But in the English jury trial it has come to be assumed, after a long series of imperceptible and forgotten changes, that the opinion of the jurors, instead of being formed before the trial begins, should be formed in court. The process, therefore, by which that opinion is produced has been more and more completely controlled and developed, until it, and not the mere registration of the verdict, has become the essential feature of the trial.
The jury are now separated from their fellow-men during the whole case. They are introduced into a world of new emotional values. The ritual of the court, the voices and dress of judge and counsel, all suggest an environment in which the petty interests and impulses of ordinary life are unimportant when compared with the supreme worth of truth and justice. They are warned to empty their minds of all preconceived inferences and affections. The examination and cross-examination of the witnesses are carried on under rules of evidence which are the result of centuries of experience, and which give many a man as he sits on a jury his first lesson in the fallibility of the unobserved and uncontrolled inferences of the human brain. The 'said I's,' and 'thought I's,' and 'said he's,' which are the material of his ordinary reasoning, are here banished on the ground that they are 'not evidence,' and witnesses are compelled to give a simple account of their remembered sensations of sight and hearing.
The witnesses for the prosecution and the defence, if they are well-intentioned men, often find themselves giving, to their own surprise, perfectly consistent accounts of the events at issue. The barristers' tricks of advocacy are to some extent restrained by professional custom and by the authority of the judge, and they are careful to point out to the jury each other's fallacies. Newspapers do not reach the jury box, and in any case are prevented by the law as to contempt of court from commenting on a case which is under trial. The judge sums up, carefully describing the conditions of valid inference on questions of disputed fact, and warning the jury against those forms of irrational and unconscious inference to which experience has shown them to be most liable. They then retire, all carrying in their minds the same body of simplified and dissected evidence, and all having been urged with every circumstance of solemnity to form their conclusions by the same mental process. It constantly happens therefore that twelve men, selected by lot, will come to a unanimous verdict as to a question on which in the outside world they would have been hopelessly divided, and that that verdict, which may depend upon questions of fact so difficult as to leave the practised intellect of the judge undecided, will very generally be right. An English law court is indeed during a well-governed jury trial a laboratory in which psychological rules of valid reasoning are illustrated by experiment; and when, as threatens to occur in some American States and cities, it becomes impossible to enforce those rules, the jury system itself breaks down.[[73]]
At the same time, trial by jury is now used with a certain degree of economy, both because it is slow and expensive, and because men do not make good jurors if they are called upon too often. In order that popular consent may support criminal justice, and that the law may not be unfairly used to protect the interests or policy of a governing class or person, no man, in most civilised countries, may be sentenced to death or to a long period of imprisonment, except after the verdict of a jury. But the overwhelming majority of other judicial decisions are now taken by men selected not by lot, but, in theory at least, by special fitness for their task.
In the light of this development of the jury trial we may now examine the tentative changes which, since the Reform Act of 1867, have been introduced into the law of elections in the United Kingdom. Long before that date, it had been admitted that the State ought not to stretch the principle of individual liberty so far as to remain wholly indifferent as to the kind of motives which candidates might bring to bear upon electors. It was obvious that if candidates were allowed to practise open bribery the whole system of representation would break down at once. Laws, therefore, against bribery had been for several generations on the statute books, and all that was required in that respect was the serious attempt, made after the scandals at the general election of 1880, to render them effective. But without entering into definite bargains with individual voters, a rich candidate can by lavish expenditure on his electoral campaign, both make himself personally popular, and create an impression that his connection with the constituency is good for trade. The Corrupt Practices Act of 1883 therefore fixed a maximum of expenditure for each candidate at a parliamentary election. By the same Act of 1883, and by earlier and later Acts, applying both to parliamentary and municipal elections, intimidation of all kinds, including the threatening of penalties after death, is forbidden. No badges or flags or bands of music may be paid for by, or on behalf of, a candidate. In order that political opinion may not be influenced by thoughts of the simpler bodily pleasures, no election meeting may be held in a building where any form of food or drink is habitually sold, although that building may be only a Co-operative Hall with facilities for making tea in an ante-room.
The existing laws against Corrupt Practices represent, it is true, rather the growing purpose of the State to control the conditions under which electoral opinion is formed, than any large measure of success in carrying out that purpose. A rapidly increasing proportion of the expenditure at any English election is now incurred by bodies enrolled outside the constituency, and nominally engaged, not in winning the election for a particular candidate, but in propagating their own principles. Sometimes the candidate whom they support, and whom they try to commit as deeply as possible, would be greatly relieved if they withdrew. Generally their agents are an integral part of his fighting organisation, and often the whole of their expenditure at an election is covered by a special subscription made by him to the central fund. Every one sees that this system drives a coach and horse through those clauses in the Corrupt Practices Act which restrict election expenses and forbid the employment of paid canvassers, though no one as yet has put forward any plan for preventing it. But it is acknowledged that unless the whole principle is to be abandoned, new legislation must take place; and Lord Robert Cecil talks of the probable necessity for a 'stringent and far-reaching Corrupt Practices Act.'[[74]] If, however, an act is carried stringent enough to deal effectually with the existing development of electoral tactics, it will have to be drafted on lines involving new and hitherto unthought-of forms of interference with the liberty of political appeal.
