The Law and The Facts

The Law and the Facts
Author(s): Nathan Isaacs

Source: Columbia Law Review , Jan., 1922, Vol. 22, No. 1 (Jan., 1922), pp. 1-13
Published by: Columbia Law Review Association, Inc.
Stable URL: https://www.jstor.org/stable/1112285
REFERENCES
Linked references are available on JSTOR for this article:
https://www.jstor.org/stable/1112285?seq=1&cid=pdf-
reference#references_tab_contents
You may need to log in to JSTOR to access the linked references.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
Columbia Law Review Association, Inc. is collaborating with JSTOR to digitize, preserve and
extend access to Columbia Law Review
This content downloaded from

117.232.123.74 on Fri, 03 Feb 2023 17:28:30 UTC
All use subject to https://about.jstor.org/terms
COLUMBIA
LAW REVIEW
VOL. XXII JANUARY, 1922 NO. 1
THE LAW AND THE FACTS
The delusive simplicity of the distinction between questio

and questions of fact has been found a will-of-the-wisp by
approaching it from several directions.' To understand th
well as the persistence of the notion, one must glance into th
mind from which we have inherited the logic illustrated in t
tion. To understand the dissatisfaction with the distinction that con-
fronts us today, one must study the history of improvements in the fact-
finding machinery available in the administration of justice.
The syllogism is not held in very high repute today. The modern
mind is prone to suspect that nothing can be drawn out of the magician's
hat or the logician's major premise that has not been surreptitiously put
into it. The difference between the old school men and ourselves is not
so much in the conclusions we reach nor in the actual processes by which
we reach them as in the particular spot where we seek to cover up the
fallibility of the human mind. The medieval logician made a generaliza-
tion on insufficient data, after which his reasoning followed without a
flaw. We leave out the generalization, and frankly argue by the faulty
method of analogy; but just because we know the shortcomings of the
method, we are inclined to be more particular about our matter. The
lIn a recent article entitled Statement's of Fact in Pleading iunder the Codes
(1921) 21 COLUMBIA LAW REV. 416, Professor Walter Wheeler Cook has shown
that there is no generic difference between statements of fact and conclusions of
law. In an article on Judicial Review of Adm;inistrative Fintditgs (1921) 30
Yale Law Journ. 781, the present writer has indicated that courts view a whole
series of typical questions almost arbitrarily as questions of law, of fact, or of
discretion, and put forward their views as a basis for granting or refusing judicial
review of the administrative findings. The classical discussion of law and fact in
the English language, the fifth chapter in Thayer, Preliminary Treatise on the
Law of Evidence (1898) is entitled "Law and Fact in Jury Trials." It leaves no
doubt of the difficulty of drawing a line between the two types of questions. Other
discussions, in which the absence of a difference between the two types of ques-
tions is found to make the book-rules utterly useless in the really difficult cases,
are those connected with mistake of law and mistake of fact, and misrepresenta-
tions of law and misrepresentations of fact. Cf. Professor Woodward, (1905) 5
COLUMBIA LAW REv. 366; also Truman P. Young, A Critical Analysis of the Lazw as
to Mistake and Its Effect upon Contracts (1904) 38 American Law Rev. 334.

117.232.123.74 on Fri, 03 Feb 2023 17:28:30 UTC
2 COLUMBIA LAW REVIEW
medieval naturalist, for example, could say "Omnis vita ex ovo;'

he knew a great deal less about it than we do. With this un
proposition he could proceed to prove either that something wa
or that something else was not alive. We have not the universal a
tive proposition, but we are quite willing to analogize from one
of living matter to another. Of course we cannot have the faith
conclusions that the medieval philosopher enjoyed. But is not th
difference this: that until the end of the eighteenth century peo
lieved in generalizations for their own sake? The nineteenth
has, of course, made its own generalizations-evolution, for e
but it has insisted on observation as the basis of generalization
reserved the right to alter, amend or repeal all generalizations in
ance with the facts found from time to time.
There is one connection, however, in which the syllogism seems
to retain its hold, possibly because the type of reasoning involved here
was developed under the unconscious influence of the medieval logicians..
I refer to the legal reasoning in which propositions of law are contrasted
with propositions of fact very much as major premises are contrasted
with minor premises, and in which conclusions are drawn by the very
same process. Theoretically, the court knows all of those major prem-
ises which constitute the law. The jury is asked to tell the truth with
reference to the minor premise, the fact of a particular case. Then the
conclusion is supposed to take care of itself.
Of course, as Professor James Bradley Thayer in his classical chapter
on "Law and Fact in Jury Trials" has made abundantly clear, Coke's
Latin maxim which assigns questions of law to the judge and questions
of fact to the jury is neither' universally true nor, even where it is true,
capable of exact application. Yet as a working proposition, it still stands
among the first learned by the Freshman in his course in Pleading and
absorbed by the layman in his course of service as a juryman or witness.
With this proposition goes the assumption that questions of law and of
fact are generically different, though there may be a borderland in which
so-called mixed questions of law and fact are met. Professor Thayer's
account was purposely limited to the situation created by our jury system.
The subject matter thus defined is properly one of tremendous importance
in a preliminary treatise on the law of evidence. And whether the dis-
tinctions under it are sound or not, it is decidedly concrete. Approaching
the distinction of law and fact from the same point of view some years
later, Dean Wigmore said:
" . . .the popular distinction between 'fact' and 'law' is here as ac-
curate as the situation requires. The requirement is for phrases which
shall set off in one class the rule that in this or that instance the State
sanctions and will habitually enforce a legal relation of a specific content,
and in another class the fact constituting the contingency in which the
State predicates this relation. In the former class we are dealing with

