Herein we have an opportunity of solving the old question of the
authority of the judge, wherein we have gone from one excess to
another, from the unbounded authority of the Middle Ages to the
Baconian aphorism respecting the law and the judge, according to
which the law is excellent when it leaves least to the judge, and
the judge is excellent when he leaves himself the least
independent judgment.
If the function of the criminal judge were always to be, as it is
now, an illusory and quantitative inquiry into the moral
culpability of the accused, with the equally quantitative and
Byzantine rules on attempt, complicity, competing crimes, and so
forth--that is to say, if the law were to be applied to the crime
and not to the criminal, then it is necessary that the authority
of the judge should be restrained within the numerical barriers of
articles of the code, of so many years, months, and days of
imprisonment to be dosed out, just as the Chinese law decides with
much exactitude the length and diameter of the bamboo rods, which
in the penal system of the Celestial Empire have the same
prominence as penitentiary cells have with us.
But if a criminal trial ought to be, on the other hand, a physio-
psychological examination of the accused, the crime being
relegated to the second line, as far as punishment is concerned,
the criminal being kept in the front, then it is clear that the
penal code should be limited to a few general rules on the modes
of defence and social sanction, and on the constituent
elements of every crime and offence, whilst the judge
should have greater liberty, controlled by the scientific and
positive data of the trial, so that he may judge the man before
him with a knowledge of humanity.
Pages:
228
229
230
231
232
233
234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252