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who may have been justified in making the charge in the public interest, and, secondly, to the person libelled, who is denied all chance of clearing his character by a thorough investigation. As was said by Prévost-Paradol in La France Nouvelle, the brilliant hook that heralded the downfall of the Second Empire : 7
Elle a le double tort de frapper l'écrivain qui a pu faire son devoir en disant sur autrui une vérité nécessaire, et de ne point réparer le dommage moral fait à l'honnête homme calomnié, puisqu'elle interdit la preuve des faits allégués par le diffamateur, de telle sorte que le plus honnête et le plus vil des hommes peuvent sortir également de l'audience en possession d'un jugement qui punit leur diffamateur, jugement d'ailleurs bien inutile, puisqu'il établit seulement ce qui était déjà connu de tout le monde: à savoir que l'allégation déférée au tribunal était en effet diffamatoire. Cet état de choses a un inconvénient si manifeste, et le tribunal réduit à juger dans ces termes est si impuissant à réparer le dommage moral fait par la diffamation, qu'on voit souvent les citoyens constituer, à côté des tribunaux officiels, un tribunal d'arbitres qui, sous le nom de tribunal d'honneur, admet la preuve et se trouve aussitôt investi par là même d'une autorité réparatrice à laquelle le tribunal institué par la loi ne saurait prétendre. .
Forcible as is this reasoning, French feeling is overwhelmingly the other way, and in the case of attacks on private character the truth of the charges is not only no defence, but cannot even be gone into at the trial. This desire to protect the scandals of private life from exposure is due to no unworthy motive, but to the intensity of family feeling, which is at once the strength and weakness of the French character, and which forbids the journalist to do anything which might impair it, even at the cost of partially restricting his usefulness. For similar reasons, in divorce proceedings the papers are forbidden to report anything but the final judgment, a system which many will think better than our own, for it is difficult to see what public interests are subserved by publishing the details of the evidence. The most exaggerated expression of this phase of French feeling is to be seen in the short-lived law of 1868, which forbade the press to publish any fact whatever regarding private life, whether defamatory or not. Even this drastic measure, it may be suspected, might be regarded without disfavour by some at least of those favoured beings among ourselves whose most ordinary actions, their comings and goings, teas, dinners, and suppers, are now habitually reported with such tedious triviality. On this question of private character our own law, in its practical and not too logical way, would seem to have arrived at a good working solution by making the truth of the libel a good defence in a civil action for damages, but requiring the defendant if criminally prosecuted to show, not only that the libel was true, but that its publication was for the public benefit. The wanton raking up of scandal would be without any pretence of public benefit ; besides, such conduct is after all sufficiently guarded against by the reprobation it must excite, and by the serious responsibility of undertaking the burden of proof.
? La France Nourelle, p. 226.
* Art. 35. There is an exception in the case of managers of businesses, 'faisant publiquement appel à l'épargne ou au crédit.'
If a private person has little to gain by prosecuting a newspaper for diffamation, or precise allegations of fact, he has much to lose by prosecuting for injure, or general disparagement, in which case the proceedings at the trial may be reported, whereas reports of trials for diffamation against private persons are forbidden.' In England, counsel for the defence are confined more or less closely to the facts in evidence before the court, but in France they enjoy the wildest license; and any one who prosecutes a newspaper for injure may have to listen to the repetition of the insult with every variety that wit and malice can suggest, and find a privileged report of the proceedings in the next issue of the offending paper. This is what happened recently on the prosecution of the Dreyfusite Aurore by the editor of the anti-Dreyfusite Jour. Prosecutions among journalists for 'injure' are comparatively rare; not only is it a case of dog eating dog, but there is a salutary rule that provocation is a good defence, which in case of a dispute between the extreme sections puts both sides out of court in no time.
