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CHAPTER I.: HUMBLE PROPOSAL FOR RESTORING THE CONSTITUTION IN REGARD TO JURIES. - 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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HUMBLE PROPOSAL FOR RESTORING THE CONSTITUTION IN REGARD TO JURIES.
Introduction—Necessity of a Change in the System.
In the course of this inquiry, two dangerous diseases have necessarily and continually been brought to view:—1. A rottenness in one of the most important organs of the body politic, viz. jury-trial; 2. A sort of weakness about the head, having for its symptoms, on the part of judges and other subordinate members of government, a confirmed, habitual, and scarcely disguised contempt, as towards the authority of the legislature.
The existence of the disease having, in both instances, been brought to view, next comes the more immediately beneficial task, but for which that unpleasant one would never have been undertaken, viz. the indication of the proper remedy.
In this chapter will be proposed, what presents itself as proper to be done, in regard to juries.
That within the sheriffwick of the sheriffs of London and Middlesex, the institution of special juries, composed as at present, ought to be abolished—is supposed to have already been sufficiently demonstrated. If so, the consequence is—that within this district some different system will require to be set on foot. But, forasmuch as the establishing in one particular district, though it be the district of the metropolis, a system different from what is in use in the greater part of the kingdom, might, by infusing additional complication into a system of judicature already so overloaded with complication, be productive of preponderate inconvenience; hence we are led to the consideration of some plan which, being grounded on principles universally applicable, may itself be susceptible of an application equally universal, without preponderant inconvenience.
The remedy here ventured to be proposed is styled without scruple a restorative: a plan for the restoring, for the purpose of jury-trial, the original composition of juries. Not that the plan is such in exact tenor and detail: for, if it were, it could not be such in principle and effect.*
All political institutions would be exposed to deterioration, were it even by the mere change of circumstances: and if, where the change of circumstances is become material and extensive, the original constitution is left unchanged in detail, the consequence is—that, howsoever in words and outward show it may be the same, it is become in substance and effect, in a proportionable degree, different. Nor yet would I have it thought, that in my vocabulary old is synonymous to good, or better, as in some vocabularies we have seen it, synonymous to not so good or bad. Be the state of things ever so good, to render them still better is, in my view of the matter, a good operation, not a bad one: the contrary opinion I leave to those in whose eyes the praise of letting off an old epigram is better worth than the consciousness of having rendered, or the endeavour to render, a public service.
Accordingly, in the endeavour to bring about a restoration of the jury system in principle, I have not in detail neglected the opportunity of endeavouring to put it, for the future, into a state as much superior as possible to any state it ever was in before.
As to the existing special jury system, my real quarrel with it is—not that it is a different one from the original jury system, but that, in comparison with it, it is a bad one.
Interests to be provided for—Objects to be aimed at.
For remedy to the disorders in question, before we enter upon the task of suggesting particular arrangements, it may be of use to have before us a distinct intimation of the several interests requiring to be provided for, and, for the purpose of such provision, of the several objects or ends requisite to be kept in view and aimed at—viz. in the framing of a plan for the composition of jurors, the selection of the jurors, and the compensation, if any, to be made to them for their labour, loss of time, and expense.
The interests concerned are, in the first place, those of the suitors or parties on both sides of the cause; in the next place, those of the jurors themselves.
It is for the sake of the interests of the parties in each cause,—or rather of such party or parties as are in the right, viz. in so far as he or they are in the right,—that it becomes an object with the legislator, to make such provision as the nature of the case admits of, for securing, on the part of jurors, such degree of relative aptitude, in all points, intellectual as well as moral, as shall render the general tenor of their decisions as conformable as possible to the ends of justice.
Follows a brief intimation of these objects, ranged under three general heads:—
I. Objects referable to the head of probity or moral aptitude.
1. Preserving jurors as effectually as possible from exposure to the action of such sinister influence as is liable to be exercised by, or to emane from persons in power; and more particularly by or from the presiding and directing judge or judges, as above.
2. Preserving them, as above, from such sinister influence, in the shape of intimidation, corruption, or partiality, as is liable to be exercised by, or to emane from individuals or classes of men, in the character whether of parties or of persons having in any other way an interest in the event of each respective cause.
II. Objects referable to the head of intellectual aptitude.
3. In a judicatory so composed, providing, upon occasion, a degree of extra-aptitude, in respect of intellectual qualifications; viz. in consideration of, and in proportion to, any degree of extra-difficulty attached to this or that particular cause.
4.—or in consideration of, and in proportion to, any degree of extra-importance.
III. Objects having respect to the interests of the jurors themselves.
5. Reducing to its minimum the quantity of vexation and expense attached to judicial service in this line.
6. Providing compensation for such portion of vexation and expense as cannot be avoided without preponderant inconvenience: viz. without preponderant prejudice to the main object above mentioned.
Arrangements proposed:—1. In Common Jury Causes, mix Gentlemen with Yeomen.
Here follows a slight sketch of the arrangements that present themselves, as promising to be conducive to the attainment of the above objects: in case of conflict, regard being had all along to their respective degrees of importance, absolute and comparative:—
1. The distinction between common and special jurymen to be still preserved. The object aimed at by this arrangement is—provision for intellectual aptitude.
2. In ordinary or common jury cases—i. e. in those cases in which at present the jurors are all of them of the class of common jurymen (say, for distinction, yeomen jurymen)—let some one or two of the class of special jurymen (say, for distinction, gentlemen jurymen) be regularly inserted into each jury.—Object, intellectual aptitude—viz. under the expectation, that, for the benefit of justice, the influence of understanding upon understanding will exercise itself, of course, upon the less-informed class, by the instrumentality of the better-informed.
3. Number of gentlemen jurors, not more than one or two. The interest provided for by this restriction is that of jurors.—Object, avoidance of unnecessary vexation and expense: viz. of vexation and expense, by reason of attendance; viz. on the part of an overproportion of jurors of this class.
