24 April 1808

Reasons for the Work

6. The designation which is the instrument of demand is given of the service demanded, and if the efficient cause of the right to such service being thus imperfect, thus incorrect, incompleat, and fallacious, the designation which, in the instrument of defence is given of the nature of the defence, is, as naturally it would be, at least equally so.

Suits vastly more in number are carried on by the mode of pleading called general pleas, than by the mode called special. But to meet all the diversifications incident to the nature and grounds of the instrument of demand, followed by all the diversifications incident to the nature and grounds of the defence, the whole stock of established formularies afford no more than five or six different instruments of defence, under the name of General Issues, and of these not more than │ │ are much in ordinary use.

7. In the construction of his instruments of demand, among the points of caution observed by a draughtsman, duly attentive to what is at the same time really useful and practicable in the way of precision, will be that of any such mode or degree of precision and determinateness (of certainty to use the technical word) as the nature of the case does not admitt of.

In the English system, the erroneous assumption of the necessity of a degree of determinateness which not being practicable can not be necessary, has been productive of a mass of falshood and absurdity the enormity of which, as might naturally be expected, seems but to have endeared it the more respectable in the eyes of professors {those whose profit and scientific reputation are attached to it}.

Many are the instances in which antecedently to the examination of the evidence it will be impossible to say with any sufficient assurance in which of a multitude of ways, sometimes as far as half a dozen or more, an event took place. As often as this is the case, truth and common sense require that the fact should be stated in the disjunctive mode of statement. Falshood and Common law have in cases of this description, preferred the cumulative mode of statement, giving to the case such a mode of designation as gives to understand either that a fact which (though it might have happened in any one of all those ways could not have happened in more than one) happened in each and every one, or that half a dozen such facts took place when in truth there was but one (a). In Mr Leach, Crown Cases may be seen as instances where as an instrument of demand in private (an indictment of murder, an allegation intimating that the same man was killed twice over received the sanction of the Judges.

( ) Non assumpsit, Not[?] Guilty, Nil debit.