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the decks, lashing down everything that was not already

source:qsjtime:2023-11-29 21:08:06

We must remember that, under our modern penal procedure, it is not the individual guarantees that are lacking, such as the assigning of reasons for the sentence, the almost total abolition of punishments which cannot be reconsidered, appeals, reversals, revision, which would be still more efficacious under the positive system which we propose.

the decks, lashing down everything that was not already

One logical consequence of the psychological objection raised against judges would be the granting of a jury even in the Correctional Tribunals, though the experience which we have of it in the Assize Courts is not so encouraging as to leave many advocates of a jury in the minor courts.

the decks, lashing down everything that was not already

But a decisive objection, founded on the most positive data of sociology, can be raised against the jury.

the decks, lashing down everything that was not already

The law of natural evolution proves that no variation in the vegetable or animal organism is useful or durable which is not the outcome of a slow and gradual preparation by organic forces and external conditions. Thus an organ which ceases to have a function to discharge is subject to atrophy, and no new organ is possible or capable of development if it is not required by a new function to which it corresponds.

What has been said of organic variations is also true of social institutions. And when the jury is contemplated from this point of view, we see that it has been artificially grafted by a stroke of the legislator's pen on the judicial institutions of the continent, without the long-continued, spontaneous and organic connections which it had, for instance, with the English people. The jury had even disappeared from the continental countries in which it had left traces of former existence; for it had not found in the race-characteristics or the social organism that favourable environment which is supplied in England by the natural groundwork of institutions and principles which, as Mittermaier says, are its necessary correlative.

The jury, as it has been politically established on the continent of Europe, is what Spencer calls a false membrane in the social organism, having no physiological connection with the rest of the body politic. So that it is not yet acclimatised, even in France, after a century of uninterrupted trial.[18]

[18] The actual state of the law in Europe, so far as regards the jury for common crimes and offences, is as follows:--England, Scotland, Ireland, and Switzerland have the jury for assizes and courts of first instance. France, Italy, Cisleithan Austria, Istria, Dalmatia, Rhenish Prussia, Alsace-Lorraine, Bavaria, Bohemia, Gallicia, Belgium, Roumania, Greece, Portugal, Russia, and Malta, have the criminal jury only. Spain had suspended it, but restored it in 1888. Prussia, Saxony, Baden, Wurtemberg, have the criminal jury and echevins (bodies of citizens sitting with the judges) for correctional and police cases. Denmark, Sweden, and Finland, have the echevins. Holland, Norway, Hungary, Slavonia, Poland, Servia, and Turkey, have neither juries nor echevins.

As for the other bio-sociological law, of single organs for single functions, it seems to me that if in England the jury and the magistracy have been developed side by side and interwoven, this is only a case of organic integration. But on the continent, as the jury has been added artificially to the magistracy, this is on the other hand a genuine example of non-natural growth.