11 May 1808

I. Reasons

Ch.IV. Homologation necessary

§.1.

4. To many persons however, the composition of the Judicatory would probably appear an indispensable feature: { and, be this as it may, certain it is, that under a judicatory so composed, and by the instrumentality of a system of pleading without which that judicatory is never brought into action, by far the most numerous body of causes, (setting aside those which are determined by the undilatory, unexpensive and unvexatious system of procedure in use in the Small Debt Courts, and which seem some how to be generally overlooked) several operations of pleading, and taking proof, and by that means the entire quantity of time occupied by the whole cause are brought within the limits or compass abovementioned.

A state of things with which no person in whose eyes, on whatever of these four accounts, Jury trial appears desirable would, it is supposed, be satisfied in that the occasions on which it shall be employed and the points on which the Jury shall have to pronounce and in relation to which proof shall be adduced, shall depend in each case upon the pleasure of the Judge.

Under Jury trail as performed in England, since neither of these points do depend upon the pleasure of any Judge: the propositions on which the judicatory has to decide, {the mode of collecting the evidence and the length of time occupied in the operation} are already predetermined and settled. It requires no Judge to adjust these propositions: it is not in the power of any Judge to prevent them from being brought upon the carpet before that judicatory, and made the subject of proof delivered.