Page:Harvard Law Review Volume 4.djvu/165

149 LAW AND FACT IN JURY TRIALS, I49 verdicts, and in Isaack v, Clark ^ he attributes it to Bracton ; but that appears to be an error; at any rate, a careful search for it in Bracton has failed to discover it It seems likely that Biener is right when he intimates that this formula took shape in England in the sixteenth century.^ But the maxim was never meant to be taken absolutely. It is, as I said, limited to ques- tions with which the jury has to do ; it relates to issues of fact, and not to the incidental questions that spring up before the parties are at issue, and before the trial ; and so of many of those which present themselves during the trial. Apart from " evi- dence," to which the maxim has no reference, the jury has to do with only a limited class of questions of fact, namely, questions of ultimate fact ; it is only to these that the maxim applies.^ If, then, we limit the inquiry to the issue, in what sense is it true? (i.) As stating the great, general rule that the regular common-law mode of trying questions of fact is by jury; e.g.., it is accurately said by Coke:* "The most usual trial of matters of fact is by twelve such men ; for ad quaestionem facti non respondent judices; and matters in law the judges ought to decide and dis- cuss ; for ad quaestionem juris non respondent juratores." (2.) In a sense that emphasizes the limitations of the jury, — as saying that it is only fact which they are to decide, " Non est juratoribus judicare," was the judgment of the court in 1554, when an inquest (Vaughan, 135), appears in a variety of forms ; a common one is that in the text. Bulstrode (ii. 204 and 305) makes Coke say jurisperitus (and so RoUe, i. 132) and Jurisprudentes, instead of judices. 1 I Rolle, p. 132; s. c. 2 Bulst. p. 314 (1613-14). 2 Biener, Eng.Geschw. i. ch. 2, sect. 25 ; ch. 5, sect. 40. For this reference I am indebted to my friend, Mr. Fletcher Ladd. Best (Ev. sect. 82, note) seems to be in error when he understands Bonnier (Preuves, 4th ed., i. sect. 1 19) to say that the maxim " has been long known on the Continent." Bonnier, in discussingthe questionwhether the judge is bound by the answers of experts, does indeed refer to " le vieil adage mal a propos reponduit per certains auters modernes, ad qusestionem facti respondent juratores, ad qusestionem juris respondent judices;" but this writer was familiar with the phrases of our legal lit- erature, and the absence of any reference to the maxim in other continental authors to which I have had any reference or access, leads me to think that Bonnier was merely quoting le vieil adage from our law. Coke seems to have spawned Latin maxims freely. Is this also his ? and so his reference to Bracton merely to an authority for the doctrine, and not the phrase ? In those days of polyglot law it was easy for a man to slip back and forth between his English and his Latin and law French. " Come Bracton est" is the expression that Rolle puts into his mouth. Bulstrode merely has it, " As Bracton." 3 Bartlett v. Smith, 11 M. & W. 483; Bennison v. Jewison, 12 Jurist, 485; s. c. i Ames, Bills and Notes, 512.
 * Co. Lit. 155^.