date

13 May 1807 Scotch Reform
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.
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  • Title: [13 May 1807 Scotch Reform]
    Description: 13 May 1807

    Scotch Reform

    (1)

    Letter VI

    English Review Chamber

     After the inefficacy of the [...?] for remedies against malâ fide suitors.

    Prevention of usurpation of judicature, or of ununiformity of decisions /among decisions/, one or both must be if not the sole at any rate the principal grounds /reasons in the way of us/ in point of utility, admissible in support of the superintending jurisdiction of the House of Lords: and this whichever[?] of the three kingdoms be considered.

    Your Lordship sees how clear the line of distinction is which distinguishes /separates/ the malâ fide from the bonâ fide suitor.

    Your Lordship sees at the same time that it is not quite so conspicuous /prominent/ to the eyes of Scottish as to those of English Judges.

    In the Court of Session these have never yet been any such manageries /for the breeding of those species of vermin[?]/ as those of Westminster Hall.

    On the Scotch breed there has never been any such [...?] as in the English breed.

    Of the existence of these their pupils and wards not to say offspring /progeny/, the Scotch Judges have never yet been served /received/ with legal notice like that which in 1798 was served upon the English hierarchy by the Committee of Finance.

    /+In the College of justice the malâ fide appelants wear not any such badge as that by which they are so perfectly distinguished, and their members[?] so compleatly known /exactly counted/ to a man, as in Westminster Hall./
  • Title: [24 May 1807 D 2 Letter V]
    Description: 24 May 1807

    D 2

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    VIII. Appeal left mutilated

    IV. Uses

    1. Effects in respect of the malâ fide appeals.

    1. The malâ fide appeals may be all of them stopped without any Chamber of Review. They owe their birth to that arrangement of Scottish law, by which Appeal is made a bar to execution: which thereby gives the Appellant, when in the wrong a profit by the delay and such a profit as is in some cases a real one. Take away this profit, this proportion of the actual appeals to the House of Lords will disappear without any intermediate Chamber of Review.

    2. I have stated that the arrangement which makes Appeal a bar to execution as an arrangement pregnant with injustice: uncompensated injustice in the shape of delay, vexation and expence and that the instances in which injustice is produced by it are naturally and at all times and in all places in a very high proportion vastly more numerous than those in which it is saved: and in particular the instances in which injustice is done to the good people of Scotland in the persons of those suitors whose adversaries, in the character though not under the name of malâ fide appellants, present appeals in the House of Lords.

    3. Of the malâ fide appeals presented from the Court of Session, undivided or howsoever divided, the number will be encreased, by the Chamber of Review: increased to a certainty, if the application of the proper and natural remedy so often spoken of - viz. cutting up by the roots the profit by the delay, be avoided, with that anxious care with which it seems hitherto to have been avoided: encreased to an amount depending on unforeseen contingencies, but of which some loose conjecture may be formed, from the relative amount to which we have seen it raised by the fostering care of the English Judges: viz. in the proportion of 89 to 1 to the bonâ fide appeals.
  • Title: [15 July 1807 2 Letter V]
    Description: 15 July 1807

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    Letter V

    IV. Bonâ fide Appeals

    Forgetting then their existence for the present, and only for the present, (for soon Your Lordship shall be enabled to entertain him with a sight of Scotch-bred ones by scores as well as English-bred ones by hundred, all of them with the name malâ fide Appellant written upon their foreheads) I will consider the proposed additional Chamber on the footing of the effect it would have if there were no sort of litigants or sort of appellants to be found in any one of his Majesty's three kingdoms but bonâ fide ones.