date

25[?] July 1807 Appeal list defective
25[?] July 1807

Appeal list defective

Question - Why continue the right of voting to the delegates? - why exclude the votes of all other members of the House of Lords?

Answer 1. Lest by individual or party favour or enmity, Judges should be led in in fluctuating and uncertain numbers.

2. Lest, worked[?] on by some such sinister interest, a Judge should pronounce his decision without having heard the whole of the arguments, perhaps without having heard any but one side.

3. Lest the sense of individual responsibility should be extinguished, and the advantages of[?] few-seated in comparison of many-seated judicature be thereby foregone. (See Scotch Reform Letter 1.)

In the annext Tables stand expressed the amount of such of these Writ of Error Appeals as during these three portion[?] years were presented to the House of Lords: unfortunately, in the instance of such of them as were presented to that ultimately-appellate judicatory the distinction expressed by the words heard and not heard, or their synonyms argued and not argued, synonyms both of them (as above shewn) to bonâ fide and malâ fide, the information furnished by the House of Commons Report above referred to does not extend. Between the numbers of the two classes the proportion must in that instance be left to conjecture: to a conjecture, the grounds of which are furnished by the other Table (Table x) in which the proportions between the two classes are given in the instance of that mass of Appeals which in the course of the same three instructive years were presented to the several English Intermediate Courts of Appeal or Chambers of Review, and forming the grist brought to that part of the number of efficient mills, kept on going for the manufacturing of delay, and grinding the face[?] and substance of the poor and helpless, at the instance and for the benefit of respectable and open handed customers.

The number, absolute and relative, of these malâ fide Appeals was the secret, which in the present occasion as on every occasion it was with so much justice deemed incumbent, in point of prudence to avoid, if possible, bringing to view.
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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.
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    §.4. Malâ bonâ fide

    In the above figures and proportions may be deduced illustration for divers propositions antecedentally submitted to your Lordship, as well as instruction in other shapes not altogether devoid of use or interest.

    Proportion as between the number of malâ fide Appeals and d o of bonâ fide Appeals - and this for England as well as Scotland - may not this, my Lord, be among the secrets worth knowing?

    My Lord, for England, at any rate, for the three years period abovementioned, it is no longer a secret, nor has it been for these nine years.

    The test lies in the distinction between Appeal not argued and argued. The appeal not argued, therefore in the part of the suitor himself by whom it is presented, presented without prospect of success: viz. so far as concerns the seeing the adverse decision reversed, or in his favour modified. Without prospect of success, then to what end presented? - Answer; for the sake of the profit by delay; that profit, of which so full a view has already been given in general terms, and of which a particular illustration will be submitted to Your Lordship presently.

    The short account of the matter is - Appeals not argued, malâ fide appeals: appeals argued, bonâ fide Appeals.

    The correct account would be (were the correction worth making) - Appeals not argued, all of them malâ fide Appeals to a certainty: Appeals argued the Appeals and the only ones among which bonâ fide ones in a number not ascertainable, would be to be found.
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    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.