24 May 1807

D 2

Letter V

VIII. Appeal left mutilated

IV. Uses

1. Effects in respect of the malâ fide appeals.

1. The malâ fide appeals may be all of them stopped without any Chamber of Review. They owe their birth to that arrangement of Scottish law, by which Appeal is made a bar to execution: which thereby gives the Appellant, when in the wrong a profit by the delay and such a profit as is in some cases a real one. Take away this profit, this proportion of the actual appeals to the House of Lords will disappear without any intermediate Chamber of Review.

2. I have stated that the arrangement which makes Appeal a bar to execution as an arrangement pregnant with injustice: uncompensated injustice in the shape of delay, vexation and expence and that the instances in which injustice is produced by it are naturally and at all times and in all places in a very high proportion vastly more numerous than those in which it is saved: and in particular the instances in which injustice is done to the good people of Scotland in the persons of those suitors whose adversaries, in the character though not under the name of malâ fide appellants, present appeals in the House of Lords.

3. Of the malâ fide appeals presented from the Court of Session, undivided or howsoever divided, the number will be encreased, by the Chamber of Review: increased to a certainty, if the application of the proper and natural remedy so often spoken of - viz. cutting up by the roots the profit by the delay, be avoided, with that anxious care with which it seems hitherto to have been avoided: encreased to an amount depending on unforeseen contingencies, but of which some loose conjecture may be formed, from the relative amount to which we have seen it raised by the fostering care of the English Judges: viz. in the proportion of 89 to 1 to the bonâ fide appeals.