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Edward S. Stokes for the murder of his some- GENERAL PLEADING IMPOSING ON JURIES time friend, Fisk. Under the sentence of Jus- THE DECISION OF QUESTIONS OF LAW. tice Davis, Tweed received a year's imprisonment for each of the twelve counts of the The perfection of judicial procedure in the comindictment. Two years later, however, the mon-law courts is a system of judicial allegation, Court of Appeals decided that this cumulative for the decision of the jury a pure question of fact

which, eliminating all extraneous matter, submits sentence was contrary to law. In 1874 Judge which may be responsively answered by a simple Davis succeeded to the chief justiceship of the affirmative or negative. (1) court, and in 1887, the close of his term, he

The antithesis of this is a procedure of general

issues. resumed his private practice. On his retire

The objection to general issues is that they inment he made a striking address, somewhat un- volve questions of law, as well as questions of fact, der the stress of emotion, the tenor of which thus necessitating charges from the court to the jury may be taken as splendidly characteristic of his as to the law.(2) tenets as a jurist and as a man. He said: “It The jury was never intended as a tribunal for the is my nature to form strong convictions and decision of questions of law.(3)

It would, indeed, be something remarkable if sometimes to express them too strongly, but twelve men, taken from the field, farm and factory, neither by speech nor silence have I ever de- could properly decide questions of law, even when signed to injure any suitor or his counsel. In charged as to the law by the court. searching the record of my judicial life I can Special pleading, when rigidly and intelligently

applied, submits for the consideration of the jury find no entry that I have ever decided any cause

a pure question of fact which may be responsively or matter contrary to my then conviction of answered by a “yes” or “ no.” right.” After 1887 Justice Davis practiced To demonstrate this would require a lengthy disin New York until about three years ago, when sertation on special pleading. his health began to give way under attacks of

The so-called Code system of pleading abounds in sciatic rheumatism. Underlying his somewhat general issues* involving both questions of law and

fact. Thus forcing on juries the decision of quespositive manner, there was much of kindness, tions of law and converting ignorant farmers and much subtle sympathy. At his home in the laborer into judges of law.(4) Pocantico Hills he was treated with an almost Charges, as commonly used, by the court to the idolatrous regard by the inhabitants. It had jury on questions of law find no place in pure

special pleading. (5) come to be the custom that Justice Davis spent

This is true, because the issues submitted to a his birthdays there when the school children jury by special pleading consist of pure questions would flock in a body to his house, one of their of fact and involving no questions of law, there is number acting as spokesman, would make him no occasion for the judge to charge the jury as to a pretty little congratulatory speech, at which the law.

And this accords with the constitution of jury "the judge " never failed to show his pleasure

trials. in words and in an easily-detected emotion.

What is a jury? A jury, at common law, is a He was the intimate friend of General Grant, tribunal consisting of twelve men whose office is to as well as his private attorney, and was very decide questions of fact, hence they were denomiproud of being the possessor of the general's nated jurata, se juratores, jurors. chair and desk, which he kept in his New York of a juror, as of a judge, because a jury was sup

No qualification of legal knowledge was required office. Judge Davis was last heard from publicly when he upheld, by a strong letter, Judge

(1) Chitty's Pleading, vol. 1, p. 376; Stephen on Pleading, p. 22. Levintritt, who was mentioned harshly in reso- S. W. R. 588; Blackstone's Comm., vol. 3, ch. 20, p. 305, (Cooley's

(2) McLure v. Bigstaff, 37 S. W. R., p. 294; Lucas v. Lucas, 37 lutions passed by the Bar Association. Judge Ed.) Davis was a member of the Union League Club (3) Bacon's Abdg., Title Juries; Blackstone's Comm., vol. 3, and a charter member of the Bar Association. P. 349.

