Blackstone’s Commentaries with Notes of Reference (1803)

St. George Tucker

Of Issue and Demurrer

ISSUE, exitus, being the end of all the pleadings, is the fourth part or stage of an action, and is either upon matter of law, or matter of fact.

AN issue upon matter of law is called a demurrer: and it confesses the facts to be true, as stated by the opposite party; but denies that, by the law arising upon those facts, any injury is done to the plaintiff, or that the defendant has made out a legitimate excuse; according to the party which first demurs, demoratur, rests or abides upon the point in question. As, if the matter of the plaintiff’s complaint or declaration be insufficient in law, as by not assigning any sufficient trespass, then the defendant demurs to the declaration: if, on the other hand, the defendant’s excuse or plea be invalid, as if he pleads that he committed the trespass by authority from a stranger, without setting out the stranger’s right; here the plaintiff may demur in law to the plea: and so on in every other part of the proceedings, where either side perceives any material objection in point of law, upon which he may rest his case.

THE form of such demurrer is by averring the declaration or plea, the replication or rejoinder, to be insufficient in law to maintain the action or the defense; and therefore praying judgment for want of sufficient matter alleged.1 Sometimes demurrers are merely for want of sufficient form in the writ or declaration. But in case of exceptions to the form, or manner of pleading, the party demurring must by statute 27 Eliz. c. 5. and 4 & 5 Ann. c. 16. set forth the causes of his demurrer, or wherein he apprehends the deficiency to consist. And upon either a general, or such a special demurrer, the opposite party avers it to be sufficient, which is called a joinder in demurrer,2 and then the parties are at issue in point of law. Which issue in law, or demurrer, the judges of the court before which the action is brought must determine.

AN issue of fact is where the fact only, and not the law, is disputed. And when he that denies or traverses the fact pleaded by his antagonist has tendered the issue, thus, “and this he prays may be inquired of by the country,” or “and of this he puts himself upon the country,” it may immediately be subjoined by the other party, “and the said A. B. does the like.” Which done, the issue is said to be joined, both parties having agreed to rest the fate of the cause upon the truth of the fact in question.3 And this issue, of fact, must generally speaking be determined, not by the judges of the court, but by some other method; the principal of which methods is that by the country, per pais, (in Latin, per patriam) that is, by jury. Which establishment, of different tribunals for determining these different issues, is in some measure agreeable to the course of justice in the Roman republic, where the judices ordinarii determined only questions of fact, but questions of law were referred to the decisions of the centumviri.4

BUT here it will be proper to observe, that during the whole of these proceedings, from the time of the defendant’s appearance in obedience to the king’s writ, it is necessary that both the parties be kept or continued in court from day to day, till the final determination of the suit. For the court can determine nothing, unless in the presence of both the parties, in person or by their attorneys, or upon default of one of them, after his original appearance and a time prefixed for his appearance in court again. Therefore in the course of pleading, if either party neglects to put in his declaration, plea, replication, rejoinder, and the like, within the times allotted by the standing rules of the court, the plaintiff, if the omission be his, is said to be nonsuit, or not to follow and pursue his complaint, and shall lose the benefit of his writ: or, if the negligence be on the side of the defendant, judgment may be had against him, for such his default. And, after issue or demurrer joined, as well as in some of the previous stages of proceeding, a day is continually given and entered upon the record, for the parties to appear on from time to time, as the exigence of the case may require. The giving of this day is called the continuance, because thereby the proceedings are continued without interruption from one adjournment to another. If these continuances are omitted the cause is thereby discontinued, and the defendant is discharged fine die, without a day, for this turn: for by his appearance in court he has obeyed the command of the king’s writ; and, unless he be adjourned over to a day certain, he is no longer bound to attend upon that summons; but he must be warned afresh, and the whole must begin de novo.

