Property cause." From all this he draws the conclusion that courts of summary jurisdiction are courts of natural procedure (t), and very superior both in theory and practice to the ordinary and regular tribunals. Under the first he reckons courts of requests, courts of conscience, courts martial, and summary proceedings before justices of the peace, &c.; and not only lavishly praises them in many passages of his work on Judicial Evidence (u); but in a pamphlet published in 1799, when speaking of this country, assures the French nation, that "Imagination cannot conceive, nor heart desire, greater integrity than has been uniformly displayed for ages by courts composed of single judges, without juries, under the auspices of publicity, though in a state of dependance on the crown (x)." § 40. Now we have no wish to discuss the merits of these tribunals, further than to observe that courts of requests and courts of conscience have been superseded by a jurisdiction of a very superior kind, introduced by 9 & 10 Vict. c. 95; and that we really are not aware that courts martial are conducted without forms. But the fallacy of the reasoning on which the praise of summary tribunals is founded arises from losing sight of the great principle, that the essence of all rules of municipal law, adjective as well as substantive, consists in their generality. The observation is as old as the days of Aristotle, that a commonwealth is not to be confounded with a family, as though a large family were nothing different from a small commonwealth (y); and a very little reflection will show the difference between them. The parent (t) 4 Benth. Jud. Ev. 8—12. (u) See inter al., vol. ii. pp. 28, 29; vol. iv. pp. 327, 352, 355, 356, 357, 405, 430, 431, 432, 437, 439, 443, 628. (r) Draft of a New Plan for the Organization of the Judicial Establishment in France, March, 1790, ch. 2, tit. 2, p. 7. (y) Aristotle's Politics, bk. 1, ch. 1. Philosophical and historical inquiries. :: in his family administers a kind of attributive justice. Both by natural and municipal law he is invested with, comparatively speaking, an absolute power over his children this is indispensably necessary to guide the conduct and form the characters of those in whom reason and experience are almost a blank; and the feeling of parental affection is so strong that this power may in general be safely entrusted to him. But the case is quite different with a sovereign, or judge, governing for the common welfare a set of beings of matured intellect like himself. A pure unlimited monarchy is unquestionably the natural and primitive form of government, but does it thence follow that it is the best at the present day, and that all others ought to be extirpated? On the other hand, how absurd would it be to argue that because a constitutional monarchy is an excellent form of government for a people, each private individual should establish one in his family! The very statement of these propositions is their refutation; and yet it is the same sort of reasoning which would infer that pre-established forms are useless in public judicial investigations because they would be useless, or worse, in foro domestico. 2. Necessity for § 41. Again; the duty of a judicial tribunal in dealing speedy action of with facts is not limited to the abstract question of tribunals. their existence; for whether materials for definite judgment or belief respecting it are forthcoming or not a decision must be given, to be followed by speedy, if not immediate, action. Questions of philosophy, whether natural or moral, as well as questions of history, rest for the most part in speculation and may be undertaken, dropped, and renewed at pleasure or convenience. Whether, for instance, the law of gravitation extends beyond the solar system; whether there is any law of relation between the magnitudes of the planets and their distances from the sun; whether the motion of each of what are inaccurately termed fixed stars is independent ness of life. or only forms part of some gigantic system, are at present matters for investigation lying open to men in general and the astronomer who considers that the materials before him are insufficient to warrant his forming a positive opinion on any of these subjects may suspend his judgment, in the hope that the observation of additional phenomena, or an improved analysis, or both combined, will disclose the truth to more fortunate generations. So, whether Xerxes invaded Greece with an army of millions; whether Cæsar was implicated in the Catalinarian conspiracy; whether King Richard III. murdered his nephews; and a host of such like, are questions the solution of which may be deferred, or even pronounced impossible, without in the least affecting the rights of individuals or the peace and good order of society. In the general course of every- Ordinary busi. day life, also, we are rarely compelled to act on mere conjectures, and commonly remain passive as long as possible in the hope of procuring satisfactory evidence to confirm or dissipate them. But judicial inquiries differ widely from all these. "Interest reipublicæ ut