John N. Raphael

A French criminal trial is in every respect as unlike a criminal trial in England as can well be imagined. To begin with, if the Caillaux drama had been English, if the wife of an English Cabinet Minister were at the present moment in Brixton gaol awaiting her trial because she had walked into Printing House Square and shot the editor of the Times, this book, by the mere fact of its appearance, would send me and the publisher to prison for contempt of court. In France, not only is there no contempt of court in comment on a case sub judice, but the preliminaries of a great criminal trial are conducted in the open. Ever since the murder of Monsieur Gaston Calmette the Paris papers have contained long daily digests of the evidence collected on the details of the murder, and this evidence has been commented on every day, and with the utmost freedom, by the Paris newspapers. There is a special magistrate known as the juge d’instruction, whose duty it is, if I may put it so, to try the case before it comes into court, and to hand to the judge who presides over the trial his opinion on the prisoner’s innocence or guilt, his full reasons for that opinion, and the evidence in rÉsumÉ which he has collected to enable him to form it. In other words, directly a crime has been committed, whether the supposed criminal be arrested or not, a juge d’instruction or examining magistrate is appointed, and from the moment of his appointment he takes entire charge of the case. The prisoner is entirely in his hands. That is to say, he disposes of her while she is awaiting trial, under certain rules and regulations of course, as he thinks fit. He may question her as often or as seldom as he wishes, either in his room at the Palace of Justice or in her cell, the only proviso being that he is not allowed to question her without the presence of her lawyer, and that at each interrogatory his sworn clerk, known as the greffier, must be present to take down his questions, and the prisoner’s answers, and at the end of each interrogatory to obtain the prisoner’s signature at their foot. The examining magistrate’s work is of course by no means confined to his examination of the prisoner. As soon as he has digested the first details and circumstances of the crime he has full power to summon and to examine anybody and everybody whom he considers likely to have any evidence to give which may help him in his judgment on the case.

So wide are the powers of an examining magistrate, that he may if he wishes arrest not only presumable accomplices but any unwilling witness. It has happened before now that a witness has preferred to remain away from the room of a French examining magistrate and has been sent for by him and brought under arrest to him to give evidence, and a witness who has signed an untrue statement in the examining magistrate’s office is not unfrequently, when convicted of perjury at the trial, where he has repeated this evidence on oath, arrested in court. It sometimes happens, too, that witnesses contradict in court the evidence which they have given to the examining magistrate. If they do so they enjoy impunity, unless, they are proved to commit perjury in their contradiction, for evidence to a juge d’instruction is not given on oath. It happens very frequently too, in fact it almost always happens, that numbers of people for whom the examining magistrate has never thought of sending write to him that they have evidence to give, and desire to be heard. The prisoner and the prisoner’s lawyer, even the prisoner’s friends, are encouraged also to give the names of any people from whom they wish the examining magistrate to collect evidence. Practically therefore in a French criminal case the criminal is tried twice over, once by the examining magistrate, and a second time in the court of assizes before a jury. And the first trial is the more important of the two, because of the influence of the examining magistrate’s report on the minds of the judge and of the jury, at the assize court trial. The examining magistrate has the right to acquit a prisoner without sending him or her for trial at all if he finds that there is no case.

It happens, however, comparatively rarely in practice, that a non-lieu, as it is called, is pronounced by the examining magistrate, as it is a very bad mark against the name of any juge d’instruction to allow a prisoner to be set at liberty without very conclusive proof of innocence. If there be the slightest doubt the prisoner is always sent for trial. The benefit of the doubt is practically non-existent in the conduct of a French criminal case in its preliminary stages, and it may be taken as a fact that whereas a prisoner in England is considered to be innocent until guilt has been proved, the reverse is the French method, and a prisoner in France is considered to be guilty until conclusive proof of innocence has been given and accepted.

