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.