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LETTER V.: ON THE BILL CALLED LORD ELDON’S. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5.
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ON THE BILL CALLED LORD ELDON’S.
I resume the pen. Times have changed; but the address of these letters shall not change. Your Lordship’s was the mark first stampt upon the measure. There I hope still to see it; by me, at any rate, it shall not—by your Lordship, I hope, it will not—be obliterated. Be the fundator perficiens who he may, to the character of fundator incipiens your Lordship’s title is beyond dispute. Be the profit of the piece to the public what it may, your Lordship may claim to the last an author’s share.
Your Lordship’s edition of it was the subject of the four preceding letters. When the last of them was concluded, the plan of observation I had set out upon wanted much of having been completed. My intention, however, was to have gone through with it, and that intention wanted at length but little of having been executed. But when the text was fully understood to have been laid upon the shelf, the comment could do no less than follow it. Should the text ever find its way again to the carpet, it will then be time enough for the comment to follow it in its course.
Not that the labour bestowed upon the dormant plan is altogether lost. It can be no secret to your Lordship, that, to my humble view of the matter, the tower of judicature was already high enough, and, to all but the favoured few, to whom a golden ticket opens the way, the summit of it sufficiently inaccessible, without any such additional stage as your Lordship’s learned architect had planned for it. My intended globe of compression shares, of course, the fate of the fortress against which it was designed to serve. But if, of the stock of projectiles originally destined for that service, it should happen to a splinter or two to glance that way, without prejudice to the new service to which they are now destined, so much the better for economy, and not the worse, I hope, for justice. To us in England, intermediate chambers of review are no novelty. Viewing them at once in the character of shops where injustice, in the shape of delay, is sold to all who will pay the price, and in the character of Mexican temples, polluted by human sacrifices, this feeble hand would regard itself as employed, not like that of Erostratus, but like that of Daniel, if, in addition to the model of the projected Scotch edifice of that name, it were able to consign those antique receptacles of corruption to a consuming fire.
Though always a respectful observer, your Lordship never has found, never can find, in me, a flattering one. Had I a vote, and at the same time no other option than between the plan prepared by your Lordship’s learned adviser, and the new one now placed upon the carpet by another learned scribe, howsoever it fared with my wishes, my judgment would find itself obliged to decide—that, in that perpetual competition for public favour, on which, under the best, and, at the same time, the most improvable of all governments, all hope of ulterior improvement depends, the latest bidder has, in the present instance, shown himself the best. Do not let the lot be knocked down to him, my Lord. That, if not on the present, on some future contingent occasion, brought on by some new turn of the wheel of fortune, your Lordship, after being enabled, may be prevailed upon to bid above him, is amongst the objects aimed at by this renewed address.
In the former instance, after a leading step or two, the direction pursued appeared to my weak judgment, such as it was, a wrong one. In regard to this new plan, what I have now to notice resolves itself into this, viz. that after a few uncertain and tottering steps, though the direction be in the main a right one, yet so small is the advance, yards or inches, when furlongs were necessary, that when the moving power is exhausted, the measure will find itself, by a vast interval, short of the proper mark.
The case and comfort it gave me, not merely to find myself at liberty, but, by the nature of the case, compelled to ascribe the details and technical parts of the plan to an inferior, and that an unknown hand, was, on the former occasion, represented in my first letter.
Happily, on the present occasion, the same good fortune still attends me. To outward appearance, and in common parlance, the bill which lies before me presents the image and superscription of the noble and learned lord whose seat (to use a flower culled from his own bouquet, of which presently) is “at the head of the” law—the second person in dignity after royal blood—the Lord High Chancellor of Great Britain. As to the actual penmanship, I ascribe it without hesitation to some other, and consequently inferior, hand. The proof is no less simple than conclusive. Legislation is, in every public station (unless that of the Chancellor of the Exchequer be an exception,) matter, either of mere supererogation, and not, in any degree or point of view, of obligation, or, at the utmost, of what, according to the distinction so familiar to moralists and jurists, is denominated imperfect obligation. Judicature, i. e. on the part of a judge (to borrow a term from the same authoritative vocabulary,) “dispatch of business,” and with the utmost degree of celerity which, consistently with rectitude, the powers of decision on the part of the judge admit of, matter of perfect obligation. How far in the highest source of that purest kind of law, which, in the only country that has any conception of it, is distinguished by the name of equity, the rate of dispatch is from keeping pace with the demand, is a point that could no otherwise be ascertained in proper mode and form, than from the register books, and such other documents as, in either house of parliament, any member who should think it worth knowing whether equity gets on or stands still, might command at any time. But that, in a general view, it is such as to present, to the eye of superficial observation at least, symptoms of debility in the extreme—and this whether the standard of comparison be taken from anterior, or cotemporary and collateral examples—is a fact, which, since the time of the chancellorship of Lord Loughborough, has, with little interruption, been rendered but too notorious by the daily lists of causes, as well as by the groans of suitors, and the unvaried cloud that has been seen sitting upon the brows of advocates, whom famine has driven, along with the causes (corpora cum causis,) out of the two great banqueting halls in Palace Yard and Lincoln’s Inn, into the great audience hall at the rolls. Of this inadequacy of the supply to the demand for judicature, what the efficient causes may be, is a subject of too much delicacy, not to speak of danger, for so weak a hand as mine to attempt to dive into. Whether it be, that in mere spite, the powers which should have been the powers of harmony, have metamorphosed themselves into powers of discord, and notwithstanding, and even by virtue of, that very discord, entered into a conspiracy to disturb the quiet of the bench, and in the rage of their hunger and thirst after equity, to keep squalling and knocking for it at a door, which they deserve not to see open to them:—whether . . . . But it would be no less superfluous than perilous to attempt prying into causes, when the effects which, for the purpose of the argument, are so indisputably sufficient, are themselves beyond dispute.
My Lord, what, like an innocent and suspected queen, I have been thus long groping for blindfold, in a labyrinth composed of red-hot ploughshares—what I have thus been groping for, and am at length arrived at, is—this argument. The time of the noble and learned person, whose seat is sometimes upon a bench, sometimes upon a woolsack, is insufficient for the discharge of the duties of perfect obligation by which he is pressed:—à fortiori, for imperfect ones. Clearing the paper of the causes is, so far as time and powers serve, matter of perfect obligation; drawing this bill, or any other bill, is matter either of no obligation at all, or, at the utmost, but of an imperfect one. In the noble and learned bosom here in question, conscience is at once too delicate and too enlightened, to sacrifice perfect obligations to imperfect ones. Therefore, it was not by the hand of the noble and learned lord that this bill was drawn. Therefore, again, it was drawn by some other, and consequently by some inferior hand: which hand, saving its inferiority, is unknown, which is all that I do know, or, so long as it is in my power not to know, will know, concerning it.
Hence, my Lord, my comfort: and now, with a tranquillized mind, I enter upon my new task.
Your Lordship will be apt to smile—other readers, if I happen to have any, will stand aghast—at seeing a letter divided into chapters, and those chapters perhaps into sections. But having no share in that profit which has unintelligibility for its source, nor interest consequently in manufacturing a chaos, without “distinguishable feature, shape, or limb,” such as the laws of this one country (this proposed law among the rest) are doomed to be,—more particularly in their first concoction, when (for the purpose of reference, confrontation of parts, methodization and discussion,) division and distinction are most necessary—having no such profit, I say, nor consequently any such sinister interest, even the law of custom—to so many noble and learned persons, and on such good and valuable considerations, the dearest and most sacred of all laws—has not been able to prevail upon me to forego the use of those instruments of distinct conception, as well as unambiguous and uncircumlocutory reference, which have the rules of division and numeration for their source.
