date

15 July 1807 4 Letter V
15 July 1807

4

Letter V

Letter V

Ch.3. Bonâ fide Appeals

§.2. Efficiency not proved

For the support of the expectation it seems natural enough and not altogether unreasonable to look for some sort of estimate or calculation. I look for it accordingly but find none.

By a calculation I do not mean a prediction, a prediction of the exact number of appeals which the proposed instrument of defalcation, the Review Chamber will strike off.

What I do mean, is this: a statement of the number which it must strike off in order to produce the effect expected from it.

But the number in question is - not an absolute, a single, number, but a proportionable one, a proportion between two numbers. To state the proportion, one of the two numbers, the greater, must be a given number: viz. the aggregate number of appeals of all sorts, from all three kingdoms.

Unfortunately this term[?] of the proportion has not been given. It has indeed been undertaken and endeavoured to be given. But with submission, performance unfortunately has not corresponded. The Account that has been called for and given under that name is incompleat. In the English divivion of it the sort of Appeals called Writs of Error are not included: and these virtual though not nominal and thence not included Appeals the number, there seems reason to think, would prove considerably greater than that of the Appeals that are included, the Appeals that happen to have received and retained that name. But of this under another head.
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  • Title: [2 May 1807 + D3 Letter V]
    Description: 2 May 1807

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    Turning in the first place to the Scotch causes, for 75 presented, and for 52 set down for hearing, and for 39 heard, we find 18 withdrawn and 11 dismissed for want of presentation, making together 29 of which we may be certain, without any exception, unless by some accident, that they were malâ fide Appeals: 8 reversed with one remitted, making together 9 of which we may be certain of their being bonâ fide Appeals: 30 affirmed, of each of which all that I can venture to say with certainty, is that it seems more probable that it was a bonâ fide Appeal, than a malâ fide one. Setting them all as bonâ fide ones, here then the numbers will be 39 and 29: proportion, bonâ to malâ fide, nearly as 4 to 3.

    From 75, the number presented, and from 52, the number set down for hearing, no ulterior indication respecting the proportion between the bonâ and the malâ fide Appeals seems deducible. In the Intermediate Courts the work being, in these manufactories of delay, performed upon the mechanical principle, efflux keeps pace with influx, and no irregularity is presented by the accounts. In the great Ultimate Court, in which the work is mostly done by hand (as the phrase is among mechanical men), so that human reason is necessary, that stagnation takes place, which has given your Lordship so much trouble: and hence it is that the numbers presented, and the numbers set down for hearing, differ from one another, as well as from the numbers heard. Presented, 75: set down for hearing, 52: heard, 39.
  • Title: [3 May 1807 Scotch Reform (6]
    Description: 3 May 1807

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    (6) 33

    Letter V? VI

    Letter V

    English Review Chamber

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    So far as the above view of the matter may be just, [...?] conclusion seem to follow

    1. That in their persuasion that of the regulations appraoved or [...?] by themselves or adopted, the number of appeals would soon cease to be a grievance to the subject, or a burthen to the House of Lords, these[?] /the/ learned Judges were too sanguine /rash/: N o struck off 33, making 11 in a year N o not struck off 44, making nearly 15 in a year.

    In regard to the decisions either reversed or modified neither the absolute number nor its proportion to these affirmed[?] is such as reflects any discredit on the conduct of their Lordships in the exercise of their /that high and highly important/ office: Absolute number reversed or modified nearer 5 than 6 in a year: relative number reversed or modified compared to affirmed little more than as 1 to 2.

    Taking together the whole number of bonâ fide Appeals if in proportion to Appeals of the same description /stamp/ from the English Courts it were even much greater than it is, the difference might be satisfactorily accounted for from one so[?] very different principle: viz. that, vague uncertain and uncognizible as the rule of action is under English law (jurisprudential law occupying the greatest part of the whole field of law) included under Scottish law it is beyond comparison more so: and this for several known reasons: 1. because the question of law is being still less disentangled from /more entangled with/ the question of fact: and because in such Reports as are extant the noting down of the opinions and dicta of the Judges has been not only omitted but anxiously prohibited: 3. because in Scotland civilization having been more backward than in England, and the memorials of law not commencing till a much later period, there has been less time for that gradual accumulation of material, on which jurisprudential law depends for its extent, its copiousness[?], and in those respects for its determinateness.
  • Title: [1 Feb y 1808 Lords time For]
    Description: 1 Feb y 1808

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    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.

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