to the states respectively, or to the people ;" and the principle which I have mentioned may be considered as involved in it; but in the different states, where the legislature certainly has the right, as a general rule, to do all that seems necessary for the common welfare, and is not specifically prohibited, the mentioned principle prevails regarding the executive.'

26. The supremacy of the law requires that where

I have already mentioned the judgment given by the French court, with reference to the opening of letters by the police, in order to find out the traces of offences. I now give an extract, and shall italicize those passages which bear upon the subject above :

"Considering that if, by the terms of existing legislation, and particularly by art. 187 of the penal code, functionaries and agents of the government, and of the post-office administration, are forbidden either to suppress or to open letters confided to the said administration, this disposition cannot reach the prefect of police, acting by virtue of powers conferred upon him by art. 10 of the Code of Criminal Instruction.

Considering that the law, in giving to him the mission to investigate offences, to collect evidence in support of them, and to hand their authors over to the tribunals charged with punishing them, has not limited the means placed at his disposition for attaining that end.

"That, in fact, the right of perquisition in aid of judicial instructions is solemnly affirmed by numerous legal dispositions, and that it is of common law in this matter.

"That the seizure in question was made in order to follow the trace of an offence; that it resulted in the discovery of useful and important facts; that, finally, the authors of the said letters have been prosecuted in a court of justice. Considering, moreover, that the court is not called upon to inquire into the origin of documents submitted to its appreciation; that its mission is merely to establish their authenticity or their sincerity; that, in fact, the letters in question are not denied by their authors.

"For these reasons the letters are declared admissible as evidence," &c. It is refreshing to read by the side of this remarkable judgment so simple a passage as the following, which was contained in an English paper at the same time that the French judgment was given. It relates to a London police regulation concerning cabmen.

"Now we have no wish to palliate the bad conduct of a class who at least furnish amusing topics to contemporaries. By all means let the evils be remedied; but let the remedy come within the limits of law. It will be an evil day for England when irresponsible legislation and police law, even for cabmen, are recognised and applauded by a certain public, because in a given example it happens to be convenient to them. If the ordinary law is not sufficient, let it be reformed; but do not leave the making of penal laws to the police, and the execution of those laws to the correctional tribunal of the same authority."-Spectator, April 2, 1853.

enacted constitutions form the fundamental law, there be some authority which can pronounce whether the legislature itself has or has not transgressed it in the passing of some law, or whether a specific law conflicts with the superior law, the constitution. If a separate body of men were established to pronounce upon the constitutionality of a law, nothing would be gained. It would be as much the creature of the constitution as the legislature, and might err as much as the latter. Quis custodet custodes? Tribunes or ephori? They are as apt to transgress their powers as other mortals. But there exists a body of men in all well-organized polities, who, in the regular course of business assigned to them, must decide upon clashing interests, and do so exclusively by the force of reason, according to law, without the power of armies, the weight of patronage or imposing pomp, and who, morcover, do not decide upon principles in the abstract, but upon practical cases which

2 They are generally called written constitutions; but it is evident that the essential distinction of constitutions, derived from their origin, is not whether they are written or unwritten, which is incidental, but whether they are enacted or cumulative. The English constitution, that is, the aggregate of those laws and rules which are considered of fundamental importance, and essential in giving to the state and its government those features which characterize them, or those laws and institutions which give to England her peculiar political organic being, consist in cumulated usages and branches of the common law, in decisions of fundamental importance, in self-grown and in enacted institutions, in compacts, and in statutes embodying principles of political magnitude. From these we have extracted what has appeared important or applicable to our circumstances, we have added, expanded and systemized, and then enacted this aggregate as a whole, calling it a constitution-enacted not by the legislature, which is a creature of this very constitution, but by the people. Whether the constitution is written, printed, carved in stone, or remembered only, as laws were of old, is not the distinctive feature. It is the positive enactment of the whole at one time, and by distinct authority, which marks the difference between the origin of our constitutions and those of England or ancient Rome. Although the term written constitution does not express the distinctive principle, it was nevertheless natural that it should have been adopted; for it is analogous to the term lex scripta, by which the enacted or statute law is distinguished from the unenacted, grown, and cumulative common law.

involve them—the middle-men between the pure philosophers and the pure men of government. These are the judges-courts of law.

