THE COURTS OF LAW.
While the greater and more conspicuous part of the French nobility lived
by the sword, a highly respectable portion of the order wore the
judicial gown. Prominent in French affairs in the eighteenth century we
find the Parliaments, a branch of the old feudal courts of the kings of
France, retaining the function of high courts of justice, and playing,
moreover, a certain political part. In the Parliament of Paris, on
solemn occasions, sat those few members of the highest nobility who held
the title of Peers of France. With these came the legal hierarchy of
First President, presidents _à mortier_ and counselors, numbering
about two hundred. The members were distributed, for the purposes of
ordinary business, among several courts, the Great Chamber, five courts
of Inquest, two courts of Petitions, etc.[Footnote: Grand' Chambre,
Cour des Enquêtes, Cour des Requêtes.] The Parliament of Paris possessed
original and appellate jurisdiction over a large part of central
France,--too large a part for the convenience of suitors,--but there
were twelve provincial parliaments set over other portions of the
kingdom. The members of these courts, and of several other tribunals of
inferior jurisdiction, formed the magistracy, a body of great dignity
and importance.
We have seen that the church possessed certain political rights; that it
held assemblies and controlled taxes. The political powers of the
parliaments were more limited, amounting to little more than the right
of solemn remonstrance. Under a strong monarch, like Louis XIV., this
power remained dormant; under weak kings, like his successors, it became
important.
The method of passing a law in the French monarchy was this. The king,
in one of his councils, issued an edict, and sent it to the Parliament
of Paris, or to such other Parliaments as it might concern, for
registration. If the Parliament accepted the edict, the latter was
entered in its books, and immediately promulgated as law. If the
Parliament did not approve, and was willing to enter on a contest with
the king and his advisers, it refused to register. In that case the king
might recede, or he might force the registration. This was done by means
of what was called a _bed of justice_. His Majesty, sitting on a
throne (whence the name of the ceremony), and surrounded by his officers
of state, personally commanded the Parliament to register, and the
Parliament was legally bound to comply. As a matter of fact, it did
sometimes continue to remonstrate; it sometimes adjourned, or ceased to
administer justice, by way of protest; but such a course was looked on
as illegal, and severe measures on the part of the king and his
counselors--the court, as the phrase went,--were to be expected. These
measures might take the form of imprisonment of recalcitrant judges, or
of exile of the Parliament in a body. Sometimes new courts of justice,
more closely dependent on the king's pleasure, were temporarily
established. Such were the Royal Chamber and the famous Maupeou
Parliament under Louis XV., the Plenary Court of Louis XVI. Had these
monarchs been strong men, the new courts would undoubtedly have
superseded the old Parliaments altogether; as it was, they led only to
confusion and uncertainty.[Footnote: Du Boys, Hist. du droit criminel
de la France, ii. 225, 239.]
Throughout the reign of Louis XV. the Parliament of Paris was fighting
against the church, while the court repeatedly changed sides, but
oftener inclined to that of clergy. The controversy was theological in
its origin, the magistrates being Jansenist in their proclivities, while
the Church of France was largely controlled by the Molinist, or Jesuit
party. The contest was long and doubtful, neither side obtaining a full
victory. It was the fashion in the Philosophic party to represent the
whole matter as a miserable squabble. Yet, apart from the importance of
the original controversy, which touched the mighty but insoluble
questions of predestination and free-will, the quarrel had a true
interest for patriotic Frenchmen. The Roman Church was contending for
the absolute and unlimited control of religious matters; the Parliament
for the supremacy of law in the state.
In the reign of Louis XVI. the Parliament was principally engaged in
struggles of another character. The magistrates were members of a highly
privileged class. Their battle was arrayed for vested rights against
reforms. From the time of Turgot to that of Lomenie de Brienne and the
Notables, the Parliament of Paris, sometimes in sympathy with the
nation, sometimes against it, was vigorously resisting innovations. Yet
so great was the irritation then felt against the royal court that the
Parliament generally gained a temporary popularity by its course of
opposition.
