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CHAPTER XXVI.: QUASI-JURY. - 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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Preparatory or preliminary observations.
The design in the use here made of a jury,—that is to say, of a sample taken at random of the promiscuous multitude—the design is not to invest a set of men so circumstanced, with an arbitrary power over their fellow-countrymen; but to add to the effective force of the other checks applied to the power of the judge. On the part of such an assemblage, no one element of appropriate aptitude in any degree above the lowest could reasonably be depended upon: on a judge placed in a situation fenced about as here—on a judge, in so far as on any person invested with such power as it is necessary to arm his situation with, so long as the eye of the public-opinion tribunal is kept steadily fixed upon him, dependence may be placed.
Accordingly, they are not merely authorized, but invited and urged to take cognizance of every matter that comes before them, and on whatever occasion, or on whatever account they feel disposed: whether for the purpose of assistance to the understanding, or controul upon the will of the judge,—to give expression, collectively and individually, to their sentiments. But this opinion is not made obligatory on the judge—it is not made decisive of the fate of the cause.
By this means, instead of being placed on shoulders too lowly situated to be depended upon for being duly sensible to the pressure of it, the responsibility is left to press with all its weight upon those shoulders in which that tutelary sensibility is at its maximum.
By the registration made on each occasion of the opinion of the jury on the one hand, and the opinion of the judge on the other, compared with the nature of the case (and this parallelism continued on throughout the stream of time,) a continually accumulating body of information, interesting in a variety of ways, will be secured: the progress of intellectual aptitude, as applied to matter of law and evidence, will be marked by it.
The judge will not, as he would otherwise, partly by the intellectual influence attached to his situation, or by fallacies and other antifices employed on purpose, have it in his power to remove from his own shoulders the just odium that would otherwise be brought down upon him by an unjust decision.
On the other hand, while in this direction, on account of its dangerousness, the influence of the committee of the public-opinion tribunal is here limited,—in another quarter, an enlargement clear of all danger is given to it. From an opinion which is not obligatory, evil cannot in any part of the field be in any shape produced. And in the situation of judge, if a check is necessary or useful in any part of the field he travels in, so is it in every other. Of a road, such as that here in question, if a watchman be useful in any one part, so must he be in every other: accordingly, under the system here proposed, in no part of his career is the probity of the judge left destitute of the benefit of the safeguard which it belongs to the power of the quasi-jury to afford. Of whatever point a judge has cognizance, of the same point a quasi-jury has concomitant cognizance.
Of the service, such as it is, which is rendered to justice in systems in which the word jury is employed, it may be questioned whether it be in a direct way, or otherwise than in an indirect way, that upon the whole the greatest part of it is rendered. Along with the jury, a portion of the public has all along been let in. The jury itself forms on each occasion a part and parcel of the great public at large; and in proportion to the change made in the persons by whom that function is performed, that portion receives enlargement. Hence it is, that in jury cases publicity of judication has been to a considerable extent, though nowhere in an all-comprehensive, nor therefore in an adequate extent, the practice: being the practice in those cases, the expectation of finding it so wherever it has been the practice, has become general: and in this indirect way it is, that jury-trial is, to an extent more or less considerable, of use in cases in which, as to the affording any binding check upon partiality on the part of the judge, the jury itself might be little better than useless. Witness all those cases in which the choice of the jury is immediately or unimmediately in the hands either of the judge or of some other dependent creature or creatures of the monarch: in all such cases, it may be a question whether, in the character of a check to improbity in the judge, it does more good than it does evil.
Not only has the public at large acquired the habit, and thence to a practical effect the right, of stealing in as it were under the cloak of the jury; but by the power given to the jury, the judge finds himself under the necessity of addreasing his discourse to them, explanstory of the nature of the case and of the grounds on which his advice and recommendation, if any is given to them, has been founded. Suppose, then, for argument’s sake, an advice manifestly repugnant to justice given by him to them—what is the consequence? If he gives no reason, he does not give himself the chance he might have of prevailing by sophistry; and the injustice being without a mask, instead of compassing its object, will expose him to just reproach: if he gives reasons, their being by the supposition weak, they will expose him to reproach by their weakness.
Now as to the number of the persons whose services are to be exacted for the performance of this function. On this part of the field, a conflict has place between the direct ends of justice on the one part, and the collateral ends on the other; between the good attached to the degree of security afforded against the evils of misdecision, and the evil composed of vexation to these functionaries, and expense either to them or to the community at large.
True it is, that in regard to extent, proportioned to the vexation and expense is the instruction, moral and intellectual, thus spread over the community: but in regard to the vexation, the quantity is much more palpable, than of the quantity of instruction reaped, the existence will be certain.
Of these several quantities, any estimate approaching to adequate correctness is impossible, unless the political state in question is given. The pecuniary sufficiency of the individual, the state of the communications, being given, and the length of attendance being given, the quantity of the vexation will depend upon the length of the journey to and fro; that is, on the distance between the abode of each individual and the judicatory. But the political state in question being given, the average of this distance will be inversely as the number of those judicial subdistricts or portions of territory resulting from an ulterior division.
Thereupon comes a question,—Shall these assessors be taken from every part of a subdistrict without distinction? or from a portion, no part of which is by more than a certain length remote from the judicatory? If without distinction, then comes inordinate vexation to those whose habitation is to a certain degree remote: if with distinction, in consequence of which, to those beyond the line, an exemption is granted, then is the population of the sub-district divided into two portions, the one of which is left in a sort of barbarous state in comparison of the other.
On an occasion such as this, a middle course might perhaps be taken, not without advantage. In the remote parts, the times of service might be less frequent than in the near part: the vexation, however, is in this case not done away with, only lessened; and the instruction is in the same proportion lessened.
Increase the number of those subdistricts, with those judicatories,—this vexation is indeed lessened, but the expense to the public is increased.
Under the division into subdistricts, shall there be any subordinate division—a division of those subdistricts into bis-subdistricts?
Answer: For the purposes of judicature, No. The extraordinary case of an appeal to the justice minister will answer every good purpose, of a greater number, and put an exclusion upon all the bad effects.
In the case of assessorship service, the time of demurrage, it may be observed, will naturally be considerably longer than the time of election service. For the election service, it may happen to be performed within the first minute; and the time requisite for receiving the vote, by dropping two recognized pieces of card into a box, can never, for all the votes taken together, be extended beyond the bounds of a single day.
The expense of the assessor while in waiting,—shall it be borne by the individual or by the public? On the individual, the burthen would be intolerable and needless: by the whole public the benefit is reaped; by the whole public ought the whole burthen to be borne. For functionaries of this class taken separately, the pay necessary will be to the lowest amount: nothing is there that could render it worth regard, but the number of those whose services are thus put into requisition. The bulk of the population being in almost every country composed of the lowest paid day-labourers, it will be composed of those to whom any casual deduction from the means of subsistence would be most irksome, and be most difficult of endurance: the pay should therefore be some what greater than that of the lowest paid day-labourer; say, for example, twice as much. Thus much for the assessors taken from the more numerous class.
In the case of the assessors taken from the more erudite class, the quantum, it should seem, should not be exceeded. By no addition that could be made to it, could any degree of proportionality—of equality, be maintained. On the plea of increase, it would require to increase with the amount of income; but to this mode of increase, the objection seems a peremptory one: publication of income would in general be irksome; nor could any correctness be given to the fixation without such as inquiry as would be the equivalent of a law-suit. Nor to the more numerous class would any such gradation appear consistent with justice. In comparison with that of the more numerous class, the condition of those members of the more erudite class would, on the face of the account, he seen to be in the same proportion more prosperous—the general mass of benefit derived from the government so much the greater: and proportioned to the benefit should therefore be the burthen, or justice and equality are obviously contravened.
Were the pay of an assessor ever so much greater than it is proposed to be, still it could not be, in the instance of every individual, in every conjuncture, an equivalent for the attendant vexation. Here, then, may be seen a reason for the permission of a substitute, in the room of any person on whom the lot has fallen—a substitute, on the condition that whatever be the qualification requisite in the case of the principal, that which is requisite in the case of the substitute shall be the same; namely, as here proposed, possession of the arts of reading and writing.
The denominations quasi-jury, and quasi-jury system, are here necessitated by irresistible considerations. By the word jury, the nature and design of this portion of a judicatory, some conception, however inadequate, is presented to view, and a general prepossession in favour of it will naturally be produced. At the same time, if without some intimation given that the two objects, how nearly soever related, want much of being the same, great would have been the confusion and perplexity introduced by the discrepancy between the denomination, and the thing thus denominated.