Another feature of the preliminary stages of a French criminal trial is the manner in which the evidence which the examining magistrate collects is made public as he collects it. The examining magistrate receives members of the Press during the days, weeks, and often months of his preliminary examination of the evidence, and to all intents and purposes the evidence which has been laid before him is put at their disposal for publication. It is very rarely indeed that an examining magistrate in France withholds any of the evidence he collects from the newspapers, and as each item is usually laid before the public, commented on at length, and frequently distorted in accordance with the views of the staff of the newspaper which reproduces it, the public try a case while it is in process of trial, and the newspapers criticise the examining magistrate’s conduct of the long examination and deliver a verdict of their own before the jury have an opportunity of doing so. These methods form part of the legal code of France, and as such, open to criticism though they may be, are never criticised. The methods of preliminary trial of a French criminal case present of course this grave disadvantage, that every one of the twelve jurymen and the two supplementary jurymen before whom the case is tried, practically hear or read all the evidence before they see the witnesses and hear them in court, and practically have tried and have judged the case in their own minds, however impartial they may try to be, before they come into court to try and to judge it.

I have already mentioned the freedom of action which the examining magistrate enjoys in France. This is unlimited. An examining magistrate is hampered by nothing at all in his examination of the prisoner, or of witnesses for and against, except by the dictates of his own conscience. As it is human nature for a man to shrink from the acknowledgment that he has been mistaken, it is obvious that a French examining magistrate who starts with the idea that his prisoner is a guilty man or woman will do everything in his power, and his power has no limit except his own conscience, to prove the guilt of his prisoner. He may, and often does, use dramatic methods to force a confession. He may, and often does, lie to the prisoner for the purpose of extracting a confession. He may, and often does, misreport to the prisoner evidence which has been given him so as to entrap a guilty prisoner, whom he can manage to convince that the game is up, into a full confession of guilt. There have been many cases known of abuse of this power. It has happened before now that a prisoner, accused of a crime of which he or she is perfectly innocent, has actually confessed to the crime rather than endure the mental torture of the examining magistrate’s persistent cross-examination.

And in the hands of an unscrupulous man, even when that man honestly believes in the guilt of the prisoner he is examining, mental torture is not the only form of torture which may be inflicted. Of course there are no thumbscrews, rack, or water torture in existence in France nowadays, but there are other and more refined methods of coercion which an examining magistrate may use, and often does use, against the prisoner whose case is under consideration. Pathetic mention of these methods was made, I remember, during the trial of the motor bandits by one of the prisoners whom the court afterwards acquitted. All the small comforts which a prisoner (a prÉvenu is the French expression) may enjoy while awaiting trial rest entirely on the good or ill will of the examining magistrate, and he is paramount to permit them or to remove them, as his will or his fancy dictates. During these preliminary stages of the trial nobody has any right to interfere with an examining magistrate or to question his decision on any matter whatsoever. The prisoner’s lawyer or the prisoner may of course protest, and the protest must be registered by the clerk, who is always present. But it rests entirely with the examining magistrate how much severity and how much leniency are shown to the prÉvenu while the preliminary trial proceeds.

Another thing which remains entirely at the examining magistrate’s discretion is the length of this preliminary trial. He is free to conclude his examination when he wills. As soon as he considers that the evidence he has collected is sufficient to allow him to send the case for trial, and to hand his opinion on it, with the reasons for his opinion, to the judges, the date of trial is fixed. He may send in this opinion in a few days, he may take many months over it if he wishes, and though the imprisonment of a prisoner before trial ranks as part of the sentence after conviction, an examining magistrate who has taken a very long time over his preliminary examination may inflict very serious hardship on a prisoner whom the assize court acquits at the end.

In the case of Madame Caillaux it is probable that the trial will come on in July or possibly even after the holidays, in September. It is in everybody’s interest that the trial should not be heard too soon. The judges need time to probe every tittle of the evidence, the Government—though the Government will hardly dare to interfere, I think—will prefer the case to be heard when Paris is comparatively empty, and the defence will find in a long detention in Saint Lazare pending her trial a useful argument for mercy to the prisoner.

The work of an examining magistrate in France is conducted with a curious absence of formality. The prisoner or the witnesses come to his room in the Palace of Justice, and in the case of a prisoner the guards withdraw. The magistrate collects his evidence in a very conversational way. He chats with the prisoner and with the witnesses whom he calls, he interrupts them, he bullies them if he thinks fit, he allows them to speak or he reads them a lecture, exactly as he likes, he makes statements, and takes note of contradictions, and he frequently calls three or four witnesses together and allows them to discuss points in the case while he listens to the discussion.