Interest reipubsit finis litium (z):" "Ne lites immortales essent dum litium. litigantes mortales sunt (a)." The plaintiff and defendant stand before the tribunal, and both individual and social interests require from it a decision, and that too a speedy decision, one way or the other. It will not do for the judge to say, "This matter seems doubtful, I suspend my judgment," and dismiss it; to be renewed indefinitely from time to time; keeping alive all the annoyance and irritation of a law suit; holding out to each of the parties a manifest temptation to fabricate evidence in order to turn the scale in his favour; and injuring the community by distracting the attention of at least two of its members from the exercise of more useful avocations. (z) 4 Blackst. Com. 338; 6 Co. 9 a, and 45 a; 11 Id. 69 a. (a) Voet. ad Pand. lib. 5, tit. 1, n. 53. licæ ut sit finis Rules for the disposal of necessary to tribunals. Trials by ordeal camp fight. and § 42. The duty of the legislator, therefore, is not dismatters of fact, charged by framing substantive laws and establishing forms of judicial procedure; in order to do complete justice he must go further, and supply rules for the guidance of tribunals in the disposal of all matters of fact which come before them, whatever the nature of the inquiry, or however difficult or even impossible it may be to get at the real truth. In such straights, barbarism and ignorance invoke the aid of superstition-sometimes, as in the trials by ordeal which have prevailed both in the ancient and modern world, and in the judicial combats of the middle ages, audaciously and impiously calling on Heaven to vindicate the injured party by a miracle; and at others, as in the old system of canonical purgation and the wager of law of our ancestors, unwarrantably assuming that the truth will be extracted by the oath of the party who is most strongly interested in its concealment (b). On the other hand, the laws of Canonical purgation and wager of law. (b) A very good account of these is given by Bonnier, in his Traité des Preuves, §§ 669-672. See also 4 Blackst. Comm. ch. 27; and Gibbon's Decline and Fall of the Roman Empire, ch. 38. Independent of the absurdity and impiety of these presumptuous appeals to miraculous interposition, there can be little doubt that the danger of them was often evaded by management, so as to be more apparent than real. The following curious instance of this, taken from an ancient ecclesiastical authority, is given in the Law Magazine, N. S. vol. i. p. 8. After a long dispute between a Catholic deacon and an Arian, on the merits of their respective creeds, the Catholic says, Quid longis sermocinationum inten tionibus fatigamur? Factis rei veritas adprobetur. Succendatur igni æneus et in ferventi aquâ annulus cujusdam projiciatur; qui vero eum ex ferventi undâ sustulerit, ille justitiam consequi comprobatur, quo facto pars diversa ad cognitionem hujus justitiæ convertatur." The Arian agrees. "Circa horam tertiam in foro conveniunt, concurrit populus ad spectaculum, accenditur ignis, æneus superponitur, fervet valde, annulus in undâ ferventi projicitur." The Catholic invites the Arian to plunge his arm first into the seething water; the latter declines the first trial, urging the Catholic, as the challenger, to begin. The Catholic bares his arm, but the Arian beholding it smeared with oil exclaims that a countries where the true principles of jurisprudence are understood meet the difficulty by establishing rules to Rules reguregulate the burden of proof; or, to speak with strict den of proof. accuracy, by attaching an artificial weight to the natural principles by which the burden of proof is governed. This has been well explained by a foreign jurist, in language of which the following is a translation (c). "The determining to what extent a certain known element renders probable the existence of such or such an unknown cause, depending, as it necessarily does, on the light of reason, must in general be left solely to the discrimination of the judge. But in the most important cases the law, desirous of insuring the stability of certain positions, and of cutting short certain controversies, has established PRESUMPTIONS, to which the judge is Legal presumpobliged to conform." And in another place (d), “It is fraud is intended, on which Jacinthus, another Catholic deacon, happening accidentally (of course) to pass that way, inquires into the cause of strife. The issue is thus related: "Nec moratus, extracto a vestimentis brachio in æneum dexteram mergit. Annulus enim, qui ejectus fuerat, er at valde levis ac' parvulus, nec minus ferebatur ab undâ quam vento possit ferri vel palea. Quem diu multumque quæsitum, infra unius horæ spatium reperit. Accendebatur interea vehementer focus ille sub dosio, quo validius fervens non facile adsequi possit annulus a manu quærentis, extractumque tandem nihil sensit diaconus in carne suâ, sed potius protestatur in imo quidem frigidum esse æneum, in summitate vero calorem teporis modici continentem. Quod cernens hæreticus, valde confusus, injecit audax manum (c) Bonnier, Traité des Preuves, tions. |