The component facts is determined, in pan at least, by legal reasoning, with which logic has no exclusi v e functio N This is, so far as pos- sible, within the in v iolable pro v ince of the jury the judging of their e v i- denc E To this form of rele v ancy, no designation seems more appropriate than that of legal or constituent rele v anc Y Legal rele v ancy imports the possi- bility of legal reasonin g The relation between the constituent and the com- ponent facts and the further step from the component facts to the truth of the main proposition in issue is determined by this legal reasonin g Reasoning from probati v e to constituent facts is thus seen to be a conclusion of fact, while any reasoned result from the constituent or res gestce facts is a matter of legal reasonin g 25 This class of reasoning is merely reasoning in general moti v ated and conditioned by a rule of substanti v e la W 37 Constitutionality of Statute declaring Effect of certain FactS It is not competent for the Legislature to declare that affida v its of the shipper as to the amount of grain carried is conclusi v e on the carrie r The Legislature may declare rules of e v idence, change the burden of proof, or declare that a fact from which an inference as to the existence of another fact may reasonably be drawn should be regarded as e v idence of the latter fact but it is not compe- tent for the Legislature to declare that the existence of the first fact shall con- clusi v ely establish the existence of the latte r 26 38 Law Define DLaw may, for municipal or domestic judicial purposes, be defined as a rule of conduct prescribed by the so v ereign of the forum upon its subjects and enforced by a sanctio N 1 39 A Di v ided TribunaL In considering the relation between the respec- ti v e pro v inces of judge and jury, at common law, in an English or American court, in respect to the distinction between " matter of law " and " matter of fact," it may be said, in general, that it is error to instruct the jury that they are to judge the law 2 or of its constitutionalit Y 3 While the contrary has been at times held, 4 the v iew that e v en in criminal cases the jury are to recei v e and appl v the rule of law as announced by the court is supported by the great weight of authorit Y 5 With the policy of the law the jury are not concerne D6 40 Who Should Apply the La W Before it can be ascertained by the tri- bunal as to whether the right or liability asserted or denied in the ordinary judicial action can be regarded as established or shown not to' exist, three steps, one of law, one of logic and one partly of law and partly of logic, i e, of legal reasoning, must be taken by the tribunal, or one of its component partS That is to say, (1) a rule of law must be formulated and announced; (2) the ultimate facts must be ascertained; (3) the rule of law must be applied to these ultimate constituent facts and determine in this way whether the right or liability has been establishe D7 41 [Who should apply the Law] ; Judge Authoritati v ely Announces Rule of La W It is the uni v ersally recognized duty of the jury, 8 e v en in criminal cases, 9 to follow the rulings of the judge as to matter of la W 10 These instruc- tions as to rules of law the judge will gi v e so far as required by the state of the e v idence, either sua sponte, of his own motion, 11 or at the request of the parties, 12 e v en in criminal caseS 13 This, for the purposes of the trial, is authoritati v e; re v ision or correction, so far as needed, 'is the work of other judges, nothing of the kind being allotted to the jur Y 14 Ci v il CaseS As quasi matter of fact, the jury ha v e been considered, in a few cases, as entitled to find the laW to be different from that announced to them by the court, should the law be one of local natur E 15 This may be re- garded as untenabl E 16 5 Washington v State, 63 Al A 135, 35 Am 14 Hamilton v People, supra; No inde- Rep 8 (1879); CoM v Rock, 10 Gray pendent examination into the law is per- (Mass) 4 (1857); Hamilton v People, 29 missible in the jury-rooM Newkirk v State, Mich 173, 189 (1874); Duffy v People, 26 27 Ind 1 (1866); Merrill v Xary, 10 Allen X Y 588 (1863); 1 Chamb,' E v , 67, N 6 (Mass) 416 (1865); Harrison v Hance, 37 and cases cite D Mo 185 (1866) ; State v Smith, 6 r L 33 6 State v Buckley, 40 Conn 247 (1873); (1859 ) Improper conduct in using law State v Miller, 53 Iowa 154, 4 N W 900 books in the jury-room does not require that (1880 ) the v erdict should be set asid E State v Double Jeopard Y In criminal cases, the court may direct a v erdict for the defendant but not against hiM 18 The entire power of the jury to deal with the rules of law in any case is incidental to their right to render a gen- eral v erdi Ct 19 The peculiarity in criminal cases is this: that wh*ere such a general v erdict is one of acquittal, the judge cannot set it asid E 20 Under an almost uni v ersal constitutional pro v ision, one accused of crime cannot twice be placed in jeopardy for the same offenc E Changed social conditions seem greatly to ha v e impaired the basis of public policy upon which the rule orig- inally reste D21 The fact of the pro v ision against double jeopardy has gi v en rise to the conception that as the work of the jury in acquitting contrary to the rule of law formulated by the court could neither be pre v ented, re v ised, -nor punished, 22 therefore, they had a right to disregard the instructions of the cour T " This power, instead of being called a power to judge of the law, should rather be regarded as a power to set aside the" law in a gi v en instanc E 23 Such is the general v iew of American courts who v ery properly distinguish sharply between a right and an uncorrectible abuse of powe r 24 Public Polic Y The rule of law laid down by the court may be the sole protection of innocenc E A lawless jury may be as dangerous to a person accused of crime though innocent as a lawless mo B 25 " If the court had no right to decide the law, error, confusion, uncertainty and licentiousness would characterize the criminal trials, and the safety of the accused might be as much endangered as the stability of justice certainly would b E" 26 Confusion of La W To permit casual bodies of twel v e untrained men, se- lected by lot from the community, to construe the law, would introduce such an element of confusion as to what that law is as would amount to an intoler- able abuse and degradation of the administration of justic E 27 More than this : under such circumstances, " Jurors would become not only judges but legis- lators as welL" 28 Xor is this alL " If the jury were at liberty to settle the law for themsel v es, the effect would be, not only that the law itself