091-282.xml

Title: [26 Jan y 1808 Homologation necessary]

Description: 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.

091-281.xml

Title: [26 Jan y 1808 Pleading Codification]

Description: 26 Jan y 1808

Pleading Codification

Law & Fact

Statutory & Jurisprudence

Note here the difference between statute law and jurisprudential law. Under both the question of law is a question of words. But under statute law, the rate of action and standard of reference is in the form of /is really/ existing law, and the words [...?] are /constitute/ the subject of the question are words really belonging to that mass /body/ of law: under jurisprudential, there is no really existing law in the case: be they what they may the words which are the subject of any such question are not [...?] of any portion /mass/ of really existing laws. On this occasion what is it that is done? A portion of Law that does not exist is feigned to exist: not having any existence ad consequently not having any words belonging to it, those who feign it to exist /speak of it as existing, are /being/ under the necessity of finding words for it, find what words for it they please.

Under statute law the words capable of being spoken of as being words of law, capable of forming thee subject matter of the question of law, are numerically [...?] , because individually determinate. they are those words and those words only, those propositions only which are to be found in a determinate number of volumes, in /and by/ which the body of the law stands expressed.

Under jurisprudential law, there is no limit to the number of the words capable of being brought forward /to view/ in the character of words of law, words of which a question of two may be composed. The whole language is open to them: not to speak of words borrowed from another and a dead language: every word they are pleased to press into the service because a word of law, a word constituting or contributing[?] to constitute the subject of a question of law in their hands.

093-239.xml

Title: [29 July 1806 Scotch Reform]

Description: 29 July 1806

Scotch Reform

No Jury at first

Appeal to Jury

What distinguishes Jurymen from Judges (I mean permanent Judges I say for shortness Judges for Jurymen are Judges) is that Jurymen are not used to the business and Judges are. In point of education Jurymen when not compleatly unqualified, are very indifferently qualified in comparison of Judges. Security against excepted partiality in respect of no one qualification can you ever expect a Juryman to be equal to a Judge. But in ordinary cases the very timber[?] in which they are heaped together is itself a most inconvenient obstacle to good judicature: and an obstacle the force of which even in Judges.

In short there is but one description of cases though that a most important one, in which Jurors are any thing better than a nuisance and that is where Judges [...?] to the are not fit to be trusted. These cases are not altogether wanting but happily the extent of them is but /comparatively/ small. They may be tolerably well included in this description cases where there is or is apt to be a conflict of interests or affections between government and people or between the lower and the higher orders. Political libels and cases of Treason and Sedition afford the principal examples. Over and over again Judges would have destroyed the constitution and with it the liberty of the people had it not been for Juries. I am unable to conceive a probable state of things in which they would not. If a libel I know no other definition I mean under existing law than that of a writing disagreable to those who have to judge of it.