Hst304 Crime and punishment in early modern Europe

Chapter Three
OLD REGIME JUSTICE IN PRACTICE
The French monarchy’s criminal justice system has long been thought
to epitomize all that was wrong with pre-revolutionary France. 1 The
system ‘s ill-repute is based both on its famous excesses in the cases of
those often cited as it s victims like Jean Calas and the Chevalier de la
Harre, and on unquestioning accepta nce of the philosphes’ cr itique of
the principles of Old Regime law as evidence of t ha t law in practice.
Famous miscarr iages of justice, however, do not necessarily reflect
the operation of a judicial system, and a dichotomy may cer tainly
exis t between t he law in principle and in practice. In order to judge
the Old Regime judicial system , it is necessary to know both how
effec tive it was in protectin g socie ty from its miscreants, a nd how it
dealt with those who came within its purv iew . It is especially useful
to know how many persons c harged with crimina\ acts came before the
r oyal judicial system, how th e rights of t hose persons fared during
criminal proceedings and what sort of jus ti ce judges meted out to
defendants.
The r eco rds of the Senechaussees of Libourne a nd Bazas provide
the data for just such an assessment at the local level. In terms of
protec tion, the effectiveness of the Senechaussees of Libourne and
Bazas was limited at the outset simply because many crimes were not
reported to the a uthoriti es. The problem of unreported criminality is
a constan t for law enforcement a uthor iti es in ever y society; even in
t he twenti eth century there is little agreement regarding the ex tent of
the pr oblem. One German scholar, for example, estimates that as
many as 3 to 6 l1omicides occur for every reported murder and that
perhaps 0.25 to I case of property loss and 0.5 to 4 assaults occur for
each reported offense.2
A variety of eviden ce suggests t hat this ‘dark figure’ of
unreported crime was high in seventeen th and eighteenth-century
Libourne a nd Bazas. Individual cr iminal complaints often began with a
lis t of earlier, unreported offenses committed by the same de fendant
t hat finally prompt ed the plaintiff to have recourse to the law .
Cer ta inly ra tes of reported cri mes in the Libourna is and Bazadais
sugges t unde r-repor ting. Those rates, 24.8 offenses per 100,000 of
populati on in the Libournais and 26.1 per 100,000 of popula tion in the
Bazada is, are low by modern standards, even by the standards
44
Old Regime Just ice in Practice
established prior to the great increase of reported cr ime in Europe and
America during the years follo wing World War II. Most European
countries t oday have a reported crime rate of about 3,000 offenses per
100,000 of populat ion, wh ile the Unit ed States reported 5,52 1.5 per
l 00, 000 in 1979. Moreover, the annual rate in peace time France since
1850 has seldom fa llen below 500 offenses per 100, 000 of population,
and English reported crime rates have never fallen below 20 0 per
l 00, 000 of population during the twenti eth century.3
The low reported c rime rates in the Libo urnais and the Bazadais
are not disconsonant, however, with crime ra t es in other
eighte enth-century jurisdictions. Among French tribu nals, rates exis t
for only t wo appeals courts, the Parlement s of Paris and Toulouse.
Appeals court rates are expectedly somewhat lower than those of
courts of first instance because all cases were not appealed.
Nevertheless these rates, 10.5 cases or fewer per 10 0, 000 residents of
rural areas of the Parle ment of Paris and about 7 cases per l 00,000
persons in the dist rict of the Toulouse Parlement, suggest that these
areas sha red the problem of unreported crime with the Li bournais and
Bazadais. Rates for e ighteenth-century North America are essentia lly
similar. Prior to America n independence, New Yot·k was regarded as a
particularly ‘fac tious societ y’. The lowes t rate of reported crim e in
that colony was 150 c riminal indictments per 100,000 persons in 1723,
and the highest rat e was 300 per l 0 0,000 people in 17 03. New York,
however, was a heterogeneous societ y with t wo majo r language groups
(English and Dutch) a nd numerous linguistic and racial minoriti es.
More homogeneous Massachusetts reported 12.5 prosecutions per
100,000 persons in 17 25.4
A nu mber of fac tors, institutional and soc ial in nat ure, prompted
some Frenchmen not to file compl aints of crimes with the
Senechaussees of Libourne a nd Bazas. Perhaps the most important of
these was cost. Under Old Regime law the plaintiff bore court costs,
and concern over the expense of litigati on a ffected the decisions of
both the procureur du roi and private citizens.
The dec ision of the procure ur du roi to lodge a complaint and to
prosecute was of key importance because it meant that the case would
be prosecuted at royal, not private, expense. Because funds from t he
crown for such prosecut ions were limited, the procureur du roi could
pursue less t han one- quarter of the Libourne and Bazas cases for which
the plain tiff is known (Table 3.0 1). Consequently the procureur du roi
und ertook prosecutions selectively, pursuing most cas royaux at crown
expense, as well as those less-serious offenses that caused local
concern. Homicide clearly was a prime concern to the a uthorities;
the procureurs du roi of Libourne and Bazas pursued 90.6 per cent of
these offenses at roya l expense. Royal officials also seem to ha ve
been concerned about enforcement of the post-1685 religious laws.
