As for the irregularity of the action of a jury, it has been deemed that this can be provided against by the formal distinction between a decision of fact and a decision of law, in obedience to the advice of Montesquieu, that ``to the popular judgment we should submit a single object, a fact, a single fact.''
But without dwelling on the remark of Hye-Glunek, that in this way the legal problem, which ought to be as indivisible as the syllogism which creates it, is cut into two parts, it is evident that Cambac<e'>r<e!>s was amply justified in saying, in the Council of State, that the separation of fact from law is a fallacy.
In fine, not only under the positive system of criminal procedure, which demands of the judge, in addition to legal conceptions of crime, some anthropological and sociological knowledge of criminals, but even at the present day it is more correct to say that the jury is concerned with the crime—that is, in the words of Binding, with a legal fact, and not merely a material fact; whilst the judge is concerned with the punishment. Thus, in the Assize Court, the separation of the judgments is not between fact and law, but only between the crime and the punishment
Even admitting the possibility of this separation of fact and law, logic and experience have already belied the assertion of those who say with Beccaria that, ``for the appreciation of facts, ordinary intelligence is better than science, common sense better than the highest mental faculties, and ordinary training better than scientific.'' <p 191>
On the contrary, a criminal trial is not only concerned with the direct perception of facts, but also and especially with their critical reconstruction and psychological appreciation. In civil law the fact is really accessory, and both sides may be agreed in its exposition, whilst disputing about the application of the law to this fact. But in criminal justice the fact is the principal element, and it is not merely necessary to admit or to decide upon this or that detail, but we have also to regard its causes and effects, from the individual and the social point of view, without speaking of the common difficulty of a critical and evidential appreciation of a mass of significant circumstances. So that, as Ellero said, in a criminal trial the decision as to fact is far more difficult than that as to law. And by this time daily practice has accumulated so many proofs, more or less scandalous, of the incapacity of the jury even to appreciate facts, that it is useless to dwell upon them.
To conclude this question of the jury, it remains to speak of its defects, which are not the more or less avoidable consequences of a more or less fortunate application of the principle, which might be the case with any social institution, but, on the contrary, are an inevitable consequence of the laws of psychology and sociology.
So far as science is concerned, a fact exists in connection with a general law. For common sense, on the other hand, the actuality of the particular fact is the only matter of concern. Hence the inevitable tendency of the jury to be dominated by isolated <p 192>facts, with no other guide than sentiment, which, especially in southern races, confines all pity to the criminals, whilst the crime and its victims are all but forgotten. The very keenness of sentiment which would urge the people to administer ``summary justice'' on the criminal, when surprised in the fact, turns entirely in his favour when he is brought up at the assizes, with downcast mien, several months after the crime. Hence we obtain an impassioned and purblind justice.
And the predominance of sentiment over the intelligence of the jury is revealed in the now incurable aspect of judicial discussions. There is no need and no use for legal and sociological studies and for technical knowledge; the only need is for oratorical persuasiveness and sentimental declamations. Thus we have heard an advocate telling a jury that, ``in trials into which passion enters, we must decide with passion.'' Hence, also, the deterioration of science in the Assize Courts, and its faulty application, and its completely erroneous consequences.
Moreover, the verdict of the jury cannot represent the sum of spontaneous and individual convictions—not only in countries where juries are exposed to all kinds of influences during the adjournments of the discussion, but even in England, where unanimity is required, and where all communication of the jury with the outer world is forbidden until the end of the trial. For in every case the influence of the most intriguing or most respected jurymen in the jury's room is always inevitable. So that we have even <p 193>had irresponsible suggestions of public deliberation on the part of the jury.
Against these defects of the jury its advocates have set an objection in regard to the trained judge, namely that the habit of judging crimes and offences irresistibly inclines the judge to look upon every prisoner as guilty, and to extinguish the presumption of innocence even in cases where it would be most justified.