date

29 Dec r 1806 Scotch Reform
29 Dec r 1806

Scotch Reform

To L d Grenville

Omissa

3. Pleadings

not desperadum?] ... de Republicus.

3. There remains the forming /causing to be/ de novo one[?] certain[?] set of pleadings adapted to this purpose: a set of pleadings covering [...?] forms, practicable forms, the whole of the ground occupied /covered/ by the civil branch of law.

But in this task, difficult as it may seem /appear/ to be so[?] involved, virtually unnecessarily though perhaps at first sight not percepticibly /very apparently/, included, a task which at first sight may appear much /still/ more formidable: I mean that of framing in [...?] an equally extensive and correspondent mass of that to which, in constradistinction[?] to the law of procedure employed to give effect to it, I have, by necessity/under the spear[?], given for my own use at least the name of substantive law.

An [...?] /A compleat/ body of Civil law: and to be framed now a days - framed by a legislative article[?] cannot without debate upon debate, carry through so much as an Act for establishing a stand of Hackney Coaches in Bond Street:

My Lord, the attention bestowed upon objects is frequently when the great and lasting interests of a nation are considered, rather in the inverse than the direct rate of their importance: but should I fail of satisfying Your Lordship /[...?]/of the practicability, I have little apprehension of not being able to satisfy your Lordship of the necessity of it: always understood supposing /assuming/ the introduction of [...?] Jury Trial in civil /such/ cases into Scotland to be necessary. Comparing the Irish Union Bill to the Bond Street Hackney Coach Bill, had attention been to attention, as importance was to importance, how many more [...?] would have been classed, before that solution of continuity had been healed.

But should I feel
Similar Items
  • 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: [29 Dec r 1806 Scotch Reform]
    Description: 29 Dec r 1806

    Scotch Reform

    To L d Grenville

    Omissa

    3. Pleadings

    [...?] attentive[?] as well as collective[?] are [...?...?] attention when by Scotch forms.

    In England, though alas! there is no such code, there is - though a most wretched /miserable/ and unworthy substitute there is a substitute for it:- there is that composed of /[...?...?] shall/ lies and nonsense and surplusage above mentioned - including the few pearls /pearly drops/ of good sense that are almost lost /smothered //drowned/ in it.

    In the mass of adjective law thus composed, the existence of a correspondent mass of substantive law, or ground without which it would have nothing to stand upon - nothing to give effect to as assumed. But by assuming this /the existence/ correspondent mass of substantive law, it constitutes - in virtue /by means/ of the correspondence - and though in a most reasonably weak and ricketty form - it constitutes[?] /creates //generates/ it. By a sort of relative it to a certain degree determines it: in one being given, the other though in a miserably [...?] way, and not in terminus [...?] anything like it, is given also: it is given as in a trough[?], one side and two [...?] being given, though with a very different sort of [...?], the other [...?] are given also.
  • Title: []
    Description: <...> May 1808

    I. Reasons

    Ch.IV. Homologation necessary

    ยง.1.

    It may be rendered matter of duty to him, it is true to send the cause to a Jury, on condition of its being rendered obligatory on him and thereby allowed to him always on hearing Advocates on both sides to settle the question which they shall have to try. But by this a suit and a suit unknown to English procedure is thus interpolated into the middle of the suit: and still the previous delay and uncertainty, resulting from the unlimited length, shapeless structure and undeterminate character of the pleadings, remains untouched.

    The thing desired is that the questions which the Jury or other judicatory shall have to try shall be predetermined by law: not left to be determined by any Judge. By the system of pleading involved in the English system of procedure, this object is effected. But the English system of pleading, it has been shown, is inapplicable to Scotch law. Therefore, if the object be pursued, a different system of pleading, moulded on Scotch law, must be framed. This is the operation towards which the best endeavours of the Petitioner are thus tendered.

    Had the rule of action in Scotland been already in the state of written law, framed by the legislator, in a determinate set of words, all that, for the purpose in question, would have been to be done, would have been the taking of this body of law, and framing a system of pleading directed to the object of giving execution and effect to it, and in that view adapted to the words of it. And in this case the function of framing such system of pleading would naturally have been courted by and consigned without difficulty to less incompetent hands. But as in England so in Scotland, here and there a patch excepted, the rule of action has no determinate words belonging to it, howsoever principal as it is in its nature. Hence it is that, the task of finding determinate words for the rule of action, is rendered thus by accident if not an assemblage, an accompaniment, and that a necessary one, to the main task.

    It had for its authors no determinable individuals or bodies of men acting in the character of legislators or co-legislators, but some unknown indeterminable individuals acting in the conjunction or deception without conceit in the respective characters of drawers of pleadings, Judges, Reporters of decisions, authors of abridgment, authors of institutional books, and publishing booksellers.