date

May 1807 Scotch Reform Letter
May 1807

Scotch Reform

Letter VI

Letter VI

III Proposed Review Chamber

III: Proposed Chamber of Review

On this head my notion was and is - that its considered as to its operation on the number of Appeals from the Court of Session, and the delay &c produced by /attached to/ these Appeals, instead of a diminution it would produce a certain encrease. Taking away the profit of /by/ delay not being any part of the plan, a profit which being in proportion to the quantity of delay, was augmented by every stage of jurisdiction, the proposed additional stage of jurisdiction would give a proportionable increase to the number of malâ fide Appeals: and how it should produce any considerable diminution in the number of bonâ fide Appeals I could not see any otherwise than in so far as, by exhausting the purse or the patience of the party, who conceiving injustice done him by the Chamber of Review found himself under an inability of taking his [...?] for justice Masters[?] /higher up/, it might happen to it here and there by means of the expence to operate as a denial of justice.

In regard to such malâ fide Appeals, such of them as the result of Commercial calculation on the part of a defendant in solvent circumstances, seeing one way only but that a sure one of preventing them, I proposed the making whatever /such/ arrangements might be necessary to prevent his deriving /reaping/ from the delay any real profit under any circumstances: proposing on that view that after a decree of the Court of Session, Appeal should to in general stop execution, any more than it does after the decree of an English Court of Equity: and since /forasmuch as/ not only the Appeal, itself but the defence intendant to the decree appealed from might have for its motive and final cause the profit from the delay thus manufactured. viz: the interest or greater profit made by the [...?] by the use of the capital wrongfully [...?], thus profit or rather something more than this profit might always be taken from him.
Similar Items
  • Title: [24 May 1807 D4 4 Letter V]
    Description: 24 May 1807

    D4 4

    Letter V

    VIII. Appeal list mutilated

    IV. Uses

    3. Upon that part of the effect which bears relation to the bonâ fide portion of the possible number of appeals will turn whatever doubt of difficulty may overhang the effect of the proposed Review Chamber in respect of its influence on the neat quantity of inconvenience in the shape of delay, vexation and expence, likely to be produced or expunged by this proposed additional stage of jurisdiction proposed to be interposed between the supreme Court of judication situated in Scotland and the House of Lords.

    4. The malâ fide Appeals presentable from the Court of Session to whatsoever Court they are or may come to be presented, owing their birth to the non-application of the profit-expunging principle - a cause in which the aptitude or inaptitude of the state of judicature in either respects has no connection, all questions concerning such aptitude or inaptitude will be or at least ought to be confined to such proportion of the whole number of appeals as come under the description of bonâ fide Appeals: whether such magnitude, if any, absolute or relative, relation being had to the state of judicature in the other two kingdoms, or in any foreign states have for its cause or causes, for example, te unsettled state of the substantive or main body of the law - the multiplicity of the Judges and the composition of the judicial establishment in other respects - the adjective branch of the law or the system of procedure - or any deficiency, habitual or accidental, respecting the personal aptitude of individuals, assignable or unassignable, in the assemblage of the Judges.
  • Title: [13 May 1807 Scotch Reform]
    Description: 13 May 1807

    Scotch Reform

    (2)

    Letter VI

    English Review Chamber

    In the malâ fide suitor the authors of his existence behold in every country that sort of progeny whose existence they would be glad to conceal from the whole world, any, to make sure, if possible, from themselves.

    In Scotland, the connection between the parent and the offspring being so much less intimate than in England, the Scotch Judges seem almost to have /to have been/ succeeded in their endeavours not to distinguish the malâ fide suitor from his legitimate brother.

    For the diminution of the number of Appeals they propose measures /the measures //remedies// they propose are such/, the efficacy of which (so far as they go) is as certain in regard to malâ fide appellants, as their inefficacy is in regard to bonâ fide appellants. Unconscious or effecting to be so unconscious of the destruction, they give these remedies as acting with indiscrimating efficacy upon all appellants and all appeals.

    Conformable to this difference between eyes half-shut and eyes wide open is the difference in the treatment given by the parents in the two countries to their respective progeny.

    In Scotland Your Lordship has seen them[?], at out-running[?] even Abraham in the race of obedience, making a spontaneous sacrifice in appearance of the whole, in reality of a great part of a progeny whose relationship to them is comparatively so obscure and indeterminate.

    Their Reverend brethren in England know[?] betteer things. They feel, and feel most sensibly, that as in America all children /children in general/, as[?] in England these their children are to their parents not only objects of affection and [...?], but sources of opulence. Leaving Abraham to their learned brethren as the other side of the Tweed, they look to the practice of the [...?] adder as a much more convenient precedent.

    To speak plain my Lord, the Judges of the Court of Session make /derive/ no profit from any of the Appeals made from their judgments: whatever profit they draw from the nalâ fide suitor plaintiff or defendant, is drawn from him previously to appeal /the [...?] of the suit at that stage/ the only interest they have in positioning the number of malâ fide appealed causes undiminished is this - viz: that in some instances it is by the contemplation of the delay and expence he is enabled to impose upon his adversary with [...?] and by means of the appeal, he is reduced[?] to institute or defend - bring into or keep in the Court of Session a cause which either he would not have brought into it or not have kept in it.

    Scotch Judges thus make no money from Appeals after Appeal presented. As to English Judges the money they make.
  • Title: [24 May 1807 D3 (3) Letter V]
    Description: 24 May 1807

    D3 (3)

    Letter V

    VIII. Appeal list mutilated

    IV. Uses

    II. Effects in respect of the bonâ fide appeals.

    1. On the number of the bonâ fide appeals the remedial principle abovementioned - viz. the profit-expunging principle, would have no influence worth regarding: no certainty that so much a single one of them would be stopped by it from going from the Court of Session to the Court of appeal immediately above it: viz. to the House of Lords as at present: or to the proposed Edinburgh Review Chamber, as proposed.

    2. Consequently, by the application of the profit-expunging principle, how useful soever in other respects, no defalcation would be made from the burthen of the draughts made at present by Scotch Appeals upon the disposable time of the House of Lords.

    From the number habitually presented, a great part - the half, for example, more or less, according to circumstances, would be struck off: but by this defalcation, no such exoneration would be effected: for of the Appeals presented to the House whatsoever draughts are made upon the time of the House are made by those only which are heard: and of the portion consisting of the malâ fide Appeals, and defalcated by the operation of the profit-expunging principle, none are ever heard: it not being necessary to the purpose, nor accordingly part of the design of those who present them that they should ever be heard: before the time comes for hearing, they are either withdrawn, or suffered to be dismissed for want of being prosecuted.