* Review and analysis in " Annuaire de legislation etrang^re," 1900, vol.
29, pp. 572-675.

593

§ 2] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

to the United States by the [Federal] Constitution nor prohibited
by it to the States are reserved for the latter respectively." In
consequence of this provision, the Federal tribunals, the Supreme
Court of the United States, and the Circuit and District Courts,
have an exclusive criminal jurisdiction over certain ofTenses, such
as high treason against the United States, offenses committed
within a Federal territory, etc., and a concurrent jurisdiction with
the court of the State where the criminal act was committed over
certain offenses, such as counterfeiting and uttering.

The law of the United States is derived from the English
system of law, from which it has borrowed its common law and its
ancient statutes, so that it was for along time exclusively composed,
as in England, of customary provisions perfected and modified by
special statutes. For several years past a movement in the direc-
tion of codification has set in in the majority of the States, and
now many of them possess either Codes relating to a special branch
of law or Codes comprising several matters in juxtaposition. In this
way the criminal procedure has been notably codified in the State
of New York.^ Its Code of 1881, which reproduces sufficiently
closely the average of the American institutions, may be taken as
a type of the system of criminal procedure in that country. In
this respect, the laws of the United States show the following varia-
tions from those of England: 1st, There is a public prosecutor
charged with the prosecution of crimes and misdemeanors in all
the States of the Union and in Federal jurisdictions.^ Before the
inferior courts (those not of record) alone is his action optional.
2d, The composition of the grand and the p)etit jury differs in the
two countries, being more democratic in the United States. In
the majority of the States the names of the jurors are drawn by lot
from a list drawn up by a commission of functionaries and magis-
trates. In England it is still the sheriff who is charged with choos-
ing the jury of session from a list of persons imiting certain con-

* **Code de procedure criminelle de TEtat de New- York," translated by
Andri Fournier (Larosse, 1893).

2 It is only in this respect that French influence makes itself felt in the
criminal legislation of the United States. The insecurity and impunity
which, in a new country, and one constituted of different ethnical elements,
wouTd have been the conse(^uence of the English svstem of prosecution,
which leaves repression to pnvate initiative, have led the Amencan people,
since the end of the 1700 s, to intrust to a special functionary the care of
prosecuting and of insuring repression. But the attributes relative to the
judicial police and to the execution of the judicial decisions have remained
foreign to the province of the American public prosecutor. Fournier (op.
cit. p. 9) observes that the imitation was made by taking as a model the
office of public prosecutor as it was constituted in the courts of the French
Old Regime.

594

Title III] PROCEDURE SINCE 1800 IN OTHER COUNTRIES [§ 2

ditions of income, domicile, and capacity, made up by the parish
churchwardens and the administrators of the poor law. 3d,
The procedure is less formal in the United States than in England.
Technical errors in the procedure are inunaterial unless they im-
pair the material rights of the defense. A solenm affirmation may
be substituted for the oath.

But, apart from these differences, and if we consider the criminal
procedure of the United States as a whole, it is the accusatory
English system of which this procedure reproduces the type:
First, In the preliminary examination, public and confrontative,
the accused has the right to the aid of a counsel and need not
submit to interrogation ; Second, Detention pending trial, reduced
to the minimum of severity and duration, cannot be aggravated by
the prohibition of communication; Third, The arraignment is
directed by a special jury ; Fourth, Every person prosecuted in a
penal matter has the right, unless he waives it, of trial by jury ;
Fifth, Witnesses are examined by each party, and the impartiality
of the judge is assured by his neutral r61e during the furnishing of
the proof ; and Sixth, Numerous safeguards are given to the ac-
cused, — by the unanimity required to find, a verdict of guilty,
by prohibiting the character of the accused to be used as evidence
against him, by the delay which must take place between the
verdict and the sentence, and by the delays in and the nature of
the methods of appeal.

XVI. Laiin America, — The States of Latin America present,
in their laws of criminal procedure, numerous varieties, but the
points of comparison between them are connected with what these
laws derive from the Spanish legal system.

A Penal Code and a Code of Criminal Procedure were promul-
gated in Venezuela, 14th May, 1897, and came into force 20th
February, 1898.^ The legislative power of the different States
and that of the federal district are authorized to adopt the institu-
tion of the jury, which is to perform its functions conformably to
rules established by the Code of Criminal Procedure.

The Code of Criminal Procedure of Mexico was promulgated on
6th July, 1894.* This Code has not modified the procedure;
in that part of it relative to the organization and action of the
jury it reproduces the law of 24th January, 1891 (Ley de Jurados).

In Bolivia, the existing Code is dated 6th August, 1888. It is

> Review and analysis in " Annuaire de l^slation ^trangdre/* 1898, vol.
27, pp. 963-966.

' '^Annuaire de legislation 6trangdre/' 1895, vol. 24, pp. 946, 947.

595

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

really but a revision of the Code of 8th February, 1858. This
system reproduces the general outlines of the Spanish system,
from which it has borrowed its principal rules.^

The Code of Criminal Procedure of the Argentine Republic,
adopted 4th October, 1888, came into force 1st January, 1889.*

The Cd3e of Ecuador is dated 9th September, 1890.*

§ S^^^Chief Features of Prosecution, Examination, and Trial under
the Prinbipal European Systems. — The three chief problems raised
by criminal procedure concern the organization and the working
either of the accusation, the examination, or the triaL How have
these problems been solved by European legal systems?

I. Conformably to the old Germanic saying, " No accuser, no
judge," * criminal tribunals are to-day called upon to try only
offenses which are submitted to them. In France, " action for the
enforcement of punishments belongs only to those functionaries
to whom it is committed by law, '' that is to say, to the public
prosecutor (Code Instr. Cr., Art. 1). But the authority of the
public prosecutor is limited by the right recognized in the injured
parties to go either before the tribunals or the examining
magistrate.

This is the system which is almost everywhere recognized among
European systems of law. The institution of the public prosecu-
tor, the origin of which is essentially French, has penetrated ever>'-
where. It exists, with inevitable organic differences, in the
majority of the nations. Three systems may, however, be taken
as typical studies, with respect to the r61e which they reserve for
the private parties.

In the German Code, the accusation is, on principle, intrusted
to the public prosecutor. But the injured party has no right of
action, even in regard to his civil interests, before the criminal
courts. He must seek reparation before the civil tribunals for
the detriment occasioned to him. There are, however, two prin-
ciples which tend to limit and show the reason for this peculiar
characteristic of the Germanic procedure. The German Code
contains a great number of infringements as to which the law
leaves the initiative to the injured party or to his legal represen-
tatives, according to the opportunity for prosecution, the public

* See the succinct analysis made by H, Prudhomtne, in "Bulletin de
rUnion intemationale de droit i)^nal, vol. 12, pp. 148-152.

' See Daireauz et Theurault, ** Annuaire de legislation ^trangdre," 1888,
p. 1042.

• HenH Prudhomme, "Ann. de l^gis., etc.," 1890, p. 973.
^ "Wo kein Klager ist, ist kein Richter."

596

Title III] PROCEDURE SINCE 1800 IN OTHER COUNTRIES [§ 3

prosecutor having no right to act except in so far as his interven-
tion has been requested by the victim. The injured party can also
join his action with the criminal action when the law gives him the
right to demand a composition (Basse). This composition or
compensation is a pecuniary reparation of a special nature differing
from both damages and fine ; from damages, inasmuch as it is not
commensurate with the injury, and can only be demanded from
the guilty party in connection with the punishment and within the
limits of a maximum fixed by the law ; from fine, inasmuch as it
does not belong to the Treasury, but to the injured party, and can-
not, in case of non-payment, be converted into imprisonment.

In Austria, although the public prosecutor is the principal repre-
sentative of the prosecution, he is not the exclusive representative.
Two principles limit his power. The prosecution may be main-
tained by the injured person in a great number of cases (Art. 16 et
seq,). Further, the Code of 1873 admits of the private subsidiary
prosecution, that is to say, in case of the abandonment of the
criminal action by the public prosecutor, the right in the injured
party to take it up in place of the public prosecutor and move for
the application of the punishment (Art. 48). Finally, the public
prosecutor or the private accuser is master of his action in the
double sense that he can directly avail himself of the trial
court without reference to a magistrate of examination at all
(Art. 207), and that, after having done so, he can abandon his
accusation and divest the judge. These are the characteristic
features of the Austrian procedure in respect of ^e participation
of private individuals in the criminal accusation. '

In Spain, the public prosecutors, or fiscals, " representantes del
ministerio fiscale," have other powers than those in France in
regard to the bringing of the criminal action. But, on one hand,
the Spanish Code allows the private accusation for certain mis-
demeanors, such as calumny, insult, and certain offenses against
morals, and directs the public prosecutor to join with the injured
party. On the other hand, apart from these exceptions, the action
aiming at the repression of punishable acts is free to all; any
citizen in the enjoyment of the plenitude of civil rights may
bring it. Society does not remain supine in the face of the
habitual inertia of mere interested parties. Its representative,
the public prosecutor, or fiscal, is free to institute prosecutions
whenever it appears to him to be proper to do so. The Spanish
practitioners whom we have been able to consult declare that it
is, in fact, always the fiscal who prosecutes.

597

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part HI

The institution of the public prosecutor was historically lack-
ing in England. ** When an offense has been committed, no
official can assume the right to take into his hands the interests
of menaced society. But .every private person, injured or not,
has the right to prosecute. Nobody can be restrained from
constituting himself accuser, save with rare exceptions, and, on
their side, the magistrates cannot prosecute unless a formal
accusation has been dra^vn up." ^ Until very recent times the
attempts to constitute a public prosecutor in England have failed,
and the attorney-general and his assistant, the solicitor-general,
had no function in criminal justice.

[^The director of public prosecutions is an official appointed
by the government, whose duty it is, under the superintendence
of the attorney-general, to institute or carry on criminal proceed-
ing in cases which appear to him to be of importance or advise
persons concerned in such proceedings; and to appear for the
Crown in criminal appeals.

The office of director of public prosecutions was created by
the "Prosecution of Offenses Act," October, 1879, which defines
his duties and powers as follows: "It shall be the duty of the
director of public prosecutions, under the superintendence of the
attorney-general, to institute, undertake or carry on such criminal
proceedings (whether in the Court for Crown Cases Reserved,
before sessions of oyer and terminer or of the Peace, before
magistrates, or otherwise), and to give such advice and assistance
to chief officers of police, clerks to justices, and other persons,
whether officers or not, concerned in any criminal proceeding re-
specting the conduct of that proceeding, as may be for the time
being prescribed by regulations under this act or may be directed
in a special case by the attorney-general."

In certain cases it is the settled duty of the director of
public prosecutions to institute and carry on the prosecution:
(l) Murder. — By the regulations of January 25, 1886, made
Under the Prosecution of Offenses Acts, 1879 and 1884, it is the
duty of the director of public prosecutions to prosecute in cases of
murder. (2) Bankruptcy Offenses. — By 46 & 47 Vict., c. 52,
s. 166, "Where the court orders the prosecution of any one for
an offense under the Debtors Act, 1869, or Acts amending it, or
for any offense arising out of or connected with any bankruptcy

' Glasaon, op, ciL, t. 6, p. 724.

* [From the report of Edwin R, Keedy and John D. Lawson, published in
the American Journal of Criminal Law and Criminology, 1910, Vol. I, p.
607. — Ed.]

598

Title III] PROCEDURE SINCE 1800 IN OTHER COUNTRIES [§ 3

proceedings, it shall be the duty of the director of public prose-
cutions to institute and carry on the prosecution." (3) Corrupt
and Illegal Practices. — By 46 & 47 Vict., c. 51, s. 45, it is the
duty of the director of public prosecutions to institute any
prosecution for any corrupt or illegal practice in reference to any
election.

The consent of the director of public prosecutions is
required in prosecutions for incest, and for being an habitual
criminal; and the Criminal Appeal Act requires him to
appear for the Crown on appeals to the Court of Criminal
Appeal.]

The types of the public prosecutor which exist in Scotland
and Ireland offer certain analogies to the French organization.
Scotland has for a long time possessed an of&cial prosecution
so strongly constituted that the private accusation is a thing of the
past.* Ireland has an attorney-general, assisted by crown
solicitors, whose functions are permanent.

The majority of the United States of America have a public
prosecution represented by an attorney-general and official district
attomeye, who remain members of the bar.

II/The majority of the European States find a place in their
systems of laws for the preliminary examination.

This procedure has its origin in the idea that it is necessary to
submit to the trial tribunals only those accusations sound in
fact and in law, and to guarantee the individual liberty of the
accused by raising a barrier against prosecution. Introduced by the
French Code of 1808, this procedure has made remarkable progress
in penal legislation. It has passed into the majority of the Codes
of Continental Europe, and for more than half a century has been
considered a triumph of juridical wisdom. For several years a
very strong scientific current appears to have set against it. On
the one hand, the objection is raised to the obligator}^ and absolute
principle of control of the accusation by the judicial power, and
the practical impossibility for the magistrates to make a conscien-
tious study of the record. On the other hand, it is maintained

■

' On this org:anization see J, Dove Wilson, "Bulletin de TUnion inter-
nationale de droit p^nal," t. 11, pp. 71-73 : "The prosecution of crimes in
Scotland belongs to the public prosecutor and is made at the State's ex-
pense. When the i)ublic prosecutor takes up the matter, the complainant
has no right to bring a complaint in a criminal coiu-t. If the public
prosecutor should refuse to interfere, the complainant has the right to prose-
cute. It is very seldom, however, that a complainant exercises this right,
and, in the course of a long experience, I have never seen it exercised suc-
cessfully."

599

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Part III

that the prosecution is impeded and that the responsibilities are
scattered, without any tangible benefit to the accused.^

In France, the examination is obligatory in criminal matters,
and optional in correctional matters; it has no place in police
offenses. This distinction between the small and the great degrees
of criminality is generally accepted, with differences of detail
in its application. In Germany, for example, matters within
the jurisdiction of the lay assessors' courts are not subject to any
preliminary examination. The procedure of preliminary^ exami-
nation is, on the other hand, obligatorj'^ when prosecutions before
the Assize Court or the tribunal of the empire are concerned. In
the matter of infringements amenable to the district courts, an
information can be filed when the public prosecutor makes a
request for it or when the accused demands a judicial inquiry' in
the interest of the defense. The court may also, contrary' to the
rule in France, order the filing of an information (Art. 200).
In Austria, the preliminary examination is not obligatory unless
a crime of which the Assize Court should take cognizance is con-
cerned (Art. 91).

