date

12 Dec r 1806 Scotch Reform /Evidence
12 Dec r 1806

Scotch Reform /Evidence/

To L d Grenville

Letter 2?

L d G's: its Deficience

Superseded

Thus much as to Your Lordship's personal share in the business: thus much as to intention and every thing of that sort.

As to probable effects - if the object be to reduce /lessen/ the number /frequency/ of instances of misdecision and failure of justice - to reduce the generation /aggregate mass/ of delay, vexation and expence to the question what does it presume to do in subserviency to those ends - my answer is with the [...?] of an article, something, as far as it goes: but in improvision[?] of what might be done, and ought to be done, extremely little.

 More[?] in[?] further on

I will just state some of the most prominent abuses /take the liberty of stating to your lordship what be //in// [...?] of the matter present/: themselves[?] [...?] and then beg of Your Lordship to consider what it is if any thing that it undertakes to do for the remedying[?] of those abuses.

1. Interest which the Judges have at present in the preservation and [...?] of delay vexation and expence

2. Lord Ordinary's office in [...?]

3. In particular practice in regard to Representations in that office. Pillage without [...?], by receiving Representations without ends.

4. Written Pleadings - without worth[?], shape or ends.
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    At every step, I take, my Lord, I find myself attacked by the ridicule that attackers in the attempt to prosecute and try by the rules of justice, practices[?] that never could have recognised any such authority as that of justice: I feel a plea to the jurisdiction, opposing itself to a [...?] to every step.

    This infinity in the scenes[?] of Representations and shillings, if the scene of it lay in the Inner House, the would /might/ be a more colourable /a somewhat better-coloured/ cloak for it. Escaped out of this Court the cause will have a long way to travel /journey to take/, all the way from Edinburgh to London, good Your Lordships [...?] as one more, save[?] us so long a journey if it possible. No such thing: in the Inner House only /alone/ that it remains infinite. Dissatisfied with what has been done in the Outer House, raise your voice a little and without having a step to stir for it, you might be heard in the Inner House. One series may be found[?]: but first there must be an infinite one.

    One reason perhaps may be this. Were the longer series /Had the Inner House been the scene/ of the longer series, the task of lengthening it would have required the concurrence of the " whole Lords" which the shillings would either have been to be divided /[...?]/ into 115 parcels, or mor probably gone into some one pocket into which there was no opening but into the pocket of some one of the learned foresaids. But in the Outer House, the shillings go /fall/ in [...?] plump into the pocket of one officer called the Lord Ordinary's Clerk, through which there is a [...?...?] constantly opening into that of his master.
  • Title: [23 Dec r 1806 Scotch Reform To L d]
    Description: 23 Dec r 1806

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    Resolut.6

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    The natural mode of collecting testimony by reciprocal examination and cross examination on trams, parties present as well as Judge and so forth, being good for ,5, required to prove it bad for ,5:1[?] - be pleased, my Lord, to observe how the problem has been solved /solution the problem has received/ by the Lord President and M r Hutchinson. And what, would your Lordship suppose in their median[?] of proof? Why, my Lord the /Blackstone's/ old hash passage out of Montesquieu. Judge, my Lord, of their distress. The greater the quantity of factitious delay, vexation and expence, the better the security against misdecision and failure of justice: in a word the dearer your justice, the better. Food for justice in the mouth of a Judge the argument will not be less so for bread in the mouth of a Baker: There's your loaf for you, give me your penny for it: or if it suits you better stay till tomorrow and give two pence for it, it will be as good again. Then came the story about Turks and bastinadoes: by what you /we/ are desired to believe, though it is not expresssly stated, that in every Court of Conscience and every Justice of the laws[?] study, a pair of bludgens are kept, with which the feet of plaintiff and defendant are beat to a jelly, before they are let out.

    My Lord, when a lawyer attempts to prove /is considered enough to //is ill enough advised/ his system to be any thing better than a system of legalized pillage, this is what he is reduced to: he has nothing else.

    Formalities of technical judicature the safeguards of justice! My Lord, under the name of devices Your Lordship has seen a list of the contrivances that constitute the characters /constituting the principal/ of the technical, the existing system formalities included, whatever was meant by formalities. My Lord - it has been shewn of them one by one - there is not a single one of them, by which the chance of misdecision is not encreased, the chance of good justice lessened.
  • Title: [29 Dec r 1806 Scotch Reform]
    Description: 29 Dec r 1806

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    2. Outer Houses

    In the constitution of the Court of Session, between Inner and outer House, matters are so contrived, that the inconveniences attendant on two degrees of jurisdiction (I mean always with relation to the suitors, for to the Judges ir is the reverse) shall be reaped as clear as possible from the advantages. To a superficial view /In a superficial point of view/, such as that in which it is presented by the correct denomination - the Court of Session - it presents /it passes for/ itself as but one Court: So it is one Court and not two it is to any good purpose: two Courts it is to every bad purpose.

    The faculty of appeal, of revision by a second Court is it or is it not conducive to the ends of justice? Take it either way /In either case //[...?] eiher way/ the unhappy combination between union and division /confusion of unity and diversity/ is repugnant /a repugnancy/ to those ends. To the purpose of delay, vexation and expence and of course to the purpose of lawyers profit out of the expence there are two Courts: to the purpose of severity gainst misdecision there are butt one.

    When by representations and interlocutions with their etceteras the parties have been squeezed, like they can be squeezed no longer, there it is that instead of passing /giving/ judgment on the cause, his Lordship makes if he pleases, Scotico-jargonici, great [...?] of it, viz. to the "whole Lords." What is great [...?] in plain English? Neither more nor less than denial of justice. And to what end this denial of justice? - that the parties whether they will or no, may be were drawn through another Court. Were he himself to give judgment (so clear is the matter of right in the routine[?] the great majority of cases) either he must express himself to shame and infamy by a judgment notoriously unjust, or the partnership must love[?] the profit upon whatever more can be made of the cause.