Sivut kuvina

exact and precise import of the words thathe 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 simplicein essentiam : est tamen ens, et quidem substantia, licet incompleta; habetque actum ex se entitativum, et 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 law 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 people 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 ss to understand, a record even of so modern a 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, habeas 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 a new act, 6 Geo. II. c. 14; which allows all technical words to continue

(w) See page 149.

formam statuti," are now converted into soven, (2) Philosoph. natural, c. 1, $ 28, 40.

according to the form of the statute." (y) For instance, these three words,“ secundum

(5) This 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. II. 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 fisty years old is now become 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 enig. mata 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 of.

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 treated of at large in the two succeeding chapters.



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 he 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

(2) de concept. digest. 0 13.

(1) In New-York all trials of issues of fact Supreme Court, unless, in cases of great diffjoined in any court proceeding according to culiy, or requiring great examination, the the common law, must be by jury or referees : court.order a trial at bar. (2 R. S. 409, $ 1. so also must they be if the issues were joined 4.) Special juries may be allowed by the in another court and sent to the Supreme court if conducive to a fair and impartial trial, Court to be tried. The trial takes place before or if the importance or intricacy of the cause the Circuit Court when the cause is in the requires it." (Id. 418, § 46.)

quire a little wherein this uncertainty, so frequently complained of, consists ; and to what causes it owes its original.

It hath sometimes been said to owe its original to the number of our municipal constitutions, and the multitude of our judicial decisions (a); which occasion, it is alleged, abundance of rules that militate and thwart with each other, as the sentiments or caprice of successive legislatures and judges have happened to vary.

vary. The fact, of multiplicity is allowed; and that thereby the researches of the student are rendered more difficult and laborious; but that, with proper industry, the result of those inquiries will be doubt and indecision, is a consequence that cannot be admitted. People are apt to be angry at the want of simplicity in our laws: they mistake variety for confusion, and complicated cases for contradictory. "They bring us the examples of arbitrary governments, [*326] of Denmark, Muscovy, and Prussia; of wild and uncultivated nations, the savages of Africa and America ; or of narrow domestic republics, in ancient Greece and modern Switzerland ; and unreasonably require the same paucity of laws, the same conciseness of practice, in a nation of freeman, a polite and commercial people, and a populous extent of territory.

In an arbitrary despotic government, where the lands are at the disposal of the prince, the rules of succession, or the mode of enjoyment, must depend upon his will and pleasure. Hence there can be but few legal deierminations relating to the property, the descent, or the conveyance of real estates; and the same holds in a stronger degree with regard to goods and chattels, and the contracts relating thereto. Under a tyrannical sway trade must be continually in jeopardy, and of consequence can never be extensive : this therefore puts an end to the necessity of an infinite number of rules, which the English merchant daily recurs to for adjusting commercial differences. Marriages are there usually contracted with slaves ; or at least women are treated as such: no laws can be therefore expected to regulate the rights of dower, jointures, and marriage settlements. Few also are the persons who can claim the privileges of any laws; the bulk of those nations, viz. the commonalty, boors, or peasants, being merely villeins and bondmen. Those are therefore left to the private coercion of their lords, are esteemed (in the contemplation of these boasted legislators) incapable of either right or injury, and of consequence are entitled to no redress. We may see, in these arbitrary states, how large a field of legal contests is already rooted up and destroyed.

Again; were we a poor and naked people, as the savages of America are, strangers to science, to commerce, and the arts as well of convenience as of luxury, we might perhaps be content, as some of them are said to be, to refer all disputes to the next man we meet upon the road, and so put a short end to every controversy. For in a state of [*327] nature there is no room for municipal laws; and the nearer any nation approaches to that state, the fewer they will have occasion for. When the people of Rome were little better than sturdy shepherds or herdsmen, all their laws were contained in ten or twelve tables ; but as luxury, politeness, and dominion increased, the civil law increased in the same proportion ;, and swelled to that amazing bulk which it now occupies, though successively pruned and retrenched by the emperors Theodosius and Justinian.

(a) See the preface to sir John Davies's reports : wherein many of the following topics are dis. cussed more at large.


In like manner we may lastly observe, that, in petty states and narrow territories, much fewer laws will suffice than in large ones, because there are fewer objects upon which the laws can operate. The regulatións of a private family are short and well known ; those of a prince's household are necessarily more various and diffuse.

