091-079.xml

Title: [[...?] Dec r 1806 2 6 Resolution]

Description: [...?] Dec r 1806

2 6

Resolution 5

Pleading

There remains in the order of possibility /on the list of things conceivable/ the natural mode of pleading: but this, it is sufficiently evident /several reasons //considerations/ concurr in demonstrating/, can never have been /has never been/ in the intention, almost as certainly not as the contemplation /conception/ of the learned authors /projectors //reformers/ of the plan.

1. It assumes and therefore requires as I have endeavoured /already had occasion to endeavour/ to explain elsewhere a substantive Code of civil non-criminal (civil) law as the standard to which it refers[?] the basis on which it rests /ground work on which it is erected/. But as[?] such work exists or has so much as been thought of.

A set of forms so far as form could go, might indeed be proposed, of forms which, as such, would present an valid[?] appearance of a mass of belonging to the adjective branch of law: but this mass would of itself contain /mixture[?]/ by [...?] contain /[...?]/ though in a very bad way, the substance of a correspondent operation of the mass of substantive law /the substantive branch of the law/. as in England the worst account that can be given of the contents of our jurisprudential and therefore imaginary civil code is that which is draen by inference from our forms of pleading.

A system of /form of/ pleading without a Civil Code in terminus to rest upon is a sort of castle built in the air with a magic lantern or phastasmagoric spectrum of a foundation under it, instead of a foundation of brick or stone: good architecture thus, to those who have been used/ bred up/ on it, and have never had a thought of any other: but whosoever should leave[?] such a edifice to [...?] by the light of common sense, at least with any sincere and real desire to see it become the limple[?] of justice, will find, the laying of the foundation /the foundation/ in the first instance the most eligible course to pursue /mode of giving commencement to the work/.

091-186.xml

Title: [29 Dec r 1806 Scotch Reform]

Description: 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

JB_094_169.xml

Title: [6 April 1808 Letter V Ch.3]

Description: 6 April 1808

Letter V

Ch.3. diver[...?]

16. In regard to pleading - forms of pleading - in his original Bill the learned scribe had reserved this part of the field of legislation as a peculiar for the Court of Session. The inefficacy if when self-made and self-binding and consequently unbinding ordinances /regulations/ in this head had been established by the one[?] experience of more than twenty years. /+/ In his amended Bill [...?] the exercise of their [...?] in the hands of the Court provisional only, as in the other parts of the field, he adds this set[?]/part to the field of authority given to the Commissioners: charging them to "repeat in what manner the form of process and that Court (viz. the Court of Sessions, but in that Court only) might be improved by conducting more of the pleadings " viva voce"

In my view of the matter, this is as if in the creation of the superstructure an architect were to recommend the endeavour to imply particular sort of material in preference to another, but without any such corruption as that in either case than can be [...?] use in its having a foundation on which to rest. What /That which/ the clause in question calls /appears to call/ for at the hands of the Commissioners the clause in question calls /appears to call/ for /For what at least it must be understood to call for if it be understood to amount to any thing is/ is a system of pleading: and this to be conceived /expressed/ in terminus. But a system of pleading conceived /expressed/ in terminus supposes the existence of a body of substantive law conceived in terminus. In the case where an action is grounded in a statute this supposition is true: where it is grounded in jurisprudential commonly called common law it is a fiction. A system of pleading can not therefore be framed, but that a correspondent system of substantive law in terminus must either have /has/ been previously /already/ framed and [...?], or be /is/ implied: continued[?] by implication in the system of pleadings, thus supposed to be framed in terminus. But if in this medieval[?] and obscure way it be possible to frame a system of substantive law, it is equally possible and still /much/ more easy to frame it in a direct and clear way. /If not done directly, it will be done indirectly: but direct is easier./ By means of a scaffolding it may be not impossible to begin a house at the roof: but to begin with the foundation being the most direct and easiest course is the course commonly pursued /in pursuance/. To show the impossibility of applying to the [...?] in question any effectual [...?] if without framing a system of pleadings, and to show the impossibility of framing a system of pleadings: for the [...?] without framing a correspondent system of substantive law, viz. by convesting[?] so much of te rule of action from the form of jurisprudential [...?] the from of statute law, will to be the object of another Chapter. /Ch. │ │ The Substantive law [...?] branch /homologated[?]/ of the law in the statute form is a necessary basis to a system of pleading./