29 April 1808

§.14.

I. Reasons for the Work

§.14. Jury Trial improvable

3. But if the truth may be spoken, and if facts be regarded rather than the colour put upon them, excepting where damages are given the adjustment of the quantum of the damages, it is but seldom that in causes of a civil nature the mind of the Jury is the real source of the verdict entered under their name. Among the points settled in their presence, and to appearance under their authority, many, and those of essential importance, are not in fact submitted to their cognizance. Here follow a few Examples:

1. In regard to evidence tendered, whether it shall or shall not be admitted.

2. The evidence being received whether it shall be deemed sufficient to support the Plaintiff's demand.

3. The evidence received, and being in the judgment of the Judge not sufficient to support the Plaintiff's demand, whether the Plaintiff shall have a verdict against him, or only suffer a nonsuit i.e. in the latter case have a right in the first instance, and without asking leave[?] of the Court (viz. the Court from whence the cause was sent to the Jury), to bring the cause to trial anew.

4. Unless in case of a degree of determination on the part of the Jury, such as in any other case than that of personal interest, ardent partiality, or strong prejudice is never probable and scarce ever realized, the Judge finds it in his power to take the substance of the question out of the hands of the Jury by making the verdict special, or stating some question of law. +

5. When, as is most commonly the case, the plaintiff's declaration contains divers Counts, (i.e. the instrument of demand contains a demand the same in effect, but shaped in divers ways, the question on which Count or Counts the verdict shall be taken is a question settled in some way or other among the lawyers, not being in fact submitted to the decision of the Jury: a practice in one sense not without reason: since worded as these Counts are, replete with falshood, patent or latent, it would be in vain for the best informed of the Jurymen to attempt to understand them.

+ See §.│ │