To show the use of arrangement in the business of imparting and acquiring a knowledge of law, Professor Mayes has in this introductory lecture confined himself to some of the MEANS, which are provided to help tribunals to distribute justice. ́ 'I have chosen'—says he 'two subjects for classification and analysis. 1st. Errors in the progress of judicial proceedings which are fatal, or may be taken advantage of. 2d. Special pleading considered in reference to its end.' Besides the attainment of justice, which he remarks is the ultimate end of all judicial investigations, the law proposes numerous other ends, which other ends in their turn become means leading to and terminating in, the main end, and assuring us where justice lies.' These he calls auxiliary ends, and observes, that besides these, the law has provided itself with a great number of aids, which are merely and exclusively means, leading to, and terminating in those auxiliary ends.' He illustrates his meaning by comparing these mere means to a highway, the auxiliary ends to indices set up along its margin, and justice to the terminus of the highway. If justice, the end of the journey, is reached without travelling the road, or looking at the indices, the law is satisfied. If the traveller misses the road, he will not return to the starting post to assure himself that he is on the way to his destination, but only to the next index. Neither the highway, nor the indices are of any use, or otherwise important than as helps to the traveller. But the law has made it indispensable that some of the auxiliary ends should be reached, because it cannot otherwise appear that justice, the ultimate end, has been reached. All laws, then,'-he continues, in this view of the subjects of jurisprudence, may be reduced to this classification; which although-as far as I know- entirely new, may not be without some small portion of utility. 1. Laws providing means to lead to auxiliary ends. In illustrating this he confines himself to the first division, and arranges the errors, that may arise in respect to those laws, as follows 1. Errors notwithstanding which the auxiliary end has been reached, and 2. Errors in consequence of which the auxiliary end has not been reached; or does not appear to have been reached— which is in law the same thing;-and in consequence of its not appearing that the auxiliary end has been reached, it is uncertain whether the ultimate object has been accomplished, and 3. Errors in conscquence of which the auxiliary end has not been reached, but where it nevertheless appears that the ultimate end has been attained.' In every actual litigation, the ultimate end proposed by the tribunal is to do justice. Before this can, for the most part, be reached, the parties litigant must appear before the court. Appearance, then, is an auxiliary end. The process by which appearance is produced are mere means. What errors in process, or, in the use of these means, are fatal? The law has provided the process proper for each case, an officer to issue it, and another to execute and return it. Suppose the process to be neither issued nor executed by the proper officer, but by the plaintiff himself; and the defendant not appearing, the court hears all that the plaintiff can allege against him, and gives judgment for him. This case the professor ranges under the third division, to which it properly belongs, because, although the auxiliary end, the defendant's appearance, has not yet been reached, yet the ultimate end, justice, has been attained-Justice to the defendant, since he has not been injured, and to the plaintiff, since he has been heard, and of the errors neither party, on this supposition, can take advantage. But suppose the judgment had been against the defendant. Then the case would belong to the second division, because it would not appear that justice had been done, the court not having heard what could be alleged against the case presented by the plaintiff. Appearance of the defendant is made indispensable, not that justice might not be done without it, but because we could have no assurance that it had been attained. Hence the maxim-de non apparentibus et non existentibus eadem est ratio. But, upon the supposition, that the defendant appeared in this case, and made his defence, and judgment was rendered against him, then the case would fall under the first division. Because, although the means have not been employed, which the law provides, yet the auxiliary end, appearance, having been attained, the ultimate end, justice, seems to have been reached. The professor pursues the subject as follows — 'In every judicial investigation, there are presented to the mind two distinct subjects of inquiry. 1. An inquiry into the facts of the case. 2. An inquiry into the law arising on the facts when ascertained. In the nature of things the former must precede the latter. A second auxiliary end, therefore, is a knowledge of the facts to which the law is to be applied. To this end - says Judge Mayes, with an enthusiasm which we cannot gain our own consent to say is misapplied the law has provided a very complicated, yet when understood, a very simple machinery, which, viewed in all its parts, will be found amongst the greatest monuments of human wisdom, if not itself the greatest, constructed by the learning and genius of man. This machinery in part consists of the rules or law of pleading, of evidence, and the trial by jury.' Pleading, evidence, and trial are here viewed as mere means, leading to, and terminating in the auxiliary end -a knowledge of facts. He then shows how errors in each fall into one or the other of the foregoing division, and observes. that when a knowledge of the