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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 



BY 

A. ESMEIN 

PROFESSOR IN THE FACULTY OF LAW OF PARIS 

TRANSLATED BY 

JOHN SIMPSON 

OF NEW YORK 
WITH AN EDITORIAL PREFg^CE BY 



,1 



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 






Copyright^ 1915, 
By Little, Brown, and Company. 



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- 

• 

IX 



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- 

xu 



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. 



xm 



1 



A HISTORY OF CONTINENTAL 
CRIMINAL PROCEDURE 



f 



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 



34 



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 



39 



41 



42 



§ 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 



43 



46 



46 



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- 



47 



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 . 


64 


. 55 


§7. 


Detention pending Trial 




57 




and Bail 


68 


. 61 


§8. 


Procedure by Contumacy . 


73 


. 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 



XX 



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- 

by 

§ 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 



I 



§ 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. 



xl 



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. 

3 



§ 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. 

5 



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. 

6 



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 

8 



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." 

9 



/ 



§ 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- 

10 



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. 

11 



§ 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. 



12 



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 

13 




§ 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 

14 



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 

15 



§ 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. 

16 



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. 

17 



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. 

18 



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. 

19 



§ 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. 

20 



4( 



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. 

21 



' 



§ 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. 

22 



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. 

23 



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. 

24 



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. 

25 



§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. 

26 



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. 

27 



§ 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." 

28 



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. 

29 



§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. 

30 



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. 

31 



§ 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. 

32 



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. 

33 



§ 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). 

34 



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. 

35 



§ 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. 

36 



Pabt I 

fflSTORY OF CRIMINAL PROCEDURE IN FRANCE 

FROM THE 1200 s TO THE 1600 s 



37 



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.] 

39 



§ 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- 

40 



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. 

41 



-:) 



§ 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. 

42 



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. 

43 



§ 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 

44 



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- 

45 



§ 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. 

46 



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. 

47 



§ 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. 

48 



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). 

49 



§ 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. 

50 



1 



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." 

51 



§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, 

52 



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.'! 

53 



§ 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. 



# 



54 



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. 

55 



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. 

56 



• 



• 



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." 

57 



§ 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." 

58 




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. 

59 



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). 

60 



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." 

61 



§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." 

62 



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). 

63 



§ 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, 

64 



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 

65 



§ 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.) 

66 



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. 

67 



§ 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. 

68 



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 

69 



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. 

70 



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." 

71 



§ 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). 

72 



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 

73 



§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). 

74 



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). 

75 



§ 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." 

76 



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.*' 

77 



§ 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 

78 



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. 

79 






§ 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.] 

80 



l/ 



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. 

81 



/ 



§ 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 

82 






/ 



/ 



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. 

83 



yy 



J 



/ 



§ 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. 

85 



§ 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. 

86 



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." 

87 



y 



§ 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. 

88 



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. 

89 



§ 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. 

90 



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. 

91 



i 



§ 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, 

92 



/ 



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. 

93 



^ 



^ 



§ 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). 

94 



; 



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." 

95 



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. * " 

96 



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»- 

97 



§ 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. 

98 



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. 

99 



§ 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 



14 



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 



r 






/' 



§ 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 



A 



§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 ac cusat ion, 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 p roceedings. 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 



1 



*f 



§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 



I 



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 



A 



§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* sJ lProgress 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 

i 

» 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