The French Revolution and the organization of justice

From these demonstrated truths there emerges the following draft Constitution for judicial power:[3]

Constitution of Judicial Power[4]

Title I
Of The Courts And Judges In General

  • Art. 1. The nation alone has the right to decide on the creation of the courts, and no change may be made in the organization of judicial power unless it has been ordered or consented to by the nation's representatives.
  • Art. 2. The courts and the judges shall not participate in any way in the exercise of the legislative power; and any citizen who holds any office in the judiciary may not be a member of the legislative body as long as he holds such office.
  • Art. 3. No more courts shall be established, and each court shall have only the number of judges that is required for the correct administration of justice.
  • Art. 4. In future, no office that confers judicial power may be created for any reason whatsoever in order to be sold.[5]
  • Art. 5. Justice, as it has been practised hitherto, shall be rendered in the name of the king as the supreme holder of the executive power.
  • Art. 6. Since the administration of justice is a public service that may not under any circumstances become the property of a citizen, no citizen of the State shall have the right to have justice rendered in his name.
  • Art. 7. Provision shall be made to ensure that justice is administered at no cost; and the legislative body, on the instructions given to it by the provincial assemblies, shall set for judges and officers of the courts sufficient fees in keeping with the dignity of their offices and the importance and nature of their duties.[6]
  • Art. 8. The hearing of and judgment in all kinds of cases shall take place in public. Consequently, and contrary to the current practice of the courts, in all cases requiring an examination of titles and a written debate, the rapporteur shall be required to read his opinion at the hearing, and in such cases the judges may not render their judgment or decision until they have heard, at the same hearing, the summary observations of the parties or their counsel concerning the work of the judge rapporteur.
  • Art. 9. No judge shall be permitted to interpret the law in any way whatsoever; and in a case where the law may be dubious he shall defer to the legislative body in order to obtain, where required, a more precise law.
  • Art. 10. All judges, without exception, shall be accountable for their judgments; and when the Civil Code and the Criminal Code are reformed, a law shall be passed to define the circumstances and the limits of this accountability.

Title II
Of The Courts And Of Judges In Civil Proceedings

  • Art. 1. The kingdom shall be divided into a number of provinces of approximately the same area, in each of which a provincial administration shall be established.
  • Art. 2. Each province shall have a Supreme Court of Justice, located as far as possible in the most central city of the province, which court of justice shall consist of not more than two presiding judges, twenty counsellors, two general counsel and a prosecutor general.
  • Art. 3. Within the jurisdiction of each Supreme Court of Justice, there shall be created a number of approximately equal districts, and in each district a second-level court shall be established which shall consist of one presiding judge, six or eight counsellors, two advocates and a king's prosecutor.
  • Art. 4. Each city, each town and each country parish shall also have justices of the peace, the number of which shall be determined on the basis of the population of the locations in which they are established.
  • Art. 5. In all cities of any size there shall also be courts of commerce; and in cities located on the seashore, courts of maritime commerce or courts of admiralty.
  • Art. 6. All the courts, known under the names of courts of exception, shall be eliminated, and the hearing of the cases for which the courts of exception were created shall in future be held, at first instance and on appeal, in the courts just referred to.
  • Art. 7. The duties and the jurisdiction of the new judges shall be governed as follows in civil proceedings:

    The justices of the peace, assisted by two notables, shall hear all personal cases with no right of appeal that do not exceed fifty livres in value; they may hear only these cases, and they shall be required to refer to the regular judges all those cases that exceed this value.

    The courts of commerce and of admiralty shall hear all proceedings relating to commerce, and they shall try those that do not exceed two thousand livres in value without right of appeal.

    The regular courts shall hear all cases, involving real or personal rights, with a value in excess of fifty livres, with the exception only of cases involving commerce. If it is considered reasonable to continue to permit the regular courts to render judgment without right of appeal in cases with a value of up to a certain amount, a specific law shall be passed to define the circumstances in which the courts shall judge these cases without right of appeal and the limits to the value of the cases that they may hear.

    Whenever the justices of the peace, the courts of commerce and the regular courts exceed their jurisdiction, or when they render appeal judgments or when they accordingly exceed their jurisdiction, appeals from these rulings shall be heard by the supreme courts of justice in each province, which shall render final judgment in all cases, regardless of the status of the parties.