The majority of the Codes distinguish and endeavor to separate
the preliminary inquiry conducted by the police, from the exami-
nation, properly so called, confided to the court. In all the coun-
tries of the European continent, the latter function is in the hands
of a judge, a member of the court of first instance. The
examining judge is invested with the most extensive powers to
hear the witnesses, to interrogate the accused, to make inspec-
tions on the spot, to order domiciliary searches and seizures,
to proceed with the arrest of the accused and to put him in the
hands of the law. But by what appropriate institutions is the
exercise of these formidable powers, which it is essential to give to
the examining judge and to the public prosecutor at this stage of
the procedure, to be limited and controlled ? It might be thought
at the outset, by the safeguard offered by the publicity of the exami-
nation. None of the Continental Codes sanctions this/^The Aus-

* The development of these criticisms may be studied in the following
works: Romagnosi, **Progetto del codice ai procedura penale pel ces-
sato regno d*Italia," 4th ed., 1838; *'Ultime aggiunte e riforme al pro-
getto," p. 251. — Glaser, "Ueber besetzung in ^klagestand" in "Kleine
Schriften uber Strafrecht und Strafprozess," 2d ed., 1883, XVII, pp.
437-520. — Bar, **Recht und Beweis m Geschwomengericht," p. 152. —
Carrara, "Opuscoli," t. 6, p. 440. — Casorati, "II processo penale e le
riforme," 1881, VII; "II giudizio di accusa e le riforme," 1881, VII.—
Cesarini, Ri\ista penale, 1879, p. 300. — Manducca e Vacca, "La pro-
cedura penale e la sua evoluzione scientifica," 1888, p. 23. — Alimenay
Rivista penale, vol. 37, 1893, p. 125.

600

Title III] PROCEDURE SINCE 1800 IN OTHER COUNTRIES [§ 3

trian Code mentions only the publicity of the trial proper (Art.
228). The secrecy of the examination has been preserved in Ger-
many. The Codes of Friburg and of Valais declare, in categorical
terms, that the records of the examination shall not be public.
In Geneva, the draft of the Code of Criminal Examination, pre-
sented in 1884, introduced complete publicity into the procedure
of examination. But this proposal was rejected. In Nquchfitel,
the Code of 1893 left to the examining judge the option between
publicity and the closed door, giving him the choice, in every
case, of the method most favorable for the discovery of the
truth.

c:^ The most efiFectual method of protecting the accused from the
abuses of this examination is to grant him the aid of a counsel
capable of enlightening him as to his rights, of putting him on his
guard against the snares which may be laid for him, and of suggest-
ing to him the course to take and the pleas to urge. The French
Law of 8th December, 1897, effected, from this point of view, a
long-demanded reform; it effected it by measures which place
the French system of law in the vanguard of progressive legis-
lation. But we must note that in Austria, since 1873, the accused
has been authorized, even during the examination, to choose a
counsel " either to take care of the preservation of his rights at
each stage of the proceedings which directly concerns the establish-
ment of the fact and which cannot be taken up later, or to pursue
his appeal already lodged by him" (Art. 45). The counsel can-
not, it is true, take part in the interrogation of the accused, nor
in the hearing of the witnesses, but the law expressly gives him the
right to the inspection of documents (Art. 45).

The German Code authorizes the accused to have the assistance
of a coimsel from the filing of the information (Art. 137) ; it
even allows the judge to appoint one of his own accord when the
accused has neglected to choose one himself (Art. 142). At the
same time, this counsel has only a very barren role. He can
take part neither in the interrogation of the accused (Art. 190)
nor in the hearing of the witnesses (Art. 191). His rights consist
in the power to assist, either alone or with the accused, in some
subsequent steps of the proceedings. The complete record cannot
be shown to him unless the judge deems that its production is
without inconvenience in regard to the purpose intended to be
reached (Art. 147). > In Switzerland, the Codes are divided. Those
of Friburg and Valais refuse a counsel to the accused as long as
the examination lasts. The codes of Vaud, Neuchfitel, and

601

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

Geneva allow a defense more or less completely during the
examination. In Russia, the preliminary examination, in its
chief features, reproduces the French procedure, as that existed
before the Law of 9th December, 1897. The examining judge
must make the inquiry, whether he has been apprized by the
police, or by a complaint of the victim, or by' a requisition of the
public prosecutor. The procedure of this examination is secret.
Assistance in the defense is not allowed. The plan of reform of
the Russian statute of Criminal Examination of 1864 as regards
confrontation is allied with the system of the Austrian Code of
1873 and not with that of the French Law of 1897.

A last counterbalance to excessive powers of the examining
Ttidge consists in the establishment of tribunals of examination
distinct from and independent of the judge, and charged either
with supervising the acts of examination or with weighing the
results of it. Three chief systems exist and find expression
in present-day systems of law. The first is independence and
autonomy of the examining judge, both in the course of the
examination and at its close. That is the system of examination,
of the indictment by the same judge who has conducted it.
The second is independence of the judge in the course of the exami-
nation, but reviews of the indictment by a special tribunal.
That is the system followed in all the Swiss Codes of the French-
speaking cantons. The third is control of the judge both in
the course of the examination and the completion of the proceed-
ings by an independent tribunal. That is the system of the
German and Austrian Codes.

But this last system, under the scientific influence of Glaser,
contains, in this respect, a measure which appears to reconcile
happily the different interests which conflict in the examination.
It discards the proceeding, obligatory among almost all the Conti-
nental nations, of sanctioning the indictment bench court. This
function is assigned, as the rule, to the public prosecutor; the
approval of the indictment by a department of the Court of
Appeal does not exist, except in case of objection by the accused
to the indictment of the public prosecutor. A consequence of this
new feature is the disappearance of the defects of the French type
often pointed out. The court is reinstated in its natural judicial
r61e, which consists in being arbiter in a dispute between the
accuser and the accused?> This new system has been adopted
by the Hungarian Code 6f Procedure of 1896, and by the Tessin
Code of 1865.

602

Title III] PROCEDUBE SINCE 1800 IN OTHER COUNTRIES [§ 3

The English procedure is entirely different from that of the Con-
tinent. In England there is no examining judge, and no secrecy.
The police before the courts are in the same position as any party
complainant ; they are put upon the same footing as private indi-
viduals. Every individual arrested must be taken before the
magistrate, who, as an impartial arbiter between the prosecution
and the defense, inquires into nothing by himself. In order to
understand the method of conducting the action, it is necessary to
distinguish summary from indictable causes. The former are
remitted directly, without other examination than that made by the
complainant, to courts of petty session, or in certain towns, to
police courts, and tried at one sitting, without preliminary exami-
nation. The latter, the indictable causes, so called because they
cannot be tried except on information (indictment), are taken
indiiferently before the courts of petty session or the police courts,
which play the part of magistrate of examination. These courts
hear the witnesses, interrogate the accused, and collect the facts.
All this is done publicly, after hearing of parties. The records of
the proceedings are written out by the clerks of the courts, signed
by the witnesses, and sent, with the indictment, to the Court of
Assizes.^

There is not at the present day any examining magistrate in
Scotland.^ The mechanism for criminal prosecutions consists of
the public prosecutor and the criminal courts. There are in the
Scottish counties several functionaries known as " procurators
fiscal," who are really king's procurators. The public prosecutors
attached to the various courts are almost invariably solicitors;
some of them are advocates. With the exception of the chief,
the Lord Advocate, and his staff, who must resign their offices
with every political change, the king's procurators are irremovable
and hold office "ad vitam aut culpam." To the public prosecutor
belongs the duty of collecting the evidence, and the practice is
invariably to make this examination as much for the defense as

' Upon all these points, see Gldsaon, op, cU.^ t. 6, p. 754 ; MiUermaier,
op, cil,, pp. 81-109 ; GuArin, '* Etude snr la. proo^dure oriminelle en Angle-
terre et en Ecosse/' 1890. The interesting particulars furnished on
the subject of the English procedure of examination by Sir Howard
Vincent (at one time chief of criminal police in London and author of
"The Police Code," now in its twelfth edition) to the Congress of the
International Union of St. Petersburg (Bull, de TUn., 1903, pp. 176-182
and 204) may be referred to. [And see the report of Edtoin R. Keedy and
John D. Lawaon, above cited 589. — Ed.]

' [On this see the report of Edwin R. Keedy, above cited. There is at least
a private official examination corresponding to the French system in prin-
ciple.— Ed.]

603

§ 3] PROCEDURE SINCE THE FRENCH REVOLUTION [Pabt III

for the prosecution. The Lord Advocate decides, upon the papers
which are transmitted to him by the public prosecutor, upon the
propriety of prosecution, and determines at the same time, accord-
ing to the maximum punishment which he considers should be in-
flicted, whether the case should be taken before the Supreme Court,
or before the sheriff or a jury, or whether it should be tried sum-
marily. There is no appeal possible against the decision of the
Lord Advocate in any case, either for or against the prosecution.
The only recourse admitted is political, before Parliament.

III. The trend of the trial procedure, in the various European
countries, is shown rather by common characteristics than by
essential differences. Evolution occurs everywhere in the follow-
ing directions. First, The separation, into several groups, of courts
and procedures, corresponding to the different groups of offenses ;
but equality of all persons accused before the penal law and pro-
cedure. Second, The introduction and development of the jury
summoned to sit beside or with the professional magistrates.
The jury exists in nearly everj'^ country of Europe and America.
There may be mentioned, as exceptions, the Netherlands, where
even felonies are tried by provincial courts composed of magis-
trates who have not taken part in the examination, and the
Scandinavian countries, which are opposed to the institution of the
jur>\^ Third, Publicity, confrontation, oral testimony. In every
country, in Germany, England, Austria, Belgium, Portugal, etc.,
the trials are public or else are void. The rule universally
followed is that the witnesses shall testify orally. Finally, The
trial is conf rontative ; the accuser and the accused must be
placed on an equal footing; the aid of a defending counsel is
universally provided for.

IV. In minor cases, and notably in cases of trivial misde-
meanors or contraventions, the general tendency Is to simplify
the procedure in order to make repression more expeditious and
less costly.^ The different methods of simplification adopted by
existing legislation are divided into the three following systems :
First, Summary procedure by immediate appearance; Second,

^ In Denmark, except in Copenhagen, it is only when the pronounce-
ment of the capital sentence is involved that the judge must be assisted
by four jurors having a deliberative voice. Beauchei^ "Bull, de la Soc.
de l^gisl. comp./' vol. 13, p. 133. In Norway the Code of Penal Pro-
cedure of 1st July, 1887, introduced the jury for the first time. In Sweden
the jury exists for press offenses only.

' See, on this point, TcheglovitoVy " La procedure en matidre de contra-
ventions" ("Bull, de rUn. mter. de droit p^nal," vol. 10, 1902, p. 352-
365).

604

Title III] PROCEDURE SINCE 1800 IN OTHER COUNTRIES [§ 3

The release of the criminal action by the voluntary payment of
the fine with which the delinquent is threatened; Third, Penal
orders without judicial procedure.

(1) The first system relies upon a procedure which is distin-
guished from the ordinary procedure only by its rapidity; the
accused appears without citation, on mere notice, or even by
being immediately brought to the bar of the tribunal. The
French law knows and practises two institutions which have this
character and this aim of simplification ; — the procedure of cap-
ture in the act and the appearance before the police tribunal on
mere notice.

The two other methods dispense with all prosecution before
the tribunals, in default of any objection in case the accused fails
to file exception to the decision.

(2) Voluntary payment of the fine is not recognized in French
law, except in the matter of fiscal torts, indirect taxes, customs
duties, etc., in which the legal fine may be modified by the depart-
ment interested, which has the right to compromise before judg-
ment. The Penal Code of the Netheriands contains a provision,
Article 74, sanctioning the abandonment of the criminal action
on payment by the accused of the maximum fine which he would
have incurred on account of the incriminating act. All judicial
procedure becomes practically useless in this case, since the
guilty party submits to the full rigor of the law. But this system
would not be practicable were it not permissible for the public
prosecutor or the judge to compromise, before every judgment,
by making the prisoner who confesses his guilt pay a sum regu-
lated according to the circumstances of the case.

(3) On this conception depends also an institution which has no
analogy in the French legislation, that of penal orders (**Mandats-
verfahren"), by which the judge convicts the accused without
hearing him and without prior proceedings. This summary
method has been borrowed by the Austrian Code of 1873 from
the old Codes of several German States. By the terms of § 460
of the Code of 1873, when an information has been filed against
an accused who is at liberty charging an offense punishable by im-
prisonment for a month at most, or merely by a fine, the judge
may, if he finds that there is no cause for an imprisonment of more
than three days or for a penalty exceeding fifteen florins, pronounce,
by a penal order (" Strafverfugung *'), the penalty incurred, on
the petition of the public prosecutor, without prior proceedings.
A right of objection to the order of the judge is reserved to the

605

§ 3] f ROCEDURB SINCE THE FRENCH REVOLUTION [Pabt III

convicted person if he on his part prefers that the forms and guar-
antees of the ordinary procedure be observed. This system has
been generalized in Germany, by the Code of the Empire of 1877,
§ 447 of which reads as follows : " In matters which are within the
cognizance of the aldermanic courts, the judge of the 'amt*
may, without preliminary trial, and when the public prosecutor
shall request it in writing, pronounce a judgment by a written
penal order. No other punishment may be inflicted by penal
order than the maximum fine of one hundred and fifty marks, the
deprivation of liberty for not more than six weeks, and, in a
proper case, confiscation." The right of objection to the penal
order is regulated by §§ 449 to 452.

The system of penal orders is in operation in several cantons of
Switzerland, among others, in those of Soleure (Code of Criminal
Procedure of 1866, Art. 388) and of Glarus (Code of Criminal
Procedure of 1899, Arts. 171 to 186). It has been adopted by the
Hungarian Code of 1896 (Arts. 532 to 535), and by the Norwegian
Code of 1887 (Arts. 287 tg 290). In Norway penal orders are
issued by the public prosecutor. There is a question of the in-
troduction of the system of penal orders into Italy, Russia,
and Denmark. This procedure, the chief advantage of which
is to allow the accused to avoid public trial, is much esteemed
in the countries in which it is in practice. Provided the privilege
of recourse to the ordinary procedure is reserved to the convicted
person, this system would not appear to be out of harmony
with the fundamental principles of criminal procedure.

606

APPENDICES

607

THE SCIENTIFIC LTTERATUBB

[§2

APPENDIX A^

THE SCIENTIFIC LITERATURE OP CRIMINAL PROCEDURE

§ 1. Two Eras in the literary
History of the Science of
Criminal Procedure, before
and after the Code of Crim-
inal Examination of 1808.

§2. Writers of the First Period,

prior to the Code. Glossators,
Practitioners, Forerunners.
§ 3. Writers of the Second Period,
subsequent to the Code.
Italian, French, and German
Writers.

§ 1. Two Eras in the Literary History of the Science of Criminal
Procedure, before and after the Code of Criminal Examination
of 1808. — Two exteirsive eras in the historj'^ of the scientific
literature of criminal procedure are easily distinguishable. The
first ends and the second begins with the promulgation of the
French Code of Criminal Examination. Its appearance in France
and the spread of its influence throughout Europe mark a decisive
date.

Criminal law has really been scientifically studied only since
the beginning of the 1700 s. Before that time the right of
society to punish appeared to be so evident that the search for
the grounds of the right and the reasonable regulation of its exer-
cise were not thought of. The sources utilized for criminal law as
well as for criminal procedure prior to the French Revolution
were customary law, Roman law, Canon law, and the royal Or-
dinances. All these sources became blended in the teaching
of the criminalists, and the result gf their fusion, constituting
scientific criminal law, made possible and paved the way for the
work of codification.

