date

19 May 1807 + + 7 Letter V
19 May 1807

+ + 7

Letter V

I. Plan

2. Abolition of Appeal against Interlocutors, - a remedy from which the remedial tendency is precarious, the pernicious boundless. A postulate assumed in it, is a natural, clear, and unpassable line of distinction and demarcation - drawn or at pleasure capable of being drawn, between interlocutory judgments and final ones. On this head, my humble conception of the matter, is - as Your Lordship will see, that no such line has ever yet been drawn - that no such line was in a way to be drawn by the hand of Your Lordship's learned Adviser, or any other learned hand: and thus that the prohibition of Appeals against Interlocutors would sometimes amount to nothing, producing nothing but that litigation which it professes to prevent - at other times to worse than nothing, operating as a prohibition of Appeals against judgments, interlocutory in name, but final in effect, and thus undermining and reducing to inanity, as far as that one of the three kingdoms is concerned, the superintending judicial authority of the House of Lords, and the legislative authority, of the imperial legislature of which it is a branch. But of this too in its place.

Your Lordship will scarcely, I believe, suppose that if, in my humble view of the matter, the mischief ended in the voluntary surrender of a part of the exercise, if mere honorific privilege, forming one of the feathers in the cap of an aristocratical assembly, it would form[?], in my estimation, any very serious objection to the measure.

But, my Lord in the privileges to which I allude, as well as in the prerogatives of the Crown, I behold a valuable part of the inheritance of the people: and whatsoever sacrifices Your Lordship's generosity, in your character of a Lord of Parliament, may have reconciled you to the making of in this shape, I, a poor Commoner, intervening and praying to be heard pro interessi meo[?], can not reconcile myself to the seeing of them made.
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    2. Interlocutors

    Under the liberty I am thus taking, whatsoever there may be of garrulity believe me, my Lord, there is nothing like disrespect couched: and for proof, I will confess to Your Lordship that years ago when first I took the part of the law in hand, legislating where so many of us build castles - no, said I to myself, we will have no appeals against particulars.

    The reason was simple, and shewed well enough at the first blush. It was the reason already given. Till final judgment is passed, be there ever so many interlocutors, and all wrong, still there is no harm done: wait then for final judgment: if the final judgement is right, appeal against interlocutors is useless: final judgment wrong, then comes appeal against final and interlocutory judgments at the same time. All well this, to a side glance: but no sooner did I take it up, to look at it at right angles than the following questions presented themselves, and the illusion vanished.

    Question 1 t. Is there any permanent and indelible distinction between an interlocutory judgment and a final one? - Answer in the negative.

    Question 2 d. Is there any thing that, being to be done by a final judgment, can not be done by an interlocutor if those on whom it depends are so disposed? Answer - very little, or say more likely, nothing. Whatever your final judgment be, call it an interlocutor, and the thing is done.

    Question 3 d. Supposing a clear and unpassable line were drawn, are there not cases in which an interlocutor, erroneous yet not to be appealed from, be productive of irreparable mischief? - mischief no less irreparable and no less serious than as any that could be done by any final judgment? Answer - plenty.
  • Title: [20 April 1807 F3 (3) Letter]
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    Letter V

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    2 Interlocution Unappeal.

    VI. [...?]

    Insert or not?

    But appeals against interlocutors are a great grievance. My Lord, I dare believe it. Appeals from Scotland are multitudinous: and a great part of them are appeals against interlocutors. It is natural they should be. In addition to the malâ fides delay producible by appeals against final judgments comes the delay produced by interlocutors. I dare say it does. But against delay, Your Lordship has seen the remedy, the only remedy: and this prohibition of appeals against interlocutors is not that remedy.
  • Title: [28 Dec r 1806 Scotch Reform To L d]
    Description: 28 Dec r 1806

    Scotch Reform To L d Grenville

    Adoplusida?[?] 1 3

    Resolut. 13

    Interloct[?] Unapplicable

    There are particular cases: and supposing the Resolution to be in these respects too extensive, its /the/ over-amplitude might be corrected by apposite exceptions.

    The /But/ proposed prohibition of Appeals against Interlocutory Judgments assumes and supposes a clear and invariable line of distinction in existence drawn between interlocutory judgments and final ones. Does /Exists then/ any such law exist my Lord? I do not mean in form, but in effect? Is is altogether clear tha neither precedent nor analogy can afford either warrant or plausible [...?] for framing /pronouncing/ judgments that shall be interlocutory in form, final in effect? Take almost any final judgment at random, is ther /can there be/ any difficulty, in framing a judgment, which shall /being/ be in all other respects the same, with the single difference of its being declared to be provisional only, reserving to another time the definitive disposal of the matter /subject matter/ in dispute till another time? This interlocutory judgment, (for under that appellation surely it could come,) this interlocutory judgment, for so long as it continues unmodified /unaltered/, produces the effect of a final one. But by whom is it to be altered? /But who is there to alter it?/ The Court below will not: and the Court above, the House of Lords, this Resolution being carried into act, can not.