Although syste matic prosecution of recalcitrant Protestants abated
after the death of Louis XIV, fully 82.7 per cent of the cases alleging
crimes against the religious order were pursued with crown funds.
Violations of public order also concerned procureurs du roi of Libourne
and Bazas; over half of the prosecutions in this c r ime category wer e
royal, alt hough royal funds within this cat egory were used selec ti vely.
45
~
“‘
Tab l e 3.01 . – – Plain t iffs and Verdicts by Major Crime Types in the Senechaussees of Libourne and Bazas
Tota l cases
in which the
plaintiff is
known
Homicide
Cases with
Procureur du
r oi as plaintiff
No.
No.
32
29
%
Cases reach
ing a ve r dict
in which .EE.£cureur du roi
plaintiff
No.
Cases with
a private
party as
plaintiff
No.
%
No .
%
0::
::0
(1)
0’3.
3
(1)
90 . 6
26
89 . 7
9.4
3
100.0
96 . 5
16
204
98.6
0
57.8
169
62.4
7
4. 1
3
50 . 0
57
90 . 5
7
12.3
53 .1
23
45.1
‘•5
46.8
4
8.9
12
35.3
2
16.7
22
64.7
l
4.6
52
43
82.7
8
18.6
9
17.3
0
1100
258
23 . 5
128
49.6
842
76 . 5
38
345
12
3. 5
7
Verbal violence
207
3
1.5
0
Property cr i mes
271
102
37 . 6
59
Srimes against
morality
63
6
9.5
Violation of
pub l ic order
96
51
Statutory
violations
34
Crimes against
the Roman Catho l ic religion
58.3
3
333
Assault
Totals
%
Cases reaching a verdict
in which a
private pa r ty
pl aintiff
0
4.8
..,”0
“‘
(‘)
r+
n·
(1)
4.5
Old Regime Justice in Practice
This category of offense included prosecutions for vagabondage and
desertion; beca use wanderers, singly or in groups, were particularly
feared in rural France, it is not surprising that three- quarters of the
roya l prosecutions in this category represented charges against
wander ing vagrants. 5
Procureurs du roi largely ignored other types of crime. The
Libourne and Bazas records yield har dly any royal prosecutions of
cases of physical assault and verbal violence (criminal slander, insults
or threats). Clearly, the royal prosecutor with his limited budget had
to view such crimes as less serious offenses, more nearly representing
attack on the individual than on the order of which the king was
guardian, and such crimes were left to private plaintiffs to prosecute.
That same distinction between private and public weal and woe
dictated the prosecutor’s approach to other crime forms. J~ess than 10
per cent of crimes against moralit y, for example, were prosecuted at
royal expense, a nd those tha t were pursued represen ted only the
gravest crim es. The procureurs du roi regularly ignored charges of
illicit intercourse resulting in pregnancy, leaving these cases to be
settled in damage suits by the aggrieved parties. Royal officers only
prosecuted such offenses to the public morality as infanticide,
bestiality and the rape of minors. Similarly, only the most serious
theft s, including those by the feared vagabonds, those exhibiting any
stealth or professionalism and those involving theft of lives tock and
stealing from churches were prosecuted by the procureurs du roi.
Reported violations of royal statutes were rela tively rare, but again,
only the most serious manifestations of this crime type concerned the
procureurs du roi.
At Libourne a nd 1:3azas private individuals, often joined by the
procureur du roi as joint plaintiff, initia t ed just over three-quarters of
all c riminal ac tions, a rate that va ried little in the last century of the
Old Regime. In such cases the king’s a ttorney sought a criminal
penalty and the private party a financia l award for damages. For most
private plaintiffs, considerations of cost must have been uppermost in
the ir minds as they filed charges, and many other citizens must ha ve
fa iled to file complaints because of similar f inancial concern. Such
concern was not ill-founded, because potentia l financial ruin loomed in
any criminal compla int. The citizen lodging a compl aint entered the
litigation as plaintiff a nd assumed full responsibility for potentially
subs tantial court costs. Even when the procureur du roi was
co-plaintiff these costs might obligate the private plaintiff to pay fees
for serv ices of huissiers or perhaps the Marechaussee in capturing a
criminal, the wages paid sergents to summon witnesses, salaries for
witnesses, the ep ices paid judges and lesser court officials and e ven
the cost of the stamped paper on which the greffier recorded the
case.6 Court r ecords yield occasional dossiers itemizing these
charges and their totals are both instructive and cautionary. One
murder trial in 1774, for example, cost 401 livres, 2 sous a nd 8
deniers.7 Such costs could, of course, be r ecovered by the plainti ff if
his charges were proven in court, and Old Regime criminal judgements
fr equently assigned not only a crimin al penalty to the defendant but
also court costs and damages. If a plaintiff’s charges failed to be
47
Old Regi me Justice in Practice
sustained in court, however, he ran tremendous financi a l risks. Not
only was he liable for the en tire cost of his unsuccessful litigation, but
he might also be sued for reparation by the individual whom he had
charged with a cri me.8
Fac tors other than the financial deterrent also con t ributed to the
under- repor ting of crime. The dis tance of many rural hamlets from
the co urt seat certain ly was one of these. As many of t he cah iers of
1789 underlined!} t he cour t simply was too distan t for all rural crimes
to be reported. But even mor e important than dis tance was a rural
reluctance, bred of th e isola t ion of the countryside , to have much
inte rcourse with royal a uthorities, whether judicial, fisca l, military or
police. The effects of this r e ti cence will become more appar ent in
lat e r cha pters examining a disproporti onately low r ate of reported
peasan t offenses as well as sundry act s of peasant violence when
agen ts of police and judicia l a uthorit y penetrated the rural community.