A hundred years ago a contested election might last in any constituency for three or four weeks of excitement and horseplay, during which the voters were every day further removed from the state of mind in which serious thought on the probable results of their votes was possible. Now no election may last more than one day, and we may soon enact that all the polling for a general election shall take place on the same day. The sporting fever of the weeks during which a general election even now lasts, with the ladder-climbing figures outside the newspaper offices, the flash-lights at night, and the cheering or groaning crowds in the party clubs, are not only waste of energy but an actual hindrance to effective political reasoning.
A more difficult psychological problem arose in the discussion of the Ballot. Would a voter be more likely to form a thoughtful and public-spirited decision if, after it was formed, he voted publicly or secretly? Most of the followers of Bentham advocated secrecy. Since men acted in accordance with their ideas of pleasure and pain, and since landlords and employers were able, in spite of any laws against intimidation, to bring 'sinister' motives to bear upon voters whose votes were known, the advisability of secret voting seemed to follow as a corollary from utilitarianism. John Stuart Mill, however, whose whole philosophical life consisted of a slowly developing revolt of feeling against the utilitarian philosophy to which he gave nominal allegiance till the end, opposed the Ballot on grounds which really involved the abandonment of the whole utilitarian position. If ideas of pleasure and pain be taken as equivalent to those economic motives which can be summed up as the making or losing money, it is not true, said Mill, that even under a system of open voting such ideas are the main cause which induce the ordinary citizen to vote. 'Once in a thousand times, as in the case of peace or war, or of taking off taxes, the thought may cross him that he shall save a few pounds or shillings in his year's expenditure if the side he votes for wins.' He votes as a matter of fact in accordance with ideas of right or wrong. 'His motive, when it is an honourable one, is the desire to do right. We will not term it patriotism or moral principle, in order not to ascribe to the voter's frame of mind a solemnity that does not belong to it.' But ideas of right and wrong are strengthened and not weakened by the knowledge that we act under the eyes of our neighbours. 'Since then the real motive which induces a man to vote honestly is for the most part not an interested motive in any form, but a social one, the point to be decided is whether the social feelings connected with an act and the sense of social duty in performing it, can be expected to be as powerful when the act is done in secret, and he can neither be admired for disinterested, nor blamed for mean and selfish conduct. But this question is answered as soon as stated. When in every other act of a man's life which concerns his duty to others, publicity and criticism ordinarily improve his conduct, it cannot be that voting for a member of parliament is the single case in which he will act better for being sheltered against all comment.'[[75]]
Almost the whole civilised world has now adopted the secret Ballot; so that it would seem that Mill was wrong, and that he was wrong in spite of the fact that, as against the consistent utilitarians, his description of average human motive was right. But Mill, though he soon ceased to be in the original sense of the word a utilitarian, always remained an intellectualist, and he made in the case of the Ballot the old mistake of giving too intellectual and logical an account of political impulses. It is true that men do not act politically upon a mere stock-exchange calculation of material advantages and disadvantages. They generally form vague ideas of right and wrong in accordance with vague trains of inference as to the good or evil results of political action. If an election were like a jury trial, such inferences might be formed by a process which would leave a sense of fundamental conviction in the mind of the thinker, and might be expressed under conditions of religious and civic solemnity to which publicity would lend an added weight, as it does in those 'acts of a man's life which concern his duty to others,' to which Mill refers—the paying of a debt of honour, for instance, or the equitable treatment of one's relatives. But under existing electoral conditions, trains of thought, formed as they often are by the half-conscious suggestion of newspapers or leaflets, are weak as compared with the things of sense. Apart from direct intimidation the voice of the canvasser, the excitement of one's friends, the look of triumph on the face of one's opponents, or the vague indications of disapproval by the rulers of one's village, are all apt to be stronger than the shadowy and uncertain conclusions of one's thinking brain. To make the ultimate vote secret, gives therefore thought its best chance, and at least requires the canvasser to produce in the voter a belief which, however shadowy, shall be genuine, rather than to secure by the mere manipulation of momentary impulse a promise which is shamefacedly carried out in public because it is a promise.