26 Oct r 1807

L d Eldon's Bill

'.10

Stating questions of law

Order Confused

(1) (to state questions of law)

Between the case provided for in this 10 th Section, and the case undertaken, (with what sort of success has been seen) to be provided for in the 8 th Section there exists a close analogy: there was a case of equiprized[?] disagreement; here we see /this is a case of/ general doubt. This peace should naturally have been together, viz. in two contiguous Sections: instead of that (we see /comes/ interposed) between them the case of Remitt.

Again. The 9 th is the Section occupied by the case of Remitt; viz. from one Court to another of the two Courts into which the Court of Session is to be divided. In another section more is said about Remitt: viz., such as may come to be must[?] to either branch of the Court of Session from the House of Lords. For the same reason these two sections would naturally, one should expect, be placed together. No: between there come, not only the section about reference for speaking on question of law, but the important and comprehensive section for giving power to the Court of Session, in its undivided state for new-modelling in the way of legislation the whole system of procedure.

As to the particular business of the present section, viz. "stating questions of law", this is a sort of business that appears[?] and requires some sort of agreement. Expedients for the termination of disagreements otherwise interminable being a last resource, the place in which one should expect to find them would naturally be the last place. In case of doubt, state your questions, if you can agree about stating them, to the other Court: if you can't agree about this any more than about the main part, then call in a Judge from the other Court to turn the scale.

Even were the operation of stating these questions exempt from all danger of disagreement, this expedient it must be acknowledged would not be so surely effectual, as to supersede the necessity of the others, for the disagreement, the interminable disagreement, is no less liable to arise out of the question of fact, than out of the question of law: the [...?] here for producing unanimously on questions of fact and law together by means of torture not having as yet been adopted in Scotland to any considerable extent.