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 empire: for, without any regard to Attic elegance, the lawyers of the imperial courts made no scruple to translate fidei commissarios, φιδεϊκομμιοζαριους ;P cubiculum, κουβουκλείον ;9 filium-familias, maida-paμidias ;* repudium, peπovdiov;s compromissum, κоμπрoμɩσσov;t reverentia et obsequium, ¿evepevTLA και οβσεκουιον ;" and the like. They studied more the exact and precise import of the words, than the neatness and delicacy of their cadence. And my 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 it's kindred studies, or the science of rhetoric itself. Sir Thomas More's famous legal question contains in it nothing more difficult, than the [322] definition which in his time the philosophers currently gave of their materia prima, the groundwork of all na'ural 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 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 it's technical phrases, stands upon the same footing with other studies, and requests only the same indulgence.

p Nov. 1. c. 1.

t

q Nov. 8. edict. Constantinop. u

r Nov. 117. c. 1.

8 Ibid. c. 8,

Nov. 82. c. 11.
Nov. 78. c. 2.

w See pag. 149.

W

x Philosoph. natural. c. 1. 28, etc.

This technical Latin continued in use from the time of it's 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 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 was done, in order 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 judgment and entries in a cause.† Which purpose I know not how well it has answered; but am 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 expence of [323] all legal proceedings: for since the practisers are confined (for 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 multitude of it's particles, is much more verbose than the Latin: it follows that the number of sheets must be very much augmented by the change. The translay For instance, these three words, "secundum formam statuti," are now converted into seven, "according to the form of the statute." *Cited, 22 N. J. L. 32. - Quoted, 73 Mass. 45.

t-t Quoted, 63 Ind. 336.

tion 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 a new act was obliged to be made, 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 statute 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 forty 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; "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 [324) 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 of 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 z de concept. digest. 13.

3 BLACKST.-37.

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 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.

NOTES OF THE AMERICAN EDITOR TO CHAPTER XXI. is either upon matter of law or matter of fact, page 314.

(58) Issue ...

Strictly speaking, there is no issue of law, in the sense in which the term is used for an issue of fact (see p. 313 of the text), for a specific point affirmed on one side and denied on the other. The use of the word in this connection is of recent date compared with the other. It is not in the nature of law to be reduced to a single definite issue, binding on the courts as well as the parties. The court determines for itself what is the question of law involved in the facts, and is not confined to that which counsel have presented and argued on one side or on the other, as it is to the allegata and probata of fact. It may and should consider all the law bearing on the case, whether stated by counsel (or parties) or not.

The new procedure has indeed made all demurrers "special" in kind, by requiring the grounds of demurrer to be stated, and by implication, excluding decision on any other ground. But the judge is none the less bound by his duty to notice the most important defects apparent in the pleadings, such as failure of jurisdiction, or lack of cause of action, or of defense: as well as to know all the authorities for either side.

.*-* Quoted, 48 Conn. 371.

(59) An evident and shameful badge servitude, page 317.

The charge against William the Norman and his sons of attempting to abolish the use of English and substitute French rests chiefly on the authority of the pseudoIngulphus, now acknowledged to be a forgery. I know of no other for it earlier than R. Holkot in the reign of Edward III. when such a story was likely to arise and be popular.

Undoubtedly the ruling race after the Conquest used the only language most of them knew, which was Norman-French. But nearly all legal documents and writings of that period are in Latin, the language used for that purpose on the continent and in Normandy itself as well as in England. That they did not use Anglo-Saxon was perhaps unfortunate, considering the strong preference shown before the Conquest for the use of that tongue rather than Latin and the advances made in its use from the time of Alfred to that of Cnut; but there is little reason for attributing the fact to any deep-laid purpose of imposing "a badge of shameful servitude." The first use of French in public records and statutes was in the reign of the thoroughly English Edward I., and probably marks the decline of clerical rather than foreign influence. Its prolonged use in the Year Books and reports to the seventeenth century is no doubt due to its convenience as a brief technical dialect, serving as a kind of short-hand, and perhaps also to professional pride. We have evidence that lawyers talked English long before they began to write it.