le, and Berne.
The legal principle that the State ought to indemnify material and
moral injury inflicted by its functionaries, through malice or
negligence, on a citizen who has done nothing to subject himself
to prosecution or condemnation, cannot be seriously contested.
But the whole difficulty is reduced to deciding in what cases the
right to indemnification ought to be recognised, and then
to providing a fund out of which the State can discharge this
duty.
For the latter purpose it would be necessary to include an
adequate sum in the Budget. This was done in Bavaria, in 1888, by
setting apart 5,000 marks annually; and the first who profited by
this provision received a pension of 300 marks per annum, after
being rendered incapable of work by seven years' imprisonment for
a crime which he had not committed. But if the policy of
retrenchment imposed on the European States by their insane
military expenditure and their chronic wars prevents the carrying
out of this proposal, there is the Italian precedent of the
Treasury of Fines, which, with the fines inflicted, or which ought
to be inflicted on convicted persons, and the product of prison
labour, would provide the necessary amount for the indemnities
which the State ought to pay to innocent persons who have been
condemned or prosecuted, as well as to the victims of offences.
As for the cases in which a right to indemnification for judicial
errors ought to be acknowledged, it seems to me evident in the
first place that we must include those of convicted persons found
to be innocent on a revision of the sentence. Amongst persons
wrongfully prosecuted, I think an indemnity is due to those who
have been acquitted because their action was neither a crime nor
an offence, or because they had no part in the action (whence also
follows the necessity of verdicts of Not Proven, so as to
distinguish cases of acquittal on the ground of proved
innocence)--always provided that the prosecuted persons have not
given a reasonable pretext for their trial by their
own
conduct, or their previous relapse, or their habitual criminality.
The third proposition of the positive school in regard to
individual guarantees, which was also advanced by M. Puglia, is
connected with reform of the penal code, and especially with the
more effectual indemnification of the victims of crime. The
object is to prune the long and constantly increasing list of
crimes, offences, and contraventions of all acts which result in
slight injury, committed by occasional offenders, or ``pseudo-
criminals''--that is, by normal persons acting merely with
negligence or imprudence.
In these cases the personal and social injury is not caused
maliciously, and the agent is not dangerous, so that imprisonment
is more than ever inappropriate, unjust, and even dangerous in its
consequences. Deeds of this kind ought to be eliminated from the
penal code, and to be regarded merely as civil offences, as
__*simple__ theft was by the Romans; for a strict indemnification
will be for the authors of these deeds a more effectual and at the
same time a less demoralising and dangerous vindication of the law
than the grotesque condemnation to a few days or weeks in prison.
It will be understood that the classical theory of absolute
and eternal justice cannot concern itself with these trifles,
which, nevertheless, constitute two-thirds of our daily social and
judicial existence; for, according to this theory, there is always
an offence to be visited with a proportionate punishment, just as
with a murder, or a highway robbery, or a slanderous word.
But for the positive school, which realises the actual and
practical conditions of social and punitive justice, there is on
the other hand an evident need of relieving the codes, tribunals,
and prisons from these microbes of the criminal world, by
excluding all punishments by imprisonment for what Venturi and
Turati happily describe as the atomic particles of crime, and by
relaxing in some degree that monstrous network of prohibitions and
punishments which is so inflexible for petty transgressors and
offenders, but so elastic for serious evil-doers.
II.
The reforms which we propose in punitive law are based on the
fundamental principle already established on the data of
anthropology and criminal statistics.
If the ethical idea of punishment as a retribution for crime
be excluded from the repressive function of society, and if we
regard this function simply as a defensive power acting through
law, penal justice can no longer be squared with a minute
computation of the moral responsibility or culpability of the
criminal. It can have no other end than to prove, first, that the
person under trial is the author of the crime, and, then, to which
type of criminals he belongs, and, as a consequence, what degree
of anti-social depravity and re-adaptability is indicated by his
physical and mental qualities.
The first and fundamental inquiry in every criminal
trial
will always be the verification of the crime and the
identification of the criminal.
But when the connection of the accused and the crime is once
established, either the accused produces evidence of his honesty,
or of the uprightness of his motives--the only case in which his
acquittal can be demanded or taken into consideration--or else it
is proved that his motives were anti-social and unlawful, and then
there is no place for those grotesque and often insincere contests
between the prosecution and the defence to prevent or to secure an
acquittal, which will be impossible whatever may be the
psychological conditions of the criminal. The one and only
possible issue between the prosecution and the defence will be to
determine, by the character--of the accused and of his action, to
what anthropological class he belongs, whether he is a born
criminal, or mad, or an habitual or occasional criminal, or a
criminal of passion.