This reluctance to deal with royal authorit y sustained infrajudicial
modes of resolving crimes a nd disputes that competed with the king’s
courts and fu rther r educed the nu mber of reported cri rnes. Perhaps
the most comm on form of such resoluti on of offenses was violent
rev en g~ . Violence was common, and the litany of previous acts of
violence accompa nying many criminal litigations sugges ts that some
Frenchmen had recourse to the law only after violence failed.
Research also sugges ts the exis tence of a second infrajudicia l
method of settling disputes. Par ti es concerned in a cr iminal offense
might seek the mediati on of a notary, a priest or som e other respected
citizen in regulating their dispute and avoiding costly litigation.
Successful accom moda tion of a d ispute therefore mig ht be represented
by a notarial act in which the offending part y made financial
recompense to t he aggrieved . Indeed, such resolution of dis putes
occurred even after criminal charges had been filed. Some plaintiffs
lodged complaints without a ny intent of pursuin g them to a verdict,
but r ather as a lever to for ce an offending part y to an out-of- court
settlement. lO Libourne and Bazas trial dossiers reco rd suc h priva t e
accords with insuffic ient frequency to es t ablish a statis tica l analysis,
but one case in 17 79 illustrat es the process. In tha t year Maitre
Bertrant Reynaud, pr ocureur and Jurat of Libourne, was pleading a
civil suit in opposition to the nota ry and procur eur Mai t re
Felix-V in cent Chaperon. When their presentations to the court
concluded, Chaper on turned on Reynaud a nd initiat ed an argument in
whic h the two lawyers insulted and threatened one another. Criminal
charges resulted from t his incident and t he Senecha ussee of Libourne
held a preliminary hearing on 18 August 1779. By 23 Augus t, however,
e ither tempers had cooled or the potential costs of litigation had
dictated more prudent behaviour. On that date C haperon signed a
notarial act conceding his par t in sta rt ing the affair and salvaging
Reynaud’s honour with a reparation paymen t of 60 livres.ll
Eighteenth-century court records contain evidence of other
factors limiting the efficacy of justice. In 3.8 per cent of all cases
heard by the Senechaussees of Libourne and Bazas, the defendant is
listed simply as a guidam (unknown) and never was brought to justice.
And in 7.4 per cent of the cases in which the tw o co urts r eac hed
48
Old Regime Justice in Practice
verdicts , the de fendant was judged contu mace, that is in absen tia,
indicatin g that he had escaped the a uthoriti es. These failur es of the
courts to bring malefac tors to justice res ulted from limited facilities
and police resources ava ilable to e igh teenth-century magis trat es
enforcing the law.
ln rural districts an informa l me thod of a pprehendin g c riminals
some tim es obtained . Some ti mes, criminals caught in flagrante delicto
or immediat ely foll owing their crimes am id the clameur publigu e were
captured by private citizens regar ding the offense as particularly
grave. Residents of Ruch, for example , captured Jean Maumey, the
perpetra tor of a heinous crim~. This fi fty-eight-year- old agricultural
labourer’s rape of a twelve-ye ar-old girl stirred t he commun ity into
ac tion.l 2
When loca l action failed to a pprehen d a cr im in al, however, the
justice system had to r ely on meagre enforcemen t resources to bring
l awbreakers to trial. Members of the Senecha ussees’ staffs, huissiers
and sergents, delivered summonses and made arr ests. But these court
officia ls lacked the e ffective support avail able to a police force .
Their effec tiv eness was hindered occasionally by armed opposition,
and the lot of one unha ppy huissier, Pie rre Dubard, was not a t ypica l.
Dubard was frustrated in his attempt to deliver a writ to a retired
army officer na med Moulinier. Moulinier drew a pistol on the huissie r
and avoided receipt of the court order by galloping off on the court
official’s horse. When Oubard made a second a ttempt to serve the
writ, Moulinier opened fire .l 3
Court officia ls migh t look to several t ypes of police a uthority fo r
aid when confronted with suc h violence , but the assistance seldom was
adequat e. Many of the larger towns of the Bordeaux region had
per manent companies of watch, the guet, whose duties not only
included ar restin g crim inals, but a lso patrolling the streets and
enforcing a wide variety of municipal regulations. Despite such broad
duties, the watch was always numerically inadequate . Bordeaux
mustered only 70 men during the middle years of the eighteenth
century and the guet of Libourne, the region’s second largest
community, mustered only 9 members even aft er the addition of 3 men
followin g civil disorde rs in 1773. 14 Few cases on the Libourne docket
recorded arr ests by the guet , as a consequence of such numerical
in adequacy.
