date

4 Jan y 1807 Scotch Reform │ │ To
4 Jan y 1807

Scotch Reform │ │ To L d Grenville

III Facienda

Causes mostly short

Against misdecision on the question of law the fundamental and /the/ indispensable security - the security without which all others are but imposture and illusion, is /consists/ in enactment - in homologation - to use the appropriate noun given to it in the language of other countries (Repetition i.e. p i. homologation not of the regulations and instruments of procedure only - but of that other and more principal branch of the law the substantive branch, to which it is the business of the law of procedure to give execution and effect.) But to do this /this operation/ is an operation which /that/ no more lies in the power than it agrees /quadrates/ with the interest or consequently with the inclination, of these to /from/ whom /whose/ the formalities /obscure and incoherent labours/ of the technical system of procedure are indebted /received/ for their existence. These formalities have throughout been in the main substance at least and ground work of their texture, been the work of the Judge: and if here and there the hand /work/ of the legislator be discernable, it is only in the form of patch-work, laid on here and there to cover and vamp up the flaws and unsound places /spots/ so carelessly left in it or rather so carefully made in it by the sinister industry of the essentially treacherous because fee-paid, Judge.
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  • 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: [4 Jan y 1807 Scotch Reform │ │ To]
    Description: 4 Jan y 1807

    Scotch Reform │ │ To L d Grenville

    III Facienda

    Codification

    (3. The third proposition is - that) (except what depends - not on the state of intellectual but on that of the moral faculty /upon intellectual but upon moral causes/) the only real; security that can be given against misdecision on the ground of law - is an operation altogether different from the creation and preservation of those forms by which the technical is distinguished from the natural system of procedure, viz: the giving to the rule of action a real instead of an imaginary existence: the putting not merely the law of procedure the adjective branch of the law but he substantive branch, for that is the branch in operation for this purpose - the putting it throughout into the state of real law, instead of that state of sham law in which so large a part of it remains at present. The perpetual danger of misdecision - or rather the utter /perpetual/ absence of right decision, for where there is not subject /object/ of /for/ adaptation there can be no aptitude proceeds from this - viz: that the rule of action having no determinable assignable words for the expression of it has in fact no existence. The Judge on each occasion feigns a law - acts, decides, as if there were a law to such or such an effect - to an /the/ effect expressible by such and such words - but neither in these words - nor in any other determinable assignable words - has any law been ever made by any body - not by any Judge no Judge so much as pretends ever to make any the least article of law: not by any legislator for if there had been there would have existed in the subject - to the effect in question a portion of real law - thus would not have been either room or pretence for feigning one.
  • Title: [15 Mar 1803 Procedure & Evidence]
    Description: 15 Mar 1803

    Procedure & Evidence

    Introd. Ch.3

    2 d[?]

    Ends

    Ends in general

     Abridge this for Evidence? leaving it at length for Procedure?

    Ch.3. Ends of Procedure, of Evidence included

    In a work which is already before the public, a necessary distinction has been brought to view - the distinction between the substantive branch of any body of law and the adjective branch: /+a term employed to direct[?] the aggregate mass of the laws or regulations appertaining to the subject of procedure/ Adjective was a term chosen /The term adjective was chosen/ to express the sort of relation borne by the laws belonging to that branch to the laws belonging to the other branch: the laws have termed /designated under the name of/ adjective being as incapable of existing either in reality or so much as in conception or being so much as conceived without the laws termed substantive, as in grammar the species of noun called adjective is without the support of the other species of noun termed substantive.

    /How diversified soever/ Of the laws belonging to the substantive branch howsoever may be in other respects diversified, thus much may be predicated of them in common that they consist in the delivery of certain predictions. (a) Thee laws belonging to the adjective branch - the laws of procedure have or ought to have this one function [...?] and object in view in common:- viz: the giving fulfilment - accomplishment to the several predictions delivered in and by the laws belonging to the substantive branch.

    (a) Not to [...?] this in [...?] of non-[...?]