19 May 1808

I. Reasons

Ch.V. Advantages

§.│ │ Jury Trial extended

11. In these the ordinary Courts Jury trial was employed: in the extraordinary ones it was not employed. But from this difference in actual practice, let it not be supposed that any corresponding difference in point of reason and utility had place, or by the common superordinate of these Judges of all classes had ever been supposed to have place. {Comprehensiveness of design - unity of plan - consistency[?] - every thing of this sort has at all times been unknown to English law.} By Common Law Judges Jury trial was employed, because they had been bred up under it, were accustomed to it, and knew not how to go on without it. By Roman Law, called Civil law Judges of the above three classes Jury trial was not employed because they had not been bred up under it, were not accustomed to it, and did not wish for any such clog[?].

12. Had it been the fortune of these Civilians, or Civil lawyers as they are called, to have been bred up in the English Common Law Courts, the causes now termed Equity causes, Ecclesiastical causes and Admiralty causes would have been subjected to the cognizance of a Jury (with perhaps an exception to a certain extent in the case of the Admiralty causes).

Had it been the fortune of the Common Law Judge to have been bred up under judicatories judging Roman Law practice, the sorts of causes now tried by Juries would, in England, have been tried by Judges without Juries, in England as in Scotland, and almost every where else.