Most towns also possessed companies of bourgeois militia made up
of male citizens who pa trolled t he s tre ets a t night. When a rash of
robberies broke out along the r oad in the ar ea of Sain te – Foy and
cla imed the life of a traveller in 17 72, t he bourgeois militia of the
town was ca lled out to appr ehend the thie ves. In Libourne in 1773 the
armed, bourgeois militia patrolled the town during a per iod in which
grain riots threatened the public order. But these companies more
co m monly seemed to have performed a chiefly ceremon ial purpose.
On 2 July 1776, the Libournais celebrated the coron ation of Louis
XVI. On tha t day the Libourne militia fired their cannons hourly from
5.00 in the morning un til 10.00 at night a nd escorted municipal
officers to church for aTe Deum .l S
A fi nal police r esource, the Marechaussee or rural constabulary,
49
Old Regime Justice in Practice
was under royal not municipal a uthority. But its effectiveness was
hampered by extensive du ties and li mited manpower. The troopers of
the Marecha ussee were charged with apprehending persons involved in
cas prevotaux as well as with patrolling rural roads, supervising
foreigne rs and maintaining order at fairs, markets a nd fetes. The
troopers also guarded shipment of local tax receipts and provided the
arm ed force someti mes necessary to support huissiers and se rgents in
the execution of the orders of courts like the Senechaussees of
Libourne and Bazas.
The Marechaussee, divided into brigad es of four troopers and one
officer, maintained brigades in two towns of the Libourne
Senechaussee, Libourne and Saint-Foy, during the late e ighteenth
century. Other brigades, quarter ed outside the Libourne Senechaussee
a t Creon, Saint-Medard-de- Guizieres and Sa uv ete rre, had responsibility for patrolling a number of parishes in th e Li bourne district . In
the Bazas Senechaussee there were three Mar echaussee brigades, at
Langon, Bazas and Sauveterre. Other brigades s tationed outside t he
Senechaussee at Casteljaloux and Marmande also patrolled portions of
the district (See Figur e 3.01).1 6
Each of these mounted brigades was assigned a specific number of
parishes to visit in the course of their patrols of th e local highways.
The brigades were to maintain order in these parish es , es pecially
during fairs, market days and local festivals. Yet the number of
parish es assigned to eac h br igade meant tha t this protec tion for rural
areas was totally inadequa te. For exa mple, the Libourne brigade was
charged with 60 parishes, some located as far as 24 kilometres from
its headquar t ers, and these parishes annually held 50 fairs, 57 markets
a nd 60 festivals. The Sa inte-Foy br igade was ex pected to mainta in
order in 83 parishes. Located up to 24 kilometres from brigade
headquarters, these parishes annually held 71 fairs, 80 markets and 60
festi vals.l 7 Since the mounted troopers could travel no mor e than 23
kilometres per day in the winter, they could hardly give adequa te
police ~rot ection to their dis tricts, even if they spent all the ir time on
patrol. 8 Other duties, however, precluded constant patrols, and an
official noted on t he duty roste r of the Libourne brigade in the early
17 80stha t:
This brigade does not make as frequen t patrols in its
district as the good of the service demands: it is
extremely overburdened with escorting deserters, and
transporting of prisoners and beggars. It a lso has several
meetings [usually for tran sfer of prisone rs and deserters
enroute to the galleys or back to their regim ents] each
month with neighbouring brigades.
The
prevota l
juris diction also occupies it a great deal. Independently of
a ll this work, it has to exec ute the orders of the provincial
commanders, and th e re1uisitions of the subdelegue, and
lend assis tance to justice. 9
Inadequate police protection was not unique to the Senechaussee
of Libourne. In 17 80 the entire Marechaussee Company of Guyenne , of
50
Old Regi me Justice in Practice
• La Teste · de·
tj7 Buch
(9
•
Li postey
C ast eljaloux
•
•
Nerac
GERS RIVER
ADOU R RIVER
GAVE DE PAU
SPA I N
Figure 3 . 01 .– Map of the District of the Ma r~ chauss6
Company of Bordeaux , 17 80 .
