date

1820 June 21 Emancipation Spanish
1820 June 21

Emancipation Spanish

'.6. Creoles repugnant

Appeal

If allowed in some causes but not in all, then where /at what point/ is it that the line is to be drawn? Draw it where you will, on one side or the other of the line injustice is the consequence.

Take what sort of cause - take what individual cause you will

Appeal in the case /that cause/ in question - appeal from the highest court /judicature/ in Spanish America to a Court /judicatory/ in Spain is either conducive to justice or not. If conducive to justice it ought to be allowed in every cause: if not conducive to justice it ought not be allowed in any cause

If the line /point at which is to be drawn/ between appeal and no appeal between cases appellable and cases non-appellable is to be determined by the value of the subject matter in dispute, in the first place there are but few cases in which the value of the matter in dispute is capable of being precisely ascertained, in the next place this is as much as to any that the source of judicature which is necessary to justice shall be applied in cases of very high value, but that in all cases of inferior value it shall not be employed /applied/. And though some of /in/ the highest parts of the scale of opulence may have disputes relative to matters of the very smallest value, yet the higher on the scale of opulence you carry your unappealable cases, the greater the probability is that in the cause in question appeal will have for its sure effect, as above denial of justice: justice denied to a man for a want of affluence on his part.

What /Which/ too shall be the subject matter the value of which is to determine whether appeal shall or shall not be allowed? the original subject matter as it stood before the commencement of the litigation? or this same original subject matter as increased by costs of suit. If as increased by costs of suit then by him in whose hands the appeal is an instrument of injustice, the [...?] will be seen to be produced.
Similar Items
  • Title: [PRIVATE 10 June 1807 (1)]
    Description: PRIVATE

    10 June 1807

    (1) (4)

    VI. 3. [...?...?]

    In the section which forms the 2 d paragraph on the 28 pages of the Bill the ground of the provision there made is to me so incomprehensible that, for a solution to the difficulty I can not help suspecting the omission of such a word as not. Instead of a Bill of Suspension or a Bill of Advocation presented to the Court of Session as at present, what is provided is that in the case therein mentioned, the proceeding, though still before the Court of Session, may be by way of Appeal, "after the mode and form by which Decrees of Inferior Courts are brought under Review by the Lords of Justiciary on the Circuits" viz. in virtue of the Statute 20 Geo.2.c.43. By that Statute the mode of proceeding, it is declared but without further explanation, shall be "in a summary way" and in respect of the value of the subject matter of the suit, the faculty of Appeal is limited to the cases where it does not exceed £12 sterling.

    Here, if the clause is to be understood without the word not which I suppose to have been accidentally omitted the description of the case in which the Appeal is to be allowed stands thus - "where the subject matter of such dispute shall exceed in value the sum of Fifty pound sterling." My notion is that it should have been " shall [not] exceed."

    Not that I can conceive any good reason - any reason which to me would appear a good one why the value allowed to be the subject matter of the appeal should receive any limitation.
  • Title: [1820 June 20 Emancipation Spanish]
    Description: 1820 June 20

    Emancipation Spanish

    '.6. Creoles repugnant

    Appeal

    In Election cause, [...?] is / [...?]/ found opposition do

    Appeal or no appeal, injustice in all its shapes, the sure result.

    Think of its /the/ effect in judicature. /of it in regard to justice/ Under of its effect on judicature. Justice rendered from such a distance? it is not possible: distances necessitate expense; expense, denial of justice.

    Suppose the general dominion to continue -, from the highest tribunal in Spanish America to a tribunal in Spain, say as at present, at Madrid either Appeal is for the /in/ future allowed, or it is disallowed not allowed.

    First suppose it allowed.

    If /Being/ allowed, shall it be allowed in all causes? shall the allowance of it shall it extend over the whole field of judicature? It establishes this throughout Spanish America, in favour of the very rich in favour of the compartively very small number who are able to endure /defray/ the expense, a /an inevitable/ tyranny over all besides in favour of all who are not able to endure the expense. In the situation of debtors or persons subject to obligations in any other account it enables the members of the domineering class to evade the payment of all debts the discharge of all obligation due to all persons other than those of that same class: in the situation of creditors, real or pretended, or persons who have a chance[?] to pretend to have claims on others claims to the discharge of obligations undischarge of which if which would be for their benefit, it enables them to consign to ruin, without any power of effectual resistance all those whose opulence has not raised them likewise into this irresistibly domineering class. It discourages litiscontestation, /it prevents litigation /recourse to judicature/ in so far as/ where as as litiscontestation is necessary to justice: it encourages, it begets litiscontestation, /litigation/ in so far as litiscontestation /litigation/ is hostile to justice, an instrument of injustice.
  • Title: [10 June 1807 (2) Letter V]
    Description: 10 June 1807

    (2)

    Letter V

    VI.3. Appeal vice Advocation

    But in the view which I should expect to find the learned Reformer taking of the subject I can conceive what might appear to him a good reason for permitting the change in all cases in which the value in dispute does not exceed the larger sum in question, viz. £50: whereas according to the other interpretation the reason of the mode of limitation appears to me altogether incomprehensible.

    The procedure by Appeal he would say, is summary: but though, to save expence, vexation, and delay, summary procedure may be borne with; yet, as a security against misdecision, which is the main end of justice, it can never be regarded as equally trustworthy with the regular mode. In causes of inferior importance, even up to the value of £50; so they do not exceed that value, let this imperfect mode of procedure be admitted: but when a cause is of such importance as that the value in dispute rises above that sum, then it is time that the regular mode - the mode affording the best security against misdecision - should take place.

    But upon the other construction, and without the word not, how will the[?] matter stand? In causes of the smallest importance - so small as not to rise above £12 this imperfect summary mode of procedure shall be admitted: also in causes above £50 value and so upwards to the highest degree of importance possible. But between these causes of the lowest importance and the causes of the highest importance between £12 and £50 there is an intermediate class of causes to which the indulgence shall not extend.

    /+It is of the exception that in this construction would be made of this intermediate and comparatively narrow class of causes that the reasons appear to me to be altogether incomprehensible. Therfore it is that I have ventured to suggest the above alteration in the character of a correction to an erration either of the pen or of the press.