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CHAPTER III.: THE CHECK HOW DONE AWAY BY INFLUENCE. - 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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THE CHECK HOW DONE AWAY BY INFLUENCE.
Checks are ever odious to all persons checked.
To the welfare of the governed—of men considered as men subject to power—it is highly conducive at least, if not (as under the British and other mixed or limited governments, men are apt to say) altogether necessary, that in whatsoever hands power be lodged, checks to it, in some shape or other, should, throughout the whole field of its exercise, be applying themselves: and upon the supposition that the good which, in the shape of security against misrule, is thus produced by the check, is not exceeded by the evil produced by the defalcation made by it from the quantity of power necessary to enable the holder of the power to render, in the highest degree of perfection, the service expected at his hands, the utility of the check will hardly find any person to dispute it.
But whatsoever be their utility, relation being had to the interests of the people considered as subject to power: to the hands by which the power is holden, the sensation produced by anything which acts upon them in the character of a check, never has been, nor ever can be, otherwise than unpleasant.
How it happened that, in England, the operations of the king’s ever dependent instruments, the official judges (not to speak of the equally dependent instruments of his imperfectly subjected subordinates, the great barons) found themselves, in the infancy of the constitution, incumbered, and to so great an extent, by the presence and interference of a determinate number of unofficial assessors, still more ignorant than themselves; while, in the other part of the same island, the incumbrance was confined to the criminal division of the field of law, and even there to the upper parts of the ground; and while, on the continent, either no such incumbrance was ever known, or was at a very early period got rid of; these are among those points of legal history, the obscurity of which seems to have given them up beyond redemption to the arbitrary dominion of conjecture.
Thus much however appears with tolerable distinctness; viz. that, over a great part, if not the whole of that field, over which the jurisdiction of a limited and even fixt number of assessors, under the denomination of jurymen (petty jurymen,) extends itself, the sort of function now exercised by them was exercised by an unlimited and usually much larger number of the inhabitants of the district in question under the name of freeholders: by which denomination were distinguished the whole of that comparatively small number of persons whose interests, according to the notions moral and legal of that time, had any claim to notice: and that, of this larger and imperfectly determinate body, the part now called a jury, was a sort of select committee, gradually and by general consent, the result of general convenience, substituted to the ever fluctuating and unwieldy whole.
But though, in one shape or other, the incumbrance has, from the earliest days of the existing constitution, been clinging to the shoulders of the official judge, yet, in whatsoever shape it clung, it could not have been otherwise than a troublesome one.
To the free exercise of his power the obstruction given by it is sufficiently obvious: for, so often, and in such proportion, as he found it necessary to give effect to a will on their part, which, howsoever expressed, differed ultimately from his own wishes, so often, and in the same proportion, was his power converted into impotence.
Supposing even his will to have been in every instance ultimately and completely prevalent, and, not withstanding the incumbrance, his power thus far unimpaired, even thus, on comparing his situation with that of a judge the freedom of whose actions is unrestrained by any such incumbrance, it will be manifest enough, that though his power were ever so entire, one effect, inseparably attached to the nature of this incumbrance, is—to afford, in one way or other, perpetual disturbance to his ease. All their desire is to shape their wills to his, and for that purpose to know what it is. Be it so. Yet to this purpose it may be necessary for him to make them know what it is; and simple as it may be, to impress into their minds this article of knowledge will, every now and then, require on his part, one of those operations which cannot always be performed without more or less disturbance to the operator’s ease.
On the other hand, suppose on their parts any reluctance towards the adoption of his will, argument, in some shape or other, would on his part be necessary to the surmounting of that reluctance; and so much argument, so much time and trouble consumed, so much disturbance given to his ease. Let there even be no reluctance opposed to his will, yet, if in their conceptions there should be any difficulty in comprehending it, still, to the removing or endeavouring to remove any such difficulty, explanation, in some shape or other, would be necessary: more consumption of time and trouble; more disturbance given to ease.
