GENERAL PLEADING IMPOSING ON JURIES The perfection of judicial procedure in the common-law courts is a system of judicial allegation, which, eliminating all extraneous matter, submits for the decision of the jury a pure question of fact which may be responsively answered by a simple affirmative or negative. (1) The antithesis of this is a procedure of general issues. The objection to general issues is that they involve questions of law, as well as questions of fact, thus necessitating charges from the court to the jury as to the law. (2) The jury was never intended as a tribunal for the decision of questions of law.(3) It would, indeed, be something remarkable if twelve men, taken from the field, farm and factory, could properly decide questions of law, even when charged as to the law by the court. Special pleading, when rigidly and intelligently applied, submits for the consideration of the jury a pure question of fact which may be responsively answered by a "yes" or no." To demonstrate this would require a lengthy dissertation on special pleading. Edward S. Stokes for the murder of his sometime friend, Fisk. Under the sentence of Justice Davis, Tweed received a year's imprisonment for each of the twelve counts of the indictment. Two years later, however, the Court of Appeals decided that this cumulative sentence was contrary to law. In 1874 Judge Davis succeeded to the chief justiceship of the court, and in 1887, the close of his term, he resumed his private practice. On his retirement he made a striking address, somewhat under the stress of emotion, the tenor of which may be taken as splendidly characteristic of his tenets as a jurist and as a man. He said: "It is my nature to form strong convictions and sometimes to express them too strongly, but neither by speech nor silence have I ever designed to injure any suitor or his counsel. In searching the record of my judicial life I can. find no entry that I have ever decided any cause or matter contrary to my then conviction of right." After 1887 Justice Davis practiced in New York until about three years ago, when his health began to give way under attacks of sciatic rheumatism. Underlying his somewhat positive manner, there was much of kindness, much subtle sympathy. At his home in the Pocantico Hills he was treated with an almost idolatrous regard by the inhabitants. It had come to be the custom that Justice Davis spent 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 judge "never failed to show his pleasure in words and in an easily-detected emotion. He was the intimate friend of General Grant, as well as his private attorney, and was very proud of being the possessor of the general's chair and desk, which he kept in his New York office. Judge Davis was last heard from publicly when he upheld, by a strong letter, Judge Levintritt, who was mentioned harshly in reso-s. W. R. 588; Blackstone's Comm,, vol. 3, ch. 20, p. 305, (Cooley's lutions passed by the Bar Association. Judge Ed.) Davis was a member of the Union League Club and a charter member of the Bar Association. The United States Supreme Court has decided the Illinois anti-trust statute to be unconstitutional, because of the provision of the law exempting agricultural products and live stock from the operations of the law. The so-called Code system of pleading abounds in general issues involving both questions of law and fact. Thus forcing on juries the decision of questions of law and converting ignorant farmers and laborer into judges of law. (4) Charges, as commonly used, by the court to the jury on questions of law find no place in pure special pleading. (5) This is true, because the issues submitted to a the law. And this accords with the constitution of jury trials. What is a jury? A jury, at common law, is a tribunal consisting of twelve men whose office is to decide questions of fact, hence they were denominated jurata, se juratores, jurors. of a juror, as of a judge, because a jury was sup- (1) Chitty's Pleading, vol. 1, p. 376; Stephen on Pleading, p. 22. (3) Bacon's Abdg., Title Juries; Blackstone's Comm., vol. 3, p. 349. (4) Am. & Eng. Encyc. of Law, vol. 18, p. 215; Boughner v. Black's Admrs., 83 Kent, 531. The term general issues as here used does not signify the general issue of the common-law pleading, but signifies those general issues formed by loose general denials of the allegations of a pleading, such issues as abound in Code pleading. (5) 2 Reeve's Hist. of Eng. Law, 3, 271; Bacon's Abdg., Tit. Pleader; 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) Special pleading was the instrument by which questions of fact were formulated and presented to the jury for their consideration. And, to show what an inroad has been made on the jury system, and to what an extent the power of the judiciary has been increased, we have only to call attention to the fact that under this loose Code pleading, in the majority of cases, the issues which the jury are to try are formulated by the charges of the court, and not by the pleadings. And, in fact, it could not be otherwise, since the allegations and denials of the pleadings are so general that the judge presiding must, of