4. The district in which the gentlemen jurors are taken, let it be a district as remote as on other accounts will be consistent with convenience, from the district in which the yeomen jurymen are taken.—Object, providing for moral aptitude on the part of yeomen jurors, viz. by preserving them from being subjected to sinister influence—viz. to influence of will over will—whether in the shape of intimidation, or in the shape of corruption—emanating from gentlemen jurors. At the hands of the gentlemen juros—of the men of superior education—the salutary species of influence—viz. the influence of understanding over understanding—of opinion on opinion—is looked for and desired. The use of the distance proposed, is—to serve as a bar to the exercise of will over will. To men of the yeomen class—to shopkeepers, handicrafts, &c. living in the same neighbourhood with the gentleman, it might frequently happen to view in his supposed disposition towards them a source of hope or fear. By distance, this source of corruption would be cut off.*
Arrangements continued—2. Special Juries, half-and-half.
Power to any party, on either side, to cause to be substituted to the common jury composed as above, a half-and-half jury;†viz. a jury—not composed of all gentlemen, as in the case of the special jury constituted as at present—but containing any number of gentlemen not exceeding half: viz. out of twelve, six.
The interest thus endeavoured to be served is, of course, that of the suitors: the objects endeavoured to be secured, are, in the first place, by the enlargement of the number of the gentlemen jurors, intellectual aptitude: viz. by adding to the chance of finding a juryman qualified in an extra degree for taking the lead, and guiding the decision: in the next place, by the restriction put upon the number of the jurymen of that class, moral aptitude: viz. by preventing the preponderance of partiality as between rank and rank.
Of the sort of mixture here proposed, the importance is such as seems to claim a particular degree of development. In every species of judicatory without exception, but in a more pre-eminent degree in every judicatory of which a jury forms a part, of all imaginable causes of misdecision, what is commonly understood by the term partiality is that which the legislator finds greatest difficulty in coping with. Wheresoever the nature of the influence—the sinister influence—supposes two parties—one acting, the other acted on—his task is comparatively an easy one. All that in that case he has to do, is—to keep them from coming together: and, with a moderate degree of probity, exertion, and intelligence, how easy that is, may have been seen already.
But the case of partiality supposes not any such parties: it supposes not any tempter from without. The tempter dwells within—within the very bosom of this occasional judge; and, being there, in vain would legislators dislodge him: he bids defiance to their utmost efforts.
Religion or politics—it, by the nature of the case, any such cause of dissension happens to be called forth—called forth in such manner as to excite, in the bosoms of any of the jurors, sentiments—whether of sympathy or antipathy—in relation to the parties on each or either side—against this source of partial affection—of corrupt affection (as, even though there be no corruptor, it may be styled)—against this source of misdecision, all that in the station of the legislator can be done by human wisdom is here without avail: in this shape, corruption may have established in a man’s bosom ever so complete an empire—there it must reign, and reign uncontrouled: you can never punish it, for you can never prove it.
Among jurymen, a possible, and not unnatural, source of partiality, on either or both sides of a cause, and thence of dissension, is that of which difference of rank and station in life is the instrument.
With partiality and dissension in this shape, the proposed half-and-half jury, as well as any other jury, stands exposed to be infected: and indeed, by the nature of its constitution and composition, may appear, and not altogether without reason, to be exposed to that accident in a particular degree. But while it contains in itself the seeds of the disease, it furnishes at the same time a remedy;—a remedy—such an one as cannot in any other mode be supplied.
Take, for example, a case, such as, in the country at least, where there is no guinea-corps, is frequently exemplified—a special jury, with a deficiency in it made up by yeomen: by common jurymen, in the character of talesmen. Suppose, as between a gentleman and a yeoman, a cause so circumstanced as to awake, in the bosoms of these different parts of the population of the jury-box—to awaken, and to excite, to a degree of excitation fatal to justice, the passions and partialities congenial to their respective stations. In this case, let there be seven gentlemen to five yeomen the gentleman carries it. But—suppose six and six, as under the proposed constitution will constantly be the case—in this case, partiality may reign without opposition in eleven bosoms, so as one of the twelve, even though it be but one, be the seat of cool and impartial justice: he who has right on his side, be he gentleman or yeoman, gains the cause.
Of the proposed provision, by which the number of gentlemen jurymen even on a special jury is limited to half the whole number, viz. to six out of the twelve, the expected use is as follows:—In ordinary cases, for the purpose of guidance, by means of intellectual aptitude, one or at most two, was, as above, (§ 3) regarded as sufficient. For this same purpose, the additional chance, afforded by the substitution of six to two or one, may, it is supposed, be regarded as amply sufficient, even in any the most extraordinary cases.
As to the case of a contention between opposite classical partialities, a case of this sort, it is hoped and supposed, will, comparatively speaking, be a rare one. But, that it should now and then find itself exemplified, is no more than what ought to be expected, and provided against accordingly.
Here, then, comes in an occasion, for applying to this case that beautiful feature of jury-trial, which, by the use thus proposed to be made of it, can scarcely fail to have been already presented to the reader’s notice: that no less politic than generous arrangement, contrived by the genius of some now forgotten statesman, for the protection of foreigners against those adverse interests and antipathies, which are so unhappily apt to have place in the bosoms of natives.
A mind in which virtue in both her forms moral and intellectual, shines thus bright can hardly have been that of a lawyer. In matters of foreign politics—of political economy—in every branch of knowledge not immediately conducive to the advancement of their own personal or professional interests, the breasts of lawyers, especially in the “highest situations,” are, even in these comparatively enlightened times, among the most noted tabernacles of ignorance: of ignorance and of that error which, when accompanied with the degree of presumption so natural to such situations, is so much worse and more mischievous than simple ignorance.
