Page:Harvard Law Review Volume 4.djvu/181

165 LAW AND FACT IN JURY TRIALS. 165 suggesting a definition of this phrase, and turning the question into " a question of fact " (meaning, of course, a question of fact for the jury), whether those things were true which the definition called for.^ The most singular product of this way of withdrawing ques- tions from the jury was the doctrine of "color" in pleading. In St. Germain's quaint dialogue of the '* Doctor and Student," ^ there is an amusing, grave discussion as to the morality of the fic- tion of color, and incidentally an explanation of it by the Student. The discussion ends by the suggestion of the Student that it is a man's duty, out of love to his neighbor, to save the jury from the peril of a wrong finding, by avoiding the general issue wherever he can, — an argument which the Doctor agrees to ponder. In setting forth this matter, the Student states the rule that one must not plead detail which amounts only to the general issue ; and yet in some cases, if he do plead the general issue, he will have to leave a point of law *' to the mouths of twelve laymen, which be not learned in the law ; and, therefore, better it is that the law be so ordered that it be put in the determination of the judges than of laymen." Accordingly, the party was permitted to turn his traverse into a confession and avoidance, by alleging and admitting some fictitious ground of right, not quite defensible in point of law, and then avoiding it by, his detailed matter, which regularly would be only an argumentative general issue. This got his matter on the record, and at the same time the sacred rule that one must either traverse or confess and avoid moulted no feather. Form was preserved, the party had confessed and avoided ; to be sure he had set up a mere fiction ; but the other party was not allowed to deny it, and he had kept to the rules.^ 4. Another way of securing for the court the application of the law to the facts was that of urging and even compelling special verdicts. It was the old law that a jury, if it chose to run the risk of a mistake, and so of the punishment by attaint, might always find a general verdict.^ But the judges exerted pressure to se-. cure special verdicts ; sometimes they ordered them, and enforced their instruction by threats, by punishing the jury, and by giving a 1 Compare Humphries v. Parker, 52 Me. 502. 2 ^^ e^y
 * Stephen, Pleading, Tyler's ed., 206-215. * Co. Lit. 228 a.