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.