117.232.123.74 on Fri, 03 Feb 2023 17:28:30 UTC
THE LAW AND THE FACTS 3
the general body of legal principles; in the latter, with a

nomena, so far as they may come within the purview of th
When we approach the distinction from any other angle

other purpose, it is by no means so clear what is law and wh
Thus, in his discussion of this distinction, Professor Salmon
that what is today a question of fact may be a question of law
by the simple operation of the doctrine of stare decisis:
"The point in issue," says he by way of illustration, "is th

of a particular clause in an Act of Parliament. Whether this
tion of fact or of law, depends on whether the clause has al
the subject of authoritative judicial interpretation. If not, it
fact for the opinion of the court. If, however, there has alr
a decision on the point, the question is one of law to be deci
cordance with the previous determination. The conclusio
paradoxical that a question of statutory interpretation m
fact, but a little consideration will show that the statement is correct.
It is true, indeed, that the question is one as to what the law is, but a
question of law does not mean one as to what the law is, but one to be
determined in accordance with a rule of law." 3
Needless to say, our basis of distinguishing between conclusions of law

and propositions of fact will depend in large measure on our definition
of law. Of course under any set of definitions some things will more
or less readily fall on the side of law, some on the side of fact, and some
in between. But the common law has not worked with any preconceived
definitions. Such classification as it has made has been blundered into
on the basis of procedure. One thing is clear, that whatever definition
of law we adopt, there is a large and growing group of facts that tend
to be dealt with as matters of law after courts have had a large ex-
perience with them in the course of which a uniform line of decisions
on the facts has developed. The classical instance, of course, is the work
of Lord Mansfield in converting the questions of the customs of mer-
chants into questions of law that needed no jury for their determination
after the conclusive work of his famous special jury of merchants. There
may, indeed, be no single instance in the law of the last century that will
compare with this part of Mansfield's work, but in a small way this very
thing is constantly being done and citations could be multiplied in which
courts either say or intimate that a particular question is "no longer"
a question of fact. There are, perhaps, a greater number of instances
in which courts, without being conscious of any deviation from the past,
begin to deal with old questions of fact as questions of law. This process
is helped by the ease with which, under our system of citing cases, it
is possible to find a case similar in fact to the case before us. The author-
ity or precedent can be cited without a very keen analysis, in fact without
'A Treatise on the System of Evidence in Trials of Common Law (1904) ? 1.
3 Salmond, Jurisprudence (6th ed. 1920) 16.

117.232.123.74 on Fri, 03 Feb 2023 17:28:30 UTC
any attempt to separate the fact from the law. A proposition. i

by the court quite correctly under the facts of a given case. It
in the digest as a point of law, and soon it is cited and re-cited in
and textbooks until it is quite indistinguishable from any othe
sition of law. What was a question of fact becomes a questi
because the court becomes acquainted with the fact. As Profes
has somewhat laconically said, "The law is what the court know
Most of the discussions that seem to turn on the point wh
question is one of law or of fact are really discussions of the r
provinces of judge and jury which, as'Thayer has shown for
is quite a different question. A great deal of confusion would be
if we frankly used some such expression as "judicial questi
"jury questions" in this connection instead of questions of law
fact. But as matters stand, two sets of distinctions have been con-
fused to such an extent that whether a jury is involved or not, we are
categorically told that judicial questions are questions of law, and results
are more or less mechanically worked out from this assumption. Let
us consider then a few of the types of questions which, on the basis of
our jury system, are said to be law questions. Even assuming the cri-
terion quoted above from Professor Wigmore, it is not always obvious
whether we are dealing with "facts constituting the contingency" or the
relations which the state predicates on their basis.5 Thus we are told
that a question of foreign law constitutes a question of fact.6 There
are various ways of wording this. We may, of course, say that our law
predicates that if the foreign law creates a right, that right shall exist.
'Cf. Treatise on Conflict of Laws (advance sheets) ? 118.