But to a man in power, it neither then was, nor to this time is, no, nor ever will be, natural to submit readily to any such limitation to his power as he can commodiously get rid of: it neither then was, now is, nor ever will be, natural to him, to suffer his own ease to remain exposed to any disturbance, from which he can conveniently keep it clear. To keep it to a certain degree habitually clear of disturbance, may, from time to time, cost him more and more labour, giving to his ease more and more disturbance. But, be his expectations of neat profit, in that valuable shape, verified, or not, by the event, his exertions will not the less truly have had for their motive, the love of ease.
On both these accounts, therefore, and in whichever of the two shapes he found the weight of this body of assessors pressing upon him, the endeavours of the judge to shake off or lighten the incumbrance cannot but have been coeval with its existence.
In the character of a sinister motive, becoming, in the bosom of the judge, an efficient cause of injustice, the love of ease seems hitherto to have almost escaped notice. But it has not been the less efficient; and of its efficiency exemplification but too extensive will meet us as we advance.
Judges’ Defences against Checks—Corruption and Deception.
Henceforward let us suppose the use of juries firmly established: and of the part originally acted by the promiscuous assembly to which this select committee succeeded, all distinct remembrance, as well as desire, obliterated: obliterated by this primæval Grenville act, of which the record is no where to be found.
For securing on the part of this select body of assessors, whose office was to keep a check upon his will, a subservience as constant and prompt as possible to that will, thereby impairing as far as possible the use and efficacy of that check, three possible instruments, as above brought to view, were afforded by the nature of the case: viz. intimidation, corruption, and deception: for such is the name that may with propriety be given to the influence of understanding over understanding, as often, and in proportion as the exercise of it is recognised as operating to the prejudice of justice.
As to intimidation, in the character of an instrument of influence applicable to the purpose here in question, it must, from the very first, have been too plainly incompatible with the acknowledged constitution of this compound judicatory, and too insupportable to the feelings of the people, to be in anything like constant or even frequent use.*
Of punishment applied to this sinister purpose by the sole power of the judge, in the shape of pecuniary fine for instance, examples seem to have been not altogether wanting. But, forasmuch as such a practice could not have been permanently established, without the utter destruction of the power of juries, the existence of that power is a sufficient proof, that of that suffering, though applied under the name of punishment, and by judicial hands, the infliction could never have been considered in any other light than that of a casual act, committed under the spur of extraordinary irritation, by illegal violence.†
Corruption, the work of will operating upon will, and deception, operating by the influence of understanding over understanding, were therefore the only instruments affording any promise of being regularly and steadily applicable to this sinister service: viz. the securing of undue obsequiousness on the part of juries.
Corruption—Modes of applying it.
In regard to corruption, the standing problem was, and is, so to order matters, that, on each given occasion in which it may happen to the judge to take on any account an interest in the verdict of the jury, it shall depend upon his will, with the surest effect, and with the least trouble possible, to mould it to his own desire.
To this purpose, on the occasion of each verdict, the concurrence of two circumstances was, and is, necessary:—1. That, in the event of their finding themselves in the situation requisite (viz. that of inhabitants of a jury-box) there should exist a sufficient number of persons disposed, no matter by what causes, to manifest the sort of obsequiousness requisite; 2. That matters should so have been ordered, that in that requisite situation the persons so disposed should in each instance be to be found.
There are two courses or orders of proceeding, in either of which this supposed unjust, but supposed desired result is capable of being produced:—1. Finding out persons in whose instance the requisite disposition is already formed, and thereupon placing them in the situation requisite; 2. Going to work with a set of persons already stationed in the situation requisite, and to the persons, so situated, giving the disposition requisite.
The first of these two courses is that which, having been invented in the time of our ancestors, in a somewhat distant age, has from them received the name of packing:—a name which, from the application at that time but too frequently made of the practice, and thence habitually apprehended from it, has acquired a dyslogistic tinge: serving at present to express, not merely the practice itself, but the sentiment of disapprobation excited by the idea of it, and thus, by the principle of association, attached to it.