would be most uncertain, from the different v iews which juries might take of it, but, in case of error, there would be no remedy or redress of the injured party; for the court would not ha v e any right to re v iew the law as it had been settled by the jur Y Indeed, it would be almost impracticable to ascertain what the law, as settled by the jury, actually waS" - !l Differing v iewS In se v eral jurisdictions more powers in dealing with the rule of law than are generally adjudged to be in the public interest ha v e, by statute or constitution, been conferred upon the jur Y 3 " The same results authorizing the jury to in v ent or impro v ise a rule of law for themsel v es, in criminal cases, ha v e been occasionally effected by judicial decision/ 51 Among these jurisdictions are Illinois, 32 Indiana, 33 Louisiana/' 4 Maine, 3 * Massa- chusetts, 36 Pennsyl v ania, 37 Tennessee 38 and v ermont/' 9 A growing tendency is, howe v er, obser v able among such courts to bring their rulings more nearly into correspondence with the general weight of authorit Y 40 42 [Who should apply the Law] ; (2) Jury Ascertain Constituent FactS Speaking generally, the second step that of ascertaining the constituent facts is admittedly for the jur Y 41 43 [Who should apply the Law] ; (3) Application of Law to Constituent FactS Upon a natural scientific di v ision of matter of law and matter of fact, the jury should find simply the constituent factS To the judge should fall the duty of announcing the rule of law and applying it to the constituent facts fdund by the jur Y In other words, both the rules of law and their applica- tion judicial knowledge 42 and legal reasoning 43 are "matter of la W" 31 An erroneous instruction by the court E v 76 This is the rule e v en in states will, e v en in states where the jury are judges which by constitutional pro v ision make the of the law, beg round for a new triaL Clem jury judges of both law and fact in criminal v State, 42 Ind 422, 447 (1873); State v causeS State v Tisdale, 41 L A An N 338, 6 Rice, 56 Iowa 431, 9 N W 343 (1881 ) So 579 (1889 ) e v er be the proper relation between law and fact on a jury trial, no such simple di v ision exists as that all matters of law are for the judge ; all matters of fact are for the jury, which has had a wide v ogue in England 45 and Americ A 46 The so-called maxim ad quaestionem facti non respondent judices, ad quaes- tionem juris non respondent juratores was a fa v orite with Lord Coke and was by him 47 attributed to Bracto N It was, howe v er, ne v er more than par- tially tru E "Ad Quaestionem Facti Non Respondent JudiceS" So far as regards the first branch of the statement that judges do not decide questions of fact the announcement is so transparently false as not to be essentially misleadin g 48 The only facts with which the jury is concerned are constituted facts, i e, ma- terial facts in the res gestae rele v ant to the issue raised by the pleadings ; 49 or, where there are no pleadings, to the existence of the right or liability in v ol v ed in the inquir Y Other questions of fact are normally for the cour T Incidental FindingS On any trial u carried on at once before court and jury " 50 questions of fact are incessantly arisin g Whether an expert is suf- ficiently qualified to make his '' opinion " of v alue to the jury; a document has been " attested " ; a confession offered in e v idence is " v oluntary '' ; whether the nonproduction of a document has been sufficiently explained these and other subsidiary or preliminary questions of fact 51 can, under the rules of common law procedure, be decided only by the judg E 52 Preliminary Facts Conditioning AdmissibiUt Y It may happen that the admissibility of particular testimony is dependent upon or conditioned by the existence of a preliminary fa Ct 53 Where a serious conflict arises upon the e v idence as to the existence of a conditioning or qualifying fact, the judge may adopt one of se v eral expedients: (1) He may hear the e v idence and adjudi- cate as to the existence of the qualifying fact, 54 hearing the e v idence as offered by both sides, and not in the presence of the jur Y 5 " When he has decided whether the e v idence in support of admissibility is such that the jury might rationally act on it, he will proceed as in a case where the e v idence is uncon- 45 \\elstead v Le v y, 1 Mood & Ro B 138 51 Zipperlen v Southern Pac Co, 7 CaL (1831 ) App 206 93 Pae 1049 46 Scott v People, 141 111 195, 30 N E 52 Fail-bank v Hughson, 58 CaL 314 329 (1892); CoM v Robinson, 146 Mass (1881); CoM v Robinson, supra; Semple v 571, 16 X E 452 (1888) ; Strauas v Kansas, Callery, 184 Pa 95, 39 Atl 6 (1898); 1 etc r Co, S6 Mo 421 (1885) : New Jersey Chamb, E v , 80 N 3 and cases cite DSteamboat Co v Xew York City, 109 N Y 53 As, for example, whether a witness is 621 15 X E 877 (1888); 1 Chamb, E v , disqualified by interest, Bartlett v Hoyt, 33 78, n 2 and cases cite D X H 151 165 (1856) : whether one to whom 47 Isaak v Clark, Rolle, 59; 2 Bulst r 314 a communication was made waS at the ti Me (1614 ) ' a legal ad v ise r Hartford F Ins Co v Rey- 48 Thayer, PreliM Treat 185: 1 Chamb, nolds, 36 Mich 502 (1877); or the lik E E v , 79 54 Cle v e v Jones 7 Exch 421 (1852 ) 49 State v Hodge, 50 X H 510 522 55 State v Shaffer, 23 O r 555, 32 Pac 545 (1869i : 31 supra; 1 Chamb, E v , 47 (1893 ) 50 CoM v Porter, 10 Mete (Mass) 263, 284 (1845 ) tro v erte D56 (2) He may ask the jury to find, specifically, as to the existence of the qualifying fact ; and, upon recei v ing their report, proceed as where the e v idence is uncontro v erte DOr, (3) he may lea v e the entire matter to the jury, to whom it must ultimately go on the question of weight, under suitable instructions directing them as to their proper course in the e v ent that they find, or fail to find, the existence of the qualifying fa Ct 57 Function of the Jur Y Common practice permits a presiding judge to sub- mit the e v idence in its entirety to the jury, instructing them to regard or dis- regard it according as they shall find as to the existence of the preliminary fact upon which its admissibility is dependen T 58 But making such prelimi- nary findings is not a recognized and essential part of the jury's dut Y " Ad Quaestionem Juris Non Respondent JuratoreS" The second di v ision of the rule that the jury are not to answer questions of law is more nearly accurate than is its associated branch of the rul E Their power of applying the rule of law announced by the judge to the constituent facts found by them and of returning a general v erdict 59 seems, howe v er, to approximate closely to dealing with a question of la W As is more fully stated elsewhere, 60 it is the substanti