The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction to the Third Edition.
• On Civil Liberty and Self-government.
• Chapter I.: Introductory.
• Chapter II.: Definitions of Liberty.
• Chapter III.: The Meaning of Civil Liberty.
• Chapter IV.: Ancient and Modern Liberty.—Ancient, Medieval, and Modern States.
• Chapter V.: Anglican Liberty.
• Chapter VI.: National Independence—Personal Liberty.
• Chapter VII.: Bail.—Penal Trial.
• Chapter VIII.: High Treason.
• Chapter IX.: Communion.—Locomotion, Emigration.
• Chapter X.: Liberty of Conscience.—Property:—Supremacy of the Law.
• Chapter XI.: Quartering Soldiers.—The Army.
• Chapter XII.: Petition.—Association.
• Chapter XIII.: Publicity.
• Chapter XIV.: Supremacy of the Law.—Taxation.—Division of Power.
• Chapter XV.: Responsible Ministers.—Courts Declaring Laws Unconstitutional.—Representative Government.
• Chapter XVI.: Representative Government, Continued.—Basis of Property.—Direct and Indirect Elections.
• Chapter XVII.: Parliamentary Law and Usage.—The Speaker.—Two Houses.—The Veto.
• Chapter XVIII.: Independence of the Judiciary.—The Law Jus, Common Law.
• Chapter XIX.: Independence of Jus, Self-development of Law, Continued.—Accusatorial and Inquisitorial Trials.—Independence of the Judge.
• Chapter XX.: Independence of Jus, Continued.—Trial By Jury.—The Advocate.
• Chapter XXI.: Self—Government.
• Chapter XXII.: American Liberty.
• Chapter XXIII.: In What Civil Liberty Consists, Proved By Contraries.
• Chapter XXIV.: Gallican Liberty.—Spreading of Liberty.
• Chapter XXV.: The Institution.—Its Definition.—Its Power For Good and Evil.
• Chapter XXVI.: The Institution, Continued.—Institutional Liberty.—Institutional Local Self-government.
• Chapter XXVII.: Effects and Uses of Institutional Self-government.
• Chapter XXVIII.: Dangers and Inconveniences of Institutional Self-government.
• Chapter XXIX.: Advantages of Institutional Government, Farther Considered.
• Chapter XXX.: Institutional Government the Only Government Which Prevents the Growth of Too Much Power.—Liberty, Wealth, and Longevity of States.
• Chapter XXXI.: Insecurity Op Uninstitutional Governments.—Unorganized Inarticulated Popular Power.
• Chapter XXXII.: Imperatorial Sovereignty.
• Chapter XXXIII.: Imperatorial Sovereignty, Continued.—Its Origin and Character Examined.
• Chapter XXXIV.: Centralization.—Influence Of Capital Cities.
• Chapter XXXV.: Vox Populi Vox Dei.
• Appendix.
• Appendix I.: A Paper On Elections, Election Statistics, and General Votes of Yes Or No.
• Appendix II.: A Paper On the Abuse of the Pardoning Power.
• Appendix III.: A Paper On Subjects Connected With the Inquisitorial Trial and the Laws of Evidence.
• Appendix IV.: Magna Charta of King John, Fifteenth Day of June, In the Seventeenth Year of the King's Reign, A.d. 1215.
• Appendix V.: The Petition of Right. 1
• Appendix VI.: An Act For the Better Securing the Liberty of the Subject, and For Prevention of Imprisonments Beyond the Seas, Commonly Called “the Habeas Corpus Act.” 1
• Appendix VII.: Bill of Rights, Passed 1 William and Mary, Sess. 2, Ch. 2, 1689.
• Appendix VIII.: A Declaration By the Representatives of the United States of America In Congress Assembled.
• Appendix IX.: Articles of Confederation and Perpetual Union Between the States.
• Appendix X.: Constitution of the United States of America.
• Appendix XI.: The French Constitution, Adopted and Proclaimed On the Twenty-fourth of June 1793. the First Republican Constitution
• Declarations of the Rights of Man and of Citizens.
• Constitution of the Twenty-fourth of June, 1793.
• Appendix XII.: French Charter of Louis XVIII. And That Adopted In the Year 1830.
• Appendix XIII.: Constitution of the French Republic. Adopted November, 1848.
• Appendix XIV.: The Present Constitution of France.
• Appendix XV.: Report of the French Senatorial Committee On the Petitions to Change the Republic Into an Empire, In November, 1852, 1 and the Senatus-consultum Adopted In Conformity With It.
• Appendix XVI.: Letter of the French Minister of the Interior, Mr. De Morny, Addressed to the Prefects of the Deparments In the Year 1852.

chapter xvii.

parliamentary law and usage.—the speaker.—two houses.—the veto.

