date

4 Jan y 1807 Scotch Reform │ │ To
4 Jan y 1807

Scotch Reform │ │ To L d Grenville

Facienda

Causes mostly short

1. Question of law least important because least[?] frequent[?]

2. Technical forms[?] conduce[?] nothing to its being well judged of[?]

3. [...?] the only thing that can lessen the frequency of misdecision on this ground is not [...?] to but repaired[?]

By way of facilitating /To facilitate/ Your Lordships estimate of the real value of all this solemn plausibility /plausibility and all this sophistry - I would beg leave to submitt to Your Lordship three very simple propositions.

1. That with respect to the aggregate conduciveness /degree of subservience on the point/ /quantity of service rendered by/ of the system of procedure to the aggregate of the ends of justice accuracy of decision on the question /ground/ of law is compared with degree of ambivalence[?] to the other ends of justice - compared even with accuracy of decision in relation the question of fact, if [...?] inferior importance.

The proof of this proportion is extremely simple. It consists in the vast superiority of number on the part of the cases whose[?] in which action (the individual instances) in which no question of law or can take place, compared with the number of instances in which it does take place.

This exemption from controversy - this indisputability (it may be worth Your Lordships notice) is owing - not to any excellence on this part of that shapeless portion of the body of the laws which is of their own making (all that part which in so far as it is susceptible of existence exists in the shape of jurisprudential law ( jargonicé[?] Common Law in one of the five senses of it) but in this that the cases in most frequent occurrence (common actions of debt and common actions of assault) are of so very frequent occurrence - the same state of things so perpetually repeating itself, that on these subjects it has not been in the power of all their astutia to prevent the rule of action from setting into a tolerable state of fixity.
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  • Title: [30 Dec r 1806 Scotch Reform]
    Description: 30 Dec r 1806

    Scotch Reform

    To L d Grenville

    Omissa

    3. Pleadings

    But in Scotland /Scotch procedure/, the use of forms has not extended to defences: not in regard to demands even[?] of the most simple class /description: and here at any rate the new /newly/ -projected or at least unnamed system of pleading would find itself at a loss /fault/.

    But when defences /instruments of defence/ are [...?] by forms - [...?] forms - I must not have[?] say uncircumducible[?] as evidence and if my [...?] of them be correct Scotch pleadings, apparently where they get into print, boil out and expatiate /spread themselves/ over the field of evidence. French Memoires used to do so: they contained the whole story that is on each side the whole story on that side, including according to the c;ass of the cause the already collected, or expected, or pretended to be expected evidence: all always under the benefit of the mendacity-licence: and in the Scotch cases and pleadings may be seen the legitimate offspring /natural children/ of the French Memoires.

    In English procedure, on the Common Law side, every thing capable of coming under the demonstration of evidence, is [...?] effectually excluded by the forms in use. In most cases /The cases of most frequent occurrence/ the defence is happily considered into that very concise form of expression called the General Issue. 1. Non assumpsit /he (better I) in [...?] made no such promises/: I [...?] entered into no such engagement. 2. Not debit. I owe nothing. 3. non est factum. I extracted no such instrument. 4. [...?] ad [...?]. He paid at the day: (capable without any impropriety of being included under he owed nothing). 5. non [...?] - he is not guilty.
  • Title: [3 May 1807 Scotch Reform 7]
    Description: 3 May 1807

    Scotch Reform

    7 34

    Letter V? VI

    Letter V

    English Review Chamber

    Memorial Faculty[?]

    But this vagueness - which is as much as to say this want of existence - on the part of the main body of the law, to which it is the office of the system of procedure to give execution and effect - thi vagueness is it in the nature in the power of the proposed Scottish Chamber of Review /or stages or Chambers/ to substitute fixity in place of it?

    Oh yes! say the Faculty of Advocates by their Committee Oh yes - viz: in a course of Ages[?]. Establish but the dear Chamber of Review, the decisions and not only its decisions but the decisions of all the three Chambers below it will gradually attain an accuracy and uniformity hitherto unknown: for in this as in all other /other //See Thomas [...?] Utopia/ Utopias, every effect you would wish to see produced is produced of course without any one assignable circumstance that has any tendency to give birth to any one of them.

    Over and over again in this usual way of indirect /tacit[?]/ assumption or insinuaton is this production of this millenium[?] repeated: for their governors and president are these learned persons, [...?] that on us and our posterity[?] the burthen which we now feel shall continue to press for a number of ages[?], in the [...?] excited /produced/ by the contemplation of the ultimate [...?] /beatitude in/ with which some /a/ remoter posterity will find themselves enwrapped.
  • Title: [19 June 1807 (4) Letter V]
    Description: 19 June 1807

    (4)

    Letter V

    II. Litigation

    In these cases

    1. denial of justice is such

    2 Which for advantage of [...?] [...?] [...?] by the lawyer

    Would Your Lordship wish to see expressed in figures the effective force of these two illusions put together, and at the same time the degree of success with which the astutia expended on this head has been crowned? The problem would not be insoluble.

    In the Common Law Courts of Westminster Hall call for the total number of verdicts given in favour of the Plff in the course of the year in actions by which money is demanded with the respective sums. Call at the same time for such accounts as would furnish the means of ascertaining the average difference between costs received from the Defendant by the Plff. by way of reimbursement for money disbursed on his side, and the money actually disbursed by him: in a word the unreimbursed expences on the plaintiff's side.

    My expectation would be to find the number of instances in which the plaintiff having a verdict on his side is a gainer by the suit less numerous than those in which he is a loser.

    Suppose, for argument's sake, the numbers equal: reference being made to the ends of justice, what in this case is the result? - that, of the whole number of cases in which justice is pretended and supposed to be administered, and the engagements taken by the main body of the law fulfilled, in one half not simply denial of justice is the result, but denial of justice to the injured, aggravated by a load of positive injustice heaped upon him, that though the part in the wrong is oppressed, yet the party in the right, instead of being relieved in oppressed along with him: and that both parties are plundered by Judge and C o in pretence of relieving that one of them to whom relief is due.