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made the action of ejectment applicable to suits concerning real property by pretending, again untruly, that the suit was brought by a lessee of the party really interested. And as a last example, they frequently allowed a wager to be stated and sued on, though no such wager had ever been made or thought of. But Bentham has declared that in his opinion fictions are falsehoods, and that a Judge who invented a fiction ought to be sent to gaol for doing so. What, I should like to know, does an average juryman think of them? Doubtless he takes the Judge's word for it that it is all right somehow. But must he not at the same time carry away the conviction that his function as a juryman of finding the truth is not a real one? Whatever a lawyer may do, a juryman should only be asked to find plain facts. Gaius puts the matter on the right ground. Speaking of one of the fictions of the Roman law, by which a man could be treated as a thief caught in the act, though he had not really been so, and of what was called legal as distinguished from actual detection (just as our lawyers sometimes talk of legal fraud), Gaius, with obvious truth, as well as good sense, rejects any such fanciful distinction ; neque enim lex facere potest ut qui manifestus fur non sit, manifestus sit ; non magis quam qui animo fur non sit, fur sit; at illud sane lex facere potest, ut perinde aliquis pænâ teneatur atque si furtum admisisset, quamvis nihil admisserit. That I take to be the true meaning of a fiction. Judges begin to attribute to certain facts consequences, which hitherto were only attributable to other facts. This is all that is really done, and it is in this way, I conceive, that the mendacious aspect of a fiction is got rid of. In this view a fiction has been explained to be a mere artifice of juristical terminology; and so in one sense it is. Whether Judges are right or wrong in having recourse to such an artifice may be questioned, but there is in it nothing mendacious.
Such refined considerations are, however, wholly out of place in the presence of a Jury. Even if they were made
intelligible to them their answer would still be, "presume what you like, attribute to circumstances what consequences you please; that is your business ; our business, as we have been told by you a hundred times, is to find the truth according to our consciences, and no legal quibbles whatsoever can absolve us from that duty.”
Nor is there the slightest difficulty, as far as I can see, barring the difficulty which is created by the decisions, in getting rid of the Jury's intervention, so far as it relates to the existence and subsequent loss of the grant. One of the oldest principles of law, and one of the most universal, but which these decisions lose sight of, is contra fictionem non admittitur probatio. For as it is pertinently asked : Quid efficeret probatio veritatis, ubi fictio adversus veritatem fingit ? Our own Judges in every other instance but this have adhered to the same rule. It is the Court and not the Jury which surmises the existence of a fact," which surmise," as Blackstone says, " the defendant is not at liberty to dispute.”—1 Comm., 43.)
On the other hand, though it is clearly wrong to ask a Jury to find as a fact that a grant had once existed which is well known never to have existed, it does not follow that there is in such cases no question for the Jury at all; and it will, I think, help to get rid of a good deal of difficulty, if we consider what that question is. Because it seems to me that the opinion which prevailed in Angus v. Dalton was given under a wrong impression as to what other course it was open to adopt. It might be reasonably feared that to ask the Jury whether there had been a grant, just as they might be asked any other question, would defeat the whole object, as the Jury would certainly, if left to themselves, find the truth. So again, to hold that enjoyment of the right as owner thereof in itself gave a title, is a course for which the previous decisions give no sanction, and which is, moreover, in the case of negative easements at any rate, manifestly unjust. And so the
Judges apparently deem it necessary, 'as the only other alternative, to ask the Jury whether there was a grant, with directions that under such and such a set of circumstances they were bound to find that it had existed, whether they believed it or not. The Judges obviously think, and it is very reasonable that they should think, that under certain circumstances the right ought, and that under other circumstances it ought not to be acquired by enjoyment. But it does not seem to have occurred to them that it is perfectly easy to regulate the acquisition of the right in any way you please, without putting any pressure upon the conscience of the Jury. The Judges have only to settle—what it is obviously their province to settle—the circumstances under which the right may be gained, and to work the fiction accordingly. They may say, if so minded, that in order to give the claimant the benefit of the fiction the enjoyment must have been apparent, and that it must not have been obtained by violence or fraud ; they may say that the claimant will not have the benefit of the fiction, if the servient owner has been during the time of enjoyment insane; they may say that he will have it, notwithstanding that the servient owner has all along protested against the enjoyment, but not if the protest has been followed by interruption. And of course it would be for the Judges in each case to ask the Jury, and for the Jury to determine what in fact were the circumstances under which the right claimed had been enjoyed. Even if the Jury could in law refuse to answer these inquiries, there is practically no likelihood that they would do so, nor under the present rules of pleading can I imagine that there would be any real difficulty in placing these questions before the Jury for their consideration. If there is any difficulty it ought to be removed.