34. It is not only necessary that the legislature be the sole judge of the right each member may have to his seat, but that the whole internal management and the rules of proceeding with the business belong to itself. It is indispensable that the legislature possess that power and those privileges which are necessary to protect itself and its own dignity, taking care, however, that this power may not, in turn, become an aggressive one.

In this respect are peculiarly important the presiding officer of the popular branch, or speaker, the parliamentary law, and the rules of the houses.

The speaker of the English commons was in former times very dependent on the crown. Since the revolution of 1688 his election may be said to have become wholly independent. It is true that the form of obtaining the consent of the monarch is still gone through, but it is a form only, and a change of the administration would unquestionably take place were the ministers to advise the crown to withhold its consent.

Were the refusal insisted on, disturbances would doubtless follow, which would end in a positive declaration and distinct acknowledgment on all hands that the choice of the speaker “belongs, and of right ought to belong,” to the house of commons. There is no danger on that score in England, so long as a parliamentary government exists there at all. The growth of the commons' independence in this respect is as interesting a study as it is historically to trace step by step any other expanding branch of British liberty.

The Constitution of the United States says that “the house of representatives shall choose their speaker and other officers,” and, so chosen, he is speaker, without any other sanction.

The charter granted by Louis XVIII. of France prescribed that “the president of the chamber of deputies is nominated by the king from a list of five members presented by the chamber.” This was altered by the revolution of 1830, and the charter then adopted decreed that “the president of the chamber of deputies is to be elected by the chamber itself at the opening of each session.” It need not be added that, according to the “constitution of the empire,” the emperor of the French simply appoints the president of the “legislative corps.” In all the states of the Union the speakers are within the exclusive appointment of the houses In the British colonial legislatures the speaker must be confirmed by the governor, but, as was observed of the speaker of the commons, if consent were refused it would be a case of disagreement between the administration and the legislature, which must be remedied either by a new administration or a new house—that is, by. new elections.

The presiding officer of the upper house is not made thus dependent upon it. In England, the chief officer of the law the lord chancellor or keeper of the seals,1 presides over the house of peers. There seems to be a growing desire in England wholly to separate the lord chancellor from the cabinet and politics. At present he is always a member of the administration, and, of course, leaves his office when the cabinet to which he belongs goes out. It will be an interesting subject to determine who shall preside over the lords, if the change thus desired by many should take place.

The United States senate is presided over by the Vice-President of the United States, who is elected by the Union at large, as the President is. It must be observed, however, that the chancellor on the woolsack, and the Vice-President of the United States as president of the senate, exercise no influence over their respective legislative bodies, that can in any degree be compared to that of the speakers over their houses. The American senate and the British house of lords allow but very little power, in regulating and appointing, to the presiding officer, who interferes only when called upon to do so.1

The power of the houses of parliament over persons that are not members, or the privileges of parliament, or of either house, so far as they affect the liberty of individuals and the support of their own power, constitute what is called parliamentary law—an important branch of the common law. Like all common law, it consists in usage and decisions; there are doubtful points as well as many firmly settled ones. It must be learned from works such as Hatsell's Precedents, etc. Townsend's History of the House of Commons, and others.

As a general remark, it may be stated that, with the rise of liberty in England, the jealousy of the house of commons also rose, and continued during the period of its struggle with the executive; and that, as the power of the house has become confirmed and acknowledged, the jealousy of the house has naturally abated. I very much doubt whether at any earlier period the committee of privileges would have made the same declaration which it made after Lord Cochrane, in 1815, had been arrested by the marshal of the king's bench, while sitting on the privy councillor's bench in the house of commons, prayers not yet having been read. The committee declared that “the privileges of parliament did not appear to have been violated so as to call for the interposition of the house.”1

The two American houses naturally claim the “power of sending for persons and papers and of examining upon oath,” and they have also exercised the power of punishing disturb ances of their debates by intruders, and libellers of members or whole houses. But no power to do so is explicitly conferred by the Constitution of the United States.2

