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CHAPTER II.: JURIES—THEIR USE AS A CHECK TO JUDGES. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5.
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JURIES—THEIR USE AS A CHECK TO JUDGES.
Of the functions exercised by the body of unlearned assessors, termed jurors or jurymen, the original intention, as well as experienced use, seems to be universally agreed, as well as understood, to be—the serving as a check upon the power of the learned and experienced judge or judges, under whose direction, or guidance at least, they have to act. In name, the decision pronounced in each cause—that decision at least to which the name of verdict is given, and in which not only the question of fact is decided upon, but a decision on the question of law (except in the particular case of a special verdict) is involved, is ascribed to them, as if it were theirs alone: but, besides the power of sending the cause to a new trial before another jury, the effect of the power exercised by the professional judges is upon the whole so great, (the verdict having in no instance any effect until it be followed by a corresponding decision distinguished by the name of the judgment, the formation of which depends altogether on the professional part of the compound judicatory)—that a conception nearer to the truth will be formed, by considering the main or principal power as in the hands of the judge, that of the jury serving as a check to his power, than by considering the principal power in the hands of the jury, that of the judge serving as a check to theirs.
That, of the unlearned body so designed to operate as a check, the members ought, so far as concerns the exercise of the functions belonging to their body, to be in a state of independence—of independence as perfect as possible—is a proposition included in the very denomination of a check. To deny the truth of it, is to utter a contradiction in terms. To say that there ought not to be any such independence, is the same thing as to say that there ought not to be any such check.
In appearance, this sort of independence is, in modern practice, everywhere, in every part of the field of jury-trial, actually preserved. That which, on the occasion of each trial, the judge or judges, who constitute the professional part of the mixt judicatory, have power—say, for shortness, the judge has power—to do, is to compel the non-professional part, the jury, to pronounce a decision, termed its verdict: that which he has not the power to do, is to determine what that verdict shall be.
Great, however, as is the power of the judge, in every case, over the ultimate result of the cause, yet, so far as concerns the decision pronounced, or supposed to be pronounced, by the jury, it applies more directly and certainly to the prevention of a verdict contrary to his wishes,* than to the obtaining at their hands a verdict conformable to his wishes.
When, therefore, in pursuance of a sinister interest, in whatsoever bosom it may have happened to it to originate,—his own, for example, that of the king, or that of any servant of the king’s in any other department of the state, it has come to be an object with a judge to obtain at the hands of a jury a verdict in any way contrary to justice, a necessary endeavour has been to obtain a jury, so composed, as that the verdict pronounced by them may be depended upon as about to be conformable to his wishes: to give, in a word, to the judgment, which he has it in his wish and intention to pronounce, the appearance of being the proper and necessary result of an antecedent decision, which, under the appropriate name of a verdict, the jury have, by the mouth of their foreman, pronounced, or at least been considered as having pronounced.
If, in consequence of any sinister influence exercised over their faculties by the judge, a verdict, different from what would otherwise have been pronounced by them, has been pronounced, that influence will have assumed a very different character, and have been produced by causes of a very different description, according as it is to the understanding or the will that in each bosom it has applied itself.
To the understanding of a juryman, as of any other man, though influences, which, being unfavourable to justice, may be termed sinister, are liable to apply themselves from other quarters, yet so far as it has happened to any such influence to have been applied by any act of the judge, it is only by his understanding—by the application of his relatively stronger understanding to their relatively weaker understandings, that it can have been applied: in a word, it can only have been the influence of understanding on, or over, understanding.
When it is to the will of the juryman that any sinister influence acting in a sinister direction has been applied by the judge, it is by the will of the judge that it has been applied: it has been the influence of will on, or over, will.
In so far as the prescriptions of duty, the dictates of probity, are taken by the juryman for the rule of his conduct, no other will is by his will suffered to exercise any influence on it: his will takes for its guidance the dictates of understanding purely: of his own understanding, if it feels itself strong enough: if not, of some other understanding, on the relative strength of which (relation being had to the question in hand) its reliance is more assured.
To the dictates, therefore, of any other will, the will of a juryman, as of any other judge (the lawfully declared will of some lawful superior alone excepted, for which, in the case of the juryman, there is no place,) cannot so much as listen, but at the expense of probity. From whatsoever source it happens to it to flow—whether from the will of the judge, or any other will—the influence, or, as in this case it is styled, the temptation, to the assaults of which the probity of the individual (in the present case the juryman) stands exposed, will apply itself in one or other of two shapes: in the shape of evil, viz. ill-applied punishment, working by intimidation; in the shape of good, viz. ill-applied reward, working by corruption.
Against these two opposite dangers, provision was made in the principles which presided over the original organization and mode of procedure that took place in the case of these singularly-constituted judicatories, or rather component parts of judicatories.
Against undue intimidation, they received for their protection, in the first place, exemption from any infliction which, avowedly and under the name of punishment, might otherwise have been applied to any of them separately* by the arbitrary power of the judge; in the next place (being that without which the other would have been of little value,) the veil of secresy, to preserve to them, during their conferences, the faculty, and (to render it more effectual) the obligation, of keeping themselves during their conferences, out of the reach of his observation: and not of his only, but of that of all other men, and especially all other men in power, in whose enmity they might be apt to behold a source of danger.
Against corruption, the principle employed was that of continual change: no person being continued in the exercise of that function for any length of time: that so neither the seductive artifices of the judge, their natural tempter, who in their power had before his eyes a force constantly antagonizing with his own, might have time to mould into undue obsequiousness the weakness of their minds; nor the casual tempter—the party who, in the event of his obtaining anywhere a sufficiently steady view of a future juryman, against whose probity his operations might be directed with a sufficient prospect of success, might find himself disposed to apply the opportunity to any such sinister use.
[* ]In this case, in the hands of the judge, the most edicient instrument of injustice may be seen in the principle and practice of nullification: by which, considered as applied to verdicts, the effect of them is destroyed, on pretences that do not so much as profess to have any relation to the merits of the cause. The pretence has always been the existence of some regulation, or (as it is called, to screen its non-existence from notice) some rule which, besides that it was never fit to have existence, had never—so far from having been sufficiently notified beforehand, in such manner as to afford to those who were punished for not having obeyed it the possibility of obeying it—had never so much as been in existence. It was on each occasion invented, and set up for the purpose of the particular injustice that was to be done.
[* ]In the case of the now obsolete mode of procedure called attaint, a juror could not be proceeded against but in conjunction with all the rest.