The courts of justice, and especially the Parliaments, were controlled
by men who had inherited or bought their places.[Footnote: Under Louis
XIV, the price of a place of _président à mortier_ was fixed at
350,000 livres, that of a _maître des requêtes_ at 150,000 livres,
that of a counselor at 90,000 to 100,000 livres. The place of First
President was not venal, but held by appointment. Martin, xiii. 53 and
n. The general subject of the venality of offices is considered in the
chapter on Taxation.] This, while offering no guarantee of capacity,
assured the independence of the judges. As the places were looked on as
property, they were commonly transmitted from father to son, and became
the basis of that nobility of the gown which played a large part in
French affairs. The owner of a judicial place was obliged to pass an
examination in law, before he could assume its duties and emoluments.
This examination differed in severity at different times and in the
different Parliaments. In the latter part of the eighteenth century it
would appear to have been very easy at Paris, but harder in some of the
provinces. The Parliaments, in any case, retained control over admission
to their own bodies. Although they could not nominate, they could refuse
certificates of capacity and morality. They insisted that none but
counselors should be admitted to the higher places, and that candidates
should be men of means, "so that, in a condition where honor should be
the only guide, they might be able to live independently of the profits
accessory to their labors, which should never have any influence." This
caution was especially necessary as the judges were paid in great
measure by the fees, or costs, which under the quaint name of spices
were borne by the parties. Originally these fees had in fact consisted
of sugar plums, not more than could be eaten in a day, but subsequently
they had been commuted and increased until they amounted to considerable
sums.[Footnote: Bastard d'Estang, i. 122, 245; Du Boys, 535.]
By requiring pecuniary independence and social position, together with a
certain amount of learning and of personal character, the tone of the
upper courts was kept good, the magistrates being generally among the
most learned, solid, and respectable men in France. They seem also to
have been hard-working and honest, although prejudiced in favor of their
own privileged class. As the Revolution drew near, they fell into the
common weakness of their age and country, the worship of public opinion,
and the love of popularity. We find the Parliament of Paris undergoing,
and even courting, the applause of the mob in its own halls of justice.
Like the great Assembly which was soon to have in its hands the
destinies of France, the most dignified court of justice in the land
failed to perceive that the deliberative body that allows itself to be
influenced or even interrupted by spectators, will soon, and deservedly,
lose respect and power.[Footnote: De Tocqueville praises the
independence of the old magistrates, who could neither be degraded nor
promoted by the government, Oeuvres, iv. 171 (Ancien Régime, ch. xi.).
Montesquieu, iii. 217 (Esp. des lois, liv. v. ch. xix.). Mirabeau, L'Ami
des hommes, 212, 219. Bastard d'Estang, ii. 611, 621. Grimm, xi. 314.]
When we pass from the consideration of the political functions of the
Parliaments, and of their composition, to that of the ordinary
administration of justice, we are struck by the diversity of the law in
civil matters, and by its severity in criminal affairs. The kingdom of
France, as it existed in the eighteenth century, was made up of many
provinces and cities, various in their history. Each one had its local
customs and privileges. The complication of rules of procedure and
rights of property was almost infinite. The body of the law was derived
from sources of two distinct kinds, from feudal custom and from Roman
jurisprudence. The customs which arose, or were first noted, in the
Middle Ages, originating as, they did in the manners of barbarian
tribes, or in the exigencies of a rude state of society, were products
of a less civilized condition of the human mind than the laws of Rome.
From a very early period, therefore, the most intelligent and educated
lawyers all over Europe were struggling, more or less consciously, to
bring customary feudal law into conformity with Roman ideas. These
legists recognized that in many matters the custom had definitely fixed
the law; but whenever a doubtful question arose, they looked for
guidance to the more perfect system. "The Roman law," they said, "is
observed everywhere, not by reason of its authority, but by the
authority of reason." This idea was peculiarly congenial to the tone of
thought current in the eighteenth century.
