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CHAPTER XXIII.: JURY-TRIAL. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
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Jury in general.
English law, being the only source from whence, in any other country, any conception relative to the institution thus denominated is commonly deduced,—from this same body of law it is, that any explanation given in relation to it must be deduced. This, then, is the standard of reference which, whether any express reference be made to it or no, must hereinafter be continually borne in mind.
Taken in its most extensive sense, a jury* may be defined an occasional body of non-professional and non-official judges, employed to constitute and apply a check to the power of a professional or official judge, or body of judges.
Juries may be distinguished, in the first place, into juries employed for general purposes, and juries employed for particular purposes.
The cases in which juries are employed for particular and comparatively limited purposes, are scattered over the field of English procedure in too great variety to admit of enumeration here.
Juries employed for general purposes may be distinguished into petit juries and grand juries: petit juries again into common juries and special juries. Jurymen are the set of men by whom, in conjunction with the judge, to the end that execution and effect may be given to the laws, application is made of those same laws to the several individual cases which come before them. By what sort of men ought this application to be made?—By what, but by those on whose will it depends by what hands those same laws shall be made.
In any, and in what cases, ought a jury to be employed? Of the sort of body thus denominated, the main use is to apply a check to the power of the permanent judge, or body of judges: that power which, bating appeal, would, but for such a check, be arbitrary.
For whatsoever advantages are derived or derivable from this appendage, not inconsiderable is the price paid in the shape of disadvantage. Only, therefore, in case of necessity—only in proportion to the necessity, should employment be given to it.
1. Evil effect the first, complication.
2. Diminution made of responsibility at the bar of public opinion on the part of the judge.
3. At the charge of the individuals employed in this character, vexation, by reason of attendance; or, at the charge of the public or individuals, benefit in the shape of money, or some other shape to compensate for it.
4. At the charge of the suitors, increase given to delay, vexation, and expense of procedure.
In another work,* where punishment was the subject, the five cases in which the application of it was unapt, were brought to view: where it is groundless—where it is useless—where it is needless—where it is inefficacious—where it is too expensive. Where the subject is this appendage to the judgment seat, those same cases may help to serve for guidance.
Appeal out of the question, by how much soever too expensive, scarcely in any case could this appendage be justly said to be useless, needless, or inefficacious.
But let the public be a good one—as good as, by the help of such arrangements as the above, it might be made everywhere, and the road to appeal as easy as it might be made, appeal will, in the great majority of cases, suffice to render it needless: especially if into the judicatory of appeal this appendage be introduced.
Where neither party sees any such ground of complaint as affords hope of redress, appeal will not be made. Thus, for the reasons given elsewhere, it will be, in the great majority of cases—suppose in nineteen out of twenty. Place no jury-box in the judicatory below; place one in the judicatory above: here, by one appeal, you save nineteen juries.
Thus much as to non-penal causes.
With little variation, the same observations will be found to apply with equal propriety to such penal causes as receive that shape and denomination, for no other reason than the want of an individual party, to whom compensation can be made.
Cases where it is needless:—
In a case between individual and individual, if both parties are as well or better satisfied without it as with it, it is needless—it is worse than useless; the evil effects attached to it stand all uncompensated. Of the whole amount of the addition made by this appendage, to the expense of judicature, the effect is that of a tax upon justice: of this tax, at the charge of those who are unable to pay it, the effect is that of a prohibition. Of this prohibition the effect is, in the cases in question, a denial of justice.
In the great majority of non-penal suits instituted, there exists not any dispute: the need of judicature is on the part of the plaintiff; his demand is well grounded: on the part of the defendant, inability or backwardness has been the sole cause of non-compliance. By the extra expense attached to procedure, by the jury, inability is not removed or lessened, but increased: to the surmounting of whatsoever backwardness may have place, this instrument of complication affords not assistance, but obstruction.
Even where the cause of dispute, and dispute accordingly, has existence, the great majority of the number of individual cases are of the most simple nature: if the parties were present, from ten to thirty minutes would serve as effectually for discussion, as the same number of years would.
To the greater number of cases individually taken, rather than to the lesser, should the system of procedure be in the first instance adapted.
Causes made penal by reason of aggravation stand upon a footing widely different.
In a non-penal case between individual and individual, generally speaking, it is only by accident, and that a rare one, that the judge will stand exposed to the temptations offered by particular and sinister interest: from the magnitude of this danger, defalcation may be made by arrangements having for their object the excluding functionaries of this class from serving in districts in which they have connexions.
Not so in criminal causes.
In the most important portion of these causes, viz. that in which the alleged crime belongs to the field of constitutional law—where, in a word, the rulers as such, in addition to their share in the universal interest, possess a particular interest,—the judge who, as such, would never fail to possess (to an amount more or less considerable) interest, adds to the ostensible situation of a judge, the real character of a party, viz. on the plaintiff’s side of the cause. In these cases, nothing therefore that can contribute to the establishment of a counter-force, capable of applying an effectual check to the force of this temptation, can be either needless or superfluous. The power of a jury presents the only counter-force applicable to this purpose.
In another class of cases, though the demand for a jury is not quite so strong, it is too strong to be resisted. The offences belonging to it may for this purpose be denominated offences through indigence, or the offences of the indigent; theft, fraudulent obtainment, robbery, i. e. forcible depredation, may serve for examples. In the suppression of offences of this class, men of all ranks have, it is true, one common interest. But in proportion as the sympathy a man feels for individuals belonging to the class in which offenders of this description are most apt to be found, is faint, the check applied by this social, to the self-regarding spring of action, is weak; and the anxiety to reach the guilty predominates over the inclination to avoid striking the innocent. The indifference with which a judge habituated to the trial of causes of this description, views the conviction and death of a defendant, guilty or innocent, might be represented by the indifference with which a butcher contemplates the slaughter of a lamb, for the earcase of which he is paid—were it not for the delight, which the judge, hating and hated by the class by which his victims are afforded, extracts from the contemplation of their misery. A citizen of London will not be at a loss for an example.*
By the same causes by which a judge will be led to regard on this occasion, with less than due sympathy, the interests of those classes which he sees lying under his feet,—by these same causes will he be led to regard with more than due sympathy those interests upon the same level with his own, or above it. In England, seeing a judge guilty, as such, of a crime of any degree, from the lowest to the highest, you are determined he shall be punished,—you must murder him, for there are no other means possible: if your wish is to see yourself punished, accuse him of it: you will not miss your mark.
Of the cases treated on the footing of criminal cases, another division which may be mentioned on this occasion, is that of the offences against the revenue. For an offence of this description, neither himself nor any particular connexion of his, will the judge be in much danger of becoming the subject of prosecution. Of the class to which he belongs, and by the sympathy with which he is engrossed, it is the interest that the mass of wealth extracted from the labour of the labouring classes be as great as possible: the greater it is, the more there is of it to enrich them, and encourage others. Rather than see one guilty individual escape, what number of innocent ones he would see suffer, it is not so easy to say.
A legislator ordaining, a judge decreeing, that whatsoever a man sells that is fit to eat, (if the individual be one whom the king delighteth to honour with his punishments,) he shall be punished and ruined for it! Would you wish to see such a government, go not to Rome under Tiberius—go not to Rome under Nero;—come to England under George IV.,—look to the Treasury under Lord Liverpool and Mr. Vansittart. For a competent ground of punishment there can be no want: coffee is among the subjects of taxation, coffee is among the eatables and drinkables taken for breakfast; and the thing sold, be it what it may, is capable of being eaten or drunk instead of it.
To that division of penal cases, which are such for want of an individual specially injured, and which, from some cause or other, have escaped the being raised to the rank of criminal ones, the above-mentioned observations will be found to apply, without any variation that will not readily enough present itself.
Use of jury’s unamimity, causing weakness in Government.
After all, the great and principal use of jury trial has been keeping up an all-pervading weakness in the whole frame of government.
1. The state of the English people has been, in comparison with that of other nations, to such a degree felicitous, as to have been with justice styled, in the language of its rulers, the envy and admiration of the world.
2. The prosperity thus possessed has had for its cause the state and condition of the government, taken in all its parts.
3. It has had for its cause the state of the governors, with reference to their effective power over the governed.
4. But under that head it has had for its cause, not the efficiency and plenitude of that same power, but its inefficiency; not the strength of the governors as towards the governed, but their weakness.
5. It has had for its cause, not the degree in which the designs of the governors in relation to the governed have taken effect, but the degree in which they have failed of taking effect.
In England, government has had for its end in view the greatest happiness, not of the greatest number of the community, but of the comparatively few by whom have been shared among themselves the powers, and thence the sweets of government.
This state of ends in view is the result of that general habit of self-regard and self-preference which has place in the whole species, and is not merely subservient to its well-being, but necessary to its very existence.
To this rule as applied to governors (to those by whom the powers of government are exercised,) not even does the case of the Anglo-American United States afford an exception. Over the few by whom the powers of government in detail are seen to be exercised—over those in whose hands the operative branch of government is lodged, stand the many in whom is lodged the constitutive branch, with relation to these same possessors of the operative branch of government; the possessors of the constitutive power placing, either by an immediate or unimmediate exercise of that power, the possessors of the operative power; and the possessors of the constitutive power either of themselves constitute the greater number, or are so linked to them by community of interest, as that the interest of the greater number cannot be sacrificed by them, without the sacrifice of their own.
In this state of things, whatever in a different state of things would have been their wishes, designs, and endeavours, by the possessors of the supreme operative power never are any endeavours employed to give effect to that universally-natural and universally-prevalent self-preference; for where success is manifestly impracticable, neither endeavour nor design is likely to have place.
Of those by whom in this country, which is the envy and admiration of surrounding nations, the powers of government have been exercised, the wishes, designs, and endeavours never have been, nor can have been, any other than the wishes, designs, and endeavours of those by whom the powers of government have been exercised in these same surrounding nations.
But in England, several causes have concurred in preventing these wishes, designs, and endeavours, from having to so large an extent been carried into effect, as in these same surrounding nations.
Of these causes, the power that has been exercised by juries has been a principal, if not the principal one.
