date

9 May 1807 Scotch Reform Letter
9 May 1807

Scotch Reform

Letter VI

Letter VI

III. Review Chamber

In regard to the prohibition proposed to be put upon Appeals from interlocutors, my notion was, that whatever might be /may have been/ the design, in tendency it went to undermine and annihilate the judicial authority of the House of Lords: a part of the constitution in which the preservation of it appeared to me that the people in every one of the three kingdoms in general and the kingdom of Scotland in particular had and have the strongest interest /an interest of the highest nature/.

On this head, indeed, turning to /from /in/ the proposition brought forward by the learned Memorialists, I am not fortunate enough to find any thing like a support. On the contrary I find them exactly what they would be /have been/ upon the supposition of a plot amongst the Scotch lawyers to undermine the authority of the House of Lords as above, and the Memorializing Judges parties to it: their proposition on this head being that the superordinate Court shall exercise no such controuling authority over the subordinate in any individual instance such [...?] excepted in which by their certificate it shall have been the pleasure of these their subordinates to grant them a licence for that purpose - " We are of opinion " (art - 47) that "appeals ought not to be allowed from interlocutory judgments, unless it shall be certified by the Court" so and so -: the Court /Court in which of its 15 Judges,/ comprized of the learned Memorialists themselves /are eleven/.
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  • Title: [[...?] May 1807 Scotch Reform]
    Description: [...?] May 1807

    Scotch Reform

    Letter VI

    Letter VI

    Part I

    Conclusion

    Upon the whole, the following are the instances in which the obscured and non-officed non-lawyer has the honour /satisfaction/ of finding his ideas honoured by the concurrence of those highest among the official lawyers.

    1. Preference given to single seated Judicature for judicial cognizance in the first instance.

    2. practicability and superior excellence of Natural Procedure - not indeed directly confessed by the Memorialists /Memorializing Judges/

    as a body, but virtually - or indeed more than virtually, by their Right Honourable procedure, their head by whose views those of the body appear plainly enough to have been on this occasion desirable.

    3. indigestibility of Jury Trial in civil cases in Scotland, if mounted /grafted/, as proposed, in the existing branch of

    To the Technical system of procedure.

    4. Utility of the profit expunging principle as a specific against factitious delay at the instance of the suitor, and thence against malä fide Appeals.

    5. Dangerousness Ineligibility of the prohibition of Appeals against Interlocutors, as proposed.

    6. In the existing judicial establishment of Scotland, utility of that part which consists of the system of Provincial or Sheriffs Courts.

    7. Demand created for a more extended mode of superintending cognizance on the part of the House of Lords, by the consideration of the large proportion of cases that [...?] escape it altogether, and among them many in regard /relation/ to which the exercise of its superintending authority is of the most extensive and important use. The way thereby prepared for the erection of the proposed Court of Lords Delegates to stand in the place of all Chambers of Review, proposed, proposable or existing - Scotch, Irish or English.
  • Title: [16 May 1807 Scotch Reform Letter]
    Description: 16 May 1807

    Scotch Reform

    Letter VI

    Letter VI

    V. Authoritative Plans

    The Plan of the Memorialising Judges /memorialists/ at least with the help of the [...?] I have ventured to propose, clears the House of Lords of all the malä fide Appeals 3/7 /4/7/ of the whole number, and the proposition not to speak of the absolute quantity, more likely to encrease than to decrease. At least it takes the right course towards the production of that effect: and with the help of more extensions which I have ventured to propose, and which I should not despair of seeing adopted by the learned Memorialists themselves, bids fair in my view of the matter for obtaining compleat success.

    The plan of the 4 Non-Memorialists (for them I take the liberty of setting down as adherents to the plan of Your Lordships learned Adviser, requiring their silence as equivalent to consent). The plan of the Non-Memorialists contributes nothing whatever towards lessening the number: by encreasing the long delay obtainable, parallel to which runs the profit by delay, it is the contrary contributions indefinitely to the encrease of that branch of the grievance.

    In the part of the majority of the Judges there is it is true, nothing that is naturally incompatible with the plan of the minority. Constituting an advantage on the part of the plan, it therefore constitutes not therefore a radical objective against the other. Yet some how or other, so it happened, it was rejected one of the other. As to the cause of the rejection, my suspicions are already before Your Lordship. - what foundation if any there may be for them in fact, rests with /lies in/ Your Lordship's knowledge.
  • Title: [10 May 1807 Scotch Reform Letter]
    Description: 10 May 1807

    Scotch Reform

    Letter VI

    Letter VI

    III. Review Chamber

    In /By/ the conclusion drawn /formed/ by the learned Memorialists respecting the efficacy of the above regulations in reducing the number of Appeals, I am thrown into no small perplexity, being not simply supported, but over-supported. "If these regulations" (say they) "were adopted, we are persuaded, that the number of Appeals would soon cease to be a grievance to the subject, or a burthen to the House of Lords."

    That /Whether/ in my own edition the efficiency of these regulations in my own conception appear /fail of appearing/ in a very considerable degree greater /more extensive/ than in that given /published/ as above by these learned Judges /Memorialists/, Your Lordship will judge.

    Well then: to begin with the burthen to the House of Lords, my own persuasion is that it is not in the power of these expedients of my own devising, to contribute to the value of a feather towards the lengthening of it. Why? The only class of appeals to which these expedients have any application are the malâ fide Appeals: and these Appeals in how great a degree soever they contribute to form /constitute/ the grievance to the subject, contribute nothing /little or nothing/ at all towards forming /in the formation of/ the burthen /form no part of the burthen/ to the House of Lords. The only Appeals that enter into the composition of the burthen are the Appeals that come on to be heard. But towards the diminishing the number of Appeals that come on to be heard I expect next to nothing, and sit down to account absolutely nothing, from the operation of my principle: taking the profit from the delay incident to appeals may be compleatly taken away, but this admission will not prevent a man from appealing /appeal, on the part of any man who expects to gain his cause by it. The Appeals and almost the only Appeals that will thus be prevented, are those which at present are not heard, but before the time comes for hearing either withdrawn, or for want of being prosecuted, dismissed. And these though not much inferior have hitherto been inferior in number to the others. It is this view of the matter that has suggested to me as an institution of indispensable necessity, the Court of Lords Delegates.