Travels in France during the years 1814-15 / Comprising a residence at Paris, during the stay of the allied armies, and at Aix, at the period of the landing of Bonaparte, in two volumes.

by Sir Archibald Alison; Patrick Fraser Tytler

The improvements introduced by the late Emperor, have therefore, considered under this point of view, been of no common benefit to the kingdom, as they have given, to some measure, certainty, principle and consistency, the essential attributes of good laws, to what was formerly a mass of confusion.

At Aix, where we resided, the head court is held for four provinces, and there is a college for the study of law and divinity. Most of the acquaintances I there formed were gentlemen belonging to the law; many of them had been liberally educated, were men of talents, and some of them possessed acquirements which would have done honour to any bar. The opinion of all these was strongly in favour of the new codes; and they go so far as to say, that when the matter comes under consideration, there are very few things which the present government will change, and very few judges who will lose their situations.

They allowed, however, that latterly, Napoleon had forgotten his usual moderation, and, incensed against the importation of foreign merchandise, had instituted a court, and formed a new and most rigorous code for the trial of all cases of smuggling and contraband trade. But fortunately for the people, this court had scarcely commenced its severe inflictions, when the deposition of Napoleon, and the subsequent peace with England, rendered its continuance unnecessary. The punishments awarded by this court, were, in their rigour, infinitely more terrible than that of any other in Europe. There was not the slightest proportionment of the punishment to the offence. For the sale of the smallest proportion of contraband goods, the unfortunate culprit was condemned immediately to eight or ten years labour amongst the galley-slaves. For the weightier offences, the importation of larger quantities of forbidden goods, perpetual labour, and even death, were not unfrequently pronounced.

I was informed, that when Napoleon commanded the Senate to pass the decree for the institution of this court, one of the members asked him, if he believed he would find Frenchmen capable of executing his orders, and enforcing such laws? His answer was, "my salaries will soon find judges;" and the consequence of this determination, upon his part, was, that while he paid the judges of the other tribunals at Aix by a miserable annuity of one hundred and fifty pounds, and two hundred pounds, the judges of the court of contraband were ordered to receive seven hundred pounds and eight hundred pounds. Napoleon was perfectly right in his opinion; that such was the want of honour and principle, and such the excessive poverty of France, that these salaries would soon find judges. I have heard from unquestionable authority, that, for the last vacancy which was filled up in that court, there were ten candidates.

The court-room, in which this law tribunal was held, is now occupied by a society of musical amateurs, and a concert was given there, during our stay at Aix, once every week. One of the lawyers, in talking of this court, informed me, that in that very room, where the judges of the court of contraband sat, he had played in comedy and tragedy, pleaded causes, had taken his part in concerts, and danced at balls, under its several revolutions, its different political phases of a theatre, a court of justice, a concert and a ball-room. Exactly similar to this was the fate of the churches, palaces, and the houses of individuals under Napoleon, which were alternately barracks, hospitals, stables, courts of justice, caffés, restaurats, &c.

The penal code of the late Emperor breathes throughout a spirit of humanity, which must astonish every one acquainted with his character. The punishment of death, which, according to Blackstone, may be inflicted by the English law in one hundred and sixty different offences, is now in France confined to the very highest crimes only; the number of which does not exceed twelve. A minute attention has been paid to the different degrees of guilt in the commission of the same crime; and according to these, the punishments are as accurately proportioned as the cases will permit. One species of capital punishment has been ordained instead of that multitude of cruel and barbarous deaths which were marshalled in terrible array along the columns of the former code. This punishment is decapitation. The only exception to this is in the case of parricide, in which, previous to decapitation, the right hand is cut off; and in the punishment for high-treason, in which the prisoner is made to walk barefoot, and with a crape veil over his head to the scaffold, where he is beheaded. Torture was abolished by Louis XVI., and has never afterwards been resumed.

After Napoleon had it in view to form a new code for France, he was at great pains to collect together the most upright and honourable, as well as the most able amongst the French lawyers; the principal members of whom were Tronchet, one of the counsel who spoke boldly and openly in defence of the unfortunate Louis XVI., Portalis, Malville, and Bigot de Preameneau. Under such superintendance, the work was finished in a short time.