Of the two courses, this ancient one is evidently by far the most simple.
In the other may be seen an example of a degree of refinement reserved for modern times:—“A number of persons whose dispositions, in regard to the subject in question, are as yet unformed or unknown, being collected—required to generate in their breasts the disposition requisite.” Such is the problem, the solution of which was necessary to the pursuing of this second of the two courses. And, with what success it has been accomplished, will ere long, it is supposed, be not indistinctly visible.
For this purpose, the following process stands alike approved by theory and experience:—
Into the situation in question (it being a situation conferring power—legal power) cause to be placed the number of persons requisite (they being provided with the requisite legal qualifications)—you possessing in your hands, to a certain extent, the faculty of influencing their interest or welfare (that is, producing in their respective bosoms the sensation of pain or pleasure, or the eventual absence of either)—and no preponderant force acting on the same bosoms in an opposite direction: these things being done, the exercise of that power is thereafter at your command: and this, whatsoever be the name given to the act of power so exercised—such as verdict, judgment, decree, sentence, vote, resolution, statute, law.
In the science of psychological or moral dynamics, of which political is one branch, the above proposition, though never yet perhaps reduced to any scientific form of words, may be stated as a fundamental axiom: and among public men, under whatsoever degree of incapacity labouring in other respects, no man was ever yet found to any such degree weak and incapable, as not to be sufficiently sensible of the truth of it.
A man may receive his ten, twenty, thirty, any number of thousand pounds a-year, on pretence of his occupying a writing clerk’s place, and this without being any more able than he is willing to do the duties of that place—and yet be no less fully and adequately impressed with the truth of the above proposition, long-winded as it is, than Bacon was, and accordingly not only act, but get up and speak, according to his mode of speaking, in exact conformity and consequence: the orator, without parade or pedantic display of hardworded science, acting psychological dynamics all the while, and to no less perfection, nor, if told of it, less perhaps to his surprise, than Monsieur Jourdan, when upon being thereof informed by his preceptor, he found himself talking prose.
For effecting the solution in question by the application of the above axiom or rule, the simplest and most elegant of all modes which hath as yet been invented—perhaps it may be added, which the science itself admits of—is—that which you are enabled to put in practice, when the functions attached to the situation being, by a mass composed of the matter of wealth or other objects of desire (instruments or efficient cause of pleasure of any sort at command, according to each man’s taste,) worked up into a compound of an agreeable flavour, the continuance of the person in question in the situation which enables him to feed upon it, has been made dependent on your will. So long as he continues in the situation, with such his allowance in his hand, he will continue to feed upon it in his heart—if not with thanksgiving for having been put into the situation—at any rate, what is most to the purpose, with fear of being put out of it, in the event of his comporting himself otherwise than as expected.
Suppose, for example, the situation of a juryman thus at the same time dulcified, and (saving dismissal) fixed: the power of dismissal, howsoever disguised (and the more effectually disguised the better,) being at the same time in your hands: upon the very face of this statement it is evident, that (barring the accident of opposite and preponderant force as above mentioned) the verdict of the jury, so far as depends upon that juryman, is altogether at your command.*
In this mode of solution, a necessary step, we see, is the placing the person in question in a situation in which he is exposed to the action of the efficient cause of influence: viz. the matter, the ever pliant and ductile matter, which, in your plastic hands, becomes the matter of reward or the matter of punishment, according as he behaves himself. But, to the situation, as above described, permanence is necessary: and this—partly because without a certain degree of permanence, the situation would not possess sufficient value, nor consequently the fear of losing it act on his mind in the character of an efficient cause of influence with a sufficient degree of force: partly because the correspondent disposition—viz. a disposition duly prepared to yield to the influence—the obsequiousness, in a word—may not always be capable of being produced in an instant, as in the case of casting or stamping, but may now and then require some length of time for the production of it, as in the case of modelling or sculpture.
