date

[094-157v] 16 Apr. 1807 To
[094-157v]

16 Apr. 1807

To L d Grenville

Letter V

Proper Procedure[?]

Permitt me once more, to beg your Lordship's attention to the distinction between malâ fides and bonâ fides. In this /On this/ as in so many other cases /as [...?] every thing turns upon it // on so many other occasions/, it is a cardinal one: the whole enquiry hinges on it.

In such instance, the Appeal Writ of Error or by whatever name the innovation made of the controling authority of the superordinate Court be diminuated, will be a malâ fide Appeal, or a bonâ fide: he by whom it is made will be conscious of his not having the right on his side, or his mind will be clear of that immoral consciousness.

In both instances the effect of the system will be to increase the number of appeals: and to come at once to the really material part of the question - will increase the aggregate mass of collateral inconvenience, in the shape of delay, vexation and expense, flowing from that source, and without producing any preponderant advantage in the shape of security against misdecision.

In the two cases its tendency runs /operates/ upon two widely different grounds. I consider it therefore upon each, beginning with the case of the malâ fide

appellant, whose existence Your Lordship's learned reformer has I hope brought himself by this time to [...?].
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    To apply the distinction to the case in hand - that of appeals /appeal/.

    The malâ fide appellant /the malâ fide suitor/ is that species of man most of whose existence I have been employing[?] so much and I fear such fruitless labour to impress the conviction upon Your Lordship's learned Reformer's mind. He himself is as well satisfied as any body /one/ else can be of his having no rights to the sort of service which by the appeal he prays /demands/ for, but forasmuch as under the protection afforded to him under the name of law by learned Lords and Gentlemen he finds it or renders it his interest to persevere in such demand, to persevere accordingly.

    The appellant who though by the supposition he is in the wrong, is not conscious of his being so, and therefore is not a malâ fide appellant, may according to analogy, reference being had to the above cardinal distinction, be termed though a bonâ fide a temerarious appellant - his conduct in respect of his preferring such appeal may be said to be coupled or tinctured with temerity - and so forth.
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    Revelation the 60 th. That when any judgment shall have been pronounced in any Chamber of the Court of Session, it shall be subject to review in a Chamber of Review, in which none of the Judges shall sit who belonged to that Chamber whose judgment is to be reviewed; and that the cause shall, in that stage, be conducted by printed cases, and hearing of Counsel, in the manner and form observed in Appeal to the House of Lords; such Chamber of Review to constituted in such manner hereafter be appointed by act of Parliament.

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    Permitt me on this occasion once more, my Lord, to beg Your Lordship's attention to a distinction /division of causes/ which though not to be found in the Law Books, is not the less /but the more //has not the less claim/ avertions of the attention of a /the/ legislator - the distinction between bonâ fide and malâ fide causes. To the latter class belongs every cause in which either party is in malâ fide /that commonness of wrong exists on either side malâ fides/, and for obvious reasons, the party by [...?] the most apt to be in that case in the Defendant.
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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.