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Judicial authority and popular justice: crimes of passion in Fin-de-Siecle Paris.

In 1894, a top statistician from the French Ministry of Justice published a report that exposed a shocking increase in the rate of acquittal for cases tried by jury in French assize courts. Emile Yvernes reported that acquittals for serious assault (coups et blessures graves) rose from 27% to 78% between 1860 and 1890, acquittals for murder grew from 15% to 34%, and the rate of acquittal for homicide increased from 16% to 24%. By contrast, acquittals in crimes against property rose only slightly during the same period, from 17% to 19%. (1) Like many of his peers, Yvernes was particularly worried by the high rate of acquittal for so-called "crimes of passion" committed between lovers or spouses. He contended that "these misdeeds, often inspired by passion, hate, or vengeance, more and more often find with the jury not only indulgence, but absolution." (2) Jurors acquitted criminals, he argued, because they believed the punishments provided by law were too harsh. "If these negative verdicts from the jury were always founded on the real absence of guilt of the presumed authors of the crimes," Yvernes observed, "we could perhaps congratulate ourselves for meeting so many innocent men and we would have nothing to do but to deplore the lack of clairvoyance of the judicial investigation." But the truth of the matter must not be hidden, he wrote. "The moment has come to put an end to arbitrary [judgment] and to fictions," he declared, "everything by the law and nothing but by the law." (3)

Yvernes was right: the seemingly erratic verdicts of the juries meant that the law was not applied equitably to all defendants. But what can account for this high rate of acquittal? If it was not the law that held sway in jury trials for crimes of passion, what was it? If the jurors were merely incompetent, as Yvernes and many of his contemporaries believed, then it would be reasonable to expect their incompetence to manifest itself in all kinds of cases. Yet it was only in cases of crimes against persons, not against property, or even the legally more complex cases of fraud and libel tried in the assize court, that frequent acquittals occurred. If jurors were subverting the system, they did so in predictable and consistent ways. This suggests that in their decisions jurors applied standards regarding the use of violence other than those dictated by the law. Indeed, a close analysis of trial dossiers in cases of intimate violence reveals that juries' verdicts were by no means capricious, but instead coincided with the implicit judgments of guilt or innocence articulated in witnesses' testimony given during the trial.

I contend that the processes of criminal investigation and trial worked to privilege the stories, knowledge, and judgment of the witnesses and defendants in the assize court, and thus effectively facilitated the transfer of a popular system of retributive justice into the verdict of the court. Unlike the utilitarian state system of justice, this popular system of retributive justice was personal and subjective. It validated the use of violence in disputes between domestic partners where violence was used to punish a previous wrong: the reciprocal exchange of harm commensurate with harm. The perplexing issue of acquittals in the fin-de-siecle assize court was nothing less than the failure of the state system of justice to displace a popular system of justice. Rather than grafting an alien code of behavior onto an acquiescent population, the state system was co-opted by the people for their own purposes.

The way this transfer could occur is only apparent with a clear understanding of legal procedures under the Third Republic, together with an evaluation of witnesses' testimony and trial outcomes. This study encompasses 251 cases of intimate violence between domestic partners tried in the assize court of the Seine during the last three decades of the nineteenth century. (4) According to trial dossiers, as well as accounts of court proceedings reported in the popular press, it is evident that court proceedings almost never concerned the bare "facts" of the crime alone. The French judicial system actually permitted witnesses a great deal of freedom to craft their depositions as they chose. While the accused almost invariably admitted his or her deed, the witnesses who testified in any given case focused very little attention on the act of violence itself. Instead they spoke at length about the circumstances surrounding the crime: the couple's relationship, the partners' reputations, and whether, in short, the victim deserved violent punishment. It was thus not the act of violence that was in question in witnesses' testimony, but its legitimacy. From this perspective, it becomes clear that court verdicts are best understood not as the application or rejection of rules of law, but rather as the outcome of a complex process of social interaction, where multiple systems of standards of behavior and judgment came into play. (5) This approach assumes that witnesses and defendants in court have a certain knowledge of the social structures and institutions in which they participate, and are capable of strategizing within them. In Pierre Bourdieu's terms, they have a "feel for the game," they are not dupes of culture who can only say yes or no to the powers that constrain their lives. (6)

And yet it may seem surprising that even in the late nineteenth century, the French judicial system provided a structure on which ordinary people could have an impact. The peculiarities of the fin-de-siecle criminal jury trial, and indeed modern French legal method more generally, owe a great deal to their revolutionary origins. In seeking to complete the long process of standardization and centralization that had defined the growth of the French judicial system for centuries, the revolutionaries (like the eventual authors of the 1804 Civil Code and 1810 Criminal Code) sought to amend the worst abuses--and most confusing features--of Old Regime law and judicial procedure. (7) Like all classical law codes, the new French code emphasized the nature of the crime, not the criminal. A crime was defined as an offense against the state, a violation of the social contract, to which the state responded with measures intended not merely to punish but to rehabilitate the offender, making him a fit member of society once again. Judgment was to be based on the impartial application of the law, with strict correlations between certain crimes and punishments, independent of the social status of the accused, or the whims of his judges.

Implementing this utilitarian approach to justice required a neutral magistracy, whose powers would be more limited than they had been in the Old Regime. The revolutionaries were particularly concerned to ensure the separation of judicial and legislative powers. During the Old Regime, law could originate either with the king or the parlements, which could issue arrets de reglement that would apply to future cases in their own jurisdiction. The law of 16-24 August 1790 prevented the courts from participating in creating law as the old regime parlements once did. (8) Broadly this explains the absence of stare decisis in French law that persists to this day: if a ruling were to set a binding precedent for future cases, a magistrate would in effect be creating a kind of law. Thus decisions rendered by professional judges must be based on the letter of the law, not judicial precedent. As defined in the early nineteenth-century law codes, the judge's role is to apply the rules outlined in the law codes: not to interpret them creatively or flexibly, but to render syllogistic decisions that apply only to the facts of the case before him.

The power of professional magistrates was further limited by the establishment of criminal jury trials in 1781. In contrast to old regime procedures where professional judges studied written evidence to create written rulings through a process of logical reasoning, jury trials were designed to be responsive to the historical contingency of the moment. Witnesses would depose orally, as freely as possible, in the presence of the jury, a panel of professional judges, and a public audience. Jurors would then base their decisions on their own sense of justice, their "conviction intime." (9) Recent work by Laura Mason has highlighted the new and significant value placed on oral testimony by the revolutionaries who introduced criminal jury trials in 1781. "[R]ejecting the primacy of the text in the courtroom, the Constituent Assembly asserted that oral testimony was indispensable to the proper functioning of the jury. Imagining juries that were imbued with sensibilite and organically linked to the public from which they were drawn, legislators agreed that witnesses' spoken testimony was the single most important feature of the criminal trial necessary to sustain both qualities." (10) As Mason contends, jury trials were explicitly designed to be responsive to public opinion.

These legacies from the revolutionary era--the commitment of the magistracy to the rigid application of the law code, together with jury trials whose verdicts were to be based on the flexible and contingent standards of jurors' own moral compass--still prevailed in the Third Republic, establishing the conditions for the dilemma outlined by Yvernes. A professional magistracy trained in syllogism and deductive reasoning, dedicated to the strict application of a set of rules enumerated in the legal codes, confronted a rising number of verdicts rendered by jurors whose conviction intime seemed to disregard not only the letter but the spirit of the law. It was difficult to justify the efficacy of jury trials when the people seemed to be doing such a bad job rendering justice.

