An immense amount of time has been taken up already with the hearing

of witnesses who had nothing to say except to report that somebody had

told them something of which knowledge had come to him from the report

of somebody else, and friends of Monsieur and Madame Caillaux as well

as friends of Madame Caillaux’s victim have been allowed to spend hours

in the examining magistrate’s office at the Palace of Justice making

speeches on behalf of the prisoner or against her which were sometimes

interesting, which were more or less convincing, but which very rarely

formed any real evidence such as evidence is understood in England. And

all the while the collection of evidence goes on it is published in the

newspapers day by day and commented on at will. More than this,

witnesses, after their examination by the examining magistrate, are

interviewed in the newspapers, and columns of what they have said,

often with very little bearing on the case at all, often the mere

expression of opinion, are published. Sometimes the publication of

these interviews gives curious results. There have been cases where

a witness has said little of interest in the examining magistrate’s

room, and has been so effusive to a journalist afterwards that another

visit to the examining magistrate has become necessary, and has secured

evidence of value.

[Illustration: _Agence Nouvelle—Photo, Paris_

MME. CAILLAUX IN THE DRESS SHE WAS TO WEAR AT THE ITALIAN EMBASSY

ON THE EVENING OF THE MURDER]

The mass of work which the preliminary examination in a big criminal

trial entails may be gathered from the fact that the examining

magistrate’s opinion on the case when written out and handed into court

to be read at the beginning of the trial is frequently of such length

that it forms a volume by itself and takes many hours in the reading.

The judge who presides over the case has of course read the examining

magistrate’s opinion, and digested it very carefully before the case

comes into court, and in France it is the judge who conducts a trial

rather than counsel for the defence and for the prosecution.

During the preliminary examination of the Caillaux case, which finished

just before this volume went to press, several unanticipated points

arose. The reader, who has studied with any care the employment,

given in the first chapter of this book, of Madame Caillaux’s time on

March 16, 1914, will have noticed that some hours of the afternoon

were unaccounted for. A very bitter discussion on the employment of

those hours, a discussion in which Monsieur Caillaux, Madame Caillaux,

Monsieur Caillaux’s friends, the _Figaro_, the public bank clerks, the

keeper of the registry office where Madame Caillaux engaged a cook, the

cook herself, Madame Caillaux’s servants, her English governess Miss

Baxter—in which all kinds of people were allowed to take a hand, raged

for several days. It came about in the simplest manner. Madame Caillaux

said that she went to the registry office and engaged a cook early

in the afternoon. The keeper of the registry office said that Madame

Caillaux had engaged a cook late in the afternoon. The cook herself

didn’t remember exactly at what time she was engaged. Madame Caillaux’s

chauffeur remembered when he drove her to the registry office, but his

evidence is not considered incontrovertible because he is in Madame

Caillaux’s employ. Matters were complicated by the fact that Madame

Caillaux had been to the Crédit Lyonnais and to her safe there. The

strong room of the Crédit Lyonnais is officered by certain clerks who

hand each person who goes down to the strong boxes a ticket, duly

numbered, which is stamped with a mechanical dating stamp marking the

hour and minutes at which it is issued. Madame Caillaux’s ticket was

marked five o’clock. She maintained that she had been to the Crédit

Lyonnais an hour earlier, between four and five minutes past, and that

she had been home before she went there. For several days, argument

went on in the papers, in which all sorts of people took part, to

show that Madame Caillaux had told the truth or had lied about the

employment of her afternoon before the murder. This argument was

mainly for the purpose of proving or of disproving premeditation or

its absence. After several days’ newspaper discussion, an examination

of the mechanical stamp at the Crédit Lyonnais proved that it was very

unreliable and its use has now been discontinued by the bank.

One of the great difficulties in the task of the examining magistrate

in securing really relevant and really useful evidence in a crime

of this kind, is the French insistence on the need of and the right

to professional secrecy. As I have pointed out in another chapter,

while professional secrecy is in some cases a necessity, it is often

distinctly antagonistic to the search for the truth. It is not

unlikely that there might never have been any Caillaux drama at all

if professional secrecy had not been invoked on another occasion.

