being a feme-sole, is since married, or that she has given the defendant a release, and the like: here, if the defendant takes advantage of this new matter, as early as he possibly can, viz. at the day given for his next appearance, he is permitted to plead it in what is called a plea of puis darrein continuance, or since the last adjournment (2). For it would be [*317] unjust to exclude him *from the benefit of this new defence, which it was not in his power to make when he pleaded the former. But it is dangerous to rely on such a plea, without due consideration; for it confesses the matter which was before in dispute between the parties (e). And it is not allowed to be put in, if any continuance has intervened between the arising of this fresh matter and the pleading of it: for then the defendant is guilty of neglect, or laches, and is supposed to rely on the merits of his former plea. Also it is not allowed after a demurrer is determined, or verdict given; because the relief may be had in another way, namely, by writ of audita querela, of which hereafter. And these pleas Duis darrein continuance, when brought to a demurrer in law or issue of fact, shall be determined in like manner as other pleas.

We have said, that demurrers, or questions concerning the sufficiency o the matters alleged in the pleadings, are to be determined by the judges of the court, upon solemn argument by counsel on both sides, and to that end a demurrer-book is made up, containing all the proceedings at length, which are afterwards entered on record; and copies thereof, called paperbooks, are delivered to the judges to peruse (3). The record (f) is a histo ry of the most material proceedings in the cause entered on a parchment roll, and continued down to the present time; in which must be stated the original writ and summons, all the pleadings, the declaration, view or oyer prayed, the imparlances, plea, replication, rejoinder, continuances, and whatever farther proceedings have been had; all entered verbatim on the roll, and also the issue or demurrer, and joinder therein (4).

These were formerly all written, as indeed all public proceedings were, in Norman or law French, and even the arguments of the counsel and decisions of the court were in the same barbarous dialect. An evident and

shameful badge, it must be owned, of tyranny and foreign servi [*318] tude; being *introduced under the auspices of William the Norman, and his sons: whereby the ironical observation of the Ro man satirist came to be literally verified, that "Gallia causidicos docuet facunda Britannos (g)." This continued till the reign of Edward III.; who, having employed his arms successfully in subduing the crown of France, thought it unbeseeming the dignity of the victors to use any longer the language of a vanquished country. By a statute, therefore, passed in the thirty-sixth year of his reign (h), it was enacted, that for the future all pleas should be pleaded, shewn, defended, answered, debated, and judged in the English tongue; but be entered and enrolled in Latin. In like

(e) Cro. Eliz. 49.

(f) Appendix, No. II. 64. No. III. 6 6.

(2) This plea, though treated in some respects as a dilatory plea the court cannot refuse to receive, 2 Wils. 157. 3 T. R. 554. 1 Marsh. 280. 5 Taunt. 333. 1 Stark. 62; but it must be verified on oath before it is filed. Freem. 252. 1 Stra. 493. 2 Smith's Rep. 396. It may be pleaded at nisi prius as well as in bank; but cannot be amended after the asaizes are over. Yelv. 181. Freem. 252. Bul.

(g) Juv. xv. 111.
(h) c. 15.

N. P. 309. See further, 1 Chitty on Pl. 4 ed 569 to 573.

(3) The plaintiff, or his attorney, must de liver paper-books to the chief justice and se nior judge; and the defendant, or his atto ney, to the two other judges. R. M. 17 Car. I

(4) In New-York, the record, &c. may be on paper or parchment, and must be in E glish. 2 R. S. 275, 9.

manner as don Alonso X. king of Castile, (the great-grandfather of our Edward III.) obliged his subjects to use the Castilian tongue in all lega proceedings (i); and as, in 1286, the German language was established in the courts of the empire (k). And perhaps if our legislature had then directed that the writs themselves, which are mandates from the king to his subjects to perform certain acts, or to appear at certain places, should have been framed in the English language, according to the rule of our ancient law (), it had not been very improper. But the record or enrolment of those writs and the proceedings thereon, which was calculated for the benefit of posterity, was more serviceable (because more durable) in & dead and immutable language than in any flux or living one. The practisers, however, being used to the Norman language, and therefore imagining they could express their thoughts more aptly and more concisely in that than in any other, still continued to take their notes in law French: and of course, when those notes came to be published, under the denomi nation of reports, they were printed in that barbarous dialect; which, joined to the additional terrors of Gothic black letter, has occasioned many a student to throw away his Plowden and Littleton, without venturing to attack a page of them. And yet in reality, upon a nearer acquaintance, they would have found nothing very formidable in the language; which differs in its grammar and orthography as much from the [*319] modern French, as the diction of Chaucer and Gower does from that of Addison and Pope. Besides, as the English and Norman lan guages were concurrently used by our ancestors for several centuries to gether, the two idioms have naturally assimilated, and mutually borrowed from each other: for which reason the grammatical construction of each is so very much the same, that I apprehend an Englishman (with a week's preparation) would understand the laws of Normandy, collected in their grand coustumier, as well, if not better, than a Frenchman bred within the walls of Paris.

