Page:The Green Bag (1889–1914), Volume 19.pdf/374

 TRIAL BY JURY IN CIVIL ACTIONS

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"And the district courts cannot shirk eral courts even later than this do not treat their responsibility by saying that the jury Met. R. R. Co. v. Moore, 121 U. S. 558, and are the exclusive judges of all questions of Capital Traction Co. v. Hof, 174 U. S. 1, fact. For, while this is true as long as the which in substance utterly repudiate jury have the case under their considera Pleasants v. Fant, as really settling any tion, yet, when the jury have rendered their thing.1 In fact no decision either way verdict — then the judge himself becomes seems ever to have commanded any general the exclusive judge of all questions of fact." 1 attention. "The facts of a case and the force and But however indefinite and discordant the effect of testimony to support said alleged opinions, the result now is pretty uniform. facts belong exclusively to the jury under The latest cases are very generally against the constitution, subject to no control — the jury. In substantially all jurisdictions except the circuit judge, whose judgment the stock instruction with which we started is final." J needs amplifying so as to run something like There is in fact a strange vagueness in this: the whole discussion of the matter. The "You are the exclusive judges of the only legal principle canvassed as the con weight of the evidence, of its credit and trolling factor is the right to have the facts value. It would be a gross error for me to found by a jury, and yet attorneys and let you get the least inkling of how the facts judges but infrequently grapple pointedly appear to me; but if you do not happen to with the constitutional question. The cita reach my conclusion, your verdict does not tions both ways are from the same jurisdic count. I have to set it aside, and keep tions, and they change sides without taking summoning new juries, though it take ten the trouble to overrule, or even to notice, years, and cost $10,000, till we do happen the conflicting decisions. In places where to get one whose minds work like mine, reporting courts are numerous enough, as or one whose dominant spirit knows as in New York and the Federal jurisdictions, much about the principal witness as I do, they decide both ways simultaneously. or one shrewd enough to surmise from what Pleasants v. Fant, 22 Wall. 116, from which sort of verdicts get set aside, what sort will is taken one of the quotations with which have to be rendered to amount to anything. this paper opens, though by no means the With these qualifications it is for you to earliest, may be accounted the leading case say what credit shall be given to the testi for the doctrine that the question of which mony of the various witnesses in this case. ' ' way the evidence preponderates, is one with And this transition in the law seems to which the judge has nothing to do. Late have come about in this way. For some California decisions are its direct opposite two centuries the courts, without quite for doctrine. Yet Ulman v. Clark, 100 Fed. realizing it, have been struggling with 180, from which one of the quotations on Broom's maxim about juries, or rather the other side is taken, quotes the same pas Coke's. That did not mean anything in sage from Pleasants v. Fant which is set particular.2 It is the function of maxims out above, and then purports to follow both to mean something in general, only. But it and the late California cases in setting it was in the air that the jury are the exclu aside a verdict because the evidence " largely sive judges of the facts. So much in the preponderates" against it. The lower Fed- air that our courts have assumed that it is 1 Williams v. Townsend, 15 Kan. 563 ('75); R. R. Co. v. Ryan, 49 Kan. 1 ('92); C. R. I. & P. Ry. Co. v. Reardon, 1 Kan. App. 114 C95). ' Agnew v. Adams, 26 S. C. at 105 ('86).

1 Pringle v. Guild, 119 Fed. 962 ('03); Occid. C. M. Co. v. Comstock T. Co., 125 Fed. 244 ('03). 1 "Law and Fact" in Jury Trials, 4 Harv. Law Rev. 147.