The orator does not require to convert to his views all the members of a jury, but only the leading spirits among it who will determine the general opinion.As in all crowds, so in juries there are a small number of individuals who serve as guides to the rest."I have found by experience," says the counsel cited above, "that one or two energetic men suffice to carry the rest of the jury with them." It is those two or three whom it is necessary to convince by skilful suggestions.First of all, and above all, it is necessary to please them.The man forming part of a crowd whom one has succeeded in pleasing is on the point of being convinced, and is quite disposed to accept as excellent any arguments that may be offered him.I detach the following anecdote from an interesting account of M.Lachaud, alluded to above:--"It is well known that during all the speeches he would deliver in the course of an assize sessions, Lachaud never lost sight of the two or three jurymen whom he knew or felt to be influential but obstinate.As a rule he was successful in winning over these refractory jurors.On one occasion, however, in the provinces, he had to deal with a juryman whom he plied in vain for three-quarters of an hour with his most cunning arguments; the man was the seventh juryman, the first on the second bench.The case was desperate.Suddenly, in the middle of a passionate demonstration, Lachaud stopped short, and addressing the President of the court said: `Would you give instructions for the curtain there in front to be drawn? The seventh juryman is blinded by the sun.' The juryman in question reddened, smiled, and expressed his thanks.He was won over for the defence."Many writers, some of them most distinguished, have started of late a strong campaign against the institution of the jury, although it is the only protection we have against the errors, really very frequent, of a caste that is under no control.[25] Aportion of these writers advocate a jury recruited solely from the ranks of the enlightened classes; but we have already proved that even in this case the verdicts would be identical with those returned under the present system.Other writers, taking their stand on the errors committed by juries, would abolish the jury and replace it by judges.It is difficult to see how these would-be reformers can forget that the errors for which the jury is blamed were committed in the first instance by judges, and that when the accused person comes before a jury he has already been held to be guilty by several magistrates, by the juge d'instruction, the public prosecutor, and the Court of Arraignment.It should thus be clear that were the accused to be definitely judged by magistrates instead of by jurymen, he would lose his only chance of being admitted innocent.The errors of juries have always been first of all the errors of magistrates.
It is solely the magistrates, then, who should be blamed when particularly monstrous judicial errors crop up, such, for instance, as the quite recent condemnation of Dr.L---- who, prosecuted by a juge d'instruction, of excessive stupidity, on the strength of the denunciation of a half-idiot girl, who accused the doctor of having performed an illegal operation upon her for thirty francs, would have been sent to penal servitude but for an explosion of public indignation, which had for result that he was immediately set at liberty by the Chief of the State.
The honourable character given the condemned man by all his fellow-citizens made the grossness of the blunder self-evident.
The magistrates themselves admitted it, and yet out of caste considerations they did all they could to prevent the pardon being signed.In all similar affairs the jury, confronted with technical details it is unable to understand, naturally hearkens to the public prosecutor, arguing that, after all, the affair has been investigated by magistrates trained to unravel the most intricate situations.Who, then, are the real authors of the error--the jurymen or the magistrates? We should cling vigorously to the jury.It constitutes, perhaps, the only category of crowd that cannot be replaced by any individuality.
It alone can temper the severity of the law, which, equal for all, ought in principle to be blind and to take no cognisance of particular cases.Inaccessible to pity, and heeding nothing but the text of the law, the judge in his professional severity would visit with the same penalty the burglar guilty of murder and the wretched girl whom poverty and her abandonment by her seducer have driven to infanticide.The jury, on the other hand, instinctively feels that the seduced girl is much less guilty than the seducer, who, however, is not touched by the law, and that she deserves every indulgence.
[25] The magistracy is, in point of fact, the only administration whose acts are under no control.In spite of all its revolutions, democratic France does not possess that right of habeas corpus of which England is so proud.We have banished all the tyrants, but have set up a magistrate in each city who disposes at will of the honour and liberty of the citizens.An insignificant juge d'instruction (an examining magistrate who has no exact counterpart in England.--Trans.), fresh from the university, possesses the revolting power of sending to prison at will persons of the most considerable standing, on a simple supposition on his part of their guilt, and without being obliged to justify his act to any one.Under the pretext of pursuing his investigation he can keep these persons in prison for six months or even a year, and free them at last without owing them either an indemnity or excuses.The warrant in France is the exact equivalent of the lettre de cachet, with this difference, that the latter, with the use of which the monarchy was so justly reproached, could only be resorted to by persons occupying a very high position, while the warrant is an instrument in the hands of a whole class of citizens which is far from passing for being very enlightened or very independent.
Being well acquainted with the psychology of castes, and also with the psychology of other categories of crowds, I do not perceive a single case in which, wrongly accused of a crime, Ishould not prefer to have to deal with a jury rather than with magistrates.I should have some chance that my innocence would be recognised by the former and not the slightest chance that it would be admitted by the latter.The power of crowds is to be dreaded, but the power of certain castes is to be dreaded yet more.Crowds are open to conviction; castes never are.
