date

24 May 1807 D 2 Letter V
24 May 1807

D 2

Letter V

VIII. Appeal left mutilated

IV. Uses

1. Effects in respect of the malâ fide appeals.

1. The malâ fide appeals may be all of them stopped without any Chamber of Review. They owe their birth to that arrangement of Scottish law, by which Appeal is made a bar to execution: which thereby gives the Appellant, when in the wrong a profit by the delay and such a profit as is in some cases a real one. Take away this profit, this proportion of the actual appeals to the House of Lords will disappear without any intermediate Chamber of Review.

2. I have stated that the arrangement which makes Appeal a bar to execution as an arrangement pregnant with injustice: uncompensated injustice in the shape of delay, vexation and expence and that the instances in which injustice is produced by it are naturally and at all times and in all places in a very high proportion vastly more numerous than those in which it is saved: and in particular the instances in which injustice is done to the good people of Scotland in the persons of those suitors whose adversaries, in the character though not under the name of malâ fide appellants, present appeals in the House of Lords.

3. Of the malâ fide appeals presented from the Court of Session, undivided or howsoever divided, the number will be encreased, by the Chamber of Review: increased to a certainty, if the application of the proper and natural remedy so often spoken of - viz. cutting up by the roots the profit by the delay, be avoided, with that anxious care with which it seems hitherto to have been avoided: encreased to an amount depending on unforeseen contingencies, but of which some loose conjecture may be formed, from the relative amount to which we have seen it raised by the fostering care of the English Judges: viz. in the proportion of 89 to 1 to the bonâ fide appeals.
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  • Title: [May 1807 Scotch Reform Letter]
    Description: May 1807

    Scotch Reform

    Letter VI

    Letter VI

    III Proposed Review Chamber

    III: Proposed Chamber of Review

    On this head my notion was and is - that its considered as to its operation on the number of Appeals from the Court of Session, and the delay &c produced by /attached to/ these Appeals, instead of a diminution it would produce a certain encrease. Taking away the profit of /by/ delay not being any part of the plan, a profit which being in proportion to the quantity of delay, was augmented by every stage of jurisdiction, the proposed additional stage of jurisdiction would give a proportionable increase to the number of malâ fide Appeals: and how it should produce any considerable diminution in the number of bonâ fide Appeals I could not see any otherwise than in so far as, by exhausting the purse or the patience of the party, who conceiving injustice done him by the Chamber of Review found himself under an inability of taking his [...?] for justice Masters[?] /higher up/, it might happen to it here and there by means of the expence to operate as a denial of justice.

    In regard to such malâ fide Appeals, such of them as the result of Commercial calculation on the part of a defendant in solvent circumstances, seeing one way only but that a sure one of preventing them, I proposed the making whatever /such/ arrangements might be necessary to prevent his deriving /reaping/ from the delay any real profit under any circumstances: proposing on that view that after a decree of the Court of Session, Appeal should to in general stop execution, any more than it does after the decree of an English Court of Equity: and since /forasmuch as/ not only the Appeal, itself but the defence intendant to the decree appealed from might have for its motive and final cause the profit from the delay thus manufactured. viz: the interest or greater profit made by the [...?] by the use of the capital wrongfully [...?], thus profit or rather something more than this profit might always be taken from him.
  • Title: [13 May 1807 Scotch Reform]
    Description: 13 May 1807

    Scotch Reform

    (2)

    Letter VI

    English Review Chamber

    In the malâ fide suitor the authors of his existence behold in every country that sort of progeny whose existence they would be glad to conceal from the whole world, any, to make sure, if possible, from themselves.

    In Scotland, the connection between the parent and the offspring being so much less intimate than in England, the Scotch Judges seem almost to have /to have been/ succeeded in their endeavours not to distinguish the malâ fide suitor from his legitimate brother.

    For the diminution of the number of Appeals they propose measures /the measures //remedies// they propose are such/, the efficacy of which (so far as they go) is as certain in regard to malâ fide appellants, as their inefficacy is in regard to bonâ fide appellants. Unconscious or effecting to be so unconscious of the destruction, they give these remedies as acting with indiscrimating efficacy upon all appellants and all appeals.

    Conformable to this difference between eyes half-shut and eyes wide open is the difference in the treatment given by the parents in the two countries to their respective progeny.

    In Scotland Your Lordship has seen them[?], at out-running[?] even Abraham in the race of obedience, making a spontaneous sacrifice in appearance of the whole, in reality of a great part of a progeny whose relationship to them is comparatively so obscure and indeterminate.

    Their Reverend brethren in England know[?] betteer things. They feel, and feel most sensibly, that as in America all children /children in general/, as[?] in England these their children are to their parents not only objects of affection and [...?], but sources of opulence. Leaving Abraham to their learned brethren as the other side of the Tweed, they look to the practice of the [...?] adder as a much more convenient precedent.

    To speak plain my Lord, the Judges of the Court of Session make /derive/ no profit from any of the Appeals made from their judgments: whatever profit they draw from the nalâ fide suitor plaintiff or defendant, is drawn from him previously to appeal /the [...?] of the suit at that stage/ the only interest they have in positioning the number of malâ fide appealed causes undiminished is this - viz: that in some instances it is by the contemplation of the delay and expence he is enabled to impose upon his adversary with [...?] and by means of the appeal, he is reduced[?] to institute or defend - bring into or keep in the Court of Session a cause which either he would not have brought into it or not have kept in it.

    Scotch Judges thus make no money from Appeals after Appeal presented. As to English Judges the money they make.
  • Title: [PRIVATE 2 May 1807 H3 + D1]
    Description: PRIVATE

    2 May 1807

    H3 + D1

    Superseded (1)

    Letter V

    Ch.12. Appeal list mutilated

    §.4. Malâ bonâ fide

    In the above figures and proportions may be deduced illustration for divers propositions antecedentally submitted to your Lordship, as well as instruction in other shapes not altogether devoid of use or interest.

    Proportion as between the number of malâ fide Appeals and d o of bonâ fide Appeals - and this for England as well as Scotland - may not this, my Lord, be among the secrets worth knowing?

    My Lord, for England, at any rate, for the three years period abovementioned, it is no longer a secret, nor has it been for these nine years.

    The test lies in the distinction between Appeal not argued and argued. The appeal not argued, therefore in the part of the suitor himself by whom it is presented, presented without prospect of success: viz. so far as concerns the seeing the adverse decision reversed, or in his favour modified. Without prospect of success, then to what end presented? - Answer; for the sake of the profit by delay; that profit, of which so full a view has already been given in general terms, and of which a particular illustration will be submitted to Your Lordship presently.

    The short account of the matter is - Appeals not argued, malâ fide appeals: appeals argued, bonâ fide Appeals.

    The correct account would be (were the correction worth making) - Appeals not argued, all of them malâ fide Appeals to a certainty: Appeals argued the Appeals and the only ones among which bonâ fide ones in a number not ascertainable, would be to be found.