Juries and the Transformation of Criminal Justice in France in the Nineteenth and Twentieth Centuries

James M. Donovan

• Publisher: The University of North Carolina Press
• Year: 2010
• ISBN:
  9780807895771
• Topic: Law
• Subtopic: Legal History
• Index: Law

James Donovan takes a comprehensive approach to the history of the jury in modern France by investigating the legal, political, sociocultural, and intellectual aspects of jury trial from the Revolution through the twentieth century. He demonstrates that these juries, through their decisions, helped shape reform of the nation's criminal justice system. From their introduction in 1791 as an expression of the sovereignty of the people through the early 1900s, argues Donovan, juries often acted against the wishes of the political and judicial authorities, despite repeated governmental attempts to manipulate their composition. High acquittal rates for both political and nonpolitical crimes were in part due to juror resistance to the harsh and rigid punishments imposed by the Napoleonic Penal Code, Donovan explains. In response, legislators gradually enacted laws to lower penalties for certain crimes and to give jurors legal means to offer nuanced verdicts and to ameliorate punishments. Faced with persistently high acquittal rates, however, governments eventually took powers away from juries by withdrawing many cases from their purview and ultimately destroying the panels' independence in 1941.

Chapter One: The “Palladium of Liberty”

Juries, the Revolution, and Napoleon, 1791–1814

The eras of the French Revolution and Napoleon together composed the foundational period of trial by jury in France. During this time, the basic rules and machinery governing the jury were put into place for the next century and a half. The institution was introduced in a wave of Enlightenment-inspired enthusiasm and optimism about the capacity of citizen-judges (who expressed the sovereignty of the people) to judge on the basis of their common sense and on a sure knowledge of the “facts.” This was the best guarantee of justice. Yet one of the most striking characteristics of the Revolutionary-Napoleonic era in respect to the jury was how this initial optimism about the institution soon turned into disillusionment among government officials and magistrates. The political turmoil of the Revolution negatively affected the jury system, and magistrates began to criticize jurors for bias and leniency. Napoleon then placed stricter limits on the jury system. But it still retained great powers, powers that it would use in unintended ways almost from the start.

The Constituent Assembly’s introduction of the jury in 1791 marked a sharp break with French legal tradition. The jury was at the core of a fundamental overhaul of the nation’s criminal justice system. In the preceding centuries, the inquisitorial or “romano-canonical” criminal procedure, in which accused persons and witnesses were examined in secret by professional judges only, had prevailed in France.

It was a system that had evolved as royal justice gradually supplanted feudal justice.¹ Before the thirteenth century, the use of laymen in courts was widespread in France, just as it had been in England. Assemblies of lay (or nonprofessional) judges drawn from the community meted out justice during the Carolingian era. With the disintegration of central authority in the ninth and tenth centuries, the courts became feudalized. But this did not mean the exclusion of laymen from judicial decision-making. In the feudal courts, the assembled vassals rendered judgments that required at most the concurrence of the lords.²

But lay participation in justice was gradually eliminated in France following the Fourth Lateran Council’s condemnation of trial by ordeal and by battle in 1215. More rational means of proof had to be found. The French monarchy had to make a fundamental choice. Two alternative fact-finding methods were known in France. One was the group inquest, which had been developed in the Frankish empire and which was still widely used in the Norman courts. Royal or ducal authorities compelled selected groups of local people to answer under oath questions concerning fiscal and other matters. In England, forms of group testimony on oath, including lay verdicts on oath in the folk assemblies, had been known in Anglo-Saxon times. But it was the Norman rulers who introduced into England the royal use of inquests on a regularized basis.³ The royal inquest would eventually be transformed into the common-law jury. The other fact-finding method was the Roman-canon law of evidence, first used in the church courts, in which individual witnesses were interrogated by professional judges who then made the findings of fact. When Louis IX issued an ordinance in 1258 abolishing the judicial duel, he decided to adopt this law of proof for the royal courts. According to John P. Dawson, the French monarchy chose the Roman-canon procedure in large part because royal officials could not compel groups of local inhabitants to answer questions under oath in the vast areas of the country still controlled in the thirteenth century by great territorial lords.⁴