§ 2. The Writers of the First period, prior to the Code. Glossa-
tors, Practitioners, and Forerunners. — The writers of the first
period may be classed chronologically in three categories: the
Glossators, the Practitioners, and the Forerunners.

I. The first Glossators, who studied criminal law as a branch of
civil law, contented themselves with applying to the portions of
Justinian relative to criminal matters, — Books 47 and 48 of the

* [Appendix A « §X of Professor Garraud's "French Criminal Proced-
ure." For this author and work, see the Editorial Preface. — Ed.1

609

§ 2] APPENDIX A

Pandects and Book 9 of his Code, — the methods of interpre-
tation which have earned for them the name of Glossators. After
a short gloss or commentary on the text, more or less correctly com-
prehended, they coordinated it with the edicts of the kings, the
local customary laws, and the rules of judicial practice. These
fragmentary studies produced some results, the credit for which
is traceable to the Roman laws. Their labors produced some
fortunate mistakes, by which the progress of juridical science
profited.

It is sufficient to mention, among the Glossators, Placentinus,^
Azo,2 RoFREDUS,' and Accursius.* Rofredus is probably the
one among the Romanists whose influence was the most decisive
on the evolution of criminal procedure. In his " Libelli de jure
pontifico " he shows that the method of inquisitorial procedure
was derived from the Roman law and that Innocent III had but
regulated its form. These doctrinary assertions helped, at a time
when the revived Roman law aroused a widespread enthusiasm,
to bring about the adoption of the inquisitorial procedure by the
secular courts. Among the canonists of the 1100 s who treated
of criminal law, it is enough to mention Tancredus,* and
WiLHELMUS DuRANDUS,* whose " Spcculum juris," written about
1271, was a recognized authority among' the ecclesiastical
and secular tribunals. It is from this work, his chief title
to the extraordinary reputation which he enjoyed at that
period, that Wilhelmus Durandus acquired his surname of
''Speculator."

II. In the latter half of the 1200 s the study of criminal law
begins to assume its due importance. Criminal law becomes a
branch distinct from civil law; then a generation of jurists
arise who collect, under the titles of "Praxis," "Practica,**
" Libellus," and " Sunmia, " the customary laws and write man-
uals of practice in which the criminal law and the procedure are
seldom separated. The oldest collection exclusively devoted to

^ Plaoentinus came from Italy to be professor at Montpellier, where
he died in 1492.

*Azo, who died not later than about 1230, taught at Bologna, and
afterwards at Montpellier.

* Rofredus died in 1242.

^ Acciursius, professor at Bologna, died in that town in 1260. He is
the author of the Glossa ordinaria of all the law of Justinian.

* Tancredus of Bologna wrote several works at the beginning of the
1200 s. Chief of these is a work on canonical proc^edure which was
translated, after the 1200 s, into French and German, the *'Ordo judi*
ciarius."

* Died at Rome in 1296.

610

THE SCIENTIFIC LITERATURE [§ 2

this branch of criminal practice is the " Libellus de maleficiis "
of Albertus de Gandino.^

It was in Italy, which remained the classic land of criminal law,
that this particular literature had its birth and development.
Very soon its influence spread throughout Spain, France, Ger-
many, and the Netherlands. Down to the latter half of the 1500 s
the manuals of Albertus de Gandino, of Jacobus de Belvisio,^
of Angelus Aretinus,' and of Hippolytus de Marsiuis * were
authoritative before the tribunals of all these countries.

PfflUPPE DE Beaumanoir,^ of whom Loysel said, " He it was
who broke the ice and opened the way," represents the secular
science in the 1200 s. First of all the jurists, he draws an outline
of the whole of the civil and customary law. Beaumanoir gives
few explanations of the criminal procedure, because, at the period
when he wrote, this procedure did not differ essentially from the
civil procedure. The same tribunals and the same judges pro-
nounced in all litigations, and as the penal law was not well settled,
they had an almost arbitrary power, not only to vary the punish-
ment, but also to adapt the forms of the procedure to circumstances.
The only customs regulated with any certainty were the two
confrontative procedures, — the judicial combat and the in-
quisition, — the first of which represented the old ways and was
on the decline, while the other expressed the new ideas and
ways. At that period of transition, the work of Beaumanoir
is valuable in making us acquainted with the institutions of the
time.

The works of the criminalists of the end of the 1500 s felt the
beneficial influence of the Renaissance. The art of explaining
ideas and coordinating them in their natural order was almost
unknown until that time. The authors presented their thoughts
as these offered themselves to their minds, without method or
logical sequence. Starting with the end of the 1500 s, it is no
longer mere collections of usages and manuals of legal practice

^ This treatise, printed for the first time at Venice, in 1491, was after-
wards added to the "Traotatus maleficiorum " of Aretinus. It appears
to have been written about 1262.

'This jurisconsult, born 1270, died 1355, is the author of a "Practica
judioiaria in materiis oriminalibus," printed at Lyons in 1515.

* Author of '*De Maleficiis tractatus," printed at Lyons in 1551.
Neither the date of his birth nor that of his death is exactly known. He
lived in the first half of the 1400 s.

^Author of the " Praotica causarum criminallum," bom 1450, died 1529.

• "Les Coutumes du Beauvoisis," by Philippe de Beaumanoir, French
jurisconsult of the 1200 s (new edition published by Count Beugnot, 2
vols. 8^, Paris, Renouard, 18^). Beugnot's preface (cxxxi pages) is
still of interest.

611

§ 2] APPENDDC A

which see the light of day, but scientific treatises, that is to say,
systematic essays on the sources. Among the Italian juriscon-
sults, who were the true founders of scientific criminal law, must
be mentioned especially two names: that of Julius Clarus,^
who was the most noted criminalist of his age, and that of Fari-
NACius,^ whose scientific reputation has probably been exaggerated,
but whose influence upon the direction of the procedure was only
too real and too decisive.

The first treatise on criminal law published outside of Italy
was written by a Belgian practitioner, Jodocus Damhouder. His
" Praxis rerum criminalium," ' the most important part of which
is devoted to procedure, served as a guide for a long time to the
practice of the tribunals in the Netherlands and in Germany.

But in the 1600 s, the authority of a German, Benedict
Carpzov, supersedes and effaces that of Damhouder, Farinacius,
and pven of Julius Clarus. His " Practica nova imperialis Sax-
onica rerum criminalium in partes tres divisa," first published at
Wiirtemberg, in 1635, served as a guide to German practice and
legislation for more than a century.

Treatises on criminal law were published from that time during
the 1700 s in constant succession for the methodical exposition of
the procedure ; but their authors did not cease to write them with
an eye to legal practice. They confined themselves to explain-
ing the laws, customs, and usages which governed the punishment
and the forms of procedure, and to synthesizing the law derived
from these sources, without thinking of examining, in a rational
way, the problems which brought the institutions into force, or
criticising the abuses of the inquisitorial procedure.

The criminalists most in vogue in the 1700 s and whose works
may still be consulted with profit are : JoussE * and Muyart de

^ Bom in 1525 at Alexandria, Italy ; died in 1573. We owe to him the
" Sententiarum receptarum," in 5 books, of which the fifth book, the
most important and the largest, is devoted to criminal law. This work
has often been reprinted.

•The "Opera Omnia" of this jurisconsult have often been reprinted.
He was born in 1554 and died in 1613. Farinacius has a heavy, solid in-
tellect. The seven folio volumes in Latin which comprise his works are
rather difficult to read.

' This work wats printed for the first time at Bruges in 1551, but of this
edition no trace remains. Damhouder himself translated it into French
under the title "Pratiques judiciaires 6s causes criminelles" (Anvers 1574,
12mo).

* Jousse, collaborator with and friend of Pothier, his colleague at the
presidial of Orleans, author of the "Traits de la justice oriminelle de
France," 4 vols., 4to, 1671. This work is not very original, but it is very
complete, methodical, and clear. A perusal of the preface well affords
an idea of the mentality of a criminalist of the time of the Revolution.

612

THE SCIENTIFIC LITERATURE [§ 2

VouGiANS ^ in France ; Renazzi and Cremani, in Italy ; and Samuel
Frederic BucHMERin Germany .^ These, magistrates or professors,
were men of peace living in the midst of a stirring age ; preoccu-
pied only with the established legal system, they knew nothing of
the great advance of ideas which was taking place around them ;
they had no presentiment of the revolution which was in preparation.
But their works were necessary ; they were the systematization
of the law in force, and paved the way for the codification which
would have been almost impossible without this preliminary labor.

III. The inquisitorial criminal procedure had already been criti-
cised in the 1500 s and the 1600 s. Some forerunners had pro-
posed its abolition. First must be mentioned Pierre Ayrault,'
who attacks with a sagacious vigor the secrecy of the procedure,*
and who speaks of having read the description of publicity in
criminal actions, made more than one hundred and twenty years
before, that is to say, about 1492, by his maternal grand lincle,
Jean Belin, Lieutenant-General of Anjou, and who cites in testi-
mony of the publicity the last traces of it which were exercised in
France *' at the doors of the churches, castles, markets, and public
places where the seats of the judges still remain." Augustin
Nicolas,*^ the Jesuit Theodore Spee,® in the 1600 s, protest very
courageously and openly against torture.

But, in the latter half of the 1700 s, the reformers submit the an-
cient procedure to critical observation and attempt to extract an
ideal of liberty and to lay down a minimum of claim on the part
of the prosecution.

^Muyart de Vouglans, counsellor to the Grand Council at Paris. He
took psurt in the Parlement Maup^on. His two principal works are
"Lois oriminelles de la France dans leur ordre naturel" and the "In-
stituts au droit criminel." The law in force appeared to him to be the
last word of human reason. He died upon the scaffold.

* I do not speak of Pothier, who has published, among his little treatises,
in which he has with admirable clearness simplified and popularized French
law, a "Traits de la procedure criminelle (reprinted m the Works of
Pothier by Beugnot, in Vol. X, pp. 387-511). Pothier did not criticise the
criminal procedure of his age. We know, however, that when he sat
on the Orleans presidial bench in criminal affairs it was the custom to
avoid putting before him proceedings in which the question might arise.

» Bom 1536, died 21 July, 1601.

* In "L'ordre, formality and instruction judiciaire, dont les Grecs et
les Romains ont us^ ^s accusations publiques." The Lyons edition of
Jean Coffin, 1642, is the best.

* Augustin Nicolas published a brochure entitled "Si la torture est un
moyen stir h verifier les crimes secrets." He was president of the Dijon
Parlement.

* iSp^e published an important work, ** Cautio criminalis contra sagas
liber, '^ Rhurtel 1631, Cologne 1632. Compare A. du Boys, "His-
toire du droit criminel de France, depuis le XVI® siecle jusqu'au XIX'^,"
1874, vol. 2, p. 147 et seq.

613

§ 3] APPENDIX A

France and Italy take the lead in the movement. France has
Voltaire, Servan, and Brissot de Warville ; Italy has Filan-
GiERi, Risi, and chiefly Cesare Beccaria. In that "fiery
pamphlet," ^ the " Traite des d61its et des peines," published in
1764, a notable date in the history of penal law, Beccaria attacks
that monstrosity, torture, demands the abolition of secrecy in the
examination, and proposes that the accused have a counsel. This
programme was so daring that it brought upon its promulgator
persecution in Italy.

§ 3. Writers of the Second Period, subsequent to the Code.
Italian, French, and German Writers. — The later criminalists
of the 1700 s, by their striving, in their works, after some kind of
system, might be ranked among the authors of the second literary
period. But it is really only since the promulgation in France
and the spread through Europe of the influence of the Code of
Criminal Examination of 1808 that a new method of studying
and explaining criminal doctrines begins. This corresponds with
the new legislative method of codification.

In France the first commentator on the Code of Criminal Ex-
amination was Carnot, Councillor in the Court of Cassation.
His treatise, " De Finstruction criminelle," which appeared in
1812,^ contains an independent interpretation, based on reason
alone, of the new Code. Following him, a magistrate, J. M. Le-
Gaverend, published a " Traits de la legislation criminelle en
France,'-' ^ which is something more than a mere commentarj' on
the authorities. It is a systematic and constructive study of
criminal procedure according to the new legislation.

But the greatest work, which in this class of teachings remains to
this day a model, the value of which has in no way been surpassed,
is the "Traite de Tinstruction criminelle " of Faustin Helie. The
first volume of this work was published in 1845 ; the ninth was
completed only in 1860. The second edition, in eight volumes,
appeared in 1866. No other work has had, during the 1800 s,
such an influence as this upon the, judicial practice of the
tribunals and upon the scientific direction of the procedure. Its
authority has extended beyond French frontiers, and wherever

* Lerminier writes very correctly in his "Introduction ^ Thistoire g6-
n^rale du droit " : ** Beccaria made, in the * TraitS des d^lits et des peines '
(Naples 1764). not a scientific book, but a fiery pamphlet which pleased
the righteous effervescence of opinion. It was a petition which Europe
used to present to its sovereigns."

* Published bv Nhve, Court of Cassation, 2 vols., small 4to.

* This work has reached three editions. The last appeared in 1830
(2 vols., 4to), revised and corrected by Duvergier.

614

THE SCIENTIFIC LITERATURE [§ 3

the type of procedure systematized by the Code of Criminal
Examination of 1808 has penetrated, the work of Faustin H6Iie
has been acknowledged as its best commentary. The interests
of the defense and the guarantees of individual liberty have had
no more authoritative and strenuous an interpreter than Faustin
H6Iie. In a biographical notice, written for the sixth edition of
the " Th^orie du Code p6nal," M. Faustin-Adolphe H6Iie declares
that his father " attached no importance to any authority."
He thought " that democracy ought to develop itself freely and
unrestrainedly, without the counterbalance of authority." This
bent of mind is detected at the bottom of Faustin HSIie's chief
doctrines, and these give to his treatise a liberal and individual
character which has not been without influence upon the best
impulses of French criminal procedure.

In the first half of the 1800 s, Italy is chiefly represented by two
criminalists, Carmignani and Nicolini ; the first more of a philos-
opher, with his work, where law and procedure are treated together,
" Teorica delle leggi della sicurezza sociale " : ^ the other, more of
a historian and practitioner, with his " Procedura penale nel
regno dello due Sicilie." Less illustrious, but not without merit,
are Contoli, with his " Considerazioni sul processo e giudizio crimi-
nal," Ademollo, with " II giudizio criminale in Toscana," Ar-
MELLiNi, with his "Corso di procedura penale." Then the Italian
science undergoes an eclipse, and for years presents nothing but some
treatises in the form of exegetic commentaries, some studies, and
some critical works on legislative reform. The formation of Italian
unity begins to give a new impetus to the scientific spirit. Fran-
cisco Carrara, with his **Programma del corsodi diritto penale"
(Sect. Ill, Del giudizio criminale),^ Tolomei, with his treatise
of " Diritto e procedura penale," Pietro Nocno, with the
" Prolegomeni alia filosofia del diritto giudiziario penale e civile,"
Canonico, with the " Del giudizio penale," Enrico Pessina, with
the ** Sommario di lezioni sul procedimento penale italiano,"
Zuppetta, with the " Sommario delle lezioni di ordinamento giudi-
ziario penale e di codice di procedura penale," Pescatore, with
his " Sposizione compendiosa di procedura civile e criminale,"
etc., bring to Italian literature interesting contributions. These
criminalists belong to the school which sees in the procedure the
best guarantee of liberty and which does not consider that the

* Pisa, 1831, 4 vols., 8®. Carmignani, born 1768, died 1847. He was pro-
fessor of criminal law at the University of Pisa.

