date

Dec r 1806 4 Resolution 5
Dec r 1806

4

Resolution 5

Pleading

As to the drift of this Resolution, so far as I can hope to reach it by conjecture, what it aims at /expresses/, or rather the [...?] it hints at, is, by way of a preference[?] to English Juries, the introduction of English Pleading. If so, I fear or rather I hope, it stands [...?] to remain for som etime longer in the limbos of infant and abortive projects.

Was not this the aim, (which however to a certainty it could not have been on the original enactment in 1787) to what end [...?] to force a defendant into a distinct admittance or denial of the plaintiffs alledged facts. Whatever is not denied may it not safely be taken for confession? Is not this the conclusion drawn naturally and of course? does it require an express regulation to authorise and require the drawing of it?
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  • Title: [24[?] Dec r 1806 Scotch Reform To]
    Description: 24[?] Dec r 1806

    Scotch Reform To L d Grenville

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    Resolution 5

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    Here there is a regulation established by an Act of Siderent[?] established already in 1787: now in 1806 comes a proposition for establishing the same thing over again by Act of Parliament.

    Here is /stands/ a [...?] fragment with reflections, and not much less so with doubts.

    The regulation has it been acted upon? then why in a system of reform introduce and re-enact the regulation, and this alone, to the exclusion of so many hundreds of others that also have been acted upon these few times alone out of the contents of a vast folio volume.

    Has it been consigned to neglect? - Then what security will the proposed re-enactment afford of itself against the regulations sharing the same fate a second time as it did the first.

    Is it that their Lordships were in the habit of making regulations, and [...?], without repeating them, or saying in point a syllable about them, making them in practice as waste paper? Yes, my Lord, they are. Practice swarms[?] with instances: to collect them all would be too heavy /severe/ a task: but to prove it to your Lordship that what is here said is not without ground, a few references in the margin are subjoined: and even were these all, the points they include /embrace/ are such as can not but present themselves as swarms[?] in every days practice.
  • Title: [[...?] Dec r 1806 Scotch Reform To]
    Description: [...?] Dec r 1806

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    Next, my Lord, I observe a Resolution, (5) on the subject of Pleading - "In all causes" (whether originally "brought before the Lord Ordinary, or before the Chambers as Inner House causes) the defender shall, in his defence, distinctly admitt or deny all rational facts ahhedged in the summons or other Writ by which the cause is brought into Court."

    In reading /the perusal of/ this Clause, unless otherwise explained by verbal /ulterior[?]/ communication, your Lordship will naturally have placed it along with the rest upon the list of innovations. If so your Lordship may possibly /perhaps/ share in the surprize with which I was struck on reading a clause in one unrepealed[?] Act of Siderent[?] (11 August 1787 '.5.) in these words - "When the Defendant receives the summons, he shall therewith return upon a separate paper, his whole defences both dilatory and peremptory, relating the facts he is to insist upon, and explicitly admitting or denying the several facts set forth in the pursuer's libel."

    Summons or other Writ is the word employed in the Resolution: in the Act of Sidernet[?], Summons at the [...?], libel at the close of the sentence. The libel is it the same Writ with the summons, though under another name? is it a different Writ? /The libel is included in the [...?] - [...?] Bill [...?/ be it the same or different, to the present purposes it makes no difference: for if they be differnet, wjen the case[?] comes to be returned, the other, inasmuch as it is at that same time to be answered, must already have been received.
  • Title: [22 Dec r 1806 To L d Gr. No]
    Description: 22 Dec r 1806

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    No English [...?] [...?] English Pleading

    No natural pleading [...?] [...?] [...?] ([...?] [...?] Plea which ever could have been [...?].

    Resolut. 5

    pleading

    On the subject of pleading, any departure from the Scotch mode in present me[?] admitts, if I apprehend the matter right, but of one alternative - blind and total adoption of the English mode, or recurrence to the natural mode. Adoption of the English mode, I have at once /at the same time/ too strong a conception of the power of prejudice, and too good opinion of Scottish taste and good sense and self-esteem /estimation/, to expect to find practicable /other than impracticable/. The Scotch Bar lawyer could than have to impart bodily the whole mass /chaos/ of our English Books of Entires, ancient and modern, with [...?] title Pleader, for a clue to it: by way of preparation for the research /study/ he would have to swallow and chew /digest/ the end upon the principle of multiplication, and the practice of fiction, [...?] species of jurisprudential turpitude in which the Scotch lawyers are but novices /almost [...?] in Scotch law/: regard for security[?] is an incumbrance of which he will have been sufficiently divested /disencumbered/ by his own forms or in forms of pleading, un der the sanction of the mendacity licence in which the [...?] on both sides are adorned in unlimited quantity, and on both sides, especially the side most in the wrong, with a studious avoidance of /religious abstinence from/ all methods in the character of undoubted /indubitable/ truths: but to finish his education, and compleat his complement /list/ of qualifications, the Scotch student will leave to come to London for law / the Scotch law student will have to come up to the imperial metropolis for jurisprudence law/, as we in London have sometimes gone to Edinburgh for physic, and unlearn whatever portion of taste and common sense his own /native[?] school may have left him (common honesty is out of the question) in the study /office/ of an English Special Pleader. I hope and trust, my Lord, I shall never have to see our brethren of Scotland reduced to such a state of degredation.