Adoption of the Roman-canon law of evidence was in fact the response in most of continental Europe to the Fourth Lateran Council’s decision of 1215. The outcome of trial by ordeal had been regarded as the judgment of God. Therefore, in order to make acceptable to the public the judgment by mere mortal judges in place of an infallible God, proof had to be complete and had to be obtained only under certain strict conditions in cases of serious crimes, that is, those punishable by death or severe physical maiming. The Roman-canon system of proof, based on “objective” criteria, was developed to provide the needed certainty. In capital cases, judges could not convict on circumstantial evidence. Conviction required two eyewitnesses to the crime or, failing this, the confession of the accused. Torture of the defendant was used in certain cases where there was neither the testimony of two eyewitnesses nor a voluntary confession from the accused. These were cases in which there was “half proof” against the defendant, meaning either one eyewitness or certain combinations of circumstantial evidence. For lesser crimes (delicta levia), judges could convict merely on the basis of the “subjective persuasion of the trier,” so that the Roman-canon law of evidence and judicial torture were not used in these cases.⁵

As the Roman-canon procedure evolved, French magistrates developed an elaborate and rigid system of legal proofs. The state initiated prosecutions, and the greatest part of the procedure was devoted to an extensive pretrial investigation (the information) conducted by an examining magistrate (the lieutenant criminel). He interrogated the witnesses and the accused in secret, without counsel for the defense, and evidence was based largely on written depositions. The accused was then tried by a panel of judges who interrogated him or her, again in the absence of counsel for the defense.⁶

There was no place for laymen in this system. As the power of the monarchy grew, the Roman-canon procedure was adopted throughout France. By about 1500, lay judges had almost disappeared. The adoption of the Roman-canon law of evidence did the same throughout most of continental Europe.⁷ By the onset of modern times, “the Continent forgot all about the jury and enlightened opinion thought it an aberration to put the all-important question of guilt into the hands of an assembly of unlearned country-folk.”⁸

But in England, the jury not only survived but was strengthened. Where in most of the European Continent the response to the church’s condemnation of trial by ordeal was the adoption of the Roman-canon system of proof and trial by professional judges, in England it was the extension of trial by jury to criminal cases and conviction on the basis of circumstantial evidence alone.⁹ Trial by jury was rooted in the “accusatory” system of justice developed in England. This evolved from customary Germanic precedents and was litigious in nature, with plaintiffs in criminal cases having to prove the guilt of defendants in a fashion not dissimilar to civil suits.¹⁰ Trials were public, with laymen deciding on the question of fact based on oral testimony in court. They did not reach a verdict automatically on the basis of a certain combination of proofs but could interpret all admissible evidence in light of their own conscience or common sense. Nor did they have to explain their verdict. All of this meant that England’s jury system was radically opposed to the Roman-canon or “inquisitorial” procedure.

The development of the jury system in England and its eventual adoption in France should be seen within a broad historical perspective concerning the participation of laymen in justice. “Juries” were used in classical Athens, although what they did was a far cry from modern lay judging. All citizens were eligible to serve on enormous panels of hundreds of men. Majority vote decided both the verdict and the punishment of the accused, without deliberating and following speeches by the defendant and his or her accusers (there were no district attorneys or professional lawyers).¹¹ The Romans of the late Republic also used juries in criminal state trials. A body of jurors was drawn from annual lists prepared by a praetor and taken from one class—sometimes equestrian and at other times senatorial. Although a magistrate presided over the trial, the jurors by majority vote determined the guilt or innocence of an accused person.

