date

17 Jan y 1807 B + I Resolutions
17 Jan y 1807

B +

I Resolutions

II Omissa

III Facienda

Outer House Appeals &c

On the question of law - degrees or stages of jurisdiction - those of appeal included - what is the number best adapted to the ends of justice? On the ground of principle, I may perhaps have to trouble Your Lordship on this subject in another place /in a subsequent address/. At present, for shortness, let us turn to experience. Trying the question by this standard, the answer will be - for /in/ England two degrees only of jurisdiction, one only of Appeal: in Scotland three degrees of jurisdiction, two of Appeal: (always understood that under its present constitution the Court of Session though one in name, in effect includes tow degrees of jurisdiction, whereof one or other is to a great deal worse than useless.)

In England, under the present compleat deficiency or provincial primary Courts two degrees of jurisdiction are found quite sufficient. At Common Law, primary Court the King's Bench, Court of Appeal (by Writ of Error) the House of Lords. In Equity, primary Court, the Court of Lord Chancellor, or the Equity side of the Court of Exchequer: Court of Appeal, again the House of Lords. These are found sufficient: for /from/ the want of any intermediate Court between the Kings Bench and the House of Lords or between the Court of the Lord Chancellor and the House of Lords, no inconvenience was ever so much as imagined.
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  • Title: [17 Jan y 1807 Omissa Outer]
    Description: 17 Jan y 1807

    Omissa

    Outer House Appeals &c

    True it is, that, close to those instances of a single stage of Appeal, English practice furnishes other instances of two /and/ or even of three/ stages. But from /by/ this exuberance in one quart, not the slightest proof or presumption that one /the/ stage of Appeal is not /less than/ sufficient for all cases, will be found deducible. No supposition superiority[?] of difficulty in the one class of cases compared with the other - for in both instances a cause of the same class /sort/ travels through the three stages or through only two of them, as it happens. In both instances then the intermediate stage of Appeal is a mere redundance. The Court of Exchequer Chamber is as already stated no only /merely/ a superfluity, but a most pernicious nuisance. The Court of King's Bench, in its character of an intermediate Court of Appeal between the Common Pleas and the House of Lords, is another nuisance of the same kind.

    In Equity the Court of the Lord Chancellor, in its character of an intermediate Court of Appeal between the Court of the Master of the Rolls and the House of Lords, does not certainly to a degree approaching /comparable/ to these others claim the appellation of a nuisance, but still it can not be mentioned as any thing better than superfluous /a superfluity/. Why? - because whether in this case the additional stages shall be travelled through or not depends - not upon the nature of the cause - not upon any extra demand for consideration which one sort of cause can present when compared with another - but upon a circumstance entirely /purely/ foreign and accidental and irrelevent - viz: the will of the plaintiff or rather that of his sollicitor: according as it happens to be the determination of the plff as the suggestion, and under the guidance of his lawyer to have the cause set down to be heard before the Master of the Rolls, or before the Chancellor in the first instance.
  • Title: [17 Jan y 1807 Two degrees of jurisdiction]
    Description: 17 Jan y 1807

    Two degrees of jurisdiction being thus found sufficient in England, how is it that three can be necessary in Scotland? For this reason my Lord. /My Lord the reason has been already indicated./ We in England have been unfortunate enough to lose our local jurisdiction - our County Courts: the Metropolitan Courts have swallowed them up /succeeded in swallowing them up //devouring them// compleatly leaving nothing but an empty husk/. Brethren in Scotland have been fortunate enough to preserve theirs, their[?] Metropolitan Courts, though they have so long been gnawing[?] and nibbling at them, have not so far succeeded as to [...?] them altogether. To give reality to the pretence of bringing /false and barbarous pretence of having brought/ home justice to our own doors, would require the restitution of our County Courts (with a logical jurisdiction as extension as that of all the existing Metropolitan Courts all put together). In our ladder of jurisdiction having lost its first and lowest round, it has but two instead of the three it ought to have: Scotland having preserved, though in a weak and imperfect state the round[?] which England has lost thence[?] it is and thence[?] only that to Scotland one more round is necessary than England is possessed of.

    On the other hand /But/ /Meantime/ our jurisdiction of these degrees /stages/without the County Courts and with a King's Bench concerned in between the Common Pleas and the House of Lords or an Exchequer Chamber between the King's Bench and the House of Lords, where shall we find the model of it? In a ladder of /on/ three rounds, but the lowest round broke to pieces /rotten/ and between the two highest a third stuck /thrust/ in, but in so awkward a manner, that in straining and striving to square in his foot upon it the odds[?] is that besides gulling[?] his foot a man tumbles to the ground.
  • Title: [14 Feb y 1808 1. No Reporting]
    Description: 14 Feb y 1808

    1. No Reporting

    1. Analogous Practice

    II. In the judicial establishment of England it is without a parallel.

    In the Court of Chancery on the Equity side are contained two perfectly distinct judicatories: that of the Lord Chancellor, and that of the Master of the Rolls. In matters of Equity, the field of their jurisdiction has the same limits. Throughout that extent an Appeal has[?] from a decree of the Master of the Rolls to the Lord Chancellor. But the Master of the Rolls where once he enters upon a course ends it: to him it is not allowed to finish a cause or to send it up unfinished to the Lord Chancellor at pleasure.

    From the Common Pleas much for /Thus much as to the two/ single-seated judicatories: turn now to the /three/ many-seated, the three four-seated judicatories.

    From the Common Pleas under the name of a Writ of Error an appeal [...?] to the King's Bench. But the Judges of the Common Pleas do not report causes to the King's Bench: to them it is not allowed to finish their business, to send it up unfinished as they please.

    From the King's Bench a Like appeal [...?] to one of the Exchequer Chambers. No reporting here.

    From the Exchequer like appeal to the other Exchequer Chamber: no reporting here.

    A few exceptions will on a clear view afford but a confirmation of the general rule.

    1. In the Equity side of the Court of chancery, a /the/ sort subordinate Judge called a Master makes what are called Reports to the Chancellor or the Master of the Rolls to whichever of the two the cognizance of the cause has been attributed. True: but to /by/ the Master no decree final or so much as interlocutionary is ever made. Whatsoever business he performs he is bound to perform: he beholds no sort of business which he may choose[?] whether he will do or not do as he pleases: and so thus it is that the grievance coexists.