date

15 Jan y 1807 On the question of law
15 Jan y 1807

On the question of law though it be seen at once that the number of degrees or stages of jurisdiction, including degrees or stages of appeal (which are always one less in number than the stages of jurisdiction) can not be, at least that they /or at any rate that it/ ought not to be unlimited, still the question recurrs - what ought to be the precise number?

The answer seems not difficult to find /pretty decidedly /precisely/ determined by the preceding considerations /foregoing observations/.

1. For maintenance of constitutional supremacy no other arrangement can be so promptly or surely effectual, as that which gives the appeal immediately from the /each/ primary Court to the superior Court: establishing thereby but two degrees or stages of jurisdiction, but one degree or stage of appeal.

2. By the same most simple of all arrangements, uniformity of decision, consistency and determinateness of the rule of action, thence certainty and cognoscibility are most effectually provided for.

3. So likewise with least[?] delay, vexation and expense to all descriptions of persons in whatsoever way particularly concerned, suitors, witnesses, judges, ministerial[?] officers of justice.
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  • Title: [17 Jan y 1807 B + I Resolutions]
    Description: 17 Jan y 1807

    B +

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    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.
  • Title: [15 Jan y 1807 Then again as to the]
    Description: 15 Jan y 1807

    Then again as to the number of successive recurrences. When the appeal is on the question of fact alone the number, as above stated, need not have any pre-defined limits. Between Jury and Jury there is not subordination: they stand all upon a level: it is not as in a chain of Courts one mounted above another: when once the appeal has got /risen/ to the highest, then of necessity it slips.

    Among Juries, setting aside the English distinction between Common Jury and Special Jury, of which however no such use is made, we expect not to find one Jury better, more trustworthy, than another. There were formerly indeed the Grand Jury on Attaint[?]: a Jury of 24, whose business was to devote[?] to ruin the Jury of 12, as often as they saw any reason for thinking differently: but here ended the number of stages among Juries: and for this century and a half or thereabouts happily the upper stage has not been used.

    But as between Court and Court, on the question of law, the grand object being the importance of the decision in the way of precedent, the appeal has naturally been from a Judge supposed less trustworthy to a Judge regarded as more trustworthy: and in this line of ascent the number of stages it is evident could not be long before it comes to its ne plus ultrà /an end/.
  • 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.