tion betweem them. The ancient maxim of the common law was explicit; ad questionem juris respondent judices; ad questionem facti juratores. But in the administration of criminal justice especially it was not so easy to separate the question of law from that of fact, as to say, that they should be tried by different persons. In all trials for crimes the guilt or innocence of the party depends upon the application of the law to the fact; and, when a jury by their verdict pronounce a man guilty, they not only determine the fact, which he has committed, but also the law, by which that fact is made to constitute guilt.

In all general verdicts therefore the jury pronounce both upon the fact and the law. On the other hand, after the cause has been argued by the parties or their counsel to the jury, the judges are in the constant practice of addressing the jury, and stating to them the law, with its application to the facts upon trial. In this part of the judge's duty it is as difficult for him to confine himself exclusively to the consideration of the law, as it is for a jury, without implicating a decision of the law, to pronounce a party guilty. The judge explains to the jury the injunctions of the law upon a given state of facts; and to make his discourse pertinent

it must be that identical state of facts, upon which

they are to decide.

dictate of the law,

How then can he speak the

without intimating his opin

ion of the fact? The obstacle is inherent in the nature of the thing; and the division of powers between judge and jury, professed by the common law, is not always practicable. Thus far however the lawyer has an unequivocal rule for the management of his cause. If any question of fact is involved in the controversy, the cause must go to the jury. But if the parties have no dispute upon the facts, and their contest is merely upon the operation of the law, it is within the exclusive province of the judge. Hence the parties often have it at their option, whether they will take a trial by the court, or by the jury; and there are certain forms of pleading, suited to produce an issue in law; and others, which are adapted to an issue in fact.

This system of pleas and pleadings, of which in a former lecture I have taken some notice, embraces in substance the whole code of the common law. Of its importance to those of you, who are destined hereafter to the profession of the law, it were needless for me to speak here at large, as it will occupy a great portion of your time and stud

ies, after you shall take your leave of the university, as pupils. But it is strictly within the province of these lectures to mark its operation upon the eloquence of the bar, and to consider it, as one of the causes, which contribute to render all the precepts of ancient rhetoric so inapplicable to the practice of our judicial courts.

The forms of process, both civil and criminal, among the ancients were very simple and very general. In the accusation against Verres Cicero makes an apology to the judges for passing over the licentious debaucheries of that offender's youth; intimating, that their turpitude was so shocking, that he could not describe them without violating his own modesty. Then, addressing himself to the culprit, he says, "fourteen years have elapsed, since you, Verres, held the office of quaestor. From that day to this I put in judgment every thing you have done. Not an hour of your life through that whole period will be found unpolluted by some theft; some baseness; some cruelty; some villany. During those years you successively disgraced the offices of quaestor, of delegate in Asia, of praetor in the city, and of praetor in Sicily. From the functions of these several public stations will arise the fourfold distri- .

From this pas

bution of my whole accusation." sage it is apparent, that under a general impeachment the whole life, public and private, of the party charged was open to scrutiny. So that the accuser might prove against him whatever he pleased to consider as an offence, civil, political, or moral. From the oration for Muraena the inference may with equal certainty be drawn, that the forms of pleading in civil causes were substantially not more difficult nor complicated. Cicero speaks of them with contempt; derides them as a compilation of verbose and unmeaning pedantry; and affirms, that amidst the multiplicity of business, with which every hour of his life was loaded, he would undertake to make himself, in three days, a perfect master of the whole science. And from some specimens, which he introduces in his argument, it is apparent, that the same identical forms were susceptible of adaptation to every case, and that the whole compass of legal controversy was reducible to one common rubric.

This looseness in the system of pleadings still continues to characterize the proceedings in the courts, founded upon the principles and governed by the doctrines of the civil law. It was diametrically opposite to the whole spirit and tenor of the

common law. By the original genius of the common law a great proportion of every trial, civil or criminal, consisted of the pleadings. Every charge must be precise, specific, single. The violation of law must be alledged in terms as concise and unequivocal, as human wit could devise. Every fact must be narrated with the minutest accuracy of time, place, and circumstance. The answer must be drawn up with the same logical Every fact, charged in violation of law, must be met by a direct denial, in terms expressly adapted to the nature of the charge. Every accusation in vague or general terms, unsupported by positive law, must be repelled by an appeal to the judge, whether the party was bound to answer. The issue consisted of a single question, either of fact for the decision of the jury, or of law for the determination of the judge.

acuteness.

In process of time however, as the increase of commercial intercourse multiplied the sources of litigation, this extreme strictness in the forms of the common law became often inconvenient and troublesome. The hedges of special pleading were found sometimes to obstruct the avenues to truth. The excess of caution sometimes opened to chicanery the door, which it closed upon justice. A