'Over fifty pages of fine print (1800-1853) in the Index and Concordance to
the Cyclopedia of Law and Procedure are devoted to the heading, "Question of
Law or Fact." In these almost every article of importance in the entire Cyclo-
pedia is referred to. Likewise, in a similar descriptive word index to the Decen-
nial and all Key Number Digests issued by West Publishing Co., the same head-
ing covers seven pages. In a certain sense, the very existence of these, and of
their extreme usefulness there can be no doubt, is due to the necessity of in-
dexing much of our so-called law under "fact" headings in order to be able to
index it at all. A very considerable number of the titles to the articles in our
encyclopedias of law and digests is made up of words and phrases descriptive of
particular things rather than of legal concepts. See, for example, the list in 16
Corp. Jur. VII-IX, where, along with such titles as "Abatement and Revival,"
"Appeal and Error," "Agency," and the like, will be found the more concrete expres-
sions, "Aerial Navigation," "Agriculture," "Aliens," "Animals," "Apprentices,"
"Architects," "Asylums," "Auctions and Auctioneers"-not to stray out of the bounds
of the letter "a." In like manner, the number of books in Anglo-American law on
particular sets of facts is exceedingly great. Besides the treatises of Ram and
Moore, there are innumerable others devoted to such subjects as the laws of
horses, of automobiles, of street railways, of labor, of fences, and to similar sub-
jects cutting across all of the traditional fields into which law had formerly been
divided by forms of procedure. Law school curricula include several subjects in
which the unifying element is one of fact rather than of law, for example, courses
on insurance, business, labor, "legal liability," carriers, and the like.
'A more accurate statement is that of Alexander v.' Pennsylvania Co. (1891)
48 Ohio St. 623, 30 N. E. 69, to the effect that where decisions of another state are
given in evidence, it is for the jury to determine whether or not the decisions have
been made, and for the court to construe the rules of law which they establish.