The trial by jury has been for some time established in France; but the Emperor, dreading that so admirable an institution, if managed with an impartial hand might, in too serious a manner, impose restraint upon his individual despotism, took particular care to subject those crimes, which he dreaded might arise out of the feelings of the public, to the cognisance of special tribunals. All trials originating out of the conscription, are placed under the care of a special court, composed of a certain number of the criminal judges and military officers. In France, there is no grand jury; but its place is supplied by that which they have denominated the Juré d'Accusation. This is a court composed of a few members amongst the civil judges, assisted by the Procureur-General or Attorney-General. Their juries for the trial of criminals are selected from much higher classes in society than with us in England; a circumstance the effect of absolute necessity, owing to the extreme ignorance of the middling ranks and the lower classes. In the conducting of criminal trials, the manner of procedure is in a great measure different from our English form. A criminal, when first apprehended, is carried, before the magistrate of the town, generally the Mayor. He there undergoes repeated examinations; all the witnesses, are summoned and examined, in a manner similar to the precognitions taken before the Sheriff of Scotland, and the whole process is nearly as tedious as upon the trial. All the papers and declarations are then sent with the accused, to the Juré d'Accusation, who also thoroughly examine the prisoner and the witnesses; if grounds are found for the trial, the papers are immediately laid before the "Cour d'Assize." Before this court, the prisoner is again specially examined by its president. His former declarations are compared and confronted with his present answers, and the strongest evidence against him, is often in this manner extracted from his own story. It might certainly be imagined, that with all these precautions, it would be scarcely possible that the guilty should escape. The very contrary is the case, and I have been informed by some of the ablest lawyers in the courts here, that out of ten prisoners, really guilty, six haves good chance of getting clear off. They ascribe this to two principal causes, 1st, That the proceedings become so extremely tedious and intricate, that it is impossible for the jury to keep them all in their recollection, and that, forgetting the general tenor of the evidence, they suffer the last impressions, those made by the counsel for the prisoner, to bias their judgment, and to regulate their verdict. In the 2d place, It is customary for the president of the court to enter into a long examination and cross-examination of the prisoner, (assisted and prompted in his questions by the rest of the judges), in a severe and peremptory style, and what is too often the case with the judge, in his anxiety to condemn, to identify himself with the public prosecutor. He appears, in the eye of the jury, more in the light of an interested individual, anxious to drag the offender in the most summary manner to the punishment of the law, than as an upright and unbiassed judge, whose duty it is coolly to consider the whole case, to weigh the evidence of the respective witnesses, to consider, with benevolent attention, the defence of the prisoner, and, after all this, to pronounce, with authoritative impartiality, the sentence of the law. This naturally prejudices the jury in favour of the prisoner; and few, even in our own country, who may have been witness to the common routine of our criminal procedure, will not themselves have felt that immediate and irresistible impression, which is made upon the mind of the spectator, when he sees on one side the solemn array of the court, the judges, the officers, and all the terrible show of justice; and on the other, the trembling, solitary, unbefriended criminal, who awaits in silence the sentence of the law. One difference, however, between the effects produced by the respective criminal codes of France and England, ought to be here remarked. In England, owing to the principles and practice of our criminal law, it too frequently happens, that the most open and notorious criminals escape, whilst the less able, but more innocent offenders, those who might be easily reclaimed, who have gone little way in the road of crime, but who are less able to do themselves justice at their trial, fall an easy sacrifice to the rigour of our criminal code. In France, owing to the custom of the cross-examinations of the prisoner, by the president and the different judges, this can never happen. The notoriety of his character prevents the common feelings of compassion in the breasts of the jury; the severity of the interrogations renders it impossible that any fictitious story, when confronted with his former examinations before the magistrate and the Juré d'Accusation, can long hold together, and he is, in this manner, generally convicted by the evidence extracted from his own mouth upon the trial.

The present style of French pleading is exactly what we might be led to expect from the peculiar state of manners, and the particular character of that singular people. It is infinitely further removed from dry legal ratiocination, and much more allied to real eloquence, than any thing we met with in England. Any one who is acquainted with the natural inborn fluency in conversation of every individual whom he meets in France, may be able to form some idea of the astonishing command of words in a set of men who are bred to public speaking. One bad effect arises from this, which is, that if the counsel is not a man of ability, this amazing volubility, which is found equally in all, serves more to weaken than to convince; for the little sense there may be, is spread over so wide a surface, or is diluted with such a dose of verbiage, that the whole becomes tasteless and insipid to the last degree. But this fluency, on the other hand, in the hands of a man of talents and genius, is a most powerful weapon. It hurries you along with a velocity which, from its very rapidity, is delightful; and where it cannot convince, it amuses, fascinates, and overpowers you.

One thing struck me as remarkable in the French form of trial, which perhaps might be with benefit adopted by England. All exceptions and challenges to jurymen are made in private, and not, as with us, in open court. This is a more delicate method, and no man's character can suffer (as is sometimes the case in England) by being rejected. The trial by jury is very far from being popular in France; indeed, upon an average I have heard more voices against it than advocates for its continuance. The great cause for this dissatisfaction is that which leads to various other calamitous consequences in that kingdom,—the want of public spirit in France.—The French have literally no idea of any duties which they must voluntarily, without the prospect of reward, undertake for their country. It never enters their heads that a man may be responsible for the neglect of those public duties, for the performance of which he receives no regular salary.—There is a constant connection in their minds, between business and payment, between money and obligation: and as for that noble and patriotic spirit which will undergo any labour from a disinterested sense of public duty, it is long since any such feeling has existed, and it will probably, if things continue in their present state, be long before it will exist again in France.