To the instinctive blindness of the judgment of juries we must add
their irresponsibility.
No doubt if the legislator required from all judges a simple Yes
or No, then perhaps the jury would be as good as the magistrate.
But instead of the unexplained verdict which Carmignani called
``the method of the cadi,'' we are of opinion that there should
always be substituted a sentence based on reasons and capable of
control, especially in the positive system of criminal procedure,
which demands from the judge an acquaintance with anthropology and
criminal sociology, and from his sentence the elements necessary
to the subsequent treatment of the convict, in agreement with the
characteristics of his individuality and of his crime.
But not only is the jury devoid of the qualities attributed to it;
it has a fatal defect, which alone is sufficient to condemn this
institution of the law.
In the first place, it is not easy to understand how a dozen
jurymen, selected at hazard, can actually represent the popular
conscience, which indeed frequently protests against their
decisions. In any case, the fundamental conception of the jury is
that the mere fact of its belonging to the people gives it the
right to judge; and as the ancient assemblies are no longer
possible, the essence of the jury is that chance alone must decide
the practical exercise of this popular prerogative.
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