When, for the benefit of foreigners, the half-and-half jury was introduced, it was not confined to the cases called civil cases: nor among cases called criminal, to those of inferior importance: it covered the whole field of jury-trial.
As to special-jury trial, slid in by lawyers for the advancement of their own interests, and accordingly as it were by stealth, introduced by them, as we have seen, in pursuit of those two grand sinister objects, increase of power and profit to themselves, they neither dared nor cared to give it any such all-comprehensive range.
But, if needful for causes of property, and in the case of offences comparatively trivial, how much more needful must it not be in causes which, to the individuals at least whose station is on the defendant’s side, are of the very highest importance—causes of life and death?
A principle which, in expectation of the superiority of intelligence expected from superiority of rank, gives up the reins without controul, to every prejudice and every partiality, with which it can happen to that intellectual superiority to be accompanied, is rotten at the core.
Argument against and for a half-and-half jury as a substitute to the existing special jury.—Dialogue between a Gentleman and a Yeoman.
Gentleman.—We are in possession of having a jury of our own sort at pleasure: that possession we claim to have preserved to us.
Yeoman.—More shame for you. On no principle, either of natural justice, or of the English constitution, can you defend this so recently usurped advantage.
As to us, so moderate is our claim, that, with that equality of numbers, which is all we ask for, the advantage, in any contest between you and us, would still be most decidedly on your side.
On your side is the superiority of intellectual force in all its shapes:—knowledge, address, habit of taking the lead.
On your side is the whole force of that influence which exerts itself on the understanding. On your side is every element of what is called respectability: education, opulence, power, rank, connexion. On no other occasion does this your superiority ever find you backward in the assertion of it: asserting it on every other occasion, and to every other purpose—on this occasion alone, to this purpose alone, you will not surely take upon you to deny it.
On your side is the whole force of that still more irresistible influence, which by will is exerted over will. To your class, our’s looks up—looks up with hope—for employment, custom, protection, everything: your’s to our’s, for nothing. From your class, our’s has everything to fear; your’s from our’s, nothing. Without any the slightest ground, or so much as a pretence, a man of your class has but to bring an action against one of our’s—or if an action be not oppressive enough, to file a bill against him—his ruin follows of course. This is what we are indebted for, both of us, to your good friends, the lawyers. I say yours: for your’s they are as against us; and your’s they would be, if they were any body’s.
But, to come to the point at once. Can you seriously think, and seriously take upon you to say, that, in case of difference, six of us can, in general, have as good a chance of persuading six of you, as six of you of persuading six of us?
What we not merely consent to, but propose and desire, is—that in ordinary cases—in all cases but those in which this proposed equality of numbers happens to be insisted on, there should be some two or one at least of you, for our guidance:—so far is this claim on our part from having for its principle any sentiment of hostility towards you—any sentiment inconsistent with cordiality, respect, and deference. As to confidence, unbounded confidence, it is more than human nature can ever, in the instance of any individual, much more in any large class of individuals, lay claim to, with any colour of reason or justice: and with political liberty, in any shape or degree whatsoever, it is utterly incompatible.
Arrangements continued—3. Compensation-money to Jurymen.
1. In the allowance to jurymen, distinguish two parts: one for demurrage, viz. at the place of trial; the other for journeys, viz. thither and back: demurrage-money the same to all: journey-money proportioned to the distance between the place of trial, and each juryman’s place of residence, and rated at so much a mile.
2. To save calculation, and prevent disputes, after taking, in each parish, a particular spot—say the site of the parish church—for the mark, let the distances of the several parisbes from the place of trial be previously ascertained, once for all, and, in the form of a table, written or printed, kept hung up in the court; and also in the office, in which payment is made to the jurymen.
3. For demurrage, let the allowance to each juryman be so much a-day for the whole time of his necessary stay: and without regard to the number of causes in which it may have happened to him to serve: the amount being pre-appointed, viz. by a general regulation, having for its object the fixing it at whatever sum is regarded as being at that time and place necessary and sufficient for the maintenance of a juryman of the yeomen class: which fixation may consequently, in respect of the change in the value of money, require amendment from time to time.*
4. Let the allowance be neither more nor less to gentlemen than to yeomen jurymen.
For, if to the gentleman the expense of attendance will naturally be greater than to the yeoman, it is because in general the gentleman, in respect of his superior opulence, is better able to afford it.
True it is, that the rank of the gentleman is not exempt from indigence: understand, casual and relative indigence. But neither is that of the yeoman: and surely it is in the worst-provided class that the degree of indigence, and consequent suffering, is capable of being most acute.*
Arrangements continued—4. Fund, on which the Compensation-money shall be charged.
1. As well in ordinary or common jury causes, (viz. where, by the supposition, no more than one or two gentlemen are upon the jury,) as in extraordinary or special-jury causes, where (also by the supposition) as many gentlemen as yeomen are upon the jury, let the expense of the above proposed compensation-money (say jury-money) be borne—not by the suitor on either side, but by the public at large:—viz. by being added to the county-rates:—unless, for this particular purpose alone, it were worth while to look out for a mode of assessment more equable.
The interest here provided for is that of the suitors: viz. on that side of the cause on which, whether in the right or the wrong, this part of the costs of suit would otherwise be imposed.†
2. In a special-jury cause, i. e. where, at the requisition of a party on either side, a half-and-half jury has been ordered, to prevent a disproportionate quantity of vexation in this shape from falling on the gentlemen’s class, let an extra sum of money, at the rate of so much a-head for the extra number of jurors allowed (viz. four or five) be charged in the way of costs, on the party by whom the requisition was made: payable, however—not to the gentlemen jurymen, but to the county or other public fund, on which, as above, the ordinary expense of jury-money is proposed to be charged.
Interest provided for—that of jurymen: viz. gentlemen jurymen;—object aimed at—prevention of vexation—viz. of vexation which, in the shape of jury-service, might otherwise fall in an undue proportion on that class.
