Old Regime Justice in Practice ...

Even when a criminal fell into the authorities' grasp, trial was not the inevitable outcome. The jails used by many provincial courts to hold prisoners until trial were in poor condition. The two-cell prison of the Sénéchaussée of Libourne, for example, occupied a part of the fifteenth-century Libourne town hall, and as late as 1786 lacked bars on some windows and was particularly susceptible to escape. Five successful jail breaks occurred between September 1772 and November 1773, with one prisoner, Jean Voyer, participating in three of these. Twice recaptured, he escaped successfully in November 1773 ...

The reluctance of some crime victims to lodge complaints, as well as the inadequacies of law enforcement resources, meant that a certain number of criminals entirely escaped the justice of the Sénéchaussée of Libourne and Bazas. Those lawbreakers who were indicted and prosecuted found that Old Regime justice was little concerned about defendants' rights, nor was its justice speedy or sure.

The steps in a criminal litigation demonstrate that the defendant was accorded few rights by the Criminal Ordinance of 1670 defining the competence of all French courts and regulating their procedure ... A criminal trial before courts like those at Libourne and Bazas ensued when a complaint reached the judge of the court district in which the crime was alleged to have been committed.

The criminal court judge, the lieutenant général criminel, began a preliminary enquiry upon receipt of the complaint to determine if evidence in the case warranted criminal prosecution. As part of this enquiry the judge might visit the site of the crime, and in cases of murder or assault he might examine the victim's wounds. The clerk of the court, the greffier, drafted a procès-verbal of all that the judge observed, and to this record might be added reports of physicians or other experts. With this information in hand, the judge then heard sworn testimony of witnesses to the crime. This testimony was heard in a closed court session, without the presence of the defendant, and all manner of testimony, including hearsay evidence, was admissible.

Witnesses were encouraged to come forward by payment for their time spent in testifying and in travelling to the court seat  .... But if no witnesses to a serious crime appeared and as a result the perpetrator remained unknown, the court might seek the issuance of a monitoire. Published at the order of the local officialité, this notice was intended to be read by parish priests of the diocese from their pulpits on three 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 information was excommunication. The publication of a monitoire must have been a last resort for the courts since their issuance often raised 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. Monitoires might also create superstitious 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 Sénéchaussée issued only three monitoires in thirty years, and the Bazas tribunal issued none ....

After hearing the sworn testimony of the witnesses, the judge's next step in the preliminary enquiry was to summon the suspect. Most suspects remained at liberty until this time, though in certain cases they could already be in custody. Arrest was immediate 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 décret d'assigné pour étre ouï directing the individual charged in the complaint to appear in court on a specified day to respond to the allegations. If the accused did not answer this summons, the decree became a décret d'ajournement personnel. On occasion judges initially issued this ruling in more serious offenses that appeared to warrant no corporal punishment. Like the décret d'assigné pour étre ouï this decree summoned the suspect to court on a given day, but if the suspect failed to appear on that day, the ajournement personnel became an arrest order. The arrest order, the décret de pris de corps, was the last resort in the summons process for minor crimes and was the automatic decree of the judge in cases requiring corporal or capital punishment ....

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 against him. He as yet had no knowledge of the charges against 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 assistance to almost all criminal defendants .... 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 . . . 
  but it was found that it was more suitable to compel 
  defendants to defend themselves in their own words; that 
  is to say, by themselves and without any written aids in 
  hand; because written aids could have been given or 
  dictated to them in order to obscure the truth by subtleties 
  and quirks of the law that legal counsels would be able to invent ...

Under oath and without counsel or written aids, the defendant was questioned by his judge on the facts of the case while the greffier recorded his responses, gestures and even appearance. At this initial questioning, the defendant had his only opportunity to raise a jurisdictional challenge to the court's authority or to demonstrate any privileges exempting him from the judge's competence ....

After this interrogation the judge deliberated with other magistrates (the conseillers) of the court on one of three possible conclusions for the preliminary enquiry. The judges might find the defendant palpably not guilty and terminate the procedure. They also might determine that the defendant's offense might be more appropriately pursued as a civil litigation. Or they might rule that there was sufficient evidence to justify continuation of the case as a criminal proceeding and issue an extraordinary or interlocutory decree ordering the next steps in the trial: the verification (récolement) of witnesses' testimonies and their confrontation by the defendant ...

