date

094-136] 23 Dec r 1806 Scotch
094-136]

23 Dec r 1806

Scotch Reform To L d Grenville

Resolut. 6

Jury

Such being the properties of the proposed trial by Jury I will now beg leave to state to your Lordship, why Your Lordship has heard so much for it - nothing at all against it - why the members of the Scotch Bar, as well as those brethren of the English Bar - are so fond of it. It will then rest with Your Lordship to say /judge/ whether the good peoples of Scotland who are in question - to say nothing of their fellow subjects in England who are not in question -have the same reason to be fond of it.

In England at Common Law a hearing with a Jury stands in

lieu of a hearing without a Jury: and thus /it is then/ though a Jury cause consumes some hundreds of hours as much time as the same individual cause would in a Court of Conscience, it consumes less time than it would in Scotland. But in Scotland, as proposed, at least for any thing that appears in the Resolutions, every hearing with a Jury will be to much superadded to a hearing without a Jury: a cause /suit/ in the English stile, or at least the only useful part of it, superadded to a suit in the Scotch stile. in a word Trial of an Issue[?] sent out of any one of the three Chambers will be like /really[?]/ Trial of an Issue[?] sent out of an English Court of Equity. The learned combatants, after having /under favour[?] of an /the/ unbounded - however[?]/ exhausted their stock of ammunition in the shape of written eloquence the learned combatants will, have to renew the combat in the shape of the war of tongues, under a limited mendacity licence, the privilege denied to witnesses, extended /confined/ only to the representers and misrepresenters and suppliers of their evidence.
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  • Title: [Jan y 1807 Omitt or Postpone 5]
    Description: Jan y 1807

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    1 Proposition

    Letter IV

    Resolut. 6,7,8,9

    Jury

    Lawyers fond of Juries

    I have stated as plainly as was in my power the causes of my own attachment to the mode of Jury judicature: the causes of that attachment, and therein the limits set to it. I will now by your Lordship's indulgence which I state with equal plainness /simplicity/, the causes of that attachment which learned Lords and gentlemen are never tired of manufacturing[?] towards it.

    Thus it is, my Lord, that so far as learned Lords and gentlemen are concerned the causes of their attachment to this [...?] of English liberty, are comprizable[?] in the two words profit and ease: so far as these two agreeable circumstances or either of them accompany it, so far does their attachment /passion/ cleave to it: where both desert it, that is when[?] is rival made[?] possessed of the same charms presents itself, Jury trial shelf without any complaint on their part, is laid upon the shelf.

    The competition (your Lordship sees) is between Jury trial in the first instance, and Natural Procedure, with Jury trial, if necessary afterwards.

    I know[?] then[?] /First/ as to profit - Jury trial in the first instance, no suit without its profits: and these, as every body knows - not small ones. Natural Procedure in the first instnace, in a vast majority of the number of individual suits, no lawyer's profit at all, at least none for Advocates, then and there, the deman perhaps for the assistance of an Attorney given by a part of a day's attendance; but in the majority of individual instances, not even that.
  • Title: [[091-185] 29 Dec r 1806 Scotch]
    Description: [091-185]

    29 Dec r 1806

    Scotch Reform

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    Omissa

    3. Pleadings

     Add[?] Equity[?] mode of bringing to Issue without direction [?] viz: General [...?] by [...?].

    My Lord, I am inclined to flatter /[...?]/ myself Your Lordship will already have recognised the impossibility the Scotch Courts will be under of bringing [...?] to one Issue - in other words, that is, of employing a Jury in the trial of civil causes, without doing one or other of these things: viz:

    1. Hereby the Issue forwarded and directed in each individual instance by the Court, as in an English Court of Equity, when they send a cause /question/ to be [...?...?]: in which case the delay vexation and expence of English practice will be [...?] not substituted[?] to that /the already intolerable 2/ of the Scottish - not substituted.

    2. Importing the English form of pleading in globo , exactly as they stand at present: importing, /making up and for the swallow[?] acute clearsighted class of [...?]/ into a supremely well informed and sharp-sighted nation, a cargo of lumber which when taken from under the clouds of prejudice to which alone it stands indebted for not being universally recognised for what it is /country, a mass of nonsense in n immense [...?], without the sweetening of prejudice that in England makes it go down so glibly/, will b seen to be a compound of lies and nonsense and other surplusage, for absurdity and depravity /wickedness/ altogether without a parallel on the surface of the globe. My Lord I am as far from [...?] as I am from [...?] to see that moral and high-spirited, non-lawyers or even lawyers - submitt willingly o any such degradation /depravation/: and what I am quite as sure of is that Your Lordship neither has thought nor ever will think of forcing them to it. In Your Lordship's plan, had I any such [...?], I would begin with conquering them in the first instance.

    3. Copying and extending highest[?] might [...?] papers of particulars in [...?] side, with admission and demand in defend [...?].
  • Title: [23 Dec r 1806 Scotch Reform To L d]
    Description: 23 Dec r 1806

    Scotch Reform To L d Grenville

    Resolut.6

    Jury

    Trial by Jury is Trial with Lawyers: love[?] of Juries, love[?] of Jus.

    My Lord, with submission, the most unexceptionable part of the Resolution is the exception at the end of it: "except in such cases as it shall be found proper to except from this rule."

    My Lord, in the mouths of the learned adorers /amators// enamorator/ of Jury Trial, it has not been /in general at least/ my fortune to observe any exceptions made: neither in favour of these cases in which they might give it if they would /might have given it, but would not,/ nor in favour of them in which they could not give it, if they would ever [...?], excepting only what is excepted, viz: the privilege of paying them their fees for it, without having it.

    This latter class of cases, my Lord, is not a scanty one: Take for example, what, if the Newspaper is correct I see happened but t'other day: in one Court in the day light causes, all of them special[?] Jury causes, all sent off to arbitration - not one of them tried. Why not tried? - because in its own nature physically incapable of being tried - the Jury incapable of sitting to hear them out without separating, and so ceasing to be a Jury.

    Where a suit comes to be to a certain degree complex trying it as a suit /cause/ ought to be tried, or else trying it at all becomes physically impossible, /of this description for example are a considerable part of the causes which come before an English Court of Equity./ but I will not attempt to detain your Lordship on this subject any longer if the circumstances which may conspire to place a cause in this predicament I have given a synoptic /simultaneous[?]/ view in a Table.

    I won't try this cause: Do you think I will try such a cause as this? How often have I not heard this said, and said with propriety, by Lord Mansfield!