date

11 Feb y 1808 Scotch Reform
11 Feb y 1808

Scotch Reform

Letter

on L d Eldon's Bill

1. Homologation Necessary

Pleading [...?]

Reasons why Jury Trial in [...?] can not be introduced into Scottish procedure to good advantage without the previous homologation of the substantive part or main boy /branch/ of the Law.

In English procedure, the use and Utility of Jury Trial in civile depends principally upon a connection it has with the forms of pleading: and in particular in so far as concerns general officer[?] - pleading the general office - and the general species or forms of action to which they have reference.

By the species of actions, the demands [...?] are expressed and distinguished: by the general offices respectively applicable to these actions, [...?] the defences.

Both indeed in the most wretchedly imperfect and incongruous manner: but being in a considerable degree, and in such manner as to cover the most common subjects of litigation, settled by lay practice, they serve for carrying in the business in the less imperfect mode in which in which it is carried in under English law.
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    Description: 11 Feb y 1808

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    If it were possible to introduce into the Scottish judicatories the English forms of pleading the system of Scottish procedure might thereby be made to receive Jury Trial with its utilities and inconveniences exemplified in English practice, and at this same time this substantive branch of the law /rule of action/ might receive that imperfect degree of determinateness which by means of those forms it has acquired under English Law: and thus from its present barbarous /imperfect/ and abject state, it might be raised into the somewhat less imperfect and abject state, possessed by English Law.

    Happily for Scotland this minute advance in the career of improvement is impossible. Two circumstances may be distinguished, either of them sufficient to render it so.

    One is that the portion /in respect/ of substantive law involved as above in the English forms of pleading, is in a multitude of points altogether different from the correspondent portion of Scotch law: in many points inferior, in many others /in reasonableness and utility/ different without being superior.
  • Title: [11[?] May 1808 I. Reasons Ch]
    Description: 11[?] May 1808

    I. Reasons

    Ch.IV. Homologation necessary

    §.1.

    Ch. IV. The English system of pleading being inapplicable to Scotch Law, Jury Trial can not to any considerable extent §.1. or advantage [be] introduced into Scottish procedure, otherwise than by putting the body of the law into a written state, adapted to that purpose.

    1. In Scotland the thinking part of the people, not being satisfied with the existing system of procedure, wish for a different one: that other and better system they expect to find in that of which Jury trial forms a part.

    2. The advantages Scotch men look for in Jury trial seem to be as follows, 1. a judicatory in the composition of which an assembly of Judges not permanent but ever changing constitutes an indispensable part: 2. a mode of taking proof by which[?] that particular operation shall in point of time be reduced within that limited compass within which it is reduced by the practice in Jury trial: 3. for a basis to such limited mode of proof a system of pleading subjected in respect of number of words and length of time occupied by it to correspondent limitation: and, a similar correspondent limitation given to the length of the whole suit or cause of which the hearing that takes place before that judicatory constitutes the leading and characteristic part.

    3. Of these advantages, the three latter are in the nature of the case altogether independent of the composition of the judicatory: it is by accident only they have become connected with it: with still greater facility they might be had without it. Under a single Judge, and he a permanent one, the time occupied in taking proof might be subjected to exactly the same limitation: to the system of pleading the same length of paper and time might be allotted, or, in general, with much greater advantage in respect of the ends of justice a much less length, especially of time to the duration of the whole cause exactly the same length or in by far the greater number of causes individually taken much less than a hundredth part of it.
  • Title: [11 Feb y 1808 Homologation necessary]
    Description: 11 Feb y 1808

    Homologation necessary

    As The system of pleading at present in case under English law, constitutes a part of the regular that is the technical and dilatory system of procedure, to an English lawyer it would naturally seem of course that the application of any thing that could with propriety come under the denomination of a system of pleading would be attended as of necessity and of course with a mass of delay vexation and expence similar if not altogether equal to that which has place under that same technical system.

    But in truth a system of pleading, if properly constructed, and thence moulded upon: properly framed body of substantive law councils altogether as well with /is as compleatly adapted to/ the natural system of procedure as any system of pleading can possibly be to the technical. It stands in no degree dependent in any of those delays vexations and expences of which the technical system is composed.

    The parties being present in the face of each other and of the Judge, the /to enable the/ train[?] of pleading to have run out its length will require no greater length of time than to carry a suit for the same object through the forms of a Court of Natural Procedure such as are already on use - a /a Scotch/ Small debt Court or an English Court of Conscience.