JB_092_296.xml

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.

JB_092_301.xml

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.

JB_092_299.xml

Title: [PRIVATE 10 June 1807 Letter]

Description: PRIVATE

10 June 1807

Letter V

V. No Appeals

V. Parallelisms dismissed

Had it been possible that any such thing as English Reform should have been the Order of the day, or even could that which is so much pleasanter than any reform, amusement, have found here amidst so enormous a quantity of indispensable matter any tolerably proper place; - here might have been a place for divers enquiries and explanations not incurious: -

How it is that while the Edinburgh Senate House is overcast to such a degree with Interlocutors of the most variegated kinds, in Westminster Hall Interlocutory judgments at least under the name of interlocutory judgments are in specie so rare.

How it is that while to the House of Lords an Appeal from any thing but an Interlocutor is from the Edinburgh House a rarity, from Westminster Hall it is on the Equity side almost, on the Common Law side altogether, without example.

How it is that, while in the Edinburgh Senate House the mind of the Senator is if not constantly, applied with more or less attention to the Interlocutory Judgment that bears his signature, the only sort of Interlocutory judgment known to Common Law might in Westminster Hall, with the addition of a little appropriate machinery, be signed by the clerk[?] in the said Hall, situate lying[?] and being[?], with as much thought and deliberation, and with as much effect and use to any good purpose (unless it were receipt of fees) as by the learned and revered personage by whom at present, sleeping or waking, it is signed, or supposed at least to be signed.