13 Feb y 1807

+ C

To III. Facienda

Trial[?] Letter IV

Resolut. 6.7.8.9

Juries

And now my Lord, that, in this single article - denial of justice - the price paid by the people for the services rendered /supposed to be rendered/ to them by I know not what support supposed to be given to I know not what by these retainers[?] of justice, may be the more clearly understood, I venture to submitt to Your Lordship a concluding proposition which is this -

Supposing the decisions now given in the way of technical procedure to be all /uniformly/ right - supposing that under natural procedure if substituted to technical they would be all wrong <...> at the same time. Protesting that in the technical system there are causes of misdecision to a great extent, and under the natural none at all - yet for argument sake I will suppose that the decisions habitually given at present in the way of technical procedure are all right - and that had they been given in the way of natural procedure they would have been all wrong - erroneous in the highest morally possible degree: assuming on the other hand, at the same time, what the 43 English Courts of Conscience Debts so well entitle me to assume for England, and the Small Debt Court Act (to G.3.6 with the Certificate of the Lord President and Mr Hutchinson in its favour for Scotland, viz: that to the extent of its jurisdiction in the two kingdoms natural procedure does at present fulfill the ends of justice /even under this extravagantly/. This being the supposition unfavourable as it is, and to the degree of stark absurdity, still any proposition is -, that the benefit, resulting from the substitution of the natural system to the technical, would be clear and incontestable.

Vexation and expense out of the question, denial of justice is neither more nor less than misdecision to the prejudice of the plaintiff's side: a debt of 40' being due to me, if, for want of a Court in which I can recover it without paying more than 40', I give it up, here my loss is 40': if by an unjust decision of any such Court it were refused to me, still my loss, exclusive of the vexation and expense as above[?] would be the 40' and no more. But the number of cases in a year in which misdecision could take place, supposing all the causes now decided in the technical mode were decided and misdecided in the natural mode, would as above not exceed 4000: whereas upon the demands under 40' above, the number of cases in which denial of justice takes place runs as high as 583,338.