(4) Am. & Eng. Encyc. of Law, vol. 18, p. 215; Boughner v. Black's

Admrs., 83 Kent, 531. The United States Supreme Court has decided • The term general issues as here nised does not signify the general the Illinois anti-trust statute to be unconstitutional, isrue of the common-law pleading, but signifies thore general issues because of the provision of the law exempting agri- such issues as abound in Code pleading.

formed by loose general denials of the allegations of a pleading, cultural products and live stock from the operations

(5) 2 Reeve's Hist. of Eng. Law, 3, 271; Bacon's Abdg., Tit. Pleader; of the law.

Comyn's Dig., Tit. Pleader.

posed to have nothing to do with the decision of issues of fact were required to be formulated by legal questions. (6)

the litigants for the decision of the jury. And to Special pleading was the instrument by which such perfection was special pleading carried that questions of fact were formulated and presented to it evolved from every litigated case the simple issues the jury for their consideration. And, to show what of fact involved therein. And these issues thus an inroad has been made on the jury system, and formed consisted of such pure questions of fact to what an extent the power of the judiciary has that the same could be responsively answered by a been increased, we have only to call attention to simple affirmative or negative. the fact that under this loose Code pleading, in the Thus, if the question of fact involved in a case majority of cases, the issues which the jury are to be whether A, the ancestor, be dead or alive at the try are formulated by the charges of the court, and commencement of the action. Now, suppose the not by the pleadings. And, in fact, it could not be plaintiff to allege the death of A, the ancestor, and otherwise, since the allegations and denials of the his own sonship and heirship. The defendant pleads pleadings are so general that the judge presiding that A is alive. To this the plaintiff replies that must, of necessity, by his charges, call the attention “A is dead, without this — that A is alive," or by a of the jury to the particular issues arising on the common traverse denying the language of the plea — evidence. (7)

that A is alive. Concluding, if a special traverse, Now, charges formulated by the judge from the with a verification, or in the case of a common evidence will, in the great majority of cases, be traverse to the country - -or, perhaps, in both cases composed of fact and law, and, involving questions to the country. Here a simple, single, certain and of law, they thus impose on the jury the burden of material issue is formed involving a pure question of deciding questions of law, for which the jury was fact — that is whether A, the ancestor, be dead or never intended.

alive. Another objection to this formulation of issues The decision of this question of fact requires no by the charges of the court is this, it places too charges from the judge to the jury. All that is much power in the hands of the judiciary, because required is for the jury to hear the evidence offered under most State statutes the presiding judge alone on this issue and return a verdict, responding negadetermines the necessity for, as well as the number tively or affirmatively to the issue. (9) and character of, the charges to the jury. Conse- And so it is with any and every possible case that quently, if, in his opinion, a particular question is can arise. And this is necessarily true, because if not sufficiently presented by the evidence in the case any case does not involve any question of fact, then to justify submitting the same as an issue for the the questions involved are questions of law and decision of the jury, he will refuse a charge on that should be decided by the court. question, although the attorney for the applicant And it is the great excellence of common-law may think differently, and may present a written special pleading that when intelligently applied it request for a charge submitting the point. (8) will reduce any controversy of fact to one or more

But under the modern system of pleading in use single, certain and material issues. (10) in many States, consisting of a "petition and Every possible question that can arise consists answer,” the formulation of issues by charges be of law and fact. If you eliminate the fact, only the comes a necessity. This method of petition and law remains, and vice versa. (11) answer thereto presents no "single, certain and Now, the decision of questions of fact is as much material" issue of act for the decision of the jury; the province of the jury, as is the decision of queson the contrary, the whole case, in one conglom- tions of law the province of the court, and upon a erated mass, without form or certainty, is placed pure issue of fact no question arises for the jury, before the jury. Juries, consisting usually of plain except the truth of such facts. men, laborers, farmers and artisans, are utterly The legal effect of facts is a question for the unable to take up these pleadings and separate court, and on constitutional grounds the court has therefrom the issues of fact.