The causes appear to have been as follows:
1. The insular state of the country, whereby it has in an almost exclusive degree, ever since the Norman conquest, been preserved from hostile inroads, with the waste attending them, under which, at the hands of one another and the English, those other nations have so frequently and extensively been suffering. The division into South and North Britain, while it continued, formed to a certain degree an exception: say, in a word, insularity.
2. The other causes may be comprised underone general denomination—general weakness in the frame of government.
The following are the particular causes of which this general cause may be said to be composed:—
1. Jury-trial, more particularly in its application to such penal causes in which it has been the interest, real or supposed, of the monarch, and those in authority under him, that conviction should ensue.
2. A beneficial effect, and that the principal one, of the power of juries, has been the comparative inexecution and inefficiency of the design and endeavour of the other constituted authorities against the liberty of the press and public discussion.
3. The weakness infused into the general frame of government by the lawyer class, by means of the course of practice pursued by them, and rules laid down by them in prosecution of their own particular and sinister interest.
Had the measures of government had for their end in view the greatest happiness of the greatest number—had the laws and operations of government been in a uniform manner constantly directed to that end,—far from operating as a remedy to evil, all such weakness would have been itself, in the whole extent of it, an evil—an evil proportioned in its magnitude, to the importance of the parts of the law thus weakened and rendered ineffectual to those ends.
As it is, it has to a great, to a vast extent, operated as an evil: nor, in its character of a remedy to the greater evil, has its efficacy been more than partial: in particular, as to the preserving from utter destruction the liberty of the press.
But partial as the effects of this remedy have been—partial as the effects of this, together with the other causes of debility in the form of government, have been in their character of a remedy against misgovernment,—to such a degree has the whole form of government, taken together, been repugnant to the only legitimate end of government, the greatest happiness of the greatest number, that notwithstanding the partial evils produced by, and proportioned to, the general weakness in the form of government, such is its nature, that by every fresh degree of weakness introduced into it, the interest of the greatest number is served in a greater degree than it is disserved; and supposing the weakness to end in utter dissolution, the utmost quantity of evil attendant on such dissolution would not be nearly equivalent to the quantity of good, which its certain consequence, a real constitution, having for its end in view the greatest happiness of the greatest number, would produce.
Among the laws by which the greatest happiness of the greatest number has been sacrificed to the happiness, real or supposed, of the ruling one, and the sub-ruling few, are the following:—
1. All the laws which give to the persons, property, and other rights of the monarch, and his subordinate rulers, as such, any greater security than is afforded to individuals at large. As individuals, they ought to have whatever protection is necessary: as rulers, they ought not to have any more. In the Anglo-American United States, no such extra protection is afforded them: and in the Anglo-American United States, instead of being the less secure, they are the more perfectly secure. No King of England—no other man whose seat is called a throne, is so secure against hostile attacks by individuals, as the President of the Anglo-American United States is.
2. All laws having for their object any obstruction, either direct or indirect, to the free communication of opinion in relation to matters of government on the part of individuals, whether in writing or by word of mouth. In the condition of that people may be seen, and is seen, by all that can endure to see it, the fullest proof that no restraints upon any such freedom are necessary to the maintenance of the most profound tranquillity, under a government in which the greatest happiness of the greatest number is the object really pursued. In that same example may also be seen another proof, that of all such restraints, the effect is not to cause tranquillity, union, good-will, or any other such moral instrument of felicity, but to disturb it.
Under this description come all laws against treason, and sedition—all laws against the application of the press to the purpose of indicating grievances in the government, and proposing remedies to those grievnaces or to, the purpose of holding up to view misconduct in any shape, on the part of any persons concerned in the exercise of the powers of government—any public functionaries, considered as such. And under the name of laws must be included all sham or spurious laws, as well as genuine ones: meaning by sham or spurious laws, the laws, as they are called, made under the name of rules of law, by judges, on pretence of declaring what is law; for the genuine and the spurious are so mutually interwoven, that to separate them is impossible.
Of the laws and rules of law made against the liberty of the press, the object and endeavour has been to secure not only impunity, but non-divulgation, to all misdeeds committed on the part of any of the persons concerned in the exercise of the powers of government—of the public trustees of every class—to the prejudice of those for whom, for form’s sake, they every now and then acknowledge themselves to be in trust. Laying down such a rule, was doing much farther towards the establishment of a complete despotism, than was done by those who, in Hampden’s case, sought to invest the king alone with the unlimited power of taxation, and had much less excuse for it in precedent. It was in effect an open avowal of misrule in all its branches—a declaration of war on the part of all those who bear a part in the exercise of the powers of government, against all those on whom, and at whose expense, those powers are exercised—a declaration of war by all rulers against all subjects.
Had it been carried into effect, by no imaginable particular act of oppression or depredation on the part of rulers, could resistance, rebellion, deposition on the part of subjects, have been more completely justified: for by it, the design and determination to persevere, and for ever, in every such tyrannical course, was openly professed. Had it been with any consistency carried into effect, such would have been the result: and it would or course have been carried into effect, had it not been for the power still remaining in the hands of juries.
In England, any such notion as that of suffering a judge to treat as guilty an individual who, in the opinion of a jury, had been declared not guilty, would be intolerable;—scarcely would the highest paid, and most determined confederate, or instrument of despotism, venture to accede to it: indeed, supposing it to apply to libel law, or, in a word, to any offences in regard to which the influential members of the government took any interest, juries might as well be discarded altogether. But countries are not wanting, in which an arrangement of this sort might be attended with preponderant advantage: for countries are not wanting, in which the admission of juries, with powers equal to those possessed, howsoever exercised or left unexercised by English juries, would be incompatible with the existence to any good effect of penal, not to say of non-penal laws.
Suppose the exercise of this power on the part of the judge limited to the cases in which, in the event of ungrounded punishment, the injury done by it will not be irreparable; the injury done by it would be as nothing, in comparison of the mischief that would be done, either by an unchecked jury, or an unchecked judge. To any misuse of this power on the part of the judge, checks of no inefficient nature would be applied by an adequate recordation of the evidence, and regular reports of all such cases, made to the central authority in the seat of supreme judicature: still more, if the importance of the case warranted any such expense as that of printing and publishing the evidence in the district in which the cause has been thus decided.
In what causes shall a jury be employed.
In no civil cause, in the first instance.
In every civil cause, in the way of appeal.
In all penal causes in which reputation is affected; viz. that class which in French law used to go by the name of grand penal. In general, not in the first instance in penal causes, by which reputation is not affected; viz. in that class which used to go by the name of petit pénal. But in all these in the way of appeal.
In English law, (with the exception of those causes of which the sort of judicatory styled a court of equity takes cognizance, and those of which, by local statutes, cognizance is given to the small-debt courts, and a few of a miscellaneous nature, of which cognizance is given to justices of the peace acting singly, or in petit sessions, or in general sessions,) every cause goes in the first instance to a judicatory with a jury in it; also in the second instance, if the great four-seated judicatory, out of which the cause was sent to the compound judicatory composed of one of the twelve judges with a jury, have thought fit to give leave.
Of the causes which are thus brought before a jury in the first instance—in the far greater number, justice is outrageously violated by the course thus taken—outrageously violated, and of course for the benefit of the class by which the violation has been established.
In by far the greater number of causes, there is nothing for the jury to do; in fact, there is no dispute. The litigation has for its cause no other than, on the part of the defendant, either inability or unwillingness to do what he is by law bound to do, and thus required to do; viz. in most cases, pay a sum of money.
Wherever inability is the cause, whatever is the degree of insufficiency antecedently to the commencement of the cause, that degree is deplorably heightened by the progress of it. By the defendant, delay is purchased—purchased at a usurious interest; and the hands by which the interest-money is received and pocketed are—instead of those of the injured plaintiff, those of the lawyer, and those of the man of finance: enormous taxes having been imposed on such chance as an injured man was obliged to purchase in the lottery of what is called justice. If the price so paid for delay, were paid in the shape of interest on the money due, the quantum of it would run in proportion to the amount of the money due: it would be proportioned to the advantage gained to the defendant by the non-payment, and to the disadvantage suffered by the plaintiff from that same cause. As it is, it bears no proportion to either standard: it is the same, whether the principal money due be 40s. or £40,000.
Of another class of cases that are brought before a jury, cognizance by a jury is not possible: the impossibility has for its cause, the time necessary for the statement and discussion of the case. In the most ordinary species of cause, the statement and discussion by advocates on both sides, the charge given by the judge, and the consideration bestowed by the jury, occupy a considerably less quantity of time, than that during which twelve men can continue sitting together without inconvenience. But there are some causes, the hearing of which in this mode could not be completed in many times that portion of time. Various are the sorts of causes thus circumstanced. The most commonly occurring sort, and those which are most readily conceived to be in this predicament, are causes of account. The attorney, and the advocate or counsel, as he is called, by whose advice a case of this sort is brought before a jury, knows full well, that by the jury, when it comes before them, nothing will or can be done in it. When the jury is sitting, with the judge on the bench above them for their direction, a discovery is pretended to be made, that in that way it cannot receive a decision. The advocates on both sides having laid their heads together, the discovery is announced to the judge—to the judge, whom long experience has prepared for the receipt of such discoveries. Then comes the necessary resource—sending the cause off to arbitration: arbitrators are then appointed, who are almost always some of the advocates themselves, or their connexions. An advocate on each side, or one chosen on both sides, now takes cognizance of the cause. The payment he receives being proportioned to the number of his sittings, he takes care that the time of each sitting shall not be too great, nor the number of the sittings too small.
The cause may be simple—at the utmost point of simplicity; and in this case happily are by far the greatest number of causes. It may be complex to the utmost pitch of complexity; and in this case are unhappily not a few. In the former case, the delay created, and expense bestowed on jury-trial, is the whole of it a waste. Simple or complex, under the English system, one jury is allotted to every cause, and to no cause more than one. Were the parties heard in presence of each other at the outset, nine-tenths would be disposed of in as many half-hours; and of the remainder there would be some in which would appear at the first hearing, from one to half-a-dozen or more points, capable of constituting each of them matter for a separate jury-trial, and capable upon occasion of being distributed, for dispatch sake, amongst as many juries.
