date

29 April 1808 §.14. I. Reasons
29 April 1808

§.14.

I. Reasons for the Work

§.14. Jury Trial improvable

§. │ │ By the simplicity and clearness thus given to the state of the question, Jury trial would to the extent of the application given to it in Scotland, be employed in a state nearer approaching to perfection than at present it is in England.

1. Whatsoever beneficial effects may be or be supposed to be attached, in fact, to Jury Trial as conducted in English practice, will be found referable either to the mode of procedure connected with it, or to the composition of the judicatory. Those which stand attached to the mode of procedure ought to be placed to that account, and not to that of the composition of the judicatory, unless in such instances, if any, in which the advantages attached to the mode of procedure, could not be given to it under a judicatory any otherwise composed.

2. If in Jury trial there be any beneficial points exclusively attached to the composition of the judicatory they can attach no otherwise than in proportion to the magnitude of the share which the Jury really possess and habitually exercise in the determination of the decision, the verdict as it is called, which passes under their name.
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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 April 1808 §.14. I. Reasons]
    Description: 29 April 1808

    §.14.

    I. Reasons for the Work

    §.14. Jury Trial improvable

    Under these circumstances, if under the dominion of prejudice, men could venture to give credit to their own observations and experience, it would be recognized, there that[?] in matters of a civil nature, Jury trial, whatsoever it might be made, is in fact rather an instrument of arbitrary power in the hands of the Judge than any thing else: the decision entered under their name being, by the Judge, left to them to form if such be his pleasure, or given to them ready formed if such be his pleasure. Thus it is that the decision as often as he is so minded becomes his in effect, without his being subject to that responsibility and exposed to that jealousy, which he would stand exposed to, if the decision were his in name.

    Under this cloak, the power thus possessed, let it for argument's sake be admitted, is very seldom abused. Be it so: but without the cloak, the instances of abuse would be still more rare.
  • Title: [11[?] May 1808 I. Reasons Ch]
    Description: 11[?] May 1808

    I. Reasons

    Ch.IV. Homologation necessary

    §.1.

    Ch. IV. The English system of pleading being inapplicable to Scotch Law, Jury Trial can not to any considerable extent §.1. or advantage [be] introduced into Scottish procedure, otherwise than by putting the body of the law into a written state, adapted to that purpose.

    1. In Scotland the thinking part of the people, not being satisfied with the existing system of procedure, wish for a different one: that other and better system they expect to find in that of which Jury trial forms a part.

    2. The advantages Scotch men look for in Jury trial seem to be as follows, 1. a judicatory in the composition of which an assembly of Judges not permanent but ever changing constitutes an indispensable part: 2. a mode of taking proof by which[?] that particular operation shall in point of time be reduced within that limited compass within which it is reduced by the practice in Jury trial: 3. for a basis to such limited mode of proof a system of pleading subjected in respect of number of words and length of time occupied by it to correspondent limitation: and, a similar correspondent limitation given to the length of the whole suit or cause of which the hearing that takes place before that judicatory constitutes the leading and characteristic part.

    3. Of these advantages, the three latter are in the nature of the case altogether independent of the composition of the judicatory: it is by accident only they have become connected with it: with still greater facility they might be had without it. Under a single Judge, and he a permanent one, the time occupied in taking proof might be subjected to exactly the same limitation: to the system of pleading the same length of paper and time might be allotted, or, in general, with much greater advantage in respect of the ends of justice a much less length, especially of time to the duration of the whole cause exactly the same length or in by far the greater number of causes individually taken much less than a hundredth part of it.