11 Feb y 1807

Letter IV

Resolut. 6.7.8.9

Juries

1. Delay

In technical procedure, Common Law, under Jury trial what shall we set down my Lord for the duration of a cause? Throwing out of the account maxima and media throwing out of the account all these instances of studied delay which are so natural and frequent - which are constantly upon sale, which are so profitable /which it is so advantageous/ to buy, and which find such numerous purchasers, throwing out whatever is to be bought by special pleas and incidental motions, of course and not of course, I would wish to find the minimum of delay thus attached to jury trial, taking it at an average.

The notion of an average thus clapt[?] upon that of a minimum may be apt to raise a smile. But, my Lord, the demand for an average and its compatibility with a minimum comes thus. The commencement of a sort, or at least the occasion and wish to commence it may take place any day in the year: but according to the relation borne by each day to the system of terms and vacations, vacations some fixt some variable, continuing from │ │ days to 5 months and │ │ days the length varies in a scale which it frightens me but to think of measuring. Among the effects and objects of the technical system is the creating sham successes out of nothing. We have the history of a caterpillar by a Dutchman in a thick 4 o volume: a scales[?] with the variations of which the length of a suit at Common law - a length the least on all other accounts - is susceptible, such a scale with the deportations[?] that would be necessary to elucidate it or have it doubtful might fill a volume of jurisprudence to match with that volume of entomology: with this difference, that the caterpillar being of a sort that threatens [...?] with inundation[?], his history[?] may in its finest lineaments, in one way or other have its use: whereas, if the proposed volume of jurisprudence, as of so many actual ones, the use would be worse than none.