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."