' Carrara was Carmignani's successor at the University of Pisa.

615

3] APPENDIX A

interests of social defense need suffer by safeguarding the rights
of the individual. The Code of Criminal Procedure of 1865
gave birth to a multitude of treatises, in the form of commentaries,
among which the most complete and the most reputed are those
of Saluto and Borsani e Casorati. We may mention finally, as
an interesting attempt to adapt criminal procedure to the new
times, the "Principii fondamentali di diritto giudiziario penale "^

of PUGUA.

German culture, in the field of procedure, was exercised upon
the " Carolina," which governed a great part of Europe down to
the beginning of the 1800 s. But the German authors culti-
vated much more assiduously the laws and the special Codes
which were promulgated, in the countries of German race,
after that period. We may mention, among the criminalists
whose works were of note at the beginning of the 1800 s, Stubel,*
Henke, Abegg,' Feuerbach, Bauer,^ and, later, Biener, Kost-
UN, MOhl, Planck, Zachariae, Jagemann, Mittermaier, and
Fruhwald.

When the two great States of Germanic race, Austria, in 1873,
and Germany, in 1877, codified and unified their criminal pro-
cedure, this important event of their juridical life made a point
of departure for a period of strenuous scientific life. In Austria
must be mentioned, among the notable works, those of Ullmann,
Mayer, Bar, Mittelbacher, Rule, Riel, Vargha, Glaser, etc.
The last-mentioned criminalist, who was the inspirer of the Austrian
Code of 1873, was commissioned by the elite of German juris-
consults, at whose head was the criminalist. Binding, to collaborate
with DocHOW, ScHWARZE, Geyer, and Meyer on the first edition
of the Encyclopedia of Holtzendorff, and to expound in that
work the German Code of Criminal Procedure of 1877. Other
names should be added to this list. The commentaries and text
books of Lowe, John, Dochow, Geyer, von Liszt, and Ben-
NECKE have become classics in Germany.

1 Milan 1899.

2 "Das criminal verfahren in dem deutschen Gerichten bis im Sachsen''
(Leipzig 1811).

' "Lehrbuch des gem. Criminal-Prozesses " (Konigsberg 1833).
* "Anleitung z. Criminalpraxis'! (Gottingen 1837).

616

THE CONTINENTAL SYSTEM OF EVIDENCE

[§2

APPENDIX B

HISTORY OF THE CONTINENTAL SYSTEM OF EVIDENCE

§ 1. Three Points of View.

§ 2. Historic Evolution of the System
of Evidence. Four Phases.

§ 3. The Two Principal Systems :
Legal Proofs and Moral
Proofs.

§ 4. Origin of the System of Legal
ftoofs.

§5. Four Methods of Proof.
Proof of the Corpus De-
licti ; Proof of Culpability.

§ 6. Testimonial Proof.

I 7. Written Proof.

i 8. Presumptions.

§ 9. Proximate Indications.

§ 10. Remote Indications.

§11. Legal Proofs in Ancient French
Criminal Law. Necessity for
Confession. Interrogations.
Torture.

§ 12. Origin of the System of Con-
vincing Proofs.

§ 13. Convincing Proof really
•*Jury Proof."

§ 14. Disappearance of the Sys-
tem of Legal Proofs.

§ 1. Three Points of View from which Evidence must be con*
Bidered. — Evidence must be considered from three points of
view: —

First, As to its sources (elements of evidence).

Second, As to the method of its research and manifestation
(methods of proof).

Third, As to its demonstrative value (probative force).

§ 2. Historic Eyolution of the System of Evidence. Four
Phases. — Historically, the evolution of the system of evidence
corresponds very closely with that of the system of punishments.
This evolution may be followed through the four phases through
which evidence appears to have passed, the ethnical phase, the
religious phase, the legal phase, and the scientific phase.^

1 [Appendix B = §XLVI of Professor Garraud*s ''French Criminal Pro-
cedure." For this author and work, see the Editorial Preface. — Ed.]

* Ferri especially has pointed out, in the evolution of the probatory
system, the four distinct and characteristic stages almost parallel with
tne successive stages of the penal system : "Sociologie criminelle," trans,
by Terrier, 1905, No. 76, p. 515. See to the same effect, Tarde, "Penal
Philosophy " (trans. Howell, Modem Criminal Science Series, Little, Brown
& Co. 1912), p. 429, and especially p. 484. " In fact," says Tarde, ** there
exists a bond, during each phrase of legal evolution, between the nature of
the proof which * gives their tone ' to the others and the character with
which the penalty has a tendency to clothe itself. I have distinguished
four species of proofs which have been, or are beginning to be, in vogue :
ordeals, torture, the jury, scientific expert testimony. Now to the first of
these corresponds a penalty which is expiatory : so much so that the offer-
ing of a victim to the gods sometimes dispensed with a capital execution.

617

§ 2] APPENDIX B

The ethnical phase, — during which, in the primitive groups,
then in the city itself, a familial criminal law exists side by side
with an interfamilial criminal law. Within the family the right
to punish is founded at one and the same time upon the lawful-
ness of paternal correction, upon the utility of intimidation, and
upon the necessity of social defense From one family to another
and from one group to another the relations of primitive hostility
are felt. There is no culpability for acts of fraud or violence.
Only the individual and his family are exposed to the law of
retaliation.^ In this period evidence is abandoned to " the empiri-
cism of personal impressions." * Capture in the act is the type
of the procedure ; and capture in the act dispenses with the neces-
sity for any proof. The thing is then to establish it or its equiva-
lent.

The religious phase, — during which the sentences are pro-
nounced in the name of the gods. It is to the gods that their ex-
ecution is abandoned in the most serious cases, so much so that the
divinity — "the judgment of God" — is invoked to point out the
perpetrator of a wrong, as it is invoked to punish the delinquent.
The judgment of God, or ordeal, considered the judgment "par
excellent," is a universal institution.* In a certain stage of social
and religious development, the belief exists that the best way
to end a litigation or determine a question of guilt is to expose
at least one of the parties in the cause, sometimes even both.

To the second, that is to torture, corresponds a penalty which is essentially
one of intimidation and which is exemplary: the wheel, quartering, burn-
ing at the stake, tortures which are more horrible than ever. To the third,
that is to proof by means of the popular conscience, by the jury, corre-
sponds a penalty which is mild and pretendedly correctional. Finally, what
is the penalty which is going to correspond to the fourth, to proof by dog-
matized science, that is, to expert testimony? Is it not a penalty, before
every thing sanitary . . .? "

^ See particularly as to what relates to the old Greek customs, Gustave
Glotz, *' Etudes sociales et juridiques sur Tantiquit^ grecque" (Hachette
1906), pp. 3-9.
I ' 2 Ferri, op. et loc, cit,

» See Glotz, o^. cit., **L'Ordalie,*' p. 69-97. "From France to Polynesia,
! from the Scandinavian regions to the confines of Africa, there is probably

I no country in the world where, to prosecute one's right or prove one s

, innocence, one may not submit himself to a mortal test. It may be an

ordeal, by boiling water or by cold water, by fire or by poison. . . . The

idea which is manifested in this formidable and hallowed procedure is

, plainly manifest in a i)reliminary rite : At the supreme moment, those

who call on heaven to intercede, especially he whose body is going to be
put to the test, offer a prajy^er, a direct and formal appeal to divine provi-
dence. Among those societies where the priesthood is the prerogative
of a caste, it is the man of God who comes forward to make the solemn
invocation. Among those having no priesthood caste, it is the culprit who
makes use of an analogous formula." See Kovalevsky, *'Coutume con-
temporaine et loi ancienne," pp. 397, 398.

618

THE CONTINENTAL STSTEM OF EVIDENCE [§ 2

to some very serious danger and thus to compel the divinity to
play the part of justice. " Ordeals," according to Tarde/ " are
to a certain extent the divine-legal expert testimony of the past." *

The legal phase, — where the law itself determines in advance
the different methods of proof, as well as the degree of proof
necessary or sufficient to warrant a punishment. It is in this
period that the confession of the culprit is held to be the " queen
of proofs," and that, to obtain it, that method of interrogation
is employed — torture — which has appeared so natural and
necessary that it was called " the question."

The sentimental phase, — in which, going to the other extreme,
the conscience of judge and juror is relieved of all responsibility
as to the proof, by referring him to his own personal opinion, that
is, to the approval of his conscience.^

The scientific phase, — in which the proof "par excellence" is
to be furnished by expert inquiry and will aim at the methodical
search for and weighing of the experimental data of nature to
establish the doing of the wrongful acts and of the diverse
individual and social factors which have produced its existence.
The expert will become the successor of the juror, and the scien-
tific management of the evidence will consist in extending, regu-
lating, perfecting, and directing the judicial qualifications of the
expert.

It is the third phase that present-day legal systems have reached,
with a tendency, becoming more and more marked in legal prac-
tice, to utilize scientific means to arrive at the speedy and certain
detection of criminals and to diminish the terrible number of
crimes unpunished and criminals undetected.^

» "Penal Philosophy," p. 430.

^ Tarde adds : ** They correspond to the mythological phase of the human
mind, just as our actually existing expert testimony has begun to corre-
spond to its scientific phase, which is just beginning to come into existence.'*

' Tarde (op. cit.^ p. 431) sees in this system the consequence of "another
superstition, the optimistic faith in the infallibility of individual reason, of
common sense, of natural instinct." He calls moral proof, "proof by
jury," "an assumed revelation of the truth by a non-enlightened and
unreasoning conscience. " " Proof by jury ought to have been conceived of , "
he adds, " during the century in which the verdict of common sense
served as a foundation not only for the Scottish philosophy, but for every
philosophy, and in France suggested the dogma of the sovereignty of
the people."

* One of those scientific processes, and that which has rendered the
greatest of services in the discovery, either of the identity of prisoners,
or of their antecedents, is the system of criminal anthropometry. The
first idea of this process is due to Qiietelet, director of the Observatoire and
perpetual secretary of the Belgian Royal Academy, who, in 1871, published
the work entitled "Anthropometric ou mesure des dift^rentes facult^s de
rhonune." This idea was applied and utilized by M. Alphonae Bertillon,

619

§ 4] APPENDIX B

§ 3. The Two Principal Systems. Legal Proofs and Moral
Proofs. — The two chief systems of evidence, the system of legal
proofs, which is a thing of the past, and that of moral proofs, which
is now in force, have successively appeared in modem Europe.
They are in contrast to each other as two contrary types.

The first consists not merely in defining the means of search-
ing for and establishing the guilt, which is indispensable in every
law of procedure, but in holding it as demonstrated by the con-
junction of certain circumstances, the union of which necessarily
entails the persuasion of the judge, and in the absence of which
he should declare himself not convinced. The second consists
in proving a fact by all the methods proper to establish its exist-
ence, and in leaving the judge entirely free to declare that he
is convinced or not convinced.

No legal rule can measure beforehand the value of each proof.
The independent impression made on the conscience of the judge
by the oral examination and cross-examination, in a word, the
fact that he is thoroughly convinced, is the only criterion
which the law should recognize when it has confidence in the judges
whom it appoints.^ But it is necessary to lay down legal rules
to govern either the process of the search for proofs in the pre-
liminary examination, or that of the furnishing of evidence in the
final examination. It is to the study of this double rule that
the theory of evidence in criminal matters leads, generally speak-
ing, at least at the present time. Thus the penal tribunal is
free to form its conviction, to believe or not to believe in the evi-
dence produced, but it is subject to fixed rules in the method to
employ in seeking, admitting, and furnishing the evidence. These
are the two systems which we are about to elucidate.

§ 4. Origin of the System of Legal Px'oofs. — The system which
consists in proving a judicial fact, like a fact of any other kind,

and the process of identification which he invented and which has had
such a great success to-day bears the name of its author, — Bertillonage.
This process was inaugurated at the D6p6t of Paris in 1882. On the use
of scientific methods to prove the ofifense : Tarde, ** Penal Philosophy."

1 Ferri has applied an epithet to this system which would lead to the
belief that the legislature nad acted from ** sentiment" in regulating it.
Unless by substituting for it a system of scientific proofs, that is to sav,
substituting the expert for the juror, it is difficult to see what system could
replace it. "Certainty," says Faustin HSlie, *' cannot be commanded or
regulated by any law ; it is, like thought, essentially free and independent
of all external power." The question of the jury, however, is (][uite dis-
tinct from that of the laws of evidence, as Tarde has shown in his "Penal
Philosophy," p. 440 et seq. The eminent criminalist quoted above, who is
an admirer of the jury, is also a firm supporter of this system of proof.
See "Instr. cr." vol. 4, Nos. 1771-1774.

620

THE CONTINENTAL SYSTEM OF EVIDENCE [} 4

by seeking, without premeditated plan and without hindrance,
for everything which can establish it, is the most natural system,
for it resembles the course we instinctively follow to discover the
truth.^ The Roman procedure, so formal in so many respects,
adapted itself, in all that concerned the proof, to this natural
principle, and down to the last days of the Empire the rules which,
elsewhere, demanded the persuasion of the judge were almost un-
known.^

But this system of proof appeared incompatible with the intel-
lect of professional judges. The development of the opposite
system coincided, in fact, everywhere, with the appearance and
progress of the institution of professional and permanent judges.^
We see it take rise in the later days of the Empire, when the aboli-
tion of the old " ordo judiciorum " had given over to the magistrate
the entire judicial power. It reappeared and developed, through-
out modem Europe, from the time when the jurists replaced the
" hommes jugeurs." * The Criminal Ordinance of 1670 contained
no exposition of the minute and complicated rules of the system
of legal proofs : the theory of the system had been built up by
jurists and it had ended by being made equal to law. In the
1500 s and 1600 s, the system was completely established, and it
existed as long as the inquisitorial procedure lasted. It is neces-
sary to point out its broad features, taking for a guide the authors
who wrote on our ancient criminal law in the course of the 1700 s.^

1 See Bentham, "Judicial Evidence," Book I, ch. 3.

> A mandate of Adrian quoted in lib. XXII, 5, 3, § 2, Dig. is often cited
on this point : '*Qu8b arg^umenta et ad quern modiun probandsB quique rei
sufficiant, nullo satis certo modo defimre potest. Sicut non semper, ita
ssBpe sine publicis monumentis cujusque rei Veritas deprehenditur. Alias
numerus testium, alias dignitas et auctoritas, alias veluti consentiens fama
confirmat rei, de qua qusBfitur, fidem. Hoc ergo solum tibi rescribere pos-
sum summatim, non utique ad unam probationis speciem cognitionem
statim alligari debere ; sed ex sententia animi tui t^ sstimare opqrtere,
quid aut credas aut parum probatum tibi opinaris." The doctrine of
legal proofs, however, finds a germ in the writings of the jurisconsults.
See FavLStin Hilie, op. ciL, p. 403. The report made by Count Portalis
to the Academy of Moral and Political Science upon two memoirs treating
of evidence in criminal proceedings may be a6o consulted ("Rev. de
16gis. et de jurispr." 1840).

