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from the earliest times the same principle has been recognised in the case of matter of record; for example, it was settled in the time of Edward I that the existence of a judgment could not be proved except by the record'. Equally early and unambiguous instances of the application to deeds of the rule that the best evidence must be produced seem however not to be available? It was settled indeed that when a bond was given for a preexisting debt, the creditor suing for his debt was bound to give the bond in evidence, and could not prove his debt by parol. But this seems in early times to have been based not so much on the fact of the superiority of the written evidence, as on the fact that the production of the bond was necessary for the security of the defendant. It was the custom of the court to 'damn' or cancel the deed on judgment being given for the plaintiff, so that no second action could be brought thereon. Thus there is a case in the time of Edward III 3 in which an unfortunate defendant was condemned to pay his bond, notwithstanding a previous judgment and execution, as he had neglected to get his deed damned. No creditor therefore could bring his action on

a simple contract if he had a subsequent bond. In 11 Henry IV 4 it is said: 'If I am a debtor by simple contract, and then make an obligation for the same debt, I can compel him to bring his action on the obligation, lest I should be charged twice.' This rule of procedure that no action could be brought on the simple contract naturally passed into the rule of substantive law that the simple contract had ceased to exist, and so arose the doctrine of the merger of simple contracts by specialty. Thus in 9 Edward IV 5: ‘By the obligation the contract which is of the baser nature is abated.'

The rule that written evidence of a contract or other act in law is exclusive evidence has of course been extended to unsealed writings. In the case of such writings however it has maintained more completely its character as a rule of evidence, there having been for example no such distinct transformation into the substantive doctrine of merger as we have seen to have taken place in the case of deeds.

It remains to consider the principle of the highness of matter of record. Such matter may for our present purpose be divided into three kinds, the first of which is the record strictly so called. A principle that the best evidence must be produced. A document is the only instance in which what is sometimes called 'real' evidence has obtained legal recognition as the best. The modern rule is merely the old one as to profert, frued from its character as a technicality of pleading. Fleta III. 14. 2. Dr. Leyfield's Case, 10 Rep. 92 b. 1 Y. B. 20 & 21 Ed. I. 406.

2 See Y. B. 33-35 Ed. I. 452. $ Y.B. 17 Ed. III. 24. pl. 11; cf. Y. B. 21 & 22 Ed. 1. 62 & 78. * Y. B. 11 Henry IV. 79. pl. 21. 5 Y. B. 9 Ed. IV. 50. pl. 10. See Y. B. 3 Henry IV. 17. pl. 14.

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judicial record is primarily the testimony of a court (given in appropriate and appointed manner) as to matters therein transacted. To bear record is merely to testify, and the idea of reduction to writing that now attaches to the word 'record’ is historically unessential. In respect of its highness, or its 'sublimity' (to use the enthusiastic language of Lord Coke), the record of a court has the same qualities as we have noticed in the case of matter in writing; that is to say, it is conclusive and exclusive. No averment is admissible against it and none instead of it. As to its conclusiveness it is written in the Leges Henrici Primi ? : 'Recordationem Curiae Regis nulli negare licet.' And Glanville says 2: · The justices being present in court and perfectly concurring as to the record, it necessarily follows that their record must be abided by, neither party being allowed to deny it. So at a later time we are told impressively that 'Records (for the avoiding of infiniteness which the law abhors) are so high and sacred that they import in themselves inviolable truth 3.' It was however the record of the superior courts alone that was thus conclusive. That of inferior courts was in general subject to contradiction by witnesses. Hence a record came to mean a conclusive record, and courts were distinguished as those of record and those not of record 4. As to the exclusiveness of a record on the other hand, it is said in 35 Edward 15 that ' A thing which can be averred by the judgment and record of the court is not to be tried by an inquest.'

To pass on to the second species of matter of record. It has been seen that a deed is an admission which by reason of the solemnity of writing cannot be contradicted. There is another species of admission which for an analogous reason is likewise conclusive, namely admission made in a court of record. It is a consequence,' says Glanville,' which naturally results from acknowledging a fact in the King's Court in the presence of the King or his justices, or undertaking to do any particular act, that the party should be compelled to abide by or perform it. So in 20 Edward I? it is


I said: “We tell you that the said Ernald admitted before the King that he had made a charter of feoffment to his son William ; ... and thereupon we pray judgment if in opposition to his own acknowledgment in a court which bears record he can now say that his son William had not a fee.' Such admissions constitute the second species of matter of record, and it is to the estoppel thence 1 Laws of Henry I, c. 31.

2 Glanville VIII. 8 (Peames). Co. Rep. 71 a; see Plowd. 491 a. 4 Glanville VIlI. 9; Bracton, ff. 156 b & 336 a; Y. B. 32 & 33 Ed. I. 376; Co. Litt. 260 a.

