date

9 May 1808 I. Reasons Ch.II
9 May 1808

I. Reasons

Ch.II. Law & Pleadings simul facile

§.1. Simul facile erunt sub lege

1. Instrument of demand must be adapted to subst. law.

2. Substant. law must be adapted to instrument of demand.

3. Titles and countertitles must be provided in Code with short names, by which they may be designated in the Formulary.

4. To encrease the conformity, legislator ought to draw up the instruments.

Ch.II. Substantive Law and Instruments of Pleading ought to be worked up together.

§.1. Correspondency of which they are susceptible to be given to them under Statutory law.

1. Suppose, in any part of the field of law, a portion of substantive law already created, a portion of law conferring on persons of such or such a description a certain mass of rights, in the event of their having to produce in their favour a sufficient title to those {rights, the effect of such positive title not being destroyed by any negative one}, an instrument of demand, will, if it be adapted to its purposes as above delineated + should, it is evident, be made exactly comparable to the correspondent portion of substantive law. On this, as on all other occasions this title he makes must include a positive part and a negative part: in making out the positive part he must assert the existence in his favour of some one at least in the list of causes creative of title established in that character in the corresponding part of the Code: to assist the negative part he must deny the existence of every article on the list of causes destructive of title established in the Code in that character.

2. This rule is of course pursued in a certain degree, though in a manner far from being the most commodious, in English practice. Where an Action is grounded on a particular Statute, in the instrument of demand, called here the declaration, reference is made to the statute: where an Indictment is grounded on a Statute, as the instrument of demand called here the Indictment, reference is also made to the Statute: and in both cases not only a designation is given of the corresponding portion of substantive law in which the demand thus grounds itself is required to be given and given accordingly, but between the wording of the text of the law and the wording of the instrument of demand a certain mode and degree of conformity is exacted[?], a negation being put upon the demand, put by the Judge, in case of failure.

+ Ch.I. §.2.
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    3. Necessary as is this mode of adaptation it is not yet sufficient. To be sufficient, the adaptation must be reciprocal. Correctly, compleatly and clearly designated in the lines[?] of the instrument, the tenor of the substantive law will not naturally be in any part of the field of law, certainly will not throughout its whole expanse, unless the text destined to be perpetually referred to be framed with one express view to its being made the subject of such reference.

    4. One short illustration will supersede the need of more.

    To constitute a sufficient ground for the demand, the existence of some one at least of the causes creative of title must be affirmed, and that of all causes destructive of title, denied, and this in the tenor of an instrument. But to render all these propositions capable of being brought within the compass of a single instrument, and that instrument of such moderate length as shall be not inapplicable to demands of the lowest rank any more than to those of the highest on the scale of importance, it would be necessary that for every article in each of the two opposite lists - causes creative, and causes destructive of title - denomination should have been provided: denomination which if not in every instance comprized within the compass of a single word, may at any rate be comprized within the compass of that sort of clause, which is not too long and complex to perform the office of a noun substantive in the composition of a grammatical sentence. (a)

    (a) Examples of Titles from Blackstone Counter title from lawyers.
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    §.2. Correspondency, what naturally has place between them, of which they are susceptible under Unwritten law.

    1. In the region of unwritten law, every thing is unreal, imaginary, fictitious, delusive - the words, the penman, the place, the time - every thing.

    The substantive branch of the law has no determinate words, no avowed author, was made at no assignable place, at no assignable point of time. The foundation of the demand, in so far as laid by substantive law, having no form, no existence: it is impossible that any instrument of demand should be moulded on it: a mass of sculptured drapery can not be cast or fitted upon a Shadow.

    2. But though between two objects, one of them, viz. the instrument on good occasions at least, ideal, the other the portion of substantive law compleatly so, no written[?] well-tempered harmony, no close fitting, nothing like correct, compleat and mutual adaptation can take place, yet so far as the nature of the objects admitts, a sort of correspondancy is not altogether wanting.
  • Title: [9 May 1808 I. Reasons Ch.II]
    Description: 9 May 1808

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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.