The institution called a jury, being the subject of such general applause—why on this occasion introduce not a jury, but a quasi-jury? not the thing itself, but only an institution bearing more or less resemblance to it? Conceived in the most general terms, the answer is—Because with this resemblance how faint so ever—with this faint resemblance, in addition to the other securities which have been seen, for appropriate aptitude on the part of the judge, all the good effects that have ever been looked for in a jury are produced, free from all the evil effects—evil effects essential and unpreventable, and to such a degree evil, as to render the use of it altogether incompatible with a system of procedure having for its end the ends of justice; inasmuch as it is in a high degree adverse to, and the use of it incompatible with, the attainment of every one of those ends. What, then! have its effects been from first to last, wheresover employed, no other than so much pure evil? Answer: On the contrary, they have been productive, as has been already shewn, of inestimable good. But in what manner?—By this, and this almost alone; namely, by the very opposition of the institution to the main end among the ends of justice: that same main end being rectitude of decision, exclusion of misdecision.
On looking to the several elements or features of appropriate aptitude, it will be seen that, in the aggregate, jurors are essentially wanting: for appropriate moral aptitude there being, in a body of men so taken, no security; and in lieu of appropriate knowledge and judgment, there being a constant certainty of the opposite inaptitude—of inaptitude absolutely considered, and of inaptitude considered in comparison of the like quality in question, on the part of the judge.
Judication is a branch of art and science. In the most unapt judge ever seen, some proficiency in the art and science has been manifest: on the part of those men, who, to be least unaptly selected, must be selected at random, selected by fortune, not any the smallest security for any the least grain of any one of the elements of appropriate aptitude can be pointed out.
Of the institution here proposed, the object is to bring to pass, with some addition, whatever has been looked for at the hands of a jury.
If in any one state of society it be capable of answering its intended purpose, so will it in every other; for in the organization of it, a state of society, one at the lowest as well as one at the highest stages in the course of civilization, has been all along kept in view
Taking up men from the most numerous class, and placing them in a situation in which the business of life in all its forms will be brought before their eyes, and a call made upon them for whatsoever exercise they are capable of giving to their intellectual powers—converting the judicial theatre into a school of justice, into which men of all ranks are compelled to enter themselves—it tends with continual increase to give strength to the aggregate stock of intellectual power throughout the community, and with continually augmented effect to render more and more apt those whom it finds least so.
At the same time, giving no decisive effect to the expression of their sentiments, it avoids altogether the exposing the welfare of the community to hazard from any ill-advised or perverse exercise of power, of which in that situation of life the will of men may be supposed susceptible: they may advise anything; they can give determination to nothing. For anything which they are allowed to do, or are at all likely to do, no evil is there in any shape which the community is exposed to suffer.
While at their hands society is not exposed to evil in any shape,—on the other hand, by the part which it is given to them to act, the quantity of evil which society would otherwise be exposed to suffer at the hands of the judge, great as may be the influence which they are enabled to exercise,—by no power given to them, can responsibility on the part of the judge experience any the slightest diminution: on him, in every instance of whatsoever is done, the responsibility rests in all its undiminished weight.
The object has been to strew the way of the judge with such checks as, while they afforded no impediment to him in the right and proper course, would, when taken all together, be found to oppose an insuperable impediment to him as often as it could happen to him to make any such attempt as that of straying into any sinister course.
The course by which efficiency will thus be found to have been so perfectly established, is as simple in its description as in its contrivance. To the quasi-jury are given all the powers of judication—all the powers that are given to a judge, with only one exception; namely, the effectively imperative function—the function to the exercise of which is attached the power of giving execution and effect to the will of him by whom it is possessed: and this is the only one by which in any hands mischief can be done. Of themselves, nothing can they cause to be done: of themselves, nothing can they so much as prevent from being done. This power, in the shape in which they possess it, resembles in some degree what in mechanics is the power exercised by friction,—it is like the drag upon the wheel.
Quasi-Jurors, who, and how chosen.
Hitherto there has been unavoidably more or less of the fictitious, in the idea attached to the appellation of committee or sub-committee of the public opinion tribunal: the members being self-appointed, not mutually present unless by accident, and fluctuating. But in the case of a jury, everything said of such a sub-committee is or may be realized: it is everywhere, or may be, and (at any rate to fulfil the professed ends of it) ought to be, an exact sample of that unofficial judicatory, although to the particular purpose in question, officialized.
From this source may be deduced what ought to be the principal and characteristic features of this fragment of an official jury, thus denominated:—
1. Stock from which the members are taken,—for securing appropriate moral aptitude, the whole of the male adults of the community; unless, for the better securing of appropriate intellectual aptitude, it should be deemed advisable, as in case of election of representatives, to confine the capacity, to those who have been found capable of undergoing a literary test. Object of this universality, exclusion of aristocratical injustice.
2. Locator of these ephemeral judges,—not choice but chance. Chance alone is sure to be impartial: chance alone is incorruptible. To place the choice in any human hand, he be who he may, is to lead him into needless and useless temptation—to infuse the poison of corruption into his veins.
By this means, and by this alone, as all danger, so all suspense and apprehension of partiality, stands excluded.
3. Being by supposition exempt from all corrupt interest, the suffrages given by these unpermanently official judges, may without inconvenience be covered with a veil of secresy: having no particular and sinister profit to gain by injustice, the course taken by each will be determined by his regard for that interest of his, in which he has for sharers all the other members of the community,—in a word, for that interest which is in each case on the side of justice. The eye of the public might in this case be even prejudicial to the cause of justice; for in the public might be this or that individual, by whose corruptive influence might be created in the breast of this or that juryman a particular and sinister interest, by which would be dictated and produced a decision and correspondent suffrage opposite to the decision dictated by a regard for the rules of justice,—and by reason of this opposition, opposition to the universal interest.
Challenging,—that is, the partial dislocation of proposed jurors by a party—why not here employed?
Answer.—Reasons: 1. The vast aggregate body of vexation. By the provision made to that effect, vexation in extent and in intensity not inconsiderable.
2. Under the here proposed system, no such demand for the provision has place as under the existing system in England: the decision of the jury being in English practice obligatory on the judge; in the here proposed practice—not.
3. The decision not being obligatory, the demand for exclusion has no place. But the effect intended by exclusion, is here produced to much greater extent without exclusion—namely, by the questions which the parties on both sides are allowed to put to the several jurymen, for the purpose of ascertaining the existence or non-existence of a natural cause of partiality, and thence the probability of the effect. Be the answers what they may, the juryman is not inhibited from taking whatsoever part he feels disposed to take throughout the business. From his answers, the state of his mind in respect of partiality and impartiality is open to be collected: in case of apparent cause of partiality, it operates in diminution of the weight of his authority—just as, in the case of evidence, in diminution of the probative force of the testimony of the witness.
4. By the omission of this institution, no small mass of complication is discarded.
Quasi-Jury, uses of.
In respect of scientific, judicial, and active aptitude, it is here a sort of assumed postulate that a set of men taken at random from the body of the people can never be regarded as being, by a great deal, upon a par with an erudite and experienced official judge.
The use of any such assessor is therefore merely confined to the contributing to the securing of adequate appropriate moral aptitude on his part, by the application of a check to the exercise of his powers.
In this capacity they are capable of serving, and may reasonably be expected to serve, independently of any degree of intellectual aptitude on their part, and therefore with as low a degree of aptitude in that shape as ever can have place. Why? The reason is, because their persons being unknown to him, the degree of aptitude actually possessed by them will be unknown to him. They may, every one of them, for any assurance he can have, be endowed with the very highest degree of appropriate aptitude in every shape.
What remains is, to secure on their part, as far as may be, appropriate moral aptitude in the shape and degree requisite.
The first quality to be provided for is—original impartiality.
The next is uncorruption. As to uncorruptibility, this depends on the particular frame of mind on the part of each individual,—a sort of fact in relation to which no adequate information can, in the nature of the case, be attainable.
What remains is—in presumption of corruptibility, to throw such difficulties as can be thrown in the way of the sort of intercourse necessary to the production of the noxious effect.
Without his putting himself in a considerable degree in the power of the person tempted, no person can in any such case apply temptation to the probity of a quasi-juryman.
The smaller and less certain the corruption derivable from success in the enterprise in question, the less the probability of a man’s exposing himself to such hazard.
Of the body of assessors styled a quasi-jury, the use is, as has been seen, to add to the mass of securities for appropriate aptitude on the part of the judge. In this character, its operation is mostly confined to the moral branch of that same aptitude: to the degree of his appropriate intellectual and active aptitude, it cannot be expected to make addition, any otherwise than in so far as it contributes to call forth into action whatsoever stock of those desirable qualities it finds him in possession of.
To the power given to the body styled in English-bred law a jury, these same uses and good effects are attributed: and lest they should not be produced, a certain portion of the power of this erudite functionary is taken from him and conferred on those unerudite functionaries.
