Page:Harvard Law Review Volume 12.djvu/565

LAW AND FACT, 545 LAW AND FACT. THE practising lawyer who takes up Professor Thayer's book on Evidence^ with the hope of finding it an index to the latest case law will be disappointed. The practical treatise is yet to come. But every earnest student is under a deep obligation to the author for the pains he has taken to " throw light on the beginnings and true character of our rules of evidence." It is clear that if the common law is ever to be fully systematized, the work must be done by specialists who, like Professor Thayer, are willing to devote years to the development of single topics. It long ago became impossible for any one lawyer to occupy the entire field of the common law, and even the judges who cross that field from one end to the other in the performance of their daily duties show signs of fatigue. The author has handled roughly some of our cherished tradi- tions and has set us all a-thinking. One tradition I am inclined to stand by, in spite of what is said to the contrary, namely, that the construction of a written instrument is a question of law and not a question of fact. The author's view is sufficiently indicated in this paragraph. " It is not uncommon to call the interpretation and construction of writings ' a pure question of law.' That it is a question for the judge there is no doubt. But when we consider to what an extent the process of interpretation is that of ascertaining the intention of the writer — his expressed intention — irrespective of any rules of law whatever, and when we come to undertake the details of such an inquiry, it is obvious that most of this matter is not referable to law but to fact." (page 203.) This conclusion may be right if the author's definition of law is right as we find it on an earlier page. " What then do we mean by law? We mean at all events a rule or standard which it is the duty of a judicial tribunal to apply and enforce." (page 192.) It appears then that the construction of a written instrument may or may not be a question of law according as there is or is not 1 A Preliminary Treatise on evidence at the Common Law. By James Bradley Thayer, LL.D. Boston : Little, Brown & Co., 1898.