Effects advantageous and disadvantageous.
Direct and indirect:—of the effects of jury-trial, this may serve for the first division.
By the direct effects, I mean those which flow in an immediate way from the causing the decision to be given by a jury,—instead of its being pronounced by a judge or set of judges,—and that are produced independently of any influence exercised by this circumstance on the conduct and character of the judge.
Consider in the first place the effects of the first order; viz. the influence exercised by this circumstance on the rectitude of the decision pronounced in each individual cause, considered without reference to other causes, and without reference to the feelings of any persons other than those of the parties to the cause, and their particular connexions.
Supposing that, on the part of the judge, adequate moral aptitude be to be depended upon, no advantage—no superior probability of rectitude of decision, could reasonably be expected, from the substitution of this everchanging judicatory, to a permanent one. Neither in respect of intellectual appropriate aptitude, and more particularly appropriate information, nor in respect of appropriate active talent, could a company of men, taken promiscuously from the body of the people, and charged, perhaps for the first time, with the function, for the apt discharge of which such close attention, coupled with so much discernment, is incidentally necessary,—be reasonably regarded as equal, much less as superior, to a man in whose instance the business of judicature has been the subject of the study, and for a time more or less considerable, of the practice of his life. But in every as yet known system of judicature, into which jury-trial has not been admitted, appropriate moral aptitude has been upon sa bad a footing, that the comparatively greater moral aptitude, which has in practice been given to juries, has more than compensated for whatever deficiency has had place in their instance, in the article of intellectual aptitude, and that of active talent.
As no cause is ever submitted to a jury but in connexion with a judge, to whose instruction they are, by the force of known usage and public opinion, predisposed to have regard, the appropriate information of the judge, whatever it be, is customarily at their command; and it is only by some particular and not customary direction given by them, with or without reason, to their will, that this supplement to their own inbred intellectual aptitude can fail to be turned to use: and where moral aptitude fails, insomuch as the judge is disposed by any cause to decide in a manner contrary to that which, in his eyes, is justice, the probability of rectitude of decision is, instead of being increased by superiority in appropriate intellectual aptitude or active talent, proportionably decreased.
Note, at the same time, that means exist whereby moral aptitude on the part of the judge may be placed on a much firmer footing than it has ever been as yet, and at the same time be made to receive increase.
One point there is, in respect of which, on the part of the judge, if jury-trial be not employed, appropriate moral aptitude never can with any sufficient ground of assurance be depended upon. This is freedom of bias, whether on the score of pecuniary or other interest, or on that of sympathy or antipathy produced by party affections, or propinquity, or remoteness in respect of rank.
Now as to the effects of the second order. By these I understand, the effects produced by the decision, in the cause in question, on the minds of the several persons within whose cognizance the case in question, in the state in which it presented itself to the judicatory, may happen to come. In this class of effects will be seen to lie the chief and most incontestable of the advantages attendant on the compound judicatory thus constituted.
In the case of misdecision, this class of bad effects consists of danger and alarm—danger of misdecision in future suits, from the influence of the same cause, whatever it be by which misdecision in the past cause was produced—alarm produced by the contemplation of this danger.
In the whole of the judicial establishment, suppose but a single judicatory: for simplicity of conception, call it that of a single judge, habitually exposed to misdecision—for example, by the most natural and common of the causes by which such disposition is liable to be produced; viz. by love of money. In such case, the place of general security is occupied by general alarm. No man, who either by poverty, or probity, or consciousness of want of skill to perform with success the process of corruption, regards himself as able to defend himself against a competitor who to the disposition adds the ability to practise corruption; nor can he avoid regarding his property as being in a state of perpetual insecurity. Even he who, to the ability adds the disposition to give a bribe, cannot but regard himself as placed in a correspondent state of insecurity with respect to such part of his property as would be eventually necessary to compose the bribe. Even suppose corruption in a pecuniary state effectually guarded against, still there remain favourable partiality on the score of sympathy, unfavourable partiality on the score of antipathy, as towards individuals individually taken, or as towards all the individuals in general, of whom is composed a party in the state.
See now how the matter stands in regard to the effects of the second order. In the cause in question, misdecision suppose has had place; a wrong verdict, a verdict generally regarded as wrong, has been pronounced. On the feelings of the public at large—of that part of it by whom cognizance has been taken of the cause—what are the evil consequences? Answer, none: Danger, none: Alarm, none. That jury has judged wrong; but that jury is no more. True it is, that by the same causes by which misdecision has been produced in the instance of that jury, the like effect may, for aught anybody can say, be produced in the instance of any other juries. True this, and what nobody can deny. Still, however, neither the alarm, nor even the danger, is in this case anything considerable, in comparison of misdecision on the part of a judge, when produced by any permanent, extensively operating, and well-known mental cause. In nine cases out of ten, perhaps nineteen cases out of twenty, on the part of the jury misdecision will not have place; for in some such proportion are the causes which (being defended through inability to do what should be done, or through perverseness) do not admit of doubt; and in causes in any proportion, evil disposition as above might produce misdecision in the case of an unchecked judge. But be the danger ever so small, the alarm will be still smaller. To this difference contribute several causes:—1. The general prepossession in favour of this mode of trial; and, 2. The confidence which, setting aside the causes of mistrust, men naturally have in their own good fortune.
English law may furnish a familiar example. Prosecutions for alleged libels, and other offences against government, frequent: verdicts, some for the prosecutor, the government; some against it, for the defendant. Now suppose these causes, all of them, tried by any judicatory of four of the twelve judges, or by any one judge of any such judicatory, and in both cases without a jury,—who is there of any party, by whom, antecedently to trial, any the least doubt could be entertained but that a decision affirmative of the guilt of the defendant would be the result?
Another division, in which the effects of this institution may be considered, is the following:—
I. Applying itself to the situation of the judge, it has a strong and incontestable tendency to give increase to his appropriate official aptitude, considered in all its branches.
1. To his moral aptitude it gives increase, by the obligation it imposes upon him, of giving, with reference to justice, the best appearance possible to everything which, on the occasion in question, he does or says. In so far as upon the effect of what he does or says depends the decision given by the jury—only in so far as what he does and says, has in their eyes the appearance of justice, can he hope to exercise any influence upon the decision they are about to pronounce. Take away the jury, the judge does exactly what he pleases: if he pleases, he says whatever he pleases, and as little of it as he pleases. If so be that, in the individual cause in question, he is bent upon injustice—if in support of the decision which he is determined to pronounce he can find anything to say which in his eyes is plausible, he will, if he thinks it worth while, say as much accordingly: if he be unable to find anything that is thus plausible, or the trouble of doing so is in his eyes too great, he will say nothing at all, and his will will not the less be done.
2. Appropriate intellectual aptitude, including appropriate professional information.
In this particular, the salutary influence of the necessary presence of the jury, and the demand it may be continually creating for appropriate discourse delivered by him to them in the presence of a company of spectators, contributes in a powerful and incontestable manner to secure the interests of justice—at any rate, against inaptitude in any manifest or flagrant degree, in respect of this branch of appropriate aptitude.
3. Appropriate active talent. Without any considerable difference, the above observations apply to this branch likewise of appropriate aptitude.
Set aside the institution of a jury, the most complete corruption may be united with more than ordinary intellectual weakness and ignorance, and more than ordinary deficiency in respect of faculty of expression, and still the man be not incapable of giving effect to his will in the situation of a judge. For his decision, be it what it may, expression must be found. But when that is done, all is done that is necessary for him to do: the least said, says the proverb, is soonest mended.
II. General effect on the minds of men in the character of jurymen.
The effects of the institution on the minds of the men to whom it happens to find themselves in a state of exercise in the situation in question, are not less salutary nor less incontestable. Every judicatory of which a jury forms a part, is a school of justice: without the name, it is so in effect. In it, the part of master is performed by the judge; the part of the scholars by the jurymen; and what takes place, takes place in a company more or less numerous of spectators. The representation there given is given by a variety of actors, appearing in so many different parts. There are, at any rate (or at least there ought to be, where no bar is set by special and preponderate inconvenience,) the parties on both sides: on one or both sides there are commonly witnesses: there are but too commonly professional lawyers, in the character of advocates; and there are, still more too commonly, others in the character of attorneys. By the various parts in which these actors in the judicial drama appear, and by the various casts of character exhibited by different individuals in each part, affections of all sorts in the breasts of jurymen are excited, and the attention fixed; and the reasoning faculty, with matter infinite in variety for it to operate upon, is continually called forth into exercise.
The inconvenience which, in the shape of labour and corresponding expense to the individual jurymen, if uncompensated, or to the public purse if they are compensated, constistutes a drawback which there will be occasion to speak of in another place. Against that loss on this score, will be to be set the profit on the above score—and that, it may be seen, is no inconsiderable one.
These benefits, it may be seen, may be attained, if not in a perfectly equal degree, not very sensibly less than equal, so as a verdict be but given by the jury, whether that verdict be or be not binding upon the judge.
Of the good effects actually produced by jury-trial in particular causes, over and above its general and more extensive influences as above explained, much will depend upon the state of the law. In proportion as the law is clear, the power given to the jury in form, will be exercised by it with effect; the verdict given by the jury will be the expression of their will, acting under the guidance of their understanding. In proportion as the law is otherwise than clear, the verdict given in form by the jury will in effect be the decision of the judge; it will be the expression of his will, in the giving effect to which his understanding, such as it is, and his active talent, such as it is, assisted by such appropriate professional information as it has happened to him to lay in a stock of, will have been employed. Thus it is, that under an all-comprehensive code, especially if accompanied with an apt Rationale, a jury will be quite a different sort of instrument from what it is under the generally prevalent mixture (composed in indeterminate and ever-varying proportions) of statute-law and common-law,—that is, of really existing law, and that counterfeit species of law which has been imagined and framed on each individual occasion by the judge in question, and his predecessors.
The branch of law, with relation to which the usefulness of jury-trial to the greatest happiness of the greatest number is most conspicuous and most unquestionable, is the penal branch. The feature by means of which it is productive of this beneficial effect, is the universal concurrence, so erroneously termed unanimity.