ANALYSIS OF THE BILL CALLED LORD ELDON’S BILL.
For the purpose of such observations as I may have to submit, I shall take the liberty of considering the matter of the bill as divided into four parts:—
Part the first, taking for its subject the judicial establishment of the Court of Session, and the course of procedure in that court, and for its declared object, “dispatch of business,” occupies itself in making regulations outright, by the sole wisdom, as well as by the authority of parliament.
Of the nineteen sections that may be found on numbering the paragraphs in the bill (for, as already intimated, it would have been unparliamentary to have put them into a state already fitted for numerical reference, i. e. into a state in which they would have been capable of being referred to, otherwise than by a constantly tedious and oftentimes ambiguous circumlocutory designation,) this part embraces, or at least touches upon sections ten, viz. 1, 2, 3, 7, 8, 9, 10, 11, 12, 13.
Part the second, taking in hand the same subjects, and (it may be presumed) looking to the same object, not to speak of other objects, occupies itself in giving to the Court of Session powers of subordinate legislation, to be exercised on the subjects mentioned above.—Sections touched upon four, viz. 5, 6, 9, and 11.
Part the third occupies itself in giving to a set of special commissioners authority (but without power) to make inquiries relative to the course of procedure in that court and the sheriff’s court, as carried on at present, and thereupon to propose any such alterations as, in their judgment, may seem proper to be made by parliament; as also to another special commission, the operations of which are confined to the particular purpose of reporting concerning the utility and proper extent of jury trial, and the most advantageous mode of engrafting it upon whatsoever system of procedure may have been proposed by the set of commissioners first mentioned.—Sections, two, viz. 18 and 19.
Part the fourth takes for its subject the appeal presented from the Court of Session to the House of Lords; and for its object (to judge by inference, in default of express declaration,)—for its principal, at least, if not sole object—the reducing the “burthen” imposed by those applications “on the time of the House of Lords.” Such is, at any rate, the principal declared object of the plan contained in the memorial presented to the House of Lords by eleven out of the fifteen judges of the Court of Session, headed by the Lord President: which memorial was followed by a bill, and that by a second, having for its reputed author the same right honourable judge: which bills, taken together, form, upon the face of them, the basis of this, which since that time we have seen issuing from a still higher source.—Sections, four, viz. 16, 14, 15, and 13.
I proceed to sketch out the contents, or at any rate the topics of the bill, considered as divided into these four parts:* —
Part I. ParliamentaryRegulations touching the Judicial Establishment.
1.—Section 1. The Court of Session to be cast into two Divisions: in Division the First, the Lord President and seven other judges; in Division the Second, the Lord Justice-Clerk and six other judges.
2.—Section 2. The king to “appoint” which of the judges shall sit in the several Divisions. (The appointment first made, quere, is it to be susceptible of variation?)
3.—Section 2. The Lord President of the whole court to preside in Division the First; the Lord Justice-Clerk in Division the Second: in the absence of such permanent president, an occasional president to be elected on each occasion by “the judges then present;” (quere if by “to sit at the head of such Divisions respectively,” be meant, to exercise the functions of president?) [N. B. In no one of the three four-seated courts in Westminster Hall, does the judge who presides sit at the head of the line of judges.]
4.—Section 3. Each Division to contain the same number of “Judges of the Court of Justiciary,” reckoning for one the Lord Justice-Clerk—(who always is one.)
5.—Section 7, undertaking to give a quorum number to each Division (the same to each,) leaves a blank for it.† (In the case of the entire court, as often as a quorum number is mentioned, the blank is filled up.)
6.—Section 8. Except in cases herein excepted (see Part II.) each Division is to have “the like duties, powers, and functions . . . authorities and privileges” as are now exercised or enjoyed by the whole court.
7.—Section 8. This section takes for its object, the securing a decision in the case of difference of opinion among the judges, with equal numbers on each side. But of this part of the bill, I find myself unable to give any tolerably correct account, in any other words than its own.‡
8.—Section 9. Liberty to the plaintiff to choose under which Division he will commence his suit.
9.—Section 9. Cases of remitter excepted (see Part II.) no removal of a suit from Division to Division. (Words in abundance, clouds proportionable.)
10.—Section 10. Powers for enabling each Division to obtain assistance from the opinions of the other.
11.—Section 11. “Forms of proceeding and process,” to be the same in the two Divisions: no alteration but by the whole court.
12.—Section 12. Causes depending at the commencement of this act, how to be distributed between the two Divisions.
13.—Section 17. On the appointment of a new judge, “the forms of admissions are to be gone through” in that division only to which he “is appointed.” “If the admission be objected to, the objections are to be judged of by the whole court.”
Part II. Powers to Session for subordinate Legislation.*
14.—Section 5. Powers to the whole court, for determining in what numbers in each Division the judges shall officiate in the Outer-House and Bill-Chamber, separately or together.
15.—Section 5. So, “in what manner;” whether in the present, or in any different one.
16.—Section 5. So, whether “constantly or usually” some shall sit in the Outer-House or Bill-Chamber; others in the Inner-House.
17.—Section 5. So, in what “rotation;” for example, “of years, sessions, months or weeks;” regard being had to “dispatch of business and avoiding of expense.”
18.—Section 4. So, to regulate the days of sitting in the two Divisions during the time of session: (in which phrase seems to be implied, that in vacation times, being four months and two months, total six months, in the year, neither of the Divisions are to sit; viz. in the Inner-House: with the exception, probably of Ordinaries, in the Outer-House and Bill-Chamber, as at present.)
19.—Section 9. So, to regulate concerning the remittal of causes from Division to Division, in consideration of a “connexion” between cause and cause.
20.—Section 11. So, to regulate concerning the “forms of proceeding and process” in each Division: “and particularly concerning the mode of conducting the pleadings by writing or viva voce,” and that as well in the Inner-House, as before the Ordinaries.
Contents of Part III. Authority, inquisitorial and initiative.
1.—Section 18. Power to the king, either by letters patent, or by instrument under his sign-manual, to appoint commissioners (number not limited) to sit at such times and places as they think fit, for the exercise of the functions hereinafter mentioned; with power to choose a præses (i. e. one of their number (it is supposed) for præses) as also “a clerk” (one clerk).
2.—Section 18. Authority (without any coercive power) to these commissioners, “to make full inquiries” (without power for compelling answers to any such inquiries) “into the present forms of the court in conducting process, extracting decrees, registration of the same, and execution thereon, or upon letters of diligence” (Anglicé process) “passing the signet, or any other matters touching the process or proceeding of the said court.”—(Process Scoticé is synonymous to proceeding Anglicé.)
3.—Section 18. Authority “to set down in writing,—“amendments,” such as “shall appear to them—most reasonable and best calculated for the due administration of justice in that court.”
N. B. So far as concerns the Court of Session, every point in which the personal interest of the judges is more particularly concerned, and in particular that “repose” to which their determination to sacrifice the interests of justice has been solemnly declared (Memorial, Art. 50,) seems left to the uncontrouled operation of that sinister interest:—the commissioners not authorised so much as to propose anything in relation to it.