In this case we shall have no more of those combats of craft,
manipulations, declamations, and legal devices, which make every
criminal trial a game of chance, destroying public confidence in
the administration of justice, a sort of spider's web which
catches flies and lets the wasps escape.
The crime will always be the object of punitive law, even under
the positive system of procedure; but, instead of being the
exclusive concern of the judge it will only be the ground of
procedure, and one symptom amongst others of the depravation and
re-adaptability of the criminal, who will himself be the true and
living subject of the trial. As it is, the whole
trial is
developed from the material fact; and the whole concern of the
judge is to give it a legal definition, so that the criminal is
always in the background, regarded merely as the ultimate billet
for a legal decision, in accordance with some particular article
in the penal code--except that the actual observance of this
article is at the mercy of a thousand accidents of which the judge
knows nothing, and which are all foreign to the crime, and to the
criminal.
If we rid ourselves of the assumption that we can measure the
moral culpability of the accused, the whole process of a criminal
trial consists in the assemblage of facts, the discussion, and the
decision upon the evidence. For the classical school, on the
other hand, such a trial has been regarded as a succession of
guarantees for the individual against society, and, by a sort of
reaction against the methods of legal proof, has been made to turn
upon the private conviction, not to say the intuition, of the
judge and counsel.
A criminal trial ought to retrace the path of the crime itself,
passing backward from the criminal action (a violation of the
law), in order to discover the criminal, and, in the psychological
domain, to establish the determining motives and the
anthropological type. Hence arises the necessity for the positive
school of reconsidering the testimony in a criminal case, so as to
give it its full importance, and to reinforce it with the data and
inferences not only of ordinary psychology, as the classical
school has always done (Pagano for instance, and Bentham,
Mitter
maier, Ellero, and others), but also, and above all,
with the data and inferences of criminal anthropology and
psychology.
In the evolution of the theory of evidence we may distinguish four
characteristic stages, as M. Tarde observed--the religious stage,
with its ordeals and combats; the legal stage, accompanied by
torture; the political stage, with private conviction and the
jury; and the scientific stage, with expert knowledge of
experimental results, systematically collected and studied, which
is the new task of positive procedure.
We must glance at each of the three elements of the criminal
trial: collection of evidence (police and preliminary inquiry);
discussion of evidence (prosecution and defence), and decision
upon evidence (judges and juries).
It is evident in the first place, as I remarked in the first
edition of this work, and as Righini, Garofalo, Lombroso, Alongi,
and Rossi have confirmed, that a study of the anthropological
factors of crime provides the guardians and administrators of the
law with new and more certain methods in the detection of the
guilty. Tattooing, anthropometry, physiognomy, physical and
mental conditions, records of sensibility, reflex activity, vaso-
motor reactions, the range of sight, the data of criminal
statistics, facilitate and complete the amassing of evidence,
personal identification, and hints as to the capacity to commit
any particular crime; and they will frequently suffice to give
police agents and examining magistrates a scientific guidance in
their inquiries, which now depend entirely on their individual
acuteness and mental sagacity.
And when we remember the enormous number of crimes and offences
which are not punished, for lack or inadequacy of evidence, and
the frequency of trials which are based solely on circumstantial
hints, it is easy to see the practical utility of the primary
connection between criminal sociology and penal procedure.
The practical application of anthropometry to the identification
of criminals, and to the question of recidivism, which was begun
in Paris by M. Bertillon, and subsequently adopted by almost all
the states of Europe and America, is too familiar to need
description. It will be sufficient to recall the modifications of
Bertillon's system by Anfosso, with the actual collection of
anthropometric data, and their inclusion in the ordinary records
of justice.
Thus the sphygmographic data on the circulation of the blood,
which reveal the inner emotions, in spite of an outward appearance
of calm or indifference, have already served to show that a person
accused of theft was not guilty of it, but that he was on the
contrary guilty of another theft, of which he had not been so much
as suspected. On another occasion they established the innocence
of a man condemned to death. We shall have more speaking and
frequent illustrations when these inquiries have been placed
regularly at the service of criminal justice.
The sphygmograph may also be useful in the diagnosis of simulated
disease, after the example set M. Voisin in the case of a sham
epileptic in Paris, ``whose sphygmographic lines have no
resemblance to those of true epileptics before and after a fit,
and <168>only resemble those produced by normal persons after a
violent gesticulation.''
