date

11 Feb y 1808 Homologation necessary
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.
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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: []
    Description: <...> May 1808

    I. Reasons

    Ch.IV. Homologation necessary

    §.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.
  • Title: [11 Feb y 1808 Homologation necessary]
    Description: 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.