date

23 Dec r 1806 Scotch Reform To L d
23 Dec r 1806

Scotch Reform To L d Grenville

Resolut. 6

Jury

But these official, these permanent and stationery Judges have[?] contracted partialities. My Lord, I dare believe it, it is impossible to doubt of it. I see it more than asserted, I see it assumed, as far as decorum and prudence will permitt, by persons writing on the spot, acquainted with the ground, and writing to those who are. Even If not to day; it was the case yesterday, and will be the case tomorrow: it is the natural and in a manner necessary consequence of geographical /topographical/ circumstances: of the narrowess of the spot /ground/, which for men of a certain degree in the scale of rank and education, affords but one circle.

Here then is one great use /use/, and in civil causes /non-commercial/ which alone are here in question, I will venture to assist it, the only use of Juries. Individuals /Persons/ standing clear of partialities referable to the cause in hand, may in the instance of each individual cause be in general obtained, it is supposed, and in the main not without reason, by the expedients employed or employable in the case of Juries.
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  • Title: [23 Dec r 1806 Scotch Reform To L d]
    Description: 23 Dec r 1806

    Scotch Reform To L d Grenville

    Resolut.6

    Jury

    My Lord - I speak it with great submission - it seems to me true enough for a man to quarrel with a decision /Judgment/ when he knows what it is. In this observation, I find /behold/ one of the bases of the idea I have formed to myself of the proper, and only proper use capable of being made in causes not criminal, of the intervention of a Jury.

    Every where the Judge is liable to have his partialities: England to a certain degree; in Scotland for the reason already submitted to so much greater degree. Juries with proper care and management are capable of being cleared of partialities at least of all known ones, which is the circumstance of most importance.

    In the case of an Appeal therefore, I see /view/ the proper and only proper occasion in causes not criminal, for having recourse to Juries.

    But of this afterwards, when I come to submitt to your Lordship my proposed experimental Court of Natural Procedure.
  • Title: [26 Dec r 1806 Scotch Reform To L d]
    Description: 26 Dec r 1806

    Scotch Reform To L d Grenville

     [...?]? 5

    Resolut. 13

    Interloct: Unapplicable

    What is the jurisdiction if the House of Lords good for, what is any system of control in the judicial establishment in the upper regions good for, if it be not good against prohibitions in the lower? What are even Juries good for, on any other supposition than that of a perpetual probability of partialities among /on the part of/ Judges. Without any partiality, or at least without any partiality that can be traced, English Judges, the Judges of all the superior Courts have established themselves in the daily practice /habit/ of acting in point blank contradiction /[...?]/ to the plain and positive directions of Acts of Parliament /peculiarly declared and [...?] apprehendible will of the legislature/. the whole judicial process[?], acting under the same roof in strict and /as well as/ habitual opposition to the legislature. On the part of the Judges of the Court of Session, partialities have all along been not only in theory /+as I have already had occasion to observe/ probable, but in fact matters of notoriety and general complaint. Examples /Instances/ in which they have been in the habit of acting in contrariety to their own [...?] regulations, are abundant: examples /instances //cases/ of their acting in equal contrariety to Acts of Parliament are not without examples. /+/ Under the influence of those partialities is it natural that any difficulties should be found, of eluding /in the/ the controuling[?] power of the branch of the legislature when under favour of the distraction here proposed to be set up it will be in their power to do so upon such easy terms?
  • Title: [26 Dec r 1806 Scotch Reform To L d]
    Description: 26 Dec r 1806

    Scotch Reform To L d Grenville 7

    Resolut. 13

    Interlocution Unapplicable

    And do you then entertain Sir[?] /for[?], really see any reason for entertaining/, any such suspension[?] as that of a design /wish/ on the part of the framer of the claims[?] to enable the local judicature to work itself into an independency of /as against/ the authority of Parliament?

    Not I indeed in good truth, my Lord, not the smallest: nothing could be more out of nature /nor any thing like/. Viewed in the [...?] appeals are subservient /conducive/ not adverse and in the [...?] of the fee gathering system to what, I know all [...?] found it impossible to avoid seeing[?] to be the ends of judicature.

    It is only on this and that individual occasion, when particular partialities or other similar [...?] have claimed to come in and operate, it is only in this way that I see any danger of any purposed[?] framed upon the authority of Parliament.

    But it is the effect only /alone/, and not the design that is worth thinking of: and whether under the clause in question the effect I mean that of a gradual subscription[?] of the practice of the local /subordinate/ Court from under the controul of the superordinate be not a probable result, is what I beg leave to submitt to your Lordships judgment as a question /point/ not unworthy of regard.