Page:Harvard Law Review Volume 4.djvu/172

156 156 HARVARD LAW REVIEW. Now, '' matter of evidence " is here "discriminated from ** matter of fact." It is not, of course, to be classed with " matter of law," and it is not matter of fact in the sense which we now fix upon that phrase. What then is it? It is something incidental, sub- sidiary, belonging where the matter of reasoning belongs, being, indeed, only so much material offered as the basis for inference to ** matter of fact." When it is said that fact is for the jury, the fact intended, as we have seen, is that which is in issue, the ultimate fact, that to which the law annexes consequences, that thing which, in a special verdict, the jury must plainly find, and not leave to the court to find. Issues are not taken upon evidential matter. Of evidence, the same thing is to be said which we have already said of the reasoning that is founded upon it; namely, that it is for both court and jury, according as either has occasion to resort to it. I have spoken of evidence and reasoning as belonging to the region which has to do with methods of arriving at the law and fact that are involved in an issue. In expressing this I have said, with what may seem a certain violence of phrase, that they belonged, in a way, with procedure. It will be useful to in- dicate here, a little more plainly, just what is meant by this. Reasoning, the rational method of settling disputed questions, is the modern substitute for certain formal and mechanical " trials " {i.e. tests) which flourished among our ancestors for centuries, and in the midst of which the trial by jury emerged. When two men to-day settle which is the " best man " by a prize- fight, we get an accurate notion of the old Germanic " trial." Who is it that "tries" the question? The men themselves. There are referees and rules of the game, but no determination of the dispute on grounds of reason, — by the rational method. So it was with *' trial by battle " in our old law ; the issue of right, in a writ of right, including all elements of law and fact, was " tried " by this physical struggle, and the judges of the Common Pleas sat, like the referee at a prize-fight, simply to administer the pro- cedure, the rules of the game. So of the King's Bench in criminal appeals; and so sat Richard II. at the "trial" of the appeal of treason between Bolingbroke and Norfolk, as Shakespeare repre- sents it in the play. So of the various ordeals ; the accused party " tried " his own case by undergoing the given requirement as to hot iron, or water, or the crumb. So of the oath ; the question,