adopted was discussed before that body, emphatically exclaimed, when all looked at him for his opinion as that of a great lawyer, that if he had ever imagined that the common law had not by the revolution become the law of the United States under the new government, he never would have drawn his sword in the contest. So dear to him were the great privileges which that law recognised and enforced."9

The civil law excels the common law in some points. Where the relations of property are concerned, it reasons clearly, and its language is admirable, but as to personal rights, the freedom of the citizen, the trial, the independence of the law, the principles of self-government, and the supremacy of the law, the common law is incomparably superior.10

Nor has the civil law remained without its influence, but it never superseded the common law. The common law remained a living system, and it assimilated to itself parts of the civil law as it assimilates any other thing. For instance, Judge Story, in one of his essays, says: The doctrine of bailments, too, was almost struck out at a single beat by Lord Holt," who had the good sense to incorporate into the English code that system which the text and the commentaries of the civil law had already built up on the Continent of Europe.12

9

The common law is all the time expanding and im

Page 292, vol. i. Life and Letters of Joseph Story.

10 The civil law, a law of wisdom but of servitude; the law of a great commercial empire, digested in the days of Justinian, and containing all the principles of justice and equity suited to the relations of men in society with each other; but a law under which the head of government was "Imperator Augustus, legibus solutus."-John Quincy Adams, seventh president of the United States, in a letter to Judge Story, page 20, vol. ii. Life and Letters of Judge Story.

"The case of Coggs v. Bernard, 2d ed. Raym. R. 909—note by Judge Story.

12 Story's Miscellaneous Writings, p. 224.

proving. I have given a very interesting instance of this fact in the law of whalers, which has developed itself among the hardy hunters of the Pacific,13 and has been acknowledged, when the proper occasion offered itself, in the courts of Massachusetts."

13 In a similar, though in a far less interesting way, I observe that a whole code has established itself for the extensive sale of books at auction in London. It is a real specimen of the genius of one part of common law. 14 See Article Common Law, in the Encyclopædia Americana. It was written, as many others on subjects of law, by my lamented friend, Judge Story. An opportunity has never offered itself to me publicly to acknowledge the great obligation under which I am to that distinguished jurist, for the assistance he most readily and cheerfully gave me in editing the Americana. I shall never forget the offer he made to contribute some articles, when I complained of my embarrassment as to getting proper articles on the main subjects of law, for my work intended for the general reader. Many of them were sent from Washington, while he was fully occupied with the important business of the supreme court. He himself made out the list of articles to be contributed by him, and I do not remember having been obliged to wait for one. The only condition this kind-hearted man made was, that I should not publish the fact that he had contributed the articles in the work until some period subsequent to their appearance. They have met with much approbation; and I hope I am not guilty of indiscretion, if I state here that another friend, a distinguished orator and lawyer, the Hon. William C. Preston, has repeatedly expressed his admiration of them.

The contributions of Judge Story to the Americana "comprise more than 120 pages, closely printed in double columns. But a higher interest than that growing out of their intrinsic worth belongs to them. They were labours dedicated purely to friendship, and illustrated a generosity which is as beautiful as it is rare." To these words, copied from p. 27, vol. ii. of Life and Letters of Joseph Story, where a list of all his contributions may be found, I may add that Judge Story made his offer at a time when he to whom it was made was known to very few persons in this country, and had but lately arrived here; and that he took at once the liveliest and most active interest in the whole enterprise, and contributed much to cheer on the stranger in his arduous task. I may be permitted to add, that the friendship then commenced steadily grew until death removed the excellent

man.

CHAPTER XIX.

INDEPENDENCE OF JUS, SELF-DEVELOPMENT OF LAW CONTINUED. ACCUSATORIAL AND INQUISITORIAL TRIALS. INDEPENDENCE OF THE JUDGE.

