093-123.xml

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

JB_094_139.xml

Title: [23 Dec r 1806 Scotch Reform To L d]

Description: 23 Dec r 1806

Scotch Reform To L d Grenville

Resolut.6

Jury

The natural mode of collecting testimony by reciprocal examination and cross examination on trams, parties present as well as Judge and so forth, being good for ,5, required to prove it bad for ,5:1[?] - be pleased, my Lord, to observe how the problem has been solved /solution the problem has received/ by the Lord President and M r Hutchinson. And what, would your Lordship suppose in their median[?] of proof? Why, my Lord the /Blackstone's/ old hash passage out of Montesquieu. Judge, my Lord, of their distress. The greater the quantity of factitious delay, vexation and expence, the better the security against misdecision and failure of justice: in a word the dearer your justice, the better. Food for justice in the mouth of a Judge the argument will not be less so for bread in the mouth of a Baker: There's your loaf for you, give me your penny for it: or if it suits you better stay till tomorrow and give two pence for it, it will be as good again. Then came the story about Turks and bastinadoes: by what you /we/ are desired to believe, though it is not expresssly stated, that in every Court of Conscience and every Justice of the laws[?] study, a pair of bludgens are kept, with which the feet of plaintiff and defendant are beat to a jelly, before they are let out.

My Lord, when a lawyer attempts to prove /is considered enough to //is ill enough advised/ his system to be any thing better than a system of legalized pillage, this is what he is reduced to: he has nothing else.

Formalities of technical judicature the safeguards of justice! My Lord, under the name of devices Your Lordship has seen a list of the contrivances that constitute the characters /constituting the principal/ of the technical, the existing system formalities included, whatever was meant by formalities. My Lord - it has been shewn of them one by one - there is not a single one of them, by which the chance of misdecision is not encreased, the chance of good justice lessened.

JB_092_113.xml

Title: [1 [...?] 1807 (11) 18 Letter]

Description: 1 [...?] 1807

(11) 18

Letter V

II. Litigation

46

III. Delay

The whole force of the artist's ingenuity having been expended in the manufactory of irreproachable uncertainty and delay clear if possible of reproach to the manufacturers.

4. Delay:- contrivances employed by Judge and C o for the promotion of it.

As to the instruments employed for the manufacture any regular enumeration of them would in this plan be superfluous. The principle and most efficient of them may be seen among the 20 devices enumerated in the first of this series of Letters: and again with additions, making 28 in the whole, and exemplifications, in the Table the 3 d of the Delay and Complication Tables here to annext.

The corresponding counter-arrangements proper to be taken by the legislator for the prevention of these several delays being so plainly indicated either expressly in Letter the 1 st in company with the several devices, or by the very nature and description of the device in each instance, it seemed unncessary in this plan to give a separate enumeration of them.

1. Exclusion of parties, from first to last, from the presence of the Judge - 2. Abuse of writing - 3. Tribunals put out of reach - 4. Blind fixation of times - 5. Sittings at long intervals - intervals of denial of justice as between Term and Term, between Circuit and Circuit. 6. Bandying the cause, on a variety of occasions and pretences, from Court to Court - 7. Decision in the first instance without thought and upon principles purely mechanical, to make occasions and pretences for applying the principle of nullification, and to make ground for future contingent applications and decision, with human reason, taken now for the first time as a guide - 8. principle of nullification - an engine equally applicable to the manufacture of injustice in both shapes, misdecision ( frequent misdecision, whence uncertainty) and delay - 9. Mendacity-licence, the source of assertions, replies and counter-assertions, rendered by the abuse of writing, in length and number alike infinite - 10. Means of securing forthcomingness, subjected to endless diversifications, with consequent contingent failures, and repetitions;- forthcomingness, whether on the part of persons or things - person as parties or witnesses - things, as sources of evidence, or parcel of the matter of satisfaction and subject of demand - 11. Chicaneries in regard to notice, with consequent failures and repetitions - 12. Asylums local and chronological, with consequent delay so long as the object of [the] search continues to elude it - An enumeration thus brief may for the moment save the trouble of reference.