117.232.123.74 on Fri, 03 Feb 2023 17:28:30 UTC
On the other hand, there is a school which insists that the local law
adopts the rule of the foreign law in certain cases and makes it its own
for those purposes. Another illustration: It is frequently said that a
question of law always arises at the close of the evidence in any case
whether or not there is any substantial proof warranting a verdict in
favor of the plaintiff.7 Likewise it is sometimes said that the question
whether there is any conflict of evidence is a question of law.8 Again,
it is said that the construction of documents or writings in evidence is
a question of law.9 And the same is said of the construction of words
of mouth when once the uttering of these words is established. The
question of reasonableness of time has generally been held a jury ques-
tion. Yet where there are no facts in dispute, courts have frequently
attempted to deal with it as matter of law.10 Likewise the reasonableness
of the rules adopted by a carrier has been held a matter of law." Among
doubtful questions that have been held- matter of law in one case or
another are: the measure of a landlord's duty to a tenant who has
abandoned the premises; 12 the duties of a carrier;13 whether statements
claimed to be part of the res gestae were such;14 the location of the
boundary line between two counties.15 And the following have been
held matters of fact: whether an instrument was properly stamped or
duly delivered;16 whether an owner of property lost title by abandon-
ment; 17 whether an act was done under particular orders;18 whether
a certain custom existed;19 waiver;20 possession;21 title;22 existence
of a highway; 23 private boundaries.24
TCf. Crookston Lumber Co. v. Boutin (C. C. A. 1906) 149 Fed. 680, 685. The
court says: "It is a well settled rule, recognized by the courts of the United States,
that a question of law always arises at the close of the evidence in any case,
whether there is any substantive proof warranting a verdict in favor of the
plaintiff." Cf. also Ralston v. Transit Co. (1920) 267 Pa. St. 257, 110 Atl. 329.
8Chamlblis V. Mary Lee Coal, etc. Co. (1894) 104 Ala. 655, 16 So. 572.
Cf. 38 Cyc. 1522 and cases cited.
10 Williams v. Powell (1869) 101 Mass. 467; Rosengarten v. Delaware, etc.
R. Co. (1908) 77 N. J. L. 71, 71 Atl. 35; Wright v. Bank of the Metropolis (1888)
110 N. Y. 237, 18 N. E. 79.
1 Soutth Fla. R. Co. v. Rhoades (1889) ?5 Fla. 40, 5 So. 633.
" Woodbury v. Print (1908) 198 Mass. 1, 84 N. E. 441.
13lMadden v. Port Royal, etc. R. Co. (1894) 41 S. C. 440, 19 S. E. 951.
"Southern Ry. Co. v. Brown (1906) 126 Ga. 1, 54 S. E. 911.
'"State v. Thompson (1892) 85 Me. 189, 27 Atl. 97; Hecker v. Sterling (1860)
36 Pa. St. 423. "6Alexander & Howell v. Leith (1869) 39 Ga. 180.
'7Johntson v. Dooly (1887) 80 Ga. 307, 7 S. E. 225.
"Brakebill v. Leonard (1869) 40 Ga. 60.
" Branch, Sons & Co. v. Palmter (1880) 65 Ga. 210; West'ern v. Page (1896)
94 Wis. 251, 68 N. W. 1003; contra, Nolte v. Hill (1877) 7 Ohio Dec. (reprint) 297
reversed on other grounds (1880) 36 Ohio St. 186.
"2Minor v. Edwards (1848) 12 Mo. 137; Ball Electric Light Co. v. Sanderson
Bros. Steel Co. (1891) 60 Hun 576, 14 N. Y. Supp. 429; Mullan v. United Sfa
(1907) 42 Ct. Cl. 157; Hooe & Herbert v. United States (1906) 41 Ct. Cl. 378
"Burgess, etc. of New Windsor v. Stocksdale (1902) 95 Md. 196, 52 At
596; Kinney v. Ferguson (1894) 101 Mich. 178, 59 N. W. 401; Willard v. Meeks
(1896) 59 N. J. L. 56, 35 Atl. 455.
Grove v. McAlevy (1887) 5 Pa. Super. Ct. 124, 8 Atl. 210.
= Cortelyou v. VanBruntdt (N. Y. 1807) 2 Johns. 357.
24Enterprise Transit Co. v. Haselwood Oil Co. (1902) 20 Pa. Super. Ct. 127;
Reilly v. Howe (1898) 101 Wis. 108, 76 N. W. 1114.

117.232.123.74 on Fri, 03 Feb 2023 17:28:30 UTC
Doubtful as some of these decisions may be, they are yet cl

the connection in which they first arose, the determination of the p
of the jury. If this were the only connection in which it ever
necessary to distinguish between law and fact, the matter would
no difficulty except a practical one for which the middle ages did
the same necessity of providing that we do; namely of informi
court on questions of fact left to its determination. Where the
major premises are scientific propositions, it is a little unfortun
the only regular mode provided for the use of these generalizat
the citation of past decisions where there are any, or the court's
information" where there are none. Our fatal habit of assumin
the court is not concerned with questions of fact has-developed
cedure in which there is no direct, legitimate way of informing
of facts. Whether logically sound or not, the effect ili fact of ar
to the court the power of determining a certain proposition as
law is to limit the possibility of scientific investigation, especiall
nection with those general facts which, by their nature, require
degree of care and special training for their adequate determ
outside of the law court. When a court has once decided, for ex
that there is nothing in a particular business to warrant special
tion with reference to it, there is very little opportunity of und
work. The result is this paradox: that some questions are t
solved in court not in accordance with the actual facts, not in an
to ascertain the truth or falsity of a proposition, but by a who
chanical resort to the digest. A constructive or fictitious truth
ered unchallengeable. Of course, the need of settling controversi
how is more pressing than the need of abstract justice or accurac
sequently, at some point the law must draw a line and say th
sort of ascertainment shall pass for the truth. Thus, even in con
with the visible and tangible facts of a particular case, it is a co
tive truth--the verdict of a jury or the findings of some other t
subject to certain more or less arbitrary rules of evidence-th
pass as the unchallengeable truth. The difference is only in deg
the only criticism that can be offered against any particular m
deciding any question of fact is that the arbitrary line is drawn
too far from the realm of realities.
Theoretically, the need of the court for information as to general

facts is taken care of by the doctrine of judicial notice. What the court
is presumed to know, a lawyer may tell it, and Very little formality need
be resorted to in this process of theoretically reminding the court of
what it already knows. But this very fiction of judicial notice is based
on a medieval conception of learning. The learned man of the middle
ages was supposed to be skilled, and probably was skilled, in all of the
Seven Sciences. The entire amount of the world's information could

