Page:Harvard Law Review Volume 4.djvu/176

160 l60 HARVARD LAW REVIEW, same sort of thing which is thus objected to is very common in judicial language here. Among these questions of fact decided by judges, the construc- tion of writing is a conspicuous illustration. The reasons for leaving questions as to the meaning and construction of writing to the judges appear to be historical and administrative; they do not rest on the ground that these are questions of law, for, mainly, they are not.^ They are not, as a class, decided by the appHca- tion of legal rules, but by a critical reading of the document in the light of the circumstances attending the making of it. Some legal rules there are, for the interpretation of writings, but in a great degree this is a question of the intention of the writer, and so a question of fact.^ Of course, any general statement about writings must be subject to qualification, for there is a great diversity of them. There are '* records," judicial, legislative, executive, such as statutes, judgments, pleadings, — the proving, use, and application of which were the subject of legal rules before juries were born ; these rules largely hold their place to- day for reasons of sense and convenience. In a great degree these matters are for the judges. There are written memorials of law, of which some at least, those of the domestic forum, belong to the judges. There are deeds, charters, and wills, opera- tive instruments, which are the subjects of specific legal rules as to their constitution, form, and phraseology. There is negotiable paper, of which the like is true. There are contracts in writing or written memoranda required by law. There are writings not re- quired by law, but made by the parties merely to be a memorial of a transaction. And there are other writings of a merely casual nature, like ordinary correspondence. Many writings used to be regarded as in themselves constituting, or rather furnishing, by the mere inspection of them, a mode of " trial," of what they re- ported, — as records did. If such a writing were once authenticated, it closed inquiry. Such writings, even records and statutes, might be merely evidential, as when a deed in a question of prescription went to the jury merely as evidence of ancient possession, and not to show when it began.^ But, whatever their character and how- 1 But we all know the usual form of speech about it : "A pure question of law," say the court in Hamilton v. Liv. Co., 136 U. S. p. 255. 2 See Professor Markby's interesting article on "Law and Fact," Law Mag. and Rev. (4th series) ii 313; Edes v. Boardman, 58 N. H. p. S92. 8 Y. B. 34 H. VI fol. 36, pi. 7 (1456).