It is not surprising that the powerlessness of the law to protect private character often leads to resort to extra-legal methods. The * tribunal d'honneur' spoken of by Prévost-Paradol is comparatively infrequent. The real redress is sought in duelling. Now duelling, especially under the comparatively innocuous conditions in which it is generally practised, fails altogether to maintain a decent standard of journalistic manners. A writer may even succeed in acquiring a sort of spurious reputation with the unthinking from the number of duels in which his outrageous personalities have involved him, and so obtain an influence to which he could not pretend on other and more legitimate grounds. Sometimes, too, redress is sought by what in France are known as voies de fait, as when the wife of a deputy whose honour was involved in a press attack on her husband recently went down to the office and, not finding the writer or the editor, shot the business manager instead. It cannot be said that this act of vicarious injustice excited as much reprobation as it merited; indeed, when it came before the Assize Court the other day, the lady was triumphantly acquitted by the jury, and only ordered to pay the very modest sum of 6001. as damages by the Court.
If the provisions of the law of 1881 for the repression of attacks on private character are unsatisfactory, those which relate to attacks on public men stand on no better footing. The law regarding such libels conforms more nearly to our own, for they are tried before a jury, and truth is a good defence. In dealing with them we can count on the invaluable guidance of M. Jean Cruppi, Avocat
9 Art. 39.
Général à la Cour de Cassation, whose brilliant book 10 published at the beginning of last year has already attracted no small attention on this side of the Channel, owing to its luminous comparison of French and English methods in the administration of criminal justice.
The jury in France-and, indeed, it is to be feared everywhere on the Continent—remains a more or less exotic institution. Its retention in the French Criminal Code was carried in the Conseil d'État in spite of the opposition of Napoleon, who declared that juries nearly always acquitted the guilty. And though this censure was exaggerated, they have never succeeded in inspiring any considerable measure of respect. Indeed, M. Cruppi tells us they are now dismissed by one school as a mere Liberal illusion like the Garde Nationale, and, as will be seen, other means of introducing a popular element into the administration of justice are regarded with greater favour. The Code of Criminal Procedure makes graver offences, known as crimes, triable before a jury in the Assize Courts, and lesser offences, known as délits, triable before judges only in the tribunals of police correctionnelle. The disfavour with which the jury procedure is regarded by the legal authorities is shown, M. Cruppi points out, by the practice of preferring the lesser charge of délit where the facts would support a charge of crime. Diffamation and injure, being * délits,' would prima facie have been triable en police correctionnelle. But under every régime making any pretence to Liberal principles it has been felt necessary to refer offences of this nature involving a political element to the arbitrament of the jury. Governments and thrones have fallen on the question whether press offences should or should not be tried before a jury, although for a long time trial by jury was synonymous with complete impunity for the press. The juries of the beginning of Louis Philippe's reign have left a legendary reputation by the way in which they discharged their duties. They found it proved in evidence that the king was a 'chenapan '-that is to say, 'a vagabond, or good-for-nothing wretch'; that Thiers was a thief; that letters which were palpable forgeries had been written by the King. In 1835 press trials were taken away from them. At the present day, M. Cruppi tells us, they have been educated to a better discharge of their duties ; but their reputation does not yet stand high, and very little weight attaches to their verdict finding a justification proved or the reverse. In 1893, when it had been found wholly impracticable to send Lord Dufferin's traducers before a jury, a law was passed transferring trials for attacks on foreign sovereigns and ambassadors to the police correctionnelle ; and only last year M. Méline, in the Chamber of Deputies, justified the conduct of the Government in selecting an isolated passage from M. Zola's famous letter by saying 'Nous n'avons pas cru devoir soumettre à l'appréciation du jury l'honneur de chefs de l'armée.' There would have been more hesitation in putting forward a contention of this sort if the verdicts of juries carried greater weight. Not, indeed, that anyone would suggest sending political offences to be tried by judges dependent on the Government for promotion. The result of such a step has always been to impair the confidence of the public in the integrity of the courts. Besides, there is a great deal in the existing procedure that is calculated to mislead the jury and excuse them for going wrong. In the first place, the interval between the commencement of the proceedings and the hearing of the case may, in the absence of any law of contempt of court, have been occupied by the newspaper in disparaging the character of the prosecutor and making illicit appeals to the jurymen themselves. Then, as already explained, when the case comes on the real culprits, as often as not, are not before the court at all, but only the unoffending hired gérant.