Forms of Pleading—(a subject sufficient of itself to absorb the whole of a man’s time for months or years)—another point which the commissioners are not to meddle with: reserved for the judges, whose determination not to give up a particle of their time has been declared as above.†
4.—Section 18. Authority “to inquire into the fees, perquisites, and emoluments, claimed by or belonging to the clerks and officers of the court, and other members of the Collegeof Justice,” (including those called in England attorneys and solicitors?) “or” (and) “persons connected with the said court, the faculty of advocates excepted.”
5.—Section 11. Authority to report “how far the same,” (viz. the fees, &c.) “are now reasonable or” (and) “ought to be allowed or increased.” (Under the words “how far,” would diminution be understood to be comprised, as well as increase and total disallowance?)
6.—Section 18. In case of the abolition of any “emoluments” by “regulations introduced by this act,” or “by the adoption of any regulations” proposed as above, (nothing said of abolition by regulation, if any, made by the Court of Session) authority to report what satisfaction it may be reasonable to make to the persons deprived of such emoluments. (Of satisfaction for loss accruing to persons entitled to nominate to the offices, the emoluments of which may then come to be abolished, nothing is said.)
7.—Section 18. Authority to propose regulations “relative to processes, or causes to be brought into the Court of Session by advocation” (Anglicé by certiorari) “or suspension” (Anglicé by writ of error or appeal) “or in the first instance, or before the Circuit Court;” i. e. (as explained in the preambulatory part of this section) “the Circuit Court of Justiciary by appeal.” (Procedure in causes brought into the Court of Session in the first instance, having (as per No. 3) been already included in the authority given to these commissioners, what is it that can have been intended by the words, first instance, in this clause, which appears not to have any other object than the option to be made as between one mode of appeal and another?)
8.—Section 18. Authority “to inquire into the fees, perquisites, or emoluments, claimed by the clerks and other officers” (judges, it seems, excepted) in the sheriff’s courts in Scotland,* “and to take and set down in writing what occurs to them relative thereto.”
[1. Of the great variety of inferior judicatories or sheriff-deputes’ courts (not to mention their substitutes’ courts, which in fact are distinct judicatories with appeal to the respective principals,) justice of peace courts, borough bailies’ courts, dean of guilds’ courts, barons’ courts, commissaries’ courts, of different ranks one above another, admiralty courts ditto, all liable to have their proceedings reviewed by the Court of Session, how happens it that the inquiry is confined to the “sheriff-courts,” meaning the sheriff-depute’s court?† ]
2. Under this term, “sheriff-courts,” (not very usual in Scotch law) would the judicatories filled by the substitutes be understood to be included, as well as those filled by the principals?
3. In the instance of the judicatories, included, as above, in the authority for making inquiry, why confine the inquiry to the subject of the “emoluments,” excluding the system of procedure, between which and the system of procedure pursued in the Court of Session—(the judicatory by which the proceedings in those subordinate courts are reviewed)—the connexion is necessarily so intimate?
4. “Taking and setting down in writing what occurs—relating thereto.” By this expression was it meant to denote, or to include, authority for proposing “alterations or amendments,” as in the case of the Court of Session? If so, what can have been the reason for thus varying the phrase?‡
9.—Section 18. Like authority respecting “the state of the records in these courts:” viz. the “sheriff courts,” and those only, as aforesaid. (Like queries to this clause, as to the one last mentioned.)
10.—Section 18. Injunction to these commissioners, to report “the whole of their proceedings to his Majesty, with all convenient speed:” the report “to be laid before both Houses of Parliament, by one of his Majesty’s principal Secretaries of State.”
11.—Section 19. Power to “his Majesty, in and by letters-patent under the great seal of the United Kingdom” (i. e. to the noble and learned mover of the bill,) “to nominate any number of persons not exceeding” (with a blank for the number,) “and such persons being either” (with another blank for the qualifications.* )
12.—Section 19. Authority “to make inquiry, by all such lawful ways and means as shall seem to them expedient in that behalf, how far it might be of evident utility to introduce into the proceedings of the Court of Session, or any other court in Scotland, trial by jury” (no authority having been given, either to this or the other set of commissioners, for making any inquiry into the system of procedure pursued in any such other court,) “in any and what cases, in matters of a civil nature, and in what manner and form the same could be most usefully established.”
13.—Section 19. Injunction to report, as in the case of the sign-manual commissioners.
[On the occasion of the shadow of power, given, as above, to the two sets of commissioners, for the collection of the requisite stock of information, quere, what can have been the reason of the extraordinary difference observable in the delineation of the shadow, in the two cases? And quere, what could have been intended, or supposed to have been done, by the line of words here printed in italics?]
Part IV. Regulations touchingAppeals;viz. from Session to Lords.
1.—Section 16. Power to the House of Lords, “in its sound discretion,”—to decree payment of interest, simple or compound, by any of the parties appellant. (The House, has it then two sorts of discretion, a sound and an unsound sort—the sound not to be brought into action but on great occasions?—or is it that, there being but one sort, the soundness of it is intended to be secured by its being thus enacted to be sound!)
2.—Section 14. “When any appeal is lodged in the House of Lords”. . . . . power to “the presiding judge, with the judges of the Division to which the cause belongs,” or any three of them, to regulate all matters relative to interim possession, or execution, and payment of costs and expenses already incurred, according to their sound discretion, having a just regard to the interests of the parties, as they may be affected by the affirmance or reversal of the decree appealed from.”
3.—Section 14. “When any appeal is lodged in the House of Lords, a copy of the petition of appeal shall be laid by the appellant or appellants, or by the respondent or respondents, before the presiding judge,” &c. as above.—(The word shall, is it to be considered as imperative, or as simply permissive? If imperative, on whom? Or was it not meant that it should be, in the first instance, imperative upon somebody, and then eventually permissive to somebody else? And if so, at what time was it understood that the permission should commence?) &c. &c. &c.
4.—Section 15. Of interim regulations, so made as above, the execution is not to be stopped by appeal.
5.—Section 15. “Respecting all matters . . . . done,” or “having taken place . . . . in consequence of such regulations so made as to interim-possession, execution, and payment of expenses or costs,” power to the House of Lords, on the appeal from the decree, “to make such order . . . . . as the justice of the case shall appear to the said House of Lords to require.”
6.—Section 13. “From interlocutory judgments . . . . no appeal, . . . . except with the leave of the Division of the judges pronouncing such interlocutory judgments.”
7.—Section 13. “When a final judgment or decree is appealed from,” power “to either party to appeal . . . . from all or any of the interlocutors . . . . pronounced in the cause, so that the whole, as far as necessary, may be brought under the review of the House of Lords.”
8.—Section 13. No appeal to “be allowed from interlocutors or decrees of Lords Ordinary, which have not been reviewed by the judges sitting in the Division to which such Lords Ordinary belong.”
Phraseology,a Topic dismissed.
On the subject of Part the first, as above marked out, I shall not, on the present occasion at least, attempt giving your Lordship any further trouble.
So far as concerns this first part of the bill, such remarks as I should have to submit, would turn chiefly upon the penmanship. Doubts, for example, concerning the meaning of the learned scribe; and, supposing the meaning rightly guessed at, doubts whether the words would answer the purpose of giving effect to it.
In legislation, though there cannot be anything but what has its importance, yet, as between style and matter, so far as they are capable of being separated, matter will, in the order of importance, claim an undisputed preference. Thence it is that, for the present at least, Part the first is put aside.
