093-042.xml

Title: [13 Feb y 1807 Letter IV Resolut]

Description: 13 Feb y 1807

Letter IV

Resolut. 6.7.8.9

Juries

Lawyers Re fondness

1. A property /feature/ which learned gentlemen fail to make the most of, to their praise as if it belonged exclusively to Jury trial, is the mode of collecting the evidence - thence the shape in which it is collected - vivâ voce examination, with cross-examination, questions arising out of the answers and so forth. This, however is not among the properties /perfections/ which contribute to their predilection for this modification of technical, to the exclusion of natural, procedure.

The proof is very /altogether/ simple. Natural procedure employs /carries the use of/ this mode of collecting evidence to the highest possible pitch: (employs it wheresoever it is practicable.) They avoid the employment of it to the utmost of their power. /By them the use is avoided by them on every occasion on which it has been possible to avoid it./

So far as they have found themselves at liberty, the very worst shape into which it is possible to put any thing that was ever called by the name of evidence - the very worst shape and the most opposite to Jury-trial evidence that could be found I speak of affidavit evidence - is the shape and the only shape in which they ever suffer it to become[?] before them. In this they all agree /the whole body of learning agrees/, Common Law and Equity, Spiritual and Temporal, and Spiritual, territorial and Maritime.

But Equity, Spiritual law and Admiralty, being all of them, children of Roman law, have found themselves chained /tied/ down for the most part by their Mothers will, somewhat to the use of a less bad mode - viz: depositions: examinations vivâ voce by a Judge or Judges ad hoc, taken in secret, and with doors shut against parties and their lawyers, and consequently without the benefit of cross-examination.

The chancellor, sitting in Westminster Hall, sitting or Judge in Equity, submitts to /wears/ the chains - these Roman chains - imposed[?] by Equity. But no sooner has the Couch[?] [...?] with Jury trial for the motto of it set him down [...?] in Lincolns Inn Hall sitting to hear to[?] causes of Bankruptcy coming in the form of Petitions, than off go the Roman chains, and he finds himself as much at his ease as any of his learned Colleagues reposing himself in the lap of affidavit evidence

The countenance of a due[?] is not more horrible to a spendthrift, than that of a suitor is to lawyer of every sort and size, the Attorney alone excepted

JB_082_347.xml

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

Description: 19 May 1808

I. Reasons

Ch.V. Advantages

§.│ │ Jury Trial extended

2. So again in the case of the Ecclesiastical Courts.

In the nature of the causes subjected to the jurisdiction of these judicatories there is nothing that should render Jury-trial less applicable than in ordinary causes any more than in the extraordinary sorts of causes called Equity causes.

A short[?] proof is that in divers instances, to the self-same question - to the same individual question of fact it may happen to be tried in either or both or may even go so far as to say in all three of these different judicatories: with a Jury in one case without a Jury in another.

Question about a Will - genuine or not genuine - free or obtained by compulsion - these and other questions that might be named are decided upon in a Common Law Court - in an Ecclesiastical Court - or in an Equity Court - in any one - in any two or in all three - and either with or without a jury according to the property in dispute - nor yet according to the value - nor yet with any thing like uniformity according to the nature of the subject matter - whether a thing immoveable or an assemblage of things moveable - but in the case of a thing immoveable, according to the technical and incomprehensible nature of the species of interest (freehold or leasehold for years) which the last possessor had in it.

JB_047_070.xml

Title: [10 July 1806 Evidence Exclusion]

Description: 10 July 1806

Evidence

Exclusion

 Juror[?] whose to reject them? In [...?] Causes? or in Exclusion Proper? or in Securities

Note ( )

On an indictment when the defendant being guilty, has a witness ready to answer for him, a convict is held to oath what use shall be made of the evidence. If the story which the witness is /has/ to tell will not bear scrutiny, the defendant does not stand trial, but suffers judgement to go against him by default: in this case upon his coming up /in person in [...?...?], before all the Judges of the Court,/ to receive judgement, there it is that the /in mitigation of punishment/ evidence is brought forward in the shape of affidavit evidence. If the witness and his story, true or false, will, it is thought bear scrutiny, then it is that the defendant stands trial, and at the trial the witness is produced, to deliver his evidence vivâ voce /under the check of/ and cross-examination. In this latter case the advocate fails not to draw the attention of the Judge and Jury to the choice thus[?] made by his client, holding it up to view the character of a sort of presumption or circumstantial evidence declaratory of his sincerity and innocence: the learned Judge sitting still and hearing with the most /never failing/ undisturbed composure, an experimental proof, demonstrating that the only form in which he and his learned[?] position ever suffers themselves to receive evidence, is a form so rich in perjury, so ill adapted to the development of the truth of the case, in all contested questions as to be abundantly unfit for use.

At the very last sitting on the Court of the King's Bench (sittings after trinity term[?] 1806) two days immediately following produced so many instances of the choice thus made, the reason given for it, and the argument built upon it as above. One was the case of R. v. Barrat A prosecution for the defendant[?] for an assault at the prosecution of [...?] 3 July 1806: the other the case of R. v. France[?], also for an assault, at the prosecution of Norton; 2nd July 1806: Gibbs for the defendant.