Trial by Jury.—Power of the Jury in France.—Comparative insignificance of that vested in the Judge.—Virtual Abolition of Capital Punishments.—Flemish Anecdote.

Do not be terrified, my dear friend, and fancy that I am going to exchange my idle, ambling pace, and my babil de femme, to join the march of intellect, and indite wisdom. I have no such ambition in my thoughts; and yet I must retail to you part of a conversation with which I have just been favoured by an extremely intelligent friend, on the very manly subject of.... Not political economy;—be tranquil on that point; the same drowsy dread falls upon me when those two portentous words sound in my ears with which they seem to have inspired Coleridge;—not political economy, but trial by jury.

M. V***, the gentleman in question, gave me credit, I believe, for considerably more savoir than I really possess, as to the actual and precise manner in which this important constitutional right works in England. My ignorance, however, though it prevented my giving much information, did not prevent my receiving it; and I repeat our conversation for the purpose of telling you in what a very singular manner, according to his account, it appears to work in France.

I must, however, premise that my friend is a stanch Henri-Quintist; which, though I am sure that in his case it would not produce any exaggeration in the statement of facts, may nevertheless be fairly presumed to influence his feelings, and consequently his manner of stating them.

The circumstance which gave rise to this grave discussion was a recent judgment passed here upon a very atrocious case of murder. I am not particularly fond of hanging; nevertheless, I was startled at hearing that this savage and most ferocious slayer of men was condemned to imprisonment and travail forcÉ, instead of death.

"It is very rarely that any one now suffers the extreme penalty of the law in this country," said M. V***, in reply to my remark on this sentence.

"Is it since your last revolution," said I, "that the punishment of death has been commuted for that of imprisonment and labour?"

"No such commutation has taken place as an act of the legislature," he replied: "it rests solely with the jury whether a murderer be guillotined, or only imprisoned."

I fancied that I misunderstood him, and repeated his words,—"With the jury?"

"Oui, madame—absolument."

This statement appeared to me so singular, that I still supposed I must be blundering, and that the words le jury in France did not mean the same thing as the word jury in England.

In this, as it subsequently appeared, I was not much mistaken. Notwithstanding, my informer, who was not only a very intelligent person, but a lawyer to boot, continued to assure me that trial by jury was exactly the same in both countries as to principle, though not as to effect.

"But," said I, "our juries have nothing to do with the sentence passed on the criminal: their business is to examine into the evidence brought forward by the witnesses to prove the guilt of the prisoner, and according to the impression which this leaves on their minds, they pronounce him 'guilty,' or 'not guilty;' and here their duty ends."

"Yes, yes—I understand that perfectly," replied M. V***; "and it is precisely the same thing with us;—only, it is not in the nature of a Frenchman to pronounce a mere dry, short, unspeculating verdict of 'guilty,' or 'not guilty,' without exercising the powers of his intellect upon the shades of culpability which attach to the acts of each delinquent."

This impossibility of giving a verdict without exercising the power of intellect reminded me of an assize story on record in Cornwall, respecting the sentence pronounced by a jury upon a case in which it was very satisfactorily proved that a man had murdered his wife, but where it also appeared from the evidence that the unhappy woman had not conducted herself remarkably well. The jury retired to consult, and upon re-entering their box the foreman addressed the court in these words: "Guilty—but sarved her right, my lord." It was in vain that the learned judge desired them to amend their verdict, as containing matter wholly irrelevant to the duty they had to perform; the intellect of the jurymen was, upon this occasion, in a state of too great activity to permit their returning any other answer than the identical "Guilty—but sarved her right." I could hardly restrain a smile as this anecdote recurred to me; but my friend was too much in earnest in his explanation for me to interrupt him by an ill-timed jest, and he continued—

"This frame of mind, which is certainly essentially French, is one cause, and perhaps the most inveterate one, which makes it impossible that the trial by jury should ever become the same safe and simple process with us that it is in England."

"And in what manner does this activity of intellect interfere to impede the course of justice?" said I.

"Thus," he replied. "Let us suppose the facts of the case proved to the entire satisfaction of the jury: they make up their minds among themselves to pronounce a verdict of 'guilty;' but their business is by no means finished,—they have still to decide how this verdict shall be delivered to the judge—whether with or without the declaration that there are circumstances calculated to extenuate the crime."

"Oh yes! I understand you now," I replied. "You mean, that when there are extenuating circumstances, the jury assume the privilege of recommending the criminal to mercy. Our juries do this likewise."

"But not with the same authority," said he, smiling. "With us, the fate of the culprit is wholly in the power of the jury; for not only do they decide upon the question of guilty or not guilty, but, by the use of this word extenuating, they can remit by their sole will and pleasure the capital part of the punishment, let the crime be of what nature it may. No judge in this country dare sentence a criminal to capital punishment where the verdict against him has been qualified by this extenuating clause."

