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.