date

4 Jan y 1808 Jury trial codification
4 Jan y 1808

Jury trial codification

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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    Description: 26 Jan y 1808

    Codification - Jury Trial

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    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.
  • Title: [24 Jan y 1808 Jury trial There]
    Description: 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.
  • Title: [18 May 1808 I. Reasons Ch.V]
    Description: 18 May 1808

    I. Reasons

    Ch.V. Advantages

    §.9./8./ Arbitrary power ousted

     Here or further on[?]

    §.9./8./ Advantage the 8 th Reduction in the arbitrary power of the Judge.

    1. Another of the effects the title of which to the character of an advantageous one would be apt to appear questionable, if the same lay in Westminster Hall, if the Courts in question were the English Courts.

    No power to which the so rendering an epithet as arbitrary is applicable it would be said ever is exercised or is ever in any danger of being exercised in any of those seats of pure and unspoiled justice: and where there is neither disease nor danger of disease, there is no use for remedy.

    2. In Scotland, supposing the result likely to ensue, nothing can be more evident than that its title to the character of an advantageous one will hardly find a pen or a lawyer[?] to question it. The opinion pronounced on this effect by the Faculty of Advocates was unanimous.

    3. Under Jury-trial, as conducted in England, the power of the Jury, and the independency of these unlearned and everchanging Judges upon the learned and permanent Judges their Directors, has been stated as having in a much greater degree apparent than real substance.

    4. If in consequence of this dependency, the ends of justice are attained in a greater degree than they would be in the opposite case, if on these terms the law receives its execution and effect more compleatly at all points and constantly than it would in the other case, the arbitrariness of the power of the Judge is no inconvenience - any restraint put upon it would be no advantage. On this head how the matter stands in point of fact every one to whom it belongs to judge will give his judgment, for himself.