date

22 July 1804 Procedure 3 (1
22 July 1804

Procedure

3 (1)

Enquiry Mode

Ch. Objection. No Jury

'.2. 1. Justice unattainable

1. Cases in which, under /in/ the existing state of things /system of procedure/, Justice never is or can be done /administered/ in the way of Trial by Jury.

Observe that the state of things in which the want of Trial by Jury is held up to view as a peremptory /decisive/ objection against the summary mode of procedure - as a greater evil than the evils to which that and that alone is capable of applying an effectual care - is the existing state of things - the existing course of procedure.

Under the existing state of things there are two causes, sufficient either of them, as far as it has place, to render the obtainment Justice, in a cause to be tried by a Jury, absolutely impossible.

1. One[?] is the sum of money necessary to be advanced by a plaintiff before he can in this way take his chance for Justice: to which ought to /will/ be added in many cases the additional sum, to the payment and loss of which he must eventually pledge himself, under the name of costs, viz. the amount of the defendants costs in case of failure. By this circumstance, so far as concerns those cases of a non-penal or mixt nature in which relief /justice/, can not be applied for but by a cause of a non-penal nature into /of/ which the trial by Jury makes a part no man who has is not in his power either to advance or to give to an Attorney sufficient security for advancing this indispensable sum, is effectually cut off from taking the possibility in this way his chance for justice. (a)

(a) Give here the calculation - Number of relative paupers from [...?] [9/10 ths] of the people here in a state of perpetual Outlawry. The relief afforded by the Courts of Conscience is good so far - but very scanty, both as to places and sums.
Similar Items
  • Title: [22 July 1804 Procedure 4 (2]
    Description: 22 July 1804

    Procedure

    4 (2)

    Enquiry Mode

    Ch. Objection. No Jury

    '.2. 1. Justice unattainable

    2. The other /Another/ is the difference between taxed costs and costs out of pocket the sum of money necessary to be lost to the plaintiff out right, by being advanced in the way of costs, without being reimbursed to him even in case of success. To state the exact amount of this irrecoverable sum for which there is no remedy is altogether out of the power of an individual destitute of the power /authority/ necessary for obtaining the requisite information. It will be subjected of course to ample variation partly by the species of the cause partly by the individual circumstances of each individual cause, partly by the latitude given in this respect by those to whom it belongs to judge.

    Call this minimum ,5: (a) should the minimum prove a little less, the average amount will be much more: the maximum would swell to scores of pounds, not to say hundreds. The legislator, should the difference between justice and injustice ever become an object with him, will know in his own good time.

    (a) Examine a few [...?] Bills.
  • Title: [22 July 1804 Procedure 2 (2]
    Description: 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.
  • Title: [May 1807 Scotch Reform Letter]
    Description: May 1807

    Scotch Reform

    Letter VI

    Letter VI

    II Jury Trial

    II Jury Trial - System of Procedure - Jury Trial

    For the mode of procedure, I proposed in the first instance the natural system as exemplified in the Small Debt Courts mentioning also the other Courts by the practice of which this natural mode of procedure might so easily be extended to civil cases of all sorts and sizes[?]. In the case of Appeal on the ground /question/ of fact, and not otherwise, Jury trial.

    If instead of natural procedure, Jury trial be to be had in no other condition than that of its being mounted on the existing Scotch mode of natural procedure, Scotland can[?] in my conception would be better without it than with it: in regard to delay, I see how it would add in a variety of ways: how it would strike off any thing in any way I do not see. On the sum of delay, vexation and expense, and thence denial of justice, in the comparatively many undisputable causes, it would do more disservice to the ends of justice, than in the sum of prevention of misdecision in the comparatively few disputable causes it would do service.

    As to the natural mode of procedure, the 11 Memorializing Judges are of course silent on the subject. But the Lord President, by whose views as derived from his station, the opinions of his 10 colleagues have plainly been directed /evidently been led/, had already as I have shewn so much at large signified his approbation of the natural system in the warmest terms: viz. to the extent of ,5[?] value reprobating /rejecting/ it as soon as the value rises to ,5.1: but without reason assigned and assignable.

    On /Upon/ the Jury trial which has /had/ never been proposed to them but is in mounted in the existing technical system, the same learned Lords they pass a vote of rejection purely and simply: and thus far my reasons have their authority for a support.