date

24 Dec r 1807 Scotch Reform
24 Dec r 1807

Scotch Reform

4[?]

Letter V

Ch. │ │ Omission Causes

Were the ends of justice, and its subserviency to those ends the objects really in view, the true criterion and index of judicature absolutely considered so far as Appeals are concerned - the number presented respectively from the supreme local judicatory: relatively and comparatively considered it would be the numbers respectively presented from the several co-ordinate local judicatories in the three kingdoms: whether, after passing from their respective subordinate judicatories, the supreme judicatory to which the Appeals respectively went, even of this or that description - whether to the House of Lord for example or to the King, would to this point make no material difference.

But the ends pursued by our most venerable and justly predominant order never have been, nor in the nature of the case could have been, the ends of justice, nor could those ends have ever been the objects of our attention for any other purpose than that of enabling ourselves to steer as clear and wide of them as possible.

By bringing to view the real number of Appeals presented from the English Courts in question we not only should not promote any of the laudable ends and designs we have in view, but we should counteract in the strongest and even frustrate them in the compleatest degree imaginable. For so it is, that it would turn out, not only that the Appeals from the English Court are more numerous than the Appeals from the Scotch Courts; but that the excess is beyond all proportion greater than what would be in proportion to the difference in point of population between the two kingdoms.
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  • Title: [12 Dec r 1807 Scotch Reform]
    Description: 12 Dec r 1807

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    Letter V

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    Of the aggregate number of draughts made by Appeals upon the time of the House of Lords, those that come from Scotland make but one part out of three: those which come from the English and Irish judicatures respectively comprizing the two other parts. The disorder has thus three sources: the proposed remedy applies to one only of the three. In the choice thus made of the remedy an assumption is involved that in the production of the disorder the drain from Scotland bears by much the largest share. Hence it is that in any account taken of the causes in which the multitude of the Appeals presented from the supreme Scottish judicatory take their rise, a reference, expressed or not expressed is all along made to the number presented from the judicatories of the two other kingdoms. Whatsoever were the proportion, great or little, borne by the English and Irish Appeals together to the Scotch Appeals, the efficacy of the remedy in question, a remedy the application of which is confined to the Scotch appeals would not be affected by it. On the present occasion no light being capable of being thrown on the subject by any such reference, it is not made in any such view.
  • Title: [24 Dec r 1807 Scotch Reform]
    Description: 24 Dec r 1807

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    (2)

    Letter V

    Ch.│ │ Omission Cause

    By the creation of the proposed Chamber of Review, the good purposes on both sides will be happily accomplished. On the one part friends will be provided for influence extended, and the regulation gained by staving off denial of justice, in appearance at least, and for a time, from hanging any longer over the House of Lords, so serious a reproach as that of a compleat and inexorable denial of justice.

    To effect this improvement in the state of Scottish judicature, it will be absolutely necessary to represent the present state of it in colours by no means to its advantage: and for this purpose to bring particularly forward those features of disadvantage which are calculated to make the strongest impression on Parliament and in particular, on the House of Lords.

    But of all its features the most promising in this view is the enormity and continual encrease of the demand made upon the House of Lords for its time by the Appeals from the Court of Session presented to that Most Honourable House.

    By bringing this object into view both objects will be compassed at once. Keeping to the word Appeals, it will be matter of intuition - matter out of the reach of dispute, that by the Scotch Appeals the demand made on the House for its time is in a[?] much considerably degree greater than that made by the English Appeals. Exclusive of all such considerations of time, it will moreover - and on ground equally out of the reach of dispute, that the number of Appeals presented to the House of Lords, from the one judicatory of the lesser and least populous, is much greater than the number presented to the same supreme judicatory from the largest and most populous of the three kingdoms.
  • Title: [PRIVATE Dec r 1807 + A 1]
    Description: PRIVATE

    Dec r 1807 + A 1

    Scotch Reform Lett. V.

    1 Ch.5. Scotch Appeals Excess

    §. 1. Causes

    Ch.5. Excess of Scotch Appeals - its Causes and Remedies

    §.1. Causes of the Excess.

    Reference being, whether expressly or no, unavoidably made to the proportion furnished respectively by the English and Irish judicatories, respectively more especially by the English, the following present themselves as the principal causes by which the multitude of the Appeals presented from the supreme Scottish judicatory is produced -

    Cause 1.

    1. Uncertainty viz. still uncertainty of the rule of action.

    In all three kingdoms, the rule of action is as to the greater part of its extent, the rule of action remains to this day in the barbarian shape of what is commonly called common or unwritten law - law made, in so far as a body of law that has no determinate set of words for the expression of it can be made, made by Judges under the pretence of declaring it. But in England there exist, and in no small quantity a stock of materials, adapted so far as any materials can be adapted, to the peculiar nature of this species of manufacture: viz. on the part of the Judges by whom the respective decisions are pronounced dicta portions of discourse, in the form of general propositions, among which are to be found some which, if any real law had been made on the subject by competent authority, might have constituted the words of such real law, propositions expressive of so many rules or portions of law, accompanied commonly with other portions of discourse serving as grounds or reasons, reasons indicative of the propriety of such rules.