For in consequence of the a.s.sumption, 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 a.s.sumption is partly due to a reasonable anxiety for the public safety, under the sway of the cla.s.sical 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 princ.i.p.als 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 inst.i.tution of a sort of public defence, by a legal officer such as used to be found in certain of the Italian provinces, under the t.i.tle of "advocate of the poor," who ought to be on a par with the public prosecutor, and to be subst.i.tuted for the present inst.i.tution 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 const.i.tute 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 quant.i.tative inquiry into the moral culpability of the accused, with the equally quant.i.tative 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 exact.i.tude 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 const.i.tuent 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 superst.i.tious 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 cla.s.sical 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 cafe. 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 inst.i.tution, 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 inst.i.tuted the jury. And whilst in the political order it was inspired by cla.s.sical antiquity, in the order of justice it adopted this inst.i.tution 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 subst.i.tuted the common sense and good will of the people for the cold dogmatism of the lawyers, penetrated as they were by cla.s.s 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 inst.i.tutions, and the judicial organisation.
The jury, transported to the Continent, in spite of the improvements recorded by Berga.s.se in his report to the Const.i.tuent a.s.sembly, 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 inst.i.tution, 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 inst.i.tution, 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 a.s.semblies 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 inst.i.tution 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 cla.s.sical antiquity is opposed to the inst.i.tution 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 vitality, such as it has retained, for instance through so many historical changes, amongst the Anglo-Saxons.
And if sometimes the jury can withstand the abuses of government, still too frequently it does not withstand its own pa.s.sions, or the influence of the social cla.s.s (the bourgeoisie in our own day), to which nearly all juries belong. It is notorious, in fact, that the jury is more rigorous in regard to prisoners accused of crimes against property than in regard to those accused of crimes against the person, especially crimes instigated by personal motives such as hate, vengeance, or the like; for every juryman thinks that he himself might be a victim of the exploits of a thief, or the attacks of a murderer for the sake of gain; whereas there is less reason to fear a murder provoked by vengeance, an outrage, an embezzlement of public money, or the like. And Machiavelli said that men would rather have blood drawn from their veins than money from their pockets.
Besides, the same jury which will resist pressure from the Government does not resist popular pressure, direct or indirect, especially in view of the secrecy of their individual votes. No doubt there are n.o.ble exceptions; but society is made up of average virtues, and only upon them can it count.[17]
[17] In Dublin, for the trial of the murderers of Burke and Lord Frederick Cavendish, in 1883, the empanelling of the jury was very difficult, for n.o.body was willing to expose himself to the vengeance of the fanatics.
And when it is continually a.s.serted, in the words of Jouffroy, that the jury is an outpost of liberty, or in those of Carrara, that it is its necessary complement, we have to remark that this would be true if the jury were inst.i.tuted by a despotic government; but when popular liberties have far more effectual guarantees in the political organisation of the State, then this quality of the jury is more apparent than real.
In fine, either the government is despotic, and then juries are not strong enough to preserve liberty, as in England from the time of Henry VIII. to that of James II.; or, as Mittermaier said, "when authority is corrupt, and the judge is cowardly or terrorised, a jury cannot a.s.sist in the defence of liberty." Or else the government is liberal, and then the judges also are independent, so that there is no need of juries, especially with the guarantees of their independence which I have already indicated.
Now history reminds us that the jury is never inst.i.tuted by despotic governments. It was refused, for instance, in upper Italy by Napoleon in 1815, in Naples by the Bourbons in 1820, in Lombardy by Austria in 1849, and in our own day in Russia, for political crimes, though it is allowed for ordinary crimes.
Thus the jury, as a political and liberal inst.i.tution, is oddly destined to be excluded when it would be serviceable, and to be useless when it is admitted. It reminds us of the destiny of the National Guard.
But, even in England, the jury is regarded as especially a legal inst.i.tution; and the main qualities attributed to it in this connection are moral judgment and private conviction.
The law, we are told, has always a certain harshness and insufficiency, for it ought to provide for the future whilst grounding itself on the past, whereas it cannot foresee all possible cases. Progress is so rapid and manifold, in modern society, that penal laws cannot keep pace with it, even though they are frequently recast-as for instance in Bavaria, which in one century has had three penal codes, and in France, where an almost daily acc.u.mulation of special laws is piled upon the original text of the most ancient code in Europe.
The jury, by its moral judgment, corresponding in some degree to the equity of the ancients, is able to correct the summum jus with verdicts superior to the written law. And, in addition, the jury always follows its private conviction, the inspiration of sentiment, the voice of the conscience, pure instinct, in place of the stern and artificial maxims of the trained lawyer.
I do not deny these qualities of the jury; but I very much suspect that they are serious and dangerous vices rather than useful qualities in a legal inst.i.tution.
In the first place, I believe that the distinction of powers or social functions, corresponding to the natural law of division of labour, ought not to be destroyed by the jury. The duty of the judicial power, before everything else, is to observe and apply the written law; for if we once admit the possibility that the judge (popular or trained) has to amend the law, all guarantee of liberty is lost, and the authority of the individual is unlimited. As I have said above, we allow the authority of the judge only when we have actual guarantees of his capacity and independence, and always within the limits of the general precepts of the law, and under the control of a superior disciplinary power.