Accordingly, As Population Increased And
Extended, And As Counties Were Established, The Territorial
Legislature Increased The Places In Each District For Holding The
District Court.
Either on account of the expense or for some other
cause congress has just stepped aside from the doctrine of
non-intervention (ch.
124, sec. 5), and abrogated the territorial
legislation so far as to provide that there shall be but one place in
each of the three districts for holding a district court. The act
applies to all territories. In a territory of five or six hundred
miles in extent it is of course inconvenient to have but three places
for holding courts. The Minnesotians complain that it is an
interference with popular sovereignty. It is possible the legislature
might have gone to an extreme in creating places for holding courts;
and I suppose the judges were kept on the march a good deal of the
time. It also looks as if the remedy by congress was extreme. The
people say it is a coercive measure to drive them into a state
organization.
The administration of justice is secured by a system which is now
common to all the territories, with the exception of Kansas. The
supreme court consists of the three district judges in full bench.
They hold nisi prius terms in their respective districts, which are
called district courts. The judges have a salary of $2000 each, and
are appointed for a term of four years, subject to removal by the
President. The district courts have chancery jurisdiction in matters
where there is not a plain, adequate, and complete remedy at law.
(Stat. of Min. ch. 94, sec. 1.) There are also probate courts. Each
county has two justices of the peace, who are elected by the people.
And I cannot but remark how much better the practice is to elect or
appoint a few justices of the peace rather than to allow the office to
be degraded by wholesale appointments, as a matter of compliment,
according to the usage too common in some Eastern States. The justices
of the peace have jurisdiction in civil cases where the amount in
question does not exceed $100; and when the amount at issue is over
$20 either party may demand a jury of six men to try the case. But
there would be little demand for juries if all magistrates were as
competent as our enlightened friend Judge Russell.
Special pleading never flourished much in the West. It was never "a
favorite with the court" out this way; while the regard which the
lawyers have cherished for it has been "distant and respectful." It
has been laid on the shelf about as effectually as bleeding in the
practice of medicine. The science of special pleading, as it is known
in these days and that in some of the older states exists in a
mitigated form from what it did in the days of Coke and Hale. The
opportunities to amend, and the various barriers against admitting a
multiplicity of pleas, have rendered the system so much more rational
than it once was, that it is doubtful if some of the old English
worthies could now identify it. Once a defendant could plead to an
action of assumpsit just as many defences as he chose; first, he could
deny the whole by pleading the general issue; then he could plead the
statute of limitations, infancy, accord and satisfaction, and a dozen
other pleas, by which the plaintiff would be deprived of any clue to
the real defence. I suppose it was this practice of formal lying which
has given rise to the popular error that a lawyer is in the habit of
lying, or is obliged to lie, in his arguments. Many people do not know
the difference between pleading which is a process in writing to
bring the parties to an issue and the oral arguments of counsel in
courts. It is ridiculous to suppose that it is easy or profitable for
lawyers to make false statements in their arguments. The opposing
counsel is ready to catch at anything of the kind; and if he misstates
the evidence, the jury are aware of it; while if he states what is not
law, the court generally knows it. So there is no opportunity for
lying even if a lawyer should be so disposed. The practice in civil
actions as provided by the statutes of Minnesota is similar if not
actually the same to the New York code of practice. There is but one
form of action, called an action of contract. The only pleading on the
part of the plaintiff is, 1st, the complaint; 2d, the reply. On the
part of the defendant, 1st, demurrer; or 2d, the answer. (Stats. ch.
70, sec. 58.) The complaint must contain, 1st, the title of the cause,
specifying the name of the court in which the action is brought and
the names of the parties to the action, plaintiff and defendant; 2d, a
statement of the facts constituting the cause of action in ordinary
and concise language, without repetition, and in such a manner as to
enable a person of common understanding to know what is intended; 3d,
a demand of the relief to which the plaintiff supposes himself
entitled. If the recovery of money be demanded the amount must be
stated. (Ibid. sec. 59.)
While testifying my approval of this code of practice as a whole, I
cannot resist saying that in many respects it is not so systematic as
the Massachusetts code, which was devised by Messrs. Curtis (now Mr.
Justice), Lord, and Chapman. That code is one of the best in the
world. And if I may be allowed one word more about special pleading, I
would say that there is no branch of law which will better reward
study. Without mentioning the practice in the U. S. courts, which
requires, certainly, a knowledge of special pleading, no one can read
the old English reports and text books with much profit, who is
ignorant of the principles of that science.
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