As to the probable effect of the motion in arrest of judgment, I shall only observe, that no reasonable man would be so eager to possess himself of the invidious power of inflicting punishment, if he were not predetermined to make use of it.
Again;—we are told that judge and jury have a distinct office;—that the jury is to find the fact, and the judge to deliver the law. De jure respondent judices, de facto jurati. The dictam is true, though not in the sense given to it by Lord Mansfield. The jury are undoubtedly to determine the fact; that is, whether the defendant did, or did not, commit the crime charged against him. The judge pronounces the sentence annexed by law to that fact so found; and if, in the course of the trial, any question of law arises, both the counsel and the jury must, of necessity, appeal to the judge, and leave it to his decision. An exception, or plea in bar, may be allowed by the court; but, when issue is joined, and the jury have received their charge, it is not possible in the nature of things, for them to separate the law from the fact, unless they think proper to return a special verdict.
