So wide are the powers of an examining magistrate, that he may if he wishes arrest not only presumable accomplices9 but any unwilling10 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 perjury11 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 impunity12, unless, they are proved to commit perjury in [Pg 270] 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 acquit13 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, [Pg 271] 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 conclusive14 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 withholds15 any of the evidence he collects from the [Pg 272] 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 criticise16 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 supplementary17 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 impartial18 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 unlimited19. An examining magistrate [Pg 273] is hampered20 by nothing at all in his examination of the prisoner, or of witnesses for and against, except by the dictates21 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 confession22. 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 entrap23 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 perfectly24 innocent, has actually confessed to the crime rather than endure the mental torture of the examining magistrate’s persistent25 cross-examination. [Pg 274]
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 inflicted26. Of course there are no thumbscrews, rack, or water torture in existence in France nowadays, but there are other and more refined methods of coercion28 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 acquitted29. 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 paramount30 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 interfere31 with an examining magistrate or to question his decision on any matter whatsoever32. 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 leniency33 are shown to the prévenu while the preliminary trial proceeds. [Pg 275]
Another thing which remains34 entirely at the examining magistrate’s discretion35 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 fixed36. He may send in this opinion in a few days, he may take many months over it if he wishes, and though the imprisonment37 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 inflict27 very serious hardship on a prisoner whom the assize court acquits38 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 [Pg 276] 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 detention39 in Saint Lazare pending40 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 conversational41 way. He chats with the prisoner and with the witnesses whom he calls, he interrupts them, he bullies42 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 [Pg 277] 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 contention43 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 autopsy44 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 irrelevant45 nature is considered perfectly admissible in any French criminal trial, and evidence as to character and motive46 very frequently [Pg 278] 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 prolific47 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 [Pg 279] 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 effusive48 to a journalist afterwards that another visit to the examining magistrate has become necessary, and has secured evidence of value.
The mass of work which the preliminary examination in a big criminal trial entails49 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 prosecution50. [Pg 280]
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 [Pg 281] didn’t remember exactly at what time she was engaged. Madame Caillaux’s chauffeur51 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. [Pg 282]
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 insistence52 on the need of and the right to professional secrecy53. As I have pointed6 out in another chapter, while professional secrecy is in some cases a necessity, it is often distinctly antagonistic54 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 invoked55 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 honourable56 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 [Pg 283] 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 [Pg 284] 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 decency57 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 browbeat58 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 [Pg 285] 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 alluded59 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. [Pg 286]
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 [Pg 287] 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 improper60 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 killing61 Monsieur Calmette. My object was to obtain from [Pg 288] 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.
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gaol
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| n.(jail)监狱；(不加冠词)监禁；vt.使…坐牢 | |
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mere
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| adj.纯粹的；仅仅，只不过 | |
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magistrate
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| n.地方行政官，地方法官，治安官 | |
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innocence
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| n.无罪；天真；无害 | |
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guilt
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| n.犯罪；内疚；过失，罪责 | |
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pointed
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| adj.尖的，直截了当的 | |
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entirely
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| ad.全部地，完整地；完全地，彻底地 | |
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judgment
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| n.审判；判断力，识别力，看法，意见 | |
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accomplices
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| 从犯，帮凶，同谋( accomplice的名词复数 ) | |
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unwilling
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| adj.不情愿的 | |
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perjury
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| n.伪证；伪证罪 | |
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impunity
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| n.(惩罚、损失、伤害等的)免除 | |
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acquit
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| vt.宣判无罪；(oneself)使(自己)表现出 | |
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conclusive
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| adj.最后的，结论的；确凿的，消除怀疑的 | |
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withholds
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| v.扣留( withhold的第三人称单数 )；拒绝给予；抑制（某事物）；制止 | |
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criticise
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| v.批评，评论；非难 | |
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supplementary
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| adj.补充的，附加的 | |
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impartial
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| adj.(in,to)公正的，无偏见的 | |
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unlimited
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| adj.无限的，不受控制的，无条件的 | |
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hampered
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| 妨碍，束缚，限制( hamper的过去式和过去分词 ) | |
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dictates
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| n.命令，规定，要求( dictate的名词复数 )v.大声讲或读( dictate的第三人称单数 )；口授；支配；摆布 | |
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confession
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| n.自白，供认，承认 | |
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entrap
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| v.以网或陷阱捕捉，使陷入圈套 | |
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perfectly
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| adv.完美地，无可非议地，彻底地 | |
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persistent
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| adj.坚持不懈的，执意的；持续的 | |
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inflicted
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| 把…强加给，使承受，遭受( inflict的过去式和过去分词 ) | |
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inflict
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| vt.(on)把…强加给，使遭受，使承担 | |
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coercion
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| n.强制，高压统治 | |
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acquitted
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| 宣判…无罪( acquit的过去式和过去分词 )； 使（自己）作出某种表现 | |
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paramount
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| a.最重要的，最高权力的 | |
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interfere
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| v.(in)干涉，干预；(with)妨碍，打扰 | |
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whatsoever
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| adv.（用于否定句中以加强语气）任何；pron.无论什么 | |
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leniency
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| n.宽大（不严厉） | |
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remains
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| n.剩余物，残留物；遗体，遗迹 | |
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discretion
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| n.谨慎；随意处理 | |
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fixed
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| adj.固定的，不变的，准备好的；(计算机)固定的 | |
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imprisonment
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| n.关押，监禁，坐牢 | |
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acquits
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| 宣判…无罪( acquit的第三人称单数 )； 使（自己）作出某种表现 | |
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detention
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| n.滞留，停留；拘留，扣留；(教育)留下 | |
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pending
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| prep.直到，等待…期间；adj.待定的；迫近的 | |
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conversational
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| adj.对话的，会话的 | |
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bullies
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| n.欺凌弱小者, 开球 vt.恐吓, 威胁, 欺负 | |
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contention
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| n.争论，争辩，论战；论点，主张 | |
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autopsy
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| n.尸体解剖；尸检 | |
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irrelevant
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| adj.不恰当的，无关系的，不相干的 | |
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motive
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| n.动机，目的；adv.发动的，运动的 | |
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prolific
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| adj.丰富的，大量的；多产的，富有创造力的 | |
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effusive
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| adj.热情洋溢的；感情(过多)流露的 | |
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entails
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| 使…成为必要( entail的第三人称单数 )； 需要； 限定继承； 使必需 | |
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prosecution
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| n.起诉，告发，检举，执行，经营 | |
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chauffeur
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| n.(受雇于私人或公司的)司机；v.为…开车 | |
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52
insistence
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| n.坚持；强调；坚决主张 | |
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53
secrecy
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| n.秘密，保密，隐蔽 | |
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antagonistic
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| adj.敌对的 | |
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invoked
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| v.援引( invoke的过去式和过去分词 )；行使（权利等）；祈求救助；恳求 | |
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honourable
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| adj.可敬的；荣誉的，光荣的 | |
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decency
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| n.体面，得体，合宜，正派，庄重 | |
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58
browbeat
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| v.欺侮；吓唬 | |
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59
alluded
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| 提及，暗指( allude的过去式和过去分词 ) | |
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60
improper
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| adj.不适当的，不合适的，不正确的，不合礼仪的 | |
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61
killing
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| n.巨额利润；突然赚大钱，发大财 | |
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