' See on this point Bonnier, op. cit., 131.

* It should be noted, however, that, in the institution of " cojuratores "
and the custom of judicial proofs are found the first germs of legal evi-
dence. See Faustin lUlie, **Instr. cr." vol. 4, 1764.

* Especially Muyart de Vouglans, who devoted to the theory of legal
evidence the sixth part of his "Instituts au droit criminel," pp. 303-354.
Comp. Jousse, op. ciL, vol. 1, pp. 654-837. But there will be found, in
the writings of the legists of the 1600 s and the 1700 s, besides the exposi-
tion of legal niles, conceptions of a philosophy and a psychology of the
noblest and truest kind in regard to confessions, evidence, and presump-
tions. This is a part of the true judicial psychology.

621

§ 5] APPENDIX B

§ 5. Four Methods of Proof. Proof of the Corpus Delicti;
Proof of Culpability. — The four methods of proof which we still
distinguish to-day — the confession, or oral proof, proof by vrit-
nesses, or testimonial proof, documentary evidence, or instrumental
proof, and presumptions, or conjectural proof, were then classed
and graded according to their importance. The objective was
a complete proof, which alone warranted the pronouncement of
capital punishment, for this is the type of action which is
always taken ; capital crimes constituting, according to our an-
cient authors, the very foundation of penal law.^ For less seri-
ous charges, the exigencies of the system were, in effect, relaxed.
The criminalists of the time finally analyzed and dissected the
logical process which consists of showing, in order to bring about
the conviction of the accused, two things, the commission of the
crime, and the guilt of its perpetrator.

I. To establish the first point meant seeking and establishing
the " corpus delicti." ^

In this respect two kinds of offenses were distinguished. The
first were those which left material traces, " delicta facti per-
manentis," such as a homicide or a fire. In this case the first
duty of the judge was to find out these traces. He did this, either
himself, by drawing up official reports or " minutes " of the case,
or by means of reports by physicians, surgeons, and other experts.'
The Ordinance of 1670 had carefully regulated this matter,* and,
astonishing as it may appear, judicial practice recognized the ac-
cused's right to demand a counter-expert.^ As a rule, no other
proof, outside of the reports or " constats " by the judge or by ex-

* Most crimes were punished or might be punished with capital punish-
ment. "As there is no law," said Poullain du Pare, op. ciLj t. 11, pp. 112,
113, "which can authorize the punishment of the innocent, there must
be a complete proof, whatever the crime may be, to warrant capital pun-
ishment, and that proof can only be made according to the forms lawfully
laid down." And elsewhere, p. 116 : "In charges which are not capital it is
evident that such strong evidence is not necessary. . . . But when there are
only strong indications their strength can warrant only pecuniary punish-
ments, if the judge does not have recourse to the suspension *quousque/
that is, to the further inquiry." Compare Jousae, op, city vol. 1, Nos, 432
and 433, p. 833.

^ See Muyart de Voxiglans, "Inst." p. 508.

' The inspection of the "corpus delicti" by skilled men is a very old
custom. See passim Edmond Locard^ "La m6decin judiciaire en Prance
au XVIP si^cle" (Lyons 1902).

< Tit. IV and V. Title IV, entitled "Des proems- verbaux des juges ;"
title V, " Des rapports des m^decins et chirurgiens."

* The accused "may request permission to have a second examination
made at his expense by other surgeons, which is readily granted provided
the request be presented within a few days of the first." Muyart de
Vouglans, " Inst." p. 226.

622

THE CONTINENTAL SYSTEM OF EVIDENCE [§ 6

perts was admitted to prove the " corpus delicti," except in excep-
tional cases where it was impossible to proceed in this way.^
And the confession of the accused constituted no proof against
him unless the " corpus delicti " had been first established by
other means.^

The offenses of the second kind were those which left no last-
ing traces, " delicta facti transeuntis," slanders, for example.
In this case, the proof of the '* corpus delicti " could not be
separated from the proof of guilt. It was not, therefore, produced
separately and as a preliminary.

11. The evidence, in its employment for the demonstration of
guilt, was classed, according to its degree of strength, as "complete
proofs," " proximate indications," and " remote indications."
The judge was required to limit himself to specifying the admis-
sions, the testimony, the presumptions, and the indications or
facts leading to presumptions, that is to say, the elements of
proof which were found in the cause; each of these elements
had, according to the circumstances, a legal value; and this
valuation must be given effect by the judge, whatever his personal
opinion might be.

§ 6. Testimonial Proof. — The proof by witnesses was con-
sidered the best proof in criminal cases ; but, in order to be com-
plete, it must fulfil certain conditions, difficult of realization:
1st. Two competent witnesses must first of all be found testify-
ing to the same fact.^ An isolated testimony was certainly not
held to be valueless, but it was not allowed to be ground for a
capital sentence.* 2d. It was also necessary that the two witnesses
should be eye-witnesses. Hearsay witnesses ( " testes ex auditu
alieno "), those who testified " to having heard the threats of the
accused and the cries of one dying " (**testes ex auditu proprio "),
those called " testes ex parte accusati," who affirmed having re-

* See Muyari de Vouglans, "Inst." pp. 308, 309, and Poullain du
Pnrcj op. cit.f t. 11, p. 81.

* See Jouase, op, ciL, v. 1, No. 20, p. 661. (This is still the system of
the New York Penal Code, § 395 (translated by Fournier, note pp. 218-
219).

' This is a traditional rule, "Testis unus, testis nullus," or as Loysel s&idj
"The voice of one is the voice of none.'* Paul Viollet, in his "Histoire
du droit civil fran^ais" (Paris 1893), p. 30, has shown that this rule, which
"has dominated the whole matter of testimonies and inquiries during the
whole of the Middle Ages and down to modem times, is undoubtedly
derived from scripture. It is formulated in St. John and St. Matthew
(St. John viii, 17); "And we may affirm," adds Viollet, "that this rule
of two witnesses, invariable in the Middle Ages, and retained in the 1800 s
in several legal systems of the United States of America, is of Hebraic
origin."

* Jou88e, op, cU,j V. 1, pp. 663, 695.

623

§ 7] APPENDDC B

ceived from the accused the confession of his crime, could not,
whatever might be their number, constitute a complete proof.
3d. The witnesses must be affirmative. If they expressed them-
selves in language of doubt, such as " If I am not mistaken — "
" If I remember rightly — " " It might have been so," they were
called vaciUatingy and their statements had not even the value of
an indication. 4th. It was necessary that the depositions be
identical in the three interrogatories undergone by the witnesses
at the beginning of the information, at the conJBrmation (" rfcole-
ment "), and at the confrontation. 5th. Finally, the witnesses
must be neither impeachable nor impeached. In this respect, the
ancient procedure, while seeking to do away with the usage of the
right of impeachment, had multiplied and even exaggerated the
grounds for it.

Two perfect testimonies, when they coincided, inevitably led to
conviction, for they necessarily entailed the convincing of the judge.^

§ 7. Written Proof. — After the testimonial proof came the
written proof, obviously rarer than the first. The jurists, after
some hesitation, had come to recognize that this method of proof
must be employed in certain crimes which could hardly be estab-
lished except by writing, " because they consisted principally in
the thought, such as heresy, * confidence,* plotting against the
prince, usury, subornation of witnesses " ; and for others, such as
forgery, testimonial proof and instrumental proof might concur.
But in every case in which writing was admitted, before it could
make a complete proof, it was necessary: 1st, that it should be
precise as to the fact of the crime ; 2d, that it should be authentic,
or, if the writing was signed, that it should be acknowledged by
the accused. One verification of handwriting could never furnish a
complete proof. The conjectural art of handwriting experts was
with reason distrusted.*

§ 8. Presumptions. — Complete proof coidd still be furnished
by presumptions, considered incontrovertible, provided, it must be
borne in mind, that the facts upon which they were based should
be themselves regularly established.' In that case, indications,

^ Jousaey op. ciL, v. 1, p. 673. The evidence "which is looked upon as
most certain is that which results from the testimony of two or more persons
w^ho have seen the crime committed."

* As to the conjectxu-al nature of the art of handwriting experts, our
old authors are unanimous. See Muyart de VouglanSy op. cU,, p. 330 ;
Rousseau de Lacombe, "Mati^res criminelles," p. 371. Cf. Pouuain du
Pare, t. 11, p. 191 et seq.; Jousse, op, cit., v. 1, p. 743.

^ Here is an example given usl3y Muyart de Vouglans {op. cU., p. 346) :
**When a murder has been committed, two unimpeachable witnesses tes-

624

THE CONTINENTAL SYSTEM OF EVIDENCE [§ 10

leading to presumptions, were given the force of absolute conviction.
It was generally admitted that the confession did not constitute
a complete proof : " Nemo auditur perire volens." It was essen-
tial that there should be, in addition to the confession, proximate
indications or the testimony of a qualified witness.^

§ 9. Proziniata Indications. — Proximate indications, called, by
some jurists, half-proofs, could not, by themselves, cause the capital
condemnation of the accused. But they formed, in conjunction
with the voluntary or involuntary {'^forc6 ") confession, a complete
proof. The chief effect of proximate indications, in serious charges,
was thus to allow of the administration of the torture, so that the
theory according to which a capital sentence could only be based
upon a complete proof, apparently so favorable to the accused,
resulted in making torture almost inevitable ; torture, as it has
been said, "became the indispensable complement of this system
of evidence." *

The facts constituting proximate indications were always left
by the Ordinances to the discretion of the judge. Certain rules
have, however, been evolved by judicial practice. Thus, among the
half-proofs there figured originally testimonial proof or incomplete
writing, the testimony of a single eye-witness, a writing authen-
ticated by expert evidence, or the extra-judicial confession of the
accused, when, having been denied by him, it was sworn to " by
two qualified witnesses." Then, presumptions, based upon the
indications, might be either general or peculiar to certain crimes.

§ 10. Bemota Indicaticnu. — All the proximate indications
allowed the application of torture. However, for a considerable
number of crimes, it was necessary to add to these at least one
remote indication. Here a third class of indications, compre-
hended under the name of " adminicules," came into play. Muyart
de Vouglans, as the forerunner of modem anthropologists, gives, as

tify to having seen the accused, with the naked and bloody sword in his
hand, leave the place where, some time after, the bod3r of the deceased was
found wounded b^ a sword stroke." Although tms indication is very
close, very telling, it is not conclusive, because it would be possible to prove
suicide, for instance.

* In Chap. Ill, Part II, antef may be read the discussions between oiu*
old authors upon this question of the weight of the judicial confession.
See also on this point, Bonnier, op. ciL, No. 365. Jousse, op. ciL, v. 1,
No. 660, asserts, nowever, that the evidence is complete when it is based
upon "the piu'e and simple confession of the accused."

* Certain jurists mamtained that the indications might be added to-
gether. But this combination was usually rejected. "The half-proof,"
said Poullain du Pare {op. cit., t. 11, p. 116), "is no more conclusive than
a half-truth, and for the same reason that two uncertainties cannot make
a certainty, two half-proofs cannot make a full proof."

625

§11] APPENDIX B

an example of signs (" signes ") of guilt of this kind, '' the bad
expression C physiognomie ') of the prisoner." It is evident that
little was required to constitute a remote indication.

§ 11. Legal Proofs in Ancient French Criminal Law. Neces-
sity for Confession. LtiterrogaUons. Torture. — To sum up, the
theoretic characteristic of the system of legal proofs in the ancient
French law was, that there could be no capital sentence without a
complete proof, and that evidence had this character only under
certain exceptional conditions very difficult of realization. This
tyranny of the proof compelled the judges to procure by any and
every means, " per fas et nefas," a confession from the guilty
person. To attain this end, custom originated two proceedings,
the secret interrogation (" interrogatoire "), in which the accused,
without counsel, must swear to divulge the truth, and by means
of which the so-called voluntary confession was obtained; and
torture, by which the involuntary confession ("confession forcfe ")
was obtained. Thus, the system of legal proofs,, originally intro-
duced in the mterest of the accused, and as a necessary counter-
balance to the absence of guarantees resulting either from the
tribunal being composed of professional jurists, or from the inquis-
itorial and secret procedure, led fatally to the use of torture.
And it is unquestionable that the maintenance of this great injus-
tice down to the time of the Revolution was due to the fact that
the convincing of the judge could hardly ever be obtained without
the confession of the culprit.^ .

The true cause for the employment of torture, which spread,
by a strange contagion, from the beginning of the llOOs, through-
out all Europe, and the original home of which was that comer
of Italy where the school of Bologna resuscitated the Roman law,
was everywhere that, " on one hand, ordeals and oath-helpers
(* cojureurs ') were no longer believed in, and on the other hand,
a conviction would not be pronounced on indications alone,
whatever their strength might be." \Vhat was necessary for the
judges of that time was the confession at any cost, or proof of the
impossibility of getting the confession.^

^ See Despeissea, "CEuvres," t. 2, p. 213, No. 10; Aug, Nicolas, Master
of Requests in the Parlement of Bourgogne, ''Si la th^orie de la torture
est un moyen de verifier les faits," Amsterdam, 1682.

*See the interesting observations of Tarde, "Penal Philosophy," pp.
432-437, on torture, its origin, history, and causes. Jouase, op. cii., 1. 1, pp.
689-694, lays down the theory *'of the confession of the accused by the
* question ' or torture. ' * His ftrat words judge the proceeding from the point
of view of the confession : '* It may be taken as a general rule that torture
is a dangerous expedient by which to compel a witness to divulge the
truth. Several examples are to be found in history of persons who under

626

THE CONTINENTAL SYSTEM OF EVIDENCE [§ 12

Nevertheless, if the prisoner resisted this shocking method of
extorting his confession, if nothing could be got from him, it
must not be thought that the justice of the time was done with
him. The action was suspended, or an " extraordinary " punish-
ment was dealt out to him.

§ 12. Origin of the System of Convincing Proofs. — The
institution of the jury and the abolition of torture necessarily
entailed the destruction of the system of legal proofs.^ However,
by a combination, excellent in appearance, certain legislators of
the Constituent Assembly wished to join to the advantages of the
ancient usages the benefit of new principles. They proposed to
put upon the law the burden of determining what proofs it should
be necessary to produce in order to warrant a sentence, but they
did not wish ever to compel the judges, whatever the charges
might be, to condemn an accused without being thoroughly con-
vinced. This was an ingenious system, which claimed to unite
" the confidence due to legal proofs with that which is deserved
by the judge's being thoroughly convinced." ^ But how delusive,
with the institution of the jury, would have been a system restrict-
ing by legal limitations the evidence necessary to convict I
One of two results must follow. Either the jury, not being com-
pelled to assign a reason for their decision, would always be able
to avoid that obligation ; or, if they thought it their duty to respect
the obligation, they would be able to find in it a convenient pretext
for imjustifiable acquittals. The legislature also formally declared
that it rejected the system of legal proofs and insisted only on the
jury's being thoroughly convinced.* This was shown in the lan-

the influence of pain have confessed to crimes which they did not commit."
Consequently ''the confession made by an accused during torture did not
make a sufficient proof among^ the Romans any more than among: ourselves^
when there was no other proof." But *' the confession made by an accused
under torture which is afterwards ratified by him when he is free and out,
of pain makes a complete proof against him.'' Jousse afterwards discusses'
the case where the confession extracted by torture is retracted and the
ease where torture is inflicted as the sequel of void proceedings: ''If the
proceedings are invalid, the confession made by the accused under torture
does not make it valid."

