rn 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.

II. The Jury are to DECIDE THE QUESTION OF LAW. Is there a statute or
custom denouncing a penalty on that special deed? is the statute
constitutional? To determine this matter, there are three sources of
evidence external to their own knowledge.

1. _The Testimony of the Government's Attorney._ The Government itself
is his client, and he gives such a statement of the law as suits the
special purposes of the rulers and his own private and particular
interest, selects such statutes, customs, and decisions, as will serve
this purpose, and declares, Such is the law. Nay, he makes inferences
from the law, and thereby infers new customs, and constructs new
statutes, invents new crimes. He treats the law as freely as he treats
the facts--making the most that is possible against the party accused.
You have seen already what tricks Government attorneys have played,
how they pervert an