3. Immediately after the trial, upon the bringing in of the verdict, let the judge, instead of leaving the expense of the extra jury-money to lie, as above, upon the party by whom the half-and-half jury was required, have power either to impose it on any other party, or simply to take it off: in which latter case, the contribution destined, as above, for the public fund, will for this time not be received.
4. In the event of his exercising, in either way, the above proposed power, it ought to be under the notion, and naturally will be, that the cause is of the number of those which, on some special ground or other, will warrant the imposing on the gentlemen’s class this addition to the quantity of vexation imposed upon them in this shape. This special ground will, as above, be either—1. Extra difficulty, 2. Extra importance, or 3. Demand for equality of numbers on the score of apprehended partialities—say more briefly, apprehended partialities. In the terms of his order, let the judge specify on which of these several grounds it has been founded.
5. For a further check upon the practice of making wanton demands on the time of the gentlemen’s class, lest the simple charge of the extra jury-money (which at the present established rate will amount to no more than either four or five guineas) should not be sufficient, let the judge have moreover power to increase it at his discretion, up to a limited amount: suppose, for example, treble the amount of the simple charge.
6. The form of the judge’s order may, in any of the above cases, be extremely simple:—as for example—1. “This cause being by me deemed proper for the cognizance of a special jury, viz. on the score of” [then proceed to say extra difficulty, extra importance, or apprehended partialities, any one or any two, or all three, as the case may be] “let no extra jury-money be paid—or let extra jury-money be paid—not by—being the party by whom the requisition of the special jury was made, but by—” [mentioning some other party or parties.] 2. “The requisition made of a special jury in this cause by—” [here mention the name of the party, and his station in the cause] “being by me deemed groundless and wantonly made, instead of—being the simple amount of the extra jury-money, payable to and in exoneration of the county fund, let the sum paid by him be—” [here mention the sum.]
7. Let fines for non-attendance be paid to and in exoneration of the fund on which the expense of jury-money is imposed.
For further explanation and justification of the above proposed arrangements, a few more words may perhaps not be ill bestowed.
As in the case of the yeomen’s class, so in the case of the gentlemen’s class, justice requires that, as in any other shape, so in the shape in question, a disproportionate quantity of vexation shall not be imposed: thence the ground for the preventive measures above proposed.
But, rather than any extra pecuniary allowance, in the name of compensation-money, should be given to individuals of the gentlemen’s class, in contradistinction to, and at the expense of, those of the yeomen’s class, better the money were thrown into the sea. By any such extra allowance, a pernicious principle—a principle of sordid and oppressive partiality—would be perpetuated: and public service in this shape would, instead of being a burthen indeed, but an honourable and useful, nor that a heavy burthen—imposed on all alike, would as at present be an object of rapacity and intrigue, sought for and obtained by such as are least deserving of it.
If, upon this plan, vexation, in the shape in question, should, in a proportion a little greater (and it could be but a little greater,) fall on the gentlemen’s class than on the yeomen’s, the overplus would, it is supposed, find for its justification the following grounds, none of which could have any application in the opposite case:—
1. In the character of suitors, to the lot of the gentlemen’s class fall, in by far the larger proportion, as well causes that are attended with extra difficulty, as those which are attended with extra importance.
2. When, on the only remaining ground, viz. the ground of apprehended partialities, a special jury is allowed (i. e. a jury containing an extra proportion of gentlemen,) it is principally, if not solely, for the protection of the interests of this class, in case of any conflict which it may have with the interests, passions, or prejudices of the other. Receiving this extra benefit, they ought not to grudge a small portion of extra burthen.
3. Between the gentlemen’s class and the yeomen’s, the characteristic difference is—that, of the gentleman’s time, a portion may be applied to this public purpose—to the purpose of judicature, without imposing upon him a loss of a pecuniary nature: whereas, in the case of the yeoman, a tax upon his time is, besides the tax upon his time, a tax upon his purse.
4. Service in this line being a source of useful information, and, like a scholastic exercise, a source of intellectual power, whether it be or be not pleasant to the particular individual, it is for the advantage of the public at large that each man should have his share of it: and if this be true, even in the instance of the yeomen’s class, whose share in other branches of government is comparatively so small, it must be so in a more eminent degree in the instance of the gentlemen’s class, whose share in other branches of government is comparatively so large.
By service, in the department of justice in the character of juryman, a man is, in some measure, trained and fitted for service in the field of government at large, in the character of parliamentary elector.
5. It may be of use that it should be distinctly seen on what ground stands the demand for an extra number of gentlemen jurymen on the score of extra difficulty or extra importance—in a word, on any other ground than that of apprehended partialities to the prejudice of that same class. For the purpose of guidance, if by no other than the only useful and proper sort of influence, viz. influence of understanding over understanding, one man of superior intellectual aptitude is as sufficient as any greater number could be: to this purpose, therefore, the only advantage gained by any addition to the number of gentlemen in the jury, is the additional chance it affords of obtaining the requisite degree of aptitude in this shape, in the person of some one.
In regard to the fines for non-attendance, the present system being inefficient, and almost completely nugatory, to give effect to them, and reconcile at the same time to each other the antagonizing ends of justice, would require some new arrangements, which, if intentions were but honest, might easily enough be carried into effect. On this head, a few general hints are as much as room can be found for in this place:—
1. The interest that individuals at large have in the general fund—say the county fund—not affording to any one of them a motive adequate to the purpose of engaging him to watch over its interest in this behalf with effect, a special interest must be given to some one person—for example, the person by whom the monies of this fund are received: a special interest, viz. in the form of a per centage upon the amount.
2. Into the pocket of this one person, the money ought to be made to find its way as it were of course: viz. without need of a lawsuit to be instituted by him, much less by any one else, for that purpose.
