Besides these there is a limited class of presumptions, the præsumptiones juris et de jure of the Roman law, which are absolute and conclusive in their nature, and may not be rebutted by evidence to the contrary1. They are in reality valid conclusions of law, and therefore cannot be submitted to the cognizance of a jury. They are founded on reasons of convenience, and amount to no more than this, that the law has said that certain consequences shall be deemed to flow from given premises, although no such consequences may have in fact resulted from them. Such was the old rule of law that a child born of a mother whose husband lived within the realm, or inter quatuor maria, as it was called, was conclusively held to be legitimate. So at the present day, if a man marries a woman visibly pregnant, it is a conclusive inference of law that the child afterwards born is legitimate. Formerly this class of presumptions was more numerous than in later times, when the tendency has been to adopt a more rational rule, and consider them conclusive only in absence of proof to the contrary. But there are several statutes which proceed upon the old principle. Such is that which interposes a bar to the recovery of debts after a certain period has elapsed, the same cart, and the question was whether the wife of the son was entitled to dower, the jury found that the son survived the father, as he appeared to have struggled the longest. Cro. Eliz. 503.

Conjectura vel a LEGE inducitur vel a JUDICE. Quæ ab ipsa lege inducitur, vel ita comparatur, ut probationem contrarii haud admittat, vel ut eadem possit elidi. Priorem doctores præsumptionem juris et de jure; posteriorem præsumptionem juris appellant. Heinecc. Elem. Jur. Civ.-The Lex here mentioned corresponds to our 'Court;' the Judex to our 'Jury.'

upon the presumption that payment has been made; and that which, in cases of prescription, prevents a disturbance of the right by presuming a grant from the owner of the fee.

SECTION V. Utility of Written Pleadings.

For

THE English system of pleading is, in theory, admirably adapted for civil trials by the intervention of ajury; or perhaps it would be more correct to say, it has grown as an offshoot out of that system. when the true principles of pleading are kept in view, a more efficacious instrument for enabling the jury to discharge their peculiar functions can hardly be imagined. The plaintiff makes a written statement of his cause of complaint, and to this the defendant puts in an answer, which consists, at his option, either of a denial of the facts alleged on the other side, or an admission of them with the addition of some other facts which, in his opinion, justify his conduct. Or he asserts, that taking all that is said by the plaintiff to be true, it gives the latter no legal right of action. In this case he is said to demur, and the question is obviously one of law, ready at once for the decision of the court. But if there is no demurrer, then the plaintiff must either reply or demur to the fresh matter of fact alleged by the defendant; and here again the defendant must either rejoin in like manner as he answered before, or he must demur. And so the pleadings proceed until the dispute between the parties ultimately resolves itself into the assertion of

some fact, or facts, by the one side which are denied. by the other, and it is the province of the jury to determine by their verdict which is right; or else a question of law is raised for the decision of the court. No matter how complicated the transaction may have been, it will generally be found, that the real points in dispute are few, and it is of immense importance to have these distinctly evolved, and presented for decision in a precise and categorical form. This is done by the preliminary operation of written pleadings, which have fallen into disrepute solely on account of the grievous abuses which have crept into and deformed the system. If the true principle of pleading were kept steadily in view, and the system freed from the oppressive technicality which now disgraces it, it would well deserve the eulogium passed upon it by Sir Thomas Smith, in his Commonwealth of England, written in the reign of Elizabeth. Having seen,' he says, 'both in France and in other places, many devices, edicts, and ordinances how to abridge process, and to find how that long suits in law might be made shorter, I have not perceived nor read, as yet, so wise, so just, and so well devised a mean found out as this by any man among us in Europe. Truth it is, that when this fashion hath not been used, and by those to whom it is new, it will not be so easily understood, and therefore they may peradventure be of contrary judgment; but the more they do weigh and consider it, the more reasonable they shall find it.' When trial by jury in civil cases was introduced into Scotland,

in the year 1815, it was immediately discovered that some such mode of preparing the issues of law and fact was indispensable. To leave the whole circumstance of an involved and intricate transaction at large to the jury, without telling them on what specific points their opinion was required, was to impose upon them a task to which they were inadequate; and error and confusion would have been the result. Hence it became necessary, as we shall presently see, to frame distinct issues, in the shape of questions, to be submitted to the jury, and these questions, when properly drawn, embrace seriatim all the facts really in dispute.

CHAPTER XIII.

THE JURY SYSTEM IN SCOTLAND.

SECTION I. Jury Trial in Civil Cases.

F we could be quite sure that the book called Regiam Majestatem gives a true account of the old law of Scotland, and was generally received as an authority in the courts there, we might safely assume that trial by an assise of twelve jurors in civil cases was almost coæval in Scotland with the establishment of that institution in England. But it is doubtful whether the book in question is what it professes to be. The best lawyers do not regard it as an authority, and we must receive with caution its statements as to the proceedings by assise in Scotland in ancient times1.

1

The date and authenticity of the Regiam Majestatem have been a subject of much controversy amongst Scotch lawyers. All admit that it is so identical with Glanvill's treatise, that the one must have been copied from the other. But the question is, which is the original and which is the copy? Skene, Dalrymple, and other writers of eminence, declare themselves in favour of the prior claim of the Scotch work, and maintain that it is a genuine code of the laws of Scotland, promulgated by David I., who reigned from 1124 to 1153. On the other hand, Craig, Lord Stair, Lord Hales, and others, are of opinion that the Regiam Majestatem was copied from Glanvill, interpolated with matters relative to Scotland, and imposed upon the nation as a capitulary of one of their ancient kings. See Ross's Lectures on the Law of Scotland (Edinburgh, 1822), 11. 60-64. This writer thinks it evident that the Scotch work was copied from Glanvill, and afterwards adapted to the