In the Theater of Criminal Justice: The Palais de Justice in Second Empire Paris 9780691032146, 9781400828715, 9780691146300
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English Pages [184] Year 1993
Frontmatter
List of Illustrations (page xi)
Acknowledgments (page xv)
Introduction (page xvii)
THE TRIAL (page 3)
The Judicial System (page 5)
Monumental Access (page 15)
Troppman's Public (page 21)
The Trial Personae: Choreography and Character (page 31)
The Debates (page 44)
THE HISTORY OF THE RIGHT TO PUNISH (page 63)
THE INAUGURATION OF THE CRIMINAL WING AND ITS CRITICAL RECEPTION (page 75)
Notes (page 109)
Index (page 155)
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THE PRINCETON SERIES IN NINETEENTH-CENTURY ART, CULTURE, AND SOCIETY
BLL PEGE
In the Theater of Criminal Justice
BAN. PAGE
IN THE THEATER OF CRIMINAL JUSTICE The Palms de Justice in Second Empire Paris
by Katherine Fischer Taylor
PRINCETON UNIVERSITY PRESS
Copyright © 1993 by Princeton University Press Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540 In the United Kingdom: Princeton University Press, Chichester, West Sussex All Rights Reserved Library of Congress Cataloging-in-Publication Data Taylor, Katherine Fischer. In the theater of criminal justice : the Palais de justice in Second Empire Paris / Katherine Fischer ‘Taylor.
p. cm. — (Princeton series in nineteenth-century art, culture, and society) Includes bibliographical references and index. ISBN 0-691-03214-9 1. Palais de justice (Paris, France) 2. Signs and symbols in
architecture. 3. Allegories. 4. Architecture and society—France— History—19th century. 5. Justice and politics—France—History—19th century. 6. Paris (France)—Buuldings, structures,
etc. I. Title. II. Series. NA4475.F82P378 1993 725'.15'0944361—dc20 92-34680 This book has been composed in Galliard Princeton University Press books are printed on acid-free paper and meet the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources Printed in the United States of America Designed by Laury A. Egan
10987654321 10987654321 (Pbk.)
CONTENTS
LIST OF ILLUSTRATIONS XI ACKNOWLEDGMENTS XV INTRODUCTION XVIl
THE TRIAL 3 The Judicial System 5 Monumental Access 15 Troppmann’s Public —=—2:1
The Trial Personae: Choreography and Character 31
The Debates 44
THE HISTORY OF THE RIGHT TO PUNISH 63 THE INAUGURATION OF THE CRIMINAL WING
AND ITS CRITICAL RECEPTION 75 NOTES 109 INDEX 155
Vil
BUNK Me
For Woodman
BLANK Dir
LIST OF ILLUSTRATIONS
1. Grand’Chambre, or chief courtroom of 8. Search for the bodies of Troppmann’s the Parlement of Paris, during the lit de jus- victims, field at Pantin. From: L7Iustration
tice of Louis XVI on November 19, 1787, 04 (1869), 212. Courtesy: University of engraving by C. Niquet after a drawing by Chicago Library. Meunier and Girardet. Collection of the 9. Examining magistrate Guillot interro-
Musée Carnavalet, Paris. gating the suspect Pranzini in his office at 2. Grand’Chambre during the trial of the Paris Palais. From: Le Monde dlustré Fouquier-Tinville by the temporarily-in- (April 9, 1887), 237. Collection of the Bibstalled Revolutionary Tribunal, 12 floréal an liotheque historique de la ville de Paris.
III (1795). Bibliothéque nationale, Cabinet 10. Honoré Daumier, “Une cause cédes Estampes. Photo: Bibliothéque natio- lébre,” pen, crayon and watercolor, undated
nale, Paris. [1858/1862]; unidentified private collec3. Allegory of Law, by Gois, 1780s, stair- tion, Paris. From: K. E. Maison, Honoré case from the main east vestibule (galerie Daumuter: Catalogue raisonné (London: Merciére) to the Cour d’appel, Paris. Thames & Hudson, 1968), 2: #680. Cour4, Allegory of Justice, by Jaley, 1868, bas- tesy: University of Chicago Library. relief in the west facade of the Palais de Jus- 11. Grand’Chambre as the civil chamber
tice, Paris. of the Cour de cassation, Paris, Prosecutor 5. East facade of the Palais, showing the Delangle giving his conclusions in the Leentrance courtyard (cour du Mai) by Des- surques case. From: Le Monde illustré (Demaisons and Moreau-Desproux, 1781ff., cember 19, 1868), 389. Photo: University flanked by the early 17th-century waiting of Illinois at Urbana-Champaign Library. hall to the right (Salle des pas perdus) and 12. Trial at the Central Criminal Courts the 13th-century Sainte-Chapelle to the left. (Old Bailey), London, early 1840s. From:
Lithograph by Benoist, c. 1861, Biblio- [Thomas Hosmer Shepherd, illustrator], théque nationale, Cabinet des Estampes. London Interiors, vol. 1 (London: Joseph Photo: Bibliothéque nationale, Paris. Mead, n.d. [1841—44]). Courtesy: Univer6. West facade of the Palais, Duc, Dom- sity of Chicago Library. mey and Daumet. Photograph by Marville, 13. Louis Duc and Honoré Daumet, probetween June 1875, when the new staircase ject for a new place du Palais de Justice, and entrance opened to the public, and the 1869, bird’s eye view, looking east, engravphotographer’s death in 1878. Collection ing by A. Guillaumot the elder. From: Narof the Bibliothéque historique de la ville de joux, Paris, vol. 1 (1881). Collection of the
Paris. Bibliothéque historique de la ville de Paris. 7. Cadavers of Troppmann’s victims, as 14. Duc and Daumet, project for a new
displayed through the public vitrine at the place du Palais de Justice, general plan of the Paris Morgue. From: Le Crime de Pantin Palais and west end of the Cité, dated Au(Paris, n.d. [c. 1870]), frontispiece. Collec- gust 4, 1869. Collection of the Cour d’appel
tion of the Bibliothéque historique de la de Paris.
ville de Paris. 15. Aerial photograph of the Palais and Xi
List of Illustrations
the ile de la Cité, looking east. Photo: display at the Musée de la Préfecture de po© Institut géographique national, Saint- lice, Paris. Photo: © Jean-Loup Charmet,
Mandé, 90.2046. Paris.
16. Detail of the Palais de Justice and the 25. Victor Hugo, “Judex,” caricature of ile de la Cité from the plan of Paris for the a judge, drawing. Bibliothéque nationale, Prévét des marchands Turgot, by Bretez, Manuscrits. Photo: Bibliothéque nationale, 1739, engraving, Bibliothéque nationale, Paris. Cabinet des Estampes. Photo: Bibliothéque 26. Victor Hugo, “L’Envieux (Barkilphe-
nationale, Paris. dro),” caricature of a man guilty of envy, 17. Plan of the criminal courts wing. drawing. Bibliothéque nationale, Manu-
From: Narjoux, Paris, vol. 1 (1881). Burn- scrits. Photo: Bibliothéque nationale, Paris. ham and Ryerson Libraries, Art Institute of 27. “Les tourments de J. B. Troppmann,”
Chicago. Photo: Courtesy of the Art Insti- print produced by Gangel and Didion,
tute of Chicago. Metz, 1870. Bibliothéque nationale, Cabi18. Longitudinal (north-south) section net des Estampes. Photo: Bibliothéque nathrough the west vestibule of the Palais, ap- tionale. proximating the executed state, engraving. 28. Troppmann during testimony on the From: Revue générale de Varchitecture 25 first day of his trial) December 28, 1869,
(1867). Paris, print. Musée Carnavalet, Cabinet des
19.\Transverse (north-south) section arts graphiques. Photo: © 1992 ARS, N.Y./ through the criminal courtrooms, looking SPADEM, Paris. east, print. Collection of the Cour d’appel 29. Defendant Solleilland in the dock,
de Patis, Paris. Le Monde ilustré (July 27, 1907), 57. 20. West vestibule during the Pranzini Collection of the Bibliothéque historique de trial of 1887, print based on sketch by Marc la ville de Paris. Auréle. Musée Carnavalet, Cabinet des arts 30. ‘Testimony in the trial of Trochu, Vitu graphiques. Photo: © 1992 ARS, N.Y./ and Villemessant, held in the southern pen-
SPADEM, Paris. dant to the criminal courtroom, Paris (after
21. Transverse (east-west) section through the Commune fire had destroyed its decorathe criminal courts wing. From: Narjoux, tion). Le Monde ialustré (April 6, 1872), 212. Paris, vol. 1 (1881). Collection of the Bibli- Photo: University of Illinois at Urbana-
othéque historique de la ville de Paris. Champaign Library. 22. View of the internal courtyard of the 31. Vignettes of witnesses testifying in criminal courts wing, looking north, show- the trial of Senator Humbert against Le ing the individualized exercise yards of the Matin, Paris; jurors bench at upper left. prison, with the witnesses chambers carried From: Le Monde illustré (July 4, 1908), 4. above them on colonnettes, engraving. Collection of the Bibliothéque historique de From: Narjoux, Paris, vol. 1 (1881). Collec- la ville de Paris.
tion of the Bibliothéque historique de la 32. Confrontation, as seen from the jury
ville de Paris. box, in the Panama trial, held in the new 23. Jean-Baptiste Troppmann, portrait Premiére Chambre of the Cour d’appel, photograph. Musée Carnavalet, Cabinet des Paris. From: Le Monde tllustré (March 18, arts graphiques; also in the Archives of the 1893), 161. Collection of the Bibliothéque Préfecture de police, Paris. Photo: © Jean- historique de la ville de Paris.