Even in England the common and customary law was enlarged at that time
and adapted to new conditions in accordance with Latin principles, by
the genius of Lord Mansfield and other eminent lawyers. In France the
process began earlier and lasted longer. Domat, d'Aguesseau, and Pothier
were but the successors of a long line of jurists. By the time of Louis
XVI., some uniformity of principle had been introduced; but everywhere
feudal irregularity still worried the minds of Philosophers and vexed
the temper of litigants. The courts were numerous and the jurisdiction
often conflicting. The customs were numberless, hardly the same for any
two lordships. To the subjects of Louis XVI., believing as they did that
there was a uniform, natural law of justice easily discoverable by man,
this state of things seemed anomalous and absurd. "Shall the same case
always be judged differently in the provinces and in the capital? Must
the same man be right in Brittany and wrong in Languedoc?" cries
Voltaire. And the inconvenience arising from this excessive variety of
legal rights, together with the vexatious nature of some of them, did
more perhaps than any other single cause to engender in the men of that
time their too great love of uniformity.[Footnote: "Servatur ubique jus
romanum, non ratione imperii, sed rationis imperio." Laferrière, i. 82,
532. See Ibid., i. 553 n., for a list of eighteen courts of
extraordinary jurisdiction, and of five courts of ordinary jurisdiction,
viz.; 1, Parlemens, 2, Présidiaux, 3, Baillis et sénéchaux royaux, 4,
Prévôts royaux, 5, Juges seigneuriaux. Voltaire, xxi. 419 (_Louis
XV._), Sorel, i. 148.]
It has been said that the judges of the higher courts were generally
honest. In the lower courts, and especially in those tribunals which
still depended on the lords, oppression and injustice appear to have
been not uncommon. The bailiffs who presided in them were often partial
where the interests of the lords whose salaries they received were
concerned. And even when we come to the practice before the Parliaments,
the American reader will sometimes be struck with astonishment at the
extent to which members of those high tribunals were allowed by custom
to be influenced by the private and personal solicitation of parties.
The whole spirit of the continental system of civil and criminal law is
here at variance with that of the Anglo-Saxon system. English and
American judges are like umpires in a conflict; French judges like
interested persons conducting an investigation. The latter method is
perhaps the better for unraveling intricate cases, but the former would
seem to expose the bench to less temptation. A judge who is long
closeted with each of the contestants alternately must find it harder to
keep his fingers from bribes and his mind from prejudice than a judge
who is prevented by strict professional étiquette from seeing either
party except in the full glare of the court-room, and from listening to
any argument of counsel, save where both sides are represented.
Accusations of bribery, even of judges, were common in old France. The
lower officers of the court took fees openly. Thick books, under the
name of mémoires, were published, with the avowed intention of
influencing the public and the courts in pending cases.[Footnote: For a
statement that influential persons went unpunished in criminal matters
and got the better of their adversaries in civil matters by means of
_lettres de cachet_, and for instances, see Bos. 148; a long list
of iniquitous judgments, Ibid., 190, etc.]
One judicial abuse especially contrary to fair dealing had become very
common. Powerful and influential persons could have their cases removed
from the tribunals in which they were begun, and tried in other courts
where from personal influence they might expect a more favorable result.
It was not only the royal council that could draw litigation to itself.
The practice was widespread. By a writ called _committimus_, the
tribunal by which an action was to be tried could be changed.
This appears to have been a frequent cause of failure of justice.
As for the criminal proceedings of the age, there was hardly a limit to
their cruelty. Under Louis XV. the prisons were filthy dens, crowded and
unventilated, true fever-holes. A private cell ten feet square, for a
man awaiting trial, cost sixty francs a month. Large dogs were trained
to watch the prisoners and to prevent their escape. Twice a year, in May
and September, the more desperate convicts left Paris for the galleys.
They made the journey chained together in long carts, so that eight
mounted policemen could watch a hundred and twenty of them. The galleys
at Toulon appear to have been less bad than the prisons in Paris. They
were kept clean and well-aired, and the prisoners were fairly well fed
and clothed; but some of them had been imprisoned for forty, fifty, or
even sixty years. They were allowed to for themselves and to earn a
little money. They were divided into three classes, deserters,
smugglers, and thieves, distinguished by the color of their caps.
[Footnote: Mercier, iii. 265, x. 151. Howard, Lazarettos, 54.]
Torture was regarded as a regular means for the discovery of crime. It
was administered in various ways, the forms differing from province to
province. They included the application of fire to various parts of the
body, the distension of the stomach and lungs by water poured into
mouth, thumbscrews, the rack, the boot. These were but methods of
investigation, used on men and women whose crime was not proved. They
might be repeated after conviction for the discovery of accomplices. The
greater part of the examination of accused persons was carried on in
private, and during it they were not allowed counsel for their defense.
