date

Jan y 1808 Homologation necessary
Jan y 1808

Homologation necessary

Jury Trial required

As to Jury Trial, I have already stated in what case /on what conditions[?] //[...?]/ I regard it as a blessing to Scotland, in what[?] others as are[?] additional nuisance: a blessing if mounted on the natural system of procedure, an additional nuisance if mounted on the existing modification of the technical one /system/

Among the points /questions/ of which the Great Seal Commissioners are on this subject /occasion/ to take cognizance one is in what manner and form the same[?] could be most usefully established.

On the point, any opinion such as it is, is perfectly decided. On the suggestion of the introduction /universal extension/ of the natural mode of procedure (and so far as concerns the business of appellation from judicatory to judicatory, Appeal according to the practice of the House of Lords may be stated as a part[?] and sample of the system of natural procedure) on this supposition, the settling of the issue by /under the [...?] of/ Judge [...?] may be stated as a temporary [...?], the best course that antecedently to the performance without are ulterior and still were extensive as well as important task, can be pursued.

But to employ that blessing to the best advantage, and to cut up by the roots that mass of [...?] and litigation to which the application of Jury trial as above to the rule of action in its present indeterminate state would be apt to give[...?] requires the performance of that ulterior task, the necessity as well as facility of which is matter of conviction /the fully [...?]/ to any [...?], but the demonstration of which will require more words than can with consistency be allotted to the present head.
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  • Title: [May 1807 Scotch Reform Letter]
    Description: May 1807

    Scotch Reform

    Letter VI

    Letter VI

    II Jury Trial

    II Jury Trial - System of Procedure - Jury Trial

    For the mode of procedure, I proposed in the first instance the natural system as exemplified in the Small Debt Courts mentioning also the other Courts by the practice of which this natural mode of procedure might so easily be extended to civil cases of all sorts and sizes[?]. In the case of Appeal on the ground /question/ of fact, and not otherwise, Jury trial.

    If instead of natural procedure, Jury trial be to be had in no other condition than that of its being mounted on the existing Scotch mode of natural procedure, Scotland can[?] in my conception would be better without it than with it: in regard to delay, I see how it would add in a variety of ways: how it would strike off any thing in any way I do not see. On the sum of delay, vexation and expense, and thence denial of justice, in the comparatively many undisputable causes, it would do more disservice to the ends of justice, than in the sum of prevention of misdecision in the comparatively few disputable causes it would do service.

    As to the natural mode of procedure, the 11 Memorializing Judges are of course silent on the subject. But the Lord President, by whose views as derived from his station, the opinions of his 10 colleagues have plainly been directed /evidently been led/, had already as I have shewn so much at large signified his approbation of the natural system in the warmest terms: viz. to the extent of ,5[?] value reprobating /rejecting/ it as soon as the value rises to ,5.1: but without reason assigned and assignable.

    On /Upon/ the Jury trial which has /had/ never been proposed to them but is in mounted in the existing technical system, the same learned Lords they pass a vote of rejection purely and simply: and thus far my reasons have their authority for a support.
  • Title: [11 May 1808 I. Reasons Ch.IV]
    Description: 11 May 1808

    I. Reasons

    Ch.IV. Homologation necessary

    §.1.

    4. To many persons however, the composition of the Judicatory would probably appear an indispensable feature: { and, be this as it may, certain it is, that under a judicatory so composed, and by the instrumentality of a system of pleading without which that judicatory is never brought into action, by far the most numerous body of causes, (setting aside those which are determined by the undilatory, unexpensive and unvexatious system of procedure in use in the Small Debt Courts, and which seem some how to be generally overlooked) several operations of pleading, and taking proof, and by that means the entire quantity of time occupied by the whole cause are brought within the limits or compass abovementioned.

    A state of things with which no person in whose eyes, on whatever of these four accounts, Jury trial appears desirable would, it is supposed, be satisfied in that the occasions on which it shall be employed and the points on which the Jury shall have to pronounce and in relation to which proof shall be adduced, shall depend in each case upon the pleasure of the Judge.

    Under Jury trail as performed in England, since neither of these points do depend upon the pleasure of any Judge: the propositions on which the judicatory has to decide, {the mode of collecting the evidence and the length of time occupied in the operation} are already predetermined and settled. It requires no Judge to adjust these propositions: it is not in the power of any Judge to prevent them from being brought upon the carpet before that judicatory, and made the subject of proof delivered.
  • 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.