The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction to the Third Edition.
• On Civil Liberty and Self-government.
• Chapter I.: Introductory.
• Chapter II.: Definitions of Liberty.
• Chapter III.: The Meaning of Civil Liberty.
• Chapter IV.: Ancient and Modern Liberty.—Ancient, Medieval, and Modern States.
• Chapter V.: Anglican Liberty.
• Chapter VI.: National Independence—Personal Liberty.
• Chapter VII.: Bail.—Penal Trial.
• Chapter VIII.: High Treason.
• Chapter IX.: Communion.—Locomotion, Emigration.
• Chapter X.: Liberty of Conscience.—Property:—Supremacy of the Law.
• Chapter XI.: Quartering Soldiers.—The Army.
• Chapter XII.: Petition.—Association.
• Chapter XIII.: Publicity.
• Chapter XIV.: Supremacy of the Law.—Taxation.—Division of Power.
• Chapter XV.: Responsible Ministers.—Courts Declaring Laws Unconstitutional.—Representative Government.
• Chapter XVI.: Representative Government, Continued.—Basis of Property.—Direct and Indirect Elections.
• Chapter XVII.: Parliamentary Law and Usage.—The Speaker.—Two Houses.—The Veto.
• Chapter XVIII.: Independence of the Judiciary.—The Law Jus, Common Law.
• Chapter XIX.: Independence of Jus, Self-development of Law, Continued.—Accusatorial and Inquisitorial Trials.—Independence of the Judge.
• Chapter XX.: Independence of Jus, Continued.—Trial By Jury.—The Advocate.
• Chapter XXI.: Self—Government.
• Chapter XXII.: American Liberty.
• Chapter XXIII.: In What Civil Liberty Consists, Proved By Contraries.
• Chapter XXIV.: Gallican Liberty.—Spreading of Liberty.
• Chapter XXV.: The Institution.—Its Definition.—Its Power For Good and Evil.
• Chapter XXVI.: The Institution, Continued.—Institutional Liberty.—Institutional Local Self-government.
• Chapter XXVII.: Effects and Uses of Institutional Self-government.
• Chapter XXVIII.: Dangers and Inconveniences of Institutional Self-government.
• Chapter XXIX.: Advantages of Institutional Government, Farther Considered.
• Chapter XXX.: Institutional Government the Only Government Which Prevents the Growth of Too Much Power.—Liberty, Wealth, and Longevity of States.
• Chapter XXXI.: Insecurity Op Uninstitutional Governments.—Unorganized Inarticulated Popular Power.
• Chapter XXXII.: Imperatorial Sovereignty.
• Chapter XXXIII.: Imperatorial Sovereignty, Continued.—Its Origin and Character Examined.
• Chapter XXXIV.: Centralization.—Influence Of Capital Cities.
• Chapter XXXV.: Vox Populi Vox Dei.
• Appendix.
• Appendix I.: A Paper On Elections, Election Statistics, and General Votes of Yes Or No.
• Appendix II.: A Paper On the Abuse of the Pardoning Power.
• Appendix III.: A Paper On Subjects Connected With the Inquisitorial Trial and the Laws of Evidence.
• Appendix IV.: Magna Charta of King John, Fifteenth Day of June, In the Seventeenth Year of the King's Reign, A.d. 1215.
• Appendix V.: The Petition of Right. 1
• Appendix VI.: An Act For the Better Securing the Liberty of the Subject, and For Prevention of Imprisonments Beyond the Seas, Commonly Called “the Habeas Corpus Act.” 1
• Appendix VII.: Bill of Rights, Passed 1 William and Mary, Sess. 2, Ch. 2, 1689.
• Appendix VIII.: A Declaration By the Representatives of the United States of America In Congress Assembled.
• Appendix IX.: Articles of Confederation and Perpetual Union Between the States.
• Appendix X.: Constitution of the United States of America.
• Appendix XI.: The French Constitution, Adopted and Proclaimed On the Twenty-fourth of June 1793. the First Republican Constitution
• Declarations of the Rights of Man and of Citizens.
• Constitution of the Twenty-fourth of June, 1793.
• Appendix XII.: French Charter of Louis XVIII. And That Adopted In the Year 1830.
• Appendix XIII.: Constitution of the French Republic. Adopted November, 1848.
• Appendix XIV.: The Present Constitution of France.
• Appendix XV.: Report of the French Senatorial Committee On the Petitions to Change the Republic Into an Empire, In November, 1852, 1 and the Senatus-consultum Adopted In Conformity With It.
• Appendix XVI.: Letter of the French Minister of the Interior, Mr. De Morny, Addressed to the Prefects of the Deparments In the Year 1852.

