JB_082_037.xml

Title: [June 1807 Letter V VII Bail]

Description: June 1807

Letter V

VII Bail-baiting

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.

JB_082_042.xml

Title: [30[?] June 1807 Letter V VII]

Description: 30[?] June 1807

Letter V

VII. Bail-baiting

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?

JB_082_019.xml

Title: [24 April 1807 Letter V Inadequate]

Description: 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.