date

May 1807 Scotch Reform Letter
May 1807

Scotch Reform

Letter VI

Letter VI

II Jury Trial

II Jury Trial - System of Procedure - Jury Trial

For the mode of procedure, I proposed in the first instance the natural system as exemplified in the Small Debt Courts mentioning also the other Courts by the practice of which this natural mode of procedure might so easily be extended to civil cases of all sorts and sizes[?]. In the case of Appeal on the ground /question/ of fact, and not otherwise, Jury trial.

If instead of natural procedure, Jury trial be to be had in no other condition than that of its being mounted on the existing Scotch mode of natural procedure, Scotland can[?] in my conception would be better without it than with it: in regard to delay, I see how it would add in a variety of ways: how it would strike off any thing in any way I do not see. On the sum of delay, vexation and expense, and thence denial of justice, in the comparatively many undisputable causes, it would do more disservice to the ends of justice, than in the sum of prevention of misdecision in the comparatively few disputable causes it would do service.

As to the natural mode of procedure, the 11 Memorializing Judges are of course silent on the subject. But the Lord President, by whose views as derived from his station, the opinions of his 10 colleagues have plainly been directed /evidently been led/, had already as I have shewn so much at large signified his approbation of the natural system in the warmest terms: viz. to the extent of ,5[?] value reprobating /rejecting/ it as soon as the value rises to ,5.1: but without reason assigned and assignable.

On /Upon/ the Jury trial which has /had/ never been proposed to them but is in mounted in the existing technical system, the same learned Lords they pass a vote of rejection purely and simply: and thus far my reasons have their authority for a support.
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  • Title: [[...?] May 1807 Scotch Reform]
    Description: [...?] May 1807

    Scotch Reform

    Letter VI

    Letter VI

    Part I

    Conclusion

    Upon the whole, the following are the instances in which the obscured and non-officed non-lawyer has the honour /satisfaction/ of finding his ideas honoured by the concurrence of those highest among the official lawyers.

    1. Preference given to single seated Judicature for judicial cognizance in the first instance.

    2. practicability and superior excellence of Natural Procedure - not indeed directly confessed by the Memorialists /Memorializing Judges/

    as a body, but virtually - or indeed more than virtually, by their Right Honourable procedure, their head by whose views those of the body appear plainly enough to have been on this occasion desirable.

    3. indigestibility of Jury Trial in civil cases in Scotland, if mounted /grafted/, as proposed, in the existing branch of

    To the Technical system of procedure.

    4. Utility of the profit expunging principle as a specific against factitious delay at the instance of the suitor, and thence against malä fide Appeals.

    5. Dangerousness Ineligibility of the prohibition of Appeals against Interlocutors, as proposed.

    6. In the existing judicial establishment of Scotland, utility of that part which consists of the system of Provincial or Sheriffs Courts.

    7. Demand created for a more extended mode of superintending cognizance on the part of the House of Lords, by the consideration of the large proportion of cases that [...?] escape it altogether, and among them many in regard /relation/ to which the exercise of its superintending authority is of the most extensive and important use. The way thereby prepared for the erection of the proposed Court of Lords Delegates to stand in the place of all Chambers of Review, proposed, proposable or existing - Scotch, Irish or English.
  • 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 .
  • Title: [Jan y 1808 Homologation necessary]
    Description: Jan y 1808

    Homologation necessary

    Jury Trial required

    As to Jury Trial, I have already stated in what case /on what conditions[?] //[...?]/ I regard it as a blessing to Scotland, in what[?] others as are[?] additional nuisance: a blessing if mounted on the natural system of procedure, an additional nuisance if mounted on the existing modification of the technical one /system/

    Among the points /questions/ of which the Great Seal Commissioners are on this subject /occasion/ to take cognizance one is in what manner and form the same[?] could be most usefully established.

    On the point, any opinion such as it is, is perfectly decided. On the suggestion of the introduction /universal extension/ of the natural mode of procedure (and so far as concerns the business of appellation from judicatory to judicatory, Appeal according to the practice of the House of Lords may be stated as a part[?] and sample of the system of natural procedure) on this supposition, the settling of the issue by /under the [...?] of/ Judge [...?] may be stated as a temporary [...?], the best course that antecedently to the performance without are ulterior and still were extensive as well as important task, can be pursued.

    But to employ that blessing to the best advantage, and to cut up by the roots that mass of [...?] and litigation to which the application of Jury trial as above to the rule of action in its present indeterminate state would be apt to give[...?] requires the performance of that ulterior task, the necessity as well as facility of which is matter of conviction /the fully [...?]/ to any [...?], but the demonstration of which will require more words than can with consistency be allotted to the present head.