ne homogeneous centralized tyranny
takes the place of the manifold Freedom of the people. So the trial by
jury faded out of all the South-Teutonic people, and even from many
regions of the German and Scandinavian North. But the Anglo-Saxon,
mixing his blood with Danes and Normans, his fierce kinsfolk of the
same family, has kept and improved this ancient institution. When King
or Parliament made wicked laws, or appointed corrupt and cruel men for
judges, the People have held this old ancestral shield between the
tyrant and his victim. Often cloven through or thrust aside, the Saxon
Briton never abandons this. The Puritan swam the Atlantic with this on
his arm--and now all the Anglo-Saxon tribe reverences this defence as
the Romans their twelve AONCILIA [Transcriber's Note: for 'AONCILIA'
read 'ANCILIA'; see Errata], the mythic shield which "fell from
Heaven."[113]

[Footnote 113: In this brief sketch I do not refer to the authorities,
but see, who will, the classic passages and proof-texts in the
well-known works of Grimm, Rogge, Biener, Michelsen, Moeser, Phillips,
Eichhorn, Maurer, and others.]

* * * * *

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 swo