13 Feb y 1807

Letter IV

Resolut. 6.7.8.9

Juries

Lawyers Re fondness

1. A property /feature/ which learned gentlemen fail to make the most of, to their praise as if it belonged exclusively to Jury trial, is the mode of collecting the evidence - thence the shape in which it is collected - vivâ voce examination, with cross-examination, questions arising out of the answers and so forth. This, however is not among the properties /perfections/ which contribute to their predilection for this modification of technical, to the exclusion of natural, procedure.

The proof is very /altogether/ simple. Natural procedure employs /carries the use of/ this mode of collecting evidence to the highest possible pitch: (employs it wheresoever it is practicable.) They avoid the employment of it to the utmost of their power. /By them the use is avoided by them on every occasion on which it has been possible to avoid it./

So far as they have found themselves at liberty, the very worst shape into which it is possible to put any thing that was ever called by the name of evidence - the very worst shape and the most opposite to Jury-trial evidence that could be found I speak of affidavit evidence - is the shape and the only shape in which they ever suffer it to become[?] before them. In this they all agree /the whole body of learning agrees/, Common Law and Equity, Spiritual and Temporal, and Spiritual, territorial and Maritime.

But Equity, Spiritual law and Admiralty, being all of them, children of Roman law, have found themselves chained /tied/ down for the most part by their Mothers will, somewhat to the use of a less bad mode - viz: depositions: examinations vivâ voce by a Judge or Judges ad hoc, taken in secret, and with doors shut against parties and their lawyers, and consequently without the benefit of cross-examination.

The chancellor, sitting in Westminster Hall, sitting or Judge in Equity, submitts to /wears/ the chains - these Roman chains - imposed[?] by Equity. But no sooner has the Couch[?] [...?] with Jury trial for the motto of it set him down [...?] in Lincolns Inn Hall sitting to hear to[?] causes of Bankruptcy coming in the form of Petitions, than off go the Roman chains, and he finds himself as much at his ease as any of his learned Colleagues reposing himself in the lap of affidavit evidence

The countenance of a due[?] is not more horrible to a spendthrift, than that of a suitor is to lawyer of every sort and size, the Attorney alone excepted