The effect by means of which it is productive of this benefit, is by infusing a general weakness into the powers of government: into the powers of government taken in the aggregate, but more especially when considered in relation to the people.
In England, the sacrifice made of the greatest happiness of the greatest number, to the happiness, real or supposed, of the monarch, has been less in proportion than in any of the monarchies of the continent of Europe. Of this difference, whatever it may be, the cause will upon examination be found to be in the weakness of the government as towards the people. In England, several causes have concurred in the keeping up of this weakness. As to those other causes, they are beside the present purpose. The only one that belongs to it, is the weakness, in so far as produced by jury-trial, with its unanimity in penal causes.
Had it not been for this weakness, the condition of Austria would at this moment have been the condition of England. George the Fourth would have been in England, what he is in Hanover: in the one country, as in the other, the people equally poor, and equally miserable. From what he is in one country, may be seen what he would be in the other.
The benefit produced by jury-trial with its unanimity, is produced by striking the laws every now and then with impotence. The law is the work of the king: and in the production of the work he has two instruments—the houses of parliament taken together, and the supreme judges.
The houses of parliament make law in one way: the judges make what they call law, and what has the effect of law, in another way.
The law, by whomsoever made,—being made, not for the benefit of the greatest happiness of the greatest number, but for the benefit of those by whom it is so made,—is made of course principally for the benefit of the king, in which way soever made.
By whatsoever laws, by the good, or supposed good, done to the king, evil to a greater amount is done to the greatest number,—it is for the good of the greatest number that those laws should remain in the greatest possible degree unexecuted and inefficient. Of the laws which have this effect, so great is the extent, that rather than the effect of those laws should not be weakened, it is for the benefit of the greatest number that the effect of the whole body of law taken together should be weakened.
In England, the superior judges,—more particularly those of the King’s Bench, are in possession and exercise of a power, the exercise of which is of itself sufficient to the establishment of the most tyrannical despotism. They take a word or a phrase, and in the use they make of that phrase they find a pretence, and that an unquestionable one, for inflicting punishment without stint, on any person they please, for any act they please.
The phrase contra bonos mores, Latin as it is, serves them for inflicting punishment without stint on all persons by whom any act is done, which does not accord with the notions they entertain, or profess to entertain concerning morality.
The phrase, Christianity is part and parcel of the law of the land, serves thus for inflicting punishment without stint on all persons by whom any act is done, which does not accord with the notions they entertain, or profess to entertain, concerning Christianity.
The word conspiracy serves them for inflicting punishment without stint on all persons by whom any act is done, which does not accord with the notions they entertain, or profess to entertain, concerning the act in question.
It is not true, it may be said, that any such despotism is in their power; for above them sits parliament; above them also in parliament, a king who can do no wrong, nor would suffer wrong in any such shape to be done. For, not to mention the wrong which in this case would be done to subjects, a despotism thus established would be established in contempt of the authority of parliament.
Yes: thus much is sure enough; namely, that without the consent at least, not to speak of anything more than consent, of the man who can do no wrong, no wrong in this shape can be done. But in this shape, and by such instruments, by the man who can do no wrong, wrong to any amount can be done, in a manner at once more effectual, and in a variety of ways more commodious, than by any such an unwieldy instrument as that called parliament.
He can do no wrong, because wrong becomes right by his doing it. As the God which is in heaven can commit no sin; so the God which is upon earth—the God of Blackstone’s creation and of all men’s worship, can do no wrong.
The beneficial effects of jury-trial are produced in a different shape, in the civil branch and in the penal. In the civil branch, it is by applying a bridle to arbitrary power in the hand of the judge: in the penal branch, as we have seen, contributing to infuse weakness into the body of the law.
Under governments in which the institution of a jury has no place, the judges not being in those countries, removable, either immediately or unimmediately, by the power of the people, a man who upon any account sees an adversary in the person of the judge, may behold in that functionary a tyrant, from whose power (which may be sufficient to effect his ruin) he sees no possibility of escape. From a situation thus distressing, the institution of a jury affords relief. Suppose a man to have suffered on one occasion—suppose a man to have suffered from enmity in the breast of one or more of the jurymen, no such sensation as that of inevitable oppression presses upon him: what he has an assurance of is, that a jury composed of exactly the same individuals will not have to try him on any other occasion; what he may at the least have the hope of is, that on a jury sitting on another occasion, the same adversary or adversaries will not have place.
In the penal branch, the like good effect is produced in the same way; but in the penal branch, to that good effect, another, and still more important, is added. In the penal branch, the institution of a jury contributes, in conjunction with other causes, to the production of that weakness in the law, to which this country—which in this case is looked to as a pattern, and from which all conceptions on the subject of jury and jury-trial are taken—is mostly indebted for those liberties, by which it is distinguished from other countries. It is from the circumstance of unanimity that the effect is produced. By a single individual out of twelve, the hand of the law is capable of being paralysed.
In consequence of this unanimity, i. e. in consequence of its necessity to conviction, it is in the power of any one man, by surmounting the patience of the rest, to command the verdict, and thereby, be the law and the fact ever so clear in the condemnation of the defendant, to produce his acquittal.
In this false declaration of unanimity may be seen the cause of almost the whole of the afflictive confinement which at present has place in the case of juries. The unanimity out of the question, the verdict would be decided by votes; and in the ordinary state of things, the voting would take place immediately upon the delivery of the charge by the judge. In two cases alone would any delay in the delivery of the verdict have place:—1. If in the instance of this or that juryman, a desire were expressed of receiving instruction from any other. 2. If by this or that juryman, a desire were expressed of communicating instruction to this or that other, or to the rest.
Proposed unimpowered jury, its uses and regulations.
The only circumstance in which the species of jury here proposed differs from the jury in use is this:—viz. that whereas the decision pronounced by the actual jury is—bating some special and assigned cause of nullity—binding upon the judge, the decision of the proposed unimpowered jury is, as the denomination here given to it imports, not binding upon the judge.
In general terms, the use of the unimpowered jury consists in this:—viz. in its capacity of being introduced into any country in which the state of society is regarded as not being sufficiently advanced to render it conducive upon the whole to the purposes of justice, to vest any such power in the great body of the people.
A country may be supposed, in which, though the great body of the people are not in so advanced a state as to render it eligible to repose this power in their hands, yet this may not be the case with a certain distinguished portion of the people, who on this occasion may be distinguished by the appellation of the higher orders. Admitting the existence of such a distinction, it may be a question whether it might not be more conducive to the greatest happiness of the greatest number to attach to the judicatory an unimpowered jury, composed altogether of the lower orders, than an ordinarily impowered jury composed exclusively of the higher orders, or conjunctly of the higher and lower orders.
But to take the more simple case in which, without distinction of orders, the supposition is that the state of society is not such as to admit of an impowered jury, of whatsoever materials composed.
In this case, without any the least prejudice to justice, the advantages belonging to an impowered jury may to a considerable degree be given to, or rather would of course have place in the case of, this sort of unimpowered jury.
1. In the first place, there would in this case, as in the other, be the same sort of aid to, and security for, the appropriate aptitude, intellectual as well as moral, on the part of the judge.
2. In this case, as in the other, the people would, in every judicatory to which this appendage were attached, behold a school of justice.
Regulations in the case of an unimpowered jury:—
1. The question will be to be reduced to a single alternative: an option to be made between two mutually contradictory propositions: Examples, guilty or not guilty? for the plaintiff or for the defendant?
2. The number of persons in the jury, odd, viz. that in every instance a majority may have place.
3. Mode of voting, secret, otherwise termed by ballot.
4. On hearing the decision, the judge does in regard to it as he thinks proper: he either reverses, or confirms it with the exception of such alterations as he thinks fit.
5. In the books of the judicatory entry is in each instance made of the verdict pronounced, and of the course taken by the judge in relation to it as above.
By comparison of different periods, the advance made in the state of the public mind may be ascertained. The smaller the proportion of the cases in which the verdict is reversed or altered, to those of the cases in which it stands unchanged, the greater the progress made by jurymen in the character of scholars in this school of justice.
Not in the lowest stage of society, actual or possible, can any conceivable mischief be produced, by the intervention of a popular judicatory thus destitute of all power of doing mischief; and sooner or later, by this institution alone, would the state of society be raised from the lowest level to the highest. By way of encouragement, that the men thus placed in a sort of judicial situation may be impressed with a sense of their own dignity, and their functions be an object of desire and source of satisfaction rather than aversion, a station somewhat elevated and ornamented should be assigned to them, with something of a decoration to be worn about their persons.
Jurymen who? What persons should be capable of serving as jurymen.
Answer: Generally speaking, under a system of universal or virtually universal suffrage, as under the most popular of the American United States, take for the general rule all persons of the male sex who are of full age and are able to read. For the mode of ascertaining the reading qualification in the most commodious manner, see Bentham’s Radical Reform Bill.
In that case no exceptions were needful. Why? Because the aggregate number of all the persons of different descriptions, against whose admission any valid objection could be raised, was in that case not considerable enough to produce any well-grounded apprehension of their exercising an unfavourable influence on the result; and because, each person delivering his vote separately, no person would be exposed to experience annoyance in any shape from any other. Delivering a vote in an election requires nothing but a will: an understanding? yes, this likewise; but an understanding which always can, and without impropriety may, have taken another understanding for its guidance.
Not so in the case of a jury: each man’s understanding is, by the incident of the moment, and in a state not prepared for the occasion, called into exercise. It may, it is true, take another understanding for its guidance, but ere it can have made choice of any such directing understanding, it must itself have been put in exercise.
In the case of the election, the influence of any one vote on the result cannot be otherwise than extremely small. In the case of the jury-trial, where, as in Scotland, unanimity is not necessary, a single vote may suffice to determine the result.
In the case of the election, each voter appearing upon the spot and delivering his vote separately, no one individual is exposed to annoyance at the hands of any other. In the case of the jury, it being necessary that they should sit all of them in company of each other, it may happen, that by a single individual in whom the capacity of producing annoyance in this or that shape, with or without the inclination, has place, annoyance may be produced in such shape and degree as may suffice to give disturbance to the whole operation: in such sort that misdecision, or more naturally non-decision, is produced, not to speak of the discomfort produced at the same time to the individuals.