3. On non-appearance of any person summoned to appear for the purpose of jury service, let the money be, by a certain day thereafter, levied on him of course: unless at the day, appointed for appearance, in lieu of the person himself, there appear, under his signature, a paper exhibiting some one or more of a list of legitimate excuses, to be allowed and mentioned as such in the form of the summons: the facts of such excuses to be established by an affidavit, with or without co-attestators, as the case may be, according to printed forms, pre-appointed for the purpose, free of stamp-duty, and every other avoidable expense.
Were the arrangements left to him, a member of the firm of Judge and Co. would settle them on this occasion as he does on others. From this burthen as from others, application made for relief in the case where, by accident, as above, the burthen has been rendered undue, would be more burthensome than the burthen itself: of an application thus made, the burthen would be certain, success precarious. Defaulters without excuse would remain unpunished: defaulters with good excuse—defaulters from necessity—would be oppressed. To each useful purpose the system would be inefficient: suffering to particular individuals, with pickings to Judge and Co. out of the same, would be the only fruit of it.
At the same time the whole business would be conducted with the most unimpeachable regularity. Precedent would have been pursued in everything that was done: and thus, as usual, all complaining mouths would be shut: unlearned mouths shut, learned shoulders saved harmless—saved from every particle of burthen, as in all other shapes, so in the shape of blame.
Arrangements continued—5. Formation of the Qualified List—viz. in other counties, &c. as well as Middlesex.
The basis of the jury system being the qualified list, the plan here brought to view might appear chargeable with oversight or negligence, if a topic so material were altogether passed by in silence. But the relevant facts being in so high a degree diversified, and for the most part so inextricably buried in obscurity, the nature of the case precludes every such attempt as that of proposing, in relation to this part of the subject, particularly in such a place as the present, anything like a detailed, determinate, and in a geographical sense all-comprehensive, system of arrangements.
By change, be it what it may—by innovation, on this as on every other part of the field of law—inconvenience, in some shape or other, in some degree or other, is sure to be produced. Unless, therefore, and until, inconvenience in some specific shape can be pointed out as resulting, or about to result, from the arrangements actually in use, this general consideration, loose as it is, will, in each division of the country, as well as at every period of time, operate, as a sufficient bar against any change that can be proposed. But no sooner is any such specific inconvenience pointed out, than the bar is provisionally removed: and then comes the operation of making a comparative estimate of the amount of inconvenience on both sides, in such sort, that when placed by the mind in two opposite scales as in a balance, a just conclusion may be formed, determining on which side the preponderance has place.
But, in different territorial divisions, counties and privileged boroughs taken together, circumstances are, in this respect, so extremely different, that, independently of those changes, which, in some or all of them, are liable to be brought about by time, it can scarcely happen but that, if the same course be, in all of them, pursued without variation, inconvenience, and to no inconsiderable amount, would, upon inquiry, be found, in some instances, to have place.
Hence it is that, upon a general view of the subject, and antecedently to such particular inquiry as no power other than that of parliament is competent to make with effect, a general inquiry, of the nature above intimated, cannot with propriety be considered as superfluous.
For any such inquiry, the present, however, is not the proper place. The alarming political grievance, the utter destruction impending over the palladium of the English constitution, the liberty of the press—this was the consideration, but for which the present inquiry would never have been engaged in. Of this mischief the county of Middlesex has, by the causes already spoken of, been rendered almost the sole theatre. To the exclusion of these mischiefs, so far as depends upon the composition of the qualified list, an assemblage formed upon the principles upon which the composition of that list has hitherto been grounded, may, for anything that hath as yet presented itself to my view, be sufficient: I mean, of course, with the help of such ulterior arrangements as may be conformable to the principles herein already brought to view.
On what persons ought the obligation of serving on juries to be imposed? Answer—On every human being, but for some apt and special cause, either of exclusion or exemption. It is therefore by the indication of such causes, with the reasons on which their aptitude in that character respectively depends, that the proper abstract answer to that question will, in its several ramifications, be furnished. So far as concerns exclusion, these causes would be found to bear a considerable analogy to the causes of exclusion applicable to the function of parliamentary elector. In some instances, a cause that applies to the one function would be found exactly applicable to the other;—while in other instances, such coincidence will be seen not to have place. But in the instance of every circumstance that, in the character of a cause of exclusion, can be proposed with reference to either function, whether it be deemed applicable to both functions or to one only, and whichsoever be that one, considerable light would be seen to be thrown on the subject by the comparison thus proposed.
Thus much may be said of both cases: viz. that, consideration had of the great change in the value of money, as well as in other influencing circumstances in abundance, if the existing arrangements were proper at the times at which they were respectively made, it is impossible that, taken altogether, they should be equally so at present.
At the same time, from the mere existence of that comparative degree of impropriety, it follows not, that the advantages capable of being gained by the removal of the impropriety, would be an over-balance for the inconvenience that ought to be apprehended from a change.
A state of things by no means incapable of being realized, and which ought therefore to be kept in view, is—that the arrangements, having been in a less degree proper at the time when they were made, have by change of circumstances been rendered more proper than at first:—that, for example, the pecuniary part of the qualification, having originally been set at too high a rate, has, by the depreciation of money, been rendered more proper in the present less immature state of society, than it was in the more immature state of things which gave birth to it.
For any attempt to penetrate any further into the subject, it would be time enough if, for any practical purpose, the observations herein already submitted to the public should be found to have a claim to notice. Taking the county of Middlesex, in the first place, for the local field, it would then be time enough to extend the inquiry to the formation of the several original qualified lists for the several species of juries, relation being likewise had to the several species of judicatories in which they have to serve.
It would then also be time enough to extend and apply the whole of the inquiry to the several other counties, and judicial districts included in counties.
