date

May 1807 Scotch Reform Letter
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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  • Title: [May 1807 Scotch Reform Letter]
    Description: 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.
  • Title: [9 May 1807 Scotch Reform Letter]
    Description: 9 May 1807

    Scotch Reform

    Letter VI

    Letter VI

    II Jury Trial

    On the subject of investigatorial procedure or /for/ investigation of evidence. I had occasion to state in Letter │ │ the frequent necessity of this process, and its incompatibility with Jury-trial in the first instance.

    So far as concerns the necessity The opinion thus hazarded as well as the name bestowed on the process which is the subject of it has been fortunate enough to find a support in the /itself supported by/ the opinion and language of the same learned person. In the person of one and the same Jury the impossibility of carrying on any such process is (has been already) I flatter myself altogether out of dispute. Speaking of Jury-trial as necessary in all cases at the same time, and of this investigation as necessary in some cases, to reconcile the two necessities their purpose is, as it could not but be, "before the 'Jury Trial takes place". But, forasmuch as it is not to take place at the time of the Jury trial, nor therefore before a Judge and Jury, how is it that without thinking it necessary to state, they take for granted, the investigation will be conducted? How but by a /some/ single Judge, sitting in my plan of single-seated judicature, examining all witnesses, tracing out, and collecting all evidences of all sorts, in that same natural mode in which under Jury Trial alone it happens to have been all known beforehand it is collected in the person and for the use of a /the/ Jury? Here then, once more comes in that question which to me appeared so decisive an one - when by one and the same Judge all the evidence which the cause furnishes has been collected, why stop his mouth? - why not suffer the parties to take the benefit of his decision?- why force /compell/ them both as it were to appeal to a Jury from a decision at which they were not suffered to hear /was not suffered to be pronounced/? To what real purpose may the capacity of Juries as well as parties /suitors/ in each suit 12 Jurors and any number of suitors, except that in the capacity of suitors, for the benefit of lawyers in the capacity of Judges, Judge, official Judges and receivers, Advocates, Attorneys with a few Court Minions[?] who for the protection of the plunderers are admitted /let/ into a share of the plunder justice may be sold at an extortive[?] price, to all to whom it is not demand[?]?

    /are the good people of his Majesty's kingdom thus vexed//
  • Title: [12 May 1807 Scotch Reform Letter]
    Description: 12 May 1807

    Scotch Reform

    Letter VI

    Letter VI

    IV. Sheriffs Courts

    Speaking of the provincial Courts in Scotland (Lett.2), I spoke of it as a matter of peculiar[?] felicity to Scotland, peculiar[?], at least in contradistinction to England at least, to remain thus in possession of the necessary means for [...?] to every man his daily bread by the means /hand/ of daily justice.

    Here too /another point in which/ /this/ I have the satisfaction of finding /beholding/ my poor /weak/ opinion with its - I will /can/ not say weak

    reasons - I can only say weakly presented - reasons - supported by the authority of these 11 out of the 15 members of the highest Court of Scottish judicature "the jurisdiction (say they, (art. 21) "the jurisdiction and office of the Sheriffs Depute in Scotland, which undoubtedly" (continue they) "is one of the most valuable and beautiful parts of our system of administrative justice."

    Here is an [...?], my Lord, and a just one: and /but/ for what purpose is it brought forward? To this purpose and this only; viz: to make for the purpose of the moment the Sheriffs Court a bar to the introduction of the Jury box: for the allegation is "that this proposal" (the proposal (art. 20) to extend Jury trial to cases [...?] originally in the inferior Courts in Scotland) "would also to a great degree render useless the jurisdiction in office of the Sheriff's Depute", and so on as above.

    Were Jury-trial extended as above "very many of such cases would in consequence (could) under and in virtue of the proposed law /Act of Parliament/ be brought to the Court of Session: a result which say they "there is much reason to apprehend." for in accession of business to their own seat of pure and disinterested and upright judicature for the [...?] [...?] is new because matters of apprehension to them newly [...?] advocates /enlisted defenders/ of [...?] and acceptable justice.