The apprehension I have been all along under of falling into the sin of misrepresentation, and my anxiety under that apprehension, must already have betrayed itself. Of misrepresentation, there are two modes: one is, when, the language of the original being clear, the representation given of it is unfaithful, ambiguous, or obscure: the other is, when, the language of the original being obscure or ambiguous, the representation given of it is clear and decisive.
In practice, this last mode of misrepresentation is the most mischievous. Be the original what it may, if the abridgment appear unintelligible or doubtful, a man betakes himself to the original, of course: but if, the original being ambiguous, the abridgment be clear, the clearer it is, the more perfectly he is satisfied with it, and the less he suspects the danger he is exposing himself to, by trusting to the abridgment, and upon the faith of it, ascribing to the original a sense, which, when the time comes, may prove, to his dismay, to be different from the sense put upon it by the judge.
How happens it—(over and over again have I asked myself this question, without ever having been able to find an answer)—how happens it, that throughout the texture of this bill, the language is continually varying—varying, as between clause and clause—between clauses, in which, so far as can be concluded against the presumption afforded by the variation in the language, the import meant to be conveyed was exactly the same? To what cause shall this perpetual departure—departure of a man from himself—be ascribed?—to thought, or to want of thought? Is it that certainty was sacrificed, perpetually and deliberately sacrificed, to an imagined beauty—beauty supposed to be produced in an act of parliament by variety of style? Or is it that this bill, a bill on which the state and fate of justice in one of the three kingdoms depends—this truly momentous bill, having, in the manner of a speech spoken, been dictated to an amanuensis, was never looked at afterwards?
1. Average number of Appeals heard per year (exclusive of Writs of Error, of which no account is given)—a little more than—but say . . . . . . . . 14: For by 14 (the number of years) divide 195 (the Appeals heard,) the quotient is 13: But, the last year (1807) not being an entire year (the accounts coming down no lower than 11th March,)—for the number heard in this year, instead of 4 (the number heard in the part ending 11th March,) take 17 (the number heard in the whole of 1806,) this gives—in years 14, heard causes 208; causes heard per year 14.
2. Number of years requisite to dispose of the existing arrear (the rate of dispatch being supposed as above, 14 per year, and the growing influx to be neglected) is—years 10½.
3. Number of years requisite to dispose of the above-mentioned growing influx, considerably more than years 27: For, in 10 years out of these 10½, the number presented would be not less than the number presented in the 10 years ending in 1807, viz. 389; and this number would, at 14 causes heard per year, take the above number of 27 years to dispose of it: for, while the now existing arrear was diminishing, partly by hearings, and partly by the expulsion of the mala fide Appeals (viz. those either withdrawn or dismissed, as not having been destined for hearing,) the growing influx would not be undergoing any such diminution: a mala fide appeal brought for delay being never withdrawn till the day for hearing is at hand.
4. In the two periods respectively, the number of days occupied in the hearing of a cause, distinguishing the Kingdoms from whence the Appeals were respectively presented, were upon an average as follows, viz.—
5. Number of years during which, at the date of these accounts (in March 1807,) the cause that had waited longest must have been waiting for justice, about . . . . 3: For, from the commencement of the existing arrear, viz. from the year 1800 inclusively, to the day on which the accounts end, the number disposed of in all these ways was no more than 190: and already, in 1804, the number of the Appeals presented, viz. in the five years from 1800 to 1804 inclusive, may be seen to have been 197; being seven more than, on the 11th March 1807, had been disposed of: which seven must, since the 11th of March 1807, have been disposed of before any of the Appeals presented in 1805, or at any later period, can, in regular course, either have come on to be heard, or have arrived at that stage, at which the Appellant, whose object was delay, could have found the requisite inducement for suffering his Appeal to be struck out of the list, viz. by withdrawing it (to save ulterior costs) or, for want of prosecution, suffering it to be dismissed.
6. In the Scotch causes, proportion of mala fide to bona fide Appeals nearly as 152 to 267; nearly as . . . . . . . . . . . . . . . . . . . . 1 to 1¾: For 419 is the number of Scotch Appeals presented; 152 the number of those either withdrawn, or suffered to be dismissed.
By a mala fide Appeal is here meant an Appeal in the instance of which the Appellant either is, at the time of making it, conscious of his not having right on his side, or at least has no expectation of success: in this case, the profit, certain and contingent together, expected by him from the delay thus produced, is his inducement for subjecting himself to the vexation and expense attached to this state of litigation:—his inducement, and the only inducement which, in the shape of pecuniary profit to himself, he can have.
To his reaping any such profit, one condition, however, is annexed, and that an indispensable one, viz. that among the effects attached to the Appeal by the practice of the Court above, shall be—the stoppage of execution, viz. that so long as the Appeal remains undisposed of, the judgment appealed from shall not be executed, nor consequently the Appellant be by such execution divested of the possession which he has of the subject in dispute.
Among the English Appeals presented to the House of Lords, in the case of those which are called Appeals (being those which are presented in Equity causes,) such stoppage of execution does not take place: accordingly, no advantage being to be got by the Appellant, in any other event than that of its being, by the superordinate judicature, decreed to have right on his side, the Appeals presented from any one of the Equity Courts may, with few or no exceptions, be reasonably presumed to have been bona fide ones. Accordingly, upon 43 presented, whereof 27 heard, the English list affords in the 14 years no more than 4 withdrawn and 2 dismissed: together 6: on the 43 presented, not so many as 1 out of 7; on the 27 heard, exactly 1 to 4½.
But since these six Appeals could not have had for their final cause any profit resulting from delay, some other cause or causes must in these instances be found. Among these causes, the most productive, if not the only probable ones, seem to be—
1. Death of one or more among the parties, by which in any one of a variety of ways, the conditions, the concurrence of which is necessary to the prosecution of the Appeal, viz. the requisite interest, or, on other accounts, the inclination, or, in respect of pecuniary sufficiency, the power, or the opinion, in respect of interest or probability of success, may, one or more of them, have been made to cease.
2. Failure of pecuniary sufficiency, or of resolution and perseverance on the Appellant’s side.
3. Compromise: a result which may have been produced either by some one of the causes above mentioned, or from a difference in the conception entertained by the parties respectively, of the probably prevailing opinion of the judicatory, at the one time compared with the other.
In the instance of the English Appeals, called Appeals, those either withdrawn or dismissed, being then not any of them mala fide ones, and bearing (though not near so large a proportion as in the case of the Scotch Appeals, yet) some proportion to the number heard—not the whole (it may naturally be said) should, in the instance of the Scotch Appeals, be placed to the account of mala fides, any more than in the instance of the English Appeals.
But what seems probable is, that in the case of the English Appeals, the number of those withdrawn or dismissed, small as it is, may have been swelled by some accidental cause not applying at all, or not with equal efficiency, to the Scotch Appeals: for, under the incitement of a profit in like manner to be gained by delay in the instance of the class of English Appeals, called Writs of Error, upon so large a number as 1810, we shall see not more than one in 90 argued; 89 out of 90, therefore, either withdrawn or dismissed:—[See Table X., Ulterior Results, Art. 2.]
And this, though the premium for delay must, latterly at least, have been much less in the case of the English Appeals, than in the case of the Scotch Appeals: not more than about one year’s delay being at the expense of the costs in Appeal, purchasable in those English intermediate Courts of Appeal (27th Report of Finance Committee 1798,) while latterly no less than three years’ delay has been purchased, viz. (as above, Art. 4,) in the House of Lords.