The Latin, which succeeded the French for the entry and enrolment of pleas, and which continued in use for four centuries, answers so nearly to the English (oftentimes word for word) that it is not at all surprising it should generally be imagined to be totally fabricated at home, with little more art or trouble, then by adding Roman terminations to English words. Whereas in reality it is a very universal dialect, spread throughout all Europe at the irruption of the northern nations, and particularly accommodated and moulded to answer all the purposes of the lawyers with a peculiar exactness and precision. This is principally owing to the simplicity, or (if the reader pleases) the poverty and baldness of its texture, calcuated to express the ideas of mankind just as they arise in the human mind, without any rhetorical flourishes, or perplexed ornaments of style. for it may be observed, that those laws and ordinances, of public as well as private communities, are generally the most easily understood, where strength and perspicuity, not harmony or elegance of expression, have been princi pally consulted in compiling them. These northern nations, or rather their legislators, though they resolved to make use of the Latin tongue in promulging their laws, as being more durable and more generally known to their conquered subjects than their own Teutonic dialects, yet (either through choice or necessity) have frequently intermixed therein some words

(1) Moa. Un. Hist. xx. 211.

'k) Ibr. xxix. 235.

VOL II.

35

() Mirr. c 4.3.

of a Gothic original, which is, more or less, the case in every coun [*320] ry *of Europe, and therefore not to be imputed as any peculiar blemish in our English legal latinity (m). The truth is, what is generally denominated law-latin is in reality a mere technical language, calculated for eternal duration, and easy to be apprehended both in present and future times; and on those accounts best suited to preserve those memorials which are intended for perpetual rules of action. The rude pyramids of Egypt have endured from the earliest ages, while the more modern and more elegant struc ures of Attica, Rome, and Palmyra, have sunk be

neath the stroke of time.

As to the objection of locking up the law in a strange and unknown tongue, that is of little weight with regard to records, which few have oc casion to read but such as do, or ought to, understand the rudiments of Latin. And besides it may be observed of the law-latin, as the very ingenious sir John Davis (n) observes of the law-french, "that it is so very easy to be learned, that the meanest wit that ever came to the study of the law doth come to understand it almost perfectly in ten days without a reader."

It is true indeed that the many terms of art, with which the law abounds, are sufficiently harsh when latinized (yet not more so then those of other sciences), and may, as Mr. Selden observes (0), give offence “u some grammarians of squeamish stomachs, who would rather choose to live in ignorance of things the most useful and important, than to have their delicate ears wounded by the use of a word unknown to Cicero, Sallust, or the other writers of the Augustan age." Yet this is no more than must unavoidably happen when things of modern use, of which the Ro[321] mans had no idea, and consequently no phrases to express them, come to be delivered in the Latin tongue. It would puzzle the most classical scholar to find an appellation, in his pure latinity, for a constable, a record, or a deed of feoffment; it is therefore to be imputed as much to necessity, as ignorance, that they were styled in our forensic dia lect constabularius, recordum, and feoffamentum. Thus again, another uncouth word of our ancient laws (for I defend not the ridiculous barbarisms sometimes introduced by the ignorance of modern practisers), the substantive murdrum, of the verb murdrare, however harsh and unclassical it may seem, was necessarily framed to express a particular offence; since no other word in being, occidere, interficere, necare, or the like, was sufficient to express the intention of the criminal, or quo animo the act was perpetrated; and therefore by no means came up to the notion of murder at present entertained by our law; viz. a killing with malice aforethought.

A similar necessity to this produced a similar effect at Byzantium, when the Roman laws were turned into Greek for the use of the oriental em pire for, without any regard to Attic elegance, the lawyers of the im perial courts made no scruple to translate fidei commissarios, qideïxoμμσoα ριους (p); cubiculum, κουβουκλείου (q); filium familias, παιδα-φαμιλιας (r) . repudium, genoνdiov (s): compromissum, xоμлquiσσov (t); reverentia et obsequium, ρευερεντια και οβσεκουιον (u) ; and the like. They studied more the

(m) The following sentence, "si quis ad battalia curte sua exierit, if any one goes out of his own ourt to fight," &c. may raise a smile in the student as a flamir.g modern anglicism; but he may meet with it among others of the same stamp, in the laws of the Burgundians on the continent, before the end of the fifth century. (Add. c. 5, 2.) (m) Pref Rer

(0) Pref. ad Eadmer.

(p) Nov. 1, c. 1.

(q) Nov. 8 edict. Constantinop
(r) Nov. 117, c. 1.
(s) Ibid. c. 8.
(t) Nov. 82, c. 11
(u) Nov. 78, c. 2

exact and precise import of the words that the neatness and delicacy of their cadence. And many academical readers will excuse me for suggesting, that the terms of the law are not more numerous, more uncouth, or more difficult to be explained by a teacher, than those of logic, physics, and the whole circle of Aristotle's philosophy, nay even of the politer arts of architecture and its kindred studies, or the science of rhetoric itself. Sir Thomas More's famous legal question (w) contains in it nothing more difficult, than the *definition which in his time the philoso- [*322] phers currently gave of their materia prima, the groundwork of all natural knowledge; that it is "neque quid, neque quantum, neque quale, neque aliquid corum quibus ens determinatur;" or its subsequent explanation by Adrian Heereboord, who assures us (x) that "materia prima non est corpus, neque per formam corporeitatis, neque per simplicem essentiam: est tamen ens, et quidem substantia, licet incompleta; habetque actum ex se entitativum, el simul est potentia subjectiva." The law therefore, with regard to its technical phrases, stands upon the same footing with other studies, and requests only the same indulgence.