This method, I may remark, is often a very fruitful means of getting at the truth. The absence of formality has often proved to be a great help to the course of French justice. The French law and English laws have very different ideas on the subject of evidence. To give an idea of what is considered perfectly relevant and perfectly admissible evidence in France, Madame Caillaux, during the course of her preliminary examination by Monsieur Boucard, the examining magistrate in charge of her case, made the following extraordinary request to him. “I am informed,” she said, “that, in the opinion of the great surgeon Dr. Doyen, the life of Monsieur Calmette might have been saved after I shot him if he had been treated differently.” Madame Caillaux’s contention was that the doctors who attended Monsieur Calmette after she had shot him might have treated him in such a way as to ensure his recovery, and she asked the examining magistrate to call Doctor Doyen, who, after reading the report of the autopsy made by the sworn medical experts after Monsieur Calmette’s death, was of the opinion that the surgeons who attended him might have saved his life. Evidence of an equally irrelevant nature is considered perfectly admissible in any French criminal trial, and evidence as to character and motive very frequently admits in France of an immense abuse of the examining magistrate’s time. In the Caillaux case, for instance, friends of the murdered man have been prolific with evidence to the effect that from their knowledge of Monsieur Calmette they consider it most unlikely that he would ever have printed the letters which play so large a part in the evidence for the defence, and the publication of which Madame Caillaux feared and anticipated.

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.

Agence Nouvelle—Photo, Paris

MME. CAILLAUX IN THE DRESS SHE WAS TO WEAR AT THE ITALIAN EMBASSY ON THE EVENING OF THE MURDER

The mass of work which the preliminary examination in a big criminal trial entails may be gathered from the fact that the examining magistrate’s opinion on the case when written out and handed into court to be read at the beginning of the trial is frequently of such length that it forms a volume by itself and takes many hours in the reading. The judge who presides over the case has of course read the examining magistrate’s opinion, and digested it very carefully before the case comes into court, and in France it is the judge who conducts a trial rather than counsel for the defence and for the prosecution.

During the preliminary examination of the Caillaux case, which finished just before this volume went to press, several unanticipated points arose. The reader, who has studied with any care the employment, given in the first chapter of this book, of Madame Caillaux’s time on March 16, 1914, will have noticed that some hours of the afternoon were unaccounted for. A very bitter discussion on the employment of those hours, a discussion in which Monsieur Caillaux, Madame Caillaux, Monsieur Caillaux’s friends, the Figaro, the public bank clerks, the keeper of the registry office where Madame Caillaux engaged a cook, the cook herself, Madame Caillaux’s servants, her English governess Miss Baxter—in which all kinds of people were allowed to take a hand, raged for several days. It came about in the simplest manner. Madame Caillaux said that she went to the registry office and engaged a cook early in the afternoon. The keeper of the registry office said that Madame Caillaux had engaged a cook late in the afternoon. The cook herself didn’t remember exactly at what time she was engaged. Madame Caillaux’s chauffeur remembered when he drove her to the registry office, but his evidence is not considered incontrovertible because he is in Madame Caillaux’s employ. Matters were complicated by the fact that Madame Caillaux had been to the CrÉdit Lyonnais and to her safe there. The strong room of the CrÉdit Lyonnais is officered by certain clerks who hand each person who goes down to the strong boxes a ticket, duly numbered, which is stamped with a mechanical dating stamp marking the hour and minutes at which it is issued. Madame Caillaux’s ticket was marked five o’clock. She maintained that she had been to the CrÉdit Lyonnais an hour earlier, between four and five minutes past, and that she had been home before she went there. For several days, argument went on in the papers, in which all sorts of people took part, to show that Madame Caillaux had told the truth or had lied about the employment of her afternoon before the murder. This argument was mainly for the purpose of proving or of disproving premeditation or its absence. After several days’ newspaper discussion, an examination of the mechanical stamp at the CrÉdit Lyonnais proved that it was very unreliable and its use has now been discontinued by the bank.

