date

3 Jan y 1807 Scotch Reform │ │ To
3 Jan y 1807

Scotch Reform │ │ To L d Grenville

Facienda

Causes mostly short

But in /by/ comparing the annual number of causes which having thus received their commencement are not brought on to trial with the number of causes which having thus commenced are brought on to trial, we may learn one portion of the aggregate number of causes in which, there being no fact really in dispute between the parties, there exists not in the defendant's side, any ground of defence, and the decision of which the abovementioned average length of time (viz.│ │ minutes) (a length of time, including /comprizing/ defended causes as well as undefended causes) would have been more than sufficient.

In the number of undefended causes thus brought before the Courts of technical procedure may therefore be seen a part of the number of causes in respect of which two not altogether uninteresting points are established:

1. That, had the /they been submitted to the/ Courts of natural procedure, the whole of the difference between the aggregate quantity of delay, vexation and expense attendant in the decision of them in these Courts and the aggregate quantity of these inconveniences /evils/ attendant on /attached to/ the decision of them in the technical Courts, being so much factitious delay, vexation and expense, created by the law partnership for its own benefit, for the sale of the profit extractable by them out of the expense.

2. That as to this number of causes at least, no such evil as that of misdecision, was in the nature of things to the prejudice of the defendants side at least, liable to take place and that therefore had these causes likewise been submitted to the cognizance of the natural Courts, no such evil as that of misdecision would have been to be apprehended at all in the Natural Courts, consequently in respect of this, no possible advantage, in the shape of security against misdecision can have been produced by the reserving[?] of these causes to the jurisdiction of the technical Courts to the exclusion of that of the Natural Courts - by the reservation made of these causes in favour of the technical Courts, to the exclusion of the natural Courts.
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  • Title: [3 Jan y 1807 Scotch Reform │ │ To]
    Description: 3 Jan y 1807

    Scotch Reform │ │ To L d Grenville

    Facienda

    Causes mostly short

    It is in the small minority of the causes commenced in the technical Courts - in the number of those brought on to trial, that are to be looked /sought/ for the greatest number in respect of which there is any room for misdecision - any room in which any superiority of security against misdecision (if it were in the nature of technical procedure to afford any) could operate.

    That it is of /in/ the very nature of technical procedure as contradistinguished from natural - of technical procedure by its necessary operation viz: as productive of /pregnant with/ delay, vexation and expense is what I have had frequent occasion to shew +: by delay evidence perishes - by delay, vexation and expense, the plaintiff having right on his side is disabled or deterred from commencing or continuing his demand, the defendant from commencing or continuing his defence. Among the several causes of misdecision by which that system is characterized, these operate and firmly applying indiscriminately to all suits and to all systems is[?] in exact proportion to the degree of the complex evil composed of the delay, vexation and expense. (To this are to be added the instances of misdecision produced by the various devices more particularly characterized by this tendency such that of putting exclusions upon the evidence under the erroneous if not hypocritical notion of security against deception - that of receiving to no great an extent what is received in no other than a bad shape - part of deciding causes against rights /repelling just demands or defences/ on no better ground than the non-compliance with terms blindly fixt for various operations in other words according to the principle of mechanical judicature - the principle of nullifaction (that engine[?] of iniquity in the English system so mighty /powerful/ and so busy, in every other comparatively so feeble and inert!- with
  • Title: [13 Feb y 1807 + C To III. Facienda]
    Description: 13 Feb y 1807

    + C

    To III. Facienda

    Trial[?] Letter IV

    Resolut. 6.7.8.9

    Juries

    And now my Lord, that, in this single article - denial of justice - the price paid by the people for the services rendered /supposed to be rendered/ to them by I know not what support supposed to be given to I know not what by these retainers[?] of justice, may be the more clearly understood, I venture to submitt to Your Lordship a concluding proposition which is this -

    Supposing the decisions now given in the way of technical procedure to be all /uniformly/ right - supposing that under natural procedure if substituted to technical they would be all wrong <...> at the same time. Protesting that in the technical system there are causes of misdecision to a great extent, and under the natural none at all - yet for argument sake I will suppose that the decisions habitually given at present in the way of technical procedure are all right - and that had they been given in the way of natural procedure they would have been all wrong - erroneous in the highest morally possible degree: assuming on the other hand, at the same time, what the 43 English Courts of Conscience Debts so well entitle me to assume for England, and the Small Debt Court Act (to G.3.6 with the Certificate of the Lord President and Mr Hutchinson in its favour for Scotland, viz: that to the extent of its jurisdiction in the two kingdoms natural procedure does at present fulfill the ends of justice /even under this extravagantly/. This being the supposition unfavourable as it is, and to the degree of stark absurdity, still any proposition is -, that the benefit, resulting from the substitution of the natural system to the technical, would be clear and incontestable.

    Vexation and expense out of the question, denial of justice is neither more nor less than misdecision to the prejudice of the plaintiff's side: a debt of 40' being due to me, if, for want of a Court in which I can recover it without paying more than 40', I give it up, here my loss is 40': if by an unjust decision of any such Court it were refused to me, still my loss, exclusive of the vexation and expense as above[?] would be the 40' and no more. But the number of cases in a year in which misdecision could take place, supposing all the causes now decided in the technical mode were decided and misdecided in the natural mode, would as above not exceed 4000: whereas upon the demands under 40' above, the number of cases in which denial of justice takes place runs as high as 583,338.
  • Title: [3 Jan y 1807 Scotch Reform To L d]
    Description: 3 Jan y 1807

    Scotch Reform To L d Grenville

    Facienda

    After Oath

    Causes mostly short

    For the more correct estimation of the comparative importance of the different ends of justice (as compared with another) as well as for placing the importance of the natural system, as above sketched out, and the artifices of the technical system in the clearest point of view, there is one very simple consideration for which I would particularly beg your Lordship's attention: and that is the vast superiority of number on the part of those causes which for their conclusion and commencement taken together require each of them no more than a small fragment of a day, and consequently present no sort of demand for science /learning/ in comparison of those which requiring greater a length of time constitute the whole of that mass in which are to be /[...?] to be/ sought /found/ the part consisting of those for the due conduct and formula[?] which, in the present state of the law, learning /science/, and, in every state of it, appropriate skill and intelligence, may with propriety be considered as requisite.

    For ascertaining this proportion, if not to a degree in itself approaching to correctness, yet to a degree of correctness abundantly sufficient for the present purpose, two main sources of information are open to us: - 1. One[?] is[?] the number of causes determined in a year in those Courts which afford the most extensive example of the application of the natural system of procedure to civil (non-criminal) suits, (I speak of the Courts of Conscience. The other which concerns regular i.e. technical procedure is the proportion between the aggregate number of Writs annually taken out (that is, causes commenced) in the several superior Courts of Westminster, and the number of causes brought to trial in those Courts.