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CHAPTER V.: JURY UNANIMITY INCREASES THE CORRUPTION. - 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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JURY UNANIMITY INCREASES THE CORRUPTION.
The effect of Corruption, how secured by it.
Of the efficacy of the system of corruption, of which the institution of a special jury is the instrument, our conception would be very inadequate, if the force given to that engine by the obligation of what, in the case of a jury, is called unanimity, were not taken into the account. But for this feature, for any purpose of corruption, a majority, or, at least, half of the twelve, all corrupted, would have been necessary: under and by virtue of this feature, one, any one, gained and properly armed—armed with the necessary degree of patience, suffices.
If the mode of forming verdicts had been the work of calm reflection, working by the light of experience, in a comparatively mature and enlightened age, some number, certain of affording a majority on one side, viz. an odd number, would, on this as on other occasions, have been provided; and to the decision of that preponderating number would of course have been given the effect of the conjunct decision of the whole: witness the course taken for securing a decision under the Grenville Act.
But the age in which the mode of forming verdicts was settled, being an age of remote antiquity, of such high antiquity, that nothing more is known of it, except that it was an age of gross and cruel barbarism, the course taken for the adjustment of that operation was different, and, compared with anything that was ever exhibited in any other nation, no less extraordinary than it was barbarous. The whole body of these assessors, twelve in number, being confined together in a certain situation, and in that situation subjected to a mode of treatment, under which, unless in time relieved from it, they would, at the end of a more or less protracted course of torture, be sure to perish: subjected to this torture, but in the case of this as of other torture, with power to relieve themselves from it: in the present instance by declaring, each of them, the fact of his entertaining a certain persuasion (the persuasion expressed by their common verdict,) whether really entertained by him or not: in this way it was that a joint decision, called a verdict, expressed by a predetermined word or form of words, was on each and every occasion extorted from the whole twelve. Such, for the declared purpose of securing truth, veracity, verè dicta—for making sure that, on the sort of occasion in question, whatever declarations of opinion came to be made should be true—such was the expedient invented in the 13th or 14th century—such the course which still in the nineteenth continues to be pursued.
Here, then, as often as in the number of twelve jurors, any difference of opinion has had place, so often has an act of wilful falsehood, of mendacity, had place: viz. in the instance of some number, from one to eleven, included in the twelve, if not (as in the case of sinister influence may at any time happen) in the instance of all twelve. For that it is in the nature or power of torture—one and the same torture—as being applied at the same time and place to twelve persons, A, B, C, D, and so forth, to produce a real change of opinion in any one of them—or if it were, to render it more likely, that the opinion of A should change into that of B, than that of B into that of A, and so forth—is a proposition which, upon reflection, will not, it is supposed, easily find any person either to sign or so much as seriously to say it: excepting always the case of his being placed under the action of any of those machines for the production of peace, concord, ununimity, or uniformity, under the pressure of which anything whatsoever—any one thing as well as any other, is either said or signed.
But though what never can happen is, that by a quantity of bodily pain or uneasiness, any real change should be produced in the opinion formed by any human being on a subject that has no natural connexion with that pain or uneasiness, yet what may very easily, and will naturally happen is, that either by the eventual assurance of any given quantity of pleasure, or, what comes to the same thing, by the assurance of having at command a given quantity of the instruments of pleasure in any shape—or by the eventual apprehension of any given quantity of pain or uneasiness—a disposition may, in a bosom soothed with that assurance, or galled by that apprehension, be produced—a disposition—yes, and moreover, an effective determination—to submit to that pain, for a greater length of time than any during which the same pain will be submitted to by a bosom not acted upon in either way as above.
From this state of things follow two practical results:—
1. Suppose no sinister influence (viz. of will over will) to have place, the verdict will always be conformable to the opinion declared by that one of the jurors, in whose bosom the prospect of the uneasiness to which, until the formation of the verdict, they will all be subjected, operates with least force—more shortly, by him whose sensibility to the torture is least acute—whose power of endurance is greatest.
2. Suppose any sinister influence to have place—an influence acting on the bosoms of any one or more of them in the same direction—while no sinister influence has place in the bosoms of any of the rest;—there are two cases, in each of which the efficiency of the sinister influence, and the delivery of a corresponding verdict, will take place of course:—viz. if on both sides the power of endurance (with reference to the torture) be equal; or if in the bosom operated on by the sinister influence in question (say the fear of losing the situation at the guinea board,) the force of the fear produced by the sinister influence be anything more than equal to the quantity by which what would otherwise be the power of endurance on that side falls short of the actual power of endurance on the other.
Corruptors, regular or casual—both served by Unanimity.
Two sorts of corruptors have above been indicated and distinguished: the regular corruptor, Judge and Co.: the casual corruptor, any individual, to whom it may occur to take advantage of the facilities, afforded by the institution of the guinea corps, for securing a verdict favourable to his cause.
