tion, but the rule on which the decision is to be founded must be derived from other sources. As a judge applies a rule of law to circumstances which the jury have ascertained, so the jury apply a rule of another description to the circumstances which they collect from the evidence. That rule is derived from their knowledge and experience of human affairs and human characters, and is adjusted on the occasion as the circumstances transpire, with a fitness and propriety which legal rules could not be sufficiently elastic to assume. These questions are questions of degree, and therefore defy exact à priori definition. The same difficulty occurs in many of the most important questions of jurisprudence and international law. When, for instance, is a nation to be regarded as sovereign and independent? When has the sovereign body refused for a sufficiently long period obedience to all foreign powers? When has it received obedience enough from its own subjects? When comes "the time" for the acknowledgment of their independence? as Mr. Canning said in his speech upon the South American states. Matters of this nature must be submitted to the discrimination of some persons existing at the time, and sitting in judgment as they arise. Our present purpose is to discover whether, according to our system of trial, those persons should be judges or jurymen; and we contend, that if it shall appear on examination that rules of law do not affect them, they must fall exclusively within the cognizance of the jury. We shall find many instances in which rules of law have been introduced, and thus have narrowed the scope of the jury's inquiry. Yet these instances supply no objection to the rule which we have been drawing, for according to that very rule, these instances ought to be submitted to the direction of the judge.1

Of all those questions of degree which come before the

Stark. on Ev. p. 420. In Tindal v. Brown, Lord Mansfield says, "What is reasonable notice is partly a question of fact and partly a question of law. It may depend in some measure upon facts, such as the distance at which the parties live from each other, the course of post, &c., but whenever a rule can be laid down with respect to this reasonableness, that should be decided by the court, and adhered to by every one for the sake of certainty." If the observations contained in the text are correct, this question is not partly of fact, partly of law. Whether the rules ought to be laid down as often as possible, it is not necessary to consider in this place but we fully agree that when once established, they ought to be scrupulously adhered to.

courts, the most complicated, perhaps, are those of "probable cause:"-whether there was a sufficient degree of probability that a tradesman committed an act of bankruptcy, to justify his creditor in suing out a commission of bankruptcy; whether a sufficient degree of probability that A. B. committed a crime, to justify a prosecutor in the institution of criminal proceedings. "The probable cause of prosecution," says Mr. Starkie,' "must necessarily consist in the circumstances of the case within the defendant's knowledge, which tended to throw suspicion on the plaintiff. The existence of such circumstances, and their force and tendency, are questions rather of fact than of law; for the effect must be measured by sound sense and discretion rather than by any rule of law, which cannot measure mere probability. If such circumstances did exist, it is to be presumed that the defendant acted upon them: but this is not to be conclusively presumed; for it seems to be clear, that if, notwithstanding the existence of unfavourable circumstances, the defendant knew that the plaintiff was innocent, he would be liable in damages; for as to him who was better informed, the circumstances could afford no probable cause or ground of accusation." The principle supported in this passage differs essentially from the principles which are laid down in Johnstone v. Sutton, an action for a malicious prosecution. It was there said, "The question of probable cause is a mixed proposition of law and fact. Whether the circumstances alleged to shew it probable or not probable are true, is a matter of fact; but whether, supposing them true, they amount to à probable cause, is a question of law." Here is no mention made of the defendant, whether he had reason to find probable cause in the circumstances with which he was acquainted. The doctrine here is, whether the circumstances amount in law to a probable cause. We are, however, prepared to argue that Mr. Starkie's view of the question is the more correct, and we can show, even from the expressions used by the judges, in other parts of Johnstone v. Sutton, that the question turns exclusively upon the supposed judgment of the defendant. "A man," it is there said, "from a malicious motive, may take up a prosecution for real guilt, or he may

1 St. Evid. 460.

from circumstances, which he really believes, proceed upon apparent guilt; and in neither case is he liable to this kind of action." What difference can his belief make, if there is only one question, whether legally speaking there exists a probable cause? Chief Baron Eyre, who gave the judgment in this case in the Court below, refers directly to the knowledge of the defendant he says, "that before he commenced the prosecution, he was not bound to know that the circumstances of the state and situation of the ship would amount to a justification in the judgment of a court martial.” "In our law," he continues, "justification is a conclusion of law which necessarily results from a given state of facts; and yet I doubt whether, if a man were to indict one for murder, who had committed homicide, under circumstances within the knowledge of the prosecutor which made it justifiable, it could be said there was no probable cause for preferring that indictment.". It may be good policy to deter persons from instituting vexatious prosecutions; yet it would be dangerous to carry the principle so far as to make a prosecutor liable to an action if he had no such probable cause as the law would recognise, in other words, if he did not succeed in his prosecution. Such a law would resemble the old law of Athens, that the proposer of a new decree should speak with a halter about his neck; and we should often lose the benefit of prosecutions very advantageous to the public, as the Athenians were frequently deprived of very important proposals for improvements in their law. If then the question be whether the defendant3 had reasonable ground for instituting legal proceedings, we must maintain that a jury is quite as well calculated as a judge to decide upon the question of malicious prosecution. The judge must explain the nature of the offence with which the plaintiff was charged; the evidence which the defendant was able to bring

IT. R. 545.

