date

18 Apr 1807 Letter V III. Proper
18 Apr 1807

Letter V

III. Proper Remedies

III. Objection I

2. By experience. By a variety of causes, which notices[?] of which on the present occasion have poured in from all quarters, the Court of Session, the Metropolitan Court of Scotland, seems to have been placed in a peculiar degree exposed to the risk of giving birth to misdecision. Yet of the whole number of decisions pronounced if one in ten, if one in 20 were to be set down as chargeable with injustices in this shape, setting aside the cases in which as in the annexed Table. (Tab. II) misdecision flows silently and unheeded out of delay, it would be a large allowance.

1. Average annual number of causes commenced in the Court of Session and sooner or later determined there, as per

2. N o of Judgments therein appealed from as per decisions[?] printed 1807 by Order of the House of Lords.

3. Whereof affirmed by withdrawing of the Appeal, or dismissal of it for want of prosecution (Withdrawn dismissed) ....

4. Affirmed by judgment of the House . . . . .

5. Reversed or remitted for modification (revised[?] remitted) . . .

N.B. The N o of those affirmed by withdrawing or dismissal may be stated as so many of which it may be averred with full assurance that they were appeals of the malâ fide class having no object in view but delay. Of those affirmed by judgment, i.e. after argument, the total will have been composed partly of malâ fide, partly of bonâ fide appeals, but in a proportion which for want of a criterion seems/ altogether undistinguishable.
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  • Title: [3 May 1807 Scotch Reform (5]
    Description: 3 May 1807

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    To discover /determine/ therefore what from the operation of the above principles [...?] be the degree of the reduction reasonably to be expected in the number of Appeals from the Court of Session to the House of Lords (and without the interposition of any Chamber of Review) let us compare the appeals withdrawn and dismissed taken together on the one hand, with the appeals affirmed, reversed and remitted, taken together on the other.

    But, forasmuch as the latest period of 3 years ending with the present year - a year not as yet brought to its conclusion would present /include/ causes of irregularity, as well in that account, as in the account of the influences that may be supposed to have been exerted, by the increase of the stagnation on appeals of both descriptions hear, and by the conception of that stagnation as entertained without doors, (in the number of bonâ fide Appeals /Appeals of both sorts.) let us take that period of three years which being at the same time [...?] enough to have passed under a Court of Session composed of the same Number as at present, shall present the greatest number of causes heard.

    This period is the three years period ending with 1804. For this period the proportions are as follows, viz.

    Malâ fide causes, 33: viz. withdrawn, 17: dismissed for not being presented, 16.

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    Affirmed 28: reversed or modified, 16: viz. reversed, 9; remitted (supposed for modification) 7.
  • Title: [2 May 1807 + D3 Letter V]
    Description: 2 May 1807

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    VIII. Appeal List mutilated

    IV. Uses malâ fide indicated

    Turning in the first place to the Scotch causes, for 75 presented, and for 52 set down for hearing, and for 39 heard, we find 18 withdrawn and 11 dismissed for want of presentation, making together 29 of which we may be certain, without any exception, unless by some accident, that they were malâ fide Appeals: 8 reversed with one remitted, making together 9 of which we may be certain of their being bonâ fide Appeals: 30 affirmed, of each of which all that I can venture to say with certainty, is that it seems more probable that it was a bonâ fide Appeal, than a malâ fide one. Setting them all as bonâ fide ones, here then the numbers will be 39 and 29: proportion, bonâ to malâ fide, nearly as 4 to 3.

    From 75, the number presented, and from 52, the number set down for hearing, no ulterior indication respecting the proportion between the bonâ and the malâ fide Appeals seems deducible. In the Intermediate Courts the work being, in these manufactories of delay, performed upon the mechanical principle, efflux keeps pace with influx, and no irregularity is presented by the accounts. In the great Ultimate Court, in which the work is mostly done by hand (as the phrase is among mechanical men), so that human reason is necessary, that stagnation takes place, which has given your Lordship so much trouble: and hence it is that the numbers presented, and the numbers set down for hearing, differ from one another, as well as from the numbers heard. Presented, 75: set down for hearing, 52: heard, 39.
  • Title: [2 May 1807 D2 (2) 11]
    Description: 2 May 1807

    D2

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    This explanation premised, in the three English existing Chambers of Review, taken together for and during the three-years period abovementioned, in numbers and proportions, as concerning malâ fide and bonâ fide Appeals, the account stands thus: not argued, i.e. all malâ fide Appeals, 1,780: argued, i.e. most of them probably all of them possibly bonâ fide Appeals, 20: malâ to bonâ fide, exactly as 89 to 1.