date

22 April 1808 Reasons for the Work
22 April 1808

Reasons for the Work

 Note the difference between, ground of demand where it means the words of a Statute, and d o where it means a collative event.

3. In this case the exercise of the function attached in the first instance to the plaintiff's side of the suit, the function, by the exercise of which the suit is, or might be, and generally speaking might with advantage be, commenced, is not attended with any natural difficulty: the foundation of such his right (his right to demand the service in question) being composed of a determinate assemblage of words, contained in a determinate part of a determinate written instrument, this assemblage of words constitutes the ground, on point[?] of law, and that a real ground, of the demand so made by him.

In Scottish as well as English law, thus simple is the case where the demand and thence the instrument of demand, whether called action, indictment, declaration, summons, petition or libel, has for its foundation a portion, or clause as it is called in some Statute.

In this case, with more or less correctness and compleatness, the instrument of demand, as thus described, grounds itself upon persons, and adopts by repetition or reference, the words of which the portion of law or clause abovementioned is composed. In so far as the law is in this state, such adoption is made, or at any rate might be made, without difficulty. Each such portion or clause is, or might be framed, with a view to the corresponding instrument of demand destined, upon occasion, to be grounded upon it: in each case the instrument of demand is enabled, or might be enabled, to find the correspondent portion or clause of law (substantive law) pre-arranged in such manner as to afford an apt and sufficient basis to it.
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    Reasons for the Work

    (A) Reasons, designed to shew the practicability as well as the utility of the measure of framing a body of statutory law, so far forth compleat as to serve as a basis and standard of reference to a compleat system of pleading.

    1. When, under the name of an action, an indictment, or any other, a demand is made at the hands of any person in the character of a Judge, by any person in the character of a plaintiff, praying at the hands of such Judge a service of such or such a description, to be rendered to him the plaintiff, at the charge of some other person, in the character of defendant, this demand has for its foundation, expressed or implied, some portion or rule of law, real or imaginary, referred to in the way of reference, express or implied, as having afforded to him, the plaintiff, a right or title to such service.

    From p. *1

    2. If that part of the rule of action to which such reference is thus made be already in the state of statutory law, this foundation so referred to, this portion or rule of law has a real existence: and being expressed by a determinate assemblage of words, to which in a determinate place, on[?] a determinate point of time, the force of law was given by the legitimate legislator, viz. by a person or persons recognized by the body of the community in question as possessing authority and power applicable to that purpose, that assemblage of words forming part and parcel of a written instrument (commonly since the invention of printing rendered public by the operation of the press) may be, and commonly is designated by a designation made of the place it occupies in the entire instrument of which it forms a part.
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    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.

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    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.
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