date

PRIVATE 15 March 1807 Omitt
PRIVATE

15 March 1807

Omitt? A Omitt?

10

Letter V

1. Plan

Ingratitude is so much worse than witchcraft, that I would not willingly impute it to any man, much less a learned Gentleman who has been thus distinguished and dignified by Your Lordship's notice. And yet on this as on so many other occasions I know not how to avoid accusing him of it.

In the malâ fide suitor Your Lordship's learned Reformer like every other learned Gentleman, might, if he could but persuade himself to open his eyes, and look before him, see in every point of view his best customer. Yet so it is, that from first to last, he knows of no such person, he never saw him in his life. Plunged by practice in the dregs of Brute /Torgas[?]/ and Romulus, the purity of his mind has confined him in idea to Utopia, where there are no suitors but bonâ fide ones.

Thus it is in regard to the relief held out against the burthens of the Bill-Chamber: liberty, not obligation of refuge to a less dilatory, less vexatious, less expensive plan of judicature for such I find no difficult in supposing it - appeal to Session as now to the Justiciary Court.

To the bonâ fide suitor, if such be his good fortune to be honestly advised {to be advised to receive advice fraught with impotent learning and with more honesty than that which seems to have fallen to Your Lordship's share} to the bonâ fide suitor were it his lot to come in for a share of it, a very advantageous substitute, a very comfortable relief. His purpose it will suit no doubt. But the malâ fide suitor, how will it suit his purpose? how will his design be forwarded by it: and when they are not, where is the probability, where the moral possibility of his betaking himself to it - that is of his allowing his injured adversaries the benefit of it.
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    To apply the distinction to the case in hand - that of appeals /appeal/.

    The malâ fide appellant /the malâ fide suitor/ is that species of man most of whose existence I have been employing[?] so much and I fear such fruitless labour to impress the conviction upon Your Lordship's learned Reformer's mind. He himself is as well satisfied as any body /one/ else can be of his having no rights to the sort of service which by the appeal he prays /demands/ for, but forasmuch as under the protection afforded to him under the name of law by learned Lords and Gentlemen he finds it or renders it his interest to persevere in such demand, to persevere accordingly.

    The appellant who though by the supposition he is in the wrong, is not conscious of his being so, and therefore is not a malâ fide appellant, may according to analogy, reference being had to the above cardinal distinction, be termed though a bonâ fide a temerarious appellant - his conduct in respect of his preferring such appeal may be said to be coupled or tinctured with temerity - and so forth.
  • Title: [[094-149v] 28 Jan y 1807 Omitt]
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    Omitt for the present or for ever

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    Letter V

    What makes /gives to/ the history of this species of vermin its great importance, is the unlimited multtitude to which in a favourable sort and with the benefit of good nursing the number of them is capable of swelling.

    The number of bonâ fide suits is a limited number, uniform in its magnitude capable of being swelled indeed by imperfections in the substantive branch of the law, but so far from being [...?] /[...?]/, restrained and diminished by delay vexation and expence. And by the adjective branch of the law, when ever it has been so wronged as to give /afford harbour/ reception to the malâ fide suitor the number of malâ fide suits that may thus be bred passes all calculation. In the single article of the Exchequer Chamber, Your Lordship has seen a hundred malâ fide suits for one bonâ fide one: or rather, to speak correctly 100 in which it was certain /matter of certainty/ that the defnedant was in ,alâ fode, for one in which his being in bonâ fide was not imposible.
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    Description: [094-157v]

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    Permitt me once more, to beg your Lordship's attention to the distinction between malâ fides and bonâ fides. In this /On this/ as in so many other cases /as [...?] every thing turns upon it // on so many other occasions/, it is a cardinal one: the whole enquiry hinges on it.

    In such instance, the Appeal Writ of Error or by whatever name the innovation made of the controling authority of the superordinate Court be diminuated, will be a malâ fide Appeal, or a bonâ fide: he by whom it is made will be conscious of his not having the right on his side, or his mind will be clear of that immoral consciousness.

    In both instances the effect of the system will be to increase the number of appeals: and to come at once to the really material part of the question - will increase the aggregate mass of collateral inconvenience, in the shape of delay, vexation and expense, flowing from that source, and without producing any preponderant advantage in the shape of security against misdecision.

    In the two cases its tendency runs /operates/ upon two widely different grounds. I consider it therefore upon each, beginning with the case of the malâ fide

    appellant, whose existence Your Lordship's learned reformer has I hope brought himself by this time to [...?].