date

6 Jan y 1807 Facienda Outline
6 Jan y 1807

Facienda

Outline

Appeal & Jury

For saving unnecessary delay, vexation and expence by journeys and demurrage[?] of witnesses; power to the Judges of the regularly competent forum (the defendant's) to transmitt the cause with consent of parties to any other forum being in those respects the most convenient: any party not consenting, and thereby preventing the transmission, to be chargeable with the difference in point of expense.

To either party dissatisfied with the judgment given in the verdict of a first Jury, power to appeals for a new Trial either to the Judge of the primary Court, or (as in case of misdirection to the Jury or other misbehaviour imputed to that Court) to the Metropolitan Court of Appeal at Edinburgh: transmitting for that purpose the Minutes of the Trial from the Court below to the Court above.

Power thereupon to the Metropolitan Court of Appeal either to give judgment upon the said /these/ minutes, or to order a new Trial either at Edinburgh before itself or in any other more convenient Provincial Court from which the Appeal was made.

To prevent Appeals to Edinburgh by an opulent party for the mere purpose of delivering or disabling an indigent adversary from the prosecution of his demand or defence, power to the Court below to exact of the Appellant, consideration had of their respective pecuniary means, a competent sum to be applied, under the direction of the Court, to the defraying of the Respondents's share of the expence.

Power to the Metropolitan Courts of Appeal to order, on reasonable cause other /ulterior/ new Trials without any express translation as to number, but in each instance on condition that the applicant deposit as above, a sum sufficient for the opposite party share of the expense, and being security for the eventual payment of a sum predeterminable by the Court, applicable in the name of satisfaction for the vexation and expence of such impending trial, in the event of a Verdict unfavourable to the applicant.
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  • Title: [6 Jan y 1807 Facienda Outline]
    Description: 6 Jan y 1807

    Facienda

    Outline

    Appeal & Jury

    On view of the Verdict given, on the occasion of any such Trial ordered by the Metropolitan Court of Appeal, together with the Minutes of the Trial power, to the Court to declare the Judgment final, on the principle of the perpetual Injunction granted by the English Courts of Equity.

    N.B. The question how far after a judgement already pronounced the case of any Court shall be open to applications for reversal or modification requires to be settled upon all comprehensive principles - comprehending demands of all sorts. The perpetual Injunction above mentioned is a technical /technically manufactured/ remedy to a technically produced /generated/ /begotten/ inconvenience. In general judgment except in case of appeal /arrest of judgement/, or writ of error, is conclusive on both parties; admitting no fresh action, (unless the useless and abusive action in lieu of execution in that same judgement) for the same cause. Hence it is that in general there is no room for application for perpetual injunction here[?] in general no ground to operate upon. In the fictitious action at Common Law employed for trying titles to property in immoveables (ejectment) one of the consequences is that fresh and fresh actions may be brought by the losing party in each instance to the end of time. Abuse infinite, remedy an enormous grievance.
  • Title: [6 Jan y 1807 Facienda Outline]
    Description: 6 Jan y 1807

    Facienda

    Outline

    Appeal & Jury

    To Either party, being dissatisfied with the judgment of the /a/ Sheriff-depute, power to cause the matters in dispute to be submitted in the same Court to a Jury under the direction of a substitute, named /approved/ if possible by consent of both parties: or vice versâ, if the judgement were by a substitute, the Jury to be presided[?] by the Sheriff depute or another /principal or some other/ substitute.

    In case of Appeal as above to a Jury, such facts alone to be submitted to the Jury as are really in dispute: a minute[?] to be taken of the facts admitted and denied on both sides: a practice came into use of late years in some sorts of causes in the Westminster Hall Courts.

    The application made for the Jury Trial to be made to the individual judge thus appealed from: made either at the time of pronouncing the Judgement (as in the case of appeal apud acta in the English Ecclesiastical Courts) or within a regulated time thereafter. Power on that occasion to either party to cause minutes to be taken of every thing that passes, for the purpose of grounding complaint in case of misconduct /and thence of preventing misconduct/, on the part of the Judge. Principle, the same as that of the Bill of Exceptions in English practice. principle then[?] good: application scanty and in other respects /and if he thinks fit to publish it in the newspapers and otherwise/ inadequate.

    In contemplation of continual appeal, power to either party, on payment /advancing/ of a proportionate sum in name of costs - to cause minutes to be taken of every thing that passes in the first instance: if by a short-hand writer so much the better.

    The use of this /the numbers/ is not merely to act as a check /not/ upon the Judge alone but upon the witnesses as well as to save /preserve/ the evidence against from despotism in case of death, insanity, expatriation[?] and so forth. English practice on this head is just what it would /should/ be if the object were to encourage perjury. On a second trial the evidence minutes of the testimony given at the former trial by the same witnesses are not allowed to be produced against him. On the trial for the Assassination plot called by its well-wishers the Pop-gun plot, one of the witnesses (an accomplice) chose to forget a great part of what he had deposed[?] on his examination at the Council-Board. Minutes of his deposition[?] not allowed to be produced, nor be questioned about it. Why? Answer - because that would be to dicredit your own evidence i.e. to show it in its true light:- light unpleasant to the eyes of English Judges.
  • 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.