Yvernes and his republican peers struggled with the inherent contradictions of jury trials, on the one hand applauding the role of the people in the judicial system, but on the other hand deploring the results of their lenient judgments. The jury trial was supposed to enact and instill the ideals of the new regime, reinforcing the idea of equality under the law, and the importance of citizens' participation in the business of the state. With the exception of a short-lived reform during the Commune, the system that obtained during the Third Republic was the most egalitarian standard yet applied to jury service. The Dufaure law of 21 November 1872 in principle extended eligibility for jury service to include any man over thirty who enjoyed full political and civil rights. However, as the century drew to a close, critics of jury trials focused on the increasingly high rates of acquittal for crimes against persons, especially crimes of passion. In a flurry of publications at the end of the nineteenth century, contemporary observers articulated a variety of explanations for this perplexing and distressing trend, suggesting that jurors were insufficiently educated to understand the law, that they were befuddled and intimidated by the dramatic trappings of the court, or even that they understood judicial proceedings but willfully chose to disregard the law. (11) The consequences of the jurors' apparent inability to render justice were grave, for it cast doubt on the cornerstone of republican justice, highlighting the precarious foundations of the Republic itself.

The problem was magnified by the extensive coverage of crimes of passion in the burgeoning popular press, which frequently published sensationalized accounts of gory murders and dramatic trials. (12) Many of these well-publicized cases were the kind popularly known as crimes of passion. A crime passionel was generally understood to be an act of violence between a man and a woman who were sexual or romantic partners, whether married or not--an act that today could be described as intimate violence. Stereotypically, such crimes were precipitated by abandonment or infidelity, and carried out in a fit of madness or overwhelming emotion. Crimes of passion were not defined as a separate legal category under French law, and so it is not possible to reconstruct precise statistics for the rate of acquittal in such cases, but it is certain that they were much higher than for other kinds of crimes. (13) The overall rate of acquittal for all cases tried in the assize courts during the Third Republic was around 28%, (14) but acquittal rates for crimes against persons were significantly higher than this average, and rose during the last decades of the nineteenth century. Women were even more likely to be acquitted than men. By contrast, the rate of acquittal in correctional court, where lesser crimes were tried by a panel of professional judges, was around 10%. The problem of acquittal thus was not merely a matter of perception on the part of anxious politicians and social critics, but was in fact statistically significant.

In seeking to explain the high rate of acquittal for crimes of passion, recent historians have not focused on the specific judicial context of fin-de-siecle jury trials, and yet closer attention to the judicial process can actually help illuminate the social and cultural problems these historians have addressed. Notably, Joelle Guillais has analyzed crimes of passion in terms of a contest between the normalizing, oppressive forces of the state, and the marginal, subversive culture of the lower-class people who committed the crimes. (15) Reproducing numerous letters and depositions from defendants, she reads their statements as evidence of an (ultimately futile) resistance to the control of the dominant classes. In her analysis, defendants and witnesses are on the losing end in court: "Their powerlessness is real; conscious of cultural differences, they attempt to adjust their language and their comportment to that of their judges." (16) They are literally at the mercy of cultural and discursive forms not of their own making, and only by successfully adopting those alien forms can they hope to escape conviction.

On the contrary, a more detailed analysis of the process of investigation and trial makes clear that crime stories recounted in the official indictment or even in press accounts depended on the knowledge of the witnesses in the case. Far from being forced by the agents of state power to conform to existing narrative structures, such as melodrama, witnesses had surprisingly wide latitude to tell their own stories. This is not to suggest that the people who testified in fin-de-siecle courts were immune to the influences of certain narrative conventions, but rather to emphasize that they crafted their own narratives within contexts that were not only discursive but social. Whether or not a murderous cuckolded husband could make his story conform to the expectations of a jury versed in the plots and characters of melodrama, his story could only appear credible to the jurors if it were reinforced by a chorus of witnesses who supported his claim about his relationship with his wife, his virtues as a husband, and her failures as a wife. Stories of crimes of passion were rendered "true" or compelling in court through reference to the social world out of which they grew. And that social world only became visible in court through specific procedures of the French criminal jury trial. (17)

Ann-Louise Shapiro has explored the ways that female criminals were implicated in fin-de-siecle discourses about criminality, insanity, bourgeois family norms, and politics. (18) In Breaking the Codes, Shapiro imparts a strong sense of the feelings of crisis and anxiety that pervaded the publications of many bourgeois social commentators during this era. However, though Shapiro aims "to discover how ordinary men and women interpreted and responded to this material," her analysis of the dynamics of assize court trials rarely ventures into the complexities of the case. Instead Shapiro focuses on the confrontation between the accused and the magistrates, disregarding the testimony of other witnesses. For instance, Shapiro describes the case of Marie Fournet, who was eventually acquitted of killing her former lover and wounding his wife, as "exemplary" of the impact that "the construct of Woman defined by love" had on stories told in court. (19) Shapiro limits herself to discussing two exchanges between Fournet and the investigating and presiding magistrates in her trial, together with an anonymous commentary from the pages of the Gazette des tribunaux. These few sources certainly support Shapiro's contention that Fournet sought to explain her crime in different terms than the jurists: Fournet insisted she was angry because her lover had dissipated her savings in a bad business deal, not only because he misled her about being married, while the magistrates insisted her disappointment in love must be her primary motivation.

However, Shapiro leaves the bulk of the evidence preserved in the trial dossier unexplored, including testimony from more than one dozen witnesses, numerous letters, and a long confrontation between Fournet and the surviving victim, her lover's wife. (20) In choosing to focus only on the confrontations between the accused and the agents of the professional judiciary, Shapiro misses a lot of detail that could add nuance to her analysis, for the other witnesses testified at length about the complicated relationships among Fournet, her lover, and his wife, and their interactions with other people in their neighborhood. Instead Shapiro finds dissonance and silences in court testimony, and she concludes: "Alternative meanings were literally expunged, preserving intact the woman-in-love." (21) Shapiro's interpretation is compelling as far as it concerns the creation of the official indictment articulated by the investigating magistrate. Yet in court there was not only a two-way opposition between the magistrates and the defendant--whether male or female. Rather, many witnesses told competing stories that may or may not have coincided with the official version. Is it possible to know if the jurors, too, chose to ignore the voluminous testimony from Fournet and other witnesses in court about her bad business deal with her lover and his frequent violence towards her and his wife? The fact that Fournet was acquitted of murdering her lover, but required to pay his widow five thousand francs in damages (exactly the price of the establishment Fournet and her lover had purchased together a year earlier) suggests that the court was not insensitive to the business conflict Fournet emphasized.

Ruth Harris also analyzes assize court defendants as the objects of normalizing discourses. In her book Murders and Madness, she studies crimes of passion through the lens of the professional discourses of law and psychology. (22) Harris contends that it was the medicalization of crime, and more specifically the diagnosis of sudden madness in crimes of passion, that led to such frequent acquittals. However, a brief analysis of a larger sample of cases suggests that Harris's explanation can only account for the outcome in a small number of trials involving crimes of passion. All told, only twenty-six of the defendants among the 251 in the present study underwent psychological evaluation (including all of the relevant cases studied by Harris). And of these, only nine--five men and four women--were deemed by the medical professionals to have any kind of mental disorder. Furthermore, juries were remarkably inconsistent in their response to the alienists' diagnoses. Of those nine deemed mentally ill by the doctors, and therefore potentially not responsible for their deeds, four were convicted by the juries. By the same token, ten defendants who were judged by the doctors to be sane and responsible for the violent deeds which they indisputably committed were nonetheless acquitted. This is persuasive evidence that the members of the jury were using standards other than those of the professional experts when they judged a case.

Indeed, as Harris's work illustrates, the medical professionals themselves were in the process of establishing standards for mental competence in this era. Here for example is the rather ambiguous diagnosis written by Auguste Voisin, a doctor at the Salpetriere, for Nicholas Magerus: "We think that at this moment Magerus presents no disturbance of his mind, no delirium that could push him to this criminal act, but that passionate motives of a jealous nature are the determining cause, at the same time as the abuse of alcoholic beverages of which he made use during the hours that preceded the crime. But, if the responsibility for the act can be diminished by this latter cause, the attenuation must be reduced to a small thing if one recalls that Magerus made use of an accomplice, [and] hid behind him to strike his wife more easily." (23) In Voisin's analysis, passion and jealousy were not signs of mental illness, and even the alcohol Magerus consumed did not significantly impair his rational capacity. Yet the jury surely did not share Voisin's logic, since they acquitted Magerus of stabbing his wife, while convicting him of stabbing one of her relatives who attempted to intervene in the conflict. Whatever his mental state may have been, the jury condoned only the violence against his wife. Jurors apparently believed that expressing emotions through violent behavior was legitimate in certain situations, so once again it is necessary to turn to the social context of those emotions and actions to understand why this was the case.

