PROFESSIONAL CUSTOMS.
The contempt for efficiency is carried far even in the liberal
professions and in professional customs. We all know the story, perhaps
a mythical one, of the judge who said to an earnest young barrister who
was conscientiously elaborating a question of law: "Now, Mr. So and So,
we are not here to discuss questions of law but to settle this
business." He did not say this by way of jest; he wished to say: "The
courts no longer deliver judgment on the merits of a case according to
law, but according to equity and common sense. The intricacies of the
law are left to professors, so please when conducting a case do not
behave like a professor of law." This theory, which even in this mild
form would have horrified the ancients, is very prevalent nowadays in
legal circles. It has crept in as an infiltration, as one might call it,
from the democratic system.
A magistrate, nowadays, whatever remnant of the ancient feeling of caste
he may have retained, certainly does not consider himself bound by the
letter of the law, or by jurisprudence, the written tradition; when he
is anything more than a subordinate with no other idea of duty than
subservience to the Government, he is a democratic magistrate, a Heliast
of Athens; he delivers judgment according to the dictates of his
individual conscience; he does not consider himself as a member of a
learned body, bound to apply the decisions of that body, but as an
independent exponent of the truth.
An eccentric, but in truth very significant, example of the new attitude
of mind is to be found in the judge, who formally attributed to himself
the right to make law and who in his judgments made references, not to
existing laws, but to such vague generalities as appealed to him, or to
doctrines which he prophesied would _later on_ be embodied in the law.
His Code was the Code of the future.
The mere existence of such a man is of no particular importance, but the
fact that many people, even those partially enlightened, took him
seriously, that he was popular, and that a considerable faction thought
him a good judge, is most significant.
There is another much commoner sign of the times. The worst form of
incompetence is perhaps that which allows a man to be competent without
realising it, and, in criminal cases at least, this seems to be the
normal attitude of the majority of our magistrates.
We should read on this point a very curious pamphlet called _Le Pli
Professionnel_ (1909), by Marcel Lestranger, a provincial magistrate. It
is very pertinent to our subject. It shows plainly that the magistracy
nowadays, both the qualified stipendiaries and the bench of magistrates,
has lost all confidence in itself and is terrified of public opinion as
represented by newspapers, associations, political clubs and the man in
the street; the magistrate knows too, or thinks he knows, that promotion
depends, not on a reputation for severity as it used to do, but on a
reputation for indulgence.
He is confronted in the execution of his duty by forces which are always
in coalition against him; the public, almost always favourable to the
accused, the press, both local and Parisian, the so-called science of
judicial medicine, which is almost always disposed to consider the
accused as persons not responsible for their actions. He lives, too, in
constant terror of being mixed up in a miscarriage of justice, for
miscarriage of justice is now a sort of craze, and with a considerable
section of the public every conviction is a miscarriage of justice. And
so the magistrate of first instance never dares to sum up severely, and
the stipendiary never dares press his interrogations with firmness.
There are exceptions of course; but these exceptions, by the
astonishment which they excite, and by the reaction to which they give
rise, show sufficiently, indeed conclusively, that they are abnormal,
outside the new order of things, outside the new habits of the people.
More often than not the subordinate magistrate, whose business it is to
commit the prisoner for trial, acts with timidity and reserve,
apologetically attenuating the crime; he leaves loopholes of escape,
appeals in audible asides for indulgence, dwells on the uncertainty of
evidence. He demands indeed the prisoner's head but lives in terror lest
he obtain it.
The fact is what both he and the stipendiary desire is that the affair
should be settled by an acquittal, for an affair settled by an
acquittal is an affair buried. Stone-dead has no fellow; it is consigned
to oblivion. It can never be made the sort of affair which someone is
sure to declare is a miscarriage of justice, or which someone, animated
by private and political spite or merely for the sake of a jest, can
make into a ghost to haunt for ten or even fifteen years the unfortunate
magistrate who had to deal with it.
M. Lestranger tells a story which, from all the information I can glean
and from what I can remember hearing at the time, is absolutely true and
a perfect illustration of thousands of similar cases.
