date

[094-470v] 24 Jan y 1807 A
[094-470v]

24 Jan y 1807

A +

Scotland being the scene of action, not England, permitt me to state to Your Lordship without reserve the use I would make of Juries /Trial by Jury in civil suits /cases/.

I would have all causes /questions of fact/ capable of being brought before this species of Tribunal in the second instance or degree: viz. in the way of Appeal, or (say) New Trial or Appeal: viz: at the instance of either side, for a decision pronounced, after enquiry conducted in the natural mode (still the wild, visionary, arbitrary, Turkish, natural trade!) as in the English Courts of Conscience, the Scottish Small-debt Courts and the civil cases submitted to the cognizance of Justices out of Sessions, on both sides of the Tweed.

I would have no cause ever brought before a Jury, neither of course, as in England, nor as proposed at the instance of a party, nor by order of the Court, in the first instance.

All in the way of Appeal, because in that way there is no sort of cause which is not capable of being submitted to the cognizance of a Jury, nor any sort of cause in which that institution is not capable of being rendered subservient to the aggregate of the ends of justice.

None in the first instance, because there are causes which, the appellation of the institution is physically impossible: others to which though unfortunately the application of it unfortunately is not physically impossible, yet it never is or can be applied without prejudice to the aggregate of the ends of justice.
Similar Items
  • Title: [094-279v] 24 Jan y 1807 C3]
    Description: 094-279v]

    24 Jan y 1807

    C3 Lett

    [...?]6.7.8.9. Juries

    There are some causes a great deal too short, too simple for Juries. I do not mean that the time they occupy /in/ at the trial that is in the collection of evidence is too short for the end[?] of judicature, but that the cause being capable of receiving its decision at the very first making (between the parties on which occasion the presence of a Jury could not be made to answer its useful purpose, the effect of submitting it to a Jury is the production of so much factitious delay, vexation and expence, without any other advantage in respect of security against misdecision, then what will be found to attach in a superior degree to the case [...?] it is only in the way of Appeal that the cause is refound[?] to this species of judicature.

    In this predicament stand the vast majority of causes: viz.: even of the causes that under the established systematical denial of justice actually taken place; much more of the bar /bars/ by which the great majority of the people are excluded from the protection of the law in civil cases were removed.

    That the causes thus circumstanced form a vast majority may be seen by an observation made /in the instance/ of the proportionable number of causes that come before /cognizable by/ the English Courts of Conscience, a number that altogether out of the reach of calculation: without rationing those which come under the cognizance of Justices of the Peace, sitting out of General Session - a multitude altogether out of the reach of calculation.

    ๏Œ Follow the proofs.
  • Title: [19 May 1808 I. Reasons Ch.V]
    Description: 19 May 1808

    I. Reasons

    Ch.V. Advantages

    ยง.โ”‚ โ”‚ Jury trial extended

    In a few instances (say an Admiralty cause) the Jury judicatory might not be so proper:- but in none could there be less demand for regular instruments of demand & defence.

    Various causes concurred in taking out of the jurisdiction of the ordinary, and placing under the jurisdiction of so many classes of extraordinary judicatories, so many different portions of the field of law: one of these dismembered compartments was gradually conquered by the Courts called Equity Courts: another by the Courts called Spiritual or Ecclesiastical Courts: another again by the Courts called Admiralty Courts.

    9. In the ordinary judicatories (the Common Law Courts) the question of fact was in all ordinary cases submitted to the cognizance of a Jury, and the system of procedure employed was consequently that in which the use of Jury trial is an essential feature.

    10. In no one of these extraordinary judicatories was the question of fact submitted to any such cognizance. In the instance of these several classes of judicatories the system of procedure was borrowed for the most part from that which had grown up under the Roman system of law, under which no such judicatory as that of which a Jury constitutes an essential part has place.
  • Title: [[094-469v] 24 Jan y 1807 Letter]
    Description: [094-469v]

    24 Jan y 1807

    Letter IV

    Resolut. 6.7.8.9.

    Juries

    By postponing /confining/ the use of Jury judicature to the case where it is called for by one or other party in the way of Appeal, from the decision of the permanent single Judge (say in Scotland the Sheriff Depute) all the use would be made of it that the most passionate admirer of this mode of judicature, having the ends of justice in detail before him, and applying human reason to the subject, could possible /well/ desire. He in whose disfavour a decision by the Judge has been pronounced, if he is dissatisfied with it, and chooses to have a Jury, he has one: if he is not dissatisfied, or if being dissatisfied, he does not wish for a Jury, why force him to have one? Lawyers excepted (for in civil cases trial by Jury, is of course /constantly//without any exception/ trial with lawyers) what mortal alive can be the better for it?

    Supposing Jury trial in the first instance to be adverse to the ends of justice in respect of delay, vexation and expence, is there common sense, and that in that /those/ respects trial by a permanent single Judge is more conducive to those ends, is there common sense in forcing a man to act as if he were dissatisfied with the decision of such single Judge, before he know what it is?