[094-470v]

24 Jan y 1807

A +

Scotland being the scene of action, not England, permitt me to state to Your Lordship without reserve the use I would make of Juries /Trial by Jury in civil suits /cases/.

I would have all causes /questions of fact/ capable of being brought before this species of Tribunal in the second instance or degree: viz. in the way of Appeal, or (say) New Trial or Appeal: viz: at the instance of either side, for a decision pronounced, after enquiry conducted in the natural mode (still the wild, visionary, arbitrary, Turkish, natural trade!) as in the English Courts of Conscience, the Scottish Small-debt Courts and the civil cases submitted to the cognizance of Justices out of Sessions, on both sides of the Tweed.

I would have no cause ever brought before a Jury, neither of course, as in England, nor as proposed at the instance of a party, nor by order of the Court, in the first instance.

All in the way of Appeal, because in that way there is no sort of cause which is not capable of being submitted to the cognizance of a Jury, nor any sort of cause in which that institution is not capable of being rendered subservient to the aggregate of the ends of justice.

None in the first instance, because there are causes which, the appellation of the institution is physically impossible: others to which though unfortunately the application of it unfortunately is not physically impossible, yet it never is or can be applied without prejudice to the aggregate of the ends of justice.