NOW it may sometimes happen, that after the defendant has pleaded, nay, even after issue or demurrer joined, there may have arisen some new matter, which it is proper for the defendant to plead; as, that the plaintiff, being a feme-sole, is since married, or that she has given the defendant a release, and the like: here, if the defendant takes advantage of this new matter, as early as he possibly can, viz. at the day given for his next appearance, he is permitted to plead it in what is called a plea puis darrein continuance, or since the last adjournment. For it would be unjust to exclude him from the benefit of this new defense, which it was not in his power to make when he pleaded the former. But it is dangerous to rely on such a plea, without due consideration; for it confesses the matter which was before in dispute between the parties.5 And it is not allowed to be put in, if any continuance has intervened between the arising of this fresh matter and the pleading of it: for then the defendant is guilty of neglect, or laches, and is supposed to rely on the merits of his former plea. Also it is not allowed after a demurrer is determined, or verdict given; because then relief may be had in another way, namely, by writ of audita querela, of which hereafter. And these pleas puis darrein continuance, when brought to a demurrer in law or issue of fact, shall be determined in like manner as other pleas.

WE have said, that demurrers, or questions concerning the sufficiency of the matters alleged in the pleadings, are to be determined by the judges of the court, upon solemn argument by counsel on both sides; and to that end a demurrer book is made up, containing all the proceedings at length, which are afterwards entered on record; and copies thereof, called paper-books, are delivered to the judges to peruse. The record6 is a history of the most material proceedings in the cause, entered on a parchment roll, and continued down to the present time; in which must be stated the original writ and summons, all the pleadings, the declaration, view or oyer prayed, the imparlances, plea, replication, rejoinder, continuances, and whatever farther proceedings have been had; all entered verbatim on the roll, and also the issue or demurrer, and joinder therein.

THESE were formerly all written, as indeed all public proceedings were, in Norman or law French, and even the arguments of the counsel and decisions of the court were in the same barbarous dialect. An evident and shameful badge, it must be owned, of tyranny and foreign servitude; being introduced under the auspices of William the Norman, and his sons: whereby the observation of the Roman satirist was once more verified, that “Gallia causidicos docuit facunda Britannos“.7 This continued till the reign of Edward III; who, having employed his arms successfully in subduing the crown of France, thought it unbeseeming the dignity of the victors to use any longer the language of a vanquished country. By a statute therefore, passed in the thirty sixth year of his reign,8 it was enacted, that for the future all pleas should be pleaded, shown, defended, answered, debated, and judged in the English tongue; but be entered and enrolled in Latin. In like manner as don Alonso X, king of Castile (the great-grandfather of our Edward III) obliged his subjects to use the Castilian tongue in all legal proceedings;9 and as, in 1286, the German language was established in the courts of the empire.10 And perhaps if our legislature had then directed that the writs themselves, which are mandates from the king to his subjects to perform certain acts or to appear at certain places, should have been framed in the English language, according to the rule of our ancient law,11 it had not been very improper. But the record or enrollment of those writs and the proceedings thereon, which was calculated for the benefit of posterity, was more serviceable (because more durable) in a dead and immutable language than in any flux or living one. The practitioners however, being used to the Norman language, and therefore
imagining they could express their thoughts more aptly and more concisely in that than in any other, still continued to take their notes in law French; and of course when those notes came to be published, under the denomination of reports, they were printed in that barbarous dialect; which, joined to the additional terrors of a Gothic black letter, has occasioned many a student to throw away his Plowden and Littleton, without venturing to attack a page of them. And yet in reality, upon a nearer acquaintance, they would have found nothing very formidable in the language; which differs in its grammar and orthography as much from the modern French, as the diction of Chaucer and Gower does from that of Addison and Pope. Besides, as the English and Norman languages were concurrently used by our ancestors for several centuries together, the two idioms have naturally assimilated, and mutually borrowed from each other: for which reason the grammatical construction of each is so very much the same, that I apprehend an Englishman (with a week’s preparation) would understand the laws of Normandy, collected in their grand coustumier, as well if not better than a Frenchman bred within the walls of Paris.

