*

the distance proposed by Mr. Dudley Field, in his Outlines of an International Code, as a reasonable distance in the present day, inasmuch as cannon shot can now be sent more than two leagues? It is useful to submit any suggested innovation on the settled practice of nations to the test of reciprocity. England, we venture to think, would be startled - we might almost say convulsedif the electric wire, which connects the two hemispheres in friendly intercommunion of thought and action, should suddenly flash across the Atlantic the tidings, that a Bill had been tabled in the House of Representatives at Washington, enacting, that "the portion of the High Seas, which lies between the Gulf Stream and the seacoast of the United States constitutes part of the dominions of the American Union." Yet such a Bill would be practically less unreasonable, than the Bill which is now on the table of the House of Commons, for it would not interfere with the free navigation of the Gulf Stream itself, the most convenient maritime highway for vessels of all nations, navigating along the North American Coast from the southernmost point of Florida to the Great Bank of Newfoundland. On the other hand, the Bill, which is now on the table of the House of Commons, if it were to pass into a Law, would constitute the Downs a municipal roadstead, which Lord Stowell has pronounced to be a common passage and highway to the German Ocean (The Neutralitet, 6 Ch. Robinson, p. 34); while it would arrogate to England a right, whenever the Government of the Queen should be so minded, to forbid to the vessels of other nations the use of the most convenient part of the narrow Channel, which is the only Maritime Highway,

The subject of the extension of the neutral zone of sea beyond the limits of three miles to five miles, or even as far seawards as eight miles, has been recently mooted on behalf of the United States by Mr. Seward in a corres. pondence with the British Legation, at Washington, in 1864, since made public.

by which the commerce of Northern Europe can be brought into direct connection with the commerce of half the countries of the Civilized World.

TRAVERS TWIss.

NUM

II. LAW AND FACT.

́UMBERLESS writers of every age and country have laid down the proposition that every disputatious proceeding in a court of justice resolves itself into two parts-first to ascertain the facts of the case, and then to apply the rule or rules of law which govern it.

This classification, though universally adopted, is one to which reference is more frequently made in England than elsewhere, because the Jury system which enters so largely into our administration of justice is generally said to be based upon this classification. It is the function of the Jury (we are told) to ascertain the Facts, whilst it is the function of the Judge to determine and apply the Law. Any confusion of law and fact would, it is supposed, lead to a collision between judge and jury: no such collision takes place, and this is considered as a proof that the separation is complete.

Before I proceed to examine whether this separation is as complete as represented, I wish to take a preliminary precaution against confusion of language: for it is not possible to examine accurately the differences which govern a classification, unless we first assign accurate meanings to the terms in which the classification is expressed.

What is "Law" has been the subject of most elaborate investigation. Austin, in his Province of Jurisprudence, has determined the meaning of "Law" to be a rule set by a political superior to political inferiors and enforced by a sanction.

A question of law, therefore, will be a question as to what rule the political superior, otherwise called the sovereign authority, has laid down on a particular subject.

The term "Fact" has never been subjected to the same rigorous analysis, and I would, therefore, rather not pledge myself to any final definition of what a fact is. It will be sufficient for my present purpose to take the definition given by a recent learned writer (Stephen's Digest of the Law of Evidence, p. 1), who declares a fact to mean "(1) everything capable of being perceived by the senses; and (2) every mental condition of which any person is conscious."

It has been frequently pointed out that the inquiry-what command has been issued by the sovereign authority-falls within the definition of fact as given above. But in a discussion like the present it would be most inconvenient to substitute a long periphrasis for a single term, and I do not know how this is to be avoided except by asking the reader to bear in mind, that by questions of fact I mean all questions of fact except those of one particular kindnamely, those which are also questions of law.

With this preliminary explanation, I shall proceed to examine the distinction between questions of law and questions of fact by taking one or two particular examples of its application. And let us take one of the commonest questions which arise in a court of justice-the construction of a document. Is this a question of Law or of Fact, according to the above definitions of those terms?

Before attempting to answer the question, I will disembarrass the inquiry of one or two complications. The surrounding circumstances, as they are called, that is, the circumstances which existed when the document was drawn

up, and with reference to which it was drawn up, are always to be looked at when construing the document, and of course the inquiry what these circumstances were is a question of fact, if they are in dispute. So also the authenticity of the document is a question of fact, if not admitted. I will assume, however, that on these questions there is either no dispute, or that the dispute has been settled. Is the question of construction which presents itself after this elimination a question of law or a question of fact?

To the question so put the logical answer ought I think to be as follows:-the writing is evidence of intention; the question really submitted for decision is, what did the parties whose language is under consideration intend? This is a question as to a person's mental condition, and that, according to Sir James Stephen's definition, is a question of fact.

Suppose however that the matter is put thus:-Is the construction of a document a question for the Judge or for the Jury? Bearing in mind the supposed relative functions. of judge and jury, the two questions ought to be identical, and the logical answer must be-it is a question of Fact for the Jury.

We know, however, that no such answer as this is given. in those courts of justice, where judge and jury join in the administration of the law. We know that universally the Judge takes questions of construction clean out of the hands of the Jury, and decides them himself; nor does he allow that he thereby encroaches upon functions which do not belong to him: questions of construction, when it has to be ascertained who is to decide them, are always assumed to be questions of law.

No doubt the sovereign authority can attribute and sometimes has attributed certain legal consequences to the use of certain language, whether the parties intended those consequences or not: so also even where the sovereign authority has not directly interfered, there are what are

called "technical expressions" to which the traditions of lawyers, adopted by judges, have appropriated certain fixed meanings. These and some few other rules of construction which have grown into use, are for the most part rules of law proper. In such cases, no doubt, apart from the question of fact-what language has been used-the only other question-what duty or obligation the language creates, modifies, or declares-is correctly treated as a question of law. But strike out these cases from the list: still the Judge never hesitates in the cases which remain to take upon himself to decide the question of intention.

The matter might present itself in a somewhat different aspect were the construction of a document that which it once was a rigidly strict and literal interpretation of the instrument itself, and not a search through the words for the intention of the parties. The grammatical method of interpretation has however given way entirely to the logical; and the logical method has extended the basis of its inferences beyond the four corners of the instrument itself. Whatever remnants of the old language may survive, there is no doubt that modern judges do really collect the intention of the parties from evidence of which the writing forms the chief, but not the only part. If it is inaccurate to call this a question of construction, it is an inaccuracy of established language.

I have purposely spoken only of documents. Whether the course taken in Courts of Common Law when dealing with oral manifestations of intention is precisely the same, is not easy to determine. The functions of the Judge and Jury are not here so markedly distinct. The words are very rarely ascertained with such absolute certainty as to enable the Judge to separate and to reserve to himself exclusively the question of construction; and whether they be so ascertained or not, it is always difficult to say whether the Judge in giving his opinion to the Jury is (to use his own phraseology) "putting a construction upon the words "