are superior to him in talent, experience, learning and character. None but such inferior men can be

obtained for an illiberal salary, according to the universal law that the laborer is worthy of his hire, and that he will seek to obtain this hire in the great market of labor and talent. Even the common consideration that every private individual expects that his affairs will be served best by an efficient clerk for a liberal hire, and not by a poorly paid hireling whose incapacity can command no higher wages, should induce us to pay judges, as indeed every one who must be paid, and is worthy of being paid at all, with a liberality which equally avoids lavishness and penury. Liberal salaries are essential to a popular government.

To make judges independent or remove from them the possible suspicion of dependence, it has been ordered in the constitution of the United States that the "judges of the supreme and inferior courts shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." This principle has been adopted in most, if not all our constitutions; many have added that it shall not be increased either, during continuance in office.14 But what is the possible dependence feared from an increase or decrease of salary compared to that unavoidable dependence

14 When it has become necessary to increase the salary of judges, the difficulty has sometimes been avoided by the judges resigning, upon the understanding that, after the legislature shall have increased the salary, they should be reappointed.

which must be the consequence of short terms of office, and of appointment by election? It will hardly be necessary to mention that a fixed salary, independent of fees and fines, is indispensable for the independence of the judge and the protection of the citizen. Even common decency requires it. Don Miguel of Portugal made the judges, who tried political offenders, depend upon part of the fines and confiscations they decreed, and we know what was done under James the Second and lord Jeffreys. The hounds, receiving part of the hunted game, suggest themselves at once.

With a view of making the judiciary independent, the removal of judges from office has been justly taken out of the hands of the executive. The immovability of judges is an essential element of civil liberty. Neither the executive nor the sovereign himself ought to have the power of removing a judge. He can therefore be removed by impeachment only, and this requires, according to the constitution of the United States, two-thirds of the votes of the senate. In some states they can be removed by two-thirds of the whole legislature.1

15 It seems to me a strange anomaly that, as it would seem by a late resolution of the United States senate, the president has authority to remove judges in the "territories."

CHAPTER XX.

INDEPENDENCE OF JUS, CONTINUED. TRIAL BY JURY. THE ADVOCATE.

41. THE judge cannot occupy a sufficiently independent position between the parties by the accusatorial proceeding alone. If there is not what may be called a division of the judicial labor, separating the finding of guilt or innocence, or of the facts from the presiding over the whole trial and the application as well as the pronouncing and expounding of the law, the judge must still be exposed to taking sides in the trial. This division of judicial labor is obtained by the institution of the jury. This, it seems to me, is one of the most essential advantages of this comprehensive, self-grown institution. It is likewise a guarantee of liberty in giving the people a participation in the administration of justice, without the ruin and horrors of an administration of justice by a multitude, as at Athens. The jury is moreover the best school of the citizen, both in teaching him his rights and to protect them, and of practically teaching him the necessity of law and government. The jury, in this respect, is eminently conservative. In this, as in many other respects, it is necessary

that the institution of the jury exist for the civil trial as well as for the penal, and not, as in many other countries, for the latter only. The necessity of the jury does not militate against the arbitration courts, which have proved a great blessing in all countries in which they have been properly established, or against certain courts of minor importance which may be advantageously conducted without a jury.'

The results of trial by jury have occasionally been such that even in England and here, voices have been raised against it, not indeed very loud or by weighty authorities. Men feel the existing evil only; not those that would result a hundredfold from an opposite state of things. Nor are those, who feel irritated at some results of the trial by jury, acquainted with the operation of trials without jury. So is occasionally the publicity of trials highly inconvenient; yet should we desire secret trials? Liberty, as we conceive it, can no more exist without the trial by jury-that "buttress of liberty," as Chatham called it, and our ancestors worshipped it—than without the representative system.

2

The Declaration of Independence specifies, as one of the reasons why this country was justified in severing itself from the mother country, that Americans have been "deprived in many cases of the benefits of trial by jury."

1 For the history of this institution in general, the reader is referred to William Forsyth, History of the Trial by Jury, London, 1852.

2 Lord Erskine, when he was raised to the peerage, adopted the words Trial by Jury, as the scroll of his coat of arms.

It may not be improper here to enumerate briefly all the advantages of so great an institution, whether they are directly connected with liberty or not.

The trial by jury, then, divides the labor of the administration of justice, and permits each part quietly to find the truth in the sphere assigned to it;

It allows the judge to stand, as the independent organ of the law, not only above the parties, hostilely arraigned against each other, but also above the whole concrete case before the court;

It enables plain common and practical sense properly to admix itself with keen professional and scientific distinction, in each single case, and thus prevents the effect of that disposition to sacrifice reality to attenuated theory, to which every individual is liable in his own profession and peculiar pursuit the worship of the means, forgetting the end;3

3 And this is the reason that nearly all great reforms have worked their way from without, and from the non-professional to the professional, or from below upward.

I beg to arrest the reader's attention for a moment on this subject.

In all civilized countries it is acknowledged that there are some important cases, which on the one hand it is necessary to decide, for Mine and Thine are involved, and which, on the other hand, are not of a character that the lines of demarcation can be drawn with absolute distinctness, in a manner which would make it easy to apply the law; e. g. the cases which relate to the imitation of a part of a work of art, of a pattern, or the question of a bona fide extract from an author's work, which, according to the Prussian copyright law, were to be decided by a jury of "experts," long before the general introduction of the jury in that country. A similar case