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.

When a court is directed to sit two weeks, and a jury, being summoned to act for the first week of the term, and having retired to consider their verdict before midnight of Saturday, in the first week, return into court after midnight, and before daylight of Sunday, shall or shall not their verdict be received and published? Shall it be rejected on the ground that Sunday is a dies nonjuridicus? This question was lately decided in South Carolina, not by applying for information to a “minister of justice,” or “the emperor,” as the civil law directs, but by itself, upon the principle of vital self-sufficiency, by inquiry into its own principles, and an examination of precedents in the whole range of English law, and of statute laws, if there were any exactly applying to the case under consideration.1

This principle of self-development is important likewise with reference to a clear division of the judiciary from other branches of the public power. The law is not independent, and consequently the citizen not free, where aught else than the administration of justice belongs to the court, and where anything that belongs to the administration of justice is decided by any one but the courts; where things are decided by aught else than the natural course of law, and where, as has been stated, interpretation or application belongs to any one else than to the judiciary.2 Hence there ought to be no pressure from without, either by a Stuart sending for the judges to tamper with them, or to ask them how they would decide a certain, case if brought before them, or by a multitude assuming the name of the people. No judge ought to give his opinion before the practical case has come on and been discussed according to law, either to monarch, political party, or suitor. He is an integral part of the law, but only a part, which must not be disconnected from the law. There must not be what are called in France jugements administratifs, nor any extraordinary or exceptional courts, as has been mentioned; no judgments by extraordinary commissions, nor any decisions by the executive regarding the application of the law. The following instance is here given, not because the case is of itself important, but because it exhibits the principle with perfect clearness, and because it refers to a royal proclamation—an executive act. The English government had published in 1852 a proclamation against the public appearance of Roman Catholics in their religious vestments; and the well-known Father Newman asked the secretary for the home department whether this royal proclamation must be considered as directed also against the wearing of “cassocks and cloaks” in the streets of Birmingham, where the Roman Catholics had been in the habit of appearing thus, “under legal advice,” for full four years. The answer of secretary Walpole, one of the ministers, was this:

“I am to inform you, that her majesty's proclamation is directed against all violations of the 26th section of the statute 10th George IV. c. 7, and that if you feel any difficulty in the construction of the enactment, your proper course will be to consult your legal adviser. The secretary of state would not be justified in pronouncing an opinion on the question submitted to him; for if any doubt exists on the point, the decision of it must rest with the courts of law, and not with the government.”1

There is no country except ours and England where a similar answer would, or indeed could, have been given. Everywhere else it would have been called a destruction of the principle of unity in the government We call it a small but choice cabinet specimen of a most noble principle, forming an element of our very politics. Nor must it be forgotten that it was a tory government which made this exclusively Anglican reply. The reader will remember the directly opposite principle declared in the bull of Pope Pius IV., quoted before, as well as Locke's provision in his constitution of South Carolina.

39. The public accusatorial1 trial is another element of the independence of the law, as it is one of the efficient protections of the citizen. By accusatorial process is understood here, not what is generally understood by the term of trial by accusation, (that is, individual accusation,)2 but that penal trial which places the court wholly above the two parties in criminal matters, as the judge is everywhere placed, at least theoretically so, in civil cases; although the two parties be the prosecuting state or government on the one hand, and the indicted person on the other. The accusatorial trial is thus contradistinguished from the inquisitorial trial, which came into use through the canon law, and especially through the unhallowed witch-trials. In it, the judge inquires, investigates, in one word, is the prosecuting party as well as the judging, and in some cases he is even expected to be likewise the protecting party of the indicted prisoner, thus uniting a triad of functions within himself which amounts to a psychological incongruity.3

It may be said that the public accusatorial trial has prevailed or been aimed at by all free nations, modern and ancient. We, the English, the Netherlanders, the Norwegians, the Swedes, the French since the first revolution,4 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 jailers 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 jailer.1

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 whomsoever 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 likewise is 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 the 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.1 Where there 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 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, Mahometanism, 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

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 legis latures, 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, 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 and the people. The crown, opposite the people, is sufficiently weak. The English judge stands between the crown and the accused individual, while with us the judge stands between the people and the individual, which creates a far greater difficulty. To resist the crown is considered patriotic, heroic; to resist the people (and frequently, nay, in most excited cases, this means only a loud or impassioned portion of them) is considered unpatriotic, mean, and even treasonable.

