Chapter 8

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.]