In whatsoever shape, and from whatsoever quarter, the matter of corruption be proposed to be administered, for securing the effect of it, no other contrivance so effectual as this of unanimity—forced and mendacious unanimity—could possibly have been devised.
On so simple and easy a condition, as the being prepared to endure, longer than any of his fellows, a degree of bodily inconvenience which no persons so circumstanced were ever known to endure long, it gives to any one of these jurors, that chooses thus to purchase it, the power of all twelve.
Two different sorts of causes, each with its appropriate judicatory, may serve as examples of the assistance derivable by the two different species of corruptors from this one common source.
I. A political libel cause—sole judicatory the King’s Bench—is in a peculiar degree adapted to afford exercise, or rather does of course and of itself afford exercise, to the sure and safe and silent and imperceptible operation of the regular corruptor, or rather corps of corruptors, whose head-quarters are at the crown office belonging to that honourable court.
2. A smuggling cause,—ordinary, and among the courts of technical procedure in practice, almost sole judicatory, the Exchequer—is, under the invitation held out by the permanent establishment of the guinea corps, in a peculiar degree adapted to the finding exercise for the dexterity of the casual corruptor.
His solicitor (for, when the disposition to corrupt and be corrupted is banished from the Treasury Bench, it will be time enough for a smuggler to despair of meeting with it upon the roll of attorneys,) his solicitor (the same sort of gentleman who, a few years ago, would have answered to the name of attorney) pursuing the instructions given to him as above by Mr. Solicitor Edmunds (p. 119,) “attends” at one of the five packing offices above mentioned, addresses himself according to circumstances, either to the acting master packer himself, or to the clerk, who to this purpose officiates occasionally as the master packer’s deputy—and, according to instruction, as above, makes his “inquiries into the connexions, &c. of the jurors.”. . . . . .
Alas! what a round-about course is this I was about attempting to delineate! as if a solicitor in the smuggling line did not know his duty.
The duty of an advocate is to take fees, and in return for those fees to display to the utmost advantage whatsoever falsehoods the solicitor has put into his brief: the duty of the solicitor is to put into such his brief, whatsoever falsehoods promise to be so made use of to the best advantage. It is for this amongst other purposes, viz. for giving scope and effect to such falsehoods, that, by a law of the modern Medes and Persians, suitors stand for ever excluded from the presence of the judge.
In the great system of delinquency, the smugglers’ branch, as it has its principals, viz. the smugglers themselves who are called by that name, so has it amongst its accessaries—its licenced accessaries after the fact—the learned aiders, abettors, receivers, and comforters, of the aforesaid smugglers.
In virtue of that division of labour, which, by the fortuitous concourse of talents, disposition, and opportunities, has been produced in the court of Exchequer, besides advocates of the inferior order, there is always a title-gownsman or two, regularly established, as anybody may see, in the smuggling line.
Can it be otherwise among solicitors?
In the case of any or each such solicitor, let us then make that supposition, the contrary of which would be alike invidious and unnatural: let us suppose him to know, and knowing, to fulfil, in this behalf, his duty: his duty towards man: and, of his duty towards man, that more specially imperative branch, which is composed of his duty towards the smuggler.
In speaking of the master packer, and his lists, a list mentioned—as one that he ought to have, and having, to keep hung up, is (speaking of special jurors) the gross qualified list;—as a list which it is natural he should have, but not natural that he should keep hung up, another, under the name of the select and secret qualified list, or, to give it its other denomination, the guinea corps.
The solicitor in the smuggling line, can he be said to fulfil his duty as towards each or any of his clients, if he has not, either in his hureau or in his head, a list of the several members of this corps—as correct and complete as it is in the power of “inquiry” and industry to make it?
If in the whole flock of guines-men there be but a single scabby sheep to be found, that one individual sheep is his man:—under the unanimity system, that one individual secures the verdict.
As to the arguments by which he, whose duty it is to offer the bribe, satisfies the conscience of the habitually obsequious guinea-man of its being his duty to accept it, any attempt to display them in detail would be alike superfluous and irrelevant. Necessity of smuggling—impossibility of carrying on trade without it—informers, perjurers—never believe one of them—prosecution is persecution. . . . . .
“Is it for any such purpose as that of biassing a gentleman’s judgment, that the little compliment—the small retribution for his trouble—is ready to be presented?” “Good heavens! no!—it is only to engage his attention—his strict and unbiassed attention—of which his detection of the system of perjury, which it is known will be brought forward, will be the certain eonsequence.” . . .
But to what purpose go on incumbering the section any further with any the slightest hints? Our solicitor has heard with due attention the speeches delivered from learned silk: he has read debates in newspapers:—poorly qualified indeed must he be for the exercise of this part of his duty, if on the occasion of any such diplomacy he ever finds himself at a loss. Come the worst to the worst, he can but go up to the guinea-man, with his piece of paper in his hand, and in a tone of blunt frankness speak out and say—“Look here, Sir! look at this five hundred pound: this very note shall be yours, the very day a verdict of not guilty is pronounced.—Good Sir! you need not stare so: it is but corruption, make the worst of it: and it’s all for the good of trade. In short, Sir, without corruption, no government can be carried on—it’s a known fact, agreed to on both sides of the house—and if government can’t, I should be glad to know, Sir, how can trade?”
