377 means of knowing with any degree of certainty that they have been treated in an illegal manner; thus would a kind of arms be put into the hands of a few individuals which they might wield at pleasure, to the great annoyance of their neighbours and to their own private emo.. lument; and though at the first they might not perfectly know how to avail themselves of all the advantages these arms afforded them over the defenceless persons subjected to their sway, yet they would learn by degrees to use them with dexterity.

The

To guard against this irresistible power, no other means of defence would remain but to give this fierce Cerberus a sop, and take care never to irritate him. farmer who was careful to please, by sending to him opportunely, a fat goose or turkey, a pair of fine capons, a nice pig, or such articles, would be sure to find his rate properly moderated; and he who dared to dispute the will of this parish despot would be sure to feel the effects of his indignation by an exaggerated assessment.

Such are the natural, and indeed the unavoidable consequences of attempting to give force to laws that enable any man, or body of men, by the aid of public money entrusted under their management, to cope with individuals, even where the law is clear and definite; but where the laws are intricate, perplexed and contradictory, it gives such infinite room for the wranglings of lawyers when liberally paid, that there would be no possibility of ever clearing up any point whatever. No resource therefore remains but boldly to cut, instead of attempting to untie this Gordian knot, and decidedly to sweep way at once all these crude statutes as dead and useless lumber, which having been allowed already to sleep, many of them for more than 200 years, can VOL. Xviii.

BBB

be viewed in no other light by every considerate person than as long since enterely dead, in the legal sense of that word.

Had opportunity permitted, I intended to have made some remarks on the proper management of the poor in towns; the only case, that the natives of Scotland have not been able hitherto to manage properly; from which circumstance, some temptation has been given to suspect that a poor's rate might, in some situations, be necessary: And farther, to fhow that this is an evil that admits of a much easier cure than that which has been proposed: But circumstances do not permit me at present, to enter into this discussion. Should this work ever be resumed it may

then be done.

To conclude. Nothing but a deep sense of the great importance of a due knowledge of this very intricate subject by the people at large in this country, to its future prosperity and well being,and a desire to fulfil the engagements I had come under to my readers, could have induced me to enter with so much precision, on the investigation of this subject. I have done it with fidelity; and I trust that those who fhall go over the same ground after me will find it has been done with all the accuracy that the limits, which I had prescribed to myself would permit, I bequeath this investigation as a legacy to my countrymen, that when I am gone, it may remain as a slight memorial to show, that I have not lived entirely in vain, Dec. 27th. 1793

J. A.

ON THE DELAYS INCIDENT TO THE COURT

OF SESSION.

Continued from p. 310.

To the Lord President of the Court of Session.

MY LORD.

LETTER XIII.

THE justice of Sir William Blackstone's observations must be obvious to any person who has ever seen the two modes of adducing evidence by witnesses. The one which he calls the private and secret examination taken down before an officer or his clerk, is in daily observance among us; and of the other, the open English mode, we have frequent examples in our own criminal procedure where the very method so justly celebrated, is exactly followed.

I am satisfied it would be highly beneficial to us to adopt the same plan of examining witnefses in our civil causes, and if it were confined to the mere establishing of disputed facts the change would neither be difficult nor hazardous.

The judges who hold our circuit courts, or justice aires, are all of them lords of Sefsion as well as justiciary, and so judges in the supreme civil as well as criminal court. They are accustomed to the taking of evidence in that manner, and are in the habit of summing up evidence and drawing the attention of the jury to the real merits of the case before them. Indeed scarcely a point of law or practice can occur for which they have not a precedent, in our own civil or criminal proceedings.

Jan. 21. Even their clerk is always conversant in civil as well as criminal matters; and not a macer or inferior officer of court is wanting to them; So that for the proving of facts by the verdict of a jury, we have nothing to borrow, nothing to adopt, even from the admirable system of the law of England; and no new establishment to form for creating expence to government, or occasioning embarrassment or inconveniency of any sort to ourselves; unless perhaps detaining at the circuit towns for a few days longer, the judges and juries already afsembled there.

appear

be

*

When a proof is once allowed by the lord ordithe witnefses might be cited to nary, fore the ensuing circuit court of that district; and being there examined in presence of the judges and jury, the jury could (from their own notes, and without having the evidence taken down in writing) return a verdict of proved or not proved on each different point of fact remitted to their cogniznace; which verdict would of course be recorded by the clerk, and the case remitted by the judges back to the lord ordinary by whom the proof was granted.

At present the a legations of parties are vague and often extremely artful. They take in a large field, so as to comprehend the chance of profiting either by any defect in the adversary's proof, or by any dark or dubious exprefsions in a party's on proof, that can readily be twisted by him to his own advantage.

But parties would not have the same temptation to practise this kind of refinement and stratagem, if they

*It might easily be so appointed by act of parliament; and letters of first and second diligence might be granted both together, so as not only to cite the witnesses, but at once compel them to appear.

38 knew that the verdict of a jury, was to fix unalterably all the disputed facts in the cause. And still further to prevent any degrading practices and to bring the parties to an issue on the several points affirmed on the one hand, and denied on the other, the judge might, by a special interlocutor, ascertain what the different averments of parties were, before sending the cause to proof. When a party offers a proof by witnefses, and when such a proof is relevant, he is uniformly ordained to give in a condesandence, or specification of the facts he undertakes to prove, which condescendence is alwaysfollowed with answers, and these generally with replies and duplies. This practise would still be followed; and upon advising the whole, the lord ordinary might find it is averred by the pursuer, that so and so is the case, which is d nied by the defender, and the defender averrs so, and so, on the contrary. As also, that so and so, is further averred by the pursuer; and so furth.

The efsence of the relevant allegations of parties might be thus comprised in a few sentences. And when either party was difsatisfied with the lord ordinary's finding in those respects, such party might represent to his lordship, or, if necessary, might reclaim to the court.

But in all cases I submit to your lordship that there ought to be a final interlocutor, fixing the precise points to be proved pro and con, before a proof is allowed, so as the jury may be able to confine their verdict to those facts remitted to them, and such relative facts as have an im mediate and plain tendency to establish the same thing.'

For the sake of informing the judges and jury on the subject of the proof allowed, the act and commission ought to be printed, and copies of it distributed to them in due time before leading the proof. By this means, and by the previous explanations of counsel, who will no doubt he'