Here then we see the difference between the ancient and the modern contrivance for nullifying checks, and producing acceptable verdicts. In the ancient mode, it was necessary that, in the instance of each juryman, the disposition to obsequiousness should be ready formed. On the other hand, wherever this condition could be, and was fulfilled, the business was the work but of an instant, nor was any application of influence necessary to the accomplishment of it: in the modern mode it is not necessary, that the disposition to obsequiousness should, in the first instance, be already, as in the ancient mode, completely formed: nor even that, at that period, it should, in any degree, have existence; but what is necessary is, on the part of the situation in question, a considerable degree of permanence: understand always eventual and defeasible permanence.
The two modes stand thus distinguished by the two different principles, on which their efficiency respectively depend:—the ancient mode, by the principle of choice—of selection—or, to call it by its established and proper name, the principle of package—simple package—package toties quoties, and without need of permanence:—the modern mode, by the principle of permanence:—thence package, once for all, and with the benefit of permanence.
In the last preceding chapter, mention was made of the principle of mutation, or continual change of persons, as one of the expedients employed in the original constitution of juries, for enabling them to act with effect in the character in which they were destined to act, viz. that of a check upon the power of the judge; and, in that view, for securing them against any sinister influence by which the efficiency of the check, so to be applied, might come to be impaired. The principle there mentioned, under the name of the principle of permanence, consists exactly, we see, in the absence or removal of that tutelary and fundamental principle.
The principle of permanence being thus palpably opposite to one of the essential and acknowldged principles of jury trial, to have established it directly and avowedly would have been plainly impracticable. For each court, for instance, a determinate number of jurymen, consisting of the number (twelve) necessary to compose a jury, with or without a few supernumeraries, added for provision against accidents—to each juryman his situation, whether by salary or fees, rendered a desirable one—he, at the same time, pronounced removeable—avowedly removeable—at the pleasure of the judge or some other dependent of the crown;—on any such plan, even in the most uninformed and incurious age, the continuing to the institution the name of jury would scarcely have sufficed to reconcile men to an arrangement so palpably perverse—thus destructive of its manifest and manifestly intended nature.
When a determination to subvert, as far as it might be found practicable and convenient, this part of the constitution, had been taken, whatsoever were the contrivance employed, it was seen to be altogether necessary there should be some disguise or other put upon it. The business was neither to be attempted openly, nor all at once.
Four distinguishable conditions were seen to be necessary:—1. Power of nomination virtually in the hands of the judge; 2. Emolument, sufficient in magnitude, and thence in ordinary duration, to render the situation an agreeable one, and thence the loss of it an object of apprehension; 3. Power of amotion, viz. of removing a man from that situation, also virtually in the hands of the judge; 4. In each case, the design so enveloped, as not to be seen through. All these points were accordingly accomplished.
One point more required to be attended to. To have attempted to apply any such plan of deceit to all cases, and all at once, would have been incompatible with the success of it:—for, the effect being produced in every instance, the efficient principles would have burst through the disguise.
Applied to all cases in which it was likely that the judge, or any of the servants of the crown, his confederates, would have any special interest, it would be sufficient to their purpose. To the object thus limited, the plan was accordingly confined: and thus far it has been accordingly found to be but too practicable to carry the design into effect, and without prejudice to the disguise.
Of all these several desiderata, the accomplishment will now be brought to view, as having been effected in and by the constitution of the sort of body termed a special jury: but, for the purpose of this exhibition, a separate chapter will be requisite.
Compared with that mode, in which the principle employed is no other than that of simple package, nobody, it is supposed, can be at a loss to see how prodigious the advantage is which is gained by calling in the principle of permanence. In the way of simple package, extempore package, everything requires to be done afresh each time: each time you have to hunt out for your men: and whereabouts are you, if so it be that at the moment none that will suit you are to be found?
Apply the principle of permanence, there they are—your men—always at hand: and the longer you have had them where they are, the surer of them, on each occasion, you may be.