They were confronted but once with the witnesses against them, and that
only after those witnesses had given their evidence and were liable to
the penalties of perjury if they retracted it. Many offenses were
punishable with death. Thieving servants might be executed, but under
Louis XVI. public feeling rightly judged the punishment too severe for
the offense, so that masters would not prosecute nor judges condemn for
it.[Footnote: Counsel were not allowed in France for that important
part of the proceedings which was carried on in secret. Voltaire,
xlviii. 132. In England, at that time, counsel were not allowed of right
to prisoners in cases of felony; but judges were in the habit of
straining the law to admit them. Strictly they could only instruct the
prisoner in matters of law. Blackstone iv. fol. 355 (ch. 27). The
English seem for a long time to have entertained a wholesome distrust of
confessions. Blackstone, _ubi supra_. How far is the Continental
love of confessions derived from the church; and how far is the love of
the church for confessions a result of the ever present busybody in
human nature?]
Other criminals did not escape so easily. A most barbarous method of
execution was in use. The wheel was set up in the principal cities of
France. The voice of the crier was heard in the streets as he peddled
copies of the sentence. The common people crowded about the scaffold,
and the rich did not always scorn to hire windows overlooking the scene.
The condemned man was first stretched upon a cross and struck by the
executioner eleven times with an iron bar, every stroke breaking a bone.
The poor wretch was then laid on his back on a cart wheel, his broken
bones protruding through his flesh, his head hanging, his brow dripping
bloody sweat, and left to die. A priest muttered religious consolation
by his side. By such sights as these was the populace of the French
cities trained to enjoy the far less inhuman spectacle of the
guillotine.[Footnote: Mercier, iii. 267. Howard says that the gaoler at
Avignon told him that he had seen prisoners under torture sweat blood.
Lazarettos, 53.]
It was not until the middle of the century that men's minds were fairly
turned toward the reform of the criminal law. Yet eminent writers had
long pointed out the inutility of torture. "Torture-chambers are a
dangerous invention, and seem to make trial of patience rather than of
truth," says Montaigne; but he thinks them the least evil that human
weakness has invented under the circumstances. Montesquieu advanced a
step farther. He pointed out that torture was not necessary. "We see
today a very well governed nation [the English] reject it without
inconvenience." ... "So many clever people and so many men of genius have
written against this practice," he continues, "that I dare not speak
after them. I was about to say that it might be admissible under
despotic governments, where all that inspires fear forms a greater part
of the administration; I was about to say that slaves among the Greeks
and Romans,--but I hear the voice of nature crying out against me."
Voltaire attacked the practice in his usual vivacious manner; but, with
characteristic prudence suggested that torture might still be applied in
cases of regicide.[Footnote: Montaigne, ii. 36 (liv. ii. ch. v). So I
interpret the last words of the chapter. Montesquieu, iii. 260
(_Esprit des Lois,_ liv. vi. ch. 17). Voltaire, xxxii. 52
(_Dict. philos. Question_), xxxii. 391 (_Ibid., Torture_).]
Such scattered expressions as these might long have remained unfruitful.
But in 1764 appeared the admirable book of the Milanese Marquis
Beccaria, and about thirteen years later the Englishman John Howard
published his first book on the State of the Prisons. Beccaria shared
the ideas of the Philosophers on most subjects. Where he differed from
them, it was as Rousseau differed, in the direction of socialism. But in
usefulness to mankind few of them can compare with him. From him does
the modern world derive some of its most important ideas concerning the
treatment of crime. Extreme, like most of the Philosophers of his age;
unable, like them, to recognize the proper limitations of his theories,
he has yet transformed the thought of civilized men on one of the most
momentous subjects with which they have to deal. So great is the change
wrought in a hundred years by his little book, that it is hard to
remember as we read it that it could ever have been thought to contain
novelties. "The end of punishment... is no other than to prevent the
criminal from doing farther injury to society, and to prevent others
from committing the like offense." "All trials should be public." "The
more immediately after the commission of a crime the punishment is
inflicted, the more just and useful it will be." "Crimes are more
effectually prevented by the _certainty_ than by the severity of
punishment." These are the commonplaces of modern criminal legislation.
