Page:Harvard Law Review Volume 4.djvu/179

163 ""LAW AND FACT'' IN JURY TRIALS. 163 the case of Cocksedge v. Fanshawe,^ ten years earlier. It was not always followed in this country, but the fact that it was really a novelty was sometimes not understood.^ In handling this keen-edged instrument, the demurrer to evi- dence, it is more than likely that the just line between the duties of court and jury was often overstepped by assuming that what the court thought the right inference was the only one allowable to the jury. Nothing is more common, even to-day, than the assumption that nothing but a question of law remains, when, in reality, the most important and even necessary inferences of fact are still to be drawn. In this way much which belongs to the jury passes over, unnoticed, into the hands of the judges. 3. A powerful resource of the judges lay in their right to shape and to change the forms of pleading. A party was permitted and encouraged to spread his case upon the record with a view to avoid the jury. This gave all into the hands of the judges upon a demurrer, and even without a demurrer enabled them, for various purposes, to assume all the facts to be known. The way in which libel cases were thus influenced is clearly pointed out by Chief-Justice Shaw:^ "The theory of those judges who held that the jury were only to find the fact of publication and the truth of the averments, colloquia, and innuendoes, was this: that when the words of the alleged libel are exactly copied, and all the circum- stances and incidents which can affect their meaning are stated on the record, inasmuch as the construction and interpretation of lan- guage, when thus explained, is for the court, the question of the legal character of such libel . . . would be placed on the record, and therefore, as a question of law, would be open after verdict on a motion in arrest of judgment." The fierce struggle that went on over this question, ending in the statute that recognized the jury's right to give a general verdict, in cases of criminal libel, as in others,* is a standing testimony to the practical importance of the question who should apply the law to the fact. The history of 1 I Doug. 119 (1779-1783)- 2 Patrick v. Hallett, i Johns. 241 (1806); Whittington v. Christian, 2 Randolph, pp. 357-8 (1824) ; Trout v. R. R. Co., 23 Gratt. pp. 619-20, 635-40 (1873). Demurrers to evidence are mainly obsolete in this country. What is called by this name now is often a very different thing. 8 Com. V. Anthes, 5 Gray, p. 214. W. R. 157.
 * St. 32 Geo. III. c. 60. Cap. & Counties Bank v. Henty, 7 App. Gas. 741 ; s. c. 31