During Monsieur Boucard’s examination he was informed by two members

of Parliament that each of them had been told that Monsieur Calmette

had been in possession of the letters, the publication of which Madame

Caillaux feared so much. The examining magistrate very naturally wanted

to know who had supplied this information, and very naturally wanted to

question the informant. One of the two honourable deputies had given

his word of honour as a lawyer, the other had given his word of honour

pure and simple not to disclose the source of his information, with the

result that their evidence is no evidence at all, and that on the

other hand even if it be valueless the public and everybody interested

has been led to believe that there may be a good deal in it. But what

impresses the impartial observer more than anything else in connexion

with the preliminaries for a criminal trial in France is their

unfairness—the unfairness of the system—to the person who is to be

tried. For instance, after Monsieur Calmette’s death, the report of the

autopsy made by the two medical officers of health usually charged with

this duty, Doctor Socquet and Doctor Charles Paul, was handed by them

to the examining magistrate and was, immediately afterwards, published

_in extenso_ in the public press. The examining magistrate had also

received the evidence of the armourer, Monsieur Gastinne-Renette, and

his employees on Madame Caillaux’s visit to the shooting gallery, and

her trial of the revolver she bought there. An enterprising newspaper

secured a figure from the shooting gallery, marked it with the trial

shots as Madame Caillaux had shot them, and published this picture

opposite another one representing Monsieur Calmette, which was marked

with the wounds inflicted according to the autopsy. Does it not

seem an unheard of and unallowable crime against common sense and

common decency that the public should be offered such evidence of

premeditation by a newspaper while the case is still unheard?

Some idea of the evidence which is inflicted on the examining

magistrate in a case of this kind may be formed from that given

voluntarily by a young man named Robert Philippeau. Monsieur Philippeau

stated with some solemnity that he knew nothing about the drama, that

he did not know Monsieur Caillaux and that he had not known Monsieur

Calmette. He had been in the Nord Sud (a branch of the Paris Tube) in a

first-class carriage, one afternoon in the course of last winter. Two

ladies sat on the seat immediately behind him. One of them said in his

hearing, “She browbeat me, she laughed at me, she took him from me, but

I have four of his letters, and one of them is one which he does not

know I possess. I have shown these letters to Barthou, I have told him

that I am going to use them. He neither advised me to do so, nor

advised me not to. I will wait till they get to the top of the tree and

then I will pull them down headlong.” Monsieur Philippeau said that

he looked at the lady who had spoken. He did not know her by sight,

but when he saw the picture of Madame Gueydan-Dupré in the newspapers

he had no further doubt that it was she who had spoken, and that she

alluded to the letters of which we have heard so much.

To anyone who has ever seen in a Paris daily newspaper the reproduction

of the photograph of anyone he knows, the value of this “evidence”

is obvious. Madame Gueydan had no difficulty whatever in proving by

the evidence of several intimate friends that she had never been in

the Nord Sud in her life. And even if Madame Gueydan had travelled

every afternoon all through the winter in the first-class carriages

of the Nord Sud she would hardly have been likely to talk to a friend

in a loud voice of private affairs of such importance, or to mention

Monsieur Barthou’s name in connexion with them.

With regard to these letters, it is not yet certain that they will be

read in court, but it is to be hoped that the examining magistrate

may succeed in obtaining possession of them for this purpose, for on

the probability of their publication in the _Figaro_, and on Madame

Caillaux’s belief that their publication might occur, rests one of

the principal pleas for the defence. In her examination on the motive

for her crime before the examining magistrate, Monsieur Boucard, the

prisoner was asked why she was so afraid at the idea of the publication

of the two letters which Monsieur Caillaux had written to her in 1909

when he was still the husband of Madame Gueydan, as Madame Caillaux

at that time was already divorced from her first husband, Monsieur

Léo Claretie. “These letters,” said the prisoner, “were intimate in

nature, and I resented and feared the possibility of their publication.