117.232.123.74 on Fri, 03 Feb 2023 17:28:30 UTC
have been compressed in a very few volumes, and, as a matter of

there were many men who, with apparent success, made all know
their particular province. This conception of a learned man is, of c
entirely abandoned today. Consequently, the doctrine of judicial n
does not quite fit the needs of modern life. In the first place
of the general facts needed in the decision of technical questions
highly complicated that it is hopeless to expect to instruct even th
intelligent judge in the course of a single case to the extent nece
to enable him to come to an accurate conclusion. At least, if the c
is not made up of specialists, it ought to have the aid of special in
gators capable of subjecting the evidence on general facts so l
presented in the lawyer's argument to the same degree of scrutin
the far less important and less difficult special facts are subjected t
they are presented to a jury. The difficulty is that there is no m
provided in our law, officially, for the instruction of a court in t
and principles of economics, social science, politics, history, or an
the other fields whose facts are subjects of judicial notice. I
escape from this difficulty to limit the function of a court so as t
it from the necessity of deciding general questions of fact. It
that the legislature is frequently better equipped for this work th
court, and that courts should therefore indulge in the presumpti
the legislative conclusion on such subjects is correct. But many of
questions of a general nature cannot be dismissed in that way for
simple reason that no legislative finding is clearly set forth by th
lature-in fact, no legislative finding may be involved. Courts are
stantly called upon, for example, to determine the meaning of
tract made in a particular business on the basis of the general fac
that business or of business in general.
Passing, however, from the difficulty of keeping the court inf
on facts on which it must pass, there are other connections in w
becomes of vital importance in the course of a decision to det
whether a particular question is one of law or fact. For exam
the law of pleading, in the relations between the court and admin
tive tribunals and in the substantive law as to mistakes and misre
sentations.
Historically the distinction between law and facts that our co

have made has been based on procedure. A distinction which c
fit particularly well the needs of dividing functions between cou
jury would necessarily serve fairly well in a system of pleading w
had for its main function to formulate issues for the court or th
It was only natural to transfer the habits of mind that grew up un
distinction even to the realm of code pleading and possibly to the
or less factless types of pleading, though the connection between
tions of fact and jury issues became dimmer. It is really thi

117.232.123.74 on Fri, 03 Feb 2023 17:28:30 UTC
transfer, carried out behind the fiction of a generic difference

statements of fact and conclusions of law that Professor Cook has ob-
jected to.25 But what shall we say when the lawyer's habit of mind to
call certain propositions facts and others law on historical rather than
logical grounds is transferred to the realm of administrative law and
roughly made the basis of a division of function between courts and
commissioners? This seems to be, however, the psychological explana-
tion of what has taken place.
In the growth of commissions and other administrative tribunals
entrusted with the determination of questions of fact, the question is
sometimes raised whether a particular proposition passed upon by such
a tribunal is one of law or one of fact. While there are a few decisions
reluctantly granting to the administrative body finality in matters of law
entrusted to it,26 there are numerous decisions to the effect that courts
will not revise conclusions of fact properly reached by the proper tri-
bunal.27 As a matter of history courts have been dealing with particular
questions as if they were at once matters of fact, law, discretion, or
any one of them that best suited the needs of the moment. Thus, in
connection with judicial review of administrative findings, they have
held the question of whether a particular thing constituted a nuisance
to be a mere question of fact or a question of discretion where they
refused to entertain any review, and again have insisted that it was
primarily a question of law where they felt that a review was proper.28
Careful analysis would, in most instances, show that points of all kinds
were involved in almost every decision. Thus, in determining what is
a nuisance, a legal definition of a nuisance clearly involves propositions
of law. Perhaps it did not when the word was first borrowed from
ordinary language, but it can hardly be contended now that the expres-
sion is free from technical connotation. At the same time there are
questions of fact involved with reference to the particular thing u
consideration. True, these questions may not involve much difficult
the facts may be admitted, or they may be obvious'to the senses. T
real difficulty is likely to come in connection with the more general
facts, the kind involving more or less expert information with refer
to things that cannot be foreclosed by any pronouncement of the co
Thus, with reference to the smoke nuisance, there are questions of pu
health involved, questions with reference to engineering possibilities
public needs and even of general history. In addition, there are q
tions which can hardly be called questions of right and wrong. At m
they involve better or worse. Such questions may well be spoken of
questions of discretion. To say, as courts frequently do, that wheth
25 Cook, loc. cit.

