CHAPTER II

CROWDS TERMED CRIMINAL CROWDS

Crowds termed criminal crowds—A crowd may be legally yet not psychologically criminal—The absolute unconsciousness of the acts of crowds—Various examples—Psychology of the authors of the September massacres—Their reasoning, their sensibility, their ferocity, and their morality.

Owing to the fact that crowds, after a period of excitement, enter upon a purely automatic and unconscious state, in which they are guided by suggestion, it seems difficult to qualify them in any case as criminal. I only retain this erroneous qualification because it has been definitely brought into vogue by recent psychological investigations. Certain acts of crowds are assuredly criminal, if considered merely in themselves, but criminal in that case in the same way as the act of a tiger devouring a Hindoo, after allowing its young to maul him for their amusement.

The usual motive of the crimes of crowds is a powerful suggestion, and the individuals who take part in such crimes are afterwards convinced that they have acted in obedience to duty, which is far from being the case with the ordinary criminal.

The history of the crimes committed by crowds illustrates what precedes.

The murder of M. de Launay, the governor of the Bastille, may be cited as a typical example. After the taking of the fortress the governor, surrounded by a very excited crowd, was dealt blows from every direction. It was proposed to hang him, to cut off his head, to tie him to a horse's tail. While struggling, he accidently kicked one of those present. Some one proposed, and his suggestion was at once received with acclamation by the crowd, that the individual who had been kicked should cut the governor's throat.

"The individual in question, a cook out of work, whose chief reason for being at the Bastille was idle curiosity as to what was going on, esteems, that since such is the general opinion, the action is patriotic and even believes he deserves a medal for having destroyed a monster. With a sword that is lent him he strikes the bared neck, but the weapon being somewhat blunt and not cutting, he takes from his pocket a small black-handled knife and (in his capacity of cook he would be experienced in cutting up meat) successfully effects the operation."

The working of the process indicated above is clearly seen in this example. We have obedience to a suggestion, which is all the stronger because of its collective origin, and the murderer's conviction that he has committed a very meritorious act, a conviction the more natural seeing that he enjoys the unanimous approval of his fellow-citizens. An act of this kind may be considered crime legally but not psychologically.

The general characteristics of criminal crowds are precisely the same as those we have met with in all crowds: openness to suggestion, credulity, mobility, the exaggeration of the sentiments good or bad, the manifestation of certain forms of morality, &c.

We shall find all these characteristics present in a crowd which has left behind it in French history the most sinister memories—the crowd which perpetrated the September massacres. In point of fact it offers much similarity with the crowd that committed the Saint Bartholomew massacres. I borrow the details from the narration of M. Taine, who took them from contemporary sources.

It is not known exactly who gave the order or made the suggestion to empty the prisons by massacring the prisoners. Whether it was Danton, as is probable, or another does not matter; the one interesting fact for us is the powerful suggestion received by the crowd charged with the massacre.

The crowd of murderers numbered some three hundred persons, and was a perfectly typical heterogeneous crowd. With the exception of a very small number of professional scoundrels, it was composed in the main of shopkeepers and artisans of every trade: bootmakers, locksmiths, hairdressers, masons, clerks, messengers, &c. Under the influence of the suggestion received they are perfectly convinced, as was the cook referred to above, that they are accomplishing a patriotic duty. They fill a double office, being at once judge and executioner, but they do not for a moment regard themselves as criminals.

Deeply conscious of the importance of their duty, they begin by forming a sort of tribunal, and in connection with this act the ingenuousness of crowds and their rudimentary conception of justice are seen immediately. In consideration of the large number of the accused, it is decided that, to begin with, the nobles, priests, officers, and members of the king's household—in a word, all the individuals whose mere profession is proof of their guilt in the eyes of a good patriot—shall be slaughtered in a body, there being no need for a special decision in their case. The remainder shall be judged on their personal appearance and their reputation. In this way the rudimentary conscience of the crowd is satisfied. It will now be able to proceed legally with the massacre, and to give free scope to those instincts of ferocity whose genesis I have set forth elsewhere, they being instincts which collectivities always have it in them to develop to a high degree. These instincts, however—as is regularly the case in crowds—will not prevent the manifestation of other and contrary sentiments, such as a tenderheartedness often as extreme as the ferocity.

"They have the expansive sympathy and prompt sensibility of the Parisian working man. At the Abbaye, one of the federates, learning that the prisoners had been left without water for twenty-six hours, was bent on putting the gaoler to death, and would have done so but for the prayers of the prisoners themselves. When a prisoner is acquitted (by the improvised tribunal) every one, guards and slaughterers included, embraces him with transports of joy and applauds frantically," after which the wholesale massacre is recommenced. During its progress a pleasant gaiety never ceases to reign. There is dancing and singing around the corpses, and benches are arranged "for the ladies," delighted to witness the killing of aristocrats. The exhibition continues, moreover, of a special description of justice.

