date

24 Jan y 1808 Jury trial There
24 Jan y 1808

Jury trial

There is but one aside in which of he process called the separation of the question of law from the question of fact any precise idea can be conveyed: and from that every man whose propriety depends on the uncertainty of the law /rule of action/ will learn from with abhorrence.

Concerns[?] that the whole field of legislation and judicature having been surveyed /a survey having been/ by the legislative eye, the legislator /legislative mind/ applying itself to every point and portion of that field has conceived a will, and to that will given expression by a determinate assemblage of words: the whole of the rule of is exactly[?] thus in the form of statute law, the only real law. In this state of things, a question of law can never be either more or less than a question concerning the import of one or more of these words. The question may be confined to a single word, or it may embrace /extend itself over/ any number of words: but though on a given occasion every page on the code were required to be confronted with every other, the question would still be but a question of words a question concerning the meaning of a determinate set of words.

Unhappily for mankind questions [...?] question of law under the sham sort of law [...?] properly called Common Law or unwritten law, hen under real law as above described: what in this case is a question of law? it is still but a question of words, but the words are in this case the words not having been determined by the legislator, remain to be determined by somebody else: and where are they to be looked for ? not in any part of the body of real law, for by the supposition it extends not to the case.
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    case[?], but in any part of that lamented portion of the language which in so many determinate passages or groups of words is employed in the body of real law, but without any hesitation, in the whole body of the language.

    It is only by words, and those determinate words that for the general and [...?] use of a community, will [...?] be expressed, meaning be conveyed, arbitrary will excluded, [...?] avoided. But of every Judge as of every man, it is the natural wish to be an arbitrary, that is to be as free to have /preserve/ as much liberty, to possess as much power, as possible: if every lawyer whose prosperity depends upon the uncertainty of the law, that is of every fee-fed lawyer, it is as certainty the wish to see the law as uncertain as possible. Consequently /BY necessary consequence/ to every fee-fed lawyer and to every Judge, fee-fed or not fee-fed whatsoever portion of the rule of action is in thye shape /[...?]/ of real law, as such an object of aversion /abhorrence/: whatsoever portion remains in the form of sham law is as such an object of attachment, and a subject of praise.

    But sorry as Judge /the man of law/ would be to see the whole field of law /legislation/ [...?] in every part with[?] a covering of real law, he can not /it is impossible for him to/ speak of the rule of action in any part without supposing such covering to exist. What he knows is that to the part in question the will of the only legitimate author of the law has never supplied itself: what is as constantly expressed or by assumption asserted, is that he has: that his will has been framed[?] has been notified, and that such and such are the words by which it has been and is notified.
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    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.
  • Title: [9 March 1807 Judicial Injustice]
    Description: 9 March 1807

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    Letter V

    I. Shapes

    1. Misdecision

    In the penning of real law, the study of the real legislator naturally is as it ought to be, so to choose his words that the questions of law arising out of them shall be as few as possible. It is for this purpose that except for the purpose of abbreviation, as above mentioned, he will never lose sight of two congenial endeavours, on every occasion to employ such words as are in most common use with the people whose fate they dispose of, and never to use them in any other sense than that in which the people understand and use them.

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