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17 July 1807
Scotch Reform
(3) 20
2 o
Letter V
Ch.3. Bonâ fide Appeals
Compared with that of the Court of Exchequer, the business of the Court of Session, undivided as it is as yet, is beyond comparison of more considerable importance: compared with that of the same Court of Exchequer, the business of each Section of the Court of Session when there are three of them, is still in a high degree of more considerable importance. A vacancy has taken place in the office of President of the existing Court of Session or in the office of President of one of the three future contingent sections of it. For the filling up of this vacancy the Lord Chief Baron of the Court of Exchequer having been, by his Majesty's wisdom, deemed the fittest person has accordingly, by his Majesty's power, been appointed. {all this as orthodox as if the pen inherited from Blackstone's desk had written it.} If not the Lord Chief Baron for the time being, then some person, in comparison with whom the Lord Chief Baron is less fit: if the Lord Chief Baron, then the Lord Chief Baron himself becomes a President of the Court of Session, or a President of a Section of the Court of Session, in comparison of whom relation being had with reference to the business of the Court or section of the Court of Session, his successor in the Lord Chief Baronship is less fit: in either case what is the effect of the arrangement: that the decision of the learned person most fit is subjected to reversal by one who is less so. If in point of superior chance of rectitude nothing were got by the change, that surely would be sufficient; but, rate it as low as you will, here is a something that is lost by it.
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Title: [17 July 1807 Scotch Reform]Description: 17 July 1807 Scotch Reform 21 2 o Letter V IV. Bonâ fide Appeals To make up the intended number of Judges, viz. 5. in addition to this fourth Judge of whom thus much is known as above, that he is not so likely to understand the business as any of those whose Judgments it is intended he should overrule, comes another of whom, except what must be predicated as above of the Lord Chief Baron nothing more can be predicated, except that which can not but be predicated, viz. that he must be an extraordinary Lord: and to this extraordinary Lord is given a degree of influence by which all the other Lords that are not extraordinary are thrown as it were into the back ground: viz. that which attaches itself of course to the situation of President. What manner of person he is to be is not said: but be he who he may, he is to preside in the same way and manner as the Chancellor of Scotland did preside in the Court of Session by the Constitution of the said Court as enacted by the said Act of the fifth Parliament of James the fifth: that is to say he is to have and exercise not the same sort of power and authority as the President of a Court of Judicature exercises every where else of course; but a particular sort of power for which at the expence of unlearned litigants learned persons are sent to grope in a room without records in it, or what is worse full of half unintelligible, half contradictory records in it, by the light of a rush light, and that carefully covered up under a bushel by the wisdom of ages.
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Title: [17 July 1807 (23)[?] 21 2 o]Description: 17 July 1807 (23)[?] 21 2 o Letter V IV. Bonâ fide Appeals On this occasion I find myself stopt and hampered by a doubt which I will venture to confess: honestly, not for the purpose of oppression, but because I find myself unable to find a solution for it. The number of seats intended for the Chamber of Review, is it five, or four only, or on each occasion either five or four, whichever of the two numbers should on that occasion appear to his Majesty's wisdom the preferable one? In addition to the three Presidents of the three Sections of the Court of Session I see a fourth Judge, a "presiding Judge", about whose existence there can be no doubt. I moreover see the "Lord Chief Baron of the Court of Exchequer" whose sitting in the Chamber of Review is as little exposed to doubt. My doubt, and only doubt, is whether if so it please his Majesty at any time, it may not happen that the said Lord Chief Baron shall be the said presiding Judge, in which case instead of the five Members of the Chamber of Review there will be but four.
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Title: [17 July 1807 Scotch Reform]Description: 17 July 1807 Scotch Reform (2) 19 2 o Letter V Ch.3. Bonâ fide Appeals §. Review Chamber not better than Session 1. Is it on the score of the number of seats? The supreme judicature, the House of Lords excepted, in which such simplicity is impossible, Reason and Experience if the minute I have ventured to take of their judgment be correct, join in the decision in favour of number one: what in the character of an argumentum ad hominum[?] is much stronger in the learned Reformer's own plan the present number 15 is objected to as excessive, and as the trisection of that number is preferred to the bisection of it, not only 8 or 7 are preferred to 15, but 5 to 8 or 7. 2. Is it on the score of appropriate learning and practice as presumed from experience? Is it of the essence of the plan to committ the power of reversing or modifying a decision pronounced by those whose quantum of appropriate experience and practice stands at the highest pitch to those whose quantum of those endowments stands at some inferior pitch. The Lord Chief Baron of the Court of Exchequer, (Bill p. 1o.[?]) has been conversant throughout the whole of his judicial life with the business of the Court of Exchequer. From this Court the practice of which is so perfectly familiar to him he is to pay occasional visits to another Court for the purpose of pronouncing whether a branch of jurisdiction with which at his first visit he has no acquaintance at all, and on each successive visit less than any of his Colleagues, has been rightly exercised by those whose experience in it is so much greater than his own.
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