date

24 May 1807 D4 4 Letter V
24 May 1807

D4 4

Letter V

VIII. Appeal list mutilated

IV. Uses

3. Upon that part of the effect which bears relation to the bonâ fide portion of the possible number of appeals will turn whatever doubt of difficulty may overhang the effect of the proposed Review Chamber in respect of its influence on the neat quantity of inconvenience in the shape of delay, vexation and expence, likely to be produced or expunged by this proposed additional stage of jurisdiction proposed to be interposed between the supreme Court of judication situated in Scotland and the House of Lords.

4. The malâ fide Appeals presentable from the Court of Session to whatsoever Court they are or may come to be presented, owing their birth to the non-application of the profit-expunging principle - a cause in which the aptitude or inaptitude of the state of judicature in either respects has no connection, all questions concerning such aptitude or inaptitude will be or at least ought to be confined to such proportion of the whole number of appeals as come under the description of bonâ fide Appeals: whether such magnitude, if any, absolute or relative, relation being had to the state of judicature in the other two kingdoms, or in any foreign states have for its cause or causes, for example, te unsettled state of the substantive or main body of the law - the multiplicity of the Judges and the composition of the judicial establishment in other respects - the adjective branch of the law or the system of procedure - or any deficiency, habitual or accidental, respecting the personal aptitude of individuals, assignable or unassignable, in the assemblage of the Judges.
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  • Title: [24 May 1807 D3 (3) Letter V]
    Description: 24 May 1807

    D3 (3)

    Letter V

    VIII. Appeal list mutilated

    IV. Uses

    II. Effects in respect of the bonâ fide appeals.

    1. On the number of the bonâ fide appeals the remedial principle abovementioned - viz. the profit-expunging principle, would have no influence worth regarding: no certainty that so much a single one of them would be stopped by it from going from the Court of Session to the Court of appeal immediately above it: viz. to the House of Lords as at present: or to the proposed Edinburgh Review Chamber, as proposed.

    2. Consequently, by the application of the profit-expunging principle, how useful soever in other respects, no defalcation would be made from the burthen of the draughts made at present by Scotch Appeals upon the disposable time of the House of Lords.

    From the number habitually presented, a great part - the half, for example, more or less, according to circumstances, would be struck off: but by this defalcation, no such exoneration would be effected: for of the Appeals presented to the House whatsoever draughts are made upon the time of the House are made by those only which are heard: and of the portion consisting of the malâ fide Appeals, and defalcated by the operation of the profit-expunging principle, none are ever heard: it not being necessary to the purpose, nor accordingly part of the design of those who present them that they should ever be heard: before the time comes for hearing, they are either withdrawn, or suffered to be dismissed for want of being prosecuted.
  • Title: [22 May 1807 Scotch Reform]
    Description: 22 May 1807

    Scotch Reform

    (5)

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    Letter V

    Lett

    Ch.3. Bonâ fide Appeals

    §.2. Efficiency not proved

    But on what ground can any expectation of such superior aptitude rest? -

    1. On the ground of superiority of number? By the very principle of the plan this ground is recognized to be an untenable one. Number at present? fifteen: this too many for good judicature: this the reason, at least one of the reasons, for reducing it: for reducing it to 5. By dividing the Court with these 15 Judges into but two sections instead of three a greater number than 5 might be preserved for each: but for the purpose of the Court à quâ such greater number is set aside as too great. Is there any thing and what to make it not too great for the Court ad quam?

    2. On the ground of superiority of aptitude as derived from experience? From this source already the existing Court is in possession of as much aptitude as it can have, or at least as it is thought fit it should have: for instead of sitting oftener it is proposed that after the division, the three sections sitting not simultaneously but alternately each Judge shall not sit above a third part as often as he does now.

    A revival indeed of certain Extraordinary Lords is indeed proposed. But on what ground rests the expectation of any superior aptitude on the part of these extraordinary Lords? On the ground of the name extraordinary? I see no other. But if so much is to be done by names (a supposition which to me seems, I confess, rather extraordinary,) call the existing Judges extraordinary, and the business is done.

    To the title of extraordinary is a salary extraordinary in magnitude to be attached? If such be the virtue of salary, add then the extraordinary part of the salary, but not otherwise.
  • Title: [14 Dec r 1807 Scotch Reform]
    Description: 14 Dec r 1807

    Scotch Reform

    Letter V

    Ch.5. Scotch Appeals Excess

    §.2. Remedies.

    5. For intellectual inaptitude, and thence for all suspicion of it, remedy the same as in the last case: also imposing on the Judges if more than one the obligation of presiding by turns: fearful of exposure conscious inaptitude will thus shrink from the offer instead of courting it.

    For the deplorable mode of intellectual inaptitude called indecision, generating instead of decisions doubts, that malady, out of office a misfortune, in office a crime, and a crime of which no self partiality can conceal the existence, a crime by which more than one kingdom has so long and so often been oppressed, bonâ fide litigants impoverished and tormented, malâ fide litigants encouraged and multiplied, the only applicable remedy is the public statement and recordation of the delays thus generated: inaptitude thus exposed, imbecillity would hide itself in that obscurity from which it ought never to have emerged. But this is a malady in a peculiar degree incident to single-seated judicature. In a team the strong horses drag on the weak ones.