date

17 April 1807 J.B. to Scotland
17 April 1807

J.B. to Scotland

Lawyers judged

In Scotland, the interest of the Judges is less palpably /somewhat less plainly/ adverse /than in England/ to the interest of the people in the character of suitors than in England: but it is not less effectually so.

1. In Scotland their emoluments do not in so large a proportion as in England depend upon the quantity of suitors' delay, vexation, and expence which they can contrive to create /set/ or keep in foot.

But though the existence of any benefit at all from that source has been expressly and authoritatively denied, I shall state further on why I can not look upon that denial as conclusive.

2. Be this as it may in regard to profit, their interest in respect of ease is irreconcileably opposite to that /the interest/ of the people to the interests of justice: and to this sinister interest the public interest as you will see has been made a notorious sacrifice.

3. Even if their self-regarding interests were not thus adverse /opposite/ to the interest of the people in the character of suitors - to the interests of truth and justice - their affections[?] and thence their habits are so, and can not but be so, at any rate. Not one of them but[?], before he was raised to the station of a Judge, had passed a great perhaps /[...?]/enormously/ the greater part of his life, in the profession of as Advocate. But the utter and irreconcileable hostility of the interests of the Advocate with that of the people in the character of clients is too obvious and too undeniable to need insisting on /need any more words to prove it/.
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    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

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  • Title: [4 April 1808 Letter V In England]
    Description: 4 April 1808

    Letter V

    In England /the source of preferment being within the profession/ the head of the /Benchers[?]/ Bench having all judicial offices with all their sweets, immediately or mediately at his disposal, and all parts /divisions/ of the Bar, together with all the Benchers being knit together, close as a Macedonian phalanx, by one common interest, /as closely allied to that of the people as Bonaparte's to King George's,/ the opinions of the Bar and those of the Bench coincide of course. In Scotland, the source of preferment being situate sometimes in Scotland, sometimes in England - but at all times without the profession, /and the two interests capable of clashing,/ it is no less possible for the Bar to have an opinion of its own than for the Bench. Of the Members of the Scottish Bar as of the English there are always some /several/ who are also Members of Parliament: Of the Members of the highest Scottish Bench there[?] are never[?] are or can be so much as one whose speech or whose vote can make itself heard in either assembly of the legislature. Howsoever unworthy of /beneath/ regard the interest of the lieges[?] of the people in the character of suitors - actual or possible suitors - may be, that of the Members of the Scottish Bar is not in any such defenceless state. Thence it happens that wheresoever the interest of the leiges[?] is fortunate enough to be coincident with that of the Learned Faculty, and so to be understood to be, the interest of the leiges[?] is no longer altogether undeserving of regard, but to the extent of the coincidence, reaps the benefit of the alliance.

    To the English reader, if any such I should have, these explanations may be necessary to the conception of two phenomena, which otherwise the scene lying in so distant a country as Scotland would be apt to appear incredible: viz. 1. That in the opinion of the Bar there should ever be any thing short of perfection in the opinion or conduct of the Bench: 2. that in the same puritanic[?]

    sections[?] of the opinion of the public there should be any thing short of perfection in that system of procedure which had for its authors and has for its conductors the members of the Bench while in England, opinions of Judges, conduct of Judges, systems of substantive law[?] is[?] made by them[?] system of procedure made by them - every thing in and of that sort has been seated all along upon the pinnacle of perfection, under all its changes.
  • Title: [12 May 1808 I. Reasons Ch.V]
    Description: 12 May 1808

    I. Reasons

    Ch.V.

    §.12. Litigation prevented

    In my expectations of seeing the diminution of litigation placed to the account of advantage by the arbiters of human destiny, I, the Petitioner, am for being sanguine. I mean the prevention of it by any such means as that in question: viz. by any such course as that of investing with the properties of cognoscibility and certainty to the rule of action and standard of obedience, of rendering the law certain, cognoscible and intelligible. For in the opposite modes I know there has never been, in any such quarter, any backwardness to contribute to the production of this effect: I speak of that plan of financial policy by the pursuit of which the door of justice has been so effectually shut against nine-tenths of the people, and the power of exercising oppression upon those nine parts thus vested in the hands of the tenth.

    Uncertain whether this result will, at the bottom of men's minds, be placed to the account of profit or inconvenience, it would be in vain for one to dissemble that as this is among the effects the production of which would be laboured at with the greatest energy or is it among those which may be predicted with the most perfect confidence.

    Throughout the whole of this business two opposite and irreconcileable interests are upon the carpet and at stake, the interest of the community at large in the character of persons liable to become suitors and clients, and the interest of that part of it, minute in bulk, but gigantic in power and influence, which is composed of lawyers of the several ranks and denominations. The most perfect comprehension of their own interest, as well as of the most promising means of pursuing it with effect is among the endowments of the favoured few: on the other side the most compleat ignorance of theirs, and that compleat inattention which is the natural consequence of so compleat an ignorance, is among the misfortunes of the many. In England more particularly, it has ever hitherto been their destiny to repose in these their natural and in great measure irreconcileable adversaries a degree of confidence exceeding even that which prudence would venture to bestow upon the nearest and surest friends.