date

28 July 1806 Scotch Reform
28 July 1806

Scotch Reform

Facienda

3. Of the great Courts to be built out of the materials of the existing Court of Session, one to be a Court of Natural Procedure: judging as fully explained in the Appendix on Courts, in the manner of the Scotch Small Debts Courts, the English Courts of Conscience; in criminali[?] in the manner of a Justice of Peace acting out of General Sessions.

Yet a Court of Natural Procedure permitt in, my Lords to call only that characteristic name.

Already does Scotland throughout her whole extent enjoy the benefit of those Courts: the features of natural procedure with little exception, the ruling features[?]: parties essentially present, each examining the other, (each speaking from first to last on oath) lawyers essentially absent: causes of all sorts cognizable without exception, so as the value in demand exceed not /demand of money or moneys worth/ ,5. No written allegations not upon oath, not subject to cross-examination in a word no pleadings as in England.

So good this already much as it still falls short of what might be done in the same spirit, that Scotland, notwithstanding that load of abuse which is now calling and waiting for a remedy may still be regarded by England with just envy[?]: for the outlawry under which the great majority of the good people of England are born and die, has actually for those four years been revised in Scotland.
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    That it will not answer in any considerable degree the purpose which the interest of the people /the ends of justice/ to the quality[?] /character/ of suitors require to be answered may be affirmed with equal confidence.

    The sort of work [...?] were it a compleat system of procedure covering /at the same time/ in [...?] what to[?] whole of the field of judicature and the whole collection[?] /entire assemblings/ of the judicatures that are at work upon it, were[?] then it would be imperfect and in such sort imperfect as to be incapable of answering to any considerable degree of perfection its /professedly[?]/ intended purpose. But it does no such thing: for if the existing sorts /shapes/ of judicatures existing and habitually at work in Scotland it omitts more than it includes.

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    10

    Resolut. 14

    Be pleased, my Lord, to observe, that it is only in case of malâ fides in the part of the Judge, that the danger of injustice from this arrangement can with reason be claimed /set down as/ the amount to any thing. For suppose danger of misdecision only simple misdecision, from malâ fides, the Judge below may be tempted, supposing the power given him for taking [...?] measures of precaution as in case /the event/ of misdecision, so pronounced by the Court above, shall prevent the mischief from being irreparable.

    I find some difficulty in conceiving that Court of justice, be the Judge ever so mean and ignorant, on whose part such malâ fides can with consistency be presumed. At any rate, of no Court can it be presumed but of that of the very lowest and least trustworthy class, whatsoever that be.

    But in Scotland - in the Court of Session, my Lord? In England, in any one of the Great Courts in Westminster Hall is the supposition of that sort and degree of untrustworthiness for a single moment so much as endurable.