J U 
diftinguifti them ; to tell the jury, that, fuppofing they be¬ 
lieve that fuch and fuch fails were done, what the law is 
in fuch circumftances. This is an unbiaffed direction ; 
this keeps the province of judge and jury diftinft ; the 
fails are left altogether to the jury ; and the law does not 
controul the faft, but arifes from it. If the law is thought 
to be mjftaken, the direftion of the judge that gave it may 
be confidered in another court; and, if it is miftaken, the 
verdift in conformity to it will be of no effect. But a 
verdift cannot be complained of as contrary to the direc¬ 
tion of law given ; it can fcarcely be concluded it is ; and 
the reafon is, becaufe the law arifes only from the faft ; 
and the jury previoufly find the fact in their own mind, be¬ 
fore they couple it with the law pronounced from the 
bench to make up their verdift. Every verdict is com¬ 
pounded of law.and fait; but the law and the fact are al¬ 
ways diftinft in their nature. S ee faugh. 14.6, 152. 
“ Littleton and his commentator have been made advo¬ 
cates on this occafion j and have been thought to lay, 
though at the peril of contradidting themfelyes an hun¬ 
dred times, that jurors are the judges of the law as well 
as the faft; in the paffage already repeatedly cited and al¬ 
luded to ; 1 bifl. 228, a ; ‘If they will take upon them 
the knowledge of the law upon the matter, they may give 
their verdidt generally, as is put in their charge.’ See 2 
Ld. Rnym. 1494. Hardw. 16. But does not the judge be¬ 
tray his truft in not telling them how the law is ? If he 
does not tell them, it is true-they may fuppofe it to be lb, 
and find accordingly ; if he does tell them how the law 
is, they are to compare the fadt with the law ; but cannot 
of their own head fay what the law is. The law is never 
fubmitted to them, as part of their inquiry. Vaugk. 143. 
No finding can in general be complained of, as againft a 
judge’s direftion, but as againft the weight of evidence ; 
and in that cafe the remedy is well known. The warrant 
of commitment, as Hated in the return in Bufhell’s cafe, 
was neverthelefs exprefsly granted againft the jury, for 
finding contrary to the dircElion of the judge in a matter of law. 
Which part of the return, Vaughan, C.J. faid, literally 
taken, was infignificant and not intelligible ; and, if it had 
any meaning, ftript of the veil and colour of words, was 
adireft argument for the abolition of the form of trial by 
jury ; becaufe the judge in fuch cafe muft refolve both the 
law and the faft. True it is, the chief juftice does there 
put a particular cafe of a jury finding againft a judge's di¬ 
reftion, which in general, for the reafon he has given, is 
impoftible ; and that cafe is, where the judge afks the jury 
previous to the verdift, How they find fuch a particular 
thing propounded to them ? If on their giving an anfwer 
the judge adds, Then, as you agree to find the faft fo, the 
law is for the plaintiff or defendant; and, if the finding 
is afterwards contrary to what he declares, they do in that 
cafe find contrary to the judge’s direftion in matter of law. 
But, in that cafe, the regular order of proceeding is di- 
reftly inverted ; the judge makes them find a particular 
faft previous to his declaration of the law j whereas, what 
Vaughan, C.J. calls the difcreet and lawful afliftance of a 
judge to a jury, is always to give an hypothetical direftion 
to the jury 3 not by previoufly having their anfwer to the 
faft, and thereupon declaring the law to controul their 
verdift; but to leave their verdift free, by faying, If you 
find the fad fo and fo, then the law is for the plaintiff; or, 
you are to find for the plaintiff; or vice vcrfa. See Vaugh. 
236, 143, 4. _ 
“All this reafoning fhows, that the province of judge 
and jury, as to law and faft, are feparate and exclufive; 
that, in the general and regular form of proceeding, it is 
impoftible for a verdift to be faid to be againft a direftion 
in law; but, if the cafe fhould happen, the verdift muft 
be reftified ; for this plain reafon, that it appears in fuch 
a cafe the jury have taken upon them the determination 
of the law-, which is entirely out of their juril'diftion. 
“ Befides what has been already faid, it feems undenia¬ 
bly to appear, that juries are defigned by the conftitution 
to be judges of the faft only, and not of the law, for thefe 
reafons: Firft, Becaufe the contrary fuppofition is againft 
Vol. XL No. 775. 
