ciples on which the separation of law and fact, is based. In a word, the student can never hope to comprehend the true scope and drift of the doctrines of either PLEADING or EVIDENCE, without early obtaining a correct knowledge of the distinction between law and fact, and the grounds on which it rests.

II. The CONSTRUCTION, EXPOSITION, or INTERPRETATION of the statutes of the realm, is vested in the Courts of Common Law, and governed by its principles.* It is not to be presumed that the legislature intended to make any innovation upon the Common Law, further than the case absolutely required. The law rather infers that the Act did not intend to make any alteration, other than what is specified, and besides what has been plainly pronounced for if the Parliament had had that design, it is naturally said, that they would have expressed it.† In HEYDON'S CASE, 3 Rep. 7, the Court laid down the following Resolutions, which the student may commit to memory, for they are worthy of it.

"For the sure and true interpretation of all statutes in general, be they penal or beneficial, restrictive or enlarging, of the Common Law, FOUR things are to be discussed and considered :

:

"I. What was the Common Law before the making of the Act?

"II. What was the mischief and defect against which the Common Law did not provide?

"III. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth?

Per Lord North, in Carter v. Crawley, T. Raym. 497 ; and Lord Ellenborough, C. J., in Gould v. Capper, 5 East. 370.

+ 2 Dwarr. Stat. 695

"IV. The true reason of the remedy.

"It was then held to be the duty of the judges, at all times, to make such construction as should suppress the mischief, and advance the remedy: putting down all subtle inventions and evasions for the continuance of the mischief, if pro privato commodo, and adding force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."

How closely judges have, in modern times, adhered to, or widely separated from, these sound principles, it is not for us to say but we content ourselves with referring to a previous page,* where some observations will be found relating to the difficulty of ascertaining the boundaries between judicial interpretation, and legislative authority. Parliament has in late years resolved to become, to some extent, its own interpreter; and seldom passes an act of any importance, without a clause-often a very long onelaying down rules for the interpretation of doubtful words and clauses; to which, also, it often affixes a positive signification and definition. The judges still speak of construing some statutes "strictly,"-others "liberally,”— and so forth. Without presuming to say whether they are wrong in so doing, it may be questioned whether it be not their simple duty to put that plain construction upon the plain words of the legislature, without reference to its objects, which may carry into effect the intention of the framers of the statute. "I have often lamented," said Lord Tenterden,† "that in so many instances the courts have departed from the plain and literal construction of * * As far as the authorities go, I have

statutes.

* Ante, p. 415 et seq.

+ R. v. Turvey, 2 B. & Ald. 522.

always held, and shall always hold, myself bound: but where they are silent, I shall hold myself bound to construe Acts of Parliament according to the plain and popular meaning of their words."

The rules laid down for the construction of Acts of Parliament, will be found well collected in Chitty's Burn's Justice, tit. "Statutes" VI.; in Comyn's Digest, tit. "Parliament (R. [R. 10 a,-R. 28.]);" Viner's Abridgement, tit. "Statutes (E. 6.);" Bacon's Abridgement, tit. "Statutes;" and Dwarris' Statutes, ch. xii.

III. The Courts of Common Law entertain a salutary jealousy on the subject of interference with their jurisdiction. "Nothing," said Lord Mansfield, "but EXPRESS NEGATIVE WORDS [in a statute] shall take away the jurisdiction of the Courts of Common Law."* This is a very important rule; has been acted upon in a great number of cases; and is thoroughly established. When the Courts of Requests Acts, for instance, deprive a plaintiff of his costs, if he choose to sue in the superior courts, he may yet sue there (subject to the loss of costs), unless the statute contain an express negative clause, prohibiting him from suing in a superior court. There are very few of the Acts creating inferior courts (commonly called Courts of Conscience, or of Request), which contain these prohibitory clauses. The majority leave the plaintiff at liberty to resort to the superior courts, if he choose to waive his right to recover costs, in the event of his being successful, from his opponent. Nor if a statute gives a party a particular remedy, does it thereby impliedly deprive him of his Common Law remedy, if he choose to adopt it: but the one is cumulative upon the other. Nor will the Courts

*The King v. Abbot, 2 Doug. 555 (n).

of either Law or Equity allow themselves to be ousted of their jurisdiction, by any agreement of the parties to refer a disputed matter to arbitration. A Court of Equity will not enforce performance of such an agreement, nor a Court of Law allow it to be pleaded in bar of an action.* Courts of Justice are presumed to be better capable of administering and enforcing the real rights of the parties, than any mere private arbitrators, as well from their superior knowledge, as their superior means of sifting the controversy to the very bottom.+

IV. We have seen Mr. Hallam bearing just testimony to the beneficial effects attending the institution of the circuits of the judges, viz. rendering certain and uniform the whole body of the Common Law. Twice a year do the Bench and the Bar carry into every quarter of the country, the principles and practice of that law which at Westminster they are mutually concerned in daily discussing and establishing; so that the humblest suitor in Westmoreland, or at the Land's End, knows that his rights are determined on principles governing the rights of all his fellow-subjects, and by the sworn administrators of the law, at Westminster, assisted by counsel thoroughly versed in the principles of that law, by daily argument and research, in the superior courts before those same judges. It was the manifold and grievous evils attending the numerous local courts formerly existing in this country, which led to their abandonment. "They

• Street v. Rigby, 6 Ves. 815-8; Thompson v. Charnock, 8 T. R. 139. Such an agreement, however, becomes binding, when it has been acted on and an award made. Per Lord Abinger, C.B., in Cleworth v. Pickford, 7 M. & W. 321.

+ Id. ib and 1 Stor. Eq. Jur. 547.

bred," says the illustrious Hale,* "great inconveniences : uncertainty, and variety in the law, through the ignorance of the judges, who in process of time neglected the study of the English law. These courts also had great variety of law, especially in the several counties. For the decisions or judgments, being made by divers courts, and several independent judges and judicatures, who had no common interest among them, in their several judicatures; thereby, in process of time, every several county would have had several laws, customs, rules, and forms of proceeding: which is always the effect of several independent judicatures, administered by several judges. For these and many other evils, the writ of False Judgment provided only an ineffectual remedy: therefore the king [Henry II.], by advice of his parliament, instituted JUSTICES ITINERANTS.” And again, in the same work, Sir Matthew Hale has left on record this, his solemn protest against the re-establishment of these local tribunals. "The greatest danger imaginable is, that it may give a handle to the erecting of county judicatures, to the countermining of the kingdom. And I must confess, were this to be the effect of it, I think it were the most pernicious thing imaginable. If men will be giddy and unsteady, and we should suppose Parliament not to be sensible of their own and the public concern, some may suppose that 57. may in time rise to 50l., and so the courts at Westminster be destroyed. He that supposeth this, may suppose things yet more dreadful." The evils of local courts are experienced to a grievous extent in America. "The principle of bringing justice home to every man's door," says the late distinguished traveller, Captain Basil Hall, "and of making the administration * Hist. Com. Law, pp. 138, et seq., and p. 146.