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a trial before a court of assizes. The offence was a political one, and the principal proofs, except those which were attempted to be extorted from the prisoners, were furnished by the agents of police.
" You contradict yourself,” said the president, addressing one of the prisoners,
“ in many of your answers.” “ Sir," answered that unhappy being, "I have undergone so many interrogatories, that I hardly know what I am saying. I have been au secret!! This torture I suffered 100 days. For fifty hours I received no food, and thrice in that time I was interrogated. The last time was at midnight, and I could scarcely stand for hunger. When I was carried back, I asked for bread. It was refused as being beyond the usual hour of distribution. I remained six weeks without change of linen or water to wash in. My wife tried frequently to bring me a few necessary articles ;-in vain. My three first interrogatories were succeeded by twenty others. If the scaffold had then been offered me, I should have thought it a mercy. My reason was shattered. When the judge interrogated me, I had lost my recollection. You hesitate,' said he ; you contradict yourself; you are agitated--then you are guilty.' Now, Mr. President, can you be surprized, if you find some contradictions in my answers." The appearance of the man bore full testimony to the sufferings he described. The crowd shuddered with horror. A loud murmur burst forth, and it was with some difficulty that order could be restored.'
It is nugatory to deny the existence of this dreadful practice, because it rests upon no direct enactment in the code. If it actually exists, no matter whether it is avowedly sanctioned, or arises out of a legal ambiguity, France has gained little by the solemn abolition of torture in 1789. It is, in truth, a revolutionary revival of torture adopted in the worst of times, and is now one of the saddest memorials of that guilty period.
After this melancholy episode, we resume our delineation of a French criminal process, of which we have only entered into some of the preliminary formalities. The first step after a summons or apprehension, is the interrogatory of the prisoner. It is remarkable that the Revolution, in the fermentation of which so many dreadful abuses were worked off, should have left this odious feature of the old law untouched. The interrogatory, however, of the ancient regime was of a much milder character. It was, indeed, conducted in secret, as at present, but the jurists divided interrogatories into immediate and suggestive; the former being such as bore directly on the subjectmatter, the latter being such insidious and circuitous questions as answer to our cross-examinations of witnesses. The former kind were, then, the only ones permitted : a single suggestive interrogatory vitiated the whole proceeding. At pre
sent, not only is this odious part of the French law carried on in secret, but the magistrate who puts the interrogations, invariably displays all his professional skill and acuteness in making the accused party betray himself. Not unfrequently the examination takes place at night, when the prisoner is suddenly awakened out of his sleep, and in a state of mind far from being sufficiently unclouded to undergo it; when it is not uncommon to tell him that the matter is already detected, that his accomplices have revealed every thing, and that it will no longer avail him to deny his guilt. All bis answers, taken at different examinations, are put together, and afterwards form a part (unhappily too important a part) of the proceedings.
We can scarcely move a step in travelling through the present mode of criminal proceeding, without finding traces of the old law. Of these, the most obnoxious usages are those which respect the examination of witnesses ; but will it be imagined, that a witness is summoned, interrogated by the juge d'instruction, and his answers written down by the greffer, -and that all this passes neither in the presence of the prisoner nor of his counsel ? A malicious witness, therefore, may depose to the most unfounded falsehoods without check or restraint ;-a dark, tortuous, disingenuous procedure alike at variance with common sense and justice. Hence, also, a witness, his depositions being thus taken down and remaining on record as memorials against himself, will naturally adhere to them afterwards, with the tenacity of a man jealous of his credibility, and anxious to prop it up by inflexibly and obstinately persisting in his first allegations.
These proceedings, viz. the examination of the prisoner and that of the witnesses, (both private,) being now completed, they are next submitted to the chamber of council, consisting of three judges, one of them being the juge d'instruction bimself, who has hitherto conducted the whole business, from the warrant to the present stage of the proceeding. There is an inherent self-love in our natures, that makes us expert sophists where our own penetration or judgement may be called in question, and renders us more enamoured of our blunders, than disposed to repair them. It would have been sound policy to exclude this officer from the chamber, where, in fact, he sits in judgement on his own acts. Be this as it may, he makes his report to the chamber, who sit with closed doors. The prisoner is not present, either personally or by counsel ;so that if the juge d'instruction, who has himself reduced the several depositions to writing, (and that too in his own style and language,) has designedly spread any colouring or exag
geration over it, the prejudice must inevitably be imparted to his colleagues, who can only see with his eyes, or judge with his feelings. If two of the judges deem the proofs insufficient, the accused is hors de cour, (out of court,) and there is an end of the proceedings: if sufficient, they then determine the class or category of the offence ; viz. whether it is one which induces criminal, or only correctional penalties,-a distinction which, in some degree, corresponds to our classification of offences--into felonies and simple misdemeanours. Here, however, we start a strange and unaccountable absurdity. We have just seen, that a majority of the three is required to decide as to the sufficiency of proof; but, if a single voice pronounces the offence liable to peines afflictives ou infumantes, (corporal or infamous,) the culprit is sent before the criminal tribunal. Nine years experience have testified, says M. Béranger, that this single voice is that of the juge d'instruction. The proceedings are now ripe for the procureur du roi. But what can more strikingly denonstrate the clumsiness of the machine, than the cumbrous intervention of the chamber of council, consisting of three judges, in which a single person only is empowered to qualify the offence, and determine thereby the jurisdiction where it is cognizable, –a question by far the most important in the preliminary part of the proceedings?