* Y. B. 33-35 Ed. I. 528; see Y. B. 20 & 21 Ed. I. 406.
& Glanville VIII. 5 (Beames).
? Y. B. 20 & 21 Ed. I. 308 ; see also Y. B. 21 & 22 Ed. I. 32 & 146.

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resulting that recognizances and fines for example owe their effect.

Judgments constitute the third and last species of matter of record. Such is the authority and dignity of a court of record that a judgment thereof must by the parties thereto, and sometimes by all the world', be taken as conclusive proof of the matter so decided. . Res judicata pro veritate accipitur?' According to Glanville : • Those matters that have been once determined in the King's Court by duel remain for ever after unalterable 3.' In 5 Edward II 4 it is said : ‘A judgment cannot be defeated except by a judgment, and if you were received to this averment you might defeat a record by an inquest which would be contrary to law.' It may perhaps be considered that estoppel by judgment arises rather from the idea that the same matter should not be discussed twice in a court of justice; but the early reports go to show that, like estoppel by deed, it is based on a principle of evidence: a decision of a court of record that a deed is the deed of A is such cogent evidence of such being the fact, that no averment to the contrary can prevail against it. Recordum and sententia are coupled to

5 gether in the early authorities as matters admitting of no contradiction 6

The effect on substantive law of the conclusiveness of a judgment is worth noting. It is plain that in its origin and essence a judgment is merely declaratory of rights, not creative of them. An action is a dispute as to the rights of the parties; a judgment is the decision of an arbitrator on the point at issue. By virtue of its conclusiveness however a judgment has come to be regarded as creative of rights instead of declaratory of them, just as a bond has come to be regarded as creating a debt instead of merely proving it. Merger by judgment is a secondary result of the same quality of conclusiveness. It is the substantive form of the rule of procedure that two actions cannot be brought for the same cause. When a judgment by virtue of its conclusiveness comes to be regarded as creating a new right instead of declaring an old one, the above rule of procedure becomes transmuted into the rule of substantive law that the right created by the judgment merges and destroys the right on which the judgment is founded. Thus in 9 Edward IV ? it is said: "When a man has judgment on his own prayer, then he has agreed to have the defendant debtor to him by force of this matter of record.' And again in the same case: ‘As by

1 Bracton, f. 420. $ 17; Glanville, XIII. 17.

· D. 50, 17, 207. 3 Glanville, JI. 3.

4 Y. B. 5 Ed. II. 149. • See Y. B. 21 & 22 E1. I. 100 & 430 ; Y. B. 33-35 Ed. I. 8 & 64.

Dialogus de Saccario, I 4. Stubbs's Sel. Ch. 176 (ed. 2). ' Y.B. 9 Ed. IV. 50. pl. 10.

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an obligation a contract which is of the baser nature is abated, so by recovery on the obligation it is changed into a duty by matter of record.' In Roman law, on the other hand, the defence of judgment recovered never passed over completely into a rule of substantive law. It was in the case of a certain limited class of actions only that judgment destroyed the cause of action; in all others the defendant had to resort to the equitable plea of res judicata.







TUKOJEE RAO HOLKAR BAHADUR, MAHARAJA OF INDORE.) THE THE Indore Penal Code, passed by the Maharaja Holkar for his

State in Central India, is the work of a native Minister of Justice; we may suppose that he was trained in the Anglo-Indian Courts. It represents an adjustment of the Indian Penal Code to the conditions and prejudices of native government and society. The object of the legislator appears to have been to bridge over, cautiously and decorously, the ever-narrowing channel between ancient and modern ideas and institutions, by placing one foot upon either base, and thus availing himself of both sanctions, the temporal and the religious. For Law follows in its development the order of morality, of which indeed it is the systematic expounder ; its principles are not at first accepted on rational but on theologic grounds; it has to disguise its utilitarian aspect under the veil of orthodoxy, and to justify its amendment of earlier rulings by appeal to holy writ.

In a country like India, where the codes of a dominant civilised empire exercise vast pressure and influence far beyond the range of their actual purview, this transition has often to be managed at a rate of speed far exceeding the naturally slow evolution of ideas. Theology, if it does not make haste, may be overtaken and overruled by scientific legislation. It is therefore fortunate that the sacred books of India abound in sententious general propositions and moral rules of conduct from which a skilful commentator can easily deduce ample warranty for “purging the gentle weal' by human statute. All that is needed is proper expansion of the divine ordinances, with reverent and specific application to novel circumstance. The doctrine of consequences, which underlies all natural religion, is thus easily brought into scientific shape without abandoning the prerogative of the divine legislature.

Accordingly the Indore Code begins with a preamble which goes straight to the root of the matter.

• Whereas . . . penal laws are absolutely necessary for the wellbeing of the public; and whereas, although the Hindu law is perfect and complete in itself, as will be seen from the extracts appended, yet in the present state of India, its operation must be restricted and multiplied, the following rules . . . are hereby promulgated, &c., &c.'

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