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 comparisons 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; whereas the 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."

A common law, to be a real advantage to the people, must be a general law, and the judicial organism must contain that organic arrangement by which confusion and consequent insecurity is prevented. Without it the common law, as any other system of law, ceases proportionately to be a protection of the citizen; while the gradual generalization of the law, in the respective countries occupied by our race, as well as the steady extension and internal growth of international law, form one of the most important topics of that portion of our history which, for want of better terms, may be called the nationalization and uniformation of our race, in governments, languages, literature and law systems.

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.2

1 Page 299, vol. i., Life and Letters of Joseph Story.

2 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 young American reader is recommended to peruse a letter to a young friend, by Mr. Legaré, first published in the National Intelligencer, in which he urges the study of the Civil Law as one of the best means of mental legal training. That distinguished advocate told the author that whenever he was peculiarly complimented on an argument in civil suits

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 element. 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.2

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, and has been acknowledged, when the proper occasion offered itself, in the courts of Massachusetts."

3

or had gained a very difficult case, he could trace the reason to his having thoroughly studied the civil law in his younger days in Europe. Mr. Legaré also wrote an extensive article on Roman Law and Legislation in the Southern Review.

1 The case of Coggs vs. Bernard, 2 ed. Raym. R. 909-note by Judge Story.

2 Story's Miscellaneous Writings, p. 224.

3 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.

+ 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

The idea of a common law, with its own inherent vitality and independence is, as a matter of course, wholly disavowed by those who follow the French views, and who, as we have seen, strive above all for union of force, and who consider the essence of democracy to consist in absolute equality concentrated in absolute dominion, whether of the majority, or of one to whom the majority has transferred the absolute power-the democratic Cæsar. Those American writers, therefore, who take this Gallican or Rousseau's view of democracy, share with the French this hostility to the common law. It was rifest at the time of the French revolution, since which time I believe it may be affirmed that it has greatly subsided. Yet it subsists still, and is occasionally uttered with an energy which surprises those who believe that the severest lesson taught by the first half of the nineteenth century, is, perhaps, that absolute democracy has no connection with liberty.1

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 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 Judge Story 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, 1 Theory of Politics: An Inquiry into the Foundations of Governments, and the Causes and Progress of Political Revolutions. By Richard Hildreth, author of "The History of the United States of America," etc.; New York, 1853. In this work the reader will find the opinion maintained that the practical working of a democratic government in our own country is obstructed by several disturbing causes, of which the greatest is the common law-“ a scheme directly hostile to the spirit of democracy," and therefore, "under an enlightened democratical government, entirely out of place."

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 indulgence or 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 race, 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 of it, and because it seems to be an apt illustration.

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 Chief Justices of England, vol. ii. p. 554.