date

25 Dec r 1807 Letter V Repeal
25 Dec r 1807

Letter V

Repeal[?] II

Review Chamber

Seeing so much said about malâ fide causes, Your Lordship may perhaps be not incurious to know, /deem it not altogether undeserving of notice/, what may reasonably be expected to be their proportion to bonâ fide causes. My Lord, without the end /need/ of /any expence of/ any thing like /sagacity or/ arithmetical skill or sagacity on my part, it is in my power to give to that question an answer which, I hope, will be found satisfactory /tolerably precise/ /sufficiently precise/: all from the prototype of the Chamber of Review, as depicted /determined/ by the Committee on Finance

Total Number of causes in a year lodged in the Exchequer Chamber in an average of three[?] years - minute fractions and uncertainties neglected - 606

Whereof argued, with or without any supposition of merits, or expectation of succeeding against the merits, and therefore not proved to be mala fide causes on the part of the defendant 6

Remains unargued, argument not presenting to the eyes of the defendant or his professional advisers, any the faintest sliver[?] of success, and therefore all of them to a certainty on that same side malâ fide causes - - - 600

In the mind of the learned placemen[?] of the Scotch Chamber of review was there any appearance or prospect of seeing the proportion of certainly mala fide to possibly bonâ fide causes, as compared with the English proportions, lessened? - My Lord, from the first dawn of the age /days/ of reformation in Scotland English practice has been throughout, from the days of L d [...?] in 1789, till now in 1807, English practice, such practice as Your Lordship has just been seeing, has been the ne plus ultrà of perfection, in the imagination of the Scottish reforming lawyer.
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    In the malâ fide suitor the authors of his existence behold in every country that sort of progeny whose existence they would be glad to conceal from the whole world, any, to make sure, if possible, from themselves.

    In Scotland, the connection between the parent and the offspring being so much less intimate than in England, the Scotch Judges seem almost to have /to have been/ succeeded in their endeavours not to distinguish the malâ fide suitor from his legitimate brother.

    For the diminution of the number of Appeals they propose measures /the measures //remedies// they propose are such/, the efficacy of which (so far as they go) is as certain in regard to malâ fide appellants, as their inefficacy is in regard to bonâ fide appellants. Unconscious or effecting to be so unconscious of the destruction, they give these remedies as acting with indiscrimating efficacy upon all appellants and all appeals.

    Conformable to this difference between eyes half-shut and eyes wide open is the difference in the treatment given by the parents in the two countries to their respective progeny.

    In Scotland Your Lordship has seen them[?], at out-running[?] even Abraham in the race of obedience, making a spontaneous sacrifice in appearance of the whole, in reality of a great part of a progeny whose relationship to them is comparatively so obscure and indeterminate.

    Their Reverend brethren in England know[?] betteer things. They feel, and feel most sensibly, that as in America all children /children in general/, as[?] in England these their children are to their parents not only objects of affection and [...?], but sources of opulence. Leaving Abraham to their learned brethren as the other side of the Tweed, they look to the practice of the [...?] adder as a much more convenient precedent.

    To speak plain my Lord, the Judges of the Court of Session make /derive/ no profit from any of the Appeals made from their judgments: whatever profit they draw from the nalâ fide suitor plaintiff or defendant, is drawn from him previously to appeal /the [...?] of the suit at that stage/ the only interest they have in positioning the number of malâ fide appealed causes undiminished is this - viz: that in some instances it is by the contemplation of the delay and expence he is enabled to impose upon his adversary with [...?] and by means of the appeal, he is reduced[?] to institute or defend - bring into or keep in the Court of Session a cause which either he would not have brought into it or not have kept in it.

    Scotch Judges thus make no money from Appeals after Appeal presented. As to English Judges the money they make.