date

1 [...?] 1807 2 Letter II[
1 [...?] 1807

2

Letter II[?]

Money the obejct, the utility of competition not dear.

But howsoever clear the benefit of compeition may be as between Court and Court, Judge and Judge, where honour /so far superior/ is the subject /prize/ of it, where /so far/ money is the subject, the beneficial tendency of a competition is by no means equally clear and out of doubt.

Were the matter to be referred at once to the list[?] of mere /bare/ experience that list to which man unused to the labour of thinking, one so fond of referring every thing without further thought - the result would be very little in favour of competition, in the present instnace. Amongst the three great Common Law Courts /Westminster Hall/ a competition for money, a competition tripartite, established itself. What are the result! That they [...?] who /which/ should do the business with least delay, vesation and expence to the suitors? Ah, no, my Lord. Was this the bonus that the King's Bench offered to the Plaintiff in a civil cause, to engage him to present his demand to that Court instead of the Common Pleas to which Parliament had alloted it? did it say to him come you two, you and the defendant, face to face, and we will do right to you, as often as it can be done without further evidence, instanter[?] and on the spot? No, my Lord: that would have knocked up the trade of the shops, and left nothing worth stooping for to be got by either.

What then was the bonus offered and accepted? It was the jus urcendi[?]: the faculty of opprressing the adversary: it was the liberty of the subject that the /these Judges/ Court sold to as many as they could engage to purchase it. If you have a quarrel /one[?] a spite to/ with a man come to us, and whether he owes any thing to you or no, say he does, and come to a [...?] office, for we ourselves might not see either of you nor know any thing about the matter, we will or one of us will sign our names to a piece of parchment, that shall throw him /your adversary/ into a Jail, in which he will remain to the end of his life, or get out soever, as it may happen.
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    Mistake me not, my Lord:- I mean not to say that because in that instance such was the effect of competition as between Court and Courts in England in that instance /in these days/, such would necessity be the effect in the case of the competition proposed to be created by the division of the Court of Session in Scotland, in this our time. But your Lordship sees, such would be the comclusion /necessary verdict/, [...?] the customary evidence of experience the only evidence admitted: and that to satisfy us that the conclusion is not a necessary one, proper discrimination must be /would be to/ made, which is as much as to say, three bugbears so formidable to many a learned, as will as to many an unlearned, mind; Theory - speculation - must be /would be to be/ called in.

    The powers of the contending[?] Courts in Westminster Hall were not fixt: three of the Chambers of the Courts of Session will be fixed and will be exactly the same in all the Chambers: no such exclusion permitted: no such bonus to be sold. The existence of parliament was at that time matter of chance: it is now as certain as that of the King himself: those were dark; these are enlightened times:- all this I am aware of, and all made due allowance for /this with me finds die allowance/.
  • Title: [19 Feb y 1808 on L d Eldon's Bill]
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    Further on, when in a list of some of the most prominent of the abuses of which the system is composed, I come to mark out those which might be given up, and the predominant /fundamental/ principles of the technical system with their baneful influence on the welfare of the people /suitor//community/ and their beneficial influence on the prosperity of the man of law still retained, I shall turn to shew /bring to view/ a variety of biddings made by different individuals in this competition, professional as well as official, unincorporate as well as corporated[?]. In a word without /but for/ this principles, nothing has been done, nothing would or could have been done: under the [...?] of it, and with the benefit of it, no assignable bounds can be set to the good which may /come to have been/ be done:

    And let it not pass unobserved, that of reasons[?] as have proposed[?] or[?] called for, the subject of the competition will include not merely the arrangements themselves that are to be proposed, but the reasons of them, the reasons trusted to /brought forward/ for their support: so that the promises offered will be /a[?] promise/ not only for law but for the use of reason (a sort of unpleasant /faculty/ the use of which has [...?] been so strange /unknown/ to the field of law).
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    To be sure we have no right to do this, Parliament having forbidden us in express terms: /be[?] later cognizance of any such criminal ones:/

    but you will say the ma has committed a crime, and we will take your word for it: and to Jail he shall go for it: to be sure here is a he[?] [...?], but Parliament does not sit now: perhaps may never sit again, and if it does, will not know any thing about the matter: down then with your money, and to Jail the felow goes: and this being what the Common Pleas can not do for you, ours you see is not only a good shop for you prupose, but the only one.

    Being thus left without custom, the Court of Common Pleas took a leaf out of the same book: I mean the book of lies: and such, as between these two Courts, being the subject, viz. money: in that instnace such was the Course /track/, and effect, and benefit of competition.