date

25 Dec r 1807 Table VII. Jurisdiction
25 Dec r 1807

Table VII. Jurisdiction Table VII

Notes

'.II. Stages of Appeal, how many?

Subordinate Topics.

1. In point of fact, in English and Scottish judication respectively, how far, in the several states of jurisdiction, the real number of stages coincides with the apparent: viz. in what instances is it greater?

2. Herein[?] if disguised stages of Appeal. In English Equity, procedure, for example. Report by a subordinate Judge (and[?] Master[?]) and Exceptions thereunto, argued before the supreme Judge: the Chancellor or the Master of the Rolls. So in Scottish procedure, in the Court of Session, vibrations between the Bill Chamber, and the two Houses, Inner and Outer. *?

3. In point of utility, what are general principles in the proper number of stages of Appeal? See Shapes of injustice

4 By what particular circumstances, topographical or logical (logical, resulting from the place of the cause in the field of judicature) are indications afforded for the diminution or augmentation of the number of these stages?

5. In point of fact, Comparative multitude of intermediate stages in Scottish judicature in comparison of English and Irish; no regard being had, in the case of the English, to the cases most frequently exemplified in practice.

6. In point of utility, how far it is desirable, that the number of stages, through which the suit is capable of being made to pass should rest on the arbitrary will of the Plaintiff or his Attorney, to be exercised either at the outset of the cause (ex. gr, by commencing[?] it either by Original, (which throws out the Exchequer Chamber) or by Bill, which leaves the Exchequer Chamber in) or at any intermediate period[?]: ex. gr. in Chancery by setting the cause down for hearing either before the Chancellor or the Master of the Rolls?

N.B. Analogous to this in criminale is the practice, which in capital cases, gives a power of pardon to the prosecutor, by leaving it at his option to ground[?] the indictment on a Statute subjecting the offence to capital punishment, or on a Statute subjecting it to a punishment less than capital, or on the Common Law.
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  • Title: [17 Jan y 1807 Omissa Outer]
    Description: 17 Jan y 1807

    Omissa

    Outer House Appeals &c

    True it is, that, close to those instances of a single stage of Appeal, English practice furnishes other instances of two /and/ or even of three/ stages. But from /by/ this exuberance in one quart, not the slightest proof or presumption that one /the/ stage of Appeal is not /less than/ sufficient for all cases, will be found deducible. No supposition superiority[?] of difficulty in the one class of cases compared with the other - for in both instances a cause of the same class /sort/ travels through the three stages or through only two of them, as it happens. In both instances then the intermediate stage of Appeal is a mere redundance. The Court of Exchequer Chamber is as already stated no only /merely/ a superfluity, but a most pernicious nuisance. The Court of King's Bench, in its character of an intermediate Court of Appeal between the Common Pleas and the House of Lords, is another nuisance of the same kind.

    In Equity the Court of the Lord Chancellor, in its character of an intermediate Court of Appeal between the Court of the Master of the Rolls and the House of Lords, does not certainly to a degree approaching /comparable/ to these others claim the appellation of a nuisance, but still it can not be mentioned as any thing better than superfluous /a superfluity/. Why? - because whether in this case the additional stages shall be travelled through or not depends - not upon the nature of the cause - not upon any extra demand for consideration which one sort of cause can present when compared with another - but upon a circumstance entirely /purely/ foreign and accidental and irrelevent - viz: the will of the plaintiff or rather that of his sollicitor: according as it happens to be the determination of the plff as the suggestion, and under the guidance of his lawyer to have the cause set down to be heard before the Master of the Rolls, or before the Chancellor in the first instance.
  • Title: [Elucidation to Table VII. Jurisdiction Table]
    Description: Elucidation to Table VII. Jurisdiction Table. 3. Scotch Scales

    (b) Session Bill Chamber

    Of the several scales of jurisdiction included in the judicial establishment of Scotland those in which the Bill Chamber constitutes one of the stages differ from the English scales of jurisdiction in this, viz. that in an English scale the suit never travels from a lower to a higher stage unless conveyed [...?] by Appeal: whereas in these[?] Scottish scales though[?] in the manner represented in the Table it is conveyed upward, by Appeal, it also feeds its way into the same superordinate justicatory without Appeal, and of course. If the decision given in the Bill Chamber be not appealed from, the suit in its natural and shortest course, goes without any appeal upwards into the Lower House, then down to one/an[?] [...?] House then up again into the Lower House: if it be appealed from, it still takes the same course, unless thrown out, it is terminated, as may be, either out[?] from the Bill Chamber, or from the Lower House, it still may be by a decision of the Lower House. The above [...?] takes the same course

    (a) Scales of jurisdiction

    What concerns the proceedings in the Bill Chamber is taken from [...?] Form of Process etc 8[?] Edinburgh [?] and other Bills System of Forms of Deeds[?] 8[?] Edinburgh 1804 Vol. VI.

    (a) (being Scottish) unless when otherwise mentioned,

    The information contained in this division of the Table is taken from Erskines Principles of the Law of Scotland, 8vo Edinburgh, 1791. 7th Edition. B.i. Title 2,3,4,5,6.

    /The difference is real in this one case it goes without argument, in the other case for the purpose of argument, carrying with it of course the delay vexation and expense attached to argument./
  • Title: [14 Feb y 1808 1. No Reporting]
    Description: 14 Feb y 1808

    1. No Reporting

    1. Analogous Practice

    II. In the judicial establishment of England it is without a parallel.

    In the Court of Chancery on the Equity side are contained two perfectly distinct judicatories: that of the Lord Chancellor, and that of the Master of the Rolls. In matters of Equity, the field of their jurisdiction has the same limits. Throughout that extent an Appeal has[?] from a decree of the Master of the Rolls to the Lord Chancellor. But the Master of the Rolls where once he enters upon a course ends it: to him it is not allowed to finish a cause or to send it up unfinished to the Lord Chancellor at pleasure.

    From the Common Pleas much for /Thus much as to the two/ single-seated judicatories: turn now to the /three/ many-seated, the three four-seated judicatories.

    From the Common Pleas under the name of a Writ of Error an appeal [...?] to the King's Bench. But the Judges of the Common Pleas do not report causes to the King's Bench: to them it is not allowed to finish their business, to send it up unfinished as they please.

    From the King's Bench a Like appeal [...?] to one of the Exchequer Chambers. No reporting here.

    From the Exchequer like appeal to the other Exchequer Chamber: no reporting here.

    A few exceptions will on a clear view afford but a confirmation of the general rule.

    1. In the Equity side of the Court of chancery, a /the/ sort subordinate Judge called a Master makes what are called Reports to the Chancellor or the Master of the Rolls to whichever of the two the cognizance of the cause has been attributed. True: but to /by/ the Master no decree final or so much as interlocutionary is ever made. Whatsoever business he performs he is bound to perform: he beholds no sort of business which he may choose[?] whether he will do or not do as he pleases: and so thus it is that the grievance coexists.