Part 15

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.

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.

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.