KEY
•
Bazas
e
L i bourne
Location of a brigade gar r ison
Location of a divisional headqu arters
51
Old Regime Justice in Practice
which the Libournais brigades were components, mustered only Ill
officers and men to patrol roughly 26,000 square kilometres of
te rrito ry. Even at full strength such a force was s im ply inadequate to
police the large Ge nerality of Bordeaux, an area about the size of the
State of Maryland. During the late e ig hteenth century, how ever, the
Marecha ussee seldom had its full co mplement of men. As a
consequ ence the blue uniforms of t he troopers were an unfamiliar
sight in many villages. Desp ite some improvements in the corps’
se r vice during the eighteenth cen tury, it remained essentia lly unequ al
to its tasks.20 Contemporaries recog nized the problem and the
cah iers de doleances strongly r egis tered the desir es of residents of
Libourne and other regions for a more effe ctive police force.2 1
Even when a criminal fell into t he authoriti es’ g rasp, trial was not
the inevitable outcome. The jails used by many prov incial courts to
hold prisone rs until trial were in poor condition. The two-cell pr ison
of the Senechaussee of Libourne, for example , occupied a part of the
fifteenth-century Libourne to wn hall, and as late as 1786 lacked bars
on some windows and was particul arly susceptible to escape. Five
s uccessful jail breaks occurred be tw een Septembe r 1772 and
November 17 73, with one prisoner, J ean Voyer, participa ting in three
of these . Twice r ecaptured, he escaped successfully in November
1773.22
The r eluctance of so me crime victims to lodge complaints, as well
as the inadequacies of law enfot·ce ment r esourc es, meant that a
certain number of criminals entirely escaped the justice of the
Senechaussees of Libourne and Bazas. Those lawbreakers who were
indicted and prosecut ed fo und that Old Regim e justice was lit tie
concerned about defendan ts’ right s , nor was its justice speedy or sure.
The steps in a criminal litigati on demonstrate that t he defendant
was accorded few righ ts by the Criminal Ordinance of 167 0 def in i~
the competence of all French courts and regulating their procedure. 2
A crimina! tria l before cour ts li ke those at Libourne a nd Bazas ensued
when a complaint reached the judge of the court distr ict in which the
crime was alleged to have been committed.
The criminal cour t judge , th e lie utenant general criminel, began a
prelimin ar y enqu iry upon receipt of the complaint to de termine if
evidence in the case warranted criminal prosecution . As part of this
enquiry the judge might visit the site of t he crime, a nd in cases of
murder or assault he might examine the victim’s wounds. The c le rk of
the court, the greffier, drafted a proces-verbal of all that the judge
observed, and to th is record might be adde d reports of physic ians or
ot her experts. With this information in hand, the judge then heard
s worn t estimony of witnesses to the cri me. This t es timony was heard
in a closed court session , without the presence of the defendant, and
all manner of t estimony, including hearsay evidence, was admissible .
Witnesses were encour aged to come for ward by payment for their
t ime spent in t estifying and in travelling to the court seat 24 But if no
witnesses to a serious crime appeared a nd as a result the perpetrator
r emai ned unknown, the court might seek the issuance of a monitoire.
Published at t he order of the loca l officialite, this notice was intended
to be read by parish priests of the diocese from the ir pulpits on three
52
Old Regi me J ~:->ti ‘~’~ in Pt’Rctice
consecutive Sundays. In the monitoire, Church authorities called upon
Catholics to disclose to the court any information they had about a
specific crime; the punishment for withholding in for rna tion was
excommunication. The publication of a monitoire must have been a
last resort for the courts since their issuance often r aised new
problems. Monitoires sometimes unleashed waves of denunciations in
peasant communities as villagers attempted to settle old scores by
denouncing their enemies as the sought-after criminal. ‘Vlonitoires
might also create superstit ious panics because many peasants believed
that the reading of a monitoire would cause hail to destroy their crops.
Consequently priests were reluctant to read these documents to their
parishioners, sometimes negating their effect by reading them in
French to patois-speaking congregations. The courts at Libourne and
Bazas seem to have shared the priestly reservation in regard to
monitoires; research suggests that the Libourne Senechaussee issued
only three monitoires in thirty years, and the Bazas tribunal issued
none . 25
After hearing the sworn testimony of the witnesses, the judge’s
next step in the preliminary enquiry was to sum mon the suspect. Most
suspects remained at liberty until this time, though in certain cases
they could already be in custody. Arrest was immed iate for those
apprehended in flagrante delicto, while others under the court’s
suspicion might seek to demonstrate their faith both in the judicial
system and in their own innocence by voluntarily surrendering and
requesting incarceration pending a verdict in their cases. Normally,
however, the judge issued one of three decrees affecting the accused.