If at their hands, in comparison with him, any superiority of appropriate aptitude is in any branch looked for, it must be in the intellectual branch,—to wit, knowledge, for example, of the feelings of individuals whose condition is nearer to them than his: together with such casual acquaintance as it may happen to them to possess of the particular circumstances of the individuals on whose cases they have to pronounce.
Consideration had of the mass of securities provided, of which the maximization of publicity, and the effectual dislocability of all judges by the real representatives of the people, are the chief,—it will, it is believed, be sufficiently manifest, that without either jury or even quasi-jury, the securities for good judicature would be much more effectual than, by anything that can be called a jury, they ever have been made, or ever can be, anywhere. But forasmuch as, by the institution as here modified, a substantial addition seemed capable of being rendered to the efficiency of these same securities, this ingredient in the mass of appropriate arrangements could not consistently be withholden; not to speak of the wishes and even expectations which on this head the public-opinion tribunal could not fail to entertain.
The comparatively slight particular above alluded to excepted, only with a view to moral aptitude could any additional security be looked for at the hands of men so circumstanced.
The controul applied by a body of judicial functionaries to the conduct of the judge cannot be adequately effectual, unless it applies to every step taken by him in the course of the suit, from the commencement to the close. Such is that applied here in this code by the quasi-jury. Nothing approaching to it is that which is applied by the English jury. In a large proportion of the whole number of suits, that body has no place: and among them are those which arise out of the most important cases; and those which have place in by far the greatest number: the most important,—those, to wit, which give employment to the equity courts: those which have place in by far the greatest number,—those, to wit, which give employment to the small-debt courts.
Now as to the concomitancy of the controul of the jury with the operations of the judge. Out of an indefinite number of stages of operation, it is confined to a single one called the trial. But whatsoever would have been the opinion and will of the jury, had the suit throughout the whole course of it been open to their influence, the judge may frustrate altogether: visibly, by operations concomitant or subsequent to the trial; invisibly, by operations anterior to it; and, upon the whole, in each case, by any one of a multitude of operations. In cases styled penal, the power of the jury is not quite so inefficient as in cases styled civil. In cases styled civil, the judge can in one way or other give success to the plaintiff’s or to the defendant’s side at pleasure. Not exactly so in cases styled penal. To the defendant’s side, indeed, he can insure success, on any one of an infinite variety of devices, not one of which bears any the slightest relation to the justice of the case. Not quite so easy is it to give success to the plaintiff’s side;—in other words, to punish, under the name of punishment, the defendant for a crime which, in the opinion of a jury, he has not or would not have been regarded as having committed. It can no otherwise be done than under accidental circumstances favourable to injustice in this shape; for example, by refusing the operations necessary to the obtainment of evidence, by which, if obtained, a just acquittal would have been produced.
The primary use there, is the forcing out of the mouth of the official judge, grounds and reasons for the decision which it is his desire should have place.
Fortunate is the state of things where the success of an operation is independent of the qualities of the individual operators. In this case is this primary benefit attached to the institution of a jury.
For whatever reasons the conduct of the judge should be subject to inspection in any one part of the procedure,—for the same reasons, so ought it in every other: for if by aberration from the course of justice, it is in his power to produce misdecision, or the collateral evils of needless delay, vexation, and expense in any one part; so is it in any other. Admitting then that the use of a jury consists in its exercising, and being seen to exercise, the function of an inspector of the conduct of a judge, the presence of this safeguard is useful, not to say necessary, from the very commencement of the procedure in the presence of the judge, to the very end of it. In the early days of jury-trial, it seems not improbable that this undiscontinued inspection actually had place: in the jury-court, as now in small-debt courts, commonly the same day, not unfrequently the same hour, which saw the commencement of a cause, saw the termination of it. The splitting of a cause into an indefinite number of parts, with long intervals between part and part—the jury not being admitted to be present at more than one of those parts—and a contrivance, by which the decision pronounced in their presence was overturned in their absence;—all these improvements in the art of fee-gathering were so many subsequent amendments introduced by degrees. Had the ends of justice been the object, the application made of this system of inspection would have been commensurate with the need of it; but the ends of judicature were the augmentation of the emolument and the power of the judge: hence the difference. In the best judicatory that could be framed—to wit, a single-seated judicatory—a judicatory in which a single judge presides, whose situation is permanent, and his functions exercised with open doors,—there being no person in particular who had any claim for reasons or explanations, for any of those statements by which a test of his appropriate aptitude in all its several branches is afforded,—arbitrary power would find itself in a state of comparative case. Suppose a judge in any instance determined to pronounce a decision, of the unjustness of which he is conscious, what is the course that would be free for him to take? After hearing what is offered to be said on both sides, he will pronounce his decision. No sufficient reason,—the case (by supposition) not affording any,—will be seen for it. In this case, will any loss of reputation be the consequence? Not by any means a certain consequence. The prepossession which the power attached to the situation insures in favour of everything that is done in it, is an assured protection, and in a multitude of minds a constantly effectual one.
For the cognizance of a claim which must not exceed 40s., the attendance of a numerous body of judges, under the name of commissioners, is not grudged: of these commissioners the list being the same at all times. Still less need it be grudged, for claims of forty hundred or forty thousand pounds: the labour of attendance on the part of these inspecting judges being relieved by an indefinite frequency of change. If by the now established number of 12, the extent given to this burden would be rendered too great, scarcely can any reason be assigned why it should not be lessened: 11, 9, 7, 5, or even so few as 3, chosen upon a right principle, would be preferable to 12, all chosen upon a wrong principle.
In comparison of the power possessed by a juryman, whether under the English or the French system, how small is the power here given to a quasi-juryman, is altogether obvious. The quasi-jury all together, not having any obligative power, further than the enabling a party to appeal,—silencing their interposition, silencing the communication of their observations, is the upshot of all that corruption can do in this case. And unless in the cases where without such interposition the judge would go wrong, while by the check applied by it he will be restrained from going wrong, and confined within the path of rectitude,—in no shape would any advantage be to be gained by the production of any such corrupt silence.
Of an institution beneficial upon the whole, concomitant with the beneficial effects are always an infinite multitude of uninfluencing circumstances, and, though in less number, obstacles, or opposing causes on every occasion: the great difficulty is to distinguish from each other these three classes of circumstances.
Of the beneficial effects of the institution of a jury, some apply alike to both branches of substantive law—the penal and the non-penal; others exclusively or more particularly to the penal.
Those which apply alike to both branches may be stated to be as follows:—
The main and all-comprehensive beneficial effect produced by it, in the several cases to which it applies, is the bringing to bear upon the decision the power of the public-opinion tribunal—a power which, in so far as it has place, applies itself to the most despotic governments, and diminishes more or less the evil which they have for their inseparable result.
This it does in three different ways.—
1. One is through the medium of publicity; the sort and degree of the publicity which it gives to that part of a suit to which it attaches itself; and that part is the principal one. The jury will form of themselves a committee of the public-opinion tribunal; and from its several members the information respectively possessed by them radiates out of doors through so many circles of indefinite extent, of which they are respectively the centres.
This being the most extensively favourite mode of judicature, the habit of publicity inseparably attached to it has extended itself to the several other forms. And sure it is that jury-trial has been a main security for the power of the public-opinion tribunal as applied to judicature.
True it is, that from the earliest times of which any accounts remain to us, a high degree of publicity has had place in judicature, and in times anterior to those in which the institution of a limited number of assessors, under the name of a jury, appears to have been in use. Witness the county courts and the courts baron. It is not therefore for its creation that the practice of publicity is indebted to jury-trial. It is so, however, for its preservation, and it forms accordingly the characteristic difference between English-bred law and Rome-bred law.
This publicity, with its advantages, exists in a state independent of jury-trial: it exists, as we have seen, where there is no jury-trial; for example, in the judicatories called equity courts, and in the judicatories called ecclesiastical courts, not to speak of the military courts in some instances.
In the account of beneficial effects, this, then, it may be seen, is distinct from that of the obligatory power possessed by the jury over the decision in all hitherto established instances; and may accordingly have place without it.
2. Another way in which it brings to bear upon judicature this same tutelary power, is by the obligation it imposes upon the permanently-official and all-directing judge, to pay his court to these his transitory colleagues, and submit to them, and through them to the public-opinion tribunal at large, in the form of reasons, whatsoever considerations he regards as necessary to the engaging them to pronounce a decision conformable to his wishes.
In this way, not only if the decision he wishes to give is unjust, but the injustice of it is to a certain degree manifest, exposure to public reproach is a consequence which it cannot be altogether in his power to exempt it from: the exposure is in this case effected either by the utter absence of all attempt at exhibiting reasons, or by what may be still better, the weakness and absurdity of his reasons.