As for the possible utilisation of hypnotism, we must be cautious
before we draw any legal conclusions from it; but it cannot be
questioned that this is a valuable source of scientific aid in the
systematic collection of criminal evidence.
But, for the present, the most certain and profitable aids in the
collection of evidence are those afforded by the organic and
psychical characteristics of criminals. In my study on homicide I
reckoned up many psychological and psycho-pathological symptoms
which characterise the murderer, the homicidal madman, and the
homicide through passion. And in my professional practice I have
often found by experience that there is a great suggestive
efficacy in these psychological symptoms in regard to the conduct
of a criminal, before, during, and after a crime; and it is
important to bring this knowledge scientifically before detectives
and judges.
These data are not applicable to accused persons exclusively.
When we remember the enormous importance of oral evidence in the
chain of criminal proof, and the rough traditional empiricism of
the criteria of credibility, which are daily applied in all trials
to all kinds of witnesses, by men who regard them, like the
prisoners, as an average abstract type--excluding only the
definite cases of inability to give evidence, which are defined
beforehand with as much method as the cases of irresponsibility--
the necessity of calling in the aid of scientific psychology and
psycho-pathology is manifest.
For instance, not to dwell on the absurd violation of these
traditional criteria of credibility, when police officers are
admitted as witnesses (often the only witnesses) of resistance to
authority or violence, wherein they are doubly interested parties,
how often in our courts do we give a thought to the casual
imaginations or credulity of children, women, weak-nerved or
hysterical persons, and so on? Counsel for defence or prosecution
who desired to know if any particular witness is or is not
hysterical would bring a smile to the face of the judge, very
learned, no doubt, in Roman law or legal precedents, but certainly
ignorant in physiology, psychology, and psycho-pathology. Yet the
tendency to slander in hysterical cases, which M. Ceneri urged so
eloquently in a celebrated trial or the tendency to untruth in
children, which M. Motet has ably illustrated, are but manifest
and simple examples of this applicability of normal, criminal, and
pathological psychology to the credibility of witnesses. And,
under its influence, how much of the clear atmosphere of humanity
will stimulate our courts of justice, which are still too much
isolated from the world and from human life, where, nevertheless,
prisoners and witnesses come, and too often come again, living
phantoms whom the judges know not, and only see confusedly through
the thick mist of legal maxims, and articles of the code, and
criminal procedure.
Apart from these examples, which prove the importance of what M.
Sarraute justly called ``judicial applications of criminal
sociology,'' the fundamental reform needed in the scientific
preparation of criminal
evidence is the creation of
magisterial experts in every court of preliminary inquiry. In a
question of forgery, poisoning, or abortion, the judge has
recourse to experts in handwriting, chemistry, or obstetrics; but
beyond these technical, special, and less frequent cases, in every
criminal trial the basis of inquiry is or ought to be formed by
the data of criminal biology, psychology, and psycho-pathology.
So that, over and above the knowledge of these sciences which is
necessary to judges, magistrates, and police officers, it is most
important that an expert, or several experts in criminal
anthropology should be attached to every court of criminal
inquiry.
This would provide us with an anthropological classification,
certain and speedy, of every convicted person, as well as a legal
classification of the material fact, and we should avoid the
scandal of what are known as experts for the prosecution and
experts for the defence. There should be but one finding of
experts, either by agreement between them or by a scientific
reference to arbitration, as in the German, Austrian, and Russian
system; and over this finding the judges and the litigants should
have no other power than to call for explanations from the chief
of the experts.
In this way we should further avoid the scandal of judges entirely
ignorant of the elementary ideas of criminal biology, psychology,
and psycho-pathology, like the president of an assize court whom I
heard telling a jury that he was unable to say why an expert
``wanted to examine the feet of a prisoner in order to come to a
decision about his head.'' This president,
who was an
excellent magistrate and a learned jurist was wholly unacquainted
with the elements of the theory of degeneracy, like one of his
colleagues whom I heard saying, when the expert spoke of the
abnormal shape of the ears of a prisoner (in accord with the
inquiries of Morel and Lombroso), ``That depends on how the hat is
worn.''
For in consequence of the assumption, made by Kant amongst others,
that questions of mental disease belong to the philosopher rather
than to the physician, and of the absurd and shallow idea which
superficial persons entertain of those who are insane, picturing
them as constantly raving, the judge or juryman who pins his faith
to an expert in handwriting thinks himself above the necessity of
taking the opinion of an expert in insanity.
