date

1 April[?] 1808 Letter V Ch
1 April[?] 1808

Letter V

Ch. 2. Features approved

'. 2. Appeals diminished

'. 2. Arrangements for diminishing Appeals

2. In the measure for /[...?] to/ the diminution of the number of Appeals, viz. from the Court of Justice[?] to the House of Lords / viz. allowance of //[...?]// [...?] on the [...?] of interest or the same withheld/ then[?] too, as far as it goes commands, in principle at least my approbation.

By taking away the inducement in some cases I perceive /behold/ it starting off, to a certainty part of the aggregate mass /bundle/ of those troublesome applications. By leaving it in the cases in part unremoved, I see it as certainty /with equal certainty/, necessary its[?] professed mark[?] in those other instances.

Stopping /and thus [...?]/ this far short of the attainment of the ends of justice, I know not how /I feel myself unable/ to ascribe the [...?] of it to a regard for the ends of justice.

The class of Appeals to which its operation is [...?], are the mala fide Appeals - those /being presented each of them by a defendant with the plaintiff moving[?] in his hands/ which, have for their final cause the profit from delay, without chance or expectation of ultimate success.

The extending beyond this class would have been not a [...?], but an objection to it.

But on the account given of this remedy by the inventor /inventors/, the property ascribed to it, the property in[?] the means of which the greatest, if not the only [...?] in land[?] by him /them/, is that of ridding the House of Lords of the "burthen upon its time": and to this effect it will not contribute a single [...?] : for the appeals of this description are all of those[?] either[?] withdrawn or for want of prosecution "destroyed": struck out of the books of the House before they have cost[?] a second of time to any of its chambers.
Similar Items
  • Title: [1 Feb y 1808 II. Appeals Appeal]
    Description: 1 Feb y 1808

    II. Appeals

    Appeal Acc t defective

    In speaking of the Official Account of the Appeals presented to the House of Lords for and during the length of time therein comprized, I spoke of it as being incompleat. So accordingly the case stands. No fact can be more incontestable: - and here begins a separate Chapter in the book of Lawyercraft.

    Of the Appeals presented to the House of Lords, sitting in its capacity of a superordinate judicatory, a certain class has received jargonice the denomination of Writs of Error. That they are Writs of Error is out of dispute: such being the name that has been affixed to them by competent authority. That they are moreover Appeals is equally indisputable, having in every respect the nature and effect of those other Appeals which are known by no other name: at any rate in every feature that has any application to the present purpose: and in particular in respect of the draughts drawn by them upon the judicatory[?] part of the time of the House, and in being in their nature though certainly, as in the other case, not in customary language of the practically important and instructive division, expressed by the terms bonâ fide and malâ fide.

    Of the species of Appeals thus denominated no mention whatever was made in any of the Official Tables above alluded to, and hereunto annext.
  • 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: [27 Jan y 1808 on L d Eldons Bill]
    Description: 27 Jan y 1808

    on L d Eldons Bill

    II Appeals

    1. Execution not publication

    I come now to that part of the Bill which appears to include in the /its/ design the reducing the amount /draught/ of the draughts made by Appeals from Scotland upon the time of the House of Lords: including therefore, if the design be compleated, the abolition of the existing arrear, and the prevention of such arrears in future.

    1. Execution below not to be stopped by appeal above - 2. power below to make arrangements relative to the possession of the subject matter pending the Appeal power to the House of Lords for allowing interest for the time during which the party intitled is kept out of possession by the Appeal 3. general power for enabling the House of Lords to reach "the justice of the case" in respect of such "which[?] possession, execution: and...costs" 4. prohibition of appeal to the House of Lords from the Outer House of Session directly /per [...?], that is/ without force carrying the cause through the Inner House - 5. prohibition of appeals from Interlocutary decrees unless when an appeal from the final decree is presented. 6. provisions on these several heads constitutes the matter of the 13th, 14th, 15th and 16th sections.

    This part of the plan agrees in the main /adopts in the main/ with the suggestions contained in the paper intitled a Memorial presented by the Lord President and ten other of the Judges of the Court of Session to the House of Lords, and afterwards in two successive periods /each time/ in the form of a Bill. Coinciding in a considerable degree with the views which the same part of this subject had presented to my own conception, so far of course it commands my approbation: but that approbation can not be bestowed but subject to considerable exceptions /observations/ which proceed[?] state.