The first and most essential step, therefore, is to get rid of this tampering with the conscience of the Jury, but before the law upon this subject can be placed upon a
satisfactory footing, another notion which pervades one of the judgments in this case must also be got rid of, and that is that all acquisition of easements by enjoyment rests upon the presumed assent of the servient owner. It is hard to know how to attack a fallacy so baseless, or to refute a proposition which, the moment it is examined, melts away into nothing. Does it mean a real assent, and that the assent in that case confers the right ? It is sufficient to dispose of this suggestion to answer that a real assent hardly ever exists, and that even if it did it is clear law that it would not confer the right, which can only be created inter partes by an instrument under seal. Does it mean a fictitious assent? Then the proposition comes to this, that the law is bound irrevocably to a fiction, which, besides being absurd in itself, is contradicted by the fact that out of England innumerable easements have been acquired without resorting to any presumption of a fictitious assent whatsoever.
Akin to this is the error about acquiescence. Following out the erroneous notion that in prescription there is always a presumption of assent, English Judges have asserted that an easement cannot be gained unless the enjoyment has been acquiesced in by the servient owner. More than once it was said in the course of this case that a man who does not know that his own premises lend support to those of his neighbour cannot be said to acquiesce in their doing so, and, as a sequence from this, it is observed that where the enjoyment is secret it cannot be gained. This view of the law is generally based upon the expression “clam” of the Roman lawyers, but the meaning of this expression has been misconceived. To do a thing "clam” in the Roman Law was to do it without notice to the person who, the doer had or might have had reason to suppose,
would object to its being done; clam facere videtur qui celavit adversarium neque ei denuntiavit, si modo timuit ejus controversiam, aut debuit timere. This was looked upon as
a dishonest mode of acquiring possession, and for that reason resulted in no benefit to the party. It is rectitude of conduct on the part of the dominant owner, and not knowledge on the part of the servient owner, which the Roman Law required. The opinion to the contrary founded on a single passage of the Code has been shown by Savigny (Syst IV., 494) to be erroneous, and it is now, I believe, fully agreed (see Vangerow, Pand, s. 351) that the scientia domini was not a requisite to the acquisition of easements by prescription under the Roman Law.
Strange to say, whilst insisting vehemently upon the necessity of presumed assent or acquiescence on the part of the servient owner, English Judges almost in the same breath declare that it is of no avail to prove that there was no assent at all on his part, nor even that he actually dissented. What, as Lord Justice Bramwell once asked in a similar case, must any man who is not an English lawyer think of such a contradiction as this ? No explanation but one is possible, namely, that the Judges are seeking for the right thing under the wrong name. They go on to say that dissent followed by interruption prevents the acquisition. Then why in the world not say, in plain and intelligible language, that what prevents acquisition is not the absence of assent or the dissent of the servient owner, but the interruption itself; and for the plainest of all possible reasons. Not because interruption negatives acquiescence, or because the absence of interruption leads to a presumption of assent. If this were the true ground, it would be merely arbitrary to give to an actual interruption an effect which was not given, say, to a distinct written notice; and we should be guilty of the absurdity of giving to a fictitious assent an effect which is not given to a real one. The true ground why interruption prevents acquisition is a far stronger one, namely, that continuous enjoyment being the very ground and basis of the acquisition, the acquisition is as completely stopped by interruption of the enjoyment as