v e right of a party to ha v e the judge exercise his allotted functionS He will not, therefore, as a rule, submit questions of law to the jur Y* 51 Collateral RulingS Where the ruling as to the law concerns a collateral matter, as in connection with the admissibility of e v idence, statements as to the issue raised by the pleadings, 62 whether the e v idence is sufficient in law to sup- port a v erdict 3 or the like, the power and duty of the court to make an authori- tati v e ruling for the purposes of the case are unchallenged in any quarte r 64 The jury may refuse to follow e v idence admitted by the judge, but they cannot dis- regard i T 65 For the court to instruct the jury that they may so act is erro r 66 56 Infra, 179 et seq; 1 Chamb, E v , App) 92 S W439 (1906) ; 1 Chamb, E v , 385 et seq It has been held that the pro- 82 57 1 Chamb, E v , 81 The reason as- 64' Carter v Bennett, 6 Fl A 214 (1855); signed for this course is that it "does not Gorton v HadselL 9 Cush (Mass) 508 properly belong to a judge to decide upon the (1852) ; 1 Chamb, E v , 85, N 4 and cases truth of matters which ha v e come out during cite D 58 Central of G A R Y Co v Harper, 124 66 Thomason v Odum, 31 Al A 108 (1857) ; G A 836, 53 S E 30] (1906) : CoM v Cul- Robinson v Ferry, 11 Conn 460 (1836) ; Rat- v er, 126 Mass 464 (1879 ) See American liff v Huntley, 5 Ired ( N C) 545 (1845 ) Nat Bank v First Mat Bank (Te X Ci v 45 General v erdictS 67 The result announced in a general v erdict is a composite one, blending a decision as to certain constituent facts with the appli- cation of a rule of law to theM 68 That it is the duty of the jury in thus blending the fact and the law into a composite result to take the rule of law to be as stated by the presiding judge is entirely settle D69 The right of the jury, by returning a general v erdict, to make for themsel v es the application of the rule of law as stated by the courts to the constituent facts ascertained by them is equally settle D70 They may, in all cases, ci v il 71 or criminal, 72 return a general v erdi Ct In the absence of regulation by statut E 73 the jury may decline to return any other v erdict than a general one, 74 although the court may ha v e required special findingS It follows from this power and practice of the jury to return a general v erdict that the whole matter of law as well as of fact must be stated and explained to the jury so that they may fully understand and apply it to the factS 75 Fox's Libel Act set this matter as to the right of a jury to return a general v erdict at rest, so far as England itself was concerned, by expressly pro v iding that on such prosecutions it should be the right of the jury to return a general v erdict, passing not only upon the facts but applying the rule of law to theM The rule essentially of administration or, at most of procedure, upon this point has been inscribed into most of the constitutions of the American States, it being pro v ided, for example, in Pennsyl v ania, that " in all indictments for libel, the jury shall ha v e the right to determine the law and the facts under the direction of the court, as in other caseS" 77 Other juris- dictions, with great uniformity, ha v e enacted similar pro v isions, statutory 78 or constitutionaL v ery strong arguments in fa v or of the contrary v iew, in point of administrati v e principle, may be found, among the American courtS 79 Matter of Law for the Jury an Incidental Powe r Only when the jury are themsel v es required to find the constituent facts and in connection with the dis- charge of such a duty may the jury apply the law to the factS Xo practice exists under which the jury are to apply the rule of law, announced by the court, to constituent facts found b\ others, or to such facts when admitted, not 72 King v Jones, 8 Mod 201 (1723 ) See of Chief Justice Lewis, in which Chief Jus- al So Er v ing v Cradoc K Quincy (Mass) 553 tice Li v ingston concurred (People v CroswelL (1761) ; Georgia v Brailsford, 3 Dall ( U S) supra}, where, after an elaborate re v iew of 1 (1794 ) the authorities, the conclusion is reached 73 Infra, 49 et seq: 1 Chamb, E v that Lord Mansfield was right in holding that 96 !>8 et seq judges had power to determine, after the 74 De v izes v Clark, 3 A&E506 (1833) fact of publication has been found, as to 75 higginbotham v Campbell, 85 G A 638 whether a gi v en publication was or was not (1890): Cain v Porter, 10 Mete (Mass) libellouS disputed, or established beyond the point of successful contradictio N 80 The rule is well-nigh uni v ersal that, where the constituent facts are found and all which remains to determine the action of the court is the application of the measuring rule of law, the application of this rule is a question of law and within the function of the judg E 81 46 More Rational ExpedientS 1 " 2 The common law judge is not compelled, in all cases, to work out the substantial rights of the parties through the expen- si v e and dilatory ,- method of granting new trialS In certain cases the more normal relations of the judge and jury are maintained the jury finding some or all of the constituent facts and the judge applying the rule of la W 83 Inferences of Fa Ct A main difficulty encountered by a court in applying the rule of law to facts found by a jury, or agreed upon by the parties, is that certain inferences of fact, so called, still remain to be foun DThe rule of law can properly, as has elsewhere been sai D84 be applied only to the constituent facts, 85 the ultimate facts so calle DBut it frequently happens that th jury in finding the facts or the parties in agreeing on them rest content with finding the probati v e facts 86 without proceeding to ascertain the constituent facts to be pro v ed by these probati v e oneS Clearly these inferences from the existence of the probati v e to that of the constituent facts which they tend to establish is for the jury to draw, or, in case of a statement of agreed facts, for the agree- ment to co v e r 87 47 [More Rational Expedients] ; Agreed Statements of Fa Ct 88 Questions of fact may be submitted to the court in the form of an agreed statemen T The function of applying the law to the facts is thus transferred to the judg E Where only the probati v e facts are agreed upon, unless there is a pro v ision that the court may draw the inferences from the probati v e to the constituent facts, the task is to apply the rule of law to the probati v e factS 89 Power to Draw Inferences; Express Authority Neede DIt has been deemed by certain courts ad v isable 90 and e v en necessary 91 that power to draw infer- 80 1 Chamb, E v , 88 See discussion of tempt takes place in the presence of the court the question of Matter of.

