would be attended with inconvenience; legal, but almost imperceptible distinctions would be multiplied to an excessive and indefinite extent. Under such circumstances uniformity of judgment would be impracticable, and many conflicting decisions would necessarily result. Whenever the court decided upon circumstances the decision would become a precedent and rule of law; and as each decision would afford room by comparison for a great number of distinctions, the obvious effect would be to multiply precedents to an inconvenient and unlimited extent. On the other hand, by abstaining from legal decision, except in cases where some decisive rule or principle of law is clearly applicable, and by adopting, in others, the inference of the jury in point of fact, substantial justice is administered, and the law is relieved from the perplexity occasioned by nice and subtle distinctions.

The practice of referring the question of probable cause to the court in all cases, although no rule or principle of law be applicable, is open to much objection.

A class so constituted is in truth, as regards the general elementary rule, of an anomalous character. Described as every such conclusion is, in popular terms, and capable of being decided in that sense by a jury, it is primâ facie a question of fact: it would seem, therefore, to be anomalous to deal with it as a question of law where there was no law to govern it, although undoubtedly, whenever any such rule is applicable, the popular sense of the term merges as it were in the legal sense, and the elementary rule applies as in other instances of applying a legal rule.

It would be necessary, in pleading it as a defence of an action of trespass, to state all the circumstances which might possibly be necessary to enable the court to draw the conclusion. It might be requisite, therefore, in some instances, to set forth on the record a great body of circumstantial evidence, consisting of those numerous and varied combinations of minute circumstances which tend in evidence to conviction on a criminal charge. Trials on such charges often occupy many days; and upon an action for a malicious prosecution it would, in a doubtful case, be as impolitic to omit the allegation of any circumstance tending to criminate the plaintiff as it would be to omit proof of it in evidence the

upon

trial on an indictment. The question of probable cause frequently depends on evidence as to personal identity, similarity of handwriting, the tracing of footsteps, and other like indicia, and sometimes not merely on the fact of similarity, but even on the extent and degree of similarity, an adequate and correct statement of which on the record, in order to enable the court to judge of the effect which such evidence ought to produce on the mind of the prosecutor, would be impracticable. In some instances even an actual view or inspection may be essential to a decision on probability.

Where the court had to decide on demurrer to the plea, they might have to decide the whole question of right, yet not by virtue of any law or principle, but merely according to their own opinion as to what was probable or improbable in fact. Upon a writ of error brought, the question in ordinary cases is, whether the law has been rightly applied to the facts stated on the record; but where the judgment was founded on the ruling of the court, on the conclusion as to probable cause, without the aid of any rule of law, there could not be any question raised as to the correctness of the judgment in point of law, the judgment not having been founded on any such rule.

The practice of referring any class of such questions to the court would impose on the latter the frequent burthen of deciding in the same cause many questions of this nature in order to meet the state of facts which might ultimately be found by the jury. Where the number of witnesses, and of facts and circumstances, were great, much labour would thus be incurred in exhausting all the different combinations which might possibly result, and, which is very material to the present purpose, it is obvious that such cases would breed precedents to a most inconvenient extent. It is indeed necessary in ordinary cases that, to enable a jury to find a general verdict, the court should state the law, to enable them to apply it to the facts: this, however, requires only an exposition of the known existing law, which governs the right or liability in question, and seldom requires that such multiplied phases of the case should be exhibited to the jury as would be necessary for their instruction as to a general con

clusion, such as probable cause, when it was governed by no general law, but the effect of each combination of facts depended on the mere discretion of the court.

It may, perhaps, be said, that although the ordinary rule may be that reasonable time and other such conclusions should be for the jury, yet that in particular instances, such as that of probable cause, the question may, by virtue of a special positive rule, be for the decision of the court as it is in respect of matters of fact arising collaterally in a cause. It is obvious, that if this were held, it would still amount only to a dispensation with the rule, or to an exception from it in respect of the particular class of cases. The questions or conclusions thus referred to by the court would still, when they were not governed by any rule of law, be in their own nature questions of fact, such as in analogous cases were decided by a jury. The consequence would be to establish two classes of facts, one for the decision of the jury, the other for that of the court a course which could not be practised without danger of confounding the functions of the court and jury, and the risk of compromising general rules and principles.