Juries, packed in the old mode, are like wood-pigeons, for which the woods must be hunted ere they be in a state of requisition for the cook; or like those wild horses which a Spanish Creole has to scamper after in the plains ere he is in readiness to take his ride. Juries packed in what will be seen to be the new mode, packed with the advantage of the principle of permanence, are like pigeons taken out of a dove-house, or like those well-broken geldings which an Englishman keeps in his stable.
In juries, in a word, permanence is exactly what it is in armies: it is the work of the same policy in both cases. It was, when as yet there were no standing armies, that the coarse and precarious operation of extempore package, packing without the aid of permanence, was employed in the case of juries. As our armies acquired their stability, so did our juries: and now that, under the pressure of national necessity, our armies, strengthened by that principle, have swelled to so unexampled a magnitude; now it is, as will be seen, that without any such necessity, without any other more cogent cause than convenience, numbers in juries not being susceptible of increase, this part of the establishment has received its improvement, and that to the degree of perfection that will be seen in the shape of permanence: say permanence, but never without remembering the increased facilities it affords for package.
Convenience, and nothing more. But what more was needful? For it was the convenience, as we shall see, of great characters, in those high situations, in which, in the convenience of the individual, there is apt to be more of cogency than in the necessity of nations.
At the outset, packing having been practised, when as yet there was in juries no such thing as permanence, the principle of package came unavoidably to be spoken of antecedently, and thus far in contradistinction to the principle of permanence. But now, at this stage of the inquiry, it will be sufficiently apparent (it is hoped) that of these two principles one is included in the other: and that, by the principle of permanence as applied to juries, is to be understood permanence and package together: package with the benefit of permanence, and permanence for the purpose of package.
Deception—Modes of applying it—Instruments for the application of it.
Corruption being the instrument principally employed on the occasion which gave rise to this little treatise, deception, an instrument not more in use on this occasion than on any other; and the part here played by it no more than a subordinate one—a very slight mention of it will be sufficient here. Not that the mention of it will even here be altogether out of place, corruption having among its effects that of disposing a man not only to deceive others, but, moreover in the first place, and for the better quieting of his own conscience, to deceive himself.
On the present occasion, so far as deception is concerned, the problem stands thus:—In cases where, if the conception entertained of the case by the jury were adequate, viz. complete and correct, their will, as declared by their verdict, would be more or less apt to run counter to the will of the judge, so to order matters, as that, by means of some want of completeness or correctness, viz. on the part of the conception entertained by them of that case, it may happen to their will to coincide with that of the judge.
There are two ways, in either of which an effect thus desirable may be brought about:
One is, by causing them to have a will, and that will exactly the same with that of the judge.
The other is, by causing them not to have a will, viz. of their own forming: of which state of mind the necessary consequence will be their adopting, without more ado, whatsoever will may come to be presented to them for that purpose by the judge.
Of these two modes, this latter mode is by far the most advantageous one. To the success of the former, the creative or special, it is necessary that fresh labour should be bestowed upon the subject on the occasion of every cause: by the other, the preventive or general mode, the business is done once for all; and, without any fresh expense in the article of labour, a perpetually renewed harvest of success is reaped on the occasion of each individual cause: in the one case, the business is carried on in the retail, in the other, in the wholesale line.
In the case of corruption, the will of the party corrupted—here the jury—being formed by the will of the party by whom or for whose benefit the matter of corruption is applied; the state of the intellectual faculty is immaterial, nor is any sort of debility in it necessary to the production of the effect here supposed to be desired.
But where, in a question of fact or law, a will of his own is to be formed by a man, who having no natural interest at all in the business, has no interest at all in it, unless by means of corruption he has a factitious one, he cannot have a will, other than one to the formation of which the use of the understanding is necessary: and thus it is, that, if so it be that his own understanding is not, with relation to the matter in hand, in a state fit for use, that is, capable of being applied to use, he is not only content but glad to borrow one of the judge, whose care it is that, under the cover of an act of the understanding, a will of his own, more or less nicely folded up, shall be inclosed.