In all these cases, the profit by delay, and consequently by mala fide Appeals, is matter of calculation; depending, on the one hand, on the proportion between the amount of costs in the House of Lords, up to the time when the appeal goes out of that judicatory by being withdrawn or dismissed, and on the other hand, on the profit which the situation of the Appellant enables him to make of the subject in his possession in the meantime: rent of land, for example, 4 per cent. interest of money, 5 per cent. commercial profit, 12, 15, 20 per cent. or more: or, if no security, or no adequate security has been exacted of him, appropriation of the whole subject, viz. by expenditure, exportation, or concealment.
7. Number of Scotch Appeals in which injustice is the result of the rule, giving to the act of Appeal the effect of stopping execution, is 261 out of 314: nearly 5 out of 6. For by adding to the number withdrawn (88,) and the number dismissed (64,) the number in which the decree made below was affirmed (109,) we have for a total, 261: in all which instances, so long as the decree, the justice of which came thus to be afterwards acknowledged by the unsuccessful party, or declared by the supreme judicatory, remained unexecuted, so long did the injustice last.
On the other hand, by adding to the number in which the decree was reversed (38,) the number in which the cause was remitted to the courts below, viz. for the purpose of some change to be made in the decree (15,) we have 53: being the number of instances, in which the delay was productive either of no injustice at all, or none but what received some compensation in the justice operated by such change.
Note the distinction between the number of cases in which injustice, viz. in the shape of delay, was the result of the rule, and ditto of ditto, in which the Appeal was accompanied with mala fides. The cases in which the delay proved to have been productive of injustice, were as well those in which the decree was affirmed, as those in which the appeal was either withdrawn or dismissed; while it was only by those in which the Appeal was either withdrawn or dismissed, that any presumption was afforded of mala fides.
4. In the three English intermediate Chambers of Review, mala fide Appeals were, to bona fide ditto, as 1790 to 20(b) , or as 89 to 1.
8. English Appeals, certainly bona fide, were to Scottish ditto, as 25 to 39.
9. English Appeals, certainly mala fide, to Scottish ditto, were as 1791 to 29; or as 61 to 1.
10. English Appeals, bona and mala fide together, to Scottish ditto, as 1941 to 68; or as 28 ⅞ to 1.(c)
ENGLISH AND SCOTCH APPEAL TABLE,
Shewing the Number of Appeals (including the Species of English Appeals called Writs of Error,) presented, on the one hand, from the one Supreme National Judicatory of Scotland (viz. the Court of Session)—on the other hand, from the four English National Courts at Westminster Hall, standing on the same level with the said Court of Session, in the scale of Jurisdiction: distinguishing, in the instance of each Court, the Number of Appeals Not Argued, from the Number of ditto Argued, and thereby the Number of mala fide Appeals (brought without hope of favourable Decision, and for no other purpose than that of Delay,) from the Number of bona fide Appeals:—Taken from the Documents furnished by the 27th Report of the House of Commons’ Committee on Finance, Anno 1798, (pp. 27 & 191:) And by supplying the omitted Numbers of the English Appeals called Writs of Error, designed for obviating the Misconceptions liable to be deduced from the House of Lords’ Appeal Accounts of the 11th of March 1807, in disfavour of Scottish, as compared with English Judicature.
APPEALS (INCLUDING WRITS OF ERROR) PRESENTED
(the supreme national judicatory of scotland), respectively, viz.—
SUMMARY VIEW OF THE PLAN OF A JUDICATORY, UNDER THE NAME OF THE COURT OF LORDS’ DELEGATES,
NUMBER AND CHOICE.
The Judges, Members of the House (so far as obtainable:—viz. so far as in that high station it shall happen to a set of fit persons, finding adequate inducements for the acceptance of so laborious a duty) to obtain the preference:—[See § 2, article 2]—and with salaries;—in consideration of their taking upon them the requisite official obligations.
2. Puisnes, three:—to be elected, one for each of the three kingdoms, by the Lords sitting for that kingdom, and to be denominated respectively the English, the Scotch, and the Irish delegate:—in the hope that in each the choice may fall upon some person who, being in a special degree conversant with its peculiar laws and local circumstances, may be considered as in a more particular manner charged with its legal concerns. In the two minor kingdoms, all danger from local partialities will be excluded by the number of the votes (three to one) not exposed to any such sinister influence.
3. The President to be elected by the whole house, and to be denominated the Union delegate:—that the English ascendency, on its present footing, may be preserved; and thereby this committee rendered the more correct a representative of the whole house. The presumption is, that the president, and perhaps the three puisnes, or some of them,—at least, by reason of the peculiarity of Scotch law, the one for Scotland,—will, at the outset, be a professionally-bred lawyer, taken from the bar, or from the bench. But the need of such assistance will be less and less thenceforward—[See § 2, article 2, 3:]—and all this will, of course, depend, at all times, upon the pleasure of the House.
4. Election annual:—viz. at the commencement of each session.—If, as in the case of the king’s delegates, viz. in ecclesiastical and admiralty causes, there were a fresh election for each cause, the office would not be worth acceptance: or, if it were, a perpetual ferment would thus be kept up: at any rate, the benefit of appropriate experience would be apt to be lost. If the office were for life, as in three of the four Westminster-Hall courts, the mind of the delegated body would not be (as, in this case, not to change the constitution, it ought to be) the nearest resemblance capable of being taken of the mind of the delegating body: the supreme judicature would be no longer substantially in the House of Lords. The renewal of the election every year, will provide, in case of necessity, the gentlest and most decorous mode of ridding the judicatory of any member whose performance may have fallen short of expectation: while the apprehension of it will be a security for propriety of conduct, and a preservation against negligence. Nor yet would this possibility of amotion destroy the value of the office: it would be considered as differing substantially but little from an office for life: as in the case of the chairmanship of the Middlesex sessions, and in that of the chamberlainship of the city of London. The former case may be referred to, as one in which the utility of periodical election, as above, has in every point of view received a satisfactory exemplification.
5. Mode of election secret, viz. by ballot:—that the electors, being free as possible, as against all influence of will over will (no influence prevailing but the unpreventible and oftentimes salutary influence of understanding over understanding,) the mind of the delegated body may, as above, be the faithful copy of the mind of the constituent body, taken in its permanent and habitual state:—and that no elector may stand exposed, or conceive himself exposed, to the danger of finding himself, by an adverse vote, rendered an object of personal displeasure to a person to whom it may happen to become his judge.
6. Notwithstanding the appropriation of the title of president to a single person, the functions to be exercised by all the judges in turns: each taking his month, or his number of causes, or the causes of his own kingdom: or the above different modes of alternation being combined:—that inept candidates may keep aloof;—that the sense of responsibility may be kept alive in all;—that the faculties of all may be sharpened and invigorated by exercise;—that no one of all four offices may ever degenerate into, much less be at the time of the appointment designed to be made, a sinecure;—and that each pursue judge may be the better qualified for eventually succeeding to the office of president, thereby adding to all other elements of aptitude that of appropriate experience.
