date

26 Dec r 1806 Scotch Reform To L d
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.
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  • Title: [6[?] Dec r 1806 Scotch Reform To L]
    Description: 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.
  • Title: [26 Dec r 1806 Scotch Reform To L d]
    Description: 26 Dec r 1806

    Scotch Reform To L d Grenville (3

    Resolut. 14

    Costs

    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: [25 April 1807 Letter V VI.]
    Description: 25 April 1807

    Letter V

    VI. Bail-baiting

    IV. Badness cause

    Rule, alike applicable to both sides of the Tweed as well as to every where in which the fee-gathering system reigns. The function of hearing evidence the function without which whatever is done is but extortion and oppression under the name of justice, is to every Judge made out of a fee-fed lawyer, and especially to every fee-fed Judge, a function odious and intolerable. The functions, the only functions not odious, receipt of emoluments excepted - are those by which power is exercised, and sham science displayed: sham-science, the source and object of mis-directed reverence.

    When this function, like any other that is odious and irksome to him that exercises it, can not be shaken off, as above, but comes by dire necessity to be exercised, judge my Lord to what degree of effect it is likely to be exercised. From the very nature of man, that result might therefore have been predicted, which in the case of examination of English Cautioners is so fully proved by experience: viz: that the work even when executed, the principle upon which it is executed is good, will be executed to that sort of effect which may be expected in hands loathing or despising it, interested in spoiling it, and executing it in as bad a stile as possible.

    Thence it is, that it is not without serious concern that I should see the English anomalous mode of examining Bail in open Court in the presence of a whole bench of learned Judges forced upon Scottish Judicature, were it only for the discredit it would be apt to bring upon that natural system of procedure, of which it is a mutilated and ill-placed fragment, profaning and contaminating justice by plunging it and drowning it in a system of chicane.