One of the great difficulties in the task of the examining magistrate in securing really relevant and really useful evidence in a crime of this kind, is the French insistence on the need of and the right to professional secrecy. As I have pointed out in another chapter, while professional secrecy is in some cases a necessity, it is often distinctly antagonistic to the search for the truth. It is not unlikely that there might never have been any Caillaux drama at all if professional secrecy had not been invoked on another occasion. During Monsieur Boucard’s examination he was informed by two members of Parliament that each of them had been told that Monsieur Calmette had been in possession of the letters, the publication of which Madame Caillaux feared so much. The examining magistrate very naturally wanted to know who had supplied this information, and very naturally wanted to question the informant. One of the two honourable deputies had given his word of honour as a lawyer, the other had given his word of honour pure and simple not to disclose the source of his information, with the result that their evidence is no evidence at all, and that on the other hand even if it be valueless the public and everybody interested has been led to believe that there may be a good deal in it. But what impresses the impartial observer more than anything else in connexion with the preliminaries for a criminal trial in France is their unfairness—the unfairness of the system—to the person who is to be tried. For instance, after Monsieur Calmette’s death, the report of the autopsy made by the two medical officers of health usually charged with this duty, Doctor Socquet and Doctor Charles Paul, was handed by them to the examining magistrate and was, immediately afterwards, published in extenso in the public press. The examining magistrate had also received the evidence of the armourer, Monsieur Gastinne-Renette, and his employees on Madame Caillaux’s visit to the shooting gallery, and her trial of the revolver she bought there. An enterprising newspaper secured a figure from the shooting gallery, marked it with the trial shots as Madame Caillaux had shot them, and published this picture opposite another one representing Monsieur Calmette, which was marked with the wounds inflicted according to the autopsy. Does it not seem an unheard of and unallowable crime against common sense and common decency that the public should be offered such evidence of premeditation by a newspaper while the case is still unheard?

Some idea of the evidence which is inflicted on the examining magistrate in a case of this kind may be formed from that given voluntarily by a young man named Robert Philippeau. Monsieur Philippeau stated with some solemnity that he knew nothing about the drama, that he did not know Monsieur Caillaux and that he had not known Monsieur Calmette. He had been in the Nord Sud (a branch of the Paris Tube) in a first-class carriage, one afternoon in the course of last winter. Two ladies sat on the seat immediately behind him. One of them said in his hearing, “She browbeat me, she laughed at me, she took him from me, but I have four of his letters, and one of them is one which he does not know I possess. I have shown these letters to Barthou, I have told him that I am going to use them. He neither advised me to do so, nor advised me not to. I will wait till they get to the top of the tree and then I will pull them down headlong.” Monsieur Philippeau said that he looked at the lady who had spoken. He did not know her by sight, but when he saw the picture of Madame Gueydan-DuprÉ in the newspapers he had no further doubt that it was she who had spoken, and that she alluded to the letters of which we have heard so much.

To anyone who has ever seen in a Paris daily newspaper the reproduction of the photograph of anyone he knows, the value of this “evidence” is obvious. Madame Gueydan had no difficulty whatever in proving by the evidence of several intimate friends that she had never been in the Nord Sud in her life. And even if Madame Gueydan had travelled every afternoon all through the winter in the first-class carriages of the Nord Sud she would hardly have been likely to talk to a friend in a loud voice of private affairs of such importance, or to mention Monsieur Barthou’s name in connexion with them.

With regard to these letters, it is not yet certain that they will be read in court, but it is to be hoped that the examining magistrate may succeed in obtaining possession of them for this purpose, for on the probability of their publication in the Figaro, and on Madame Caillaux’s belief that their publication might occur, rests one of the principal pleas for the defence. In her examination on the motive for her crime before the examining magistrate, Monsieur Boucard, the prisoner was asked why she was so afraid at the idea of the publication of the two letters which Monsieur Caillaux had written to her in 1909 when he was still the husband of Madame Gueydan, as Madame Caillaux at that time was already divorced from her first husband, Monsieur LÉo Claretie. “These letters,” said the prisoner, “were intimate in nature, and I resented and feared the possibility of their publication. My situation and my reputation could be attacked by the help of these letters.” “That being so,” said Monsieur Boucard, “why did you give them back to Monsieur Caillaux?” “When he wrote them to me,” said the prisoner, “I was staying in the country with friends. So that I shouldn’t lose them, Monsieur Caillaux asked me to send them back to him, addressed to him ‘Poste Restante’ at Le Mans. I did this, and that is how Madame Gueydan was able to steal them from the drawer of his writing-table. Now that the scandal has burst,” she added, “I should wish these two letters to be put in with the other evidence on my case.” Monsieur Boucard told her (it should be understood that the whole of this conversation in the magistrate’s private room at the Palais of Justice was reproduced in full, immediately after it took place, in the Paris newspapers of April 22) that he had asked Madame Gueydan on three separate occasions to give him the photographs of these letters—which photographs had been taken and which she had, she admitted, deposited in a safe place—and that she had refused to let him have them. “I hope you will be able to get them,” said Madame Caillaux to Monsieur Boucard. “Their publication will show that they are not the improper letters they have been described to be, and I wish to renew my statement that in going to the Figaro office I had no intention of killing Monsieur Calmette. My object was to obtain from him the promise that he would not make use of the letters which Monsieur Caillaux had written to me, and I had intended making a scandal in case Monsieur Calmette refused.” The magistrate’s answer to this statement was published, with the statement itself, by the Paris newspapers of April 22.

