CHAPTER XIX.

INDEPENDENCE OF JUS, SELF-DEVELOPMENT OF LAW CONTINUED. ACCUSATORIAL AND INQUISITORIAL TRIALS. DEPENDENCE OF THE JUDGE.

IN

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.

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 of 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. Hence there ought to be no pressure from without, either by a Stuart sending for the judges to tamper

1 The learned "opinion" of the court of errors was delivered by Judge Wardlaw, Hiller vs. English, 4 Strokhart'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."

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 exraordinary 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."

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 prin

1 The letter is dated June 24, 1852.-London Spectator, July 3, 1852.

ciple 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 polities. 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 accusatorial' 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,) 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 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 Encyclop. Americ.

3 See Feuerbach on the Jury.

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.