  • Art. 8. Any party shall have the right to argue his own case, if he considers this appropriate; in order for the mandate of advocates to be as free as it ought to be, advocates shall cease to form a corporation or an order, and any citizen who has completed the necessary studies and passed the necessary examinations may practise this profession and shall in future be required to answer for his conduct only to the law.
  • Art. 9. No woman may plead against her husband, no husband against his wife, no brother against his brother, no son or grandson against his father or forefather, and conversely, unless he or she was previously heard by a justice of the peace, who shall consider the subject of the dispute and be authorized to mediate it within a period of one month in order to pacify domestic disputes and do everything that caution would suggest to him to prevent an angry explosion in the courts.
  • Art. 10. In the city where the Supreme Court of Justice sits and in the locations where the courts of the second level are established, a charitable office of jurists known for their probity shall be established, and they shall specifically be responsible for examining the cases of the poor and assisting them free of charge with their advice to assert their rights.
  • Art. 11. Any poor citizen to whom the office of jurists has given a favourable consultation may, if he or she thinks fit, have one of the king's counsel argue his or her case in the regular court or one of the general counsel in the Supreme Court. Consequently, the cases of the poor shall be assigned to each of the general counsel in the Supreme Court or the king's counsel in the regular court, from year to year and in turn.
  • Art. 12. The Civil Code shall be rectified, and a committee shall be appointed to arrange it in a better way and, above all, to simplify it.[7]

Title III
Of The Courts And Of Judges In Criminal Proceedings

  • Art. 1. The only judges who shall prosecute and punish offences shall be the justices of the peace and the judges of the Supreme Court of Justice.
  • Art. 2. Any citizen who is charged with a crime or arrested in flagrante delicto shall be brought before a justice of the peace.
  • Art. 3. The justice of the peace, assisted by four notables, shall hear the accuser and his evidence and the initial defence of the accused.
  • Art. 4. If the justice of the peace and his assessors are of the unanimous opinion that the accused is clearly innocent, in that it is impossible that he is guilty or the evidence is contradictory, the justice of the peace shall order him released.
  • Art. 5. If the justice of the peace and his assessors find that there is some likelihood that the accused is guilty, they shall bring him immediately to a house of detention, in the event that the offence with which he is charged is such as to require a sentence involving a loss of life or freedom, and the accused shall be released on bail in the event that the offence with which he is charged is of another kind.
  • Art. 6. As soon as possible after the accused is detained or provides bail and within twenty-four hours, the justice of the peace shall notify the Supreme Court of Justice that he has placed a citizen under the power of the law. This shall be the extent of the powers of the justice of the peace.
  • Art. 7. In each Supreme Court of Justice, two judges shall be appointed annually in order of the roster to preside over the hearing of criminal trials.
  • Art. 8. The jurisdiction of the Supreme Court shall be divided into districts, and each of these judges shall have an equal number of districts under his jurisdiction.
  • Art. 9. As soon as the Supreme Court of Justice has been notified that a citizen has been placed under the power of the law, a Supreme Court judge in one of the districts in which the offence occurred or is deemed to have been committed, shall order, within a time to be determined, that the proceedings heard by the justice of the peace be brought and that the accused appear.
  • Art. 10. When the proceedings before the justice of the peace are obtained and the accused appears, the hearing of the trial shall begin within a time that will also be determined.
  • Art. 11. This hearing shall be held, and judgment of the accused shall be rendered, in accordance with the procedures commonly used in proceedings before juries.
  • Art. 12. No accused may consequently be found guilty other than by a judgment of his peers, and the judge may not enforce the law or impose sentence unless the peers of the accused have found him guilty.
  • Art. 13. In order to allow the nation to benefit as soon as possible from proceedings before peers or before a jury, the National Assembly shall immediately appoint a committee, consisting of those of its members or persons from outside the National Assembly who are most commendable for their knowledge of the laws, and this committee shall be responsible for drafting a new Code of Criminal Procedure that reflects the principle of proceedings before juries.
  • Art 14. The same committee shall also be given a mandate to draft a new criminal law bill in which it shall ensure that sentences and offences are brought into harmony with one another as accurately as possible, observing the principle that sentences should be moderate and not losing sight of the maxim that any punishment that is not necessary is a violation of the rights of man and an attack by the legislature on society.
  • Art. 15. Pending reform of the courts and promulgation of the new code and the new criminal law, the ordinance of 1670 and the criminal laws hitherto in use shall be observed in both their form and their substance, with the exception of some of their provisions that are repealed by the provisions contained in the following articles.
  • Art. 16. No order for arrest may be made in future unless it is supported by a majority of two to one of three judges.
  • Art. 17. In future, any accused shall have the right to choose one or more counsel to defend him.
  • Art. 18. The review of the facts in defence of the accused may no longer be postponed until after the trial, and witnesses for or against him shall be heard at the same time at the hearing.
  • Art. 19. A simple death penalty shall be the harshest sentence that may be imposed on a guilty person.
  • Art. 20. The death penalty shall be imposed solely in the case of murder or high treason.
  • Art. 21. The making of distinctions in sentencing is hereby abolished for ever.
  • Art. 22. The property of the convicted person may not be forfeited under any circumstances; only where a complainant party appears at the trial, and if this party states and proves that he has suffered damage caused by the convicted person, shall the complainant be awarded a sum equal to the estimated amount of the damage sustained from the property of the convicted person.
  • Art. 23. During this session, a provisional law shall be promulgated to reform the criminal law and the criminal ordinance solely in respect of those provisions they contain that are contrary to articles 16, 17, 18, 19, 20, 21 and 22 of this Title.