^ The philosophers of the 1700 s had attacked legal proofs. Beccaria
("Des d^uts et des peines/' chs. VII and VIII) shows that certainty could
not be comprehended within the rule of a scientific proof. Filangieri
("Science de la legislation," book 3, ch. XV) asserts that certainty can
have its place only in the conscience of the judge.

' This is the formula which Robespierre used in the sitting of 4th Janu-
ary, 1891 (Moniteur of the 5th). It has perhaps not been sufficiently
noted that the idea of this combination was criticised by the Italian
criminalist EUero, in his brochure upon the "Critica criminale," printed
in 'his "Trattati criminali."

' The Constituent Assembly was confronted with the question by the
report which Dwport made at the sitting of 26th December, 1790, on be-

627

§ 12] APPENDIX B

guage of the oath which was administered to them : " You swear
... to decide according to the charges and the pleas in defense,
and following your conscience and your personal conviction, with
the impartiality and the firmness becoming a free man." * Else-
where, it was said, in the Law of 16th September, 1791,^ "The
accused may bring witnesses to testify that he is a man of honor
and probity, and of irreproachable conduct ; the jury shall give
this testimony reasonable consideration." And the Instructions
of 29th September, 1791, state precisely the principle of the moral
proof in these terms : " It is particularly upon the examination
and the trial which have taken place in their presence that the
jury^ must base their personal conviction, for it is their personal
conviction which is here concerned ; it is that which the law asks
them to declare, and it is that to which society and the accused
appeal." In the Code of the 3d Brumaire, year IV (Art. 372),
the theory of moral proofs was maintained with more firmness
still ; a long instruction especially intended to remind the jury of
it was required to be read to them by the president and posted
up in the jury room. This instruction has passed, with the same
characteristic, into the Code of Criminal Examination of 1808,
where it forms the provision of Article 342 : " The law does not
require the jury to state the reasons for their convictions; it
prescribes no rules on which they should make the weight and
suflBciency of a proof particularly depend; it orders them to
question themselves in silence and meditation, and in the sin-
cerity of their conscience, to look for the impression which the
evidence brought against the accused and his pleas in defense
have made upon their reason. The law does not say, 'You
will regard as true every thing testified to by such and such
a number of witnesses,' nor does it say to them, 'You will
not hold as sufficiently established all proof which may not be
formed of such documents, of so many witnesses, or of so many
indications * ; it asks them only this one question, which em-
braces the whole measure of their duties, ' Are you thoroughly
convinced ? ' "

half of the oommittees on constitution and criminal jurisprudence. The
bill proposed to abolish all written proof before the jury, and to give no
other foundation for its verdict than its sense of being thoroughly con-
vinced, based on the oral trial. FaustinHHie ("Instr. cr." v. 4, No. 1768,
pp. 336-340) has reported the chief passages of the discussion which took
place on this subject. The committee's bill was adopted in the sitting
of 18th January, 1791.

» Law of 16th September, 1791, 2d part. Tit. 7, Art. 24.

* Second part. Tit. 7, Art. 14.

628

THE CONTINENTAL SYSTEM OF EVIDENCE [§ 13

§ 13. ConTincing Proof really " Juxy Proof." — The proof by con-
vincement thus came into existence along with the jury and seems
to be inseparable from it.^ But the formula, impregnated with
revolutionary lyric, which has become Article 342 of the Code of
Criminal Examination, has given birth to many errors as to the

^ Nobody has shown this better than Tarde, in a passage which I may
be permitted to transcribe ("Penal Philosophy," HowelVs translation,
"Modern Criminal Science Series," pp. 437-439): "The jury does not
in any way come from the German forests ; it came into existence in 1215,
as has been demonstrated by Du Boys and other authors, owing to the
embarrassment experienced by the itinerant justices of England in doing
without the ordeals which the Lateran council had just prohibited.
Whereas upon the Continent the idea of torture suggested itself as being
the proper thing, the English, with infinitely more sagacity no doubt,
devised the expedient of assembling twelve of the neighbors of the ac-
cused when he did not admit his guilt, and regarding * their belief
relative to the existence and the perpetrator of the crime' as being the
eouivalent of the judgment of God. This was the more natural, as for
a long time past the embryo of the jury, under the name of * proof by the
country,' existed in the English system of bringing an accusation; and
this form of proof was placed in the same category as that of 'proof by
battle.' The accused had the right of choosing between these two.

" In this manner the fact that the ordeals and the jury were the equivalent
of each other is attested. We must recollect that at this period men were
prone to believe that the Holy Ghost was present at every reunion of
Christians carried out with any solemnity ; a jury might seem to be a
species of council inspired from on high. Even the jury was destined to
furnish the illusion of certainty. A presumption of oracular infallibility
was attached by religious belief, as later on by philosophical and humani-
tarian belief, to decisions, the grounds of which were not stated. Further-
more, from its origin, as we see, the verdict has only been, as it is still in
our day, a supreme act of opinion, a 'constat' of fact and not a judgment
properly speaking. . . .

"The English juries were to so great an extent looked upon as mere
witnesses, in early times, that untif aJPter the time of Edward III in the
1300 s, absolutely no testimony could be brought before them, and even in
our own time, in England, when the accused confesses, the jury is incom-
petent because then the proof is complete. It is because the jury is a
species of inspired witness that it has never been asked to state the grounds
or its verdict, and that the idea is even repelled, just as much as the idea
of a decree without any gn*ounds would be repelled. . . .

"At the beginning of the BVench Revolution, Prance found herself in
an embarrassing position similar to that of the 'justitiarii itinerantes' of
1213 ; torture having been done away with, it became necessary to find
a substitute for it. . . .

"It was knowingly, furthermore, that the English jury was imported
into Prance."

The "Cahiers" of 1789 had demanded judgment by a jury in criminal
matters; they recommended that a study should be made of English
institutions. During the discussion before the Constituent Assembly of
the system of proof before the jury, Thouret clearly exoressed these
ideas. "Written evidence is incompatible with the establishment of the
jury. — The necessity for this subsequent transcription, the moral idea
which makes the jury the means nearest to infallibility^ and which leads
through the medium of debates between the witnesses and the accused to
such a degree of persuasion that it is impossible for human reason to go farther
. . . the conviction of the juror is the law which it is the juror's duty to
follow. Moral conviction overcomes everything when it is felt. It can
neither be commanded, nor inspired. It is the true touchstone of moral
veracity."

629

§ 14] APPENDIX B

rights and duties of the jury. What appears to stand out promi-
nently is the feeling that there is here an arbitrary power, to solve
the most formidable question which can be propounded to mortal
men. The jury appears to be placed above the law and authorized
to judge on an impression. It is to this formula even more than
to the system of the moral proof that the false doctrine of the
omnipotence of the jury must be traced.

§ 14. Diaappearance of the System of Legal Proofs. — The
system of legal proofs, which prevailed in modem Europe down to
the end of the 1700 s, has almost everywhere disappeared, and
whatever vestiges of it remain are gradually vanishing. It is
hardly necessar}'^ to mention, as a matter of archseological curiosity,
the provisions of the Code of Criminal Procedure of the canton of
Valais of 29th November, 1848, which are still devoted to and
minutely regulate the legal proof. This " fossil legislation "
is a sole exception 1 But, in the Anglo-Saxon laws, where the
accusatory system remains in force, and where the method of
proof is the same in civil and criminal matters, two characteristic
traits of the old system of evidence should be noticed. The first,
already noted, is the rule which compels the accused to under-
take a plan of defense from the very beginning of his appearance,
and to plead guilty or not guilty. And when he confesses or
pleads guilty he must prove all the pleas which he urges against the
indictment. For, in this respect, the confrontative procedure
places the parties upon the same plane, and by putting in a defense
the accused becomes complainant in the action ; " reus ezcipiendo
fit actor"

630

INDEX

Arrest, 173 ; decree of, 151 ; on

suspicion, 62; bail in, 72; power

to, in England, 348.
Assigning reason for judgments, 159,

237.
Assize courts, 46.
"Attaint" the, 329, 330, 335. See

also English jurors.
Attorney-general (**procureur g4-

n^ral"), his function, 42.
Austria, prosecution in, 597.
Austria-Hungarian legislation since

1800 581.
Ayrault, Pierre, 169, 379, 613.
Azo, glossator, 610.

Bail, liberation on, 400, 508, 544 ; in
feudal procedure, 68 ; not allowed
for grave offenses, 69 ; exception
to rule, 70; in arrest on suspi-
cion, 72; where inquest by the
country.

Abegg, 616.

Accursius, glossator, 610.
Accusation, 55; the popular, 3; in
Roman criminal procedure, 18,

21 ; in Italy, 292 ; free, in Eng-
land, 336, 338; of formal party,
121, 135; its disappearance, 143.
Accusatory system, 3; in Roman

criminal procedure, 18; its three

features, 46; its origin in Eng-
land, 338 ; as derived from English

law, 570.
Accused, volimtary witness, in Eng-
land, 350.
Accuser, 219; necessity for, in

England, 337.
Acquittal, 238.

Actions against communities, 245.
Actions against corpse or memory

of deceased, 245.
Actions against mutes, 245.
AdemoUo, 615.
Adminicles, 267, 625.
Administrative police, its function,

44.
A^esseau d', his reforms, 380.
Aid of counsel. See Counsel, aid of.
Aldermanic courts, 215.
Alibi, 155.
Appeal, 213, 239; its origin, 9; its

nature, 10; its introduction, 51 ; for

error in law, 51 ; for false sentence,

51 ; in feudal procedure, 59 ; by

prosecution, 241 ; susp>ensive, 241 ;

to sovereign, 243; in Code of

Criminal Examination, 517 ;

where matter of right, 239; oral

appeal, 239; from interlocutory

judgments, 240; in 15008, 161;

right of, 539.
*' Appeals" in old English law, 339.
"Aprise," 94, 253; inquest by the

country merged with, 99.
Aretinus, Angelus, 611.
Argentine Republic, its legislation

since 1800, 596.
Armellini, 615.
Arraignment branch, proceedings

before, 509 ; in England, 345.
Arraignments, 45 ; in Code of Bulgarian legislation since 1800, 591.

Criminal Examination, 498. : BusheFs Case, 328, 331.

631

Halsgerichtsord-

"Baillis," 49, 52.
Baldus, 291.
''Bambergische

nung," 305.
Bar, 616.
Bartolus, 291.
Battle, trial by, 59; in G^ermanio

criminal procedure, 34.
Bauer, 616.

Bavarian Statute Book, 322.
Beaumanoir, Philippe de, 611.
Beccaria's "Treatise on Crimes and

Penalties," 363, 614.
Belgian legislation since 1800, 582.
Belvisio, Jacobus de, 611.
Bennecke, 616.
"Besiebnen," the, 303.
Biener, 616.
Binding, 616.

Bolivian legislation since 1800, 595.
Bosnia, legislation in, since 1800,

582.
Brigandage, 447 ; exceptional courts

necessary, 451.
Brissot de Warville, 614.
Buchmer, 613.

INDEX

Cahiers of 1789, the, 397; their
demands, 397; publicity, 397;
aid of counsel, 398; aboMtion of
oath of accused, 398 ; freedom of
defense, 399; number of judges,
400; abolition of torture and
exceptional courts, 400 ; . libera-
tion on bail, 400; retraction by
witnesses, 400; suppression of
monitories, 400; judges of fact
and law, 401 ; abolition of re-
served justice, 401.

Canonico, 615.

Canon law, its influence upon Ger-
man criminal procedure, 314.

Capture in the act, 6, 61.

*'Caritativa," 85.

Carmignani, 615.

Carnot, 614.

"Carolina," the, 306 ; its provisions,
306, 308, 318; procedure reg-
ularized by science, 309; based
on the "Bambergensis," 318;
its influence, 319.

Carpzov, Benedict, 309, 612.

Carrara, 615.

Carta di Logu, 291.

Casorati, 616.

Challenges of English jury, 334, 345.

Civil and pubhc actions distin-
goiished, 429.

"Svilizing" an action, 229.

Civil party, origin of, 143.

Clarendon Assize, 332.

Clams, Julius, 292, 612.

Classical school, distinguished from
modem school, 41.

**Code Louis," 183.

'*Code Michaud," Ordinance of 1629,
178.

Code of Criminal Examination, 1808,
40, 462; draft begun, 463; the
question of the jury, 464; ** Ob-
servations" of the Supreme Court
and the Courts of Appeal, 465;
the jury criticized, 466, 472; the
jury praised, 471, 474; *' Ob-
servations " of the Criminal Courts,
472 ; the publicists and the jury,
Bourguignon and Gach's works,
477; first discussion of the draft
before the State's Council, 482;
the question of the jury, 483;
speakers for and against it, 483;
legal proofs, 484; special tri-
bunals, 486; selection of jurors,
488 ; aid of counsel, 488 ; written
procedure, 489 ; the jury question
again taken up, 490; work in-
terrupted, 495; resumed, 495;
trial by jury adopted, 497 ; grand

jury suppressed, 498; union of
systems of justice, 498; the
arraignment, 498; separation of
powers of public prosecutor and
examining magistrate, 505 ; docu-
ments and forms of the prelimi-
nary examination, 505; searches
and seizures, 506 ; expert reports,
506; the warrants, 506; time of
first interrogation, 507; libera-
tion on bail, 508; proceedings
before arraignment branch, 509;
proceedings before trial court,
510; aid of counsel, 511; com-
munication of documents, 512;
selection of jury, 512; questions
to jury, 513 ; majority vote, 513 ;
written procedure, 514; in con-
tumacy, 515; in correctional
police matters, 517 ; moral proofs,
mstruction to jury, 516 ; appeals,
517; special courts, 517; com-
mittee report upon, 518; dis-
cussion regarding, 520; res judi-
cata, 522; reserved justice, 523;
reprieve, 523 ; rehabilitation, 524 ;
revision, 526; the ** family jury,"
526.

Code of Offenses and Punishments
of 3d Brumaire, year IV., 426;
its i>urpo8e, 427; the work of
Merlin, 428; public and ci\dl
actions distinguished, 429; judi-
cial police, 4^; warrants, 431;
director of the jury, his duties,
431 ; proceedings before grand
jury, 432; proceedings before
trial jury, 433; writing in the
procedure, 434; moral proofs,
434; procedure for contumacy,
435 ; court of correctional police,
435.

