date

20 Jan y 1808 Scotch Reform
20 Jan y 1808

Scotch Reform

Letter V

Ch.5. Malâ fide

Appeals - how prevented

Object of the Courts of regular procedure, notwithstanding with all their artificial honor, and all their [...?], to enable man to profit by his won wrong. And why is this their object? - Because while enabling the wrongdoer to reap a profit from his own wrong, they glean for themselves a share of it.

Of these Courts of Natural procedure the authority is every [...?] of it no more than has been given to them by the legislators, given to them time after time, and upon experience of the good fruits by the King in Parliament,

Of the Courts of Technical procedure the authority is in great part of it so much made or rather snatched /purloined by fraud or lawless force/ in the way of fraud or robbery /rapine[?]/ or both, in dispute of the legislation; stolen from the supreme authority and from one another[?], during the infancy or the [...?] of Parliament:

If in calling upon Parliament to travel[?] on with perseverance and consistency in the [...?] [...?] not by its own beneficence under the /and its own/ guidance of its own wisdom - though it be to the extirpation not ended[?] of the Courts of /Judicature[?]/ of technical procedure but of the system of iniquity which they created, which they [...?] and in which they falter - if to effect[?] this /hold their language/ be to [...?] the part of a bad subject, of a leveller, of an enemy to social order - then am I a bad subject - a leveller - and an enemy to social order.

Of the suits /causes[?]/ heard and [...?] under the system of Natural /technical/ Procedure, by the Courts of Natural /technical/ Procedure, great, deplorably great, as is the absolute number, still the relative number, relation being had to the number of suits heard and determined under the system of natural procedure, by the Courts of Natural Procedure, is but small. According to natural justice, on pursuit of and in exact conformity to the ends of justice, the causes heard in this kingdom - in all three kingdoms, heard and determined
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    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.
  • Title: [3 Jan y 1807 Scotch Reform To L d]
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    Scotch Reform To L d Grenville

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    For the more correct estimation of the comparative importance of the different ends of justice (as compared with another) as well as for placing the importance of the natural system, as above sketched out, and the artifices of the technical system in the clearest point of view, there is one very simple consideration for which I would particularly beg your Lordship's attention: and that is the vast superiority of number on the part of those causes which for their conclusion and commencement taken together require each of them no more than a small fragment of a day, and consequently present no sort of demand for science /learning/ in comparison of those which requiring greater a length of time constitute the whole of that mass in which are to be /[...?] to be/ sought /found/ the part consisting of those for the due conduct and formula[?] which, in the present state of the law, learning /science/, and, in every state of it, appropriate skill and intelligence, may with propriety be considered as requisite.

    For ascertaining this proportion, if not to a degree in itself approaching to correctness, yet to a degree of correctness abundantly sufficient for the present purpose, two main sources of information are open to us: - 1. One[?] is[?] the number of causes determined in a year in those Courts which afford the most extensive example of the application of the natural system of procedure to civil (non-criminal) suits, (I speak of the Courts of Conscience. The other which concerns regular i.e. technical procedure is the proportion between the aggregate number of Writs annually taken out (that is, causes commenced) in the several superior Courts of Westminster, and the number of causes brought to trial in those Courts.
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    It is in the small minority of the causes commenced in the technical Courts - in the number of those brought on to trial, that are to be looked /sought/ for the greatest number in respect of which there is any room for misdecision - any room in which any superiority of security against misdecision (if it were in the nature of technical procedure to afford any) could operate.

    That it is of /in/ the very nature of technical procedure as contradistinguished from natural - of technical procedure by its necessary operation viz: as productive of /pregnant with/ delay, vexation and expense is what I have had frequent occasion to shew +: by delay evidence perishes - by delay, vexation and expense, the plaintiff having right on his side is disabled or deterred from commencing or continuing his demand, the defendant from commencing or continuing his defence. Among the several causes of misdecision by which that system is characterized, these operate and firmly applying indiscriminately to all suits and to all systems is[?] in exact proportion to the degree of the complex evil composed of the delay, vexation and expense. (To this are to be added the instances of misdecision produced by the various devices more particularly characterized by this tendency such that of putting exclusions upon the evidence under the erroneous if not hypocritical notion of security against deception - that of receiving to no great an extent what is received in no other than a bad shape - part of deciding causes against rights /repelling just demands or defences/ on no better ground than the non-compliance with terms blindly fixt for various operations in other words according to the principle of mechanical judicature - the principle of nullifaction (that engine[?] of iniquity in the English system so mighty /powerful/ and so busy, in every other comparatively so feeble and inert!- with