xl INTRODUCTION

manslaughter only, and settled the case by itself entering the verdict of man-
slaughter and imposing the appropriate sentence, thus displaying a business-
like latitudinarianism in practice. The trial court records show a liberal use
at common law of preliminary measures to define the grounds of controversy
for the convenience of the court and the jury on a trial, as with audits of ac-
counts, and with surveys and plats of boundary lines of land in dispute; and
the machinery for procuring the surveys and plats was within the space of
four or five years freely altered by the courts, first by substituting three ad-
visers or guides in the place of the full inquest of twelve previously used,
and then by dispensing with the three and utilizing the services of only a
sheriff and a surveyor.¹ This free handling of procedure does not, however,
mark the age as a golden one in judicature; on the contrary, witness the con-
sequence attached to the difference between " his Majesty " and " his late
Majesty " in the dating of trial and judgment in a writ of error and the
record returned to it, respectively.²

Some of the decisions recorded here will strike the modern reader as
arbitrary; and the record of proceedings in Hicks v. Lecompt or Seward,³
affords a glimpse of rough conduct in a trial court, with the chief justice
threatening to strike one of the attorneys if he continued talking, and a
juror interrupting a trial to say that he had heard enough. The threat of
the chief justice drew a complaint, as something exceptional and improper,
but there may well have been a freedom of speech that may now be thought
inconsistent with the proper judicial attitude, for the attitude now custom-
ary was just then becoming prevalent. There was a difference between the
behavior of judges generally before the Revolution of 1689 and in the period
that followed. In Sir John Holt, lord chief justice from 1689 to 1710, says
Foss,* the encyclopaedic historian of English judges, " may be fixed the
commencement of a new era of judicial purity and freedom, marked with
that perfect exemption from extraneous influences which has, with few
exceptions, ever since distinguished the bench, and which is now the undis-
puted glory of our judicature." It may be that the province did not have its
ablest men on the bench, but it had leading men, and men from among its
most respected; and the fact is one of significance. For, important as may
be the intellectual work in the administration of the law, it remains true
that the worth of judicature must ever depend to a great extent upon the
valuation of it by the litigants, and, in that valuation leadership in the men
on the bench, which seems to accord with the power and authority of justice
and to give assurance of superiority in qualities demanded for the judicial
function, is a factor of no small influence.

¹ Kilty, op. cit., pp. 133 et seq. Note to Shaw v. Lynes (1683), i Harris & McHenry, 18.

2 Post, p. 126.
s Post, p. 462.
* Edward Foss, Biographica Juridica (London, 1870), 351.