An independent judiciary is one of the most indispensable elements of self-government, for self-government always implies mutual restraint. It is one of the wisest acts in a perfectly free people to establish the highest possible degree of judicial independence, while they only act as all common power acts, if they wish to retain absolute power.1

Those of our states which have of late given the appointment of judges to popular elections, labor under a surprising inconsistency; for all those states, I believe, exclude judges from the legislature. They fear “political judges,” yet make them elective. Now, everything electional within the state becomes necessarily, in time, political. If the physician of a hospital, the captain of a vessel, or the watchmaker to repair our timepieces, were elected by the people, they would, to a certainty, in most cases, be elected not according to their medical, nautical, or horological skill and trustworthiness, but on political grounds. There is nothing reproachful in this to the people at large. It is the natural course of things. Even members of the French Academy have been elected on political grounds, when the government has taken a deep interest in the election.

The question whether judges ought to sit in the house of commons was recently before parliament.2 There are many English authorities on the American side of the question, at least so far as the house of commons is concerned. Lords Brougham and Langdale, Sir Samuel Romilly and Mr. Curran, may be mentioned as such. On the other hand, Mr. Bentham was of opinion that there was so little legislative talent in the world that no place fits so well for legislative business as the bench, and that it was suicidal to exclude the judges. The questions we have to answer are these: Does experience teach us that judges, having a seat in the legislature, where they needs must belong to one or the other party, allow themselves to be influenced on the bench? In England, there are striking instances that, in modern times, they may resist their own political bias, in Eldon, Thurlow, Mansfield, and Hard-wicke. But this remark extends to common cases only. Were they, or would they have been, utterly unbiased in all those trials that may be called political? The pervading character of self-government and independence of the law has certainly given to the English bench a traditional independence. But how long has this existed, and what times may not possibly recur? It appears, throughout the Life and Correspondence of Justice Story, that so soon as he was elevated to the bench he not only avoided being mixed up with politics in any degree whatsoever, but even the mere semblance of it. He seems to have been peculiarly scrupulous on this point.

The second question we must answer is this: How does the judge get into the legislature? Can he do so without electioneering? The more popular a representative government is, the more necessary the immediate contact between the candidate and the constituents becomes. And who wishes to see the judge, that ought to be the independent oracle of the law, in this position?

Mr. Bentham's observation regarding the general unfitness of the world at large for legislative business, and the peculiar fitness of judges for it, requires also some modification. How is it with sanitary laws? Few physicians sit in legislatures, and those that have a seat are not placed there because they are at the head of their profession. We must necessarily trust to the general influence under which a legislature legislates. As to the fitting of the bench for legislative business, it is undoubtedly true with regard to a large class of that business; but we must not forget that the judge is and ought to be a peculiar representative of conservatism; which nevertheless unfits him, in a measure, for all that business which is of a peculiarly progressive character. Almost all law reforms have originally been resisted by the bench. It is not in all cases to be regretted. The judges are the brakes which prevent the vehicle from descending too fast on an inclined plane; but the retarding force must be overcome in many cases, however serviceable it may be that the action of overcoming the difficulty may have been modified by the very process.

I cannot help believing, then, that upon the whole judges ought to be excluded from the legislature; they certainly ought to be so with us. To allow them a seat in concentrated governments, as in France, would be calamitous. But this reason is, a fortiori, one why judges ought not to be elected by the people.

We are frequently asked whether the elective judiciary works badly. The answer is, that a ball rolls awhile from the first impulse given to it So far, old judges have generally been elected under the new system; and we would ask, on the other hand: Has the former system worked badly? I believe, then, that elective judges are a departure from substantial civil liberty, because it is a departure from the all-important independence of the law.

