date

PRIVATE 19 Dec r 1807 Scotch
PRIVATE

19 Dec r 1807

Scotch Reform

(1)

Letter V

Ch.11 Appeal list mutilated

§.1. Deficiencies or [...?]

Writs of Error are as much Appeals as Appeals so called.

how, my Lord, under favour, in the nature of the case was there any foundation for this omission? Writs of Error, are they any thing but Appeals, under another name? Is not misdecision imputed alike in both cases? With equal appositeness might not the denominations have been transposed? the appeals called writs of error? the writs of error appeals? The appeals called Writs of Error and the appeals called appeals. The distinction thus expressed, is it not a fair and proper one?

For the reason of the object - of the species of application, I prefer the word appeal. Why? because it is a term of universal jurisprudence, or rather a term belonging to the common stock of the language, presenting the object to every man alike who is conversant with the language: writ of error a term of lawyer's-cant, part and parcel of the flash language, of no more real use in addition to the proper word appeal than, in another sort of cant, the appellative Beak is, in addition to the term Justice of the Peace.

In truth, not of so much use: Beak has the merit of conciseness: no small merit in language: it substitutes one word to four. Writ of Error has the demerit of diffuseness: to one word it substitutes three. With this diffusion it is still in a high degree elliptical: so much so, as to be in itself inexpressive; expressive and intelligible, to these and these only, whose acquaitance with the name is derived through the medium of the thing itself. A Writ of the nature of a Mandate, issuing as from the King, and directed to some judicatory, ordering it to take cognizance of a complaint, by which error is imputed to the proceedings of some other judicatory. Thus prodigious the heap of words all which must be supplied before the cant nickname employed by the surfeit[?] of English lawyers is capable of presenting the idea presented by the single word appeal in the honest part of the language?[?]
Similar Items
  • Title: [29 Jan y 1808 Appeals In 1708]
    Description: 29 Jan y 1808

    Appeals

    In 1708 came the first Union: the Union between England and Scotland and with it the Appeal from the supreme local judicatory of the minor nation national to the supreme impersonal judicatory. On this occasion, without any body, intending it is thinking of it (great minds do not stoop to such trivial considerations) the reward to merit[?] /of official/ flowed in a spontaneously increased stream /an augmmented stream/ into the pocket of the Officers of the House. The influx of Scotch causes to the impersonl judicatory wa accompanied as of course with /by/ the rule by which its [...?] quality was in so considerable degree derived /to which it was in so considerable degree indebted for/. Ostensible grounds /reasons/ were not wanting. In the case of the English Appeals called Writs of Error such was the established practice: and upon the subjection of the minor kingdom to a new dominion was not a period /an occasion/ in which the [...?] by which it /the subordinate judicatory/ was to be [...?] to its superior could safely /consistently with the rules of human //political/ prudence/ be relaxed.
  • Title: [20 May 1807 A3 Letter V]
    Description: 20 May 1807

    A3

    Letter V

    VIII. Appeal list mutilated

    I. Deficiencies

    But the English part of the account ( let alone the Irish) presents a very different picture. Upon the same level with the one Court at Edinburgh (taking the Inner House of the Court of Session for that one Court) stand in London no fewer than four Courts in Westminster Hall alone: viz. the Chancery, the King's Bench (in its capacity of a Court of original or primary jurisdiction) the Common Pleas, and the Exchequer.

    In the case of the Scotch Appeals whether you call for the Appeals to the House of Lords, meaning from Scotland, or for the Appeals from Scotland simply, it makes no difference: you have one and the same list in both cases.

    Very different is the case with the English Appeals. Call for the Appeals to the House of Lords from Westminster Hall, you get the Appeals called Appeals presented to the House of Lords, and moreover, unless you suffer things to be hidden from you by names, You get the Appeals called Writs of Error, returnable, (as the word now is) to the same supreme seat of appellate judicature.

    Call for the Appeals from the four Westminster Hall Courts above mentioned, you get it is true the same Appeals as those mentioned in the last sentence. But moreover along with these you get the cloud of others brought to view under the last head. You get the Appeals presented under the name of Writs of Error, to the three intermediate Courts of appellate jurisdiction, already depicted under the aforesaid last head of the English Courts of Review.
  • Title: [1 Feb y 1808 II. Appeals Appeal]
    Description: 1 Feb y 1808

    II. Appeals

    Appeal Acc t defective

    In speaking of the Official Account of the Appeals presented to the House of Lords for and during the length of time therein comprized, I spoke of it as being incompleat. So accordingly the case stands. No fact can be more incontestable: - and here begins a separate Chapter in the book of Lawyercraft.

    Of the Appeals presented to the House of Lords, sitting in its capacity of a superordinate judicatory, a certain class has received jargonice the denomination of Writs of Error. That they are Writs of Error is out of dispute: such being the name that has been affixed to them by competent authority. That they are moreover Appeals is equally indisputable, having in every respect the nature and effect of those other Appeals which are known by no other name: at any rate in every feature that has any application to the present purpose: and in particular in respect of the draughts drawn by them upon the judicatory[?] part of the time of the House, and in being in their nature though certainly, as in the other case, not in customary language of the practically important and instructive division, expressed by the terms bonâ fide and malâ fide.

    Of the species of Appeals thus denominated no mention whatever was made in any of the Official Tables above alluded to, and hereunto annext.