date

26 April 1807 Letter V VI.
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.
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  • Title: [26 April 1807 Letter V VI.]
    Description: 26 April 1807

    Letter V

    VI. Bail-baiting

    III. Perjury

    At Edinburgh, by the same competent and to this purpose irrecusable authority by which it is stated that perjury in witnesses is thus abundant, it is stated no less distinctly with no less confidence that it goes on without a check. As no "Commissioner will venture on his own authority to report the prevarication of a witness to the Court:" (p. 49) thence it is that, as stated by others, punishment or prosecution for perjury is (in a manner) without example."

    In the Courts at Westminster Hall, on the occasion of this anomalous profanation of a part of the features of the natural system, the same notorious system of transgression finds its encouragement and its cause in the same notorious impunity. Who ever heard of a prosecution, for perjury committed by a Bail in over-rating the amount and value of his property?
  • Title: [25 April 1807 Letter V VI.]
    Description: 25 April 1807

    Letter V

    VI. Bail-baiting

    IV. Badness cause

    Rule, alike applicable to both sides of the Tweed as well as to every where in which the fee-gathering system reigns. The function of hearing evidence the function without which whatever is done is but extortion and oppression under the name of justice, is to every Judge made out of a fee-fed lawyer, and especially to every fee-fed Judge, a function odious and intolerable. The functions, the only functions not odious, receipt of emoluments excepted - are those by which power is exercised, and sham science displayed: sham-science, the source and object of mis-directed reverence.

    When this function, like any other that is odious and irksome to him that exercises it, can not be shaken off, as above, but comes by dire necessity to be exercised, judge my Lord to what degree of effect it is likely to be exercised. From the very nature of man, that result might therefore have been predicted, which in the case of examination of English Cautioners is so fully proved by experience: viz: that the work even when executed, the principle upon which it is executed is good, will be executed to that sort of effect which may be expected in hands loathing or despising it, interested in spoiling it, and executing it in as bad a stile as possible.

    Thence it is, that it is not without serious concern that I should see the English anomalous mode of examining Bail in open Court in the presence of a whole bench of learned Judges forced upon Scottish Judicature, were it only for the discredit it would be apt to bring upon that natural system of procedure, of which it is a mutilated and ill-placed fragment, profaning and contaminating justice by plunging it and drowning it in a system of chicane.
  • Title: [[094-160v] 22 Jan y 1808 Transpose]
    Description: [094-160v]

    22 Jan y 1808

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    1 [...?] contents[?]

    III Contents of Part III [...?]

    Powers to [...?]

    II. Contents or Topics of Part II. Powers for subordinate legislation, enquiry and Initiation.

    I. Sections 5,4,11 in part, and 9, are the sections occupied in giving powers ofr subordinate legislation to the Court of Session, exercisible by its present Quorum of 9, the Court sitting all together, in its undivided state.

    1. In Section 5 are contained four distinguishable parts /clauses/ In[?] clause 1[?] gives them power/ is given/ to regulate the mode in which the "[...?] of ordinances" shall be performed. 2. In clause 2 power to determine "what number of Judges shall operate either separately or together in the Outer House or Bill Chamber: 3. In clause 3, power is proved "if it shall seem expedient...that some of the said Ordinary Judges shall constantly or usually perform the duties of Ordinances in the Outer House or Bill Chamber":... others ... constantly or usually officials in the Inner House: 4 clause in part 4 th. power to determine the "Rotation" in which in the Outer House and Bill Chamber these Ordinances shall officiate.

    5. In Section 4 th power is given to regulate the days of sitting in the [...?] sections of the Court.

    6. In Section 11 th, power is given to regulate concerning the "forms of proceeding and process and in particular the mode of conducting the pleading, as well in the Outer as of the Inner House, and whether carried on by writing or viva voce. /single-seated judicatores of the Ordinaries as in the many-seated judicatores/

    7. In Section 9 th power is given to regulate concerning the remittal[?] of causes from one division to another, on the ground of a connection between cause and cause.