I quote his answer from the Petit Parisien, a paper which has made every effort to try the case in its columns with impartiality, and without political bias. I quote it as a sidelight on the inherent peculiarities of the conduct of a criminal trial in France, quite irrespective of the impropriety of its being published at all. “Do not let us go back to a discussion on this point,” answered the magistrate. “You will make nobody believe that when you went to get your letters back or to obtain a promise that they should not be published you lost all power of speech, and lost your head at the same time, to the extent of saying nothing and using your revolver.” “Madame Caillaux had been in the magistrate’s office for six hours,” says the Petit Parisien. “She appeared very tired.”

Some weeks before this extract from the examination of Madame Caillaux had appeared Excelsior published (on March 25, 1914) an extract from the letter Madame Caillaux had written to her husband and left with Miss Baxter, her daughter’s English governess, to be given to her husband on the evening of March 16 in case she did not return home before him. In this letter Madame Caillaux is said to have written, in reference to her conversation with her husband that same morning, “you told me that you were going to smash his face. I do not want you to sacrifice yourself. France and the Republic need you. I will do it for you.”

The mere fact that such details of the examination of a prisoner by the magistrate appointed to instruct the court which is to try her should be made known in the public Press and should be free for comment weeks before, and even months before the trial of her case in the assize court, calls for no remark. It speaks for itself. A prisoner in France who has been accused of any crime is tried by the public before the trial of the case begins. The jury cannot possibly come into court with impartial minds owing to this system, they cannot listen with open minds to the evidence which is laid before them in the court room, for they have read it all before, they have thought over it, they have discussed it with their families and with their friends, and with the best will in the world they have been unable to help forming an opinion of one kind or another. And there is another vice of French procedure which is well worthy of note. In a sensational case such as the trial of Madame Caillaux, the jury is subjected to direct influence. After it has been empanelled at the beginning of the trial the members of the jury return to their homes every evening. They are therefore, during the actual hearing of the case, liable to outside influence. Even more than this, the names of the twelve jurymen and of the two supplementary jurymen will certainly be published in the French newspapers with details about the men themselves and their professions, before the trial begins, and this of itself forms an abuse which must inevitably react on the absolute impartiality of a jury, which should be a first necessity of any criminal trial in any country, for numbers of newspapers will tell them what they ought to do and what their verdict ought to be.

The procedure of a French criminal trial in the court of assizes in Paris is attended with considerable pomp. In the Caillaux case as in the cases of a sensational nature which have preceded it, the rush for tickets of admission to the trial will be enormous. Response to this demand for tickets to hear and to witness the trial rests entirely in the hands of the judge who presides over the proceedings. He is able to admit, to standing room behind the bench, such friends of his own as he cares to admit, and he decides on the number of tickets of admission to the body of the court, which are distributed to the Press. The body of the court is supposed to be reserved for the Press and for the witnesses. In actual fact, as every barrister in robes is by reason of his profession entitled to admission to the court, barristers overflow from the seats reserved for the Bar and crowd the Press benches and the witnesses terribly, and far too many tickets are invariably distributed to members of the detective force in plain clothes who become “journalists” for the occasion. The public who have no particular privileges are admitted to a small space at the back of the court, through a small door in the Palace of Justice which is set apart for the purpose.