Of far greater importance is the body of the rules of procedure and that usage which has gradually grown up as a part of common law, by which the dispatch of parliamentary business and its protection against impassioned hurry are secured, and by which the order and freedom of debate, fairness, and an organic gestation of the, laws are intended to be obtained. Parliamentary practice, or rules of proceeding and debate, such as have been developed by England, independently of the executive, and, like the rest of the common law, been carried over to our soil, form a most essential part of our Anglican constitutional, parliamentary liberty. This practice, as we will call it for brevity's sake, is not only one of the highest importance for legislatures themselves, but serves as an element of freedom all over the country, in every meeting, small or large, primary or not. It is an important guarantee of liberty, because it serves like the well-worn and banked bed of a river, which receives the waters that, without it, would either lose their force and use by spreading over plains, or become ruinous by their impetuosity when meeting with obstruction. Every other nation of antiquity and modern times has severely suffered from not having a parliamentary practice such as the Anglican race possesses, and no one familiar with history and the many attempts to establish liberty on the continent of Europe or in South America can help observing how essentially important that practice is to us, and how it serves to ease liberty, if we may say so.1

It is not a French “règlement,” prescribed by the executive with but little room for self-action; nor does it permit legislative disorder or internal anarchy. It has been often observed that the want of parliamentary practice created infinite mischief in the first French revolution. Dumont mentions that there was not even always a distinct proposition before the convention; and the stormiest sessions, which frequently ended by the worst decrees-the decrets d'acclamation—were those in which there were speeches and harangues without propositions. Sir Samuel Romilly1 says: “If one single rule had been adopted, namely, that every motion should be reduced into writing in the form of a proposition before it was put from the chair, instead of proceeding, as was their constant course, by first resolving the principle, as they called it, (décréter le principe,) and leaving the drawing up of what they had so resolved (or, as they called it, la rédaction) for a subsequent operation, it is astonishing how great an influence it would have had in their debates and on their measures.”2

The great importance of the subject and the general superiority of the English parliamentary practice have been acknowledged by French writers, practically acquainted with it; especially by the author of a work the full title of which I shall give in a note, because it shows its interesting contents.3

Foreigners frequently express their surprise at the ease with which, in our country, meetings, societies, bodies, communities, and even territories,1 constitute and organize themselves, and transact business without violence, and without any force in the hands of the majority to coerce the minority, or in the hands of the minority to protect itself against the majority. One of the chief reasons of this phenomenon is the universal familiarity of our people with parliamentary practice, which may be observed on board of any steamboat where a number of persons, entire strangers to one another, proceed to pass some resolution or other, and which they learn even as children. There are few schools the members of which have not formed some debating society, where parliamentary forms are observed, and where the rigorously enforced fine impresses upon the boy of ten or eleven years the rules which the man of forty follows as naturally as he bows to an acquaintance.2

The Constitution of the United States says that “each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” If, however, the parliamentary practice had not already been spread over the colonies, like the common law itself, this power, justly and necessarily conferred on each house, would have been of comparatively little advantage. Parliamentary practice-that ars obstetrix animanum, as Mr. Bentham calls it, although it ought to be called the obstetric art of united bodies of men, for in this lies the difficulty—is not a thing to be invented, nor to be decreed, but must be developed.1

It is not only a guarantee of the free share of every representative in the legislation of his country, but it is also, as has been indicated, a guarantee, for the people, that its legislature remain in its proper bounds, and that the laws be not decreed as the effects of mere impulse or passion.

It is a psychological fact that whatever interests or excites a number of separate individuals will interest or excite them still more when brought together. They countenance one another; and that psychical reduplication which, for bad or good, produces so great an effect wherever individuals of the same mind or acting under the same impulse come in close contact, must be guarded against in representative assemblies. Parliamentary practice, as we possess it, is as efficient a means to calm and to regulate these excitements, as the laws of evidence and the procedure of courts are in tempering exciting trials and impassioned pleadings.

These remarks may fitly conclude with the words of Judge Story, which he uttered when he left the speaker's chair of the Massachusetts house of representatives, to take his seat on the bench of the supreme court of the United States. They ought to be remembered by every one on both sides of the Atlantic that prizes practical and practicable liberty:

” Cheered, indeed, by your kindness, I have been able, in controversies marked with peculiar political zeal, to appreciate the excellence of those established rules which invite liberal discussions, but define the boundary of right and check the intemperance of debate. I have learned that the rigid enforcement of these rules, while it enables the majority to mature their measures with wisdom and dignity, is the only barrier of the rights of the minority against the encroachments of power and ambition. If anything can restrain the impetuosity of triumph, or the vehemence of opposition—if anything can awaken the glow of oratory, and the spirit of virtue—if anything can preserve the courtesy of generous minds amidst the rivalries and jealousies of contending parties, it will be found in the protection with which these rules encircle and shield every member of the legislative body. Permit me, therefore, with the sincerity of a parting friend, earnestly to recommend to your attention a steady adherence to these venerable usages.”1

35. If parliamentary practice is a guarantee of liberty by excluding, in a high degree, impassioned legislation, and aiding in embodying, in the law, the collective mind of the legislature, the principle of two houses, or the bicameral system, as Mr. Bentham has called it, is another and no less efficient guarantee.

