The unfettered authority of the judge is inadmissible in regard to
the forms of procedure, which for the prosecuted citizen are an
actual guarantee against judicial errors and surprises, but which
should be carefully distinguished from that hollow and
superstitious formalism which generates the most grotesque
inanities, such as an error of a word in the oath taken by
witnesses or experts, or a blot of ink on the signature of a
clerk.
III.
Scientific knowledge of criminals and of crime, not only as the
deed which preceded the trial, but also as a natural and social
phenomenon--this, then, is the fundamental principle of every
reform in the judicial order; and this, too, is a condemnation of
the jury. Whilst Brusa, one of the most doctrinaire of the
Italian classical school, foretold a steady decline of the
``technical element'' in the magistracy, and consequently a
persistent intervention of the popular influence in the
administration of justice, the positive school, on the other hand,
has always predicted the inevitable decline of the jury in the
trial of crimes and ordinary offences.[16]
[16] It is interesting to observe that Carrara, in spite of
his public advocacy of the jury, wrote in a private letter in 1870
(published on the unveiling of his monument at Lucca):--``I
expressed my opinion as to the jury in 1841, in an article
published in the Annals of Tuscan Jurisprudence--namely, that
criminal justice was becoming a lottery.
Pages:
229
230
231
232
233
234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252
253