Loup Charmet, Paris. 33. Vignettes showing the prosecutor 24. Cast of J.-B. Troppmann’s hand, on (upper left) versus the defense lawyer (lower Xl
List of Illustrations
left) giving their speeches in the trial of Ey- lice correctionnelle, Palais de Justice, Paris, raud and Bompard, Paris. From: Le Monde Duc and Dommey, completed c. 1852. illustré (December 27, 1890), 538. Collec- 43. Duc and Dommey, project for the west
tion of the Bibliothéque historique de la elevation of the Palais, drawing, c. 1847.
ville de Paris. Collection of the Cour d’appel de Paris.
34. Reading of the verdict, Eyraud and 44. Duc and Dommey, intermediate proBompard trial, Paris. From: Le Monde ilus- ject for the west elevation of the Palais, tré (December 27, 1890), 537. Collection of drawings, October 21, 1852. Collection of the Bibliothéque historique de la ville de the Cour d’appel de Paris.
Paris. 45. Temple of Denderah, Egypt, eleva35. Madame Clovis Hugues shooting her tion, print by A. Titeux, in H. Horeau, Paadversary in the west vestibule, Paris Palais. norama WEgypte (Paris, 1841). Reproduced From: Le Monde illustré (December 6, 1884), from: Revue générale de Varchitecture 7 353. Collection of the Bibliothéque histori- (1847-48).
que de la ville de Paris. 46. J.-I. Hittorff, reconstruction of an an36. Vignettes from the trial of Madame cient basilica, drawing, 1831. Nachlass HitClovis Hugues, Paris. From: Le Monde ilus- torff, Wallraf-Richartz Museum, Cologne. tvé (January 17, 1885), 36. Collection of Photo: Rheinisches Bildarchiv, Cologne.
the Bibliothéque historique de la ville de 47. Photograph of the northernmost of
Paris. the two large east-west corridors (the galerie
37. “Jugement et condamnation de des prisonniers), looking west. Photo: James Troppmann,” print produced by the Ima- Austin, Cambridge, G.B. gerie Pellerin, Epinal, 1870. Bibliotheque 48. Photograph of the west vestibule, nationale, Cabinet des Estampes. Photo: looking south. Photo: James Austin, Cam-
Bibliothéque nationale, Paris. bridge, G.B.
38. Photograph of the west facade at the 49. Photograph of a capital/console in time of the inauguration in October 1868, the west vestibule. Photo: James Austin, photographer unknown. Collection of the Cambridge, G.B.
Cour d’appel de Paris. 50. Duc, sketches for the bases of the col-
39. Comparative chart of the orders from onnettes in the criminal courtroom stairs. a 19th-century French edition of Vignola’s Collection of the Cour d’appel de Paris. Regola delli cinque ordimi darchitettura [orig. 51. Photograph of a colonnette base in
1562]. From: P. Eudes, Vignole (Paris, the criminal courtroom stairs. 1836), plate I. Photo: Bibliothéque natio- 52. Lampué, photograph of the entrance
nale, Paris. to the stairs leading to the criminal court40. Engraving showing the six relief fig- room, showing Perraud’s seated Justice in ures in the west facade (including fig. 4), the aedicule above and Duret’s statue of Law based on photographs by Richebourg. in the niche below (the placement of Duret’s From: Paris nouveau illustré 15 (n.d.). Col- Law was modified in the 1960s). Bibliolection of the Musée Carnavalet, Cabinet des théque nationale, Cabinet des Estampes.
arts graphiques. Photo: Bibliothéque nationale. 41. Detail of the capital and entablature, 53. Lobby of the criminal courtroom, at west facade. the top of the stairs from the west vestibule. 42. Detail of the male- and female-headed 54. Criminal courtroom in its current
capitals, second floor level of the facade of the state, looking east towards the judges’ bench.
wing originally built for the Tribunal de Po- 55. Criminal courtroom in its current Xi11
List of Illustrations
state, looking west towards the public en- vine poursuivant le crime, 1804—08, painted
trance. for the first criminal courtroom, now at the
56. Criminal courtroom at the time of its Musée du Louvre, Paris. Photo: Musées inauguration, print. Musée Carnavalet, Ca- nationaux, Paris. binet des arts graphiques. Photo: © 1992 99. Bonnat, central ceiling painting, crim-
ARS, N.Y./SPADEM, Paris. inal courtroom, orig. 1866—68, destroyed 97. Previous criminal courtroom, print, 1871, recommissioned 1872. c. 1846. Bibliothéque nationale, Cabinet 60. Bonnat, Christ en croix, painted for des Estampes. Photo: Bibliothéque natio- the criminal courtroom, 1872—74, now at
nale. the Musée du Petit Palais, Paris. Photo: © 98. Pru@hon, La Justice et la vengeance di- 1992 ARS, N.Y./SPADEM, Paris.
XIV
ACKNOWLEDGMENTS
N { y which FIRSTwelcomed acknowledgment to theasmonde of the Palaisstudying de Justice Paris, me in theis1980s a graduate student the of modernization of that historic building, and continues to accommodate my curiosity as it has expanded further into social history. Those who have helped are too numerous and
various to name here, but I would like to single out the Secretariat of the Court of Appeals, currently headed by Alain Girardet. The types of questions asked in this book owe a great deal to my colleagues at the University of Chicago. For the time to ponder them, I am most grateful to the J. Paul Getty Foundation for a 1990-1991 postdoctoral fellowship and to the University for granting me a leave. I have benefited from two presentations related to this essay, the first, at David Van Zanten’s invitation, in a symposium at Northwestern University on the monumental form of Paris, and the second at the University of Chicago’s Workshop on Interdisciplinary Approaches to Modern France, organized by Colin Lucas and Jan Goldstein. Among the many who commented on this work in draft, I would like to thank especially Jan Goldstein, Neil Levine, Sarah Maza, Linda Seidel, Joel Snyder—and Woodman Taylor, for his sustained interest in a project that never seemed to try his patience.
XV
Dunk ‘Pace
aes INTRODUCTION
: RENCH JUSTICE was rarely talked about in the 19th century without reference to the dramatic change from ancien régime to modern justice, a change identified
with the historic Palais de Justice of Paris, where French centralized justice had been founded centuries earlier. This transformation was informed by the larger cultural revolution of the Enlightenment, which latter 20th-century theorists and historians have described as the replacement of icons by texts, a substitution that would seem to explain the difference between two images of the chief courtroom at the Palais before and after the Revolution (figs. 1, 2).! A view of the room in 1787, showing its rich decoration and sculpted ceiling, displays the icon, the king on his /it de justice in the
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1. Grand’Chambre, or chief courtroom of the Parlement of Paris, during the /it de justice of Louis XVI on November 19, 1787, engraving by C. Niquet after a drawing by Meunier and Girardet. XVI
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The Trial
room before a passive judge, who decides the case inductively on the basis of the proceedings he witnesses. Historically this model is associated with common law and oral procedure in the Middle Ages and particularly with Anglo-Saxon practice and its empirical bias. The inquisitorial model was adopted in France under absolutism as a philosophy of judicial authority exercised most energetically in penal cases. Though the Napoleonic codes tempered it with greater rights for the defendant, it has never been fully renounced. The Napoleonic legal system established lasting compromises between these two models—different compromises 1n each jurisdiction, giving each a different character.
