date

6[?] Dec r 1806 Scotch Reform To L
6[?] Dec r 1806

Scotch Reform To L d Grenville

Resolut. 14

Costs

These /Such/, my Lord, are the terms of the contract entered into by fee-fed Judges with debtors and [...?] whom they have succeeded in seducing into the ready-opened path[?] of dishonesty and chicane: such in plain English are the terms of that original contract, when stripped of /cleared of //[...?]/ the varnish composed of grimace, [...?], and stain[?] [...?] an original contract, somewhat more real than the instrument of by [...?], under the /when under a/ course of vareties[?] such as the /those in what/ [...?] Westminsterariensis has been in the habit of vending through so big a course of [...?] /has been driving[?] so [...?] and prosperous a trade/

To an abuse thus composed and constituted /Such being the nature and constitution of the abuse/, I can not help flattering myself your Lordship will concurr with me in thinking, that it is not in the nature of costs of any thing that can with propriety be made to bear that name, to apply any essential /effectual/ remedy. The one thing needful, is a loss which recurring /increasing //[...?]/ a constant proportion always with the profit by delay, and being always more than equal to it, shall in no case have any real profit to be got by it. To /But/ bear any such proposition is not consistent with the nature /is not the property of //consistent with the nature/ of any thing that can with propriety be turned to costs.

Not that, the quantity /sum/ of money being given the name by which it is called, is of itself of any moment /worth contending about/: but the mischief is, that when there is the term /word/ employed the sum /quantity of the/ will of course be regulated by it.
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  • Title: [26 Dec r 1806 Scotch Reform To L d]
    Description: 26 Dec r 1806

    Scotch Reform To L d Grenville (3

    Resolut. 14

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    When costs are given, the word costs being employed in the original and proper sense of the word, what is it my Lord that is done? a sum is put by the unsuccessful into the hands of the successful party, equal or, if greater in some way or other running in proportion either to the sum which on the occasion of the suit he has been actually out of pocket, or else be the greatest sum which it is conceived he was justified in disbursing under the /any such/ expectation as that of being thus eventually reimbursed: in the first case are costs when taxed as between Attorney and client; on the other case costs taxed as between party and party.

    Meaning to do substantial justice /Activated by the love of justice/, free /pure[?]/ from the /superior to the stream of/ corruption which gives motion and direction to the machinery /system of mechanisms/ of the inferior regions /level/ - unprovided at the same time with every subordinate official establishment adequate to the adjustment of detail /liquidation of such minute matters of moment/ the House of Lords, having every now and then fallen into the practice of giving under the /this/ name of costs, by a sort of random guess /cast/, round and tempting sums, such as one hundred, two hundred pound. Bearing no /neither having nor aiming at any/ proportion to the sum actually disbursed, intends to operate in the way of compensation for the delay, damages rather than costs would on this occasion have been the proper means[?]. Why then not employ that name? For this reason: because damages had by long usage been considered as having become appropriated to such compensation as it belongs to a Jury and a Jury only, to award: the [...?] damages was therefore avoided, but it should present to the corruption of a suitor public and at the hand of a [...?] House of Commons, the idea of an [...?] from above, in the presence[?] /function/ and prestige of a Jury.
  • Title: [26 Dec r 1806 Scotch Reform To L d]
    Description: 26 Dec r 1806

    Scotch Reform To L d Grenville

    (5

    Resolut. 14

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    What then is to be done? The true, the effectual /efficient/, and only effectual /efficient/ remedy, is altogether simple. Take away /Remove/ the cause, the effect follows it. Take away the profit from groundless /malâ fide/ Appeal, also profit, malâ fide Appeal vanishes. Take away - but in each case you must take it away compleately, or in that case you do nothing, and the abuse continues /principles[?] //operates and succeeds/, is [...?] except [...?] the abuse.

    The remedy will take a different aspect, according as it is against delay in the principle of commercial calculation , or delay in contemplation of insolvency that it is [...?] to operate.

    Delay in contemplation of insolvency is the expected[?] mask to aim at, because that goes to the distribution[?] of the whole, the whole of the subject matter in dispute is put in jeopardy or [...?] by it /mask for the remedy to aim at to take the principal aim, because the mischief goes to //embraces// therefore[?] the whole: I mean the whole of the property //value// in dispute/.

    A man /defendant/ who has nothing /no property/ in hand but the subject matter in dispute, nor perhaps the whole off that, being burthened with debt to the whole or any part of the amount a defendant again for whom in these circumstances Judgment is pronounced, appeals of course remove the cause of course into another court, if any other be found to receive it - buys so much delay of course: so much delay on the Court above has to sell, so much time for the defendant to live at free quarters upon the Plaintiff. What then is to be done? Let possession, follow instanter[?] though but provisionally upon the judgment of the Court below, the profit of malâ fide appeal, and consequently the inducement is at an end. In that case without /unles upon/ a prospect of ultimate success to appeal is not in mans nature /no appeal can take place/: which is as much as to say, unless it be under the expectation of misdecision in the part of the Court above, malâ fide appeal or removal[?] is impossible.
  • Title: [26 Dec r 1806 Scotch Reform To L d]
    Description: 26 Dec r 1806

    Scotch Reform To L d Grenville

    (4

    Resolut. 14

    Costs

    Thus then stands the case of costs considered in the character of a remedy against groundless Appeals. Costs properly so called, costs in the Westminster Hall sense of the word, most can operate unless by accident in that character, never even intended so to operate. Costs improperly so called, costs in the House of Lords sense, even intended to operate in that character, do operate in that charater to a certain degree, but that a very precarious and incomplete /inadequate/ and precarious degree Against delay /procrastination/ in the principle of economy, on the ground of commercial calculation, it is unable, for want of the necessary regard in propositions to afford any steady and generally adequate remedy: against delay /procrastination/, through despair, in contemplation of indecency[?], it is altogether powerless /impotent/.

    Sham - checks are encouragements /Every //A/ sham check is an encouragment/. Every check in the form of a penalty is a sham check, when the penal /loss by penalty/ since being fixed or limited, the profit from /by/ transgression is liable to extend /capable of going/ beyond the mark /outstretch it/.

    In the English Equity procedure checks of this sort are not wanting: in Scotch procedure checks of this sort are abundant, had it be said that where malâ fide suits, demands, or defences are in question, these are the only sort of checks which fee-fed Judges can with any colour of reason /in any principle of crimson sins/ be expected either to originate[?] or to approve? which in sny principle of common sense can be expected to be found endurable by fee-fed Judges.