date

26 Jan y 1808 Codification Jury Trial
26 Jan y 1808

Codification Jury Trial

Jury Trial

Horse

Take as before the case of sale. Whether in virtue of the transaction between him[?] and the plaintiff on the subject of the horse, a sale of the horse took place, the defendant being bound to know is supposed to be capable of understanding and accordingly to have understood /accordingly/. Supposing the law as that subject to be the state[?] of statute law, and the word sale to stand as part of /one of the articles of/ that statute law, and the plaintiff's demand to be grounded in that article, the import /meaning/ of that word is supposed to be perfectly known to and understood by law, and he consequently to be a compleat and sufficient judge of it.

Take the same man and put him into a Jury box, invest him with the function or at least with part of the function of a Judge, whose duty it is to decide according to law, and in and by so doing to give effect and execution to the law, to give efficacy and fulfilment to the engagements taken by the law, immediately[?] all his knowledge of the law, of the very same portion of the law - all his capacity of forming a right judgment on the import of the words of which it is composed, is according to them to be supposed to vanish /have vanished/. Party to a sale between himself and A he knows what a sale is. party to a sale between A and B. he knows nothing about the matter. A /The/ man who has been occupied /employed/ in selling all his life long[?] /from his childhood/ and hose subsistence has depended upon it, knows not what selling is: to find a man who knows what selling is, you must[?] to a [...?], filled by a set of [...?], no one of whom perhaps, judicial delay excepted, ever sold any thing in his life.
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  • Title: [26 Jan y 1808 Codification Jury Trial]
    Description: 26 Jan y 1808

    Codification Jury Trial

    Jury Trial

    Cutting

    For further illustration, and to take /find/ a case belonging to statute law, from civil judicature pass on to criminal and instead of sale and selling , let the words be cut and cutting. A law is made /created/, requiring of the Judge to put to death whosoever /every man that/ with certain evil intentions therein described, shall have been found guilty of cutting one[?] body of another: a law proposed and enacted doubtless in this view, that a man /men/ by whom but for this mischief of that description might have been perpetrated, may by the fear of the law be deterred from it. The men in whom this wicked habit[?] had been observed, which wicked habit it were the object /design/ of the law to put an end to, were habitual thieves /depredators/, a class composed of the most illiterate and ignorant among the people. What always has been and so long as the rule[?] of action in respect of cognisibility continues in its present state, always will be not only possible but altogether probable in that without having known of its existence, men may in any number come to be put to death for having offended against the law. What neither has been nor ever will be possible is, that by this or by any her law "men's conduct should be influenced any further than on the existence of a law to that effect as well as the import of that law has been brought within his knowledge.

    /it had in any misconduct[?] any/
  • Title: [25 Jan y 1808 + B Homologation]
    Description: 25 Jan y 1808

    + B

    Homologation necessary

    Jury Trial requires it

    engagements of which no description is to be found

    The main body of the law being given -given if it must be given at all it must be in terminus - so far as /to the extent in which/ it is given, so far, and so far only, we have a fixt and standing basis for the Jury box. Then it is, and then only that the distinction between the question of law and the question of fact admitts of a clear description. In this case in every instance the question of law is neither more nor less than a question of words: a question concerning the import [...?] to be given to certain words one or more, and these in every case determinate.

    The question of fact will be to take the simplest and most ordinary case whether the account given of the individual transaction by the evidence /witness/, is worthy of being believed: from the two questions together, and the compound question is - supposing evidence given to the account given of the individual transaction by the witness, does /is/ that individual transaction appear to belong to the sort of transaction in question as described by those general terms [...?] of the text on the text of the law on which the demand or defence (say here for example he demand) is grounded.

    Take the cases as before of the house or the horse. What the Plaintiff demand is to have possession given [...?] in certain[?] of the horse: alledging as the ground of the demand - as the efficient cause of his title, under the word of he law the existence of a contract of sale of which the horse was the subject - buyer, himself the plaintiff, seller, the defendant: referring to a passage in the text of the law o a passage /clause/, which under the head of contracts of conveyance
  • 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.