Page:Harvard Law Review Volume 4.djvu/183

167 LAIV AND FACT IN JURY TRIALS, 167 the simple stroke of declaring that it shall no longer be dealt with merely as matter of fact, but shall be the subject of rules, — • rules of practice, rules of good sense, prima facie rules of law, even conclusive rules of law; as when, in regard to the facts involved in cases of prescriptive rights, it was perceived how hard it often is to prove them, propter brevem hommum vitani^ and the judges established the rule that when once you had given evidence running back through the term of living memory, the rest of the long period of legal memory might be covered by a presumption. It was admitted to be a question of fact and for the jury, whether it was so or not; but the judges were not content to leave it there, for they perceived the very slender weight of the evidence. ** No doubt," said Blackburn,^ " usage for the last fifty or sixty years would be some evidence of usage seven hundred years ago ; but if the question is to be considered as an ordinary question of fact, I certainly, for one, would very seldom find a verdict in support of the right as in fact so ancient." And so, in such cases, the judges instructed the jury that they "ought" to find what was thus presumed ; and, what was more, they enforced the duty upon nisi prius judges and upon juries by granting new trials if it was disregarded.^ 6. It will be perceived that, in theory, the judges have almost always paid homage to the jury's separate and independent right. Seldom have they failed to do that. Yet the judges supervise and moderate their action, and herein Hes one of the most searching and far-reaching grounds of judicial control, — that of keeping the jury within the bounds of reason. This function, as well as that of pre- serving discipline and order, belongs to the judge as the presiding officer over the exercise of the judicial function. All subordinate officials must keep within the limits of reason, even in the exercise of their own special office; and it is the judges who are to apply this rule. Reason is not so much a part of the law, as it is the element which it breathes ; those who have to administer the law can neither see nor move without it. Therefore, not merely must the jury's verdict be conformable to the rules of law, but it must be defensible in point of sense and reason ; it must not be absurd or whimsical. This is obviously a different thing from imposing upon the jury the judge's private standard of what is 1 Bryant v. Foot, L. R. 2 Q. B. p. 172. 2 Jenkins v. Harvey, i Cr. M. & R. 877.