date

Aug 1806 Scotch Reform Facienda
Aug 1806

Scotch Reform

Facienda

Power of Deputation

The office of Judge Depute would be a sort of School of probation in which gentlemen and especially young gentlemen would be glad to distinguish themselves, and afford each of them an experiential proof of his fitness for a permanent and profitable situation in the same honourable line of reason. I understand that the reasonableness of this expectation has actually been exemplified in the London Police Offices.

The Benches might then be filled in part if not in the whole with men brought up ab initio in the pure love of justice instead of the indiscriminate defence of right and wrong followed by that line of injustice which is inseparable from the habit of profiting from it.

Already provided with a system of local /[...?]/ Courts capable of doing what Criminal Courts profess to do but never have done nor can do, giving /rendering/ to each more justice at his own home, the field of judicature in Scotland saw the germ of perfection already planted in it. She has preserved the practice [...?] which England has so long lost.

Appeal from the local Courts to a Metropolitan Court after final judgement but not before. No Advocation suspension &c

Appeals for delay obviated by the means mentioned above.
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    To qualify it for the administration of justice on the natural system the judicial establishment is already and still in possession of an essential feature, which the English one had, but for ages has been deprived of: a system of Courts spread over the whole kingdom, each of them with a geographical field of jurisdiction generally of such moderate extent as to suit the pursuit[?] or personal appearance: viz. not so great but that the suitor whose abode is furthest distant from the seat of judicature, may by travelling early and late pay his attendance there without sleeping out of his own house: I speak of the Sheriff's Courts The existing system of Sheriff's Courts, my Lord is the system I have in view.

    Here then the main difficulty - and that which in England would form an objection truly formidable, is already overcome: what may be considered as the building, and more than the shell of the building is already in existence: what remains to be done is no more than fitting up: fitting up in the modern stile /taste/, which is but the primaeval stile /taste/ restored.

    For these 35 years at least my Lord have I been envying Scotland her Sheriff's Courts: looking back with regret not certainly[?] over many other accounts, but most sincerely on this[?] - at those times when in England every shire contained its Sheriff's Court, with the Sheriff and Bishop sitting in it.

    In the 30 th Report of the Committee on Finance A o 1798 (App A.7) I observe a list of Sheriff's Depute 27 in number in some of the instances the senior person named as Sheriff of two Shires: this therefore I presume to be the number of Sheriff's Courts.
  • Title: [28 July 1806 Scotch Reform]
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    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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    II Inspectors Functions

    1. Inspector General's Functions -

    1. To receive as well from the Metropolitan as from the several Provincial Courts of those several Registration Books; above spoken of: and to propose, and annually to publish a digest or Abstract of the whole.

    2. To watch over /see to/ and endeavour to preserve the conformity of the (practice and) decisions of each Court with relation to the tenor of the substantive branch of the law: and to this purpose to make note of and report whatsoever may present itself to his view in the character /as amounting to/ of a departure /discrepance/.

    3. To see to the conformity of the practice of each Court to the spirit and tenor of the adjective branch of the law - the law of procedure: and at the same time to the uniformity of such practice as between Court and Court, in those /even in such/ particulars in which, under the [...?] expressly given or implicitly allowed /given/ a mutual discrepancy might take place without any departure from /disconformity to/ the tenor of the law: due regard being at the same time had to the diversity that may be rendered requisite by local circumstances.

    4. To note and report any thing that upon the face of the Registers or even upon representation an extra duly authenticated, may appear to have been in the conduct or discourse of any of the Judges of the several Courts or their respective subordinates.