This technical Latin continued in use from the time of its first introduction, till the subversion of our ancient constitution under Cromwell; when. among many other innovations in the law, some for the better and some for the worse, the language of our records was altered and turned into English. But, at the restoration of king Charles, this novelty was no longer countenanced; the practisers finding it very difficult to express themselves so concisely or significantly in any other language but the Latin. And thus it continued without any sensible inconvenience till about the year 1730, when it was again thought proper that the proceedings at iaw should be done into English, and it was accordingly so ordered by statute 4 Geo. II. c. 26. This provision was made according to the preamble of the statute, that the common people might have knowledge. and understanding of what was alleged or done for and against them in the process and pleadings, the judgment and entries in a cause. Which purpose has, I fear, not been answered; being apt to suspect that the pec ple are now, after many years' experience, altogether as ignorant in matters of law as before. On the other hand, these inconveniences have already arisen from the alteration; that now many clerks and attorneys are hardly able to read, much less to understand, a record even of so modern a date as the reign of George the First. And it has much enhanced the expense of all legal proceedings for since the practisers are [*323] confined (for the sake of, the stamp duties, which are thereby considerably increased) to write only a stated number of words in a sheet (5), and as the English language, through the multitude of its particles, is much more verbose than the Latin; it follows that the number of sheets must be very much augmented by the change (y). The translation also of technical phrases, and the names of writs and other process, were found to be so very ridiculous (a writ of nisi prius, quare impedit, fieri facias, habers corpus, and the rest, not being capable of an English dress with any degree of seriousness) that in two years time it was found necessary to make new act, 6 Geo. II. c. 14; which allows all technical words to continue

(w) See page 149.

(z) Philosoph. natural, c. 1, ◊ 28, &c.
(For instance, these three words," secundum

formam statuti," are now converted into seven. "according to the form of the statute."

(5) 7 his law is now abolished in England.

in the usual language, and has thereby almost defeated every beneficial purpose of the former statute.

What is said of the alteration of language by the statute 4 Geo. Il. c. 26. will hold equally strong with respect to the prohibition of using the ancient immutable court hand in writing the records or other legal proceedings; whereby the reading of any record that is fifty years old is now be come the object of science, and calls for the help of an antiquarian. But that branch of it, which forbids the use of abbreviations, seems to be of more solid advantage, in delivering such proceedings from obscurity: according to the precept of Justinian (2) ; ne per scripturam aliqua fiat in posterum dubitatio, jubemus non per siglorum captiones et compendiosa enigmata ejusdem codicis textum conscribi, sed per literarum consequentiam explanari concedimus." But, to return to our demurrer.

When the substance of the record is completed, and copies are delivered to the judges, the matter of law upon which the demurrer is grounded is upon solemn argument determined by the court, and not by any [*324] trial by jury; and judgment is thereupon accordingly given.

As, in an action of trespass, if the defendant in his plea confesses the fact, but justifies it causa venationis, for that he was hunting; and to this the plaintiff demurs, that is, he admits the truth of the plea, but denies the justification to be legal: now, on arguing this demurrer, if the court be of opinion, that a man may not justify trespass in hunting, they will give judgment for the plaintiff; if they think that he may, then judgment is given for the defendant. Thus is an issue in law, or demurrer, disposed

01.

An issue of fact takes up more form and preparation to settle it; for here the truth of the matters alleged must be solemnly examined and established by proper evidence in the channel prescribed by law. To which examination, of facts, the name of trial is usually confined, which will be trested of at large in the two succeeding chapters.

CHAPTER XXII.

OF THE SEVERAL SPECIES OF TRIAL (1)

THE uncertainty of legal proceedings is a notion so generally adopted, and has so long been the standing theme of wit and good humour, that Le who should attempt to refute it would be looked upon as a man, who was either incapable of discernment himself, or else meant to impose upon others. Yet it may not be amiss, before we enter upon the several modes whereby certainty is meant to be obtained in our courts of justice, to in(z) de concept. digest. ◊ 13.

(1) In New-York all trials of issues of fact Joined in any court proceeding according to the common law, must be by jury or referees: So also must they be if the issues were joined in another court and sent to the Supreme Court to be tried. The trial takes pace before Circuit Court when the cause is in the

Supreme Court, unless, in cascs of great difficulty, or requiring great examination, the court.order a trial at bar. (2 R. S. 409, $1 4.) Special juries may be allowed by the court if conducive to a fair and impartia. trial, or if the importance or intricacy of the cause requires it. (Id 418, § 46.)