date

10 Dec r 1807 Scotch Reform
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.
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  • Title: [9 Dec r 1807 Scotch Reform]
    Description: 9 Dec r 1807

    Scotch Reform

    Letter V

    §.4. Bonâ fide Appeals

    If in any one instance the influence of any such sinister cause is really exercised with effect, that one instance will be sufficient to beget an indiscriminate number of others in which though no such cause has place, it will be suspected not only to have place but operate with efficacy.

    By the interposition of an additional judicatory, in the same spot, to act within the same narrow circle, it does not seem capable of being shewn, how either the danger or the apprehension of it should experience any diminution.

    The danger and thence the apprehension arises in part according to your own conception (it may be said to me) from the multitude of the seats in the at present supreme local judicatory: now according to the proposed plan, that multitude will suffer a reduction, and that reduction very considerable.

    True: but to the advantage gained in this quarter, corresponds a disadvantage, and to a not inferior amount introduced in another. In the Court appealed to the multitude of the seats will be less than in the Court appealed from, it is at present: thence the check of responsibility will be drawn so much the tighter, and partialities will not feel themselves so much at their ease.

    True: but so large will the multitude of seats still be that the check of the responsibility, such as it is, will in point of strength still fall far short of that of individual responsibility, while the Court appealed from, losing its numbers, will lose the influence attached to the consideration of numbers.
  • Title: [PRIVATE 10 Dec r 1807 Scotch]
    Description: 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.
  • Title: [24 Dec r 1807 Scotch Reform]
    Description: 24 Dec r 1807

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    4[?]

    Letter V

    Ch. │ │ Omission Causes

    Were the ends of justice, and its subserviency to those ends the objects really in view, the true criterion and index of judicature absolutely considered so far as Appeals are concerned - the number presented respectively from the supreme local judicatory: relatively and comparatively considered it would be the numbers respectively presented from the several co-ordinate local judicatories in the three kingdoms: whether, after passing from their respective subordinate judicatories, the supreme judicatory to which the Appeals respectively went, even of this or that description - whether to the House of Lord for example or to the King, would to this point make no material difference.

    But the ends pursued by our most venerable and justly predominant order never have been, nor in the nature of the case could have been, the ends of justice, nor could those ends have ever been the objects of our attention for any other purpose than that of enabling ourselves to steer as clear and wide of them as possible.

    By bringing to view the real number of Appeals presented from the English Courts in question we not only should not promote any of the laudable ends and designs we have in view, but we should counteract in the strongest and even frustrate them in the compleatest degree imaginable. For so it is, that it would turn out, not only that the Appeals from the English Court are more numerous than the Appeals from the Scotch Courts; but that the excess is beyond all proportion greater than what would be in proportion to the difference in point of population between the two kingdoms.