The causes therefore of the multiplicity of the English laws are, the extent of the country which they govern; the commerce and refinement of its inhabitants ; but, above all, the liberty and property of the subject. These will naturally produce an infinite fund of disputes, which must be terminated in a judicial way; and it is essential to a free people, that these determinations be published and adhered to; that their property may be as certain and fixed as the very constitution of their state. For though in many other countries every thing is left in the breast of the judge to determine, yet with us he is only to declare and pronounce, not to make or new-model, the law. Hence a multitude of decisions, or cases adjudged, will arise; for seldom will it happen that any one rule will exactly suit with many cases. And in proportion as the decisions of courts of judicature are multiplied, the law will be loaded with decrees, that may sometimes (though rarely) interfere with each other : either because succeeding judges may not be apprized of the prior adjudication; or because they

may think differently from their predecessors; or because the [*328] same arguments did not occur formerly as at *present; or, in fine,

because of the natural imbecility and imperfection that attends all human proceedings. But wherever this happens to be the case in any material point, the legislature is ready, and from time to time, both may, and frequently does, intervene to remove the doubt ; and, upon due deliberation had, determines by a declaratory statute how the law shall be held for the future.

Whatever instances therefore of contradiction or uncertainty may have been gleaned from our records, or reports, must be imputed to the defects of human laws in general, and are not owing to any particular ill construction of the English system. Indeed the reverse is most strictly true. The English law is less embarrassed with inconsistent resolutions and doubtful questions, than any other known system of the same extent and the same duration. I may instance in the civil law: the text whereof, as collected by Justinian and his agents, is extremely voluminous and diffuse ; but the idle comments, obscure glosses, and jarring interpretations grafted thereupon, by the learned jurists, are literally without number. And these glosses, which are mere private opinions of scholastic doctors (and not like our books of reports, judicial determinations of the court), are all of authority sufficient to be vouched and relied on: which must needs breed great distraction and confusion in their tribunals. The same may be said of the canon law; though the text thereof is not of half the antiquity with the common law of England; and though the more ancient any system of law is, the more it is liable to be perplexed with the multitude of judicial decrees. When therefore a body of laws, of so high antiquity as the English, is in general so clear and perspicuous, it argues deep wisdom and foresight in such as laid the foundations, and great care and circumspection in such as have built the superstructure. But is not (it will be asked) the multitude of law-suits, which we daily

see and experience, an argument against the clearness and cer[*329] tainty of the law itself ? By no means ; for *among the varie

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ous disputes and controversies which are daily to be met with in the course of legal proceedings, it is obvious to observe how very few arise from obscurity in the rules or maxims of law. An action shall seldom be heard of, to determine a question of inheritance, unless the fact of the descent be controverted. But the dubious points which are usually agitated in our courts, arise chiefly from the difficulty there is of ascertaining the intentions of individuals, in their solemn dispositions of property ; in their contracts, conveyances, and testaments. It is an object indeed of the utmost importance in this free and commercial country, to lay as few restraints as possible upon the transfer of possessions from hand to hand, or their various designations marked out by the prudence, convenience, necessities, or even by the caprice, of their owners : yet to investigate the intention of the owner is frequently matter of difficulty, among heaps of entangled conveyances or wills of a various obscurity. The law rarely hesitates in declaring its own meaning; but the judges are frequently puzzled to find out the meaning of others. Thus the powers, the interest, the privileges, and properties of a tenant for life, and a tenant in tail, are clearly distinguished and precisely settled by law : but, what words in a will shall constitute this or that estate, has occasionally been disputed for more than two centuries past, and will continue to be disputed as long as the carelessness, the ignorance, or singularity of testators shall continue to cloath their intentions in dark or new-fangled expressions.

But, notwithstanding so vast an accession of legal controversies, arising from so fertile a fund as the ignorance and wilfulness of individuals, these will bear no comparison in point of number to those which are founded upon the dishonesty, and disingenuity of the parties : by either their sugguesting complaints that are false in fact, and thereupon bringing groundless actions ; or by their denying such facts as are true, in setting up unwarrantable defences. Ex facto oritur jus: if therefore the fact be per. verted or misrepresented, the law which arises from thence will unavoidably be unjust or partial. *And, in order to prevent this, [*330] it is necessary to set right the fact, and establish the truth contended for, hy appealing to some mode of probation or trial, which the law of the country has ordained for a criterion of truth and falsehood.

These modes of probation or trial form in every civilized country the great object of judicial decisions. And experience will abundantly shew, that above a hundred of our law-suits arise from disputed facts, for one where the law is doubted of. About twenty days in the year are sufficient in Westminster-hall, to settle (upon solemn argument) every demurrer, or other special point of law that arises throughout the nation : but two months are annually spent in deciding the truth of facts, before six distinct tribunals, in the several circuits of England : exclusive of Middlesex and London, which afford a supply of causes much more than equivalent to any two of the largest circuits.

Trial then is the examination of the matter of fact in issue : of which there are many different spécies, according to the difference of the subject, or thing to be tried: of all which we will take a cursory view in this and the subsequent chapter. For the law of England so industriously endeavours to investigate truth at any rate, that it will not confine itself to one, or to a few, manners of trial; but varies its examination of facts according to the nature of the facts themselves : this being the one invariable principle pursued, that as well the best method of trial, as the best

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