These good effects are, it is manifest, both of them altogether distinct from the powers exercised by the jury in respect to the nature and effect of the decision. It is here accordingly meant to be preserved.
3. Another distinguishable mode in which the jury system, in the form in which it is in use, has been conducive to the ends of justice, is the causing evidence to continue to be received in the best shape; namely, that in which it passes immediately from the lips of the relating witness to the ears of the judge and the surrounding auditory, without being strained through the hands of professional or official instruments, or both, and then reduced to writing by them, they being paid all of them at the rate of so much a word for extracting it.
Neither is this feature inseparable in its nature from jury procedure. Neither in this instance is there anything in the nature of evidence on the one hand, or of jury procedure on the other, that renders it more difficult to receive evidence in this shape, in any other sort of judicatory than in that of which a jury forms no part. In relation to a fact open to dispute, no judge, no other ruling functionary that really wished to come at the truth, ever thought of receiving evidence in any other shape than in the orally delivered shape, whenever in this shape it was within reach. Witness all parliamentary inquiries: witness every father of a family in his dealings with his children or his servants; witness the inquiries carried on, on the occasion of those crimes by which the minds of individuals, governors as well as governed, are apprehensive of injury done to person or property.
But except in so far as the truth was regarded as conducive to the giving effect to his power, or to that of him on whom he was dependent, no functionary concerned in the framing of the rules of procedure does ever harbour any such wish, as that of seeing the truth come to light, or enabling his associates and successors to come at the truth. Their aim has uniformly been, as it could not but be, to extract out of the pockets of suitors money in the greatest quantity in which it could be so extracted. The object was, that in testimonial statements the quantity of falsehood should be maximized—that further proceedings and further writings for the exposure of it might be necessitated.
At the time when the course of procedure with jurors in it was settled, and had assumed its form, scribes for the purpose were wanting, because the money to pay them had not yet come into existence. As yet judges were unable to receive evidence in any other than the most apt shape. But as the money came, things were set to rights by written compounds of falsehood and nonsense, which, under the name of pleadings, the parties were forced to utter, and to pay for, before the judges would suffer the matter to come before juries.
In the sort of judicatories in which the bench was not encumbered with any such appendage as a jury box, judges found themselves in this respect at their ease.
If in the presence of each other, and at the same time in the presence of the judge or judges by whom the fate of the suit was to be decided, the parties were heard in the first instance, the suit would in a great majority of cases be finished on that same sitting: and in the other cases, the speediest termination which the nature of the case admitted of would be brought to view by the exposition of the several facts. But in such a state of things, the pretence for official and professional extortion would have no place. In a case where property was the subject-matter of dispute, it became therefore a fundamental maxim, that in the presence of the judge or judges, on whose decision the ultimate fate of the suit depended, on no occasion were the parties to be suffered to meet in the presence of the judge: the parties being, unless by accident, the individuals by whom the facts in the case were in the largest proportion known, and in many cases the only individuals by whom any of those facts were known.
Upon the whole, then, two things appear sufficiently plain. One is, that the receiving evidence in its best shape is a practice that has obtained in all cases in which a jury has been called in: the other is, that the receiving evidence in this shape is an operation altogether as easily performed where a jury is not employed as where it is.
As to the quasi-jury system, the framer of it has nothing to get by any such mixture of absurdity and falsehood: accordingly, under the quasi-jury system, the evidence is received in the shape most conducive to the ends of justice.
One great and peculiar value of this plan will be seen to be its flexibility—its self-flexibility: with equal facility it will be seen applying itself to the most erudite and to the least erudite state of society: it might be employed not only in a democracy, but the most absolute despotism need not fear it.
Whatever be the effect of its influence, nothing can be more gentle and quiet, nothing else so gentle as its mode of action.
In the quasi-jury box may be seen a school in which the scholars are serving an apprenticeship in the art of judicature.
And these scholars,—in what number are they? Sooner or later they are the great majority of the whole number of those of whom the male population of the country is composed.
In England, under the existing system, every judge has an interest opposite to that of the people; and under the here proposed system, no judge has any other interest than that which coincides with that of the people. By no interest can he be led to wish to inflict punishment on any man, whom it could not be alike the interest and the wish of a jury to see punished.
Under this system, with what prospect of success could a judge pronounce a sentence or a conviction, which in his own eyes were unjust? Altogether unavailing would any such act be, except on the supposition of its passing without opposition through the censorship of the quasi-jury—and, moreover, finding a congeniality of guilt in the appellate judicatory. For the act being, in the eyes even of the agent, itself flagrantly unjust, is it possible that it should wear a more favourable aspect in the eyes of not only observers altogether impartial, but of jurors leagued by a community of interest, self-regarding and sympathetic, with the supposed objects of the intended injury?
To these safeguards is moreover proposed to be added that of an established delay, for the express purpose of giving time to all parties in any way interested, to make application to the appellate judicatory. Suppose, then, a sentence or conviction decidedly unjust, signed by the judge-immediate, what is the consequence? Before execution can be given to it, the whole country rings with denunciations of the injustice.
Difference between Jury and Quasi-Jury.
In the framing of the proposed quasi-jury, the object has been, as already stated, to retain all the apt features of the jury institution, to discard the unapt ones, and to add such new features as seemed apt with reference to the ends of justice.
By apt, understand with reference to the here proposed institution; for one feature will be brought to view, to which the beneficial effects of the jury system will, it is believed, be in great measure referable; but from which, if adopted into the here proposed institution, no effects but evil ones could be produced.
Between the jury system and the proposed quasi-jury system, the principal difference lies in this: By a jury, powers are possessed and exercised, such as to a great extent are decisive of the ultimate fate of the suit: powers of acquittal, for example, in all criminal cases. To a quasi-jury, no such decisive power is allotted.
With the exception of an application which is not of the essence of the system, a quasi-jury has no decisive power, and in that case it is not ultimately decisive. Of this power the exercise consists in giving or withholding allowance to appeal from the immediate to the appellate judicatory, in cases where, if, without this restriction, the right of appeal were left to the defendant, a very prominent load of certain vexation and expense would be imposed on prosecutors, witnesses, and jurymen,—in cases where the instances of its being subservient to rectitude of decision would be rare in the extreme. These cases are criminal ones, in none of which appeal, on application by a jury or otherwise, is allowed by English law.
The reason of withholding from a quasi-jury the power possessed by a jury is this:—Under the proposed judicial system, the prevalence of sinister interest on the minds of the judges is opposed by checks much more efficient, it is believed, than any which have been or can be opposed to it in the breasts of jurymen; namely, in the first place, sinister interest—the great cause of moral inaptitude in the case of judges: in the next place, relative and comparative deficiency in respect of intellectual aptitude—a branch of appropropriate aptitude in which it is not in the nature of the case that these ephemeral functionaries should in general be able to compete with judges.
With the above exception, the character possessed by the quasi-jury partakes more of that of a section of the public opinion tribunal, than of that of a body of commissioned and official judicial functionaries.
That decisive and virtually negative power which is apt in a jury, but which would be unapt in a quasi-jury, being thus excepted, the features to which the jury institution is indebted for its aptitude, and which are here adopted and given to a quasi-jury, will be found accidentally only, not essentially, belonging to it.
These are—1. The end to which the institution of this fraction of a jury is manifestly and confessedly directed; namely, serving as a bridle to the power of the creature of the monarch—the judge.
2. The publicity of the proceedings whereever this committee of the people at large makes its appearance.
3. The task which their power imposes upon the judge—the task of giving a public and immediate explanation of the case, with the reasons on which his expectation of seeing any course he would wish them to pursue pursued accordingly, rests.
4. The shape in which the evidence presented to this compound judicatory is always presented.
Of all these four features, no one can be assigned, which in the nature of the case might not have place in a judicatory constituted in any other manner, as well as in a judicatory of which a jury forms a part. For publicity might have place in a single-seated and uncompounded judicatory, as well as in that of a compound one; so likewise might the evidence be given in the best shape: the task of giving explanation and reasons to the auditory might be assigned to the judge, so there were but an auditory, no matter how composed; but unless along with the task, adequate motives were given for the performance of it, the task might as well not be given: these motives are not wanting in the case of a jury, nor will they be found wanting in the case of a quasi-jury.
Accidental as they are in their nature, with reference to the use made of this fraction of a judicatory in English-bred procedure, yet, but for the establishment of this institution, these vitally essential features would naturally have been as unknown in the English, as they are in the judicial systems of most other countries. But the point is scarcely relevant. The proper question here is—not what has been, nor what might have been, but what ought to be.
Collateral advantages or beneficial applicabilities, two.
I. Its operation in the character of a school of justice.
II. The universality of its applicability—its fitness for being inserted into the judicial system under any form of government.