Title IV
Of The Courts And Of Judges In Relation To Police Matters

  • Art. 1. This Title applies solely to the police power, the object of which is to prevent offences, and not to the power related to the administration of the political and economic interests of the city.
  • Art. 2. The police power shall be exercised in the cities, towns and villages on behalf of the municipalities.
  • Art 3. The justices of the peace shall be the only ones authorized to judge police matters.
  • Art. 4. In order that the police be administered correctly in the cities, the cities shall be divided into districts more or less equal in area, and each district shall have its own justice of the peace.
  • Art. 5. In order that the police be correctly administered in the towns and villages, the towns and villages shall be combined into cantons, and each canton shall have its municipality and its justice of the peace.
  • Art. 6. There shall also be appointed in each district of the cities a number of notable citizens, who shall perform the duties of assessors to the justice of the peace.
  • Art. 7. Similarly, there shall be appointed in each canton, a number of notable citizens, who shall also perform the duties of assessors to the justice of the peace of the canton.
  • Art. 8. Immediate action shall be taken to draft a police code and law, the purpose of which shall be to determine the functions of the municipalities, justices of the peace and their assessors with respect to police matters, the forms of sentences to be imposed by justices of the peace, the circumstances in which appeals from their sentences may be filed, the type of sentence they may impose and, in particular, the limits to their supervision and authority.
  • Art. 9. The task of drafting the police code and law shall be entrusted to the committee responsible for the Criminal Code and law; since the police law, the purpose of which is to prevent crime, must absolutely correspond to the criminal law, the purpose of which is to punish crime, and since each can be brought to the level of perfection of which it is capable only to the extent that both laws are based on the same principles, both will constitute one and the same work.

Title V and last
Of The Election And Appointment Of Judges

  • Art. 1. No citizen may be elected a judge before attaining the age of thirty years.
  • Art. 2. The judges of the supreme courts of justice and the regular courts shall be appointed by the king on presentation to the king by the provincial assemblies of three names for each vacant position in the courts.
  • Art. 3. The judges of the courts of commerce and of admiralty shall be elected and appointed by a plurality of votes, without the intervention of the sovereign, in the assemblies of traders, merchants and ships' captains in each of the towns in which a court of commerce or of admiralty is established. The only exception to this rule shall be the presiding judge of each court of commerce and each court of admiralty, who shall be appointed by the king, as are the judges of the regular courts on presentation to the king of three names by the meeting of traders, merchants and ships' captains, hereinbefore referred to.
  • Art. 4. The justices of the peace and their assessors shall be elected and appointed by a plurality of the votes and without the intervention of the sovereign by the general assemblies of the municipalities.
  • Art. 5. A particular law shall determine which persons may be elected judges of a supreme court of justice or of a regular court.
  • Art. 6. A particular law shall determine which persons may be elected judges or presiding judges of a court of commerce or of admiralty, and the same law shall determine the term of office of both the presiding judges and the judges of the courts of commerce and of admiralty.
  • Art. 7. The law creating the municipalities shall determine which persons shall be elected justices of the peace or assessors to the justices of the peace, and the same law shall determine the term of office of both the justices of the peace and of their assessors.
  • Art. 8. Finally, the law creating the provincial assemblies shall determine everything concerning the election and appointment of jurors.[8]

Gentlemen, that ends our work on the constitution of judicial power.

It is with regret that, in dealing with the constitution of this power, we were forced to propose an arrangement that is completely different from that which has been established for so long among us.

If it would have been possible simply to make improvements, rather than destroying in order to rebuild from the start, we would have done so all the more willingly since the nation has undoubtedly not forgotten everything it owes to its judges; how salutary, in times of trouble and anarchy, their wisdom has been; the extent to which, in times of despotism and when authority, ignoring all limits, threatened to encroach on all rights, their courage, their firmness, their patriotic devotion have been useful to the cause, which always tended to be ignored, of the people; with what devoted care they strove to maintain in our midst, by preserving the old maxims of our forefathers, that spirit of liberty that is found today in all hearts in such an astounding and such an unexpected manner.