Law for the Jury, (Infra, 112; 1 Chamb, 255), the judge is 1 Chamb, E v , 87, 88 the percipient witness of all the constituent 81 Illustrati v e InstanceS It is not ma- facts In all such cases, it is not questioned terial whether the right of the jury to ap- that it is for the judge to apply the la W ply the law is excluded because the constitu- 82 1 Chamberlayne, E v idence, 89, 90 ent facts are agreed by the parties, as in 83 1 Chamb, E v , 89 ences other than those necessary, as matter of law,? 2 should be conferred totidem v erbi if the court is to exercise i T Otherwise the pro v ince of the judge is limited in the original instance, to finding the effect of the facts thus stated on the record as matter of law 93 and that of an appellate court to sa v ing whether the ruling was right, or, if erroneous, what it should be; not, as in case of a finding of fact, as where the court is permitted to draw inferences of fact, 94 whether there was any e v idence warranting a findin g 95 A Different v ie W The action of the parties may reasonably be regarded as implying liberty to use a certain discretion in drawing inferences from the facts state DE v en, therefore, in the case of stipulations where no express power of drawing inferences of fact has been conferred, certain judges ha v e asserted and exercised the right of drawing these inferences, 96 while declining to exercise the same power in dealing with the facts found by a jury in the form of a special v erdi Ct 97 Effect of Agreemen T But where a case is tried on an agreed statement of facts, it is not necessary that the courts should make separate findings of fact and la W 98 Where the facts are agreed on they are equi v alent to facts found by the cour T 99 Though findings of fact are not necessary to the v alidity of a judgment, the court is not thereby precluded from making such findingS 1 48 [More Rational Expedients] ; Ad v antages to Be Expecte DThat the jury should, in all cases, find the existence of all constituent facts about which a dispute exists between the parties, lea v ing the court, in all cases, to apply the rule of law, has certain attracti v e features as a satisfactory rule of adminis- tratio N 2 49 [More Rational Expedients]; Special v erdicts; Statutor Y 3 The prac- tice of rendering special v erdicts is one of considerable antiquit Y 4 The differ- ence between a special v erdict and the answers to special interrogations, con- 91 Schwartz v Boston, 151 Mass 226 mate fact in issue if it may be inferred from (1890); Kinsley v Coyle, 58 Pa 461 the stipulated factS Crisman v Lanterman, (1868) ; Byam v Bullard, 1 Curt C C (U 149 CaL 647 87 Pac 89 (1906 ) 92 Later v Haywood, 14 Id A 45, 03 Pac 98 Cincinnati, etc, R Y Co v Hansford & 374 (1908): May hew v Durfee, 138 Mass So N 30 K Y L Rep 1105, 100 S W251 5S4 (1885 ) (1907 ) 93 Coffin v Artesian Water Co, 193 Mass 99* Anderson v Messinge r 146 Fed 929, 77 274 79 X E 262 (1906); Schwartz v Bos- C C A 179, 7 L r A ( X S ) 1094 (1906 ) ton, supr A 1 Towle v Sweeney, 2 CaL App 29 83 96 Jackson v Whitbeck, 6 Co W ( X Y) the author ad v ances si\ important ad v antages 632 (1827) ; Whitney v Sterlin g 14 Johns, to be expected from the rul E sidered elsewhere, 5 is ob v ious and fundamentaL The interrogations inquire as to the existence of one or more constituent factS* 5 The special v erdict finds them alL 7 Xo special interrogatories can be propounded, as of right, by a party when a special v erdict is aske D8 Should the jury ha v e the option to return either a special or a general v erdict, they need return special answers only in case they decide to return a v erdict in general forM 9 50 [More Rational Expedients]; Special Interrogatories; Common La W The old practice of requesting special findings of fact has increased in popular- ity with judges, 10 frequently acting under legislati v e sanctio N 11 The right to interrogate the jury, on returning a general v erdict, as to the method in which they reached their conclusion in certain particulars has been denied in Eng- land, 12 and by courts in this country, in the absence of agreement by the partieS 13 The practice, howe v er, has obtained in certain sections of Amer- ic A 14 If the ground assigned by the jury for their action could not support it, the v erdict is set asid E 15 Other courts ha v e been bolder and ha v e directly submitted interrogations to the jury for them to answe r 16 51 [More Rational Expedients]; Special Interrogatories; Statutor Y 17 Many states of the American Union ha v e re-enacted, with some v ariation in detail, the common law practice of submitting special interrogatories to the jur Y A typical statute is that of Indian A 18 5 Infra, 51 et seq; 1 Chamb, E v , 98 by the v erdict, it is not unusual to ask the et seq t J U1 T upon what principle it was found.

