When reading of the past, I veer between thinking that everything has changed and that nothing has changed. The past for me is rather like one of those drawings that can be seen either as a duck or as a rabbit, but not as both at the same time.
In favor of the view that everything has changed is the comparison of the material conditions in which we now live with those of the past. Some might even say that the social media have changed Man’s nature, his neurological substrate, fundamentally. But in favor of the view that nothing has changed is the reading of literature, which demonstrates that human nature has remained constant. If it had not, what could Shakespeare mean to us? The fact is that the palette of emotions is still much the same as it ever was, and reason is still the slave of the passions.
In 1914, less than four years after the date at which Virginia Woolf famously claimed that human character changed, André Gide published a short memoir of his twelve days as a juror in the French criminal courts, Souvenirs de la cour d’assises. Reading it plunged me straight back into a world that I thought I had left behind me some years ago: that of prisons, trials, theft, robbery, assault, and murder. Nothing much had changed in the ninety years between Gide’s time and mine: nothing, that is, but the décor in which the events he related and those I remembered from my own experience took place. Oftentimes, his accounts of the cases on which he was called to deliver judgment found echoes in my own memory, although in one respect I had the advantage over Gide: I was as familiar with the victims of crime as with the perpetrators of it, which made me somewhat less given to the sentimentality towards criminals and criminality which afflicts so many intellectuals.
Gide, however, was not grossly sentimental. The man who, just over twenty years later, would outrage a good portion of the French (and Western) intellectual world with his unflattering depiction of the ussr, was not among those who thought that, until society itself could be made wholly just or fair, it had no right to defend itself against those who broke its laws. His book merely points to the defects or weaknesses of a system of justice as he found it, which is the right and duty of any person of goodwill:
I am not at all persuaded that a society can do away with courts and judges; but just how doubtful and precarious is human justice, I have been able to feel, to the point of anxiety, during these twelve days.
Nor did Gide attach bad motives to those involved in the system of criminal justice—rather the reverse. He paid tribute to their honesty, their hard work, their attempts to be fair; but it was these very qualities that made the deficiencies, the failures, and the errors of the system all the more glaring and painful. He suggested certain reforms which would improve the system but not perfect it, for difficulty was intrinsic to the task of protecting society and punishing the guilty, and of explaining crime without explaining it away.
It is untrue in the most literal sense that nothing has changed since Gide served on a jury. For example, he describes the poverty in which lived a father accused of sexual abuse of his daughter, poverty of a kind and degree that has been entirely eliminated, even at the lowest level of society, since then:
They all, father, mother, and two young children of six and three, slept on straw in the same room, without a bed. It was claimed that the accused had already wanted to touch [sexually assault] the child. He once made her lie in a sack with him; but he habitually slept in a sack, and as it was winter, it was possible that this was to keep her warm.
No one lives in such conditions nowadays. Gide wonders whether the poverty was such that it was causative in the commission of the alleged crime: “In this case, as in others, I would like to know what part circumstances played; would the crime have been committed if the accused had had the choice?”
Was it his sexual preference that made him commit the alleged crime, the ease with which he could commit it in such circumstances, or the likelihood that he could commit it with impunity? Though the poverty Gide describes is startling to a modern sensibility, these are still questions that arise in the minds of jurors today: for while such absolute destitution scarcely exists, people still live in sordid fashion. Are they the victims or the creators of their circumstances?
"Just how doubtful and precarious is human justice, I have been able to feel, to the point of anxiety, during these twelve days."
Though the poverty was of a completely different order in Gide’s day from any known nowadays, even it was not without some degree of moral causation. Gide says of the accused: “He was small, ugly, of sad aspect: his head was bestial. . . . He denied [the accusation] obstinately, with a mulish, stupid air.” The evidence gathered about his character was damning. “He thinks of himself rather than of his family,” said one witness; “He is mostly drunk every day,” said another; “He gets drunk and lets his children die of hunger,” said a third. All three testimonies are instinct with profound moral disapproval, the belief that his conduct was not simply a reaction to circumstances but a cause of them, and that such conduct was not morally acceptable even in his own impoverished milieu. But some would argue that his conduct was itself the result of earlier circumstances, and so on ad infinitum, back no doubt to the unhappy events in the Garden of Eden.
In the first page of the text, Gide quotes the Sermon on the Mount: “Judge not that ye be not judged.” And yet he is called on by his membership of the jury to pass judgment, even if difficult. The jury finds itself in an impossible position with regard to the man who has allegedly sexually assaulted his daughter, for in fact there is no evidence that could be called probative against him. “And as we have nothing, after all, to hold on to, if we find the accused guilty, it will be—as it often is—on presumption and because of the dubious allegation, because of his conduct in general, and also in order to rid his family of him.”