With what degree of frequency is it desirable that within a given length of time the function of a juryman should by the same individual be exercised?
There are considerations which operate in extension of the time; others which operate in limitation of it.
As to the direct and particular use of the institution, the more frequently this function comes to be performed, the more experience the individual gains, and the more fitted he is thereby rendered for it.
Under the head of uncompensated labour, which is as much as to say expense,—the greater is the hardship, the heavier is the tax which is in this case imposed.
Another inconvenience is, that, in proportion to this frequency, the condition of the juryman is made to approach that of the permanent and official judge, and thereby the inconveniences attached to such permanence are brought into existence.
When considered in the capacity of scholars in the school of justice, the more frequently those who have been entered into this school are exercised, the greater will their proficiency be: then, on the other hand, the more frequent the exercise given to those who are thus entered, the smaller is the number of the members of the community to whom, in this character, the instruction is imparted.
The two evils, the exclusion of which is on this occasion to be avoided, are—the punishment of non-offenders, and the non-punishment of offenders.
I. Against the punishment of non-offenders, the following are the modifications that present themselves:—
1. Necessity of unanimity to warrant conviction and punishment.
2. In case of dissentience, necessity of a majority. This majority is in its extent absosolute and relative; susceptible of degrees, of which the highest is that in which the minority consists of no more than one; and the lowest, that in which the majority exceeds the minority by no more than one.
To contribute to the effect desired, it is not necessary that the want of unanimity, or of that extra-majority which is thought fit to be required, should have for its effect acquittal, and the consequent exemption of the accused from all punishment. Its effect is capable of being limited, to the giving him exemption from the highest degree of punishment, or from the highest and the next to the highest, and so downwards, in the scale of punishment.
Of this modification the usefulness is more particularly conspicuous and undeniable as applied to irremediable punishment, and in particular to that mode of punishment which alone is completely and absolutely irremediable, viz. mortal punishment.
Note, that the greater the absolute number, i. e. the total number of those of whom the jury is composed, the greater is the greatest relative number of which the ultramajority is capable of being composed.
II. Non-punishment of offenders.
From the giving to a single acquitting voice, or any other such small number of acquitting voices, the effect of producing total or partial exemption from the appointed punishment, follows inconvenience; that is to say, danger of non-punishment of offenders.
The case of corruption is the one most easily provided against; at any rate, that corruption, to the application of which no antecedent intercourse or particular connexion is necessary.
The following are the arrangements by which, in correspondent proportion, the difficulty that attaches upon the application of the corruptive influence may be increased.
1. Increasing the number of the minority necessary to overrule the opinion and will of the majority.
2. Subjecting the choice of the jurymen on each occasion to the power of chance, and at the same time giving to the interval between the election thus made, and the delivery of the verdict, the shortest duration possible.
Not slight is the grievance produced by so large a number as twelve, so inexorably required in all cases. For the correction of it, we need no other instruction than that which is afforded by the instances in which superior power is lodged in less trustworthy hands.
True it is, that there have been twelve apostles. Before them, there were twelve months in the year, twelve divinities of the highest class, and twelve divinities of the next highest class. Since then, there have been twelve Knights of the Round Table of King Arthur.
In the case of jurymen, as of all other functionaries, the problem is, how to secure on their part, with reference to their function, the maximum of the aggregate appropriate aptitude.
In this instance as in others, elements of appropriate aptitude, three,—viz. appropriate moral aptitude, appropriate intellectual aptitude, and appropriate active talent: branches of appropriate intellectual aptitude, two,—viz. appropriate knowledge, and appropriate judgment.
Of these elements, the first in the order of consideration, and as it should seem of importance, is appropriate moral aptitude. But for no one of these three elements, can any proper provision be made, without consideration had at the same time of the other two.
As to appropriate moral aptitude. For securing this quality, reference must be made to the causes of relative inaptitude. For securing aptitude, the course to be taken will be, to counteract the influence of these sinister causes.
For applying the proper remedy against delinquency, the first thing to be done is to bring to view the source of the correspondent temptation.
This will be, on questions between individual and individual, partiality in favour of either side to the prejudice of the other: on a question between individual and government, partiality in favour of either side to the prejudice of the other.
As to this matter, partiality in favour of the individual, to the prejudice of the constituted authorities as such, is of course in any individual instance possible. But what is beyond comparison more probable is, partiality in favour of government, to the prejudice of the individual; so much more ample and securely efficient are the means of rewarding, and thus procuring partiality, in the hands of government, in comparison with the most efficient means that can be generally employed by individuals.
Widely different, in respect of the amplitude of the source and probable degree of efficiency, is the temptation in favour of any individual, compared with the temptation in favour of government, which is, in respect of quantity, practically speaking, infinite; and in respect of constancy, applying itself in every case in which, avowedly or unavowedly, government has any concern.
In favour of an individual, it is only in a comparatively small number of cases that partiality can find means to operate with any chance of success.
On this side, partiality will require to be distinguished into natural and factitious.
For examples of natural partiality, take the following:—
1. The jurymen having a natural, though more or less remote and undefined, and thence an unseen, interest, in a pecuniary or other shape, in the event of the cause.
2. Jurymen, in this or that proportion of the whole number, having connexion in the way of interest, or sympathy, with a party on either side of the cause.
3. So a feeling of hostility in the way of antipathy.
Now as to temptations in a factitious shape, those of a pecuniary nature are at once the most obvious and the most extensively applicable. The act by which temptation of this nature is applied, and applied with success, is, if it be in a pecuniary and tangible shape, termed bribery; or if in a less tangible shape, corruption; though even in any case in which the word bribery is employed with propriety, so may the word corruption: corruption being the genus, bribery one species of it.
Much more difficult to contend with is the case where the source of the temptation is natural, than where it is factitious. Where it is factitious, you may by means of dispatch prevent the application of the instrument of temptation: where it is natural, the instrument of temptation is already applying itself in all its force.
By whom should the members of a jury be appointed?
Answer: By no man, but by fortune. Man has sinister interests; fortune has no sinister interests. Under man’s appointment, justice would have no even chance; under fortune’s appointment, she will have an even chance, and that is the best chance that can be given to her.
Whatever benefit has resulted from this appendage to the judgment seat, has been produced by its applying as a bridle to arbitrary power, in the hands of the judge, and those in whose particular and sinister interests he is a sharer. From a bridle, his endeavour has of course from first to last been, to convert it into a cloak, and thereby into an instrument.
The individuals who, on the occasion of each cause, serve in this character are, or at any rate are supposed to be, a minor assemblage, a comparatively minute body, taken out of a comparatively large class. In each instance, therefore, the composition of the jury depends upon two distinguishable circumstances: 1. Upon the situation in life of the individuals composing the class out of which the selection is made; 2. On the situation of the hand or hands by which the selection is made.
In so far as the appointment, by which, in the individual cause in question, the members of the jury are determined, is regarded as having for its cause, avowed or concealed, the will of this or that person, whose will could not, consistently with the acknowledged design of the institution, be thus employed,—the operation, by which effect is given to such will, is called packing.
The class out of which the selection is made, suppose it, in the whole or in the greatest part, composed of individuals whose place is among the ruling few,—or whose eyes, with a view to the advancement of their interests, are habitually fixed upon the ruling few: packing is thus far established, and established by law. Suppose the form of government an aristocracy: here we have a system of packing for the purpose of aristocratical sinister interest.
Suppose the form of government a monarchy, with an aristocracy under it, with or without a colour or shade of democracy: here we have a system of packing established for the purpose of a combination of monarchical and aristocratical influence.
Suppose the composition of the class out of which the selection is made, in a certain degree mixed—some of the individuals, sharers in the particular and sinister interests, others not: in this case it is, and in this alone, that it may be matter of importance what the bands are by which the selection is made. If these be the hands of an individual or individuals belonging to the tainted class just mentioned, as well might the jury be composed exclusively of such hands without any mixture.
From the above considerations result two practical conclusions:—
The body out of which juries are respectively selected should be either—
1. Of the individuals possessing the right of suffrage* in the election of members of the representative assembly under the system of virtual universality of suffrage,—all such whose residence is within the judicial district in question; with the exception of a few classes, such as insane persons, criminal convicts, &c., whose interference, though without effect in that case, would not be without effect in this;—or,
2. A select body, thence not so numerous as that all-comprehensive body, but still amply numerous in comparison of the number of the jurymen, who for the purpose of one or more causes are appointed for one and the same day’s service: the body of electors by which this election is performed, the same as that just described.
In either case, fortune’s will be the most proper hands by which, for the purpose of each individual cause, the selection can be made.
Fortune is not exposed to the action of sinister interests, of interest-begotten prejudices, or authority-begotten prejudices: every human being is. If the design had really been to prevent the selection of the jury from being rendered partial, and conducive to misdecision, by the influence of those causes, it is to fortune, and not to any human being, that the selection would have been committed. Throughout the whole of the system of which jury-trial is a part, two objects—two intimately connected objects, have been aimed at, in so far as circumstances have admitted, by the workmen employed in the fabrication of the system, viz. the lawyers,—and the kings, whose dependent creatures and instruments they always were;—viz. to secure the real existence and efficiency of partiality in their favour, and to secure the appearance of impartiality. When a man is to make this selection, scarcely in one instance out of twenty will partiality be really without a place in this selector’s mind: scarcely in one instance out of twenty, be the partiality ever so strenuous, will there be any outward and visible sign of it. Look over the table of “Springs of Human Action.”† That table now lies before me: sixteen is the number of different ones you may see, no one of them less capable of determining and misleading conduct than another: sixteen different sorts of interests, every one of them capable of acting with effect in the character of a sinister interest: sixteen, of which the love of money is but one. In all times, and with the exception of the metropolis, in all places, the sheriffs have been the absolutely depending creatures of the king, placed by the king, engaged in pecuniary accounts with the king, and for the difference between profit and utter ruin, depending on the uncontroulable will and pleasure of another set of dependent creatures and instruments of the king—the barons of his exchequer, judges of the great judicatory of accounts between him and his defenceless subjects.
