date

28 April 1808 §.5. I. Reasons
28 April 1808

§.5.

I. Reasons for the Work

§.5. Demand supposes substantive law

§.5. Every instrument of demand requires for its basis a correspondent portion of substantive law to which, it ought to

be adjusted.

1. By §.1 art.3. the business and only object and use of a system of pleading, of which the instrument of demand is the first article is to give execution and effect to a corresponding mass of substantive law: {if no such portion of substantive law exists, the instrument of demand, and consequently whatsoever other [...?] it gives birth to in a consequent chain of allegations are without an object.}

The services which the plaintiff has a right to call upon the Judge to render to him upon demand, are three, and these alone, which the law has commanded or permitted him to render. The persons to whom the Judge is warranted in rendering any such service are those and those alone, to whom the law has commanded or permitted him to render it. The cases in which the Judge is warranted in rendering to such persons any such services, are those, and those alone, in which the supposed right of the person in question to demand the rendering of such service has an efficient cause of the number of those designated by the corresponding portion of the law.
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    3. In the case of written law, in the statutory form the portion of substantive law in question being the principal, the corresponding instrument belonging to it the accessory, the substantive law has in the first instance been framed at any rate, the instrument if framed at all by the same hand, cast upon it as upon a mould, afterwards.

    In the case of unwritten law, it is the instrument, in as far as any instrument can be said to have had existence, that has taken the lead: the instrument, on which every element approaching reality centers[?] having taken its fashion in the first instance, the corresponding portion of substantive law in that gasseous form of which alone in the state of unwritten law, the rule of action is susceptible, has, as it were by distillation, risen out of it.

    4. In one case an instrument of demand - a declaration, an indictment - having been presented to the Judge, and on the part of the defendant objected to, has by the Judge been pronounced wrong. Why wrong? because not conformable to that image of the corresponding portion of substantive law which the fancy of the Judge, operating upon such materials as he had found at hand, had framed for the purpose.

    In another case the instrument has been more fortunate: why? because no such ideal standard had been set up, or if any, the instrument was not found unconformable to it. The instrument having thus undergone the test, has been gathered up by some of those volunteer and uncommissioned hands, to whose unauthorized industry the unwritten law is in so considerable a degree indebted for its existence, and by them deposited in some corner of that immense repository which contains the materials out of which the commodity called unwritten law, when and in proportion as it is called for, is distilled for use.
  • Title: [28 April 1808 §. 5. I. Reasons]
    Description: 28 April 1808

    §. 5.

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    §.5. Demand supposes substantive law

    The demandant, in and by his instrument of demand, can no otherwise shew to the satisfaction of the Judge that the service which he demands as due to him at the hands of the Judge really is due to him in virtue of the correspondent portion of substantive law than by bringing it to view, viz. either by repetition in terminis[?], or at least by description and reference.

    On the conformity of the demand so made to the import of the portion of law on which the demand is grounded, depends the legality of the demand, the obligation, and even the right of the Judge to render the service so demanded at his hands. If in any material part the conformity fails, so does the right of the party to demand the service, so does the right of the Judge to render it.
  • Title: [28 April 1808 §. 6. I. Reasons]
    Description: 28 April 1808

    §. 6.

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    §.6. Legislator should frame demand

    §.6. It belongs to the legislator in every case to determine as far as may be the tenor, as well of the instrument of demand, as of the correspondent portion of substantive law in which the party's right to make the service demanded is grounded.

    1. By §. 5. art.│ │ the conformity of the instrument of demand to the correspondent portion of substantive law ought to be entire. It belongs therefore to the legislator in every case to do what depends upon himself to secure such conformity. But by no other means can he render such security so entire, as by fixing, by his own choice, the words of both.

    2. Of these words there are some which it is not possible for him to determine in every, nor so much as in any, individual instance. Those are all such words as are necessary to the characterizing of the individual case. But the impossibility he is under of performing this small part which is so easy to be performed by other hands affords no reason for his omitting to perform such parts as can not with equal security against failure be performed by any but his own.

     This prevents all nulliture[?]