Most important is the systematic distinction between penal and civil justice. Civil justice set the standard for the judicial system as a whole, because it addressed points of law, reasoned with erudition, and was decided by professional judges. Penal justice was considered exceptional and far less prestigious, for 1t revolved around points of fact and moral credibility, which are accessible to laymen and thus may be judged by a jury.” From the professional viewpoint, a lay court was an unpredictable, inelegant affair which required compensatory management. Hence a difference in procedure.” Civil trials, which revolve around expertise, paradoxically entail accusatorial counter-
arguments in front of a passive judge. Criminal trials employ oral testimony and argument in court before a lay jury, but chasten it with inquisitorial control by the presiding judge and special privileges for the prosecution. Indeed, the persistent inquisitorial rationale of penal justice is plain in the misdemeanors courts, where there is no jury, and, if the judge so decides, no witness testimony.'* The exceptional use of abundant oral testimony and a jury in the criminal courts gave visible guarantees to defendants faced with only the severest penalties. This situation led such eminent French jurists as Esmein and Garraud to characterize criminal justice as “eclectic,” a “compromise” between models. Such a compromuse did not lack purpose. From a professional magistrate’s point of view, the criminal jury was but the representative of an actual, potentially unruly public which the trial
served to bring into alignment with that primary emblem of sovereign will, the timeless Napoleonic codes. In other words, modern sovereignty was lodged in the codes, and trials functioned as the vehicle for realizing it, and perhaps also for teaching the public how to apply that general set of principles which constituted the codes in contingent daily life. Magistrates required authoritative (inquisitorial) powers to ef-
fect that fusion of live and textual publicity in the courtroom. And yet the very compromise meant to effect fusion was labelled a source of “strife... between . .. two tendencies” by Esmein (although he observed that the accusatorial aspects offered enough of a semblance of protection for the defense that they served politically to blunt public criticism of the inquisitorial aspects of the trial and stymie a perpetual
reform movement). As for the jury and the public, they were notorious for not cooperating with the magistrature—for insisting on their own sovereignty, even for 8
The Judicial System
contravening the code. And as the Napoleonic codes aged and the locus of sovereignty was redisputed in revolutions and sequential regimes, even the occasional magistrate
declared that juries might serve to update the codes, bringing them into phase with changing social values. In short, the hybrid of models generated a history of tension between the magistrature and the jury. It was precisely the hybrid and anomalous character of the criminal court that reduced its prestige for the magistrature and guaranteed the fascination of the public.” The 19th-century criminal trial in a sense recapitulated in its procedure its own historical evolution. In the inquisitorial criminal trial of the ancien régime, the judge
questioned the accused in a closed chamber without informing him of the charges or , evidence, and decided the case on the basis of his own investigation. Governing the verdict, however, were strict rules of legal proof which some jurists held to be as just as the witness testimony that replaced them in the modern trial. In 19th-century justice, the old procedure survived in the pretrial investigation. At the request of the public
prosecutor, an examining magistrate questioned the suspect in private without a lawyer, assembled a dossier of evidence and witness depositions, and decided whether
to propose the case for trial, where the prosecutor would take over (fig. 9). What occurred in the courtroom then was a sudden release of the defendant into a relatively | balanced contest with the public prosecutor. This is what the trial offered to a public
gorged on details leaked from the investigation. | The blending of the written investigation into the oral trial has experiential implications so important for the form and layout of the courtroom that they merit systematic discussion; taken for granted by those present at Troppmann’s trial, they a will serve here to help carry the reader into that event and its setting. Walter Ong’s .
observations on the phenomenological differences between oral and literate cultures, : while ahistorically framed, are suggestive for the different ritual dynamics of the two types of procedure.” A trial based on the reading of documents, presented and judged by experts, tends to abstract from and reflect on experience, distancing the listeners from the acts in question, their social context, and the sources of the evidence. Such reports also tend to be non-combative in tone, fostering a sense of impartial distance
that amplifies their authority. The extreme case is the French Supreme Court or Cour de cassation, which dispassionately reconsiders cases solely in terms of whether due process has been respected; note the meditative postures of the justices as depicted in a popular magazine illustration of 1868 (fig. 11).’” Oral testimony, because it re-presents events on the spot to an uninformed lay audience, tends to be agonistic and experiential; at its most effective, it revolves around facts and acts, described in
narrative and gesture. It draws the listeners into a drama and unifies them in a common experience and values. Moreover, oral testimony blends evidence into performance, encouraging the listener to judge the credibility of the speaker as well as the statement. In French judicial philosophy, this constitutes a protection for the defen9
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16. Detail of the Palais de Justice and the ile de la Cité from the plan of Paris for the Prévét des marchands Turgot, by Bretez, engravings, 1739.
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20. West vestibule during the Pranzini trial of 1887, print based on sketch by Marc Aurele.
would surely exceed the price of admission to the most sought-after plays. Successful petitioners included numerous legislative deputies, such as the duc de Mouchy, an
aristocrat who had recently married into the imperial family, and the marquis de Guilloutet, who had ironically won notoriety by authoring article 11 of the 1868 press law barring newspapers from reporting details of private life; Maxime Du Camp, whose investigative reportage of Paris institutions in the Revue des deux mondes was
attracting attention; the art critic and writer, Arsene Houssaye; the popular playwrights Emile Augier, Adolphe Dennery, and Alexandre Dumas the younger, of whom the latter had recently published a novel about a criminal case; as well as several celebrated actors and singers, such as the Opéra’s Madame Carvalho-Miolan. Tickets, however, were rumored to pass from approved to less “respectable” hands by the time
of the trial, accounting for a number of popular actresses and courtesans amid the allegedly high proportion of female spectators. A passion for trials also led to crossover between classes in the standing room area. Unsuccessful petitioners for tickets resorted to purchasing places at the front of the queue for standing room, places that 23
The Trial
fetched, according to the press, prices ranging from 500 to thousands of francs. Society overcame class and gender scruples to squeeze among the peuple at the back of
the courtroom.” The two-tier system of admission reflected professional ambivalence about the public—both the idle poor and the idle rich. The ticket system was not mandated in the code of criminal procedure, but arose as a custom soon after the Cour d’assises was
established; challenged in petitions to the Cour de cassation, it was upheld as a legitimate exercise of the virtually unlimited powers of the president, specified in the code, to maintain order in his courtroom. In explaining this, Justice Nouguier did not
specify why limiting the unreserved seating on a first-come first-served basis was inadequate to maintain order, but the Third Republic’s Paris Assises president Bérard des Glajeux characterized the issue as one of class.*” Fears ran high about the motives of the public-at-large; the president could screen those who sat in the reserved area,
but could only speculate on the motives of those at the back, identifiable by their clothing as working class. Despite the growing tendency to distinguish a virtuous classe laborieuse from the classe dangereuse represented by criminal defendants generally
from poor backgrounds (an effort that we shall see in practice in the Troppmann trial debates), suspicion persisted that working class spectators were likely to be in league with the defendant.** Du Camp maintained that they included thieves, who stopped by to instruct themselves in judicial workings; President Bérard declared that friends and accomplices of guilty defendants tended to pack the standing area and sway the
actors in the trial with their responses. Significantly, Bérard worried more about audience responsiveness—that 1s, the “turbulence” in the courtroom caused by the lack of “conditions de déférence et de dépendance” among an unscreened working class audience—than about the security risk that partisans might aid the defendant to escape.” But even the highly select group deemed suitable for tickets was suspect, because it too was responsive—perhaps more so because it could see and hear better and could talk with the witnesses who joined it on the benches after testifying. Bérard described the public on the benches thus: They had their own values, traditions, jurisprudence, their own independent point of view, and acted effectively either to control the impressions of the press, or to alert the jurors, always very sensitive to the reactions of their
counterparts among the public, to any hint of courtroom incidents. They constituted a second, external jury.*°
A series of ministers of justice similarly warned the magistrature that the privileged public was especially dangerous:
Individuals unfamiliar with judicial customs, avid for emotion, seeking above all to satisfy their curiosity, have been allowed to sit in the enclosed 24
eee Troppman’s Public
area. This is a veritable abuse: those who crowd into the enclosed area at a major trial make the policing of the courtroom difficult and may distract the
witnesses. It may even be feared that the sentiments that this crowd expresses for or against the accused could affect the jury and influence its verdicts.*"
To that statement from 1844, another minister added in 1887: This custom . . . risks altering the character which ought to mark all judicial hearings, and thus will mar the dignity of justice; it can also expose magistrates to unfair criticism.” What the judges wanted was a silent public audience; contemporary press coverage of trials confirms their complaint that even the elite public was never passive, for journalists’ transcriptions of official proceedings were regularly punctuated. with re-
ports of audience response, an extended version of the notations of the deputies’ “rires” and “murmures” scattered through newspaper reports (once reinstated) of legislative debates. The public appears to have considered itself a participant in the trial, and insisted on judging the evidence and coming to its own conclusions; the juridical tenet that criminal justice lent itself to lay judgment by a jury drawn from the public supported the old Revolutionary notion that justice was in fact done in the name of the French, rather than of Louis-Napoléon, to whom the Second Empire magistrature had sworn allegiance. Underlying the dispute over the role of the public was the clash of two fundamental ideological principles. On the one hand, there survived the principle of the ancien régime monarchy that justice inhered in the person of the ruler and flowed from him to his people, through his delegates, the magistrature,; the function of exercising justice was indeed one of the justifications for kingship. That the king merely delegated justice to his judges was evident in the fact that he retained the power to revise or forestall sentences; he was the judge of last resort. On the other hand, the Revolution had established the republican principle that sovereignty and hence justice were based in the people, and (temporarily) eliminated the right of pardon. In order to make the magistrature responsible to the sovereign will, exemplified by written law, the Revolution also established the corollary principle that magistrates should implement justice independent of executive government. But Napoléon I permanently compromised that doctrine of the separation of powers by stipulating that the executive government would appoint the magistrature. This cast doubt on the tenet that the magistrature served a sovereign people rather than an individual ruler. From whom justice emanated was one of the contested issues of volatile French
politics in the 19th century, and the persistent representation of justice as lodged in 25
The Trial
the disembodied texts of the codes during the first half of the century did not settle the
matter. The Bourbon Restoration and the July Monarchy had decreed that justice emanated once more from the sacred person of the king; the Second Republic formally returned justice to the sovereign people. The Second Empire left the matter ambiguous, providing that while Louis-Napoléon was responsible to the French people, he delegated the right to pronounce justice in his name to his magistrates, and he remained the court of last resort, retaining the right to pardon. (He put his mark on the courtroom as well, indirectly through the motif of the Napoleonic eagle and
initial N in the wall-covering above the panelling, and explicitly through the bust mounted on the wall above the dock—a portrait over which the administration took great pains.) Thus political experience, and specifically Louis-Napoléon’s compromise, opened a breach in that judicial premise, discussed above, that the magistrature dominated the public in its courtroom so as to infuse that unruly sample of the public with the sovereign universal will inscribed in the Napoleonic codes. When in doubt as
to the interests of the magistrature or, indeed, the code, the public declared its sovereignty. From this difference over the locus of authority followed a difference in basis for judgment. Public judgment followed a different, though legally prescribed, course from professional judgment. Even though the public had access to findings from the pretrial investigation through the popular newspapers, it reacted above all to how the case was represented live in court—whereas it was the magistrate’s job to prepare and direct the trial proceedings on the basis of first-hand knowledge of the written dossier from the investigation. And as we shall see when considering the jury, response based on impressions of performance was explicitly stipulated in the code as the basis for lay judgment of criminal cases. The behavior of the public attests to the dynamics of oral story-telling, as Ong summarizes them, rather than those of a document-based procedure. It is precisely those features typical of oral communication that worried magis-
trates: the way the audience reacted immediately to the statements of a witness or lawyer, for instance, influenced that witness or lawyer to tailor his or her comments to that audience. Moreover, live presentation, as we have noted, tended to foster surprise evidence, which the audience picked up instantly. While jurors were part of the same lay constituency, they were disciplined by an iron-clad rule not to reveal their reactions in their expressions or their questions; the audience response characteristic of oral procedure was thus left to the public. In short, the magistrates supposed that evidence existed as a thing in itself and its persuasiveness depended on its apparent objective integrity, while for the latter 19th-century public, evidence was effectively contextual and discursive. Both systems, of course, accommodated manipulation, but these politics were articulated mainly by the magistrature, whose perspective provides insight into the contestation of authority between them.“ Dynamic audience response was condemned by magistrates and proponents of 26
Troppman’s Public
judicial authority as emotional rather than reasoned. It was suspect because, by its apparent spontaneity, it seemed to escape that intellectual process by which reason was
now supposed to intervene to organize and discipline sense impressions through language and its logic. Jan Goldstein’s analysis of early 19th-century definitions of insanity and its treatment in France suggests a certain tension between the concepts of reason and of sense impressions within Condillac’s pervasive formulation of reason as grounded in sense impressions. As construed by the influential doctor Pinel, following
Condillac, insanity entailed a deregulated prelinguistic imagination, over-sensitive to impressions, in which the disciplining function of reason and language had to be reinstated. Insofar as the language employed in trials was an oral one informed by gesture and expression, which appealed to the imagination, that language (speech or parole, rather than langue) posed certain challenges to a persistent Enlightenment model of rational reflection.* Suspicion of oral evidence and its judgment was expressed most clearly in criticism of the presence and conduct of women at the trial, especially in the elite audience. For contemporary commentators on criminal justice, gender was as important as class in defining the public. Newspaper reporters, general observers, and judges alike condemned what they described as a striking percentage of women, with an unseemly zeal for criminal trials. As Du Camp put it, “the supposed sensitivity that women are fond of claiming for themselves hardly accords with such a fierce and unhealthy curiosity” as they demonstrate in the courtroom. A reporter for the popular Petit journal agreed:
Isn’t it strange, that mad, unbridled passion shown by women raised in velvets, lace, and silk, accustomed to vapid sentimentality, trivialities, and
frivolity, who fall into a faint over nothing. . . for the coarse details and repugnant debates so typical of criminal cases!” Such fascination with crime was said to reveal the essential emotionalism of female nature, that is, its susceptibility to emotion and sensation without the higher discipline of reason.* It was convenient to explain this worrisome fascination with oral courtroom drama, which clearly pervaded both sexes, by transferring it to the female members of the audience. A reporter for the Gazette des tribunaux acknowledged that the responses of women were also shared by men, but came to the conclusion that
men disciplined themselves as women could not: ,
One can understand, in the circumstances of the trial, the often violent and irresistible expansion of feeling which is natural to men, but perhaps even more natural in women.
For this reason, the reporter continued, President Thévenin was to be lauded for having, in the Troppmann trial, restricted women with tickets to the back of the reserved area, for femininity constituted the opposite of masculine, reasoned justice: 27
The Trial
It must be admitted that the presence of elegant well-dressed ladies at the very feet of the judges’ bench, near the box of Messieurs the jurors, not far from the accused, is always rather shocking. It gives the character of an indiscrete and worldly spectacle to the grave and severe manifestations of justice.* Female curiosity and unbridled determination, however, overcame the president’s orders, according to Du Camp, who reported that “les filles célébres du mauvais monde parisien, les actrices du renom” found their way into the barreau; worse yet, they expressed their views about the case by wearing black, which prejudiced the impartiality of the hearing and surely also camouflaged them among the mass of blackrobed lawyers whose benches they infiltrated.” Indeed Du Camp’s attribution of the conditions of undesirable “spectacle” in the courtroom especially to actresses underscores a set of associations among femininity, class, orality, and its theatrical aspect.