10 La Cour d'Assises. Paris, 1898.
The trial proceeds like all French criminal trials, the prosecuting counsel sitting with the judges on the bench, in a bright red gown and black velvet hat, while the counsel for the defence, robed in sober black, has his place in the body of the court, an inequality which not seldom raises a prejudice in his favour. The prisoner and all the witnesses are examined by the presiding judge, and so escape the test of effective cross-examination. Counsel for the defence are wholly untrammelled by rules of evidence, and even if they can make nothing of an attack on the prosecutor himself, often ride off successfully by raising an irrelevant political issue, so that “l'honneur du plaignant dépend de la solution de je ne quelle confuse et tumultueuse bataille politique.' The judges are too timid to interfere in the face of the obloquy to which an undue display of zeal might expose them, and since 1881 they have been deprived of the right of summing up. The punishment for this class of diffamation is imprisonment varying from eight days to a year, and fine varying from 100 to 3,000 francs. The punishment for injure is somewhat less. In an exceptional case, like M. Zola's, the judges may pronounce the maximum sentence, but as a rule, acting under the feelings already alluded to, they dismiss the defendants with a light fine and a few days' imprisonment, and are equally sparing in awarding damages when they are asked for. The unfortunate results follow that public men against whom grave charges are made abstain from prosecuting their accusers, that public opinion approves, or at least condones, their abstention, and that they remain subject to odious suspicions which impair the general confidence in their integrity.
The absence of any summary powers, such as those given by our law of contempt of court, to restrain the press from interfering with the free course of justice is another serious evil. The practice of prejudging every criminal issue and pronouncing confident judgments in admitted ignorance of the evidence is perhaps too deeply
rooted to be easily got rid of. At present the only restriction is that the official documents in the case may not be published before the trial. It would be far better if they were the only publications permitted. Such abuses as terrorising the jurymen by publishing their addresses and attempting to shake the public confidence in the administration of justice also call for more effective measures of repression. It has often been asked of late why neither the Court of Cassation nor the Government on their behalf take any steps when M. Rochefort in his paper denounces them as traitors sold to the Jews, and suggests cutting off their eyelids and letting spiders eat out their eyes. The answer is an easy one: the Penal Code punishes outrages addressed to the court itself in the exercise of its functions, but press insults and outrages must be prosecuted as diffamation or injure under the law of 1881. This requires that the court itself should request a prosecution to be instituted," and should then go before the jury in the sorry attitude of a prosecutor already described. That is not a position in which the highest court could be expected to place itself. In England, M. Rochefort would have met the fate of Mr. Whalley and Mr. Guildford Onslow during the Tichborne trial, and have been summarily fined and imprisoned until he made submission. This is another instance of the superiority of our judge-made law over foreign codes constructed on the most approved notions of abstract justice. While the French courts are shackled at every turn, Her Majesty's judges have never hesitated to draw on their inherent powers for the due assertion of the supremacy of the law. At a time when so much is heard of suggested conflicts between civil and military justice, and of the unwillingness of the latter to acknowledge an error, it may be well to recall the submission and apology exacted by Chief Justice Willes in 1746 from a court-martial, comprising some of the first officers in the navy, who had been misled into passing censure on his judicial conduct and repudiating the authority of his court. Signed by all the members of the court-martial, this submission was received and read in open court, and published the next day in the Gazette, and was entered on the records of the court as a memorial,' said the Chief Justice, to the present and future ages that whosoever set themselves up in opposition to the law, or think themselves above the law, will in the end find themselves mistaken ; for we may with great propriety say of the law as of truth, magna est et prævalebit sentiments which may be commended to our neighbours across the Channel.12
In calling attention to the legal impunity enjoyed in these various ways by the French press, it is not intended to suggest that the bulk
11 Art. 47. 12 See Manual of Military Lane, p. 189, and Gentleman's Magazine, 1746.