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which he bids them to accept, or advising them how he would, were he in their place, draw the inference as to intention. The friendly and confidential mode in which a judge generally addresses á jury renders it very often unnecessary for him to disclose upon which of these two grounds he is proceeding.
If indeed the stage at which the Judge and Jury cooperate in settling the matters in dispute—the trial as it is called—were the last in the proceedings; if, after the verdict of the Jury were given, the matter were at an end, it would very likely have happened that the question of “construction,” even where the intention had been expressed in writing, would not have been so exclusively appropriated by the Judge as it is now. The Judge, in imparting his view to the Jury, would very likely in this as in other similar cases, have hovered between direction and advice. And even in the case of explicit direction there would be no certainty that the direction would be followed. But the trial at Nisi Prius is not the conclusion of the proceedings. There is a later stage from which the Jury are entirely excluded, and where the authority of the Judge is supreme. By applications to the Court sitting in banco at Westminster Hall after the trial is over the result of the trial may be neutralised, or even completely changed. A new trial may be ordered, the judgment may be arrested, or the verdict may be entered in the exactly opposite way to that found by the Jury. And thus it is placed beyond doubt that the question of “construction,” though it is, as we have shown, really a question of fact, is reserved entirely to the Judge, and is by him treated as a question of law.
Let us turn now to another region—that of custom. I do not desire to enter here upon the difficult enquiry—by what process custom generally grows into law; that does not, at this moment, press for consideration. I only desire to observe that there is a very large number of cases in which it is considered that the custom of a particular class.
port, market, or trade, annexes certain incidents to every contract made in the place where, or by the persons amongst whom, the custom holds, unless the custom is excluded by the actual terms of the bargain. The effect of this has been described to be that the contract must be read with a clause containing the terms of the custom added to it. In construing contracts of this class, therefore, we are simply brought back to a question of intention, which is, according to our definition and the explanation already given, strictly speaking, a question of fact, namely, what is the custom ? and how far and in what manner does. it modify the other terms of the contract ? How this question has been actually treated in Courts of Common Law could not be now stated in any reasonable compass. I shall, however, be able sufficiently to attain my present purpose if I give one example. Amongst the widest and most general of such customs are those which relate to Bills of Exchange. To this particular class of contracts, incidents have been annexed by custom which do not belong to other contracts relating to the payment of money. Some of these incidents are now so well established, and their operation is so extensive and precise, that we are apt to forget their origin. Let us trace one of them to its source. We find that in a case tried before Lord Mansfield, the question arose whether a bill of exchange drawn payable to order, and endorsed to a particular person without the words “or order” was negotiable. Strange as it may now seem, five witnesses, including the cashier of the Bank of England, a well-known banker, and a “very eminent and experienced merchant," deposed to the effect that according to the custom of merchants, a bill of exchange so endorsed was not negotiable. Lord Mansfield then told the Jury that by the general law the bill was negotiable, but that, if they were satisfied that there was a particular usuage to the contrary, and that by the custom of merchants and traders the bill was not negotiable, they might soʻfind. They did so find, and the verdict was entered for the Defendants. But the verdict was afterwards set aside by Lord Mansfield himself upon this remarkable ground—that the general law as to the negotiability of bills of exchange so endorsed was settled, and could not be contravened by the usuage of merchants, evidence of which ought not to have been received ! When one reflects that the negotiability of bills of exchange is itself founded on the custom of merchants, one sees that this was a pretty strong decision, and probably few judges, except Lord Mansfield, would have ventured so far. How it is to be reconciled with the ordinary view of the respective functions of judge and jury it is difficult to imagine : and yet it never seems to have struck any one that the Jury had been improperly treated.
These instances serve to show that, whatever else may be the value of the separation of questions which arise in a Court of Justice into questions of fact and of law, the separation is not, in practice, very rigidly adhered to. But of course it will be understood that cases in which Judges have transgressed or re-adjusted the boundaries which separate their province, from that of the Jury, are not quoted merely to show that such a transgression or readjustment has taken place. This displacement of functions has in itself no interest whatsoever for us in the present inquiry. Were the Jury system wholly or partially abolished, the lines of demarcation between fact and law would not necessarily be affected. What I want to find out is, whether or no this classification is correct, and if not, how it may be amended. Except as throwing light upon this inquiry it is indifferent to me now whether or no in some instances the terms have been misapplied, or, whether the Jury have been excluded from their strictly proper functions.
The present interest of these examples consists entirely in the fact that the transfer of functions from the Jury to
the Judge has always resulted in an important change in the mode in which the questions to be dealt with are disposed of; and it is the precise nature of this change to which I wish to draw attention. The Judges in deciding questions of intention or of custom might, no doubt, had they so chosen, have treated themselves simply as substituted quoad hoc for the Jury. This they have occasionally done, and this would have been the more correct course, if they did anything at all. But in most cases it would have been too glaring a usurpation for judges to take questions into their own hands and deal with them boldly as questions of fact. Another course was to lay down fixed rules of presumption as to these questions, in other words, fixed rules of law, and so to have eliminated altogether the question of fact; and this judges have done to a considerable extent. To do this was not beyond the functions of judges as traditionally understood; and questions of intention and questions of custom have by means of judicial decision come thus to be, in some cases, pure questions of law. Rules have been laid down relating to these matters as firm and rigid as any Act of Parliament. In this class of cases, therefore, there is no confusion of things, nor even of names, and they need not be further considered. But as to many questions which arise, and which are dealt with by judges, whilst no such strict rules have been laid down as will enable us to say that they have been transferred to law, they nevertheless do not remain pure questions of fact. Not only does the Judge instead of leaving them to the Jury decide them himself, but he decides them upon considerations differing materially from those upon which he would decide them were he sitting upon a jury. I need not stop to illustrate this. It will be apparent to any one who has studied, even superficially, the proceedings of our Courts of Common Law, and some examples of it will be given in the ensuing pages. The result is that the questions so dealt with occupy precisely that doubtful region between fact and law, the existence of which I desire to bring under observation.
Litigation in Courts of Chancery is carried on in a different manner to that in Courts of Law. There is in those Courts no separation of functions between several persons forming one tribunal. The Chancery Judge sits upon the whole case, and decides both upon law and fact. And what is most important, not only does the same individual decide all the questions which arise, whether they be law or whether they be fact, but he is not called upon to make any further separation of those questions than he finds convenient in order to express the reasons for his decision, so far as he chooses to express them. It is, therefore, not always easy to say how a particular question has been treated, whether as law or as fact. Still we may, with a little searching, discover here also the same debateable region which cannot be decisively assigned either to law or fact. For example, take the question which so often arises in Courts of Chancery, whether a purchaser has notice of an encumbrance. Notice, of course, means knowledge ; and there has been no direct attempt to deny that this is a question of fact. But there has been a strong and persistent attempt to lay down rules as to what constitutes evidence of notice. This, if successful, is, of course, in reality a roundabout way of altering the law as to notice. When a man says to me that henceforth, under all circumstances, upon certain facts being proved I shall be presumed to know a thing, he really says that consequences, which formerly only resulted from knowledge, shall now result from circumstances other than knowledge. Now if the only result of this were to make some alteration in the law of notice, and to introduce a new and definite thing called “ constructive notice,” or “notice in law,” or by some such name, there would be nothing whatever in this germane to our present purpose. Judges, though they generally try to conceal it, do make law to a very large extent. But here