necessity, by his charges, call the attention of the jury to the particular issues arising on the evidence. (7) Now, charges formulated by the judge from the evidence will, in the great majority of cases, be composed of fact and law, and, involving questions of law, they thus impose on the jury the burden of deciding questions of law, for which the jury was never intended. Another objection to this formulation of issues by the charges of the court is this, it places too much power in the hands of the judiciary, because under most State statutes the presiding judge alone determines the necessity for, as well as the number and character of, the charges to the jury. Consequently, if, in his opinion, a particular question is not sufficiently presented by the evidence in the case to justify submitting the same as an issue for the decision of the jury, he will refuse a charge on that question, although the attorney for the applicant may think differently, and may present a written request for a charge submitting the point. (8) But under the modern system of pleading in use in many States, consisting of a "petition and answer," the formulation of issues by charges becomes a necessity. This method of petition and answer thereto presents no "single, certain and material" issue of act for the decision of the jury; on the contrary, the whole case, in one conglomerated mass, without form or certainty, is placed before the jury. Juries, consisting usually of plain men, laborers, farmers and artisans, are utterly unable to take up these pleadings and separate therefrom the issues of fact. The common law, from the beginning, being sensible of this incapacity of juries to separate from tangled and contradictory allegations questions of fact for their decision by a slow process of elimination, erected common-law pleadings, by which system of pleading, clearly cut and certain, material (6) Blackstone's Com., vol. 3, p. 350; Newkirk v. The State, 27 Ind., 1, 3. the litigants for the decision of the jury. And to such perfection was special pleading carried that it evolved from every litigated case the simple issues of fact involved therein. And these issues thus formed consisted of such pure questions of fact that the same could be responsively answered by a simple affirmative or negative. Thus, if the question of fact involved in a case be whether A, the ancestor, be dead or alive at the commencement of the action. Now, suppose the plaintiff to allege the death of A, the ancestor, and his own sonship and heirship. The defendant pleads that A is alive. To this the plaintiff replies that 'A is dead, without this that A is alive," or by a common traverse denying the language of the plea that A is alive. Concluding, if a special traverse, with a verification, or in the case of a common traverse to the country — or, perhaps, in both cases to the country. Here a simple, single, certain and material issue is formed involving a pure question of fact that is whether A, the ancestor, be dead or alive. The decision of this question of fact requires no charges from the judge to the jury. All that is required is for the jury to hear the evidence offered on this issue and return a verdict, responding negatively or affirmatively to the issue. (9) And so it is with any and every possible case that can arise. And this is necessarily true, because if any case does not involve any question of fact, then the questions involved are questions of law and should be decided by the court. And it is the great excellence of common-law special pleading that when intelligently applied it will reduce any controversy of fact to one or more single, certain and material issues. (10) Every possible question that can arise consists of law and fact. If you eliminate the fact, only the law remains, and vice versa. (11) Now, the decision of questions of fact is as much the province of the jury, as is the decision of questions of law the province of the court, and upon a pure issue of fact no question arises for the jury, except the truth of such facts. The legal effect of facts is a question for the court, and on constitutional grounds the court has no more right to say that the evidence is insufficient to prove a particular fact than a jury has to decide on the law. It is true, it is the business of the court to pass on the relevancy of evidence; and on a demurrer to evidence, and even without it, the court may say that the evidence offered is irrelevant to the issue, that there is no relevant evidence to support the issue and may direct a verdict. But even in this case it is very doubtful whether or not the jury (9) Lawe's Pleading, p. 17; Gould's Pleading, p. 5; Evan's Essay on Pleading, pp. 37-62. (10) Shiman's Common Law Pleading, pp. 212-250; Chitty on Pleading, p. 327; Bacon's Abdg., Tit. Pleader. (11) Blackstone's Com., vol. 3, ch. 21., pp. 313-315. 