Front Page Titles (by Subject) chapter xviii.: independence of the judiciary.—the law jus, common law. - On Civil Liberty and Self-Government
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
chapter xviii.: independence of the judiciary.—the law jus, common law. - Francis Lieber, On Civil Liberty and Self-Government 
On Civil Liberty and Self-Government, 3rd revised edition, ed. Theodore D. Woolsey (Philadelphia: J.B. Lippincott & Co., 1883).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
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 or the freedom of the law—of jus and justice.1 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 appertaining to politics and public matters, chiefly for 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 Loi and Droit, in German by Gesetz 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, in a manner not wholly dissimilar, the living common languages of many tribes, or dried up the sources of expansive and formative life contained in them.
The independence of the judges 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 Independence of the Law.1
The independence of the law, or the freedom of the 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 interpretation of the statute when applied to concrete and complex cases. All that is pronounced in human language requires constant interpretation, except mathematics.1 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 vigor 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 prevent 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.1
Judge Story has very clearly expressed what a code, with reference to the English law, ought to be. He says: “Notwithstanding all that is said to the contrary, I am a decided friend to codification, so as to fix in a text the law as it is, and ought to be, as far as it has gone, and leave new cases to furnish new doctrines as they arise and reduce these again at distant intervals into the text.”1
Locke, on the other hand, expresses the view which is almost always taken by philosophers who stop short with theory and do not add the necessary considerations of the statesman and friend of practical liberty, when he proposed the following passage in the constitution he drew up for South Carolina: “Since multiplicity of comments as well as of laws have great inconvenience, and serve only to obscure and perplex, all manner of comments and expositions, on any part of these fundamental constitutions, or on any part of the common or statute laws of Carolina, are absolutely “prohibited.”2
This is quite as strong as the Bavarian code or the pope's decree, mentioned in a previous note. The fact is simply this: on the one hand analyzing and systematizing are attributes of humanity, and development, growth, assimilation, and adaptation are the very elements of life. Man has to lay out his road between the two, and will, naturally, incline more to the one or the other according to the bias of his mind or the general course of reasoning common to his peculiar science or profession.
If interpretation, which takes place when the general rule is applied to a real case, is not left to the law itself, the law ceases to have its own life, and the citizen ceases strictly to live under the law. He lives under the dictating or interfering power, because each practical case, that is, each time that the rule passes over from an abstraction into a reality, is subject to that power, be it, as it generally is, the executive or the legislative. This does not exclude what is called authentic interpretation, or interpretation by the legislature itself, for future cases. Accurately speaking, authentic interpretation is no interpretation, but rather additional legislation. We would distinctly exclude, however, retrospective authentic interpretation; for this amounts, indeed, to an application of the law by the legislature, and is incompatible with a true government of law. It is obvious that the same holds with reference to all power, whether monarchical or popular. The law must be the lord and our “earthly god,” and not a man, a set of men, or the multitude.
As to the principle of the precedent, it is one of the elements of all development, contradistinguished from dictation and mere command. Everything that is a progressive continuum requires the precedent. A precedent in law is an ascertained principle applied to a new class of cases, which in the variety of practical life has offered itself. It rests on law and reason, which is law itself. It is not absolute. It does not possess binding power merely as a fact, or as an occurrence. If that were the case, Anaxarchus would have been right in telling Alexander that as Dike was represented as seated by the side of Zeus to show that all his decrees had the quality of justice, so a great king's doings must be considered to be right by himself and by other men.1 Nor is a precedent unchangeable. It can be overruled. But, again, it must be done by the law itself, and that which upsets the precedent cannot otherwise than become, in the independent life of the law, precedent in turn.2
The continental lawyers have a great fear of the precedent, but they forget that their almost worshipped Roman law itself was built up by precedent. Indeed, they do not comprehend the nature of the precedent, its origin, and its power, as an element of a free jus. They frequently point to the fact that the most tyrannical acts of the Stuarts were founded upon real or presumed precedents, and that crown lawyers helped in the nefarious work; but they forget that British liberty was also rescued from despotism in a great measure by lawyers resting on the common law. Nothing gave to the popular party more strength than the precedent On this particular subject, and on the nature of the precedent and the distinction of the legal from the executive precedent, as well as the eminent danger of regarding a mere fact as a precedent, I have fully treated in two other works.3 The present work does not permit me to enter more fully on the subject, or to repeat what I have there said. A truth of the weightiest importance it remains, that liberty and steady progression require the principle of the precedent in all spheres. It is one of the roots with which the tree of liberty fastens in the soil of real life, and through which it receives the sap of fresh existence. It is the weapon by which interference is warded off. The principle of the precedent is eminently philosophical. The English constitution would not have developed itself without it. What is called the English constitution consists of the fundamentals of the British polity laid down in custom, precedent, decisions, and statutes; and the common law in it is a far greater portion than the statute law. The English constitution is chiefly a common law constitution, and this reflex of a continuous society in a continuous law is more truly “philosophical,” than the theoretic and systematic but lifeless constitutions of recent France.