In trials of minor crimes the magistrate issued a decret d’assigne pour
etre otii directing the individual charged in the complaint to appear in
court on a specified day to respond to th e a llegations. If the accused
did not answ et· this summons, the decree became a decret
d’ajournement pe rsonnel. On occasion judges initially issued this ruling
in more ser ious offenses that appeared to warrant no corporal
punishment. Like the decret d’assigne pour etre ot.ii this decree
summoned the suspec t to court on a given day, but if the suspect
failed to appear on tha t day, the ajournement personnel became an
arrest order. The arrest order, the decret de pris de corps, was the
last resort in the summons process for minor crimes and was th e
automatic decree of the judge in cases requiring corporal or capital
punishment. 26
Whether his court appearance was the result of obedience to a
summons or of an arrest, the defendant was allowed to enter the trial
only at this juncture, after witnesses had testified again st him. He as
yet had no knowledge of the charges agains t him and was deprived of
resources with which to build a defense. Though earlier criminal
ordinances permitted legal counsel to defendants in certain cases, the
Ordinance of 1670 denied legal assista nce to almost all criminal
defendants. 27 The eighteenth-century scholar Serpillon frankly
elucidated reasons for this:
In ancient Rome, and even in France before the Ordinance
of 1539, a defendant defended himself with an avocat
53
Old Regi me Justice in Prac tice
but it was found that it was more s uitable to compel
defendants to defend them selves in their own words ; that
is to say, by themselves a nd without a ny wr itten aids in
hand; because wr it ten aids could have been giv en or
dictated to them in order to obscure the truth by subtleties
and quirks of the Jaw tha t legal counsels would be able to
invent.28
Under oat h and without counsel or wr itten aids, the defendant was
questioned by his judge on the facts of the case while the greffier
recorded his responses, gestures a nd even appearance. At this initial
questioning, the defendant had his only opportunity to r aise a
jurisdictional c hallenge to the court’s authority or to demonstrate any
privileges exe mpting him from the judge’s competence. 29
After this interrogation the judge deliberated with other
magis trates (the conseillers) of the court on one of thr ee possible
conclusions for the preliminary enquiry. The judges might find the
defendant palpably not guilt y and ter mina te the procedure. They also
might determine tha t the defendant’s offense might be more
appropr iately pursued as a civil litigation. Or they might rule tha t
t here was sufficient evidence to justify continuation of the case as a
criminal pr oceeding and issue an extraordinary or interlocu tory decree
ordering the next s teps in the trial: the verifica tion (recole ment) of
witnesses’ tes timonies and their con fronta tion by the defendant. 3D
In the recolem ent, witnesses’ tes timony was read back to them
and they were asked to sw ear again to the verac ity of the information
they had supplied to the court. Any change in their t es timonies in this
phase of the trial, or in the la ter confrontation, made witnesses liable
to prosecuti on for perjury. The defendant again was excluded from
this second presenta tion of the testimony and he heard the testimony
against him only at the next s tage of the trial, the confrontation of
witnesses.
At the con frontati on, the defendant rem a ined without legal
counsel or written a ids as the witnesses were identified to him, and he
had his only opportunity to contest their credibility. Nex t the gr effier
r ead the witnesses’ testimonies to the defendant who was permitted to
offer the judge a refutation of the facts provided by them . The
defendant was forbidden to cross-examine witnesses, however , and the
judge alone questioned witnesses on the factual issues raise d by the
defendant . Potential perjury charges meant that witnesses seldom
varied their accounts of a cri me under judicial questioning.31
A trial ente red its final stages when the presiding judge received
the conclusions of the procur eur du roi in the case, including the
latter’s recommendation for a sen tence . The court’s magis trates then
asse mbled to deliberate a verdict. One of their number (the
ra1porte ur) reported the facts of the case and interrogated the
de endant unde r oath once more. If the procureur du roi reques ted
corpora l or capital punishment or any other degrading penalty, the
interroga ti on took place on the sellette, a wooden bench on which the
defenda nt knelt during questi oning to increase his discomfort and
therefore his willingness to answer. Still without any counsel, the
54
Old Regime Jus t ice in Practice
defendan t was at last permitted to undertake a defense dur ing this
interrogation. He had jus t one opportunity, however, to ca ll witnesses
and had to state their names ex temporaneously with no later
opportunit y to add to their num ber. Witnesses called by the
defendant, moreover, appeared a t his expense. 32
The traditions of Roman law as well as royal ordinances guided
magis trates as t hey weighed the evidence presen t ed to them. In
Roman law, very definite for ms of proof were r equired to convict a
defendan t, particularly in capital cases. Judges could sentence a
defendant to death on ly if there were two eye- witnesses to his crime
or if the defendan t confessed to his crime . Few cases, however, wer e
so clear-cut since eye-witnesses sometim es were lacking and the
defendan t often refused to confess. In such cases partial proof of
culpability in t he for m of strong circums tan tial ev idence might
nevertheless exist. In capital cases the existence of such evidence
perm itted the judge to subject t he defendant to torture in the quest ion
preparatoire in order to elicit a confess ion of guilt allowing the
magistrate to levy the death penalty.
