I50 HARVARD LAW REVIEW. of office had found a conclusion of law;^ or as the counsel ex- pressed it in another report of the case r^ " For the office of twelve men is . . . not to adjudge what the law is, for that is the office of the court, and not of the jury." (3.) In a sense which em- phasizes the right of the jury to find a special verdict in any case, and to take the opinion of the judges on the law as arising out of the facts thus returned. " It was resolved by Sir Ed. Anderson, chief-justice, and all the justices of the bench, that the special verdict . . . was well founded ; they held, that in all pleas . . . and upon all issues joined . . . the jury may find the special matter . . . [and] pray the opinion of the court ... by the common law, which has ordained that matters in fact shall be tried by jurors, and matters in law by the judges; and as ad quaestionem," etc.^ It is true that Coke had also a balanced way of quoting the maxim, as if it represented a limitation upon the judges as wide and general as that upon the jury. But although it became thus a loose flourish and ornament in his pedantic speech, yet its true significance may be drawn out thus: In general, issues of fact, and only issues of fact, are to be tried by jury ; when they are so tried, the jury and not the court are to find the facts, and the court and not the jury is to give the rule of law; the jury are not to refer the evidence to the judge and ask his judgment upon that, but are to find the facts which the evidence tends to establish, and may only ask the court for their judgment upon these. That this determination by the jury involves a process of reasoning, of inference and judgment, makes no difference; for it is the office of jurors *' to adjudge upon their evidence concerning matter of fact, and thereupon to give their verdict, and not to leave matter of evidence to the court to adjudge which does not belong to them."* II. Let us now try to find some definition of " fact," and a just discrimination between fact and law. To define fact is, indeed, a ^' peryloiis chosel' as they say in the Year Books ; and some per- 1 Dyer (ed. 1601), 106 b and see Hill v. Hanks, 2 Bulst. p. 204 (1614) ; Isaack v. Clark, ib. p. 314 (1614-15) ; King v. Poole, Cas. t. Hardwicke, p. 28 (1734). 2 Plowden, p. 114. 8 Dowman's Case, 9 Co. pp. 12-13 (^586).
- Littleton's Case {161 2), cited in 10 Co. p. 56 b.
