In modern societies, to tell the truth, there is another function assigned to all citizens, outside of their special capacity, and that is the electoral duty. But the cases are very different. The franchise does not demand a labour so difficult and delicate as critical judgment, and the reconstruction of the conditions of an act and of its author. It has no direct influence on the positive function of the person elected, but on the contrary it is a confession of the special incapacity of the elector to do what he intrusts to the capacity of the person elected. The franchise is but an elementary function of the assimilation of physiological elements in the social organism, which in the animal organism is performed by the aggregate of living cells, and in society by the aggregate of individuals, not being idiots or criminals, who possess the minimum of social energy. Far different is the administration of criminal justice, a technical and very noble function, which has nothing in common with the elementary function of the franchise. I could not indeed agree with the assertion of Carrara, who thought it a contradiction to deny to the people any participation in the exercise of the judicial authority when they are allowed to participate in the exercise of legislative authority. In the first place, the people have but a very indirect share in the legislative function, and, even where the referendum exists, very useful as I believe it to be, the people have only a simple, almost negative function, to say Yes or No to a law which they have not made, and would have had no technical ability to make. Thus the argument of Carrara could <p 198>only lead to the popular election of judges, as of legislators, and to a control by the people of the administrative action of the judges when elected No doubt this would have theoretical advantages, though in my opinion it would raise practical difficulties, especially in nations which do not possess a very keen conscience and political activity, after enfeeblement by centuries of despotism, or of political and administrative tutelage and centralisation. The jury, then, is a retrogressive institution, as shown by history and sociology, for it represents the medi<ae>val and instinctive phase of criminal justice. It has, indeed, a few advantages (there is always a certain profit in misfortune), especially when it operates on the final outcome of the classical theories--bringing to bear, for instance, an irresistible force against repeated theft, or murders committed at the instigation of others. And it has sometimes drawn attention to necessary penal reforms, after accepting certain conclusions of the positive school, such as the acquittal of criminals of passion, and political prisoners, or a greater severity towards habitual criminals.