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23 Dec r 1806
Scotch Reform To L d Grenville
Resolut.6
Jury
After all that has been said does your Lordship suppose that I would discard Juries /Jury Trial/, or that my attachment to it is less strenuous than if I had taken for a [...?] to my Couch? My Lord, the misconception, though not altogether /certainly not/ an unnatural one, would be a compleat one. Not that I know of my merit or demerit in seeing one scheme better adapted than another to the ends of justice: but so it happens, there for /by/ not being indiscriminating it is not the less /already and sincere/ firmly rooted. Applied to cases of the most important if not the largest description, it appears to me / in my view of it/ that the compilation, which is as much as to say every thing valuable to us, depends upon it. Applied to /cases not/ non-criminal, if applied in certain terms and conditions, it appears to me /in my view of it/ (I am speaking now of Scotland) it may be applied with great and indisputable advantage.
Details, I dare not here presume to trouble your Lordship with: time and space do not admitt of it but in the way of outline, I will take the liberty of stating to your Lordship what these terms are.
But on this occasion I find myself under a necessity /compelled/ of begging to draw your Lordship's attention once more to the system of Natural Procedure.
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Title: [094-136] 23 Dec r 1806 Scotch]Description: 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: [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.
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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 But the mode of collecting evidence employed in Trial by Jury surely you will not dispute its matchless excellence - Not I, indeed, my Lord: no man more forward to proclaim it. It is for Lord Erskine to dispute it, who since he has been Lord Erskine /Chancellor/ has taken his final leave of it, and who does not do much as cause[?] it to be and in one cause out of twenty. It is for Lord Elenborough to dispute it, who except when the presence of a Jury renders it impossible to exclude it, never employs it in any instance whatsoever. Should they reply, as doubtless if questioned they would reply that what they do is what they stand bound to do by the practice of their predecessors, the individuals will /may/ stand exculpated by the observation, but the practice will not be bettered by it. But a Jury, my Lord? - what connection is there between the authority given to /use made of/ a tribunal composed of a set of ephemerous[?] /impermanent/ Judges, subject to veneration, and the use of this best[?] mode of collecting evidence? Non but what is purely accident, easily separable, and in such an /a mass/ of instances in number extent and importance such as your Lordship has already seen, actually separated. In fine /a word/ what is the mode of evidence thus employed, but the natural, the domestic mode, preserved or restored? with this difference that in family judicature as well as every where else where truth is the real object, no testimony is excluded, whereas in Jury trial, under a chaos of contradiction composed of exclusions and admissions the light of evidence being shut out, misdecision and failure of justice are thus necessitated in a thousand instances, by the interested, and perpetually self-contradicting sophistry of lawyers.
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