The foregoing paragraph was written in 1853; and I have now to add, in 1859, that a judiciary elected by the people seems to be, universally and unqualifiedly, considered a serious failure. I state this, conscientiously to record facts concerning so important a topic. The most attentive observation, extensive perusal of public journals, consultation of lawyers and statesmen, have not brought to my knowledge a single opinion in favor of an elective judiciary. Everywhere it seems to be acknowledged that it was introduced into our constitutions from no dissatisfaction with the existing system or with the judges, but simply to satisfy the desire of increasing the power of the power-holder—to be subservient to the sovereign; that in reality it does not increase the power of the people, since persons, if appointed by popular vote, are nominated by a small number of so-called leading politicians, and the people at large can discuss the matter as little as the ecclesia in the agora could discuss; that the confidence of the people in the judiciary has been lessened, and through it the confidence even in the jury system; that if a possible increase of salary is believed to be capable of influencing the judges, for which reason it is prohibited by all our constitutions, it follows, a fortiori, that a reelection by the people, or the losing it, must influence the judge far more; that instances of want of independence have occurred in various states, and the lack of independence has especially and sadly interfered with our penal trials and the salutary operation of the law; that it has in many cases elevated individuals to the bench who had no standing among their fellow lawyers, and whom no governor would have dared to appoint, feeling his responsibility as a trustee, while the electing people are irresponsible, and that in several states it has actually occurred that candidates for judicial seats have been asked in the public journals how they mean to decide if certain questions (e.g., the constitutionality of the New York liquor law) should come before them, in the same way in which certain political questions are put to-candidates for the legislature.1

It is necessary to appoint judges for a long period, and the best is probably for life, with a proper provision which prevents incapacity from old age.2 The experience which is required, and the authority he must have, although unsupported by any material power, make this equally desirable, as well as the fact that the best legal talents cannot be obtained for the bench if the tenure amounts to a mere interruption of the business-of the lawyer.3 The constitution of the French republic of 1848, so democratic in its character, decreed the tenure of judicial office to be for life.1

It is for a similar reason of public importance that the salary of the judges be liberal, which means that, combined with the honor attached to a seat on the bench, it be capable of commanding the fairest legal talents. The judge must enjoy, as has been stated, proper independence; but he is dependent, and in the worst degree so, if he is conscious that the best lawyers before him 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 in all our constitutions; many have added that it shall not be increased either, during continuance in office.2 But what is the possible dependence feared from an increase or decrease of salary, compared to that unavoidable dependence 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 II. 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

Although the principle of arbitration cannot be called a characteristic of liberty, for as a characteristic it belongs rather to the patriarchal government, and courts of arbitration may flourish in despotic states, it will be necessary to consider this topic in the present place. It is very possible that our people would more readily give up an elective judiciary, where it has been established, if the law or the state constitutions directed or admitted of regular courts of arbitration. Wherever they have been tried in modern times, they have been found of the greatest benefit to the people, for instance, in Prussia and Denmark. Great efforts are made in England, by such leading men as Lord Brougham, to introduce them in that country of law. In England as well as in the United States the law admits indeed of arbitration, but a single arbitration, though acknowledged by law if certain prescribed conditions have been fulfilled, differs in effect, and the advantage resulting from it, from a court of arbitration.

Where these courts now exist, the following are, I believe, their characteristics:

The country is divided into certain arbitration districts, in each of which the people elect several judges of arbitration, so that the people may have a choice, because the whole business transacted by them is an affair of confidence;

Parties must agree to go to arbitration, and select the judge;

They must commence business by handing in a written declaration that they will abide by the decision of the judge, without any appeal, and the decision of the judge has full force in all courts;

Going to arbitration is a purely voluntary matter;

Parties must state their own cases, and no pleaders for others, no lawyers, are admitted;

There is no jury;

The arbitration extends to civil cases only, as a matter of course;

The judges of arbitration are elected for a limited time;

The judge decides on the common principles of fairness;

Great care is taken to establish, as the first step, that the parties come into court, truly and verily, of their own accord and free will.

The chief objections to Lord Brougham's repeated propositions to introduce courts of arbitration have been made by professional lawyers, namely, that parties ignorant of their full rights would expose themselves to great losses. The statistics of those countries where these peculiar courts exist seem to prove the contrary. The number of cases decided by them has been increasing from year to year, and is now, as well as the amount of property upon which they have decided, surprisingly large. Cases in which the disputed property amounted to several hundred thousand dollars have been taken before these courts, and it has repeatedly happened, in Prussia, that in a suit before the regular courts of law the settlement of portions of the suit has been taken, by common consent, to arbitration, and the suit at law has proceeded with the decision of the court of arbitration. It is remarkable that the amount of property at stake, thus taken out of the court of law to the court of arbitration, has sometimes been very large.

