date

[...?] April 1807 + (1 Lawyers
[...?] April 1807

+ (1

Lawyers judged

Letter 5

Frauds and fellow-subjects

The necessity of reform respecting the administration of civil justice in Scotland is admitted on all hands.

Various plans on that subject are now before you

My own among the rest

My own [...?] upon two main points /proposals //propositions/:

1. The substitution for the natural system /mass //form[?]/ of procedure, as exemplified in the Small Debts Courts, to the technical system of procedure, or pursued in the regular Courts in general and in particular in the Court of Session

2. The reducing the whole body of Scotch law, and in particular the civil branch in particular, by the authority of Parliament, from its present debateable state /state of darkness/, without any certain words belonging to it, to the state of statutory, or as it is sometimes called written law.
Similar Items
  • Title: [8 April 1805 Evidence Securities]
    Description: 8 April 1805

    Evidence

    Securities

    Ch. Procedure Natural

    '.12. Exemplified a Summary[?]

    When perfection is /no name is/ spoken of, at least as being the result of human agency, then the mind[?] prepares itself of course for a journey to the region of non-entities: it looks to /for/ /figures to itself/ a state of things which either never existed at all, or has long ceased to exist, and at any rate neither will nor can exist in time future: [...?] the golden age, the age where Man received life, from the work of Prometheus, from the song of [...?] as from the chisel of [...?]/

    Learned or unlearned, what /how/ will the [...?] say to himself at hearing /what will a man's [...?] be when he reads/, that in this most difficult department /branch/ of the most difficult science, the image of perfection is /examples of perfection are/ already and every where, before his eyes!

    Happily for mankind, exemplifications of this perfection, though thinly scattered, and cramped in their extent, are still to be found every where. With all /Mark of/ their industry, backed by all their power, lawyers have in no country been able to obliterate altogether the footsteps of justice.

    In the jurisprudence of every country you find a distinction applied /applying itself/ to modes of procedure, and expressed by some such terms as regular and summary. Under the head of summary, look for an exemplification of the natural system of procedure as above described. To this head belong for example in ci-[...?] France, the mode in use in what are called the Consular Courts.

    In England - 1. The Courts held by Justices of Peace, acting singly, or though in number of one of [...?]. 2. Courts Martial. 3. Courts called Courts of Conscience for the recovery of small debts. 4. courts composed of Arbitrators acting under /with/ powers given by consent of parties under the authority of an Act of Parliament. +

    + V.b. 3. Ch.

     Add. 1. [...?] [...?].

    2. Branch[?] Constitution Courts.
  • Title: [April 1807 Lawyers judged I]
    Description: April 1807

    Lawyers judged

    I will now state to you, with that simplicity /openness/ which scorns all disguise, why it is that in my humble opinion the opinion of their learned Lordships has no claim to your regard.

    Prefixed to the mention of my own opinion, the word humble is not an [...?] formulary /as at the close of a letter/. Less weight than I myself ascribe to it, it is not in your power to ascribe to it. I never do ascribe any weight to it at all.

    On this as on every other occasion, my opinion here[?] I set down as equal to 0. My reasons are as follows. of the form of them you will judge.

    1. Under the mode of remuneration pursued in Scotland as well as in England /- and about every where else/ the interest of all lawyers is in direct opposition to that of all suitors. The interest of their learned Lordships your Judge, in whose will in so large a measure every thing that belongs to you or is dear to you depends - are lawyers their interests are therefore opposite to yours.

    2. Men's judgments are warped, their prejudices are begotten by their interests. The interests of their learned Lordships being adverse to your interest, their prejudices are so too. Be their judgments ever so sincere, they are not the less necessarily adverse to your interests.

    It is the interest of you all in the character of suitors - that is of individuals exposed to the calamity of becoming suitors - such among you excepted as mean distinctly, and ni your transaction with /in/ Courts of law are conscious of being in the wrong, it is your interest that the ends of justice be in every /each/ individual instance pursued and fulfilled to the utmost possible extent. Far different is the interest of these Your Judges

     [...?] law[?]
  • Title: [7 Feb y 1807 Letter IV Resolut]
    Description: 7 Feb y 1807

    Letter IV

    Resolut. 6.7.8.9

    Juries

    1. delay

    1. First as to delay. Let us observe /compare/ the quantities of it, absolute and thence proportional on a cause of the civil class[?] carried on in the way of natural procedure, and in a cause carried on in the way of technical procedure in that form, in which Jury trial in the first instance bears a part.

    1. First as to delay. In some cases, whatever be the species /mode/ of procedure, quantity of delay necessary absolutely without limit /At present/ /The testimony of a/ A necessary witness is unobtainable and who shall say when it will be obtainable. But this /This however,/ is but one cause out of a number /multitude/. In the Table.

    But leaving without notice, because without remedy, extraordinary cases which do not admitt of remedy, but let us turn /look/, my Lord, to the ordinary state of things.

    To the cases which are of most frequent occurrence to those cases, it is, surely, that a system of practical arrangements ought be to be adopted with most care. Cases /Causes/ in comparison of which all others put together would be found (but if I err it is in your Lordship's power to know) would be found to compose a very small minority: in[?] case[?] of debts, taking the word not narrowed by technicalists, but in the extent given to it in the language of the people debt thus interpreted, cases of debt saving[?] exceptions to a small extent, within /constitute, and that [...?] the business of/ the jurisdiction of the Courts of Conscience.

    Between appearance and judgment in a Court of Conscience ( as per Mr. Hutton p. │ │) duration of a cause

    Minimum - minutes (per │ │) Maximum (p. │ │ ) Hours 2: - Minutes 120

    Medium (p. │ │) in a day, say of 6 hours in an average

    "p" of causes 130, to sure fractions say only 120 │

    120 causes, in hours 6 * 6: = minutes 720: _by 120 -

    makes per cause minutes............................ 5