The one and only
possible issue between the prosecution and the defence will be to
determine, by the character--of the accused and of his action, to
what anthropological class he belongs, whether he is a born
criminal, or mad, or an habitual or occasional criminal, or a
criminal of passion.
In this case we shall have no more of those combats of craft,
manipulations, declamations, and legal devices, which make every
criminal trial a game of chance, destroying public confidence in
the administration of justice, a sort of spider's web which
catches flies and lets the wasps escape.
The crime will always be the object of punitive law, even under
the positive system of procedure; but, instead of being the
exclusive concern of the judge it will only be the ground of
procedure, and one symptom amongst others of the depravation and
re-adaptability of the criminal, who will himself be the true and
living subject of the trial. As it is, the whole trial is
developed from the material fact; and the whole concern of the
judge is to give it a legal definition, so that the criminal is
always in the background, regarded merely as the ultimate billet
for a legal decision, in accordance with some particular article
in the penal code--except that the actual observance of this
article is at the mercy of a thousand accidents of which the judge
knows nothing, and which are all foreign to the crime, and to the
criminal.
Pages:
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
238