It is incontestable that the bourgeois jurists, journalists, and medical professionals who are the focus of Shapiro's and Harris's studies were alarmed by the disorder demonstrated in crimes of passion, and that those anxieties were deeply implicated in their theories about gender, madness, and criminal responsibility. However, it is another step entirely to say that the jurors shared the preoccupations of the professionals. If jurors were so concerned about female disorder, or so threatened by the specter of madmen murdering their family members, then why would they acquit so many authors of violent deeds? It is not enough to say that professional discourses seeped into jurors' consciousness and informed their decisions, when there is so little evidence that those discourses were articulated during the trials. To discover what actually motivated their decisions requires the historian to triangulate among different kinds of evidence, for jurors were (and are) forbidden by law to comment on their verdicts in any way beyond the "yes" or "no" they wrote on their ballots. We may assume along with Guillais and Shapiro that they read crime reports in the popular press along with melodramatic love stories. With Harris we may expect that many of them were aware of medical theories about criminal responsibility. Yet we must also consider carefully the primary sources of information in any trial: witnesses who talked about intimate violence because they had experienced it in their own lives. It is perfectly possible that jurors listened to the evidence presented to them during the trial itself, and made sense of it in a reasonable way.

Jurors came from a distinctive socioeconomic group that overlapped very little with the kinds of people who usually were defendants and witnesses. Despite the democratic spirit behind the Dufaure law expanding eligibility, in practice jurors came from a very limited group that was largely bourgeois. It is therefore not obvious that they would have been particularly sympathetic to the people on trial, who were primarily working class. While Article One of the Dufaure law affirmed the principle that any man over thirty who enjoyed political and civil rights could serve as a juror, the articles that followed limited the criteria for eligibility considerably. Among the excluded were convicts, the insane, the deaf, the blind, servants, and those illiterate in French. Article Five gave further dispensation to men "who need their daily manual labor to live." Effectively, this last dispensation meant an outright ban of working people from the lists of potential jurors. Since jurors were not remunerated for their services, except for the cost of traveling to court in the provinces, service by a man who depended on a daily wage truly would have been a hardship.

Indeed, the names of working men virtually never appeared on lists of potential jurors. This is because the process of selecting pools of potential jurors remained closely controlled by the magistracy, who compiled annual lists of eligible jurors in a two-step process. In the department of the Seine, the annual list included 3,000 potential jurors, though the population of Paris exceeded two million by the last decades of the nineteenth century. (24) Names of eligible jurors were drawn at random from an urn before each session of the assize court, and the presiding judge could also select replacements directly from the master list if too few citizens appeared for duty on the appointed day. Thus, from the initial principle of the Dufaure law that any man enjoying full rights could be a juror, the actual pool of jurors was reduced to a carefully limited group.

Proponents of the jury system in this era congratulated themselves on the class composition of jury lists. "Emanating from the people, the jury is the representation of the public conscience," wrote Andre Bougon, a barrister at the Paris appeals court, "it effects judgment by peers as much as is possible, because it is always taken from the middle class: small tradesmen, rentiers. Without doubt these men are of a social level superior to the accused. Not a lot, however. They live very near to this popular class where nine-tenths of the criminals are recruited, they know better the struggles, the sufferings, the compulsions, the excuses. There is a guarantee of the first order for the accused: being better understood, they are more impartially judged." (25)

Bougon was correct that juries were primarily middle-class, but his assertion that they were "near" the "popular class" on trial is rather overdrawn. A brief survey of jury lists drawn up for sessions of the Cour d'assises de la Seine throughout the fin-de-siecle reveals a preponderance of men from comfortable economic backgrounds. For example the jury list for the trial of Emile Michaud on 25 January 1875 included the following professions: property owner (9), rentier (3), bailiff, hardware vendor, manufacturer of wallpaper (2), vendor of fashion accessories, printer of fabric, professor at Louis le Grand, grocer, plumber, pharmacist, engineer, editor at the Ministry of Foreign Affairs. (26) Two decades later, the categories are much the same for the trial of Marie Claire Rochat, held on 6 January 1892. The list for her trial included these professions: architect (2), property owner (2), manufacturer of carbonated beverages, wholesale merchant (3), furniture maker, doctor or medical doctor (5), mining engineer, restaurateur, veterinarian, printer specializing in geography, clockmaker, retired army officer. (27) Overall, it is a mixture of businessmen, artisans, white collar employees, and members of the liberal professions, with only the occasional appearance of a man from a higher socioeconomic position.

By contrast, most of the defendants who appeared in the assize court were from decidedly lower strata. Although wages were not recorded in all trial dossiers, it is safe to say that the population represented in the assize court was largely comprised of economically average working people. Skilled male workers in Paris earned between seven and eight francs a day during the 1880s, while less skilled male workers earned around five francs per day. (28) Working women rarely earned more than two francs a day, and in feminine professions, it was often difficult to earn one franc per day. Male defendants included, for example, a man who hung wallpaper for forty to fifty francs a week; a jeweler who earned 200 francs a month; a furniture maker who earned seven francs a day; and an excavator who earned four and a half francs daily. (29) Among women, one earned three or four francs a week sewing pants; another was paid twenty sous a day for trimming hats; a milk carrier earned thirty-five francs a month; and a fish seller earned one franc a day. (30) Altogether, the defendants in the assize court were members of the economic majority: the working people of Paris, who owned little or no real property, and whose economic security was precarious at best. (31)

It is not self-evident that these two distinct socioeconomic groups--the people on trial and the people who judged them--would be in sympathy on issues like the use of violence in intimate relationships, or the boundaries of proper behavior for women and men, which were the focus of assize court trials for crimes of passion. In fact, the usual assumptions of social and cultural history suggest the contrary. The middle-class jurors would seem to be precisely the class that would be most interested in enforcing a strict application of the law and rigorous standards of personal conduct.

Trial dossiers have preserved much more direct evidence about the expectations and strategies of the people who testified than the people who judged them. To begin with, many of the people who appeared in the assize court were not strangers to the judicial apparatus of the state, and in fact had already sought assistance from the front-line agents of state control, the police. (32) In thirty-three cases in this study, couples who ultimately reached the assize court had previous interactions with the police in the course of their domestic disputes, usually at the invitation of one of the antagonists. People turned to the police for arbitration, protection, advice, and intervention in episodes of violence. The local commissaire de police, comparable to a precinct captain, was frequently used as an informal judge, though this was not an official function sanctioned by the state. In 1887 Eugenie Duchene testified that she went to the commissaire de police several times to tell him about her difficulties with her husband, and to discuss the proper means to obtain a judicial separation (separation de corps). (33) After several violent incidents, she declared, "I went to find the commissaire de police to tell him that I had resolved to pursue my separation and to ask him to show me what path to take.... In order to assure my security, I believed I should go back to the commissaire de police again, and beg him to call in my husband to make all useful reproofs." Her husband, however, refused to comply, and tried to force her to live with him again. In response, she said, "I answered him to go find the commissaire de police and that I would see then what I should do. He left saying that he did not need the commissaire de police, and that he would know how to do me in and others." Clearly, Madame Duchene had been cultivating the commissaire de police as an ally, one with useful information about how to navigate the legal system, and one whose protection could offer her physical safety from her husband. Her husband, however, rejected the authority of the commissaire. He did not need outside help to press his claims on his wife, for his strength came from the use of violence, rather than the cultivation of allies.

