date

11 May 1808 I. Reasons Ch.IV
11 May 1808

I. Reasons

Ch.IV. Homologation necessary

§.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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  • Title: [11[?] May 1808 I. Reasons Ch]
    Description: 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.
  • Title: [11 May 1808 I. Reasons Ch.IV]
    Description: 11 May 1808

    I. Reasons

    Ch.IV. Homologation necessary

    §.1.

    But it is by the system of pleading that these questions are thus predetermined: it is by a system of pleading constructed in the English plan, in a word, it is by the English system of pleading that those desired effects, in the degree in which they are seen to have place, have been produced.} and the English system of pleading, it has been shewn, is essentially inapplicable to the substantive branch of Scotch law. By the English system of pleading effect and execution is given, day by day, to that body of law of which itself has been productive, and of which it giving execution and effect to it, it supposes the existence. It is impossible for it to give execution and effect to a different body of substantive law in any respect different, and such is the existing body of Scotch law, the body of law for which execution and effect is sought to be obtained by means so perfectly repugnant and inapplicable.

    The employment [of] Jury Trial, it seems to have been thought, need not be left to depend upon the pleasure of the Judge. It may be made matter of duty to him to employ it as often as required by all the parties, by all the parties on either side of the cause, or even by any one of the parties.

    Yes so it may: provided that the questions which the Jury shall have to try be already predetermined: such in English law they are: but such in Scotch law they are not.
  • 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.