Practical knowledge alone can show the whole advantage of this Anglican principle, according to which we equally discard the idea of three and four estates, and of one house only. Both are equally and essentially un-Anglican. Although, however, practice alone can show the whole advantage that may be derived from the system of two houses, it must appear, nevertheless, as a striking fact to every inquirer in distant countries, that not only has the system of two houses his torically developed itself in England, but it has been adopted by the United States, and all the states, as well as by the single territories, and by all the British colonies, where local legislatures exist We may mention even the African state of Liberia. The bicameral system accompanies the Anglican race like the common law,1 and everywhere it succeeds; while no one attempt at introducing the unicameral system, in larger countries, has so far succeeded. France, Spain, Naples, Portugal,—in all these countries it has been tried, and everywhere it has failed. The idea of one house flows from that of the unity of power, so popular in France. The bicameral system is called by the advocates of democratic unity of power an aristocratic institution. This is an utter mistake. In reality it is a truly popular principle to insist on the protection of a legislature divided into two houses; and as to the historical view of the question, it is sufficient to state that two houses have been insisted upon and rejected by all parties, aristocratic and popular, according to the circumstances of the times. In this the principle resembles the instruction of the representative by his constituents. This too has been insisted on and rejected by all parties at different periods.

Attempts were made in our earlier times to establish a single house, for instance in Pennsylvania,2 but the practical and sober sense of the Anglican people led them back to the two houses. The danger was perhaps not trifling. “During the American revolution, there grew up a party in every state who, ignorant of this great political truth, opposed the notion that our state constitutions should be conformed to the English model. No less a person than Dr. Franklin was of this party. And through his influence, in a great measure, Pennsylvania adopted a government of a single legislative assembly. When he went to Paris, he took with him the different American constitutions. Mr. Turgot, to whom he showed them, disregarding, as Dr. Franklin had done, the voice of history, approved that of Pennsylvania, and condemned those framed after the English constitution. In a letter to Dr. Price of England, Mr. Turgot says: ‘I am not satisfied with the constitutions which have hitherto been formed for the different states of America. By most of them, the customs of England are imitated without any particular motive. Instead of collecting all authority into one centre, that of the nation, they established different bodies, a body of representatives, a council, and a governor, because there is in England, a house of commons, a house of lords, and a king. They endeavored to balance three different powers, as if this equilibrium, which in England may be a necessary check to the enormous influence of royalty, could be of any use in republics founded upon the equality of all the citizens, and as if establishing different orders of men was not a source of divisions and disputes.’ This notion of a single national assembly began to gain ground so rapidly in America, that the elder Adams, in order to counteract it, in the beginning of the year 1787 published his Defence of the American Constitutions. In the September of the same year, the national convention changed the federal constitution from the single assembly of the confederacy, to a government formed after the English model. Pennsylvania changed her government also: and all the states and territories of this vast confederacy have now governments framed on the plan of the English.”1

Mr. de Lamartine pronounced the true reason why we ought to hold fast to the bicameral system, although he spoke against it When in the last French constituent assembly Mr. Odillon Barrot had urged with ability the adoption of two houses, Mr. de Lamartine replied that the great principle of unity (he meant, no doubt, of centralization) required the establishment of one house, and that, unless the legislature was vested in one house alone, it would be too difficult to make it pass over from a simple legislature to an assembly with dictatorial power. This is precisely the danger to be avoided.2 Parliamentary practice and the two-house system are subjects of such magnitude that it is impossible here, where they are mentioned as guarantees, to enter upon details; but I cannot dismiss them without recommending them to the serious and repeated attention of every one who may have looked upon them as accidents rather than essentials. The French acknowledge as the first thing to be obtained, power, force; and their philosophical writers, such as Rousseau, seek, almost exclusively, a philosophical or legitimate source of that power. Hence their view of universal suffrage, and the power, be it that of an all-powerful Cæsar, or of a concentrated single chamber, all-providing and all-penetrating, when once established, arising out of it Hence the prosecution of Mr. de Montalembert, as having attacked the legitimate power of the emperor, when he had written against the French view of universal suffrage. The Anglicans seek, first of all, for freedom, for self-government; and then for guarantees of these.