It is significant that even public reporters and commentators like Du Camp dissimulated or condemned their own participation in courtroom response, which they often deemed theatrical. The claim that the public transformed the trial into theater deserves particular attention, for it focuses the larger question of what a public event like a trial was supposed to accomplish. We have already noted how the oral trial was construed as a spectacle which appealed directly to sensations and emotions and
hence as a form of theater, and why that theatrical aspect was considered suspect. Another form of pejorative comparison of the courtroom to the theater rested less on absolute mistrust of that kind of theater than on decorum. Some observers invoked the theater explicitly while others drew analogies to other places of still less constrained public activity, such as the market and the waiting hall of the train station.*° These comparisons contrasted the gravity of criminal charges and their penalties to the bustle and air of excitement among the public. For instance, spectators were wont to bring picnic hampers and even champagne to fortify themselves during recesses in day-long proceedings, when they dared not leave their seats for fear of losing them; worse yet, said commentators, was the commercial hawking of refreshments in the courtroom. That aspect of life as usual, especially the comforts of life, struck critics as unseemly in a criminal courtroom where life hung precisely in the balance. Moreover, spectators tended to dress elegantly, expecting to be observed themselves—creating embarrassment that such wealth and self-display, attributed to women, attended the judgment of generally impoverished defendants. Most damningly, the analogy implied that spectators were treating the trial as an entertainment for themselves, distancing themselves from the debate between the rights of the defendant and those of society, and thereby evading application of its stern moral lesson to their own lives. Finally, 19th-century concern with the basis of theatrical interaction and with decorum points to another issue: a construction of the purpose of the courtroom as anti-theatrical, or 28
Troppman’s Public
as about the unmasking of imposters. Many commentators compared not only the public but all the non-magistrates in the trial—the defendant, the lawyer, and even the witnesses—to actors, predisposed to subterfuge, and construed the court’s role as to distinguish play-acting from truth. An audience disposed to enjoy a good performance was not liable to seek to undermine its own pleasure. At stake here was the extension of a critique of theatricality developed by Enlight-
enment playwrights and critics, most notably Diderot. The Second Empire courtroom effectively evoked 18th-century theaters in which royalty and aristocratic dandies actually sat on the stage—like the elite audience in the barreau and behind the judges—and felt free to converse among themselves, or to address the voluble audience standing in the parterre, or to interact with the actors of classical French plays. Pejorative comparison of trial to theater extended Enlightenment condemnation of that elite audience for self-display and interference with the actors and the play— characteristics the Enlightenment coded as feminine—and ultimately for an autonomy that supported its lack of identification with the actors and their story.” The comparison also evoked the 19th-century theaters on the so-called “boulevard du
crime,” where the well-to-do enjoyed mingling with popular audiences to watch | melodramatic spectacles not unlike criminal trials; such promiscuous mixing of pub- | lics, especially voluble ones, raised governmental anxiety about risk to social order. That worry was eased in 1862 when the city demolished most of those theaters as part of its program of urban renewal, but at least one survived to perpetuate the genre, the
Théatre de la Porte-Saint-Martin.” And the aspect of gay luxury and self-display observed in the courtroom was a constituent feature of the chief official venue for grand spectacle in Paris, as it was being rebuilt by the Second Empire: the Opéra.”
Clearly the critique of theatricality so firmly launched in the Enlightenment had not | eliminated its target, though it continued to promote an alternate mode of spectacle, | which the magistrature considered more appropriate to the courtroom: the drame bourgeois formulated by Diderot and others, designed to induce silent contemplation
from an audience drawn to identify with its characters and their moral lessons. Yet the spectacle of self-sacrifice or voluntary return to virtue in the face of temptation proved difficult to draw from frequently non-bourgeois defendants accused of capital crimes,
and melodramatic confrontations of vice with virtue, like those of the boulevard theaters, tended instead to dominate trials like Troppmann’s. In a melodramatic scenario, characteristic of oral story-telling, the impulse to participate overwhelmed the public’s will to demonstrate a normative self-discipline.” From a historical perspective, the theatrical metaphor is ironic in two significant
respects. First, it has been argued that middle- and upper-class theater audiences became increasingly silent and passive by the 1870s, abandoning the practice of energetic response that characterized past theater, whereas the full range of lay participants in the courtroom grew increasingly assertive.** Secondly, commentators, even 29
The Trial
| while condemning the excitement of the courtroom public as frivolous, acknowledged paradoxically that its intensity was due precisely to the awareness that the trial had real-life consequences.*° Not surprisingly in that period of positivism and of realist programs and criticism in the arts, the public seems to have shared, however diffusely, in a general sense of an epistemological split between “reality” and representations of
it, which needs to be considered as part of the subject of social representations of institutions such as justice at this period. To dismiss the volatility of the public in the courtroom as simply frivolous was in itself disingenuous, for the public’s responsiveness seems rather to have followed from engagement in its role as participant in an oral performance—a role especially familiar to the women in the audience. This conflict over the very nature of the public even infused discussion of the appropriate response from authorities. On the one hand, publicity was a condition of post-Revolutionary democratic ideology, which was conveniently treated as a didactic means to reinforce social values among the public and deter criminal impulses;*” on the other hand, it was said to foster mobocracy, swaying the jury from impartiality by its volatile and wayward responses.** These fears served to justify the broad discretionary powers of the president to police the courtroom and restrain the atmosphere of féte; they also rationalized the limited public area and its placement toward the back of
a long, narrow room, a circumstance that not only limited but also distanced the public and provoked intense complaint about the difficulty of seeing and hearing.* Interestingly, it was the privileged public entrusted with seats in the courtroom proper
that was curtailed towards the end of the century. When in 1891, the minister of justice abolished reserved seating and banished Paris society to the rear of the room with the poor, President Bérard protested, comparing the measure to the authoritarian barring of the public from the legislature during the Second Empire.®
The rights of two specialized sectors of the audience to seats in the barreau remained uncontested, however, even in 1891: the professional audience of lawyers and magistrates who wished simply to observe the trial (or those moments at which their colleagues made their major performances), and journalists reporting on the trial. Some 40 lawyers packed onto the lawyers’ benches edging the barreau—and sometimes even appropriated the defendant’s dock; magistrates, accompanied by such foreign diplomats as the Russian ambassador, treated as special guests of the government, crowded onto the platform behind the judges’ bench. While their presence surely encouraged virtuosic performances on the part of the trial magistrates and lawyers, their behavior was chastened by a shared professional protocol. Professional reputations were more likely to be made by the judicial press, which had a special place of its own in the barreau: a box adjacent to the jury’s box, facing the defendant (fig. 56). The high partition separating the press from the jurors, of which the press complained, effectively sequestered the jury from the press and from easy
visual contact with the public. But the very provision of a press box in the new 30
The Trial Personae
courtroom was an innovation journalists applauded, especially as it afforded writing surfaces for their notes, and its placement clearly indicated the role of the press as the logical extension of the jury and the effective representative of the public, to whom it diffused its findings. Indeed, in the case of the non-juried misdemeanors courts in Paris, the press literally took the place that the jury held in the criminal courts, and in the criminal courtroom in the twentieth century, when the jury began to sit with the magistrates at the judges’ bench, expressing a change in its role, the press took over its box. Yet at Troppmann’s trial, the press box proved inadequate; the normally Parisian press swelled with provincial and international colleagues. One journalist expanded their force further with the claim that each represented a public of 20,000 readers outside the courtroom. Moreover, President Thévenin’s decision to restrict tickets for reserved seats to use for a single day of the trial allowed the press to declare that it represented true publicity, for of the possible publics, it alone had first-hand knowledge of the entire trial. These specialized publics completed the crowd in the courtroom, forming, in the words of the Petit journal, a human garland around the empty space in the barreau where the proceedings would take place.®
The Trial Personae: Choreography and Character WITH SPECTATORS installed, those with professional roles in the trial began to arrive, through that array of specialized staircases and entrances from the backstage dependencies to which Cruppi derogatorily referred. Indeed, this was the means of entry even for those lawyers and judges who attended as spectators. The complexity of this choreography is evident in the plan of the courtroom, which reveals no less than seven entrances (fig. 17). This plan, excerpted from that of the rest of the Palais in order to explicate the special services of the criminal courts in a 19th-century publication, shows how the Cour d’assises was conceived as a self-enclosed package of public areas and private dependencies compacted into a hollow rectangle and dropped into place between the two monumental corridors linking the east and west entrances, and above the ground-floor prison (figs. 18, 19, 21). The lofty courtrooms themselves
stretch to either side of a prison exercise yard concealed at the center; the crosssections show the blind arcades of their inner walls lining the courtyard, above the gridwork of small openings into the cell blocks below (figs. 19, 21, 22). While the public enters those courtrooms from the end adjoining the great waiting hall, other participants in the trial enter at the opposite end, from a private several-story wing of offices and deliberation chambers connecting the courtrooms at the rear, or from the private stairs linking the courtroom to the flanking east-west corridor. Most striking is the distinction between the entrances for magistrates and for 31
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28. Troppmann during testimony on the first day of his trial, December 28, 1869, Paris.
