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I am purposely discussing the distinction between fact and law from a purely English point of view, but it may be as well to remember that this distinction was very familiar to the Roman lawyers, as it necessarily must have been under a procedure which involves, theoretically, a separation of fact and law even sharper and more precise than our own. And those discerning men had not failed to perceive the difficulty of assigning certain questions to either one or the other branch of the classification. Speaking of mora, Paulus says: “ Nam difficilis est hujus rei definitio. Divus quoque Pius Tullio Balbo rescripsit; an mora facta intelligatur, neque constitutione ulla, neque juris auctorum quaestione decidi posse, cum sit magis facti quam juris.” (Dig. 22.1.32.)
There being then so many questions which cannot be classed under either branch of a division usually supposed to be exhaustive, one is naturally lead to inquire, whether these questions do not themselves present some common feature which would enable us to reform this division, and by adding a third class, to render the classification somewhat more complete. I cannot say that I have succeeded in quite satisfying myself how this further classification can be accurately made. But I may point out for consideration, that all the questions which cannot be assigned either to law or to fact do seem to me to present one common peculiarity, which is inherent in them, that is to say, a peculiarity which exists in them quite independently of the treatment which they have received; as if, therefore, there were something in their very nature which essentially distinguishes them from ordinary questions of law or fact. That peculiarity is this :-In all of them, or almost all of them, we find if we analyse them closely, that, however strong the general impression may be to the contrary, after the facts properly so-called have been ascertained with precision, there does remain still something to be done before the law can be applied. When, for example, the law requires that conduct should be honest, prudent, skilful, or diligent, and makes duties and obligations depend on its being so or not being so, before the law can be applied, not only the facts must be ascertained, but the conduct of the party must be judged and estimated. Does his conduct in point of honesty, prudence, skill or diligence come up to the required standard ? And what is that standard ? As far as I am aware, it is in the breast of the person or persons giving the decision; for there is no external known and fixed standard by which conduct can be measured or tested. Questions which thus depend upon estimation of conduct do seem to be by their very nature a class altogether distinct both from questions of law and questions of fact, at least as those terms are defined above. The same thing occurs, though not quite so obviously, with questions of intention. Ultimately we never determine, and never can determine with certainty, what was the state of mind of the person whose acts are under consideration. We can never know what consequences he expected to result from the transaction. We can only judge what consequences a reasonable man would, under the circumstances, expect; and this can only be determined by our experience of the world. So with questions of custom, of damage, and of notice; with questions whether conduct was reasonable or honest, and so forth. After having ascertained the facts, some one, be it judge or juryman, before the law is applied must apply his experience—must say what, under the circumstances, was natural, reasonable, or proper. And it would therefore seem to be true that the questions to be determined by legal tribunals, instead of being divided into
questions of law and questions of fact, ought really to be 'divided into questions of law, questions of fact, and questions of experience-I use the word “ experience” in preference to “ conduct” because it points to the faculty which the consideration of such questions calls into play.
It may be remarked, and it is true, that all questions of fact ultimately present themselves as questions of experience, when there is any dispute about them. It is by the light of experience that we determine between conflicting statements and presumptions where the truth lies. But just as language in common use permits questions of law to be classed apart from questions of fact, and excludes from the term “questions of fact " certain questions of fact of a particular kind, so we may, I think, conveniently be allowed to class apart the questions of experience to which I have alluded above. But, if necessary, the division may be strictly stated thus:
1. Questions of Law.
2. Questions as to the existence of any Fact, except law, capable of being perceived by the senses. (Every thing else which Sir James Stephen calls fact will come under class 3.)
3. Questions of Experience not coming under classes i and 2.
But for ordinary use the brief expressions, questions of Law, questions of Fact, and questions of Experience, would suffice.
It is worth while next to inquire what effect the recognition of this third class of questions might be likely to have upon the administration of justice. How would questions of experience be practically dealt with, if their existence were acknowledged as a distinct class? In the first place, in the cases where trials are held before Judge and Jury, would the Jury be still the persons whose primary duty it was to estimate conduct by comparing it with their own experience? I think so. Matters of this kind which usually come before Courts of Common Law are the uses to which property may be put, the relations between husband and wife, parent and child, employers and employed, our dealings towards each other when accident, or business, or the intercourse of daily life brings us into contact, and so forth; and I think the spirit of our institutions requires that these matters should, at any rate, be submitted to a jury. The sovereign authority having expressed our duties for the most part in the very general form above indicated, I think the current standard for the estimation of conduct cannot be placed exclusively in the breasts of a body of lawyers. If the sovereign authority were now to commence more accurately to define the duties which it has imposed, our political machinery would give the public voice a larger share in the definition of these duties; and I do not think we should be satisfied if, under any circumstances, the public voice, which now operates through the Jury, were shut out.
I must here also again remind the reader that the effect of removing questions of experience entirely from the Jury and placing the final decision of them in the hands of the Judge, is not to be measured by the mere difference between the sentiments which prevail in the minds of judges and of jurymen as to the conduct required in the relations of life coming under notice. The difference between the sentiments of a single well defined class and of a shifting body into which nearly all classes enter at one time or other is an important one, no doubt, but there is one more important still. Juries are a discontinuous, whilst Judges are a continuous tribunal. What exact opinion as to the conduct of the parties has been formed by the Jury is very rarely known with precision, since they give no reasons for their verdict, and we can very often only guess at the steps by which they have arrived at it. Nor is it very important to inquire, for it is certain that the same jury will never sit again. Consequently a verdict is forgotten very soon after it is delivered, and no one ever thinks of referring to it even as a guide, still less as an authority, in future disputes between other parties. But not so with the decision of a Judge. When he expresses his opinion he almost always gives his reasons for it, and his reasons are all carefully recorded. Nor, according to our existing traditions, can any Judge in any future case disregard either the opinion, or the reasons which support it. Were the Judges made completely masters of questions of experience, it is highly probable, unless our forms and traditions were modified, that strict rules of law, imposing sharply defined duties, would grow up much more frequently and more rapidly than they do now: and also that the rules so arrived at would in some matters be in advance of, in others lag behind, the current opinions of the age. One of the peculiar advantages of the Jury system is that it tends constantly to maintain an equilibrium between law and public opinion.
On the other hand, would it be safe to leave to the Jury the final decision of questions of experience? In criminal cases we already do so, but the Jury in criminal cases are, practically, to a considerable extent under the control of the Judge who presides at the trial; and, as a jury is also generally lenient-and leniency in criminal matters seldom does harm-no inconvenience has been found to result. But civil matters are different. The negative result of a verdict of “Not Guilty” in a criminal trial is here not possible. A verdict against the Plaintiff is a verdict for the Defendant. Civil cases also require much nicer consideration and more carefully devised safeguards than criminal ones. The Plaintiff, in a very large number of civil cases, comes before the Jury having suffered a real misfortune, and the Jury are apt, instead of weighing carefully the Defendant's conduct, to ride off upon some other considerations. They are apt to consider who can best afford to lose, the Plaintiff by his misfortune, or the Defendant by the verdict going against him ; or they act upon some prejudice, either against the class to which one or other of the parties belongs, or against the individual on account of his conduct on some other occasion. The excitement, too, of a trial is often very great, and it is quite as well that