date

10 May 1807 Scotch Reform Letter
10 May 1807

Scotch Reform

Letter VI

Letter VI

III. Review Chamber

What that state of things is which in the eyes of those learned Judges does not constitute a grievance to the subject since of the remedies they propose there is not one that bears any distinct reference to it, it may be a matter of curiosity at least to have from the Faculty of Advocates and their Committee, on the supposition that the picture they have drawn /drawn by their experienced peers[?]/ bear any resemblance to the original "The Court" (p. 20) within "these 20 years past, became confessedly incapable of executing the business of the country: - from the number of causes that remain undecided, an immense arrear incurred, unexampled at any former period, and from the continual accession of new business accumulating daily to such a degree, as the Court - in its present form, can ever discharge."

In such a state of things, what is /where to /wherever/ are we to look/ the object of anxiety of these ministers of justice? that justice shall cease to be denied? - No: but that none - no not the least disturbance be given to "that periodical repose" viz: if two partions of 3 months each out of the 12, "which the laborious functions, both of the Judges and Council, in the decided and concluding opinion of these salaried Ministers of justice absolutely request." And to what end? - to the end that such of them as find a pleasure in doing nothing may have nothing to do: and that such of them as contemplate pleasure or profit in the making of books, may make books, [...?] of the books that have been made by their predecessors. That accordingly any /every/ such oppressive provision of that "of the Bill which" enacts that the Chamber shall continue to sit from day to day till the cases before them are exhausted." may be supposed.

That
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    Yes: if all the existing Judges were in the habit of judging badly: and at the same time there were any distinct /clear/ and reasonable ground for expecting that with the proposed reinforcement /in the Chamber of Review the business /work of// judicature would be preformed any better.

    But with submission my Lord, now that the documents are come in, I can find in them no ground for supposing that whatever be the standard of comparison the judgement of the superior /superordinate/ judicature, or the practice of former times in the same Court, misdecision (for delay vexation and expense belong to the system) misdecision the only mode of bad judicature to which the documents concerning which any evidence permits itself has really become frequent.
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    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.
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    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/.