The existence of law is, as has been said, marked and measured by the exclusion, in courts of justice, of individual judgment by authority, of free discretion by rule, of liberty of opinion by pre-established determinations. The remarkable extent to which this exclusion is permitted is a very characteristic feature of the administration of justice; but it is not and cannot be complete. Judicial action is accordingly divisible into two provinces; one being that of law, and the other that of fact. All matters that come for consideration before courts of justice are either matters of law or matters of fact. The former are those falling within the sphere of pre-established and authoritative principle, while the latter are those pertaining to the province of unfettered judicial discretion. In other words, every question which requires an answer in a court of justice is either one of law or one of fact. The former is one to be answered in accordance with established principles—one which has been already authoritatively answered, explicitly or implicitly, by the law. A question of fact, on the other hand, is one which has not been thus predetermined—one on which authority is silent—one which the court may and must answer and determine in accordance with its own individual judgment.
It must be clearly understood that by a question of fact, as we have used the expression, is meant any question whatever except one of law, whether that question is, or is not, one of fact in the other senses of this equivocal term. We are not concerned, for example, with the distinction between matters of fact and matters of right, or with that between matters of fact and matters of opinion. Everything is fact for us which is not predetermined by legal principles. It is clear that this is the sense in which this term must inevitably be used, if the distinction between questions of fact and questions of law is to be exhaustive and logical.
The distinction may be illustrated by the following examples:—
Whether a contractor has been guilty of unreasonable delay in building a house is a question of fact; the law contains no rules for its determination. But whether the holder of a bill of exchange has been guilty of unreasonable delay in giving notice of dishonour, is a question of law to be determined in accordance with certain fixed principles laid down in the Bills of Exchange Act.
Whether verbal or written evidence of a contract is the better, is a question of law, the superiority of the latter being the subject of a pre-existing and authoritative generalisation. But whether the oral testimony of A. or that of B. is the better evidence, is a question of fact, left entirely to the untrammelled judgment of the court.
What is the proper and reasonable punishment for murder is a question of law, individual judicial opinion being absolutely excluded by a fixed rule. What is the proper and reasonable punishment for theft is (save so far as judicial discretion is limited by the statutory appointment of a maximum limit) a question of fact, on which the law has nothing to say.
The question whether a child accused of crime has sufficient mental capacity to be criminally responsible for his acts, is one of fact, if the accused is over the age of seven years, but one of law (to be answered in the negative) if he is under that age.
The point in issue is the meaning of a particular clause in an Act of Parliament. Whether this is a question of fact or of law, depends on whether the clause has already been the subject of authoritative judicial interpretation. If not, it is one of fact for the opinion of the court. If, however, there has already been a decision on the point, the question is one of law to be decided in accordance with the previous determination. The conclusion may seem paradoxical that a question of statutory interpretation may be one of fact, but a little consideration will show that the statement is correct. It is true, indeed, that the question is one as to what the law is, but a question of law does not mean one as to what the law is, but one to be determined in accordance with a rule of law.
A question is very often both one of fact and one of law, and is then said to be a mixed question of law and of fact. It is to be answered partly in accordance with fixed legal principles, and as to the residue in accordance with free judicial opinion. That is to say, it is not a simple, but a composite question, resolvable into a greater or less number of simple factors, some of which pertain to the sphere of the law and the others to that of fact. Let us take, for example, the question as to the proper term of imprisonment for a certain convicted criminal. This may, according to circumstances, be a pure question of fact, a pure question of law, or a mixed question of law and of fact. It belongs to the first of these classes, if the law contains no provision whatever on the matter, the court having in consequence a perfectly free hand. It belongs to the second class, if the matter is definitely predetermined by a fixed rule, appointing the exact length of imprisonment to be awarded. It belongs to the third class, if the law has fixed a minimum or maximum term, but has left the court with full liberty within the appointed limits. Similarly, whether the defendant has been guilty of fraud is a mixed question of law and of fact, because it is resolvable into two elements, one of law and the other of fact; what acts the defendant has done, and with what intent he did them, are pure questions of fact; but whether such acts, done with such an intent, amount to fraud is a pure question of law. So the question whether a partnership exists between A. and B. is partly one of fact (viz., what agreement has been made between these persons), and partly one of law (viz., whether such an agreement constitutes the relation of partnership). Similar composite questions are innumerable.
The distinction between matters of fact and matters of law is thrown into great prominence by the composite character of the typical English tribunal and the resulting division of functions between judge and jury. The general rule is that questions of law are for the judge and questions of fact for the jury. This rule is subject, however, to numerous and important exceptions. Though there are no cases in which the law is left to the jury, there are many questions of fact which are withdrawn from the cognisance of the jury and answered by the judge. The interpretation of a written document, for example, may be, and very often is, a pure matter of fact, and nevertheless falls within the province of the judge. So the question of reasonable and probable cause for prosecution—which arises in actions for malicious prosecution—is one of fact and yet one for the judge himself. So it is the duty of the judge to decide whether there is any sufficient evidence to justify a verdict for the plaintiff, and if he decides that there is not, the case is withdrawn from the jury altogether; yet in the majority of cases this is a mere matter of fact, undetermined by any authoritative principles.[[11]]