date

PRIVATE 17 July 1807 Scotch
PRIVATE

17 July 1807

Scotch Reform

(1) 18

Letter V

Ch.3. Bonâ fide Appeals

§. Review Chamber not better than Session

§.│ │ Review Chamber promises not to be better than the Court of Session

How well soever this expedient (viz. diminution by lot) might serve the purposes of justice - and in a word all public purposes - I am sufficiently aware of its being but ill adapted to the personal purposes of Your Lordships learned Reformer. Some objection or other he would accordingly let off against it, and I see no one nearer at hand than this, viz. that the proprietors of the unfortunate tickets would stand deprived of that revision of that more deliberate consideration and the superior chance (no he would not any chance but that superior assurance of security for) rectitude of decision, which this Chamber of Review, with the treasure of learning, ordinary and extraordinary, of which it is the repository, has in store.

If this be to be assumed as a postulate, viz. that the Chamber of Review under the constitution proposed for it presents a better chance for right decision than the Court of Session, under its natural constitution - or say by way of amendment under the constitution proposed to be given to it, on this head I have no more: but if the topic be open to enquiry, I should be curious to learn on what ground stands that assurance? either of Reason or prejudice.
Similar Items
  • Title: [22 May 1807 Scotch Reform]
    Description: 22 May 1807

    Scotch Reform

    (4)

    1. On numbers? that give[?] up

    2. On superiority[?] of leaving? the ground for that[?]

    1 o or 2 o

    Letter V

    Letter V

    VI Bona fide

    There remains the 1 case out of 4, in which in the Court of Review the judgment pronounced in the Court immediately below (viz. the section of the Court of Session, is reversed or modified. As to this part of the present number of Appeals I see not or what just grounds the expectation of a defalcation of any part of it can rest, the undesirable result of denial of justice by exhaustion of purse or perseverance always excepted.

    Arbitration made of a supposed superiority of appropriate aptitude on the part of the members of the proposed Review Chamber as compared with the members of the several proposed sections of the existing Court of Session there can be no ground for expecting that of the parcel now in question so much as a single one would be stopped by the decision of the Court above ad quam[?], pronounced in opposition to the decision of the Court below a quâ[?]. Here is Court against Court: the ballance even: while there[?] remains a yet ulterior Court to recurr to, is it in human nature that the recourse should not be made?
  • Title: [17 July 1807 Scotch Reform]
    Description: 17 July 1807

    Scotch Reform

    23

    Letter V

    Ch.3. Bonâ fide Appeals

    But setting aside the door opened for an evasion of a clause, a bad one I am ready to admitt, of the Act of Union, a design which whether entertained or no I do not see avowed - in this extraordinary Lord I can see neither more nor less than a Judge who in a line of jurisdiction with which he is less conversant and for which he is so far at any rate less fit is set to direct and give a lead to the proceedings of that Court the business of which consists in reversing or modifying the decisions pronounced by Judges more conversant with the business than himself.

    What I do not pretend to say is that the difference, whatever it may be in disfavour of the Chamber of Review, is such as to present any very determinate or formidable ground for apprehension: all I mean to say, and that I do mean to say is - that the existence of this new Court does not present any better chance for rectitude of decision than what would exist without it.
  • Title: [June 1807 Letter V III. Bail]
    Description: June 1807

    Letter V

    III. Bail-baiting

    To give any operation to this latter part of the paragraph is it not necessary to make a further addition or rather alteration - for example to some such effect as this: viz. {a Bond for such ulterior costs if any, as may come to have been awarded by the said Chamber of Review}?

    Supposing this to convey the draughtsman's meaning, then comes another question - In what Court was it intended that the examination should be performed? In the Chamber of Review, or in the Court below, the Chamber of Session?

    In the Chamber of Review? This construction seems rather the better adapted to the rest of the words of the paragraph as they stand at present.

    To the Chamber of Session? A subordinate sort of operation such as that of examining Bail seems better adapted to the subordinate Courts especially both of those being to this purpose fully and equally trustworthy, than to the station of the superordinate Court, the substitute to the House of Lords.

    N.B. In effect it appears as if the Appeal to the Chamber of Review was intended to be an Appeal of the 3 d order. Appeal of the 1 st order, from the inferior Court, to the Lord Ordinary: Appeal of the 2 d Order, from the Lord Ordinary in the Outer House, to the Chamber of Session in the Inner House; Appeal of the 3 d Order from the Chamber of Session to the Chamber of Review.