As the more frequent victims of violence, women also appeared to be more likely to nurture a relationship with the police than men were, as the case of the Duchene couple suggests. In this light, the police (and judiciary) appear as potential allies of the weaker against the stronger, continuing practices that have been well-documented for the eighteenth century. (34) People who went to the commissaire established a record of the violence they suffered, if not in the police ledgers than at least in the minds of the commissaire and his officers. For, if the violence became severe, it was the duty of the commissaire to instigate an official investigation. (35)

The commissaire reported serious incidents to the investigative branch of the police, the Surete. Agents from the Surete then conducted initial interviews with witnesses and sent a dossier of interview transcripts to the Paris Parquet, where a panel of judges would determine if a prosecutable felony had likely been committed, and if so, assign the case to an investigating magistrate, the juge d'instruction. The investigating magistrate had very broad powers to interrogate witnesses and the accused, gather physical evidence, and hire experts to evaluate the crime scene, the weapons, and the mental and physical conditions of the victim and the accused. It is extremely significant that given such broad freedom to investigate the case as he saw fit, the investigating magistrate virtually always focused his efforts on collecting testimony from non-expert witnesses. He always began his investigation by deposing the same people who had been interviewed by the agents from the Surete. These included not only eye-witnesses to the crime, if there were any, but also family members, neighbors, friends, co-workers, and employers of the victim and the accused. Their words, and occasionally the questions posed by the investigating magistrate as well, were recorded by a clerk in the magistrate's office. These documents were read and signed by the witnesses to confirm their veracity, and they were also read and signed by the accused, whose comments on them were sometimes recorded as well. (36) Out-of-town witnesses, such as relatives in the defendant's region of origin, gave their depositions to local police or magistrates, who mailed their statements to Paris. Altogether, these depositions comprise the bulk of the existing case dossiers.

To be sure, witnesses' depositions were strategically crafted to suit the rhetorical occasions of the investigation and trial. Their testimonies were strategic interventions to "fix" the meaning of a violent act, with the ultimate result that it would be judged criminal or legitimate. These accounts served very largely as the foundation for the official indictment (acte d'accusation) that the investigating magistrate prepared for the court, even to the extent that direct but unattributed quotes from witnesses' testimony sometimes appeared in them. (37) The acte d'accusation, in turn, was very frequently reproduced in the press accounts of trials, though without being identified as such. Any reader who had not heard the indictment read out loud in court would have no way of knowing that what he read in the newspaper was not composed by a journalist. (38) Thus, quite literally, local knowledge came to constitute official knowledge about the case.

The purpose of the acte d'accusation was to define the case for the state. Once the indictment was prepared, a panel of judges (in the chambre des mises en accusation) ruled on whether to direct the case to the assize court, where it would be tried as a felony, or to correctional court, where it would be tried as a lesser offense. (39) Assize court cases began with a reading of the acte d'accusation, immediately after court was convened and the jury was sworn in. (40) The presiding magistrate (president) then directed the witnesses to leave the courtroom until it was their turn to testify, so that they would not be influenced by each other's testimony. His next order of business was to interrogate the accused. The accused (and the witnesses) were permitted to make an uninterrupted initial statement before being questioned by the president, whose manner was usually accusatory and aggressive, strongly demonstrating his belief in the defendant's guilt. After the interrogation of the accused was complete, the witnesses were brought in one by one to testify. Following their testimony, they were not permitted to leave the courtroom again until the end of the trial, another rule designed to discourage collusion among the witnesses. They had to swear "to speak without hate or fear, to tell the whole truth, and nothing but the truth." After each deposition, the accused and the jurors were permitted to ask the witness questions through the presiding magistrate, though it appears that jurors did not intervene frequently.

Only after all the non-professional witnesses were deposed, the prosecution and the defense could introduce physical evidence or expert reports, as well as professionals to interpret them. These might include the doctor who performed the autopsy on a murder victim, psychologists who evaluated the mental capacity of the accused, a chemist if the case involved poisoning, an architect who drew a plan of the crime scene, or an expert arquebusier who testified about the use of firearms. At last came the closing arguments: the prosecution repeated the terms of the indictment, the defense lawyer pled for acquittal, the jurors and the accused were given one last chance to intervene, and the presiding magistrate declared the session closed. Until it was abolished in 1881, the presiding magistrate gave a final summary of the accusation and the defense before the jurors were sent to deliberate, but this step was eliminated in the interest of giving the defense the last word.

At this point the jury received its instructions from the president before they left to deliberate in a separate room. All decisions were to be made with written ballots, and with a simple majority of seven out of twelve voices. The questions the jury had to answer in their deliberations were not framed in terms of guilt or innocence, but rather as yes/no questions, such as: Did X commit murder on the person of his wife, Y? This statement does not invite a qualitative judgment about the legitimacy or culpability of the act, which makes the acquittal of defendants who confessed committing their crimes even more surprising. Jurors could not reveal the margin of their vote, nor the reasons for their choice. In the event of conviction, the prosecution, the defense, and the accused had one last chance to speak, and then the presiding magistrate, together with two other judges, decided on the sentence.

However, short of outright acquittal, jurors could choose on their own initiative to convict with extenuating circumstances (circonstances attenuantes), a limiting factor applicable to all crimes in the Code Penal (Article 463), thanks to a law promulgated on 28 June 1832. (41) They could not, however, offer any explanation about what the extenuating circumstances were, or to what extent they thought the punishment should be mitigated. Rather, extenuating circumstances signaled the judges who decided the sentence that they should not apply the full measure of punishment provided for by law. (42)

Contemporary criticism of jury verdicts focused on this moment of choice when the jurors decided their verdict. Since the average juror lacked a sense of the judicial process, argued a justice of the peace named Jules Levy in 1875, he was likely to make troubling acquittals that were "less like judgments than letters of pardon." He continued: "Certain assemblies, even while recognizing guilt, believe they must absolve. The accused admits the deed, but, it is said, he has already suffered preventative incarceration [before the trial]; another is guilty, it is recognized, but he is the only support of an honest family which a condemnation would reduce to misery and despair; a third is acquitted, because being young and ignorant of life, he succumbed in a moment of weakness or because the deed was not serious. One can do without other [examples]. But the jury does not have the right of pardon, it is a prerogative with which it is not invested." (43)

Levy's illustration of the incongruity of the objective requirements of the law and the subjective understanding of the jurors provides a fine illustration of the conflict at the heart of the controversy over acquittals in jury trials: the confrontation between the rule of law and the vagaries of human relationships. In Levy's examples, jurors were moved to leniency because they understood the situation of the foolish young man who had merely made a mistake he was unlikely to repeat, or of the man who needed to support his family. Or perhaps they felt that the man who had been in prison awaiting trial had received punishment enough already. Jurors thus supposedly based their decision on pity and sympathy for the defendant.

It may well be that jurors felt an affinity for the accused, but this is difficult to prove in the absence of direct evidence from jurors beyond their verdicts. However, other factors in the trial process itself could heavily influence jurors to disregard the rigidity of the law. In fact, jurors did not have to swear to uphold the law, but rather to consider the interests of the accused and of society as a whole, and to render their judgments according to their "conscience" and "inner conviction." (44) Thus it is perhaps a moot point whether jurors understood the law or not, since they were not explicitly required to adhere to it, underscoring once again their non-professional status as temporary judges.

