Page:Sphere and Duties of Government.djvu/168

148 than accords with the wish of the parties concerned. Hence, the first principle of every judicial proceeding should be, never to institute a search to discover the truth absolutely and in itself, but only to conduct the inquiry in so far as it is required by the party who is entitled to demand the full investigation. But here too it is necessary to observe this further limitation: namely, that the State is not to yield to all wishes of the prosecutor, but only in so far as such relate to the settlement of the right contested, and suppose only the application of such means as, even without the political union, man might justly employ against his fellowman; especially in cases which only involve a dispute of right between them, and in which there is no violation, or where this is not immediately evident. The State, or the third power called in to the dispute, must only seek to secure the application of these means, and provide for their efficiency. Hence arises the difference between civil and criminal proceedings, that in the former the last resource for eliciting the truth is the administration of the oath, while in the latter the State enjoys far greater liberty in investigation.

Since the judge, as examiner into questions of contested right, occupies a middle place, as it were, between the two parties, it is his duty to see that neither of these is disturbed in his plans for obtaining redress or even delayed by the other; and hence we come to the second principle, equally important with the first: to keep the conduct of the parties under special supervision during the progress of the suit, and to take care that, instead of answering its ultimate design, it does not actually lead away from or wholly counteract it. The most exact and consistent observance of these two principles would give us, I believe, the best system of legal proceeding. For if the importance of the latter principle is overlooked, there is too much scope