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.