6 April 1808

Letter V

Ch.3. diver[...?]

16. In regard to pleading - forms of pleading - in his original Bill the learned scribe had reserved this part of the field of legislation as a peculiar for the Court of Session. The inefficacy if when self-made and self-binding and consequently unbinding ordinances /regulations/ in this head had been established by the one[?] experience of more than twenty years. /+/ In his amended Bill [...?] the exercise of their [...?] in the hands of the Court provisional only, as in the other parts of the field, he adds this set[?]/part to the field of authority given to the Commissioners: charging them to "repeat in what manner the form of process and that Court (viz. the Court of Sessions, but in that Court only) might be improved by conducting more of the pleadings " viva voce"

In my view of the matter, this is as if in the creation of the superstructure an architect were to recommend the endeavour to imply particular sort of material in preference to another, but without any such corruption as that in either case than can be [...?] use in its having a foundation on which to rest. What /That which/ the clause in question calls /appears to call/ for at the hands of the Commissioners the clause in question calls /appears to call/ for /For what at least it must be understood to call for if it be understood to amount to any thing is/ is a system of pleading: and this to be conceived /expressed/ in terminus. But a system of pleading conceived /expressed/ in terminus supposes the existence of a body of substantive law conceived in terminus. In the case where an action is grounded in a statute this supposition is true: where it is grounded in jurisprudential commonly called common law it is a fiction. A system of pleading can not therefore be framed, but that a correspondent system of substantive law in terminus must either have /has/ been previously /already/ framed and [...?], or be /is/ implied: continued[?] by implication in the system of pleadings, thus supposed to be framed in terminus. But if in this medieval[?] and obscure way it be possible to frame a system of substantive law, it is equally possible and still /much/ more easy to frame it in a direct and clear way. /If not done directly, it will be done indirectly: but direct is easier./ By means of a scaffolding it may be not impossible to begin a house at the roof: but to begin with the foundation being the most direct and easiest course is the course commonly pursued /in pursuance/. To show the impossibility of applying to the [...?] in question any effectual [...?] if without framing a system of pleadings, and to show the impossibility of framing a system of pleadings: for the [...?] without framing a correspondent system of substantive law, viz. by convesting[?] so much of te rule of action from the form of jurisprudential [...?] the from of statute law, will to be the object of another Chapter. /Ch. │ │ The Substantive law [...?] branch /homologated[?]/ of the law in the statute form is a necessary basis to a system of pleading./