2 See Hall, Cases on Constitutional Law (1913) 288n.
2 . Ibid.
' Cf. Judicial Review of Administrative. Findings, slupra, footnote 1.

117.232.123.74 on Fri, 03 Feb 2023 17:28:30 UTC
a particular thing is a nuisance is a question of one type or

is to forget properly to narrow the issue. Add to this the consi
that commissions do not ordinarily make separate findings of l
fact, or indeed any findings separate from their final decrees,
further difficulty that some of their hardest questions-for
rate-fixing and valuation-are questions with which neither cour
juries are accustomed to deal, and there is laid open a fruitfu
of the difficulty that arises when one tries to mark off the pro
the court on the basis of the old judge and jury functions.
When we come to the necessity of distinguishing between q
of law and questions of fact in substantive law, for example in th
of mistake or in the law of representations and warranties,
surprising to find the ghost of the old procedural basis of a rou
tinction between law and fact in our path. Perhaps if there
been such a delusion in the minds of lawyers, the unfortunate do
Bilbie v. Lumley 29 would not have passed so readily into our la
courts would have been more ready to relieve against a mistake
Incidentally, it would have been unnecessary for them to es
doctrine by inventing distinctions between mistakes of law and
ance of law, mistakes of public law and of private rights, mista
choice of terms and mistakes in substance, mistakes of law and m
as to the legal effect of a law, and so on throughout the whole
to escape from the rigor and apparent injustice of the doctr
courts will not-relieve against mistakes of law. It is true tha
have attempted to call all kinds of mistakes mistakes of fact rath
mistakes of law because of the palpable injustice of this rul
mistake as to one's antecedent legal rights, a mistake as to
private rights clearly involving matters of law, the legal effect
contracts, and a host of other mistakes of law have been classif
courts as analogous to, if not identical with, mistakes of fact
theless, we are told in this connection that the construction of
a matter of law.30 In other words, what we always have bee
tomed to consider beyond the ken or beyond the ability of the ju
glibly speak of as matters of law, even though the result of th
ridiculous as to say one cannot be relieved against one's mistake
construing a word.
The same is true of fraud, which really presents a variety o
take. It is generally held that statements of domestic law, thou
29 (1802) 2 East 469.
3Purvines v. Harrison (1894) 151 Ill. 219, 37 N. E. 705; Midland G. W
v. Johnson (1858) 6 H. L. Cas. 798; Sibert v. McAvoy (1853) 15 Ill. 106;
v. Downing (1857) 18 Ill. 492; Wilding v. Sanderson [1897] 2 Ch. 537; Os
Sproehtle (1885) 16 Ill. App. 368; Cochran v. Pew (1893) 159 Pa. St. 184,
219; Woolworth v. McPhersont (C. C. 1893) 55 Fed. 558, in contracts; a
construction of a will, Keitt v. Andrews (S. C. 1852) 4 Rich. Eq. 349; Kun
Kunkel (1920) 267 Pa. St. 163, 110 Atl. 73; and as to a deed, Rushton v. Hallett
(1892) 8 Utah 277, 30 Pac. 1014. See note in 28 L. R. A. (N. s.) 799.

117.232.123.74 on Fri, 03 Feb 2023 17:28:30 UTC
and fraudulent, do not constitute actionable fraud. "And on t

ciple, a conscious misstatement of the meaning of certain
written contract has been held immaterial." 31 Where the alleg
ulent representations were in substance-statements of the eff
contract and of the defendant's rights thereunder, the court
"they were not such false representations of existing materia
to avoid the contract." 32 In another case, it was held error to
testimony as to an agent's explanation of the meaning of a cla
contract as to terms of payment.33
In the application of this principle, a little confusion resul
the tendency of the courts to doubt whether the alleged v
fraud has actually relied upon the misrepresentation of the st
law. Almost invariably after stating that a misrepresentat
cannot constitute fraud, the courts proceed to say that beside
not ordinarily rely upon another's representations as to law
may be true, and yet when those representations are as to th
of a patent34 or as to the freedom of certain stock from assess
or as to the effect of a license with reference to leased premi
as to whether there was any community property owned by
and wife,37 it is obvious that the court is labelling these qu
questions of law, and mechanically excluding them on the the
fraud has to do with misrepresentation of facts. In all of thes
it is quite true that it would be obnoxious to the traditions of
and objectionable in view of our jury system, to treat such st
as statemenfs of fact, but whether they constitute a possible
fraud as a misrepresentation of the state of things actually in
it is submitted, is quiite a different question.
In the law of warranties, as in the law of fraud, the ex
"affirmation of fact" figures prominently. According to ?
Uniform Sales Act, such an affirmation by the seller relating
is an express warranty if its natural tendency is to induce th
purchase the goods, and if the buyer purchases the goods relyin
No statement purporting to be a statement of the seller's opin
is to be construed as a warranty. Presumably, no affirmation
of a conclusion of law can be construed as a warranty. And ye
very next section in the discussion of imiplied warranties of tit
of propositions is enumerated which might reasonably be looke
propositions involving conclusions of law. For example, th
implied warranty on the part of the seller that he has a "righ
33 Williston, Contracts (1920) ? 1495, and cases cited.
3 Tradesme,; Co. v. Superior Mfg. Co. (1907) 147 Mich. 702, 111 N
112 N. W. 708.
3Providence Jewelry Co. v. Bailey (1909) 159 Mich. 285, 123 N. W. 1117.
" Cf. Reeves v. Cornintg (1892) 51 Fed. 774.
U3 Upton v. Tribilcock (1875) 91 U. S. 45.
3 Gormeely v. Gymnastic Association (1882) 55 Wis. 350, 13 N. W. 242
3 Chalmpion v. Woods (1889) 79 Cal. 17, 21 Pac. 534.

