Page:Harvard Law Review Volume 4.djvu/170

154 HARVARD LAW REVIEW, cised by the judges; the remark just quoted makes it apparent that it must also be exercised by juries. This sort of " evidence of things unseen" is common to both. We are not, then, to sup- pose that a jury has found all the facts merely because they have found all that is needed as a basis for the operation of the rea- soning faculty; for as regards reasoning the judges have no ex- clusive office ; the jury also must reason at every step. There comes up for consideration, then, this matter of rea- soning : a thing which intervenes, in questions of negligence and the like, between the primary facts, or what may be called the raw material of the case, and the secondary or ultimate facts.^ Just as both court and jury must take notice, without proof, of much that is assumed as known to all concerned in judicial inquiries, so each must conduct processes of reasoning in accomplishing the ends of its own department. It is true that the jury was not brought into existence because the court needed help in this business, but simply to report upon the rei Veritas ; reasoning, however, was unavoidable. Courts might always have done that for themselves if they could have been furnished with a full supply of fact ; but that was impracticable, and at no period of their his- tory could juries discharge their own special function of ascer- taining and reporting facts, without going through a process of reasoning. *' While the juror's oath," says Bracton,^ " has in it three comrades (comites), truth, justice, and judgment; truth is to be found in the juror, justitia et judicium in the judge; but sometimes it seerris that judgment belongs to jurors, since they are to say on their oath, yet according to their belief, whether so and so disseised so and so or not." And again, ^ " If the jurors state the fact as it is (factum narraverint sicut Veritas se habuerit), and afterwards judge the fact according to their statement of it and err, they make a mistaken judgment rather than a false one, since they believe that such a judgment follows such a fact." Bracton uses the expression '* they judge the fact." We can ob- serve the real nature of this operation by looking at the case of 1 It would be straining our word " procedure " beyond due limits to say that reason- ing is part of the procedure, for reasoning is essential everywhere in the law ; yet one may get a useful hint by regarding it, for a moment, in that aspect. As the procedure and method of trial are to be discriminated from both law and fact, the suliject-matter that is to be dealt with in these ways and methods, — so we may separate from law and fact the process by which conclusions are reached; viz., the process of reasoning. 2 Fol. 1 86, b. 8 Fol. 290, b.