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 to the proper jury for finding a verdict according to their sense tribunals. (16) of right, though contrary to the charges of the court. The judge can set such verdict aside and grant a new trial, but this is the extent of his power. (12) Special pleading, when properly applied, produces such simple questions of fact that these questions do not require for their decision charges from the court to the jury. As a counterpart of what is said above, it is no uncommon thing to see demurrers filed, which are really pleas, since they state facts. The purpose of a demurrer is to call the attention of the court to a question of law arising on the record not to all defects in the record, but only to questions of law arising on the record. The purpose of a plea is to show facts, and a plea should only consist of matter of fact. A plea may contain matter of record, but this, so far as the distinction we are considering is concerned, may be considered as matter of fact, since the issue formed on such a plea is usually one of fact as to the existence of such record, or as to its precluding 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 of the court on the evidence. This forming of issues by charges is essentially a modern production. It was unknown to the civil and canon laws - which laws did not make use of the jury system-and, of course, it was unknown to the common law. Where, then, did this system originate? It is the legitimate child of Code law of codification and is found nowhere else. The forming of issues from the evidence by the charges imposes on the jury the decision of legal questions for which the jury was never intended and is utterly unsuited, and it places in the power of the judge to formulate such issues as he sees fit, and, finally, it takes a man's case out of the hands of his attorneys and places it in the hands of the court. (14) Under common-law pleading the parties them court. (17) But a demurrer should never state facts, since it thus forms no issue of law, and precludes the other side from traversing, or confessing and avoiding, such facts. (18) How it ever came about that twelve plain men should have ever been considered safer triers of matter of fact than judges, who are acquainted with the rules of evidence and know what is and what is not legal proof, is hard to discover from this standpoint. But the modern view put forth by Sir William Blackstone, that the purpose of a jury is only to inform the conscience of the court as to matters of fact, does not comport with the original idea and origin of the jury system. (19) It is true that the jury were originally not triers ence of facts. selves determined what they wished the jury to de- of fact at all, but were witnesses as to the existcide, thus placing and keeping the management and control of the case in the hands of the parties themselves. But under Code pleading the judge, from the evidence, or the judge himself, submits to the jury for their decision what questions he sees fit. (15) A demurrer goes through a record-hunting and searching for questions of law and when it forms an issue of law the same is submitted to the court for its decision. Special pleading goes through a record hunting and searching for pure questions of fact—and when found the same are submitted (12) Constitution U. S. Amendments, art. 7; U. S. v. La Vengeance, 3 Dall. 297; Bank of Columbia v. Oakley, 4 Wh., 235; Edwards v. Elliott, 21 Wall. 532; Blackstone's Com., vol. 3, ch. 24, p. 389-391. (13) Gould's Pld., p. 179; Chitty's Pld., p. 363. (14) Evan's Essay on Pleading, p. 20-37; Stephens on Pld., Ap. Note 15. (15) Am. & Eng. Encyc. of Law, vol. 18, p. 280; 'Porter v. Western & R. R., 97 N. C. 66; Smith v. McGregor, 96 N. C. 101; McIntyre v. Shaltly, 121 Ill. 660. Hence, originally, when any matter was to be judicially investigated the jury were summoned from the very neighborhood, the venue where the matter took place or the deed was done, because it was considered that those persons residing in the immediate neighborhood of the occurrence were the best witnesses as to such occurrence; and for this readeclaration the place where the facts alleged took son every plaintiff was required to state in his place. This was denominated laying the venue and was stated in the declaration and intended as a direction to the sheriff from what place to summon the jury-the witnesses. In this its true sense. Venue has lost all of its original meaning with us (16) Blackstone's Com., vol. 3, ch. 21; Gould's Pld., p. 97; Chitty's Pld., p. 316; Stephen on Pld., p. 122. (17) Shipman's Common Law Pld., p. 230; Chitty's Pld., p. 279. (18) Blackstone's Com., vol. 3, ch. 21; Chitty's Pld., p. 537. (19) Thompson & Merriam on Juries; Schmidt v. New York Ins. Co., 1 Gray, 529; Hartshorn v. Patton, 2 Dall. 252. at the present day, and now venue is nothing more or less than a matter of local description. (20) The process by which jurors passed and changed from witnesses of fact to judges or triers of fact was very gradual and was, doubtless, principally effected and intended as a protection to the people against the harshness of monarchal government and the overbearing haughtiness and oppression of a powerful nobility, because we find in chapter 29 of Magna Charta it declared that no freeman shall be hurt in either his person or property, nisi per legate judicium parium suorum vel per legem terrae, a privilege which is expressed in almost