117.232.123.74 on Fri, 03 Feb 2023 17:28:30 UTC
the goods" and another as to quiet possession against "any law

existing at the time of the sale," and so on. Could such w
made expressly under the Code? Would they not be obnox
terms of the definition limiting warranties to affirmations of
Once dispel the illusion that there is a clear and easily dis
difference between propositions of law and propositions
you have laid bare, though by no means created, an endle
difficulty where on the surface all had seemed serene.
As a matter of fact, under the influence of this old il
many conclusions of fact and generalizations of fact have be
as law. Too many judicial opinions have stated their conclu
the particular facts of a case as propositions of law. Text
grown bulky in recording these propositions; and the law ha
grow mechanical as these propositions have been substituted
pendent investigations in particular cases. The tendency is not
any one branch of the law. Take an illustration at rando
certain conditions of postal management, in view of certain
ings of business men, certain cases at one time held that. an
of an offer by mail became effective as soon as the acceptance
It was a reasonable conclusion of fact in these cases that the mail was
impliedly made the agency of the offeror. Yet follow this doctrine down
through the digests and textbooks and later cases, and you find it estab-
lished as a mechanical proposition of law that given a certain set of
facts, an acceptance is complete upon being mailed.38 It is needless to
multiply examples. And there is not much use in reciting the particulars.
It is one of the processes by which the common law has grown out of
facts. For purposes of analysis, however, it is well to bear in mind
the utter futility of the rough classification of questions as questions of
law and of fact. At least it is necessary to remember that the classifi-
cation is not one based on the nature of things but one based on a series
of historical accidents. In other words, whether a particular question
"The after history of Adams v. Lindsell (1818) 1 B. & A. 681, is referred to.
On the basis of this case has grown up the doctrine now uniformly held in
America that if the acceptor is expressly or impliedly invited to use the post,
the acceptance is complete when the letter of acceptance is mailed. Cases collected
in Corbin, Cases on Contracts (1921) 42. The manner in which the question is
answered as one of law, regardless of the fact of invitation to use the post, is
illustrated in Gray, C. J.'s, opinion in Lewis v. Browning (1881) 130 Mass. 173, 175:
"In M'Culloch v. Insurance Co., 1 Pick 278, this court held that a contract
made by mutual letters was not complete until the letter accepting the offer had
been received by the person making the offer; and the correctness of that decision
is maintained, upon an able and elaborate discussion of reasons and authorities, in
Langd. Cont. (2d Ed.) 989-996. In England, New York, and New Jersey, and in
the Supreme Court of the United States, the opposite view has prevailed, and the
contract has been deemed to be completed as soon as the letter of acceptance has
been put into the post office duly addressed. [Authorities cited]. But this case
does not require a consideration of the general question."
A change in fact, namely, that the post office regulations have permitted, at
least since 1897, a letter to be reclaimed by the sender does not operate to change
this rule. McDonald v. Chemical Nat'l Bank (1899) 174 U. S. 610, 19 Sup. Ct.
743. Cf. 9 A. L. R. 386n.

