date

21 Apr. 1808 Letter V Ch. Appeals
21 Apr. 1808

Letter V

Ch. Appeals

There are ways in which on the [...?] of justice, it is desirable that in this stage as in the /every/ anterior stage, suits at law, termed in the aggregate litigation, [...?] be prevented, and to the [...?] extent possible.

1. In so far as the suit has an [...?] [...?] for the cause, the uncertainty of the law /rule of action/ giving to it /providing it with/ a determinate form of words, for the expression of it, if as yet it has no such receptacle, [...?] reducing /transmuting/ it from out of the form of jurisprudence law imaginary law rule[?] statutory, the only real law: or if already it be in the form of real law and substituting to the ambiguous or obscure expressions in which the uncertainty has its seat[?], such as shall be clear and determinate /unambiguous/.

2. In so far as the uncertainty has for its seat the question of fact, doing what depends on the legislator, and that[?] without Imprudence [...?] in other stages can be done towards giving notoreity to all such facts /matter of fact/ as an [...?] and fitted by their nature to [...?] as grounds either for individual demand or juridicial defences: ex [...?] [...?] the fact of his having entered into a contract to this new[?] effect of a mans having committed an offence if there is that description and so forth.

3. In so far as the suit has in the stage in question [...?] that of appeal has for its cause any failure[?] if incompleted - in the case of the Judges want of appropriate harmony, want of intellectual skill discernment, want of the faculty of decision, want of [...?] /want of propriety[?]/, taking such measures as the nature of the case admitts of for as for instance of each Judge the marks[?] of the sword[?] [...?] thus desirable on the part of every Judge: partly by provisions[?] respecting the choice to be [...?] of [...?] for this office, partly by the application of by means of such apt space[?], guides and [...?] as the nature of the case admits of.
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    But it is to the malâ fide Appeals and those alone, that these regulations have any application. The appeals struck off by them will be those in which success being hopeless, delay with its profit is the only object in view. From the number of bonâ fide Appeals it will not strike off a single suit: at least not one of which if it were asked of the framers of the Bill whether it be desirable it should be struck off, their answer would be in the affirmative.

    From the number of bonâ fide Appeals, if the effect of the regulation were to make any defalcation, the greater the defalcation, so much the worse. Between the nature of the part defalcation and the nature of the part left undefalcated, no distinction being perceptible, if in regard to any part defalcation were a benefit, a fortiori so would it be in regard to the whole.

    Lessening the degree of uncertainty, so to the main body of the law, lessening the danger and suspicion of misdecision in the subordinate judicature, whether on the ground of law or on the ground of fact - it is only when thus produced that in defalcation from the number of Appeals presented to the supreme and imperial judicatory can be placed to the account of public benefit - regard being had to the ends of justice.

    Multiply the amount of the expence of applying for the remedy administered in the supreme judicatory, you will cut off the Appeals of all those bonâ fide suitors who, being able to bear the simple amount and not able to bear the multiple amount, would thus be excluded from the faculty of "adding to the burthen of the House of Lords": and by multiplying the amount of costs in the subordinate judicatories, the like effect might be produced at an earlier stage.
  • Title: [25 June 1807 (2) Letter V]
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    (2)

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    Where the circumstances of the would be wrongdoer are relatively indigent, especially if those of the intended sufferer by the wrong be relatively affluent, the expence by the prospect of it tends to prevent the commission of the wrong, and where the wrong happens to have been committed notwithstanding, the expence partly by the experience of what is already incurred partly by the apprehension of what may remain to be incurred, tends to prevent the continuance of the suit, by preventing the continuance of the malâ fide defence, and thence the continuance of the suit.

    But where the circumstances of the would be wrongdoer are relatively affluent, those of the intended sufferer by the wrong being relatively indigent, the expence by the prospect of its effect on the intended sufferer tends to promote the commission of the wrong, but again when the wrong having been committed accordingly, the party wronged notwithstanding has indigence ventures to such redress and so commences a suit, the tendency of the expence is, as before partly by the experience of what is past, partly by the apprehension of what may be to come, partly by the utter inability to continue the pursuit, to put an end to the pursuit, and so in that way to the continuance of the suit. However, though under the pressure of the expence many of the wrongs produced by the prospect of impunity there will be some that will not be productive of juridicial[?] complaint, yet forasmuch as of the many wrongs which but for this encouragment would not have been committed there will be some that will produce each of them a suit, thus it is that in this case the effect of the expence will be upon the whole to give encrease to the number of suits.
  • Title: [PRIVATE Dec r 1807 + A 1]
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    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.