Gide does not tell us what in the end the jury decided, perhaps because, whatever decision it came to, it could be criticized. “What, you condemned a man without strict proof, without being certain beyond reasonable doubt of his guilt?” Or, “What, you sent such a man back to his family?” (For good or ill, social services at the time were rudimentary, and in any case it was far from certain that the children would have fared better in the cold care of charity, public or private.) Such dilemmas are far from unknown today.
Justice in Gide’s day was rendered much more quickly than today, both in the sense that trials followed crimes much sooner after they were committed, and that they were shorter in themselves. If swiftness is part of justice, then we are much less just than we once were, but it might be shown that the former swiftness led to more miscarriages of justice than occur nowadays. It wouldn’t be easy to measure this, and so we are left to believe more or less what we like, according to our prejudice.
In his twelve days as a juror, Gide pronounced his verdict on (at least) two trials for homicide, one for infanticide, one for burglary with attempted murder, two others for burglary, three for theft (one also for receiving stolen goods), one for pyromania, one for rape of a child, and three for sexual abuse of children.
Alone of the trials, that for infanticide reflects a real social change since Gide’s time (as well as the fact that all the jurors, advocates, and judges at the time were men, which was then taken for granted). Berthe Rachel, a servant in a household from the age of thirteen to seventeen, had hidden her pregnancy from her mistress, and began to have labor pains while she was milking the cows. She returned to the farmhouse with the milk and did some housework; her mistress, seeing her in pain suggested that she go to rest in her room. Lying on her straw mattress, she gave birth to a little girl. Fearful of a scolding, and of the baby crying, she put her hand over the baby’s mouth until she ceased breathing. Then she cut the baby’s throat with a pair of scissors, but according to the pathologist who examined her afterwards, she was already dead when her throat was cut. The next day she buried the baby, having in the meantime returned to work.
The police were informed by means of an anonymous letter—a literary genre that was to flourish, indeed have its golden age, less than thirty years later under the Vichy regime. The body was discovered, and during the trial Berthe was asked whether her mistress had not noticed that she was pregnant. She replied: “They saw that I was getting larger, but my mistress didn’t want to say anything. She didn’t say anything at all to me about it.” And then she added: “It’s the son who did it to me.” But when Berthe’s mistress herself took the witness stand and was asked whether she had not noticed Berthe’s pregnancy, she said: “No, never. If I had known her condition, I wouldn’t have kept her, that’s for certain.”
In this case, the jury recognized that Berthe had committed the act of which she was accused but, in order not to punish her, falsely claimed that she lacked the mental capacity requisite for criminal responsibility. Sometimes the desire for clemency and understanding eclipses or trumps the desire for intellectual honesty, as is still the case today.
Alone of the trials, that for infanticide reflects a real social change since Gide’s time.
I have testified in a few cases of infanticide, but our moral code having relaxed considerably from Gide’s time, the crime is never now committed for the reasons in Berthe Rachel’s case, and is also—as a consequence—much less common than formerly. If someone were to allege that abortion is the modern form of infanticide, I can say only that, personally, I do not regard it, except when performed very late in pregnancy, with the same degree of horror as infanticide of the type described above. And even if abortion were construed the modern equivalent of infanticide, it is undertaken for very different reasons from those of Berthe Rachel: that is to say, because continuing pregnancy is inconvenient or disruptive of life rather than because its continuation to term would result in dismissal from work and social opprobrium.
The other crimes on which Gide was called to pass judgment often reminded me strongly of cases I have personally encountered. It seems ironic that Gide, who would nowadays be regarded as a predatory sex criminal of a proto-Epstein type, judged four cases of sexual abuse of children; no doubt his publishers would have withdrawn his books from circulation as an earnest of their commitment to decency. But the passage of time lessens feelings of outrage, and no one nowadays refuses to read him even though, if still alive, he would be regarded as an exploitative monster who ought to be in prison.
The second of those accused of sexual abuse of a child who came before Gide’s jury was “dressed in rags, ugly, puny, shaven-headed, already with the air of a galley-slave; he was twenty years old, but so frail that he seemed hardly pubescent . . .”
Clearly, the accused was of defective intelligence. He did not understand the gravity of what he was charged with or what he had done, which he described without emotion; but when asked whether, having sexually assaulted the seven-year-old girl, he had then stolen some bread, he replied with indignation that he had not: that was a crime whose gravity he was able to comprehend. Asked at the end of the trial whether he had anything to say or whether he had any regrets, he simply said “No, monsieur,” though Gide was sure that he did not understand the second part of the question. According to what the accused had told the prosecuting authority, this was the first time that he had had sexual relations of any kind, and, Gide adds, was therefore all he knew of “love.” Having been found guilty—Gide avoids telling us how he voted—he was sentenced to eight years’ imprisonment.