It must be recognised, however, that this foolish assumption is
partly due to a reasonable anxiety for the public safety, under
the sway of the classical theories, which allow the acquittal and
discharge of criminals who are found to be of unsound mind. It
will eventually disappear, either by the wider diffusion of
elementary ideas of psycho-pathology or by the application of
positive theories, which are far from carrying the proved insanity
of a prisoner to the dangerous and absurd conclusion of his
acquittal.
After the first stage of the collection of evidence, during which
we can admit the legal representation of the accused, especially
for the sake of eliciting both sides of the question, without,
however, going so far as the individual exaggerations of complete
publicity for the preliminary inquiry, we come to the second
stage of procedure, that of the public discussion of the
evidence.
The principals in this discussion represent the prosecution
(public or private) and the defence; and for these, as I cannot go
into great detail, I will only mention one necessary reform. That
is the institution of a sort of public defence, by a legal officer
such as used to be found in certain of the Italian provinces,
under the title of ``advocate of the poor,'' who ought to be on a
par with the public prosecutor, and to be substituted for the
present institution of the official defence, which is a complete
failure.
As for the actual discussion of evidence, when we have established
the scientific rules of evidence, based upon expert acquaintance
with criminal anthropology, and when we have eliminated all verbal
contention over the precise measure of moral responsibility in the
prisoner, the whole debate will be a criticism of the personal and
material indications, of the determining motives, and the
anthropological category to which the accused belongs, and of the
consequent form of social defence best adapted to his physical and
psychical character.
The practical conclusion of the criminal trial is arrived at in
the third stage, that of the decision on the evidence.
So far as we are concerned, the criminal adjudication has the
simple quality of a scientific inquiry, subjective and objective,
in regard to the accused as a possible criminal, and in relation
to the deed of which he is alleged to be the author. We naturally
therefore require in the judge certain scientific
knowledge, and not merely the intuition of common sense.
But as the consultation of the jury, by reason of its inseparable
political aspect, must take place in private, we can only insist
on the fundamental reform of the judicial organisation, which
alone can realise the scientific principle of criminal
adjudication. It was Garofalo who, in the earlier days of the
positive school, urged that civil and criminal judges ought to be
wholly distinct, and that the latter ought to be versed in
anthropology, statistics, and criminal sociology, rather than in
Roman law, legal history, and the like, which throw no light on
the judgment of the criminal.
Learned jurists, proficient in the civil law, are least fit to
make a criminal judge, accustomed as they are by their studies to
abstractions of humanity, looking solely to the juridical
bearings, inasmuch as civil law is mostly ignorant of all that
concerns the physical and moral nature of individuals. The
demoralisation or uprightness of a creditor, for instance, has no
influence for or against the validity of his credit.
The jurist, therefore, in a matter of criminal adjudication,
entirely loses sight of the personal conditions of the accused,
and the social conditions of the community, and confines his
attention to the deed, and to the maxims of a so-called
retributive justice. They who are called upon to try criminals
ought to possess the ideas necessary to the natural study of a
criminal man, and should therefore constitute an order of
magistrates wholly distinct from that of civil judges.
The practical means of securing this fundamental reform of the
judicial bench ought to begin with the organisation of the
university, for in the courses of the faculty of law it will be
necessary to introduce a more vigorous and modern stream of social
and anthropological studies, which must also eventually put new
life into the ancient maxims of the civil law.
In the second place, law students at the university ought to be
admitted to what Ellero called a science of clinical criminology,
that is to interviews with and systematic observations of
prisoners. The first Congress of Criminal Anthropology approved
the proposal of M. Tarde, upon the following motion of Moleschot-
Ferri:--``The Congress, in agreement with the scientific tendency
of criminal anthropology, is of opinion that prison authorities,
whilst taking necessary precautions for internal discipline, and
for the individual rights of condemned prisoners, should admit to
the clinical study of criminals all professors and students of
penal law and legal medicine, under the direction and
responsibility of their own professors, and if possible in the
character of societies for the aid of actual and discharged
prisoners.''
Lastly, a special school should be founded for policemen and
prison warders, with the object of securing detectives
distinguished not only for their personal ability, but also for
their knowledge of criminal biology and psychology.
To these reforms, which guarantee the scientific capacity of the
criminal judge, we must add reforms which would secure his
complete independence of
the executive authority, which is
now the only authority responsible for the advancement and
allocation of judges. But this independence would not be exempt
from every kind of control, such as public opinion, and
disciplinary authority to some extent distinct from the
_personnel_ of the bench; for otherwise the judicial authority
would soon become another form of insupportable tyranny.
