date

PRIVATE 25 May 1807 + 1 1
PRIVATE

25 May 1807

+ 1 1(9

Letter V

Plan

III. J.B. Remedies

The remedies held out by this part of the learned Reformers plan being thus, in my view of them, throughout inapposite and in the whole inadequate, pregnant moreover with additional mischief rather than relief, the next task, {but for which I should hardly have engaged in a research so unpleasant as this introductory one, was to find out, if possible, remedies of better promise.

One conclusion has been - that a marked and easily discernible distinction exists between malâ fide appeals, and bonâ fide Appeals:- in regard to malâ fide appeals, the desirable result is compleat prevention: and that such prevention may be accomplished without any such institution as the proposed intermediate Chamber of Review:- that in regard to bonâ fide Appeals, whether it be probable or not probable} it is not desirable, that such as would come from the Court of Session, should be prevented from coming, under the cognizance of the House of Lords:- that the sort of cognizance which at present the House professes to take is - besides its being in its mode of operation, inadequate to the ends of justice, and to the effectual support of the House of Lords in the station it occupies in the government is (I say) such, as in respect of the quantity of time requisite the House lies under a physical incapacity of continuing to take, as heretofore: that under this incapacity it would still continue to labour, even although the present habitual number of bonâ fide Appeals from Scotland to the House were to be diminished in any proportion that the learned Reformer would undertake to name:-
Similar Items
  • Title: [1 Feb y 1808 Lords time For]
    Description: 1 Feb y 1808

    Lords time

    For the purpose of the calculation, against the number of malâ fide Appeals meant by the plan to be excluded but not excluded by it, let us set the number of bonâ fide Appeals not meant to be excluded by it, and yet excluded: and suppose (what seems a result as likely as any other) the two numbers to be equal.

    Here then so far as concerns the number of Appeals, the effect of their plan stands thus: Malâ fide Appeals, all excluded: bonâ fide Appeals, none.

    Now, with a degree of exactness[?] sufficient for practice, the number of malâ fide Appeals will, as shown by the annexed Table, stand expressed by the sum of the numbers of Appeals withdrawn and dismissed for want of prosecution, respectively.

    But by the exclusion of the whole number of malâ fide Appeals, as thus determined, not only not the whole of the excess, but not so much as the smallest part of it, would be struck off from that portion of the mass of Appeals of which "the burthen to the House of Lords" is composed. For neither by those withdrawn nor by those dismissed is so much as the smallest part of the time of the House employed.
  • Title: [1 Feb y 1808 Lords time But]
    Description: 1 Feb y 1808

    Lords time

    But it is to the malâ fide Appeals and those alone, that these regulations have any application. The appeals struck off by them will be those in which success being hopeless, delay with its profit is the only object in view. From the number of bonâ fide Appeals it will not strike off a single suit: at least not one of which if it were asked of the framers of the Bill whether it be desirable it should be struck off, their answer would be in the affirmative.

    From the number of bonâ fide Appeals, if the effect of the regulation were to make any defalcation, the greater the defalcation, so much the worse. Between the nature of the part defalcation and the nature of the part left undefalcated, no distinction being perceptible, if in regard to any part defalcation were a benefit, a fortiori so would it be in regard to the whole.

    Lessening the degree of uncertainty, so to the main body of the law, lessening the danger and suspicion of misdecision in the subordinate judicature, whether on the ground of law or on the ground of fact - it is only when thus produced that in defalcation from the number of Appeals presented to the supreme and imperial judicatory can be placed to the account of public benefit - regard being had to the ends of justice.

    Multiply the amount of the expence of applying for the remedy administered in the supreme judicatory, you will cut off the Appeals of all those bonâ fide suitors who, being able to bear the simple amount and not able to bear the multiple amount, would thus be excluded from the faculty of "adding to the burthen of the House of Lords": and by multiplying the amount of costs in the subordinate judicatories, the like effect might be produced at an earlier stage.
  • Title: [2 May 1807 D2 (2) 11]
    Description: 2 May 1807

    D2

    (2) 11

    Letter V

    VIII. Appeal list mutilated

    III. Uses malâ fide properly indicated

    This explanation premised, in the three English existing Chambers of Review, taken together for and during the three-years period abovementioned, in numbers and proportions, as concerning malâ fide and bonâ fide Appeals, the account stands thus: not argued, i.e. all malâ fide Appeals, 1,780: argued, i.e. most of them probably all of them possibly bonâ fide Appeals, 20: malâ to bonâ fide, exactly as 89 to 1.