date

1 Feb y 1808 Lords time But
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.
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  • Title: [24 May 1807 D3 (3) Letter V]
    Description: 24 May 1807

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    II. Effects in respect of the bonâ fide appeals.

    1. On the number of the bonâ fide appeals the remedial principle abovementioned - viz. the profit-expunging principle, would have no influence worth regarding: no certainty that so much a single one of them would be stopped by it from going from the Court of Session to the Court of appeal immediately above it: viz. to the House of Lords as at present: or to the proposed Edinburgh Review Chamber, as proposed.

    2. Consequently, by the application of the profit-expunging principle, how useful soever in other respects, no defalcation would be made from the burthen of the draughts made at present by Scotch Appeals upon the disposable time of the House of Lords.

    From the number habitually presented, a great part - the half, for example, more or less, according to circumstances, would be struck off: but by this defalcation, no such exoneration would be effected: for of the Appeals presented to the House whatsoever draughts are made upon the time of the House are made by those only which are heard: and of the portion consisting of the malâ fide Appeals, and defalcated by the operation of the profit-expunging principle, none are ever heard: it not being necessary to the purpose, nor accordingly part of the design of those who present them that they should ever be heard: before the time comes for hearing, they are either withdrawn, or suffered to be dismissed for want of being prosecuted.
  • Title: [1 Feb y 1808 Lords time For]
    Description: 1 Feb y 1808

    Lords time

    For the purpose of the calculation, against the number of malâ fide Appeals meant by the plan to be excluded but not excluded by it, let us set the number of bonâ fide Appeals not meant to be excluded by it, and yet excluded: and suppose (what seems a result as likely as any other) the two numbers to be equal.

    Here then so far as concerns the number of Appeals, the effect of their plan stands thus: Malâ fide Appeals, all excluded: bonâ fide Appeals, none.

    Now, with a degree of exactness[?] sufficient for practice, the number of malâ fide Appeals will, as shown by the annexed Table, stand expressed by the sum of the numbers of Appeals withdrawn and dismissed for want of prosecution, respectively.

    But by the exclusion of the whole number of malâ fide Appeals, as thus determined, not only not the whole of the excess, but not so much as the smallest part of it, would be struck off from that portion of the mass of Appeals of which "the burthen to the House of Lords" is composed. For neither by those withdrawn nor by those dismissed is so much as the smallest part of the time of the House employed.
  • 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.