Do we extend greater understanding now? I recall a young man, very similar (apart from the rags) to the young man described by Gide, brought to our prison after a sexual assault somewhat less grave than the aforementioned. Our prisoner’s level of intelligence was so low that he did not understand the reason for his incarceration, nor could he grasp it even when told. Although prisoners are usually harsh in their judgments of sex criminals and lose no time in attacking them if they are able, they intuited at once that he was not responsible in the normal way for his actions, and they treated him kindly, almost tenderly, as they might have treated a pet puppy. Nevertheless, to this day I can conjure up his howls of distress and incomprehension in my mind’s ear; he was one of two patients whose vocalization of suffering haunts me still, the other being a woman with neurosyphilis whose husband and pimp, called Bill, had abandoned her and left her to her fate. Her screams of “Bill! Bill!” ring in the corridors of my mind just as they rang in the corridors of the hospital in which I worked.
In the name of humanity, or at least of an ideology of humanity, we have suppressed the institutions which might have cared for the young man who was brought to our prison simply because there was nowhere else for him to go. Considering the enormous increase in our wealth since Gide wrote, and the pride that we take in our supposedly superior level of compassion and understanding, to say nothing of our vast expenditures on social services, this struck me, and strikes me still, as scandalous and shameful.
Gide describes many of the dilemmas that still confront jurors, and the temptations to which they are subject. How to interpret conflicting evidence? How reasonable must doubt be to be reasonable? When several people are accused of the same crime, but each claims it was the responsibility of the others, and no conclusive evidence of the relative guilt or innocence of the individuals can be offered, what is the juror to do?
There is an epilogue to this short book. Three months after his jury service, Gide was traveling in a train from Narbonne to Nîmes in a compartment in which a youth of sixteen, accompanied by his mother, was on his way to court, not as a criminal, but as a witness, having been the victim of a vicious attack that left him for dead. A discussion ensued in the compartment about the nature of crime, criminality, and criminals. The discussion could have taken place today, except that there are almost no compartments in trains, certainly not for journeys of less than a hundred miles.
The passengers express the same range of views as can be heard today. “A criminal is a criminal, that’s all there is to it.” “They can’t find work when they come out of prison.” “That’s because no one wants them because they start again soon after.” “They are often criminals because they have been brought up so badly, it’s the parents who are responsible. If parents were not so weak, there would be fewer crimes.”
Gide describes many of the dilemmas that still confront jurors, and the temptations to which they are subject.
Gide tells a story against himself. A man who says that criminals always continue to commit crimes no matter what tells the story of a man wrongly convicted of murder who is released after twenty-seven years of imprisonment, the real culprit having confessed to it on his deathbed. “Do you know what he [the wrongly imprisoned] said on his release? That it wasn’t too bad there [in prison]. That is to say, there are plenty of honest men in France who are less happy than prisoners.” The real culprit lived for twenty-seven years, “no one suspecting him, and well thought of by the people around him.”
Gide then says, “It seems to me that this example contradicts a little what you said just now. . . . This example proves that a man can commit an isolated crime and not sink into further crime. After this [isolated] crime, you say that he lived twenty-seven years as an honest man. If he had been convicted, there is every chance that he would have become a recidivist.”
“So,” says the man to whom Gide addresses himself, “you don’t call it a crime to let an innocent man take your place in prison for twenty-seven years?”
Quite apart from the fact that Gide here subscribes to the widespread but false belief among the self-consciously generous-minded that it is prison that makes the recidivist rather than recidivism that makes the prisoner, he clearly gets the worse of the argument. But in the strict sense he is right: there are murderers (and no doubt other criminals) who commit an isolated serious crime; it is just that they are a small minority and most murderers are not, apart from their one murder, fine, upstanding pillars of society. No generalization about human beings is without its exceptions.
What did Gide mean to imply by his argument? That if a man commits a murder and is believed not likely to commit another, that he should be excused all punishment, because to punish him does no good? I doubt it: he was too sophisticated a realist for that. I think he merely wanted to puncture the bourgeois complacency of his interlocutor, who besides being fat had earlier expressed the view that the best way to ensure that released prisoners worked was to put them with a pump at the bottom of a pit and constantly refill with water. In the century to come, tortures as bad or worse were to be devised.
Gide’s little book might have accompanied me during my time as a doctor working in a prison and as a witness in murder trials. It raises many of the questions that ran as a refrain through my mind as I worked: At what point do circumstances excuse a man or relieve him of his responsibility? How may one be realistic without being harsh? How far can one extenuate without becoming sentimental? To what extent are we all the product of our heredity and environment? I do not foresee a time when these questions will be completely answered to everyone’s satisfaction, or even to mine.
There but for the grace of God go I; or do I?
This article originally appeared in The New Criterion, Volume 38 Number 9, on page 30
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