date

22 July 1804 Procedure 2 (2
22 July 1804

Procedure

2 (2)

Enquiry Mode

Ch. Objection No Jury

This objection calls for these observations by way of answer -

1. Sacrificing the natural and only just mode of procedure to procedure by Jury as sacrificing /would be to sacrifice/ the end to the means. In by far the greater number of causes that come[?] actually to be decided - not to speak of the still greater number that can not be decided because prohibited by factitious[?] ruffians[?] from being commenced - Justice and the existing mode of procedure by Jury are physically incompatible. Angels could not render it in their place

2. The cases in which Trial by Jury is either practicable with advantage or practicable upon any terms, or so much as actually practicable with advantage or any tolerable chance or colour of advantage, it is capable of being engrafted onto the Natural mode of procedure, and without preponderant inconvenience.

3. The chief if not only circumstance by which the Trial by Jury is rendered so dear to Lawyers is that it is Trial with Lawyers. The proof is - that for one cause tried by a Jury, causes by dozens and scores not to say hndreds, are tried without a Jury - and the work being alike or more for lawyers /quantity of work for lawyers, being not less or greater/ - no fault has been ever found. This is but an argumentum ad hominum:- but in that character it is decisive.

4. It is only on the supposition of their own untrustworthiness the trustworthiness of professional Advocates, elevated into the station of Judges - that a Jury can be of any use /in so far as Judges - Judges made such out of Advocates are not fit to be trusted/. a set of unlearned and unpracticed /unexperienced/ Judges can be of any material use. Vita Ricardi, mors[?] Roberti[?]. Ascribe to them on this occasion to the professional Judges half the virtue so liberally bestowed upon them upon others, Juries /the unprofessional ones/ are a nuisance. Another argument ad hominum - but to a lawyer rather a perplexing one.
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  • Title: [22 July 1804 Procedure (1)]
    Description: 22 July 1804

    Procedure

    (1)

    Enquiry Mode

    Ch. Objection. No Jury

    '.4. 3. No - Jury not complained of.

    '.4. Want of Jury Trial nnot complained of, where the mode is alike beneficial to Men of Law.

    If absence of a Jury were a law, men of law are so desirous of seeing it believed to be, a bar to justice, by dar the greater part of their practice according to their own [...?]/, would be a mass of indefinable abuse /be irreconcilable to justice/. Individually taken The question of fact on the occasion of which a Jury is called in are but as one say to two, half a dozen - half a score, a whole dozen or a whole score, to the questions in which this precluded sine quâ non to good judicature is shut out.

    Considered in this point of view - with reference to the use made or not made of Jury judicature - the questions of fact that come under the cognizance of the several Courts of justice may be divided into three classes - viz:

    1. Questions decided with assistance of a Jury, by the mode of enquiry termed Trial by Jury:

    2. Questions decided in the Common Law Courts, by the professional Judges without Juries being introduced by Motions: applications made to them in open Court by Advocates, the allegations and evidence in which they are grounded being exhibited at the same in the form of prepared written statements called Affidavits /sanctioned by Oaths, and called Affidavits //guaranteed by the sanction of an Oath//.

    3. Questions decided in the Equity Courts, after having been introduced /brought in/ by a prepared written statement called a Bill in Equity. exhibited by the Plff without oath, and answered by the Defendant by a written instrument, called an Answer in Equity delivered in upon Oath, in the manner of an Affidavit.
  • Title: [22 July 1804 Procedure (2)]
    Description: 22 July 1804

    Procedure

    (2)

    Enquiry Mode

    Ch. Objection. No Jury

    '.4. 3. No - Jury not complained of

    In the last of these modes of procedure - being two out of three in use two eminent deficiencies - constituting so many points of disadvantage in comparison with the first mode are found united:- 1. the want of the pretended best mode of judicature - judicature by a Jury most competent[?] species of Judge: 2 dly the want of the best mode of extraction for the obtainment of the evidence - the mode by themselves acknowledged to be the best and in truth - in all cases of dispute the only good one.

    Observe then the consistency. The objection where it stands single - the objection of no Jury - is decisive: where it is fortified by the addition ot another - and that other of much stronger texture - a bad mode of extraction - it amounts to nothing, and accordingly in the character of an objection, and objection urged against either of these established modes of procedure is never touched[?].

    So compleatly futile is the objection of No Jury in the eyes of those who are not ashamed to /simply[?] act[?] to/ urge it, that in the way of Motion[?]-and-Affidavit work causes are tried of several sorts which are not allowed to be tried by Juries (a) - and in the case of the same demand on the occasion of which a Jury is called in for the trial of the question, the same question is tried by the Court without a Jury, before it has been tried by a Jury, (b) and after it has been tried by a Jury. (c) On one and the same question, whether a Jury be be [sic] not employed, trials can never be too many, so long as on each occasion lawyers are employed /learned gentlemen are employed/ in every case.

    Notes

    (a) Motions for Attachment i.e.[?]

    (b) Motions for leave to file Informations

    (c) Motions in mitigation of aggravation of punishment, after conviction by a Jury - the Motion being grounded on affidavits, oppsed[?] by counter-Affidavits, the Affidavits on each side alledging fresh facts, not brought in view at the Trial.
  • Title: [13 Feb y 1807 Letter IV Resolut]
    Description: 13 Feb y 1807

    Letter IV

    Resolut. 6.7.8.9

    Juries

    Lawyers Re fondness

    1. A property /feature/ which learned gentlemen fail to make the most of, to their praise as if it belonged exclusively to Jury trial, is the mode of collecting the evidence - thence the shape in which it is collected - vivâ voce examination, with cross-examination, questions arising out of the answers and so forth. This, however is not among the properties /perfections/ which contribute to their predilection for this modification of technical, to the exclusion of natural, procedure.

    The proof is very /altogether/ simple. Natural procedure employs /carries the use of/ this mode of collecting evidence to the highest possible pitch: (employs it wheresoever it is practicable.) They avoid the employment of it to the utmost of their power. /By them the use is avoided by them on every occasion on which it has been possible to avoid it./

    So far as they have found themselves at liberty, the very worst shape into which it is possible to put any thing that was ever called by the name of evidence - the very worst shape and the most opposite to Jury-trial evidence that could be found I speak of affidavit evidence - is the shape and the only shape in which they ever suffer it to become[?] before them. In this they all agree /the whole body of learning agrees/, Common Law and Equity, Spiritual and Temporal, and Spiritual, territorial and Maritime.

    But Equity, Spiritual law and Admiralty, being all of them, children of Roman law, have found themselves chained /tied/ down for the most part by their Mothers will, somewhat to the use of a less bad mode - viz: depositions: examinations vivâ voce by a Judge or Judges ad hoc, taken in secret, and with doors shut against parties and their lawyers, and consequently without the benefit of cross-examination.

    The chancellor, sitting in Westminster Hall, sitting or Judge in Equity, submitts to /wears/ the chains - these Roman chains - imposed[?] by Equity. But no sooner has the Couch[?] [...?] with Jury trial for the motto of it set him down [...?] in Lincolns Inn Hall sitting to hear to[?] causes of Bankruptcy coming in the form of Petitions, than off go the Roman chains, and he finds himself as much at his ease as any of his learned Colleagues reposing himself in the lap of affidavit evidence

    The countenance of a due[?] is not more horrible to a spendthrift, than that of a suitor is to lawyer of every sort and size, the Attorney alone excepted