date

18 March 1807 3 To apply the
18 March 1807

3

To apply the distinction to the case in hand - that of appeals /appeal/.

The malâ fide appellant /the malâ fide suitor/ is that species of man most of whose existence I have been employing[?] so much and I fear such fruitless labour to impress the conviction upon Your Lordship's learned Reformer's mind. He himself is as well satisfied as any body /one/ else can be of his having no rights to the sort of service which by the appeal he prays /demands/ for, but forasmuch as under the protection afforded to him under the name of law by learned Lords and Gentlemen he finds it or renders it his interest to persevere in such demand, to persevere accordingly.

The appellant who though by the supposition he is in the wrong, is not conscious of his being so, and therefore is not a malâ fide appellant, may according to analogy, reference being had to the above cardinal distinction, be termed though a bonâ fide a temerarious appellant - his conduct in respect of his preferring such appeal may be said to be coupled or tinctured with temerity - and so forth.
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  • Title: [18 March 1807 8 But in this]
    Description: 18 March 1807

    8

    But in this case if it be temerity that is meant to be imputed to the appellant, temerity as conveying a distinct idea, and presenting in a direct manner the ground of the arrangement taken to his prejudice, temerity I say is the word that ought to be employed: temerity, as being susceptible of but one [...?], and that a proper one, as being applied directly to the conduct of him who in consideration of such conduct is to be taken in hand and burthened; not frivolousness as being applicable to either of divers subjects it is difficult to say to what, and at any rate not directly to human conduct, the subject for which an attribute is required.

    Tinctured or not with temerity, and so again with malâ fides the conduct of the Appellant in preferring the Appeal wil have been productive of vexation. Has the production of that vexation his sole or principal object in view? the pleasure of contemplating that vexation the motive by which he was actuated? Here is the modification of malâ fides. But to keep clear of ambiguity, and lest a man whose object was no other than to gain /the benefit on/ a [...?] what he looked upon as his rights /due/ may not under the name of costs or any other name be punished or otherwise afflicted for it, malâ fides and not vexation is the mask on which the affliction ought to be stamped.
  • Title: [18 March 1807 And now, my Lord, as]
    Description: 18 March 1807

    And now, my Lord, as to the use of this distinction - the practical use, but for which believe me my Lord I should never have attempted to pester Your Lordship with this or any other any such dry theory. For in these our[?] days, in the judgment of learned Lords and Gentlemen, not to mention so many other venerable [...?], in whose gravity occupies the place /in whose reverend minds Gravity sits in the place/ of wisdom a man who thinks and reasons before he sits[?] is a metaphysician, and being a metaphysician is thereby ipso facto a Frenchman, a Jacobin, an [...?] and a Papist convert. I hate metaphysics, was the cry of Burke: and on /in/ that time at any rate the sincerity of that most consummate of rhetoricians, whose every word was a diamond was not to be doubted of. Metaphysics is the term of reproach given to the language /discourse/ of every man whose study it is to have as a /lay the/ basis for honest and beneficial practice, to convey clear ideas. To the party man, the lawyer the rhetorician the imposter in every shape metaphysics thus explained, or in other words clear and close reasoning are [...?], and for the same reason that lamps and lanterns are so to thieves.

    I beg Your Lordships pardon, if this [...?] or this metaphysician if as such it must be [...?] the practical use is this.

    Upon the learned Reformer's faithful and apparently [...?] friend the malâ fide suitor, the /costs/ remedy will not operate: for either [...?] will not pay the costs at all, or if he does, it is because he finds it his interest so to do, inasmuch as the appeal determined and all charges paid he knows he shall will find himself[...?] by /upon/ the ballance[?].

    Upon the other sort of appellant, the appellant who though he is so the [...?] is not conscious of being so, the remedey /nostrum/ called costs will be equally /alike/ imperative: why? because, expecting to be declared in the right, he does not expect to pay them. And under one or other of these two divisions are included all persons upon whom the remedy of it was good for any thing could operate.

    To be sure if there were no such persons who notwithstanding whatever may be done towards the application of this remedy, composed of terror of costs, would find or deem it their interest to persevere in an appeal of the groundlessness of which they were conscious, there would be no such persons as I have taken the liberty to introduce to Your Lordships learned Reformer's notice under the name of malâ fide suitors: but presently a door shall fly open, and a chamber shewn, in which they may be seen revelling in crowds /swarms/, sucking the blood of injured innocence.
  • Title: [[094-157v] 16 Apr. 1807 To]
    Description: [094-157v]

    16 Apr. 1807

    To L d Grenville

    Letter V

    Proper Procedure[?]

    Permitt me once more, to beg your Lordship's attention to the distinction between malâ fides and bonâ fides. In this /On this/ as in so many other cases /as [...?] every thing turns upon it // on so many other occasions/, it is a cardinal one: the whole enquiry hinges on it.

    In such instance, the Appeal Writ of Error or by whatever name the innovation made of the controling authority of the superordinate Court be diminuated, will be a malâ fide Appeal, or a bonâ fide: he by whom it is made will be conscious of his not having the right on his side, or his mind will be clear of that immoral consciousness.

    In both instances the effect of the system will be to increase the number of appeals: and to come at once to the really material part of the question - will increase the aggregate mass of collateral inconvenience, in the shape of delay, vexation and expense, flowing from that source, and without producing any preponderant advantage in the shape of security against misdecision.

    In the two cases its tendency runs /operates/ upon two widely different grounds. I consider it therefore upon each, beginning with the case of the malâ fide

    appellant, whose existence Your Lordship's learned reformer has I hope brought himself by this time to [...?].