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29 July 1806
Evidence │ │ Scotch Reform
Facienda
Jury
No Jury at first
Appeal to Jury
In considering to this purpose the constitution of a Jury I mean to view it to the best advantage. I consider it accordingly as pure /clear/ from those superstitions and abominations with which in England /by the barbarian ancestors of Englishmen/ it has been defiled, and from in Scotland it is free. Your illustrious father my Lord, when he pleasured[?] a jury he did not employ torture to force them to committ perjury. He did not subjugate the impartial to the inflamed or the corrupt or violent, the infirm to the robust: he did not lodge the power of the whole in the hands of the most obstinate. As little do they in Scotland now where they make use of Juries, a majority decides, and to ensure a majority they provide an uneven number. No superstitious adherence to number 12. From 9 to 12 or 13 are the numbers proposed by Lord [...?] for his Juries
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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.
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Title: [23 Dec r 1806 Scotch Reform To L d]Description: 23 Dec r 1806 Scotch Reform To L d Grenville Resolut.6 Jury My Lord - I speak it with great submission - it seems to me true enough for a man to quarrel with a decision /Judgment/ when he knows what it is. In this observation, I find /behold/ one of the bases of the idea I have formed to myself of the proper, and only proper use capable of being made in causes not criminal, of the intervention of a Jury. Every where the Judge is liable to have his partialities: England to a certain degree; in Scotland for the reason already submitted to so much greater degree. Juries with proper care and management are capable of being cleared of partialities at least of all known ones, which is the circumstance of most importance. In the case of an Appeal therefore, I see /view/ the proper and only proper occasion in causes not criminal, for having recourse to Juries. But of this afterwards, when I come to submitt to your Lordship my proposed experimental Court of Natural Procedure.
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Title: [May 1807 Scotch Reform Letter]Description: May 1807 Scotch Reform Letter VI Letter VI II Jury Trial On this same ground of Jury-Trial I come now to the body of learning on the other side: the whole Faculty of Advocates speaking by the mouth of their Committee: still more and more support came from that opposite side. In speaking of the practice according to which the Judge who decides upon the proof has borne no part in the taking of it, they speak of it without reserve as being the only mode of judicature actually in use Scotland, and yet at the same time being so irremediably infected with the " abuses" which under that very name they have portrayed in such strong and such just colours, as to be altogether unfit for use. On this they ground themselves alike drawing a triumphant conclusion in favour of Jury trial; forasmuch as between that abusive mode "the present mode of taking proofs" (as above) "by commission, in a Jury trial" they "conceive there is no alternative. But the Lord President (of that Court to which they owe so much respect and have paid so little this Lord President the head of their profession can inform them of a set of Courts in which more causes by many times over are annually determined than those which being the only Courts that afford fees to learned Advocates are the only ones of whose existence those learned gentlemen can persuade themselves to have /recognize/ any knowledge - and in which proofs are never taken by commission - always in the natural mode of which Jury trial is but an imperfect exemplification soever an /an exemplification, in what respects/ imperfect one .
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