By the obligation of presiding, i. e. taking the lead in causes, and being the mouth-piece of the court—viz. not only in the delivery of the decision, but, in the conduct of the whole business, doing all that which, in judicial business, is done by the chancellor in the House of Lords,—an effectual exclusion will be put upon all persons manifestly unfit for the conduct of judicial business in general:—by the more particular obligation of presiding in causes coming from the kingdom for which each delegate is respectively elected, an exclusion will naturally be put upon a person not particularly competent to the conduct of the business from that kingdom; a person conversant solely in Scotch law will not find it so easy to be chosen to fill an English or Irish delegateship; a person solely conversant in English or Irish law will not find it so easy to be chosen to fill the Scottish delegateship.
MEMBERS, LORDS VISITANTS.
1. Every Member of the House to bring with him into the court of Lords Delegates every other right; but not that of voting.—Not that right;—because to that are attached whatever imperfections the Lords’ judicatory has been charged with by Lord Hale: viz. fluctuation of numbers, whence general deficiency of numbers (especially of minds actually applied to the business) alternating with occasional excess:—occasional partialities or suspicions of partiality, by reason of latent interests;—occasional deficiency in point of intellectual aptitude, or appropriate learning, in the instance of the presiding member, or of a more or less considerable proportion of the other voters;—want of a sufficiently strong sense of responsibility, that guard to probity, that security for adequate intelligence: a deficiency which so naturally results from the power of contributing, by a bare expression of will, to the formation of a decree, without the obligation of giving reasons.
So long as it is without the right of voting, although a Lord were to carry with him to the judicatory all the partialities of a party, he would only add one unpaid, to the two professional, advocates. For ages together, according to Lord Hale, a multitude of assessors, with right of “advice” only, formed a part of the judicatory of the Lords’ House.
2. In the court of Lords’ Delegates, Scotch peers, though not having seats in the House, to be admitted to the privileges of Lords Visitants: in like manner Irish Peers and Bishops.—The design and expectation is that, with the aid of so numerous a reinforcement, there might be found, for subsequent vacancies, a sufficient number of persons already invested with the peerage, willing to charge themselves with the duties, as well as able duly to discharge the functions, of the office. Judicature, it is conceived, and especially in the particular tribunal here in question, would be a still more appropriate preparative than advocateship, for judicature. In the character of Lords Visitants, with every right but that of voting, the members at large of the House of Lords, together with the Scotch and Irish non-sitting Lords, would be what, according to Lord Hale, the Consilium Magnum was formerly in the House of Lords—judges, as to every right but that of voting. The bench of the court being open to them as Lords Visitants, a sufficient number for each kingdom might find adequate inducements for frequent attendance, in the mixed and decorously ambiguous characters of inspectors and censors, students, and future candidates:—nay, even, on occasion, if such be their pleasure, latent advocates for particular interests:—forasmuch as they will not have it in their power to gain support to those interests otherwise than by reason, from which no prejudice can ensue to justice. Among the Scotch and Irish non-sitting lords, such as may have it in contemplation to become candidates for seats in the House on future vacancies, will possess on this bench a theatre, on which their qualifications will find much better opportunities of displaying themselves, than any that are at present open to them, or that could be opened to them by any other means. For the chancellorship (not to insist on the chief-justiceships) this bench, either on the judges’ side, or on the Lords Visitants’ side, might, after due probation time, afford at least as suitable a nursery as the bar of a common-law court. The instances of Sir Christopher Hatton, Lord Shaftesbury, and even Lord Clarendon, together with Cromwell’s English judges in Scotland, may be worth adverting to in this view. Against inaptitude for want of appropriate learning, a free and periodically-repeated election, an election by that House, in which, at the same time, the crown can never fail of possessing its due influence, will surely be at least as good a security as can be afforded by the single probity and discernment of any minister.
3. Power to each judge of the court to appoint for his occasional substitute a Lord Visitant; (such substitute, however, not to preside [as per § 1, article 6] without the consent of all the rest:)—that, in case of indisposition, the number of judges may never be incomplete;—and that from this faculty, Lords, looking forward to the judgeship, may derive an additional opportunity of manifesting, as well as acquiring, superior aptitude. The care of his own reputation will (it is conceived) prevent the judge from choosing for a substitute any Lord other than one whose fitness for the station might, upon a vacancy, be sufficient to point him out to notice.
In the judicial establishment of Scotland, this power of substitution is exemplified to a very considerable extent: and though under so much less efficient security against abuse than here, with (it is supposed) sufficiently established and generally recognised advantage.
DECISION OF THE COURT—ITS EFFECT.
1. In respect of irreversibility and immutability, except in the possible, but highly improbable, case of misbehaviour on the part of a majority of the four judges, of such sort as to call forth censure, the judgment of the Court of Lords’ Delegates to stand on the same footing with that of the House:—otherwise it would be no better than an interpolated and additional stage of judicature, affording to the time of the House but an inadequate relief, and to suitors a grievous additional burthen, instead of relief.
2. The Court divided, and the numbers equal, power to the court to call in a Lord Visitant for the occasion: if no one can be thus agreed on, each judge to propose one, and the House to choose (viz. as before by ballot,) but without being restricted as to the person so proposed.
PLACE OF SITTING—HABILIMENTS—TITLE.
1. Place of sitting, as near to the House as may be:—at any rate, under the same roof:—that, in the public mind, the idea of the body delegated may be as closely as possible connected, not to say identified, with that of the body delegating: and that, in parliament time, whatsoever occasion brings members to the House, may have its chance of bringing Lords Visitants to the Judicatory.
2. Habiliments, such as may serve to combine in the public mind the idea of the judicial function with that of the superior political station and dignity:—Baron’s robes, for example:—higher ones, of course, if the judge possesses a higher rank in the peerage. The judges of the court of Exchequer having originally been Barons (probably of parliament,) bear, though not the robes, the title of Barons.
3. In an ante-room leading to the bench, a Lord Visitant to invest himself with some easily assumed and redeposited ensign of office (such as a short mantle,) to attest to the public eye his right to the privileges which he may be about to exercise:—The distinction being thus sufficiently expressed without the aid of place, seats left unoccupied by Lords Visitants may, by sufferance, as at one time in the King’s Bench, be occupied by private individuals.
4. Each judge, if not a peer, to bear before his name the title of Lord, during his delegateship.
DURATION OF THE ESTABLISHMENT.
1. Duration of the establishment, temporary, of course:—as in the case of the Grenville act, and the Middlesex police act. In the first place, a length of time sufficient, upon calculation, by means of uninterrupted sittings, for the discharge of the existing arrear:—to that another fixed length added, sufficient for a further trial of the institution, as applied to the current influx.
2. At the end of the last fixed length of time, the salaries to cease, unless the establishment be continued on by parliament: but with power to the House to continue the authority beyond the day:—lest causes that have been begun before this judicature, should remain undecided by it. The salaries, unless a day were fixed for their cessation, would, in their tendency, operate as bounties upon delay.
1. Oath of office, if any, not so general as to be nugatory.—The use of official oaths is, in case of misconduct, to expose to loss of reputation him, who, by deficiency of legal evidence, or by difficulties standing in the way of prosecution, is exempt from legal censure: to which purpose, the collection made of the modifications of misconduct should be as ample, and the description given of them as particular and pointed, as possible. The bad effect is, by sham security to engage unwarranted confidence: in demonstration, a bridle; in effect, a cloak.
2. A Lord Delegate, if a member of the House, not to speak or vote in the House, or give proxies, during his delegateship:—lest, of the time purchased for judicature, any part be diverted to politics;—lest the politician corrupt, or be suspected of corrupting, the judge;—and lest the fear of their leaving their seats in the court vacant, while engaged in the house, should exclude members from being the objects of choice.