"It should seem then," said I, "that the duty of judge, which is attended with such awful responsibilities with us, is here little more than the performance of an official ceremony?"

"It is very nearly such, I assure you."

"And your jurymen, according to a phrase of contempt common among us, are in fact judge and jury both?"

"Beyond all contradiction they are so," he replied: "and I conceive that criminal justice is at this time more loosely administered in France than in any other civilised country in the world. In fact, our artisans have become, since the revolution of 1830, not only judge and jury, but legislators also. Different crimes have different punishments assigned to them by our penal code; but it rarely, or I might say never, occurs in our days that the punishment inflicted has any reference to that which is assigned by the law. That guilt may vary even when the deed done does not, is certain; and it is just and righteous therefore that a judge, learned in the law of the land, and chosen by high authority from among his fellows as a man of wisdom and integrity,—it is quite just and righteous that such a one should have the power—and a tremendous power it is—of modifying the extent of the penalty according to his view of the individual case. The charge too of an English judge is considered to be of immense importance to the result of every trial. All this is as it should be; but we have departed most widely from the model we have professed to follow. With us the judge has no such power—at least not practically: with us a set of chance-met artisans, ignorant alike of the law of the land and of the philosophy of punishment, have this tremendous power vested in them. It matters not how clearly the crime has been proved, and still less what penalty the law has adjudged to it; the punishment inflicted is whatever it may please the jury to decide, and none other."

"And what is the effect which this strangely assumed power has produced on your administration of justice?" said I.

"The virtual abolition of capital punishment," was the reply. "When a jury," continued M. V***, "delivers a verdict to the judge of 'Guilty, but with extenuating circumstances,' the judge dare not condemn the criminal to death, though the law of the land assign that punishment to his offence, and though his own mind is convinced, by all which has come out upon the trial, that instead of extenuating circumstances, the commission of the crime has been attended with every possible aggravation of atrocity. Such is the practical effect of the revolution of 1830 on the administration of criminal justice."

"Does public opinion sanction this strange abuse of the functions of jurymen?" said I.

"Public opinion cannot sanction it," he replied, "any more than it could sanction the committal of the crime itself. The one act is, in fact, as lawless as the other; but the populace have conceived the idea that capital punishment is an undue exercise of power, and therefore our rulers fear to exercise it."

This is a strange statement, is it not? The gentleman who made it is, I am sure, too much a man of honour and integrity to falsify facts; but it may perhaps be necessary to allow something for the colouring of party feeling. Whatever the present government does, or permits to be done, contrary to the system established during the period of the restoration, is naturally offensive to the feelings of the legitimatists, and repugnant to their judgments; yet, in this case, the relaxation of necessary power must so inevitably lead to evil, that we must, I think, expect to see the reins gathered up, and the command resumed by the proper functionaries, as soon as the new government feels itself seated with sufficient firmness to permit the needful exertion of strength to be put forth with safety.

It is certain that M. V*** supported his statement by reciting so many strong cases in which the most fearful crimes, substantiated by the most unbroken chain of evidence, have been reported by the jury to the judge as having "extenuating circumstances" attached to them, that it is impossible, while things remain as they are, not to feel that such a mode of administering justice must make the habit of perjury as familiar to their jurymen as that of taking their oaths.

This conversation brought to my recollection some strange stories which I had heard in Belgium apropos of the trial by jury there. If those stories were correct, they are about as far from comprehending, or at least from acting upon, our noble, equitable, and well-tried institution there, as they appear to be here—but from causes apparently exactly the reverse. There, I am told, it often happens that the jury can neither read nor write; and that when they are placed in their box, they are, as might be expected, quite ignorant of the nature of the duty they are to perform, and often so greatly embarrassed by it, that they are ready and willing—nay, thankful—to pronounce as their verdict whatever is dictated to them.

I heard an anecdote of one man—and a thorough honest Fleming he was—who having been duly empannelled, entered the jury-box, and having listened attentively to a trial that was before the court, declared, when called upon for his verdict, that he had not understood a single word from the beginning to the end of it. The court endeavoured to explain the leading points of the question; but still the worthy burgher persisted in declaring that the business was not in his line, and that he could not comprehend it sufficiently to give any opinion at all. The attempt at explanation was repeated, but in vain; and at length the conscientious Fleming paid the fine demanded for the non-performance of the duty, and was permitted to retire.

In France, on the contrary, it appears that human intellect has gone on so fast and so far, that no dozen of men can be found simple-minded enough to say 'yes' or 'no' to a question asked, without insisting that they must legislate upon it.

In this case, at least, England shows a beautiful specimen of the juste milieu.