date

12 May 1808 Ch.V. §.10 I. Reasons
12 May 1808

Ch.V. §.10

I. Reasons

Ch.V. Advantages

§.10. Malâ fide Defences ousted

Ch.V.

§.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, £│ │
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    §.9. Malâ fide demands excluded in great measure.

    Such is among the effects the production of which in Ch.V. §.3. {Certainty} is stated as proper to be aimed at: aimed at, and by the means therein brought to view. viz. by the interest which under the proposed arrangements the plaintiff would have in rendering his statements as explicit and to the defendant as instructive as the nature of the case on each individual occasion happens to allow: by the proposed and not uncustomary oath or solemn declaration not of sincerity a general terms, for that would be but grimace and perjury, but of his belief as attached to the several particulars therein stated by him, and the inconvenience which would fall upon him of course, if for want of sufficient correctness - particularly on his side, the Defendant should at the hearing be obliged to apply for, and should accordingly obtain, an adjournment.

    In England, if in that kingdom lay the scene, the title of this result to the character of an advantageous one would be in no small degree precarious.

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    Description: 12 May 1808

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    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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    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.