date

11 Feb y 1808 Homologation necessary
11 Feb y 1808

Homologation necessary

 Speak as to the mode by directing[?] Offices

But though it is not possible for Scotland to import /derive/ a set of forms of pleading impure and putilated[?] /corrupt/ source, nor therefore to obtain by inference and fiction a correspondent portion of substantive law in the state of jurisprudential law, what is altogether possible is that it should receive a set of forms of pleading with a /the/ correspondent portion of substantive law in the order and in the state prescribed by utility and common sense: viz. in the first place a portion of substantive law in /to/ the requisite extent, and thereupon in the next place, a set of forms of pleading deduced from /correspondent to/, and moulded upon, that portion of substantive law: in the first place the rule of action, the law itself; and then a set of instruments expressive of the mode, in the several measures[?] of life, to the extent of the portion of the field of law covered by such portions of substantive law, the execution of the commands expressed by that portion of substantive law, the fulfilment of the engagement taken by it, may[?] /shall/ be demanded.
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  • Title: [11 Feb y 1808 Homologation necessary]
    Description: 11 Feb y 1808

    Homologation necessary

    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 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.
  • Title: [28 April 1808 §.8. I. Reasons]
    Description: 28 April 1808

    §.8.

    I. Reasons for the Work

    §.8. No good pleading sans homologation

    §.8. No system of pleading either compleat, or, to the extent of it, well adapted to the ends of justice, can be constructed, unless its necessary basis, viz. the correspondent portion of substantive law, be in the state of statutory, in contradistinction to unwritten (say rather jurisprudential) law.

    1. By §.6. art. 1. the system of pleadings can not be subservient to its sole professed and sole proper purpose, any further than in its conformity to the correspondent portion of substantive law, the rule of action to which it professes to give execution and effect, is entire. But it is only by the hand of the legislator, that any such conformity can be produced. To produce it in any manner requires that the operator should at least have at his disposal the tenor of the instruments of which the system is composed. To produce it in the most convenient and perfect way requires that the operator be master not only of these instruments but of the portions of substantive law into which they are respectively to be made to fit: it requires that they should be worked up together: and not only that the instruments should be made to fit into the correspondent portion of substantive law, but that each portion of substantive law should be constructed in such a manner, put into such a form, as may fit it in the best manner to the purpose of housing those instruments moulded in it.