Now
it is evident that a gathering of individuals of average capacity,
but not technical capacity, will in its decisions only be able to
follow the rules of common sense, or at most, by way of exception,
the rules of reason--that is, of their common mental habits, more
or less directed by a certain natural capacity. But the higher
rules of science, which are still indispensable for a judgment so
difficult as that which bears on crimes and criminals, will always
be unknown to it.
As for the irregularity of the action of a jury, it has been
deemed that this can be provided against by the formal distinction
between a decision of fact and a decision of law, in obedience to
the advice of Montesquieu, that ``to the popular judgment we
should submit a single object, a fact, a single fact.''
But without dwelling on the remark of Hye-Glunek, that in this way
the legal problem, which ought to be as indivisible as the
syllogism which creates it, is cut into two parts, it is evident
that Cambaceres was amply justified in saying, in the
Council of State, that the separation of fact from law is a
fallacy.
In fine, not only under the positive system of criminal procedure,
which demands of the judge, in addition to legal conceptions of
crime, some anthropological and sociological knowledge of
criminals, but even at the present day it is more correct to say
that the jury is concerned with the crime--that is, in the words
of Binding, with a legal fact, and not merely a material fact;
whilst the judge is concerned with the punishment.
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