Note 11 — Chapter II · CIVIL LAW.

It is to be noted, therefore, that the distinction between law and fact depends not on the person by whom, but on the manner in which, the matter is determined. Yet, although this is so, an illogical and careless usage of speech sometimes classes as questions of law all those which are for the decision of judges, irrespective of the existence or non-existence of legal principles for their determination.

It is worth notice that questions of fact, left to the determination of judges, tend to be transformed into questions of law, by the operation of judicial precedent. In the hands of judges decisions of fact beget principles of law, while the decisions of juries have no such law-creating efficacy. This is a matter which we shall consider at length in connection with the theory of precedent.

The distinction between law and fact, with special reference to trial by jury, is very fully considered by Thayer in his Preliminary Treatise on the Law of Evidence, pp. 183–262. See also Terry’s Leading Principles of Anglo-American Law, pp. 53–62.