The option is (be it observed) not between this plan and doing nothing (for either the House will abdicate its appellate judicature, having first converted it into a manufactory of vendible delay, or something will be done,)* but between this plan and some other. Of this plan, the first object was, that as little change should be made as possible: the next, that whatsoever change were made, should be for the better. The admission of the non-sitting Scotch and Irish Lords to the privileges of Lords Visitants, episodical as it may appear in form, is in substance not a change, but a preservative against change. The main object was to give the best chance possible for continuing the function in the aristocratical hands in which it has all along (and, though not altogether without inconvenience, yet without any inconvenience on the score of aristocracy) been lodged: continuing it, viz. so far as could be done without establishing that indefeasible monopoly, which, in the eyes of the public, might be apt to appear preclusive of scientific aptitude. The advantages given by the plan to these unchosen peers, are therefore given to them, not as against their more fortunate fellows in the peerage, but as against commoners. Necessity,—and that, at the outset more especially, a very hard and galling necessity,—excluded them, on the occasion of the respective unions, from by far the most valuable portion of their hereditary privileges: to the proposed share in the supreme judicial function, this necessity has, under the proposed plan, no application: admitting them to it was therefore rather continuing what might be continued to them of their ancient privileges, than investing them with new ones.
As to the ulterior and unlimited door left open for the admission of commoners, viz. of such persons in whose instance presumptive evidence of pre-eminent aptitude for this supreme judicial station may have been afforded by ability displayed in a subordinate rank of judicature, or in a course of professional practice;—were the right of election in any other hands than those of the Lords themselves, such an admission would indeed be a most serious invasion of their privileges: but, that right being in their hands, and theirs alone, the consequence is, that, by the enlargement of the field of choice, the power of the House, so far from being trenched upon, would be enlarged.
To render the mind of the body deputed, a faithful representative of the mind of the body deputing, it is not necessary that the members of the one should be members of the other. Doing the will of the King, the king’s delegates are not kings:—to do the will of the Lords, it is as little necessary, howsoever on other accounts desirable, that the lords’ delegates should be lords.
Want of physical power adequate to the dispatch of a mass of business within the space of time, within which, to be done effectually, it was necessary it should be done—want of time, in a word, was the infirmity (for such it is) by which kings were gradually compelled to commit the judicial part of their authority to other hands. Unless lords in England are exempt from those infirmities which are the inevitable lot of human nature, and under which there, as well as elsewhere, kings have bowed, it need not be matter of much regret to them to submit, thus late, to a necessity, which, for so many ages past, has been submitted to by kings. The innovation, let it be considered, if such it must be called, is not of the number of those which are so apt to be called for by rival ambition, but of those which are forced on by the irresistible hand of the universal and indefatigable innovator, time.
Various arrangements, which, in the planning of the proposed judicatory, presented themselves to the proposer, as highly conducive, not to say necessary, to the object of it, are for the present omitted, as not being applicable to this alone, to the exclusion of other judicatories.
By the consideration bestowed for the purpose of the present proposal, on the judicial function of the House of Lords, reference being all along made to the several ends of justice (of which an exact list has been endeavoured to be made out,) the inquiry was suggested, whether, in the exercise habitually given to that function, it has been really co-extensive with what it seems to have been generally regarded as tantamount to, viz. the function of general superintendence: meaning thereby, the habit of applying to such of the several evils correspondent and opposite to the several ends of justice, all such remedies as, in the nature of the case, are capable of being applied to them without the exercise of legislative power. Compared with this standard, the authority of the House, as at present exercised, was found to be deficient, and to a greater extent than could readily have been imagined.
The physical power of the House, as dependent on the quantity of applicable time, having already sunk under the load of business imposed on it by that part of the function of general superintendence, which has been habitually exercised by it till of late years, is of course still more decidedly unequal to any ulterior burthen.
But of this demand, a part of which has thus been found to overdraw the quantity of time capable of being appropriated to the discharge of it by the House itself, the whole might find an adequate supply in the more ample quantity capable of being allotted to it by the proposed Court of Lords Delegates:—a tribunal clear of all other business, and sitting on such terms, as would render the whole of its official time applicable to the one purpose.
The mass of remuneration which on other accounts would, it is supposed, be deemed necessary to be allotted to the members of a tribunal, so armed with power, and so exalted in dignity, would be sufficient to entitle the public to call upon them in return, for a degree of assiduity, not inferior to that which is seen to be habitual on the part of other judges. And the greater in extent and value the service thus rendered, the more secure would be the requisite disposition on the part of the public at large, as well as of the co-ordinate authorities, to submit, without regret, to the burthen that would be to be imposed by the requisite expense.
A view of the particulars, in respect of which the judicial function, as exercised by the House of Lords, fails of being coextensive with the function of general superintendence, in the extent above indicated as belonging to it, has been already taken. But, under the apprehension of awakening those jealousies which are so easily awakened, or of overloading that patience which is so easily overloaded, this part of the plan is, for the present at least, put aside.
What on this occasion ought never to be out of mind, is, that as to whatever regards the superintending authority of the House of Lords in matters of judicature, the existing practice, whatsoever may be its effects, was in its origin the mere fortuitous result of a contest for power, between two co-ordinate authorities—the result of anything rather than a calm, and comprehensive, and constitutionally-concerted plan, directed to the ends of justice. This want of design, and consequently of congruity, is no more than might have been anticipated, by a reflection on the natural course of human affairs: and it may be seen most satisfactorily demonstrated, as well as clearly displayed, in the instructive and interesting preface, prefixed by Mr. Hargrave to his edition of the work of Lord Hale on the jurisdiction of the House of Lords.
Other expedients have fallen under the notice of the proposer, as having been in contemplation:—an ordinary committee, to begin to sit, or to continue to sit, during the recess:—an appellate judicatory, to sit in London, but to confine itself to Scotch causes, &c. &c. But, regarding them as having already been found to stand excluded by one or other of two bars, viz. impractivability or inexpediency, he gladly discards the consideration of them out of a paper, in which the space necessary for any such discussions could not have been found.
He had even set his mind upon an inquiry into the fund of possible expedients, capable of being directed to the same end: on which occasion, distribution, governed by principles adapted to the nature of the case, or even by lot (a mode of selection less objectionable in reality than appearance, and even preferable to the modes of blind exclusion hitherto pursued,) did not pass unnoticed. But, nothing having thus presented itself to his conception, as promising to be suitable to the end in view, in a degree approaching to that of the plan here submitted, he suppresses without reluctance everything that had come into notice under that head.
As to the present plan, even to those exclusively competent judges, whose approbation it may not be fortunate enough to be honoured with, it may, it is humbly hoped, be not altogether without its use. Good or bad, an anterior plan, by breaking as it were the ice of the subject, is, to the framer of any succeeding plan, commonly found more or less of use, as an object of comparison and reference: and, as to the observations submitted in support of it, where, in the character of reasons, they fail of producing the effect endeavoured at, in the character of sources of error to be guarded against, they may still be not altogether without their use.
If in this, or any other way, the present plan should contribute to the production of any other, which, issuing from some more competent source, should, at the same time, be less open to the charge of unconstitutional innovation, and more highly conducive to the ends of justice, the labour here expended will have received, in the establishment of such better plan, its sufficient reward.