Codification, Colbert's plan for,
184, 195; Lamoignon*8 plan for,
204 205

Colbert, 179, 183, 200, 201, 205;
his character, 183; his plan for
codification, 184, 195.

Combat, judicial, 7.

Commentators on Ordinance of
1670, 286; discouraged by Pus-
sort, 287.

Commissioners chosen for drafting
Ordinance of 1670, 201; their
meetings, 202.

Commitment, in England, 343;
warrant of, contested, 441.

"Common report," 125.

Communication, of documents, 512 ;
bought, 282 ; of interrogation, 229.

Comparative law, its importance,
570.

Complete proofs, 258.

632

INDEX

Confession, extracted by torture, 9 ;
necessity for ratification, 113,
139 ; value of, 252, 262 ; as com-
plete proof, 252; corroboration
of, 255; how constituted, 266;
general and particular, 267 ; justi-
fying torture, 267; forced, 269;
as a method of proof, 622 ; neces-
sity for, in old French law, 626;
voluntary and involuntary, 626.

Confirmation of witnesses, 142, 153,
230.

Confrontation, 3, 46, 140, 142, 154,
230.

Constantin, Jean, his commentary
on Ordinance of 1539, 166.

Consuls, 50.

Continental system of evidence, its
history, 617.

ContoK, 615.

Contumacy, procedure by, 73, 244,
435; its nature, 73; its original
effect, 75; letters of recall, 76;
its modification in 1400 s and
1500 s, 161-164; its effect, 164,
165; presumption from, 254;
in England, 347 ; writing in, 515.

Convincmg Proof, origin of the
system of, 627; rosdly "jury
proof," 629.

Coroner's jury, in England, 335, 336,
339.

'* Corpus delicti," establishment of,
257,622.

Correctional courts, 46, 435; de-
fense in, 537.

Correctional police matters, writing
in, 515.

Costs, 238, 279.

Council of justice, 196; its first
meeting, 197, 198; its members,
198; second meeting, 199.

Counsel, aid of, to accused, 45, 159,
511 ; prohibited by Ordinance of
1670, 227, 275; irregularity al-
lowed, 284; prohibited by "Siete
Partidas," 300; admitted by
Carpzov, 310; in England, 342,
346, 349; demanded in Cahiers,
398.

Court of Appeal, its duties, 42.

Court of correctional police, 435.

Court of Criminal Appeal, in Eng-
land, 350.

Court of Peers, 49.

Courts Christian, their jurisdiction,
50.

Cremani, 613.

Criminal action, in the 1500 s, 149;
its development in England, 342.

Criminal jurisdiction, division into
three groups, 46.

Criminal lieutenant, 52.

Criminal procedure, primitive Qeiv
manic. See Primitive.

Criminal procedure in France; its
three stages, 43.

Criminal procedure in France since
the Code of 1808, 528; legisla-
tion and judicial decisions, 528;
changes in procedure before trial,
529; abolition of special courts*
530 ; questions to jury, 531 ;
manner of voting, 531 ; extenuat-
ing circumstances, 531 ; com-
position of jury, 532; majority
vote, 532; judge's summing up
abolished, 534; written deposi-
tions, 534; how taken, 536; de-
fense in correctional courts, 537;
questions to jury, 538; changes
in preliminary examination, 539 ;
right of appeal, 539; detention
pending trial, 542; liberation on
bail, 542 ; in correctional offenses
or capture in the act, 544 ; plans
for reform, 546 ; recent legislation
and bills introduced, 547-569.

Criminal procedure, its three types,
3; memorials of state councilors
on, 192; public opinion as to,
in 1600 s, 351; Roman. See
Roman criminal i>rooedure.

Croatia-Slavonia, its legislation
since 1800, 582.

Damhouder, 309, 312, 313; his

'* Praxis rerum criminalium," 312,

612 ; on torture, 159.
Danish legislation since 1800, 592.
Decree of arrest, 151.
Decree of personal summons, 151.
Decree of 8-9 October, 1789, its

provisions, 402.
Decrees, execution of, 238.
Defense, in correctional courts, 537 ;

under Ordinance of 1539, 156.
Denouncers, 219.
"Denunciatio," 85.
"Denunciatio evangelica," the, 85,

314.
Denunciation, 99, 122, 135; dis-
tinguished from complaint by

Ordinance of 1670, 219.
Depositions of witnesses, written,

534; how taken, 536; read to

accused, 140, 154.
"Deraisne," the, 57.
Despeisses on torture, 358.
Detention pending trial, 222, 542;

in feudal procedure, 68.
Director of public prosecutions, 347,

598.
Director of the jury, his duties, 431.

633

INDEX

Disappearance of system of legal

proofs, 630.
Diversity of practice, 278.
"Divinatio," 22.
Division of official functions, 43.
Dochow, 616.
Documents, communication of, 512 ;

bought, 282.
Drafting of Ordinance of 1670, 183.
Du Moulin, his commentary on

Ordinance of 1539.
Dupaty*s memorial for the **Trois

rou6s," 388.
Durandus, his "Speculum juris,"

291, 610.
Duty to warn accused, 45.

Ecclesiastieal criminal procedure, 78.

Ecclesiastical jurisdictions, 50, 213.

Ecuador, its legislation since 1800,
596.

Edict of 1788, the, 393; its pro-
visions, 394.

Egypt, legislation since 1800, 593.

England, its legislation since 1800,
588.

England, prosecution in, 598.

English colonies, legislation since
1800, 590.

English criminal procedure, 322;
recent innovations, 347.

English jury, and application of
the "inquisitio," 323; "recogni-
tiones,*' 325; development, 325;
early comppsition, 3&; unanim-
ity, 325, 346; methods of proof,
326, 327; jurors, originally wit-
nesses, 324 ; cease to be witnesses,
328; moral proofs, 330; legal
proofs, 330, 332; the "attaint,"
329, 330, 335 ; new trial, 331 ;
grand jury, 332; inquest by the
courts, 332; petty jury, its com-
position, 334 ; introduction of wit-
nesses, 335; coroner's jury, 335,
336, 339; free accusation, 336,
338; necessity for accuser, 337;
grand jury, procedure before,
337 ; presentment, 337, 338, 344.

Error in law, appeal for, 51.

Estin^s, Catherine, case of, 386.

Ethnical phase of the sj^stem of
evidence, 618.

Evidence, three points of view, 617 ;
historic evolution, 617; ethnical
phase, 618; religious phase, 618;
legal phase, 619; sentimental
phase, 619; scientific phase, 619.

Examination of accused during
trial, 350.

Examiners of witnesses, 150.

Examining magistrate, 42; his
function and powers, 44 ; separa-
tion of powers of public pros-
ecutor and, 500.

Exceptional tribunals, 54; aboli-
tion demanded, 400 ; established,
454, 457. See also Special courts.

Exculpatory oath, 6.

Execution of decrees, 238.

Expenses of criminal proceedings,
238, 279.

Expert reports, 506.

Extenuating circumstances, con-
sideration by jury, 531.

"Extraordinary" procedure, 121;
when adopted, 128, 132, 133;
its secrecy, 128, 129 ; publicity of
hearing, 130 ; secrecy and torture,
146, 148.

False sentence, appeal for, 51.

Falsification of proceedings, 280.

"Family jury," 526.

Farinacius, 292.

Feudal accusatory procedure, 55 ; its
nature, 56 ; theory of proof in, 57.

Feudal procedure, appeal in, 59;
bail in, 68.

Feuerbach, 616.

Filangieri, 614.

Fine, voluntary payment of, 605.

Finland, Grand Duchy of, legisla-
tion of, since 1800, 591.

Fiscals, in Germany, 311.

Fleury on criminal procedure, 358.

Fnmce, prosecution in, 596; crim-
inal procedure in, since the
Code of 1808. See Criminal pro-
cedure

Freedom of defense, 131, 139, 170;
bought, 285; admitted by Carp-
zov, 310; in England, 342, 346,
349 ; demanded m Cahiers, 399.

Friihwald, 616.

"Fueros," 296, 297, 300.

"Fttrsprecher," the, 308. 316.

Further inquiry, the, 238, 269.

Gambilionibus de Aretio, 291.

Gaudinus. 291, 611.

Germanic criminal procedure, the
primitive, 30. /Sc6 Primitive.

German legislation since 1800, 572 ;
demands for reform, 572; earlier
legislation, 573 ; its defects, 574 ;
legislation of the early 1800 s,
576; legislation under the Em-
pire, 579; Judicial Organization
Law, 579 ; German Code of Civil
Procedure, 580.

634

INDEX

Germanj, criminal procedure in, 47,
302; **Landgerichte," 302,303;
**Zent." 302; "Geruchte," 302;
** Riigegerichte," 302; "Be-
siebnen," 303; "Wormser
Reformation," 304; "TirolerMa-
lefizordnunfi:," 304 ; the *'Bamber-
gische Halsgerichtsordnung," 305 ;
the* 'Carolina," 306^309; the*'in-
guisitio," 309; Carpzov*8 work,
309; freedom of defense, 310;
aid of coimsel, 310; communica-
tion of charges, 311 ; fiscals, 311 ;
influence of the Canon law, 314;
reasons therefor, 314 ; the '* Caro-
lina," 317; its influence, 319;
later developments, 321.

Germany, prosecution in, 596.

**Geruchte," the, 302.

Geyer, 616.

Glaser, 616.

Glossators, 609.

Gothia Regulations of Procedure,
322.

Grand jury in England, 332; pro-
cedure before, 337; its composi-
tion, 344; changes in, 349; pro-
cedure before, 432, 440; con-
tested, 444; suppressed, 498.

Great Britain, its legislation since
1800,588.

Great Days of Auvergne, 54, 178.

Half-proofs, 264, 266, 625.
Hanoverian Criminal Instructions,

322.
H^lie, Faustm, 614.
Henke, 616
Herzegovina, legislation in, since

1800, 582.
Hippolytus of Marseilles, 292, 611;

on torture, 158.
History of continental system of

evidence, 617.
Holy Inquisition, the, 93.
Hue and cry, 61.

I. \

Imbert, 168.

India, legislation since 1800, 590.

Indictment, in England, 344, 345.

"Infamia," 79.

Influence, effect of, in criminal

matters, 282, 285.
Information, 149 ; distinguished

from inquest, 120.
Inquest, 39.
Inquest by the country, 64; its

nature, 65; distinguished from
'aprise," 67 ; bail in, 73 ; merged

((

<<.

with ** aprise," 99; in England,
332.

Inquiries, 220.

''Inquisitio," in England, 323, 324;
in Germany, 309 ; in Italy, 291 ;
in Spain, 299; English jury an ap-
plication of the, 323.
Inquisitio cum promovente," 86.
Inquisitio generalis," 83, 84, 85.
Inquisitio hsretica pravitatis,"
81, 92.

Inc^uisitorial procedure in ecclesias-
tical courts, 79.

Inquisitorial system, 8, 570; writ-
ten and secret, 9 ; its growth, 10.

Insanity of accused, 155.

*'Inscriptio nominis," 22.

Inspection of process, 233.

Instruction to jury, 516.

Interlocutory judgments, appeal
from, 240.

"Interrogatio,"23, 24.

Interrogation of accused, 151, 224,
269, 626 ; time of flrst, 507.

Ireland, its legislation since 1800,
590 ; prosecution in, 599.

Italian lep:islation since 1800, 585.

Italy, criminal procedure in, 289;
Bologna school, 289 ; statute law,
290; Carta di Logu, 291 ; growth
of '* inquisitio," 291; writers on
criminal law, 291 ; accusation,
292; ** querela partis offenssB,"
292; "libellus,'*^ 293; pubUc
prosecutor, 294.

Jagemann, 616.

John, 616.

Jousse, 287, 612.

Judge, originally an umpire, 5;
changes in his functions, 8.

Judges* fees, 279.

Judges, number of, 400.

Judges of fact and law, 401.

Judgment, 236 ; basis for, 159, 237 ;
in mixed system of criminal pro-
cedure, 12; no evidential basis
for, 12.

**Judices," 17; compared with
modem jurors, 17.

Judicial combat, 7.

Judicial police, 430; individuals,
43 ; removable, 43.

"Jur^e du pays," 66.

Jurors, selection of, 488.

"Jury de d^nonciation," 83.

Jury, none in civil cases in France,
43; English, an application of
the *' inquisitio," 323; early com-
position of, in England, 325;
development of, in England, 325 ;

635

INDEX

grand jury, in England, 332;
procedure before, 337; coroner's
jury in England, 335, 336, 339;
petty, its composition in Eng-
land, 334 ; unanimity, in England,
325, 346; procedure by, under
Law of 16th and 29th September,
1791, 408; director of the, his
duties, 431, grand jury, procedure
before, 432, 440 ; contested, 444 ;
put to trial, 446; no match for
brigandage, 449; suppression of
grand jury, 498; proceedings
before the trial jury, 433; criti-
cized, 460, 466, 472; in draft of
Code of Criminal Examination,
464, 483; praised, 471, 474; pub-
licists and the, 477; speakers for
and against before State's Council
discussed, 490 ; selection of, 512 ;
questions to, 513, 531, 538;
majority vote, 513, 532 ; instruc-
tion to, 516 ; consideration of ex-
tenuating circumstances b^, 531 ;
voting by, 531 ; composition of,
532.

Jury, family," 526.

JiLpy proof equivalent to "con-
vincing proof, 629.
Justice of the peace, his functions,
42.

Keeper of the Seals, his function, 42.
King's commissaries, 249.
King's Court, 49.
Kostlin, 616.

Lamoi^on, 179 ; his plan for codi-
fication, 204, 205; his share in
the drafting of the Ordinance of
1670, 208, 209, 211, 212, 214.

" Landgerichte," the, 302.

Law of 16-29 Brumaire, 1791, 40.

Law of 16th and 29th September,
1791, its provisions, 408; bor-
rowing from English system,
408; discussion of bill by Con-
stituent Assembly, 419; gives
place to Code of Offenses and
Punishments, 426.

Law of 7th Pluvi6se, year IX, 437 ;
public prosecutor reconstituted,
437; secret procedure reappears,
439; contested, 442; procedure
before grand jury, 440 ; contested,
444; warrant of commitment
contested, 441.

Law of 18th Pluvi6se, year IX, 453 ;
exceptional courts established.

454, 457; discussion of the bill,
457 ; criticism of the jury, 460.

Legal phase of the system of evi-
dence, 619.

Legal proofs, 251, 484, 620 ; origin
of, 9, 251, 620; nature of, 10;
in feudal procedure, 252; de-
scription of system, 256; in old
French law, 626; disappearance
of the system of, 630.

Le-Gaverend, 614.

Legislation in various foreign coun-
tries, 572. See also under the
names of the countries.

Letters of commutation of punish-
ment, 247.

Letters of justice and pardon, their
disappearance, 523.

Letters of mercy, 245.

Letters of pardon, 247.

Letters of recall from banishment
to the galleys, 247.

Letters of rehabilitation, 247.

Letters of rehearing, 247.

Letters of remission, 246.

Letters of royal pardon, 246.

"Lettres de cachet," 248, 526.

"Libellus criminalis," 293.

