date

PRIVATE June 1807 Letter V
PRIVATE

June 1807

Letter V

V. No Appeal

V. Insubordination

III. Insubordination. Problem: how to withdraw the kingdom of Scotland from under the legislative dominion of the King in Parliament.

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 In the same way may the Court of Session be withdrawn from under the controuling judicature /jurisdiction/ of the House of Lords.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

Corollary. In the same way and by the same operation will the Court of Session be withdrawn from under the appellate jurisdiction of the House of Lords.
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  • Title: [9 June 1807 D2 Letter V]
    Description: 9 June 1807

    D2

    Letter V

    v. No Appeals

    v. Insubordination

    With submission, my Lord, it strikes me that before the door of the House was proposed to be thus inexorably shut against all Appeals from Interlocutors it might not have been labour altogether misspent, to enquire into the proportion between the number of Appeals complaining of Interlocutors alone, and the number of Appeals complaining of final judgments.

    An apprehension strikes me lest, upon a search of that kind it might here and there be matter of some difficulty to find an Appeal to the House of Lords complaining of any thing else besides an Interlocutor: and thereupon, supposing the proposed arrangement passed into a law, to find the jurisdiction which the House of Lords would continue to exercise over that one, the northernmost, of his Majesty's three kingdoms.

    The ground of this apprehension is - that in: Vol. │ │ of the Decisions of the Court of Session as published by the Faculty of Advocates, in the whole number of Decisions there stated as appealed from, viz. I can not find a single one in which the decision complained of was any thing but an Interlocutor.

    Should it even turn out (though for the present purpose the inquiry is not worth making) that every final judgment is at one period, and that a previous one, of its existence, an Interlocutor, as every man is first a man still in my humble view of the matter it would not be much mended by the discovery: because if in Scotland it be of the nature of all final judgments, first to be in the state of Interlocutors I can not, in the plan of Your Lordship's learned Reformer discover any thing that should prevent their continuing in that state.
  • Title: [18 Apr 1807 Letter V III. Proper]
    Description: 18 Apr 1807

    Letter V

    III. Proper Remedies

    III. Objection I

    2. By experience. By a variety of causes, which notices[?] of which on the present occasion have poured in from all quarters, the Court of Session, the Metropolitan Court of Scotland, seems to have been placed in a peculiar degree exposed to the risk of giving birth to misdecision. Yet of the whole number of decisions pronounced if one in ten, if one in 20 were to be set down as chargeable with injustices in this shape, setting aside the cases in which as in the annexed Table. (Tab. II) misdecision flows silently and unheeded out of delay, it would be a large allowance.

    1. Average annual number of causes commenced in the Court of Session and sooner or later determined there, as per

    2. N o of Judgments therein appealed from as per decisions[?] printed 1807 by Order of the House of Lords.

    3. Whereof affirmed by withdrawing of the Appeal, or dismissal of it for want of prosecution (Withdrawn dismissed) ....

    4. Affirmed by judgment of the House . . . . .

    5. Reversed or remitted for modification (revised[?] remitted) . . .

    N.B. The N o of those affirmed by withdrawing or dismissal may be stated as so many of which it may be averred with full assurance that they were appeals of the malâ fide class having no object in view but delay. Of those affirmed by judgment, i.e. after argument, the total will have been composed partly of malâ fide, partly of bonâ fide appeals, but in a proportion which for want of a criterion seems/ altogether undistinguishable.
  • 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.