The contempt for efficiency is carried far even in the liberal professions and in professional customs. We all know the story, perhaps a mythical one, of the judge who said to an earnest young barrister who was conscientiously elaborating a question of law: "Now, Mr. So and So, we are not here to discuss questions of law but to settle this business." He did not say this by way of jest; he wished to say: "The courts no longer deliver judgment on the merits of a case according to law, but according to equity and common sense. The intricacies of the law are left to professors, so please when conducting a case do not behave like a professor of law." This theory, which even in this mild form would have horrified the ancients, is very prevalent nowadays in legal circles. It has crept in as an infiltration, as one might call it, from the democratic system.

A magistrate, nowadays, whatever remnant of the ancient feeling of caste he may have retained, certainly does not consider himself bound by the letter of the law, or by jurisprudence, the written tradition; when he is anything more than a subordinate with no other idea of duty than subservience to the Government, he is a democratic magistrate, a Heliast of Athens; he delivers judgment according to the dictates of his individual conscience; he does not consider himself as a member of a learned body, bound to apply the decisions of that body, but as an independent exponent of the truth.

An eccentric, but in truth very significant, example of the new attitude of mind is to be found in the judge, who formally attributed to himself the right to make law and who in his judgments made references, not to existing laws, but to such vague generalities as appealed to him, or to doctrines which he prophesied would later on be embodied in the law. His Code was the Code of the future.

The mere existence of such a man is of no particular importance, but the fact that many people, even those partially enlightened, took him seriously, that he was popular, and that a considerable faction thought him a good judge, is most significant.

There is another much commoner sign of the times. The worst form of incompetence is perhaps that which allows a man to be competent without realising it, and, in criminal cases at least, this seems to be the normal attitude of the majority of our magistrates.

We should read on this point a very curious pamphlet called Le Pli Professionnel (1909), by Marcel Lestranger, a provincial magistrate. It is very pertinent to our subject. It shows plainly that the magistracy nowadays, both the qualified stipendiaries and the bench of magistrates, has lost all confidence in itself and is terrified of public opinion as represented by newspapers, associations, political clubs and the man in the street; the magistrate knows too, or thinks he knows, that promotion depends, not on a reputation for severity as it used to do, but on a reputation for indulgence.

He is confronted in the execution of his duty by forces which are always in coalition against him; the public, almost always favourable to the accused, the press, both local and Parisian, the so-called science of judicial medicine, which is almost always disposed to consider the accused as persons not responsible for their actions. He lives, too, in constant terror of being mixed up in a miscarriage of justice, for miscarriage of justice is now a sort of craze, and with a considerable section of the public every conviction is a miscarriage of justice. And so the magistrate of first instance never dares to sum up severely, and the stipendiary never dares press his interrogations with firmness.

There are exceptions of course; but these exceptions, by the astonishment which they excite, and by the reaction to which they give rise, show sufficiently, indeed conclusively, that they are abnormal, outside the new order of things, outside the new habits of the people.

More often than not the subordinate magistrate, whose business it is to commit the prisoner for trial, acts with timidity and reserve, apologetically attenuating the crime; he leaves loopholes of escape, appeals in audible asides for indulgence, dwells on the uncertainty of evidence. He demands indeed the prisoner's head but lives in terror lest he obtain it.

The fact is what both he and the stipendiary desire is that the affair should be settled by an acquittal, for an affair settled by an acquittal is an affair buried. Stone-dead has no fellow; it is consigned to oblivion. It can never be made the sort of affair which someone is sure to declare is a miscarriage of justice, or which someone, animated by private and political spite or merely for the sake of a jest, can make into a ghost to haunt for ten or even fifteen years the unfortunate magistrate who had to deal with it.

M. Lestranger tells a story which, from all the information I can glean and from what I can remember hearing at the time, is absolutely true and a perfect illustration of thousands of similar cases.

A poacher, aged nineteen, first outraged and then strangled in the woods a peasant woman, the mother of a family. On this occasion there could be no question of a miscarriage of justice or even of any suggestion of such a thing, because the prisoner pleaded guilty. That is a great point. In France every conviction that is not based upon the prisoner's confession is a miscarriage of justice; but when the prisoner pleads guilty there can be no incriminations of this sort, although there might be, for false confessions are not unknown, but nothing of the sort is ever put forward, and the case seemed to be quite straightforward.

But the magistrates were terrified that the prisoner would be condemned to death. The crime was horrible, particularly in the eyes of a village jury, whose wives and daughters were often obliged to work some distance from the village. Moreover, there was a tiresome man, the widower of the victim, thirsting for vengeance, who sang the praises of his wife and brought his weeping son into court while he gave his evidence. The president and the public prosecutor were in despair.

"I have done all I can," said the president to the public prosecutor. "I have made the most of his youth. I have repeated 'only nineteen years of age.' I have indeed done all I can."

"I have done all I can," said the public prosecutor to the president. "I have not said a word about the punishment. I merely accused. I could not plead for the defence. I have done my best."

At the close of the hearing the chief constable was very reassuring to these gentlemen. "He is under twenty and he looked so respectable at the enquiry. It is quite impossible that he should be condemned to death in this quiet village. You will see, he will not be sentenced to capital punishment."

He was not. The jury brought in a verdict of guilty with extenuating circumstances. The magistrates recovered their tranquillity.

M. Lestranger's facts are supported by figures. Those who commit crimes which excite pity, such as infanticide and abortion, are less and less likely to be prosecuted, and if they are, they are frequently let off, however flagrant the offence. The average number of acquittals during the last twelve years is twenty-six per cent. A magistrate nowadays is a St. Francis of Assize.

Either the magistrate does not believe in his own efficiency, or he sacrifices it to his peace of mind, and he cares more for his own peace of mind than for the public safety. The magistracy will soon be no more than a faÇade, still imposing but not at all alarming.

There is already a very serious symptom of how little confidence the crowd has in the wholesome severities of justice; the criminal caught in the act is often lynched or almost lynched, because it is well known that if he is not punished immediately, he is very likely to escape punishment altogether.

—Yet this same crowd, in the form of a jury, is often, almost always, very indulgent.—True, and that is because between the crime and the assizes there is often an interval of six months. At the date of the crime it is the misfortune of the victim that excites the crowd, at the date of the assize it is the misfortune of the accused. Be this as it may, the practice of lynching amounts to a formal accusation that both magistrates and juries are over indulgent.

The clergy even, who are more tenacious of tradition than any other order in the State, are gradually becoming democratic to this extent, that though by profession teachers of dogmas and mysteries, they now teach only morality. In this way they try to get into closer touch with the poor, and so have a greater hold upon them. Evidently they are not altogether to blame. Only, when they cease to teach dogma and interpret mysteries, they cease to be a learned body or to have the prestige of a learned body. On the other hand they sink to the level of any other philosophy, which teaches and explains morality, and illustrates it by sacred examples just as well as any priesthood. The result is that the people say to themselves "What need have we of priests? Moral philosophers are good enough for us."

This Americanism is not very dangerous, in fact it does not matter, in America, where there are very few lay moral philosophers; but it is a very great danger in France, Italy and Belgium where their name is legion.