date

8 May 1807 Scotch Reform Letter
8 May 1807

Scotch Reform

Letter VI

Letter VI

Recapitulation

The ideas submitted in the preceding /foregoing/ letters have some of them found a very unexpected support in those delivered in the Memorial signed by 11 out of the 15 Scotch Judges: others from a passage or two in the Report made to the Faculty of Advocates by their Committee.

In two[?] of the three /two or three/ Courts with 5 Judges in each as proposed in the Resolutions [...?] three Courts by the Bill, I ventured to propose single seated judicatures throughout - as many of the Lords of Session as those to be resorted to sitting in separate Courts. This idea to the extent of ││ in number is among the proposals contained in the Memorial - Out of the 15 judges 11 or omitting the President 10 at least, consent to be employed all their lives long in the character of Judges acting [...?], even with[?] the rest[?] sitting above them in a Court with 5 or ││ seats in it.

With the benefit of such an arrangement as this there will be neither occasion nor use for the proposed Chamber of Review. To this I heartily accede: but with this addition - nor for the proposed Chambers of Session neither.

The proposed Chamber of Review is by its local station /proposed situation/ disqualified from answering the purpose of the /the due discharge of any of the functions/ here-proposed Court of Lords Delegates.

The proposed Chambers not of Review are disqualified in the same respects by the same cause.
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  • Title: [10 May 1807 Scotch Reform Letter]
    Description: 10 May 1807

    Scotch Reform

    Letter VI

    Letter VI

    III. Review Chamber

    That whatsoever be the number of Chambers into which the existing Court comes to be divided, they shall not sit any two of them the same day. And accordingly that their anxiety may be the surer of finding itself relieved /its relief/, a discovery is made that any such arrangement as that of a simultaneous sitting on the part of two or more of such Chambers is a physical impossibility: an impossibility discovered by the same penetrating eye that discovered that a mode of judging most excellent for ,5, was incapable of being applied to ,5:1 s.

    It is on this impossibility it is that is grounded the inescapable bar to the institution of the /division into/ three Chambers, as proposed by the Bill instead of the two, the numbers proposed by those learned Memorialists. This impossibility that three Courts of co-ordinate authority can sit in or near the same edifice at the same time for further proof of which see the 4 Courts continually sitting at the same time in Westminster Hall being [...?] in a parenthesis, the consequence is undeniable /undisputable/ beyond dispute/ As they can only sit alternately, a considerably greater quantity of business will not be done by these Chambers than by two - at least not in a degree sufficient to counterballance the inconvenience (where are they?) which will arise from the greater number of Chambers + As the said three Chambers can "only sit alternately", "this inconvenience (art. 4) and confusion" (what inconvenience what confusion?) "will be increased and all method and regularity in the arrangement of the Rolls, and in considering the business of the Courts, much impeded."

    This is so my Lord and without dispute, what in Scotland are the real and what are not the real ends of judicature, and in England may not the same right be seen, and with equal clearness, spite of all disguises?

    + They propose 5 at [...?] viz Outer Houses

    +1 "and indeed (art.8) can only sit alternately)

    +2 an impossibility, which under the impossibility of finding proof for it, not to say colour of proof, is for shortness likewise for-granted:
  • Title: [16 May 1807 Scotch Reform Letter]
    Description: 16 May 1807

    Scotch Reform

    Letter VI

    Letter VI

    V. Authoritative Plans

    As to the (remaining) Inner House, with the remaining 7 judges which the majority of the 15 propose to have in it, Your Lordship is already apprized of the considerations which represent it to my view as not better than a nuisance: one intermediate stage of judicature betwixt a lower judicature and the House of Lords, a Chamber of Review still, only comprized /though built out/ of the old materials without the addition of any new.

    your Lordship, as an Englishman can /could/ hardly regard it as a very serious deficiency. that between eight /8/ Chancellors all sitting upon a [...?] in so many different Courts there should be not intermediate Court of Appeal interposed between these Courts and the House of Lords. Between our Equity Courts and that highest seat of judicature, there is no such half-way house. In Chancery, in the Exchequer, does Equity make its progress /get forward/ at too quick a pace?

    But the [...?] lies not in England but in Scotland. And the majority of the learned Memorialists, with all their abhorrence for the proposed, new-fangled Court of review, insist on having one, so it be comprized of the old materials. Humour them, my Lord, if /that in/ your Lordship's judgement, the lieges join with them in their hearts /join with them/ in insisting upon it, and not otherwise.
  • Title: [10 May 1807 Scotch Reform Letter]
    Description: 10 May 1807

    Scotch Reform

    Letter VI

    Letter VI

    III. Review Chamber

    Another instance in which for my unauthoritative conception and weak reason I have found a support, and that a highly valuable one is the authority of their learned Lordships is an observation of mine which helped /had contributed/ to form the ground for my Court of Lords Delegates.

    "The most important and doubtful points of law often occurr (say they art. 40) in cases where the property at stake is very considerable, or where the parties are not in affluent circumstances." "Some of these causes" (continue they) "may be prevented from being appealed to the House of Lords, merely by the additional expense which must be incurred in passing through the Court of Review:" and yet, in such cases of importance" (conclude they) "it is obviously natural, both for the parties and the law that the judgment of the House of Lords shall be obtained."

    Thus for their /the/ learned Lordships /Judges/. Good, say I, of the proposed additional stage or degree of judicature. Equally good to some purposes at least of every one of the existing stages. For where is that Court of Justice, however high or however low, if the transactions of which it is not desirable that the supreme superintending Court should be informed to the end that in future at least wheresoever injustice appears, the current of it may be stopped?

    Apply this to the Sheriff Deputies' Substitutes' Court - to the Sheriff Deputes' Substitutes Court - to the Bill Chamber in the Court of Session with the eleven or twelve Lord Ordinary, sitting in it in vacation week after week, from each one[?] of whom /foregoing/ to his next successor a vertical appeal may be presented - then on to the Inner House then back to another Outer House, then again to the Inner.