date

12 Feb y 1807 Letter IV Resolut
12 Feb y 1807

Letter IV

Resolut. 6.7.8.9

Juries

Lawyers re fondness

Next /Lastly/ as to ease. On this head little further need be said. In Jury trial they find a mode of procedure which in this respect is surely every where else without a parallel, in which far[?] to any amount may be and continually are received and nothing done for them: not to speak of Motions of course so happily sprinkled over the whole course[?] of procedure with and without Jury trial, Common and Equity - fees for which nothing is so much as pretended, seriously pretended at least, in any instance whatsoever to be done. At Sittings or at Circuits that for which time is never wanting is receipt of fees: that for which time[?] is present or wanting as it may happen is rendering the service undertaken for these fees.

What is or is not possible is - to try the cause: - what is always possible, is - to receive the fees on pretence of trying it.

But this is but a truth in comparison of what it does or at least of what in early days, before the time of Judges was so completely filled up by profit-yielding business as it is now it did for the hands that reared it, and trained it up to its present pitch of perfection - the managing members of the partnership. It rid /eased/ /ridded/ them of all causes which afforded no profit at all and all that afforded no profit worth stooping to take up. The advantage with reference to the partnership in this respect is exactly /mathematically/ equal and opposite to its mischievousness (with reference to the people), in the character of denial of justice, with reference to the great body of the people.

And the case thus gained the case to which on the part of the people, is correspondent and commensurate to the denial of justice, ever without prejudice to that branch of profit to which on the part of the people os correspondent and commensurate the /that/ species of oppression already spoken of which is so much worse than denial of justice. I mean that which the partners both or neither of them, when under the notion of relief, in the shape of acquisition[?] or preservation of property in dispute, they embrace a remedy leaving them poorer than it found them, an affliction aggravating the disease: the apparent loser crushed to atoms; the apparent gainer, a loser; no real gainers but the lawyers.
Similar Items
  • Title: [10 Feb y 1807 Letter IV Resolut]
    Description: 10 Feb y 1807

    Letter IV

    Resolut. 6.7.8.9

    Juries

    After 3. denial of justice

    The price paid by the people in different shapes for whatsoever support may be supposed to be afforded by learned gentlemen to the law and constitution being thus prosecuted in a manner which I hope will be found tolerably clear and palpable[?], it [...?] with them if it be to their honour, to present /bring to view/ in a shape equally clear and palpable the service for which that price is paid.

    In speaking of learned gentlemen, I mean on this occasion, those [...?] and them only who are of the professional branch of the partnership: it is on that branch and that alone that any declination /decline/ of remuneration and prosperity need be suffered to be produced by the resolution to any [...?] extent of natural to technical /of the existing natural to the existing/ system of procedure. As to the higher branch, there is our difficulty, other than the collateral difficulty of finding the money in helping the distribution after[?] to the present level: there is no other difficulty, of need be in raising it. Official fees, whatsoever be their amount are capable of being converted into Inlarged professional fees already /alone/ incapable.

    My Lord I have no quarrel with learned gentlemen, any more than M r /[...?] D r Jenner/ had with physicians surgeons and apothecaries. It is because I find them in my way, that is in the way of the people's welfare - it is for that cause only, and to the extent of its influence only that I would see them and their welfare /[...?] the superfluity of their prosperity/ removed out of the way of [...?].
  • Title: [12 May 1808 Ch.V. §.11. Ch]
    Description: 12 May 1808

    Ch.V. §.11.

    Ch.V.

    §.11. Litigation prevented

    Ch.V. Advantages

    §.12. Litigation prevented.

    In placing this effect to the profit side of the account what most assuredly is not here meant is that check to litigation which is synonymous to denial of justice. I mean, that check which is applied to it by every voluntary addition made for example by official fees or taxes on either side to the expence attendant on litigation on either side of the cause. By every penny thus imposed, litigation - while it is prevented on one side is promoted on the other. If justice is thus denied to the relatively indigent, the faculty[?] of working in justice is at the same time sold to the opulent.

    The effect which under the head of prevention of litigation is here in view is the prevention of those suits and of those contestations in the course of a suit, which otherwise would be the necessary result of the attempt to engraft Jury trial in civili upon Scotch Law in any other mode.

    To bring the system of pleading, introductory to Jury trial, to the stage of perfection or imperfection, which ever be the more proper term, at which it stands in English practice, has been the work of many centuries. Incalculable is the number of individuals whom it has consigned to destruction in its progress to this stage.
  • Title: [9 March 1807 Judicial Injustice]
    Description: 9 March 1807

    Judicial Injustice

    Letter V

    I. Shapes

    1. Misdecision

    In the penning of real law, the study of the real legislator naturally is as it ought to be, so to choose his words that the questions of law arising out of them shall be as few as possible. It is for this purpose that except for the purpose of abbreviation, as above mentioned, he will never lose sight of two congenial endeavours, on every occasion to employ such words as are in most common use with the people whose fate they dispose of, and never to use them in any other sense than that in which the people understand and use them.

    Correspondent to the study on the part of the real legislator, though by the rule of contraries, has been, in his character of pseudo-legislator, the study of the English Judge. Example: Magnifying Jury trial in outward show, undermining it in practice, denying in the teeth of uninterrupted experience the right of Juries to decide the question of law, arrogating to himself the exclusive cognizance of all questions of law - of all questions grounded on words of law, he converts into a word of law - a source of questions of law words of all sorts as many as the language furnishes. Words made by the partnership, and in use nowhere but in the partnership answer this his purpose well: words in common use and in the most common use answer it still better. Law jargon produces manifest obscurity, serves as a bugbear, and forces men into the arms of the partnership for advice, by the dread of falling under the lash of the law and by the sense of dependance produced by conscious ignorance. Ordinary language, infected by passing through technical hands, answers the better purpose of a snare, and thus inveighs them into transgression, that vent[?] their torment the partnership may extract its profit.