9 May 1808

I. Reasons

Ch.II

§.2.

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.