Even more compelling is the nature of the evidence presented in assize court trials, how it was obtained, and the way in which it was presented in court. It was not simply at the point where the jury decided its verdict that the opposition between law and subjective judgment came into play; the opposition was inherent throughout the whole process. Contrasting the procedures of the assize court with Anglo-American traditions can help clarify this point. In American courts, where witnesses testify only through cross-examination by professional jurists, courtroom debate is quite largely shaped by the conventions of legal discourse. As some legal anthropologists have observed, testimony that does not speak directly to the requirements of the law seems irrelevant if not unintelligible in a courtroom. Witnesses who stray from the path directed by the lawyers' questions are immediately reprimanded by the judge, who instructs the jury to disregard the offending statement. Witnesses are not permitted to speculate, to offer their own interpretation of events, or to repeat hearsay. In short, they are not permitted to tell their own stories. (45)

The French assize court of the nineteenth century, in contrast, offered far more latitude to the people on the witness stand. While the presiding magistrate did have a dominant role in conducting the trial, he did not have the power to constrain witnesses' statements nearly to the extent that Anglo-American judges and lawyers do. (46) The ideal, as noted above, was for the witness to give his own account without any prompting. Since the transcript of the deposition did not often include the magistrate's questions, the effect was indeed of a seamless narrative recounted by one person, not of a statement delivered piecemeal through interrogation. Yet this was not merely an artifact of the recording secretary's style. By the time a witness took the stand in the assize court, he would have repeated his story several times: to the officers from the Surete, to the investigating magistrate in his office, and doubtless several times to his friends and family. In over forty cases in this sample where it has been possible to compare the three written records of a witness' statement (from the police, the investigating magistrate, and the trial itself) very little variation occurs among the different accounts. A witness did not change his account significantly as he repeated it in those different circumstances. And what he had to say, it must be emphasized, usually did not bear directly on the facts of the crime itself. Witnesses offered up rumor and hearsay, their own interpretations of events, perhaps even accounts that were not strictly truthful. Generally, their narrative strategy was inductive: they recounted anecdotes or made statements and assumed that the evidence they offered would speak for itself. If a witness testified that a woman used to have male visitors when her husband was away, for instance, the implication was that she was unfaithful, and therefore that if her husband beat her, it was excusable. The testimony that witnesses gave in court reenacted the kind of tale-telling, interpretation, and judgment that characterized neighborhood gossip. But to compare it to gossip is not to trivialize it, for the constant circulation of news spun the web of connections that defined the local community.

The 1881 case of Georges Charles Koenig illustrates this dynamic. (47) He was acquitted of attempted murder, though there was never any doubt he had stabbed his wife Marie Antoinette Tholomier, rendering her incapable of work for over three weeks. The dossier for his case includes depositions and reports from over two dozen witnesses in Paris, and another eight from the town of Besancon, where the couple had formerly resided. Georges was a former army officer and worked as a patrolman (gardien de la paix) in Lyon, Besancon, and Paris. Perhaps because of his profession, he proved himself to be particularly savvy about the judicial process and the expected outcome of his trial. He wrote a letter to his brother Louis in Besancon encouraging him to come to Paris to be entertained during his trial: "since you have wanted to see Paris for a long time, please come without fail to my trial, you'll make me happy, and at the very least we can tour the city, since I'll have several days to myself." He also wrote a letter to his wife's parents bragging that he was sure to be acquitted.

Georges's former supervisors in Besancon described him as hot-tempered and pretentious, and noted that his wife had been the subject of reports by the local vice squad. Marie's behavior was so notorious, one officer reported, that people would yell at her in the streets. Georges's brother and father testified that they had urged him not to marry Marie, given her loose reputation, and even her own mother admitted that Marie had had at least one lover before her marriage. After a stint in a convent to be treated for venereal disease, Marie joined her husband in Paris and continued her scandalous behavior. One concierge reported that she often chatted with men in a very familiar manner, and once was caught in bed with another resident of the building. When the concierge reproached her for her behavior, sarcastically telling her to take care to lock the door when she slept with other tenants, Marie calmly replied, "Very well, madam," refusing to demonstrate the shame or anger the concierge expected. The wife's sexual misconduct was therefore well-known in two cities where the couple had lived, and the husband had been aware of it for quite some time.

However, some witnesses suggested that he was partly to blame for his wife's poor behavior. "This child has a light character but she isn't mean," Marie's mother testified, and "leading her with gentleness" would have improved her behavior. One of Georges's coworkers in Paris agreed that he was accountable for his wife's misconduct: "I urged him to be gentle, and to look after his wife in order to avoid a scandal; and since he told me that he took her to a low-class ball to entertain her, I made the observation that this was imprudent on his part." Georges's status as a man depended in part on his wife's fidelity, which he was responsible for enforcing.

What spurred the attack for which he stood trial, however, was not specifically her infidelity, but rather what seemed a credible threat on her part to seek a legal separation. He had caught her talking with one of her alleged lovers and dragged her off to the police station; the following day she sought information about filing for separation. Although he seemed to support the idea at first, actually giving her twenty francs to rent a room of her own, he later got in an argument with her and stabbed her when she called him lazy and cowardly (faineant, lache). "So it was to revenge yourself for an insult and not to punish her infidelities that you struck her?" inquired the investigating magistrate during one of Georges's interrogations. "Everything was muddled together in my mind; once the insults were said, everything else came back to my memory," he replied. In some ways, Georges fit the stereotype of the outraged husband who commits a crime of passion against his faithless wife. But the details that emerged from the witnesses' testimony indicate that he had tolerated her infidelities for years, and he did not actually attack her in a fit of sudden, overwhelming emotion.

If he had been less than perfectly masterful as a husband, he at least was certain that her wrongs outweighed his. "Can you make a single reproach against me?" he demanded during a confrontation with his wife in the presence of the investigating magistrate. "Was I drunk? Did I behave badly? Did I run after women? Didn't I do every little thing for you? Didn't I take care of the household, wash your laundry along with mine, spare you anything that could tire you? Speak? Do you have anything to say against me?" His wife answered, "You have always behaved well, I can't say the contrary, but sometimes you beat me, notably when we were at Montbeliard." He replied, "You have the audacity to recall what happened at Montbeliard, I would have liked to have hidden it, I knew that you were seeing soldiers, I hit you, it was my right, it was my duty." Here the transcript of the confrontation ends, so it is impossible to know how the investigating magistrate or Marie reacted to his claims. Georges's assertion that he did housework, sparing his wife such traditionally feminine chores as doing laundry, seemed to offer evidence of his exceptional devotion or even indulgence towards her. And yet this was balanced with what he saw as his masculine entitlement to use force to punish her infidelity. (48) In his assessment, and that of the other witnesses in the case, his shortcomings as a husband were minor compared to hers as a wife.

"I acted in a moment of very legitimate fury," Georges insisted during his first interrogation. The history of his marriage and the circumstances that precipitated his attack legitimated, or indeed produced, the strong emotions that he felt during the attack. As his neighbors, family, and coworkers attested during his trial, Georges's use of violence was part of a long pattern of offense and retaliation in his relationship with his wife, not the sudden madness of a stereotypical crime of passion. It was the social context of his act that made his rage and his violence permissible, resulting in his acquittal.

Thus the process of judgment that took place among community members was transferred into the assize court, fostered by the official procedures of the criminal investigation and trial. The investigating magistrate invited witnesses to tell their stories, casting his net widely to include people connected to the accused through work, family, and neighborhood ties. Jurors thus heard a barrage of information that had little import on the fact of the crime, but instead illustrated community systems of mutual obligation between men and women, family members, coworkers, and neighbors. Although the trial was framed by the intervention of the presiding magistrate and the prosecution, who invariably argued loudly for guilt, jurors frequently concurred with the testimony of the witnesses, who said that acts of violence were understandable, excusable, or even deserved.

The justice enacted in assize court trials was not therefore the utilitarian justice of the state, applied equally to all defendants for the good of society, but rather a popular system of retributive justice. Retribution is fundamentally an equation of inflicting harm commensurate with harm: the victim has merited the violence through his prior offenses, and the attacker is entitled to administer the violence precisely because he was the offended party. By contrast, the utilitarian approach to justice casts the crime as an offense against the state. Punishment, then, aimed to protect the state from future offenses by rehabilitating the criminal. In principle, at least, the public vengeance of trial and punishment was meant to take the place of private vengeance that individuals might pursue on their own, whether through the ritual violence of a duel or more spontaneous attacks.