The judges were placed and displaceable by the king. The sheriffs were placed by the king; and at the end of each year, each one of them of course gave place to another, placed in like manner by the king. The jurymen were placed by this creature of the king; and at the end of each short length of time—call it term, call it assize, call it sessions—gave place to another set, selected by the same or another hand, in that same place. In this state of things, wherever the king or any individual dependent on him possessed, in any shape, an interest in the cause, think what would have been the real efficiency of any measures having for their professed object the securing of impartiality in the administration of justice.
By the combination of the two modes of appointment above mentioned, the useful purpose of the institution might in a certain respect be forwarded. Of the jury in each cause, the greater number might be taken by lot out of the all-comprehensive body of electors: one, or some other such small number, out of the select body. What is here assumed is, that it is with a view to superiority in intellectual aptitude and active talent, that the selection is to be made.
Here, then, by the major portion in whom, in respect of appropriate moral aptitude, the reliance is,—obsequiousness or resistance to the guidance of the select few will be manifested, according to what, in their eyes, are the dictates of justice.
The right of expunction, shall it be allowed to the parties?
The room for the exercise of it will depend on the number selected in the first instance.
To any approach towards a satisfactory solution of this question, much more detail would be necessary than the present design could afford.
Serious objection, however, is not altogether wanting. To the party in the wrong, supposing him conscious of his being so, an advantage having place to an extent to which no limits can be assigned, is thus given. Proportioned to the reputation for appropriate aptitude, in all its several elements, possessed by the eventual juror, will be the eagerness of this self-condemned party to put an exclusion upon so assured an adversary.
In election committees of the English House of Commons, this effect of the right of expunction has been matter of experience and remark. Knocking out the brains of the committee, is the phrase by which the expunction has in this case been designated. Of the three elements of appropriate aptitude, intellectual aptitude and active talent have been the two only ones in view. For reference to appropriate moral aptitude, cutting out the heart of the committee, or something to this effect, would be necessary, if, in a body so composed any such organ as a heart could have place.
Securities for appropriate aptitude.
In the determination of the individuals serving as members of this obligatorily attending committee of the public-opinion tribunal, the appropriate aptitude of the parties must be kept in view.
Deficiency in appropriate moral aptitude will be corruption, or have corruption for its cause. Corruption is in this case either precedental or subsequential; namely, with relation to the time at which it is believed, or more or less likely to be believed by the juryman, that, on the occasion of the suit or cause in question, he will have to serve.
Of precedental moral inaptitude, the most extensive causes, in a republican state, are antipathy and sympathy on the ground of party. To evil from this source, the nature of the case excludes the possibility of any completely effectual remedy: all that can be done towards it, is by power of dislocation given to the parties on each side. In this case, in so far as the proposed bias of the jurymen in attendance is known or conjectured, those on both sides against whom the persuasion or suspicion applies with greatest force, will on each side, if the faculty be given, be dislocated.
In the language of English law, dislocation thus applied, is challenging.
In a monarchical state, supposing any such institution as that of a jury admitted into the judicial system, the system of corruption inseparable from the government will have infused and kept up throughout the whole population, an all-pervading spirit of party sympathy and antipathy, altogether incompatible with right decision in any sort of suit or cause to which it applies.
Partiality from a public cause may be more or less open and exposed to general knowledge or suspicion: partiality from a private cause, much less so.
In the case of a jury, after the exhaustion of the whole stock of possible remedies which the nature of the case admits of,—self-regarding-interest-begotten, sympathy-begotten, antipathy-begotten, and prejudice-begotten partiality, to a vast extent, will have place: and that in such force, that misdecision will continually be the result of it.
Such will be the case, whether the part taken by each juryman be known or unknown—unknown, in so far as the nature of the case admits of its being so; which cannot be the case, but to an extent in a considerable degree limited.
If, as is throughout the case in English, practice, the decision is represented as unanimous,—here, that which to no person can be unknown is, that by every member of the jury, concurrence in the obnoxious decision was given; for who the members of the jury are, is seen by all present in the judicatory.
Here, then, are all twelve—that being in every case the number—exposed to the enmity of all those to whose wishes the decision is adverse.
A case that may very well happen, and that cannot but happen, is, that without its being either known or suspected, jurymen, one or more, may have a pecuniary interest in the event of the cause—an interest equal, or in any degree superior, to that which any party has on either side. Here, then, is inducement sufficient to cause a single man to produce by the characteristic torture, on the part of all the others, accession to his side. For submitting to it, his compensation may be ample to any amount, while in the instance of no one of the whole number with whom he has to contend, has compensation place in any shape.
Suppose a majority to be admitted to determine the decision; and, in the first place, suppose the side taken by each known in every case, no expedients being taken in the way of concealing it. In this case, the moral corruption, the solemn insincerity and mendacity, is excluded. But the exposure to ill-will, with the attendant inducement to partiality and misdecision through fear, is rendered still more certain and extensive; not one of the jury but makes to himself, and stands for ever exposed to, a host of adversaries—all those without doors whose affections are on the opposite side.
On the other hand, on this supposition, the part taken in the decision by each juryman is exposed to the tutelary action of the public-opinion tribunal. Here, then, is the breast of the juryman acted upon, and agitated by, conflicting interests: as between right decision and misdecision the uncertainty is entire, the suffering certain, and to an unlimited degree capable of being intense: the option may be between having the good opinion and good-will of all persons but one, with whom he has any particular connexion in the way of interest or sympathy, and the forfeiture of the good-will of some one, on whose good offices the whole prospect of his life depends.
Suppose, now, the decision of the majority sufficient, but secresy, by expedients more or less efficient, endeavoured to be preserved—preserved, in a word, by the most effectual of all expedients, suffrages given as in the case of a well-conducted ballot, with all the secresy which the nature of the case admits of: to all persons without doors, the result, in respect of numbers on both sides, known and declared: this, and nothing else.
Still as between juryman and juryman—between each one, and one or more, or all of his fellows—the secresy will be in a high degree uncertain.
For the sake of securing in every instance a majority on one side or the other, the number will of course, in that case, be an odd one.
In the case of the smallest odd number, the non-secresy will be complete: numbers in this case, two to one. Each one knowing on which side he himself has voted, will know, if he be the only one on his side, to a certainty, on which side the two others have voted.
If, indeed, he be one of the majority of two, what is possible is, that as between the two others he will not know to a certainty which has been on his side—which on the opposite side. But on this supposition, there must either have been an absence of all discussion, a dead silence, or on the part of the two fellow-jurymen, on one side at least, if not on both, a display of the vice of insincerity; and that in such perfection as to have been successful.
True it is, that as you increase the number, you increase the probability of uncertainty; but the number may rise to five, seven, nine, eleven, thirteen, fifteen, and still, unless discussion be excluded, the probability of uncertainty be very inconsiderable, and after all, but partial, applying to this or that one or other small proportion of the whole number.
Jurymen, number of—proportion requisite to command the verdict.
1. Number. The smallest capable of fulfilling the purpose.
Increasing with the number is either vexation or expense: vexation to the jurymen, if time, and labour of attendance, and operation, are not compensated for; expense, if they are.
Jurymen, though but ephemeral judges, are not the less judges: call them by that name, the conception in respect of vexation and expense will be the more adequate.
2. Proportion requisite to command the verdict.
In cases non-penal, there is little difficulty. Misdecision may happen in any case; but from the nature of the class of cases thus denominated, no danger is indicated as attaching to misdecision on one side of the cause, greater than from misdecision on the other. If any such difference in point of danger is discoverable, it must be by a particular examination of the cases referable to this head. In one point of view, number and proportion are united. The prime object is to secure decision on the one side or the other, in contradistinction to nondecision; for nondecision, in so far as it has place, is denial of justice. In effect, however, it is decision against the plaintiff’s side; but it is without sufficient grounds; for, supposing the ground sufficient—sufficient in the eyes of those to whom it belongs to judge, a decision would be pronounced in positive terms against that side. Make the number of jurymen odd, a positive decision on the one side or on the other is by this means secured; and on whichever side it is given, should the decision be erroneous, no greater mischief is as above likely to ensue, than if the misdecision were on the other side.
Very different is the result in a case of a penal nature. By punishment of an individual who is not guilty, greater is the evil produced than by non-punishment of an individual who is guilty.* Of this evil the elements are as follows:—
1. Mischief of the second order: alarm, self-regarding alarm, produced in the minds of the people at large, by the apprehension of undue suffering from the like source.
2. Sympathy with the sufferer and his connexions: pain of social sympathy.
In both its branches this evil will increase with the magnitude of the punishment.—Where the punishment is mortal, this evil is at its maximum. In this case the mischievousness is created, not so much by the magnitude of the punishment, as by its irremediability—by its not being capable of being made to cease, and by the exclusion it puts upon all compensation or satisfaction—upon good in every shape given to a party injured, in compensation for the injury.
To set against the superiority of evil that has place in the case of undue conviction, and consequent execution, as compared with that of undue acquittal, an expedient naturally, and not unfrequently resorted to, has been, the requiring for the producing a conviction, votes more in number and proportion than for producing an acquittal. Hereupon come two opposite dangers:—1. Allow conviction to have place where, in the opinion of one or more of these judges, the offence charged was not committed: in a proportionable degree, the evils above stated as flowing from undue punishment, have place. 2. Give to one, or any other small number of votes, the effect of preventing conviction: you let in the danger of undue acquittal through corruptive influence, or ill-applied sympathy. Of these two opposite evils, neither is capable of being completely excluded; but by apposite arrangements, they are each of them capable of being diminished—diminished, and that in such a degree as to supersede the demand for that multitude which, in the case of these sphemeral judges, has commonly been excessive.
So far as regards criminal cases, the grand argument is this:—Would you endure to see that man treated as guilty, who, in the eyes of though it were but a single individual of such a company, who by office are all good men and true, is innocent?