" 6 Hazard Powder Co v v iergutz, 6 Ka N Pierce v Woodward, 6 Pick (Mass) 206 471, 486 (1870); Smith v Warren, 60 Te X (1828 ) See also, Roche v Ladd, 1 Allen 462 (1883 ) (Mass) 436 (1861 ) 7 Housworth v Bloomhuff, 54 Ind 487 15 Parrott v Thatcher, 9 Pick (Mass) (1876) ; Pittsburg, etc, r Co v Spencer, 98 426 (1830 ) See Spurr v Shellmrne, 131 Ind 186 (1884) ; 1 Chamb, E v , 96 Mass 429 (1881 ) The answers to such in- 8 Chapin v Clapp, 29 Ind 614 (1868 ) terrogatories may also be used as part of a 9 Hendrickson v Walker, 32 Mich 68 bill of exceptions or on motion for a new trial (1875 ) based on the insufficiency of the E v idence 10 Atchiso N etc "R Y Co v Morgan, 43 Monies v City of Lynn, 11!) Mass 273 ( 1876 ) Ka N 1 22 Pac 995 (1890); Maceman v 16 McMasters v West Chester County, etc, Equitable L Assu r So C, 69 Minn 285, 72 Co, 25 Wend ( N Y) 379 (1841 ) 12 Mayor of De v isees v Clark, 3 A&Ewise directed by the court, may, in their dis- 506 (1836 ) cretio N render general or special v erdict; but 13 Allen, etc, Co v Aldrich, 9 Fo St ( X the court shall, at the request of either party, H ) 63 (1854 ) Sucli consent has also been direct them to gi v e a special v erdict in writ- held not to be necessar Y Walker v Sawyer, ing upon all or any of the issues; and in all 13 N H 191 (1S42) : See Barston v Sprague, cases, when requested by either party, shall 40 X H 27 (1859 ) instruct them, if they render a general v er- 14 For example, the presiding judge may diet, to find specially upon particular ques- ask the jury whether they read certain papers tions of fact, to be stated in writing This improperly taken by them to their consulta- special finding is to be recorded with the tion-rooM Hix v Drury, 5 Pick (Mass) v erdi Ct When the special finding of 296 (1827 ) "Where the judge is surprised facts is inconsistent with the general v erdict, Criminal Cases Exclude DThe enabling statutes do not, in the absence of express language, apply to criminal caseS 19 In equity causes where the jury is brought in to assist the judge no binding effect attaches to the findingS 20 Object of Special FindingS It has been said that the object of answers to special interrogatories is to obtain an explanation of a general v erdict, 21 and to place upon record the details of this explanatio N 22 If the jury finds simply u general v erdict, and it should happen later that the judge should be con v inced that he had gi v en the wrong rule of law to the jury, the ob v ious a v ailable course is to order a new triaL If the separate findings are before the judge on the record, he may, howe v er, order such a v erdict as would ha v e been rendered, had the correct rule been gi v e N 23 A special v erdict or set of findings must set forth the existence of all constituent facts necessary to the actor's cas E 24 Thus is the emotionalism of the jury in part controlle D25 Error may be recti- fied by checking, by the knowledge furnished by separate findings, erroneous inferences from the facts found ; 2ti a consideration of no small consequence where any v erdict is allowed to stand for which any logical basis can be assigned from the E v idence- 7 52 [More Rational Expedients] ; Administration by the Court, 28 The court may, with great propriety, exert its administrati v e powers so to formulate the interrogations to the jury as to raise material questions, so framed as not to confuse or mislead them 29 the object being to enable the judge to apply the law to the constituent factS 30 Where, therefore, the question asked is as to the existence of a probati v e as distinguished from a constituent fact, it may prop- erly be rejecte D31 The question should be specific, something more than a mere application of a rule of law to a particular branch of the cas E 32 In other 19 State v Ridle Y 48 Iowa 370 (1878) ; 29 Manning v Gasharie, 27 Ind 399, 409 People v Mario N 29 Mich 32 ( 1874) ( 1866 ) 20 Jennings v Durham, 101 Ind 391 30 Plyler v Pacific Portland Cement Co, (1884); Learned v Tillotson, 97 N Y 1 (CaL 1907) 92 Pac 56 words, questions of mingled law and fact, as it is said, should not be permitte D33 Of such a nature is the scope of a partnershi P 34 On the other hand where the jury, in reply to a proper question state a mere conclusion as to the law the answer may be disregarde DThat a fact is compound or complex is no ground for rejecting a tinding as to it ;i5 but the question must be sufficiently specitic to be helpful and must admit of a direct answe r 30 ISuch questions should be few in number, 37 in a form appro v ed by the court 3S and so drawn as to present a single material proposition for the jury ' M and should be asked for before the argumentS 40 The answers should be full and unequi v ocal 41 and not in the alternati v E 42 Qualifying expressions as " in our judgment " may be disregarde D43 General v erdicts cannot take the place of the special answers 44 which the judge may requir E 45 Special answers are without effect unless the ques- tions were regularly submitted to theM 40 Usually the special answers will pre v ail o v er general v erdicts when they are inconsistent 4T if irreconcilably So 48 Granting a new trial sets.

