date

26 Jan y 1808 Homologation necessary
26 Jan y 1808

Homologation necessary

Jury Trial requires it

Introduction of Jury Trial /Furnishing the Scotch judicatories with Jury-boxes/ is among the objects proposed by the Bill. And to the extent of that part and that part alone of the main body of the law which is in the shape of statute law can any fixed basis be found for any of these Jury boxes /be found/. A Jury which is not permitted to take cognizance of the question of law - a Jury [...?] which does not decide upon the question of law as well as the question of fact, is a mere tool, a mere instrument of arbitrary power in the hands of a Judge. Under statute law the question of law has for its subject matter a set of words determined /chosen/ by the legislator chosen for all occasions: if the Jury are not qualified for deciding on the impact of these words, what is it that they are qualified /fit/ for?

Observe on this occasion the inconsistency - the [...?] and self-[...?] inconsistency of the men of law /English Judges. To me[?] and the [...?] set /description/ of person the same law is supposed at the same time to be intelligible for the purpose of exacting on the part of each individual the strictest conformity to it as has [...?...?]: unintelligible to the same individual to the purpose of his judging whether it has been conformed to in other instances.
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  • Title: [24 Jan y 1808 Jury trial Codification]
    Description: 24 Jan y 1808

    Jury trial Codification

    Law & Fact

    Cutting

    Where /So far/ the pint in which the question [...?] as a point of real law, the question of law is plain[?] and distinct, and the form of pleading adapted to the case is equally so. The assemblage of words in question being a determinate, the question of law is what is the impact [...?] to be given to those words: the question of fact or whether the act /matter of fact //event/ expressed by the words employed in the evidence, be one event /a fact/ that comes under the description given by those words.

    The question that came[?] in t'other day in the Statute commonly called Lord Ellenborough's Act, may in respect of its simplicity, though the case be a [...?] only serve on this occasion for an example. By the Act it is made capital for one man harbouring /in pursuit of/ certain intentions therein declared to cut another. With an instrument not designed to cut /formed for the purpose of cutting/ the defendant had produced on the body of the prosecutor an effect of that sort which is produced by applying [...?] instrument formed for the purpose of cutting to that its destined use. Turning upon certain words, forming part of the law, a determinate and really existing portion of the true[?] matter of the law this question was out of dispute a question of law, as such it was referred to the Judges. But for any such reference whether there could be any use or reason, is another question and a very different one whether there could be any use or reason for sending it out of the hands of a Jury, is another question and a very different one.

    /The act done by the defendant was it or was it not an act an act of cutting of the number of those acts which ought to be condemned as designated by the word cutting by the verb to cut?
  • Title: [26 Jan y 1808 Codification - Jury]
    Description: 26 Jan y 1808

    Codification - Jury Trial

    [...?] cutting

    Juries judge of law

    Under statute law especially in civil causes you have less need of a Jury, and at the same time, having /if you have/ the institution, you may derive more benefit from it, you may extract from it more of that use /service/ which it is in the nature of it to afford.

    Under Statute law, the pretention is more palpably [...?] than under jurisprudential, the pretension that Jurymen are not proper judges of the law.

    Under jurisprudential law this pretension can never be directed /without/ of [...?]. That /A law/ which has no existence nobody can understand /is nt capable of being understood by anybody/: consequently not by a set of Jurymen: to them /all/ it [...?...?] easily be opposed. For the same reason neither should it be intelligible to Judges: but forasmuch as /seeing that/ they belong to the class of those by whom what there is of reality[?] in it is made, inn every instance what little chance there is of its being understood by any body, is all on their side.

    Under Statute law you may insist[?], one ought to insist boldly that in every case the Jury [...?] be not only an appearance but a reality judges of the law that the decision pronounced upon it /that the text of the law shall be presented to them/ shall be truly theirs.
  • Title: [26 Jan y 1808 Codification - Jury]
    Description: 26 Jan y 1808

    Codification - Jury Trial

    Jury Trial

    Cutting[?]

    Here then for the purpose of causing a man to be put to death, fr this purpose all men without distinction, the most ignorant included /not excluded are supposed not only to be apprized[?] of the existence of the law by which the being that dealt with is made the consequence of the act of cutting[?] accompanied with the bad intentions therein described - apprized of its existence , and to the effect in question approved of the meaning of the several words of which it is composed /by which it stands expressed/, the words cut and cutting among the rest. But when[?] for the purpose of sitting in judgment on an accusation charging a man with having committed the[?] forbidden act of this description, a man of a class superior /superior to the table[?] of the [...?]/ in point /respect/ of condition of life ad the portion of knowledge naturally attached to it, and on account of such [...?] superiority selected, is placed in the situation of a Judge, then it is that because not being he is not a professionally bred lawyer /Judge/, he is regarded by those who are professionally bred lawyers, as a man incapable of understanding ad not it to be treated [...?] what it is that cutting is /the word cut and cutting mean/. That the individual accused has been guilty of offending against the law by which a [...?] of death the act of cutting is [...?] accompanied with the evil [...?] in question made a capital offence is what they are indeed permitted to decide: but the act /word/ of cutting being one of the number of the words employed in the law, and the question concerning the import of it being accordingly a question of law and professionally bred lawyers the only persons capable /qualified/ of understanding /o decide in/ questions of law, and the Jury men[?] [...?] of them professionally bred lawyers shame it is that their having pronounced the accused guilty of the act of cutting accompanied with he evil instances in question is not a sufficient warrant for the declaring him guilty.