Page:Harvard Law Review Volume 4.djvu/168

152 152 HARVARD LAW REVIEW, fundamental conception is that of a thing as existing, or being true. It is not limited to what is tangible, or visible, or in any- way the object of sense ; things invisible, mere thoughts, intentions, fancies of the mind, propositions, when conceived of as existing or being true, are conceived of as facts. The question of whether a thing be a fact or not, is the question of whether it is, whether it exists, whether it be true. All inquiries into the truth, the reality, the actuality of things are inquiries into the fact about them. Noth- ing is a question of fact which is not a question of the existence, reality, truth of something, of the rei Veritas} But this, it may be said, is a portentous sort of definition ; it is turning every ques- tion into a question of fact. That is true, so far as any question asks about the existence, the reality, the truth of something. But of course in actual use the term has other limitations. In the sense now under discussion, as we have noticed, " fact " is con- fined to that sort of fact, ultimate fact, which is the subject of the issue. Moreover, that kind of fact which w€ call '' law " is dis- criminated, and set apart under its own name. 1 Bentham, who is not very instructive here, defines thus : " By a fact is meant the existence of a portion of matter, inanimate or animate, either in a state of motion or in a state of rest." But he divides facts into (i) physical and psychological; (2) events and states of things ; {3) positive and negative ; adding that " the only really existing facts are positive facts. A negative fact is the non-existence of a positive one, and nothing more," (Works, vi. 217-218.) And so Best, Ev. §§ 12, 13. Holland (Jurisprudence, 3d ed. 88) simply says : " ' Facts ' (Thatsachen, Faits), which have been inadequately defined as ' transient causes of sensation,' are either ' Events ' or * Acts.* " Sir Wm. Markby ( Law Mag. and Review, 4th Series, ii. at p. 312), in a neat and valuable discussion of " Law and Fact," after remarking that he would rather not pledge himself to any final definition of what a fact is, adopts for his immediate purpose Stephen's definition in the first two edi- tions of his Digest of Evidence, art. i, viz.: "* Fact' means (i) everything capable of being perceived by the senses, (2) every mental condition of which any person is conscious." But Stephen afterwards withdrew this definition. He had been keenly criticised by a jvriter in the Solicitors' Journal (vol. 20, 869, 870 ; Sept. 9, 1876), who said, " The proper subject of afiirmation and negation is not * facts,' but propositions ; " and, among other valuable remarks, inquired how it was with such matters as negligence, custom, owner- ship, the defamatory quality of a writing, and the qualities of persons and things gener- ally. "The phraseology," he added, " is really applicable only to the rudest form of jurisprudence." The writer thought that no definition is necessary. These criticisms took effect; in his third edition (and so ever since) Stephen dropped any attempt at definition, and substituted in art. i, this: "'Fact' includes the fact that any mental condition of which any person is conscious exists ; " and in his preface to the third edition, after remarking that he " had been led to modify the definition of fact by an acute remark made on this subject in the Solicitors' Journal," he added that "The real object of the definition was to show that I used the word • fact ' so as to include states of mind." See the learned consideration whether a thing be quid facti or quid juris, in Menochius, De Praesumptionibus, Lib. i, qu. 11.