By the understanding of a person placed in the situation of judge, an influence will, of course, be exercised over the understanding of every person standing in any such situation as that of juryman: and this influence being on all occasions applicable to all purposes good and bad, is thereby applicable to all bad ones.
On this occasion, the part which is open for deception to act is the giving to this influence a degree of strength beyond what properly belongs to it—such a degree of strength as will enable it, upon occasion, on the spur of sinister interest or passion, to act with advantage in a direction opposite to that of the dictates of justice.
In another work (Scotch Reform, Letter I.) it has already been shown how completely opposite the interest of all judges, commonly called by that name, as well as of all other men of law, has, throughout their whole field of action, all along been, and still continues to be, to the duty of judges, which is as much as to say to the interest of the people, in respect of the ends of justice: not only this fact, but the cause of it, viz. an ill-chosen mode of remuneration, has in that same work been already brought to view. Of this opposition the cause and influence having as yet in a very small, if in any degree been understood, the whole course of action of these functionaries has consequently been a course of deception: of deception practised throughout that whole course of action, on all sorts of occasions, and upon all sorts of persons: upon individuals at large, in their character of suitors: upon jurors, in particular, in their character of jurors.
Of the two modes of deception, special and general, the general has already been shown to be in every respect by far the most convenient with reference to the present purpose. The general consists in forcing the people with whom you have to do, to borrow your understanding, and under the cover of it, your will, by preventing them from having any understanding fit for use, and thence from having any will applicable to the purpose.
On this occasion the system of deception divides itself into two branches—the first consists in rendering the subject—whatever it be, law, religion, anything—in the present instance law, as incomprehensible, or (what is the perfection of incomprehensibility) as uncognoscible as possible to all whom you have to deal with, and that to their own conviction and satisfaction.
The other consists in doing whatsoever the nature of the case admits of, towards raising in their minds, to as high a pitch as possible, the estimate formed by them respectively of the correctness and completeness of the knowledge possessed by yourself in relation to the same subject.
To the first end contribute, jargon, nonsense, absurdity, surplusage, needless complication, falsehood—every kind of intellectual nuisance, in every imaginable form: and this the higher in degree and greater in quantity the better, without any other restriction than what may be imposed by whatever caution may be necessary to enable you to avoid counteracting the other object last above mentioned.
Of these two branches of the art of deception, the first-mentioned may be termed the depressive or humiliative; the other the self-exaltative.
The instruments applying or applicable to the purpose of deception, as above distinguished, may be the more readily comprehended by being distinguished into two classes. Those of the one may be termed the incorporeal instruments of deception: and though, upon a principle of division and nomenclature already attached to the subject, a complete enumeration of them would perhaps be scarce practicable, a tolerably sufficient sample of them has just been given; viz. in the words jargon, nonsense, absurdity, and so forth.
For the designation of the instruments of the other class of these instruments, the term corporeal will of course present itself to the mind of every man who has read Blackstone.
Under the class of corporeal instruments may be comprehended, besides the posts or other uprights by which the level of the bench is elevated above that of the jury-box, the peculiar habiliments by which the profession and the office together stand distinguished: outward and visible signs of the inward and invisible graces and virtues, intellectual and moral, that dwell within. These last, in consideration of the incalculable influence which they are found to exert on the understanding of jurors and others, through the medium of the imagination, may be moreover termed instruments of fascination: and as, among heathen statuaries, the circumstance of a man’s having officiated with his own hands in the character of his own god-maker was not found to diminish his devotion towards such his god, so if, among the inhabitants of the same jury-box, it should happen to the makers of the several instruments of fascination, viz. the furrier, the tailor, and the peruke-maker, to find themselves assembled and met together, there seems no reason to suppose that, upon the minds of these several manufacturers, the influence of the several articles, in the character of instruments of fascination, would be less efficient than upon those of the other “good men and true,” their colleagues.
