date

12 May 1808 I. Reasons Ch.V
12 May 1808

I. Reasons

Ch.V. Advantages

§.9. Malâ fide demands ousted

Judges fees the base of Justice.

Let a Judge do what it will in England so to be of the 12 it is become a rule and that an inviolable one on no occasion ever to make[?] his name but not[?]/as[?] a subject of treason[?]. Censure is confined to Judges of a [...?] step to Peers Lords and Country[?] Gentlemen in the [...?] of Justice of the Prince.

Applied to Scotland, the light in which this effect would be regarded would not naturally speaking be altogether so unfavourable. In the character of Members of the Inner House the Judges, at least of the Court of Session, derive not from the course[?] of suits or from the increase of the expence of suits any considerable advantage.

Unfortunately there is an Outer House, the air of which is not equally pure. In the Inner/Outer[?]/ House are so many single seated judicatories as in the Inner House there are Judges, minus one. Each Judge has his Clerk, each Clerk a hand, and a hand which means fees, the fewer malâ fide suits the fewer suits, and the fewer suits the fewer fees.
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    §.10. Malâ fide defences ousted

    The malâ fide defences by the nursing of which it has been so difficult, hitherto so impracticable to convince those on whom relief depends that any undesirable effect has been produced, are in that instance malâ fide. Appeals of that description which have received the appellative of Writt of Error.

    Happily for Scotland, if malâ fide defence be an undesirable practice, and that lessening the frequency of it an advantage, Scotch Judges derive no emoluments, at least not in any direct way or to any considerable amount, from any Appeals by which, whether bonâ or malâ fide, their own decisions are complained of.
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    Description: 12 May 1808

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    §.9. Malâ fide defences reduced in number.

    Correspondent to the defalcation made from the number of malâ fide demands, would be the defalcation made {by correspondent causes} from the number of malâ fide defences.

    Correspondent; but not equal: because ability to pay is not a necessary concomitant to the inability of averring with truth and safety the existence of a just man for not paying.

    In England the title of this effect to the character of an advantage would be still more precarious than that of the other which is so intimately stated to it.

    In England the emoluments of those exalted dignitaries, for whose sake men of inferior mould were created, depend in a still greater and more evident degree upon malâ fide defences than upon malâ fide demands.

    With the full knowledge of himself and all the other Judges, of the mass of emolument attached to the Office of Chief Justice of England, a portion amounting in the year 1798, to upwards of £1,400 a year was afforded by malâ fide defences in number between │ │ and │ │ in a year defences known to be malâ fide ones to the full knowledge of those venerable persons from whence a word properly addressed could have at any time been sufficient to put an end to this traffick if the abolition of it had been considered as entitled to the appellation of an advantage. In 1798 more than £1,400 a year: and now in 1807, £│ │
  • Title: [16 May 1808 Notes? I. Reasons]
    Description: 16 May 1808

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    §.│ │ Fiction ousted.

    Another circumstance, the result either of accident or of some local cause, such as the comparative poverty of the suitors hopes - contributed to preserve Scottish judicature from being polluted in any considerable degree by these contaminations.

    By an English Judge no lie was ever told by which he did not expect to get, by which he did not in fact get money: from which his successors of a collateral truth may be spoken do not continue to reap the same advantage. The most rebellious and flagrant of all judicial lies, the lie brought to view by the words common recovery, was a gold mine to the inventors and as it continues to be to their successors.

    Whether it was that from suitors money enough could not be extracted under the name of fees, to afford to so numerous a company of Judges a mass of emolument asserted[?] to their rank of power, so it happened that it was in the shape of salary, of salary wrung from the scanty pittance of the crown, of salary and not of fees wrung from the still more scanty pittance of individuals that Scottish Judges received the pecuniary part of their retribution was received by Scottish Judges: at any rate in their aggregate capacity, as Members of the Inner House, for a yet scarce noticed source of emolument, the expedient of appointing Clerks to themselves, instead of applying to Parliament, in their separate characters of Judges in so many single-seated judicatories, and by their one collective authority levying prohibitory taxes upon justice, payable to themselves under the name of fees by the hand of their Clerks came not till afterwards.