date

9 May 1808 I. Reason Ch.II
9 May 1808

I. Reason

Ch.II. Law & Pleadings simul [...?]

§.2. Simul facile erunt sub lege

7. The circumstances by which individual objects are characterized and distinguished are mostly out of the reach of the legislators eye. It is not possible therefore that of the words requisite for the composition of any such formulary - of an instrument of demand in any case - or of the correspondent instrument of defence, the whole assemblage should have been chosen by his hands. But for this exigence there exists a well known and, in experience, sufficient remedy: which is, for the legislator to choose with his own hands all such words [as] are necessary to the designation of the genus of the object, leaving blanks for the reception of the words designative of individualizing circumstances, such as those of the individual person or persons, thing or things concerned on each individual occasion, together with the individual portions of space and time.

8. Such is the course taken by volunteer penmen, writing without authority: the authors of the numerous books with which the science swarms, under the name of books of practice.
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  • Title: [10 May 1808 I. Reasons Ch.II]
    Description: 10 May 1808

    I. Reasons

    Ch.II. Laws & Pleading simul [...?]

    §.2. Simul [...?] sub jure

    10. The formularies of pleading are not the only materials of which the sort of law so improperly called unwritten is distilled. Many are the decisions, and vast the masses of unwritten law which have had no such substantive grounds. Decl n.[?] of Judges, general propositions laid down, or supposed to have been, by Judges in the course of those arguments (statements made of the case - the intended decision and the considerations on which under the name of reasons it is grounded) by which the individual decision about to be pronounced in the individual case is preceded and justified, from another class, not to mention any more.

    But the formularies are, and are accordingly acknowledged to be, the best and surest. And why the surest? because they approach the nearest to the nature of statutory, called so improperly for the purpose of distinction, written law. In this case though the general rule has neither determinate words nor avowed author, yet the words after consideration of which the particular decision was framed, were many of them of a general cast: and these are a composition, of which not only the uncomissioned Author, but the commissioned and approving Receiver (I speak of the Judge by whom the instrument was deemed good in law) are frequently to be traced: and, on the inspection of any such formulary by laying out of consideration such of the words as are designative of the individualizing circumstances, a general rule may thus be deduced with much more facility and confidence, than from any supposed words of a supposed Judge, the authenticity, correctness and compleatness of which is assured by Judges, on evidence by much too weak to be regarded as admissible in any other case.

    Other materials, it can not be denied, are received into the work: general rules, for example, deduced from the above, by the authors of abridgments, and institutional books. But the above are the original sources and the others in proportion as the reservoirs they are drawn from stand farther of and farther from these original sources, lose more and more of their weight.
  • Title: [9 May 1808 Ch.II §.2. I. Reason]
    Description: 9 May 1808

    Ch.II §.2.

    I. Reason

    Ch.II. Law & Pleadings simul [...?]

    §.2. simul ficiat[?] sub jure

    §.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

    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.