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ON THE DELAYS INCIDENT TO THE COURT
Continued from p. 172.
To the Lord President of the Court of Session.
OUR ancient laws and regulations, however vene. rable, cannot in every particular be well adapted to the manners and situation of the present day. But as all human institutions admit of being modified, some of them are moulded by time and usage, into the form required, and others require a direct alteration, to answer the change of times. A gradual alteration has taken place in the mode of pursuing and defending an action. Unnecefsary processes are no longer raised, to vex and harass an opponent in place of aiding or securing the recovery of the debt; and dilatory and unavailing defences are justly considered as unbecoming the practitioners; who are also in use to concert matters with each other, as to the time and manner of proceeding in the cause: but although, by these means, a good deal of the former waste of time is saved, much more must be done in order to attain the desirable object of cutting off as far as may be all unnecessary delay.
In no one instance, is it more difficult to do so than in the case of an appointment to make up a state VOL. Xvii.
and order of ranking. Such a state must be lodged before the cause can proceed, but yet the common agent cannot lose his cause, by not preparing it against the day afsigned to him; and although he were to forfeit his office, still his clerk or his friend might be elected, and he enjoy the profits, through a continuance of the same favour and countence of his brethren, by means of which he first obtained
He might also find means to have a fine or a penalty dispensed with, and even though the fine fhould be rigourously exacted at first, the common relaxation of it would soon take place.
It is or ought to be a favourite object of new regulations to reach evils of this description. At the same time it is scarcely possible to suggest an adequate remedy. What I would submit to your lordfhip is, that the creditors fhould be subjected to a lofs for the neglect of their agent, and that the clerks of court fhould have a fee, (for example) of 21 per cent on the fund of division, and also that a new fee of the same amount should be due to them as often as the common agent should fail to obtemper a renewed order for lodging the state.
As such a forfeiture would embroil the agent with the creditors, he would be careful neither to suffer the lofs himself, nor by subjecting them to it, to incur their displeasure. And from, the constitution of the court, (not to mention the character of the members,) there can be no ground to fear that the clerks and the practitioners could connive together in such a case.
In a procefs of ranking and sale, delays occur, previous to the order to make up the state, of which is not extracting the decreet of certification. It is not easy to compel the common agent to take out the extract; but the interlocutor or decreet itself may be made final in two, three, or four E weeks, as may be thought expedient; and a regulation ought also to take place against opening it up on slight pretences, such as are admitted of at present, or indeed on any occasion fhort of minority or inability to act. This appears to be necefsary for bringing forward the creditors to produce their interests in proper time.
Other delays occur after the state and order is lodged. It always contains objections against numbers of the interests or grounds of debt produced for the creditors. And be fore the process can travel round the different doers, for these several creditors, to have the objections answered in succefsion, not weeks or months only, but, whole sessions are sometimes consumed. Almost an equal space elapses in the making of duplies, and perhaps half the time may be taken as the medium for lodging replies; but this letter is already too long to follow the subject farther, and therefore I hasten to close it, being &c.
ON IMPROVEMENTS IN ARTILLERY.
FOR two reasons, I thank you for inserting in your useful miscellany, page 73 of this volume, the inscription which I sent you from Stirling. The first is, because it is an example of that simplicity, which, in my opinion, ought to be in all such inscriptions. And the second is, because it conveys a most important truth to the lovers of mankind, and to the lovers of warfare. As I respect the author of it for these two reasons, I resolved to see him when I went to Glasgow, in order to hear his defence to my charge, which is in the following words in the same page: "I am informed that the gentleman who wrote the inscription has dedicated a great part of his time to the perfection of military engines of destruction. How he can reconcile his theory with his practice, I pretend not to say." When I urged this argument at some length, he said to me: yours is a common opinion both with the vulgar and the learned; but it is very far from being well founded." And he then not only read to me the following pafsage from one of his essays on war, but he allowed me to take a copy of it.
"Those persons who have had the greatest knowledge in military affairs have remarked, that victory is almost constantly obtained by producing unexpected danger. From which it follows, that besides the advantage of using a powerful gun, the using it in situations where it is not looked for, will contribute
greatly to the succefs of afsailants. And, it is a pleasing reflection, that the more the art of killing l men in battle is improved, the fewer men are killed; as appears by comparing the list of the killed and wounded in modern, with that in ancient battles, when the numbers of the combatants were equal.
"This remarkable event has arisen from the use of gun powder in war, and from the improvements of muskets and field pieces, which have made the following changes in the mode of fighting.
"Before the invention of fire arms, the combatants in battle had foot to foot, and fhield to fhield, so that he that fled, was almost certain of death, or of wounds; but in modern battles, the combatants are so seldom near each other, that in general flight produces safety.
"In the ancient engagements, personal enmity was almost unavoidable, because every one saw his adversary; which, joined to the practice of killing or selling the prisoners, produced an obstinacy in the ancient battles very different from that in the modern, in which the distance and the smoke, hinder the combatants from knowing each other, and in which all the prisoners are treated with the utmost humanity.
"The armies of ancient times were arranged in deep columns with narrow fronts. But, since the improvements on muskets and field pieces, armies have been arranged in long thin lines; so that the battle is never general at the same time, nor consequently the flight. This makes it dangerous
pursue; because there are always parts of the