After so much historic matter, Gentlemen, it is now easy to see what is—
The Function of the Jury at this time. Here I make three points.
I. They are to decide the Question of Fact, the matter charged, and determine whether the accused did the deed alleged to be done. That is the first step—to determine the Fact.
II. They are to decide the Question of Law, the statute or custom supposed to apply to the Deed done, and determine whether there is such a statute or custom, and whether it denounces such a Deed as a Crime assigning thereto a punishment. That is the second step—to determine the Law.
III. They are to decide the Question of the Application of the Law to the Fact, and to determine whether that special statute shall be applied to the particular person who did the deed charged against him. That is the third step—to determine the Application of the Law.
Gentlemen, I shall speak a few words on each of these points, treating the matter in the most general way. By and by I shall apply these general doctrines to this special case.
I. The jury is to decide the Question of Fact; to answer, Did the accused do the deed alleged, at the time and place alleged, with the alleged purpose and producing the alleged result? The answer will be controlled by the Evidence of sworn witnesses, who depose under a special oath to "tell the truth, the whole truth, and nothing but the truth." Their Evidence is the Testimony as to the Fact,—the sole testimony; the jury is the ultimate arbiter to decide on the credibility of the evidence, part by part, and its value as a whole.
Sometimes it is an easy matter to answer this Question of Fact; sometimes exceedingly difficult. If there be doubts they must weigh for the accused, who is held innocent until proven guilty.
With us the theory that the jury is the exclusive judge of the Question of Fact is admitted on all sides. But in England it has often happened that the judge instructs the jury to "find the facts" so and so; that is—he undertakes to decide the Question of Fact. In libel cases it is very common for New England judges to undertake to determine what constitutes a libel, and to decide on the intentions of the accused; that is to decide the most important part of the complex and manifold Question of Fact. For it is as much a question of fact to determine what constitutes a libel, as what constitutes theft, the animus libellandi as much as the animus furandi. Sometimes juries have been found so lost to all sense of manhood, or so ignorant of their duties, as to submit to this judicial insolence and usurpation.
If the Jury decide the Question of Fact in favor of the accused, their inquiry ceases at that step, they return their verdict, "not guilty;" and the affair is ended. But if they find he did the deed as charged, then comes the next function of the Jury.