Front Page Titles (by Subject) CHAPTER XXV.: GRAND JURIES. - The Works of Jeremy Bentham, vol. 2
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CHAPTER XXV.: GRAND JURIES. - 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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In the name Grand Juries, the name of juries being included, the appendage thus denominated cannot be altogether passed over in silence.
A grand jury is a superior kind of jury. A grand jury has for its characteristic and peculiar function the salvation of the innocent.
A jury is a good thing: a grand jury is a jury: ergo, a grand jury is a good thing.
A jury is a useful thing: a grand jury is not only a useful, but an honourable thing; for a grand jury is a grand thing.
Such being the logic (this logic not being altogether clear of fallacy,)—to counteract the influence of it, it is necessary to show what sort of a thing a grand jury really is.
A grand jury is a bar to penal justice. For whatsoever purposes originally set up, it has been kept up, and employed by the sub-ruling few, under the influence of the ruling one, for the securing to them and their adherents the benefit of impunity, on the occasion of any misdeeds committed by them, in the course of the sacrifices made by them of the greatest happiness of the greatest number, to their own particular and sinister interests.
The petit jury tries a man, and either acquits or convicts him: the grand jury either refuses to put him, and thus prevents him from being put, upon his trial, or puts him upon it.
A petit jury is composed of twelve, neither more nor less; whether it be for acquittal or for conviction, a declaration of unanimity, true or false, no matter, is necessary for the effectuation of it: a grand jury consists of twenty-three; of that number any lesser number, so it consist of twelve, is necessary, and sufficient to give validity to what is done.
Of the procedure before the petit jury, a characteristic and indispensable property is publicity: of the procedure before the grand jury, a property still more characteristic and declaredly secured, is secresy: the ceremony of an oath is employed for the securing of it; in the official oath exacted from grand jurors, the promise of secresy constitutes a distinct article.
The function of the grand jury applies itself to two different classes of offences: to felonies and to misdemeanours.
Viewed at a distance—viewed in a general point of view—the division into felonies and misdemeanours corresponds in the main with the above exhibited division into penal cases, which are such by reason of aggravation, and penal cases which are such for want of an individual specially injured.*
Of the power originally given to the grand jury, the effect was, that without its fiat no operation of judicature, at the expense of the personal liberty of an individual suspected, could lawfully be performed: it had thereby a veto on such operations; preservation was thereby given to the personal liberty, and by means of the oath of secresy, to the reputation of individuals. In latter times, however, this security, with the effects, good and bad together, which could not fail to be attendant on it—this security, the name and power of the grand jury notwithstanding, has in both those shapes been at an end: on application by any individual, by a warrant from a single local magistrate, styled a justice of the peace, appointed and removable at any moment by the monarch, any man is on this occasion committed to prison; there to remain, or thence to be liberated, according to the discretion of the magistrate; unless, and until his liberty be disposed of by some other authority, not here to the purpose.
Those effects which are composed of evil, with little or no admixture of good, remain in full force behind. For example, the power by which, for crimes of the most extensive mischief, by a knot of men themselves armed with complete impunity, without danger so much as to reputation (reputation being covered by the oath of secresy,) impunity is secured to criminals, in any number, at pleasure.
In so far as what legal security there is, against offences by means of which, by men of this class (viz. the class of the sub-ruling few acting under the influence of the ruling one,) sacrifices are made of the greatest happiness of the greatest number, to the particular and sinister interests of those same rulers, is given by the punishment and mode of procedure applied to the misdeeds styled felonies,—impunity and complete licence is thus accorded. For anything or for nothing, put men to death in any numbers: if, according to the view of this section of the aristocracy (instrument and confederate of the monarchy,) it is for the advantage of those conjunct interests that the men should die, you are safe. You are secured not only against punishment,—but, in so far as under the same influence, the same inclinations prevail in that class of the instantly-removable agents of the monarch, styled justices of the peace,—from disrepute. So much as to felonies: those cases included, which, though not in denomination, are, in respect of punishment or investigative procedure, or both, dealt with as felonies.
Now as to misdemeanours. Cases in which with some exceptions, principally regarding offences against the persons of individuals, investigative procedure has not been provided:
In so far as investigative procedure is suffered to take place, whatsoever protection is afforded against punishment at the hands of law, does not extend altogether to disrepute: the grand jury, when it has given to its instrument and accomplice security against punishment, has not of itself—has not, without the concurrence of a sufficient assortment of other accomplices, in the situation of justices of the peace, together with an appropriate suppression of the liberty of the press, given him security against disrepute. In the cases to which investigative procedure has not been extended, the security afforded to misdoers by the power of the grand jury is more entire.
Whatever it may have been at one time, as matters have stood for a long time, a grand jury has been, is, and will be, an instrument much worse than useless: it gives no protection to the subject many against the ruling one, or the sub-ruling, opulent, and the influential few; it does give protection to the ruling one—to the sub-ruling, opulent, and influential few, against the subject-many.
Bill found by the grand jury, information grantable by motion, information filed ex officio for alleged offences against person, property, or reputation: of all these three inlets to prosecution and trial, the one and the few have their choice: against the subject many, in any contest they may have with the many or the few, all these inlets to justice, or the show of it, are closed: information on motion, by want of opulence on their part; information ex officio, by want of power.
Vain altogether is the pretence that in this power you have a protection, that innocence has a protection, against unjust prosecution—a protection set up at the very threshhold—a protection against preliminary imprisonment.
If this protection were a preponderantly useful and desirable one, how much more so would it be in the case of felonies, than in the case of misdemeanors!—in the case in which you have taken it away, than in the case in which you suffer it to stand!
As at present constituted, a grand jury is an assembly composed exclusively of gentlemen: gentlemen to the exclusion of yeomen. In the vocabulary of English jurisprudence, these denominations have an import which, if not altogether determinate, is at least meant to be so. The class of gentlemen, is the class of the sub-ruling, the opulent, the influential few; the class of yeomen is the class of the subject many. On this occasion, if the greatest happiness of the greatest number were the end in view, in the composition of this transitory body, the majority should be of the class of yeomen; for if some must be sacrificed, better the few to the many, than the many to the few: not that any such sacrifice would have place.
If any regard were paid, so much as to the appearance of equal justice, there should be a mixture of both classes, and the class of the few should at any rate, not have a majority, as against the class of the many.
[* ]All common assaults on individuals, are classed under the title of misdemeanors.—Ed.