JB_094_149v.xml

Title: [[094-149v] 28 Jan y 1807 Omitt]

Description: [094-149v]

28 Jan y 1807

Omitt for the present or for ever

Not to be inserted in Scotch Reform

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.

JB_092_383.xml

Title: [24 May 1807 D 2 Letter V]

Description: 24 May 1807

D 2

Letter V

VIII. Appeal left mutilated

IV. Uses

1. Effects in respect of the malâ fide appeals.

1. The malâ fide appeals may be all of them stopped without any Chamber of Review. They owe their birth to that arrangement of Scottish law, by which Appeal is made a bar to execution: which thereby gives the Appellant, when in the wrong a profit by the delay and such a profit as is in some cases a real one. Take away this profit, this proportion of the actual appeals to the House of Lords will disappear without any intermediate Chamber of Review.

2. I have stated that the arrangement which makes Appeal a bar to execution as an arrangement pregnant with injustice: uncompensated injustice in the shape of delay, vexation and expence and that the instances in which injustice is produced by it are naturally and at all times and in all places in a very high proportion vastly more numerous than those in which it is saved: and in particular the instances in which injustice is done to the good people of Scotland in the persons of those suitors whose adversaries, in the character though not under the name of malâ fide appellants, present appeals in the House of Lords.

3. Of the malâ fide appeals presented from the Court of Session, undivided or howsoever divided, the number will be encreased, by the Chamber of Review: increased to a certainty, if the application of the proper and natural remedy so often spoken of - viz. cutting up by the roots the profit by the delay, be avoided, with that anxious care with which it seems hitherto to have been avoided: encreased to an amount depending on unforeseen contingencies, but of which some loose conjecture may be formed, from the relative amount to which we have seen it raised by the fostering care of the English Judges: viz. in the proportion of 89 to 1 to the bonâ fide appeals.

JB_092_033.xml

Title: [15 July 1807 4 Letter V]

Description: 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.