date

23 Dec r 1806 Scotch Reform To L d
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 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.
  • Title: [23 Dec r 1806 Scotch Reform To L d]
    Description: 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.
  • 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!