date

14 Feb y 1808 1. No Reporting
14 Feb y 1808

1. No Reporting

2. Ends of Justice

In that Court which though spoken of as but one Court, encloses divers judicatories, he occupies a situation on his side of the judicatory a single-seated one and a many-seated one with no fewer than fifteen seats in it. Single seated judicatories that of he Lord Ordinary sitting in the Outer House; that of [...?] on the Bill Chamber to which may be added the seldom occupied judicatory of the Lord Ordinary or rather[?] and [...?].

Many-seated judicatory, the judicatory of the Inner House.

In the single-seated judicatory, if he were /if he[?] [...?]/ bound to give /shew itself/ any [...?] of his mind /itself/, would stand exposed to detection and reproach: if for example it were under an obligation of pronouncing the decision vivâ voce to /before/ a numerous[?] and practised auditory, the decision to be accompanied with the display of considerations, which in the character of reasons gave back to it, and are trusted for its support.

But in the Court of a Lord Ordinary a man is not bound to give any such reasons; he is not bound to pronounce any such decision: he is not bound to pronounce any decision at all in any case in which thought is necessary[?]: and in the great bulk of causes much thought on the part of a Judge is necessary: [...?] the causes decided under the English branch of the technical system without so much as the pretence of thought.
Similar Items
  • Title: [14 Feb y 1808 IV 1. No Reporting]
    Description: 14 Feb y 1808

    IV

    1. No Reporting

    1. Analogous practice

    1. From the Circuit in criminal cases - seldom but in capital or not capital, cases are sent off /referred/ for decision referred to the 12 Judges: from the single-seated ambulatory judicatory to that many-seated fixt one /judicatory/.

    But the circumstances in which the sort of reference is made and those in which the reference is made from [...?] Ordinary to the Inner House, there is a [...?] and natural difference or rather no resemblance. In the case of the English references the facts of the case are all determined, the determination of them forms no part of the reference. The question /parts/ in which the opinion of the twelve-seated judicatory is called for, are already liquidated[?] and narrowed to a part: most constantly[?] but one single question: always in some determinate number and that a small one.

    For the reference thus made there is a /two/ particular reason, and that a reason which has no /neither of them having/ application to the reference made from /by/ the Scotch Lord Ordinaries. The English Judge is travelling past: and which travelling lest he is sitting /dealing out/ in life and death. The Scotch Lord Ordinary are almost exclusively causes purely civil: and be the cause what it will, whether he decides it or sends it up undecided - whatever he does with it - any thing or nothing, he takes his own time for doing it.
  • Title: [14 Feb y 1808 1. No Reporting]
    Description: 14 Feb y 1808

    1. No Reporting

    2. Ends of Justice

    Another way in which the liberty of indecision assumed by the Judges /Lord Ordinaries/ in their character of Ordinaries [...?] to produce misdecision is by taking away the faculty of Appeal.

    Abstraction made of any difference in this respect between one sort of cause and another, either the faculty of Appeal is favourable /conducive/ to the ends of justice, taken together /in the aggregate/ or it is unfavourable. If unfavourable it ought not to be allowed at it[?]: if favourable it ought not to be suffered to be taken away. /from one to the other of the two [...?] of judicatories comprized in the Court of Session/

    In every instance in which a Lord Ordinary, instead of pronouncing a definitive decision a Lord Ordinary sends it up for decision to the Inner House, the faculty of Appeal is taken away /extinguished: the benefit /advantage/ of being reconsidered by a judicatory differently composed is an advantage of which the unsuccessful party and the interests of justice are deprived /divested.

    In delineating whether to have the cause in possession of this advantage, or divested of it the Judge is not under any the slightest obligation of paying regard to any other consideration than that of his own personal convenience. Of the reasons or causes of such his choice /delineation/ or account does he render to any one in any case.
  • Title: [14 Feb y 1808 1. No Reporting]
    Description: 14 Feb y 1808

    1. No Reporting

    2. Ends of Justice

    The amount[?] therefore, and as often as a man finds[?] [...?] in the cause any thing that draws upon him for that which he has not in the treasury of his mind to honour it with, he sends[?] it out of his hands.

    A case reported by a Reporter of the English School the learned M r [...?] Miller[?] exhibit at one view the condition a cause may find itself in that Scottish Court /judicatory/, and the [...?] of Judges with which it may without any such degree of inconvenience as shall be deemed sensible[?], be filled.

    It is the case of the Old woman, the young man, and the shoe[?] of brown. Disqualified as she was by want of /deficiency in the/ masticatory [...?] from dispensing of it by digestion, she suffered it to drop it and its mass out of her mouth, into the plate of her more [...?] neighbour, who, heedless of what had happened to it [...?], took it up and swallowed it.

    The mouthful of brown is the cause - the /[...?]/ Lord Ordinary without talents is the old woman without [...?] - the office of the /function informed[?] by/ young man, to where [...?] after the brown had been mumbled[?] to no purpose it fell to swallow it, is the office /function/ performed in the Inner House by the whole Lords.

    From his station in the single seated judicatory he passes /mounts/ it is true in his turn /regular course/ into the House, then[?] superior judicatory of the Inner House. But in the superior judicatory /no judicatory/ a still superior faculty is afforded of performing duty without any /thought/ expence in the whole of thought. With his name he must: but it is scarcely necessary that he should speak it.