Liberation on bail, 131, 135, 160,
222. 400, 508. 542, 544; when
allowed by Ordinance of 1498,
148 ; in England, 343.

Liszt von, 616.

Louis XIV and the Ordinance of
1670. 183, 197, 198, 200, 201, 203,
205.

Lowe, 616.

Luxemburg, Grand Duchy of, its
legi^tion since 1800, 584.

M^moires justificatifs," 386.

Memorials of state councillors, 186 ;
on criminsdprocedure, 192.

Menochius, 292.

Merlin and the Code of Offenses
and Punishments, 428.

Mexican legislation since 1800, 595.

Meyer, 616.

Mittelbacher, 616.

Mittermaier, 616.

Mixed system of criminal procedure,
its features, 11.

Modem school, distinguished from
classical school, 41.

Mohl, 616.

Monaco, Principality of, its legis-
lation since 1800, 583.

Money, influence of, in criminal
matters, 279, 282.

Monitories, 172, 221, 276; sup-
pression of, demanded, 400.

636

INDEX

Montesquieu on criminal procedure,

359, 360, 362, 363, 369.
Moral proofs, 434; instruction to

jury, 516; in England, 330.
Motions of king's procurators, 221 ;

final motions, 232.
Municipal courts, 49, 52.
Municipal jurisdictions, 215.
Mutes, actions against, 245.
Muyart de Vouglans, 287, 270, 612.

Netherlands, criminal procedure in
the, 312; Damhouder's *' Praxis
rerum criminalium," 312; Ma-
th»us' "De criminibus," 313;
its lep:islation since 1800, 588.

New tnal, in England, 331.

Nicolas, Augustin, 613; torture,
352

Nicolini, 615.

Nocito, Pietro, 615.

"Nominis," 22.

Norwegian legislation since 1800,
593.

Oath, exculpatory, 6.

Oath-helpers, 6, 57; in primitive
Germanic criminal proc^ure, 34.

Oath of accused, 136, 225; r^usal
to take, 226; its abolition de-
manded, 398.

Objections to witnesses, 154, 171,
231.

"Observations" on draft Code of
Criminal Examination, 465, 472.
Official," 50.

Official prosecution, its regulation
in 1300 s, 119.

Opinions of the jurists of 1700 s, 369.

Oral appeal, 239.

Orality, 46.

Ordeals, 57; in feudal procedure,
57 ; in primitive Germanic crim-
inal procedure, 34.

Ordinance of 1670, 40, 252 ; its juris-
dictional rules, 211; 1, court of
place of offense, 211 ; 2, royal
causes, 212 ; 3, precedence of royal
judges, 212; 4, appeal; 5, eccle-
siastical jurisdiction, 213; 6,
municipal jurisdictions, 215; 7,
pr6vdtal jurisdictions, 216; pro-
cedure under, 218; 1, denimcia-
tions distinguished from com-
plaints, 219; 2, information and
monitories, 220; 3, warrants of
citation and arrest, 221 ; policing
of prisons, 223; 4, interrogation
of accused. 224; his oath com-
pulsory, 225; effect of refusal.

226; aid of counsel prohibited,
227 ; 5, ruling to "extraordinary"
action, 229; confirmation, 230;
confrontation, 230 ; 6, king's pro-
curator's motions, 232 ; report of
action to whole bench, 232; in-
spection of process, 233; 7, tor-
ture, 234; ordinary and extraor-
dinary, 234; 8, judgment, 236;
not based, 237 ; 9, appeals, 239 ;
10, writ of error, 242; 11, pro-
cedure by contumacy, 244.

Ordinance of 1670, drafting of, 183 ;
called "Code Louis," 183; me-
morials of state councillors, 186;
commissioners chosen, 201 ; their
meetings, 202 ; parlement's share
in, 203 ; meetings at the Chancel-
lor's, 206; discussion of the ordi-
nance, 207 ; composition of assem-
bly, 207; details of conferences,
208; a real Code, 272; what it
accomplished, 273 ; observance
of, 275; commentators on, 286.

Ordinances construed by judges, 278.

Ordinances relating to criminal
procedure in France ; of 1254, 96 ;
regulating torture. 111 ; of 1260,
105; of 1315; of 1347, 116, 117;
of 1350. 117; of 1498, 145; of
1539, 40, 145, 174, 275; pro-
tests against, 165; of Orleans,
1560, 174; of Moulins, 1566,
174; of Blois, 1579, 174.

Ordinary misdemeanors, 213.

" Ordinary " procedure, 121, dis-
tinguished from "extraordinary,"
126, 133, 145; when adopted,
126, 127.

"Oyer and terminier," courts of, 344.

Parlement, the, 49, 53; and the
drafting of the Ordinance of 1670,
203.

Parlements, provincial, 53.

Peers of accused, trial by, 5.

"Peine forte et dure," 333, 345.

Penal orders, 605.

Personal citation, 221.

Personal presence of parties, 5.

Pescatore, 615.

"Pesquesidores," 299.

"Pesquisa," 297, 298, 299.

Pessina, Enrico, 615.

Petty jury, its composition in Eng-
land, 334.

Philosophic movement of 17008,
359.

Placentinus, glossator, 610.

Planck, 616.

Pleas of the crown, 340.

637

INDEX

Police, administrative, 44 ; judicial,
43.

Police, judicial, 43.

Police courts, 46; English, 349;
court of correctional police, 435.

Pothier on criminal procedure, 379.

PouUain du Pare, 376.

Precedence of judges, 212.

Preliminary examination, 12; its
features, 45; its documents and
forms, 505; changes in, 539; in
principal European systems, 599;
Germany, 600; Austria, 600;
Switzerland, 601 ; Russia, 602 ;
Hungary, 602; England, 341,
343, 348, 349, 603 ; Scotland, 603.

Preliminary investigation, in Roman
criminal procedure, 21.

"Present misdeed," 124.

Presentment, in England, 337, 338,
344.

Presidials, 53.

Presumptions, 261 ; in feudal pro-
cedure, 252; relative strength,
254 ; proximate and remote, 258,
^68, 269 ; manifest and necessary,
261 ; added together, 265 ; nearer
presumptions, 268 ; as a method
of proof, 624.

"Pr6v6tal" cases, 53, 454.

'*Pr6v6tal" jurisdictions, 216; reg-
ulated by Ordinance of 1670,
217 ; by Declaration of 1731, 218.

"Pr6v6ts,"49.

Primitive Germanic criminal pro-
cedure, its general characteristics,
30; the judicial power exercised
by the people, 32 ; trial by battle,
ordeal and compurgators, 34.

Prior sentence agamst another, 155.

Prison regulation, 224.

Prisons, in 1600 s and 1700 s, 223.

Privileged causes, 52, 213; their
|jowth, 52.

Privileged classes, 218.

Procedure, criminal, its three types,
3.

"Processus per' inquisitionem," 79,
80 ; resistance to, 83 ; its details,
88-91 ; its modifications, 92.

"Procureur de la R^publique,"
his function, 42.

Progress of spirit of reform, 383.

"Promoter," 87.

"Promoter fiscal," in Spain, 301.

" Promovens " equivalent to accuser,
87.

Proof, convincing, origin of the
system of, 627.

Proof, four methods of, 622;
methods of, in England, 326, 327.

Proof of "corpus delicti," 622.

"Proof, jur>%'^629.

Proofs, under customary law, 251 ;
complete, 258; legal, disappear-
ance of system of, 630; moral,
in England, 330; legal, in Eng-
land, 330, 332; moral, 434; in-
struction to jury* 516.

Proof, theory of, in feudal procedure,
57 ; altered by Ordinance of 1260,
253.

Prosecution, 241 ; its chief features
in Eiux)pean systems, 596.

Proximate indications, 625.

Proximate presumptions, 254, 258;
called half-proofs, 264.

Prussian Criminal Regulations, 322.

Public and civil actions distin-
guished, 429.

Publicists and the jury, 477.

Publicitv of trials, 3, 46 ; demanded
in Cahiers, 397.

Public prosecutor, 3, 11, 114, 121;
removable, 43; fiirst appears in
1300 s, 114; king's procurators,
115, 119; their functions, 118,
149; in Italy, 294; reconsti-
tuted, 437; separation of powers
of examining magistrate and, 500.

Puglia, 616.

"Purgatio canonica," 81.

"Puigatio vulgaris," 84.

Pussort, 189, 190, 191, 199, 203,
208, 209, 211, 212, 214; his
character, 183.

Putting out of court, 238.

Qu»stiones, 15.

"Querela partis offenssB," 292.

Questions to jury, 513, 531, 538.

Recent legislation and bills in-
troduced, 547.

"Recognitiones," 325.

Reform of criminal procedure, re-
cent plans for, 546.

Rehabihtation, 524.

Religious phase of the system of
evidence, 618.

Remote indications, 625.

Remote presumptions, 258.

Renazzi, 613.

Report of criminal action, 157, 232.

Representation, none in feudal pro-
cedure, 56.

Reprieve, 523.

Reserved justice, 245, 523; its
abolition demanded^ 401.

Res judicata, 522.

Retraction by witness, 155, 231, 400.

Revision, 526.

638

INDEX

Kiel, 616.

Risi, 614.

Rofredus, glossator, 610.

Roman criminal procedure, its
general characteristics, 13; early
tribunals, 14; qusBstiones, 15;
judices, 17; compared with
modem jurors, 17; accusatorial
in its nature, 18 ; effect of lack of
general criminal system, 20; acts
I>reliminary to trial, 20; pre-
liminary investigation, 21 ; trial,
23 ; changes under the Empire, 26.

Roumanian legislation since 1800,
592.

Rousseau la Combe, 379, 380.

Royal causes, 49, 212 ; their growth,
51.

Royal jurisdictions, their develop-
ment, 50.

"Riigegerichte," the, 302.

Rulf, 616.

Ruling to "extraordinary" action,
230.

Russian legislation since 1800, 590.

Salmon case, the, 387.

Saluto, 616.

*'Sch5ffen," their withdrawal, 322.

Schwarze, 616.

Schwarzenberg,the ' * Bambergensis,
305, 318.

Scientific phase of the system of
evidence, 619.

Scotland, its legislation since 1800,
589 ; prosecution in, 599.

Searches and seizures, 506.

Secrecy, of procedure, 220; criti-
cized by Ayrault, 169; of judg-
ment, 159.

Secret procedure reappears, 439;
contested, 442.

Siguier, his defense of the Ordinance
of 1670, 374.

Seigniorial courts, 212.

Self-defense, 155.

"Sendgerichte," the, 315, 316.

Seneschals, 49, 52.

Sentimental phase of the system of
evidence, 619.

Separation of powers of public pros-
ecutor and examimng niagis-
trate, 500.

SerpiUon, 378.

Servan, 383, 614.

Servian legislation since 1800, 592.

••Siete Partidas," 298.

Soudanese Ic^slation since 1800, 593.

Spain, criminal procedure in, 295;
"Fueros," 296; **Puero Viejo,"
296; **Fuero Real," 297; "Fuero

»)

Ju2go,"296,297; **pesquisa,"297;
described, 298 ; **Siete Partidas,"
298,300; "Leyesderecopilacidn,"
301 ; "Nueva recopilacidn," 301 ;
'*Novissima recopilaci6n," 301 ;
procedure compared with French
system, 301 ; prosecution in, 597.

Spanish legislation since 1800, 584.

Special courts, 46 ; in draft of Code
of Criminal Examination, 486;
Code of Criminal Examination,
517; committee report on, 518;
discussion regarding, 520; aboli-
tion of, 530. See also Exceptional
courts.

Sp6e, Theodore, 613.

Star Chamber, 331 ; its abuses, 341 ;
its abolition, 341.

State's Council and the jury, 483.

States-General of 1500 s and crimi-
nal procedure, 174.

Stipendiary magistrates, in Eng-
land, 349.

Stubel, 616.

Summary procedure, 604.

Summing up by judge, abolished,
534.

Summons to be heard, 221.

Suspicion, arrest on, 62.

Swedish legislation since 1800, 593.

Switzerland, its legislation since
1800, 586.

Talon and the drafting of the Ordi-
nance of 1670, 208, 209, 214.

Tancredus, 610.

Testimonial proof, 259; in feudal
procedure, 60 ; its nature, 623.

Theory of proof, in feudal procedure,
57 ; altered by Ordinance of 1260,
253.

''Three men condemned to the
wheel," 388.

Time of first interrogation, 507.

"Tiroler Malefizordnung," 304.

Tolomei, 615.

Torture, 9, 91, 107, 129, 134, 136,
147, 234, 267, 269, 626; its in-
troduction in France, 197; in
barbarian systems of law, 108;
under feudal system, 110; reg-
ulated by Ordinances, 111, 113;
protests against, 112; causes of
introduction, 112; power to re-
peat, 114, 138; preparatory, 137,
157; preliminary, 137, 236;
gradations of, 137; appeal to
Parlement, 141 ; ordinary and
extraordiDary, 234 ; varieties, 157,
235; reflation of, 255; under
reservation of proofs, 270; in

639

INDEX

Spain, 296, 299, 300, 301; in
Germany, 304, 307, 308 ; Moli^re
regarding, 351 ; Racine regarding,
351 ; Augustin Nicolas regarding,
352 ; La Bruy^re regarding, 352 ;
Madame de S^vignfi regarding,
352; Despeisses regarding, 358;
abolition of, demanded by Cahiers,
400.

*'Tournelle," the, 53.

Trial, by peers of accused, 5; final,
12 ; in Roman criminal procedure,
23 ; by jury, in England, 332 ; by
jury adopted, 497; its chief
features m principal European
systems, 604.

Trial court, proceedings before, 510.

Trial jury, proceedings before, 433.

Trial, proper, its course, in England,
345.

Tribunal of the first instance, 42.

Turkey, its legislation since 1800,
593.

Ullmann, 616.

Unanimity of jury in England, 325,
346.

Union of systems of justice, 489.

United States of America, its legis-
lation since 1800, 593; prosecu-
tion in, 599.

Unity of civil and criminal justice,
42, 47 ; merely organic, 42.

Vargha, 616.

Venezuela, its legislation since 1800,
595.

Verdict, in England, 346.

**Viguier," 50.

Voltaire, 614 ; on criminal procedure,

360, 361, 362, 364r-369.
Voluntary payment of fine, 605.
Voting by jury, 531.

Wagers of battle, 39; their dis-
appearance in France, 105, 107.

Warrants, 221, 431, 506 ; to arrest,
221 ; of commitment contested,
441.

Witness, accused a voluntary, in
England, 350.

Witnesses, objections to, 154, 171,
231; retraction by, 155, 231,
400; fees, 221; English jurors
originally, 324 ; cease to be. 328 ;
introduction of, in England, 335;
depositions written, 534; how
taken, 536.

**Worniser Reformation," 304.

Writing, in the criminal procedure,
434; in contumacy proceedings
and correctional police matters,
515.

Writ of error, 242; in England,
346.

Written procedure in draft of Code
of Criminal Examination, 489.

Written proof, 260, 624.

ZacharisB, 616.
**Zent," the, 302.
Zuppetts, 615.

640

DATE DUE

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