My situation and my reputation could be attacked by the help of these

letters.” “That being so,” said Monsieur Boucard, “why did you give

them back to Monsieur Caillaux?” “When he wrote them to me,” said

the prisoner, “I was staying in the country with friends. So that I

shouldn’t lose them, Monsieur Caillaux asked me to send them back to

him, addressed to him ‘Poste Restante’ at Le Mans. I did this, and

that is how Madame Gueydan was able to steal them from the drawer of

his writing-table. Now that the scandal has burst,” she added, “I

should wish these two letters to be put in with the other evidence on

my case.” Monsieur Boucard told her (it should be understood that the

whole of this conversation in the magistrate’s private room at the

Palais of Justice was reproduced in full, immediately after it took

place, in the Paris newspapers of April 22) that he had asked Madame

Gueydan on three separate occasions to give him the photographs of

these letters—which photographs had been taken and which she had,

she admitted, deposited in a safe place—and that she had refused to

let him have them. “I hope you will be able to get them,” said Madame

Caillaux to Monsieur Boucard. “Their publication will show that they

are not the improper letters they have been described to be, and I wish

to renew my statement that in going to the _Figaro_ office I had no

intention of killing Monsieur Calmette. My object was to obtain from

him the promise that he would not make use of the letters which

Monsieur Caillaux had written to me, and I had intended making a

scandal in case Monsieur Calmette refused.” The magistrate’s answer to

this statement was published, with the statement itself, by the Paris

newspapers of April 22.

[Illustration: _Agence Nouvelle—Photo, Paris_

M. JOSEPH CAILLAUX]

I quote his answer from the _Petit Parisien_, a paper which has made

every effort to try the case in its columns with impartiality, and

without political bias. I quote it as a sidelight on the inherent

peculiarities of the conduct of a criminal trial in France, quite

irrespective of the impropriety of its being published at all. “Do not

let us go back to a discussion on this point,” answered the magistrate.

“You will make nobody believe that when you went to get your letters

back or to obtain a promise that they should not be published you lost

all power of speech, and lost your head at the same time, to the extent

of saying nothing and using your revolver.” “Madame Caillaux had been

in the magistrate’s office for six hours,” says the _Petit Parisien_.

“She appeared very tired.”

Some weeks before this extract from the examination of Madame Caillaux

had appeared _Excelsior_ published (on March 25, 1914) an extract from

the letter Madame Caillaux had written to her husband and left with

Miss Baxter, her daughter’s English governess, to be given to her

husband on the evening of March 16 in case she did not return home

before him. In this letter Madame Caillaux is said to have written, in

reference to her conversation with her husband that same morning, “you

told me that you were going to smash his face. I do not want you to

sacrifice yourself. France and the Republic need you. I will do it for

you.”

The mere fact that such details of the examination of a prisoner by the

magistrate appointed to instruct the court which is to try her should

be made known in the public Press and should be free for comment weeks

before, and even months before the trial of her case in the assize

court, calls for no remark. It speaks for itself. A prisoner in France

who has been accused of any crime is tried by the public before the

trial of the case begins. The jury cannot possibly come into court with

impartial minds owing to this system, they cannot listen with open

minds to the evidence which is laid before them in the court room, for

they have read it all before, they have thought over it, they have

discussed it with their families and with their friends, and with the

best will in the world they have been unable to help forming an opinion

of one kind or another. And there is another vice of French procedure

which is well worthy of note. In a sensational case such as the trial

of Madame Caillaux, the jury is subjected to direct influence. After it

has been empanelled at the beginning of the trial the members of the

jury return to their homes every evening. They are therefore, during

the actual hearing of the case, liable to outside influence. Even more

than this, the names of the twelve jurymen and of the two supplementary

jurymen will certainly be published in the French newspapers with

details about the men themselves and their professions, before the

trial begins, and this of itself forms an abuse which must inevitably

react on the absolute impartiality of a jury, which should be a

first necessity of any criminal trial in any country, for numbers of

newspapers will tell them what they ought to do and what their verdict

ought to be.

