JB/013/231/001

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1820. Sepr. 19.

A desire, I understand, has been expressed by you to have
something from me on the proposed measure of costs as applying, to Spanish
procedures, the institution of a Jury. The state of things is, I fear,
hardly ripe for such an enterprize. The two points that require
to be settled are – 1. The mode of inserting it into the system of procedure – 2. The composition of the sort of incompleat member of a portion Judicatory
thus formed. Unless the mode of insertion can be settled the enquiry
into the best mode of composing it can not be of any immediate
use. As to the mode of insertion – nothing on this head, can be
proposed till the system of proceedure, of which it is to form a
part, has been determined. Now this is what has not been done.
If I may speak freely, my expectations of seeing it done in any
manner which, in my view of the matter, shall be, in any tolerable
degree, conducive to the only proper ends in view, are very
faint indeed. I mean always antecedently to the establishment of a Code of Substantive law, on which it might be appended, as in France, somehow or somehow, is done. The system of judicial proceedure has, for its object,
the giving effect to the main branch of the law: to that substantive
branch, in relation to which it is itself adjective, subsidiary, instrumental.
If the directions contained in it have anything of precision
in them, the text of it must make continual reference to
the text of the substantive branch of the law. The substantive branch
not being in existence, what sort of a thing, at the best, can the
adjective be? What To say any thing, it must proceed all along on
the supposition of the existence of a substantive branch to such
and such an effect. But this supposition is all along false: this
being the case, I may leave to yourself to imagine the confusion
that can not but ensue. Add now the machinery of a Jury to a
system of procedure not yet in existence, here we have two false
suppositions mounted one upon another.

A system of Judicial procedure, is a system of operations
to be performed by, or under the direction of a Judicial establishment:–
that is to say, a body of functionaries, of which the order of
Judges are the principal and directing members. For the arrangement
of an Establishment of this sort, about the year 1790, I drew up a
Code, the principles and reasons of which are developed in great detail.
It was not published here. But 100 Copies of it were, under my
eye, put, by the Earl of Shelburne, who 7 or 8 years before was Prime
Minister here, into the hands of the then French Envoy here, Mr. Bartollemythelemy,
by whom they were transmitted to Paris. The Duc de
Rochefoucault moved, in the National Assembly, that the
words should be translated into french, and printed for the use of the Members:
he

Identifier: | JB/013/231/001 "JB/" can not be assigned to a declared number type with value 13.
Date_1	1820-09-19	Marginal Summary Numbering
Box	013	Main Headings
Folio number	231	Info in main headings field	jb to mora letter i
Image	001	Titles
Category	correspondence	Number of Pages	1
Recto/Verso	recto	Page Numbering	c1 / d2 / e2
Penner	john flowerdew colls	Watermarks	c wilmott 1819
Marginals		Paper Producer	andreas louriottis
Corrections	jeremy bentham	Paper Produced in Year	1819
Notes public	draft of letter 2689, vol. 10	ID Number	4680
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