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.

20*

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.'

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.

1 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.

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 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 self-sufficiency, 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.2

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.

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 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 com

3 Even the Constitution of the French Republic of 1848 said, article 89:

"Conflicts of privileges and duties between the administrative and 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."

missions, 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 the statute 10th George IV. c. 7, and that if you feel any difficulty in the construction of the enactment, your proper course will be to consult your legal adviser. The secretary of state would not be justified in pronouncing an opinion on the question submitted to him; for if any doubt exists on the point, the decision of it must rest with the courts of law, and not with the government."

114

There is no country except ours and England where a similar answer would, or indeed could, have been given. Everywhere else it would have been

4 The letter is dated June 24, 1852. London Spectator, July 3, 1852.