JB_082_344.xml

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.

JB_082_343.xml

Title: [19 May 1808 I. Reasons Ch.V]

Description: 19 May 1808

I. Reasons

Ch.V. Advantages

§.│ │ Jury trial extended

In a few instances (say an Admiralty cause) the Jury judicatory might not be so proper:- but in none could there be less demand for regular instruments of demand & defence.

Various causes concurred in taking out of the jurisdiction of the ordinary, and placing under the jurisdiction of so many classes of extraordinary judicatories, so many different portions of the field of law: one of these dismembered compartments was gradually conquered by the Courts called Equity Courts: another by the Courts called Spiritual or Ecclesiastical Courts: another again by the Courts called Admiralty Courts.

9. In the ordinary judicatories (the Common Law Courts) the question of fact was in all ordinary cases submitted to the cognizance of a Jury, and the system of procedure employed was consequently that in which the use of Jury trial is an essential feature.

10. In no one of these extraordinary judicatories was the question of fact submitted to any such cognizance. In the instance of these several classes of judicatories the system of procedure was borrowed for the most part from that which had grown up under the Roman system of law, under which no such judicatory as that of which a Jury constitutes an essential part has place.

JB_082_345.xml

Title: [19 May 1808 I. Reasons Ch.V]

Description: 19 May 1808

I. Reasons

Ch.V. Advantages

§.│ │ Jury Trial extended

1. In the Equity Courts, as in both the other classes of extraordinary Courts, the system of procedure not having been originally adapted to Jury trial, no such unlearned assembly of unlearned Judges is ever admitted into any of those Courts.

But though in the earlier ages Romanist Judges of the Equity Courts came at length to be taken from the practices[?] of the Common Law: and in that character having been familiarized with Jury trial, prejudice, which originally had been adverse to that mode of decision, now came over to that side.

To engraft Jury trial upon a preparatory course of procedure carried on in the form of Roman law was a task too troublesome to be undertaken by the Equity Judge. A course which was shorter and less troublesome (viz. that is to himself which of course was all that he would consider) was after fixing the terms of the issue (the question or proposition) destined to be thus decided - to send it for decision to some Common Law Court: such accordingly was the course pursued. (a)

Note

(a) The natural, the simple, the shortest course would have been to have got a Jury empanelled at once and so to have submitted the cause to their cognizance: and note[?], that the Chancellor, from whose Equity judicatory all the other Equity judicatories took their rise, was at the same time a Common Judge, as in name and potentiality he still continues, acting as such in concert with a Jury, and proceeding consequently according to that course of procedure. But in an Equity cause to proceed thus would have been to touch upon the jurisdiction and business of the Common Law Courts. To save himself from their opposition, and at the same time save himself some trouble, the course he took was to make an order upon his own suitors, compelling them to join in commencing and carrying on in some one of the Common Law Courts a suit from the beginning to the stage of Jury trial. To this expedient it was not in the nature of the case that his learned brethren of the Common Law Court or Courts should have any objection: and what rendered the whole business the more palatable to all parties on whom it depended, meaning here by parties Judges and other lawyers, was that for the entertainment of all these learned persons the suitors were compelled to join in telling a false story - a story about a wager: whereby countenance and encouragement was given to two vices, lying and gaining at the same time.