date

27 May 1808 I will get myself put
27 May 1808

I will get myself put upon the Jury — I will go with my comrades

into the withdrawing chamber, and then be the evidence what it will

may, they shall stay, till

I have brought men to concurr with me in a verdict of

not guilty. - and so says the story he died:

the particulars being afterwards confessed by him on his death-bed.

Supposing this true, what does it prove? - that when a man is determined

upon it, it is in his power to make his way into the Jury-box: and

when he is there, that it is in the power of any man who in any shape

is actuated by a strong interest to command the of eleven men who by

the are without interest, needs no proof.

In this state of things, verdicts contrary to the clearest evidence

neither naturally can be nor actually are infrequent are not

infrequent: indeed so far are

they from being so, that when they do occurr, no mention

is produced by them. How should it be? The very object of the

arraignment is to produce perjury: in the effect what is there that should

call

In cases not penal the mischief is not altogether without

remedy. For when purse and perseverance suffice to demand it, new trial is

sometimes granted.

But in penalcases and especially in capital new trial is either

altogether unobtainable, unexampled prohibited by practice

or extremely rare. False ju verdict

To the prejudice of the defendants side false verdict might find

a remedy, is capable of finding a cure or at least a palliative

in pardon: but to the prejudice of the plaintiff's side, that is to the

prejudice of public security, violent and false false

judgment are altogether without remedy.
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  • Title: [29 April 1808 §.14. I. Reasons]
    Description: 29 April 1808

    §.14.

    I. Reasons for the Work

    §.14. Jury Trial improvable

    3. But if the truth may be spoken, and if facts be regarded rather than the colour put upon them, excepting where damages are given the adjustment of the quantum of the damages, it is but seldom that in causes of a civil nature the mind of the Jury is the real source of the verdict entered under their name. Among the points settled in their presence, and to appearance under their authority, many, and those of essential importance, are not in fact submitted to their cognizance. Here follow a few Examples:

    1. In regard to evidence tendered, whether it shall or shall not be admitted.

    2. The evidence being received whether it shall be deemed sufficient to support the Plaintiff's demand.

    3. The evidence received, and being in the judgment of the Judge not sufficient to support the Plaintiff's demand, whether the Plaintiff shall have a verdict against him, or only suffer a nonsuit i.e. in the latter case have a right in the first instance, and without asking leave[?] of the Court (viz. the Court from whence the cause was sent to the Jury), to bring the cause to trial anew.

    4. Unless in case of a degree of determination on the part of the Jury, such as in any other case than that of personal interest, ardent partiality, or strong prejudice is never probable and scarce ever realized, the Judge finds it in his power to take the substance of the question out of the hands of the Jury by making the verdict special, or stating some question of law. +

    5. When, as is most commonly the case, the plaintiff's declaration contains divers Counts, (i.e. the instrument of demand contains a demand the same in effect, but shaped in divers ways, the question on which Count or Counts the verdict shall be taken is a question settled in some way or other among the lawyers, not being in fact submitted to the decision of the Jury: a practice in one sense not without reason: since worded as these Counts are, replete with falshood, patent or latent, it would be in vain for the best informed of the Jurymen to attempt to understand them.

    + See §.│ │
  • Title: [29 Feb y 1807 Judicial Justice]
    Description: 29 Feb y 1807

    Judicial Justice

    Letter V

    I. Shapes

    The articles of misdecision and maintenance of uniformity require ulterior consideration.

    In regard to misdecision, the mischief of it differs materially, whatever be the cause or object of demand according to the nature of the subject of decision - i.e. according as it is the matter of law or the matter of fact: the mischief, and thereupon accordingly the remedy: the mischief viz. in respect of the remedy which it admitts of in the one case and not in the other.

    Where the subject of decision is the point or question of fact merely, in this case be the state of the law ever so uncertain and uncognoscible, it admitts of an ever changing Judge or set of Judges: such for example as an English Jury. In this case, the mischief of misdecision is comparatively light: the suffering extends, not beyond the individual, or at most beyond the circle of the connexions of the individual, to whose prejudice the misdecision operates. On such a day, in such or such a cause, a Jury gave their verdict. The verdict was unjust, and in that sort of case which exists to no small extent, in which a new trial could not be granted. So much the worse: but however there ends the mischief: at any rate so far as that set of changeable judges is concerned: for the same set will not meet a second time.
  • Title: [10 March 1807 Judicial Justice]
    Description: 10 March 1807

    Judicial Justice

    Letter V

    I. Shapes

    1. Misdecision

    When the misdecision is regarded as having for its subject the matter of fact, the correction is administered, under the previous allowance indeed if a set of permanent Judges (those of the Court in which the action was brought), but immediately by another Jury: and, in this instance as in the former one, the decision by which the supposed correction is administered is called a verdict - a second verdict: the Trial on the occasion of which this fresh verdict is pronounced is called a New Trial: and the application, the prayer of which being addressed as above to the Court, that such New Trial may take place, is called a Motion for a New Trial.