date

18 May 1808 I. Reasons Ch.V
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.
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    If the cases in which the nullification is pronounceable were clearly predetermined, as under written law, for example in the French Codes of procedure, especially criminal procedure, the mischief would be abundantly great, but it would not be exactly the sort of mischief here in question, that of an arbitrary power vested in the hands of the Judge.

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    3. Advantage the 3 d. The Jury released from their dependance [on] the Judge.

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    1. First check to arbitrary power - Conversion of the rule of action out of the state of unwritten into that of written law.

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