The procedure of a French criminal trial in the court of assizes in

Paris is attended with considerable pomp. In the Caillaux case as in

the cases of a sensational nature which have preceded it, the rush for

tickets of admission to the trial will be enormous. Response to this

demand for tickets to hear and to witness the trial rests entirely

in the hands of the judge who presides over the proceedings. He is

able to admit, to standing room behind the bench, such friends of his

own as he cares to admit, and he decides on the number of tickets

of admission to the body of the court, which are distributed to the

Press. The body of the court is supposed to be reserved for the Press

and for the witnesses. In actual fact, as every barrister in robes

is by reason of his profession entitled to admission to the court,

barristers overflow from the seats reserved for the Bar and crowd the

Press benches and the witnesses terribly, and far too many tickets

are invariably distributed to members of the detective force in plain

clothes who become “journalists” for the occasion. The public who have

no particular privileges are admitted to a small space at the back of

the court, through a small door in the Palace of Justice which is set

apart for the purpose.

In the trial of Madame Steinheil long queues waited all night for

admission to this small enclosure, although the hundreds who waited

knew beforehand that very few of them would get in, and in the Caillaux

case we are likely to see similar strings of well dressed society folk

subjecting themselves to the hardships of waiting all night in the

streets for a few hours’ sensation. The assize court is presided over

by the President and two assistant judges. These three men in all the

mediæval glories of their red robes and quaint brimless caps, trimmed

with ermine, sit at a long table on a platform at the upper end. The

court-room is a long parallelogram with beautiful dark oak panelling

and ugly green paper above it. The top half of the room, which is

reserved for the court, the table with the _pièces à conviction_

(Madame Caillaux’s revolver, for instance), the jury, and the Bar,

behind which is the dock, is divided from the lower half of the room

where the witnesses, the Press, and the public sit or stand, by an

oaken barrier with a gate in the middle of it. Immediately in front of

this gate, plumb in the centre and facing the table at which the judges

sit, is the bar to which witnesses are called. Witnesses, after they

have given evidence, go and sit on the seats beyond the barrier till

the end of the trial. A witness stands facing the judge, and has on his

immediate right the prisoner’s lawyers and above them the dock in which

the prisoner stands. This dock has no door leading into the body of the

court. The only entrance to it or exit from it is a door leading out

to a room and the passage which conducts to the stairway leading down

to the depôt or prison in the Palace of Justice. To the witness’s left

is the box with the jury, and on a level with the judge’s bench and

with the jury’s box is the desk occupied by the Public Prosecutor, who

wears the same imposing red, ermine-trimmed robes as those worn by the

judges, and who prosecutes on behalf of the Government of France. As a

matter of fact, however, in every French criminal trial there are two

prosecutors. The French criminal system considers this right, but to

any foreigner who has been present at a trial in France it must appear

anything but that. For the presiding judge in a French trial is really

a prosecutor as well. Before the case comes into court he has spent

many hours over the opinion provided for him, in a lengthy document

with countless appendices of evidence, by the examining magistrate, and

from the very start of the trial the presiding judge takes the lead in

the examination of the prisoner.

I was present in the Paris Court of Assizes throughout the Steinheil

trial, and I shall always remember the painful impression which was

made on me then by the judge’s methods. I remember now the picture I

saw of the eager little woman, dressed in black, pleading, protesting,

discussing, admitting and contradicting by turn, and of the man in

his judge’s robes who argued hotly with her, told her, downright,

time after time that she was guilty of the crime for which she was on

trial, thundered out accusations, tried to wheedle her into damaging

admissions, and thundered out the statement that she was not telling

the truth. The judge in a French trial is not only a prosecuting

counsel—he is rather a brutal one at that. Any impartial onlooker, if

he be not a Frenchman, and be not therefore accustomed to the methods

of the French court, cannot help realizing that the judge uses his

power and his prestige as Brennus used his sword, and frequently hurls

it into the scales of justice to the detriment of the prisoner. On the

other hand, a French judge, who is enjoined by law on his honour and

his conscience to use his best efforts to bring out truth at the trial,

undoubtedly does so within the limits of human possibility.

