date

PRIVATE 2 May 1807 H3 + D1
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Superseded (1)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.
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    Description: 2 May 1807

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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.
  • Title: [2 May 1807 + D3 Letter V]
    Description: 2 May 1807

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    VIII. Appeal List mutilated

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    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: [16 Jan y 1808 Scotch Reform]
    Description: 16 Jan y 1808

    Scotch Reform

    Elucidation to Tables IX, X, XI concluded

    (1) [145] So far as concerns the malâ fide Appeals, (which till the time comes for hearing, at which conjecture they are either withdrawn or dismissed commonly without being argued, can not be distinguished from the bonâ fide Appeals) the cause of this arrear may be seen in the influence of the fee-gathering system.

    By the fee-gathering System, understand that system which, to the remuneration attached to offices concerned in the administration of justice, gives the Shape of fees: viz. sum of money, the aggregate of which rises and falls along with the number of suits, and the number of incidents taking place in each suit.

    The multitude of malâ fide Appeals is produced b the profit which the Appellant finds it in his power to make, by subjecting the Respondent to the ulterior load of delay expence and vexation attached to this ulterior stage: and forasmuch as the amount fees has all along risen and fallen with the multitude of Appeals malâ fide as well as bonâ fide ones it has thus been the interest of persons in high office, Judges and others, to render by apt encouragement the multitude of these acts of iniquity as great as possible.

    This encouragement consisted in the giving to the operation of Appeal, the effect of staging execution on the decision appealed from. By this means, where in contemplation of the advantage to be reaped from such delay, a man had got possession of property, to which he had no right, whatsoever might be the nature and amount of such advantage was secured to him, for such length of time as the delay, could be made to last, See Ulterior Results, art. 6.