4. Then comes the critical period of the Trial by Jury. For the deputed judge seeks to enlarge his jurisdiction, to enforce his law, often against the customs and the consciences of the People, the jury, who only seek to enlarge Justice. He looks technically at the statute, the provisional Means of law, not at Justice the ultimate Purpose of law. To the "Country," the "Body of the People," or to the jury of inquest and of trial, he assumes not to suggest the law and its application, but absolutely to _dictate_ it to them. He claims the exclusive right to decide on the Law and its Application; the jury is only to determine the Fact--whether the accused did the deed charged or not. If the judge succeeds in this battle, then tyranny advances step by step; the jury is weakened; its original function is curtailed; certain classes of cases are taken from its jurisdiction; it becomes only the tool of the government, and finally is thrown aside. Popular law-making is gone; popular law-applying is also gone; local self-government disappears and one 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.