indeed. When a law was passed he could wholly or partially stop its operation. The dispensatory power claimed by the Stuarts would have been a real veto. The chief of the state in the United States or England, however, 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, 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 institutions 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. I 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 real veto power, we ought greatly to modify it."

15

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

CHAPTER XVIII.

INDEPENDENCE OF THE JUDICIARY, THE LAW,
JUS, COMMON LAW.

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.1 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 Angli

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 seems to have felt the same want, and uses it to designate a whole division of his work on the Elements of Morality, including Polity, London, 1845, as he also adopted the word jural first used in the Political Ethics.

can 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 first is the serious inconvenience, arising from the fact that our tongue has not two terms for the two very distinct ideas which in Latin are designated by Lex and Jus, in French by Lois and Droit, in German by Gesez and Recht; the second is the fact, of which every Anglican may be proud, that the English jus has developed itself as an independent organism, and continues to do so with undiminished vitality. It is based upon a common law, acknowledged to be above the crown in England, and to be the broad basis of all our own constitutions-a body of law and "practice," in the administration of justice, which has never been deadened by the superinduction of a foreign and closed law, as was the case with the common law of those nations that received the civil law in a body as authority for all unsettled cases. The superinduction of the Latin language extinguished the living common languages of many tribes, or dried up the sources of expansive and formative life contained in them.

The independence of the judges is a term hap

pily of old standing with all political philosophers who have written in our language; but it will be seen that the independence of the judiciary, by which is meant generally a position of the judge independent of the executive or legislative, and chiefly, his appointment for life or immovability by the executive, and frequently, the prohibition of a decrease or increase of his salary after his appointment has taken place that this independence of the judiciary forms but a part of what I have been obliged to call the far more comprehensive Independence of the Law.2

The independence of the law, or the freedom of jus, in the fullest and widest sense, requires a living common law, a clear division of the judiciary from other powers, the public accusatorial process, the independence of the judge, the trial by jury, and an independent position of the advocate. These subjects will be treated in the order in which they have been enumerated here.

A living common law is, as has been indicated, like a living common language, like a living common architecture, like a living common literature. It has the principle of its own organic vitality, and of formative as well as assimilative expansion within itself. It consists in the customs and usages of the

2 When therefore I published a small work on this subject, during my visit to Germany, in 1848, I called it Die Unabhängigkeit der Justiz oder die Freiheit des Rechts, Heidelberg, 1848. Literally translated this would be The Independence of Justice and Freedom of the Law. Justiz in German, however, does not mean the virtue justice, but the administration of justice; and Recht means, in this connection, jus, not a single jus, but the body of rights and usages, laws and legal practice of a people.