date

18 May 1808 I. Reasons Ch.V
18 May 1808

I. Reasons

Ch.V. Advantages

§.9./8./ Arbitrary power ousted

 Here or further on[?]

§.9./8./ Advantage the 8 th Reduction in the arbitrary power of the Judge.

1. Another of the effects the title of which to the character of an advantageous one would be apt to appear questionable, if the same lay in Westminster Hall, if the Courts in question were the English Courts.

No power to which the so rendering an epithet as arbitrary is applicable it would be said ever is exercised or is ever in any danger of being exercised in any of those seats of pure and unspoiled justice: and where there is neither disease nor danger of disease, there is no use for remedy.

2. In Scotland, supposing the result likely to ensue, nothing can be more evident than that its title to the character of an advantageous one will hardly find a pen or a lawyer[?] to question it. The opinion pronounced on this effect by the Faculty of Advocates was unanimous.

3. Under Jury-trial, as conducted in England, the power of the Jury, and the independency of these unlearned and everchanging Judges upon the learned and permanent Judges their Directors, has been stated as having in a much greater degree apparent than real substance.

4. If in consequence of this dependency, the ends of justice are attained in a greater degree than they would be in the opposite case, if on these terms the law receives its execution and effect more compleatly at all points and constantly than it would in the other case, the arbitrariness of the power of the Judge is no inconvenience - any restraint put upon it would be no advantage. On this head how the matter stands in point of fact every one to whom it belongs to judge will give his judgment, for himself.
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  • Title: [18 May 1808 I. Reasons Ch.V]
    Description: 18 May 1808

    I. Reasons

    Ch.V. Advantage

    §.9./8./ Arbitrary power ousted

    Under the English system of Jury trial whether, in virtue and by means of such influence as they possess in regard to the fate of the cause on which the Jury pronounces their decision given as their verdict, or as[?] would have to pronounce such decision if the cause attained that length, any deterrent to justice in any shape does actually take place is a question the examination of which belongs not to this place.

    What does belong, to this place, and what is here submitted, is - that in the system of procedure in which Jury trial is an ingredient, a considerable number of features are to be seen, and have been already indicated, any one of which, would, if the same system were applied to Scotland, be sufficient to render the power of the Judge in a high degree arbitrary, reducing that of the Jury to little more than an empty shew: - but that under the proposed system no one of these features would have place. These are:

    1. The rule of action in no more settled state than that of unwritten law - Correspondent advantage - Conversion of the rule of action out of the state of unwritten to that of written law.

    2. The question of law not as when clearly distinguished from that of fact - by that means both questions taken out of the hands of the Jury by the Judges at pleasure - Correspondent advantage.

    3.

    4. On the principle of nullification, a principle which of itself is sufficient to put into the power of the Judge, more particularly to the prejudice of the plff's side of the cause it takes the fate of the cause compleatly out of the hands of the Jury, and at any time, forespeak[?] the plaintiffs demand, on grounds that have no sort of, connection with the justice of it. Correspondent advantage by means of Exclusion of the principle of nullification.

    5. On the principle of fictions another principle, which, as often as it be[?] set to work, the Judge has put it in his own power to do whatsoever he pleased.
  • Title: [26 Jan y 1808 Codification - Jury]
    Description: 26 Jan y 1808

    Codification - Jury Trial

    Jury Trial upon cutting

    Juries judges of law

    Not that in any case the decision of a Jury whether in fact or in law should be final and [...?] and not in any sort of case. For [...?] is the sort of case in which misdecision ought to be without remedy.

    But o prevent them from pronouncing a decision is one thing; to protect from reversal and modification a decision when pronounced by them, is another.

    Protecting the decision of a Jury from review /against revision/ is in effect but to strengthen /give strength/ to arbitrary power not only in the Jury, but in the Judge: for under the veils of delusion so strictly spread by English jurisprudence, the power ascribed to the Jury is in ordinary cases[?] exercised by the Judge. When, as in ordinary cases he may, when by [...?] in misrepresentation he [...?] a verdict to his mind, the decision thus protected, the decision thus rendered irreversible and unchangeable is in effect the decision not of the Jury but of the Judge.
  • Title: [19 May 1808 I. Reasons Ch.V]
    Description: 19 May 1808

    I. Reasons

    Ch.V. Advantages

    §.│ │ Jury Trial extended

    11. In these the ordinary Courts Jury trial was employed: in the extraordinary ones it was not employed. But from this difference in actual practice, let it not be supposed that any corresponding difference in point of reason and utility had place, or by the common superordinate of these Judges of all classes had ever been supposed to have place. {Comprehensiveness of design - unity of plan - consistency[?] - every thing of this sort has at all times been unknown to English law.} By Common Law Judges Jury trial was employed, because they had been bred up under it, were accustomed to it, and knew not how to go on without it. By Roman Law, called Civil law Judges of the above three classes Jury trial was not employed because they had not been bred up under it, were not accustomed to it, and did not wish for any such clog[?].

    12. Had it been the fortune of these Civilians, or Civil lawyers as they are called, to have been bred up in the English Common Law Courts, the causes now termed Equity causes, Ecclesiastical causes and Admiralty causes would have been subjected to the cognizance of a Jury (with perhaps an exception to a certain extent in the case of the Admiralty causes).

    Had it been the fortune of the Common Law Judge to have been bred up under judicatories judging Roman Law practice, the sorts of causes now tried by Juries would, in England, have been tried by Judges without Juries, in England as in Scotland, and almost every where else.