In the trial of Madame Steinheil long queues waited all night for admission to this small enclosure, although the hundreds who waited knew beforehand that very few of them would get in, and in the Caillaux case we are likely to see similar strings of well dressed society folk subjecting themselves to the hardships of waiting all night in the streets for a few hours’ sensation. The assize court is presided over by the President and two assistant judges. These three men in all the mediÆval glories of their red robes and quaint brimless caps, trimmed with ermine, sit at a long table on a platform at the upper end. The court-room is a long parallelogram with beautiful dark oak panelling and ugly green paper above it. The top half of the room, which is reserved for the court, the table with the piÈces À conviction (Madame Caillaux’s revolver, for instance), the jury, and the Bar, behind which is the dock, is divided from the lower half of the room where the witnesses, the Press, and the public sit or stand, by an oaken barrier with a gate in the middle of it. Immediately in front of this gate, plumb in the centre and facing the table at which the judges sit, is the bar to which witnesses are called. Witnesses, after they have given evidence, go and sit on the seats beyond the barrier till the end of the trial. A witness stands facing the judge, and has on his immediate right the prisoner’s lawyers and above them the dock in which the prisoner stands. This dock has no door leading into the body of the court. The only entrance to it or exit from it is a door leading out to a room and the passage which conducts to the stairway leading down to the depÔt or prison in the Palace of Justice. To the witness’s left is the box with the jury, and on a level with the judge’s bench and with the jury’s box is the desk occupied by the Public Prosecutor, who wears the same imposing red, ermine-trimmed robes as those worn by the judges, and who prosecutes on behalf of the Government of France. As a matter of fact, however, in every French criminal trial there are two prosecutors. The French criminal system considers this right, but to any foreigner who has been present at a trial in France it must appear anything but that. For the presiding judge in a French trial is really a prosecutor as well. Before the case comes into court he has spent many hours over the opinion provided for him, in a lengthy document with countless appendices of evidence, by the examining magistrate, and from the very start of the trial the presiding judge takes the lead in the examination of the prisoner.

I was present in the Paris Court of Assizes throughout the Steinheil trial, and I shall always remember the painful impression which was made on me then by the judge’s methods. I remember now the picture I saw of the eager little woman, dressed in black, pleading, protesting, discussing, admitting and contradicting by turn, and of the man in his judge’s robes who argued hotly with her, told her, downright, time after time that she was guilty of the crime for which she was on trial, thundered out accusations, tried to wheedle her into damaging admissions, and thundered out the statement that she was not telling the truth. The judge in a French trial is not only a prosecuting counsel—he is rather a brutal one at that. Any impartial onlooker, if he be not a Frenchman, and be not therefore accustomed to the methods of the French court, cannot help realizing that the judge uses his power and his prestige as Brennus used his sword, and frequently hurls it into the scales of justice to the detriment of the prisoner. On the other hand, a French judge, who is enjoined by law on his honour and his conscience to use his best efforts to bring out truth at the trial, undoubtedly does so within the limits of human possibility.

But the work which a French judge has to do at a criminal trial is more than any one man should be allowed to do, for no man can both judge and prosecute. To begin with, his own opinion has been prejudiced, must have been prejudiced, by the opinion of the examining magistrate, which, whether he will or not, has influenced him. He examines all the witnesses, he examines the prisoner, and he cross-examines them. On the other hand he is forbidden to discuss the arguments after the counsel’s speeches, either for the prosecution or for the defence (if he did so the whole proceedings would be void), and he does not sum up as an English judge is allowed to sum up. But the French judge in a criminal trial sums up at the beginning of the trial instead of after it. He has made a complete study of the dossier, which is to all intents and purposes a complete study of the brief for the prosecution and of the brief for the defence, he tells the jury the whole story of the crime with which the prisoner is charged, and tells them the facts on which the prosecution and the defence rely. The judge tells the jury, before it is given, of the evidence which will be called in support of the prosecution, and of the evidence which will be called by the defence in answer to it. He goes the length of explaining why the prosecution believes the prisoner to be guilty, and explains the facts and deductions on which prisoner’s counsel base their defence.

The amount of apparently irrelevant argument which is permitted in a French criminal trial is enormous. The code does not allow it, for by Article 270 the presiding judge is ordered to exclude from the hearing anything that will prolong the trial without adding to the certainty of the result. In any trial which has aroused general interest this article of the code usually becomes a dead letter. The judge himself, the Public Prosecutor, the prisoner’s counsel, the prisoner and the witnesses are all allowed immense latitude, are all encouraged to say all that they care to say at enormous length. The only people in court who do not talk are the members of the jury, and from the very beginning of the trial these men go to their homes every night, discuss the case with their friends and their wives, and read the newspapers daily, and the newspaper comment on the case which they are trying. Jurymen are not necessarily possessed of legal minds, and under such circumstances how can twelve ordinary men, however honest, and however impartial they may wish to be, keep their minds entirely free from outside influence.

