date

22 July 1804 Procedure (1)
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.
Similar Items
  • Title: [22 July 1804 Procedure (3)]
    Description: 22 July 1804

    Procedure

    (3)

    Enquiry Mode

    Ch. Objection. No Jury

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

    In an Equity Court a greater number of questions of fact - nay a greater number of distinguishable demands - are oftentimes decided upon without a Jury in the compass of a single cause than are decided upon with Juries in a Common Law Court in the compass of a whole term - in the compass of as many causes as are decided upon in a quarter of a year. I speak of the case of those Bills, in the course of which an Account of monies or goods received comes to be demanded at the hands of a Defendant: whether in the character of Executor, Administrator, Bailiff, Factor[?] or the like. So many items as there are on both sides of the account taken together, so many distinguishable demands liable on one side or other to be disputed: i.e.[?] many demands each of which is /would have been/ capable of serving for the matter of a suit at Common Law, to be decided upon by a Jury.
  • Title: [8 June 1808 In a Court of Equity]
    Description: 8 June 1808

    In a Court of Equity where the individual from closer evidence is to be extracted

    from is a party (the Defendant) the mode employable

    (in that stage of the course at least) is

    the epistolary mode only: where an extraneous witness,

    the oral mode only, and thus in secret, neither

    door shut against both parties party admitted, the questions put by a Clerk

    to whom it is matter of indifference who cares not whether the answers be true or false.

    In his one enquiry made by a Committee of either

    House of Parliament, the two modes of examination —

    oral and epistolary, either or both, are employed as

    the nature of the case requires. And in a Court

    of conscience, supposing the nature of the case to require

    this course, there is nothing to prevent it.

    2. Speaking of written evidence in the power custody

    of the parties, and the powers computions employed by one

    Equity Court for compelling the production of it

    of an original proves to be vested in the Court Common Law

    out of which the cause is sent in the only thing

    wanting to render the practice of a Jury-trial

    Court the modes of perfection in this time.

    But by this preferred original power a document

    thus necessary to justice would not be procurable,

    but by a Motion with affidavits and counter-affidavits, and arguments with offered by counter-arguments — in a word by a cause within a cause.

    Whereas in a Court of conscience all such documents lying

    in such hands would be produced of course. You plaintiff

    you keep books, you say: produce these books, or

    take nothing by your plaint.
  • 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.