Nonetheless, the verdicts in crimes of passion suggest that the state was not very effective in replacing private vengeance with public justice. Where the use of violence was judged legitimate by the local community and acquitted by the jury, the principle of retributive justice took precedence over the utilitarian model. It was not obvious that crimes of passion were offenses against the state, or offenses that could be remedied through penitentiary punishment. Although the state certainly had an interest in maintaining order and harmony within families, the violence of crimes of passion could be understood to have resolved the need for punishment before state justice could intervene. The abandoned wife or the cuckolded husband struck against the faithless partner who had previously harmed her or him, and thus closed the circle of offense and punishment. In such cases, jurors were faced with an ethical dilemma that pitted the strict application of the law against the utility of potential punishment. On the one hand, the law dictated that anyone who committed certain acts of violence must be punished in prescribed ways. But on the other hand, punishment could seem unnecessary because the attacker posed no further danger to society (having harmed his only likely victim) and was not in fact criminal or deviant (having acted in a way consistent with ordinary standards of behavior). If it was not necessary to reform the attacker through penal discipline, then it was not necessary to convict him. An acquittal in the assize court indicated that justice had already been served through the attacker's own violence.

Fin-de-siecle jurists and legislators worried that jury trials were escaping the rule of law, and they were correct, though perhaps for more profound reasons than they had imagined. The problem went deeper than the incompetence of jurors or the undue harshness of the punishments prescribed by the penal code. Rather, by privileging witnesses' accounts and the implicit standards they contained, the process of criminal prosecution undermined the possibility of a straightforward application of the law. The lower-class people on trial were not colonized by bourgeois norms of propriety, nor silenced by the strictures of legal discourse, nor erased by the administrative requirements of the justice system. The process was not one where power and control flowed from the top down, from the representatives of state justice to individuals and their local communities. Instead, the flow of power was much more complex, and one system of justice was grafted onto the other.

Controversial acquittals in jury trials remained a problem for the French judicial system into the first decades of the twentieth century. (49) A 1908 law permitted the presiding magistrate to enter the chamber where the jurors deliberated in order to instruct them on the laws relevant to their decisions. Yet acquittals still remained high. Then a new law in 1932 enabled the jury to decide punishment, deliberating together with the three magistrates of the assize court after deciding alone on the question of guilt. In 1938, a project for reforming the Code of Criminal Instruction proposed instituting echivenage, where the jurors (as temporary judges, or echevins) would deliberate together with the court on both the verdict and the sentence. This proposal was put into effect with a decree of 25 November 1941, and was ensconced in the revised Code of 1959. Although the impulse to limit the jury's power certainly meshed well with the agenda of the Vichy regime, legal scholars are unanimous in insisting that echevinage was not a product of the authoritarian regime, but rather the result of an organic evolution of the French judicial system. (50) Moreover it is a feature of other modern European judicial systems. Nonetheless, echevinage finally brought the jury under the control of the professional magistrates, and acquittals fell to only 8% after it was instituted in 1941. (51)

The extent to which this change in judicial procedure in the mid-twentieth century might have been accompanied by a shift in popular conceptions of justice and the legitimacy of intimate violence remains a subject for future study. However, the high rate of acquittal in cases of crimes of passion at the end of the nineteenth century indicates that instead of punishing private violence, the judicial apparatus was made to condone it, even in the heart of the family unit. With the unintended cooperation of the state, the use of violence in domestic conflicts between men and women was perpetuated.

This interpretation has important implications for understanding the history of intimate violence. Notably, trends in practices and attitudes concerning intimate violence do not correspond directly with trends in more public kinds of violence. Norbert Elias's classic account of the state monopolization of violence is almost exclusively concerned with public expressions of violence, such as duels, feuds, brawls, and vendettas, that primarily occurred among men. (52) It seems clear that modern states only began to try to control intimate violence (which is primarily but not exclusively directed against women and children) in the nineteenth century, and then only in response to pressure from reformers interested in promoting women's rights and child welfare. (53) An earlier generation of historians suggested that the growing intensity of emotional ties within modern families made them less tolerant of violence among their members, especially among the bourgeoisie. (54) Others have argued on the contrary that it was precisely the growing intensity of emotional relationships that accounts for an increase in family violence in the modern era. (55) Still, any attempt to uncover the actual incidence of intimate violence, even spousal murder, is inevitably limited by all the flaws of historical statistics on crime. (56) Not only did present-day categories of "domestic violence" or "child abuse" not exist in the past, but even the unofficial category of "crimes of passion" was not systematically quantified.

Yet even if the frequency or severity of intimate violence cannot be quantified with precision, it is possible to learn a great deal about popular attitudes towards practices of intimate violence from existing sources. Many scholars have constructed a very persuasive picture of the fin-de-siecle preoccupation with crimes of passion and the disorder that they signified, documenting how journalists filled the pages of popular newspapers with crime stories, legal and medical professionals deployed all their skills to explain the causes of crime, and bourgeois observers decried their effects on the security of the family. And yet, along with this very high tide of anxiety during the fin-de-siecle, (middle-class) jurors acquitted (working-class) defendants of attacking their lovers and spouses, after listening to copious testimony in court about whether or not their use of violence was legitimate in the eyes of their community members. It is possible that the jurors, defendants, and witnesses also were concerned about the social disorder of which crimes of passion were a symptom. But it is also possible that they considered the retributive use of violence to be a legitimate way of reestablishing order. It is significant that women were acquitted more frequently than men, even if they were by far in the minority as defendants. Acquittals for crimes of passion cannot accurately be read only as a crackdown on female disorder, whether as subversive appropriators of masculine privilege, or as victims worthy of punishment by male attackers. Juries condoned violence by and against both men and women. This is evidence of a relatively permissive attitude towards intimate violence, which was not condoned by law. If French law had been applied strictly in these cases, as fin-de-siecle jurists desired, violence between domestic partners almost certainly would have been judged as harshly as any other kind of violence. It is only the flexibility of the French criminal jury trial, with its inherent responsiveness to public opinion, that makes popular attitudes about the use of violence in intimate relationships visible in this era.

Department of History

Albuquerque, NM 87131-1181

ENDNOTES

The author would like to thank Ronald Schechter, Bell Tuten, and the anonymous reviewers at the Journal of Social History for their comments on an earlier draft of this paper. Many thanks are also due to Claudia Koonz, William M. Reddy, and Donald M. Reid for their continual support and encouragement.

1. Emile Yvernes, Le Crime et le criminel devant le jury (Paris, 1894), 14. All translations are by the author unless noted otherwise.

2. Yvernes, 21.

3. Ibid.

4. Archives de la Ville de Paris, series D2U8, cartons 12 through 295.

5. Whether systems of law are better understood as rules or processes is not a new debate for anthropologists, but it remains a fruitful one for historians. See for example: John L. Comaroff and Simon Roberts, Rules and Processes: The Cultural Logic of Dispute in an African Context (Chicago and London, 1990); Clifford Geertz, "Local Knowledge: Fact and Law in Comparative Perspective," Chapter 8 in Local Knowledge: Further Essays in Interpretive Anthropology (New York, 1983), pp. 167-234.

6. Pierre Bourdieu, Outline of a Theory of Practice, trans. Richard Nice (Cambridge, 1977).

7. On the creation of the modern criminal justice system in France, see Gordon Wright, Between the Guillotine and Liberty: Two Centuries of the Crime Problem in France (New York and Oxford, 1983); Robert A. Nye, Crime, Madness, and Politics in Modern France: The Medical Concept of National Decline (Princeton, 1984); Patricia O'Brien, The Promise of Punishment: Prisons in Nineteenth-Century France (Princeton, NJ, 1982); Michel Foucault, Discipline and Punish: The Birth of the Prison trans. Alan Sheridan (New York, 1995).