defendant during interrogation; cf. figs. 37 and 28 showing Troppmann himself standing during subsequent testimony). While not explicitly mandated in the code, its
legitimacy was upheld by the Cour de cassation; effectively it inscribed the oral proceedings to come within the deductive logic of the dossier. The president sought to expose the logical “systems” underlying the prosecutor's story versus Troppmann’s, and their points of agreement but especially contestation, which the courtroom evidence would help decide.* The danger was that the president would seem to impersonate the prosecutor in this unequal exchange, stirring jury sympathy for the defendant.” Fundamental to this impression was the difference in style between the president's and the defendant’s speech, reinforcing visual differences of clothing, posture and situation in the courtroom. The president posed a sequence of leading questions, building up the elements of the case on a principle of deductive logic. That coherence was made possible by his study of the prosecutor’s dossier before the trial. The defendant's responses were necessarily fragmented; he was not permitted to present a defense based on his own 45
anv Se The Trial
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29. Defendant Solleilland in the dock, Paris, 1907.
narrative structure of argument until the end of the trial. From the president’s standpoint, his own questions were logical and consistent, while the defendant’s attempts to respond on his own terms appeared evasive and disruptive. Consequently, the interrogation assumed a characteristic inquisitorial dynamic.” Rather than an impartial exposition of the points of contestation on each side, the interrogation proceeded as the president’s attempt to unmask the defendant, presumed to be an actor concealing his true nature. Defendants were often said to resist
the president’s attempt to unveil their “systems” of defense, resorting instead to improvisatory surprise tactics—the shock effect of sudden refutations or new bits of evidence—well suited to the oral proceedings later on and perceived by their opponents as theatrical.”' Indeed, the defendant’s best strategy was probably to fragment the magistrature’s narrative of the case by casting doubt on particular points of evidence and logic. The agile president, for his part, devised his questions as the provocation and foil for sometimes long, digressive responses, considered evasive in intent but inadvertently revealing of details of character and circumstance.” A standard response of the Anglo-Saxon defendant to courtroom questions—silence—was rare in the French courts, for the defendant was told that silence would be construed as acquies46
The Debates
cence in the charges—a judgment that should be considered in the context of French self-ascribed volubility as well as that of the jury’s job to study the performance of the
defendant. The defendant, like the other evidence in the trial, was forced to be eloquent. In Troppmann’s case, President Thévenin’s strategy was to discredit any evidence Troppmann might present as competition to the narrative of the prosecutor. The ideal response from the defendant was acquiescence with remorse, conforming to the scenario of self-discipline developed in the Enlightenment drame bourgeois. But even confessions could take challenging forms. Between his arrest and the trial, Troppmann had made three different confessions, each claiming a different role for himself. In the second statement, Troppmann accepted sole responsibility for all the murders; in the third, he retracted, claiming he had had accomplices whom he dared not name, but to whose identity he offered clues which the magistrature had not pursued. The acte d’accusation had explained Troppmann’s inconsistency as moral evidence of bad character and guilt; it presented the crime as a melodrama in which the virtue of the Kinck family, who had achieved wealth by honest work, was eclipsed by the evil and jealous Troppmann, who sought to usurp its wealth, and in which the final act would be the reinstatement of the forces of good by the court. In questioning Troppmann, the president was obliged to engage Troppmann’s claim of accomplices. ‘Troppmann confronted him: Why won’t you follow up my clues? The president’s answer: How can you expect us to take your clues seriously when you lie habitually? By repeatedly reading out inconsistent passages from the confessions and forcing him to state that he had lied, the president definitively discredited the defendant’s words. ‘Thus the key point of contention became whether Troppmann was physically capable of murdering several children simultaneously—for only in that case could the prosecution dismiss the question of accomplices. This was an issue that jurors could appraise through visual scrutiny of the defendant. Yet even here, Troppmann’s verbal inconsistency was
read into his demeanor; his mild demeanor was expected to be deceptive, for in duplicity would inhere the consistency of his character.” The next phase of the trial, the witness testimony, was less inquisitorial in character, for witnesses stood at the bar in the center of the barreau and spoke spontaneously (figs. 30, 31). But like the defendant, they testified directly to the president, consid-
ered more impartial than defense counsel or prosecutor, although in practice he prompted the intimidated witness with leading questions.” Isolated at the bar, their backs to the public—unlike their American counterparts—the witnesses’ stance and gesture were crucial, honing the public’s skills at the kind of interpretation that the critic Edmond Duranty would advocate, just a few years later, for Impressionist art: “A back should reveal temperament, age and social position, a pair of hands should express the magistrate or the merchant, and a gesture, a whole string of feelings.”
Indeed, artists for the popular press developed, in the 1880s, a substitute for the 47
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31. Vignettes of witnesses testifying in the trial of Senator Humbert against Le Matin, Paris, 1908; jurors bench at upper left.
the affair (fig. 27). Quantities of witnesses testified to Troppmann’s solitary, brooding nature, his single-minded preoccupation with an audacious scheme to bring wealth to his family, and the intellectual prowess suggested by his fondness for reading and his skill in chemistry; they also testified to the virtuous, uncomplicated character of the Kinck family, united in fond obedience to Kinck pére (see the vignette at the left in fig. 27). Indeed, the foreignness of the Alsatian witnesses, largely German-speaking, led the Parisian Petit journal to characterize them as simple-minded and naive, constituting by extension, a “moral photograph” of the Kinck family’s simple-mindedness, 49
a
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i} Lusty, * Pa \ | : | aN —a | j EEEREETEEEEITocreEeneN — a pean = me aha 2] 32. Confrontation, as seen from the jury box, in the Panama trial, held in the new Premiére Chambre of the Cour d’appel, Paris, 1893.
contrasting with the predatory intelligence of their obviously deviant compatriot Troppmann. As the Petit journal further pointed out, the cumulative effect of the witnesses was to keep courtroom attention focused on the absent victims—aindeed, it went so far as to observe that the trial opened “providentially” on the anniversary of the massacre of the innocents, reconciling mythic and historical calendars.” But the most dramatic confrontations were those embodied in the person and deeds of the
witnesses themselves, and for this the prosecution turned to an episode in Troppmann’s arrest at Le Havre, when Troppmann had slipped away from a gendarme and 30
The Debates
tried to drown himself in the harbor. Hauguel, the young boat-caulker who saved Troppmann for trial and had been decorated for bravery, made a sensation in the courtroom as an epitome of young French manliness, the counter-type to Troppmann. Reporters described his military bearing, so unlike Troppmann’s; the president addressed him a formal thanks, actually provoking an unrepressed round of cheers and applause from the public. Hauguel fixed the theme of brave heroism versus
cowardly murder, offering a meaning for Troppmann’s disconcerting androgyny.’” Despite the comforting explanations of melodrama, however, T’roppmann troubled his judges. The press marvelled continuously at Troppmann’s imperturbability in the face of confrontation. Far from betraying his feelings, ‘Troppmann’s comments mainly verified his intellectual sangfroid. Why should Troppmann’s impassiveness have been worrisome, when even he acknowledged that he had murdered? At stake was legibility and explanatory power. Jurors were responsible not simply for assessing factual evidence, but for persuading themselves that they could imagine Troppmann committing the murders. That obliged them to square Troppmann’s appearance with
an act requiring Herculean vigor and agility—as Troppmann himself pointed out." Moreover, the jurors did not merely decide whether Troppmann committed the crimes; they also determined whether he could be held responsible for them, and to what degree.'’” If he could describe the murders without expressing feeling or remorse, did he comprehend the gravity of his acts, and could he be assimilated to the prevailing moral or psychological system?’*? Was he insane—grounds for acquittal? Indeed, for the president and for reporters, Troppmann’s impassivity was an antisocial act, a piece of incriminating evidence, as remaining silent would be: by thwarting the desire to interpret signs, it became meaningful in itself. There was one category of witnesses that directly addressed this crisis in legbility: the experts who offered assessments of moral and material evidence considered not reachable by layman’s inspection, and who gained an increasing role in criminal trials during the course of the century. In Troppmann’s case, there were three: two medical doctors and a chemistry professor. Although appointed by the president on the rationale that they were to give a disinterested professional assessment independent of the interests of either side, at Troppmann’s trial they were classed as the final witnesses for the prosecution. The doctors Bergeron and Tardieu, both familiar and celebrated figures in the criminal courtroom, concluded on the basis of examination of the bodies of the victims and defendant that Troppmann could have murdered three children at once: while his constitution appeared “frail [débile],” his “nervous energy” and his profession as mechanic had developed in him “great agility and flexibility [souplesse],” “in the wrists especially, an above-normal strength,” with “great precision,” which equipped him for simultaneous stranglings. The chemist confirmed Troppmann’s surprising ability to fabricate the poison that killed Kinck pére, as embodied in the (ominously) Prussian blue color of the remains in the test tube on the o1
The Trial
table piled with material evidence.’* The danger with experts, however, was that they would report with so much professional authority that the jurors would take umbrage at that challenge to their own ability to judge the evidence.'® Ultimately, it fell to the
prosecutor and the defense lawyer to offer in their speeches internally consistent narrative explanations of the ambiguities, and indeed of the relatively disordered mass of testimony. The speeches, the final phase of the debates, formed an entirely different genre from the previous debates: models of rhetoric and stamina delivered over the course of hours. They called on the oratorical skills that were mainly developed in the context of
civil cases, where well-placed classical erudition might impress and entertain the judges and where brilliant legal reasoning was of the essence. But the speeches in the criminal courts were different in so far as they were calculated to appeal to the lower middle-class juror and made sense of live, as well as recorded, evidence, selectively discounting and highlighting its elements in competing accounts of cause and effect, motive and responsibility.