“Well, Sir, we won’t differ about names: if corruption is not to your taste, let us say influence:—and pray, Sir, where’s the difference?”
But, in one and the same cause, suppose the regular corruptor on one side, and the casual corruptor on the other:—in a case of this sort, how will the matter be settled?
Fret not thyself about any such case: it is a case that can never happen: nor, if it were to happen, would there be any difficulty in it.
In the libel line it can never happen: for, as every man that either writes or reads is by law a libeller, there is no such person as a solicitor specially established in the libel line. The regular corruptor—or rather the phantom of the regular corruptor—for (as we have seen) the phantom is quite sufficient—this regular phantom, having here no competitor, walks over the course.
In the smuggling line, it can almost as little happen. The solicitor for the smuggler is solicitous for the smuggler, because, and in so far as, in being solicitous for his client, he is solicitous for himself. Here, then, we have the casual corruptor. The solicitor for the crown is not solicitous for what is called the crown: his solicitude, if he has any, is more likely to be for the smuggler: because the more of them escape a first time, the more there are that remain to be prosecuted a second time; and whether the smuggler be caught or escape, the solicitor remains solicitor as before.
Here, then, provided the fee be handsome enough (for proportions, it will be seen, must not be forgotten)—here it is the casual corruptor that walks over the course: as to the regular corruptor, everywhere but a phantom, he is here a phantom by much too weak to oppose to flesh and blood any effectual resistance. In the Exchequer, he is but a pigmy: it is in the King’s Bench only, and there in the field of libel law only, that he is, as he will presently be seen to be, a giant.
But suppose, be it possible or no, a real competition: a solicitous casual corruptor on one side, a solicitous regular corruptor on the other: how (it may be asked) would matters be settled in this case?
In the guinea trade, as in any other trade, they would be settled upon the principles of trade. Compliment offered, so much down. Per contrà, on taking stock, situation in the guinea trade, gross value, so much: situation not being insurable, either at the Equitable or the Amicable, say loss of value, by peril of false brethren, and shipwreck, in case of non-obsequiousness, so much: balance, for or against accepting compliment, so much.
“But at this rate,” says somebody, “we should have bought acquittals, especially in smuggling causes, as plenty as sham pleas or sham bail—and of any such degree of frequency, or anything approaching to it, are any indications to be found?”
Have patience:—things must have time to ripen. It is only within these few years, and under the auspices of the present learned chief, that the system has been raised to that height in the scale of perfection, at which it will presently be seen to stand. Earth must have time to bring forth her increase: especially in such a field as that of judicature, where if, of those things which yield profit to the husbandman, the growth of every thing is sure, yet even of those things the growth of almost everything is slow.
True it is, that, after fighting off till judgment, the swindler, with another man’s money in his pocket, goes to eight of the twelve judges in the Exchequer chamber, or to four of them in the King’s Bench, as the case may be, and says to them (they appearing in the only mode of appearance which they admit of, viz. by this or that agent of theirs)—“The delay you have upon sale is cut out, I find, in pieces much of a length; let me have one of the longest: make out your account: I know you deal for nothing but ready money; here it is for you.” Here we see perfection—the very summit of the scale.
Expect not, however, that at the guinea office, even at that which is under the Exchequer, business of this sort should, at so early a period of the institution, be already to be transacted upon any such pleasant and easy terms, as with the old established firm, Judge and Co., the business of which has for so many hundred years been conducted upon the true principles of trade.
Expect not therefore to find already established, by the side of each delay-shop, a verdict shop, at which, addressing himself to a clerk of the guinea board, with as much frankness as if in an error-office it were a solicitor to a swindler addressing himself to the clerk of the errors, a solicitor in the smuggling line may say—“The king against such an one—I am for the defendant: secure me a verdict! penalty, so much: 5 per cent. upon that sum, so much; here it is for you.”
No:—to the prosperity of this branch of the trade, one limit there is, which is set by the very nature of the trade.
The regular corruptors are here the fair traders: casual, such as smugglers, are but interlopers: between the fair trader and the interloper there exists an everlasting jealousy. This being the case, suppose this branch of trade arrived even at its highest possible pitch of improvement—no one guinea-man could expect to sell any more verdicts than one. His comrade would peach of course: he would of course be let drop out of the list, and there would be an end of him. Therefore, unless the case be such that the price offered for the verdict is more than a place at the board is worth, the guinea-man is no less incorruptible than Cæsar’s wife was chaste.
Expect not everything at once. Arm yourself with patience. A few pages more, and—though you will not find the curtain that screens the verdict-office so completely drawn up, as that which once screened the delay-offices has now been for these eleven years—yet, should your patience serve you till Part II. chap. 3, a slight peep behind this curtain you shall have.