Aside a special answer 49 but the special an- swers may be used by the judge in deciding whether a new trial should be ordere D50 53 Matters of Argument, Opinion or Judgmen T 51 Not all matters of fact in v ol v ed in the pro v ince of the jury are the subject of E v idence Within limi- tations imposed by the rule of law which requires the exercise of reason, the judging of the issue, the exercise of the reasoning faculty on the facts in v ol v ed in the case as to the truth of the proposition in issue or as to the existence of any constituent fact is a function of the jur Y A witness, therefore, is not at liberty (1) to testify to the existence and nature of the rules of reasoning 33 Town of Albion v Hetrfek, ; )0 Ind 545 40 Plyler v Pacific Portland Cement Co, (1883 ) (Cal 1907) 92 Pac 56 applicable to the case; (2) to argue a proposition in issue or the inferences from any fact in e v idence, or (3) to state the effect which the e v idence as to the existence of any probati v e or constituent facts has produced in his m Ind What constitute the rules of sound reasoning, or as to what inferences should properly and logically be drawn from the e v idence as to the truth of proposi- tions in issue, is within certain limits also a matter for the jury and is also imposed by the substanti v e law on the judg E ^ 54 Matter of La W 52 Consideration has thus been gi v en to " matter of fact, " as rather loosely used in the phraseology of judicial proceedings ; and as to* the manner and extent to which, under the generally pre v ailing system of English jurisprudence, issues in v ol v ing matters of fact are decided by a jur Y Jt remains to turn attention to the many and important issues, or questions of fact which are decided by the judg E While these matters of fact, grouped under the heading of " matter of law," present the common feature that they embody the use of legal reasoning, i e, in v ol v e the application of the rule of law to a set of facts, they yet present among themsel v es certain points of differ- enc E Among them, for example, are the meaning of words and the general requirement of the use of reason in extrajudicial as well as in judicial conduct, especially in relation to certain branches of the substanti v e la W In addition to these more general matters, it is the practice of the courts when certain sets of constituent facts ha v e been found by the jury, or where these are admitted or not contro v erted, to apply to them the rule of law for themsel v eS A familiar instance of this is in connection with the construction of documentS 55 Meaning of WordS 53 The meaning of words is equally a question of fact, whether the meaning is of words taken separately of themsel v es, as defini- tions or when the inquiry is as to the meaning in which they ha v e been used in a gi v en context or under a certain se T of circumstanceS In other words, definition as well as interpretation presents a question of fa Ct The function of defining words used in connection with rules of law necessarily, howe v er, fell to the court as part of its duty of administration as presiding officer of a mixed tribunal charged by the so v ereign with the work of administering jus- tic E These definitions may well be so drawn as to exclude from the considera- tion of the jury many inferences of fact otherwise permissible, and in this way to take o v er into the custody of the judge the decision of numerous matters of fa Ct ?; 56 The Use of Reaso N 54 The power of the jury to deal with the facts as measured by the rule of law gi v en to them by the court for that purpose is not, howe v er, unlimite DAmong matters of law, i e, rules of legal requirement, which still remain in the handling of the judge, is the requirement that the 52 1 C hamberlayn E E v idence, 119 54 1 Chamberlayne, E v idence, 120a-127 53 1 Chamberlayne, E v idence, 120 jur v must proceed according to reason, whether the reasoning is logical or legaL The law in general requires that all should act reasonably and this issue of reasonableness is frequently left to the jur Y 55 Where the facts as to what is a reasonable time are established the question is one of la W 50 In cases of negligence the same principle is applied that where the facts are undisputed their effect is a question of law, 57 but where the e v idence is disputed the issue must be left to the jur Y !So in an action for malicious prosecution where the facts are conceded the existence of reasonable cause is a question for the court as a question of law, 58 but where the facts are in dispute the case may be submitted to the jury with alternati v e rulings adapted to their action in determining the question of fa Ct 59 57 Construction of DocumentS 6 " The disco v ery of the intention of the writer of a written document is largely a question of fact, 61 but where the facts are not in dispute and the intention is to be gathered from the document itself its disco v ery presents merely a question of law to be ascertained by the judg E 62 The modern method of construction is to introduce all the surrounding circum- stances in an effort to ascertain this intentio N 63 The court has also to con- strue documents other than probati v e 64 and all public documents, 65 including statutes, 06 but it is beyond the pro v ince of the court to decide whether a writing was intended to ha v e a certain effect as between the parties to it 6T or as to what inferences are to be drawn from its existenc E 08 Where the terms of a document are v ague, technical, in a foreign language or the like where the facts are not all found any conflict of testimony is to be settled by the jur Y 110 The jury also must decide where the effect of the instru- 55 Chesterfield v Ratliff, (S c 1898) 30 obtained by frau DThe theory of the courts S E 593 (unreasonable shooting ) is that the result of a full hearing before the 56 American Window Glass Co v Indiana trial court should foreclose the questio N Natural Gas & Oil Co, ( Ind App 1906) 76 Haddad v Chesapeake & 0 r Co, \ v v a N E J006 88 S E 1038 L r A 1916 F 192 (1916 ) 57 Boyle v Mahanoy City, 187 Pa 1, 40 60 1 Chamberlayn E E v idence 128-132 Atl 1093 (1898 ) 61 Edes v Boardman, 58 X H, 580 ment depends on collateral facts 70 or where the language is ambiguous 71 or uncertain in any wa Y 58 Construction of Oral ContractS 72 By a parity of reasoning when the terms of an oral contract are undisputed its construction and effect are to be determined by the court as a matter of la W 73 But where its interpretation depends on collateral facts which are disputed the court will lea v e the construc- tion to the jury conditioned on their findings as to the collateral