of Europe, and therefore not to be imputed as any peculiar blemish in our English legal latinity". The truth is, what is generally denominated law-latin is in reality a mere technical language, calculated for eternal duration, and casy to be apprehended both in present and future times; and on thofe accounts beft fuited to preferve thofe memorials which are intended for perpetual rules of action. The rude pyramids of Egypt have endured from the earlieft ages, while the more modern and more elegant ftructures of Attica, Rome, and Palmyra have funk beneath the stroke of time. As to the objection of locking up the law in a strange and unknown tongue, this is of little weight with regard to records, which few have occafion to read but fuch as do, or ought to, understand the rudiments of Latin. And befides it may be obferved of the law-latin, as the very ingenious fir John Davis" obferves of the law-french," that it is fo very easy to be learned, that the meaneft wit that ever came to the study of the law doth come to understand it "almoft perfectly in ten days without a reader." Ir is true indeed that the many terms of art, with which the law abounds, are fufficiently harsh when latinized, (yet not more fo than thofe of other sciences) and may, as Mr. Selden obferves, give offence "to fome grammarians of "fqueamish ftomachs, who would rather chufe to live in ignorance of things the moft ufeful and important, than 66 to have their delicate ears wounded by the ufe of a word, "unknown to Cicero, Salluft, or the other writers of the "Auguftan age." Yet this is no more than must unavoidably happen when things of modern use, of which the Romans had no idea, and confequently no phrases to exprefs m The following fentence, "fi quis "ad battalia curte fua exierit, if any one 66 goes out of his own court to fight," c. may raise a smile in the student as a flaming modern anglicifm: but he may meet with it, among others of the fame ftamp, in the laws of the Burgundians on the continent, before the end of the fifth century. Add. 1. c. 5§2.) n Pref. Rep. them, them, come to be delivered in the Latin tongue. It would puzzle the most claffical 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 neceflity, as ignorance, that they were stiled in our forenfic dialect conftabularius, recordum, and feoffamentum. Thus again, another uncouth word of our antient laws (for I defend not the ridiculous barbarisms fometimes introduced by the ignorance of modern practifers) the fubftantive murdrum, or the verb murdrare, however harsh and unclaffical it may feem, was neceffarily framed to exprefs a particular offence; fince no other word in being, occidere, interficere, necare, or the like, was fufficient to exprefs 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 fimilar neceffity to this produced a fimilar effect at Byzantium, when the Roman laws were turned into Greek for the use of the oriental empire; for, without any regard to Attic elegance, the lawyers of the imperial courts made no fcruple to translate fidei commissarios, qidenouμiocaging3 ; cubiculum, xxxxλov; filium-familias, waida-Pausλias"; repudium, ῥεπεδίονς; compromifum, κομπρομισσον"; reverentia et obfequium, pevegeтia na obσeйxia; and they like. They ftudied more the exact and precife import of the words, than the neatness and delicacy of their cadence. And my acade mical readers will excufe me for fuggefting, that the terms of the law are not more numerous, more uncouth, or more difficult to be explained by a teacher, than thofe of logic, phyfics, and the whole circle of Ariftotle's philofophy, nay even of the politer arts of architecture and it's kindred studies, or the science of rhetoric itfelf. Sir Thomas More's famous legal queftion contains in it nothing more difficult, than the des Book III. finition which in his time the philofophers currently gave of their materia prima, the groundwork of all natural knowlege; that it is, neque quid, neque quantum, neque quale, neque aliquid eorum quibus ens determinatur;” or it's fubfequent explanation by Adrian Heereboord, who affures us that “materia "prima non eft corpus, neque per formam corporeitatis, neque "per fimplicem effentiam : eft tamen ens, et quidem substantia, "licet incompleta; habetque actum ex fe entitativum, et fimul "eft potentia fubjectiva." The law therefore, with regard to it's technical phrafes, ftands upon the fame footing with other studies, and requests only the fame indulgence. THIS technical Latin continued in ufe from the time of it's first introduction, till the fubverfion of our antient conftitution under Cromwell; when, among many other innovations in the law, fome for the better and fome 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 practifers finding it very difficult to express themselves fo concifely or fignificantly in any other language but the Latin. And thus it continued without any fenfible inconvenience till about the year 1730, when it was again thought proper that the proceedings at law fhould be done into English, and it was accordingly so ordered by statute 4 Geo. II. c. 26. This provifion was made, according to the preamble of the ftatute, that the common people might have knowlege and understanding of what was alleged or done for and against them in the procefs and pleadings, the judgment and entries in a caufe. Which purpose has, I fear, not been answered; being apt to fufpect 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 arifen from the alteration; that now many clerks and attorneys are hardly able to read, much lefs to understand, a record even of fo modern a date as the reign of George the firft. And it has much enhanced the expense of all legal proceedings: for fince the practifers are confined (for * Phileph. natural. c. 1. § 28, &c. the the fake of the stamp duties, which are thereby confiderably increased) to write only a ftated number of words in a fheet; and as the English language, through the multitude of it's particles, is much more verbofe than the Latin; it follows that the number of theets must be very much augmented by the change. The tranflation alfo of technical phrafes, and the names of writs and other procefs, were found to be so very ridiculous (a writ of nifi prius, quare impedit, fieri facias, habeas corpus, and the reft, not being capable of an English drefs with any degree of seriousness) that in two years time it was found neceffary to make a new act, 6 Geo. II. c. 14; which al lows all technical words to continue in the ufual language, and has thereby almoft defeated every beneficial purpose of the former ftatute. WHAT is faid of the alteration of language by the ftatute 4 Geo. II. c. 26. will hold equally strong with respect to the prohibition of using the antient immutable court hand in writing the records or other legal proceedings; whereby 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 forbids the use of abbreviations, feems to be of more folid advantage, in delivering fuch proceedings from obscurity: according to the precept of Juftinian 2; ne per fcripturam aliqua fiat in pofterum dubitatio, "jubemus non per figlorum captiones et compendiofa enigmata ejufdem codicis textum confcribi, fed per literarum confequentiam explanari concedimus." But, to return to our demurrer. " WHEN the fubftance of the record is completed, and copies are delivered to the judges, the matter of law upon which the demurrer is grounded is upon folemn argument determined by the court, and not by any trial by jury; and judgment is thereupon accordingly given. As, in an action of trefpafs, if the defendant in his plea confeffes the fact, but Y For instance, these three words, "fecundum formam fatufi," are now converted into feven, "according to the A a 2 "form of the statute." justifies BOOK III. juftifies it caufa 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 juftify trefpafs 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 iffue in law, or demurrer, difpofed of. AN issue of fact takes up more form and preparation to fettle it; for here the truth of the matters alleged must be folemnly examined and established by proper evidence in the channel prescribed by law. To which examination, of facts, the name of trial is ufually confined, which will be treated of at large in the two fucceeding chapters. |