In the instance of this class of cases, those which are not only criminal but capital—such has been their prominence—have in a manner eclipsed all those whose place is inferior in the important scale. The eclipse is altogether a natural one. In the original pharmacopeia of English jurisprudence, mortal punishment constituted the general remedy: mortal punishment constituting the general rule, punishment short of mortal, the exception. Under a jurisprudence thus composed or organized, think what, in a mind not altogether destitute of human sympathy, must have been the impression naturally made by the conception thus started. As in the eyes of the dissentient juryman, so in all other eyes to which the case presented the same aspect, all who concurred in the verdict of which the death of the accused was the consequence, would wear the aspect of murderers.
The mischief consists in giving to the punishment such a form, that in case of misapplication, the evil of it is irreparable. But to an eye the research of which is confined to the surface, destruction of the offender presents, in the case of punishment in this shape, a degree of security such as is not capable of being given by punishment in any other shape Experience proves, that from causes foreign to the present purpose, by the giving of this shape to punishment, security, instead of being increased, is lessened. But in the rank of life in question, so sensitive is selfishness, that neither the will, nor the understanding, necessary to a research below the surface, are to be found.
On the occasion of the decision pronounced by the jury, shall unanimity be made necessary?
Otherwise thus:—in giving his suffrage towards the formation of the decision, shall each juryman be permitted to give his own opinion? or shall he be compelled to give as his opinion, that which is not?
Were reason and morality to decide, the question thus put would contain the answer. But in the course given to the practice, reason and morality have been treated with the most complete disregard. Time out of mind, the practice has been determined by custom, the effect of no one can say what cause, in an age of which all that is known is, that it was a barbarous one.
Dissect this transaction, and note well the circumstances of which it is composed:—
1. The decision pronounced by the jury is accompanied by the ceremony called an oath. In and by this oath is understood (if anything is understood) a promise that the opinion delivered by the person in question shall be an opinion which, at the time of his delivering it, he really entertains. As often as it is thought that a promise of this sort is violated, that is to say, that the opinion which the man has delivered accordingly as his, was not the opinion which he at that time entertained, he is considered in law, and in public opinion and language, as having committed an act repugnant at the same time to the dictates of law and morality. The name by which this act is designated, is perjury. As often as among a jury, at the time of pronouncing the decision thus given in as unanimous, any difference of opinion has place (insomuch that while the opinion given in as the opinion of the whole, is the opinion of one or more, others there are, one or more, whose opinion it is not,) perjury, it is manifest, has been committed. Either this is perjury, or nothing that can be named, is perjury.
Of the persons by whom the perjury in this case has been committed (the whole of the jurymen being twelve,) the number may have been any number from one to eleven inclusive. Not uncommonly the number of perjurers on this occasion is known to have been eleven.
2. Next comes the question, in what way is it that this perjury is brought about? In what way? by what means? The answer is—torture.
By torture, taken in the literal sense, is universally understood the employing pain of body, or fear of the immediate application of it, to compel, at the hands of the individual to whom the pain or the fear is applied, the performance of some act, which it is (or at least, by the person by whom the torture is applied, is thought to be) in his power to perform: to compel him in such sort, that on the performance of the act, the pain or the fear, whichever it is, ceases, but till then continues. Here, then, we have perjury produced by torture.
3. Now as to the person or persons by whom the torture is administered, and the perjury produced.
These persons are of two, or even more descriptions.
For simplicity of conception, suppose it the case where the number of the perjurers is eleven: one, and one alone, not being a party to the perjury. In this case it is by the intermediate agency of this one juryman that the torture, by which the perjury has been effected, has been inflicted on all the rest. At the same time it has been inflicted on him by himself. Thus we see eleven out of twelve jurymen perjured, and all twelve tortured. For the pain of body thus inflicted on himself, the juryman who is not perjured, has received a compensation, which in his eye is adequate: he has saved himself from the guilt of perjury, and he has exercised an act of power over his fellow-jurymen.
When, at the instigation of one person, perjury is committed by another, subornation of perjury is in lawyer’s language said to have place: a person at whose instigation the perjury is committed, is in consideration thereof termed a suborner.
Here then we have eleven persons perjured, twelve persons tortured, and one person who is a suborner.
But subornation may have place in a chain of any length. The suborners, one behind another, at so many different distances from the immediate act and its agent, may be such in any number, forming or occupying so many lengths in a chain of subornation. A instigates B to commit the perjury; or a instigates B to instigate C to commit the perjury; and so on to any length.
The immediate suborner would not in the manner above explained have instigated C and the others to commit the perjury, had it not been by the power given to him by another person, who thereby becomes an anterior suborner—a suborner of the first remove: thus forming or occupying another and higher link in the chain of subornation and perjury.
The person by whom this power is possessed and exercised is a judge—the presiding judge: the judge before whom the trial is carried on, and by whom all the operations performed on the occasion are directed.
In this way, on condition of inflicting on himself and the other eleven a degree of uneasiness which no one of them but himself can support, any man has it in his power to prescribe the opinion that shall be delivered by the rest, and thus converts them into perjurers. The number of the persons capable of being on each trial thus dealt with, is the number of the persons employed on the trial in character of jurors.
The mode by which this power is exercised is, to him by whom it is exercised, liable to be so painful, that the case of its being so exercised is not an ordinary one. In the ordinary case, those in the minority give up their opinions, and join with the majority. To this junction, there will naturally be two inducements:—1. The general perception, that in case of diversity of opinion, the chances in favour of rectitude, will be in the direct ratio of the number of the persons on the different sides. 2. That in a larger number, the chance is greater of its containing an individual capable of thus subduing the others, than in a smaller.
On the other hand, cæteris paribus, the chance in favour of rectitude in the case of any opinion is as the number of the persons by whom it is embraced. According to this rule, when by one single man the decision contrary to the opinions of eleven others is thus produced, the probability in favour of wrongness of decision is as eleven to one.
If instead of twelve, the jury consisted of no more than three, the probability in favour of a wrong decision thus produced, could never by the above rule be greater than as two to one.
It follows, therefore, that the more numerous the jury acting under this forced and false declaration of unanimity, the greater is the probability of this kind of perjury.
Now as to the general effect of this feature in the institution, on the rectitude of judicial decisions, and on the character of the government—in a word, on the greatest happiness of the greatest number.
Supposing the state of the law in general were what it ought to be, and is commonly said to be,—on this supposition, by every wrong verdict—by every verdict not given in accordance with the state of the law and evidence, mischief is produced. If by any such verdict, not preponderant mischief, but preponderant good is produced, the case is of the number of those in which the state of the law is different from what it ought to be—and not merely different, but to such a degree different, that by the breach of the law, and that breach a notorious one, less mischief is done than would have been done by the observance of it.
To say, then, that in the present state of the law, taking the effects of this pretended unanimity in the aggregate, the result of it is beneficial to society, is as much as to say, that such is the state of the law,—taken in the aggregate, that society reaps a quantity of clear benefit from the aggregate number of the breaches of the law thus produced.
In this position is moreover included another, viz. that in the bulk of the population, at any rate in that part of it from which jurymen of the class in question are drawn, there exists such a regard for the welfare of the community, as, on the part of the class of those by whom laws are made, is not to be found. For if there were, then by repealing or giving the requisite modification to those laws, the breach of which is wont to be thus produced, the same effect would be made to have place, and without being accompanied with any abuse as is at present produced—an abuse so flagrant, and so plainly repugnant to the almost universally acknowledged principles of morality and religion.
Under the unanimity system, the usefulness of jury-trial is as the badness of the substantive law in general, and in particular the constitutional branch. This unanimity is therefore bad in the Anglo-American United States, but good in England.
Admitting the effect alleged, viz. the force put upon the will of all but one, by the one, and the substitution of the will of that one to the will of the other eleven, where, it may be asked, is the proof that by the breach of the law,—by the breach as thus effected, more good is commonly produced, than would have been produced by the observance?
Answer: No such effect can be produced, but by a more than common degree of energy. But setting aside the case of bribery, which could not without an uncommon concurrence of circumstances have place, and which in fact is very seldom, if ever, supposed to have place,—and the case of a sinister interest produced by other circumstances,—a case which in the penal branch can very seldom have place—the degree of energy requisite for the production of this effect can scarcely be produced by any sort of cause other than that, for the designation of which the name of conscience or principle is commonly employed; viz. sensibility to the force of social sympathy, sensibility to the force of the popular or moral sanction, or sensibility to the force of the religious sanction: an indifferentist will pin his faith on the opinion or the supposed opinion of the judge. In the case of neither of these classes is it common for any such energy to have place.
For marking the separation between the cases in which this unanimity may be of real use, and those in which it cannot be of real use, one line, or at most two lines, may suffice. It may be of use, and is of use, in all those cases in which, whether in respect of the prohibition, or in respect of the punishment, the law (being detrimental to the interest of the subject-many) ought not to be in existence, and that in such sort, that it is better for the subject-many that no obedience should ever be paid to it, than that no disobedience to it should have place. It is of use therefore in the case of all those penal provisions by which monarchical government is distinguished from democratical—in the instance of all those laws by which the penalty for offences against person, property, or reputation, is raised to a higher degree in the case where the injured person is a member of the government, than in the case where he is a private individual, possessing no share in the powers of government.
It is of use in all those cases in which punishment is attached to the divulgation of opinions.
It is of use in the case of all offences against the revenue of government, when the government is to such a degree corrupt, and to such an extent established in the habit of sacrificing to the particular, and thence sinister interest of its members, the interest of the whole community, that it would be for the advantage of the whole community that the government should fall to pieces, and a different one be established in the room of it.
It may even, without going to such a length as to annihilate the government, be of use to a certain extent, and on certain occasions; viz. by increasing the difficulty the government might be under as to the finding supplies: in such sort as to prevent the government from giving way on this or that occasion to that destructive propensity which in such governments has place on all occasions—the propensity to keep the country plunged in groundless and unnecessary wars.
If false declarations of unanimity, and torture for the compelling of the falsehood, are of use in this case,—give the benefit of the falsehood and the torture to all other cases in which unanimity would in some eyes be desirable.
Apply it, for example, to elections. Keep all the electors shut up together in close confinement, without food, and so forth, till they have given their votes in favour of one of the candidates: leaving the choice of the successful candidate to chance or wisdom, whichever may be most convenient. Not that, for giving extension to this supposed security for right conduct, there is any necessity for straying thus far from the so much admired patters.
