Page:Harvard Law Review Volume 4.djvu/177

161 LAW AND FACT IN JURY TRIALS. l6l ever used, the construction of writings, when once the facts necessary for fixing it were known, was a matter for the courts. This has always been so ; perhaps a reason for it may be that as writings came into general use and so got into our courts, mainly through the Roman ecclesiastics,^ so the Roman methods of dealing with them were naturally adopted ; and, once adopted, were not changed when new modes of trial, such as the trial by jury, came in. And, to be sure, the jury could not read. It may be added that an established judicial usage Hke this has always been powerfully supported by considerations of good sense and expediency. Of a great part of the writings brought under judicial consideration, it is true that they were made, as Bracton says, to eke out the shortness of human hfe, " ad perpetuam memoriam, propter brevem hominum vitam." Such things, so important, so long enduring, should have a fixed meaning; should not be subject to varying interpretations; should be interpreted by whatever tribunal is most permanent, best instructed, most likely to adhere to precedents. It is on this ground of policy, or on like legislative considera- tions, and above all, for fear the jury should decide some question of law that was complicated with the fact, — that many other questions of fact have at one time or another been taken posses- sion of by the judges. Whether there is malice in cases of mur- der, what is sufficient " cooling-time," in case of provocation,^ and, in actions for malicious prosecution, whether the cause for instituting the prosecution were ** reasonable and probable," are well-kRown illustrations of this. It was from like motives that courts refused to allow juries to find a general verdict in cases of criminal libel.^ How is it that the judges, sometimes with and sometimes without the cooperation of the parties, have worked all this out? In various ways: i. Through their power of fixing the definition of legal terms. Such phrases as " malice," " false pretences," " fraud," ** insanity," " reasonable notice," and the like, have re- quired definition. The judges alone could give it; and they have sometimes given it as in the case of insanity, in a manner to close questions of fact which might well have been left open.* 1 Anglo-Saxon Law, 230. 2 r^ ^_ Onbey, 2 Lord Raymond, p. 1494.
 * Com. V. Anthes, 5 Gray, 212-219.
 * See the acute observations of Mr. Justice Doe in dissenting opinions in State w