date

Feb y 1808 on L d Eldon's Bill
Feb y 1808

on L d Eldon's Bill

Letter VI

Omissa & Facienda

1. No Reporting

2. Ends of Justice

2. Evils 2 d, 3 d and 4 th. Unnecessary and useless increase given to a triple pact of evils delay vexation and expence.

If the cause is ripe for decision, then supposing him prepared for pronouncing the decision, decision, if the cause were not this sort out of his hands would be pronounced immediately.

But alone sent upwards to /into/ the Inner House /superior judicatory/ in comes in takes it place in/ the an indefinitely long list of causes a list of about two years length at present [...?] /measuring/ space by time.

When at length it happens to it to be [...?] into consideration, whatsoever has been done in relation to it in the Court below, must take its chance of being imparted[?] /[...?] imparted[?] every [...?]/ each of the learned minds contained in the superior judicatory: In the superior judicature, had it but a single seal in it, and that filled by the most capable /able/ mind which the judicatory contains here would be so much time lost: but this /and [...?]/ most capable mind has to contend[?] with whatsoever comparative want of quickness and discursement[?] and not to speak of probity and good temper may to be found in the whole [...?] of his colleagues.

The more the cause wants of being /having been brought to a stage in which it is/ ripe for decision when thus turned out of his hands, the less it is true, is the waste of time. But to the waste more or less, a cause can never pass previously to decision out of the hands of one Judge into those of another without some such waste.
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  • Title: [14 Feb y 1808 on L d Eldon's Bill]
    Description: 14 Feb y 1808

    on L d Eldon's Bill

    Lett. VI

    Omissa and Facienda

    1. No Reporting

    2. Ends of Justice

    II. Under the name of analogous practice Stentor Authority having pronounced /bellowed forth/ his ipse dixit, let no lead[?]-on[?] ear[?], if we can prevail upon ourselves /if the fatigue be endurable/, to the "still small-voice" of reason: observing /and let us observe/ how, without any [...?] advantage, the proceeding /procedure in the cause/ is unfolded with the several evils opposite to the several ends of justice.

    1. Evil the first - danger /[...?]/ of misdecision: viz. misdecision in the superior judicatory above for want of sufficient information.

    From the judicatory of a judge /is become/ who has collected /possessed himself of/ whatsoever portion of information he has chosen /it has pleased him/ to collect in relation to the cause, it is sent off by him for further procedure and decision to another judicatory which /composed of judges who/ whatsoever ulterior information it may please them to collect have not received undiminished[?] the whole body of light which had presented itself to the eye stationed on the inferior level: in its passage through that lower seated medium feel to have undergone diminution to a greater or[?] less amount, though to what amount it is impossible to say by any general rule.

    Even allowing that the whole body of light /information/ has passes on [...?], still no advantage in the respect in question can be pointed out as resulting from the change. Having begun the cause /suit/, what should hinder him from going on with it and finishing it?

    2. Another source of misdecision is this - From a judicatory composed of /constituted by/ a single Judge, who has no colleagues to thwart his operations and perplex his thought, the[?] suit by this reference is lodged in a many-seated judicatory, in which in the first stage of the cause /suit/ (for at the stage of appeal the case is different) finds as many obstructions and perplexions[?] as he sees colleagues.

    3. Then comes the anticlimax already pointed out /dwelt upon/ in the first of these letters a cause transferred from a single Judge, subjected as such to the whole[?] of responsibility[?] in its greatest form to a many-seated judicatory composed of judge amongst[?] [...?] in which [...?...?] that which is in a great degree dissipated and lost.
  • Title: [Feb y 1808 II. No Inner House Causes]
    Description: Feb y 1808

    II. No Inner House Causes

    Oblige the Judge of the immediate single-seated judicatory to decide /abolish at the same time the distinction between/ prohibit at the same turn[?] the Judge of the appellate, the many seated judicatory from taking cognizance of causes in the first instance[?], every thing is therefor placed upon a footing at once rational, simple and [...?] to judicial practice are the judicatories of England and of other nations.

    Immediate judicatory, single-seated, as in the case of the judicatories [...?] in rank[?], the Sheriffs Courts - appellate and in other respects superordinate judicatory, a many seated judicatory.

    That to [...?] i.e. /and thereby/ to the avoidance of the evils of superfluous delay vexation and expence, in the great mass /bulk/ of causes the superiority of single seated judicatories will it is supposed be out of dispute.

    Difficulty in the nation[?] of the cause, coupled with the vice of indecision on the intellectual part of the character of the Judge present one exception: for in a many sided judicatory the slowness of one Judge even though he be the presiding Judge, may find a remedy /be remedied to a considerable degree/ in the superior quickness of his colleagues: as in a team a lazy or weak horse is dragged by the others /by/, and his rate of [...?] made to keep him with theirs. But further to this mischief there are other remedies.

    In the great bulk of causes /suits/ never[?] is composed of those in which the fault has in the defendant's side, and the cause if it has reluctance or incapability ultimate [...?] to comply with the demands of justice. In these instances, there being no point really in dispute, no demand is made upon the evidence, none but upon the power of the Judge. And in this predicament stand none out of law, or perhaps nineteen out of twenty, of the whole number of suits.
  • Title: [29 Feb y 1808 on L d Eldon's Bill]
    Description: 29 Feb y 1808

    on L d Eldon's Bill

    Letter V

    '.4 Reasons not impracticable

    The cause /case/ is - that the regulations necessary to be made for the distribution of rights of property, the creation and distribution of other private rights, and the prevention or reparation of private wrongs, being regulations necessary to the very existence of political society, in its earliest stages, came to be made before the establishment /formation/ of any distinct authority, habitually occupied in the business of legislation: came to be made therefore by the hands of Judges, operating as such, and thence in the ex post facto mode of jurisprudential law: fee-fed Judges, who being thus allowed to give themselves an interest opposite to that of the community made a pact[?] at accordingly an object of constant endeavours to exclude the light of reason as completely as possible from the regions of law, that they might be the better at liberty to organise a chaos replete with the grossest and most mischievous absurdities.