Page:Harvard Law Review Volume 4.djvu/188

172 172 HARVARD LAW REVIEW, courts settle all questions relating to the factum of the law, e.g.^ whether, in enacting a statute, a specific requirement of the con- stitution as to the forms of enactment has been complied with. But, as regards foreign laws, it is held that the question of their existence is wholly for the jury. This is said, on the theory that such laws are mere matters of fact ; and so of the questions inci- dental to the ascertainment of them. Now, two things seem to be true : {a) that in an exact sense, as we have seen, these ques- tions are questions of fact, and that equally the same questions about domestic laws are questions of fact ; {b) that if the factum of domestic law is for the court, equally the factum of foreign law should be, — assuming it to be true that it is wanted, in order to determine the rule or law of the case. Such law, as well as the domestic law, should be determined by the judge. The circum- stance that while the domestic law does not need to be proved by " evidence," strictly so called, foreign law must be so proved, is not material. In reason the judges might well enough be allowed to in- form themselves about foreign law in any manner they choose,^ just as the judges of the Federal courts notice without proof the laws of all the States. But since it is required to be proved, it should be proved to the judge.^ The doctrine, however, that it is for the jury has a wide acceptance ; and, so far as it goes, if this is not a deduction from the general principle that the jury are not to answer to law, it is at least a departure from the mode of applying that principle in the case of domestic law ; for as we have seen, a question of fact relating to law which in the latter case is attracted to the tribunal that deals with law, in the other case is not. Con- sistency and principle would give the last case also to the judges. (2.) Another situation may be mentioned. The relation of the judge to the jury is necessarily one of mutual assistance. As the judges give the jury advice, information, and aid touching the jury's special province, so they call upon the jury for assistance in determining their own questions. The method of the chancery judges, of referring a question for trial to a common-law jury, in order to inform and aid them, giving, however, to a jury's verdict such weight as the judge thinks best, may indicate the nature of this thing. Questions of facts, in equity, are for the judge, but he 1 It was judicially noticed in State v. Rood, 12 Vt. 396, 2 Pickard v. Bailey, 26 N. H. 152 ; Lock wood v. Crawford, 18 Conn. 361 (by statute) ; Story, Confl. Laws, s. 638 ; i Grlf. Ev. s. 486.