CHAPTER III.

THE FUNCTIONS OF THE JUDGE AS DISTINGUISHED FROM THOSE OF THE JURY.'

§ 21. WITH respect to trial by jury, Lord Hardwicke has observed, and all reflecting men will agree in the observation, that "it is of the greatest importance to the law of England, and to the subject, that the powers of the judge and jury be kept distinct; " yet important as this object undoubtedly is, it is one which, even at the present day, is not very perfectly effected. The general principle, that the judge must determine the law, and the jury the fact, is not, and cannot be, disputed; but in the

1 The substance of this chapter first appeared in No. 3 of Law Rev. 27-44.

2 The merits and demerits of trial by jury are fairly set forth in the 2nd report of the Common Law Commiss., pp. 3—6. See also the Common Law Procedure Act, of 1854, 17 & 18 Vict., c. 125, § 1, which gives a limited power to suitors, by consent in writing, to dispense with the jury, and to leave the decision of issues of fact to the judge, provided the Court think fit to allow such trial. The Irish Common Law Procedure Amendment Act, 19 & 20 Vict., c. 102, § 4, and the Scotch Court of Session Act, of 1850, 13 & 14 Vict., c. 36, §§ 46–48, respectively contain similar provisions. 3 R. v. Poole, Cas. Temp. Hard. 28.

4 In R. v. The Dean of St. Asaph, Lord Mansfield declared, "that the fundamental definition of trial by jury depended upon the universal maxim, ad quæstionem juris non respondent juratores; ad quæstionem facti nou respondent judices ;" and his lordship added-" Where a question can be proved by the form of pleading, the distinction is preserved upon the face of the record, and the jury cannot encroach upon the jurisdiction of the court; when, by the form of pleading, the two questions are blended together, and cannot be separated upon the face of the record, the distinction is preserved by the honesty of the jury. The constitution trusts that, under the direction of a judge, they will not usurp a jurisdiction which is not in their province. They do not know, and are not presumed to know, the law they are not sworn to decide the law; they are not required to decide the law It is the duty of the judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences." 21 How. St. Tr. 1039, 1040. So, in an elaborate essay on

application of this principle at Nisi Prius, embarrassing questions not unfrequently arise, from the experienced difficulty of defining

this subject, published by Mr. Hargrave, as a note to 1 Co. Lit. 155 b., the learned author states the result to be, "that the immediate and direct right of deciding upon questions of law is intrusted to the judges; that in a jury it is only incidental; that in the exercise of this incidental right, the latter are not only placed under the superintendence of the former, but are in some degree controllable by them; and, therefore, that in all points of law arising on a trial, juries ought to show the most respectful deference to the advice and recommendation of judges." In America, the same principles have been lately expounded, in forcible language, by Mr. Justice Story. "Before I proceed," said he, "to the merits of this case, I wish to say a few words upon a point, suggested by the argument of the learned counsel for the prisoner, upon which I have had a decided opinion during my whole professional life. His argument is, that in criminal cases, and especially in capital cases, the jury are the judges of the law, as well as of the fact. My opinion is, that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case, tried upon the general issue. In each of these cases, their verdict, when general, is necessarily compounded of law and of fact, and includes both. In each, they must necessarily determine the law, as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the Court. But I deny that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the Court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the Court. This is the right of every

citizen, and it is his only protection. If the jury were at liberty to settle the law for themselves, the effect would be, not only that the law itself would be most uncertain, from the different views which different juries might take of it, but in case of error, there would be no remedy or redress by the injured party; for the Court would not have any right to review the law, as it had been settled by the jury. Indeed, it would be almost impracticable to ascertain what the law, as settled by the jury, actually was. On the contrary, if the Court should err in laying down the law to the jury, there is an adequate remedy for the injured party by a motion for a new trial, or a writ of error, as the nature of the jurisdiction of the particular court may require. Every person accused as a criminal has a right to be tried according to the law of the land, the fixed law of the land; and not by the law as a jury may understand it, or choose, from wantonness, or ignorance, or accidental mistake, to interpret it. If I thought that a jury were the proper judges of the law in criminal cases, I should hold it my duty to abstain from the responsibility of stating the law to them upon any such trial. But believing, as I do, that every citizen has a right to be tried by

with clearness the obscure and shifting boundaries of law and fact. In the present chapter it is proposed briefly to discuss this subject, and to lay down such general rules as may practically be of use in distinguishing the relative duties of judges and jurors.

§ 22. The duty of a judge presiding at a trial by jury is threefold-First, he must decide all questions respecting the admissibility of evidence; secondly, he must instruct the jury in the rules of law, by which the evidence, when admitted, is to be weighed; and lastly, he must explain to them and enforce those general principles of law, that are applicable to the point at issue. In discharging the first duty, it frequently happens that the admissibility of a witness or an instrument is found to depend on a disputed fact, in which case all the evidence adduced both to prove and disprove that fact must be received by the judge, and adjudicated on by him alone. Thus, for example-if the question be whether a confession should be excluded on account of some previous threat or promise, the judge must decide, first, whether the threat or promise was really made; and, secondly, whether, if made, it was sufficient in law to warrant the exclusion of the evidence. So, if a dying declaration be tendered in evidence, and its admissibility rest upon the fact that the deceased believed, when he made it, that he was at the point of death, the question whether this fact be satisfactorily proved must be determined by the judge. So, the judge alone must

the law, and according to the law, that it is his privilege and truest shield against oppression and wrong; I feel it my duty to state my views fully and openly on the present occasion." U. S. v. Battiste, 2 Sumn. 243. See further on this interesting subject, 2 Wynne's Eunomus; Bushell's case, 6 How. St. Tr. 999, 1008, 1013, 1014; Vaughan's R. 135, S. C.; Francklin's case, 17 How. St. Tr. 625; and R. v. Woodfall, 5 Burr. 2661.