facts is acquired, the judge enters upon the final process, the application of the laws, which establish the ultimate end, justice. The laws providing means to lead to auxiliary ends; the laws pointing out and establishing auxiliary ends, have all been satisfied, the first having compelled the appearance of the party, the second having ascertained the facts, and now the laws ascertaining the ultimate end, are to be satisfied. Here an error is fatal. But we shall leave our youthful readers to exercise their ingenuity in making a classification for themselves of errors in pleading, in the admission of evidence, or in the trial,- observing that any error in them that prevents our attaining the second auxiliary end, a knowledge of the facts, may be corrected, and pass on to the next subject, special pleading, considered in reference to its end. The professor treats this subject in a manner so simple and elementary, that we cannot do him justice, but by employing his own words. It'special pleading is a science more perfect in its analysis, and more conclusive in its logic, than any which is not in the strictest sense demonstrative. Every subject of litigation may be arranged under one of these classes. 1. Cases in which the parties litigant agree as to all the facts; but disagree as to the law arising upon the facts. 2. Cases in which the parties disagree as to the facts, without disagreeing as to the law. To which in Kentucky, where parties are allowed by statute to plead pleas consisting of matters of law, and pleas consisting of matters of fact at the same time-add 3. Cases in which the disagreement embraces both the facts. and the law. The office of pleading is, to search out and ascertain the true .point in controversy between the parties; whether it be a question of law or matter of fact; and if the latter, what the disputed facts are; and so to sift and separate the disputed facts, from those which are not disputed, as to place before the jury, in a clear and distinct point of view, the very essence of the controversy, not obscured or encumbered with facts respecting which there is no disagreement between the parties. And this it accomplishes with unerring certainty, if when practised as an art, its principles as a science are understood and adhered to. When considered in this aspect, pleading may be divided into 1. Pleadings which by ascertaining all the facts, place the controversy on a point of law; and 2. Pleadings which place the controversy on matter of fact, and ascertain what facts are contested. To complete the analysis, the last class must be again divided into 1st. Pleadings where all the facts are contested; and 2d. Pleadings where some facts are agreed and others contested. That I may make the subject as comprehensible as possible, let us dismiss for the present, all idea of judicial proceeding, and imagine a controversy between two neighbors, who agree to refer the subject to the decision of a third. What course would he naturally pursue? Plainly this. He would meet the contending parties at some time agreed on, and say to him who complains; As I am to settle a dispute between you and your neighbor, I wish you to inform me why you complain of him. The party complaining would then proceed to state his grievances. The arbitrator having heard him, would inquire of the other, what answer he gave to the complaint. He, in his turn, would make his statement; and the ingenuity of man, can devise no answer, which will not be of one of these descriptions. 1. I admit all the facts, to be true, as stated; and contend that they constitute no just cause of complaint; or 2. I deny that the charge brought against me or any part of it is true; or 3. I admit these facts,- stating the facts admitted, - but I deny the others; or 4. I admit all the facts stated to be true, but there are other facts not yet stated, which, when taken into consideration, remove all cause of complaint. If the answer were of the first description, the arbitrator would say: "As you agree in all the facts, I have nothing to do, but to give my opinion as to the manner in which this controversy ought to be adjusted." He would then proceed to decide the case either for or against the party complaining. If the answer were of the second kind, the arbitrator would say: "As you disagree as to all the facts, I cannot decide from your statements, who is right, or who wrong; you must therefore bring forward witnesses, and let me hear them, otherwise I can never know the truth of the case." But suppose the answer fell under the third division. The arbitrator would say: "You agree mainly in your statements, but on some points there is a disagreement. These points are so material to the merits of the case, that I must ascertain who is right as to them, before I decide. As to all the facts that you coincide in, it will be unnecessary to bring witnesses, but as to the points in which you disagree I must hear evidence." If, however, the answer be of the fourth and last class, the arbitrator would turn to the party complaining, and say: "Your neighbor has admitted the truth of your whole statement; but he has stated additional facts, which he contends, remove all just cause of complaint against him. Let me know what answer you give to these additional facts." He would then hear the plaintiff reply to the new facts stated by the other party. And reply as he would, he could allege nothing, which would not come exactly under the foregoing classification of answers, made by the defending party to his complaint. The arbitrator having heard him would proceed as he had done in the first instance. The only difference will arise from the fact that, here the par VOL. IX.NO. XVIII. 46 |