Issuing from high station, the stronger the recommendation a plan of any kind derives from the height of the station, the less it is commonly found to stand in need of any other. In one respect, therefore, the present plan possesses an indisputable advantage over any other that is at all likely to come in competition with it. Presented under a name altogether unknown, and without any authority or consideration in the state, if it were to find acceptance, it could do so on no other ground than that of its supposed conduciveness to the object in view.
To the work at large, if published, is intended to be added an examination that has been made of the plan proposed by Lord Hale, for an ultimately-appellate judicatory, to be substituted to that of the House of Lords:—substituted wantonly (one might almost say,) and when no such necessity had as yet presented itself, as that which at present presses upon the House. In the way of illustration, and as serving, by enlarging the view given of the field of argument, to afford the more ample satisfaction to a contemplative and cautious mind, the discussion, it is supposed, may be found not altogether unacceptable. As presenting any the least chance of being preferred in practice, either to the plan here submitted, or to any other, the plan of Lord Hale, notwithstanding the high reputation of its author, will scarcely be found worth notice: for, in the character of an innovation on the constitution, it was no less violent, than, with reference to the ends of justice, it may be seen to be unsubservient and unfavourable.
Queen-Square Place, Westminster,
THE ELEMENTS of THE ART OF PACKING, as applied to SPECIAL JURIES, particularly IN CASES OF LIBEL LAW.
BENCHER OF LINCOLN’S INN.
FIRST PUBLISHED IN 1821.
ADVERTISEMENT TO THE FIRST EDITION.
This work was printed many years ago.
Circumstances prevented its being at that time exposed to sale.
In regard to the author, all that need be said is—that it was not by him that it was then kept back; and that it is not by him, or at his instance, that it is now put forth.
If, on either accounts, it were desirable that the causes of its being thus long withheld should be brought to view, those causes would afford a striking illustration of the baneful influence of the principles and practices it is employed in unveiling, and presenting in their true colours.
[* ]The Bill (with alterations alluded to infra, p. 51, note ‡,) was passed on the 4th July 1808, (48 Geo. III. c. 151.) TheCourt of Session was remodelled by 6 Geo. IV. c. 120 (5th July 1825,) which appointed permanent Lords Ordinary of the Outer-House. By 1 Will. IV. c. 69, § 20, the number of Judges was reduced from 15 to 13; four Judges, including the President, sitting in the First Division of the Inner-House, the same number, including the Lord Justice-Clerk, in the Second, and five Lords Ordinary sitting in the Outer-House.—Ed.
[† ]In the Act (§ 7,) four Judges in each Division were to be a quorum.
[‡ ]By the original Bill, in case of an equality of voices in either Division, the President of the other Division was to vote. By an amendment suggested by Lord Eldon, in case of such equality, the matter was to be again discussed, and in case of equality a second time, judgment given for the defendant. By the act as passed (§ 9,) on an equality after a second consideration of the case as above, a Lord Ordinary of the Division was to be called in from the Outer-House to vote.—Ed.
[* ]Since the text was written (indeed, since it was printed) came into my hands another bill that has issued from the same high source. Of the several alterations contained in it, there is not, I believe, one of any importance, the demand for which had not presented itself to my observation, and been made the subject of remark, either in print or manuscript. So far as this coincidence has taken place, what was matter of censure when applied to the first bill, will operate, of course, as matter of justification, when applied to the second.
[† ]See note * in preceding column.
[* ]In the amended Bill are added, “Admiralty, Commissary, and other courts.”
[† ]In Scotland, the term “sheriff-court” is generally considered applicable to that of the sheriff-substitute. The sheriff (or as he was called at the time when these letters were published, the sheriff-depute) generally resides at a distance from the county, and merely decides in appeal a very small proportion of the cases which have passed through the hands of the substitute.—Ed.
[‡ ]In the amended Bill is included in the authorities that of “making inquiry into the proceedings in the Admiralty and Commissary courts, and in the inferior courts in Scotland, relative to matters of a civil nature, and to report in what manner these may be improved.” (These indicates a Scotch hand.) The sheriff-courts—how came they on this occasion to be omitted? On the occasion of fees, &c. they were specified, as per note in preceding column. Are sheriff-courts understood to be included under the denomination of “inferior” courts?
[* ]These great seal commissioners are removed out of the amended Bill. They were knocked on the head by the resolutions voted by the whole Faculty of Advocates.
[(b)][20.] Another article of information that would here have had its use, is—out of these 20 bona fide Appeals, whether any, and if any, how many, went to the House of Lords.
[(c)][As 1941 to 68.] Of the number of Appeals from the several English Courts as above, to that of the one Scottish Court on the same level with those four among the English, which are Courts of immediate jurisdiction, the ratio must have been somewhat greater than as 1941 to 68; to wit, not only by reason of the intermediate stages as above, but because, in the above account, English Appeals to the Lords, Appeals from the Spiritual Courts, and Appeals from the Admiralty Courts, are not included; the ultimately appellate jurisdiction being in these cases in the King; whereas, in the account of the Scotch Appeals to the Lords, Appeals from the corresponding Courts, viz. the Spiritual Courts, (called Commissary Courts,) and Appeals from the Admiralty Courts, are included: causes passing from those Courts to the Court of Session, being liable to pass from thence to the House of Lords.
[* ]By the accounts printed by order of the House of Lords—date of the order 11th of March 1807—it appears, that in the space of thirteen years, and part of a fourteenth, ending on that day, of 501 appeals that had been presented, only 356 had been disposed of, viz. by being heard, withdrawn, or for want of prosecution dismissed: of which only 195 had been heard:—that consequently the arrear that, having in that time accumulated, remained undisposed of, amounted already to 145:—that the number of days employed in the hearing of those 195 that had been heard, had, in the whole number of fourteen years, amounted to 541: making upon an average per year, appeals heard, about fourteen: so that, to hear, at the same rate of dispatch, the accumulated arrear alone, exclusive of the growing influx, would require ten years, and half of another: and that, though, by the number which, when the time came for hearing, would be either withdrawn, or for want of prosecution dismissed, a corresponding deduction would be made from the amount of those so requiring to be heard, yet that that deduction would be nearly balanced by the increased length of the time employed during the last seven or eight years in the hearing of each cause:—and that, even if it had nothing to balance it, it would not reduce to less than seven the number of years requisite:—and that, after all, the real arrear must have been considerably greater than this amount:—for in these accounts are not included such of the English appeals which are called writs of error, the number of which, in the three years ending in 1797, was (as per 27th report of House of Commons Finance Committee, anno 1798, p.272) half as great again as that of all the appeals called appeals, put together. In these three years, the number of writs of error presented was 125: that of appeals, Scotch and English together, 82;—that, in respect of the ends of justice, one consequence of this retardation was, that such causes as about that time had been heard, must already have been waiting for a hearing, and the party in the right labouring under a denial of justice, about three or four years:—another, that at the price of costs, composed, as to the greater part, of fees to the officers of the house, in all such cases in which the effect given to appeal is that of stopping execution, viz. in the case of the Scotch appeal, and in that of the English appeal called a writ of error, every malâ fide defendant, against whom, as being in possession of property belonging to another, judgment had been pronounced in a court below, then had, and still has it in his power, to derive, during that length of time, under the protection of the house, a profit from his own wrong to the amount of common interest (5 per cent.) or commercial profit (12, 15, or 20 per cent.) according as he happens to be circumstanced:—which length of time is in a course of unlimited increase.