II \ o S4-9 
the plain tenor of their oath. The form of every oath ad- 
miniftered in a court of juftice, is either according to com¬ 
mon law, or as required by fame aft of parliament. 3 Infl. 
165. An oath ot office contains a fummary description 
of duty; and the terms of a jury’s oath are fo ftriftly ap¬ 
plicable to faft only, that they do by the ftrongeft impli¬ 
cation exclude any cognizance of the law. Every juror, 
in a caufe, is enjoined by his oath ‘ well and truly to try 
the ilfue joined between the parties, and a true verdift to 
give according to the evidence.' Now to confider this by 
parts. 1. He is well and truly to try. How can one well 
and truly try any point but according to his knowledge ? 
Either, as has been contended, according to his own pre¬ 
vious knowledge, or according <to the information he 
meets with at the time of the examination. A juror may 
have knowledge of both kinds as to the faft ; but it is not 
requifite he fliould have either as to the hw. 2. The oath 
direfts the jury to try the iffite joined. Tins iffue is always 
a faft denied on one fide, and affirmed on the other ; where 
the law is directly in difpute, the ilfue (as has been already 
repeatedly obferved in the remarks on the ft^t. 32 Geo. 
III. c. 60.) goes before the court, and not at all before a 
jury. And, though, during the trial of an ifi'ue of faft, 
points of law do very often incidentally arife, it does not 
follow from thence that they are under the cognizance of 
the jury; any more than dilputes about praftice, the com¬ 
petence of witneffes, or whether fuch and fuch evidence 
is admiflible ; which do as often arife in the courfe of a 
trial, and were never contended to belong to the jury. 
The law, therefore, becaufe it arifes out of the faft, and 
becaufe in the end it is to govern it, does not, on that ac¬ 
count, appertain to the jury, if from other considerations 
it appears to be improper. 3. What can be meant by a 
true verdiEl ? Truth, both philofophers and lawyers will 
refer to faft, rather than opinion about law; when it is 
referred to opinion, we mean the agreement of a propo¬ 
sition with our own ideas, or the ideas of others. But 
how thofe who have fuch faint and imperfect ideas as 
jurors have of law, can dil'cern this agreement, or judge 
of the truth, in fuch a cafe, every reafoning man muft be 
at a lofs to determine. 4. But, to exclude the poffibility 
of a doubt in this queftion, their oath does not only direct 
them to find the truth, but tells them what rule or mea- 
fure they are to go by in their enquiry. They are to find 
a true verdid, according to the evidence. This branch of the 
oath, which governs the whole, can be applied only to the 
faft. The faft only is in evidence ; and consequently the 
lawq not being in evidence, is not before them. See Vaugk . 
143. Thus in the cleared terms does the oath limit and 
define their duty. 
“ But, Secondly, in the courfe and management of X 
trial, other perfons are likewife under an oath, and have 
duties incumbent on them alfo. Now, without looking 
into the oath of a judge, it will be eafily underftood to be 
inconfiftent with his duty and his oath to be a mere ci¬ 
pher on the bench. A judge however will be little more 
than a cipher, either if Ire fits and fays nothing, or if what 
he does fay is to go for nothing. The-jury’s ignorance 
of law makes it neceffary for the judge to tell them what 
the law is in the cafe before them ; but he tells it them 
furely to very little purpofe, if they think themfelves af¬ 
terwards at liberty to determine otherwife. 
“ Other arguments there are alfo which deferve to have 
weight on this queftion, drawn from the forms of pleading 
and the general frame of records; than which none per¬ 
haps can be produced more worthy to be relied on. 1. 
It is well known in conftant experience, that, by the mode 
of drawing a demurrer, the matter in debate is referred al¬ 
together to the deciiion of the court, and in reality never 
does go before a jury. By a demurrer, the bare law is in 
queftion ; the fait being conftantly admitted, if clearly ex- 
prefl'ed. The reafon of admitting the faft in that cafe 
feems to be, that without fuch confeffion of the faft the 
court have no ground to go upon ; for the law in every 
cafe arifes from the faft. The cafe then muft really exift 
before the legality of it, as to circumftances, can be deter- 
7 A mined. 
