date

15 Jan y 1807 Then again as to the
15 Jan y 1807

Then again as to the number of successive recurrences. When the appeal is on the question of fact alone the number, as above stated, need not have any pre-defined limits. Between Jury and Jury there is not subordination: they stand all upon a level: it is not as in a chain of Courts one mounted above another: when once the appeal has got /risen/ to the highest, then of necessity it slips.

Among Juries, setting aside the English distinction between Common Jury and Special Jury, of which however no such use is made, we expect not to find one Jury better, more trustworthy, than another. There were formerly indeed the Grand Jury on Attaint[?]: a Jury of 24, whose business was to devote[?] to ruin the Jury of 12, as often as they saw any reason for thinking differently: but here ended the number of stages among Juries: and for this century and a half or thereabouts happily the upper stage has not been used.

But as between Court and Court, on the question of law, the grand object being the importance of the decision in the way of precedent, the appeal has naturally been from a Judge supposed less trustworthy to a Judge regarded as more trustworthy: and in this line of ascent the number of stages it is evident could not be long before it comes to its ne plus ultrà /an end/.
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  • Title: [15 Jan y 1807 On the question of law]
    Description: 15 Jan y 1807

    On the question of law though it be seen at once that the number of degrees or stages of jurisdiction, including degrees or stages of appeal (which are always one less in number than the stages of jurisdiction) can not be, at least that they /or at any rate that it/ ought not to be unlimited, still the question recurrs - what ought to be the precise number?

    The answer seems not difficult to find /pretty decidedly /precisely/ determined by the preceding considerations /foregoing observations/.

    1. For maintenance of constitutional supremacy no other arrangement can be so promptly or surely effectual, as that which gives the appeal immediately from the /each/ primary Court to the superior Court: establishing thereby but two degrees or stages of jurisdiction, but one degree or stage of appeal.

    2. By the same most simple of all arrangements, uniformity of decision, consistency and determinateness of the rule of action, thence certainty and cognoscibility are most effectually provided for.

    3. So likewise with least[?] delay, vexation and expense to all descriptions of persons in whatsoever way particularly concerned, suitors, witnesses, judges, ministerial[?] officers of justice.
  • Title: [17 Jan y 1807 B + I Resolutions]
    Description: 17 Jan y 1807

    B +

    I Resolutions

    II Omissa

    III Facienda

    Outer House Appeals &c

    On the question of law - degrees or stages of jurisdiction - those of appeal included - what is the number best adapted to the ends of justice? On the ground of principle, I may perhaps have to trouble Your Lordship on this subject in another place /in a subsequent address/. At present, for shortness, let us turn to experience. Trying the question by this standard, the answer will be - for /in/ England two degrees only of jurisdiction, one only of Appeal: in Scotland three degrees of jurisdiction, two of Appeal: (always understood that under its present constitution the Court of Session though one in name, in effect includes tow degrees of jurisdiction, whereof one or other is to a great deal worse than useless.)

    In England, under the present compleat deficiency or provincial primary Courts two degrees of jurisdiction are found quite sufficient. At Common Law, primary Court the King's Bench, Court of Appeal (by Writ of Error) the House of Lords. In Equity, primary Court, the Court of Lord Chancellor, or the Equity side of the Court of Exchequer: Court of Appeal, again the House of Lords. These are found sufficient: for /from/ the want of any intermediate Court between the Kings Bench and the House of Lords or between the Court of the Lord Chancellor and the House of Lords, no inconvenience was ever so much as imagined.
  • Title: [15 Jan y 1807 When adequate measures]
    Description: 15 Jan y 1807

    When adequate measures are taken, as they easily may be, as above /below/, for the prevention of proposed delay, vexation and expense, appeal to a Jury may without preponderant inconvenience be allowed, not once only, but an indefinite number of times.

    But, for any time after the first, the reiteration ought to depend solely in the pleasure of the dissatisfied party: it should have for its sanction the fiat of a competent Judge, pronounced after a public hearing of the reasons on the one part and the other /for and against the application/.

    Notwithstanding the necessity of this fiat, upon this plan it is still from the will of a Jury that the business receives its ultimate decision. Without the concurrence of a succeeding Jury it is out of the power of the Judge to reverse of alter the decision pronounced by any former Jury or Juries: and the Juries being supposed to be effectually placed out of the reach of all undue influence on the part of the Judge whomsoever it happens to him /his opinion/ to get the verdict of a Jury in its favour, the supposition that it is by force of reason, and by the subsidine[?] correction of opposite errors and the subsiding of opposite passions that the conversion has been produced seems altogether a reasonable one.

    Any excess in the exercise of this sort of a negative power on the part of the Judge, would naturally arm against itself the public resentment and counteract its own purpose, and produce on the part of all succeeding Juries a force of resolution continually /constantly/ /perpetually/ and for any length of time and number of attempts adequate to the frustration of the intended sinister purposes