Page images
PDF
EPUB

tutions came to be studied and searched for models for practical legislation.

Soon after the meeting of the States-General it called itself the National Assembly; but it is now generally known by the more distinctive name of the Constituent Assembly. Readers of general history are apt to think that this body was made up altogether of remarkable orators after the order of Mirabeau—who stood at the head of the list-of noisy, turbulent politicians, and of political enthusiasts and fanatics. But that is a serious mistake; for among the varied and heterogeneous elements of the time and place were to be found a considerable body of learned and accomplished jurists, who at once went to work laboriously to reform the laws, which were in a most chaotic condition. The result does honor to their discrimination, their ability, and their patriotism. They reorganized the courts, prepared a criminal code, and introduced various reforms which still survive after many vicissitudes and revolutions.

Naturally the question of trial by jury came before the Assembly, because it recommends itself to thinking men who know anything of its history, and because it was conceded that the existing system of trying accused persons before judges in secret, where the accused was denied the benefit of counsel, had proved an ignominious failure. The champion of trial by jury was Adrien Duport, a lawyer of Paris, and a deputy of the noblesse, a young man remarkable for learning and for talents. After much discussion trial by jury was adopted by a large majority of votes. Then the question arose: Shall trial by jury extend to civil cases?

It was objected that many civil cases were too complex to be submitted to a jury; a difficulty that was obviated in England, where cases of that sort generally found their way into the court of chancery; an expedient not admissible in France, where the distinction between law

[ocr errors]

and equity was unknown. It was decided that trial by jury should be confined to criminal cases.

The next question was whether verdicts of juries should be required to be unanimous. There was a very obscure deputy there, known but to few; a small lean man, dressed in the costume of a dandy of the period, with his hair carefully dressed and powdered. His features were small and irregular, his forehead retreating, his eyes of a dull, tarnished brown, utterly void of expression, his complexion pallid. When he talked or spoke he had a habit of grimacing like a cat that has caught a whiff of Scotch snuff. His appearance was spectral and enigmatical, formal, precise, angular and pedantic; his voice was shrill, his gestures sudden and ungraceful. An observant stranger would probably have taken him for a village schoolmaster dressed up for a holiday. He had gotten up several times to speak; but after a few words he had been coughed down and silenced, for the Assembly was not able to take him seriously. He had seemingly not the slightest qualification for playing the part of a demagogue; while he had what would seem to be a positive disqualification for leadership in times of revolution ; for he was, as it afterwards appeared, timid and cowardly; yet in a few years he was to be the idol of the people, was to rule France with a power never possessed by any of her kings, and was to exhibit the lowest depth of degradation to which trial by jury has ever been subjected. His name was Maxmilien Robespierre, a lawyer and a deputy from the sleepy old provincial town of Arras. A sworn disciple of Rousseau, he was now a humanitarian of the most advanced type, deeply and sternly opposed to capital punishment; and was overflowing with benevolent sentiments in general.

It was now for the first time that the future leader of the Jacobins got a chance to address the Assembly for a few minutes. He said that it was revolting to think that a citizen might be subjected to punishment on a divided vote. Minorities were often right, and majorities wrong. The English system was the true one. He proposed, moreover, that the jury should be authorized to acquit though the evidence established the defendant's guilt; thus vesting the pardoning power in the jury. This was his first bid for an alliance with the criminal classes.

Much discussion followed, during which Duport made the very shrewd remark that the English law did not necessarily result in unanimous verdicts. Juries were forced to render verdicts by starvation, and by being deprived of water, of fire, and of lights. If, under this pressure, the minority went over to the majority there was a majority verdict; if the majority went over to the minority, then there was a minority verdict. After very full discussion it was resolved that a majority of the jury should suffice for rendering a verdict of conviction, and that where the jury were equally divided the accused should be acquitted.

The Assembly also adopted the English grand jury system, the members of which were chosen after a very complex manner; one of the judges of the criminal assize being deputed to act as foreman. During the consulate the grand jury was abolished; and since that time indictments are found by one of the chambers of the court having criminal jurisdiction, on written testimony taken before the examining court, or on special commission.

Petit jurors were to have a small property qualification. Bankrupts and persons on wages were disqualified. Every three months an officer called the procureur syndic was to select 200 competent jurors, subject to the approval of the departmental directory; and from these the trial jury was to be drawn by lot. It consisted of

a

twelve jurors and three adjuncts. The oath was similar to that used in the English courts. The adjuncts sat apart from the regular panel, but heard all of the evi. dence. The state and the defendant had twenty peremptory challenges each. Challenges for cause were not allowed. All trials were to be in public, and the accused was to have the benefit of counsel, who were required as a preliminary step to swear that they would employ nothing but the truth as a means of defense. In cases requiring special knowledge of any art or science the court might order a jury of experts.

Counsel for defense had the right to open and conclude the argument; and then the presiding judge summed up according to the English practice. Counsel on either side might submit any questions bearing on the case to the jury for answers to be returned with their general verdict; a privilege that was much abused. In a single case more than 6,000 questions were thus submitted.

The jury consulted in seclusion; but the verdict was made up at chambers in the presence of the presiding judge, the clerk of the court, and an executive officer called the royal commissioner. The foreman of the jury, that is, the first person on the list, entered alone, and found two ballot boxes, one black and one white, to receive the vote on the general question of guilt or innocence. A black ball in a black box meant yes, while a white ball in a white box meant no. Similar boxes were provided for answering the separate questions if the defendant was found guilty on a general ballot. Each question was read by the judge, copies of it in writing were laid on the boxes, and the answer was given in the same way as to the general question.

After casting his votes the foreman remained in the room; the other jurors came in one by one and cast their votes, and went out. Upon counting the votes a written certificate of the result was prepared and signed by the persons present, the court reassembled, and the foreman in open court announced the verdict.

In case all of the judges were convinced that the jury had fallen into some fatal error, the three adjunct jurors were added to the panel; the new jury, now composed of fifteen jurors, retired to consider of their verdict; and then it required the concurrence of twelve to warrant a conviction.

On the return of a verdict against the accused the judges consulted as to the penalty in their chambers; but they were required to express their opinions in open court, beginning with the youngest. The sentence was suspended for three days, during which the crown might appeal. In case of reversal the cause was sent back for trial before a different court from that in which the first trial was had.

By a later law, passed in 1795, it was provided that the jury should be kept in seclusion for twenty-four hours after their retirement, unless in the meantime they agreed on a unanimous verdict. If they failed to agree within that time a majority verdict might be returned; but this law after a few years was repealed.

The practice of submitting special questions to the jury to be answered by each juror separately did not work well in practice. In search of simplicity and precision, the law-making power had by an excess of precaution developed a wonderfully complex system. Jurors who could pass intelligently on the question of the guilt or innocence of the defendant could not always analyze the steps by which their conclusion was reached; hence their answers were often contradictory. Thus a man was indicted for forgery. The French law, like our own, requires as a necessary element of the crime that the act shall have been committed with the intent to injure or defraud some third person. The evidence

« PreviousContinue »