On the basis of this thought, perhaps it would be appropriate if the National Assembly did not promulgate at this time any part of the Constitution in a definitive way, not even the Declaration of Rights, a much more important and much more difficult project than people imagine; if, instead, it merely approved, rejected or modified that project and issued an absolute judgment solely when the work on each point of the Constitution has been completed and it will be possible to present as a single whole the development of all the principles that guided those who drafted it.

So much effort in the cause of preventing evil certainly deserves a great measure of gratitude from us.

Unfortunately, when we are asked to lay lasting foundations for the prosperity of an empire, it is not gratitude that we crave but rather justice. It is not what we owe to many but what we owe to all that may become the rule of our deliberations, and the judges themselves would chastise us certainly if, prevented by the respect we profess to have for them, we failed to perform the whole of the task that has been given to us.

We should not hide this fact, and the principles that we have developed will make this only too obvious, but present circumstances require another judicial order than that which we have respected for so long. Our judiciary was strongly designed to resist despotism, but now that there no longer is despotism, if our judiciary retained all the power of the institution, the use of this power could easily endanger our liberty.

It is accordingly essential that an absolute revolution take place in the system of our courts, but it will take time and other institutions must anyway be prepared before you can consider the new judicial order that has been proposed to you.

However, an empire has never found itself in such a more deplorable state of dissolution than ours. All relationships have been broken, all authorities are ignored, and all powers are destroyed. All institutions are overthrown with violence, all manner of sacrifices are audaciously ordered, all duties are breached with impunity, each day brings to light new excesses, new prohibitions, new acts of vengeance. Crime is increasing everywhere, and whenever the banner of liberty is now raised among us, it is covered with blood and tears.

In the midst of so much disorder and anarchy, and at a time when there was never such a need for justice to be deployed with a more imposing machinery, what is there left for you to do? What you have already done in part, gentlemen, but what you did not do in a way that was sufficiently explicit. You still have to request a last act of patriotism from these same judges who, on so many occasions, have given us such brilliant evidence of their love for the public weal. Like us, they see that the provinces want a new judiciary and that by proposing to you a new arrangement of judicial power, we are merely bowing to the widely expressed view of our principals. They cannot therefore hide the fact that a revolution in the administration of justice has become inevitable, but, like us, they see that if, until this new judiciary is established, the courts remain without jurisdiction, it will be impossible to calculate the ills of all kinds that such inaction will produce. However, they are citizens as they are judges, and you must therefore invite them to support with all their strength the efforts that you are making to restore peace among our fellow citizens. It also seems to us that they will hasten all the more to respond to your invitation when they can achieve true grandeur at the very moment when the nation requires them to make substantial sacrifices, to look to the public weal with as much enthusiasm as if their devotion were to secure for them either a more powerful authority or more extensive prerogatives.

That is not all. The judges can do nothing on their own if the strength of the public does not support them. It would therefore be more convenient to give to the public all the power it requires to act effectively. I may be permitted here to express my personal opinion. I shall no doubt not be accused of not loving liberty, but I know that not all movements of peoples lead to liberty. But I know that great anarchy quickly leads to great exhaustion and that despotism, which is a kind of rest, has almost always been the necessary result of great anarchy. It is therefore much more important than we think to end the disorder under which we suffer. If we can achieve this only through the use of force by authorities, then it would be thoughtless to keep refraining from using such force. May no one say to me that this force can again become dangerous. First, I do not know why, but I think that men who always distrust are born for servitude; that trust is the attribute of great characters, and that it is only for men with great characters that Providence has created liberty. Then, what will we have to fear when all citizens are at their post, when a profound revolution has occurred in social customs, when the prejudices that we obey are no longer anything but ancient errors, when, by dint of experience, we unfortunates have managed not merely to realize this but to feel that we can be happy only with liberty? Let us leave there, then, all these pusillanimous fears, and when we have an incalculable number of means to bring to perfection the task that we have begun, let us no longer suffer the disorder that we have an interest as well as a duty to prevent. May the leader of this empire, this king whom you have just proclaimed so justly and with such solemnity as the restorer of French liberty , agree with you in restoring calm in our provinces so that, by your combined efforts, by joint supervision, the days that follow will not be marked by desolation, that for the honour of humanity, this revolution shall be peaceful and that in future the good that you are called to do will, if possible, leave in the soul of each of your fellow citizens neither bitter regret nor painful memories.

Note - This text is a translation from the French. The French version comes from the original edition of the report (Paris, Baudouin, imprimeur de l'Assemblée nationale, 1789).

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