date

23[?] Dec r 1806 D 1[?] + Scotch
23[?] Dec r 1806

D 1[?] +

Scotch Reform To L d Grenville

Letter 4

Resolut. 6

Jury

Resolution 6 th. For trial of facts, Jury at the instance of either party, or by order of the Court, except as hereafter to be excepted.

Waving /Turning a deaf ear to/ all prepossesions, permitt me, my Lord, to improve /confront/ this provision at once, with the condition of Scotch procedure in other respects, and with the ends of justice.

An important change proposed: to which of the ends of justice is it expected to be subservient?

To the elimination of delay, vexation, and expence? My Lord, it adds to them: yes by the whole amounnt it is an addition made to that mass of collateral in convenience. A little further on, Your Lordship will see if it be not so.

To the prevention of failure of justice? My Lord, its [...?] will produce failure of justice. In no /an/ instance will it prevent that evil: as often as by means /force/ of the delay, vexation and expence a plaintiff, that is he who should have been a plaintiff is either disabled or deterred from seeking justice, failure of justice is the consequence: and as often as by the delay, necessary evidence, or the matter of wealth in the character of the matter of satisfaction perishes.

To the prevention of misdecision? /Here a distinction is to be made./ Here the effects of the change are of a mixt nature: I will endeavour to /disentangle/ present them separate.

Is there common sense in supposing /will any man be found to contend/ that a set of men who in the drawing of conclusions from evidence have had no other experience than what the private circle of a family affords will be found better qualified for the task, than a set of men who upon the most variegated pattern[?] and the most extensive scale have I[?] made it the business of their laws[?]. Experience /Practice/ which is so much in all other arts, is it less than nothing in judicature?
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  • Title: [23 Dec r 1806 Scotch Reform To L d]
    Description: 23 Dec r 1806

    Scotch Reform To L d Grenville

    Resolut.6

    Jury

    The natural mode of collecting testimony by reciprocal examination and cross examination on trams, parties present as well as Judge and so forth, being good for ,5, required to prove it bad for ,5:1[?] - be pleased, my Lord, to observe how the problem has been solved /solution the problem has received/ by the Lord President and M r Hutchinson. And what, would your Lordship suppose in their median[?] of proof? Why, my Lord the /Blackstone's/ old hash passage out of Montesquieu. Judge, my Lord, of their distress. The greater the quantity of factitious delay, vexation and expence, the better the security against misdecision and failure of justice: in a word the dearer your justice, the better. Food for justice in the mouth of a Judge the argument will not be less so for bread in the mouth of a Baker: There's your loaf for you, give me your penny for it: or if it suits you better stay till tomorrow and give two pence for it, it will be as good again. Then came the story about Turks and bastinadoes: by what you /we/ are desired to believe, though it is not expresssly stated, that in every Court of Conscience and every Justice of the laws[?] study, a pair of bludgens are kept, with which the feet of plaintiff and defendant are beat to a jelly, before they are let out.

    My Lord, when a lawyer attempts to prove /is considered enough to //is ill enough advised/ his system to be any thing better than a system of legalized pillage, this is what he is reduced to: he has nothing else.

    Formalities of technical judicature the safeguards of justice! My Lord, under the name of devices Your Lordship has seen a list of the contrivances that constitute the characters /constituting the principal/ of the technical, the existing system formalities included, whatever was meant by formalities. My Lord - it has been shewn of them one by one - there is not a single one of them, by which the chance of misdecision is not encreased, the chance of good justice lessened.
  • Title: [20 Dec r 1806 Evidence To L d Grenville]
    Description: 20 Dec r 1806

    Evidence To L d Grenville

    1 Proposition

    1 Letter 1 st

    Interest of the people and ends of justice: prevention of misdecision and failure of justice: prevention /reduction/ of delay, vexation and expence, in each instance to its least dimensions, over and above that quantity of evils which in each instance is necessary to the prevention of the other greater evils: interest of the lawyers, and at the head /above all/ of them of the Judges - interest of lawyers, and consequent end /thence intent/ of judicature profit and so far as comparable with profit, ease: increase of delay vexation and expence to its greatest dimensions; if expence for the sake of the profit extracted /extractable/ out of it, and rising in proportion with it, delay and vexation as inseparably attached to the multiplication of instruments and operations, sources of the expence: ease, as far as compatible /combinable/ with profit, ease: next to profit in the order of affection[?] to profit, ease ever ready to be purchased, and upon every occasion purchased, when purchasable at so reasonable a price as the sacrifice of the ends of justice.

    Vices of the system of procedure, misdecision /frequency of misdecision;/ and frequent failure of justice: exuberance of factitious delay, vexation and expence.
  • Title: [12 Dec r 1806 Scotch Reform /Evidence]
    Description: 12 Dec r 1806

    Scotch Reform /Evidence/

    To L d Grenville

    Letter 2?

    L d G's: its Deficience

    Superseded

    Thus much as to Your Lordship's personal share in the business: thus much as to intention and every thing of that sort.

    As to probable effects - if the object be to reduce /lessen/ the number /frequency/ of instances of misdecision and failure of justice - to reduce the generation /aggregate mass/ of delay, vexation and expence to the question what does it presume to do in subserviency to those ends - my answer is with the [...?] of an article, something, as far as it goes: but in improvision[?] of what might be done, and ought to be done, extremely little.

     More[?] in[?] further on

    I will just state some of the most prominent abuses /take the liberty of stating to your lordship what be //in// [...?] of the matter present/: themselves[?] [...?] and then beg of Your Lordship to consider what it is if any thing that it undertakes to do for the remedying[?] of those abuses.

    1. Interest which the Judges have at present in the preservation and [...?] of delay vexation and expence

    2. Lord Ordinary's office in [...?]

    3. In particular practice in regard to Representations in that office. Pillage without [...?], by receiving Representations without ends.

    4. Written Pleadings - without worth[?], shape or ends.