the Board's Reports, whether all the five join in the recommendation, or two are of one opinion, and two of the contrary opinion? Surely this plan is framed with the direct and unavoidable effect of deception, whatever might be the design of its promoters. As for the answer made in Parliament when this objection was taken, that the Admiralty and the Treasury all adopt a like course in their ordinary warrants, can any thing be more perfectly futile? Who is so dull as not to perceive the difference between merely executive orders, whose weight and authority depends in no degree upon the opinions of those that issue them, and decisions whose whole authority is derived from the opinions of the persons that pronounce them? Do not all reports of our cases in the courts carefully denote whether the judgment is unanimous or not; and who dissented from it? For why? Because though the particular case is as much decided by a majority as by the whole Bench, yet its weight as an authority to rule other cases (which is the matter now in hand of the Board and the Committees) depends very much upon the numbers and even the individuals by whom the decision was pronounced.

Last of all, we come to the abuse - the possibility of abuse - and that is enough. We find 204 shares bought a short time before the decision in one case, and bought by the nearest relative of a member of the Board. Their value rose exceedingly immediately that the decision was pronounced. No one believes that undue knowledge was conveyed; yet all are aware that men in familiar conversation naturally express their opinions, and that acute observers may draw the conclusion. At any rate, every one knows that no law whatever prohibits or punishes such disclosures. The members of the Board, except the chairman, are in no responsible situation; they are not even bound by an oath of office; they are not ministers, they are not privy councillors. Why may not all the benefit of their skill and knowledge be obtained by examining them as witnesses? Why must they in such important and such delicate matters be made judges? The Tribunal is secret why, then, must its members be irresponsible?

But our objection is to the whole scheme, not to taking any portion or every portion of the Private Bill business

administering it faithfully and well, but the superadding to an incapable body another incomparably less capable, the affecting to assist Parliament by a preliminary inquiry from which all useful light is excluded. All objections to the particular character of this body are of very subordinate moment.

A defender, indeed, of this system, though not of this structure, has unexpectedly appeared in the respected person of Lord Fitzwilliam. He is grateful for this boon con ferred upon the country by the Government. But his notions are somewhat peculiar, not to say fantastical. He holds that the Board's decision should be final and irreversible, when it rejects any scheme, but that when it recommends one, the parties for and against should be allowed to petition Parliament, and heard fully before that tribunal. We need only ask his Lordship how he would relish such a scheme, were it applied to any suit which he might try for the recovery of a lost right. How would he like to be turned round and defeated by an officer of the court who had heard all that he chose to say, without any proof, but had also heard, without any proof, all the statements of his adversary, with an appeal from the officer to the court, if the decision was for him, but no appeal from that officer, if he decided for his adversary, all whose statements his Lordship might be prepared with evidence to refute? We believe, we need say no more on this strange addition, more wild by a good deal than the scheme to which it has been appended.

We trust the reader will excuse the length to which the great importance of the subject has carried us on the present occasion. We feel most anxious for the honour as well as the interests of our country, and, above all, solicitous that nothing should tarnish the high reputation, the hitherto undimmed lustre of our best, our proudest institutions, those connected with the security of private rights, and the preventing of injustice. All the rest of our polity is as a trifle compared with this, and when once, under whatever pretence, the Legislature shall sanction a rash, a careless, or a corrupt dealing with the rights of property on whatever scale, but far more if on the largest scale, we may be well assured that the glory has departed from our whole system.

ART. II. OF THE FUNCTIONS OF THE JUDGE AS DISTINGUISHED FROM THOSE OF THE JURY.1

LORD HARDWICKE has observed, and all reflecting men will agree in the observation, that "it is of the greatest importance to the law of England, and to the subject, that the powers of the judge and jury be kept distinct 2;" yet important as this object undoubtedly is, it is one which, even at the present day, is not very perfectly effected. The general principle, that the judge must determine the law and the jury the fact, is not, and cannot be, disputed; but in the application

This subject has already, to some extent, engaged our attention. See 1 L. R. art. III. p. 37. It is proper to state, that the above article is by another writer. ED.

2 R. v. Poole, Cas. Tem. Hard. 28.

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They do not know, sworn to decide the It is the duty of the

In the case of R. v. The Dean of St. Asaph, Lord Mansfield declared, "that the fundamental definition of trial by jury depended upon the universa maxim, ad quæstionem juris non respondent juratores; ad quæstionem facti non respondent judices;" and his lordship added, “Where a question can be severed by the form of pleading, the distinction is preserved upon the face of the record, and the jury cannot encroach upon the jurisdiction of the court; where, by the form of pleading, the two questions are blended together, and cannot be separated upon the face of the record, the distinction is preserved by the honesty of the jury. The constitution trusts that, under the direction of a judge, they will not usurp a jurisdiction which is not in their province. and are not presumed to know, the law; they are not law; they are not required to decide the law. judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences." 21 How. St. Tr. 1039, 1040. So, in an elaborate essay on this subject, published by Mr. Hargrave as a note to 1 Co. Lit. 155 b., the learned author states the result to be “that the immediate and direct right of deciding upon questions of law is entrusted to the judges; that in a jury it is only incidental; that, in the exercise of this incidental right, the latter are not only placed under the superintendence of the former, but are in some degree controllable by them; and therefore, that in all points of law arising on a trial, juries ought to show the most respectful deference to the advice and recommendation of judges." In America, the same principles have been lately expounded in forcible language by Mr. Justice Story. "Before I proceed," said he, "to the merits of this case, I wish to say a few words upon a point, suggested by the argument of the learned counsel for the prisoner, upon which I have had a decided opinion during my whole professional life. His argument