no more right to say that the evidence is insufficient The common law, from the beginning, being sen- to prove a particular fact than a jury has to decide sible of this incapacity of juries to separate from

on the law. tangled and contradictory allegations questions of

It is true, it is the business of the court to pass fact for their decision by a slow process of elimina- on the relevancy of evidence; and on a demurrer tion, erected common-law pleadings, by which sys

to evidence, and even without it, the court may say tem of pleading, clearly cut and certain, material that the evidence offered is irrelevant to the issue,

that there is no relevant evidence to support the (6) Blackstone's Com., vol. 3, p. 350; Newkirk v. The State, 27 issue and may direct a verdict. But even in this may not return a verdict contrary to such instruc- ' to the jury for their decision. These two, demurrers tion. Of course, the court may set such verdict and special pleadings, are the only instruments aside and grant a new trial But still it is the verdict whereby the law and fact can be properly kept disof the jury, and no court would dare to punish a tinct and respectively submitted tọ the proper jury for finding a verdict according to their sense tribunals. (16) of right, though contrary to the charges of the court. As a counterpart of what is said above, it is no The judge can set such verdict aside and grant a uncommon thing to see demurrers filed, which are new trial, but this is the extent of his power. (12) really pleas, since they state facts. The purpose of

case it is very doubtful whether or not the jury (7) Cook v. Brown, 67 Mich. 473; Tarbell v. Shipping Company, 110 N. Y. 170; Hichins v. Mayor of Frostbury, 68 Md. 100; Brazil

(9) Lawe's Pleading, p. 17; Gould's Pleading, p. 5; Evan's Essay on 1. Moran, 8 Minn. 236; Good v. Martin, 91 Am. Dec., 706.

Pleading, pp. 37-62. (9) Hemingway v. Chicago, etc., R. R. CO., 72 Wis. 42; Sullens v. (10) Shiman's Common Law Pleading, pp. 212-250; Chitty on Chicago, Rock Island Rd. Co., 74 Ia. 659; Rowland v. Carmichael, Pleading, p. 327; Bacon's Abdg., Tit. Pleader.

(11) Blackstone's Com., vol. 3, ch. 21., pp. 313-315.

Ind., 1, 3.

77 Ga. 850.

Special pleading, when properly applied, produces a demurrer is to call the attention of the court to such simple questions of fact that these questions a question of law arising on the record — not to all do not require for their decision charges from the defects in the record, but only to questions of law court to the jury.

! arising on the record. But issues compounded of fact and law do require The purpose of a plea is to show facts, and a that the court shall charge the jury as to the law. plea should only consist of matter of fact. A plea And this is the great evil of general issues — such may contain matter of record, but this, so far as issues usually are compounded of fact and law. A the distinction we are considering is concerned, may pure question of fact does not contain any law, be considered as matter of fact, since the issue and, there being no law in the composition of such formed on such a plea is usually one of fact as to an issue, it does not require charges as to the the existence of such record, or as to its precluding law.(13)

and excluding power as an estoppel. But, as stated above, the present system of Code It is true the method of trial is, in this case, pleading does not formulate its issues by the plead- changed -- the matter of record being tried by the ings in the case, but forms its issues by the charges court. (17) of the court on the evidence.

But a demurrer should never state facts, since it This forming of issues by charges is essentially thus forms no issue of law, and precludes the other a modern production. It was unknown to the civil side from traversing, or confessing and avoiding, and canon laws – which laws did not make use of such facts. (18) the jury system - and, of course, it was unknown

How it ever came about that twelve plain men to the common law. Where, then, did this system should have ever been considered safer triers of originate? It is the legitimate child of Code law

matter of fact than judges, who are acquainted with of codification - and is found nowhere else.

the rules of evidence and know what is and what The forming of issues from the evidence by the is not legal proof, is hard to discover from this charges imposes on the jury the decision of legal

standpoint. questions for which the jury was never intended

But the modern view put forth by Sir William and is utterly unsuited, and it places in the power Blackstone, that the purpose of a jury is only to of the judge to formulate such issues as he sees fit, inform the conscience of the court as to matters of and, finally, it takes a man's case out of the hands fact, does not comport with the original idea and of his attorneys and places it in the hands of the origin of the jury system. (19) court. (14)