THE Latin, which succeeded the French for the entry and enrollment of pleas, and which continued in use for four centuries, answers so nearly to the English (oftentimes word for word) that it is not at all surprising it should generally be imagined to be totally fabricated at home, with little more art or trouble than by adding Roman terminations to English words. Whereas in reality it is a very universal dialect, spread throughout all Europe at the irruption of the northern nations, and particularly accommodated and molded to answer all the purposes of the lawyers with a peculiar exactness and precision. This is principally owing to the simplicity or (if the reader pleases) the poverty and baldness of its texture, calculated to express the ideas of mankind just as they arise in the human mind, without any rhetorical flourishes, or perplexed ornaments of style: for it may be observed, that those laws and ordinances, of public as well as private communities, are generally the most easily understood, where strength and perspicuity, nor harmony or elegance of expression, have been principally consulted in compiling them. These northern nations, or rather their legislators, though they resolved to make use of the Latin tongue in promulgating their laws, as being more durable and more generally known to their conquered subjects than their own Teutonic dialects, yet either through choice or necessity have frequently intermixed therein some words of a Gothic original; which is, more or less the case in every country of Europe, and therefore not to be imputed as any peculiar blemish in our English legal latinity.12 The truth is, what is generally denominated law-latin is in reality a mere technical language, calculated for eternal duration, and easy to be apprehended both in present and future times; and on those accounts best suited to preserve those memorials which are intended for perpetual rules of action. The rude pyramids of Egypt have endured from the earliest ages, while the more modern and more elegant structures of Attica, Rome,
and Palmyra have sunk beneath the stroke of time.

AS to the objection of locking up the law in a strange and unknown tongue, this is of little weight with regard to records, which few have occasion to read but such as do, or ought to, understand the rudiments of Latin. And besides it may be observed of the law-latin, as the very ingenious Sir John Davies13 observes of the law-french, “that it is so very easy to be learned, that the meanest wit that ever came to the study of the law does come to understand it almost perfectly in ten days without a reader.”

IT is true indeed that the many terms of art, with which the law abounds, are sufficiently harsh when latinized (yet not more so than those of other sciences) and may, as Mr. Selden observes,14 give offense “to some grammarians of squeamish stomachs, who would rather choose to live in ignorance of things the most useful and important, than to have their delicate ears wounded by the use of a word, unknown to Cicero, Salust, or the other writers of the Augustan age.” Yet this is no more than must unavoidably happen when things of modern use, of which the Romans had no idea, and consequently no phrases to express them, come to be delivered in the Latin tongue. It would puzzle the most classical scholar to find an appellation, in his pure latinity, for a constable, a record, or a deed of feoffment: it is therefore to be imputed as much to necessity, as ignorance, that they were styled in our forensic dialect constabularius, recordum, and feoffamentum. Thus again, another uncouth word of our ancient laws (for I defend not the ridiculous barbarisms sometimes introduced by the ignorance of modern practitioners) the substantive murdrum, or the verb murdrare, however harsh and unclassical it may seem, was necessarily framed to express a particular offense; since no other word in being, occidere, interficere, necare, or the like, was sufficient to express the intention of the criminal, or quo animo the act was perpetrated; and therefore by no means came up to the notion of murder at present entertained by our law; viz. a killing with malice aforethought.

A SIMILAR necessity to this produced a similar effect at Byzantium, when the Roman laws were turned into Greek for the use of the oriental empire: for, without any regard to Attic elegance, the lawyers of the imperial courts made no scruple to translate fidei-commissarios, fideicommisVariwV;15 cubiculum, cwbwcleion;16 filium-familias, paida-familiaV;17 repudium, repwdion;18 compromissum, compromisVon;19 reverentia et obsequium, reuerentia coj obsecwion;20 and the like. They studied more the exact and precise import of the words, than the neatness and delicacy of their cadence. And my academical readers will excuse me for suggesting, that the terms of the law are not more numerous, more uncouth, or more numerous, more uncouth, or more difficult to be explained by a teacher, than those of logic, physics, and the whole circle of Aristotle’s philosophy, nay even of the politer arts of architecture and its kindred studies, or the science of rhetoric itself. Sir Thomas More’s famous legal question21 contains in it nothing more difficult, than the definition which in his time the philosophers currently gave of their materia prima, the groundwork of all natural knowledge; that it is “neque quid, neque quantum, neque quale, neque aliquid eorum quibus ens determinatur“; or its subsequent explanation by Adrian Heereboord, who assures us22 that “materia prima non est corpus, neque
per formam corporeitatis, neque per simplicem essentiam: est tamen ens, et quidem substantia, licet incompleta; habetque actum ex se entitativum, et simul est potentia
.” The law therefore, with regard to its technical phrases, stands upon the same footing with other studies, and requests only the same indulgence.

