people, the decisions which have been made accordingly in the course of administering justice itself, the principles which reason demands and practice applies to ever varying circumstances, and the administration of justice which has developed itself gradually and steadily. It requires, therefore, selfinterpretation or interpretation by the judiciary itself, the principle of the precedent and "practice” acknowledged as of an authoritative character, and not merely winked at; and, in general, it requires the non-interference of other branches of the government or any dictating power. The Roman law itself consisted of these elements and was developed in this manner so long as it was a living thing.

The common law acknowledges statute or enacted law in the broadest sense, but it retains its own vitality even with reference to the lex scripta in this, that it decides by its own organism and upon its own principles, on the interpretation of the statute when applied to concrete and complex cases. All that is pronounced in human language requires constant interpretation, except mathematics. Even if the English law should be codified, as at this moment the question of codification has been brought before parliament, the living common law would lose as little of its own inherent vigor and expansiveness, as it has lost in Massachusetts or New York by

3 Hence their own peculiar power and their peculiar narrowness. I have treated of this subject and the unceasing necessity of interpretation at the beginning of my Principles of Interpretation and Construction in Law and Politics, Boston, 1839.

the "Revised Statutes" of those states. The difference between such a code in England and the codes which have been promulgated on the continent of Europe, would always consist in this, that the English digest would have a retrospective character. It would be the garnering of a crop; but the living orchard is expected to bear new fruits, while it was the pronounced intention of the promulgators of continental codices to estop all interpretation, for which end it was ordained, analogously to the rule of the civil law, that recourse should be had in all doubtful cases to the legislator, that is to the emperor or king, or to the officer appointed by the monarch for that purpose.

4 I cannot avoid referring again to my work on Hermeneutics or Principles of Interpretation and Construction, where this subject is repeatedly treated of, as it forms one of vital importance in all law, liberty, politics and self-government. I have given there instances of prohibited commenting and even lecturing, in the universities, on the codes. This is the pervading spirit of the civil law as it was adopted by modern nations. It is a necessary and combined consequence of the principle contained in the Justinian code itself, namely, that the emperor is the executive, legislator and all; that, therefore, no self-development of the law, such as had indeed produced the Roman jus, could any longer be allowed; and of the fact that the Roman law was adopted as a finished syster from abroad. The principle of non-interpretation by th prevails for the same reasons in the canon law. Ig

necessary i the Justin legislator and such as hal allowed; and ished syste by the courts ve the foll

is almost always taken by philosoph short with theory and do not add the r siderations of the statesman and frien liberty, when he proposed the followin the constitution he drew up for Sou "Since multiplicity of comments as w have great inconvenience, and serve on and perplex; all manner of comment tions, on any part of these fundamental

duced, and the common law principle is not ac these:

"Ad vitandam præterea perversionem et confus posset, si unicuique liceret, prout ei liberet, in commentarios et interpretationes suas edere, Apos inhibemus omnibus-ne quis sine auctoritate no commentarios, glossas, admonitiones, scholia, ull tionis genus super ipsius Concilii decretis, quocun aut quidquam quocunque nomine, etiam sub præ cretorum corroberationis, aut executionis, aliove statuere."

The papal bull goes on declaring that if there be the decrees the doubter shall ascend to the place has appointed, viz. the apostolic see, and that th the doubts.

5 Life and Letters of Judge Story, vol. i. p. 448

or on any part of the common or statute laws of Carolina, are absolutely prohibited."

116

This is quite as strong as the Bavarian code or the pope's decree, mentioned in a previous. note. The fact is simply this: on the one hand analyzing and systematizing is one of the very parts of humanity, and development, growth, assimilation and adaptation are the very elements of life. Man has to lay out his road between the two, and of course will incline more to the one or the other according to the bias of his mind or the general course of reasoning common to his peculiar science or profession.

If interpretation, which takes place when the general rule is applied to a concrete case, is not left to the law itself, the law ceases to have its own life, and the citizen ceases strictly to live under the law. He lives under the dictating or interfering power, because each practical case, that is each time that the rule passes over from an abstraction into a reality, is subject to that power, be it, as it generally is, the executive, or the legislative. This does not exclude what is called authentic interpretation, or interpretation by the legislature itself, for future cases. Accurately speaking, authentic interpretation is no interpretation, but rather additional legislation. We would distinctly exclude, however, retrospective authentic interpretation; for this amounts, indeed, to an application of the law by the legislature, and is incompatible with a true government of law. It is obvious that the same holds with reference to all

6 Locke's Constitution for South Carolina, 1669, paragraph 80.

power, whether monarchical or popular. The law must be the lord and our "earthly god," and not a man, a set of men, or the multitude.

As to the principle of the precedent, it is one of the elements of all development, contradistinguished to dictation and mere command. Everything that is a progressive continuum requires the precedent. A precedent in law is an ascertained principle applied to a new class of cases, which in the variety of practical life has offered itself. It rests on law and reason, which is law itself. It is not absolute. It does not possess binding power merely as a fact, or as an occurrence. If that were the case, Anaximander would have been right when he said that Themis was standing by the throne of Alexander to stamp with right and justice whatever he did. Nor is it unchangeable. A precedent can be overruled. But again, it must be done by the law itself, and that which upsets the precedent cannot otherwise than become, in the independent life of the law, precedent in turn."

The continental lawyers have a great fear of the precedent, but they forget that their almost worshipped Roman law itself was built up by precedent. Indeed they do not comprehend the nature of the precedent, its origin and its power, as an element of

7 Dr. Greenleaf published, in Portland, Maine, 1821, A Collection of Cases overruled, doubted, or limited in their Application, taken from American and English Reports. Several subsequent editions have been published, with additions, for which Dr. Greenleaf however has declared himself irresponsible.