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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 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 earlieft ages, while the more modern and more elegant structures of Attica, Rome, and Palmyra have sunk 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 occasion 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 fir John Davis " 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 than those of other sciences) and may, as Mr. Selden observes , give offence “ to fome grammarians of “ squeamish stomachs, who would rather chuse 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 unavoid. ably happen when things of modern use, of which the Ro. mans had no idea, and consequently no phrases to express
en The following sentence, “ fi quis "adbat:alia curte fi:a exierit, if any one « goes out of his own court to fight,” & s. may raise a smile in the student as a flaming modern anglicism : but he may meet with it, among others of the
fame stamp, in the laws of the Bur.
n Pref. Rep.
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 stiled in our forensic dialect constabularius, recordum, and feoffamentum. Thus again, another uncouth word of our antient laws (for I defend not the ridiculous barbarisms sometimes introduced by the ignorance of modern practisers) the substantive murdrum, or the verb murdrare, however harsh and unclassical it may seem, was necessarily framed to express a particular offence; fince no other word in being; occidere, interficere, necare, or the like, was sufficient to express the ina tention 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 neceffity to this produced a similar 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 scruple to translate fidei commissarios, pideixou uso sa pissP; cubiculum, x86xXXELOV 9 ; filium-familias, waida-qapsdcas".; repudium, peredov; compromissum, noun poucroor'; reverentia et obfequium, peveperti na o@JERSION "; and they like. They studied more the exact and precise import of the words, than the neatness and delicacy of their cadence. And my acade. mical readers will excuse me for suggefting, 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 it's kindred studies, or the science of rhetoric itself. Sir Thomas More's famous legal question w contains in it nothing more difficult, than the des
finition which in his time the philosophers 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 subsequent explanation by Adrian Heereboord, who assures us * that “ materia “ prima non eft corpus, neque per formam corporeitatis, neque “ per fimplicem effentiam : eft tamen ens, et quidem fubftantia, “ licet incompleta; habetque actum ex fe entitativum, et fimul “ eft potentia fubjeétiva." The law therefore, with regard to it's technical phrases, stands upon the same footing with other studies, and requests only the same indulgence.
This technical Latin continued in ufe from the time of it's first introduction, till the subversion of our antient constituzion 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 Jonger 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 statutc 4 Geo. II. c. 26. This provision was made, according to the preamble of the statute, that the common people might have knowlege and understanding of what was alleged or done for and against them in the process and pleadings, the judge ment and entries in a cause. Which purpose has, I fear, not been ansiered; being apt to suspect that the people are now, afier 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 cierks and attorneys are hardly able to read, much less to understand, a record cren of so modern a date as the reign of George the tirit. And it has much enhanced the expense of all legal proceedings: for since the practisers are confined (for * Pbiljef 6. raival. 6. 1. $ 23, &c.
the sake of the stamp duties, which are thereby considerably increased) to write only a stated number of words in a sheet ; and as the English language, through the multitnde of it's particles, is much more verbose than the Latin ; it follows that the number of theets 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 nifi prius, quare impedit, fieri facias, habeos corpus, and the rest, not being capable of an English dress 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 allows all technical words to continue 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 Itatute 4 Geo. II. c. 26. will hold equally strong with respect to the prohibition of using the antient immutable court hond 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 sorbids the use of abbreviations, seems to be of more folid advantage, in delivering such proceedings from obscurity: according to the precept of Justinian ?; “ ne per fcripturam aliqua fiat in pofterum dubitatio, “ jubemus non per fuglorum captiones et compendiofa enigmata “ ejufdem codicis textum conferibi, fed 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 folemn argument determined by the court, and not by any trial by jury; and judg., ment is thereupon accordingly given. As, in an action of trespass, if the defendant in his plea confesses the fact, but justifies 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 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.
y For instance, these three words, “ form of the statute." “ fecundum formam faruri," are now ? de concepe, digel. 5:3, cunverted into seven, “ according to the Аа 2
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.