date

29 Dec r 1806 Scotch Reform
29 Dec r 1806

Scotch Reform

To L d Grenville

Omissa

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.
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    Each course to be conducted to its conclusion accidents excepted, such as death, sickness and removal, by the same Judge, whether principal or deputy /substitute/, before whom it was commenced: as in the Court of Session a cause so long as it remains in the Outer House continues in the possession of the same Lord Ordinary.

    Under the above rule is to be understood to be included this: viz. that no Judge shall within his own local field of jurisdiction committ the taking of the proof or any part of it to any other person (as in the Sheriffs Courts is now the problem): but that the same person who in quality of Judge collects the evidence, shall be the Judge to decide upon it: unless it be, (and then not without special reason, such as that of saving time) where in and for the purpose of the same course two or more facts perfectly unconnected with each other in respect of the evidence, such as the entering into a contract and the breach of it+, require to be proved - even then without special reason such as that of a material survey in point of time: so cognizance of two independent items on an Account &c &[?]. For other examples see the Table of Causes of Complication and Delay.

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    Once more, what is actual is possible. Even in the Outer House, there are cases in which it has been found necessary t learned Lords to act the part of the deaf adder[?], and the learned advocate, chance he [...?] so easily, could chance in vain. The wax which forms so efficient /good/ a bar to the Syron's[?] ring in those particular cases, could more of it be found for any of the others?

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