date

25 April 1807 Letter V VI Bail
25 April 1807

Letter V

VI Bail-baiting

II. Inadequacy

Long before the inquiry has reached any useful stage - i.e. before it has extracted out of the man an assertion which if false would be particular enough to subject him to conviction as for perjury. Patience has taken his leave of Justice. Ah, my Lord, how have I seen L d Mansfield yawn! it makes me yawn even to think of it. How have I seen a poor Counsel - a Junior too frequently is for business of this sort - snubbed for, perseverance! I had rather have been the Bail, though it had been a Jew Bail, than the Advocate.

Sometimes, to beguile the time, mirth is resolved upon, and perjury is assumed, a widow's cruize[?] an inexhaustible source - of pleasantry. Then fly out the King's Benchians, or Common-Pleas-ians, from the four desks perhaps at once - "The gentleman will burn for the money" (the gentleman a Jew Bail with a gold-laced coat on) stands upon a record - (and my Lord the lace was really a broad one I remember the coat) not indeed in the Table-talk, but in the Bench-talk, of Lord Mansfield. After so good a joke, and so-much merriment as was raised by it, rejection it is needless to say was not to be thought of. Bail, Jew or Christian, perjured on the Old testament or the New - take a leaf out of the book of Falstaff - witty thyself or not be the cause that wit is in others[?] learned, so they be learned men, Solventur risu tabula, tu missas abibis.
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  • Title: [25 April 1807 Letter V VI Bail]
    Description: 25 April 1807

    Letter V

    VI Bail-baiting

    II. Facienda

    /Confined even/ Even of this small grace my expectations are further from being sanguine than Your Lordship will easily conceive. From Your Lordships learned adviser consent is altogether helpless. Examination in full Court as well as open Court: subandito[?] not Attorney only but Counsel fixd as in Westminster Hall for opposing and examining said Bail. But in Westminster Hall as Counsel is found necessary for opposing Bail, so on the other side is Counsel for justifying Bail. i.e. for moving[?] that Bail may justify. In the Westminster Courts before a single Judge, sitting in his Chambers, Counsel are not commonly employed: altercation is confined to the Attornies. Were the business turned down to a Lord Ordinary, his Outer House thus filled would shew itself as standing on a level than the chambers of an English Judge.
  • Title: [25 April 1807 Letter V VI.]
    Description: 25 April 1807

    Letter V

    VI. Bail Baiting

    IV. Badness cause

    This being premised in regard to generals, what happens in particular on the occasion of justifying and opposing Bail, is what I now proceed to state. But Your Lordship will please to observe - and it concerns me much that it should be observed that whereas the word is happens, to wit[?] in the present tense, this present is to be understood to be the present indefinite: synonymous in the present instance to the long ago past: What I speak of on this occasion in the character of an eye and ear - witness - is what it happened to me to see and to hear at the time of the Trojan war: Lord Mansfield being then Agammemnon, and Your Lordship's humble servant Pänthoïdes Euphorbus: for the state in which this matter stands now in the 19 th century, I must beg leave to refer Your Lordship to Lord Ellenborough. The present tense being thus explained, I hope I have entitled myself, salvo continimento[?], to make use of it.

    The purpose constantly and perfectly compleatly answered by opposition and justification and with all this openness as that of which of course nothing will have been said by Your Lordship's learned Advisor, viz, opposition of Bail or collection of fees: to the Attornies so much: to learned Counsel so much: so much per se aut per aliam[?], to my Lord Judge: to Etcetera the elder and Etcetera the younger, so much more.

    The purpose casually and imperfectly and but accidentally answered by this same operation is the only purpose professed to be aimed at by it - viz: the securing the plaintiff against the loss of his due. The mode of scrutiny not pursued is that only efficient mode already spoken of: the mode actually pursued is that which serves for the solution and includes the conciliation of the two more important, but in some degree antagonizing, problems - how to employ in the most brilliant colours the scrutinizing and exiting talents of the learned Counsel, and how to expose to a trial the least severe the patience of four learned Judges.
  • Title: [26 April 1807 Letter V VI.]
    Description: 26 April 1807

    Letter V

    VI. Bail baiting

    III. Perjury

    In the heat of the struggle between contending interests, what rents do we not see sometimes made in the veil of confederated prudence, what confessions do not we see break out!

    The Repost of the Family of Advocates lies now before me. The Scottish technical procedure - in the procedure of the Court of Session "no other mode of taking proof has" ... "for more than a century" ... been known in "that Court"... than one which "affords daily encouragement to the grossest perjury." - (and by this[?] a combination of causes the necessary efficacy of which is therein compleatly demonstrated: for the mode is little less favourable to that result than the mode pursued under English Equity) - It is by the Judges of that Court - and for their own personal accommodation, in their separate character of Lord Ordinaries, that "this practice has been silently, though compleatly introduced." "In 1532, those of the Judges were deputed weekly, for the examination of witnesses:... this practice continued down to the year 1686." Oppressed by the burthen their learned Lordships about that time took heart[?] of grace[?], and easing themselves of two thirds of it, took it singly by rotation in the character of Lord Ordinaries: accordingly for the purpose of this function, separated from which all other functions of judicature are - not administration of justice, but mocking of justice - for the purpose of this vital function "one Ordinary is still appointed," but it is now only " pro formâ: his function having under the mantle of that silence, so religiously observed by the authors of the iniquity, and which the sufferers by it durst never break, undergoes that metamorphosis which all functions would undergo of course, if it depended upon the functionaries - having been converted, I mean, into a sine-cure.