that results from judges being bound by precedents, outweighs any advantages of the opposite system.

If the judges are to recognise as valid the precedents of previous decisions, so that a certain amount of legislation under the guise of interpretation is inevitable, the question arises, What precedents are to have this binding force? In a large country, if justice is to be effectually accessible to all, there must be a large number of tribunals with coordinate jurisdiction, whether concurrent or locally divided; hence if the law is to be kept practically uniform over the whole country, there must be a single final court of appealfor all judicial work or for each separable part of it—which alone will have the power of finally determining disputed points of law. It seems, however, desirable that judges of an inferior grade should be provisionally bound by the decisions of those of a superior grade, on points not decided by the final court of appeal.1

§ 2. So far I have not supposed the legislature's power of making laws to be confined by any legal limitations. But we have already seen it to be possible in any communityand we shall hereafter see it to be necessary in a community federally organised, if the terms of the federal union are to have legal precision-to restrict the powers of any ordinary legislature within definite limits fixed by constitutional rules, which can only be modified by some extraordinary legislature or by some process more difficult than that of ordinary legislation. It is further clear that, if such constitutional rules are to have the force of law so long as they are not modified, there must be some body that has the function of deciding whether the ordinary legislature has not transgressed them in its legislation; and that this is prima facie a strictly judicial function. There are,

1 It does not seem reasonable that a tribunal should be bound by the decision of a co-ordinate tribunal on a point not carried up to the final court of appeal. But, to maintain a clear uniformity in the interpretation of the law, it might be made the duty of a judge who definitely rejects the interpretation of a co-ordinate judge, to communicate his difference, with its grounds, to the court of appeal: which might then decide the point at issue, whether the litigants appeal or not.

however, certain objections against assigning this function to the judicial organ in a unitary state, which will be more conveniently considered hereafter: for the present,' therefore, I shall assume that the ordinary legislature-with or without the assent of the executive-has a legally unlimited power of modifying the rules applied by the judiciary: and is not responsible for the use of this power except to the electorate and to public opinion.

But granting that the judiciary cannot question the validity of any law, civil or constitutional, duly made by the Legislature, it may still be the final authority for interpreting constitutional as well as civil law as it actually exists, and applying it to determine any disputed questions of constitutional right. And it would seem that, in most cases, no other body can be so well qualified to exercise this authority. For instance, I conceive that the judiciary should decide disputed questions as to membership of a legislative chamber,-especially when the chamber is elective, and the election is alleged to have been vitiated by bribery, intimidation, or other cause. Such questions eminently require judicial impartiality; and both reason and experience would lead us to regard them as unfit to be decided by the chamber itself or any committee of it; owing to the habits and sentiments of partisanship which cannot be excluded from such bodies.

I conceive, however, that, notwithstanding any danger of partisanship, it should be left to the chamber itselfeither acting as a whole or through its chairman or a committee to administer judicially its own rules of procedure.3 In particular, it should have power to enforce its rules of order, by silencing or excluding disorderly members since, for the effective maintenance of order, it is necessary that such penalties should be promptly administered, and no external tribunal is likely to estimate the gravity of breaches

1 This subject will be further considered in chap. xxvii.

2 With the consent of the Supreme Executive, if the latter has a veto. 3 I am here assuming that the chamber is not bound by rules of procedure constitutionally fixed, so as not to be modifiable by the ordinary process of legislation.

of order so well as the members of the chamber. Some limitation, however, of the power of exclusion would seem to be necessary, in order to prevent such a perversion of the representative system as would take place, if this power of excluding members were used so as to enable measures to be passed which would have been rejected if the excluded members had voted-or vice versa. Partly for similar reasons the chamber should also have the right of excluding strangers :publicity of debate, therefore, though it should be customary, should not be enforced by a constitutional rule: but there seems to be no adequate reason why any attempts to intimidate or interfere with debates, otherwise than by intrusion into the buildings under the control of the chamber, should not, like other offences, be left to the judiciary to punish.

