date

PRIVATE 10 Dec r 1807 Scotch
PRIVATE

10 Dec r 1807

Scotch Reform

Letter V

Ch.2. Utility of Scotch App

§.1. against local Influence

Ch.2. Utility of the Lords appellate jurisdiction of the Lords, in so far as exercised over the Scottish judicatories.

S.1. as a remedy against local influences.

Of the several ends of justice immediate and derivative, a list, such as I have been able to make out, has just been submitted to your Lordship.

Assuming that the appellate jurisdiction at present exercised over the Scottish judicatories is beneficial upon the whole, to the British empire taken in the aggregate, in what particular points will its utility be found to consist? a question that will not, I flatter myself, present itself to Your Lordship as altogether unworthy of an answer.

The answer, if my humble conception of the matter be correct, will be found in two of the articles of that list viz.

1. Correction or prevention of misdecision (including, so far as regards prevention, the imputation and suspicion of misdecision) in so far as it is liable to be the result of local interests and partialities. This article belongs to the list of immediate ends of justice.

2. Maintenance of the authority of the imperial legislature over that one of the three kingdoms, over that one of the two minor kingdoms, which are situated at a distance from the seat of the imperial government: maintenance of its authority over the supreme local judicatory, and thereby over the several subordinate ones.

This article belongs to the list of derivative ends of justice.
Similar Items
  • Title: [PRIVATE 9 Dec r 1807 + A]
    Description: PRIVATE

    9 Dec r 1807

    + A

    Scotch Reform

    Letter V

    Ch.3. Bonâ fide Appeals

    Superseded in general, but consultable, to see whether exhausted

    If on the score of utility there were no particular demand for the continuing to extend to Scotland the appellate jurisdiction of the House of Lords - of utility either national, in respect of the interest of that one of the three kingdoms, or imperial, in respect of the interests of the whole United Kingdom - the simplest as well as in every respect the most eligible course would be to withdraw from Scottish judicature in causes of all sorts that paramount judicature of which, in so many sorts of causes that are apparent, not to speak of so many others of which no account seems ever to have been made, English judicature, not to speak of Irish, has never enjoyed the benefit.

    Of the causes which come to a hearing - the only causes by which any draught is made upon the House of Lords for any of its time, so large is the proportion of those that come from Scotland, that supposing this part of the burthen removed, the ability of the House to discharge the draughts that would in that case continue to be made for + the present at least - would not I suppose be matter of doubt to any body.

    + (setting aside that unfashionable tense the future)
  • Title: [19 May 1807 14 (6) Letter V]
    Description: 19 May 1807

    14 (6)

    Letter V

    Plan

    J.B. Remedies

    put before this the modifications of judicial injustice [...?] viz. corresponding to the ends of justice with the addition of non-conformity and non-uniformity

    1. Maintenance of the authority of the legislature or supreme power in the state over the several subordinate judicatures - or in other words, Maintenance of the course of decision in each judicature in a state of undeviating conformity to the declared will of the legislator - 2. Prevention of judicial usurpation, or in other words Maintenance of the limits respectively set to the jurisdiction of the several subordinate judicatures. 3. Maintenance of uniformity in the course of decision as between the decisions of the same judicature at different times, and as between each judicature and every other as well as the same time as at different 4. Prevention of misdecision - of ultimate misdecision at least as effectually as possible, in the first part of the several subordinate judicatures:- 5. Prevention of unnecessary delay, with its natural and almost inseparable concomitants unnecessary vexation, expence and failure of justice - 6. Periodical receipt or collection of facts indicative of the state of judicature in the several judicatories, Court of Justice in respect of its subserviency to the several ends of justice as above enumerated.

    These five, if the enumeration I have made be correct compose in every country the list of distinguishable functions no one of which can, consistently with the ends of justice, be left unexercised.

    Under the peculiar constitution of our own Country the above list of remedial functions may I suppose be added on the part of the House of Lords, the second of the three branches of the supreme commonly called legislative authority in the state, the preservation of such its share: for, let its share in the supreme superintending judicial authority in matters of judicature be for argument sake {be supposed to} be lost, its share in legislation would scarcely, I should suppose, be found capable of being preserved.

    Under the peculiar constitution of the British empire, to the above list of remedial functions may, I suppose, be added on the part of the House of Lords, in its quality of second of the three branches, of which the supreme legislative power in the state is composed, the maintenance of such its station in the government - more shortly maintenance of the privileges of the House of Lords: for, let its portion of supreme superintending authority in matters of judicature be, for argument sake, lost; its share in legislation would scarcely, I should suppose, be found capable of being maintained.
  • Title: [10 Dec r 1807 Scotch Reform]
    Description: 10 Dec r 1807

    Scotch Reform

    Letter V

    Ch.2. Utility

    §.1. against local influences

    In this state of things, suppose for argument's sake it were referred to the Scotch Peerage - to a body consisting of persons whose faculty of exercising a sinister influence on the decisions of the supreme local judicatory might well be supposed to be at its maximum - suppose it were even referred to a body so composed to give a determination on the question whether to return or not the appellate jurisdiction of the House of Lords over the Scottish judicatories, my expectation would be to find the answer in the affirmative.

    To pursue the fiction, suppose at the very time any one of these noble referees actually exercising a sinister influence over the supreme local judicatory, and making his profit of that influence, I should not expect to find even his vote on the negative side. On the particular occasion in question it so happens that he is in a condition to derive and advantage from the disorder raging in that judicatory: but in an indefinable number of future contingent occasions it might operate to his disadvantage: prudence therefore, even the most selfish prudence, would recommend to him to prefer that security, to which unshaken probity on the part of the judicial establishment is necessary, to the precarious chance of suffering instead of losing by the opposite vice.