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 [Pg 268] 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 [Pg 269] 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 [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 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, [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 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 [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 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 [Pg 273] 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. [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 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. [Pg 275]

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 [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 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 [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 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&rs............