FAIR-PLAY TO CRIMINALS. T HE news that M. Constans is doing
his best to put a stop to the most offensive of the many theatrical forms and ceremonies connected with the administration of criminal justice in France, will be received with satisfaction in England. The change that will take place if M. Constans has his way, though something will no doubt have been done to mitigate the tortures inflicted on the accused, will not, we fear, make French murder-trials really any fairer to the prisoner, or render their procedure unassailable to such strictures as those made by Thackeray in " The Case of Peytel,"—one of the most astonishing pieces of concentrated scorn, indignation, and sar- donic humour in the language. The controversy, however, that has arisen over the proposed alteration, and the unwillingness of the Magistrates to agree to any reform, bring out clearly how widely different are the standpoints of English and French justice. It may, then, be worth while to take this opportunity for inquiring what it is that makes Frenchmen consent to a system which, even though it is not carried on in their own country, fills Englishmen with shame and indignation. Before, however, attempting to account for this anomaly, our readers may perhaps be interested to learn the details of the proposed change.
At present, one of the chief features of the initiatory inves- tigation in French criminal cases is the proceeding known as " the reconstitution of the crime." This step in the inquiry is of a highly theatrical nature, and up till now has been regarded as of extreme importance by the judicial authorities. After the accused has been subjected to a sufficient series of inquisitorial seances in the Magistrate's private room, and has had his self- command completely undermined by being alternately coaxed and bullied, exhorted and implored to confess his guilt, he is one day carried off to the very place where the crime was committed, and there, as far as the histrionic ability of the constables will allow, the murder is enacted before his eyes exactly as it was actually committed, or rather, exactly as the prosecution imagine that it was committed. In the room, the furniture is arranged just as it was first found by the police, and every care is taken that all the accessories shall be absolutely correct in detail. The accused, handcuffed and guarded, is stationed in a corner of the room, and made to watch the policeman who represents the murderer steal up and pretend to strangle or stab, as the case may be, another policeman who holds the role of victim. While this childish performance is taking place, the Magistrate is closely scrutinising the face of the accused, and watching every movement in order to find material to use against him at the trial. Since this dramatic act of justice is supposed to affect very deeply the conscience of the criminal, and to render him peculiarly liable to make damaging admissions, the investigating Magistrate plies him well daring the performance with taunts and adjura- tions. What the nature of these is likely to be when the inquiry is conducted in secret, may be gathered from the remarks made by Judges at public trials. If a Judge will in open court interrupt a prisoner's answers by telling him not to lie, or by taunting the poor wretch with the fact that he is "turning green" while stretched on the interrogatory rack, the Jugs d'instruction is not likely to miss the chance of asking the prisoner if he is not becoming white because he remembers the smell of the blood, or of up- braiding him for his callousness in not showing more feeling. The Judge, indeed, has the prisoner on the horns of a dilemma, and it is hardly possible to believe that a born logician, as is every Frenchman, would not use his opportunity. If the man trembles and turns pale, it is a certain sign of guilt. If, on the other hand, he maintains a perfectly passive demeanour, he has shown how cold, calculating, remorseless, and therefore essentially criminal is his nature. M. Constans has not, we are sorry to say, ventured to forbid outright the enactment of this drama and its accompanying bullying of the prisoner, but has merely told the Prefect of Police that the detectives under his orders are not in future to be used to represent the dramatis persona. Henceforth, if the Magis- trates desire a " reconstitution of the crime," they must them- selves supply the necessary actors.
