date

9 Dec r 1807 Scotch Reform
9 Dec r 1807

Scotch Reform

Letter V

§.iv. Bonâ fide Appeals

2. The need of such appeal in the character of a security against the effect of Great interests and partialities.

Without supposing any thing unfavourable to judicial probity in the air of Edinburgh in comparison of that of London, 1 the comparative narrowness of the circle in which Judges move, 2 as well as the superior multitude of seats in the northern judicatory - 3 not to mention other circumstances less prominent and unquestionable, such as the still more deplorable uncertainty and unsteadiness of the rule of action - concurr in exhibiting the danger in question in such a magnitude, as to render the London remedy, notwithstanding the price paid for it in the shape of encrease of delay, vexation and expence, a beneficial one upon the whole.

In the character of a corrective, I should expect to find the utility of the remedy not altogether undiscernible. But in this character, beneficial that its utility must naturally be, small indeed in comparison of that which it produces in the more efficacious though unappretiable and in individual instances undiscernible character of a preventative. If, not-withstanding the security in question, in one suit out of a hundred, the decison has received a tinge from the instances of any such sinister courses, that security removed, the same mischief might not unreasonably be expected to take place in at least ten 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, afford room for bonâ fide difference or mistake: take away this check, the efficacy of the sinister cause would have little to prevent it from extending to the clearest cases.
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    But in that character its beneficial influence must naturally be small indeed in comparison of that which it exercises in the more efficacious though unappretiable (and in individual instances separately taken altogether undiscernible) character of a preventative.

    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.

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    Even now the existence of the disorder has been the subject of frequent allusion and much assumption in the character of a fact universally notorious in the pamphlets of the day. On this occasion, let it not pass unnoticed, that one manifest and notorious instance of the disorder, supposing it to have place may be sufficient to produce the expectation and suspicion of it, in ten, twenty or any greater number of instances in which it does not take place.

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  • Title: [15 July 1807 2 Letter V]
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    2

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    IV. Bonâ fide Appeals

    Forgetting then their existence for the present, and only for the present, (for soon Your Lordship shall be enabled to entertain him with a sight of Scotch-bred ones by scores as well as English-bred ones by hundred, all of them with the name malâ fide Appellant written upon their foreheads) I will consider the proposed additional Chamber on the footing of the effect it would have if there were no sort of litigants or sort of appellants to be found in any one of his Majesty's three kingdoms but bonâ fide ones.