THE DISTRUST IN TRIAL BY JURY.
I-11HE most serious fact in connection with the attempt on 1 M. Ferry, is the statement of the Times' correspondent that no jury in Paris could be trusted to convict the intending assassin. There is, apparently, nothing whatever to palliate the criminal's offence. Aubertin has no personal grievance
against M. Ferry, and does not plead any, nor is he even, if we accept his own sketch of his own life, a political "fanatic of the type to which modern thought accords an ill-founded sympathy. He is a man who has always been engaged in the pursuit of wealth, who has been twice punished for small swindles, and who wee driven to despair by his loss in specu- lation of the fortune of a middle-aged woman with whom he lived. His motive for his crime appears to have been furious egoism rather than political hatred ; and so far from desiring to rid France of a possible oppressor in M. Ferry, he selected him by lot out of a list of twenty, many of whom are of his own Radical school. He risked his life, it is true; but he risked it simply because he thought that he, and he alone, could pass a just judgment on politicians. There is nothing about the man which appeals to sentiment, and any decent Judge would sentence him without a qualm. Yet it is said that he will be declared mad, in order to avoid
the otherwise inevitable scandal of a verdict of acquittal. The statement may be inaccurate, for the Times' correspondent, who
has been quietly backing M. Ferry all through, was evidently greatly moved by the attempt to kill his favourite ; but it is in accord with all recent evidence as to the action
of French juries in sensational trials, and is of itself evidence of a widespread feeling of distrust. Juries in France are no longer considered certain to carry out the law. In Ireland, all confidence in their verdicts has so completely disappeared, that the Crimes Act was passed mainly to dis- pense with their action, and outside Dublin no one can be secure that any jury will punish any villainy, murder included, if the accused can plead that his motive was either political or agrarian. In Italy, the juries, though otherwise fair, cannot be trusted in capital cases; and in parts of the United States, the distrust of juries, though little talked about, is very deep, and is pleaded as the excuse for Lynch-law and the justification for 'Vigilance Committees. There is a suspicion that money can be used with effect whenever public feeling is not excited, and we have noticed, in the occasional exposés of municipal swindles, that verdicts against powerful men have been received with a sensa- tion of relieved surprise. Even in England, we observe that in political trials there is often a doubt about the jury, and that lawyers rely a good deal upon the almost pedantic legality which, for some reason we cannot now discuss, usually charac- terises a jury of common Londoners. There is probably some exaggeration in many cases in which verdicts are condemned, as the jury see the witnesses, and the commentators do not; but it is difficult to resist the conviction that, with the progress of the world towards democracy, two other processes are going on,—viz., that juries fall more and more under the influence of opinion, of terror, and even of corrup- tion ; and that the community is growing more and more doubtful whether the great advantage hitherto gained from the institution may not in time be overbalanced by the evils inherent in the system, or produced in it by some modern innovations. There is a belief growing that what iscalled " opinion "—that is, the mass of feeling produced by incessant discussion, much of it over-excited, and much more very ignorant—is becoming the main obstacle to the just adminis- tration of the law, and that this" opinion," which is not without its weight even on Judges and Magistrates, influences jurymen to an injurious degree. They are so affected, it is said, by it, that they can hardly weigh evidence, and are constantly tempted to obey the " popular" desire as if it were in some way a "higher law." That temptation, moreover, makes corruption easy, for it enables a recalcitrant juryman to baffle justice by simply pleading an opinion, say, against capital punishment, or against political trials, or against the police, which his fellow- jurymen know to be in other cases honestly entertained. The inclination of juries, in fact, to legislate instead of obeying the law, is becoming marked in all countries, and tends to diminish grievously the use of law itself as a means of keeping society together. It is, for instance, to quote the most familiar of illustrations, useless to pass laws against private war, if in every case of duelling the jury determine either to acquit or to appear to disagree.
If juries are really growing more uncertain and wilful— and whatever be the truth about corruption and intimidation, we take increasing uncertainty to be evident—the outlook for modern society would seem at first sight to be a bad one. The world is growing more democratic, and democracies feel by a certain instinct, or rather have always hitherto felt, that the jury is their defence against the rigour of the law. Neither legislators nor Judges, however arbitrary, could act without the permission of the democratic committee, chosen out of the mass and sent back to the mass, voting by a kind of ballot taken in secret, and so irresponsible that their action enables us to understand how Roman institutions could exist after the Tribunes had acquired the right of veto. Juries can veto a law as much as ever the Tribunes could, and in England have for years past steadily vetoed two,—the punishment of infanticide as if it were murder, and the treatment of suicide as an offence against society. In the first instance, they always return a ver- dict on the secondary count only, concealment of birth; and in the second, they invent an excuse of insanity which is only occasionally true. The democracy, too, in thus thinking, has been in great measure right. When laws were inelastic, and Judges cruel, and swift improvements almost impossible, the veto of the democratic committee of investigation did, there can be no doubt, help to make stringent laws supportable, and to reconcile the practice of the Courts with the feelings of human nature, and with that consensus of wise opinion which is the sustaining force of law. The bloody laws of this country would have provoked a revolution but that they were mitigated by juries who often, as in the case of sheep-stealing, rendered certain crimes nnpunishable. Tradition, therefore, combines with instinct to make the democracy jealous of any interference with juries, and we seem to be in this impasse,— that if juries grow untrustworthy, the laws must of necessity grow feeble, or, indeed, practically cease to exist, as in many districts of Ireland is the case with the law of murder. Juries are bad, but democratic ; democracy is advancing fast ; therefore, juries must perpetually get worse,—that is the syllogism which alarms a great many very reflective people.
There is some truth in it, even in England, and much more in societies where, as in France, opinion divides classes as religion used to do ; but we have some hope that the evil is only temporary. Democracy is by no means quite so fond of criminals as it is the fashion to suppose. It rose in arms in Chicago, three years ago, because no criminal could be got hanged ; and in Texas, whether there are Courts or not, you must not steal a horse. There is a very stern element in opinion, as well as a soft one ; and if acquittals in the teeth of evidence grew frequent, we should soon see one of two results. Either the juries them- selves would grow stem under the pressure of opinion—as is the case now in America in regard to anarchists, and in London in regard to rioters—or the democracy would consent quite willingly to the supersession of juries. It has no longer any reason to protect itself against oppression ; it can remodel its awn laws at a minute's notice ; it is not afraid of the Judges ; and it would, on cause shown, consent to a suspension of the democratic veto on the execution of law. It would not be very difficult even now, if a trusted leader said it was necessary, to try dynamiters by com- mission ; and democracy dislikes other crimes which injure it quite as much as dynamite. If the jury system grew a little worse in Ireland, so that common murder was never punished, the majority of Englishmen would sweep it away to-morrow ; and if the same evil occurred in England, they would need no persuading. There is another democratic utterance about criminals besides that of the jury, and it is one against which the police have often trouble in protecting the accused.
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