date

11[?] May 1808 I. Reasons Ch
11[?] May 1808

I. Reasons

Ch.IV. Homologation necessary

§.1.

Ch. IV. The English system of pleading being inapplicable to Scotch Law, Jury Trial can not to any considerable extent §.1. or advantage [be] introduced into Scottish procedure, otherwise than by putting the body of the law into a written state, adapted to that purpose.

1. In Scotland the thinking part of the people, not being satisfied with the existing system of procedure, wish for a different one: that other and better system they expect to find in that of which Jury trial forms a part.

2. The advantages Scotch men look for in Jury trial seem to be as follows, 1. a judicatory in the composition of which an assembly of Judges not permanent but ever changing constitutes an indispensable part: 2. a mode of taking proof by which[?] that particular operation shall in point of time be reduced within that limited compass within which it is reduced by the practice in Jury trial: 3. for a basis to such limited mode of proof a system of pleading subjected in respect of number of words and length of time occupied by it to correspondent limitation: and, a similar correspondent limitation given to the length of the whole suit or cause of which the hearing that takes place before that judicatory constitutes the leading and characteristic part.

3. Of these advantages, the three latter are in the nature of the case altogether independent of the composition of the judicatory: it is by accident only they have become connected with it: with still greater facility they might be had without it. Under a single Judge, and he a permanent one, the time occupied in taking proof might be subjected to exactly the same limitation: to the system of pleading the same length of paper and time might be allotted, or, in general, with much greater advantage in respect of the ends of justice a much less length, especially of time to the duration of the whole cause exactly the same length or in by far the greater number of causes individually taken much less than a hundredth part of it.
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    §.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.
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    In a few instances (say an Admiralty cause) the Jury judicatory might not be so proper:- but in none could there be less demand for regular instruments of demand & defence.

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    1. Factitious and useless delay, vexation and expence to the parties. And note, that though of the delay vexation and expence with which Jury trial is under the existing system circumstanced, by far the greater part is factitious and consequently removable, yet of each there is no inconsiderable part that is natural and unremovable.

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