Every idea has its caricature, and the more unfailingly so the more actively and practically the idea is working in real life. It is, therefore, natural that we should meet with caricatures of the precedent especially in England, as the English have been obliged to build up slowly and gradually that system of liberty and the independence of the law, which we have carried over to this country in a body, and which we have farther developed. When we read that at every opening of a new parliament a committee of the commons proceeds, lantern in hand, to the cellar under the house, to see whether no modern Guy Fawkes has collected combustibles there for the purpose of exploding parliament, because the thing had been done under James I., we must acknowledge the procedure more pitiful, though far more innocent, than Alexander's dragging the body of the gallant Batis at the wheels of his chariot round the walls of Gaza, in order to follow the precedent of his progenitor Achilles. But this is caricature, and it is un-philosophical 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 to treat seriously 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.”1
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 are 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, forms 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.1
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 heat by Lord Holt,2 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.”1
The common law is all the time expanding and improving. I have given a very interesting instance of this feet, in the law of whalers, which has developed itself among the hardy hunters of the Pacific,2 and has been acknowledged, when the proper occasion offered itself, in the courts of Massachusetts.3
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
[1.]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, some years later, seems to have felt the same want, adopting in his work on the Elements of Morality, including Polity, London, 1845, the word jural, first used in the Political Ethics, where a note explains why I was compelled to form the word.
[1.]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 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 connection, jus, not a single jus, but the body of rights and usages, laws and lega practice, of a people.
[1.]Hence the peculiar power and the peculiar narrowness of the branch. 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.
[1.]I cannot avoid referring again to my work on the Principles of Interpretation and Construction in Law and Politics, where this subject is repeatedly treated of, as it forms one of vital importance in all law, liberty, politics, and self-government. 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 non-interpretation by the courts prevails for the same reasons in the canon law. I give the following as an interesting instance:
[1.]Life and Letters of Judge Story, vol. i. p. 448. The necessity of proper codification has appeared more and more clearly to the English mind, since this work was first published, and many preparatory steps have been taken. In the month of August Lord Chancellor Cranworth presented a report to the lords, of which he said that, in the first place, a list had been prepared of all the statutes not obsolete, nor for temporary and local but for general purposes, which have been passed since Magna Charta. The number is 16,000; but, taking away 5300 repealed or virtually repealed, a number besides those which relate to Scotland or Ireland exclusively, and 3900 which the commissioners have not determined on, there remain, say 2500 acts for consolidation; and these have been analyzed. As there is some difference of opinion as to the best mode of consolidation, specimens on different principles had been prepared; and one of these, a digest of the law of distress for rent, was in the report. Mr. Coode, he says, has completed a digest of the poor-laws. What Lord Cranworth then proposed was to see whether the whole of the provisions relating to one subject might not be put into one statute. Each of the commissioners had been requested to take a subject and frame a scheme of consolidation with that view.
[2.]Locke's Constitution or South Carolina, 1669, paragraph 80.
[1.]Arrian, Anab., iv. § 10, 7.
[2.]Dr. Greenleaf published, in Portland, Maine, 1821, A Collection of Cases Overruled, Doubted, or Limited in their Application, taken from American and English Reports. Several subsequent editions have been published, with additions, for which Dr. Greenleaf, however, has declared himself irresponsible.
[3.]In my Ethics, and especially in my Principles of Legal and Political Interpretation and Construction.
[1.]Page 299, vol. i., Life and Letters of Joseph Story.
[1.]“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 tinder 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.
[2.]The case of Coggs vs. Bernard, 2d ed. Raym. R. 909—note by Judge Story.
[1.]Story's Miscellaneous Writings, p. 224
[2.]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.
[3.]See article Common Law, in the Encyclopædia Americana. It was written, as many others on subjects of law, by m) 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 another friend, a distinguished orator and lawyer, the Hon. William C. Preston, has repeatedly expressed his admiration of them.
[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.”