Page:Harvard Law Review Volume 4.djvu/164

148 148 HARVARD LAW REVIEW, the parties were at issue on some question of fact, to say what the fact was, and the name for this thing was " rei Veritas." The truth of the thing about what? About all sorts of questions. Was a party in possession of something? Did he disseise somebody? Had he put his seal to a paper? Did he enfeoff another of land? and what land? What is the cojtsuetudoy the custom, of such a place? Is a person legitimate, or a tiativuSy or an idiot, or insane? This is the same sort of question that juries pass on to-day, — having the same elements of opinion and law, compounded with the simpler features which catch the eye and ear; questions of fact, as we say. Now, although juries had only to do with an issue, yet ques- tions of fact were by no means limited to the issue. The courts settled a great many questions of fact for themselves; they could not take a step without passing upon such questions. Was the deed that was put forward in pleading '' rased" or not? If a party claimed the right to defend himself as a maimed per- son, was it really mayhem? Was a person presenting himself and claiming to be a minor, really under age? A stream of ■questions as to the reality, the rei Veritas, the fact, of what was alleged before them, was constantly pouring in. A prisoner, for example, had confessed; on being brought into court, he declared that it was by duress of his jailer. Was this so? To find this out the justice took the short cut of sending for several of the fellow-prisoners and the jailer, and questioning them all in the prisoner's presence; and he found that it was not true.^ This, again, is just as it is to-day. Courts pass upon a vast number of questions of fact that do not get into the pleadings. Courts existed before juries; juries came in to perform only their own one special office, and the courts have continued to re- tain a multitude of functions which they exercised before, in ascer- taining whether disputed things be true. In other words, there is not and never was any such thing as an allotting of all questions of fact to the jury. The jury simply decide some questions of fact. The maxim ad quaestionem juris respondent judices, ad quaestionem facti respondent juratores, was never true, if taken absolutely.^ It was a favorite with Coke in discussing special 1 Y. B. 30 and 31 Edw. I. 543 {circa A.D. 1300). " Ecce," says the justice, "socii vestri in prisona testificantur coram vobis. . . . Vis tu aliud aliquid dicere ? " 2 This " decantatuin," as Vaughan called it, in his famous opinion in Bushell's Case