law, both as it has prevailed for many years back, and as it has been
recently received in our courts below. They found on the whole the rules
rather less strict, more liberal, and less loaded with positive
limitations, than in the Roman law. The origin of this latitude may
perhaps be sought in this circumstance, which we know to have relaxed
the rigor of the Roman law: courts in England do not judge upon
evidence, _secundum allegata et probata_, as in other countries and
under other laws they do, but upon verdict. By a fiction of law they
consider the jury as supplying, in some sense, the place of testimony.
One witness (and for that reason) is allowed sufficient to convict, in
cases of felony, which in other laws is not permitted.

In ancient times it has happened to the law of England (as in pleading,
so in matter of evidence) that a rigid strictness in the application of
technical rules has been more observed than at present it is. In the
more early ages, as the minds of the Judges were in general less
conversant in the affairs of the world, as the sphere of their
jurisdiction was less extensive, and as the matters which came before
them were of less variety and complexity, the rule being in general
right, not so much inconvenience on the whole was found from a literal
adherence to it as might have arisen from an endeavor towards a liberal
and equitable departure, for which further experience, and a more
continued cultivation of equity as a science, had not then so fully
prepared them. In those times that judicial policy was not to be
condemned. We find, too, that, probably from the same cause, most of
their doctrine leaned towards the restriction; and the old lawyers being
bred, according to the then philosophy of the schools, in habits of
great subtlety and refinement of distinction, and having once taken that
bent, very great acuteness of mind was displayed in maintaining every
rule, every maxim, every presumption of law creation, and every fiction