I. As to its operation in the character of a school of justice.
Compared with the jury system, this character is not peculiar to the quasi-jury system: only in a degree, but not on the whole, is this character peculiar to it. In this respect its advantages over the jury system are these:—
1. The superior magnitude of the population drawn into this school. Under the here proposed system, the subdistricts constituting the judicial districts of the immediate judicatory are more numerous than those from which, under the English system, juries are drawn.
For the avoidance of vexation and expense, the number of members proposed to be given to a quasi-jury is indeed considerably inferior to that which has place under the jury system; but the defalcation from this source is supposed not to be equal to the addition made from that other source.
2. The greater probability of a superior degree of attention being given to the subject-matter of the exercise in the quasi-jury school, compared with the jury school. In the jury school, what is done is principally done by the scholars together in a body; and though in their individual capacity there is nothing to hinder them, neither is there anything to invite them to interpose; in general, the foreman, or some other member (naturally the foreman,) takes the lead; and the giving an unreflecting assent is all that is done by the rest.
3. The indiscriminating miscellaneousness of the composition in the case of the proposed quasi-jury, compared with the sinister selection, which in all places, and at all times, is capable of being made in the case of the jury.
4. The condition of comparative freedom, and unembarrassed capacity of attention, in which, in the case of a quasi-jury, the minds of the members would be placed, in comparison of the inward sense of responsibility and concomitant embarrassment, which to a considerable extent may be apt to have place in the case of a jury, where the fate of the suit and the conditions of the parties to it is dependent on the verdict in which they join; particularly in the case where the eventual punishment rises to a certain pitch of severity, and more especially where death enters into the composition of it.
5. In the jury school, the head-master is a functionary whose lessons are by the nature of his situation kept in a state of perpetual opposition to the universal interest; in the quasi-school, he is a functionary whose lessons are by the ties that have been brought to view kept in a state of continued conformity to that same only right and proper standard of rectitude.
II. Now as to the universality of its applicability.
A popular government is the sort of government for the use of which it has been framed: of its applicability, its usefulness, and capacity of being employed in such a government, such proofs as have presented themselves have just been seen. But governments there may be, into which, though altogether despotical, the quasi-jury not only would be useful if admitted, but might even stand, as it should seem, no mean chance of being admitted; while by the absolute power which, in cases of the highest importance, the jury has over the result of the suit, all chance of its admission may stand eventually excluded.
Two ways there are, by which, disjunctively or conjunctively, the reconciliation between the systems of evil and this instrument of good might be effected.
1. The one is—the exclusion of this bridle on the powers of the judge from those suits on the occasion of which the opposition between the interests of the subject many and that of the ruling few is brought into exercise.
2. The other is—the composition of it in such manner as to prevent it from thwarting the views of the compounders.
On the other hand, what cannot be concealed is—that in a government the object of which is to keep or reduce the intellectual part of the mind of its subjects to the condition similar to that of the higher order of quadrupeds, and at the same time the sensitive part to a worse condition, no such institution as that proposed could stand any chance of being admitted: the design of it would be too palpably adverse to the design of the government.
The government of British India may serve for an example.
1. With the exception of the many-seated judicatories framed upon the Westminster-Hall model, single-seated judicatories are secured by necessity, a stronger power than choice.
2. On behalf of the natives, it has no aversion to security for persons, to security for property, nor even to increase of property, so as the value of East-India stock, but more particularly so as East-India patronage be not diminished.
3. Understanding that the increase of national wealth depends in no small degree upon the security of property as against unlicensed malefactors, it has no objection to the most perfect degree of security for property against all depredation from which it derives no profit: so as the maximum of all depredation, out of which it sees a capacity of extracting profit for itself, be secured to it.
4. The power of authorizing appeal not being, according to the here proposed plan, extended beyond those offences, which while they are most frequent, inspire most terror to individuals, would not give umbrage to government: nor, how beneficial soever, is it an essential feature.
A form of government not essentially different from that of the Anglo-American United States, but regarded as in a still higher degree conducive to the only proper ends of government, is that for the use of which the institution in question was devised. But if well adapted to the proposed form of government, not less so would it be to that of the so happily established one. Under that government, the jury, with its absolute power, has not the least tendency to become destructive: but an effect which to a considerable extent it cannot but have is,—the weakening it,—the weakening it, namely, by the chances of escape which, in the case of guiltiness, it affords in the instance of the classes of crimes which, while they are so pregnant with evil to the person and property of individuals, are in so high a degree more frequent than all other crimes.
For the absolute power of a jury it has no use. In that seat of popular government there are no attacks upon the liberty of the press, or liberty of public discussion;—no secret confederacies for producing changes in government;—no conspiracies against government, organized by government itself for a pretence for making oppression still more oppressive. In that seat of frugality and equality, there is no propensity among jurymen to favour those practices by which the revenue of government is diminished. A United States jury has no government extortion or oppression to avenge: proportioned to the defalcation from the public revenue by the success and increase of smuggling, would be the injury to themselves: the produce of the taxes is employed, the whole of it, in the service of all: no part of it is put into the pockets of the imposers.
With reference, therefore, to any government having for its end in view the greatest happiness of the greatest number, its aptitude consists in its want of aptitude with reference to any government that has for its ultimate end in view the maximization of the happiness of those who share in it, and for its mediate, or at any rate its collateral end, the minimization of the happiness of all who are subject to it.
Question 1. Why to the power of a quasi-jury give the same all-comprehensive extent over the field of law, as to that of the judge, in respect to the species of causes?
Answer.—Reasons: 1. Because, if on any part of the field of law a sufficient demand for that institution has place, so has it in every other. True it is, that in the penal department, especially those cases in which application is made of the highest punishment, the demand is much more urgent than in the non-penal department, generally considered. But as to the non-penal department, if in any part of it the institution be preponderately useful, it rests with those by whom its title to all-comprehensiveness is disputed, to say at what point its utility ceases: and this will, it is believed, be found impossible.
2. Whoever it be to whom the institution of a jury, on the footing on which it stands at present in England, is an object of approbation,—if the question were put to him, what consideration that approbation has for its grounds, his answer would probably be, the operating as it does in the character of a check and bridle to the power of the judge. But for this security against misdecision, if any sufficient demand has place in any part of the non-penal department of the field of law, impracticable will be the endeavour to find any other part in which an equal demand has not place.
The incompetency of a jury under the English system in all causes of complexity has been already shown: that incompetency being greatly enhanced by those features of deficiency, the exclusion of the parties from the theatre of justice, and the inability of a party on either side, either to furnish his own relation in support of his own demand, or to call upon the other party for his.
These deficiencies had their origin in the artifices of the judges and other lawyers. In the Saxon time, and for a long time afterwards, the cast of the system was altogether popular. The locatee of the king presided, but the judges were all who were not in a state of slavery. In a judicial assembly in which, when all non-parties were present, so of course would be all parties, in so far as it was in their power. Each would be eager to tell his own story—each would be no less eager to extract matter of the like tendency from his adversary. In this way, the same meeting that gave commencement to a suit would commonly give termination to it. So it is at this day in those judicatories which are permitted to have existence for the recovery of small debts, and in those days scarcely were any suits known that would not now-a-days be regarded as small-debt causes. Such a state of things was too favourable to justice to be endured by lawyers.
In those days the judicial districts were small, and in the same proportion numerous. After the Norman conquest, judicatories were established by the king, each of them having, for certain purposes, jurisdiction over the whole kingdom. The whole kingdom was in this way converted into one vast judicial district—the communication at the same time difficult to a degree at present not easily imagined: and by the barbarity of the times, insecurity was added to difficulty. Under these circumstances, few but would find their convenience in being permitted to attend and plead by deputy. Under the name of attorneys and serjeants, a set of professional lawyers was thus formed, who became partners in the sinister interest of the judges by whom the system of procedure was framed; and it was out of the order of serjeants that men were taken to fill the judicial benches.
In this state of things, the carrying to the highest pitch the aggregate mass of delay, vexation, and expense, became of course the ruling object of the partnership in all its branches: expense for the sake of the profit extracted out of it; delay and vexation for the sake of the addition which those evils made to the expense.
A law-book, written in the time of Henry the Second, is to this point very satisfactorily instructive. It had for its author no less a man than the Chief Justiciary Glanville, the head man of the law. In profession it covers the whole field of judicature. It is occupied almost exclusively with forms of excuses for non-appearance. These excuses were already reduced to a system. Of the different species of causes as determined by the nature of the service demanded, scarcely is anything to be found: as little of any stages through which the business of judicature had to pass. An obvious inference—and it seems an incontrovertible one—is, that when once the parties were brought together in face of each other and of the judge, the matter was as good as settled: it was settled as in our day a tradesman’s demand of payment for a few shillings’ worth of goods is here and there in a small corner of the country allowed to be settled.