Commensurate with the asymmetry of the courtroom, the standards for argumentation for and against the defendant were markedly different, to the point that the | speeches carried different names: the prosecutor's réguisitoire versus the defense counsel’s plaidotrie. Justice Nouguier declared in his professional manual of 1868 that the prosecutor must exercise voluntary self-restraint, precisely because he represents the weight of the social order against an individual defendant.’ As the spokesman for
the social interest, the prosecutor enjoyed immense powers. But in _postRevolutionary French justice, it was by law and temperance, rather than by deployment of superior force, that society justified its right to punish. In his Discipline and
Punish, Foucault has pointed out the shift in political economy from the ancien régime’s display of deliberately excessive force to repress the violence of individual challenges to order, to the post-Revolutionary polity’s insistence on the display of measure and legal restraint to replace the evident violence of punishment. What is striking here is how French jurists justified the retention of the powerful prosecutor within an ostensibly accusatorial procedure and ideology, through the model of that exemplary self-restraint that the defendant allegedly lacked. Self-restraint was to be expressed not only by tone but by emphasis on the general abstract principles that were understood to underlie the codes and render them not merely a list of laws, but a universal guide for self-conduct. The prosecutor was to emulate the abstraction and anonymity of that written law, carrying it into oral procedure. Justice Nouguier wrote
of the prosecutor's réquisttotre: ,
I applaud him if his words faithfully represent his convictions, because justice has no parti-pris, if they are humane because he serves human justice, moderate because justice knows no hate, calm because justice lacks anger, 52
eee The Debates
male because justice is a virile power in an organized state, austere because each word echoes morality and law.""’
The defendant’s lawyer, however, represents an individual in contest with a vast
social body: to redress that balance, he must become his client, speaking for him better than the defendant could do himself, expressing his case with all the dramatic
resources he could conjure. He must move his audience emotionally, by exposing the failures of the social order under the principles evoked by his colleague from the point of view of the particular history of an individual, challenging the prosecutor's abstractions through feeling and specificity, and even provoking him to step out of role into
an imprudent response.’ Said Nouguier, At his disposal . . . is every mode . . . reason and logic, laughter or tears, movement and fireworks. If he dazzles, a ray of his bright eloquence may illuminate the one he defends. When, by irony and sarcasm, he arouses laughter, the judge may be moved to say, with the poet, ‘I have laughed, here
I am, disarmed, If he fascinates his listeners, excites their pity, perhaps he will move the jury to acquittal through emotion, where reason would have failed.*”
Nouguier’s prescriptions represent, however, a formal defense of French judicial practice against an initiative of the Second Empire government. For the government
had attempted since at least 1860 to restrain the defense by compelling lawyers, through disciplinary action, to adopt more deferential demeanor and speech towards the prosecutor in the courtroom. That initiative seems only to have increased resistance among defense lawyers, of whom Troppmann’s lawyer Lachaud was among the
most theatrical." Theatrical excess was legitimate for the lawyer, the self-employed professional,
while it was not for the magistrate, who was a civil servant. That difference was evident not merely in the rhetorical style of wording, but equally in the gesture and use of the space of the courtroom that modifies speech and makes it plausible to its audience. This was obvious to the courtroom artist Morel who drew up the coutrtroom vignettes for the Eyraud and Bompard affair of 1890 for the popular journal, Le Monde illustré (fig. 33). The prosecutor stood at his desk on the judges’ tribune, to give
his speech; as the artist indicated in the sketch at the upper left, his plausibility depended on merely raising a finger to emphasize a point. But the defense counsel, confined to his bench by a high barrier designed to hold his papers, was compelled to use gesture to bridge the vast barreau between himself and the jury. Pacing within his bench, he would embrace the table of evidence in gesticulation, lean intimately towards the jury, point back to his client, exploiting the dramatic silhouette enabled by his full sleeves, as seen in the sketch at the lower left." 93
nS sis The Trial
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33. Vignettes showing the prosecutor (upper left) versus the defense lawyer (lower left) giving their speeches in the trial of Eyraud and Bompard, Paris, 1890.
Costume played a significant role in the complicated job of the lawyer, whose success depended on his skill in playing the role of another individual, his client, while persuading the jury that his words expressed his personal intime conviction. Precisely because the lawyer spoke for someone else (and was so often likened to an actor), it
eee The Debates
was essential that he develop a style that would be recognized as his alone, and which would represent his personal stake in the case he had chosen to take on."” Now his
robe and toque constituted a uniform, which concealed the individuality of the |
wearer’s body and assimilated him to a professional ethos. But in so doing it showcased the most expressive body parts, face and hands, essential to rhetoric. These gestural and expressive aspects of pleading actually gained importance in the postRevolutionary courts, as lawyers ceased to read prepared texts and strove for at least the semblance of an oral, improvised performance." And during the 19th century, the individuality of the lawyer’s style, attested in the press which made his reputation and codified into galleries of verbal portraits in contemporary books on famous lawyers,
came to permeate his very robe, hitherto a means to efface individuality. Contempor- a aries commented on the differences with which lawyers and even magistrates wore their robes and toques, interpreting them as marks of personality:
There are differences in the quality of robes and in the ways of wearing them: most often the hem is raised, but sometimes it drags .. . Toques
also... take different forms under the impress of the thumb of their owners. . . . Magistrates no longer constitute a fixed type; they are as variable as humanity itself. Sometimes you will see emerge from his courtroom door a tousled judge, toque over ear, robe dishevelled, other times the figure of pomposity or of elegance." Personality could be read in the way the robe hung and creased and developed spots of wear. The 19th-century commonplace that successful lawyers wore their robes threadbare implies more than lawyers’ display of their special disdain for wealth and fees, which helped sustain their moral credibility as more-than-professionals;"* more sub-
tly, it was a means to mark that uniform to the utmost with the imprint of the individual wearer. Not only did the robe simplify, condense, and dramatize such revealing gestures as the tilt or hunch of the shoulders and the sweep of the pointing arm, the robe itself deformed in response to the wearer’s most habitual gestures. Thus the skills of interpretation and judgment that we observed at work upon the objects on the table a conviction and upon the person and performance of witnesses, were equally
exercised upon and encouraged by the lawyer. While the prosecutor resisted that phenomenon with impassiveness in order to uphold the transparent discourse of universal law, the lawyer drew on costume and performance—indeed theatricality—as
a means to persuade his audience of his sincerity in the service of the individual. . The Petit journal introduced its readers to the Procureur général Grandperret, at Troppmann’s trial, in terms that popularized and personalized Nouguier’s generic prescription for a prosecutor: “His aspect is a bit severe perhaps, but isn’t that appropriate to a man who represents the whole of Society?”"* In his nearly three-hour speech, Grandperret presented his job as one of throwing impartial light on a criminal 35
The Trial
who sought refuge in shadows, and told the jury its job was to force Troppmann to take responsibility for his acts. In a worn metaphor which regained force from the literalness of its fulfillment in the side-lit courtroom, he declared: He has used every artifice to sustain, in the evidence, a few shadows in which he can hide; but an avenging light has attached itself to him, permits him no repose, and shows him to us, inexorably chained to his victims.