It is true that the jury were originally not triers Under common-law pleading the parties themselves determined what they wished the jury to de- of fact at all

, but were witnesses as to the exist

ence of facts. cide, thus placing and keeping the management and

Hence, originally, when any matter was to be control of the case in the hands of the parties

judicially investigated the jury were summoned from themselves. But under Code pleading the judge,

the very neighborhood, the venue where the matter from the evidence, or the judge himself, submits to

took place or the deed was done, because it was the jury for their decision what questions he sees

considered that those persons residing in the immefit.(15)

diate neighborhood of the occurrence were the best A demurrer goes through a record — hunting and

witnesses as to such occurrence; and for this reasearching for questions of law — and when it forms

son every plaintiff was required to state in his an issue of law the same is submitted to the court

declaration the place where the facts alleged took for its decision. Special pleading goes through a

place. This

denominated laying record — hunting and searching for pure questions and was stated in the declaration and intended as a

the venue of fact - and when found the same are submitted direction to the sheriff from what place to summon (12) Constitution U. S. Amendments, art.

U. S. v. La the jury — the witnesses. In this its true sense. Vongeance, 3 Dall. 297; Bank of Columbia v. Oakley, 4 Wh., 186; Venue has lost all of its original meaning with us Edwards v. Elliott, 21 Wall. 532; Blackstone's Com., vol. 3, ch. 24, p. 389-391.

(16) Blackstone's Com., vol. 3, ch. 21; Gould's Pld., p. 97; (18) Gould's Pld., p. 179; Chitty's Pld., p. 363.

Chitty's Pld., p. 316; Stephen on Pld., (14) Evan's Essuy on Pleading, p. 20-37; Stephens on Pld., Ap. Note 15.

(17) Shipman's Common Law Pld., p. 230; Chitty'. Pld., p. 279. (15) Am. & Eng. Encyc. of Law, vol. 16, p. 280; 'Porter v.

(18) Blackstone's ('om., vol. 3, ch. 21; Chitty's 'Pld., p. 537. Western & R. R., 97 N. C. 66; Smith v. McGregor, 96 N. C. 101; (19) Thompson & Merriam on Juries; Schmidt v. New York Ins. McIntyre v. Shaltly, 121 III. 660.

Co., 1 Gray, 529; Hartshorn v. Patton, 2 Dall. 252.



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at the present day, and now venue is nothing more mitted facts, then it follows that, although the facts or less than a matter of local description. (20) are admitted, it still remains a question for the

The process by which jurors passed and changed jury: Did the conduct of the party amount to from witnesses of fact to judges or triers of fact negligence? (23) was very gradual and was, doubtless, principally This example shows with what facility, by a proeffected and intended as a protection to the people cess of spurious reasoning, the judiciary invaded the against the harshness of monarchal government and constitutional right of the jury to pass on questions the overbearing haughtiness and oppression of a of fact. powerful nobility, because we find in chapter 29 of But these general issues, compounded of law and Magna Charta it declared that no freeman shall be fact, are not the only means by which Code pleadhurt in either his person or property, nisi per legate ing strengthens in the hands of the judiciary this judicium parium suorum vel per legem terrae, a privi- mighty bludgeon of charges. This system also lege which is expressed in almost the same language abounds in allegations of legal conclusions. Such with that of the Emperor Conrad 200 years before. allegations are not issuable, that is, they are not And this idea of the constitution of a jury still matter on which the other side can form an issue exists and has its effect. But the chief and leading of fact by a traverse, be use such allegations conidea of the jury now is an administration of the tain no fact, but only the opinion of the pleader law by the people, a government by the people, that as to the law arising on facts which are not stated. every man condemned is condemned by the verdict But, if no issue of fact can be formed, there is of his fellows. If he is deprived of property, it is nothing for a jury to try. done by the verdict of his fellow-citizens, and this But, nevertheless, they rush along; the defendant is that great idea of liberty, a government by the files a general denial, and when the case comes to people. (21)

be tried the judge, by means of his charges, reaches The jury are the people — the country — and when out into the evidence and by means of these same dismissed from service are immediately lost in the charges submits to the jury the issues they are to mass of the people of which they are a part. try. (24)