The establishment of courts of arbitration has produced a signal decrease of litigation and diminution of expenses.

Finally, it may be observed that the fundamental idea of courts of arbitration somewhat resembles, in one point, the principle upon which, originally at least,1 the house of lords decided as the last court of appeal,—a principle which many of our states had imitated, by giving the last appeal to the state senates, and which, so far as my inquiry has led me to conclude, produced beneficial results. The introduction of courts of arbitration, along with the abolition of elective judges, and especially of judges elected for a short term, would produce the best effects in our country.2

[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.

[1.]The learned “opinion” of the court of errors was delivered by Judge Ward-law, Hiller vs. English, 4 Strobhart's Reports, Columbia, S. C., 1850. While I was writing this, the supreme court of Massachusetts decided that the “squeeze of the hand” of a dying person, unable to speak, but having been made aware of the fact that the pressure would be taken as an affirmative, may be taken as “a dying declaration,” though with caution.—National Intelligencer, Washington, May 21, 1853.

[2.]Even the Constitution of the French Republic of 1848 said, article 89:

“Conflicts of privileges and duties between the administrative and judicial authority shall be regulated by a special tribunal composed of members of the court of cassation and of counsellors of state, to be appointed, every three years, in equal number, by the respective bodies to which they belong. This tribunal shall be presided over by the minister of justice.”

[1.]The letter is dated June 24, 1852.—London Spectator, July 3, 1852.

[1.]The trial by accusation has a distinct meaning in the English law; still, I have adopted the term Accusatorial Trial, in conformity to continental lawyers, A distinct term in contradistinction to the Inquisitorial Trial is necessary, and I prefer Accusatorial to Litigious Trial, which I observe Mr. Stephen uses in an interesting paper on English Criminal Law in the collection of articles published from time to time by former students of the two English universities, Oxford and Cambridge, respectively.

[2.]There was no public prosecutor in Rome. An individual appeared as accuser, and formed throughout the trial the prosecuting party. See article Criminal Law, in the Encyclopædia Americana.

[3.]See Feuerbach on the Jury.

[4.]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.

[1.]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.

[1.]See “Federalist,” No. lxxviii. and sequ.

[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 politics. The party had voted against the Police Law, and the judge had declared it constitutional, therefore he ought not to be nominated for re-election. 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.

[1.]In 1774 parliament passed an act making the justices of the supreme court of Massachusetts independent of the people for their salaries. The grand jurors refused to serve. Paul Revere was one of the grand jury.

[2.]See Mr. Macaulay's speech in the commons, June 1, 1853, on a bill to exclude judges from the house of commons. The chief question was to exclude the vice-chancellor from a seat in the commons. Mr. Macaulay is decidedly in favor of letting judges sit in the commons.

[1.]The report of the Reform Committee of the New York legislature reveals a state of things which reminds us of the worst state of Athens, while the Louisiana papers copied the most important portions, with strengthening commentaries and illustrations from their state. Numerous individuals, judges, and lawyers have publicly expressed their disapprobation. We trust so great an evil will soon be redressed.

[2.]See Political Ethics, under the heads of Judge, Independence of the Judiciary.

[3.]I would refer the reader, on all these subjects, to Judge Chambers's Speech on the Judicial Tenure, in the Maryland Convention, Baltimore, 1851. [The evils pointed out by Dr. Lieber are admitted and deprecated by multitudes, but hitherto there are no steps backward. In New York, the state which has suffered most from a judiciary elected by the people and on party grounds, a vigorous effort has lately (1873) been made to change the mode of election, without success. Perhaps if the whole bar of a state was united and strong in desiring such a change it could be effected.]

[1.]This constitution will be found in the Appendix.

[2.]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 re-appointed.

[1.]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.”

[1.]At present, when the house of lords sits as a court of appeal, none but the law lords are generally present.

[2.]In some manufacturing districts on the continent of Europe, for instance in Rhenish Prussia, so called Manufactory Courts exist. They consist of elected employers and employed, and judge of all the minor difficulties which may arise between the employers and the employed out of their immediate relation to one another. The common question, for instance, whether the woven piece, returned by the weaver, contains all the material given to him, or whether it be returned in a perfect state, is adjudged by them. General satisfaction seems to prevail with these courts, whose German name is Fabrik-Gerichte. [Courts or councils somewhat like these have been introduced also into Great Britain.]