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24 April 1808 Reasons for the Work
24 April 1808

Reasons for the Work

Thus the imperfections in the English System, though so much better than the Scotch.

5. By an exertion of power, causeless upon the face of it the defendant is in general placed in that distressing condition, by means of the instrument called a writ, without the plaintiff's having given in any designation of the efficient cause of his supposed right to the service demanded at the charge of the defendant, and even without any designation given so much as of the nature of that service. For anterior to the Enforcement of demand called the Declaration comes the Writ

(a): an order signed by the Judge, which gives no designation other than a false one of its own object, but of which the effect is to compel the defendant, on pain of an indefinable mass of punishment, to employ an Attorney to go through the form of litigation in his, the Defendant's name, and at his expence.

The consequence is that it is just as easy for a man to commence one action without right as with right: to employ the hand of justice for the purpose of oppression, or extortion, or for the ruin of rival prosperity, as for the giving effect to his own just rights, or for the procuring due satisfaction for a wrong which he has sustained. To p. 5

From p. 6

9. With all these imperfections under the English system of pleading there exists a mass of cases, and to a vast extent, to which the regular and established forms do not extend. Under this description comes all cases which admitt of the sort of pleading called Special Pleadings.

10. So all cases in which the service demanded by the plaintiff is not rendered by any other sort of judicatory than without the assistance of a Court of Equity.

12. Not to speak of the cases which are understood to belong to the jurisdiction of the judicatories called Spiritual Courts.

13 - and to judicatories called Admiralty Courts,

11. So in the various species of Motive Causes: in which the cause takes its commencement in a speech made by an Advocate in open Court, grounded on evidence delivered in the shape of Affidavit evidence.

(a) This supposes the Writ to be of the kind called judicial, as it is in most instances.
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  • Title: [24 April 1808 Reasons for the Work]
    Description: 24 April 1808

    Reasons for the Work

    Imperfections attached to the system of pleading, in the case where the rule of action has been constructed under the dimension of jurisprudential law -

    1. In the instrument of demand ought, as above observed, to be in every case included not only a precise designation of the demand itself i.e. of the service demanded at the hands of the Judge, but also a designation of the ground of the demand in point of right: viz. of the matter of fact relied on in the character of a collative event, an efficient cause of the right; and of the portion of law relied on as having invested it with that character.

    In respect of this compleatness and correctness the following imperfections are observable, each to a greater or less extent.

    1. Of the service demanded no sufficiently clear designation given: viz. matters[?] for the use of the defendant, that he may know whether to make defence or no, and if yes, what defence: nor for the use of the Judge, that he may know what precise shape to give to the service demanded at his hands. a

    2. Of the ground of demand, i.e. the efficient cause of the right demanded - {if the inconsummate right the consummation of which is demanded, is of the right to call for the consummation of it,} no sufficiently correct or no compleat designation given. (b)

    3. Of the service demanded a designation notoriously false is regularly given: (c) and thus, without necessity, or so much as the smallest use, a sanction and currency is given to the notion that falshood, the deadly [...?] is the necessary food of justice: as if it were impossible that judicature should be administered, or at least well administered, but upon false pretences.

    4. So of the efficient cause of right or title (d)

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  • Title: [30 April 1808 J.B. to H of Commons]
    Description: 30 April 1808

    J.B. to H of Commons

    1. Reasons for the Work

    ยง English pleadings inapplicable to Scotland

    4. The nature of the service demanded not designated {In the common intercourse between man and man it would be apt to be regarded as a mark of imbecillity, if one man wanting something of another, were not to give any tolerably intelligible account of the object of his desire. In common law this imbecillity becomes matter of science or the fruits of it becomes as[?] an object of veneration as forming part and parcel of the matter of the science.}

    5. Of the services which under the head of satisfaction as for wrong a plaintiff is liable to have need to demand at the hands of the Judge, those in principal use are as follows:

    1. Delivery of an individual thing of the class of things moveable.

    2. Delivery of a specific thing of the class of things immoveable.

    3. Delivery of sufficient security for specific services of any description to be rendered by the defendant to the plaintiff.

    4. Rendering of that particular species of service which is in most general demand, and which consists in the payment of a sum of money to this or that amount.

    6. In the case of an individual thing moveable, in the designation of the service demanded will be included the designation of the thing which is the object of the demand.

    In strictness of speech the English system of pleading can not be chargeable with imperfection on this head. The law does not in fact so much as undertake to render satisfaction in any such shape: it does not either command or authorize the Judge to render any such service. If in the catalogue of things moveable lying within the jurisdiction of English Judges a man were to look for the objects of property in respect of which the common law of England affords its protection to the proprietor, he would look for them in vain.

    Subject to limitation in a great extent, the Courts called Equity Courts do, it is true, hold out against a wrong of this description - a remedy so disadvantageous as to be scarcely ever sought.
  • Title: [24 April 1808 Reasons for the Work]
    Description: 24 April 1808

    Reasons for the Work

    But in regard to the communications above mentioned viz. the designation of the service demanded, and that of the efficient cause of the right to such service, the application of instruments of demand expressed by pre-established forms is not either in point of propriety or practicability confined to the cases that happen to have been covered by the already established forms more than to any of those to which that sort of covering happens not to have been extended.

    In the substantive part of the rule of action the demand for these notifications is in point of reason and utility and practicability all-pervading: pervading in its whole extent the field of law.

    So likewise in the system of pleading is the demand for the corresponding notifications to be conveyed in every instance by the instrument of demand.