Page:Harvard Law Review Volume 4.djvu/167

151 "LAPV AND FACT'' IN JURY TRIALS. 151 sons think it unnecessary.^ It is certainly true that the term is widely used in the courts, much as it is used in popular speech ; that is to say, in a tentative, literary, inexact way ; and there are those who would let all such words alone and not bother about pre- cision. But as our law develops it becomes more and more important to give definiteness to its phraseology; discriminations multiply, new situations and complications of fact arise, and the old outfit of ideas and phrases has to be carefully revised. Law is not so unlike all other subjects of human contemplation and re- search that clearness of thought will not help us powerfully in grasping it. If terms in common legal use are used exactly, it is well to know it; if they are used inexactly, it is well to know just how they are used. I. "Fact" and its other iorms, factum, fait y stand in our law books for various things, e.g.y (a) for an act ; just as the word fact does in our older general literature. *' Surely," says Sir Thomas Browne,^ " that religion which excuseth the fact of Noah, in the aged surprisal of six hundred years," etc. ; and so Bracton : ^ " Since he is not the agent of the one who made him essoiner, it is not for him to prove another's status or another's act" (factum). (b) For that completed and operative transaction which is brought about by sealing and executing a certain sort of writing ; and so for the instrument itself, the deed (factum), {c) As designating what exists, in contrast with what should rightfully exist, — de facto as contrasted with de jure, {d) And so, generally, as indicat- ing things, events, actions, conditions, as happening, existing, really taking place. This last is the notion that concerns us now. It is what Locke expresses * when he speaks of " some particular existence, or, as it is usually termed, matter of fact." The 1 For instance, a very able writer in the Solicitors' Journal (vol. 20, 869). " A defirti- tion," he remarks, " is the most difficult of all things. There is far greater probability o£ a correct use of terms than of a correct definition of them. The best definition, therefore, is that by use. A correct use renders definition unnecessary, because the law will speak plainly without it. And where it is unnecessary to define it is also dangerous, because an incorrect definition will confound the correct use." etc. That is a true utterance of the inherited instinct of English-speaking lawyers and judges. But it is quite certain that as our law grows it must be subjected more and more to the scrutiny of the legal scholar, and that it will profit by any serious and competent effort to clarify and restate it. 2 Pseudodoxia Epidemica, Book v. ch. xxiii. sect. 16; on the Vulgar Error that " it is good to be drunk once a month." 8 Fol. 337.
 * Human Understanding, Bk. iv. chap. 16, sect. 5.