The difficulty lies in applying them. In the eighteenth century their
enunciation was necessary. "The torture of a criminal during his trial
is a cruelty consecrated by custom in almost every nation," says
Beccaria. Indeed it seems to have been legal in his day all over the
Continent, although restricted in Prussia and obsolete in practice in
Holland. Beccaria opposed torture entirely, on broad grounds. As to
torture before condemnation he holds it a grievous wrong to the
innocent, "for in the eye of the law, every man is innocent whose crime
has not been proved. Besides, it is confounding all relations to expect
that a man should be both the accuser and the accused, and that pain
should be the test of truth; as if truth resided in the muscles and
sinews of a wretch in torture. By this method, the robust will escape
and the weak will be condemned." The penalties proposed by Beccaria are
generally mild,--he would have abolished that of death altogether,--his
reliance being on certainty and not on severity of punishment.
[Footnote: Beccaria, _passim_. Lea, _Superstition and Force_,
515.]
It was not to be expected that Beccaria's book should work an immediate
change in the manners of Christendom. The criminal law remained
unaltered at first, in theory and practice. But the consciences of the
more advanced thinkers were affected. In 1766, at Abbeville, a young man
named La Barre was convicted of standing and wearing his hat while a
religious procession was passing, singing blasphemous songs, speaking
blasphemous words, and making blasphemous gestures. There was much
popular excitement at the time on account of the mutilation of a
crucifix standing on a bridge in the town, but La Barre was not shown to
have been concerned in this outrage. The judges at Abbeville appear to
have laid themselves open to the accusation of personal hostility to
him. The young man, having been tortured, was condemned to make public
confession with a rope round his neck, before the church of Saint
Vulfran, where the injured crucifix: had been placed, to have his tongue
cut out, to be beheaded, and to have his body burned. This outrageous
sentence was confirmed by the Parliament of Paris. The superstitious
king, Louis XV., would not grant a pardon. The capital sentence was
executed, but the cutting out of the tongue was omitted, the executioner
only pretending to do that part of his work. La Barre's head fell, amid
the applause of a cruel crowd which admired the skillful stroke of the
headsman. A thrill of indignation, not unmixed with fear, ran through
the liberal party in France. The anger and grief of Voltaire were loudly
expressed. It was at least an improvement on the state of public feeling
in former generations that such severity should not have met with
universal acquiescence.[Footnote: The best account of the affair of La
Barre which I have met is in Desnoiresterres, _Voltaire et
Rousseau_, 465.]
The practice of torture was not without defenders. One of them asked
what could be done to find stolen money if the thief refused to say
where he had hidden it. But this was not his only argument. "The accused
himself," he said, "has a guarantee in torture, which makes him a judge
in his own case, so that he becomes able to avoid the capital punishment
attached to the crime of which he is accused." And this writer
confidently asserts that for a single example which might be cited in
two or three centuries of an innocent man yielding to the violence of
torture, a million cases of rightful punishment could be mentioned.
[Footnote: Muyard de Vougland, quoted in Du Boys, ii. 205 ]
Yet the march of progress was fairly rapid in the latter part of the
eighteenth century. In the jurisprudence of that age a distinction was
made between preparatory torture, which was administered to suspected
persons to make them confess, and previous torture, which was
inflicted on the condemned, previous to execution, to obtain the
accusation of accomplices. The former of these, by far the greater
disgrace to civilization, was abolished in France on the 24th of
August, 1780; the latter not until, 1788, and then only provisionally.
Thus was one of the greatest of modern reforms accomplished before the
Revolution. About the same time many ordinances were passed for the
amelioration of French prisons. They were about as bad as those of
other countries, and that was very bad indeed.[Footnote: _Question
préparatoire; question préalable, sometimes called q. définitive_.