The Ordinance of
Villers-Coterets of 1539, which governed French cr iminal law until
1670, stipulated that a prisoner who did not confess under this torture
had to be released. Clearly this practice favored the hardy over the
weak, and to solve this problem the Criminal Ordin ance of 1670
in traduced new procedures governing the proof of gu ilt . 33
The C rimin al Ordinance of 1670 perm itte d judges to assig n any
penalt y except death to defendants who failed to confess to capital
crimes under torture, but of whose guilt there was substantia l
circumstantial proof. This provision of the ordinance greatly
diminished the need for t he question preparatoire because a verdict of
gu ilt and a punishment could now be le vied without the defendant’s
confession. The consequences of this aspect of the Ordinance of 1670
were fortu itous for de fendants in cr iminal cases because, without the
absolute need for confession, judges reduced their use of the question
preparatoire. Its use remained legal until 1780, but research in
Libourne court r eco rds of 717 cases with 1,529 defenda nts yields only
one application of the question preparatoire ; its use by other court
jurisdictions seems simil arly r estr icted during the eighteenth
century.34
The magistrates formulate d their verdicts with the record of the
recolement and confrontation, the recommendations of the rocureurs
du roi and the rapporteur, as well as other court records be ore them.
The judgement stage of the Old Regime crim inal proceeding is perhaps
the most crucia l in an assessment of jus tice at Libourne and Bazas.
Since the days of Beccar ia it has been axiomatic that the goal of the
cr iminal jus tice sys tem should be the det e rrence of crim e by the speed
and surety of punish ment rather than its cr uelty.
Old Regime justice certa inly was not swift for many of those
tried at Libourne and Bazac;. The average t i mespan from the filing of
the co mplaint to a final judgement of guilt or innocence, or the
r egistration of a par don, was forty-four weeks and two days. The
longes t case, a tria l fo r homicide, las ted ten years and seven and
one-half months ; th e shor t es t trial, also for murder, was adjudica ted
55
Old Regime Justice in Practice
in four days.35 Extended delays of jus tice, however, were not unusual
by con temporary standards of French justice. During the eighteenth
century the average duration of cases judged by the Bailliage of
Falaise was about a year and one-half; in Paris even sim ple trials for
petty larceny might last one or two months. Suc h langour probably
resulted from the fees charged for the process of litiga tion . In order
to increase their income from fees, judicial officials tended to drag
out procedures, and often engaged in lengthy jurisdictional disputes
with fellow jurists.36
If few malefactors were deterred by the swiftness of judicial
justice, neither were they discouraged by the certainty of punishment
when brought to trial. Only about one out of e very seven cases was
carried through to a verdict by the courts at Libourne and Bazas. The
identity of the plaintiff seems to have been the key determining factor
in wh e ther a case was pursued to a verdict (Table 3.0 1). The
procureurs du roi prosecuted fewer than one- quarter of a ll cases, but
since these prosecutions were funded by the crown and represented
more ser ious offenses, the courts handed down definitive verdicts in
about one-half of th ese litigations. Priva te individuals, who pursued
three-quarters of the cases heard by the Senechaussees of Libourne
and Bazas, could not anticipate such likelihood of definitive verdicts .
Because their cases represented the relatively less-serious offenses
eschewed by the £!:2.CUreurs du roi, or because the costs of litiga tion
became J)rohibitive or because private accommodations caused charges
to be dropped, only 5 per cent of private plaintiffs’ cases culminated in
a court verdict.
Such data would seem to present a rather poor productivity record
for the Libourne and Bazas magistrates; their conviction ra te of only
12 per cent of the cases brought before them would augur no better
(Table 3.02). By tw entieth-century standards this is a very low
conviction rate, especially considering that by far the greatest
numbers of convictions occurred in cases of serious offenses nor mally
prosecuted at royal expense. However, the Libourne and Bazas
experience did not represent a
low conviction rate by
eighteenth-century standards. Studies of bailli~ justice in
Normandy have uncovered similar rates. During the eighteenth
century, the Bailliage of Mamers rendered criminal verdicts of guilt in
only 8.8 per cent of its cases. Rates of judgement of guilt in the
Bailliages of Fala ise and Alen~on were similarly low: during the
period 17 83-8 the Bailliage of Falaise r ecorded gu ilty verdicts in 20.8
per cent of its cases; from 1715-45 the Bailliage of Alen~on’s guil ty
verdicts did not exceed 20 per cent. Even in an urban setting, Old
Regime conviction rates were low. Only 24.1 per cent of the property
crimes in Bordeaux during the periods 1760-4 and 17 80-4 received
guilty verdicts in that city’s Jurade court. 37 The efficiency of justice
at Libourne and Bazas, it seems, was at worst average.