A poacher, aged nineteen, first outraged and then strangled in the woods
a peasant woman, the mother of a family. On this occasion there could be
no question of a miscarriage of justice or even of any suggestion of
such a thing, because the prisoner pleaded guilty. That is a great
point. In France every conviction that is not based upon the prisoner's
confession is a miscarriage of justice; but when the prisoner pleads
guilty there can be no incriminations of this sort, although there might
be, for false confessions are not unknown, but nothing of the sort is
ever put forward, and the case seemed to be quite straightforward.
But the magistrates were terrified that the prisoner would be condemned
to death. The crime was horrible, particularly in the eyes of a village
jury, whose wives and daughters were often obliged to work some distance
from the village. Moreover, there was a tiresome man, the widower of the
victim, thirsting for vengeance, who sang the praises of his wife and
brought his weeping son into court while he gave his evidence. The
president and the public prosecutor were in despair.
"I have done all I can," said the president to the public prosecutor. "I
have made the most of his youth. I have repeated 'only nineteen years of
age.' I have indeed done all I can."
"I have done all I can," said the public prosecutor to the president. "I
have not said a word about the punishment. I merely accused. I could not
plead for the defence. I have done my best."
At the close of the hearing the chief constable was very reassuring to
these gentlemen. "He is under twenty and he looked so respectable at
the enquiry. It is quite impossible that he should be condemned to death
in this quiet village. You will see, he will not be sentenced to capital
punishment."
He was not. The jury brought in a verdict of guilty with extenuating
circumstances. The magistrates recovered their tranquillity.
M. Lestranger's facts are supported by figures. Those who commit crimes
which excite pity, such as infanticide and abortion, are less and less
likely to be prosecuted, and if they are, they are frequently let off,
however flagrant the offence. The average number of acquittals during
the last twelve years is twenty-six per cent. A magistrate nowadays is a
St. Francis of Assize.
Either the magistrate does not believe in his own efficiency, or he
sacrifices it to his peace of mind, and he cares more for his own peace
of mind than for the public safety. The magistracy will soon be no more
than a _facade_, still imposing but not at all alarming.
There is already a very serious symptom of how little confidence the
crowd has in the wholesome severities of justice; the criminal caught in
the act is often lynched or almost lynched, because it is well known
that if he is not punished immediately, he is very likely to escape
punishment altogether.
--Yet this same crowd, in the form of a jury, is often, almost always,
very indulgent.--True, and that is because between the crime and the
assizes there is often an interval of six months. At the date of the
crime it is the misfortune of the victim that excites the crowd, at the
date of the assize it is the misfortune of the accused. Be this as it
may, the practice of lynching amounts to a formal accusation that both
magistrates and juries are over indulgent.
* * * * *
The clergy even, who are more tenacious of tradition than any other
order in the State, are gradually becoming democratic to this extent,
that though by profession teachers of dogmas and mysteries, they now
teach only morality. In this way they try to get into closer touch with
the poor, and so have a greater hold upon them. Evidently they are not
altogether to blame. Only, when they cease to teach dogma and interpret
mysteries, they cease to be a learned body or to have the prestige of a
learned body. On the other hand they sink to the level of any other
philosophy, which teaches and explains morality, and illustrates it by
sacred examples just as well as any priesthood. The result is that the
people say to themselves "What need have we of priests? Moral
philosophers are good enough for us."
This Americanism is not very dangerous, in fact it does not matter, in
America, where there are very few lay moral philosophers; but it is a
very great danger in France, Italy and Belgium where their name is
legion.
* * * * *
In every profession, to sum it all up, the root of the evil is this,
that we believe that mere dexterity and cunning are incomparably
superior to knowledge and that cleverness is infinitely more valuable
than sound learning. Those who follow professions believe this, and the
lay public that employs the professions is not dismayed by this attitude
of the professional class; and so things tend to that equality of
charlatanry to which democracy instinctively tends. Democracy does not
respect efficiency, but it soon will have no opportunity to respect it;
for efficiency is being destroyed and before long will have disappeared
altogether. There will soon be no difference between the judge and the
suitor, between the layman and the priest, the sick man and the
physician. The contempt which is felt for efficiency destroys it little
by little, and efficiency, accepting the situation, outruns the contempt
that is felt for it. The end will be that we shall all be only too much
of one opinion.