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.