Page:Harvard Law Review Volume 4.djvu/169

LAW AND FACT IN JURY TRIALS. 1 53 2. What, then, do we mean by law? We mean, at all events, a rule or standard which it is the duty of a judicial tribunal to apply and enforce. It is not my present purpose to say anything as to the exact nature or origin of law.^ How the rule or standard comes into existence, where it is found, just what the nature of it is, how far it is the command of a supreme political power, and how far the silently-followed habit of the community, and other like questions, — there is no occasion to consider now. It is enough to mark one characteristic of it, and to say, that in the sense now under consideration, nothing is law that is not a rule or standard which it is the duty of judicial tribunals to apply and enforce. I do not even care to say that all general standards that courts apply are to be called law; that matter I pass by.^ But this is true, and it is enough for our present purpose, that, unless there be a question as to a rule or standard which it is the duty of a judicial tribunal to apply, there is no question of law. The inquiry whether there be any such rule or standard, the determination of the exact meaning and scope of it, the definition of its terms, and the settlement of incidental ques- tions, such as the conformity of it, in the mode of its enactment, with the requirements of a written constitution, are all naturally and justly to be classed together; and these are questions of law. III. But we must discriminate further. Besides questions of fact and law, there are questions of method, of procedure. " It is the office of jurors to adjudge upon their evidence," so the court is reported to have said in Littleton's Case.^ That remark brings out a fundamental point; viz., that it is no test of a ques- tion of fact that it should be ascertainable without reasoning and the use of the "adjudging " faculty; much must be conceived of as fact which is invisible to the senses, and ascertainable only this way. Of course this function of reasoning was constantly exer- 1 See Mr. James C. Carter's recent address before the American Bar Association, en- titled " The Ideal and the Actual in Law ; " and compare Holmes, Common Law, 35-38, 150-1 ; Markby, Elements of Law, ch. i, sects. 1-31. Holland, Elements of Jurispru- dence, c. ii. and c. iii. "A law," says Holland {3d ed., p. 36), "in the proper sense of the term, is therefore a general rule of human action, taking cognizance only of external acts, enforced by a determinate authority, which authority is human, and, among human authorities, is that which is paramount in a political society." Compare, also, Maine's Ancient Law, cc. i and 2 ; Lord Esher, M.R., in Cochrane v. Moore, 25 Q. B. D. 57. 2 Markby, ubi supra ; infra, p. 167. If a jury cannot, in point of reason, find a verdict, they cannot as a matter of law ; and such questions go up on exceptions, Denny v. Williams, 5 Allen, i. ^ Antey p. 150.