At first sight, it seems incredible that Frenchmen, who, we feel sure, are quite as anxious in the abstract to do justice, to spare the innocent, and to act with humanity as English- men, can allow the system of bullying and torturing persons
accused of crime to continue. Yet such is the case, for though M. Constans may dislike his detectives taking part in the tomfoolery we have described, there is no reason to think that any change in regard to the main system of criminal investiga- tion is contemplated. As far as we know, the French public regards it as .a. law of Nature that a prisoner should be taunted, browbeaten, and scoffed at, and that his attempted explana- tions should be treated with derision, if they seem at all lame or unlikely. Where, then, we desire to ask, is to be found the explanation of this national inability to treat prisoners fairly ? We believe that it arises from what is in truth the chief intellectual fault in the French character, an excessive belief in logical conclusions, and a proneness to subordinate natural instincts to the promptings of pure reason. Unhappily, it is the habit of Frenchmen to assume that a person accused of crime by a properly qualified judicial authority is primcl-facie guilty. An Englishman may perhaps object that this assump- tion, to begin with, is not logical, and that reason properly applied would refuse to entertain it. If, however, we consider the matter without reference to our own prepossessions, we shall see that, strictly speaking, the French assumption is more reasonable than ours. Not only is it, as a rule, safe to assume that the police authorities would not have prosecuted without prima"-facie evidence of guilt in the accused, but without doubt the majority of persons officially prosecuted turn out to be' actually guilty. It is, therefore, more strictly reasonable to assume that an accused person is guilty, than that he is innocent. But if we accept this primet-facie assumption of guilt subject to rebuttal, and follow it out, we shall see that it almost necessarily leads to the French system of bullying the prisoner. Even when we start with the notion that an accused person is guilty till he is proved innocent, the authorities have cast upon them the difficult task of disproving the evidence which is brought on the other side, and so of estab- lishing judicially the primci-facie assumption. Ought not, then, the law to be given every facility for meeting the accused person's pleas of innocence, even though the exercise of the powers thereby conferred may seem harsh ? Is it not better to torture a man who is presumably wicked, than to run the risk of letting him escape without punish- ment ? Questions like these are very difficult to meet except with an affirmative, if we look upon the prisoner primarily as a monster, though as a monster who may possibly be proved innocent, instead of regarding him as an ordinary citizen who may have the misfortune to be proved guilty, but of whom till then we have no right to speak or think except as an honest man. At first sight, no doubt, the difference between saying that a man is to be regarded as innocent till he is proved guilty, and prima' facie treating him as if he were guilty till he is proved innocent, does not seem very great ; but every logical step by which we proceed from either assumption makes the gulf betwixt them the greater, till at last we arrive at the practically opposing attitudes taken up by the judicial systems of England and France. That ours is the better system, we can- not doubt. It may be unreasonable to treat a man as innocent when it is more than probable that he will turn out to be guilty ; but unless this often untenable assumption is made in every case, it is impossible to set up a judicial habit which shall pro- tect the per-centage of guiltless men who are fatally affected by contemplating them from the French standpoint. No doubt a Frenchman might declare that, in spite of this fact, the system of his country is the best. Either plan,' he may say, is liable to an occasional miscarriage of justice, but yours has the extra disadvantage of allowing many undoubted criminals to escape, and so of potentially injuring society.' But even admitting this for the purposes of argument—though in reality we are not prepared to make any such admission—we still think the balance of evil is with the French assumption, Better that ten criminals should escape, than that one innocent man should be wrongfully condemned. And, beyond this, we believe that the injury inflicted on society by the results of the French system is of a far more serious kind than that produced by the immunity secured by a certain number of criminals. The love of torture for its own sake which exists deep down in man's nature, is one which it is not well to encourage. The French public, in every great criminal' trial, participate in an exhibition of mental agony which is terribly demoralising. If the accused is unpopular and believed to be a monster of iniquity, thepublic hear or read of every shrewd thrust made by the Judge or the Procurator- General's substitute with a hideous gusto, and watch the wretched man's attempt to parry the questions that are put to him much as the Romans watched the victims of the arena as they writhed under the paws of the tigers. The English desire that even a criminal should have fair-play, and that the accused should always have the benefit of the doubt; and this is not the result of any mere sporting instinct, or due to the principle of " law for vermin." It comes, we believe, rather from an instinctive horror of the results that might ensue from the priraci-facie assumption of guilt, and from the desire to prevent the spectacle of a than being tortured in public for fear that he would otherwise get a greater chance of escape than he strictly deserves.
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