date

10/11/ Dec r 1807 Scotch Reform
10/11/ Dec r 1807

Scotch Reform

Letter V

Ch.2. Utility

§.2. for constitutional obedience

In all countries the judicial authority has of course been more or less in the habit of disobeying the mandates of the legislature. Cases of disobedience more determinately wilful, and which the impossibility of honest misconception is more compleat, can neither exist nor be conceived than what have been realized, and even continue to be exemplified, by English Judges as towards the declared will of Parliament: and in Scotland still greater liberties have been taken by the supreme judicial Court with the authority of the supreme legislature, than in England.

But if such be the contempt put upon the authority of the legislature under and notwithstanding the superordinate judicature exercised by one of the three branches of the legislature, to what a pitch might it not be expected to soar, supposing that check removed.
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    Letter V

    Ch.2. Utility

    §.1. against local influences

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    If, notwithstanding the security thus afforded, in one suit out of a hundred, the decision receives a tinge from the influence of the morbific cause, that security removed, the same mischief might not unreasonably be expected to take place in at least ten suits out of the hundred. At present, the tendency to misdecision being kept under by the apprehension of exposure, the effect will naturally be confined to cases, that, having more or less of dubiousness in their complexion, present themselves as affording room for bonâ fida difference or mistake: take away this check, the efficacy of the morbific cause might not be prevented from extending itself to the clearest cases.

    No case can be there[?] than those in which wilful disobedience to statute law has been manifested and [...?] [...?] manifested[?] by case by English Judges - Vol. Costs.[?]
  • Title: [12 Oct r 1807 Lords Delegates]
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    As to the case of a supreme judicatory /judicial power/, independent of the supreme legislative and by a system of unconfirmable decisions, capable of frustrating its laws, doubtless /no doubt but/, supposing it /that, supposing the capacity running into not/ realized, it is an inconsistent state of things. Under every government, the will of the supreme legislative power, is the actual, and assumed proper, standard of rectitude. The use and the only use /The express and indubitable duty/ of the supreme judicial power - of the judicial power in all its branches is to maintain the conduct of all men /the whole community/, in their character of subjects a constant conformity to this standard.

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  • Title: [PRIVATE 10 Dec r 1807 Scotch]
    Description: PRIVATE

    10 Dec r 1807

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    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.