That the feeling, which found expression in such enactments and usages and survives in schemes of expiation and vicarious sacrifice, lies scarcely skin-deep under the polished surface of our civilization, is evident from the force and suddenness with which it breaks out under strong excitement, as when Cincinnati rioters burn the court-house because they suspect the judges of venality and are dissatisfied with the verdicts of the juries. The primitive man and the savage, like the low and ignorant masses of civilized communities, do not take into consideration whether the objects from which they suffer injury are intelligent agents or not, but wreak their vengeance on stocks and stones and brutes, obeying only the rude instinct of revenge. The power of restraining these aboriginal propensities, and of nicely analyzing actions and studying mental conditions in order to ascertain degrees of moral responsibility, presupposes a high degree of mental development and refinement and great acuteness of psychological perception, and is, in fact, only a recent acquisition of a small minority of the human race. The vast bulk of mankind will have to pass through a long process of intellectual evolution, and rise far above their present place in the ascending scale of culture before they attain it.
For this reason Lombroso would abolish trial by jury, which seems to him not a sign of progress towards better judicatory methods, but a clumsy survival of primitive justice as administered by barbarous tribes and even gregarious animals. It makes the administration of justice dependent upon popular prejudice and passion, and finds its most violent expression or explosion in lynch law, which is only trial by a jury of the whole community gone mad. It would certainly be a dismal farce to apply to the criminal classes the principle that every man must be judged by his peers. In the cantonal courts of Switzerland the verdict of the jury is uniformly in favour of the native against the foreigner, no matter what the merits of the case may be; and this outrageous perversion of right and equity is called patriotism, a term which conveniently sums up and euphemizes the general sentiment of Helvetian innkeepers and tradesmen that “the stranger within their gates” is their legitimate spoil, and has no other _raison d’être_. In Italy, especially in Naples and Sicily, a thief may be sometimes condemned, but a murderer is almost invariably acquitted by the jury, whose decision expresses the corrupted moral sense of a people accustomed to admire the bandit as a hero and to consider brigandage a highly honourable profession.