date

30 June 1807 Letter V Recapitulation
30 June 1807

Letter V

Recapitulation

An exigency so urgent as that of the alleviation of the existing pressure upon the time of the House of Lords appears to have, in such a degree, preoccupied attention on the occasion of the plan for the establishment of the Chamber of Review as to have, in a manner, almost eclipsed and kept out of sight its more immediate effects with relation to the ends of justice: {viz. prevention of misdecision, prevention of failure of justice, prevention of superfluous and avoidable delay, expense and vexation.} But surely it can not on sufficient ground be pronounced advantageous and eligible upon the whole, unless upon the whole it appears to be subservient, or at least not inconducive, to the aggregate of these ends.

2. As to prevention of misdecision, at the best it presents no advantage on this score. So long as the constitution stands, and so long at least as no change as to the past[?] here in question is proposed, the judgment which is as much as to say the judicial will of the House of Lords must, to the extent of its appellate jurisdiction, be taken for the best as well as the ultimate standard of rectitude. But of the proposed intermediate Court of Appeal [if] the declared object is that as many causes as may be may cease to be applied to this past[?] standard: and it is only on the score of this part of the whole number of causes that any advantage is so much as expected: as to all such as come to be applied to it notwithstanding, the effect of the Intermediate stage of litigation will be admitted to be purely disadvantageous. viz. in respect of the additional stage of appeal with its additional delay, vexation and expence.
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  • Title: [30 June 1807 Letter V Recapitulation]
    Description: 30 June 1807

    Letter V

    Recapitulation

    2. As to failure of justice, no way it is supposed will be suggested in which it is possible for the proposed additional stage of Appeal to contribute any thing to the prevention of this mischief. But whatsoever makes any addition to the mass of expence, delays and vexation in respect of such part of it as falls on the plaintiff's side contributes pro tanto to the promotion of that mischief. And in respect of all such causes as are not stopped by the Intermediate Court of Appeal, the aggregate mass of expence &c receives a necessary encrease. In respect of such causes as are stopped by it, it seems probable enough that the aggregate mass may receive a diminution. But whether the expence &. thus saved will be equal to the expence &c thus produced seems at best extremely dubious.
  • Title: [30 June 1807 Letter V Recapitulation]
    Description: 30 June 1807

    Letter V

    Recapitulation

    1. Malâ fide Appeal is produced[?] by the profit by delay.

    2. Malâ fide defence in the first instance is made with a view to d o Appeal.

    2. As to such causes in which there is malâ fides on one side, viz. the Defendant's side.

    In regard to causes of this class in which there is malâ fides and the malâ fides is on this side, it has been shewn that they originate for the most part in factitious delay: in that delay which as to part though factitious as being made by the existing system has been rendered by it avoidable, as to other part is made by the defendant in virtue[?] of the power as well as the inducement in so doing which the system has put into his hands. So far as concerns[?] delay a sure, and at the same time the only, method of striking off such part of it as depends on the exertions of a malâ fide Defendant has been indicated in the preceding pages: viz. the ceasing to secure to him a neat profit from delay. But no such method is contained in or accompanies the plan for the proposed Chamber of Revision. On the contrary, by adding to the quantity of delay which he is enabled to make it adds to the profit.

    If, should it happen to the proposed Chamber by means of the additional delay, and the profit derivable from it by the Defendant, it should happen to thus[?] be among the effects, the proposed Chamber to add to the number of malâ fide Appeals, the mass of mischief produced by it partly in the shape of factitious delay, expence and vexation, partly in the cause of undue profit to the defendant with the concomitant undue loss to the Plff. by means of the delay, will not be confined to that which takes place in consequence of and then subsequently to the Appeal: to this will be to be added the whole of the mischief produced in the same shapes in the same causes during the antecedent stage or stages to the Appeal.
  • Title: [8 May 1807 Scotch Reform Letter]
    Description: 8 May 1807

    Scotch Reform

    Letter VI

    Letter V

    Recapitulation

    The objects that appear to have been aimed at /in view/ - the functions in respect of which and appears to have been in contemplation to be given to the House of Lords in the exercise of their superintending authority over the field of judicature are 1. - prevention of superabundant delay, in so far as it may be supposed to have its origin in the multitude of Judges and the paucity of Courts: so likewise for the prevention of misdecision, in so far as the frequency of misdecision may be supposed to be increased by the multitude of Judges.

    2. Prevention of misdecision seems to have been aimed at in that part of the plan which relates to /respect/ the introduction of Jury trial in civil cases, prevention of misdecision appearing to have been aimed at: but in that part of the plan prevention of superabundant delay seems scarcely to have been so much as aimed at. Many arrangements present themselves from which additional delay may be seen necessarily to flow: any arrangement by which any portion of delay will necessarily or probably be defalcated seems hardly to be found.