A citizen can be as effectually deprived of a right Common-law pleading requires the allegation of by indirection as he can be by direct deprivation. pure fact, thus notifying the defendant what will And what is the difference between a government be offered in evidence on the trial against him, and by judges and a judge telling a jury what they also enabling him, by his traverse or special pleamust do or must not do? And here is the objection ing in bar, to form a pure issue of fact which the to this loose Code pleading, it blends and mixes in jury may decide without instructions from the court, the same pleading law and fact, and thus sends to because the issue, involving no question of law, there the jury for their decision issues blended of law and is no need for the court to charge the jury as to a fact. This necessitates charges from the court to matter which is not under their consideration. (25) the jury as to the law, thus giving a hand and The jury system and common-law pleading were setting a precedent for judges to direct and control rocked in the same cradle — they have a common the verdict of the jury.

origin. Each necessitates the existence of the other, Thus, take the case of an action for damages for a and I do believe that they are bound in the same personal injury where the issue is negligence in the bundle of life, and neither can be destroyed without defendant, vel non.

striking at the existence of the other. Now, most of the courts hold that where the facts The question we have here considered rises higher are admitted negligence is a question of law, or than any mere question of procedure. They strike where there is no dispute as to the facts negligence at the perpetuity of the jury system. is a question of law, and, being a legal question, the Every blow aimed at the jury system is a blow judge can direct the jury to return a verdict accord- aimed at the liberties of the citizen. ing to his opinion of the law.(22)

If we would have right and justice properly But slight consideration will enable one to see administered, we must preserve and keep clearly that even if the facts are admitted, there still re- defined the jurisdiction of the court and jury, and mains this question of fact: Did the conduct of the not suffer the slightest infraction of the constituparty under these admitted facts

to tional rights of the jury. negligence?

The jury is as much a constitutional part of our There are no rules of law by which the conduct superior courts as is the judge himself, and the of the party can be measured, and if the law pro-judge has no more authority to invade the province vides no standard of negligence, vel non, under ad- of the jury than the jury has to invade his rights.


(20) Am. & Eng. Encyc. of Law, vol. 18, p. 257; Shipman's (23) Passenger R’y Co. v. Trick, 117 Pa. Bt. 400; Northern, etc., Common Law Pld., p. 97.

R. R. Co. v. State, 96 Am. Dec. 545; Page v. Bucksport, 18 am. (21) Hare's Const. Laiv, vol. 2, pp. 240-290; Smith v. Clayton, 29 Dec. 239. N. J. L.., 358; Gropp v. People, 67 Ill., 151.

(24) Waddell v. Swann, 91 N. C., 108; Whittier v. Ardins, 15 A. (22) West Mahanay Township v. Watson, 116 Pa. st. 341; Clem

St. R., dec. 90. ens v. Hanibal R. Co., 14 Am. Dec. 460; Johnson v. Bruner, 100 (25) Louisville, etc., Co. v. Wright, 115 Ind.,378; Strohn v. Detroit Am. Dec. 613.

& R. Co., 23 Wie., 126; Indianapolis & R. Co. v.Watson, 114 Ind., 20.