For obvious reasons, the prosecutor grounded that avenging light and emotion in Troppmann and disengaged his own words of enlightenment, which were couched in the language of universal reason and led to an appeal to judge not by emotion but by obedience to “eternal justice.” Focusing on the ways Troppmann had duped his victims, he warned the jury not to be duped itself by a criminal who “knew how to compose his features.” His major addition to the acte d’accusation was to elaborate on Troppmann’s manipulation of the family’s unshakable trust in father Kinck. Grand-
perret argued that Troppmann’s inconsistent confessions matched his ambiguous, deceptive appearance, and enjoined the jury to trust in magisterial and expert authority to unmask Troppmann’s audacious crime against “eternal justice,” whose victims exemplified the virtues of the patriarchal, law-abiding family. Its emotive content thus _ neutralized, Grandperret’s story was this: The prosperity of the Kinck family, built on work and thrift, should have inspired the impoverished but able Troppmann; instead, ambitious Troppmann, filled with dreams of inventions rather than patience for labor,
eliminated the entire family to seize its earnings (see fig. 27, vignette at bottom). Worse yet was Troppmann’s method, exploiting filial piety and wifely devotion to patriarchal authority to lure the wife and children to their deaths in Paris. Troppmann’s demand that the police look for accomplices was merely another trick to gain time, and perhaps an escape. Troppmann’s chafing at authority, his will to turn his
_ wits to profit, was his undoing.” As customary, the defendant’s lawyer spoke second. For Lachaud, gifted in oral improvisation, this was an opportunity to shape his defense as a response and as an alternate bid for the confidence of the jury. Speaking to a courtroom whose hostility to T'roppmann had peaked under Grandperret’s sway, Lachaud amplified the scale of
the vengeful forces ranged against his isolated client and insisted that justice demanded examination of defendant as well as victims. Contrasting his own independent status to Grandperret’s, he also distanced himself from the discredited Troppmann, telling the jury that he was giving them his personal conviction as a judge of Troppmann, like themselves. This line of argument quelled hostile reaction from the
public and even won a few signs of approbation.!" :
Specifically, Lachaud argued that it was unconscionable for the prosecutor to condemn Troppmann on the basis of Troppmann’s own words; one must step outside 96
The Debates
Troppmann’s statements for an independent appraisal of all the evidence, a juror’s task
for which Lachaud conducted a demonstration. Returning to the central question of whether Troppmann murdered alone, Lachaud argued that a layman’s critical analysis of the courtroom evidence proved he could not—especially the model of the field at Pantin (fig. 28). But the jury judged as a court of last resort, it could not mandate an additional investigation of Troppmann’s clues to accomplices, and Lachaud knew the issue was only good for shaking the jury’s confidence in Troppmann’s responsibility. The question of responsibility thus took precedence over proofs of accomplices. Lachaud argued that, far from willful defiance, Troppmann could not help his crimes or his lies. Lachaud was famous for throwing the moral responsibility of an acknowledged criminal into question, and for stimulating interest in the defendant through his courtroom effects.’ Capitalizing on thwarted desire, he pointed to Troppmann and declared: “You want emotion? I will show you emotion. All I need do is mention Troppmann’s mother!” At which Troppmann, for the first time, collapsed in tears in the dock!”°—illustrating Lachaud’s case that Troppmann was not an unequivocal enemy of family, but rather a deranged boy so possessed by the desire to rescue his own impoverished, cheated family from its disasters that he could stop at nothing. The misfortunes of Troppmann’s inventor-father forced the young man to desperate, paranoiac tactics. Confronting Troppmann’s lack of remorse over the murders to his tears for his mother, Lachaud declared Troppmann a monomaniac, a 19th-century category of madman possessed by a singular idée fixe which governed his reasoning and acts and perverted his feeling. In Lachaud’s hands, emotion and its absence were legible symptoms of insanity, grounds for lenience from the jury. It is striking that both speeches, drawing on such different sources of authority,
thematized authority itself, and did so in terms of the family, an institution that bridged the particular case of Troppmann and the social order at large. According to Lachaud, Troppmann’s idée fixe was his perverse filial piety; according to Grandperret, it was insubordinate ambition—a telling characterization, for monomania was first defined in the early 19th century as a disease of excessive ambition in the absence of ancien régime sources of authority. Indeed, as of 1869, ambition and authority were what remained of that once-popular construct, for psychiatrists themselves had discredited its medical value during the 1850s and even Lachaud’s charisma proved inadequate to revive it.” ,Thus Grandperret was able to magnify the case into social
allegory: Troppmann had attacked the foundations of social order, a hierarchy grounded in the family and which was understood to culminate in the patriarchal emperor himself. In Grandperret’s terms, working class ambition had but two outlets, Troppmann’s path of subversion, or Jean Kinck’s path of obedience. The difference was explained in gendered terms. Whereas Kinck achieved success by masculine self-
control and participation in the social order, Troppmann refused his example, substi- | 57
The Trial
tuting less-than-manly passion and wiles. Building on the reporters’ perception of Troppmann’s appearance, even Lachaud stamped Troppmann as feminine, by asserting his jointly immature and pathological inability to control his feelings. Gendered authority was equally at stake in Grandperret and Lachaud’s competition for the jury’s confidence. Grandperret’s speech was masculine and severe in style and demands, asserting the necessity for self-control and moral accountability; from a later perspective, his emphasis on self-control was equally a call to the often insubordinate institution of the jury to internalize magisterial norms and authority. Lachaud’s speech was emotive and theatrical in style and counselled lenience, asserting the power of sentiment, not only in the deranged Troppmann, but also for the jury, which was supposed to judge by its own impressions.’” The final phase of the trial formed a web of formal replies, in which Troppmann
: waived his right to the last word. But it was President Thévenin who actually had the last word, for after closing the debates he presented his own hour-long résumé, supposed to be an impartial summary of the partisan arguments by the two sides, which would clarify the issues for the jury and purge them of distorting passion. An institution so tainted by accusations of unfairness that it was abolished a decade later, the résumé was on this occasion received by journalists as “impartial and lucid.””? It was the prologue to the list of questions which the President then put to the jury, addressing seventeen counts of murder, theft and forgery, and adding to the charges in the acte daccusation. The jury was out for forty-five minutes, while a restive public noisily anticipated the outcome, and Troppmann himself waited in the defendants holding room. Jurors judgments were in principle inviolably private or intime, throwing each man upon his individual conscience. Disagreement among the jurors during deliberation was concealed by a rule of utmost secrecy; no juror was to reveal what had been said or the balance of the voting after the fact, nor was he necessarily to know how individual colleagues had voted. Following merely optional debate, but significantly with access to the inquisitorial dossier (minus the witness depositions) and to advice from the president, the jury decided by majority vote whether Troppmann was guilty of each count and whether there were extenuating circumstances. Jurors filled out secret ballots at individual desks with sequestering barriers set at each place around the jury’s table, and deposited them in the symbolically important urn, whence the foreman drew and counted them. At 9:30 p.m., a bell alerted the public and judges to the jury’s return, and the foreman stood, “very pale and violently agitated,” to read the verdict to the bench: guilty on all counts.’ Accepting the judgment, the president called for Troppmann, who was brought to the courtroom to hear the verdict from the impersonal, that 1s, corporate, lips of the clerk.” Verdicts typically came at night, when artificial light played on the darkened courtroom, coloring it with the fatigue and anticipation of all participants (fig. 34): 38
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even the back stairs leading down to the prison. Thus, they first experienced the courtroom from the public end, gauging its long, narrow shape along its lengthiest axis, and inspecting it in the unilateral sunlight from the clerestory windows puncturing one side wall. Whereas they had entered the long, narrow vestibule broadside, their first experience of the similarly-shaped courtroom emphasized the hierarchical potential of this volumetric type, organized like a gallery-less basilican church 1n a progression from narthex (standing room area) to nave (benches), to chancel (that restricted area of the barreau framed by the bench, the dock, and the jury box). 71
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Reviewers perceived the room in relation to its social purpose, using their imaginations to situate future trial participants within it; likewise, illustrations of the courtroom accompanying reviews in the popular press depicted the room in generic use (fig. 56).'® That experience of the room as a socially-zoned interior, in which individuals occupying different roles were spatially located, was reinforced by the plethora of private entrances, and was additionally shaped by the decoration. The courtroom today still presents a golden ambiance, with its warm oak panelling and the gilded highlights in the coffered ceiling, but has been stripped of some of its original decoration (figs. 54, 55). We can reconstruct the critics experience by combining the current state with the original decoration of the room shown in the first illustrations cited above (fig. 56). Sumptuous by contrast to the vestibule, whose monochrome masonry struck Grangedor as unduly cold, the courtroom embraced the public in a warmly colored environment, which nonetheless displayed an internal decorative hierarchy which helped to create the hierarchical sequence of zones described earlier. "°° Coordinated by the architect, the decoration was graded from simple wall panelling and ceiling coffering in the areas for public and witnesses, to the richer 92
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