1 Among the questions propounded by the Irish Parliament to the judges of that country in 1641, was one, "whether the judge or jurors ought to be judge of the matter of fact," to which the judges replied, that, "although the jurors be the sole judges of matter of fact, yet the judges of the court are judges of the validity of the evidence, and of the matters of law arising out of the same, wherein the jury ought to be guided by them." 2 Nalson's Coll. of State Pap. 575, 582, Lond. 1683.

2 Bartlett v. Smith, 11 M. & W. 486.

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3 See 1 Stark. R. 523, n. b.

So resolved by all the judges, in two cases cited by Parke, B., in Bartlett

decide, whether the declarant in a question of pedigree has been proved to be a deceased member of the family; and it makes no difference in this rule, that the relationship of the declarant happens to be the very question at issue in the cause. So, if proof be offered of the signature of an attesting witness, and the admissibility of this evidence turns on the fact, whether or not the witness has absented himself from the trial by collusion with the opposite party, the judge must decide on the existence of this fact. In like manner, if the question be whether a document has been duly executed, or stamped; or whether it comes from the right custody; or whether sufficient search has been made for it to admit secondary evidence of its contents; or whether notice to produce it has been duly served; or whether, in the event of its being produced under notice, it be the original paper required; or whether it is protected as being a confidential communication; or if a witness be objected to on the ground of infidelity or imbecility of mind;-in all these and the like cases the preliminary question of admissibility must, in the first instance, be exclusively decided by the judge, however complicated the circumstances may be, and though it may be necessary to weigh the conflicting testimony of numerous witnesses, in order to arrive at a just conclusion. So, where evidence is offered of acts done in places other than the place in dispute, it is for the judge to decide, in the first instance, whether there is such a unity of character in these different localities as to render evidence affecting the one admissible with reference to the other, and he will further be called upon to pronounce whether the acts

v. Smith, 11 M. & W. 486; and in one case cited by Lord Ellenborough, in R. v. Hucks, 1 Stark. R. 523. These cases virtually overrule R. v. Woodcock, 1 Lea. C. C. 504, where the question was left to the jury by Eyre, C. B. Doe v. Davies, 10 Q. B. 314.

2

Egan v. Larkin, 1 Arm., Mac., & Og. 403, per Brady, C. B.

3 Bartlett v. Smith, 11 M. & W. 483.

Bish. of Meath v. Marq. of Winchester, 3 Bing. N. C. 198; Doe v. Keeling,

11 Q. B. 889, per Lord Denman.

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11 M. & W. 486, per Alderson, B.

Harvey v. Mitchell, 2 M. & Rob. 366, per Parke, B.

Boyle v. Wiseman, 11 Ex. R. 360; overruling Jones v. Fort, M. & M. 196.

* Cleave v. Jones, 7 Ex. R. 421.

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relied on amount to evidence of ownership.' Where witnesses were called to prove a general usage in trade, the judge, thinking that their testimony amounted to no more than evidence of opinion, withdrew it from the consideration of the jury, and the Court supported his ruling. It was then laid down, as a distinct principle, that where the evidence was by law admissible for the determination of the point raised, the judge was bound to lay it before the jury; but whether the evidence was admissible or not, was a matter for the decision of the judge alone. In all these cases, however, after the evidence has been finally admitted, its credibility and weight are entirely questions for the jury, who are at liberty to consider all the circumstances of the case, including those already proved before the judge, and to give the evidence only such credit as, upon the whole, they may think it deserves. The judge merely decides whether there is, primá facie, any reason for presenting it at all to the jury; and his decision on this point, if erroneous, may be reviewed by the Court above.1

§ 23. Secondly, It is the duty of the judge to point out to the jury any rule of law, which either renders evidence unnecessary, or gives peculiar weight to any particular species of evidence, or defines the manner in which a certain fact must be proved. Thus, he should distinctly explain the nature of any presumptions, which may apply to the point at issue, distinguishing such as are conclusive from those which are liable to be rebutted by counter evidence; and again, dividing this latter class into those presumptions upon which the jury are bound to act, in the absence of conflicting testimony, and those upon which it is expedient, or allowable, to rely. So, if by the common or statute law any document, when proved, becomes conclusive evidence of the facts stated therein, it is the province of the judge to point out to the jury that the existence of such facts cannot be disputed or denied,

Doe v. Kemp, 7 Bing. 336, per Bosanquet, J.

2 Lewis v. Marshall, 7 M. & Gr. 743, 744.

3 Welstead v. Levy, 1 M. & Rob. 139, per Parke, J.; Doe v. Davies, 10 Q. B. 324, per Lord Denman; Ross v. Gould, 3 Greenl. 204.

4 Cleave v. Jones, 7 Ex. R. 421.