The most effectual mode of securing the independence of the judges
is to improve their position in life. For admitting that a fixed
stipend, payable every month, makes a man content with a somewhat
lower figure, still it is certain that in these days, with a few
honourable exceptions, the selection of judges is not
satisfactory, because low salaries only attract such as could not
earn more by the practice of their profession.
The personal character of the bench vitally affects the quality of
the government as a whole. The most academic and exalted codes
are of little avail if there are not good judges to administer
them; but with good judges it matters little if the codes or
statutes are imperfect.
In criminal law the application of the statute to the particular
case is not, or should not be, a mere question of legal and
abstract logic, as it is in civil law. It involves the adaptation
of an abstract rule, in a psychological sense, to a living and
breathing man; for the criminal judge cannot separate himself from
the environment and social life, so as to become a more or less
mechanical _lex loquens_. The living and human tests of every
criminal sentence reside in
the conditions of the act, the
author, and reacting society, far more than in the written law.
Herein we have an opportunity of solving the old question of the
authority of the judge, wherein we have gone from one excess to
another, from the unbounded authority of the Middle Ages to the
Baconian aphorism respecting the law and the judge, according to
which the law is excellent when it leaves least to the judge, and
the judge is excellent when he leaves himself the least
independent judgment.
If the function of the criminal judge were always to be, as it is
now, an illusory and quantitative inquiry into the moral
culpability of the accused, with the equally quantitative and
Byzantine rules on attempt, complicity, competing crimes, and so
forth--that is to say, if the law were to be applied to the crime
and not to the criminal, then it is necessary that the authority
of the judge should be restrained within the numerical barriers of
articles of the code, of so many years, months, and days of
imprisonment to be dosed out, just as the Chinese law decides with
much exactitude the length and diameter of the bamboo rods, which
in the penal system of the Celestial Empire have the same
prominence as penitentiary cells have with us.
But if a criminal trial ought to be, on the other hand, a physio-
psychological examination of the accused, the crime being
relegated to the second line, as far as punishment is concerned,
the criminal being kept in the front, then it is clear that the
penal code should be limited to a few general rules on the modes
of defence and social sanction, and on the constituent
elements of every crime and offence, whilst the judge
should have greater liberty, controlled by the scientific and
positive data of the trial, so that he may judge the man before
him with a knowledge of humanity.
The unfettered authority of the judge is inadmissible in regard to
the forms of procedure, which for the prosecuted citizen are an
actual guarantee against judicial errors and surprises, but which
should be carefully distinguished from that hollow and
superstitious formalism which generates the most grotesque
inanities, such as an error of a word in the oath taken by
witnesses or experts, or a blot of ink on the signature of a
clerk.
III.
Scientific knowledge of criminals and of crime, not only as the
deed which preceded the trial, but also as a natural and social
phenomenon--this, then, is the fundamental principle of every
reform in the judicial order; and this, too, is a condemnation of
the jury. Whilst Brusa, one of the most doctrinaire of the
Italian classical school, foretold a steady decline of the
``technical element'' in the magistracy, and consequently a
persistent intervention of the popular influence in the
administration of justice, the positive school, on the other hand,
has always predicted the inevitable decline of the jury in the
trial of crimes and ordinary offences.[16]
[16] It is interesting to observe that Carrara, in spite of
his public advocacy of the jury, wrote in a private letter in 1870
(published on
the unveiling of his monument at Lucca):--``I
expressed my opinion as to the jury in 1841, in an article
published in the _Annals of Tuscan Jurisprudence_--namely, that
criminal justice was becoming a lottery. Justice is being
deprived of her scales and provided with a dice-box. This seems
to me to be the capital defect of the jury. All other defects
might be eliminated by a good law, but this one is inseparable
from the jury. . . . Even amongst magistrates we may find the
harsh and the clement; but in the main they judge according to
legal argument, and one can always more or less foresee the issue
of a trial{.??} But with juries all forecast is rash and
deceptive. They decide by sentiment; and what is there more vague
and fickle than sentiment{. .??} . . With juries, craft is more
serviceable to an advocate than knowledge. I once had to defend a
husband who had killed his wife's lover in a caf. I
challenged the bachelors on the jury, and accepted the married
men. After that, I was sure of success, and I succeeded. . . .
This is the real essential vice of the jury, which no legislative
measure could overcome.''
