date

30 Dec r 1806 Scotch Reform
30 Dec r 1806

Scotch Reform

To L d Grenville

Omissa

3. Pleadings

3. Pleadings without truth, shape or limit.

So far as concerns the disregard to truth Scotch pleadings are pretty much /in the mass/ upon a par with English ones: on [...?] with pleadings all the world over, whoever Judges pay in the shape of fees, [...?] its consequences the technical system is established. In one thing they fall short of the English, viz: that they do not exhibit that hatred and contempt for truth /those wanton [...?] upon truth/, thus habit /delight/ in wallowing in mendacity /vice/ and nonsense which constitute a privilege so dear to the hearts /valuable in the eyes/ of English lawyers.

The lies in Scotch pleadings are not like those in the English the lies of the lawyer, and of him only and for his benefit alone [...?] the lies of the suitor; as to the ground at least, the lies of the suitor; the improviding[?] only being the lawyers handy-work: they are not lies of mere wantonness, but grave, sober, well-considered lies having a special object, disregard calculated to gain a point: they are not irrelevant but apposite lies.

The remedy would be very simple: withdrawing the existing mendacity purse[?]. In English Equity pleadings, the Defendant in his answer is already upon oath: the mendacity licence extends not beyond the plaintiff's side. On that side the removal of it (needs it be said?) would be just as easy as on the other, but the end would have been effected ages ago, were it not that the interest of the partnership would have been hurt by it. In Scotch pleadings /procedure/ in which English Equity is happily unknown, take the power away alike from both sides, this part of the abuse vanishes. In the English Common Law pleadings the [...?] part of the [...?] being composed of lies, this could not be done: unless by way of giving a zest to mendacity /learned gentlemen/, done to have it in the form of perjury, in this as in so many other instances.
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  • Title: [30 Dec r 1806 Scotch Reform]
    Description: 30 Dec r 1806

    Scotch Reform

    To L d Grenville

    Omissa

    3. Pleadings

    But in Scotland /Scotch procedure/, the use of forms has not extended to defences: not in regard to demands even[?] of the most simple class /description: and here at any rate the new /newly/ -projected or at least unnamed system of pleading would find itself at a loss /fault/.

    But when defences /instruments of defence/ are [...?] by forms - [...?] forms - I must not have[?] say uncircumducible[?] as evidence and if my [...?] of them be correct Scotch pleadings, apparently where they get into print, boil out and expatiate /spread themselves/ over the field of evidence. French Memoires used to do so: they contained the whole story that is on each side the whole story on that side, including according to the c;ass of the cause the already collected, or expected, or pretended to be expected evidence: all always under the benefit of the mendacity-licence: and in the Scotch cases and pleadings may be seen the legitimate offspring /natural children/ of the French Memoires.

    In English procedure, on the Common Law side, every thing capable of coming under the demonstration of evidence, is [...?] effectually excluded by the forms in use. In most cases /The cases of most frequent occurrence/ the defence is happily considered into that very concise form of expression called the General Issue. 1. Non assumpsit /he (better I) in [...?] made no such promises/: I [...?] entered into no such engagement. 2. Not debit. I owe nothing. 3. non est factum. I extracted no such instrument. 4. [...?] ad [...?]. He paid at the day: (capable without any impropriety of being included under he owed nothing). 5. non [...?] - he is not guilty.
  • Title: [[091-185] 29 Dec r 1806 Scotch]
    Description: [091-185]

    29 Dec r 1806

    Scotch Reform

    To L d Grenville

    Omissa

    3. Pleadings

     Add[?] Equity[?] mode of bringing to Issue without direction [?] viz: General [...?] by [...?].

    My Lord, I am inclined to flatter /[...?]/ myself Your Lordship will already have recognised the impossibility the Scotch Courts will be under of bringing [...?] to one Issue - in other words, that is, of employing a Jury in the trial of civil causes, without doing one or other of these things: viz:

    1. Hereby the Issue forwarded and directed in each individual instance by the Court, as in an English Court of Equity, when they send a cause /question/ to be [...?...?]: in which case the delay vexation and expence of English practice will be [...?] not substituted[?] to that /the already intolerable 2/ of the Scottish - not substituted.

    2. Importing the English form of pleading in globo , exactly as they stand at present: importing, /making up and for the swallow[?] acute clearsighted class of [...?]/ into a supremely well informed and sharp-sighted nation, a cargo of lumber which when taken from under the clouds of prejudice to which alone it stands indebted for not being universally recognised for what it is /country, a mass of nonsense in n immense [...?], without the sweetening of prejudice that in England makes it go down so glibly/, will b seen to be a compound of lies and nonsense and other surplusage, for absurdity and depravity /wickedness/ altogether without a parallel on the surface of the globe. My Lord I am as far from [...?] as I am from [...?] to see that moral and high-spirited, non-lawyers or even lawyers - submitt willingly o any such degradation /depravation/: and what I am quite as sure of is that Your Lordship neither has thought nor ever will think of forcing them to it. In Your Lordship's plan, had I any such [...?], I would begin with conquering them in the first instance.

    3. Copying and extending highest[?] might [...?] papers of particulars in [...?] side, with admission and demand in defend [...?].
  • Title: [094-136] 23 Dec r 1806 Scotch]
    Description: 094-136]

    23 Dec r 1806

    Scotch Reform To L d Grenville

    Resolut. 6

    Jury

    Such being the properties of the proposed trial by Jury I will now beg leave to state to your Lordship, why Your Lordship has heard so much for it - nothing at all against it - why the members of the Scotch Bar, as well as those brethren of the English Bar - are so fond of it. It will then rest with Your Lordship to say /judge/ whether the good peoples of Scotland who are in question - to say nothing of their fellow subjects in England who are not in question -have the same reason to be fond of it.

    In England at Common Law a hearing with a Jury stands in

    lieu of a hearing without a Jury: and thus /it is then/ though a Jury cause consumes some hundreds of hours as much time as the same individual cause would in a Court of Conscience, it consumes less time than it would in Scotland. But in Scotland, as proposed, at least for any thing that appears in the Resolutions, every hearing with a Jury will be to much superadded to a hearing without a Jury: a cause /suit/ in the English stile, or at least the only useful part of it, superadded to a suit in the Scotch stile. in a word Trial of an Issue[?] sent out of any one of the three Chambers will be like /really[?]/ Trial of an Issue[?] sent out of an English Court of Equity. The learned combatants, after having /under favour[?] of an /the/ unbounded - however[?]/ exhausted their stock of ammunition in the shape of written eloquence the learned combatants will, have to renew the combat in the shape of the war of tongues, under a limited mendacity licence, the privilege denied to witnesses, extended /confined/ only to the representers and misrepresenters and suppliers of their evidence.