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.