States, one of the most hostile things now at work in our country to a perfect government of law. In the only case, therefore, in which we have a real veto power, we ought greatly to modify it.15

15 I shall append a paper on the subject of pardoning, a subject which has become all-important in the United States.

CHAPTER XVIII.

INDEPENDENCE OF THE JUDICIARY, THE LAW, JUS, COMMON LAW.

37. ONE of the main stays of civil liberty, and quite as important as the representative principle, is that of which the independence of the judiciary forms a part, and which we shall call the independence of the freedom of the law-of jus and justice.' It is a great element of civil liberty, and part of a real government of law, which in its totality has been developed by the Anglican tribe alone. It is this portion of freemen only, on the face of the earth, which enjoys it in its entirety.

In the present case I do not take the term Law in the sense in which it was used when we treated of the supremacy of the law. I apply it now to everything that may be said to belong to the wide department of justice. I use it in the sense in which the Anglican lawyer takes it when he says that an opinion, or decision, or act, is or is not law or good law-an adaptation of the word peculiar to the English language. It is not the author's fault that Law must be taken in one and the same essay, in which philosophical accuracy may be expected, in two different meanings.

The word Law has obtained this peculiar meaning in our language, otherwise so discriminating in terms ap

The lack of a proper word for jus, in the English language, induced me to use it on a few occasions in the Political Ethics. The Rev. Dr. W. Whewell seems to have felt the same want, and uses it to designate a whole division of his work on the Elements of Morality, including Polity, (London, 1845.) as he also adopted the word jural first used in the Political Ethics.

pertaining to politics and public matters, chiefly from two reasons. The first is the serious inconvenience, arising from the fact that our tongue has not two terms for the two very distinct ideas which in Latin are designated by Lex and Jus, in French by Lois and Droit, in German by Gesez and Recht; the second is the fact, of which every Anglican may be proud, that the English jus has developed itself as an independent organism, and continues to do so with undiminished vitality. It is based upon a common law, acknowledged to be above the crown in England, and to be the broad basis of all our own constitutions-a body of law and "practice," in the administration of justice, which has never been deadened by the superinduction of a foreign and closed law, as was the case with the common law of those nations that received the civil law in a body as authority for all unsettled cases. The superinduction of the Latin language extinguished the living common languages of many tribes, or dried up the sources of expansive and formative life contained in them.

The independence of the judge is a term happily of old standing with all political philosophers who have written in our language; but it will be seen that the independence of the judiciary, by which is meant generally a position of the judge independent of the executive or legislative, and chiefly his appointment for life or immovability by the executive, and frequently the prohibition of a decrease or increase of his salary after his appointment has taken place-that this independence of the judiciary forms but a part of what I have been obliged to call the far more comprehensive Independer.ce of the Law.2

2 When therefore I published a small work on this subject, during my visit to Germany, in 1848, I called it Die Unabhängigkeit der Justiz oder die

The independence of the law, or the freedom of jus, in the fullest and widest sense, requires a living common law, a clear division of the judiciary from other powers, the public accusatorial process, the independence of the judge, the trial by jury, and an independent position of the advocate. These subjects will be treated in the order in which they have been enumerated here.

A living common law is, as has been indicated, like a living common language, like a living common architecture, like a living common literature. It has the principle of its own organic vitality, and of formative as well as assimilative expansion within itself. It consists in the customs and usages of the people, the decisions which have been made accordingly in the course of administering justice itself, the principles which reason demands and practice applies to ever varying circumstances, and the administration of justice which has developed itself gradually and steadily. It requires, therefore, self-interpretation or interpretation by the judiciary itself, the principle of the precedent and

practice" acknowledged as of an authoritative character, and not merely winked at; and, in general, it requires the non-interference of other branches of the government or any dictating power. The Roman law itself consisted of these elements, and was developed in this manner so long as it was a living thing.

The common law acknowledges statute or enacted law in the broadest sense, but it retains its own vitality even with reference to the lex scripta in this, that it decides. by its own organism and upon its own principles, on the

Freiheit des Rechts, Heidelberg, 1848. Literally translated this would be, "The Independence of Justice and Freedom of the Law." Justiz in German, however, does not mean the virtue justice, but the administration of justice; and Recht means in this connexion, jus, not a single jus, but the body of rights and usages, laws and legal practice of a people.

3

interpretation of the statute when applied to concrete and complex cases. All that is pronounced in human language requires constant interpretation, except mathematics. Even if the English law should be codified, as at this moment the question of codification has been brought before parliament, the living common law would lose as little of its own inherent vigour and expansiveness, as it has lost in Massachusetts or New York by the "Revised Statutes" of those states. The difference between such a code in England and the codes which have been promulgated on the Continent of Europe, would always consist in this, that the English digest would have a retrospective character. It would be the garnering of a crop; but the living orchard is expected to bear new fruits, while it was the pronounced intention of the promulgators of continental codices to estop all interpretation, for which end it was ordained, analogously to the rule of the civil law, that recourse should be had in all doubtful cases to the legislator, that is, to the emperor or king, or to the officer appointed by the monarch for that purpose.*

3 Hence their own peculiar power and their peculiar narrowness. I have treated of this subject, and the unceasing necessity of interpretation, at the beginning of my Principles of Interpretation and Construction in Law and Politics, Boston, 1839.

4

* I cannot avoid referring again to my work on Hermeneutics, or Principles of Interpretation and Construction, where this subject is repeatedly treated of, as it forms one of vital importance in all law, liberty, politics, and selfgovernment. I have given there instances of prohibited commenting and even lecturing, in the universities, on the codes. This is the pervading spirit of the civil law, as it was adopted by modern nations. It is a necessary and combined consequence of the principle contained in the Justinian code itself, namely, that the emperor is the executive, legislator, and all; that, therefore, no self-development of the law, such as had indeed produced the Roman jus, could any longer be allowed; and of the fact that the Roman law was adopted as a finished system from abroad. The principle of noninterpretation by the courts prevails for the same reasons in the canon law. I give the following as an interesting instance :

:

The bull of Pope Pius IV., 26th January, 1564, sanctioning and proclaiming the canons and decrees of the Council of Trent, contains also the prohibition