At Rome, a better regulated republic, there were certain citizens chosen by the prætor who settled questions of fact, that is to say, decided whether an act had or had not been committed, whether a sum of money had or had not been paid; and the question of law was reserved for the centumvirs.
In England the jury still exists and has existed for centuries.
These various peoples have considered very properly that juries are excellently adapted for forming equitable decisions, since they possess a greater moral competence for this particular function, than is to be found elsewhere.
This is true; but on the other hand a jury has no intelligence. In November 1909, a jury in the Côte d'Or before whom a murderer was being tried, declared (1) that this man did not strike the blows, (2) that the blows which he struck resulted in death. Thereupon the man was acquitted, although his violence, which never took place, had a murderous result.
In the Steinheil case in the same month and year, the jury's verdict involved (1) that no one had been assassinated in the Steinheils' house, and (2) that Mme Steinheil was not the daughter of Mme Japy. If a verdict were a judgment this would have put an end to all attempts to discover the assassins of M. Steinheil and Mme Japy, and on the other hand there would have been terrible social complications.
But the verdict of a jury is not a judgment. Why? Because the legislator foresaw the alarming absurdity of verdicts. It is presumed in law that all juries' verdicts are absurd, and experience proves that this is often the case. Juries' verdicts always seem to have been decided by lot like those of the famous judge in Rabelais, and it is proverbial at the law courts that it is impossible to foresee the issue of any case that comes before a jury. It looks as if the jury reasoned thus: "I am a chance judge, and it is only right that my judgment should be dictated by chance."
Voltaire was in favour of the jury system, principally because he had such a very low opinion of the magistrates of his day, whom he used to compare to Busiris. But, with his usual inconsequence, he takes no pains to conceal the fact that the populations of Abbeville and its neighbourhood were unanimously exasperated against La Barre and D'Etalonde, and the people of Toulouse against Calas, and all of them would have been condemned by juries summoned from those districts as surely as they were by the magisterial Busiris.
The jury system is nothing but a refined example of the cult of incompetence. Society, having to defend itself against thieves and murderers, lays the duty of defending it on some of its citizens, and arms them with the weapon of the law. Unfortunately it chooses for the purpose citizens who do not know how to use the weapon. It then fondly imagines that it is adequately protected. The jury is like an unskilled gladiator entangled in the meshes of his own net.
I need hardly say that democracy with its usual pertinacity is now trying to reduce the jury a step lower, and draw it from the lower instead of the lower middle classes. I see no harm in this myself, for in the matter of law the ignorance and inexperience of the lower middle class and the ignorance of the working class are much the same. I have only mentioned it to show the tendency of democracy towards what is presumably greater incompetence.
Now comes the turn of the juges de paix. At present we still have juges de paix. Here we have a most interesting example of the way democracy strives after incompetence in matters judicial.