《乌合之众·第三编·不同群体的分类与描述·刑事陪审团》原文与注释
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逐节索引
- Being unable to study here every category of jury, I shall only examine the most important--that of the juries of the Court of Assize. These juries afford an excellent example of the heterogeneous crowd that is not anonymous. We shall find them display suggestibility and but slight capacity for reasoning, while they are open to the influence of the leaders of crowds, and they are guided in the main by unconscious sentiments. In the course of this investigation we shall have occasion to observe some interesting examples of the errors that may be made by persons not versed in the psychology of crowds. Juries, in the first place, furnish us a good example of the slight importance of the mental level of the different elements composing a crowd, so far as the decisions it comes to are concerned. We have seen that when a deliberative assembly is called upon to give its opinion on a question of a character not entirely technical, intelligence stands for nothing. For instance, a gathering of scientific men or of artists, owing to the mere fact that they form an assemblage, will not deliver judgments on general subjects sensibly different from those rendered by a gathering of masons or grocers. At various periods, and in particular previous to 1848, the French administration instituted a careful choice among the persons summoned to form a jury, picking the jurors from among the enlightened classes; choosing professors, functionaries, men of letters, &c. At the present day jurors are recruited for the most part from among small tradesmen, petty capitalists, and employes. Yet, to the great astonishment of specialist writers, whatever the composition of the jury has been, its decisions have been identical. Even the magistrates, hostile as they are to the institution of the jury, have had to recognise the exactness of the assertion. M. Berard des Glajeux, a former President of the Court of Assizes, expresses himself on the subject in his "Memoirs" in the following terms:--
- "The selection of jurymen is to-day in reality in the hands of the municipal councillors, who put people down on the list or eliminate them from it in accordance with the political and electoral preoccupations inherent in their situation. . . . The majority of the jurors chosen are persons engaged in trade, but persons of less importance than formerly, and employes belonging to certain branches of the administration. . . . Both opinions and professions counting for nothing once the role of judge assumed, many of the jurymen having the ardour of neophytes, and men of the best intentions being similarly disposed in humble situations, the spirit of the jury has not changed: ITS VERDICTS HAVE REMAINED THE SAME." Of the passage just cited the conclusions, which are just, are to be borne in mind and not the explanations, which are weak. Too much astonishment should not be felt at this weakness, for, as a rule, counsel equally with magistrates seem to be ignorant of the psychology of crowds and, in consequence, of juries. I find a proof of this statement in a fact related by the author just quoted. He remarks that Lachaud, one of the most illustrious barristers practising in the Court of Assize, made systematic use of his right to object to a juror in the case of all individuals of intelligence on the list. Yet experience--and experience alone--has ended by acquainting us with the utter uselessness of these objections. This is proved by the fact that at the present day public prosecutors and barristers, at any rate those belonging to the Parisian bar, have entirely renounced their right to object to a juror; still, as M. des Glajeux remarks, the verdicts have not changed, "they are neither better nor worse."
- Like all crowds, juries are very strongly impressed by sentimental considerations, and very slightly by argument. "They cannot resist the sight," writes a barrister, "of a mother giving its child the breast, or of orphans." "It is sufficient that a woman should be of agreeable appearance," says M. des Glajeux, "to win the benevolence of the jury." Without pity for crimes of which it appears possible they might themselves be the victims--such crimes, moreover, are the most dangerous for society--juries, on the contrary, are very indulgent in the case of breaches of the law whose motive is passion. They are rarely severe on infanticide by girl-mothers, or hard on the young woman who throws vitriol at the man who has seduced and deserted her, for the reason that they feel instinctively that society runs but slight danger from such crimes,[24] and that in a country in which the law does not protect deserted girls the crime of the girl who avenges herself is rather useful than harmful, inasmuch as it frightens future seducers in advance.