In the récolement, witnesses' testimony was read back to them and they were asked to swear again to the veracity of the information they had supplied to the court. Any change in their testimonies in this phase of the trial, or in the later confrontation, made witnesses liable to prosecution for perjury. The defendant again was excluded from this second presentation of the testimony and he heard the testimony against him only at the next stage of the trial, the confrontation of witnesses.

At the confrontation, the defendant remained without legal counsel or written aids as the witnesses were identified to him, and he had his only opportunity to contest their credibility. Next the greffier read 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 raised by the defendant. Potential perjury charges meant that witnesses seldom varied their accounts of a crime under judicial questioning ...

A trial entered its final stages when the presiding judge received the conclusions of the procureur du roi in the case, including the latter's recommendation for a sentence. The court's magistrates then assembled to deliberate a verdict. One of their number (the rapporteur) reported the facts of the case and interrogated the defendant under oath once more. If the procureur du roi requested corporal or capital punishment or any other degrading penalty, the interrogation took place on the sellette, a wooden bench on which the defendant knelt during questioning to increase his discomfort and therefore his willingness to answer. Still without any counsel, the defendant was at last permitted to undertake a defense during this interrogation. He had just one opportunity, however, to call witnesses and had to state their names extemporaneously with no later opportunity to add to their number. Witnesses called by the defendant, moreover, appeared at his expense ....

The traditions of Roman law as well as royal ordinances guided magistrates as they weighed the evidence presented to them. In Roman law, very definite forms of proof were required to convict a defendant, particularly in capital cases. Judges could sentence a defendant to death only if there were two eye-witnesses to his crime or if the defendant confessed to his crime. Few cases, however, were so clear-cut since eye-witnesses sometimes were lacking and the defendant often refused to confess. In such cases partial proof of culpability in the form of strong circumstantial evidence might nevertheless exist. In capital cases the existence of such evidence permitted the judge to subject the defendant to torture in the question préparatoire in order to elicit a confession of guilt allowing the magistrate to levy the death penalty. The Ordinance of Villers-Coterets of 1539, which governed French criminal 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 Ordinance of 1670 introduced new procedures governing the proof of guilt ...

The Criminal Ordinance of 1670 permitted judges to assign any penalty except death to defendants who failed to confess to capital crimes under torture, but of whose guilt there was substantial circumstantial proof. This provision of the ordinance greatly diminished the need for the question préparatoire because a verdict of guilt and a punishment could now be levied without the defendant's confession. The consequences of this aspect of the Ordinance of 1670 were fortuitous for defendants in criminal cases because, without the absolute need for confession, judges reduced their use of the question préparatoire. Its use remained legal until 1780, but research in Libourne court records of 717 cases with 1,529 defendants yields only one application of the question préparatoire; its use by other court jurisdictions seems similarly restricted during the eighteenth century ....

The magistrates formulated their verdicts with the record of the récolement and confrontation, the recommendations of the proceurs du roi and the rapporteur, as well as other court records before them. The judgement stage of the Old Regime criminal proceeding is perhaps the most crucial in an assessment of justice at Libourne and Bazas. Since the days of Beccaria it has been axiomatic that the goal of the criminal justice system should be the deterrence of crime by the speed and surety of punishment rather than its cruelty.

Old Regirne justice certainly was not swift for many of those tried at Libourne and Bazas. The average timespan from the filing of the complaint to a final judgement of guilt or innocence, or the registration of a pardon, was forty-four weeks and two days. The longest case, a trial for homicide, lasted ten years and seven and one-half months; the shortest trial, also for murder, was adjudicated in four days .... Extended delays of justice, however, were not unusual by contemporary 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 simple trials for petty larceny might last one or two months. Such langour probably resulted from the fees charged for the process of litigation. 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 ....

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 every 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 whether a case was pursued to a verdict ..... The procureurs du roi prosecuted fewer than one-quarter of all cases, but since these prosecutions were funded by the crown and represented more serious offenses, the courts handed down definitive verdicts in about one-half of these litigations. Private individuals, who pursued three-quarters of the cases heard by the Sénéchaussée of Libourne and Bazas, could not anticipate such likelihood of definitive verdicts. Because their cases represented the relatively less-serious offenses eschewed by the procureurs du roi, or because the costs of litigation became prohibitive or because private accommodations caused charges to be dropped, only 5 per cent of private plaintiffs' cases culminated in a court verdict ... [An extract from Julius R. Ruff, Crime, Justice and Public Order in Old Regime France - The Sénéchaussées of Libourne and Bazas, 1696-1789 (London: Croom Helm, 1984), pp. 52-56]