date

8 Jan y 1807 Facienda Causes
8 Jan y 1807

Facienda

Causes mostly short

5. That the main causes of misdecision in the point of law is the non-existence of any real law bearing on the point: that the only remedy to the non-existence of such rule of action is to make one: an operation easy to be performed by the legislator, and to which these three technical remedies do not any of them contribute any thing.

6. That as to so much of the evil of misdecision on the question of law as regards its tendency to produce its like in other causes - which is beyond comparison the greatest part /largest portion/ of it, it is in the power of the legislator to put a stop to it at any time. The true remedy therefore (whether the offer of a compleat body of laws be adopted or not) consists in arrangements taken for the promptly, and periodically and regularly presenting to the notice of the legislature all the decisions that have any thing new in them on the point of law: an institution on the subject of which I shall have occasion to address Your Lordship in a subsequent letter.
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  • Title: [4 Jan y 1807 Scotch Reform │ │ To]
    Description: 4 Jan y 1807

    Scotch Reform │ │ To L d Grenville

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    If questioned on this head I speak mostly from conjecture for certainly they are not much in the habit of being thus questioned - it is I imagine, not so much /decidedly/ upon the point /on the ground/ of fact that this supposed superiority of security against misdecision would be placed by them, as upon the point /ground/ of law. It is on this account that, their prejudices harmonizing in this as in so many other[?] things with their interests, it is among their habits to ascribe /attribute/ an exaggerated degree of importance to the question of law, to the danger of error in respect of it /to all descriptions bearing relation to it/, and consequently to whatever degree of security many be capable of being given /created/ against misdecision in relation to it /on that ground/.

    Hence all that parade of solemnity of argument, multiplicity / multiplication/ of Judges for this special purpose, and care /pains/ taken to reserve for it the cognizance ultimate[?] or even exclusive of select heads, such as would in vain be looked for any where but in the metropolis, heads stocked with the richest treasures of learning, and wisdom that are any where to be found treasures the fruit of nothing less than the most incessant and long-continued habits of exercise /labour/ and meditation.
  • Title: [8 Jan y 1807 Scotch Reform │ │ To]
    Description: 8 Jan y 1807

    Scotch Reform │ │ To L d Grenville

    Facienda

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    Better remedy by legislative interference in case of disputership[?].

    What makes /constitutes/ the superior importance of the question of law is - (it may be said) and naturally will be said that in one cause determined on this ground misdecision may draw after it misdecision in any number of other causes /the repetition of the like mischief/ - viz: of causes in which the decision was[?] /rests/ upon the same point.

    That to a certain extent the superiority is real, is not to be doubted /disputed/: but if it be made use of as a justification for the exclusive attention to this one end of justice to the neglect of all those others it admitts of │ │ answers - viz:

    1. That in so far as when produced by the system of procedure itself which they are to the amount of at least ninety parts out of a hundred - the evils of delay, vexation and expense, are beyond the reach of men.

    2. That in so far as they have place, they produce, with irresistible efficiency, failure of justice which is tantamount to misdecision to the prejudice of the plaintiff's side.

    3. That in a variety of ways already mentioned, they are productive of misdecision to the prejudice of both sides.

    4. That, whatsoever may be the virtue of the remedies provided by the natural system (viz: multiplicity of judges, central[?] station of the Court in which /those Judges/ sit those Judges in the Metropolis, (the centre of intelligence) and multiplied repetition of argumentations delivered before.) it is not in the nature of them when all added together, to whatever height each of them be carried, to take any thing from the efficacy of the causes of misdecision abovementioned: that on the contrary the further they are pushed, in the greater degree are they all productive of those same causes: the more arguments the more delay vexation and expense: the more Judges, the more delay in the formation and delivery of their opinions, and consequently in the formation of their decision grounded on them: and of the operation[?] of drawing a cause from its original station to the metropolis delay vexation and expense [...?] with the distance, are the inseparable concomitants[?] /accompaniments/.
  • Title: [4 Jan y 1807 Scotch Reform │ │ To]
    Description: 4 Jan y 1807

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    III Facienda

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    Against misdecision on the question of law the fundamental and /the/ indispensable security - the security without which all others are but imposture and illusion, is /consists/ in enactment - in homologation - to use the appropriate noun given to it in the language of other countries (Repetition i.e. p i. homologation not of the regulations and instruments of procedure only - but of that other and more principal branch of the law the substantive branch, to which it is the business of the law of procedure to give execution and effect.) But to do this /this operation/ is an operation which /that/ no more lies in the power than it agrees /quadrates/ with the interest or consequently with the inclination, of these to /from/ whom /whose/ the formalities /obscure and incoherent labours/ of the technical system of procedure are indebted /received/ for their existence. These formalities have throughout been in the main substance at least and ground work of their texture, been the work of the Judge: and if here and there the hand /work/ of the legislator be discernable, it is only in the form of patch-work, laid on here and there to cover and vamp up the flaws and unsound places /spots/ so carelessly left in it or rather so carefully made in it by the sinister industry of the essentially treacherous because fee-paid, Judge.