Should any such inquiry come to be instituted, the facts, collected and brought to light in relation to the county of Middlesex by the public spirit, the activity, and intelligence of Sir Richard Phillips (see his above-mentioned work throughout) will be found highly serviceable: for out of them may be formed a basis for inquiry, applicable to the several other cases just alluded to. As to all these matters, for the present at least, I can therefore do neither more nor better than to refer the reader to that eminently valuable and meritorious publication.*
Arrangements continued—6. Corruption by Individuals how prevented—No Party should foreknow his Jurymen.
As well in special-jury causes, viz. with a half-and-half jury, as in common-jury causes, with one or two gentlemen jurymen, let matters be so ordered, that, to the parties on each side, it shall, to the latest moment, be imposible to know who the persons are that will serve as jurymen in the cause.
The interest thus provided for is that of the suitors, viz. in each cause that of him who is in the right: the object aimed at is—on the part of jurymen, moral aptitude: viz. in respect of exemption from such corruptive influence—such influence of will over will—as it may lie in the way of individuals in the character of suitors, to exercise on the decision of those their occasional judges.
On this occasion, before we come to speak of the means conducive to this end, observation will require to be taken of a sort of conflict which has place between interest and interest, and thence between object and object: between the interest of suitors (viz. such as are on the right side as above,) and the interest of jurymen. If that of jurymen were the interest that possessed the sole or the predominant claim to regard, rotation and that alone would be the principle employed: for, as will be seen, in so far as that principle is departed from, in so far, on the part of jurymen, vexation—the aggregate mass of vexation, produced by the obligation of serving in that character, must, viz. in respect of the number of them subjected to it, be increased.
But in that case, of the jurors who will have to serve in a given cause, if no supernumeraries are summoned, the whole number, or if, to make allowance for accidents, supernumeraries are summoned (but in no greater number than is necessary to make sufficient allowance for such accidents,) a large proportion of that number might come to be foreknown to the suitors in that same cause. Here, then, is a door open to corruption—to corruption in that shape—or at least in one of those shapes—in which the existence of it—the notorious and declared existence of it—gave birth to the first of the whole string of those statutes relative to juries, in which any mention is made of special juries.
If the principle of rotation be taken for the basis, two other principles ought therefore to be mixed with it: mixed with it, in the character of correctives and preservatives: correctives, viz. to the tendency of that principle, when employed crude and single; preservatives, viz. against the danger of such sinister influence. The one is—the principle of disconnexion as above explained; disconnexion as between gentlemen jurymen and yeomen jurymen, by means of local distance. The other is—the principle of chance: viz. as applied to the determination of the individuals that shall serve together on the occasion of each several cause.
But, when applied on the occasion in question to the purpose in question, the principle of chance requires an increase of number—of the number of persons subjected to this vexation: it requires, for the purpose of each several cause, the attendance of a number greater than the number of those who will have to serve on the occasion of that same cause: for, if twelve (the number of those that serve on each cause) were all that, under and in virtue of the summonses delivered to them by the sheriff, were capable of serving in that cause, the consequence is, that of each man, in so far as it were certain that he would attend, it would be certain that he would serve: and in this certainty there would be no room for chance. True it is, that of his attendance, even in that case, there could be no absolute certainty: for, besides the accidents, such as death and sickness, to which all mankind are subject, and over which the will of man has no controul, if, relation being made to the state of the law on one hand, and the state of his own affairs and inclinations on the other, it were to this or that man more agreeable to stay away in despite of the law, than attend in obedience to the law, he would do—as jurymen, or at least as gentlemen jurymen, are at present suffered to do by gentlemen judges—he would stay away accordingly. But, though, to any good purpose, certainty would not in that case be attainable, yet to a bad purpose, viz. to the purpose of corruption, in the way in question, a probability but too little short of certainty would be attainable: for the corrupter, foreknowing—knowing as soon as the list of the persons summoned, or about to be summoned, for service in the cause in question, were known to him—the corrupter, knowing of twelve persons, in the power of every one of whom it would be, bating accidents, to serve, would at the same time know of so many persons, of the attendance of any one or more of whom he would, in the event of his succeeding in his plan of corruption in their instance, be sufficiently assured.
In the case of common juries, the statute so often spoken of (3 Geo. II. c. 25) has, in § 8, with or without intending it, afforded for this salutary application of the principle of chance a sufficient basis: 72 being the greatest number, 48 the least number, which (regard being apparently had to the difference between county and county in respect to local extent) it allows to be summoned to appear on each occasion—for example, at each assize—for the trial of whatever number of causes may happen to be ready for trial at that assize. But not only of this least allowed number, 48, but of a considerably less number, it is evident, that, with the help of the principle of chance, it might be made use of in such manner as to render corruption—previous intercourse, and thence corruption—on the part of individuals, practically speaking, impossible. For the first cause that comes on for trial, immediately before the trial, let the names of all such as are present be put into a dark box, shaken together, and so drawn out. If of these twelve it were determined, that after this first cause they required respite (though for the judge who has the guidance of them there is no respite,) these might on the second cause be all of them set aside, and for that second cause the lottery be confined to the remainder: and, the first twelve being after their respite replaced in the lottery, so on through any number of causes.
But if, in the instance of any one cause it be in the power of any one person of himself to determine, or by any other means to know of, a set of persons, in the power of each or even any one of whom it shall be in the character of juryman to serve, in the power of that one person it is, whether by neglect or by design, to introduce an intended corrupter to so many persons in whose power it will be, if corrupted, to secure to him the verdict he desires: and, the greater the number of the persons to whom it happens to be in possession of this knowledge, the greater the number of such possible introductors, and by that means the greater the probability that such corruption will take place.
Let, for instance, the rule be such, that it it is by a certain person—for example, the sheriff (that is to say, the attorney by whom, in the character of under-sheriff, the business is done)—that it is by this person that the list of the persons, who are to be summoned to serve as jurors on the occasion in question—for example on the assize in question—is to be determined;—that at the assize in question, the number of these is to be 48;—and that in the first cause that stands on the roll, the 12 first of those that appear are to serve. In this state of things, it is evident, that if to this attorney it should happen to find his convenience, either in corrupting the requisite number of jurymen himself, (which might be attended with some danger) or in letting in another corrupter upon them (which might be done without any danger,) the regular practice will find itself altogether well adapted to the purpose.
