059-373.xml

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.

JB_035_287_001.xml

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.

059-369.xml

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.