Front Page Titles (by Subject) Section 7.: Mischief 3— Bewildering and enslaving the Consciences of Jurymen. - The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
Return to Title Page for The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
Section 7.: Mischief 3— Bewildering and enslaving the Consciences of Jurymen. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Mischief 3—Bewildering and enslaving the Consciences of Jurymen.
Under the head of punishment, in the case of a witness, but principally in the case of a party, who by the admission or extraction of his testimony is in that respect considered and treated on the footing of a witness, it has been seen in what way, by an artful use made of the ceremony of an oath, means were found for producing or repressing mendacity at pleasure.
Thus far, and in these instances, the purpose admitted at least, if it did not absolutely require, that the ceremony should be regarded as binding—should be the object of real and efficient, as well as universal, awe and reverence.
In the instance of another and infinitely narrower class of persons, the like purpose required that it should—this selfsame ceremony should—be considered and treated on the footing of an empty form:—that it should stand divested of all influence.
This was the class of jurymen:—the assemblage of twelve unlearned individuals, in whose name, in certain cases, what in English-bred law is done in the way of judicature, is entered as done.
So to order matters, that to one and the same individual, with no other difference than that of the individual occasion, and the station occupied by him on that occasion, one and the same ceremony should be an object of awe and of contempt, might, upon the naked mention of it, seem a problem too difficult for human ingenuity so much as to attempt the solution of. The solution of it will be seen, however, to have been not only attempted but accomplished: always remembered, that in whatever case any real and practical effect has been produced, produced—in appearance by the ceremony,—in that case shame or punishment, or both, may be seen at the back of it: and, on the other hand, that where its influence will be seen to amount to nothing, so it is, that, in this case, the ceremony has found no such extraneous force to give support to it.
The problem all along was to this effect—so to order matters that mendacity should be unrestrictedly practised or punished,—according as the unrestrained practice or the punishment of it should be most subservient to the private interest of the judge and his fellow-labourers; and, to this end, that, in relation to this vital part of morality, in such confusion should men’s conceptions on this subject be kept involved, as to take for the standard of right and wrong, the practice of the judge, as determined by the sinister interest of the judge:—and that accordingly, whensoever mendacity were punished by him it should be considered as immoral,—whenever left by him unpunished, indifferent,—whenever encouraged or compelled by him, either indifferent or meritorious.
To render the confusion the thicker and more irremediable, a conception—and persuasion—that was to be rendered universally prevalent, was,—that the practice of immorality in this shape was, throughout the whole course of judicial procedure, necessary to the purposes of justice: in pursuance of which principle, matters have accordingly been so ordered, that in the instance of that class of judicial officers, (viz. jurymen, whose part in the administration of justice is the object of the warmest share of popular favour and attachment,) mendacity should have been rendered an unavoidably incident accompaniment of everything that was done under the sacred name of justice.
At a period, which seems even to have preceded the use made of the ceremony in the character of a security for veracity in the mouth of a witness or a party,—at this early period, a barbarian theology had led the rulers of nations to place their trust in this same ceremony, in the instance of public functionaries in general, in the character of a security for official probity at large: and in particular, in the case of functionaries of the judicial order, including as well those of the professionally learned and permanent class, as those their unlearned, their occasional, and ever-changing assessors.
In the cases as yet mentioned, the expedient, by which the power of licensing falsehood was acquired, consisted in keeping out of the reach of the ceremony, the statements to which it was desired that the licence should extend itself. If over the ceremony itself the power of the man of law could find means to extend itself, insomuch that, at his pleasure, it should be considered as binding or not binding, the punishment of the religious, as well as that of the moral, sanction being, at his pleasure, felt, or not felt, as attaching in case of violation,—he would, to the extent of such power, possess himself of a species of empire, not inferior to any which even the priest had been able to create for himself.
Fortunately for this enterprise, in the very operation by which alone this branch of authority was exercised, unthinking barbarism had suffered to be involved a cluster of declarations* which, they being in every case that with respect to the propriety of the decision left any difference of opinion, necessarily untrue,—necessitated, in an equal degree of frequency, the profanation of the ceremony.
Of the only course, by which profanation would be avoidable, torture, terminating in death, having, under cover of the same barbaric darkness, been rendered the inevitable result,—and reliance upon a man’s own opinion,—upon the suffrage of his own conscience,—being thus rendered morally impossible;—what, in the situation of juryman, could a simple man do, to save himself from the wrath to come? Conscience, which in such cases catches at every straw, found for the burthen a proffered support in the stronger and well disciplined conscience of the judge.—With this burthen, whatever it was, the learned conscience, as often as suited with convenience, was found ready, as of course, to charge itself:—and thus it was, that, by rendering the sacred ceremony an object of universal and necessary contempt, the man of law acquired, over the decision of juries, a sort and degree of mastery, such as, under any mode of suffrage that would have admitted of an escape from perjury, would never have been attainable.
So many oaths, so many nets, in which conscience was perpetually liable to be entangled: but, on so easy a condition as that of a man’s pronouncing a short word or two, and thinking nothing about the matter, a learned conscience was always at hand to cut the cords.
The violation of the ceremony, and of the obligation supposed or pretended to have been created by it, having thus been rendered habitual and universal, its impotence in the character of a check upon the judge,—its unfitness for anything but a cloak to him,—followed of course.
The ceremony being considered as the only security against mendacity, and a licence for the practice of that vice being considered as being effectually, though indirectly, included in every arrangement by which the application of the ceremony was forborne; the habitual profanation of the ceremony having, at the same time, been rendered indispensably necessary to the exercise of the powers of judicature,—in a word, to what was called the administration of justice—no particular instance of the like profanation could, on any consistent ground of reason, find, in the breasts of the violators, any sentiment of repugnance.
But the looser the obligation sat upon them, the more ready, at the call of the living oracle, under any the slightest impulse of sinister interest, in whatever shape,—power, reputation,† or even momentary ease,—would each man be to shake it off.
On condition of earning it by these means, a virtual power of pardon has accordingly, in cases to no inconsiderable extent, been in effect imparted to juries:—and lest, in the shape of power alone, the encouragement, held out to misdecision in this shape, should not be of itself sufficient, reputation, in the shape of the praise of humanity, has been occasionally added.‡
Plowing in confusion and perplexity, to prepare the soil for the planting of obsequiousness,—such is the husbandry, which with so brilliant a success has been practised in the field of religion;—such is the husbandry, which with no less indisputable, though less observed success, has been practised in the field of law and judicature.
[* ]Cluster of declarations,] consisting of the several virtual declarations made by the several jurymen in and by their respective consents given to the verdict.
[† ]Hence it is, that, in matters of libel for example, where, there not being any real law, there cannot be any real transgression, and where, there not being any real transgression, conviction never has had, nor, till real law shall have created delinquency, and defined transgression, ever can have, any sufficient warrant,—to so happy a state of ductility has the conscience of the jurybox been moulded, that, unless by some rare and never-to-be-looked-for casualty, prosecution and conviction—would (were it not for the intervening costs, by which trial is rendered an additional punishment) be in effect and virtue undistinguishable.
[‡ ]Example:—Encouragement given to juries to counteract the declared intention of the legislature, and dispense with the capital part of the appointed punishment, by attributing upon their oaths, to any number of guineas stolen, a value under that of two guineas. In the case of goods, this under-valuation is continual: and, even in case of guineas—a case which admits of no possibility of unintentionality in the misstatement—examples of this mode of valuation have not been wanting.