date

PRIVATE 9 Dec r 1807 + A
PRIVATE

9 Dec r 1807

+ A

Scotch Reform

Letter V

Ch.3. Bonâ fide Appeals

Superseded in general, but consultable, to see whether exhausted

If on the score of utility there were no particular demand for the continuing to extend to Scotland the appellate jurisdiction of the House of Lords - of utility either national, in respect of the interest of that one of the three kingdoms, or imperial, in respect of the interests of the whole United Kingdom - the simplest as well as in every respect the most eligible course would be to withdraw from Scottish judicature in causes of all sorts that paramount judicature of which, in so many sorts of causes that are apparent, not to speak of so many others of which no account seems ever to have been made, English judicature, not to speak of Irish, has never enjoyed the benefit.

Of the causes which come to a hearing - the only causes by which any draught is made upon the House of Lords for any of its time, so large is the proportion of those that come from Scotland, that supposing this part of the burthen removed, the ability of the House to discharge the draughts that would in that case continue to be made for + the present at least - would not I suppose be matter of doubt to any body.

+ (setting aside that unfashionable tense the future)
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    and fear not /you need not be apprehensive of not witnessing/ a triumphant result.

    But in the wording of this motion two rocks must be observed with the most religious care.

    One is in calling for Appeals to avoid all mention of those which in the technical language happen to have received the name of Writs of Error. In Scotland all Appeals presented to the House of Lords are called Appeals: In England the only Appeals on which that denomination is in technical language bestowed are those which are presented from the particular species of Courts called Courts of Equity, or from those others, of which happily there will be no need to take notice, inasmuch as the paramount Judicature to which they are presented is not that of the House of Lords.
  • Title: [PRIVATE June 1807 Letter V]
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    Solution. Continue the line traced out by the Court of Session in the case of the Duke of Douglas contra Lockhart, A o 1753. Decision published by the Faculty of Advocates Vol. I p. │ │ in which it is by " interlocutors" that the alledged extension of a Statute over Scotland is alternately affirmed and disaffirmed and affirmed. Let[?] the

    antagonising /conflicting/ interlocutors let the interlocutor denying /refusing/ the case for [...?] or by the Statute be the last link, the thing is done. I.S.F.[?]

    Corollary. In the same way may the Court of Session be withdrawn from under the controuling judicature /jurisdiction/ of the House of Lords.

    Interlocutor disaffirming the claim of the Statute to extend to Scotland be the only one, or in a chain, of any number of links, composed of Interlocutors alternately affirming or disaffirming it, the last link. Apply now to this sole or last Interlocutor the proposed clause, prohibiting all Appeals to the House of Lords from Interlocutors pronounced by the Court of Session, and the thing is done. Q.E.D.[?]

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  • Title: [9 June 1807 A2 Letter V]
    Description: 9 June 1807

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    V. No Appeals against Interloc.

    Less for want of being so particular and explicit as it might be, this concise view of the matter should fail of producing conviction, I shall under this head proceed to submitt the probable consequences of it, as they present themselves to my view, under three principal heads:

    1. Irreparable and final injury - viz. in case of injury done by misdecision on the part of the Court below, denial of relief on the part of the House of Lords - whereby the injury becomes irreparable.

    2. Delay - Cases in which the arrangement draws with it encrease of delay, if superabundant and useless delay, as its certain consequence.

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    Meantime, in regard to these cases, at least the two first of them, a material remark requires to be made: viz. that though there are perhaps no cases in which it can be certain that the effect of this arrangement would not be to preclude appeal from the Session to the Lords, yet cases there are, and to no inconsiderable extent in which it is altogether certain that the effect of it would be to render such appeal and whatsoever may be the security dependent upon it impossible.

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