- [24] It is to be remarked, in passing, that this division of crimes into those dangerous and those not dangerous for society, which is well and instinctively made by juries is far from being unjust. The object of criminal laws is evidently to protect society against dangerous criminals and not to avenge it. On the other hand, the French code, and above all the minds of the French magistrates, are still deeply imbued with the spirit of vengeance characteristic of the old primitive law, and the term "vindicte" (prosecution, from the Latin vindicta, vengeance) is still in daily use. A proof of this tendency on the part of the magistrates is found in the refusal by many of them to apply Berenger's law, which allows of a condemned person not undergoing his sentence unless he repeats his crime. Yet no magistrate can be ignorant, for the fact is proved by statistics, that the application of a punishment inflicted for the first time infallibly leads to further crime on the part of the person punished. When judges set free a sentenced person it always seems to them that society has not been avenged. Rather than not avenge it they prefer to create a dangerous, confirmed criminal. Juries, like all crowds, are profoundly impressed by prestige, and President des Glajeux very properly remarks that, very democratic as juries are in their composition, they are very aristocratic in their likes and dislikes: "Name, birth, great wealth, celebrity, the assistance of an illustrious counsel, everything in the nature of distinction or that lends brilliancy to the accused, stands him in extremely good stead."
- The chief concern of a good counsel should be to work upon the feelings of the jury, and, as with all crowds, to argue but little, or only to employ rudimentary modes of reasoning. An English barrister, famous for his successes in the assize courts, has well set forth the line of action to be followed:-- "While pleading he would attentively observe the jury. The most favourable opportunity has been reached. By dint of insight and experience the counsel reads the effect of each phrase on the faces of the jurymen, and draws his conclusions in consequence. His first step is to be sure which members of the jury are already favourable to his cause. It is short work to definitely gain their adhesion, and having done so he turns his attention to the members who seem, on the contrary, ill-disposed, and endeavours to discover why they are hostile to the accused. This is the delicate part of his task, for there may be an infinity of reasons for condemning a man, apart from the sentiment of justice." These few lines resume the entire mechanism of the art of oratory, and we see why the speech prepared in advance has so slight an effect, it being necessary to be able to modify the terms employed from moment to moment in accordance with the impression produced.
- The orator does not require to convert to his views all the members of a jury, but only the leading spirits among it who will determine the general opinion. As in all crowds, so in juries there are a small number of individuals who serve as guides to the rest. "I have found by experience," says the counsel cited above, "that one or two energetic men suffice to carry the rest of the jury with them." It is those two or three whom it is necessary to convince by skilful suggestions. First of all, and above all, it is necessary to please them. The man forming part of a crowd whom one has succeeded in pleasing is on the point of being convinced, and is quite disposed to accept as excellent any arguments that may be offered him. I detach the following anecdote from an interesting account of M. Lachaud, alluded to above:-- "It is well known that during all the speeches he would deliver in the course of an assize sessions, Lachaud never lost sight of the two or three jurymen whom he knew or felt to be influential but obstinate. As a rule he was successful in winning over these refractory jurors. On one occasion, however, in the provinces, he had to deal with a juryman whom he plied in vain for three-quarters of an hour with his most cunning arguments; the man was the seventh juryman, the first on the second bench. The case was desperate. Suddenly, in the middle of a passionate demonstration, Lachaud stopped short, and addressing the President of the court said: `Would you give instructions for the curtain there in front to be drawn? The seventh juryman is blinded by the sun.' The juryman in question reddened, smiled, and expressed his thanks. He was won over for the defence."
- [25] The magistracy is, in point of fact, the only administration whose acts are under no control. In spite of all its revolutions, democratic France does not possess that right of habeas corpus of which England is so proud. We have banished all the tyrants, but have set up a magistrate in each city who disposes at will of the honour and liberty of the citizens. An insignificant juge d'instruction (an examining magistrate who has no exact counterpart in England.--Trans.), fresh from the university, possesses the revolting power of sending to prison at will persons of the most considerable standing, on a simple supposition on his part of their guilt, and without being obliged to justify his act to any one. Under the pretext of pursuing his investigation he can keep these persons in prison for six months or even a year, and free them at last without owing them either an indemnity or excuses. The warrant in France is the exact equivalent of the lettre de cachet, with this difference, that the latter, with the use of which the monarchy was so justly reproached, could only be resorted to by persons occupying a very high position, while the warrant is an instrument in the hands of a whole class of citizens which is far from passing for being very enlightened or very independent.
- Being well acquainted with the psychology of castes, and also with the psychology of other categories of crowds, I do not perceive a single case in which, wrongly accused of a crime, I should not prefer to have to deal with a jury rather than with magistrates. I should have some chance that my innocence would be recognised by the former and not the slightest chance that it would be admitted by the latter. The power of crowds is to be dreaded, but the power of certain castes is to be dreaded yet more. Crowds are open to conviction; castes never are.