8. Article 10 reads: "Les tribunaux ne pourront prendre directement ou indirectement aucune part a l'exercise du pouvoir legislative, ni empecher ou suspendre l'execution des decrets du Corps legislatif [sanctionnes par le Roi], a peine de forfaiture. (Courts are not, on pain of 'forfaiture', permitted to take part, directly or indirectly, in the exercise of the legislative power, nor can they prevent or adjourn the execution of any decree issued by the legislature.") Cited in Eva Steiner, French Legal Method (Oxford, 2002), 77. The principle is even more directly stated in Article 5 of the present Civil Code: "Il est defendu aux juges de prononcer par voie de disposition generate et reglementaire sur les causes qui leur sont soumises. (Judges are not permitted to adjudicate by means of general and statutory rulings in the cases brought before them.)" Ibid., 78.

9. Jurors had to affirm the following oath at the beginning of an assize court trial: "You swear and promise, before God and man, to examine with the most scrupulous attention the charges brought against [the accused]; to betray neither the interests of the accused, nor those of the society that accuses him; to communicate with nobody until after your verdict; to heed neither hate nor meanness, neither fear nor affection; following your conscience and your inner conviction, with the impartiality and the firmness that are appropriate to a free and honest man." Cited in Jean Cruppi, La Cour d'assises (Paris, 1898), 71. This oath emphasized the importance of the jurors' individual judgment, and their dual responsibility to the accused and to society as a whole--not adherence to the law.

10. Laura Ann Mason, "The 'Bosom of Proof': Criminal Justice and the Renewal of Oral Culture during the French Revolution," Journal of Modern History 76 (March 2004): 29-61, 35. This legacy accounts for the fact that the French judicial system still does not create its own transcripts of exactly what is done and said in jury trials. The "process verbal" only records the laws and procedures that were followed during the course of the trial. Verbatim transcripts for fin-de-siecle trials are only to be found in the popular press or semi-professional publications such as the Gazette des tribunaux.

11. Andre Bougon, De la Participation du jury a l'application de la peine (Paris, 1900); M. Charmeil, De l'Institution du jure en france; de ses origins, de son fonctionnement en matiere criminelle et de son extension en diverses matieres (Grenoble, 1885); Henri Coulon, Une Reforme necessaire: Le jury correctionnel, projet de loi 2nd ed. (Paris, 1900); Raoul de la Grassiere, Des Origines, de l'evolution et de l'avenir du jury (Paris, 1897); Felix Grelot, Loi du 21 novembre sur le jury votee par l'Assemblee Nationale, commmentee et annotee (Paris, 1872); Adolphe Guillot, Le Jury et les meours (Paris, 1885), Corentin Guyho, Les Jures, "maitres de la peine" (Paris, 1908). For a review of professional jurists' positions, see James F. Donovan, "Magistrates and Juries in France, 1791-1952" Journal of French Historical Studies 22 (Summer 1999): 379-420.

12. On the depiction of crimes of passion in the popular press, see Dominique Kalifa, L'Encre et le sang: Recits de crimes et societe a la Belle Epoque (Paris, 1995) and Anne-Louise Shapiro, Breaking the Codes: Female Criminality in Fin-de-Siecle Paris (Stanford, 1996).

13. While some historians have suggested specific numbers, it seems clear that they must be treated as very rough estimates, since the sources of such numbers are uncertain. This author found no defendants who described their deeds as crimes passionnels in interrogations, court proceedings, or press accounts. By comparing evidence from surviving trial dossiers with categories in the Compte general de l'administation de la justice criminelle en France that list adultery or jealously as motives for crimes of murder (on which scholars might perhaps hope to rely, except that it is impossible to know how the statistician determined motives) it becomes clear that those numbers, too, cannot supply a reliable index.

14. Benjamin F. Martin, Crime and Criminal Justice Under the Third Republic: The Shame of Marianne (Baton Rouge, 1990), 4. Martin bases his analysis on the annual volumes of the Comte general de l'administration de la justice criminelle, which this author has verified.

15. Joelle Guillais, La Chair de l'autre: le crime passionel au XIXe siecle (Paris, 1986).

16. Ibid., 320.

17. This line of criticism is stated even more forcefully by Sherry Ortner in another context: "Studies of the ways in which some sort of 'texts'--media productions, literary creations, medical writings, religious discourses, and so on--'constructs' categories, identities, or subject positions, are incomplete and misleading unless they ask to what degree those texts successfully impose themselves on real people (and which people) in real times. Similarly, studies of the ways in which people resist, negotiate, or appropriate some feature of their world are also inadequate and misleading without careful analysis of the cultural meanings and structural arrangements that construct and constrain their 'agency,' and that limit the transformative potential of all such intentionalized activity." Sherry Ortner, "Making Gender: Toward a Feminist, Minority, Postcolonial, Subaltern, Etc., Theory of Practice," in Making Gender: The Politics and Erotics of Culture (Boston, 1996), 2.

18. Anne-Louise Shapiro, Breaking the Codes: Female Criminality in Fin-de-Siecle Paris (Stanford, 1996).

19. Shapiro, 150-151.

20. AVP, D2U8/207 Fournet 6 October 1886.

21. Shapiro, 151.

22. Ruth Harris, Murders and Madness: Medicine, Law, and Society in the Fin-de-Siecle (Oxford, 1989).

23. AVP, D2U8/94 Magerus 10 February 1880.

24. Bernard Marchand, Paris, histoire d'une ville, XIXe-XXe siecle (Paris, 1993), 162. In other departments the number of potential jurors ranged between 400 and 600, depending on the size of the population.

25. Andre Bougon, De la Participation du jury a l'application de la peine (Paris, 1900), 5.

26. AVP, D2U8/35 Michaud 25 January 1875.

27. AVP, D2U8/Rochat 6 January 1892.

28. Christophe Charle, Histoire sociale de la France au XIXe siecle. (Paris, 1991), 292.

29. AVP, D2U8/61 Kemps 14 June 1877; AVP, D2U8/38 Lelong 9 July 1875; AVP, D2U8/219 Beulle 21 April 1887; AVP, D2U8/271 Verhoost 14 March 1891.

30. AVP, D2U8/61 Kemps 14 June 1877; AVP, D2U8/144 Perrin 30 March 1883; AVP, D2U8/272 Boudet 2 March 1891; AVP, D2U8/239 Dabon 13 June 1888.

31. Leonard R. Berlanstien, The Working People of Paris, 1871-1914 (Baltimore, 1984).

32. More details on the organization of the police force may be found in Benjamin F. Martin, Crime and Criminal Justice in the Third Republic: The Shame of Marianne (Baton Rouge, 1990).

33. AVP, D2U8/219 Duchene 21 May 1887. On the history of legal separation, see Roderick Phillips, Putting Asunder: A History of Divorce in Western Society (Cambridge, 1988); William M. Reddy, "Marriage, Honor, and the Public Sphere in Postrevolutionary France: Separations de Corps, 1815-1848," Journal of Modern History 65 (September 1993): 437-472.

34. Arlette Farge, La Vie fragile: Violence, pouvoirs, et solidarites a Paris au XVIIIe siecle (Paris, 1986), 56; Alan Williams, "Patterns of Conflict in Eighteenth-Century Parisian Families," Journal of Family History 18 (1993): 39-52.

35. The testimony of the police could also be helpful in civil actions for divorce or legal separation. Seventeen couples in this study pursued legal separation or divorce before a violent attack brought them under the purview of the criminal justice system. In this sense, civil action and violence were not mutually exclusive options for resolving domestic conflicts.

36. The vast majority of the witnesses and defendants in this study were able to read and to sign legibly, attesting to the effectiveness of the French national education system.

37. One example appears in the acte d'accusation for the trial of Marie Gadel, who was acquitted of assault in the stabbing death of her husband (D2U8/268 Gadel 17 January 1891). Part of the indictment reads: "L'accusee, toujours ivre, ne manifesta alors qu'une seule preoccupation, celle de se debarasser le plus rapidement possible du cadavre de sa victime, ajoutant, 'je ne veux pas le faire enterer; il m'a mange trop d'argent. Il m'a mise sur la paille!' (The accused, still drunk, evinced only one preoccupation, to get rid of her victim's cadaver as quickly as possible, adding, 'I don't want to have him buried; he squandered too much of my money. He made me broke!')" Though unattributed in the indictment, the quotation is from a deposition given six days after the crime by a wineseller who was the couple's neighbor, recounting what she had said to him when the victim died.