the same language with that of the Emperor Conrad 200 years before. And this idea of the constitution of a jury still exists and has its effect. But the chief and leading idea of the jury now is an administration of the law by the people, a government by the people, that every man condemned is condemned by the verdict of his fellows. If he is deprived of property, it is done by the verdict of his fellow-citizens, and this is that great idea of liberty, a government by the people. (21) The jury are the people — the country — and when dismissed from service are immediately lost in the mass of the people of which they are a part. A citizen can be as effectually deprived of a right by indirection as he can be by direct deprivation. And what is the difference between a government by judges and a judge telling a jury what they must do or must not do? And here is the objection to this loose Code pleading, it blends and mixes in the same pleading law and fact, and thus sends to the jury for their decision issues blended of law and fact. This necessitates charges from the court to the jury as to the law, thus giving a hand and setting a precedent for judges to direct and control the verdict of the jury. Thus, take the case of an action for damages for a personal injury where the issue is negligence in the defendant, vel non. Now, most of the courts hold that where the facts are admitted negligence is a question of law, or where there is no dispute as to the facts negligence is a question of law, and, being a legal question, the judge can direct the jury to return a verdict according to his opinion of the law. (22) But slight consideration will enable one to see that even if the facts are admitted, there still remains this question of fact: Did the conduct of the party under these admitted facts amount to negligence? There are no rules of law by which the conduct of the party can be measured, and if the law provides no standard of negligence, vel non, under ad (20) Am. & Eng. Encyc. of Law, vol. 18, p. 257; Shipman's Common Law Pld., p. 97. mitted facts, then it follows that, although the facts are admitted, it still remains a question for the jury: Did the conduct of the party amount to negligence? (23) This example shows with what facility, by a process of spurious reasoning, the judiciary invaded the constitutional right of the jury to pass on questions of fact. But these general issues, compounded of law and fact, are not the only means by which Code pleading strengthens in the hands of the judiciary this mighty bludgeon of charges. This system also abounds in allegations of legal conclusions. Such allegations are not issuable, that is, they are not matter on which the other side can form an issue of fact by a traverse, because such allegations contain no fact, but only the opinion of the pleader as to the law arising on facts which are not stated. But, if no issue of fact can be formed, there is nothing for a jury to try. But, nevertheless, they rush along; the defendant files a general denial, and when the case comes to be tried the judge, by means of his charges, reaches out into the evidence and by means of these same charges submits to the jury the issues they are to try. (24) Common-law pleading requires the allegation of pure fact, thus notifying the defendant what will be offered in evidence on the trial against him, and also enabling him, by his traverse or special pleaing in bar, to form a pure issue of fact which the jury may decide without instructions from the court, because the issue, involving no question of law, there is no need for the court to charge the jury as to a matter which is not under their consideration. (25) The jury system and common-law pleading were rocked in the same cradle they have a common origin. Each necessitates the existence of the other, and I do believe that they are bound in the same bundle of life, and neither can be destroyed without striking at the existence of the other. The question we have here considered rises higher than any mere question of procedure. They strike at the perpetuity of the jury system. Every blow aimed at the jury system is a blow aimed at the liberties of the citizen. If we would have right and justice properly administered, we must preserve and keep clearly defined the jurisdiction of the court and jury, and not suffer the slightest infraction of the constitutional rights of the jury. The jury is as much a constitutional part of our superior courts as is the judge himself, and the judge has no more authority to invade the province of the jury than the jury has to invade his rights. (23) Passenger R'y Co. v. Trick, 117 Pa. st. 400; Northern, etc., R. R. Co. v. State, 96 Am. Dec. 545; Page v. Bucksport, 18 Am. (21) Hare's Const. Law, vol. 2, pp. 240-290; Smith v. Clayton, 29 Dec. 239. N. J. L., 358; Gropp v. People, 67 Ill., 151. (22) West Mahanay Township v. Watson, 116 Pa. st. 344; Clemens v. Hanibal R. Co., 14 Am. Dec. 460; Johnson v. Bruner, 100 Am. Dec. 613. (24) Waddell v. Swann, 91 N. C., 108; Whittier v. Ardins, 15 A. St. R., sec. 90. (25) Louisville, etc., Co. v. Wright, 115 Ind.,378; Strohn v. Detroit & R. Co., 23 Wis., 126; Indianapolis & R. Co. v. Watson, 114 Ind., 20. There is no danger of the jury encroaching on the rights of the judge. But there is danger of the judge encroaching on the rights of the jury. The existence of the two tribunals, the judge and the jury, the first for decision of questions of law, the second for the decision of questions of fact, necessitates the existence of some method by which the law and fact involved in an allegation may be separated, the one from the other, so that the law may go to the court and the fact to the jury. This was accomplished, and thoroughly accomplished, at common law by special pleading. This system of pleading grew up gradually and strengthened as the necessity for the same increased until in its perfection it answered perfectly the purpose intended. (26) And we have either to go back to common-law pleading or else we will so blend and mix the functions of court and jury as to disfigure and destroy the beauty, usefulness and jurisdiction of the jury system. (27) The preservation of the jury system rests with the "bar." The people do not understand these things, the "bar" does, and it is our duty, it is especially cast on the "bar" to protect, defend and ever preserve in its pristine purity this bulwark of Anglo-Saxon liberty the constitutional and common-law rights of the jury. To this grand tribunal, hoary with age, baptized in the blood of the martyrs to liberty, the hope of the innocent and sanctuary of the oppressed, I would say Esto perpetua. LINTON D. LANDRUM. COLUMBUS, Miss., Dec., 1901. CONGRESS AND THE CONSTITUTION. PRECEDENT OF THE LOUISIANA PURCHASE. It is hardly possible that those who framed the Constitution, as well as the people of the States, that adopted it and accepted the terms of the compact, contemplated the growth of the doctrine of expansion of territory to the proportions indicated by the opinion of the United States Supreme Court in what are known as the recent Insular Tariff cases. History of the early years of the Colonial Confederacy furnishes proof enough, perhaps, that a western boundary for the new States should be found in the great river which cut in twain the North American continent. This was the ambition of Jefferson and Madison and they bent every effort to its accomplishment. The acquisition of this territory and its ultimate admission to the Union of States was most propably contemplated at the time of the convention to adopt the Constitution. (26) 3 Reeves, 107-112; Smith Report, Aug., lib. 2, ch. 13, p. 56, Co. Litt. by Harg, 125, a. n., 1; Ward v. Harris, 2 Bos. & Pnl., 265. (27) Evans' Essay on Pleading, 70-79. The preamble to this compact seems to limit the idea of territorial expansion and the grave difficulties which surrounded these colonial States on all sides, and the fact that the Union was an experiment, indicates that there was at that time in our history no conception of the present-day doctrine of expansion. Liberal as was the English Constitution in the matter of granting citizenship and legal rights to the inhabitants of its colonial possessions, they were still held as subjects of the imperial crown not entitled to representation in the sovereign assembly. Parliament has always claimed imperial power over all the English possessions and the right to invade the jurisdiction of all colonial assemblies for the purpose of regulating affairs to suit the crown. This meant for the American colonies, the right to interfere in the regulation of taxes and duties and in shaping legislation generally to suit the wishes and needs of the "imperial government" at home. Even then the people of Massachusetts and Virginia would not have rebelled could the near-sighted advisers of King George have seen the justice of their demand for a fair representation in the body controlling their legislation. Out of theories then making, of the power of imperial government over the territorial possessions, was born the spirit of revolution which severed the relation of the American colonies from the mother State. With the treaty of peace, which followed in 1783, came to the independent States of the American continent a large area of wild territory lying along the northwestern boundary, out of which have come to the Union the States of Ohio, Indiana, Illinois, Michigan and Wisconsin. The question of the disposition of this acquired territory delayed for several years the adoption of the first Constitution. The controversy was stilled for a time by the United States adopting this territory as common property, subject to be parceled out by congress into convenient and independent governments, to be finally received into the Union of States according to the provisions of the Constitution which were then adopted. These provisions are section 3, article 4 of the original compact: Congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claim of the United States or of any particular State." And section 3, article 4: "New States may be admitted by congress into this Union," etc. It is with the above constitutional stipulations that this paper has most to do. At the very threshold of the nineteenth century the warlike First Consul of France, flushed with the |