For both these deficiencies Rome-bred law presented a ready-made supply. To jurymen called from all parts of the kingdom—in some cases to the metropolis, in others to the ever-varying residence of the monarch—called from all parts, and consequently in a large proportion from parts at the remotest distance from their respective homes,—the attendance of a few days sufficed to constitute an enormous burthen. Those by whom Rome-bred law was imported from Rome to England, required not in their judicatories any such incumbrance as a jury-box: provided with a quantity of ready-made power, they knew well how to fill up any vacuity that could be imagined. Sitting without intermission, with hands open for fees, and ready to close upon them at whatever time and season offered, no causes could be too complex for them. At one grasp they took possession of the whole mass of moveable property throughout the country, as it became vacant by the death of the respective owners. Object they had no other than the application of it to pious uses: but of all imaginable uses, none could be more pious than their own.
The policy of the learned fraternity, as above, had kept the suitors out of the only place in which they could either deliver or extract from others vivâ voce evidence. Glad of course would they have been to have extracted it in the written shape: for when words are once designated by visible and permanent signs, they became capable of being taxed. But in this form, for several centuries they were not able to extract them: the original structure of this judicial system had not furnished machinery adapted to this purpose: small was as yet the number to whom it could be applied. Meantime their learned rivals and competitors were on the watch: no sooner was the supply of writing found sufficient, than they stept in, and applied it to their use.
To all who had anything to ask of them, those judicatories were open. They received petitions; furnished persons (who after telling their story upon paper were ready to give expression to them) with such questions as a person might wish to receive answers to, from those at whose hands he demanded them; and applied the whole force of their authority in exacting those answers, without which the questions would have been of no use.
Question 2. Why, in each suit, seek to render the authority of the quasi-jury co-extensive with that of the judge?
Answer.—Reasons: 1. For a reason similar to that mentioned in answer to Question 1. If in any one stage requisite, so in every other. In each stage the demand is the same as in every other: in each stage the temptations to which the probity of the judge stands exposed are the same.
2. To the unobligativeness of the authority here given to the jury, are the interests of justice indebted for the practicability of giving this extension to the application made of this check.
From the absolute power of frustrating the exercise of the power of the judge, and this in every one of the numerous stages which a cause, in a certain degree complex, must of necessity go through, a mass of confusion, and thence of injustice, beyond all power of calculation, might be the results. But forasmuch as, with the exception of the power of allowing or disallowing appeal in certain criminal cases, no obligatory power is here given to this section of the public-opinion tribunal—in a word no functions other than the auditive, interrogative, and censorial functions—hence it is, that from the magnitude of the extent given to its authority over the whole course of the suit in the way to its conclusion, no such nor any other evil can arise.
In the English system, whatever be the number of sittings in the course of which, on some occasion or other, a suit comes upon the carpet,—some of those sittings being in public, others in the closet of the judge, or of this or that one of his subordinates,—only in one of those sittings is a jury introduced.
Question 3. Why is not the authority of the quasi-jury here extended to summary sittings, nor thence to any summary suits?
Answer.—Reason: 1. Apprehension of the extent of the demand for individuals to act as quasi-jurymen, were such extension given, and thence of the mass of attendant vexation and expense.
In the case of appointed suits heard at the appointed sittings, measures can all along be taken, namely in the preparatory summary sittings and hearings, of the quantity of quasi-jury time necessary to be applied: and of the appointed days, the place in the calendar may be fixed, and in so far as the judge-principals have power insufficient, judge-deputies provided accordingly. Not so in the case of the summary suits.
The power of the judge is not by this omission left without check. In the first place remains the check imposed by the body of visitors, for the maximization of which arrangements have been made elsewhere.
In the next place comes the power of appeal here provided. This appeal is not from the judicatory of a subordinate to a superordinate judicatory, but from one judge to another, or even the same judge at another time: at which other time the quasi-jury will form a part of the judicatory, and thus the delay and expense attached to local distances will not be incurred. Whether, on the second and more deliberate hearing, the judge shall be the same or a different one, must, it should seem, of necessity be left to the discretion of the judge. If at the summary sitting the judge was a judge-depute permanent, the natural course would be, that at the appointed sitting it should be the judge-principal: the opposite course would be a sort of anti-climax. But it is only by necessity that the judge-principal stands excused from serving on the summary as well as on the appointed sittings: and so far as he does thus serve, the appeal thus made must be either to his virtually subordinate substitute, or to himself.
In the appeal ab eodem ad eundem, there is not in this case either absurdity, danger to justice, or even innovation. In English equity procedure, what is called a rehearing is no uncommon incident. True it is, that in one case of a rehearing, the appeal is in effect and fact from the first judge to a different one. This case is that where (a change in the situation of chancellor having taken place) the appeal is from the former chancellor to his successor. But another case of a rehearing is, where, at the instance of a party, the same chancellor hears a second time arguments on the same subject-matter as on the first.
In this case there is no fraud; all is what it seems to be. The fraud is, where the appeal is from the chancellor himself, to a judicatory of which he is not only a member, but the only thinking one—a judicatory in which, on ordinary occasions, none attend except two cyphers, who vote as they see him vote, without the pretence of thinking: on other occasions, none attend but the few sent thither by some latent interest, which, if made apparent, would show them to be each of them judge in his own cause.
“But,” says somebody, “you, in whose eyes these same individuals are not unapt to bear a prominent part in the business of legislation, on even an unbounded scale,—can you, with any consistency, regard them as unapt with regard to a function so limited in its extent, so subordinate in its importance, as that of pronouncing a yes or no in a case where nothing more is at stake than the fate of this or that individual?”
Answer: 1. In regard to the power I give to them,—it is under the pressure of necessity that I give it to them, because in no other hands could it be reposed without the absolute certainty of its being abused.
2. In the case of the power given to them as to the choice of legislators (in no instance whatever is any power of legislation given to them,) I leave them—as according to all experience I may without danger leave them—to be assisted, and, in as far as they please, guided by general reputation: no opinion, no judgment of their own, are they in that case called upon to pronounce. But in this case, no judgment can any one of them pronounce which is not his own: no less direct and complete is the cognizance taken of the matter in their situation, than in his situation is that of the judge. In the forming of it, no assistance have they that so much as professes to be impartial, other than that of the judge—of that very functionary, to whose power the one and sole use of them is to apply a check—and under whose guidance, in so far as, without forming, in relation to the matter in question, an opinion of their own, they commit themselves, their function is inefficient and useless.
Persons to whom, with a view to the ends of judicature any member of the quasi-jury is authorized to address questions, are in general all other actors on the judicial theatre.
In particular, they are as follows:—
1. Any party to the suit on either side; to wit, whether in his quality of party interested, or in his quality of party testifying—or in other words, litigant witness.
2. Any extraneous witness.
3. Any assistant, non-professional or professional, of any party on either side.
4. The pursuer-general, or any depute of his, if present, whether by office engaged in the particular suit in question or not.
5. The defender-general, or any depute of his, whether by office engaged in the particular suit in question or not.
6. The registrar or his deputy.
7. Any fellow-member of the same quasi-jury.
8. The officiating judge, whether principal or depute.
Correspondent to the interrogative function on the one part, is the responsive function or service on the other: of an exercise of the interrogative function on the one part, the object is, to produce an exercise of the responsive function on the other.
To render obligatory the exercise of the correspondent responsive function, the following are the qualities which must have place on the part of the discourse uttered in the exercise of the interrogative function:—
1. It must be relevant; it must bear some assignable relation to the matter in question.
2. It must be apt; it must be such that an answer given to it may be eventually in some way or other conducive to the ends of judicature; it must not be frivolous.
If being neither irrelevant nor otherwise unapt, the interrogation addressed is followed by relevant and apt responsion, it is well. If being addressed to a person other than the officiating judge, and being in his eyes relevant and apt, such responsion as in his judgment is relevant and apt fails of being given to it,—the judge will apply his power to the exaction of such answer, according to the situation of the non-complying individual.
If it be a party, he will give him to understand, that of non-compliance the effect may be the loss of the suit: that is to say, if it be on the pursuer’s side, the non-performance in the whole or any part, of the service demanded by the suit; if on the defender’s side, the rendering of such service in the whole or in part, in so far as the rendering it will be at the expense of the non-complier: and such, accordingly, in the case of necessity, is the arrangement that may be made.
If it be an assistant, professional or unprofessional, of a party, and in the declared opinion of the judge such non-compliance has for its cause (especially if it be in concert with the party) the endeavour to save a party, he being in the wrong, from loss of suit as above, intimation may be made to him, that in relation to the interest of the party in the suit, such non-compliance will have the same effect as if it had been by the party himself that it had been manifested: and such, accordingly, in case of necessity, is the arrangement that may be made.