factS 74 59 Demurrers to E v idence 75 A demurrer to e v idence is an effort to ascer- tain the rule of law applicable to the facts, admitting the facts pro v ed, 76 and has been practically rendered obsolete by the more con v enient expedient of mo v ing to direct a v erdi Ct The latter course has the ad v antage of permitting the party who makes the motion to introduce further e v idence if his motion is o v erruled while the party who demurs is precluded from putting in new e v i- denc E 77 The party against whom such a motion is made is entitled to the most, fa v orable inferences deducible in his fa v or from the e v idence and the pleadingS 78 The English rule required the demurring party to state exactly what he admitted, 79 while in this country this rule has not been generally enforced, 80 but the party against whom the demurrer is taken has a right to ha v e e v ery inference taken in his fa v o r 81 A demurrer to e v idence may be taken before a judge sitting without a jur Y 82 60 Certainty of Law; Rulings on FactS 83 In assuming the right of apply- ing the rule of law to the facts when nothing remains as to them but to find their legal effect, judges ha v e realized that only in this way can certainty in the rules of law be acquired and maintaine DWhere a gi v en state of constitu- ent facts is measured by a rule of law and the result is announced in the re- ports, it amounts pro tanto to a construction of the law, in terms of fa Ct If this process were left to the v ariant action of successi v e juries nothing but a v ery undesirable uncertainty, v agueness and confusion could resul T Where this is necessary by reason of the circumstance that some disputed proposition of fact is to be determined, the mischief must, possibly, be endure DBut where all the facts are before the court, it realizes the great social ad v antages of deciding for itself as to what is correct legal reasonin g This is often done by announcing where the juries ha v e decided for a series of v erdicts that certain acts do or do not constitute negligence that there is a presumption of fact as to it which binds subsequent jurieS The court may also exercise its powers by ruling after hearing the e v idence or the statement of counsel as to what he expects to pro v e that there is no e v idence for the jury of the negligence or other liability claime D84 61 Trial by Inspectio N 85 The determination of a plea of nul tiel record is one of a class of issues of fact, determined by the presiding judge by his 'own perception in much the same way that he needs no e v idence to decide on an issue of direct contemp T At common law, these were grouped under the gen- eral title of trial by inspectio N Under this form of trial the nonage of an infant, whether a party alleged to be dead was in fact ali v e, issues of idiocy, mayhem, or the like were decided by the judg E Early law points to the con- clusion that trial by inspection antedates the more modern form of trial by jur Y 86 So far as it applies to deterir' ; "'-'Hon of a constituent fact, e g, whether certain pieces of wood submitted to inspection were " chips " or " shingles " it is probably no longer permissibl E A close approximation to the finding of a fact by the court upon inspection is furnished where the judge decides from the examination of a document as to whether it is sealed or not seale DSo an issue as to whether a certain record exists " uul tiel record' ' is deter- mined by the judge looking at i T 87 Howe v er, a judgment of a sister State in this country may be pro v ed otherwise than by inspectio N 88 The existence of a foreign law is a question of fact 89 and it is still an open question whether e v i- dence as to it should be presented to the judge or to the jur Y !)IJ It may be pro v ed through skilled witnesseS 91 Where the foreign law is in written form the pro v ince of the judge is somewhat broader than when it is no T The court will as far as possible require that the document itself be pro- duced when the law is in written form 92 and may presume certain things as that the rate of interest in a foreign country is statutory although the better practice is to make no assumption in regard to i T 84 " It frequently is not possible by a gen- 86 Thayer, Preliminary Treatis E 19-24 eral formula to mark out the di v iding line 97 Adam: v Bet/, 1 Watts 425 427 with reference to e v ery concei v able case, and (1833 ) 62 Court and Jury; Cour T 1 Before proceeding to consider in some detail the respecti v e functions of the court and jury, it may be of ad v antage to take a brief sur v ey of the general constitution and relations of the two branches of the mixed tribunal so familiar to the English la W The central figure of the courtroom is unquestionably the judg E The office, and, much more frequently than not, the indi v idual, are hedged about with a dignity based upon v aried and highly important considerationS This is due not alone to the great an- tiquity of the office of judge and to the uni v ersal social respect in which, wher- e v er worthily exercised, the office has uniformly been hel DThe title of judge is, indeed, v enerable with age and re v ered for the wisdom with which the age- enduring traditions of the past ha v e enriched i T Compared with the institu- tion of judge, that of the jury is extremely recen T 63 Functions of the Judicial Offic E 2 In the machinery of judicial pro- cedure, to which reference will be more fully made, the law of e v idence has an especial place inter v ening in operation between the establishment of issues of fact by means of the rules of procedure as to pleading, and the exercise of the reasoning faculty in the act of judging or rendering a v erdict upon the facts which it is the pro v ince of e v idence to suppl Y But beside ha v ing an appropriate field in the procedure of a trial, the admissions and rejections of 1 1 Chamberlayne, E v idence, 163 2 1 Chamberlayne, E v idence, 164 e v idence, the form which it is compelled to assume, the limitations upon its use or effect, are being constantly modified and, in the course of a trial, con- trolled by rules imported from other branches of procedur E This blending of the rules of e v idence with those of substanti v e law or other branches of procedure is rendered easy of occurrence and difficult of disassocia- tion by reason of the fact that knowledge and enforcement of all rules of sub- stanti v e law, as well as those of procedure, are, together with the task of ad-; ministration, centered in the same person the presiding judg E A Necessary Arrangemen T This multiplicity of function on the part of the presiding judge could at no time well be