so described, which is occupied by that highway, subject, of course, to its use for all proper highway purposes. But whether the conveyance of a lot bounding on a private passway presumptively carried the title in like manner to half the land used for the passway had never been determined either by its legislature or its courts. More than twenty years after such a conveyance was made, the claim that it did so carry title was set up by one who then held under the deed. The court overruled the contention, in an opinion from which the following quotations are made:

'The effect of a deed of land depends on the words in which it is expressed, aided, if necessary, by a consideration of the circumstances leading up to its execution and the situation of the property. The ultimate object is always to give its terms such an interpretation, if this can be done without straining them beyond their fair import, as will carry out the intention which the parties may be presumed to have had in employing them.

The point of law involved has been differently decided in different States. In Massachusetts it has been roundly held that a deed of land bounded on a private way, laid out over land of the grantor, passes the fee to the middle of the way, where there is nothing in the deed to require the opposite construction. Fisher v. Smith, 9 Gray (Mass.) 441, 444; McKenzie v. Gleason, 184 Mass. 452, 69 N. E. 1076. In Maine an opposite conclusion has been reached. Ames v. Hilton, 70 Me., 36, 43. There is here no statute or judicial precedent which governs, nor any general custom of which we can take judicial notice. The question is one,

also, not settled by the common law. It is therefore our duty to answer it by the choice of the rule which, in our judgment, is best calculated to do justice in cases of this

character. This we have done. We adopt that which does not raise, in case of a boundary on a private way, the presumption which obtains in case of one on a highway. By that rule, because it is (or by our adoption of it becomes for Connecticut) the rule of justice, it may fairly be assumed prima facie that the parties to such a transaction intended to be governed, by force of the words which they employed." 1

Legal science has been not infrequently criticized because what it recognizes as the law of pleading or of evidence often bars out any investigation into the substantial merits of a just cause. But it is as just that a man should be compelled to state or prove his case before a court according to fixed rules, as it is that he should have a just case to present.

Chief Justice Bleckley, with his accustomed clearness of thought, states it thus, in the paper to which reference has been made above:

Some meritorious cases, indeed many, are lost in passing through the justice of procedure; but they are all justly lost, provided the rules of procedure have been correctly applied to them. That a just debt is unrecognized, a just title defeated, or a guilty man acquitted, is no evidence that justice has not been done by the Court or the jury. It may be the highest evidence that justice has been done, for it is perfectly just not to enforce payment of a just debt, not to uphold a just title, not to convict a guilty man, if the debt, or the title, or the guilt be not verified. It is unjust to do justice by doing injustice. A just discovery cannot be made by an unjust search. An end not attainable by just means is not attainable at all: ethically, it is an impossible.

1 Seery v. Waterbury, Vol. 82 Connecticut Law Reports, p. 56.

end. Courts cannot do justice of substance except by and through justice of procedure. They must not reach justice of substance by violating justice of procedure. They must realize both, if they can, but if either has to fail it must be justice of substance, for without justice of procedure Courts cannot know, nor be made to know, what justice of substance is, or which party ought to prevail." 1

Every one who engages in the legal profession is at first struck and repelled by the artificiality of the rules of evidence. In trying causes in court there is the same end that is proposed in any outside inquiry, which may be made to ascertain what are the facts decisive of some controversy. But out of court, no door through which information may be obtained is closed. In court, on the contrary, the exclusion of "hearsay " evidence; the requirement of more than one witness in certain criminal prosecutions; the distinction between the amount of proof demanded in criminal cases and that deemed sufficient in civil cases; the denial of resort to the interrogation of one accused of crime; and the exclusion of evidence which the judge may think too remote or uncertain; seem to surround the investigation of the truth by a cloud, though by no means a "cloud of witnesses."

These rules have come in mainly as incidents of our system of trial by jury, but in part also from our high appreciation of the dignity and worth of the individual

man.

It is enough to say that as juries have become better 1 Bleckley, Truth at the Bar, p. 10.

educated, there is continually less and less occasion for guarding them from being led off into irrelevant inquiries or mistaken conclusions, and that judges, who made most of these rules of evidence, are gradually readjusting them to the requirements of common sense.

At first sight, it would seem that a jury trial was but a poor way of deciding controversies. Anacharsis said of Athens that in her assembly the wise men argued causes, but the fools decided them. A keener mind put the matter in a clearer light. Aristotle said that it was safer to depend on the judgment of the many, than of the few. In a large body of men no one person might be particularly eminent. Nevertheless, each had some valuable quality or faculty that was noticeable, and together they possessed them all.

The jury is not as numerous as an Athenian assembly, but its members have a considerable variety of qualities, and something of what is addressed to them in argument is pretty sure to appeal to one of them, if it does not to another. It is a reasonably fair miniature of the community.

The unwillingness of jurors to find a fellow-creature guilty of a capital felony, even on the clearest evidence, is notorious; and it may well be suspected that they frequently violate their oaths in favor of life. In civil suits, on the other hand, they too often forget that their duty is merely to give the plaintiff compensation for evil suffered; and if the conduct of the defendant has moved their indignation and his fortune is known to be

large, they turn themselves into a criminal tribunal and, under the name of damages, impose a large fine.1

A jury is and must remain an indispensable part of the machinery of justice, under the terms of our constitutions, state and national. But, as to almost every other conventional feature of judicial procedure, the modern tendency is to invest the courts with power to change it within certain limits at their discretion. Some have naturally gone farther than others in exercising this authority. Only a strong man, with a strong court behind him, can venture to abrogate a usage of centuries. Chief Justice Doe of New Hampshire may be mentioned as one whose work in this field of judicial action has been particularly bold and thoroughgoing.2

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Dean Swift complained, two hundred years ago, in the preface to Gulliver's Travels, that he had hoped at their first appearance that they would effect something, and that he should hear in England of “ judges learned and upright; pleaders honest and modest; with some tincture of common sense; and Smithfield blazing with pyramids of law books." Bench and bar have improved since this caustic and half true criticism of English judicial procedure was written, but the law books, instead of being burned, have grown ten-fold. This is mainly from the enormous increase of the reports, official and

1 Macaulay, History of England, Vol. VIII, p. 44.

2 See Lisbon v. Lyman, 49 N. H. Law Reports, p. 382; Darling v. Westmoreland, 52 N. H. Law Reports, p. 401.