date

Evidence 1 July 1805 Introd
Evidence

1 July 1805

Introd

Ch Regular useless

. Jury

In /civil/ causes called civil under the existing system it continually happens that the At present the operations /inquiry/ that should have been compleated in one sitting, requires two or more constituting in effect so many distinct and distinct causes, one or other party having been unprepared and in some way or other taken by surprise. Whence this surprise? For want want of those previous explanations which in the summary mode could not but have taken place, taken place at the very first meeting.

Trial by Jury is unavoidably encumbered with an expense from which summary procedure is free. The Jury might in all instances as already they do in most instances, be made to give their expense and labour gratis. But by an arrangement of this sort the burthen so far from being annihilated is increased. It is [...?] /made to pass secretly and severely/ upon a few instead of being laid as by equal taxation it would be laid equally upon the whole community, and thus rendered nearly imperceptible.

At any rate upon the plan here proposed, the burthen of Jury service, wheresoever is reduced to the least quantity - to which being so laid respectively, it is in its nature to be reduced.

From the [...?] number of O[?] number /so frequently laid upon the/ twelve, and the almost constant employment of this number for definitive trials for all trials but the useless preparatory one before the Grand Jury, one would think there were some unequal virtue in the number. Were the spell ever to be dissolved, that, in many instances at least, it might then appear, for every real purpose of justice, a number considerably less inferior might serve.
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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.

    The collection of the evidence frequently by the investigation of a thread of evidence, is the business of these preparatory examinations which are taken, previous to the trial for a felony /trials for [...?]/ the trial in case[?] of felony. To the definitive inquiry called a Trial a course of preparatory examination such as those, you have all the oral inquiry that is necessary, and more than is ever actually employed, in non-penal cases.

    But the two inquiries, the definitive and preparatory thus /just/ described, the two inquiries put together, amount to no more than is done, effect no more than is affected by the single and simple inquiry carried on in which /which comprises /constitutes/ and with the addition of judgement and execution, exhausts/ Summary Procedure.
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    Ch. Regular Procedure - the greatest part worse than useless.

    Taken as a standard and as a model, the system of summary procedure, with or without the addition of a part of the penal branch regular procedure, will serve for the /a not unuseful/ diversion and approbation of the main body of the regular system as applied to non-penal causes. The useless part of the technical system of procedure is equal to the difference between that and the summary.

    The business of the Common Law Courts may be distinguished /divided/ in the first instance into three great masses; -

    1. The business done in the Offices by Attorneys.

    2. The business done in Courts in Term time, upon Motions made by Advocates.

    3. The business done at Trials: of in Town Causes partly at the metropolis in Westminster Hall and the London Guild hall, so the house is in both instances at this [...?]: in Country Causes, in /at the home of/ the several Circuits, in the several Assize Towns.

    Of those three masses /branches/ the third is composed in toto of real indispensable business.

    The two proceeding ones may with little exception be set down to the account of made business, or sham-business.

    Of the business included in the first branch has nothing that corresponds to it in summary procedure. Yet has one thing ever been found to object to Summary Procedure? Of all the several ends of justice, is there a single one that is not much more effectively [...?] /fulfilled/ and attained by Summary than by regular? What then was the real design and intention of that branch of the business? We have seen already. To make business and profit immediately for subordinate officers and Attorneys: ultimately profit with little or no business for Judges: not to speak of the casual profit proposed for Advocates.
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    By the previous intervention of the operations /inquiry conducted on the play/ of summary procedure, Jury Trial might itself be rendered in a prodigious /no small/ degree more subservient /better adapted/ than it is at present to the purpose of justice.

    All facts about which there is no dispute, of which there are sometimes many in a cause, would of course be set down as proved: of so much of the inquiry as concerned those /all such/ facts the inquiry before the Jury would thus be disembarrassed.

    Cases will sometimes happen which afford a number of facts which being either altogether unconnected or at least easily separable from each other without inconvenience, would compose give birth to a mass of evidence too large to be compressed into the compless of a single hearing. Under the existing order of things a case of this description is either by one means or other withdrawn altogether from the cognisance of a Jury, or if tried by a Jury badly tried, the Jury not having time so much as to hear all the evidence, much less digest it in their minds.