Theodore Jouffroy, after listening at the University of Pisa to a
lecture by Carmignani against the jury, said, ``You are defending
logic, but slaying liberty.''
Apart from the question whether liberty is possible without logic,
it is nevertheless a fact that there is always a prominent
political character in the jury. This accounts for the more or
less declamatory defences of this judicial institution, which is
no favourite with the criminal sociologist.
At the end of the eighteenth century, when there was a scientific
and legislative tendency towards the creation of an independent
order of magistrates, the French Revolution, mistrusting the whole
aristocracy and social caste, opposed this tendency, believing
enthusiastically in the omnipotence and omniscience of the people,
and instituted the jury. And whilst in the political order it was
inspired by classical antiquity, in the order of justice it
adopted this institution from England. The jury was not
unknown to the Republic of Athens and Rome, but it was
developed in the Middle Ages by the ``barbarians,'' as an
instrument which helped the people to escape from tyranny in the
administration of the law. It used to be said that the jury made
a reality of popular sovereignty, and substituted the common sense
and good will of the people for the cold dogmatism of the lawyers,
penetrated as they were by class prejudices. From this point of
view the jury was too much in accord with the general tendency of
the ideas of the day not to be greedily adopted. It was another
example of the close connection between philosophic ideas,
political institutions, and the judicial organisation.
The jury, transported to the Continent, in spite of the
improvements recorded by Bergasse in his report to the Constituent
Assembly, on August 14, 1789, was a mere counterfeit of that which
it was, and is, in England. But its political character is still
so attractive that it has many supporters to this day, though the
results of its employment in various countries are not very happy.
Yet, as the jury is a legal institution, we must consider its
advantages and defects, both from the political and from the legal
point of view, and accept the conclusion forced upon us by the
predominance of one or the other.
From the political standpoint, it is unquestionable that the jury
is a concession to popular sovereignty; for it is admitted that
the power of the law not only originates with the people, but is
also directly exercised by them.
The jury may also be a guarantee of civic and political liberties
as against the abuses of government, which are far more easy with
a small number of judges, more or less subordinate to the
government.
Again, the jury may be a means of affirming the sentiment of
equality amongst citizens, each of whom may to-morrow become a
judge of his equals, and of spreading political education, with a
practical knowledge of the law. It is true that, with this
knowledge of the law, juries also learn the details of every kind
of crime, without the equally constant evidence of virtuous
actions; and there is here a danger of moral contagion from crime.
But, from the political point of view, it is certain that the jury
may awaken, with a knowledge of the law, a consciousness of civic
duties, which are too frequently undertaken as a forced and
troublesome burden.
On these political advantages of the jury, however, a few remarks
may be made.
In the first place, the concession to popular sovereignty is
reduced to very small proportions by the limitations of the jury
list, and of the functions of the jury, which legislation in every
country is compelled to impose.
The essential characteristic distinguishing the jury from the
judge is especially marked by the origin of their authority; for
the jury is a judge simply because he is a citizen, whilst the
magistrate is a judge only by popular election or appointment by
the head of the State. So that any one who has entered on his
civil and political rights, and is of the necessary age,
ought, according to the spirit of the institution, to
administer justice on every civil or criminal question, whatever
its importance, and not only in giving the final verdict, but also
in conducting the trial. Yet not only is the ancient trial by
popular assemblies impossible in the great States of our day, but
also faith in the omniscience of the people has not availed to
prevent all kinds of limitations in the principle of the jury.
Thus the political principle of the jury is such that it cannot be
realised without misapprehension, limitation, and depreciation.
In fact, even in England, where the jury can of its own motion
declare in the verdict its opinions, strictures, and suggestions
of reform, as arising out of the trial, it is always subject to
the guidance of the judge, and it is not employed in the less
serious and most numerous cases, on which the whole decision is
left to magistrates, who apparently are not to be trusted to
decide upon crimes of a graver kind.
And as for the other political advantages of the jury, experience
shows us that the jury is often more injurious than serviceable to
liberty.
In the first place, in continental States the jury is but an
institution artificially grafted, by a stroke of the pen, on the
organism of the law, and has no vital connection or common roots
with this and other social organisms, as it has in England. Also
the example of classical antiquity is opposed to the institution
of the jury, which has been imposed upon us by eager imitation and
political symmetry; for if the jury had disappeared amongst
continental nations, this simply means that it did not find in the
ethnic
types, the manners and customs, the physical and
social environments of these nations, an adequate supply of