The twelve judges constitute a judicatory, and to complete the analogy, the number of the members is the same.* Take, then, this security for rectitude of decision, and apply it to the twelve judges. Not that in this case the need of it is in danger of being very frequent. Nowhere is it better known than in that pre-eminently learned assembly, how useful the appearance of agreement is to the giving, in the eyes of the deluded multitude, a colouring of reason and justice, to absurdity and injustice. On the occasion of those smotherings of evidence, by which impunity was given to the notorious crimes of Hastings, the twelve judges, under the tutorage of the head creature of the crown, were unanimous. The unanimity, which being capable of being declared, was declared, stood in the place of those reasons which, not being afforded by the nature of the case, were not to be found.
A case, and this too a law case, in which the demand for unanimity would naturally be more frequent, is that of the House of Lords. On the occasion, for example, of the Queen’s trial, how much more acceptable a result might have been produced, had this security for propriety of decision been established in that most noble and august of all tribunals! A single peer, whose loyalty stood in need of recompence, while his constitution was hunger-proof, might have sufficed to have produced a result so much more desirable than that which took place.
When the perfection of judicature has thus been secured, secured in the House of Lords—one step more will secure perfection to legislation. For this purpose, the benefit of it must of course be extended to both Houses.
As soon as this instrument is subservient to right conduct in all those other and higher situations, so will it be in that of a jury: as soon, but not a moment sooner.
In England, one point of policy pervades and gives form and spirit to the system of government, and shape and effect to practice. It consists in confounding and obliterating throughout the whole field of government the distinctions between right and wrong: in such sort, that whatsoever would to any degree be wrong and flagitious, if practised by an individual not belonging to the class of rulers, nor commanded nor authorized by the appointed assortment of those who do belong to that class, becomes right and meritorious in the case of its being so authorized. For this purpose it is, that as often as any reason is undertaken to be given for this or that arrangement, forming part and parcel of the system of government, some manifest and flagrant falsehood (the more flagrant and absurd the better) is given and passed from hand to hand, as a sufficient reason for it, and justification of it. Thus, in speaking of an individual so situated that it is impossible for him ever to do right—that the whole of his conduct as such is occupied in the doing of wrong—that his very existence is one vast wrong—that by the maintenance of that one individual in the state in which he is placed, others, the most mischievous of whom is beyond comparison less so than he, are to the amount of many thousands destroyed by lingering deaths, and others, to an equally unlimited number, kept from coming into existence,—of this individual it is, that a phrase in every mouth ascribes the impossibility of doing wrong; and of this complexion, throughout the whole of the field, is the language which calls for prostration of the understanding and will, under the name of government; and in particular, of that which with a still louder voice calls for a still more abject prostration of those same faculties, under the name of justice.
To lies, in so far as applied to the purposes thus described, the name of fictions is given; and by this one denomination—such is the effect of fraud when backed by power—the character of wisdom and virtue is understood to be given to a mixture, in the composition of which it is difficult to say which of its two ingredients is predominant—absurdity or vice.
Ungrounded would be the imputation, if to the practice thus described any such adjunct as wanton were attached. In wantonness is implied thoughtlessness. But in this case, whatsoever part folly and imbecility may have had in giving increase to it, the deepest reflection, grounded on long experience and acute observation (all along keeping steadily in view the universal actual end of government—the greatest happiness of those who have borne a principal part in the exercise of it) must everywhere have borne a principal part in the original concoction of it.
Lest anything should be wanting to the efficiency of this policy, the force of the religious sanction has on this and all other favourable occasions been called in and added.
Thus it is, that for the converting into accomplices those who might otherwise have been tempted to become accusers, the whole multitude of individuals invested with the character of ecclesiastical functionaries have, as a condition precedent to their entrance upon that character, been (with exceptions too few to be worth taking into account), with anxious solemnity baptized in the filth of perjury.
By perjury is here meant, not anything that is criminal,—for effectual has been the care taken by the law that it shall not be criminal, viz. by the forbearing to render it punishable. By perjury, accordingly, is here meant—not any crime against the law, nothing more heinous than (not to speak of the offence against morals) a sin against God.
In some countries where polished minds bear sway—British India, for example—so rude, so uninformed, or so ill formed, not to say so deformed, is the general complexion of the public mind, that individuals, in number competent to the formation of juries, fit at the same time to be endued with the power ordinarily possessed by juries, would as yet, in the general mass of the population, be in few, if in any places, to be found. In hands so circumstanced, a function of such a nature as to apply, by the force of the legal sanction, a bridle to the power of the judge, could not be safely trusted—trusted with preponderantly useful effect. A power of such sure efficiency would in such hands be liable to be employed in the character of an instrument of depredation or oppression.
This being the case, it would not follow but that, operating with no other force than that of the popular or moral sanction, the function might in every instance be innoxious, and at the same time, in more shapes than one, serviceable. What is meant is, that—in cases of sufficient importance to pay for the complication, the additional delay, the vexation and the expense—under the respected name of a jury, a body of men should be introduced, appointed in some appropriate way, taking in that character cognizance of the cause, and delivering their verdict—delivering it, but to such effect, that the judge, though bound to hear it, and to hear it in public, should not be bound to conform to it; which being the case—in the event of non-compliance on the part of the judge—the effect of the verdict would be, that of an appeal from his decision to the tribunal of public opinion.
Independently of the effect of a verdict of this sort in each individual case upon the event of the cases, among the results of this practice, taken in the aggregate, would be the giving to each judicatory thus furnished, the character, as was before observed, of a school of justice—a school in which, while the individuals thus employed as jurymen were, upon the principle of mutual instruction, receiving their lessons in the character of scholars (receiving instruction thus in its most impressive shape,) the byestanders at large would, though in a shape not altogether so instructive, still be receiving instruction, not the less impressive and beneficial from its presenting itself to their conception in the shape of simple entertainment. Here would be a theatre: the suit at law, the drama; parties, advocates (if any,) judge, and jury, the dramatis personæ and actors; the bye-standers, the audience.
From the institution so modelled, another advantage—an advantage to social harmony on the part of naturally, and hitherto jarring materials, might be derived.
The body out of which, for each cause, the jurymen are drawn, be it supposed the sort of select and elected body above described. Of the elected Hindoos, let Mahometans be the electors; in like manner, of the elected Mahometans, the Hindoos; and as between religion and religion, so in the Hindoo religion, as between caste and caste.
In British India, suppose juries established, composed of natives: the case to a certain degree important, whether it belong to the penal, or only to the non-penal branch: the difficulty of preventing successful bribery would naturally be such as to put not only the ingenuity, but the perseverance of the legislator, to the stretch.
One expedient, in so far as the state of the population afforded an adequate mixture—a mixture of the two religions, Hindoo and Mahometan, in the composition of the jury, might afford some check: always supposed, the declaration of unanimity was not made requisite; for in that case the absolute command of the verdict is given to any one juryman whose perseverance is sufficiently paid for.
So far as Mahometans are concerned, the composition of this kind of jury presents no difficulty; not so, in so far as Hindoos are concerned. Even supposing Mahometans and men of other religions out of the question, among the Hindoos themselves the deplorable fancies by which differences in dignity and purity are imagined, as between caste and caste, present a labyrinth such as no distant eye can pervade to any such purpose as that of deciding what mixtures would, in such a case, be unendurable, what endurable.
Declaration of unanimity being necessary, suppose the individuals, of whom in the cause in question the jury will be composed, predetermined and foreknown: by making sure, though it were of no more than one of them, say, for example, by a bribe, a party might be sure of gaining his cause: a party whose all (the suit being a non-penal one) depended on the event of it, would seldom shrink from such a course. Enthusiasm, physically possible, but never to be reckoned upon, excepted,—in a cause where his life depended upon the issue of it, no man ever would shrink from such a course. In a certain state of society, public opinion and habits not being favourable to such a course, the pursuing it with success might be attended with more or less difficulty, even to such a degree as that the probability of it should not be great. But states of society might be found, and those too extensively prevalent, such as to substitute in this respect, to difficulty and improbability, facility and probability. In British India, for example, suppose a capital case: a jury composed of natives, the individuals known to the defendant by information, sufficiently early for such a practice, one juryman (though there were no more) needy, and the defendant’s pecuniary means ample enough to pay the juryman’s price,—impunity here is a matter of certainty.
[* ]By the denomination jury, thus employed, no distinctive intimation is afforded of any of the purposes for which the body of the men thus denominated are employed, or of the class from which they are selected. By a jury, in the original signification of the word, is meant neither more nor less than a body of persons, by whom the ceremony of an oath has been performed. But on occasions out of number, by persons of different classes out of number, separately and collectively, the performance of the ceremony of an oath is, under the English law, likewise performed: in a word, to offices in general, not to speak of unofficial persons and occasions, generally speaking. In the character of an obligation, imposing restraint upon the effects of sinister interest in any shape, nothing can be more generally and completely futile. But the ceremony has two effects, which, under the system of misrule, may, to those who profit by it, be with propriety termed advantageous: one is, the causing a functionary (to whose misdeeds there is in fact no restraint except the will of those his superiors in power, whose sinister interest is linked with his,) whose wish it is to do a thing without being thought willing to do it, to appear forced to do it; the other is, when his wish is not to do it, without being thought willing to escape from doing it, to appear forced to forbear from doing it.
[* ]See Rationale of Punishment, and Rationale of Reward.
[* ]Written in 1821.—Ed.
[* ]Viz. in the primary assembly, that is to say, where, as under the French and Spanish constitutions, there are assemblies constituting stages of election more than one.
[† ]See Vol. I. of this collection.
[* ]This supposes that the non-guiltiness of the convicted individual either is at the time, or becomes thereafter, an object of popular belief, more or less extensive and intense. For, suppose the contrary, the suffering of one who is not guilty is not greater than the suffering of one who is guilty. It even is not so great. For to support him under the affliction, the not guilty has considerations which the guilty has not.
[* ]The number has of late years been increased to fifteen.—Ed.