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Attempts of this latter kind are chiefly to be feared at crises of excitement: under ordinary circumstances, there is no serious danger of legal conflicts arising between legislators as such and private individuals, in which the impartiality of judges might be strained. The case is different with the executive. As we have seen, in order to maintain the laws it is necessary to invest the executive with rather extensive powers of interference with the liberty and property of private citizens it is therefore important for the security of the latter that these powers should be exercised as far as possible under strict rules and limitations, and that the private individuals who suffer from their exercise should have the right of appealing as soon as possible to an independent and impartial law court against any transgression of these rules.2 The chief constitutional regulations established with a view to this result are, indeed, commonly recognised as the most important protections of civil liberty; and this is perhaps the most convenient place to give a brief general account of them; since the most difficult questions as to the structure of the Judiciary are connected with its function of maintaining legal order against the guardians of that order themselves.

1 See chap. xxvii. § 5.

2 On the question whether the executive should have the right of suspending these rules in exceptional emergencies, see chap. xxii. § 10.

§3. First, we may note the need of rules reducing within the narrowest possible limits the power of the executive to imprison private citizens before trial. The most important provisions under this head are (a) that no one shall be arrested except on a definite charge of having committed a certain offence; (b) that the person arrested shall be brought as soon as possible before a judicial functionary who shall decide whether the charge is made on grounds prima facie reasonable, and whether the offence charged is sufficiently grave to render it needful to keep the accused in confinement until the trial; (c) that if the charge is of this grave kind the accused shall be brought to trial as soon as possible, and that if it is of a lighter kind, he shall be set at liberty on bail. In order that these latter provisions may be effective, it is clearly desirable that the judicial functionary before whom the accused person is brought should be distinct from the executive and independent of its influence. This independence is further required to secure an impartial trial in any case in which the conduct of private persons which is alleged to be illegal is certainly inconvenient to the executive. It is also required to secure the effectiveness of another of the constitutional bulwarks of freedom to which I above referred, the right of suing or prosecuting government officials for any illegalities committed by them in performance of their functions. For if the conduct of one member of the executive had to be judged by another, or by a judge practically under its control, the esprit de corps which may be presumed to exist in the executive as a body, and its natural tendency to resist any restriction on its powers, would diminish the complainant's chance of obtaining an impartial hearing and adequate redress.1

How, then, is the required independence to be secured? Let us first assume that the judges are to be professional experts; since it can hardly be doubted that to obtain the knowledge and skill required for the consistent and accurate

1 Whether cases of this kind should be tried by the ordinary tribunals will be considered later, § 8.

determination of legal rights and duties in particular cases, continual professional practice as well as systematic preparatory study are generally necessary in an advanced stage of civilisation, in most if not in all departments of the administration of law. We may further assume that these professional judges will be arranged in grades, so that the most important cases may be reserved for the ablest intellects; and especially the courts of appeal required to correct judicial errors may command confidence. by their superior grasp and insight. It seems then clear, in the first place, that to secure the judicial independence of the judges in all grades they should be not simply dismissible or appointed for short periods-by the executive. On the other hand, it is obviously undesirable to make the appointment and dismissal of judges a part of the regular business of a numerous elected legislature. Such a body can hardly be expected to estimate efficiently the special knowledge and skill required for judicial decisions, and is likely to be too much influenced by popular sentiment and party spirit;- especially under parliamentary government, where judicial independence is chiefly required for the protection of minorities, since the relation of the heads of the executive departments to the representative assembly would suffice to restrain the former from encroachments likely to be resented by the majority of the electorate. For similar reasons, direct popular election of judges is even more open to objection. On the whole, it seems best that judges in all grades should ordinarily hold office during good behaviour; and that the power of dismissal required to meet cases of misbehaviour or grave unfitness, should be normally exercised by a body of judges of the highest grade. The dismissal of any member of this body ought to be a very rare event if the occasion for it should arise, any danger of undue indulgence on the part of this high tribunal towards one of its members might be met by constructing a special court, in which members of the legislature form a majority, with power to dismiss any member of the judiciary for adequate reasons. The control of a tribunal so con