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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.
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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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Title: [17 July 1807 Scotch Reform]Description: 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: [PRIVATE 17 July 1807 Scotch]Description: 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.
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