1

law, or when there is no written law, by previous decisions." In The King against the Dean of St. Asaph, Lord Mansfield supports the same principle. 1 "When a question," he says, " can be severed by the form of pleading, the distinction is presumed upon the face of the record, and the jury cannot encroach upon the jurisdiction of the Court; where by the form of pleading the two questions are blended together, and cannot be separated upon the face of the record, the distinction is preserved by the honesty of the jury. The constitution trusts, that under the direction of a judge, they will not usurp a jurisdiction which is not in their province. They do not know the law, and are not presumed to know the law; they are not sworn to decide the law; they are not required to decide the law. If it appears upon the record, they ought to leave it there, or they may find the facts subject to the opinion of the Court upon the law. But further, upon the reason of the thing, and the eternal principles of justice, the jury ought not to assume the jurisdiction of the law. As I said before, they do not and are not presumed to know any thing of the matter, they do not understand the language in which it is conceived, or the meaning of the terms." In the discussions upon the law of libel, Mr. Fox and Mr. Pitt coincided in the adoption of the very same principle. "If a person," says Mr. Fox, "maintained that such a libel excited the French against Great Britain, that was an inference of one fact from another fact, upon which a man could gather light from his own mind, but with respect to which he could gather no light from all the law books in the world." Upon the same principle, Mr. Pitt "saw no reason why in the trial of a libel, the whole consideration of the case might not go precisely to the unfettered judgment of twelve men, sworn to give their verdict honestly and conscientiously, as it did in matters of felony, and other crimes of a high nature." "That decantation in our books, ad quæstionem facti non respondent judices, ad quæstionem legis non respondent juratores, literally taken, is true; for if it be demanded, what is the fact? the judge cannot answer it: if it be asked, what is the law in the case? the jury cannot answer it." We may

'Howell's State Trials, p. 1039.

2 Fox's Speeches, vol. 4, 253. 3 Bushell's Case, Vaughan, 149.

derive the same principle of distinction from the peculiar characters of judge and jury. In former times the jury were supposed to have sufficient knowledge to try the matter in issue, though no evidence were given on either side in Court, and to have a personal acquaintance with the characters of the witnesses, and with the situation of the locus in quo. The law is altered in this respect; the dependence upon their own personal knowledge is forbidden to the jury; it is "according to the evidence" that they swear "give a true verdict." Yet such an alteration cannot render them more or less cognizant of the law, and as it only leads to a different mode of obtaining certain information upon facts, it cannot increase or diminish the proper amount of their interference with the legal part of the enquiry.

Looking to more modern times, the judge may be, and generally is, a man of great experience in the ways and habits of life; he has generally seen a great deal of human nature, under the most trying as well as the most ordinary circumstances. These, however, are not the grounds upon which he is selected, nor upon which he may be considered ex officio to be distinguished from the jury. It was a man of much science and learning, who having made a large hole for a large cat, thought that he must make a smaller hole to enable a smaller cat to pass; and a lawyer may plead so cunningly, and may be so profoundly read in the Year Books and reports, as to secure a seat upon the Bench, without a very correct acquaintance with the ordinary affairs of the world. The jury, on the other hand, are often better acquainted with the routine of circumstances out of which the case has arisen than the judge, particularly upon the mercantile questions, which create the greatest difficulty. It is not then in knowledge of the world,

"By the constitution of the law of England, the existence of facts is usually to be ascertained by means of a jury of the country, who, on account of their knowledge and experience in the ordinary concerns and transactions of life acquired by their commerce with society, are considered peculiarly well qualified and adapted to the investigation of matters of fact."-St. on Evid. 1st ed. p. 4. In his second edition, p. 9, Mr. Starkie has these further observations on the subject: "It is obvious that the experience which would make those, whose duty it is to decide on matters of fact, arising out of the concerns and dealings of society, to discharge that duty, must be that which results, and can only result from an intimate intercourse with society, and an actual knowledge of the habits and dealings of mankind and that the reasoning faculties best adapted to supply such knowledge and

but in knowledge of the law, that the distinction exists between the two parts of the tribunal. And if their several functions were not separated from one another upon a corresponding principle, their different qualifications and talents would not be turned to the greatest account.

It might be supposed that a principle so fully established by such excellent authority, as well as by the peculiar characters of the different portions of the tribunal, would have been correctly maintained by the text writers, and never violated in the practice of the Courts. Yet, for many years before the passing of Mr. Fox's bill, it was avowedly violated in cases of libel, and it is to this day neglected in many of those cases which are said to be of a mixed nature, such as the questions of due diligence, reasonable notice, probable cause, and the many others of a similar character which frequently arise. Different motives induce our juries to measure the merits of the law,1 and to add to their own simple task the more comprehensive labours of a legislator. Party feeling steals into the jury box, threatens to corrupt the administration of justice, and to render life and property insecure. There are some counties in which it is impossible to obtain a just verdict upon questions of ecclesiastical property, and there are few counties in which the verdict on a political riot will not reflect, at least in some degree, the political opinions of the jurymen. The

experience to the best advantage in the investigation of a doubtful state of facts, are the natural powers of strong and vigorous minds, unincumbered and unfettered by the technical and artificial rules by which permanent tribunals would be apt to regulate their decisions."