Assemblies of laymen were also used in the courts of the early medieval Germanic peoples, including, as already noted, the Franks. By Charlemagne’s time, scabini (persons known for their knowledge of the law) were appointed in each district by the central government. Panels of these permanent appointees met under the presidency of a count and gave judgment in the less important cases, though the general assemblies still met to decide more important ones. However, the juries or assemblies of lay judges among the ancient Athenians, Romans, and Germans all rendered judgment on both facts and law, whereas modern juries are normally called in by a court to determine only the former.¹²

The predecessor of the modern jury (which has been defined by Harry Kalven Jr. and Hans Zeisel as “a group of ad hoc assembled lay judges who, without participation of the learned judges, decide at least the question of guilt”)¹³ originated in England, where it was occasionally used by royal officials by the early twelfth century. The procedure was regularized by Henry II late in the century.¹⁴ The jury grew out of the type of royal group inquest introduced by the Norman kings. Trial juries were first used in civil cases involving property disputes. A man who believed he had been unlawfully deprived of his land by another could obtain a writ commanding the sheriff to summon twelve freemen of the neighborhood assumed to know the most about the facts of the case in dispute, who then appeared in court and testified under oath as to rights of the parties. The judge ruled in accordance with their answer. Thus, the earliest English jurors were really sworn witnesses rather than men who decided a case based on testimony they heard at trial.¹⁵ In criminal matters, juries were first used only at the presentment stage. In 1166, Henry II ordained, by the Assize of Clarendon, that twelve lawful men of each hundred (district) and four of each vill (township) should report under oath to the royal judge or sheriff any persons reputed to have committed certain serious crimes in their hundred or vill. Thus originated the grand jury, though for some time thereafter, criminal trial continued to be by ordeal.¹⁶

But of course the ordeal was condemned by the church in 1215, and trial by jury soon suggested itself as a ready substitute. By about 1220, the first criminal trial juries appeared in England, delivering verdicts of guilt or innocence before royal judges on circuit.¹⁷ According to Dawson, the government came to rely on juries because the kings of England, unlike the kings of France, had the power throughout their realm to compel citizens to serve on the panels, the courts had never been feudalized in England, and the use of juries economized on the time of professional judges.¹⁸ By the end of the Middle Ages, trial by jury in England had come to resemble what it is 27 today. From 1220, jurors (“twelve good men and true”) were not just sworn witnesses but were something like their later counterparts. Criminal trial jurors of the thirteenth century were self-informing, that is, were presumed to know the facts of the case before trial because they came from the locality where the alleged crime had been committed and in some instances had even served on the grand jury that presented the case. But jurors also gave their verdict based on their viewing of the confrontation between the defendant and the judge.¹⁹ During the later Middle Ages, jurors gradually lost their self-informing role and became “passive triers” who, after hearing the evidence (including the testimony of witnesses) in an open trial, deliberated together and reached a verdict.²⁰

For centuries, the use of the jury in Europe was restricted to England. Then in the eighteenth century, the Enlightenment philosophes called for its adoption on the Continent. This was connected to their condemnation of the Roman-canon procedure as authoritarian and secret. They especially criticized its use of torture.²¹ In reality, according to John H. Langbein, judicial torture (formally abolished in France in 1780) was rarely resorted to by the eighteenth century because of the “revolution in the law of proof” that had occurred since the sixteenth century. After the adoption of the Roman-canon law of evidence, judges could still convict even in serious cases on the basis of partial proof so long as a noncapital penalty was imposed. In the course of the sixteenth and seventeenth centuries, capital punishment for serious crimes was increasingly replaced with various noncapital sanctions (in France, it...

Table of contents

• Cover Page
• Juries and the Transformation of Criminal Justice in France in the Nineteenth & Twentieth Centuries
• Copyright Page
• Contents
• Tables
• Acknowledgments
• Introduction
• Chapter One: The “Palladium of Liberty”
• Chapter Two: The “Jurys Censitaires,” 1815–1848
• Chapter Three: The Great Turning Point
• Chapter Four: The Juries of the Republic, 1870–1914
• Chapter Five: The Campaign Against the Juries, Circa 1890–1914
• Chapter Six: The Triumph of Experts Over Jurors
• Conclusion
• Notes
• Bibliography
• Index