In this state of things, thus for illustration sake supposed, we see, in aid of the practice of corruption, two auxiliary principles—viz. choice and foreknowledge, confederated. But even without the aid of choice, foreknowledge may very well be sufficient for the purpose. Suppose it settled, that in the gross or total qualified list, the names shall be entered in the order of the alphabet: moreover, supposing the whole number in a given county 480, and 48 the number to serve on each assize;—that for the first assize, the 48 whose names stand first in the alphabetical list thus composed shall be summoned to attend; for the next assize, the next 48; and so on. On this plan, if pursued without deviation, it will not be in the power of the sheriff (that is, of the attorney his deputy) to choose a set of eventual jurymen for the purpose of their being corrupted; but, what is worse, it will be in the power of every litigant to whom the order of things in question is known, to find his way to those on whom he proposes to himself to make the experiment—to find his way to them of himself, and without the need of being beholden for introduction to an undersheriff or anybody else.
Thus much as to juries in general—thus much as to common juries: thus much as to what, in that case, is capable of having place. As to what in that case actually has place, it is what it might take up too much room to state, and what at this moment the means of inquiring into are not within my reach.
As to the case of special juries, what actually has place lies in a narrower compass, and at the same time within reach. In this case, everything that, for the furtherance of corruption, by possibility could have been done, has been done: whether it be constant corruption, administered, and with certainty of success, by and for the benefit of persons in “high situations” as such, and without either risk or trouble on their part, as above—or occasional and casual corruption, to be on this or that occasion administered, in his private and separate account, by this or that particular person, in or out of high situation, to whom it may happen to stand in need of such assistance. In the first place, choice (as we have so often had occasion to observe) is put into their hands; viz. by the power of “nomination” vested in the hands of the master packer for that purpose. In the next place, among the comparatively small number 24, in the instance of which the choice is made, and attendance accordingly commanded, “foreknowledge” is rendered, to the purpose in question, “absolute:” for out of these 24, who, as per list, are summoned, of those that appear, the 12 whose names stand first upon that same list, are the 12 that serve.
For the furtherance of corruption, the utmost that could have been done, having thus been actually done, to what cause, to what psychological cause, having its seat in the breasts of learned and reverend lords and gentlemen, shall the result be ascribed? To design? It would be of a piece with all their other designs, and all their other doings. To imbecility? On the part of no other set of men would imbecility be to be found, weak and palpable enough to match with it. For note once more, that it was amid the cry of corruption—actually experienced and acknowledged corruption, that this state of things, so exquisitely adapted to the purpose of that same corruption, was in and by this very statute (3 Geo. II. c. 25) part confirmed, part organized.
Unanimity increases the Aid afforded to Corruption by Foreknowledge.
By the principle of forced unanimity, so long as that abomination is suffered to continue, an enormous degree of facility, as already observed, is given to the corruption of jurors: since by any one of the twelve, so that one be but sufficiently remunerated for the quantity of endurance necessary, the suffrages of the remaining eleven may be forced. And though, in any given instance, as matters stand, it should not be capable of being foreknown to a certainty that this or that one individual will on the particular trial in question be upon the serving list—foreknown, viz. time enough for administering to him the matter of corruption with effect, yet by gaining divers individuals, each of them likely to stand upon the serving list, the probability of success may in any degree be increased.
Were that flagitious principle rooted out, and the principle which gives the power to a majority seated in its place—were this done, even a slight admixture of chance (if it be too much to say the rational and honest principle of itself, and without the help of chance) would suffice to render corruption in this shape morally impossible. If no number less than a majority, viz. less than seven out of twelve, were sufficient to command a verdict palpably unjust upon the face of it, no such verdict could be commanded without a completely successful application of the matter of corruption to that large number. But, taking the state of morality among the people upon the worst footing imaginable, the chance of finding, or creating on the sudden, so much depravity on the part of so large a number, and that out of a limited greater number, cannot but be extremely small: and, ere he could give himself that small chance, the corrupter would be under the necessity of putting it into the power of each of the seven to ruin him, in character at least, by covering him with infamy. Such would be his difficulty, even supposing the twelve who are to serve on the trial—supposing them, all of them, in their turn, at and during the quantity of time that lies open to the intrigue—all of them during all that time to a certainty foreknown. And suppose such absolute foreknowledge unattainable—suppose, for example, four-and-twenty, the number of the gross list, of any of whom the twelve upon the serving list may happen to be composed, it is easy to see that, to this our supposed corrupter, the improbability of success, and at the same time the magnitude of the danger, must, in this case, receive a prodigious increase: for, in this case, to give him the same assurance of success as in the former case, no smaller than nineteen is the number that would be necessary to be thus corrupted.
But upon the principle of sham unanimity—upon this principle, which gives the command of the verdict to any one—not only, if all twelve were foreknown, might the corrupter, by the corruption of a single juryman, give himself a certainty of success, but if no other knowledge were obtained, more determinate than that of the four-and-twenty out of which the twelve would be taken, the same success, in the preparatory operation of corruption, would still give him an even chance of succeeding in the ultimate object of the corruption, viz. the commanding of an unjust verdict: and, by every additional juryman whom he could contrive to gain, this even chance would receive a proportionable augmentation, until by the rising of the number of the corrupted to thirteen, absolute certainty would even in this case be produced.
Thus stands the matter upon the supposition of a gross list equal in number to twice the serving list: augment the relative number of the gross list, the difficulty of corruption will, it is evident, be in both cases increased: and in each case by an amount that might be ascertained, but is not worth ascertaining for the present purpose.
