Page:Harvard Law Review Volume 4.djvu/175

159 <'LAIV AND FACT'' IN JURY TRIALS. IS9 makers." " It must have been a man of legal genius who first dis- cerned that law might be thought of and set forth apart from the Courts of Justice which administered it, on the one hand, and apart from the classes of persons to whom they administered it, on the other." Turning back, now, from these old conceptions to our own, we are to observe again that while, of course, there are rules and laws of procedure, and while, of course, these are to be ascertained by the judges, they are not what is meant (still less is meant a mode of trial), when we contrast the law and fact that are blended in the issue. There the conception is purely that of the substantive law which is applicable to the " facts," viz., the ultimate facts that are in question. And we are to remark again that equally the topics of evidence and of reasoning, which deal with the methods of our modern " trials," belong one side of our subject, ♦ IV. We have made our definitions and principal discrimina- tions.^ But, as I said" at the outset, the allotment of fact to the jury, even in the strict sense of fact, is not exact. The judges have always answered a multitude of questions of ultimate fact in- volved in the issue. It is true that this has often been disguised by calling them questions of law. In the elaborate and carefully prepared codification of the criminal law, which has been pend- ing for the last eleven years in the British Parliament, we are told, of "attempts to commit offences," that "the question whether an act done or omitted with intent to commit an offence is or is not only preparation . . . and too remote to constitute an attempt . . . is a question of law." ^ In a valuable letter of Chief-Justice Cockburn, addressed to the Attorney-General, and commenting on the Draft Code (dated June 12, 1879, and printed by order of the House of Commons), he very justly remarks upon this pas- sage : " To this I must strenuously object. The question is essen- tially one of fact, and ought not, because it may be one which it may be better to leave to the judge to decide than to submit it to a jury, to be, by a fiction, converted into a question of law. . . . The right mode of dealing with a question of fact which it is thought desirable to withdraw from the jury is to say that it shall, though a question of fact, be determined by the judge." The 1 As regards what are called mixed questions of law and fact, see iufra^ p 169. 2 Report of Criminal Code Bill Commission, Draft Code, sect. 74.