A slaughterer at the Abbaye having complained that the ladies placed at a little distance saw badly, and that only a few of those present had the pleasure of striking the aristocrats, the justice of the observation is admitted, and it is decided that the victims shall be made to pass slowly between two rows of slaughterers, who shall be under the obligation to strike with the back of the sword only so as to prolong the agony. At the prison de la Force the victims are stripped stark naked and literally "carved" for half an hour, after which, when every one has had a good view, they are finished off by a blow that lays bare their entrails.

The slaughterers, too, have their scruples and exhibit that moral sense whose existence in crowds we have already pointed out. They refuse to appropriate the money and jewels of the victims, taking them to the table of the committees.

Those rudimentary forms of reasoning, characteristic of the mind of crowds, are always to be traced in all their acts. Thus, after the slaughter of the 1,200 or 1,500 enemies of the nation, some one makes the remark, and his suggestion is at once adopted, that the other prisons, those containing aged beggars, vagabonds, and young prisoners, hold in reality useless mouths, of which it would be well on that account to get rid. Besides, among them there should certainly be enemies of the people, a woman of the name of Delarue, for instance, the widow of a poisoner: "She must be furious at being in prison, if she could she would set fire to Paris: she must have said so, she has said so. Another good riddance." The demonstration appears convincing, and the prisoners are massacred without exception, included in the number being some fifty children of from twelve to seventeen years of age, who, of course, might themselves have become enemies of the nation, and of whom in consequence it was clearly well to be rid.

At the end of a week's work, all these operations being brought to an end, the slaughterers can think of reposing themselves. Profoundly convinced that they have deserved well of their country, they went to the authorities and demanded a recompense. The most zealous went so far as to claim a medal.

The history of the Commune of 1871 affords several facts analogous to those which precede. Given the growing influence of crowds and the successive capitulations before them of those in authority, we are destined to witness many others of a like nature.

CHAPTER III

CRIMINAL JURIES

Criminal juries—General characteristics of juries—statistics show that their decisions are independent of their composition—The manner in which an impression may be made on juries—The style and influence of argument—The methods of persuasion of celebrated counsel—The nature of those crimes for which juries are respectively indulgent or severe—The utility of the jury as an institution, and the danger that would result from its place being taken by magistrates.

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."

Many writers, some of them most distinguished, have started of late a strong campaign against the institution of the jury, although it is the only protection we have against the errors, really very frequent, of a caste that is under no control.[25] A portion of these writers advocate a jury recruited solely from the ranks of the enlightened classes; but we have already proved that even in this case the verdicts would be identical with those returned under the present system.Other writers, taking their stand on the errors committed by juries, would abolish the jury and replace it by judges.It is difficult to see how these would-be reformers can forget that the errors for which the jury is blamed were committed in the first instance by judges, and that when the accused person comes before a jury he has already been held to be guilty by several magistrates, by the juge d'instruction, the public prosecutor, and the Court of Arraignment.It should thus be clear that were the accused to be definitely judged by magistrates instead of by jurymen, he would lose his only chance of being admitted innocent.The errors of juries have always been first of all the errors of magistrates.

It is solely the magistrates, then, who should be blamed when particularly monstrous judicial errors crop up, such, for instance, as the quite recent condemnation of Dr.L—— who, prosecuted by a juge d'instruction, of excessive stupidity, on the strength of the denunciation of a half-idiot girl, who accused the doctor of having performed an illegal operation upon her for thirty francs, would have been sent to penal servitude but for an explosion of public indignation, which had for result that he was immediately set at liberty by the Chief of the State.The honourable character given the condemned man by all his fellow-citizens made the grossness of the blunder self-evident.The magistrates themselves admitted it, and yet out of caste considerations they did all they could to prevent the pardon being signed.In all similar affairs the jury, confronted with technical details it is unable to understand, naturally hearkens to the public prosecutor, arguing that, after all, the affair has been investigated by magistrates trained to unravel the most intricate situations.Who, then, are the real authors of the error—the jurymen or the magistrates?We should cling vigorously to the jury.

It constitutes, perhaps, the only category of crowd that cannot be replaced by any individuality.It alone can temper the severity of the law, which, equal for all, ought in principle to be blind and to take no cognisance of particular cases.Inaccessible to pity, and heeding nothing but the text of the law, the judge in his professional severity would visit with the same penalty the burglar guilty of murder and the wretched girl whom poverty and her abandonment by her seducer have driven to infanticide.The jury, on the other hand, instinctively feels that the seduced girl is much less guilty than the seducer, who, however, is not touched by the law, and that she deserves every indulgence.

[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.