date

27 Feb y 1808 Scotch Reform on L d
27 Feb y 1808

Scotch Reform on L d Eldons Bill

Letter V

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.

Tending with the degree of force that has been seen to produce factitious delay without limit in the case of the one description of suitors, it would be sufficient to Ground a warrant of rejection if it had no tendency - or even if it had no proportionable tendency to diminish the quantity of delay produced by appeals to the Lords on the part of bonâ fide suitors.

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.

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  • Title: [1 Feb y 1808 Lords time But]
    Description: 1 Feb y 1808

    Lords time

    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: [1 Feb 1808 on L d Eldon's Bill]
    Description: 1 Feb 1808

    on L d Eldon's Bill

    Lords time

    The superior object of the two in urgency as well as dignity - that which has for its theatre the House of Lords ingrossed their attention, and was all the while the only object aimed at. "If these regulations" (says the Lord President with his ten learned Co-Memorialists) "if these regulations" (speaking [of] a set of regulations the same in principle with those of which I have been endeavouring to give a view) "were adopted, we are persuaded, that the number of Appeals" (meaning Appeals to the House of Lords) "would soon cease to be a grievance to the subject, or a burthen to the House of Lords." +

    A good effect which they never aimed at producing, it may happen to them to produce: but in respect of this sole object of their endeavours - at any rate the only declared object, Your Lordship if my humble view of the matter be not altogether incorrect, will see that they have compleatly failed.

    Malâ fide Appeals and bonâ fide Appeals - under one or other of their divisions may the whole number (as elsewhere observed) be comprized.

    Of the number of malâ fide Appeals the regulations in question will assuredly strike off a part: they will as certainly leave another part unexcluded. The proposition between the two parts will depend in each Session upon accidental circumstances; upon the circumstances of each individual cause: upon the amount of capital or principal at stake, the sources of profit at the command of the respective parties, the length of delay [...?] by the Appeal, and the money that must be paid, in the shape of costs, for the purchase of it.

    + Memor. art. 49.
  • Title: [1 Feb y 1808 Lords time Make]
    Description: 1 Feb y 1808

    Lords time

    Make the tour of the wards in S t George's Hospital, force a gag into the mouth of each patient, you will encrease their sufferings indeed, but you will [...?] their cries. - Such is the way in which the fee-gathering system, improved by prohibitory taxes upon justice, check litigation and preserve[?] peace[?]. Suppose that in any degree this were the effect of the remedy proposed by the learned Universalists[?], would they place it to the account of good? But in the general and except so far as concerns the exclusion put upon Appeals previous to final judgments Appeals against Interlocutors, I do not impute it with any such tendency.

    Under the prohibition put upon Appeals against Interlocutors, in the case of their being presented before final judgment, under the prohibition, if the views above submitted be correct, along with the malâ fide Appeals, a proportion of the aggregate number of bonâ fide Appeals would be shut out. Was it the intention of the learned reformers that this or any other part of the mass of bonâ fide Appeals should thus be shut out? By that modification of justice which has acquired the name of candour, this interpretation seems, provisionally at least, to be excluded. But if so then whatsoever be the number of bonâ fide Appeals that by this or any other part of their plan would come to be shut out, must be admitted by them to belong to the mischief side of the account, and to constitute per[?] tanto not a recommendation of the plan, but an objection to it.

    Applied to Appeals, without fear of contradiction, I should not hesitate to pronounce this mode of lessening the number of those profitable stages of litigation a bad one: without fear of contradiction, because it would lessen the amount of fees the produce of the law harvest.