date

Jan y 1807 To L d Greville
Jan y 1807

To L d Greville

Facienda

Outline

Appeal & Jury

10. If there are twenty facts thus unconnected with /independent of/ each other - each of them may be tried in a different place and consequently in a different Sheriff - Wick, if the effect of such division be, as frequently it may be attended with a diminution of delay vexation and expense.

In English trial by Jury, under the technical system, learning consists in use made of learning or in which the great study is to find pretences for defeating right, if on a second trial, a witness who should have proved the fact of the marriage in fact indisputably proved on the first trial, and necessary to be proved because not doubted if even then, happens to miss the appointment, or is kept out of the way, the adulterer goes free.

Pretended immunity no more to be exacted from Juries on these non-criminal causes, these in Scotland they are at present in criminal ones. The only pretence that could ever be found for this relick of barbarous profligacy - tenderness of life and so forth - in criminal causes ││ even this miserable /wretched/ pretence has no application to non-criminal ones. On this subject my lord, I hear a report which alarms me. But should any such attempt to corrupt the national morals and the national understanding really be made, the Scotch nation will betray such a disregard to morality and good sense as I am unwilling to suspect them of, if without remonstrance they submitt themselves in the capacity /character/ of Jurymen or in any other character, to be forced by torture to committ perjury.

If English Judges had been in use to kill] Debtors for their own eating instead of helping to starve them in prison without eating them English Lawyers would be as strenuous and unanimous[?] in proclaiming the necessity of these meals to the preservation of the constitution, as now they are in proclaiming the matchless excellence and indispensable necessity of that constitution which by unresisted breach irreststible torture converts into perjurers its favourite class of Judges.

/of that forcing machine, by which good men and true //jurors// are manufactured by wholesale into perjurers/
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  • Title: [Feb y 1809 Jury (6)]
    Description: Feb y 1809

    Jury

    (6)

    If the production of perjury by torture

    be necessary to English, at any rate it is not to British

    liberties. In Scotland Scotch judication Jury trial, though not at present

    applied to civil cases has all along been, and continues

    to be applied, and to an extent forming by far the largest portion of that of the field of criminal law to the most important criminal cases.

    12 All pretended form of mischief from the of it is proved to be groundless and insincere by its non-existence in Scotch law. In a Scotch Jury, the Jurors are allowed to be unanimous maintain unanimity

    as often as they please, but are never forced to be so

    . Accordingly when in the report of a Scotch trial the Jurors

    are stated as declaring all in one voice, the all in

    one voice means something — it means what it professes

    to mean: it is known when they are unanimous, and

    it is equally known when they are not so: whereas in English

    judicature when the unanimity is always nominal and only sometimes real

    all that is made known concerning it by the verdict, is

    that if there have been any whose opinion was

    different from that expressed by the verdict, they have been

    so wrought upon by the torture as forced by the torture to disavow it.
  • Title: [29 July 1806 Scotch Reform]
    Description: 29 July 1806

    Scotch Reform

    Facienda

    Jury

    5. No Jury at first

    6. Jury on Appeal

    5. No Jury in the first instance except in particular cases - and those chiefly criminal ones: capital and next to capital.

    6. Appeal to Jury in all cases, except particular exceptions and except where the appeal being on matter of law goes to the Metropolitan Court sitting without a Jury.

    These two provisions being /in/ intimately connected, are brought to view together.

    The life of the constitution depends upon Juries: but it is not in the way of [...?], but only in the way of medicine that they are /so much as really/ of use. Duped by lawyers, Englishmen and through them Scotchmen have been led to consider the institution rather as an end itself /being itself and end/, than as a means to an end. Trial by Jury is Trial with Lawyers.

    In[?] the passion for Juries the nature of the great majority of causes is compleatly overlooked and the interests of the great majority of people are /as/ compleatly sacrificed. In a Court of Conscience the parties once met in Court a cause occupies upon an average no more than a few minutes. Demand, denial defence investigation of the matters of fact are all gone through at the same time. But before the matter can be or at least ever has been brought before a Jury, a deal of unnecessary time and labour a deal of unnecessary expense has been consumed. Compleatly unable to bear the expense of Trial by Jury, the Great majority of the people have been as compleatly excluded from the benefit of Justice. But the object of judicature having /ever[?] hitherto/ been plunder not justice, those alone who possess plunderable matter in sufficient quantity, have ever been considered as having any claim to justice.
  • Title: [14 Jan y 1807 Facienda Outline]
    Description: 14 Jan y 1807

    Facienda

    Outline

    Jury

    Such, when [...?] into, such in more quarters than one will be found the /this/ whitened sepulcre, the benches[?] of which are the object of such passionate admiration to our modern Pharisees: the anonimity of the Judges, perjury compelled by torture: concord of the parties, surrender of right compelled by denial of justice.

    As far as I have been in a /it has been in my/ way to judge, neither the former, nor yet this is the result in the contemplation of which the satisfaction on this occasion manifested, and the interchange made of praises and compliments among learned persons of different classes, has in general found its /their/ efficient cause.

    Trial by arbitrators contains in it more matter of a nature to excite a learned bosom those[?] social and delectable emotions.

    At the end of a /the/ bootless[?] cause destined in /to/ appearance for a Jury, comes on this occasion another cause in which in some capacity or other, learned gentlemen find additional exercise for their talents and their virtues. Sometimes a learned gentleman figures on each side in the character of an arbitrator: sometimes in the character /station/ of sole Judge, under the name of a referee, a single learned gentleman serves for both sides: sometimes, the judicial station being occupied by unlearned functionaries, learning still finds its way into this super fuctacious[?] suit in the station and character of an Advocate.