Paris and the Parisians in 1835 (Vol. 2)

by Frances Milton Trollope

"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.