38. THE practice or usage of the administration of justice belongs of right to the development of that administration itself, avowedly so, and not merely by connivance.1

In countries in which this important principle is not acknowledged, certain changes, produced by "practice," were and are nevertheless winked at, and happily so, because legislation has neglected to make the necessary changes, and humanity will not be outraged. Thus, in German countries, practice had abolished the application of the torture and fearful punishments, demanded by positive law, long before they were abolished by law. But it was an exception, only demanded by 'common sense and by a general feeling of humanity.

The common law of the Anglican tribe, however, assigns the right of development to the courts. It is part and parcel of the common law. Innumerable instances and of almost daily occurrence might be given.

The following instance is given here simply because

Lord Mansfield, in a note to a Scottish judge, who had asked his advice as to the introduction of trial by jury in civil cases into Scotland, has this remark: "Great alterations in the course of the administration of justice ought to be sparingly made and by degrees, and rather by the court than by the legislature." Lord Campbell's Ch. Justices of England, vol. ii. p. 554.

N

the writer happens to think first of it, and because it seems to be an apt illustration.

When a court is directed to sit two weeks, and a jury, being summoned to act for the first week of the term, and having retired to consider of their verdict before midnight of Saturday, in the first week, return into court after midnight, and before daylight of Sunday, shall or shall not their verdict be received and published ? Shall it be rejected on the ground that Sunday is a dies nonjuridicas? This question was lately decided in South Carolina, not by applying for information to a "minister of justice," or "the emperor," as the civil law directs, but by itself, upon the principle of vital selfsufficiency, by inquiry into its own principles, and an examination of precedents in the whole range of English law, and of statute laws, if there were any exactly applying to the case under consideration."

This principle of self-development is important likewise with reference to a clear division of the judiciary from other branches of the public power. The law is not independent, and consequently the citizen not free, where aught else than the administration of justice belongs to the court, and where anything that belongs to the administration of justice is decided by any one but the courts; where things are decided by aught else than the natural course of law, and where, as has been stated, interpretation or application belongs to any one else than to the judiciary. Hence there ought to be no

2 The learned "opinion" of the court of errors was delivered by Judge Wardlaw, Hiller v. English, 4 Strokhart's Reports, Columbia, S. C. 1850. While I was writing this, the supreme court of Massachusetts decided that the "squeeze of the hand" of a dying person, unable to speak, but having been made aware of the fact that the pressure would be taken as an affirmative, may be taken as "a dying declaration," though with caution.—National Intelligencer, Washington, May 21, 1853.

Even the Constitution of the French Republic of 1848 said, article 89: "Conflicts of privileges and duties between the administrative and

pressure from without, either by a Stuart sending for the judges to tamper with them, or to ask them how they would decide a certain case if brought before them, or by a multitude assuming the name of the people. No judge ought to give his opinion before the practical case has come on and been discussed according to law, either to monarch, political party, or suitor. He is an integral part of the law, but only a part, which must not be disconnected from the law. There must not be what are called in France jugements administratifs, nor any extraordinary or exceptional courts, as has been mentioned; no judgments by extraordinary commissions, nor any decisions by the executive about the application of the law. The following instance is here given, not because the case is of itself important, but because it exhibits the principle with perfect clearness, and because it refers to a royal proclamation—an executive act. The English government had published in 1852 a proclamation against the public appearance of Roman Catholics in their religious vestments; and the well-known Father Newman asked the Secretary for the Home Department whether this royal proclamation must be considered as directed also against the appearing in "cassocks and cloaks" in the streets of Birmingham, where the Roman Catholics had thus been in the habit of appearing, "under legal advice," for full four years. The answer of Secretary Walpole, one of the Ministers, was this:

"I am to inform you, that her majesty's proclamation is directed against all violations of the 26th section of judicial authority, shall be regulated by a special tribunal composed of members of the court of cassation and of counsellors of state, to be appointed every three years, in equal number, by the respective bodies to which they belong. This tribunal shall be presided over by the minister of justice.'