"not

2 1 T. R. 507. Thus does the question of probable cause differ in its nature from the he ordinary question whether there is a case for the jury. That is a question of law, whether admitting the plaintiff's evidence to be true, it is insufficient in point of law," not whether it is more or less convincing, but whether it is at all applicable to the matter at issue. This question is one of probability of probability not in the eye of the law, but according to the judgment of an ordinary individual ; whether an individual judging from the knowledge which he is proved to have possessed could reasonably suppose that he could maintain the legal proceeding which he has instituted.

must be detailed to the jury. Then they can say whether such evidence would raise in the defendant's mind a reasonable suspicion of the plaintiff's guilt, and can decide with far more justice towards people in general than a judge, whose mind has been trained to the examination of evidence so much more acutely than ordinary minds, and who would hardly be capable of throwing aside his own experience, and coming to such a decision as is consistent with the abilities of ordinary persons. Let us take for instance one of the charges in Johnstone v. Sutton; "that the defendant charged the plaintiff with disobedience to the commander's verbal orders." No rule of law, or knowledge of the law, could have assisted the judge in deciding from the circumstances alleged whether there was or was not any reasonable ground on which the defendant should bring this charge. Common sense and experience must settle a point of this nature, and therefore (to recur to our logical rule) the major premiss of the syllogism cannot be a rule of law, and the question must be one for the jury. In conformity with this principle, the case of Brooks v. Warwick' was left by Lord Ellenborough to the jury; "Whether under all the circumstances of the case there existed any probable ground to warrant the defendant in making the charge of felony."

As to reasonable time, within which executors shall carry out of a certain place the goods of the testator, it has been said: "This reasonable time shall be adjudged by the discretion of the justices before whom the cause dependeth; and so it is with reasonable fines, customs and services upon the true state of the case depending before them; for reasonableness in these cases belongeth to the knowledge of the law; and therefore is to be decided by the justices. Quàm longum esse debet non definitur in jure, sed pendet ex discretione justitiariorum. And this being said of time, the like may be said of things uncertain, which ought to be reasonable, for nothing that is contrary to reason is consonant to law."2 doubt the assertion of so great an authority seems to border upon presumption, but the rule appears to us as much too sweeping as the last proposition is too bold, viz. "that nothing which is contrary to reason is consonant to law ;" and

1. Stark. N. P. 393.

2 Co. Litt. 56, b.

To

ness.

it seems to us more advisable to take the principle contained in the proposition which we have marked in italics, and by applying that principle to individual cases, to ascertain the correctness of the rule which Sir Edward Coke has laid down. In the very case which Mr. Starkie quotes, the court declare that in many instances reasonableness must be a question for the jury, and that it would be absurd to say that in a case like that before them the court must judge of the reasonableSuppose it were written in a policy of insurance that a voyage should be completed within a reasonable time: the reasonableness would be determined by a consideration of the distance of the voyage, of the weather, the winds, and generally of the condition, physical and political, of the seas to be crossed. How can these topics come within a knowledge of the law? Suppose that an agreement were made for the delivery of goods within a reasonable time. The distance must be considered, the facilities of travelling, the bulk and weight of the goods:-but none of these topics fall within the knowledge of the law.

Let us take the instance of "seasonable time" in Bell v. Wardell,' in which much discussion arose whether the matter was for the judge or for the jury, and it was held that seasonable time" was partly a question of fact and partly a question of law: we shall find that the true nature of the question might have easily been ascertained upon the principle which we have been endeavouring to support. The custom upon which the justification in that case was framed was “for the inhabitants of a town to walk and ride over a close of arable land, at all seasonable times." To use Sir Edward Coke's words, does seasonableness in this case "belong to the knowledge of the law?" Is it by the law that we ascertain how arable land is cultivated, at what period of the year its increase begins to rise, and passengers will be likely to do mischief? If not, Sir Edward Coke's rule fails upon his own principle: reasonableness does not belong to the knowledge of the law; the major premiss of the syllogism derives its correctness from some other source than law, and the seasonableness of the time should be submitted to the jury for their separate determination.

I Willes, 202; see Stark, on Evid. 451.