date

18 March 1807 And now, my Lord, as
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.
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  • Title: [18 March 1807 3 To apply the]
    Description: 18 March 1807

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    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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    Description: [094-157v]

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    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.

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  • Title: [17 Apr. 1807 Letter V IV. Judges]
    Description: 17 Apr. 1807

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    My Lord, for the extirpating of the breed of malâ fide Appellants, at no time can knowledge any more than power have been wanting to Judge and C o - at no time can any thing have been wanting but that which has been always wanting - and under the fee-gathering system can never cease to be wanting - interest, and will the offspring of interest. It is what every man - not to speak of women and children - knows, and what not even all their science can have enabled them compleatly to forget that what, in the main, it is a man's interest to do he will, in general, do - and what it is his interest not to do, he will not do.

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