of this principle at Nisi Prius, embarrassing questions not infrequently arise, from the experienced difficulty of defining with clearness the obscure and shifting boundaries of law and fact. In the present article it is proposed briefly to discuss this subject, and to lay down such general rules as may practically be of use, in distinguishing the relative duties of judges and jurors.

The duty of a judge presiding at Nisi Prius or in the Crown Court, is threefold: first, he must decide all questions respecting the admissibility of evidence; secondly, he must instruct the jury in the rules of law, by which the evidence, when ad

is, that in criminal cases, and especially in capital cases, the jury are the judges of the law, as well as of the fact. My opinion is, that the jury are no more judges of the law in a capital or other criminal case, upon the plea. of Not guilty, than they are in every civil case, tried upon the general issue. In each of these cases their verdict, when general, is necessarily compounded of law and of fact; and includes both. In each, they must necessarily determine the law as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the court. But I deny that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court. This is the right of every citizen; and it is his only protection. If the jury were at liberty to settle the law for themselves, the effect would be, not only that the law itself would be most uncertain, from the different views which different juries might take of it; but in case of error, there would be no remedy or redress by the injured party; for the court would not have any right to review the law, as it had been settled by the jury. Indeed it would be almost impracticable to ascertain what the law, as settled by the jury, actually was. On the contrary, if the court should err in laying down the law to the jury, there is an adequate remedy for the injured party, by a motion for a new trial, or a writ of error, as the nature of the jurisdiction of the particular court may require. Every person accused as a criminal has a right to be tried according to the law of the land, the fixed law of the land; and not by the law as a jury may understand it, or choose, from wantonness, or ignorance, or accidental mistake, to interpret it. If I thought that a jury were the proper judges of the law in criminal cases, I should hold it my duty to abstain from the responsibility of stating the law to them upon any such trial. But believing, as I do, that every citizen has a right to be tried by the law, and according to the law; that it is his privilege and truest shield against oppression and wrong; I feel it my duty to state my views fully and openly on the present occasion." U. S. v. Battiste, 2 Sumn. 243. See further on this interesting subject, 2 Wynne's Eunomus; Bushell's case, 6 How. St. Tr. 999. 1008. 1013, 1014. ; Vaughan's R. 135. S. C.; Francklin's case, 17 How. St. Tr. 625.; and R. v. Woodfall, 5 Burr. 2661.

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mitted, is to be weighed ; and lastly, he must explain to them those general principles of law, that are applicable to the point at issue. In discharging the first duty, it frequently happens that the admissibility of a witness or an instrument is found to depend on a disputed fact, in which case all the evidence adduced both to prove and disprove that fact must be received by the judge, and adjudicated on by him alone. Thus, for example, if the question be whether a confession should be excluded on account of some previous threat or promise, the judge must decide, first, whether the threat or promise was really made, and secondly, whether, if made, it was sufficient in law to warrant the exclusion of the evidence. 3 So, if a dying declaration be tendered in evidence, and its admissibility rest upon the fact that the deceased believed, when he made it, that he was at the point of death, the question whether this fact be satisfactorily proved must be determined by the judge. 4 In like manner, if the question be whether a document has been duly executed, or stamped 5; or whether it comes from the right custody; or whether sufficient search has been made for it, so as to admit secondary evidence of its contents 7; or if a witness be objected to, on the ground of infidelity, or imbecility of mind, or as being himself a party to the cause;

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Among the questions propounded by the Irish parliament to the judges of that country in 1641, was one, "whether the judge or jurors ought to be judge of the matter in fact," to which the judges replied that "although the jurors be the sole judges of matter of fact, yet the judges of the court are judges of the validity of the evidence, and of the matters of law arising out of the same, wherein the jury ought to be guided by them." 2 Nalson's Coll. of State Pap. 575.

4 So resolved by all the judges, in two cases, cited by Parke B. in Bartlett v. Smith, 11 M. & W. 486.; and in one case cited by Ld. Ellenborough, in R. v. Hucks, 1 Stark. R. 523. These cases virtually overrule R. v. Woodcock, where the question was left to the jury by Eyre C. B.

5 Bartlett v. Smith, 11 M. & W. 483. In that case, a bill, purporting to be a foreign bill, and stamped accordingly, was objected to on the ground that it was in fact an inland bill, and evidence was offered to prove this fact. Held, that the judge ought to have received the evidence at the time the objection was made, and decided himself upon the admissibility of the instrument; and as he had submitted it, as part of the defendant's case, to the jury, a new trial was granted. 6 Bp. of Meath v. Marq. of Winchester, 3 Bing. New Ca. 198.; Rees v. Walters, 3 M. & W. 531, 532. per Parke B.