One thing will be evident, viz. that, on the principle which gives the command of the verdict to a majority out of twelve, under the most favourable circumstances in respect of the number of the gross list, corruption could never obtain a chance nearly equal to what, on the principle which gives the command of the verdict to any one corrupted juryman, it possesses under the circumstances least favourable in that respect. Seventy-two is the greatest number that can in any county be returned and appear for the trial of all the causes that can at one and the same assize present themselves:* and even under so great a disadvantage, if the power be in a single juryman, the corruption, though it were but of a single man of the seventy-two, gives the corrupter a chance of success, viz. as one to six. Whereas, if the power be in the majority, though the number resturned and appearing be no greater than the twelve who are necessary to serve, insomuch that all who are to serve are foreknown, the corrupter may have gained six, or at least five, without having as yet given himself any chance at all.*
Arrangements respecting Form: viz. the Form of the proposed New Law.
For giving expression to the operations, which, under this head, require, in my view of the matter, to be performed, a very few words will suffice. Presenting themselves as requisite in relation to this part of the field of law, the mention of these operations could not, on this occasion, be omitted. But, in relation to this part of the field, the demand for these operations cannot be more urgent, nor the propriety of them more indisputable, than they are in relation to every other part of the same as yet scarce cultivated waste.
1. Consolidate into one act all laws relative to juries.
2. Repeal in the lump the whole of the existing chaos.
3. Place the whole of the rule of action on the footing of statute law. Of the practice of the several judicatories, whatsoever is approved of, adopt and give expression to: whatsoever is not approved of, abrogate in the lump.
4. Except in virtue of such special powers, as shall, in the tenor of the law, be thought fit to be given for the purpose, forbid all alterations and regulations that might otherwise be made in or respecting the field of practice in question, in and by the authority of the respective judicatories.
[* ]Eightpence, for example, was the allowance given to a juryman, as long ago as in the reign of James I. (see Part I. Chap. IV. § 1,) and we know not for what length of time before. Give him eightpence at this time of day, the allowance, besides being in name the same, may be a more or less proper one, but in effect so far from being the same, it is a very widely different one. And so, as often as money is concerned, and on whatsoever occasion and for whatsoever purpose mentioned—take, for example, qualifications for parliamentary electors.
[* ]The line of distinction being, in present as well as in all past times, so extensively as well as decidedly drawn—drawn in name as well as in correspondent practice—no objection can surely be raised against it, on any such ground as that of a tendency to keep alive and foment invidious distinctions. In these our fortunate islands, the yeoman of to-day being the future contingent gentleman of to-morrow, no such heartburnings have place between them, as in those countries in which a vast and unvarying gulph has place betwixt the two classes.
[† ]Half-and-half.] De medictate status, is the learned denomination, but for my part I prefer this English one: and this although it be, or rather because it is, so vulgar an one. In every part of the field of law, the interest, and thence necessarily the endeavour of all lawyers, has been to render the rule of action not only as uncognascible but as unintelligible as possible. Of every friend to mankind, the endeavour, it scarce need be said, will be the reverse. As to the science of jurisprudence, and the art of legislation, for teaching and learning these accomplishments, the aid of this foreign and extinct language may here and there perhaps be necessary: and necessity, so far as it exists, may, but nothing short of necessity ever can, justify any such use of it.
[* ]Where the length either of journeys or of demurrage is anything considerable, paying a juryman by the cause, neither could then be, nor ever can be, anything better than a very unequal plan of payment. For since it would commonly, if not always, happen, that the same juryman would have to serve in divers causes, therefore when, in the instance of any such occasional judge, the number of causes in which he served happened to be above the calculation (viz. the calculated number, in the expectation of which the fixation of the sum in question took its rise) he might be to a considerable amount a gainer: when below that mark, to a considerable amount a loser. Here then was a sort of lottery: but in respect of the balance in point of comfort, all such lotteries are disadvantageous upon the whole.
[* ]If human reason had been in use to apply itself to the subject of judicial procedure in general, and to jury-trial, considered as a part of it in particular, the multitude of persons subjected to vexation in this shape would never have been, for all causes without distinction, fixed at so large a number as twelve. But this is among the subjects to which as yet human reason has not been in use to apply itself: among non-lawyers, scarce any person, in point of intellectual acquirements, competent, in any degree, to the task, having found and felt in his bosom a particular interest, strong enough to call forth the application of them to the subject: and as to lawyers, acting all along under the impulse of a professional interest opposite in almost every point to that of the public in general, the disposition to endure inconveniences in all shapes without remedy, not the disposition to be on the out-look for remedies, is the disposition which, on all causes, it has been their study to keep up, and inculcate.
[† ]From the aggregate number of lawsuits which receive their decision in the course of a given length of time, the aggregate body of nonlitigants, in proportion as those decisions are, or are supposed to be, conformable to justice, derive gratis that security, which the aggregate body of litigants in those same suits do not enjoy but at the charge of the aggregate mass of vexation and expense attached to those several suits. (See Protest against Law Taxes.)
[* ]On the subject of what is called unanimity, my opinions have, in this very work, been already too plainly and strongly expressed to need repetition here. But the mention here made of so important a topic having been but incidental, I have not included it in form in the list of the changes here proposed. The subject being as yet far from exhausted, to do complete justice would require, as by its importance it would well warrant, a separate publication.
[* ]Viz. by 3 Geo. II. c. 25, § 8.
[* ]Fifteen hundred pounds I have heard mentioned as being, in one instance that happened not very long ago, the sum at the expense of which a verdict was obtained. According to the report, it was a case of life and death: the cause being an indictment for murder, and the money given by the defendant. The fact was mentioned to me as one that had become in a considerable degree notorious; but, having no means of forming any opinion concerning the truth of it, I forbear mentioning any further particulars, lest, the story being false, suspicion should by this means come to attach itself to this or that individual, in whose instance it would be injurious.