the English, the Netherlanders, the Norwegians, the Swedes, the French, since the first revolution, the Germans in the earlier times, the Greeks and Romans-all have or had it, but it has nowhere been carried out with that consistency which we find in the Anglican penal trial.

The penal trial or procedure is quite as important as the criminal law itself, and with reference to protection, to liberty, to a pervading consciousness of manly rights, it is even more so. This is the chief reason which explains why the English, the freest nation of Europe, endured so long one of the worst and most unphilosophical bodies of criminal laws-so sanguinary in its character that the monstrosity came to pass, of calling all punishments not capital, secondary punishments, as if death were the current penal coin, and the rest of punishments merely the copper to make small "change." The English public accusatorial process, since the expulsion of the Stuarts, contained great guarantees of public security, even while those deficiencies yet existed which have been remedied of late, thanks to Sir Samuel Romilly and Sir Robert Peel. For a long time the English judge was the short bridge of fairness, such as even that was in earlier times, between the cruel treatment of prisoners before and after the trial, for it was only in 1774 that, at the earnest solicitation of Howard, parliament passed an act according to which jailors should be paid from public funds, and not, as theretofore, by fees of the prisoners, so that persons found not guilty should no longer be returned to prison, there to be kept until they could pay the jailor.2

We consider that the accusatorial procedure, carried out with consistency and good faith, requires that the accusation itself be not made by the executive, but upon information, by whom

1 Under the present absolutism, the trial is of course at the mercy of the executive, if the government has any interest in the matter; that is, punishments are inflicted without trial, and certain offences are punished summarily, although punishable with severe visitation of the law.

2 Such fearful inconsistencies are almost bewildering, but Woe to the penally indicted, was the word of the law on the whole continent. There are similarly glaring and cruel inconsistencies still existing in our proud

race.

soever made, through an act, which itself includes a guarantee against frivolous or oppressive accusation; for, as has been stated, trial itself, though followed by acquittal, is a hardship. Hence the importance of a grand jury. The Constitution of the United States ordains that "no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury." The French penal trial contains no such guarantee, but it has passed over into the fundamental laws of all our states. It is farther necessary that the whole trial be bona fide public and remain bona fide accusatorial. Hence there ought to be no secret examinations of the prisoner by the public prosecutor before the trial, the results of which are to be used at the trial, as this actually forms part of the French penal trial. On the other hand, the judge should remain, during the trial, mere judge, and never become inquirer or part of the prosecution, as this is likewise the case in France. Nor must the prisoner be asked to incriminate himself. All this belongs to the inquisitorial trial. The indictment must be clear, and the prosecuting officer must not be allowed to influence the jury by an address before the witnesses are examined, nor be allowed to bring in irrelevant matter. Lastly, full scope must be given to counsel for prisoner. In all these details most of the accusatorial trials, except the Anglican, are more or less, and some sadly deficient.

40. The independence of the law or administration of justice requires the independence of the judge. All the guarantees we have mentioned support the judge in his independence, and are requisite for it. He cannot be so without a distinct separation of the judiciary from the other branches of the government, without a living, self-sustaining jus, or without the accusatorial procedure. But more is necessary.

The appointment, the duration in office and the removal, must be so that the judge feels no dependence upon any one or anything, except the law itself. This ought to be the case. at least in as high a degree as it is possible for human wisdom to make it, or for human frailty to carry out. Where there

1 See "Federalist," No. lxxviii. and sequ.

is a pervading publicity in the political life, an independent bar and self-sustaining jus and administration of justice, with responsible ministers of the executive or a responsible chief magistrate, carefully limited in his power, there is probably as little danger of having bad judges, in giving the appointing power to the executive, especially if, as is the case with us, the senate must confirm the appointment, as in any other mode of appointing-indeed, far less danger than in those other modes which so far have been adopted in most of our states. Where peculiar fitness, peculiar skill and learning, and peculiar aptitude are requisite, it is for many psychological reasons the best to throw the responsibility of appointing, on a few or one, so that it be concentrated, provided these few or the one are made to feel by a proper organization that they are responsible to the public. It is unwise to give such appointments to irresponsible bodies, or to numerous bodies, which, according to the universal deception of a divided responsibility, are not apt to feel the requisite pressure of responsibility, and necessarily must act by groups or parties. If it be done, that hallowed character—a wise and upright judge, a type of humanity, which antiquity and modern times, paganism, mohametanism, the old and new testaments, and the most revered passages of civil history, have ever held as one of the highest and most worthy, soon fades away in the forgetfulness of one of the most important elements of all that is right, honorable, and civilized.1

