For common crimes it would be necessary to with<p 200>hold from a jury the trial of prisoners who avow their crime. The essence of a trial by indictment is the principle that the discussion as to punishment is a private affair, and it has no further ground for existence when one of the parties withdraws from the duel. Hence the English mistrust of a prisoner's confession of guilt, which in the inquisitorial trial, on the other hand, is a mainstay of the evidence. Yet I believe that in these cases the Scottish system is preferable to the English. In England the judge begins by asking the prisoner if he is Guilty or Not Guilty, and in case of a confession he passes sentence without a verdict from the jury. In Scotland, on the contrary, the prosecutor can furnish his proof, in spite of the confession of the prisoner, and demand a verdict from the jury. In this way it is possible to avoid not only a scandalous acquittal of prisoners who have confessed their guilt (as happens in Italy, France, and elsewhere), but also the danger that the confession may not be true, and that an innocent man may be condemned. Juries ought, moreover, as proposed by M. Ellero, to specify attenuating circumstances, on each of which a special question ought to be put to them. The jury ought also to have the right of spontaneously finding in a sense less serious than that of the charge, even when no corresponding question has been put to them. But at the same time it cannot be denied that these would only be palliatives, more or less efficacious. The only positive conclusion is that, whilst retaining the jury for crimes of the political and social <p 201>order, we should aim at its abolition for common crimes, immediately after securing stringent reforms as to the independence and capacity of the judges. IV. It needs no further demonstration that the modern organisation of punishment, based partly on the assumption that we can measure the moral culpability of criminals, and partly on an illusion as to their general amendment, and almost entirely reduced, in consequence, to imprisonment and the cell system, has absolutely failed to protect society against crime.