But the work which a French judge has to do at a criminal trial is more

than any one man should be allowed to do, for no man can both judge

and prosecute. To begin with, his own opinion has been prejudiced,

must have been prejudiced, by the opinion of the examining magistrate,

which, whether he will or not, has influenced him. He examines all the

witnesses, he examines the prisoner, and he cross-examines them. On the

other hand he is forbidden to discuss the arguments after the counsel’s

speeches, either for the prosecution or for the defence (if he did so

the whole proceedings would be void), and he does not sum up as an

English judge is allowed to sum up. But the French judge in a criminal

trial sums up at the beginning of the trial instead of after it. He

has made a complete study of the _dossier_, which is to all intents

and purposes a complete study of the brief for the prosecution and of

the brief for the defence, he tells the jury the whole story of the

crime with which the prisoner is charged, and tells them the facts on

which the prosecution and the defence rely. The judge tells the jury,

before it is given, of the evidence which will be called in support

of the prosecution, and of the evidence which will be called by the

defence in answer to it. He goes the length of explaining why the

prosecution believes the prisoner to be guilty, and explains the facts

and deductions on which prisoner’s counsel base their defence.

The amount of apparently irrelevant argument which is permitted in a

French criminal trial is enormous. The code does not allow it, for by

Article 270 the presiding judge is ordered to exclude from the hearing

anything that will prolong the trial without adding to the certainty

of the result. In any trial which has aroused general interest this

article of the code usually becomes a dead letter. The judge himself,

the Public Prosecutor, the prisoner’s counsel, the prisoner and the

witnesses are all allowed immense latitude, are all encouraged to

say all that they care to say at enormous length. The only people in

court who do not talk are the members of the jury, and from the very

beginning of the trial these men go to their homes every night, discuss

the case with their friends and their wives, and read the newspapers

daily, and the newspaper comment on the case which they are trying.

Jurymen are not necessarily possessed of legal minds, and under such

circumstances how can twelve ordinary men, however honest, and however

impartial they may wish to be, keep their minds entirely free from

outside influence.

I don’t know that I have ever heard of a case in which a member or

members of the jury have been known to have talked to witnesses, but

I do not know, either, that there is anything to prevent any member

of the jury discussing the case at night during the progress of the

trial with a witness outside the precincts of the court. No man is

infallible, but justice ought to be. Jean Richepin put the whole case

against the French criminal trial in a nutshell when he sang “Quel

homme est assez Dieu pour rendre la Justice?” The conclusions of a

_juge d’instruction_, however capable the man may be, need not of

necessity be infallible. As he has the power to let the prisoner go,

the power to say that there is no case for the jury, it stands to

reason that, unless he states a doubt, the mere fact that he has sent

the prisoner for trial means that he believes in the prisoner’s guilt.

The judge therefore starts a trial with the conviction that the

examining magistrate thinks that the prisoner is guilty. This

conviction must influence his conduct of the case. “Quel homme est

assez Dieu pour rendre la Justice” under these conditions? Many

Frenchmen have been of the opinion for a long time that the procedure

of a French criminal trial needs reformation. Many consider that the

judge’s preliminary interrogatory of the prisoner and of the witnesses

should be entirely suppressed, and should give place to examination

and cross-examination by prosecuting counsel and the counsel for the

defence. Many people think too that the _juge d’instruction_ should be

made to justify his _dossier_ in open court and on oath, that he should

be called to justify it at the witness bar instead of the present

system of a formal reading by a clerk of the court which takes a long

time and is always so gabbled that it is merely a formality.

The Caillaux Drama · 第 13 / 15 段