date

24 April 1807 Letter V Inadequate
24 April 1807

Letter V

Inadequate compensation

V. Bail-baiting

VI-VII Bail-Baiting.

In the reinforcement of learned advisors, pressed into the service between the framing of the Resolution and the drawing of the Bill, Your Lordship has, I suspect, numbered either some Englishman lawyer or some Scotchman born fitted up into one anglicized and made into an English one.

The ' cautioners' introduced into this same section, are I am inclined to suspect, English Bail dressed up in the Scotch stile - "Bond for the debt and costs awarded in the said Chamber, with such cautioner or cautioners, as the said Chamber, upon examination of the cautioner or cautioners upon oath in open Court shall approve."

What? find fault with my Bail clause? (cries Your Lordship's learned Adviser) so practical, so unexceptionable - so universally approved? Here is a man that nothing can please: he finds fault with every thing.

My Lord, the history and adventures of this Bail-baiting clause are curious enough. In the English branch of the technical system it is a perfect anomaly: it is a sprig of the natural system, but so ill-applied, as to be of no use. From the sprig thus incapable of coalescing with its first stock a twig is now proposed to be stuck on upon the Scottish branch of the technical System, with which if possible it is still more mis-matched. It puts one in mind of what one sees now and then in another sort of theatre, when a jeofail has happened among the scene-shifters: a piece of a ship with a few waves belonging to it sticking on a steeple or a tree.
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    The clause in containing the provision relative to the security to be found on the presentation of an Appeal instead of a Bill of Advocation or Bill of Suspension is that which is to be found in p. 19 of the Bill, constituting the 3 d paragraph on that page:

    In this clause, if my conception of it be correct, Appeals of two descriptions are meant to be provided for: Appeals from an inferior court to the Court of Session, i.e. when divided into Chambers, to one of the Chambers; and Appeals from any such Chamber into which the cause may thus have been brought, into the Chamber of Review.

    It is with a view to the first case that provision is made that "the party, at the same time that he enters his Appeal as aforesaid, shall lodge in the hands of the Clerk of the Court from which the Appeal is taken, a Bond with a sufficient cautioner or cautioners for the Debt and Costs, if any shall be awarded by the Court of Session."

    To this case nothing I imagine is meant to apply, which is said afterwards in the same paragraph, as will be seen presently, in relation to the examination, in open Court upon oath, to which in the other case cautioners are required to be subjected.
  • Title: [30[?] June 1807 Letter V VII]
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    In whichsoever of the two Courts the intention is that the examination of the Cautioner or Cautioners should be performed, other questions present themselves.

    The means provided by examination or otherwise for establ[ish]ing the sufficiency of the cautioner or cautioners on the preceding occasion were they sufficient or insufficient? If sufficient why on this succeeding occasion employ this novel security, imported from a foreign system of procedure. If insufficient, why not apply in the first instance to such preceding occasion the only security which is regarded as capable of answering the purpose?

    By the first Bond security was given for the debt together with such costs as might come to be incurred in and thence awarded by the Court of Session: the only additional costs requisite to be provided for in the 2 d Bond, are the costs that may come to be incurred in and awarded by the Chamber of Appeal. Why without necessity impose any heavier or fresh burthen on a party, for whose powers of purse and credit, the lightest burthen that could be imposed may so frequently be too heavy.

    Suppose the inferior Court from whence the Appeal comes in the first instance - suppose it within the Shireparish of Edinburgh, or in any other Shireparish at no great distance from the metropolis, the difficulty is comparatively small. But suppose it a distant Shireparish such as that in which the Orkneys or that in which the Hebrides are composed?
  • Title: [25 April 1807 Letter V Inadequate]
    Description: 25 April 1807

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    VI Bail-baiting

    V. Facienda

    In the particular case now upon the carpet, every honest and effectual use and application of the natural system being out of the question - technicalism, now as at all times, in this as in other Houses, being the order of the day, what remains to be done by a friend to justice, is to take his chance for striking off what mischief and what profit learned Lords and Gentlemen may by shame or superior authority be prevailed upon, consistently with their own system, to give up.

    Hear me then, my good Lord, while I reduce my prayer to the suing for one boon, one trifling boon for our fellow subjects on the other side. The proposition of Your Lordship's learned advisers is that the Court in which the examination of the cautioner shall be performed shall be the open Court - the many-seated Court, with its complement of Judges more numerous at the lowest computation, than that of the Westminster Hall Court which is the most numerous. Instead of this formidable Court crowded besides suitors with so many disdainful and impatient Judges, scorning and loathing the novel[?] and degrading task thus forced into their hands, give me my Lord, for my poor Client the `Cautioner', as well as for my poor Client on the other side, the plaintiff (for I have equal fees on both sides) the single seated Court of the Lord Ordinary for this unlearned part of the business. His task will be less incongruous, his impatience less urgent - he will regard the plaintiff in person with less horror - he may even prevail upon himself to admitt on that side of the cause the only person who feels any real interest in it: and if so it please him, he may save prisoners[?] from the pain of making to every body such disclosures as might be ruin to himself without being of use to any body. The examination before the many Judges can not be any other [than] a sham one: the examination before the single Judge may by possibility be an efficient one. The examination in the open Court will frequently be an excruciating one: the examination in the single-seated Court may be, if his Lordship so please, be cleared of vexation, on the score of publicity or otherwise, beyond what is necessary to the purpose.