lature the ultimate power of determining the elections of its members, there is distinct disagreement between the English practice and the constitutional law of the other three states. The statutes of Parliament confer this power upon the courts. In this way a non-partisan decision is obtained in cases of contested elections; and the great difficulty is avoided of determining, when an election has completely renewed a legislative body, what members shall organize the house prior to the decision of conflicting claims to seats. Sound political science supports the English practice, and it is to be hoped and expected that it will, ere long, be universally adopted.

3. In regard to the principles of representation, there is more harmony in these four systems than is at first apparent.

In all four legislatures the distribution of the representation in the lower houses is made according to population. Some regard is paid to the permanent administrative or local governmental divisions; but the resultant modifications are concessions to convenience, merely, and do not represent any compromise of the principle of proportionality.

In all four legislatures the distribution of the representation in the upper houses is made with but little regard to the census of the population. In England and in the United States, no regard at all is paid to the principle of proportionality; in Germany, not much; in France, considerable. If there is any one controlling principle applicable to all these cases, it is the representation of local governmental organizations. In the Senate of the United States, this is the exclusive principle. In the German Federal Council, it is the dominant principle. In the French Senate, considerable regard is paid to the census of the population in determining the number of senatorial seats to be assigned to each département; but within the département the effect of this concession. to proportionality is modified by a very great discrimination in favor of the less populous communes as regards the number

of representatives accorded them in the electoral colleges. In England alone no regard seems at present to be paid to local governmental or administrative organizations in the distribution of the seats in the upper house. If we look, however, to history, we shall find that the representation of England in the House of Lords was originally very closely connected with the local organizations; while the number of seats in that house now occupied by representative peers from Scotland and Ireland is fixed by statute, and is thus defended against the power of the Crown on the one side, and the accidents of extinction on the other. These statutes are based far more upon territorial considerations than upon the idea of proportionality.

We may say then, I think, that the principle controlling the distribution of seats in the upper houses of the legislatures of these typical systems is the representation of the local governmental or administrative organizations. This is a most valuable principle. It tends to preserve the real fruits. of the historic development of the state. It gives opportunity for the exertion of a larger influence by the cultured minority; and it gives more security to the rights of that minority. Many of the greatest statesmen have been brought forward through the influence of this principle. The organizations which have not the strength of numbers have been compelled to search diligently for their best talent in order to maintain, in fact, their legal equality. The principle, however, is frequently assailed as medieval and contradictory to the doctrine of popular sovereignty. From the view which we take of the province of legislation, vis; the interpretation of the reason of the state rather than the registration of the popular will, this objection appears irrelevant. Something more conclusive than the demand for proportionality must be adduced before we can be called upon to admit that this system of distributing representation is faulty. If the less populous community were always the more cultured, this

would certainly be a better distribution than the principle of numbers could afford. It is because the less populous community may chance to be also the less cultivated that the system is in some degree unreliable. It would not, therefore, serve as the exclusive system of distribution; i.e. the system for both legislative chambers. When, however, it is balanced by the principle of distribution according to population in the other house, there is every reason to believe that it contributes powerfully to the production of sound legislation, and that it is a most wholesome check upon the radical tendencies of mathematical politics.

Lastly, all four of these typical constitutions agree substantially upon the principle of uninstructed representation. The contrary principle is adopted in but a single case, viz; in that of the German Federal Council. Its universality in practice is strong proof of its soundness. From the standpoint of philosophy it is unassailable. As I have already said, legislation is the expression of the common consciousness of right and policy; the legislator is the interpreter of that consciousness; and he should always be chosen solely in view of his ability to interpret it correctly. Any duress upon his intellect and conscience will confuse them and destroy his powers of correct interpretation. The views of a constituency should always be taken into account as contributing to the make-up of the consciousness of the state, but the will of a constituency has no place in the modern system of legislative representation. Instructed representation is a legitimate principle in a system of confederated

In such a system the confederate government is composed of members representing states, and acting as mere mouthpieces for the expression of the will of these states. The state consciousness is interpreted by other organs. Instructed representation is, therefore, one of the tests of confederatism. It marks the Federal Council, therefore, as a confederate institution. When the confederatism of the

German constitution shall be entirely overcome, instructed. representation will disappear.

4. Qualifications and Disqualifications of Legislative Members.

This can hardly be treated as a topic of the constitutional law of either England or France, since the matter is regulated in both of these states by ordinary statutes. The German constitution also makes but scant provision upon the subject. That of the United States alone provides for it with any degree of fulness.

Citizenship, male sex, mature age, and residence somewhere, at least, within the country, appear to be the natural positive requirements of eligibility. The practice in all four of these states has very nearly settled down upon these as the necessary qualifications.

There is much more divergence in regard to disqualifications. The practice in all these states disqualifies insane persons, criminals, persons under guardianship, persons deprived of their civil rights or political rights, persons holding government contracts, etc. It is also the practice in all that the same person cannot at the same time be a member of both houses. This is expressly provided in the German constitution.

The chief divergence in the different systems is to be found in the principle of the incompatibility of office and legislative mandate. The constitution of the United States forbids wholly the combination of United States office and United States legislative mandate; ie. it disqualifies any United States officer, either executive or judicial, from holding a seat in either branch of the legislature. The German constitution unseats any member of the Diet who is appointed to a salaried office, either in the Empire or in a commonwealth; but this disqualification may be removed by reelection subsequent to the appointment. The members of the Federal Council, acting always under instructions, are

of course unaffected, as to their legislative independence, by the holding of office at the same time with mandate. The English and French statutes and practice prohibit those officials from holding mandates whose official positions would give them an undue influence over their own elections, and disqualifies many others whose routine work would be interfered with by membership in the legislature, or rather whose legislative usefulness would be impaired by the requirements of their offices. Appointment to office of any sort regularly unseats a representative, but he may be re-elected after appointment. Naturally these restrictions do not apply to the House of Lords.

It will thus be seen that the United States has adopted a principle not recognized by the other states. In the system of the United States, office and mandate are made entirely incompatible by the constitution. In the systems of the other three states, it is evidently the view that the membership of certain officials in the legislature is a great aid to intelligent legislation. All agree, certainly, upon the desirability of the membership of the ministers. The French

practice does not even require their re-election subsequent to appointment. The tendency of the French legislation, however, is towards the total exclusion of all officials except the ministers. This would not be so radical a solution of the question as that contained in the constitution of the United States, but it would be regarded in Europe as radical enough. And yet, if the rule obtaining in the United States were generally adopted, the ultimate result might be quite conservative. The American rule would make parliamentary government impossible, and might thus lead ultimately to the greater independence of the executive power, both in France and England.

The presence of the heads of the executive departments in the legislative chambers is, certainly, an advantage whenever the ways and means of administration are the subjects