When laws conflict in actual cases, they must decide which is the superior law, and which must yield; and as we have seen that according to our principles, every officer remains answerable for what he officially does, a citizen, believing that the law he enforces is incompatible with the superior law, the constitution, simply sues the officer before the proper court as having unlawfully aggrieved him in the particular case. The court, bound to do justice to every one, is bound also to decide this case as a simple case of conflicting laws. The court does not decide directly upon the doings of the legislature. It simply decides, for the case in hand, whether there actually are conflicting laws, and if so, which is the higher law that demands obedience, when both may not be obeyed at the same time. As, however, this decision becomes the leading decision for all future cases of the same import, until indeed proper and legitimate authority should reverse it, the question of constitutionality is virtually decided, and it is decided in a natural, easy, legitimate and safe manner, according to the principle of the supremacy of the law and the_ independence of justice. It is one of the most interesting and important evolutions of the government of law, and one of the greatest protections of the citizen. It may well be called a very jewel of Anglican liberty, one of the best fruits of our political civilization.3

The ancient justicia of Arragon had the power of declaring laws unlawful or unconstitutional, as we call it, against the king and estates, but it was done without the trial of a specific case and specific persons. He was therefore simply in these cases above king and estates, that is, king himself, and it became necessary in course of time to suppress this feature. See Pol. Ethics, vol. ii. p. 281.

27. Of all the guarantees of liberty there is none more important, and none which, in its ample and manifold development, is more peculiarly Anglican, than the representative government. Every one who possesses a slight acquaintance with history, knows that a government by assembled estates was common to all nations arising out of the conquests of the Teutonic race; but the members of the estates were deputies or attorneys, sent with specific powers of attorney to remedy specific grievances. They became nowhere, out of England and her colonies, general representatives-that is, representatives for the state at large and with the general power of legislation. This constitutes one of the most essential differences between the deputative medieval estates, and the modern representative legislatures- a government prized by us as one of the highest political blessings, and sneered at by the enemies of liberty on the Continent, at this moment, as "the unwieldy parliamentary government." I have endeavoured thoroughly to treat of this important difference; of the fact that the representative is not a substitute for something which would be better were it practicable, but has its own substantive value; of political instruction and mandates to the representatives, and of the duties of the representative, in the Political Ethics, to which I must necessarily refer the reader.

With reference to the great subject of civil liberty, and as one of the main guarantees of freedom, the representative government has its value as an institution by which public opinion organically passes over into public will, that is law; as one of the chief bars against absolutism of the executive on the one, and of the masses on the other hand; as the only contrivance by which it is possible to induce, at the same time, an essen

tially popular government and the supremacy of the law, or the union of liberty and order; as an invaluable high school to teach the handling and the protection, and to instil the love, of liberty; as the organism by which the average justice, on which all fair laws must be based, can be ascertained; as that sun which throws the rays of publicity on the whole government, with a more penetrating light the more perfect it becomes; and as one of the most efficacious preventives of the growth of centralization and a bureaucratic government; as that institution, without which no clear division of the functions of government can exist.

Before we consider the most prominent points of a representative government, so far as it is a guarantee of liberty, it may be proper to revert to two subjects just mentioned.

There was a time when, it seems, it was universally believed, and many persons believe still, that a representative government is indeed a very acceptable substitute, yet only a substitute, for a state of things which would be the perfect one, but which it is physically impossible to obtain at present, namely, the meeting of the people

1 The term bureaucracy is called by many barbarous, nor has it, so far as I know, been introduced into dictionaries of any authority. Be it so; but while we have innumerable words, compounded of elements which belong to different languages, a term for that distinct idea which is designated by the word bureaucracy has become indispensable in the progress of political science, because the thing which must be named has distinctly developed itself in the progress of centralization combined with writing. In spite, therefore, of the want of texical authority, it is almost universally used, for necessity presses. I am under this necessity, and shall use it until a better and more acceptable term be proposed. Mandarinism would not be preferable. Mandarinism would express, indeed, a government by mandarins, by officials; but it would not designate one characteristic which it is intended to point out by the term bureaucracy-namely, a government carried on, not only by a hierarchy of officials, but also by scribbling bureaus. All bureaucracies must be mandarinisms, I take it; but every mandarinism need not be a bureaucracy. I observe that the French, from whom, indeed, the term has been received, freely use it, even in their best writings.