2. A similar diversity might be introduced in any functions other than legislative allotted to the chambers. Thus, if a general power of control over treaties with foreign states otherwise than by criticism and inquiry,—were given to the legislature, it might be appropriately confined to an elected senate constituted as I have above suggested: since, from the longer duration and partial renewal of this chamber, it would be more likely to maintain a farsighted and consistent foreign policy than the House of Representatives.

3. Again, it may be suggested that the senate should be constituted a judicial tribunal for the trial of offences committed by public men of high position in violation of their public trust and duties; the prosecution of such offenders being assigned to the House of Representatives. Both these arrangements were adopted, after the example of England, in the constitution of the United States; and the judicial function of the senate in particular is elaborately and ably defended in Story's well-known work.1 But, granting that a special court of high dignity is required to deal with offences of this class, and that to construct a suitable tribunal for them is a matter of considerable difficulty, I still cannot think it a good solution of the difficulty to give this judicial work to a chamber appointed primarily for legislative purposes, most of whose members cannot be expected to have had any judicial experience. I cannot think that such a body is likely in any case to be a good court of justice and the party-system that now prevails in states under popular government must tend to increase its unfitness. I am more inclined to think thatif it be decided to constitute a special court of this kindthe function of selecting from time to time some of the members of the required tribunal might be properly entrusted to the Senate; as it would be well qualified to supply the element of political experience that such a tribunal ought to possess. I shall have occasion to return to this question at the conclusion of the next chapter, which will treat of the judicial organ as a whole.

1 Constitution of the United States, Part III. ch. x.

Further, the legislative powers belonging to the two chambers jointly may be limited by the right of each chamber separately to determine its rules of procedure. This limitation is expedient, partly in order that each chamber may be as free as possible to adopt-and therefore responsible for adopting-the rules best fitted to secure full and fair debate and prevent hasty resolutions, without allowing mischievous obstruction and delay; partly in order to avoid the necessity of subjecting the procedure of either chamber to the control of an external judiciary.1

Finally, it should be again pointed out that the legislative powers of both chambers together may be formally limited by constitutional rules, by which certain matters are either positively determined or excluded from the sphere of ordinary legislation. Such rules will, of course, be somehow modifiable; but only by some extraordinary legislative process, under conditions more difficult of fulfilment than those of ordinary legislation, and probably involving directly or indirectly-the intervention of the citizens at large. The expediency of this distinction between ordinary and extraordinary legislation, and the best conditions for the latter, will be discussed in chap. xxvii. Further, certain legislative powers may be reserved for or delegated to local governments; the reservation or delegation being either (a) revocable at the discretion of the legislature, or (b) not so revocable. These two cases will be discussed in chapters xxv. and xxvi., on Local and Federal Government respectively.

1 On the expediency of constitutional restrictions on this freedom of each chamber, see chap. xxvii. § 5.

CHAPTER XXIV

THE JUDICIARY AND ITS RELATION TO THE LEGISLATURE

AND THE EXECUTIVE

§ 1. THE importance of the Judiciary in political construction is rather profound than prominent. On the one hand, in popular discussion of forms and changes of government, the judicial organ often drops almost out of sight; on the other hand, in determining a nation's rank in political civilisation, no test is more decisive than the degree in which justice as defined by the law is actually realised in its judicial administration; both as between one private citizen and another, and as between private citizens and members of the government. To attain this result we require legal knowledge and skill, impartiality, incorruptibility, and independence in the persons forming the judicial tribunals: also that such tribunals should be accessible to all, and sufficiently numerous, and that no one should be hindered, by government or private persons, from seeking judicial remedies for legal wrongs: that, accordingly, the judicial process should be as simple, short, and inexpensive as is consistent with adequate security for justice and adequate provision for the correction of judicial errors; at the same time, vexatious litigation should be discouraged, lest the remedies for social mischief prove worse than the disease. I have not space to enter into the interesting technical questions that arise, in trying to adapt judicial procedure to the attainment of these partially incompatible ends: but we ought to keep these ends in view in discussing the general characteristics of the

constitution and working of the judicial organ in such a governmental structure as we have so far sketched out.

The general reasons for not allotting judicial and legislative functions to the same organ need only be recalled very briefly. The advantages of division of labour, which becomes more important as the complexity and difficulty of law increase with the complexity of society; the importance of concentrating the main attention of the judge on the impartial administration of law as it is; the different intellectual qualifications required for the making and for the applying of laws;-these have been sufficiently dwelt on in previous chapters. I have also mentioned the advantage of securing impartiality in disputes between legislators and private persons; this no doubt becomes unimportant where popular government is in effective working on the other hand, it is clear that numerous representative assemblies are especially unlikely to possess the qualifications required for the Judiciary.

This separation of functions, however, must be understood with certain qualifications. Judicial experience, however insufficient by itself, ought to supply a valuable element of the knowledge required for wise legislative changes. Indeed, one advantage of constituting a Senate partly of ex officio members is, that it might thus include a certain number of persons who are1 or have been engaged in judicial work, whose aid ought to be peculiarly useful in the work of freeing the law from formal defects, which we have seen to be specially appropriate to the Senate. If the Senate cannot be made available for this purpose-or perhaps in any case it would seem desirable to appoint a permanent Law Council, containing persons of judicial experience. It should be the primary business of such a Council to remove inconsistencies and ambiguities in the recognised authoritative statement of the law: but besides this, it might from time to time serve as a channel for bringing judicial ex

1 Actual judges to whom this function is given would naturally have less than a full burden of judicial work.

2 See a Plan for the Formal Amendment of the Law of England, by T. E. Holland, M.A., 1867.

perience to bear on legislation whenever this experience clearly pointed to the expediency of material changes in civil and criminal law.

But further; as the varying characteristics of the social relations which laws are designed to regulate can never be completely foreseen by the legislature, it is impossible to prevent the judges from exercising functions that go beyond the mere application to particular cases of rules laid down. by the legislature, and practically involve the more precise determination of the law itself. They have to apply rules of law to cases that were not foreseen, and in reference to which therefore the intention of the legislature is not clearly declared; and while it is generally their duty, under these circumstances, to be guided as far as possible, when the meaning of words is ambiguous, by inferences as to the general design of the legislature, drawn from other rules of analogous import, it is still almost inevitable, and sometimes not undesirable, that in drawing such inferences they should be swayed to a certain extent by their own views of what is reasonable and expedient.

It does not necessarily follow that the court which has to decide an unforeseen case should have the power-which English courts have-of laying down a binding precedent to govern all similar decisions hereafter. It may indeed be questioned whether the legislature should not try to prevent the judges from doing this, by declaring it the duty of a judge to give to the words of the law what he thinks their true meaning, without regard to previous decisions. This would render feasible a separation of legislative from judicial functions more complete than the English system admits, would diminish the bad consequences of judicial mistakes, and might perhaps make it possible for citizens generally, other than lawyers, to know the main rules of law by which they were incontrovertibly bound. But it would make it impossible even for the highly-trained expert to foresee decisions on points which a code or statute had left ambiguous; and I think that the greater certainty attainable on details of law at any given time,