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a free jus. They frequently point to the fact that the most tyrannical acts of the Stuarts were founded upon real or presumed precedents, and that crown lawyers helped in the nefarious work; but they forget that British liberty was also rescued from despotism in a great measure by lawyers footing on the common law. Nothing gave to the popular party more strength than the precedent. On this particular subject, and on the nature of the precedent and the distinction of the legal from the executive precedent, as well as the eminent danger of regarding a mere fact as a precedent, I have fully treated in two other works. The present work does not permit me to enter more fully on the subject, or to repeat what I have there said. A truth of the weightiest importance it remains, that liberty and steady progression require the principle of the precedent in all spheres. It is one of the roots with which the tree of liberty fastens in the soil of real life, and through which it receives the sap of fresh existence. It is the weapon by which interference is warded off. The principle of the precedent is eminently philosophical.
Every great idea has its caricature, and the more unfailingly so, the more actively and practically the idea is working in real life. It is, therefore, natural that we should meet with caricatures of the precedent especially in England, as the English have been obliged to build up slowly and gradually that system
8 In my Ethics, and especially in my Principles of Legal and Political Interpretation and Construction.
of liberty and the independence of the law, which we have carried over to this country in a body, and which we have farther developed. When we read that at every opening of a new parliament a committee of the commons proceeds—lantern in handto the cellar under the house, to see no modern Guy Fawkes has collected combustibles there for the purpose of exploding parliament, because the thing had been done under James the First, we must acknowledge the procedure more pitiful, though far more innocent, than Alexander's dragging the body of the gallant Betis at the wheels of his chariot round the walls of Gaza, in order to follow the precedent of his progenitor Achilles. But this is caricature, and it is unphilosophical to point at the case, in order to prove the futility or mischief of the precedent. It is a proper subject for Punch to exterminate such farces, not for us to discuss them, any more than seriously treating the French publicist who, speaking of the intrigues of the legitimists, lately said that the elder Bourbons should remember that Louis Napoleon had created for himself a formidable precedent, in the spoliation of the Orleans branch. Nero's fiddle might at this rate legalize the sentimental burning of any capital.
The precedent has been called judge-made law, and as such deprecated. A more correct term would be court-evolved law. If the precedent is bad, let it be overruled by all means, or let the legislature regulate the matter by statute. Bacon's dictum, already quoted, that the worst of things is the apotheosis of error, applies to the bad precedent as
forcibly as to any other error, but the difficulty is not avoided by simply disavowing the precedent. Some one must decide. Now is it better that government or a "minister of justice” shall lay down a rule in the style of the civil law, or that the principle shall be decided in court by the whole organism established to give reality and practical life to justice, and in the natural course of things?
Continental jurists, when they compare the civil law with the common law, always commit this error, that they merely compare the contents of the two great systems of law on which I shall presently say a few words; whilst they invariably forget to add to the comparison this difference, that the civil law, where it now exists, has been introduced as a dead and foreign law; it is a matter of learned study, of antiquity; while common law is a living, vigorous law of a living people. It is this that constitutes more than half its excellence; and though we should have brought from England all else, our liberty, had we adopted the civil law, would have had a very precarious existence. Judge Story relates, “as perfectly well authenticated, that president (John) Adams, when he was vice-president of the United States, and Blount's conspiracy was before the senate, and the question whether the common law was to be 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 recognized and enforced.''
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. 42
9 Page 299, 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.
11 The case of Coggs v. Bernard, 2 ed. Raym. R. 909—note by judge Story.
12 Story's Miscellaneous Writings, p. 224.
The common law is all the time expanding and improving. 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,3 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 ever 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 labors dedicated purely to friendship, and illustrate a generosity which is as beautiful as it is rare." To these words, copied from p. 27, vol. ii. of Life and Letters of