date

27 Feb y 1807 (4 Letter V
27 Feb y 1807

(4

Letter V

Resolut. 10, 11, 12, 13, 14

In respect of these five provisions taken together, such my Lord in few words, such I must confess is the point of view in which they have presented themselves to my eye.

1. That as to Resolution 10 th substituting, or professing to substitute, Appeal to Advocation and Suspension, so far is it from being likely to contribute in any considerable degree to its professed end, defalcation from delay, that it leaves the mischief in by far the most extensive and formidable quarter of it exempt from all disturbance. The operation of it is confined, as if with tender sollicitude, to bonâ fide causes, having malâ fide suitors, on both sides of the cause in the undisturbed possession of whatever advantage it finds them in possession of.

2. That as to Resolution the 14 th being the provision which concerns costs, whereas the nature of things, affords against delay a remedy striking at the root of the evil, applying the absolute quantity as effectually as to the relative, and to suits and suitors of every description, the remedy thus employed is one that goes no further than pruning the evil, leaving the greater part of it untouched, viz: that part which has for its authors the malâ fide class of suitors.

3. That as to Resolutions the 11 th and 12 th, interposing in every case between the supreme local and the supreme imperial judicature an additional local degree under the name of a Court of Review, its tendency to reduce the relative quantity of delay exclusively aimed at is not so strong as would have been the tendency of that unemployed remedy by which whatever reduction had been effected would have been absolute as well as relative.
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    These four (11 th, 12 th, 13 th, 14 th) have not so much as for their professed object the abridgment of the aggregate mass quantity of delay absolutely considered: but only the relative quantity, viz: so much of the total quantity of time as is consumed while the causes in question continue in that highest Court: and such in that quarter and so notorious is the urgency of the pressure, that for the benefit of what defalcation may thus be made from this relative quantity, it seems understood that an addition made to the absolute quantity might be made without paying too high a price.

    Even in profession these four Resolutions can not therefore be considered as aiming at the prevention of unnecessary delay and thereby ministering to that one of the ends of justice. If it be asked to which of those ends it is or to which of them it professes to be directed, prevention of misdecision is manifestly the only one that in this view can be named.

    So material is this distinction, and so strictly are the aims of the learned Reformer confined to the abridgment of delay, in the relative sense of delay, that in Resolution the 14 th in which costs are proposed as an instrument for cutting short the number of frivolous and vexatious appeals, the application of the intrument such as it is is not proposed to extend beyond that portion of the aggregate mass of causes of which that supreme Court has found itself the receptacle.
  • Title: [27 Feb y 1807 Judicial Justice]
    Description: 27 Feb y 1807

    Judicial Justice

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    To return to suitors.

    Suitors, who finding it or supposing it to be their interest to create superabundant delay, betake themselves accordingly to the creation of it, are the malâ fide suitors so often mentioned.

    To the malâ fide suitor, superabundant delay is an instrument of mischief in different shapes - an instrument of simple vexation and oppression, or of undue profit, and in different ways, according as his station is on this or that side of the cause.

    Is he on the plaintiff's side? - if his object be the production of mere vexation without profit, it affords him the desired gratification partly by the expence which to a greater or less degree is inseparably attached to the condition of litigant on each side, partly by the anxiety, the vexation with which a course of litigation is infested throughout the whole of its length.

    If his object be undue profit, it may have for its effect the putting him in possession of the subject matter of dispute, by any of the means so often mentioned - by the adversary's, being disabled, by the deperition of necessary evidence from continuing his defence with any prospect of success, by his being altogether disabled, by the absolute want of the means of defraying the necessary expence, by his being driven from his defence by the terror inspired by the compound mass of affliction in the shape of the vexation and expence.
  • Title: [27 Feb y 1808 Scotch Reform on L d]
    Description: 27 Feb y 1808

    Scotch Reform on L d Eldons Bill

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    I. Reasons necessary

    Thus much as to the effects of the proposed Chamber of Review in respect of augmentation of delay, vexation and expence with its attendant inconveniences, relation had to class of the malâ fide suitor: the encouragement enormous: the supposed and proposed discouragement or preventatives - viz. extra costs at the Lords - prohibition of appeals to the Lords against interlocutors - and Appeals to Session instead of Bills of Advocation or Suspension - nominal, illusory and at bottom scarcely capable of having been sincerely intended to answer their professed purpose.

    I come now in the last place to consider the effects of the same engine of delay, with these its supposed counter-forces, upon the case of the bonâ fide suitor.

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    From the former page

    9. Whatever good effects are producible in this way by the publicity of the Debates are confined almost compleatly altogether to the stages that precede the passing of the law. For the interpretation of an Act of Parliament, neither Judge nor Advocate ever thought or would ever be likely to think, of referring to any Report given of any Debate of which it had been the subject in its passage through either House.

    Back to the former page.