l66 HARVARD LAW REVIEW, new trial.^ As matter of history, we know that the jury suc- cessfully stood out against this attempt, and that their right was acknowledged.^ It is interesting to notice how far judges and legislatures in this country have travelled back towards the old result of controlling the jury, by requiring special verdicts and answers to specific questions.^ 5. In the mere process of guiding and supervising the jury, the judges have not only modified the manner of the jury's action in dealing with questions of fact, but have removed many such questions from their control. This has been done very ex- tensively by laying down rules of presumption. These are sometimes not so much rules, as mere formulae, indicating what judges recognize as permissible or desirable in the jury; but often they are strictly rules for the decision of questions of fact. If it be said that when such a rule exists the question of fact merely ceases, wholly or in part, and turns into a question of law, or, at any rate, of the application of law, over which the judges have more control, this is true ; but the act of creating such a rule, inasmuch as it permanently withholds certain questions from the jury, involves a decision by the judges, not merely of the single question of fact in the case in hand, but, thereafter, of the whole class of such questions.* In the long history of trial by jury this process has always gone on, sometimes as a mere inevitable step in the work of a tribunal which regards precedent and seeks for consistency in administration, sometimes as a sharp and short way of bridling the jury. Such things were done as being mere administration, as rightly belonging to the judges, who had, what the juries had not, the responsibility of supervising the conduct of judicature and of securing the observance, not merely of the rule of law, but of the rule of right reason. But we are none the less in- terested to notice that the actual working of this process has trans- ferred a great bulk of matter of fact from the jury to the court by 1 Chichester's Case, Aleyn, 12 {1644) ; Gay v. Cross, 7 Mod. 37 (1702) ; R. v. Bewd- ley, I Peere Williams, 207 (17 12). 2 Mayor of Devizes v. Clarke, 3 A. & E. 506. 8 See Mr. W. W. Thornton's article in 20 Am. Law Rev. 366, on " Special Interroga- tories to Juries." In Atch. R. R. (Zo.v. Morgan, 22 Pac. Rep. 995 (Jan. 1890, Kansas), seventy-eight questions were put to the jury, filling nearly three octavo pages, of fine print and double columns.
- For a discussion of this general topic I beg to refer to an article on " Presumptions
and the Law of Evidence," 3 Harv. Law Rev. 141.
