date

27 Dec r 1806 Scotch Reform To L d
27 Dec r 1806

Scotch Reform To L d Grenville (3

Resolut. 15

Extract

My Lord, with great /with all humble/ submission, that which is actual is possible: With us in England, extracting nothing at all under the name of [...?], or under any other that corresponds to it, is the actual practice, is if your Lordship pleases the new[?] practice.

In England: yes even in England: ergo it is possible: as to its being "found" so, that is a very different affair. Whatever is, is: That which exists, exists. It is only what men wish /a man wishes/ to find that is "found". As to Interlocutors, in England /English law/ with all our surplusage (I speak here of Common Law) In English law (Your Lordship knows) we have no such things as interlocutors. English pleading /Pleadings in the English stile/ (for if not in that in what other?) as /are/ among the reforms of which this plea is pregnant: English Pleadings to render the matter so much the more intelligible to the Scotch Juries, to whom they will remain as compleatly [...?] and unheard as they are to English ones. But before the scores of pleadings, in the English stile takes its commencement, a [...?] series of Interlocutors in the Scotch state will of course have been run out: not to speak of the fresh[?] list /scores/ of Interlocutors to which it may so naturally happen to "to found indispensably necessary", after the termination if not likewise during the continuance of the series of English Pleadings, as well in the inferior provincial Courts which the Cause remains in a state of vibration between the Outer and the Inner Houses of the new Metropolitan Chambers, to say nothing of /not to speak of/ the Chamber of Review.

/+ Motions [...?] until[?] motions of which there are so many more than there ought to be though hardly one for every cause out of law, motions with /including/ the rules to which they give birth, answer as far as they go por[?] tanto in some respects to Interlocutors.
Similar Items
  • Title: [10 June 1807 Letter V V. No]
    Description: 10 June 1807

    Letter V

    V. No Appeals

    V. Parallelisms dismissed

    In what diversity of shapes it is that Scotch Interlocutors find their equivalents in English practice - in Orders ( jargonici[?] Ratis[?]) made in answer to Motions - with etceteras upon etceteras.

    How it is that in English Common Law that almost the only sort of judgment by which a claim to landed property is either affirmed or disaffirmed is never final in any thing but in name, unless that judgment is to be deemed final which may be succeeded by any number of others on the same point, except where Equity is called in to put a period to the series.

    All this, I leave, for the present at least, to the pen of any learned Jurist, who, on the plan of Lord │ │ though with a spirit a little more penetrating, let us hope than that of his learned Lordship Lord │ │ may find himself disposed to draw parallelisms between Scottish and English law.
  • Title: [094-136] 23 Dec r 1806 Scotch]
    Description: 094-136]

    23 Dec r 1806

    Scotch Reform To L d Grenville

    Resolut. 6

    Jury

    Such being the properties of the proposed trial by Jury I will now beg leave to state to your Lordship, why Your Lordship has heard so much for it - nothing at all against it - why the members of the Scotch Bar, as well as those brethren of the English Bar - are so fond of it. It will then rest with Your Lordship to say /judge/ whether the good peoples of Scotland who are in question - to say nothing of their fellow subjects in England who are not in question -have the same reason to be fond of it.

    In England at Common Law a hearing with a Jury stands in

    lieu of a hearing without a Jury: and thus /it is then/ though a Jury cause consumes some hundreds of hours as much time as the same individual cause would in a Court of Conscience, it consumes less time than it would in Scotland. But in Scotland, as proposed, at least for any thing that appears in the Resolutions, every hearing with a Jury will be to much superadded to a hearing without a Jury: a cause /suit/ in the English stile, or at least the only useful part of it, superadded to a suit in the Scotch stile. in a word Trial of an Issue[?] sent out of any one of the three Chambers will be like /really[?]/ Trial of an Issue[?] sent out of an English Court of Equity. The learned combatants, after having /under favour[?] of an /the/ unbounded - however[?]/ exhausted their stock of ammunition in the shape of written eloquence the learned combatants will, have to renew the combat in the shape of the war of tongues, under a limited mendacity licence, the privilege denied to witnesses, extended /confined/ only to the representers and misrepresenters and suppliers of their evidence.
  • Title: [PRIVATE 23 April 1807 Letter]
    Description: PRIVATE

    23 April 1807

    Letter V

    Inadequate compensations

    2. Interlocutors Unappealable

    V. English[?] Law

    In English law, speaking of Common Law, no such thing as an interlocutor is to be found. I speak of interlocutory judgments which are such in name: one stage of the cause excepted, in which the judgment, the signature of which, is performed upon the mechanical principle upon which so much is done under English technicalism, the Judge whose judgment it is said to be, neither knowing nor caring any thing about the matter, and human reason having no share in it.

    For irregularity, upon the principle of nullification, this sort of interlocutor is sometimes set aside: set aside, but only by the Court itself by which it is supposed to be pronounced, not, in the way of Appeal, by the House of Lords or any other Court.

    On the other hand if interlocutors in effect be in question and, if a judgment which is never definitive, in so much as the possession which it delivers is never otherwise than definitive -be understood to be an interlocutor in effect - in the most impersonal class of civil causes that English procedure laws /judicature/ no final judgment tha is ever pronounced is ever final - nothing that is ever done is ever done by any thing but interlocutors. I speak of the judgment in /on/ the sort of action called an ejectment: to which may or may not be added the action of trespass, in the case where it is employed for the trial of a title.

    In Scotland such abundance, in England such scarcity of interlocutors, are arrangements that can not be both of them conducive to the discovery of truth, or subservient to the ends of justice. In fact neither of them is. But what renders English procedure somewhat less unconducive to its professed object than it would be otherwise, is - that of the Scottish interlocutors the function is to a certain extent answered on some occasions by those rules of Court[?] as they are called, to which birth is given by those incidental and casual applications called Motions.

    + When two roads so widely different are pursued in going or professing to go to the same place are so widely different, both may be crooked, both can not be strait.