I don’t know that I have ever heard of a case in which a member or members of the jury have been known to have talked to witnesses, but I do not know, either, that there is anything to prevent any member of the jury discussing the case at night during the progress of the trial with a witness outside the precincts of the court. No man is infallible, but justice ought to be. Jean Richepin put the whole case against the French criminal trial in a nutshell when he sang “Quel homme est assez Dieu pour rendre la Justice?” The conclusions of a juge d’instruction, however capable the man may be, need not of necessity be infallible. As he has the power to let the prisoner go, the power to say that there is no case for the jury, it stands to reason that, unless he states a doubt, the mere fact that he has sent the prisoner for trial means that he believes in the prisoner’s guilt.

The judge therefore starts a trial with the conviction that the examining magistrate thinks that the prisoner is guilty. This conviction must influence his conduct of the case. “Quel homme est assez Dieu pour rendre la Justice” under these conditions? Many Frenchmen have been of the opinion for a long time that the procedure of a French criminal trial needs reformation. Many consider that the judge’s preliminary interrogatory of the prisoner and of the witnesses should be entirely suppressed, and should give place to examination and cross-examination by prosecuting counsel and the counsel for the defence. Many people think too that the juge d’instruction should be made to justify his dossier in open court and on oath, that he should be called to justify it at the witness bar instead of the present system of a formal reading by a clerk of the court which takes a long time and is always so gabbled that it is merely a formality.

Another reform in French criminal procedure which many Frenchmen think necessary is the suppression of the freedom of the jury during the trial. There is a curious disregard of rules and regulations during the details of a big criminal trial in France. There are witnesses who, in response to the judge’s remark after he has asked the witness to swear to tell the truth without fear and without hatred, and to state name, address, and age, in response to the three words “Make your deposition” which give the witness a free head, behave just like racehorses when the starting gate goes up. Lawyer witnesses particularly have been known to make long speeches for the defence or for the prosecution on the plea of giving evidence, and there are many other similar abuses. It often happens, too, that evidence which the examining magistrate has collected is never sifted at the trial itself. When the trial is over, when the Public Prosecutor, the counsel for the defence, and, if the prisoner has anything to say, the prisoner, have addressed the court, the jury retires to consider the verdict. There is something oddly, picturesquely, emphatic and impressive in the mechanism of this retirement.

Somehow or another the French have a peculiar knack of stage-managing anything and everything. No visitor on his first visit to Paris fails to remark the wonderful stage-management (I suppose I ought to call it landscape gardening) of the city. Look at the Tuileries Gardens when dusk is just closing in towards the end of a fine day. The whole place breathes the history of the last days of the Empire, and has the gentle melancholy of a Turner picture. Stop in the Avenue des Champs ElysÉes where the Avenue Nicholas II. intersects it. Look up the Avenue and down it. The Arc de Triomphe and the Place de la Concorde, which, when it ceased to be the Place Royale, held the scaffold of a king of France. Look out across the Seine, then turn and look behind you. The bridge which is named after a murdered Czar of Russia and the Invalides beyond it. Behind you the Palace of the ElysÉe, the home of the President of the third Republic, facing Napoleon’s Tomb. At every turn in Paris, north, east, west, or south, you get signs of this half-unconscious national gift of staging effects.

The jury in a criminal trial in Paris does not, as a London jury does, melt into disappearance before the final verdict. There are a few solemn words from the judge, there is a rustle as the lawyers gather up papers and sit back, and then fourteen very ordinary, very weary good men and true, whose faces we had only seen in profile until then, rise in their places. Their white and tired faces shine suddenly a pasty yellow in the electric lamplight. The good men of the jury show us their backs and walk slowly behind the desk of the Public Prosecutor to a little door which we had not noticed till then, and which has just been opened. Through this freshly opened door we stare across the court up a flight of narrow stairs with red and grey carpets on them. The verdict will come, presently, down that flight of narrow stairs. The small door closes, and we wait.

