Page:Harvard Law Review Volume 4.djvu/163

147 HARVARD LAW REVIEW. VOL. IV. NOVEMBER 15, 1890 NO. 4. "LAW AND FACT" IN JURY TRIALS. THE discrimination of law and fact, in its relation to jury- trials, is often identified by practitioners, judges, and law- writers, with the question of what matter is for the court and what for the jury. This contains an important intimation, namely, that the notion of " law and fact," when thus spoken of, is limited to the issue ; for juries have nothing to do with anything but the issue ; of this more will be said later on. But if we ask the question what sort of thing it is that is for the court and what for the jury, we do not get on, for we are told that matters of law are for the court, and matters of fact for the jury, — ad quaestionem juris respondent judices, ad quaestionem facti re- spondent juratores. We do not, then, escape the necessity of try- ing to determine what is matter of fact and what matter of law. I. In endeavoring to help answer that question let us ask what it is that juries, inquests, assizes, were created for. We shall find the answer in the old precept to the viscount for summoning them, and in their oath. The viscount was to summon those " who best can and will " veritatem dicere. The jurors in the assize of novel disseisin swore, one after another, as Bracton gives it in his Latin : ^ de quo visum feci ; " and their verdict was this promised veritatis dictum. They were wanted, in a pending legal controversy, where 1 Fol. i8s.
 * Hoc auditis, justitiarii, quod veritatem dicam. . . . de tenement©