date

17 Jan y 1807 Omissa Outer
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.
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  • Title: [25 Dec r 1807 Table VII. Jurisdiction]
    Description: 25 Dec r 1807

    Table VII. Jurisdiction Table VII

    Notes

    '.II. Stages of Appeal, how many?

    Subordinate Topics.

    1. In point of fact, in English and Scottish judication respectively, how far, in the several states of jurisdiction, the real number of stages coincides with the apparent: viz. in what instances is it greater?

    2. Herein[?] if disguised stages of Appeal. In English Equity, procedure, for example. Report by a subordinate Judge (and[?] Master[?]) and Exceptions thereunto, argued before the supreme Judge: the Chancellor or the Master of the Rolls. So in Scottish procedure, in the Court of Session, vibrations between the Bill Chamber, and the two Houses, Inner and Outer. *?

    3. In point of utility, what are general principles in the proper number of stages of Appeal? See Shapes of injustice

    4 By what particular circumstances, topographical or logical (logical, resulting from the place of the cause in the field of judicature) are indications afforded for the diminution or augmentation of the number of these stages?

    5. In point of fact, Comparative multitude of intermediate stages in Scottish judicature in comparison of English and Irish; no regard being had, in the case of the English, to the cases most frequently exemplified in practice.

    6. In point of utility, how far it is desirable, that the number of stages, through which the suit is capable of being made to pass should rest on the arbitrary will of the Plaintiff or his Attorney, to be exercised either at the outset of the cause (ex. gr, by commencing[?] it either by Original, (which throws out the Exchequer Chamber) or by Bill, which leaves the Exchequer Chamber in) or at any intermediate period[?]: ex. gr. in Chancery by setting the cause down for hearing either before the Chancellor or the Master of the Rolls?

    N.B. Analogous to this in criminale is the practice, which in capital cases, gives a power of pardon to the prosecutor, by leaving it at his option to ground[?] the indictment on a Statute subjecting the offence to capital punishment, or on a Statute subjecting it to a punishment less than capital, or on the Common Law.
  • Title: [14 Feb y 1808 II. No Inner House Causes]
    Description: 14 Feb y 1808

    II. No Inner House Causes

    English judicature it may be observed presents /affords/ an instance of a Court in which of two causes of exactly the same description in every point, the decision in one [...?] be object to appeal, the other not: and thence, taking it /each/ in the whole of its course, one shall have three stages to run through, the other but three.

    The Court is the High Court of Chancery ion which if the course as set down to be heard by the Master of the Rolls, Appeal has from his decree to that of the Chancellor, and from the Chancellor's to the House of Lords: number of stages those whereas the same cause if not set down for hearing before the Chancellor, goes from him in case of appeal immediately to the House of Lords: number of stages here, but two, whether the ladder shall have three steps belonging to it /in it/ or but two depends in this case - not upon any Judge - but upon a party, viz. the [...?...?], if governed /directed //guided/ by his attorney as a non lawyer in his bleadiness[?] naturally will be, [...?] upon the Attorney.

    But with in this diversification - wills this continuity[?] will this inconsistency - human reason, looking to the ends of justice has nothing to do /had no share //borne no part/: accident at the best, found[?] though now undiscoverable not improbably determined in this as in so many other instances, the destiny of suitors. Of the Master of the Rolls, the office his [...?] imports, was not in its origin a judicial office. His business was to keep parchments: to take care that they should not be stolen or destroyed, or the scribble they were scrawled with rendered by falsification more unintelligible or more or less adverse to justice than it was designed to be. The qualities looked for on the part of this law office were no other than a labouring man looks for and commonly finds in his dog: the business of the dog is to sit upon his Masters coat while he is at work, that no thief may run away with it: the business of the Master of the Rolls to set by and guard /preserve/ against the different class of thieves[?] /malefactors/ those pretious parchments.

    / Accident, fraud, and trust joined, according to the current but imperfect geography, in marking out the field of authority submitted to this judiciary./
  • Title: [17 Jan y 1807 B + I Resolutions]
    Description: 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.