If it be a pursuer-general, or defender-general, or the registrar, or their deputes respectively, the judge will cause make a minute in terminis, of such discourse as by the several persons who took part in it was employed; which minute will constitute an article in the incidental complaint book.
So if it be a fellow-member of the quasi-jury.
So if it be the officiating judge.
The judge’s recapitulatory statement, opinative decree, and imperative decree, having been delivered,—thereupon comes the quasi-jury’s function—the opinative function, having for its subject-matter the two above-mentioned decrees of the judge. Of this function the exercise is, in the nature of the case, susceptible of any one of the following shapes, and in any one of these shapes they are equally free to exercise it:—
1. Express refusal to pronounce any opinion.
2. Consent to the whole, tacitly given.
3. Consent to the whole, expressly given.
4. Dissent to the whole, expressly given, but without proposal of substitute or amendment.
5. Dissent to a part, expressly given, but without proposal of amendment.
6. Dissent to the whole, with proposal of substitute.
7. Dissent to a part, with proposal of amendment.
The opinion of the quasi-jury being in one or other of these shapes made known, entry is accordingly made on the record by the registrar, stating the shape in which it was so made known: silence, after presentation of all these several shapes to their option, and a sufficient pause for the expression of it,—silence being taken for tacit and universal consent.
If to the whole, or to a part, any substitute or amendment is proposed, the judge either assents to it, and changes or amends his decree or decrees accordingly, or declines doing so: in either case, entry accordingly is made on the record.
In the three first-mentioned cases,—namely, express refusal to pronounce opinion, consent tacit, and consent express,—execution in virtue of and conformity to the judge’s imperative decree, unless appeal be made, follows of course.
In the four last-mentioned cases, unless appeal be made, it rests with the judge to cause execution to have place: if appeal be made, it takes its course in these four cases, as it would have done in any of the three first.
As to the appeal, in what cases it shall, and in what cases it shall not have the effect of obliging the judge-immediate to stay execution, will be found determined, regard being had to the several particular cases in the penal and non-penal codes.
If from non-compliance with any substitution or amendment proposed by a quasi-jury, irreparable damage will ensue, while from compliance equiponderant damage will not ensue,—the judge will in this case regard himself as bound to make exercise of his suspensive, or say execution-staying function, to that effect.
Only in the case of its being the act of the quasi-jury in its collective capacity, can entry be made of dissent in any one of its four shapes as above; but the act of the majority of the jury is the act of the jury—of the jury in its collective capacity.
To a minority of the jury on this occasion, as to all persons on all other occasions, the press is open for the reception of the free expression of their sentiments.
On being thereto requested by the quasi-jury, the pursuer-general present is expected to lend his assistance to the purpose of giving apt form to any such proposed substituted decree or amendment, as above.
So, the defender-general.
Under the dominion of unwritten law, called also jurisprudential law, the question of law to be determined is—what, on the individual occasion in question, are those terms of the law which (in default of all relevant law made by the legislature) may with most propriety, as if it had been made by the legislator, be made by the judge—as being most analogous to the tenor of the rule of action which has place in the political community in question—statute law and jurisprudential law taken together.
The question of fact is either an absolute question or a comparative question. A comparative question is a question concerning degree; an absolute question of fact is every question in which the consideration of degree has no part. Degrees are either degrees of quantity or degrees of quality. Degrees of quantity are no otherwise determinably expressive in any absolute form than by numbers. Every absolute question of fact may, without regard to quantity, be so worded as to be susceptible of a true answer, either by a yes or a no. A question concerning quantity admits of as many answers as there are degrees in the scale in question, numbers, or series of numbers, contained in it, of which it is assumed that on the occasion in question some one or other is the proper.
A question, the answer to which is either guilty or not guilty, is a question concerning law and fact combined. In the answer expressed by the word guilty, two assertions are contained; namely—1. The individual in question, at the time and place in question, or at any rate at some time and place, did perform a certain act, positive or negative. 2. The act performed is of the number of those which stand interdicted by some portion of law, namely, legislatorially existing law, or by the judge in question may and ought to be considered as interdicted by a portion of imaginary law, to be made by him for the purpose.
Examples of scale of quantities:—1. Money: as where a fixation is to be made of the sum to be transferred from a defendant to a pursuer, in compensation for loss or injury; or from defendant to the public, in the name of punishment.
2. Time: as when, in case of chronical punishment, a fixation is to be made of the length of time during which it shall continue; say banishment, confinement, imprisonment.
Warrant for Appeal.
If to a set of men thus composed, any determinately efficient power be fit to be given, a case in which it may be of use to give it is, the giving admission to the faculty of appeal, divested of the inconveniences naturally attached to it, in those criminal cases in which, if left at the option of the defendant, it would be sure to be made by all who were guilty, and in so far produce much vexation to the injured, without benefit to the criminal. Among these are such as are at the same time of the most mischievous kind and the most frequent occurrence: in particular, offences of the predatory kind, when committed by habitual, and as it were professed depredators, especially if accompanied with homicide, house-breaking, or personal violence or menace.
In a case of this sort, appeal, if allowed, will come in a manner of course: it will come for the sake of the delay applied to the punishment, and the chance which all delay affords, or appears to afford, of ultimate escape.
But by every appeal, suffering is by the innocent and injured almost constantly experienced. Under the worst system in existence, the instances in which a person really innocent is condemned, and in consequence of condemnation actually made to suffer punishment, are probably, comparatively speaking, very rare: rare even under the system of secret procedure acted upon in despotic states; still more rare under the system of publicity which has place in England, and elsewhere under English-bred law. Under the here proposed system, with such checks as are here applied to the purpose of securing moral aptitude on the part of the judge, they may, it is hoped, be reasonably expected to be still more so.
At the same time, a state of things, in which it lies in the absolute power of a single person in the situation of judge (even with his moral aptitude thus checked and guarded) to subject a human being, perhaps innocent, to the extremity of allowed punishment, is a state of things which to a human mind cannot but present considerable alarm.
But the state of things in which claims of this sort are not only so probable, but so extensively felt, is a state of things which, under a system of which the present proposed code forms a part, would scarcely in any instance have place. This state of things is one in which punishment, in its nature absolutely irreparable, is lavished, either with the most savage and deliberate cruelty, or with the most thoughtless extravagance. There is but one mode of punishment, the mischief of which is absolute and totally irreparable—and that is mortal punishment.
For argument’s sake, instead of mortal punishment, suppose even mutilation employed,—mutilation even in parts or organs more than one. Not altogether unsusceptible of reparation would even this punishment be: for, for suffering in this shape, reparation, and to a very wide extent, is almost everywhere actually in use: witness this, in the pensions granted in the sea or military service; and it is a matter generally understood, that by the individuals by whom on this account reparation in this shape and degree is received, it is not unusually regarded as adequate; insomuch that if asked, whether for the same reparation they would originally have been content, or would now, if it were to do over again, be content to be subjected to the same suffering, the answer would be in the affirmative.
The temperament here proposed is accordingly, that in such instances, in regard to those criminal cases of the higher order which are of the highest degree of frequency, appeal should not in general be admitted: but that, on a certificate given, either by an entire quasi-jury, or by a portion of it, or say perhaps, in some cases, even by a single quasi-juryman, that in his opinion innocence is certain, or culpability doubtful, appeal should be allowed to be made.
Of an arrangement of this sort, one effect, it cannot be denied, would be the putting it in the power of a criminal, by means of a bribe given to a quasi-juryman, or to the number of quasi-jurymen in question, to obtain a certain quantity of delay in the execution of the sentence.
Of appeal in highly criminal cases, in general, what shall be the effect? The appellate judicatory—shall it pronounce its decree upon the bare view of the evidence, as reported from the immediate judicatory?—shall it, of course, try the cause over again, by hearing evidence as if none had before been given?—or shall it have the option between the reported evidence and the giving a fresh hearing to the evidence? On the choice between these three courses, it is manifest how much would depend, and how considerable between them respectively might be the difference in point of effect.
So likewise as to the nature of the offence,—whether it has or has not anything in it of a constitutional character.
Costs of quasi-trial.
Of the quasi-jury, the expense taken in all its parts is very considerable: it is composed of the evils correspondent and opposite to the collateral ends of judicature, namely, delay, vexation, and useless expense.
This considered, two consequences follow:—
1. One is, that when, in the judgment of those who have any interest in the suit, this check with its expense is needless, the expense ought not to be incurred.
2. Another is, that in so far as the evil consisting of the expense is preponderant over the good consisting in the security, neither in this case ought it to be employed.
Hence a proposition which may naturally enough appear incontrovertible at first sight is, that if no one of the parties conceive himself to have any ground of complaint against the conduct of the experienced judge, there can be no use whatever in clogging the operation by a multitude more or less considerable of unexperienced ones.
