18 May 1808

I. Reasons

Ch.V. Advantages

§.9./8./ Arbitrary power ousted

 Here or further on[?]

§.9./8./ Advantage the 8 th Reduction in the arbitrary power of the Judge.

1. Another of the effects the title of which to the character of an advantageous one would be apt to appear questionable, if the same lay in Westminster Hall, if the Courts in question were the English Courts.

No power to which the so rendering an epithet as arbitrary is applicable it would be said ever is exercised or is ever in any danger of being exercised in any of those seats of pure and unspoiled justice: and where there is neither disease nor danger of disease, there is no use for remedy.

2. In Scotland, supposing the result likely to ensue, nothing can be more evident than that its title to the character of an advantageous one will hardly find a pen or a lawyer[?] to question it. The opinion pronounced on this effect by the Faculty of Advocates was unanimous.

3. Under Jury-trial, as conducted in England, the power of the Jury, and the independency of these unlearned and everchanging Judges upon the learned and permanent Judges their Directors, has been stated as having in a much greater degree apparent than real substance.

4. If in consequence of this dependency, the ends of justice are attained in a greater degree than they would be in the opposite case, if on these terms the law receives its execution and effect more compleatly at all points and constantly than it would in the other case, the arbitrariness of the power of the Judge is no inconvenience - any restraint put upon it would be no advantage. On this head how the matter stands in point of fact every one to whom it belongs to judge will give his judgment, for himself.