date

14 Jan y 1807 Facienda Outline
14 Jan y 1807

Facienda

Outline

Jury

But, though alone this gives in favour of Jury trial, according to the /under the/ present practice (for I shall have occasion to submitt to Your Lordship a plan for clearing it of its /this/ disadvantage) the attestation, the direct attestation thus given /so unanimously/ given by these /so many/ learned person is worth so much less than nothing, there is another mode of procedure, in favour of which the attestation given by the same learned persons being indirectly given - being unintentionally given, and without their being aware of it, has a real /may be found to possess/ value - possesses a real /substantial/ claim to confidence.

I speak of the natural mode /course/ of procedure under consideration: according to which after all this candour has been manifested - and all this praise earnt and received, justice comes always to be administered, if in conclusion in a case thus dismissed, justice or any thing like it is administered.

The cause thus dismissed out of the hands of the Jury, one or other of three results can not but take place:

1. No further proceedings at all take place, no verdict, no compromise, each party setting down with his own costs.

2. A compromise takes place.

3. The cause goes off to arbitration, as above.

The first result is not at all a probable one: it can not take place without the consent of the plff: since be the cause ever so unfit for a Jury, it must go on, if no Juror /unless a Ju.[?]/ be withdrawn, and no Juror is ever withdrawn without consent on both sides. But if the plff consents to this, he consents to the losing his cause: the utmost benefit he can derive from such an arrangement is an exemption from the danger of having to pay the costs of the other side.
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  • Title: [14 Jan y 1807 Facienda Outline]
    Description: 14 Jan y 1807

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    Outline

    Jury

    The second result, the compromise does indeed sometimes take place, and indeed too often. I say too often: for it is scarcely in the nature of things, that when under such circumstances a compromise takes place, justice should be done. The result which then takes place under the specious name of compromise is almost always /ex traturâ[?] rú[?]/ a surrender made by the plaintiff of a part /in greater or less proportion/ of his right: a failure of justice, to which, the plaintiff by the necessity of his situation - of the situation to which /he his reduced/ to which he is reduced by the inefficient state of the law - is induced to give the sanction of his consent.

    The full amount of his claims /demand/, how just soever, the defendant will not give: why should he! how is it in the nature of things he should? costs expected this is the worst that could befal[?] him were the cause to be heard, and a verdict given against him - it is to avert this /take his chance for averting/ that he has persevered this long in defending himself /continued this long in the expensive predicament of a defendant/.

    But neither can the plaintiff get into it without the defendant's consent: for his only mode for getting it /the only channel through which if at all it would be to be got/, is that of a Verdict: and this by the supposition he can not have.

    For extorting from the prudence of the other side any the smallest part of what is due all he has left is to produce /hold up to view/ an apparent chance of his being able to get something in some other mode, such as the filing a Bill in Equity, or the bringing his action at law in some other form, splitting his demand, giving up a part of it, and so forth.
  • Title: [14 Jan y 1807 Facienda Outline]
    Description: 14 Jan y 1807

    Facienda

    Outline

    Jury

    Lawyers - Cause of their fondness for Jury Trial.

    I have already had occasion to present to your Lordship's notice the case of the 8 special Jury causes - the whole stock of Special Jury causes in that Court for that day - all incapable, or at least pronounced incapable, of having justice done to them by any thing that is called /goes by the name of/ a Jury - even the bettermost sort of Jury called a Special one. Does /Will/ Your Lordship suppose that /that it is in the power of/ a failure of this sort - any number of failures of this sort to detract /subtract/ any thing /make any abatement/ from the /forming of the/ passion of which this mode of judicature is the object in so many learned bosoms? - No /Alas!/ my lord: they influence it. Had the suitors received the justice they so dearly paid for, learned Gentlemen would have had to earn their fees: so much waste of breath and time: his Lordship would have had to wait so much the longer for his dinner. Accordingly if what is and on this head in the report /Newspaper/ pure[?] innovation, the (and what is manifest is that eulogium not censure was intended /the law of it/) the satisfaction excited in a noble and learned bosom by the turn thus taken by all these causes, was not so much as dissembled: Candour, (it is an observation /an incident/ it has frequently happened to me /which it has frequently been my lot/ to mention to observe) candour is the virtue which an incident of this sort never fails to add in the bosoms of learned gentlemen to all their other virtues: of this virtue they as regularly receive the reward in the shape of praise attached to it by the learned Judge: and in the particular /individual/ occasion here in question the reward so well merited /we are told/ was not with holden. What if the fees had been earnt? My Lord, besides so much breath and so much time, all this praise, praise from so high a quarter praise always the more valuable from the height of the quarter /source/ from whence it issues, would have been lost.
  • Title: [Jan y 1807 Facienda Outline]
    Description: Jan y 1807

    Facienda

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    Jury

    Among so many other virtues ││ not the least influencing is that liberality with which they bestow upon each other the love of praise: and when they do deserve it, it is in the way they deserve it.

    It may here perhaps occurr to your Lordship, that all this praise is not so much neat[?] profit; for that per contra there is so much fame lost - not an atom, my Lord. If the Counsel on whom the bargain depends were an advocate young at the bar, and new to fame, yes: but this never is the case. Veterans men /A Veteran is a/ /An old established trader/ whose whole stock of fame is already laid in /already laid in, and incapable of receiving any addition/, are always the leaders on both sides /is always the sort of a man whom each side has for its leader/: as if by accident the lead should happen to devolve upon any learned person of inferior rank on the staff in the heirarchy /roll/, his authority would under that of the /[...?...?] grave[?] are[?] of the/ learned Judge be overborn by the better established /firmer rooted/ authority of the still more learned leader on the other side. Add to which /Besides that/ the more decidedly incapable a cause is of receiving justice in this mode, the more barren it naturally is of fame: same dull matter of Debtor and creditor in which nothing but money is sought by parties and nothing but money earnt by Advocates. The causes rich in fame /that yield fame as well as fees/ are of quite another description, causes simple in their texture, and that speak to the passions and that afford matter for lighting up /kindling/ the passions and perverting the understanding of the inexperienced Judges.