of this principle at Nisi Prius, embarrassing questions not infrequently arise, from the experienced difficulty of defining with clearness the obscure and shifting boundaries of law and fact. In the present article 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.

The duty of a judge presiding at Nisi Prius or in the Crown Court, 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 ad

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 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.

mitted, is to be weighed ; and lastly, he must explain to them 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." In like manner, if the question be whether a document has been duly executed, or stamped 5; or whether it comes from the right custody"; or whether sufficient search has been made for it, so as to admit secondary evidence of its contents 7; or if a witness be objected to, on the ground of infidelity, or imbecility of mind, or as being himself a party to the cause ;

3

4

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 in 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.

4 So resolved by all the judges, in two cases, cited by Parke B. in Bartlett v. Smith, 11 M. & W. 486.; and in one case cited by Ld. Ellenborough, in R. v. Hucks, 1 Stark. R. 523. These cases virtually overrule R. v. Woodcock, where the question was left to the jury by Eyre C. B.

5 Bartlett v. Smith, 11 M. & W. 483. In that case, a bill, purporting to be a foreign bill, and stamped accordingly, was objected to on the ground that it was in fact an inland bill, and evidence was offered to prove this fact. Held, that the judge ought to have received the evidence at the time the objection was made, and decided himself upon the admissibility of the instrument; and as he had submitted it, as part of the defendant's case, to the jury, a new trial was granted.

Bp. of Meath v. Marq. of Winchester, 3 Bing. New Ca. 198.; Rees v. Walters, 3 M. & W. 531, 532. per Parke B.

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

1

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 parts, 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 relied on amount to evidence of ownership. In a recent case 2, witnesses were called to prove a general usage in trade, but as their testimony was subsequently considered by the judge as amounting to no more than evidence of opinion, it was withdrawn by him from the consideration of the jury, and the Court supported his ruling. It was there laid down as a distinct principle, that when 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, as it seems, 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 only decides, whether there is, primâ facie, any reason for presenting it at all to the jury.

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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

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

2 Lewis v. Marshall, C. P. 29th June, 1844.

9 Ross v. Gould, 5 Greenl. 204.

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, and that the only question for their deliberation, is whether or not the document be duly proved. So, if the uncorroborated testimony of a single witness be insufficient by law to establish guilt, as for instance in charges of treason or perjury, the judge must acquaint the jury with the nature and extent of this rule; and even where a conviction founded upon such testimony would be strictly legal, as in the case of an accomplice becoming witness for the Crown, the judge would not properly discharge his duty, if he did not warn the jury against the danger of placing implicit reliance upon statements coming from such a suspicious quarter. Many judges indeed, and those of the greatest ability, have not confined their observations within these limits, but have boldly given their opinions respecting matters of fact; and although this mode of proceeding, when adopted, as it sometimes has been, in a supercilious spirit, may arouse the jealous feelings of a jury, and may excite them, in their anxiety to prove their independence, to pronounce an unjust verdict'; yet, it may well be doubted, whether, in the great majority of instances, it would not promote the real interests of justice, if the judge were temperately to state to the jury what opinions he had formed respecting the merits of the case, and the mode by which he had arrived at his conclusions. The jury would still have the undisputed power of deciding the question as they thought fit, but they would have the advantage of being advised by a man, no more liable than themselves to prejudice or partiality, whose long experience in courts of justice must, of necessity, have rendered him far more competent than they can be, to unravel the tangled threads of conflicting testimony. The too com"Few things incite me more to repel a doctrine than intolerant attempts to force it on my understanding.” Dr. Channing, vol. iii. p. 319. Lord Bacon, in his advice to Mr. Justice Hutton, says, You should be a light to jurors to open their eyes, but not a guide to lead them by the noses." p. 271. ed. Montagu.

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Bac. Works, vol. vii.

mon mode of summing up-" Gentlemen, if you think so and so, you will find for the plaintiff; if you think otherwise, you will find for the defendant; gentlemen, the question is for you," though sanctioned by the practice of many able, but somewhat lazy judges, and though possibly in accordance with the strict theory of a trial by jury, is but little calculated to promote the attainment of truth; and in complicated cases before a petty jury, is almost tantamount, if not to a direct denial of justice, at least to a decision of the issue by lot.

Lastly, the judge must explain to the jury what principles of law are applicable to the point in issue, and in order to enable him to do so correctly, must distinguish questions of law from questions of fact. This, in ordinary cases, is no difficult task. Thus, for instance, on a charge of larceny, the judge lays down, as a general proposition of law, that all persons who take and remove the personal chattels of another without his consent, and with a felonious intent, are guilty of that crime, and then, according to the circumstances of the case, he explains, with more or less particularity, what constitutes a taking, removing, &c. These, obviously, are questions of law, and together form the major premiss of the syllogism. The jury next decide, whether the evidence proves that the goods have been taken and removed in such a manner, and with such an intent, as the judge has previously shown will amount to larceny. These are questions of fact, and together form the minor premiss. Lastly, comes the conclusion of guilt or innocence, which may either be drawn by the jury applying to the facts which they find, the rules of law as interpreted by the judge; or, in the event of their considering the task too difficult for them, they are at liberty to find the facts specially, but not the mere evidence on which the facts are founded', leaving the Court to apply the law to such facts, and consequently to pronounce the final decision. But simple as this process appears to be, there are a certain class of cases, in which the line between law and fact has been very indistinctly drawn, and consequently the

1 Hubbard v. Johnstone, 3 Taunt. 209., per Wood B.; Harwood v. Goodright, 1 Cowp. 91, 92., per Ld. Mansfield; Mires v. Solebay, 2 Mod. 244, 245.; 1 St. Ev. 511, 512.