a v oide DA Palpable Confusio N It has pro v ed easy for a presiding judge, under the confusing conditions of a nisi prius trial to fail to distinguish or, indeed, greatly to concern himself as to what was the particular branch of procedure under which he was exercising a power which he clearly was entitled to use ; or whether, indeed, he was dealing with procedure at all, rather than, in reality, announcing or applying a rule of substanti v e law, or exercising his power of administratio N But the common statement that e v idence is not admissible for a gi v en pur- pose does not specify whether the exclusion is made because the fact which the e v idence tends to pro v e (a) is not material to the claim or defense relied on, (b) is not rele v ant under the pleadings, (c) is not a probati v e or constituent fact, (d) is calculated to mislead or confuse the jury, or unduly protract the triaL For con v enience, the functions of the court may be di v ided into those which are (1) judicial, i e, in v ol v e the use of judgment; (2) administrati v e, i e, imply the use of discretion; (3) those which are executi v e, i e, require the exercise of what may be called the " police powers " of the cour T 64 [Functions of the Judicial Office] ; JudiciaL 3 The presiding judge has not only the duty of announcing the substanti v e law of which he is said to ha v e judicial knowledge, and which will be more fully considered later, in con- nection with that subject ; he also is charged with the duty of applying the rules of procedur E 65 [Functions of the Judicial Office] ; Procedure Define D4 Properly consid- ered, procedure relates, not to the remedy, but to the process by which the rem- edy is made a v ailabl E The law of procedure go v erns the process of litigatio N 5 66 [Functions of tne Judicial Office] ; (1) Rights Relating to Matters of Pro- cedure/'- - The substanti v e rights of the parties may well extend to the obser v - ance of certain methods of procedur E Indeed, the rights to the obser v ance of an ebiablished procedure are the most ancient of which we know anything in Teutonic la W Historically, procedure antedated substanti v e la W In the more formal jurisprudence of early days, procedure was, in itself, the test of truth.

Facts were " pro v ed," not by any appeal to reason, but by carrying through without v ariation certain established formulae, known to the judges noticing the result and acting accordingl Y 67 [Functions of the Judicial Office] ; (2) Substanti v e Law May Prescribe the Remed Y 7 As the right to the obser v ance of a rule of procedure may be a matter of substanti v e right, so the remedy itself may be, and frequently is, prescribed by the substanti v e la W Thus, the punishment for crimes, the dam- ages awarded upon the v iolation of a right or the infraction of a duty are all clearly part of the remed Y It is equally plain that such remedies are pre- scribed by the substanti v e la W 38 [Functions of the Judicial Office] ; v erbal MetabolisM 8 This v erbal metabolism between the phraseology of the substanti v e law and that of pro- cedure by which the rules of positi v e law are made to appear as if they were part of 'the separate and distinct branch of law denominated procedure, takes place, most frequently, in practical judicial administration in three ways: 1 Exclusi v e Mode of Proo F ' The first instance of this v erbal interchange- ability of a rule of substanti v e law with one of procedural law is furnished where an exclusi v e mode of proof is, in reality, a component element of the right or liability prescribed by substanti v e la W Thus, if contracts of a certain nature can, under the rule of substanti v e law, be pro v ed only by a writing, the e v identiary requirement practically adds an additional condition, under which 2 Conclusi v e PresumptionS A second paraphrasing or interchangeability of substanti v e for procedural rules is furnished where a conclusi v e effect is gi v en to a particular fact in a gi v en connection, irrespecti v e of probati v e force ; e g, where a certain e v identiary fact is the equi v alent of and may be substituted for anothe r A conclusi v e presumption, as it is called, states in substance, the equi v alence in legal effect between two factS The form of expression is that of procedural law; the reality is a proposition in substanti v e la W For ex- ample a child under se v en is said to be conclusi v ely presumed to be incapable of forming a criminal inten T Of this the only rational meaning can be that the law of persons pro v ides that infants under this age shall not be criminally punished for offenses of which intent is an essential elemen T 3 Statute of LimitationS The limitation on the right to bring an action a specimen of procedural law is practically equi v alent to the loss of prescrip- tion of the right itself by lapse of ti Me would thus appear that the distinction between substanti v e and procedural law is one not only of but little consequence ; it is one which is principally based, as, perhaps, the historical e v olution of substanti v e law from forms of rigid procedure might in itself suffice to show, on a mere difference in form of state- men T The distinction between substanti v e and procedural law is artificial and illusor Y In essence, there is non E The remedy and the predetermined machinery, so far as the litigant has a recognized claim to use it, are, legally speaking, part of the right itsel F In reality, the true distinction for the purpose of the law of e v idence, the correct line of radical clea v age, is not between rules as announced in substan- ti v e law and similar and often interchangeable rules formulated as part of the law of procedure; but is, on the contrary, between rules of law, substanti v e or procedural, on the one hand, and the principles of rational judicial adminis- tration on the othe r 70 [Functions of the Judicial Office] ; Promote Justic E 10 Equally within the judicial function of the court with the enforcement of law, and far tran- scending it in social importance is the promotion and furtherance of justic E This is the field of judicial administratio N The primary mandate to the judge is to promote justic E But society is not only interested in the doing of abstract indi v idual justic E It is also essential to the objects which it has in v iew that rights and duties should be certain, that things once done in a gi v en way should continue to be done in that wa Y The taking of judicial action in a particular way creates, to a certain extent, a right on the part of the litigant and a corresponding obligation on the judge to do the same thing in a similar cas E.