29 July 1806

Scotch Reform

No Jury at first

Appeal to Jury

What distinguishes Jurymen from Judges (I mean permanent Judges I say for shortness Judges for Jurymen are Judges) is that Jurymen are not used to the business and Judges are. In point of education Jurymen when not compleatly unqualified, are very indifferently qualified in comparison of Judges. Security against excepted partiality in respect of no one qualification can you ever expect a Juryman to be equal to a Judge. But in ordinary cases the very timber[?] in which they are heaped together is itself a most inconvenient obstacle to good judicature: and an obstacle the force of which even in Judges.

In short there is but one description of cases though that a most important one, in which Jurors are any thing better than a nuisance and that is where Judges [...?] to the are not fit to be trusted. These cases are not altogether wanting but happily the extent of them is but /comparatively/ small. They may be tolerably well included in this description cases where there is or is apt to be a conflict of interests or affections between government and people or between the lower and the higher orders. Political libels and cases of Treason and Sedition afford the principal examples. Over and over again Judges would have destroyed the constitution and with it the liberty of the people had it not been for Juries. I am unable to conceive a probable state of things in which they would not. If a libel I know no other definition I mean under existing law than that of a writing disagreable to those who have to judge of it.