Desmaze, _Supplices_, 177. Desjardins, p. xx. Howard, _passim_. The
English have long boasted that torture is not allowed by their law;
and although the _peine forte et dure_ was undoubted torture, the
boast is in general not unfounded. Torture was abolished in several
parts of Germany in the eighteenth century, but lingered in other
parts until the nineteenth. It was not done away in Baden until
1831. Lea, _Superstition and Force_, 517.]
The courts of law did not act against persons alone. The Parliament of
Paris was in the habit of passing condemnation on books supposed to
contain dangerous matter. The suspected volume was brought to the bar
of the court by the advocate general, the objectionable passages were
read, and the book declared to be "heretical, schismatical, erroneous,
blasphemous, violent, impious," and condemned to be burned by the public
executioner. Then a fagot was lighted at the foot of the great steps
which may still be seen in front of the court-house in Paris. The street
boys and vagabonds ran to see the show. The clerk of the court, if we
may believe a contemporary, threw a dusty old Bible into the fire, and
locked the condemned book, doubly valuable for its condemnation, safely
away in his book-case.[Footnote: Mercier, iv. 241.]
As for the author, the Parliament would sometimes proceed directly
against him, but oftener he was dealt with by an order under the royal
hand and seal, known as a _lettre de cachet_[Footnote: The
_lettre de cachet_ was written on paper, signed by the king, and
countersigned by a minister. It was so sealed that it could not be
opened without breaking the seal. It was reputed a private order.
Larousse.] Arbitrary imprisonment, without trial, is a thing so
outrageous to Anglo-Saxon feelings that we are apt to forget that it has
until recent years formed a part of the regular practice of most
civilized nations. It is considered necessary to what is called the
_police_ of the country, a word for which we have in English no
exact equivalent. Police, in this sense, not only punishes crime, but
averts danger. Acts which may injure the public are prevented by
guessing at evil intentions; and criminal enterprises are not allowed to
come to action.
This sort of protection is a part of the function of every government;
but on the Continent, in old times, and still in some countries, long
and painful imprisonment of men who had never been convicted of any
crime was considered one of the proper methods of police. It was
justified in some measure in French eyes by the fact that secrecy saved
the feelings of innocent families, which thus did not suffer in the
public estimation for the misdeeds of one unruly member. In France,
where the family is much more of a unit than in English-speaking
countries, the disgrace of one person belonging to it affects the others
far more seriously. The _lettre de cachet_ of old France, confining
its victim in a state prison, was too elaborate a method to be used with
the turbulent lower classes--for them there were less dignified forms of
proceeding; but it was freely employed against persons of any
consequence. Spendthrifts and licentious youths were shut up at the
request of their relations. Authors of dangerous books were readily
clapped into the Bastille, Vincennes or Fors l'Evêque. Voltaire,
Diderot, Mirabeau, and many others underwent that sort of confinement;
and the first of them is said to have procured by his influence the
incarceration of one of his own literary enemies. Fallen statesmen were
fortunate when they did not pass from the cabinet to the prison, but
were allowed the alternative of exile, or of seclusion in their own
country houses. But this was not the worst. The _lettre de cachet_
was too often the instrument of private hate. Signed carelessly, or even
in blank, by the king, it could be procured by the favorite or the
favorite's favorite, for his own purposes. And if the victim had no
protector to plead his cause, he might be forgotten in captivity and
waste a lifetime.
For such abuses as this, there is no remedy but publicity. If, on the
one hand, too much has been made of the romantic story of the Bastille,
which was certainly not a standing menace to most peaceable Frenchmen,
too great stress, on the other hand, may be laid on the undoubted fact
that under Louis XVI. the grim old fortress contained but few prisoners,
and that some of them were persons who might have been cast into prison
under any system of government. In the reign of that king's immediate
predecessor great injustice had been committed. Nor had arbitrary
proceedings been entirely renounced by the government of Louis XVI.
itself. In the very last year before that in which the Estates General
met at Versailles, the royal ministers imprisoned in the Bastille twelve
Breton gentlemen, whose crime was that they importunately presented a
petition from the nobles of their province. The apartments which they
were to occupy were filled with other prisoners, so room was made by
removing these unhappy occupants to the madhouse at Charenton, whence
they were released only in the following year by order of a committee of
the National Assembly.[Footnote: Barère, i. 281. Perhaps the most
terrifying thing about the Bastille was that no one really knew what
went on inside. Mercier thinks that the common people were not afraid of
it, iii. 287, 289.]