THIS technical Latin continued in use from the time of its first introduction, till the subversion of our ancient constitution under Cromwell; when, among many other innovations in the law, some for the better and some for the worse, the language of our records was altered and turned into English. But, at the restoration of king Charles, this novelty was no longer countenanced; the practitioners finding it very difficult to express themselves so concisely or significantly in any other language but the Latin. And thus it continued without any sensible inconvenience till about the year 1730, when it was again thought proper that the proceedings at law should be done into English, and it was accordingly so ordered by statute 4 Geo. II. c. 26. This was done, in order that the common people might have knowledge and understanding of what was alleged or done for and against them in the process and pleadings, the judgment and entries in a cause. Which purpose I know not how well it has answered; but am apt to suspect that the people are now, after many years experience, altogether as ignorant in matters of law as before. On the other hand, these inconveniences have already arisen from the alteration; that now many clerks and attorneys are hardly able to read, much less to understand, a record even of so modern a date as the reign of George the first. And it has much enhanced the expense of all legal proceedings: for since the practitioners are confined (for the sake of the stamp duties, which are thereby considerably increased) to write only a stated number of words in a sheet; and as the English language, through the multitude of its particles, is much more verbose than the Latin; it follows that the number of sheets must be very much augmented by the change.23 The translation also of technical phrases, and the names of writs and other process, were found to be so very ridiculous (a writ of nisi prius, quare impedit, fieri facias, habeas corpus, and the rest, not being capable of an English dress with any
degree of seriousness) that in two years time a new act was obliged to be made, 6 Geo. II. c. 14; which allows all technical words to continue in the usual language, and has thereby almost defeated every beneficial purpose of the former statute.

WHAT is said of the alteration of language by the statute 4 Geo. II. c. 26. will hold equally strong with respect to the prohibition of using the ancient immutable court hand in writing the records or other legal proceedings; whereby the reading of any record that is forty years old is now become the object of science, and calls for the help of an antiquarian. But that branch of it, which forbids the use of abbreviations, seems to be of more solid advantage, in delivering such proceedings from obscurity: according to the precept of Justinian;24ne per scripturam aliqua fiat in posterum dubitatio, jubemus non per siglorum captiones et compendiosa aenigmata ejusdem codicis textum conscribi, sed per literarum consequentiam explanari concedimus.” But, to return to our demurrer.

WHEN the substance of the record is completed, and copies are delivered to the judges, the matter of law, upon which the demurrer is grounded, is upon solemn argument determined by the court, and not by any trial by jury; and judgment is thereupon accordingly given. As, in an action of trespass, if the defendant in his plea confesses the fact, but justifies it causa venationis, for that he was hunting; and to this the plaintiff demurs, that is, he admits the truth of the plea, but denies the justification to be legal: now, on arguing this demurrer, if the court be of opinion, that a man may not justify trespass in hunting, they will give judgment for the plaintiff; if they think that he may then judgment is given for the defendant. Thus is an issue in law, or demurrer, disposed of.

AN issue of fact takes up more form and preparation to settle it; for here the truth of the matters alleged must be solemnly examined in the channel prescribed by law. To which examination, of facts, the name of trial is usually confined, which will be treated of at large in the two succeeding chapters.

Blackstone’s Footnotes (Tucker’s notes not yet added)

     1.    Append. No. III. § 6.
     2.    Ibid.
     3.    Append. No. II. § 4.
     4.    Cic. de Ocator. l. I. c. 38.
     5.    Cro. Eliz. 49.
     6.    Append. No. II. § 4. No. III. § 6.
     7.    Juv. XV. III.
     8.    c. 15.
     9.    Mod. Un. Hist. XX. 211.
   10.    Ibid. XXiX. 235.
   11.     Mirr. c. 4. § 3.
   12.    The following sentence, “si quis ad battalia curte sua exierit, if any one goes out of his own court to fight,” etc. may raise a smile in the student as a flaming modern anglicism: but he may meet with it, among others of the same stamp, in the laws of the Burgundians on the continent, before the end of the fifth century. (Add. I. c. 5. § 2.)
   13.    Pref. Rep.
   14.    Pref. ad Eadmer.
   15.    Nov. I. c. I.
   16.    Nov. 8. edict. Constantinop.
   17.    Nov. 117. c. I.
   18.    Ibid. c. 8.
   19.    Nov. 82. c. II.
   20.    Nov. 78. c. 2.
   21.    See pag. 149.
   22.    Philosoph. natural. c. I. § 28, etc.
   23.    For instance, these words, “secundum formam statuti,” are now converted into seven, “according to the form of the statute.”
   24.    de concept. digest. § 13.