Page:Harvard Law Review Volume 12.djvu/571

551 LAW AND FACTS. 551 precedent, that when two successive juries sit in the same case pains is taken to prevent the second jury from learning the verdict of the first. Now it is entirely conceivable that in a rude state of society the jury might be left to settle the entire controversy be- tween plaintiff and defendant, that the judge should exercise merely the function of a sheriff to preserve order in the court room. As a matter of fact, the judges have always insisted on taking a hand in the decision of the case. Professor Thayer refers to the various devices by which judges have undertaken to decide questions which might otherwise have been left to the jur)'^, for example, special verdicts, demurrers, new trials. By these means he asserts that the judges have been for- ever advancing upon the " theoretical province of the jury." After his patient examination of the history of jury trial he certainly has a right to speak with authority upon the question, what the theoretical province of the jury really is. But in referring to the various processes by which questions have been turned over to the court which might have been left to the jury, he has described the whole process of law making. For it is very certain that if every- thing had been left to the jury there would have been no law. I respectfully dissent, then, from Professor Thayer's statement that " to be told that law is for the court and fact is for the jury enlightens us not at all as to the discrimination between law and fact." (b. 1S3.) That part of the case which is left to the jury is fact, as it seems to me because it is left to the jury; and that part which is decided by the judge is law because he chooses to decide it and to decide it in such a way that it shall be used as a precedent for future cases. A jury for example decides that a man is negligent because he got off the train while it was in motion. A judge reaches the same conclusion from the same premises. Why is the conclusion in the one case fact and in the other case law ? The jury and the judge are alike rational beings and have reached the same conclusion by the exercise of their reasoning faculties. What then is the distinc- tion? I know of none except that the conclusion of the judge goes upon the record and every succeeding judge is bound to accept his conclusion as correct, while the second jury is not bound to accept the conclusion of the first jury and is not even permitted to know what that conclusion was. It may reach the same conclusion by accident, but not by precedent. Undoubtedly judges decide many questions of fact. Not all