date

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

I. Reasons

Ch.II

§.2.

Upon the whole

1. Where a body of substantive law is in the state of written law, without any corresponding body of formularies of procedure, a system of formularies may at any time, in some way or other, be moulded upon it.

2. But if both may be made to the best advantage it is necessary that both should be fashioned by the same hand at the same time.

3. Under a system of substantive law, grown up in the main in the state of unwritten law, with only here and there a patch, in the state of written law, between the substantive law, on the one part, and the body of formularies on the other, be they both of them in ever so bad a state, there can not be any repugnancy: since it is from and by the body of formularies that the body of substantive law originally received and continues to possess whatever sort and degree of existence it is capable of.

4. But, suppose out of the body of formularies, or in any other way, a body of substantive law regarded as compleat, has received, in any country, in the stock of unwritten law that sort and degree of existence which law in that state is capable of: and suppose that, in the view of meliorating that system of which the body of formularies constitutes a part - viz. the system of procedure, a proposal be made to engraft upon that body of substantive law by means of a system of formularies and in particular a system of instruments of demand and defence, borrowed from another country in which the body of substantive law is in every part of its extent widely different: the body of formularies involving in essence and of necessity carrying with it a correspondent body of substantive law, the result would evidently be two repugnant rules of action, from the conflict between which nothing better than perpetual confusion and uncertainty could ensue. Such, as will be seen more particularly would be the result of the attempt to graft Jury trial, coupled with the body of formularies, with which it is so intimately connected upon a body of substantive law, not prepared for the reception of it.
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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.

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

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    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.

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    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.