JB_082_345.xml

Title: [19 May 1808 I. Reasons Ch.V]

Description: 19 May 1808

I. Reasons

Ch.V. Advantages

§.│ │ Jury Trial extended

1. In the Equity Courts, as in both the other classes of extraordinary Courts, the system of procedure not having been originally adapted to Jury trial, no such unlearned assembly of unlearned Judges is ever admitted into any of those Courts.

But though in the earlier ages Romanist Judges of the Equity Courts came at length to be taken from the practices[?] of the Common Law: and in that character having been familiarized with Jury trial, prejudice, which originally had been adverse to that mode of decision, now came over to that side.

To engraft Jury trial upon a preparatory course of procedure carried on in the form of Roman law was a task too troublesome to be undertaken by the Equity Judge. A course which was shorter and less troublesome (viz. that is to himself which of course was all that he would consider) was after fixing the terms of the issue (the question or proposition) destined to be thus decided - to send it for decision to some Common Law Court: such accordingly was the course pursued. (a)

Note

(a) The natural, the simple, the shortest course would have been to have got a Jury empanelled at once and so to have submitted the cause to their cognizance: and note[?], that the Chancellor, from whose Equity judicatory all the other Equity judicatories took their rise, was at the same time a Common Judge, as in name and potentiality he still continues, acting as such in concert with a Jury, and proceeding consequently according to that course of procedure. But in an Equity cause to proceed thus would have been to touch upon the jurisdiction and business of the Common Law Courts. To save himself from their opposition, and at the same time save himself some trouble, the course he took was to make an order upon his own suitors, compelling them to join in commencing and carrying on in some one of the Common Law Courts a suit from the beginning to the stage of Jury trial. To this expedient it was not in the nature of the case that his learned brethren of the Common Law Court or Courts should have any objection: and what rendered the whole business the more palatable to all parties on whom it depended, meaning here by parties Judges and other lawyers, was that for the entertainment of all these learned persons the suitors were compelled to join in telling a false story - a story about a wager: whereby countenance and encouragement was given to two vices, lying and gaining at the same time.

JB_097_149_001.xml

Title: [27 Aug 1804 18 2 nd. 1]

Description: 27 Aug 1804 18

2 nd.

1

Jurisprudence

Sometimes a precetent

is so strictly followed, that a particular judgment founded

upon special circumstances, gives rise to a general rule.

2

III 433.

Falshood encouraged

The suggestion .... of every bill, to give jurisdiction

to the courts of equity.... is, that the complainant hath no

remedy at the common law. III 434.

3

. Nr land a Court of Justice

The rules of

property rules, of evidence, & rules of

interpretation in both courts [of law & equity] are, or

should be, exactly the same: both ought to adopt the best, or must

cease to be courts of justice.

4

III 434.

Party

The deft's counsel [in a suit in equity] ...

may not read any part of his answer. III 451.

On a trial at law if the plff reads any part of the

deft's answer, he must read the whole of it, for by reading

any of it he

shews a reliance on the truth of the deft's testimony,

& makes the whole of his answer evidence.

III 451 note .

5

Issue-trying

As no jury can be sumoned to attend this

c t, the fact usually directed to be tried

at the bar of the c t of k. b. or at the

assises upon a f eigned issue. For

(in order to bring it there, & have the point in

dispute, & that only, put in issue) an action is

fe igned to be brought, wherein the

pretended plff declares, that he laid a wager of £5 with the

deft, that A was heir at law to B; & then avers that

he is so; & brings his action for the £5. The deft allows

the wager, but avers that A is not the heir to B ; &

thereupon that issue is joined which is directed out of chancery

to be tried: & the verdict of the jurors at law

determines the fact in the c t of equity.

These feigned issues seem borrowed from the

sponsio judicialis of the Romans:

& are also frequently used in the courts of law, by consent

of the parties, to determine some disputed right without the

formality of pleading, & thereby to save much time

& expence in the decision of a cause . +

and expence of Special-Pleading confessed .

III 452.

6 —

Crime - Mischief misconceived

If I obtain a field from another man, to which the

law has given him a right, this is a civil injury, & not a

crime; for here only the right of an individual is concerned,

& it is immaterial to the public which of us is in

possession

of

the

land: but treason, murder, & robbery, are properly ranked

among crimes; since besides the injury done to individuals,

they strike at the very being of society; which cannot possibly

subsist, where actions of this sort are suffered to escape

with impunity. IV 5.

7

Crime — Mischief misunderstood

Murder is an injury to the life of an individual; but the law of

society considers principally the loss which the loss which

the state sustains by being deprived of a member, & the

pernicious example thereby set for others to do the like.

8

IV 6.

Law of Nature

It is clear, that the right of punishing crimes

against the law of nature, as murder & the like, is in a

state of mere nature vested in every individual. For it must

be vested in somebody; otherwise the laws of nature would be

vain & fruitless, if none were empowered to put them in

execution: & if that power is vested in any one, it must also be vested in all mankind ; since all are by nature

equal ...... In a state of society this right is

transferred from individuals to the sovereign power.

8

IV 7, 8.

Crime Mischief misconceived

If any accidental mischief happens to follow from

the performance of a l awful act the party

stands excused from all guilt; but if a man be doing any thing un lawful, & a consequence ensues

which he did not foresee or intend, as the death of a man &

the like , his want of foresight shall be no excuse; for being

guilty of one offence, in doing antecedently what is in itself

unlawful, he is criminally guilty of whatever consequence may follow

the first misbehaviour. IV 27.

JB_094_136.xml

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.