"What

This practice seems almost to meet with approbation from persons who ought to entertain more correct opinions upon the due administration of justice. happened," said Mr. Poulett Thompson, in his speech on the usury laws," in the case of Kensington v. Stein? A case in which property to the amount of several hundred thousand pounds was concerned. The judge directed the jury to find a verdict of guilty; the jury found for the defendant. 'What!' exclaimed Lord Ellenborough, not guilty? why this is rank usury.' A friend of mine, one of the jurors, and the partner of an honourable friend of mine, replied 'I do not know what you call usury, my Lord, but every merchant in London is daily doing that with which the defendant is charged.' And can this state of things be permitted to continue? Are you to permit the property, the wealth, the character, the very existence of your merchants to be made dependent on the adventitious circumstance of twelve men being found, who have courage enough to prefer the lesser immorality of perjury to the greater crime of being accessary to the inflicton of gross injustice by the execution of these odious laws ?”—Mirror, 20th May, 1828.

distinction between law and fact has been more clearly enforced in criminal than in civil Courts. This difference may. possibly arise from the manifest distinction between the seve‐ ral ingredients of which a crime is composed, and the rule of law which applies to them, between the inference of malice, in a case of homicide, and the application of law to homicide found to be malicious; while in such questions as "due diligence," or "reasonable customs," the rules of law have been borrowed from the rules of practice and experience, and cannot be separated from them, except by a very careful discrimination. Civil questions are more difficult and more tedious, and too much involved in minute details and intricacies to be satisfactorily decided by a jury alone. It often happens that the litigants on both sides would be better satisfied with the exclusive decision of the judge, and that he feels himself bound, in spite of his desire to leave all matters as fully as possible to the jury, to give them very full and explicit directions. Again, in criminal proceedings there always prevails a sympathy with the prisoner, and a jealousy of all authority which is not strictly popular; the crowd that surround the seat of justice believe that they may themselves be subject to similar charges, and they find a personal security in the jurisdiction of men of their own class and character. Besides which, the subject of criminal inquiry and its consequences are so painful, that the judges can entertain no wish to assume unnecessary responsibility. They are anxious to enforce the acknowledged principle of our law, that the judge shall condemn no man, that he shall merely pronounce the law, and, by his explanation, enable the peers of the prisoners to ascertain their guilt or innocence; by which means he may escape the odium which must be directed against any individual deciding upon his own exclusive responsibility, and by the exercise of his own discretion depriving his fellow subjects of life and liberty.

If, however, the decisions upon the provinces of judge and jury have been inconsistent with principle, the definitions of text-writers have been equally unsatisfactory. We have quoted the first part of Mr. Bentham's definition. The second is manifestly incorrect. After stating that the question of law is decided by the text of the law, or, when there is no

written law, by previous decisions, he adds, "the question of fact is decided by the evidence," his obvious meaning is, that for the decision of this second sort of question the evidence occupies the same place as the text of law for the decision of the first. The text of the law is the major premiss; so the evidence, according to Mr. Bentham, must occupy a corresponding place in the argument. Suppose, for instance, that the question raised by demurrer is, whether A. B. being an alien enemy can hold land; the major premiss containing the rule of law by which A. B.'s incapacity is determined, is, that "an alien enemy cannot hold land." But the evidence does not occupy a corresponding place in a question of fact. Knowledge and experience teach a jury a certain connexion between certain circumstances, which is embodied in the proposition standing as a major premiss: for instance, that if A. B. runs out of a house with a bloody sword in his hand, and C. D. is found in the house recently stabbed by a sword of the same description, and there is no one else to be found in or near the house, A. B. was the person who stabbed C. D. Thus Mr. Bentham's definition will lead his readers into error, if it induces them to suppose that the evidence is employed in deciding a question of fact, as the rule of law is employed in any particular case to which it may be applied. In each case the evidence supplies the minor premiss; in the one, the major premiss is a rule of law, in the other, a connexion of circumstances derived from the ordinary knowledge and experience of life.

The definition given1 by Mr. Starkie seems to us still more objectionable. His object in giving the definition, is to explain the respective provinces of the court and jury. How can a definition be clear if it contains the words to be defined? It savours of the ignotum per ignotius. The force of Mr. Starkie's definition seems to depend upon the word can,-whatever the court and jury can do under certain re

"A question or inference of fact is one which the jury can find upon the evidence by virtue of their own knowledge and experience, without any legal aid derived from the court. And an inference or conclusion of law is one which the court can draw from the mere circumstances of the case as ascertained by a jury, independently of any general inference or conclusion drawn by the jury.”—Stark. Evid. i. 450.