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without any regard to Attic elegance, the lawyers of the imperial courts made no scruple to translate fidei commissarios, plôcïroupilo saplous;(p) cubiculum, zou Bous xhelor ;(9) filium familias, raida-paucas ;(r) repudium, perovòtov :(s) compromissum moun popilosov ;(t) reverentia et obsequium, peuspevtia xal oßoexovlov;() and the like. They studied more the exact and precise import of the words than 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 philosophers currently gave of their materia prima, the groundwork of all natural knowledge; that it is “neque
' quid, neque quantum, neque quale, neque aliquid eorum 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, 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 antient 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 praclisers 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 80 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. 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 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 confined (for *the sake of the stamp-duties, which are thereby
[*323 considerably increased) to write only a stated number of words in a sheet; 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 80 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 seriouspess) 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 in the usual langungo, 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 probibition of using the antient in mutable court-hand in writing the records or other legal proceedings; waereby the reading of any record that is fifty years old is now become the object of science, and calls for the help of an antiquarian. But that branch of it, which
(») Nov. 1, c. 1.
Ibid. 82, c. 11. • Ibid. c. 2
() See page 149.
(v) For instance, these three words. “secundum formam statuti,” are now converted into seven, “according to the form of tho Matute."
forbids the use of abbreviations, seems to be of more sulid advantage, in de. livering such proceedings from obscurity : according to thu 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 trial by jury; and judgment is thereupon accordingly given. As, in an action of trespass, if the *324]
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 tho 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.
OF THE SEVERAL SPECIES OF TRIAL.
*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 inquire a little wherein this uncertainty, so frequently complained of, consists; and to what causes it owes its original.
It bath sometimes been said to owe its original to the number of our muni. cipal 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. 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 *326]
cases for contradictory. *They bring us the example of arbitrary go
vernments, of Denmark, Muscovy, and Prussia ; of wild and uncultivated nations, the savages of Africa and America; or of narrow domestic republics, in antient Greece and modern Switzerland; and unreasonably require the same paucity of laws, the same conciseness of practice, in a nation of freemen, a polite and commercial people, and a populous extent of territory.
In an arbitrary despotic government, where the lands are at the disposal of ine prince, the rules of succession, or the mode of enjoyment, must depend apon his will and pleasure. Hence there can be but few legal determinations 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 () De concept. digest. & 13.
(a) See the prefnco to Sir John Davies's Reports, wheret many of he following topics are discussed more at largo
in jeopardy, and of consequence can never be extensive: chis therefore puts an end to the necessity of an infinite number of rules, which the English mērchant 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 nature there is no room
[*327 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.
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 regulations 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 ex actly 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 some. times (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 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
[*328 wherever this happens to be the case in any material point, the legislature is ready, ard from time to time both may, and frequently does, intervene to remore 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 Engish 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 scho lastic 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 antient 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 super. structure.
But is not (it will be asked) the multitude of law-suits, which we daily see *329]
and experience, an argument against the clearness and certainty of tho
law itself? By no means : for *among the various 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, anless 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. Tt 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 clothe their intentions in dark or new-fangled expressions.
But, notwithstanding so vast an accession of legal controversies, arising from 80 fertile a fund as the ignorance and wilfulness of individuals, these will bear do comparison in point of number to those which are founded upon the dishonesty and disingenuity of the parties: by either their suggesting complaints that are false in fact, and thereupon bringing groundless actions; or by their denying such facts as are true, in setting up unwarrantable defencés. Ex facto oritur jus: if therefore the fact be perverted or misrepresented, the law which *330]
arises from thence will unavoidably be unjust or partial. *And, in order
to prevent this, it is necessary to set right the fact, and establish the iruth contended for, by 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 ubject of judicial decisions. And experience will abundantly show, that above & hundred of our law-suits arise from disputed facts, for one where the 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 de eiding 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 species, 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 evidence upon that trial which the nature of the case affords, and no other, shall be admitted in the English courts of justice.
The species of trials in civil cases are seven. By record; by inspection, or examination; by certificate; by witnesses; by wager of battle; by wager of law; and by jury.
I. First, then, of the trial by record. This is only used in one particular in. stance: and that is where a matter of record *is pleaded in any action, as a fine, a judgment, or the like; and the opposite party pleads, “nul
[*331 tiel record,” that there is no such matter of record existing: upon this, issue is tendered and joined in the following form, "and this he prays may be inquired of by the record, and the other doth the like;" and hereupon the party pleading the record has a day given him to bring it in, and proclamation is made in court for him to “bring forth the record by him in pleading alleged, or else he shall be condemned;" and, on his failure, his antagonist shall have judgment to recover. The trial therefore of this issue is merely by the record; for, as Sir Edward Coke(b) observes, a record or enrolment is a monument of so bigh a nature, and importeth in itself such absolute verity, that if it be pleaded that there is no such record, it shall not receive any trial by witness, jury, or otherwise, but only by itself. Thus titles of nobility, as whether earl or no earl, baron or no baron, shall be tried by the king's writ or patent only, which is matter of record.(c) Also in case of an alien, whether alien friend or enomy, shall be tried by the league or treaty between his sovereign and ours; for every league or treaty is of record.(d) And also, whether a manor be to be held in antient demesne or not, shall be tried by the record of domesday in the king's exchequer.
II. Trial by inspection, or examination, is when, for the greater expedition of a cause, in some point or issue being either the principal question or arising col. laterally out of it, but being evidently the object of senses, the judges of the coart, upon the testimony of their own sense, shall decide the point in dispute For, where the affirmative or negative of a question is matter of such obvious determination, it is not thought necessary to summon a jury to decide it; who are properly called in to inform the conscience of the court in respect of dubious facts: and therefore when the fact, from its nature, must be evident to the court either from ocular demonstration or other irrefragable proof, there the law departs *from its usual resort, the verdict of twelve men, and relies
[*332 on the judgment of the court alone. As in case of a suit to reverse a fine for non-age of the cognizor, or to set aside a statute or recognizance entered into by an infant; here, and in other cases of the like sort, a writ shall issue to the sheriff ;(e) commanding him that he constrain the said party to appear, that it may be ascertained, by the view of his body by the king's justices, whether he be of full age or not; "ut per aspectum corporis sui constare poterit justiciariis nostris, si prædictus A. sit plenæ ætatis necne.” (f) If however the court has, upon inspection, any doubt of the age of the party, (as may frequently be the case,) it may proceed to take proofs of the fact; and, particularly, may examino the infant himself upon an oath of voire dire, veritatem dicere, that is, to make true answer to such questions as the court shall demand of him: or the court may examine his mother, his godfather, or the like.(9)
In like manner, if a defendant pleads in abatement of the suit that the plaintiff is dead, and one appears and calls himself the plaintiff, which the defendant denies: in this case the judges shall determine by inspection and examination whether he be the plaintiff or not.(h) Also, if a inan be found by a jury an idiot a nativitate, he mayome in person into the chancery before the () 1 Inst. 117 260.
(This question of non-age was formerly, according to Glanvil. (1. 13, c. 15,) tried hy a jury of eight now, though
19 6 Rep. 53. () 9 Rep. 81,
now it is tried by inspection.
(9) 2 Roll Ahr. 573.