As a rule a big criminal trial finishes late in the evening. Everybody is sick of it. For the sake of the prisoner, for the sake of the judge, for the sake of the jury, for the sake of the lawyers, for the sake of the public, every one wants to get it over. Nobody wants yet another adjournment. So it is usually at night that one sits and waits for the verdict in a big Paris criminal trial, and although I have seen exactly the same scene, and endured exactly the same sensations many times, the scene has never lost its dramatic force, and the sensations are always new. A sense of relief comes first. We have seen the prisoner, in a state of semi-collapse as a rule, going out through the door of the dock to the room behind it, where, on this last evening of the trial, the prisoner is allowed to wait for the verdict which is to be rendered before her return. We feel the relief that one feels when the fighting is over, mingled with suspense and with pity for the wretched creature who is waiting and is wondering. We realize that we are hungry, and rush off to get a little food. We dare not stay to eat it, and return with it to court again. The appearance of the court-room has changed during the few minutes of our scamper to the buffet down below for sandwiches. We have brought them back with us, and other people are munching food, too, in the dust, the heat, the squalor of this room from which the majesty of justice has departed with the red robed tribunal, the jury, and the prisoner. There is a hubbub of excited talk and much discussion. Municipal guards forget to keep order and chat with us and with the barristers of the probabilities and possibilities of the verdict. Every now and then there is a hubbub of excitement and a sudden deathly stillness. The little door, beyond which we can see those red and grey carpeted stairs, has opened. The jury are returning! No, it is a false alarm. They are not quite clear on some formal point or other, and they have sent for the judge. After one or more of these alarms, suddenly, when nobody has expected it, the little door opens and remains open. The jury really are returning this time. We see them walk slowly down those narrow red and grey stairs, and file slowly into the box. Their faces tell us nothing, but we all try to read them. The presiding judge and his two assistant judges walk slowly in and take their seats, at the long table. On their right, the red robed Public Prosecutor who has followed them, stands at his desk, on their left the lawyers for the defence stand in their seats in front of the empty dock. The stillness which was broken for a moment while the court came in becomes something tangible, something quite painful now. It has a quality of the sensation one feels in a diving bell. Our eardrums tingle with it. Then the judge’s voice breaks the strain. “There must be not the least noise,” he says. “I will allow no demonstration of any kind, whatever the verdict may be.” Somebody laughs, and is hushed down with indignant sibilance. We know that there will be a demonstration whatever the judge may say. There has never yet been a French trial without one.

“Mr. Foreman of the Jury,” says the judge, “Be kind enough to let us know the result of your deliberations.” If possible the silence becomes greater yet. Then: “On my honour and on my conscience,” says the foreman of the jury “before God and before men, the answer is ... to all questions.” And pandemonium breaks forth. The answer to the questions has to be “Yes” or “No”. The jury may not amplify it. They will be asked, in the trial of Madame Caillaux, to decide whether there was murder, whether there was murder with premeditation or without it. They will be asked to state whether there are extenuating circumstances, or whether there are none. On these answers, on this simple “Yes” or “No” depends the fate of the prisoner. We see the judge’s mouth open and shut, we see his hand rise and fall, but we have heard no sound of his voice in the hubbub which the declaration of the verdict has let loose. Then there is silence again. The judge has ordered the prisoner to be brought in. The verdict is told her, and the sentence, if there is a sentence, is rendered.

This is the way in which the curtain will fall on the last act of the Caillaux Drama. Will it be a final curtain? And what will the jury’s answer be to the questions which will be put to them? That, no man can answer now. Madame Caillaux may of course be acquitted, though public opinion in Paris considers this exceedingly unlikely. She may be found guilty of murder with premeditation. The sentence decreed by the Code for this is death, and nobody believes in or anticipates the likelihood of such a verdict. If the verdict be “Murder without premeditation,” if the jury finds extenuating circumstances, the Code decrees a minimum of five years, either hard labour or confinement in a prison, and a maximum of ten years. There is also the possibility that a sentence may be passed of hard labour or imprisonment for life.

And beyond the verdict, beyond the sentence, what will the future of this woman and her husband be? That no man can answer either, but we all know that whatever happens, whatever the court decides, those shots from a revolver in the office of the Figaro on the afternoon of March 16, 1914, will never cease to echo in the lives of Joseph and Henriette Caillaux.

And in the echo, lurks the tragic essence of the Caillaux drama.

the end