1 Hard as the task of recording the following occurrence may be, it is better that the distemper be known, so that its cure may become possible. In the year 1857, after the Police Law had long been resisted by the mayor of the city of New York, and after the supreme court of the state had declared it constitutional, a convention of one of the largest parties was held in that state, in order to nominate proper candidates for the various offices to be filled by the approaching election. When the judge of the supreme court, who belonged to the same party, and who, on the bench, had decided for the constitutionality of the Police Law, came to be nominated, the nomination was opposed by the person who had been mayor of New York, in a public speech, on the avowed ground that judges had been made elective by the party, although he himself had been adverse to it; that therefore the judges had been drawn into the sphere of party poli

Laws ought to be the result of mutually modifying compromise; many appointments ought not. Election in such cases, by a large body, would lead to few efficient and truly serviceable ambassadors, and it has long been settled by that nation, which probably knows most about efficient appointment of university professors, the Germans, that their appointment by election, either by a numerous corporation or by the professors of a university themselves, ought to be discarded.1

If the appointment of judges ought not to be vested in legislatures, far less ought the people at large to burden themselves with the election of judges. The election of judges by the people themselves, which has now been established in many of the United States, is founded, in my opinion, on a radical error— the confusion of mistaking popular power alone for liberty, and the idea that the more the one is increased, in so much a higher degree will the other be enjoyed. As if all power, no matter what name be given to it, if it sways as power alone,

tics. The party had voted against the Police Law, and the judge had declared it constitutional, therefore he ought not to be nominated for reelection. The worst of the Stuarts never said anything worse concerning judges, and the painful account has been given here to show to the younger students of this work how fearfully rapid the decline of national sentiment is. Not more than ten years ago, such sentiments, publicly avowed, would have created universal abhorrence. May my younger readers remember that the curses pronounced on unjust judges extend to those who appoint judges known to be unjust, or adopt a system which must make them so; be they monarchs or the people-execrations and blessings make no distinction between them. That judges ought to judge by the law alone, has been often felt even by absolute monarchs. Frederic II. of Prussia, wrote a letter to the supreme court of his kingdom, enjoining the members to be faithful to their oath, and to do justice in spite of royal demand. The court ordered the letter to be framed and hung up in its hall. Louis XII. of France, in his edict of 1499, concerning the parliaments or high courts of justice, ordained that the law should always be followed, in spite of royal orders, which, as the ordinance says, Importunity may have wrung from the monarch.

1 The remarks of that wise philosopher, Sir William Hamilton, on the election of professors, in his minor works, apply, so far as I remember them now, with equal force, and probably even with greater strength, to the election of judges.

were not absolutism, and had not the inherent tendency, natural to all power whatever, to increase in absorbing strength! All despotic governments, whether the absolutism rests with an individual or the people, (meaning of course the majority,) strive to make the judiciary dependent upon themselves. Louis XIV. did it, Napoleon did it, and every absolute democracy has done it. All essential, practical liberty, like all sterling law itself, loves the light of common sense and plain experience. All absolutism, if indeed we except the mere brutal despotism of the sword, which despises every question of right, loves mysticism -the mysticism of some divine right. The monarchical absolutists wrap themselves in it, and the popular absolutists do the same. But there is no mystery about the word People. People means an aggregate of individuals to each of whom we deny any divine right, and to each of whom-I, you, and every one included-we justly ascribe frailties, failings, and the possibility of subordinating our judgment and virtue to passion and vice. Each one of them separately stands in need of moderating and protecting laws and constitutions, and all of them unitedly as much as the individual. Where the people are the first and chiefest source of all power, as is the case with us, the electing of judges, and especially their election for a limited time, is nothing less than an invasion of the necessary division of power, and the submission of the judiciary to the influence of the power-holder. It is therefore a diminution of liberty, for it is of the last importance to place the judge between the chief power and the party, and to protect him as the independent, not indeed as the despotic organ of the law.

It has been repeated by some who, not long ago, urged an elective judiciary, that an independent judiciary may be necessary in order to stand between the crown and the people, but that these two parties do not exist with us, and that therefore the judges ought to be dependent on the people, whose simple servants they are. Not to mention that the word people is used in this fallacious argument, as it is often in other cases, for a mysterious unit, which exists nowhere, it may suffice to say that the English judge does not stand between the crown