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.