38. For example, Le Petit Parisien of 12 October 1877 reproduced much of the acte d'accusation from the case of Louis Barbot (D2U8/60 Barbot 11 October 1877) who would be convicted of murdering his wife: "L'accuse ne pouvait entrer dans une famille plus honorable, de l'aveu de tous ceux qui la connaissait. Au dire des temoins, la jeune femme etait d'une reputation intacte. Deporvue d'instruction et d'une intelligence mediocre, elle avait un caractere doux jusqu'a la timidite, et elle etait incapable de resister a la menace. (The accused could not have joined a more honorable family, as all those who knew [his wife's family] swore. According to the witnesses, the young woman had a spotless reputation. Completely lacking education, and of mediocre intelligence, she had a character that was docile to the point of timidity and she was incapable of resisting threats.)"

39. The process of diverting cases to the lower court was known as correctionalisation. It could only be done with the consent of the crime victim. In correctional court, cases were tried by a panel of judges, and the acquittal rate was consequently much lower: less than 10% in this era, according to Benjamin Martin (op.cit., 4). James Donovan has explained that the practice of correctionalisation was an explicit strategy employed by magistrates to reduce the power of juries and increase their own professional authority, an analysis is in line with recent French legal scholarship. See James M. Donovan, "Magistrates and Juries in France, 1791-1952," French Historical Studies 22:3 (1999): 379-420. See also Francoise Lombard, Revue juridique Themis 32:1 (Spring 1998): 773-797. (Reprint from Revue de science criminelle (4) oct-dec. 1995). She writes, "L'histoire du jury est, en effet, pour large partie l'histoire de la lente reconquete par les magistrats de la maitrise de leur espace professionnel en matiere de justice criminelle, espace confisque en 1791 par l'Assemble constituante" (775).

40. Even more detailed summaries of court procedures can be found in Jean Cruppi, La Cour d'assises (Paris, 1898); and A. Surraud, Code de la Cour d'assises, avec jurisprudence et formulas (Poitiers and Paris, 1891).

41. An earlier law (25 June 1824) provided that the court should decide on extenuating circumstances before deciding the punishment. Permitting the jury to find extenuating circumstances was widely perceived as an incentive for the jurors to find more defendants guilty. Jurors could not choose to find the defendant guilty of a lesser offense on their own initiative. Only the presiding magistrate could raise new charges against the defendant.

42. Under this system, a person who committed murder, for example, would receive the prescribed punishment for that crime, which in the nineteenth century meant the guillotine or forced labor. Articles 321-326 of the Penal Code provided for limited exceptions to this rule. Murder was excused, but not absolved, in cases where the murder was provoked by serious violence towards the killer; where the victim was breaking into an inhabited house; where a husband or wife killed his or her spouse when his or her own life was in danger; and where a husband killed his wife or her lover if he surprised them en flagrant delit in the conjugal abode. However, the "excuse" was only meant to entail a reduction in the sentence, not an outright acquittal. The law certainly did not provide for outright acquittal of anyone who confessed to committing the deed of which he was accused, as did virtually all defendants in "crimes of passion."

43. Jules Levy, Le Jury en matiere criminelle: Origine de son institution, son histoire et son orgainization ancienne et actuelle (Paris, 1875), 19-20.

44. At the beginning of the trial, jurors responded individually to the following oath: "You swear and promise, before God and man, to examine with the most scrupulous attention the charges brought against [the accused]; to betray neither the interests of the accused, nor those of the society that accuses him; to communicate with nobody until after your verdict; to heed neither hate nor meanness, neither fear nor affection; to render your decision according to the charges and the means of defense, following your conscience and your inner conviction, with the impartiality and the firmness that belong to a free and honest man." Jean Cruppi, La Cour d'assises (Paris, 1898), 71.

45. John M. Conley and William M. O'Barr, Rules versus Relationships: The Ethnography of Legal Discourse (Chicago and London, 1990).

46. It was during the late eighteenth century that the process of "lawyerization" and the silencing of the accused came about in British courts. See John H. Langbien, The Origins of Adversary Criminal Trial (Oxford, 2003) and Martin J. Weiner, "Judges v. Jurors: Courtroom Tensions in Murder Tirals and the Law of Criminal Responsibility in Nineteenth-Century England," Law and History Review 17:3 (Autumn, 1999): 467-506. French jury trials, though largely based on an eighteenth-century British model, did not follow this evolution.

47. AVP, D2U8/114 Koenig 8 March 1881.

48. For a more detailed analysis of the conditions for the legitimate uses of violence in intimate relationships in this milieu, see Eliza E. Ferguson, "Reciprocity and Retribution: Negotiating Gender and Power in Fin-de-Siecle Paris," Journal of Family History 30:3 (July 2005): 287-303.

49. For details on the evolution of the assize court, see Jean Pradel, "Les Meandres de la Cour d'assises francaise de 1791 a nos jours," Revue juridique Themis 32 (1997): 135-153.

50. Francoise Lombard, "'Les Citoyens-juges:' La Reforme de la cour d'assises ou les limites de la souverainete populaire," Revue de science criminelle et de droit penal compare 4 (1996): 773-797.

51. Pradel, 135.

52. Norbert Elias, The History of Manners, vol. I, The Civilizing Process, trans. Edmond Jephcott (New York, 1978).

53. In Great Britain, the problem of intimate violence was explicitly linked to women's rights by early feminists such as Mary Wollstonecraft, Harriet Taylor Mill, and John Stuart Mill. This connection was amplified in the late nineteenth century by Francis Power Cobbe, who in turn influenced American reformers such as Lucy Stone. See Elizabeth Pleck, Domestic Tyranny: The Making of American Social Policy Against Family Violence from Colonial Times to the Present (New York and Oxford, 1987). Whatever influence these Anglo-American feminists may have had on their French counterparts regarding this issue remains elusive. By contrast, historians are well aware of the movement against corporal punishment of children in France. See Jean-Claude Caron, A l'Ecole de la violence: Chatiments et sevices dans l'institution scolaire au XIXe siecle (Paris, 1999).

54. Eugen Weber proposed that lower-class families were colonized by the peaceful ways of the bourgeoisie in Peasants into Frenchmen: The Modernization of Rural France, 1870-1914 (Stanford, 1976). Nancy Tomes also assumed that lower-class families imitated the less violent strategies of their social superiors: "'A Torrent of Abuse:' Crimes of Violence Between Working-Class Men and Women in London, 1840-1875," Journal of Social History 11 (1978): 329-45.

55. This has been a hotly debated topic for historians of crime in England. See J.A. Sharpe, "The History of Violence in England: Some Observations," Past and Present 108 (August 1985): 206-215; Lawrence Stone, "The History of Violence in England: Some Observations: A Rejoinder," Past and Present 108 (August 1985): 216-224; Lawrence Stone, "Interpersonal Violence in English Society 1300-1980," Past and Present 101 (November 1983): 22-23. One regional study offers evidence of a striking increase of family murders as a proportion of all murders in nineteenth-century France. See Anne Parrella, "Industrialization and Murder: Northern France, 1815-1904" Journal of Interdisciplinary History 22:4 (Spring 1992): 627-654.

56. See for example, J.S. Cockburn, "Patterns of Violence in English Society: Homicide in Kent, 1560-1985" Past and Present 130 (February 1991): 70-106.

By Eliza Earle Ferguson

University of New Mexico
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Title Annotation:SECTION I SEXUALITY AND GENDER
Author:Ferguson, Eliza Earle
Publication:Journal of Social History
Geographic Code:4EUFR
Date:Dec 22, 2006
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