117.232.123.74 on Fri, 03 Feb 2023 17:28:30 UTC
is to be treated as a question of law or a question of fact is n

a question of fact, but a highly artificial question of law.
Is there any principle discernible here? We may disting
tween judge and jury questions on historical and legal ground
basis of precedent. We must distinguish between pleadable
pleadable statements on similar grounds. We may have to d
between the questions which one must answer in most stat
peril and those on which one may dare to be mistaken or
representations of others, on the basis of what the court is p
to know. We must work out a distinction between administrative and
judicial questions on some independent but still purely practical grounds.
But across all of these there will be found to run a series of cleavages
dividing questions on which we can obtain the best answer through ob-
servation of particular facts, and questions in which more and ever more
generalization is necessary. As to the former, some simple device for
passing on facts is, of course, most desirable. The untrained jury has
its place here. As questions pass more and more by degrees into the
realm of theory, more trained bodies become necessary. The referee,
or master in equity, is capable of handling more complicated situations
than is the jury. The commissioner, or judge, by reason of his special
training, is capable of bringing to bear on the situation not only a great
power of generalization but also a great fund of opinion from which to
generalize. We thus reach those generalized propositions which most
of us think of as law. There is a sphere within which the highly trained
legal expert is best capable of passing on the existence and meaning of
a particular rule governing society. Beyond these questions there are
others upon which it is more clearly impossible to reach a demonstrable
conclusion. Many so-called questions of discretion or policy belong here.
We do not ordinarily, in our system of government, consider it proper,
or at all events advisable, to leave such questions to the judiciary. A
branch of the government more directly answerable to the people is
entrusted with them. The difference between judicial and non-judicial
questions is thus one of degree. That is why it is so difficult to state in
definite terms the objections which one may feel against using the judic-
iary in the settlement of industrial disputes or in other capacities in which
it must work with principles of a more general nature than we are accus-
tomed to think of as law. It is just as hard to explain why we object
to courts or quasi-judicial bodies passing on particular facts in which
the degree of generalization which we associate with courts is useless or
even a hindrance. The true explanation is thus psychological and his-
torical. The type of question we are accustomed to leave to courts we
call law-what we are accustomed to leave to juries we call fact-what
we prefer to decide ourselves we call discretion. There is more common
sense than logic in the delimitations as they have come down to us.

117.232.123.74 on Fri, 03 Feb 2023 17:28:30 UTC
To recapitulate: As practical conclusions from a refusal to b

ther deluded by the time-worn assumption that the distinctio
law and fact is an obvious one in the nature of things, there s
(1) Since the court decides many points not generically dif
from the facts decided by the jury, our procedure and argume
be shaped to inform the courts directly and not merely throug
tion or on the basis of medieval assumptions as to the omn
the learned man.
(2) Statutes should avoid reference to the distinction between law
and fact as a simple one. Particularly statutes with reference to pleading
in which statements of fact are expressly or impliedly contrasted with
conclusions of law simply reintroduce under the guise of simplicity all
the complexity of the oldest systems of pleading. It is advisable to clear
up ambiguities as is done in several of our codes by such statements as
that what is a'reasonable time is a question of fact for the jury.
(3) In the law of mistake and representations (fraud and war-
ranty) the undoubted tendency of the day to abolish the distinction be-
tween conclusions of law and propositions of fact is supported by the
conclusion that we are not here dealing with a generic difference, but
merely with a catalogue of questions placed in one column or the other
on the basis of procedure.
(4) In marking out the province of the judiciary as against some
of the newer types df tribunals, it may or may not be wise to give the
new tribunals powers commensurate with those of the jury. It is proper,
however, to know that we are indirectly accomplishing this end if we
resort in this connection to a supposedly clear distinction between law-
and fact.
(5) In studying cases, in citing them, in teaching, text-writing, and
abstracting, we must remember that not all that the court decides is
"law," or at least generically different from fact to the extent that it is
incapable of being checked and verified by ordinary observation of ex-
ternal facts or scientific study. The consummate lawyer is an artist in
the realm of research. His training is not complete until he can be
turned loose in a technical library or in a community with a reasonable
prospect of success in the quest for accurate information, not only on
legal principles but on questions of fact, whether those questions are
concerned with architecture, or mining, or business customs, or anatomy,
or chemistry, or social science, or any of the unlimited number of studies
which take the place in the modem world of the medieval Seven Sciences.
NATHAN ISAACS
UNIVERSITY Of PITTSBURGH LAW SCHOOL

117.232.123.74 on Fri, 03 Feb 2023 17:28:30 UTC

The Law and The Facts

Uploaded by

Copyright:

Available Formats

The Law and The Facts

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

The Law and The Facts

Uploaded by

Copyright:

Available Formats

The Law and the Facts

Author(s): Nathan Isaacs

Stable URL: https://www.jstor.org/stable/1112285

This content downloaded from