Difficulties and anomalies of the nature above described furnish a strong argument for the expediency of a rule by which all such conclusions, that is, all general conclusions concerning facts expressed in popular terms, which conclusions, although essential to a legal judgment, do not depend on the application of any technical rule, should be governed — that is, that they should be dealt with as conclusions or questions of fact. Without going to the extent of asserting that a jury is in all cases the best tribunal for the decision of matters of fact, it may safely be laid down as a sound rule of legal policy that questions of Law and Fact should be kept distinct from each other, and that their confusion would be attended with evil consequences, not the least of which would be much uncertainty, much vexatious litigation, and, of course, large additions to the existing mass of perplexed and conflicting decisions.

Purposing, at a future opportunity, to revert to this subject, we shall conclude these observations by citing the emphatic remarks of Lord Hardwicke: "It is of the

1 R. v. Poole, Cas. Temp. Hardw. 28.

greatest consequence to the law of England and to the subject that the powers of the judge and jury be kept distinct; that the judge determine the law, and the jury the fact and if ever they come to be confounded, it will prove the confusion and destruction of the law of England."

ART. IV.― THE LAW OF FEES AND COSTS: No. I.

1. Lehre vom Ersatz und Compensation der Kosten. C. J. KUNTZ. 8vo. 1828.

2. Des Frais de Justice en Matières criminelles, correctionelles, et de simple Police. A. DE DALMAS. 8vo. 1833.

3. The Book of Costs in the Court of Queen's Bench, Common Pleas, and Exchequer. 8vo. Second Edition. By OWEN RICHARDS. 1844.

In our own country, and in many other parts of Europe, valuable works have of late appeared, on the expense of judicial proceedings under different systems of law; but we are not aware of any attempt that has been made to treat the subject as one of comparative jurisprudence, that is, to show the diversities of practice on this point, which have existed not only in different countries and at different periods, but between different tribunals of the same country, at the same time; to trace these historically; and thence to deduce principles by which the fitness of any proposed measure for regulating law expenses, under a given state of circumstances, may safely be tested. The works above noticed, and many others, especially by German writers, afford ample materials for such a disquisition; and, considering how favourable the prevalent philosophy of the day is to the inductive process in all matters of science, we are somewhat surprised that no jurist has thought of applying that process to the science of the law, on a point which comes pretty closely home to "the business and bosom" of every man that has ever ventured into a court of justice. This defect, so far as our limits will permit, we propose to supply in the present article.

It is an undoubted axiom of public law, that, "next to the care of religion, one of the principal duties of a nation relates to justice." And how is that duty to be discharged? Not only must the nation "direct its utmost attention to cause justice to prevail in a state," but more particularly “it must take proper measures for having it dispensed to every one in the most certain, the most speedy, and the least burthensome manner." (Vattel, L. 1. s. 158.) A burthen on some one or other there must be: it must fall either on the state or on the individuals concerned, or on both. Now, we think that the great principles of public law which Vattel, in this part of his work, has so ably developed, clearly lead to three plain rules:

1. That the state, so far as it is able, should furnish its individual members, in every case, with the best means of obtaining justice.

2. That every individual so assisted in the maintenance or recovery of his rights should contribute toward the burthen thereby occasioned, not only his share as a member of the state, but a further portion in respect of the special benefit which he receives.

3. That whatever addition to the expense or trouble of administering justice is occasioned by the crime, the fault, or the misfortune of an individual, should, if possible, be thrown on that individual.

How far, and with what effect these rules have been followed in different ages and countries, is the question of Comparative Jurisprudence, which we here propose to investigate. Not that we mean to review all or even the principal institutions or usages which bear upon it. That would be a boundless, and at the same time an unsatisfactory task. Nations differ so much in their circumstances, past or present, that what might be a very reasonable, or at all events a very intelligible rule for one people or one age, would be for another altogether useless and absurd. We shall select our examples, therefore, from the practices first of some Continental Nations; secondly of different dependencies of the British Crown; and lastly of our own country at different periods of its history.

The subject, as we have said, must be treated historically.