If the two houses were elected for the same period, and by the same electors, they would amount in practice to little more than two committees of the same house; but we want two bona fide different houses, representing the impulse as well as the continuity, the progress and the conservatism, the onward zeal and the retentive element, innovation and adhesion, which must ever form integral elements of all civilization. One house, therefore, ought to be large; the other, comparatively small, and elected or appointed for a longer time. Now, as to the right of sitting in the smaller or upper house, of longer duration, there are different modes of bestowing it. It may be hereditary, as the English peers proper are hereditary; or the members may have seats for life, and in their personal capacity, as the French peers had under the charter. This is probably the worst of all these methods. It gives great power to the crown and keeps the house of peers in a state of submission, which hereditary peers generally do not know. Or, again, the members may be elected for life by a class, as Scottish representative peers are elected by the Scottish nobility for the British house of peers; or the members may be similarly elected for one parliament alone, as the Irish peers are that sit in parliament; or the people may elect senators for life, or for a shorter time, as the senators of Belgium, and all the senators in our state, are; or, lastly, the members of the house we are speaking of may be elected, not by the people in their primary capacity, but by different bodies, such as our senators of congress are. The senators of the United States are elected by the states, as states, consequently an equal number of representing senators is given to each state irrespective of its size or population.

It would be very difficult to pronounce the one or the other principle absolutely the best, without references to circumstances, and we are sure that Lord Brougham would be the last man that would maintain the absolute necessity of having a hereditary peerage wherever two houses exist. As to the different classes, or interests, however, which ought to be represented, I would only state that the idea belongs to the middle ages, and, if adopted, would lead at once to several estates

again. It is hostile to the idea of two houses only. Why represent the different interests of the nation in two houses? Are there not more broad, national interests? It would be difficult indeed to understand why the land-owner in present England should have his house and not the manufacturer, the merchant, the wide educational interest, the sanitary interest, the artisan, the literary interest, with the journalism. The excellence of the bicameral system in our representative (and not deputative) government does not rest on the representation of different interests, but on the different modes of composing the houses and their different duration.

On the other hand, we may observe that, when in 1848 the French established a legislature of one house, they found themselves obliged to establish, by the constitution, a council of state, as the Athenians established the council (boule) to aid the general assembly (ecclesia.) The French know, instinctively if not otherwise, that a single house of French representatives would be exposed to the rashest legislation. The council of state, however, is not public, the members are appointed by the executive; in one word, what was gained? Much indeed was lost.

Whether the representative is the representative of his immediate constituents or of the nation at large, whether he ought to obey instructions sent him by his constituents-on these and other subjects connected with them I have treated at great length in my Political Ethics. I shall simply mention here the fact that civil liberty distinctly requires that the representative be the representative of his political society at large, and not of his election district. The idea that he merely represents his immediate constituents is an idea which belongs to the middle ages and their deputative system,—not to our far nobler representative system. The representative is not a deputy sent with simple powers of attorney, as the deputy of the middle ages was.

36. I hesitate whether I ought to enumerate the Veto as an Anglican guarantee of liberty. I hold it to be in our political system a check upon the legislature, and therefore a protec

tion of the citizen; one that can be abused, and probably has been abused; but everything intrusted to the hands of man may be abused. The question concerns its probable average operation.

Although the veto is thus acknowledged to be an important part of our polity, it may be said no longer to exist in England. It has been mentioned before, that should parliament pass a bill from which the ministers believe the royal assent ought to be withheld, they would not, according to the present usage, expose the king to an open disagreement with the lords and commons, but they would resign, upon which an administration would be formed which would agree with parliament; or parliament would be dissolved, and an "appeal to the country" would be made.

Yet we have received the veto from England, and it is all these considerations which make me hesitate, as I said before, to call the veto an Anglican guarantee.

The use of the veto can become very galling, and at such times we often find the party whose favorite measure has been vetoed vehemently attacking the principle itself. It was thus the whigs in the United States that earnestly spoke and wrote against the principle, when General Jackson declined giving his assent to some measures they considered of great importance, and the democrats were loud in favor of the veto power because it had been used by a president of their own party.

In treating this whole subject much confusion has arisen from the ill-chosen word veto, after the term used by the Roman tribune. The veto of the Roman tribune and the socalled modern veto are not the same. The tribune could veto indeed. When a law was passed he could wholly or partially stop its operation, by the tribunitial auxilium, the personal prevention of the action of magistrates in particular cases. To this was added, at a later period, the intercessio, by which the tribune could prevent a decree of the senate or a rogation before the comitia from becoming a law. The dispensatory power claimed by the Stuarts would have been the full veto power. The chief of the state in the United States or England, how

ever, has no such power. The law, so soon as it is law, says to every one: Hands off. What we call the veto power, is in reality a power of an abnuent character, and ought to have been called the declinative. But this declinative is possessed in a much greater degree by each house against the other. To make a bill a law the concurrence of three parties is required that of the two houses and the executive, and this concurrence may be withheld as a matter of course, otherwise it would not be concurrence.

It is a wise provision in our constitution which directs that a bill not having received the president's approval, nevertheless passes into a law if two-thirds of congress adhere to the bill. Many of our state constitutions do not require the concurrence of the executive. This is not felt in many cases as an evil, because the action of the states is limited, but in my opinion it would be an evil day when the veto should be taken from the President of the United States. It would be the beginning of a state of things such as we daily observe with our South American neighbors. The American conditional veto is in a great measure a conciliatory principle with us, as the refusal of supplies is of an eminently conciliatory character in the British polity.

The only case in which our executives have a real vetitive power, is the case of pardon, and most unfortunately it is used in an alarming degree, against the supremacy of the law and the stability of right-both essential to civil liberty. It consider the indiscriminate pardoning, so frequent in many parts of the United States, one of the most hostile things, now at work in our country, to a perfect government of law. In the only case, therefore, in which we have a full veto power, we ought greatly to modify it.'

1 I shall append a paper on pardoning-a subject which has become all-important in the United States.

CHAPTER XVIII.

INDEPENDENCE OF THE JUDICIARY.

LAW.

THE LAW, JUS, COMMON

37. ONE of the main stays of civil liberty, and quite as important as the representative principle, is that of which the independence of the judiciary forms a part, and which we shall call the independence or the freedom of the law-of jus and justice. It is a great element of civil liberty and part of a real government of law, which in its totality has been developed by the Anglican tribe alone. It is this portion of freemen only, on the face of the earth, which enjoys it in its entirety.

In the present case I do not take the term law in the sense in which it was used when we treated of the supremacy of the law. I apply it now to everything that may be said to belong to the wide department of justice. I use it in the sense in which the Anglican lawyer takes it when he says that an opinion, or decision, or act is or is not law, or good law-an adaptation of the word peculiar to the English language. It is not the author's fault that Law must be taken in one and the same essay, in which philosophical accuracy may be expected, in two different meanings.

The word law has obtained this peculiar meaning in our language, otherwise so discriminating in terms appertaining to politics and public matters, chiefly from two reasons. The

1 The lack of a proper word for jus, in the English language, induced me to use it on a few occasions in the Political Ethics. The Rev. Dr. W. Whewell, some years later, seems to have felt the same want, adopting in his work on the Elements of Morality, including Polity, London, 1845, the word jural, first used in the Political Ethics, where a note explains why I was compelled to form the word.