PROBABILISTS PROCESS. 



717 



is to the government generally. In cases of cap- 

 tures by privateers duly commissioned, the condem- 

 nation is to the captors. In England, the lord high 

 admiral is, in certain cases, entitled to the proceeds 

 of captured property, which are called droits of 

 admiralty. But in modern times, this office is 

 usually held by the king, or for his benefit, and 

 therefore the distinction is, for the most part, now 

 nominal. In the United States, no such distinction 

 exists. It is no objection to proceeding to a decree, 

 that any of the parties have died ; for, the proceed- 

 ings being in rem, they are not interrupted by such 

 occurrences. Time, however, is usually allowed for 

 the legal representatives of a deceased claimant to 

 appear, if there is any necessity ; and in proceedings 

 I'M personam, a monition always issues to the legal 

 representatives, if any, before a decree. 9. A de- 

 cree of condemnation is usually pronounced by an 

 interlocutory, in the nature of a final decree. But 

 the case rarely ends here; for the prize court, as an 

 incident to the possession of the principal cause, 

 may, and usually does, in cases of controversy, upon 

 the application of any party in interest, proceed to 

 decree distribution of the proceeds. If the proceeds 

 are not in court, it also acts against prize agents 

 and others having possession of the proceeds of 

 prize, or bound to respond for them, by way of 

 monition, and orders them to be brought into the 

 registry for distribution. Such is a summary sketch 

 of some of the most important principles of prize 

 law and prize practice. It is necessarily imperfect, 

 for a full discussion of these subjects would be in- 

 compatible with the design of a work of this nature. 

 PROBABILISTS; those philosophers who main- 

 tain that certainty is impossible, and that we must 

 be satisfied with what is probable. This was the 

 doctrine of the new academy, particularly of Arce- 

 silaus and Carneades. In morals, probabilists are 

 those who teach that, in our actions, we must follow 

 what seems to us most probably right ; because, in 

 questions of morality, demonstrative certainty is not 

 to be attained. Among the Jesuits, there were 

 some who taught that a man may follow what is 

 probably right, or what has been decided to be so 

 by teachers of authority, although it may not be the 

 most probably right, or may not seem probable to 

 himself. See Jesuits. 



PROBABILITY. In the doctrine of chances, 

 the probability of any event is the ratio of the fa- 

 vourable cases to all the possible cases, which, in 

 our judgment, are similarly circumstanced, with 

 regard to their happening or failing ; and it is greater 

 or less according to the number of chances by which 

 it may happen, compared with the whole number of 

 chances by which it may either happen or fail. The 

 calculation of chances in games of hazard, and the 

 theory of insurance, whether of property or life, are 

 founded on the laws of probability, as developed by 

 mathematical analysis. The doctrine of probabili- 

 ties forms of itself a science, embracing a vast num- 

 ber of complicated and delicate questions. The 

 subject is treated of in Bernoulli's Ars Conjectur- 

 andi, Condorcet's Essai sur la Probability des De- 

 cisions, Lacroix's Traite, Laplace's Essai philoso- 

 phique sur les Probabilites, and TraitH analytique, 

 and in other works by Price, Halley, Simpson, &c. 

 PROBATE COURTS. See Courts. 

 PROCESS, FORMS OF THE CIVIL. Momentous 

 as this subject is, it has not received its due share 

 of attention from philosophical minds, compared 

 with that bestowed on numerous other branches of 

 jurisprudence ; few of which deserve more serious 

 consideration, though many may be more attractive. 

 As to the history of the civil process, so important 

 a test of the political condition ot a society, the 



work of Mr Meyer, Esprit, Origine et Progres dca 

 Institutions judiciaires des principaux Pays de 

 r Europe (6 vols. 1820 i>3}, has by no means ex- 

 hausted the subject. The four most important 

 forms of civil process or civil procedure now exist- 

 ing, are the English, French, the common German, 

 and Prussian. I. The English is so well known to 

 most of our readers, that we need not enter into the 

 details of it here. (See the articles Courts, Jury, 

 Evidence, Assizes, &c.) The general principle is, 

 that the court takes no further part in the course of 

 the proceedings, than to see that the law is observed, 

 and that nothing unfair is done by either party, &c. ; 

 but it has nothing to do with the investigation of the 

 truths in the pending case. This is left to the par- 

 ties, or the skill of their counsellors. This, the 

 oldest of the above four forms of procedure, is the 

 opposite of the Prussian, the most recent. 



II. TheFrench system is founded on the procedure 

 of the spiritual courts, with the application of the 

 Roman law : it has been formed since the fourteenth 

 century by the usage of the parliaments, particularly 

 that of Paris (style du parlemenf), and by several 

 royal ordinances, among which, that of 1539 is dis- 

 tinguished. (See Bernardi, De I' Origine et des 

 Progres de la Legislation Franyaise, 1816.) Louis 

 XIV. caused a regular form of procedure to be 

 issued in 1667, of which the most recent, that of 

 Napoleon, in 1806, is but a modification. The oral 

 statement of the parties in open court, is the chief 

 point in this system . The introductory proceedings, 

 the setting forth of the complaint, the answer, re- 

 joinder, &c., go on entirely without the interference 

 of the court, by means of a correspondence between 

 the attorneys. The real points of the case are not 

 fairly brought out in this stage of the proceedings, 

 and it would seem, therefore, that the whole pro- 

 cess fails of its first requisite, a firm basis: the posi- 

 tion and claims of the parties remain changeable 

 and indefinite until the sentence. Nay, the true 

 cause of action is not fully stated (prendre ses con- 

 clusions} till the last audience, when the sentence 

 is given. Incidental questions must be decided 

 before the parties can proceed, by which great de- 

 lay is caused, though much pains have been taken 

 to shorten the process in this respect. The uncer- 

 tainty caused by the want of precision in the pre- 

 paratory proceedings is in a degree avoided by two 

 circumstances, which are extremely beneficial ; 1st, 

 The right of a party to demand, in any stage of the 

 process, precise statements respecting particular 

 alleged facts from the opposite party (interrogatoire 

 sur f aits et articles), which are not given on oath, 

 indeed, but under strict obligations to veracity ; 

 and, 2d, the right of the judge to order the parties 

 to appear in court, that he may question them him- 

 self respecting the facts. The second chief part of 

 the process, the mode of proof, is, like every order 

 emanating from the court, introduced by an inter- 

 locutory judgment, against which the common legal 

 remedies are admissible ; and, lastly, the third part, 

 The arguments of the advocate are presented orally 

 in open court. In civil cases, as is well known, 

 there is no jury in France. 



III. Since the reforms of the sixteenth century, 

 and particularly the last decree of the diet of 1654, 

 the German (excepting the Prussian) process is 

 chiefly characterized by the cautious and complete 

 statement of the cause of action ; the obligation of 

 the defendant to answer thereon immediately and 

 fully, bringing together all his objections ; and the 

 skill with which the examinations of the evidence 

 are conducted. The judge is bound to see that the 

 written statement of the plaintiff's cause of action pos- 

 sesses the necessary qualities to make a safe basis for 