If to the justice of these observations there be anything to oppose, it must be on this ground, or some such ground as this,—namely, that by reason of the relative ignorance and inexperience of a party, it may happen, that though the conduct of the judge has been unapt, and that to such a degree as to have been productive of misdecision to the injury of the party in question, yet by reason of his own relative inaptitude, it may be out of his power to determine, whether in that same conduct there has been or has not been anything unapt; or else, that by timidity—by fear of incurring the resentment either of the judge in question, or of the class of men to which the judge belongs, he may be effectually prevented from availing himself of any such security as that in question, supposing it here to have given him the faculty of employing it; or, lastly, that by indigence, it may happen to him to be incapable of making use of it.
To the order for quasi-trial, the judge adds, in relation to the expected costs thereof, such order as the nature of the case—consideration had of the pecuniary circumstances of the several parties—appears to him to require. The options are as follows:—
1. He leaves the burthen of costs in its natural seat; leaving it to each party to bear his own part of it.
2. In case of need, he requires a party or parties on one side, to make advance of money on this account, in any proportion, in favour of a party or parties on the other.
His care will be, not to suffer the additional delay, vexation, and expense, to be employed by the party who can best endure it, as an instrument for the oppression of one who can least endure it.
Features in jury-trial here discarded.
First come the features of jury procedure; and under the head of each of them the opposite state of things here will be briefly undernoted.
These may be distinguished into such as are regarded as being productive of evils opposite to rectitude of decision, the main end of justice—and such as are regarded as productive of evils opposite to the collateral ends of justice, namely, needless delay, vexation, and expense.
1. In a jury, number of persons twelve. In a quasi-jury, not more than three.
2. Of a jury, on failure of instantaneous agreement, forced transference to a closed room: no other persons present at their deliberation. Of a quasi-jury, no such transference, unless they desire it, or one of them desires it.
3. In the case of a jury, immediately before the commencement of the hearing,—a solemn promise exacted of each, to declare an opinion on one side of the question, whatever it be, or on the other side. On the part of a quasi-jury, no such promise is exacted or received.
Note that, on every question in relation to an opinion, and that which is in contradiction to it, the possible states of the mind are three; namely, decision on the affirmative side, decision on the negative side, and indecision: and of this last state, the exemplification will be the more frequent, the less the degree of instruction is on the part of those to whom the question is put. As for example, speaking of an individual in the character of defendant in a penal suit, questions no more than two: Is he guilty?—or, Is he not guilty? Answers which the nature of the case admits of, three; namely, Guilty, i. e. my opinion is, that he is guilty.—Not guilty, i. e. my opinion is, that he is not guilty; or. I have not been able to form an opinion whether he is guilty or not. Of the real state of the man’s mind, one or other of these answers cannot fail to be the true expression. The true one will be this third state, as often as the same opinion fails of being entertained by all of them, unless a decided disagreement has place—one or more entertaining the positive opinion, the other or others the negative. But for this absence of all opinion, frequent as it cannot but be, the law has not provided any expression: the consequence is, that in the instance of every one of the jurors who has found himself unable to form a decided opinion on either of the two opposite sides, the promise which the law has forced him to make is violated.
To the conception of the founders of Roman law, this natural state of the mind had presented itself: a form of words, namely, Non liquet, had accordingly been provided by them for the expression of it. But obvious as is the conception, on the part of the founders of English law in this particular, the state of mind was too barbarous to admit of it. No distinction did they know of between decision and indecision. As little perceptible to them was the distinction between unconscious and self-conscious misdecision—between blameless error and intentional injustice. Supposing the decision erroneous, the conclusion was, that those who joined in it could not but be conscious of its being so. Accordingly, by the verdict of a second jury, to punish the first jury with one and the same punishment in every case, and that a punishment involving utter ruin, was a practice as common as that of simply sending the original suit to a second jury is at present.
4. A declaration of an opinion on the one or on the other of the opposite sides of every question (except in the case of a special verdict)—which declaration is consequently—on the part of every one whose opinion fails of being exactly the very opinion declared as and for the opinion of the whole—false: and the correspondent promise violated.
In cases styled civil, a verdict styled special is admitted. But in cases styled criminal (not to speak of those styled civil,) no such verdict can, without the concurrence of the judge, be admitted: and in this case, too, of a special verdict, the same declaration of unanimity as in the case of a general verdict is indispensable.
In speaking of the verdict of a jury, the language universally employed is, as often as any such difference of opinion has place, undeniably false: what is said is, that it is unanimous; that is to say, that they are all of one mind. To render the expression true, it would be necessary to substitute to the word unanimous, some such word as univocal, all of one voice—all joining in the voice of the foreman, where, as for example, in a case called criminal, the words he pronounces are, guilty, or not guilty.
In the case of a quasi-jury, no such univocality is exacted.
5. To the promise thus made—the promise made by every man, that his opinion shall be the same as that declared by the foreman, is attached a religious ceremony, by which it is converted into an oath. The ceremony consists in a man’s saying, So help me God, and thereupon kissing a book, which for this purpose has been put into his hand.
The promise having been thus converted into what is called an oath (though with more propriety it might be called a vow,) every violation of it is thereby converted into an act of perjury.
In the case of a quasi-jury, no oath is administered; no perjury therefore can have place.
6. In case of disagreement, confinement inflicted on all, until a universal declaration of agreement has been produced on the part of every one of them: confinement accompanied with circumstances of unendurable and consequently never endured affliction, such as convert it into torture. Torture-master, the judge: the torture being continued till they all join in declaring an opinion dictated by him, or in his default, any one of the jury—until they all join in that one of the two decisions which is dictated by him.
If the verdict they come out with is not agreeable to the judge, he sends them back again till they are agreed; and this he does as often as he pleases. Of late, the functions of torture-master in this way have not frequently been performed by the judges: but there is nothing to hinder it, and it may be administered for any length of time.
Whether this function be or be not administered by the judges, it may on any occasion be administered by any one of the jurymen to all the rest.
The ceremony is to make every one of them keep his promise: the torture is to make some of them break it. The torture has always been more powerful than the ceremony. So plainly irresistible is the possible amount of it, that the actual scarcely ever amounts to anything more than a comparatively slight temporary uneasiness.
Thus it is, that for making eleven good men and true (for such is their appellation) perjure themselves, the equivalent of the prick of a pin suffices.
In the case of the quasi-jury, production of perjury being no part of the danger, neither in that shape nor in any other—neither by the judge nor by a quasi-juror, is any such function as that of a torture-master’s allowed to be exercised.
7. Concealment of what passes—concealment from all but the patients, while the torture is at work. The time is supposed to be passed in deliberation: but for this supposition, however, the nature of the case furnishes not any apparently strong ground. If the contest were a contest between understanding and understanding, yes: but the understanding has nothing to do in the business; the contest is between will and will; the question is, who is likely to endure the inconvenience? for whoever it be by whom it is longest endured, by that one are the terms of the verdict determined: the victory is to him by whom the part of an obstinate man is acted with the most success. To the arguments urged by professional advocates on the part which he espouses, it is not likely that under such circumstances any material and efficient addition should be made by him whose determination is to conquer or die.
In the case of the quasi-jury, of course no such concealment can have place.
8. Responsibility to the power of the legal sanction excluded altogether: punibility, none.
A quasi-juror is, in case of self-conscious delinquency, punishable.
9. Responsibility to the public-opinion tribunal, if not excluded altogether, minimized: nothing but the bare verdict, guilty or not guilty, being exposed to the public eye. The grounds of it being thus covered by impenetrable darkness, what blame can under such circumstances be passed is, in the instance of each one, reduced to next to nothing, by the multitude of those amongst whom it is shared.
Could but the light of publicity, by some such power as that of the Devil upon two Sticks, be regularly thrown upon the business of this well-closed theatre, the scenes that would be exhibited would be such as would be enough to dry up the stream of eloquence now so perpetually poured forth upon this matchless fruit of the wisdom of English ancestors. This, however, is physically impossible. Laid open indeed to the public might everything be that passed; but the scenes which in that case would be exhibited, would have little resemblance to those which have place among a set of men, in whose instance the sense of common distress and common weakness could scarcely fail to be productive of mutual indulgence and prudential silence. Out of a school thus circumstanced, tales of ridicule are in little danger of being told.
In the case of a quasi-jury, in the instance of any one of its three members, to whose mind an observation which he is desirous of communicating to his colleagues has presented itself,—if it be the pleasure of the others to hear him, they retire for that purpose. In the judicatory itself they cannot continue, because that would be incompatible with ulterior business. A retiring room is provided for them; and as to the giving admission to such other persons as the room will hold, the difference between the giving and withholding it, does not present itself as being of much importance.