Whatever might be the twentieth-century assessment of their
efficiency, the professional jurists of Libourne and Bazas did not
adm inis te r a capricious system rushing to judgement. The judges were
professionals who seem to have exercised considerable care in
proceeding beyond the preliminary hearing to the extraordinary stage
56
Old Regime Justice in Practice
Table 3.02.– Rate of Actual Convictions (Those Not Subsequently Reversed on Appeal or by Pardon) in the Senechaussees of Libourne and
13azas
Crime ca tegory
Rate of a ctual convictions
in each category
Homicide
47.2%
Assa ult
5.1
Verbal violence
Property crimes
20.8
C rim es against morality
11.1
Viola tions of public order
21.5
Statuto ry violati ons
5.4
Crimes against the Roman
Catholic religion
15.4
Total convictions for all cr imes
12.0
of the trial prefacing a verdict. There had to have been strong
ev idence of th e defendant’s gu ilt for the ext raordinary decree, and the
low conviction rate suggests that such evidence oft en was
unavailable. The low rate of acquittals also indica t es careful judicial
assessmen t of evidence in the pr eliminary stages of trials. Ony 7 per
cent of all verdicts handed down at Libourne and Bazas discharged the
defendant of gu ilt. Because other Old Regime tribun als produced even
lower rates of acquittal , it would see m that caution in open ing the
extraordinary stage of a trial characterised the system .38
The nature of the penalties levied by Libourne a nd Bazas judges
provides a further measure of the quality of justice dispensed. These
judges, like a ll Old Regim e magistrates, had tremendous freedom in
sentencing because the Criminal Ordinance of 1670, though expli cit on
procedural matters, provided little guidance to judges in assigning
penal ties. The ordinance simply was not a penal code. Despite
s ubsequent royal decrees stipulating sentences for certain offenses,
and the influence of judicial treatises like those produced by Dan iel
Jousse and Franc;ois Serpillon, the Old Regim e never provided its
mag istrates wit h a det a iled list of crimes and corresponding penal ties.
As a result Alexis de Tocqueville, although critical of the abr idge ment
57
Old Regime Justice in Practice
of individua l rights in the tribunaux extraordinai res, could write that:
‘In no other European country were the ordinary courts as independent
of the government as in France …•39 Judges were not bound to abide
by sentencing recommendations of the procureurs du roi, nor were
th ey even required to le?( the few penalties which the crown did
specify for certain crimes. 0
Because of this freedom, the range of sentences open to Old
Regime judges was vast. Insufficient proof of gu ilt did not always
result in pure acquitta l. Rather tha n being found innocent, a
defendant could be ‘put out of court’ (mise hors cour), a strange
verdict r endered when the court remained suspicious of a defendant
but lacked sufficient evidence to convict him. This judgement freed
the defendant but did not asse rt his innocence. It was what one
scholar called a ‘grudging acquittal’ and under this verdict, rendered in
but 3.7 per cent of a ll Libourne and Bazas sentences (See Table 3.03),
the individual ‘put out of court’ could not sue his accusers for false
accusations and civil damages.41
An a lternative even more disadvantageous to the defendant was
the court’s decision to undertake additional investigation of his case
(plus a mplement informe). This verdict, representing only 2.2 pe r cent
of the court’s judgements, could be rendered in two ways. A verdict of
plus amplement informe temps detained the defendant in prison for a
term of a year or less pending new evidence in his case. A judgement
of plus amplement informe released the defendant but left him under a
permanent cloud of suspicion, susceptible at any time to the
resumption of his case if new evidence beca me available . Such a
verdict also meant mort civile for the defendant, a status otherwise
reserved for those under sentences of death or perpetual banishment
or galley serv ice; this prevented him from holdini2 any office,
tes tifying in court and ev en from making out a last will.
Penalties assigned to defendants judged definitely guilty could be
brutal and, by t wentieth-century standards, far out of proportion to
the offenses tha t occasioned them. Royal ordinances, for example,
prescribed the death penalty for certain kinds of offenses against
property, including theft by servants from their masters and all thefts
from churches. The punishments recommended by the crown in 1666
for the crime of blasphemy provide interesting illustration of
accelerating brutality: a first act of blasphemy was punishable by a
fine wh ich was doubled for the second offense a nd quadrupled for the
third. A fourth offense warranted exposure in the pillory and for a
fifth the perpetrator suffered a second exposure with amputation of
the upper lip; the loss of the tongue was the fate of the individual
conv icted of a sixth act of blasphemy. Particularly serious acts of
blasphemy, like the blasphemous act of Chevalier de Ia Barre in
defacing a crucifix in 1766, could result in the death penalty. 43
Penalties frequently were issued in a combination under Old
Regime law. The crown might exact a criminal penalty, while the
injured party in a criminal case might secure a financial a ward in
reparation for damages sustained in the crime’s commission. Even
penalties in cases prosecuted solely by the procureurs du roi might
include a number of different aspects. In the case of Pierre Cramailh,
a
58
Old Regime Justice in Practice
Table 3.03. –Primary Penalties by Crime Type in the Sene chaussees of Libourne and Bazas
>.
w
…..
…..(1)
~
…..0
~
0
.
w
~
E
“‘ ,r;,”‘
0.
0
~
10
11
17
2
13
1
2
3
1
E
w
(/)
…..c
w
(1)
……
E
(/)
~
0
0
>.
~
“‘ .W·..< w0 ., ...... :l ....E ..........0 ,r;,:l0. ww"' ~ ~ 3 2 8 1 4 1 1 ""0 .,"'oou......... .... 0 "' ....c u 00 ~ (1) 0 E w .... (1) ~u u 1 2 4 1 1 ~ ..... "' .w 0 1 1 3 17 18 7 23 2 8 0. 2.2 1 62