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, twothirds of the votes of the senate. In some states they can be removed by two-thirds of the whole legislature.'

15

15 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.”

CHAPTER XX.

INDEPENDENCE OF JUS, CONTINUED. TRIAL BY JURY. THE ADVOCATE.

41. THE judge cannot occupy a sufficiently independent position between the parties by the accusatorial proceeding alone. If there is not what may be called a division of the judicial labour, separating the finding of guilt or innocence, or of the facts, from the presiding over the whole trial and the application as well as the pronouncing and expounding of the law, the judge must still be exposed to taking sides in the trial. This division of judicial labour is obtained by the institution of the jury. This, it seems to me, is one of the most essential advantages of this comprehensive self-grown institution. It is likewise a guarantee of liberty in giving the people a participation in the administration of justice, without the ruin and horrors of an administration of justice, by a multitude, as at Athens. The jury is moreover the best school of the citizen, both in teaching him his rights and to protect them, and of practically teaching him the necessity of law and government. The jury, in this respect, is eminently conservative. In this, as in many other respects, it is necessary that the institution of the jury exist for the civil trial as well as for the penal, and

not as in many other countries, for the latter only. The necessity of the jury does not militate against the arbitration courts, which have proved a great blessing in all countries in which they have been properly established, or against certain courts of minor importance which may be advantageously conducted without a jury.'

The results of trial by jury have occasionally been such that even in England and here, voices have been raised against it, not indeed very loud or by weighty authorities. Men feel the existing evil only; not those that would result a hundredfold from an opposite state of things. Nor are those, who feel irritated at some results of the trial by jury, acquainted with the operation of trials without jury. So is occasionally the publicity of trials highly inconvenient; yet should we desire secret trials? Liberty, as we conceive it, can no more exist without the trial by jury-that "buttress of liberty," as Chatham called it,' and our ancestors worshipped itthan without the representative system.

The Declaration of Independence specifies, as one of the reasons why this country was justified in severing itself from the mother country, that Americans have been "deprived in many cases of the benefits of trial by jury."

It may not be improper here to enumerate briefly all the advantages of so great an institution, whether they are directly connected with liberty or not.

The trial by jury, then, divides the labour of the administration of justice, and permits each part quietly to find the truth in the sphere assigned to it;

It allows the judge to stand, as the independent organ

For the history of this institution in general, the reader is referred to William Forsyth, History of the Trial by Jury, London, 1852.

2 Lord Erskine, when he was raised to the peerage, adopted the words Trial by Jury, as the scroll of his coat of arms.

of the law, not only above the parties hostilely arraigned against each other, but also above the whole concrete case before the court;

It enables plain common and practical sense properly to admix itself with keen professional and scientific distinction, in each single case, and thus prevents the effect of that disposition to sacrifice reality to attenuated theory, to which every individual is liable in his own profession and peculiar pursuit-the worship of the means, forgetting the end;"

3 And this is the reason that nearly all great reforms have worked their way from without, and from the non-professional to the professional, or from below upwards.

I beg to arrest the reader's attention for a moment to this subject.

In all civilized countries it is acknowledged that there are some important cases, which on the one hand it is necessary to decide, for Mine and Thine are involved, and which, on the other hand, are not of a character that the lines of demarcation can be drawn with absolute distinctness, in a manner which would make it easy to apply the law; e. g. the cases which relate to the imitation of a part of a work of art, of a pattern, or the question of a bona fide extract from an author's work, which, according to the Prussian copyright law, were to be decided by a jury of "experts," long before the general introduction of the jury in that country. A similar case is presented when an officer is accused of unofficer-like and ungentlemanly conduct. Now the question becomes: Are not these cases far more frequent than it is supposed, in the countries where the trial by jury does not exist? Are not almost all complex cases, such as require in a high degree good strong common sense, the tact of practical life, together with the law, to be justly decided? Are not, perhaps, the greater part of civil cases such? The English and Americans seem to believe they are. They believe that close logical reasoning is indeed necessary in the application of the law, and they assign this to the law-officers, but they believe also that a high degree of plain good common sense, unshackled by technicalities, is necessary to decide whether," upon the whole," "taken all in all," the individual case in hand is such as to bring it within the province of the specific law, with reference to which it is brought before the court, and they assign this part of the trial to the jury, that is to non-professional citizens. The English, and the people of some American states, do not only follow this view in the first stage of a case, but, in order to avoid the evil of letting technicalities get the better of essential justice, of letting the minds of professional lawyers, whose very duty it is to train themselves in strict, uncompromising logic, decide complicated and important cases in the last resort, they allow an appeal from all the judges to the House of Lords, or to the Senate. I do not mention this last fact as one to be imitated, but merely as corroborating what I have stated before.

It

It makes a participation of the people in the administration of justice possible, without having the serious evil of courts, consisting of multitudes or mobs, or the confusion of the branches of the administration of justice, of judges and triers ;

It obtains the great advantage of a mean of views of facts, regarding which Aristotle said that many are more just than one, although each one were less so than the one, without incurring the disadvantages and the injustice of vague multitudes;

It brings, in most cases, a degree of personal acquaintance with the parties, and frequently with the witnesses, to aid in deciding;

It gives the people opportunities to ward off the inadmissible and strained demands of the government ;* It is necessary for a complete accusatorial procedure; It makes the administration of justice a matter of the people, and awakens confidence;

It appears to me an important fact, which ought always to be remembered when the subject of the trial by jury in general is discussed, that by the trial by jury, the Anglican race endeavours, among other things, to insure the continuous and necessary admixture of common sense, in the decision of cases; and who can deny that in all practical cases, in all controversies, in all disputes, and in all cases which require the application of general rules or principles to concrete cases, whatsoever common sense is indispensable, is that sound judgment which avoids the Nimium? Who will deny that every one is liable to have this tact and plain soundness of judgment impaired in that very line or sphere in which his calling has made it his duty to settle general principles, to find general rules, to defend general points? The grammarian by profession, frequently, perhaps generally, writes pedantically and stiffly; the religious controversialist goes to extremes; the philosopher by profession is apt to divide, distinguish, and classify beyond what reality warrants; the soldier by profession is apt to sacrifice advantages to his science. Dr. Sangrado is the caricature of the truth here maintained.

The denial of the necessity of profound study and professional occupation would be as fanatical as the disregard of common sense would be supercilious and unphilosophical. Truth stands, in all spheres, emphatically in

need of both.

The whole history of the libel down to Charles Fox's immortal bill may serve as an illustration.