Of these corporeal instruments the importance is the greater, inasmuch as but for them, and the fascination produced by them, it seems not altogether easy to conceive how the first branch of the art should have been compatible with the second, and how the stock of jargon, nonsense, absurdity, and so forth, how abundant soever, should have been conducive to, or even compatible with, the design of raising, in the minds of the persons concerned, the idea of the stock of real knowledge possessed by those exalted characters by whom these incorporeal instruments of deception have ever been so liberally employed.
Both sorts of instruments, incorporeal as well as corporeal, may moreover, if not in a strictly legal sense, as savouring rather of the personalty than the realty, yet at any rate, to a common intent, be styled and entitled hereditaments.
In relation to the corporeal hereditaments, the instruments of fascination, two things ought, notwithstanding, to be observed: one is, that the fascination performed is performed by the intrinsic and independent virtue of the instruments themselves, and that to the bearer, nothing being on his part performed, or necessary to be performed, towards and in relation to the effect, no part of the effect ought to be ascribed or imputed: the other is, that were it not for the evil company they are connected with, viz. that of the incorporeal instruments above mentioned, and the evil purposes to which the whole company are so unhappily apt to be applied, the influence of these corporeal instruments, notwithstanding the name of fascination so incontestibly belonging to it, might well be salutary and beneficial upon the whole. It is only by the abuse, in so far as abuse is made of them, that they operate in the character of instruments of deception—the character in which they belong to the present purpose: and if these corporeal were separated from the incorporeal instruments and hereditaments above mentioned, viz. the jargon, nonsense, and so forth, the abuse of the corporeal ones would be separated from the use.
Of these several instruments of influence, to whatsoever purpose applied, that of deception or any other, the efficiency in that character will (it may be said) naturally be the same—nearly if not exactly the same, whether, in the constitution of the jury in question, the principle of permanence be or be not employed.
This may be admitted. One means of influence, however, there remains, coming under the head of influence of understanding on understanding, which is applicable with peculiar advantage to the purpose of deception, and which requires, as a necessary condition to its application, the application of the principle of permanence.
When the judge and the jurymen become acquainted with each others’ persons, being in a state of habitual intercourse, a sort of connexion, though it be but in the way of sympathy, grows up between them: a friendship which, though it be of that kind which has been called a friendship of inequality, a friendship betwixt the superior and the inferior, betwixt wisdom and simplicity, is not, to this purpose at least, the less powerful and effective. A look of complacency, indicative of old acquaintance and mutual good understanding, descending, if ever the dignity of the judge finds itself reduced to descend to such benignity, from the heights of the bench upon the leading man in the jury-box, the bellwether is gained—the flock follow of course. A sort of compact forms itself, under and in virtue of which the man of learning engages to afford direction, the child of simplicity to follow it: this compact once formed, the presumption, which on any particular occasion should presume to think and act for itself, would be an act not only of temerity, but of revolt and perfidy.
[* ]Attaint was, indeed, terrific enough, involving the utter ruin of all those whose lot it was to suffer under it: but to the sinister purpose here in question it was manitestly unsuitable; for it could not be inflicted on the refractory twelve, without the concurrence of double the number of other jurors, and those rendered by their rank still more highly proof against sinister influence, in every one of its three shapes.
[† ]In the state trials we have a precedent of a judge, a lord chief-justice of the King’s Bench, who, to help to satisfy the conscience of a juror, treated him with a good shaking-bout. The time was soon after the restoration, anno 1664: the chief justice, a Hyde, a relation and protegé of Lord Clarendon’s: the defendant, a libeller, an anabaptist: the libel purely of the heretical class, a class of libels of which happily much has not been heard of late years, at least under that name. It was, however, “seditious and venomous” enough: and the sedition and venom of it consisted in maintaining, contrary to the Liturgy, that the proper age for Christians to be baptized at, was the age the apostles baptized them at—with other abominations of the like stamp.
[* ]Corollary. In the same manner, and with the same mixt-mathematical certainty, the required degree of obsequiousness may be generated, in the bosoms of persons in any number, in whatsoever other situations placed, and by whatsoever other names denominated: ex. gr. commons, lords; members of a conservative, legislative, or any other sort of senate.