There is no danger of the jury encroaching on the ! The preamble to this compact seems to limit the rights of the judge. But there is danger of the idea of territorial expansion and the grave difficuljudge encroaching on the rights of the jury. ties which surrounded these colonial States on all

The existence of the two tribunals, the judge sides, and the fact that the Union was an experiment, and the jury, the first for decision of questions of indicates that there was at that time in our history law, the second for the decision of questions of fact, no conception of the present-day doctrine of necessitates the existence of some method by which expansion. the law and fact involved in an allegation may be Liberal as was the English Constitution in the separated, the one from the other, so that the law' matter of granting citizenship and legal rights to the may go to the court and the fact to the jury. This inhabitants of its colonial possessions, they were still was accomplished, and thoroughly accomplished, at held as subjects of the imperial crown not entitled common law by special pleading.

to representation in the sovereign assembly. ParliaThis system of pleading grew up gradually and nient has always claimed imperial power over all strengthened as the necessity for the same increased the English possessions and the right to invade the until in its perfection it answered perfectly the pur- jurisdiction of all colonial assemblies for the purpose intended. (26)

pose of regulating affairs to suit the crown. And we have either to go back to common-law This meant for the American colonies, the right pleading or else we will so blend and mix the func- to interfere in the regulation of taxes and duties and tions of court and jury as to disfigure and destroy in shaping legislation generally to suit the wishes the beauty, usefulness and jurisdiction of the jury and needs of the “imperial government" at home. system. (27)

Even then the people of Massachusetts and VirThe preservation of the jury system rests with 'ginia would not have rebelled could the near-sighted the “bar." The people do not understand these advisers of King George have seen the justice of things, the “bar” does, and it is our duty, it is their demand for a fair representation in the body especially cast on the bar” to protect, defend and controlling their legislation. ever preserve in its pristine purity this bulwark Out of theories then making, of the power of of Anglo-Saxon liberty — the constitutional and imperial government over the territorial possessions, common-law rights of the jury.

was born the spirit of revolution which severed the To this grand tribunal, hoary with age, baptized relation of the American colonies from the mother in the blood of the martyrs to liberty, the hope of State. the innocent and sanctuary of the oppressed, I would With the treaty of peace, which followed in 1783, say Esto perpetua.

came to the independent States of the American LINTON D. LANDRUM.

continent a large area of wild territory lying along COLUMBUS, Miss., Dec., 1901.

the northwestern boundary, out of which have come to the Union the States of Ohio, Indiana, Illinois,

Michigan and Wisconsin. The question of the dispoCONGRESS AND THE CONSTITUTION.

sition of this acquired territory delayed for several

years the adoption of the first Constitution. *'he PRECEDENT OF THE LOUISIANA PURCHASE. controversy was stilled for a time by the United

States adopting this territory as common property, It is hardly possible that those who framed the subject to be parceled out by congress into conConstitution, as well as the people of the States, that venient and independent governments, to be finally

received into the Union of States according to the adopted it and accepted the terms of the compact, ccutemplated the growth of the doctrine of expan

provisions of the Constitution which were then

adopted. siou of territory to the proportions indicated by the

These provisions are section 3, article 4 of the opinion of the United States Supreme Court in what

original compact : are known as the recent Insular Tariff cases. History of the early years of the Colonial Confed

Congress shall have power to dispose of and eracy furnishes proof enough, perhaps, that a western

make all needful rules and regulations respectboundary for the new States should be found in the

ing the territory and other property belonging greit river which cut in twain the North American

to the United States; and nothing in this Concontinent. This was the ambition of Jefferson and

stitution shall be so construed as to prejudice Madison and they bent every effort to its accom

any claim of the United States or of any par

ticular State." plishment

The acquisition of this territory and its ultimate And section 3, article 4: admission to the Union of States was most propably “ New States may be admitted by congress contemplated at the time of the convention to adopt into this Union," etc. the Constitution.

It is with the above constitutional stipulations that (26) 3 Reeves, 107-112; Smith Report, Aug., lib. 2, ch. 13, p. 56, Co. this paper has most to do. Litt. by Harg, 125, 8. n., 1; Ward v. Harris, 2 Bos. & Pnl., 265. At the very threshold of the nineteenth century (27) Evans' Essay on Pleading, 70-79.

the warlike First Consul of France, Auslied with the


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