At length, however, and for the PIRST TIME, the accused party is allowed to say something for himself, and to give in such memorials as he thinks fit. Up to this time, he has remained a stranger to the proceedings against him, and, specifcally speaking, has neither been made acquainted with his accuser nor his accusation. He has been kept also in the same ignorance of the names and depositions of the witnesses. He has had to fight, with his eyes blind-folded, an armed adversary. To the poor, the drawing up of their memorials is a heavy and insupportable expense ; and five days only are allowed, before the chamber of accusation, consisting of five judges, (the next link in this interminable chain of procedure,) comes to a determination. No other document forms the basis of that determination than the report of the procureur generale, who, as soon as their decision is notified to him, proceeds to draw up the acte d'accusation, or indictment. It is by means of this instrument, in fact, that the prisoner becomes first acquainted with the crime laid to his charge. It is the basis, moreover, of all the future proceedings, and is the most important document in the whole process. But, in the drawing of this paper, all the technical rule and regular principle, the
precision and accuracy of an English indictment, are wholly disregarded. On the contrary, it is swelled out to an interminable length, and abounds with those ornaments of rhetoric, so misplaced in such an instrument, but which are never unwelcome to the ears of a Frenchman, whose intellect is not to be reached but through a rhetorical medium. It sometimes exceeds forty folios, and occupies three hours of the trial in reading.
And here we must again remind our readers of the torturing slowness, the leaden, funereal pace of a French criminal process, by shortly recapitulating the several halts which are made in it, and which render the law's delay' in that country, one of the most intolerable of its grievances, while it oppresses the innocent with those hopes deferred that make his heart sick, and dooms him to suffer, in many respects, the penalties
After the first interrogatory, he is, as we have seen, remanded to prison. Once lodged there, the law is seized with an unaccountable lethargy. The juge d'instruction has now to prepare the proces verbal, and to examine the witnesses; but these duties are stimulated by no penalty or responsibility for a negligent or relaxed execution of them. Distracted by a variety of similar proceedings, all going on at the same time, like the lawyer in Tom Jones, he probably wishes himself out into twenty pieces, while the prisoner, who, in his dungeon, is vainly invoking the tardy genius of French jurisprudence, must wait his leisure. At last, however, his report is ready for the chamber of council. Here another delay takes place, for the whole procedure must be previously submitted to the procureur du roi, on whose table it probably slumbers unobserved for several days. When it reaches the chamber, in common probability the instruction is found incomplete, when a further investigation is ordered; so that, after several months have been consumed, and after so profuse an expenditure of ink and paper, the proceeding at last draws its slow length, like the wounded snake, into the court of assizes. Yet, even here, a delay may occur. If Mr. Procureur du roi can shew sufficient cause for not bringing on the case immediately, he may move to put off the trial. The result is, that it rarely happens in France, that a prisoner is brought to trial within nine months from his commitment.
But he has now passed through the unmeaning labyrinths, the “ passages that lead to nothing," which retard the preliminary parts of his process, and has reached the court where his fate is to be decided. Here we look in vain for the humanity, the tenderness, the compassion which temper the execu
tive justice of England. Well might the words of Macheath be put into the mouth of a French criminal :
• The Judges are met,
A terrible set.' His look, his voice, his gesture, are interpreted against him. If he has not the confidence of hardened guilt,-if his answers to the interrogatories (often continued for three successive days) are confused or at variance with the proces verbal, (which he is not allowed to see,) a fatal impression is felt against him, from which neither the ordinary firmness of the jury, nor the religion of their oath, is sufficient to guarantee them. M. Berryer, one of the counsel of Castaing, lately tried for murder at Paris, alluding to the various contradictions of the prisoner, so unfairly pressed against him by the judge who interrogated him, justly exclaims :
• Is it so very remarkable then, that, charged with so foul a crime, distracted by the recollections of his parents, his infant,--the friendship he is supposed to have betrayed,--affrightened himself by the contradictions into which he has been goaded, and forming against him a perplexed series of inferences fatal to his innocence, is it strange that he should hesitate and feel alarm on so awful an occasion, in the presence of death, which is soon to usher him before his Maker? What must be the feelings of a man thus called upon to throw his life, in the very flower of his years,—all that is dear to him, upon the uncertain issue of a public trial, and to trust only to the infirmity and frailty of human judgements?'*
The oath administered to the jury has this particularity: it is not ' to try the issue joined according to the evidence,' but, “according to their consciences as good and just men;'-a vague, and often the most dangerous criterion by which fallible beings can decide. The acte d'accusation is then read, which, in Castaing's case, (we adduce it only for an example, occupied fifty-six closely printed octavo pages, and, during the reading of which, the court was twice adjourned. It is, in other words, a long pleading, in which every presumption hostile to the prisoner is urged, all his contradictions in the procés verbal are insisted on, and all the probable topics of his defence are refuted. Who could suppose, that, in a bill of indictment, the most insignificant circumstances would be stated with so much pomp of phrase, as in the following passage,
* “ Procés complet d'Edme Samuel Castaing, docteur en médicine." Paris, 1829.