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again that to which I wish to draw attention is, not the making of new laws, but the state in which the decisions very often leave the questions to which they relate. It frequently happens that whilst, on the one hand, the Judge cannot ask himself the simple question–did or did not the purchaser know this ? he cannot, on the other hand, substitute for it any other definite and precise question whatsoever. He cannot say, there are no rules, therefore this remains a pure question of fact; nor can he say there are rules, therefore altogether, or to this extent, it is a question of law. He poses it before himself as a question of fact; but turns away almost immediately from the evidence given in the case before him to the decisions of other judges in other cases; and this, not merely to see how far he may guide his own judgment on the facts by that of his predecessors, but to consider how far their opinions impede and restrain him, and to what extent they force upon him conclusions which the evidence itself which he has before him fails to establish.
These examples serve to show how, before the tribunals with which we are most familiar, questions arise which cannot be assigned accurately either to fact or law. I now desire to examine the classification under consideration from a somewhat broader point of view.
If we ask ourselves what people mean when they say that every process in a Court of Law divides itself into the two operations of ascertaining the facts of the case and of applying the rule or rules of law by which it is governed, it will I think be found that what is generally understood by ascertaining the facts, is hearing the narrative of the parties, their agents and witnesses, and forming an opinion as to the truth of that narrative. Further, it is generally conceived that all the rights belonging to the individual members of society, and all the duties and obligations which others owe to them have been defined by the sovereign authority. So that when the truth of the statements made has been once ascertained, the law lies ready for application to the resultant facts. Take, for example, a suit or prosecution involving questions of ownership, pledge, trespass, trover, theft, or the like. No one seems to suspect for a moment that, when the allegations of the parties have been ascertained to be true or false, anything more remains to be done than to apply the law. There may be difficulties in ascertaining what the rule of law is, but when ascertained it is by its very nature clear, rigid, and precise. No one seems to suppose that between these two processes —the ascertainment of the facts and the ascertainment of the law—there lies a third process wholly distinct from either. The popular understanding and the language current among lawyers are quite in accord in this respect. This view of legal proceedings is, in fact, one of the modes in which the above proposition about the separation of all litigious questions into law and fact has been arrived at.
It is only when we come to examine the matter more closely that we see how little the reality corresponds with the conception. I have in another place (Elements of Law, ch. v.) examined as carefully as I could the current language by which our ordinary rights and duties are expressed. I have shown there that every rule of law must express directly or by inference a primary duty or obligation. If law be manifested, as it often is, in the form of a secondary or sanctioning duty or obligation, yet it presupposes the existence of the primary duty or obligation which it is intended to enforce, and Courts of Justice cannot escape from ascertaining this primary obligation in every suit or prosecution which comes before them.
Nevertheless, try what we will, we very frequently cannot push the expression of the primary obligation further than —thou shalt conduct thyself with honesty, with prudence, with reasonable care, reasonable skill or the like; or putting it the other way—thou shalt not be negligent, thou
shalt not be unskilful, thou shalt not be dishonest, thou shalt not be imprudent.
Now it cannot be said here, as it is in some cases, that the expression of its will by the sovereign authority is manifestly incomplete, and that the Judges must fill up the gap as best they may. The law, though scanty, is not incomplete. It has spoken as far as it chooses to speak, and has left the final expression of certain duties in this form.
Now let us see how the Judges have dealt with rules of law which are so expressed.
In the first place they have said, upon all occasions when it is considered necessary to separate their functions from those of the Jury, that whether a man has been honest, skilful, prudent, diligent, or the like, is not a question of law, but a question of fact; and where there is a jury that it is to be decided by the Jury, and not by the Judge.
How far judges are correct in saying that such questions are questions of fact I will not at this moment consider. This assignment of functions, if boldly and consistently followed, would lead to no confusion. But having laid down this fundamental rule, the Judges almost invariably proceed in a round-about way to undermine it. Take the question of negligence, the commonest of all. True it is, that in Courts of Common Law the Jury are always asked to find as a fact whether the Defendant was guilty of negligence. Suppose they find that he is so; does that settle the matter? Not always. The Judge or Judges afterwards, for themselves, and without the assistance of the Jury, very often proceed to consider, whether, when twelve men have unanimously stated their conviction that there was negligence, there was after all any evidence of negligence at all. Now this is a very ambiguous expression. It might raise the question—was the verdict of the Jury right? Did they draw the right inference from the facts before them ? And some judges have even avowed that to consider whether there was any evidence for the Jury
“obliges the Court to weigh the facts.” This view of the matter leads obviously to a revision of the verdict of the Jury by the Judges in banco; in short, to something scarcely distinguishable from an appeal from the verdict of the Jury.
The other view of the proceeding is that it raises the question—whether a particular act of omission or commission is evidence of negligence. It is a very short step from this (if indeed it is not precisely the same thing) to inquire whether a particular act or omission is itself negligence, in other words, to inquire what is the conduct which the law requires or forbids? The rules laid down as to the injuries of a servant by a fellow servant, the rule of the road (as it is called), the rule as to "scienter” relative to damage by ferocious animals, and other like rules, have been started for the most part by a consideration of what was evidence for the Jury. They have now grown into rules of law by which we must guide our conduct towards each other, and they are exactly similar in kind to the rules for preventing collisions at sea, which are the result of direct sovereign legislation. This view of the proceeding, therefore, leads to the creation or restriction of duties and obligations by Judges, in other words, to the enunciation of law.
Avowedly, as we are all aware, Judges never do either of these things. Avowedly they never sit in appeal from the verdict of a Jury; nor do they enunciate new rules of law. I think, however, looking, not at individual cases, but at the general results of the action of the Courts after verdict, that it is impossible to say that Judges, when inquiring whether there was evidence for the Jury, do not to a certain degree really do the first, whilst it is perfectly certain that, to a very large extent, and very frequently, they do the second. But here again it is not any disturbance of functions to which I wish to draw attention. That is of no importance now. I wish, as before, to point
out in what condition the question for decision is very often left. Taking cases singly, it will be very often extremely hard to say whether the Judges are weighing the facts or enunciating the law. The process is so uncertain and obscure as to make it very often impossible for any one to say positively which is being done. Ultimately, from a series of similar cases a clear rule of law may emerge, like the rule of the road, or the rule as to the negligence of fellow servants. Or, as in the case of an invitation by the servants of a railway company to passengers to alight, by calling out the name of the station, the Judges, after having almost made a rule of law, may let it drop down again to mere fact. In the meantime, before any rule is fixed, and whilst a great number of possible rules are being suggested, no man can say whether the question is one of law or fact, and the dubious region is again arrived at. Nor is this condition merely a transitory one. Some questions settle themselves down in time to law or fact, but some questions never cease to hover between the two.
The list of questions which are neither assignable to law nor fact is far from being exhausted by the above examples. Besides questions of intention, of custom, of notice, and of negligence, there are very many others in which we should find the same ultimate difficulty of classification. Has a man been guilty of " laches” or fraud ? Has he lost the right to prosecute his claim by delay? Was a bargain unconscionable ? Did the damages claimed naturally result from the wrong complained of? Is a contract against public policy? And besides these, the countless cases in which the question is asked, was what was done reasonable ? These are all ultimate forms of questions upon which the sovereign authority has made rights, duties, and obligations to depend : and as to all of them, we should find the same uncertainty of treatment, rendering it impossible to say whether the tribunals which are called upon to decide them deal with them as questions of law or questions of fact.