date

9 May 1807 Scotch Reform Letter
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//
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    In English procedure the line between preliminary /preparatory/ examination and definition is a dear one - why? because the Judges by or before whom they are respectively conducted are never the same. The Justice of the Peace who collects and receives evidence of all sorts in the first instance can not "try" the cause. The Judge who with the Jury tries the cause can not, with or without the Jury, or any Jury perform any of these preparatory examinations by which the thread of evidence is investigated. The Jury does not come into existence until the last stage.

    The sort of magistrate called a Justice of Peace is the only sort of magistrate by whom the process of investigation is capable of being conducted: where his authority ends, there ends the full compliment of power necessary for the obtainment of existing /obtainable stock/ of evidence.

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    The sort of inquiry made Nisi Prius and /or/ /what is called the Trial/ the Assizes - the sort of inquiry carried on in the presence of a Jury will not always suffice, will very frequently not suffice without preparatory inquiries. The business of the Trial, is to display before the Jury, and take their decision upon which, the [...?] of evidence on both sides, as collected for the purpose. But before it /there/ can be displayed, a pretty long thread /chain/ of previous inquiry is sometimes necessary, for the collection of it.

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