Experience has proved to the English and Americans that to have a measure discussed entirely de novo by a different set of men, with equal powers, and combined upon a different basis-that this, and the three readings, with notice and leave of bringing in, and the going into committee before the third reading, have a wonderful effect in sifting, moderating, discovering, and in enlightening the country. Take the history of any great act of parliament or congress, and test what has been asserted. This effect of two houses, and the rules of procedure just mentioned, are indeed like so many pillars to the fabric of liberty.

The question has been asked, Why should there be two chambers? What philosophical principle is there enshrined in this number? All we would answer is, that it has been found that more than one house is necessary, and more than two is too many. Three and even four houses belong to the medieval estates, and to the deputative, not to the modern national representative, system. The mischief of three houses is as great as that of three parties. The weakest becomes the deciding one by a casting vote. And one house only belongs to centralization. It is incompatible with a government of a co-operative or concurrent character, which we hold to be the government of freedom.

I cannot agree with the opinion expressed by Lord Brougham in his work on Political Philosophy, that it is essentially necessary that the composition of the two houses should be based upon entirely different principles, meaning that the one ought not to be elective, and that it ought to represent entirely different interests. A thorough discussion of this subject belongs to the province of politics proper, but I ask the reader's indulgence for a few moments.

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 states 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 reference 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 that of 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.1

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 the representative to 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.1

36. I hesitate whether I ought to mention 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 protection 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 that the whigs in the United States 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 so-called 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, 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 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.1

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 full veto power, we ought greatly to modify it.2

[1.]A keeper of the seals, whom usage does not require to be a peer, is now appointed as the chief officer of the law, only when, for some reason or other, no lord chancellor is appointed. The keeper of the seals, nevertheless, presides in the house of lords, or “sits on the woolsack.” The chancellor is now always” made a peer if he is not already a member of the house of lords; and he is always a member of the cabinet. This mixture of a judicial and political character is inadmissible according to American views; yet it ought to be remembered, as an honorable fact, that no complaint of partiality has been made in modern times against any lord chancellor in his judicial capacity, although he is so deeply mixed up with politics. Lord Eldon was probably as uncompromising, and perhaps as bigoted, a politician as has ever been connected with public affairs, but I am not aware that any suspicion has existed on this ground against his judicial impartiality. There is at present a traditional fund of uncompromising judicial rectitude in England which has never been so great at any other period of her own history or excelled in any other country.

[1.]This difference in the position of the presiding officers appears, among other things, from the fact that the members of the house of lords address “My lords,” and not the chancellor, while usage and positive rules demand that the member of the other house who wishes to speak shall address “Mr. Speaker,” and receive “the floor” from him. The chancellor would only give the floor if appealed to in case of doubt. In the United States senate, the president of the senate is, indeed, directly addressed, although occasionally “senators” have been addressed in the course of a speech. That body, however, appoints its committees, and leaves little influence to the presiding officer, who, it will be remembered, is not a member of the senate, and has a casting vote only.

[1.]I would refer the general reader, on this and kindred subjects, to the article Parliament, in the Political Dictionary, London, 1846.

[2.]This is not the place for discussing the doubts which some have entertained regarding the power of the houses of congress to do that which is possessed by every court of justice, though the lowest, namely, to arrest and punish disturbers. The doubt is simply on the ground that it has not been conferred. But there are certain rights which flow directly from the existence of a thing itself, and some that are the necessary consequence of action and life, and without which neither can manifest itself. A legislative body without the power of sending for peisons to be examined by committees would be forced to le islate, in many cases, in the dark. It is true that legislative bodies have become tyrannical; but it must not be forgotten that wherever, in the wide range of history, any struggle for liberty has taken place, we find that a struggle to establish the habeas corpus principle has always accompanied it, and that this struggle for securing personal liberty is always against the executive. I do not remember a single case of an established and separate guarantee of personal liberty against parliamentary violence.

The reader is referred to Mr. Justice Story's Comm. on the Const. U. S., chap, xii., and to Chancellor Kent's Commentaries.

[1.]The ancients had no parliamentary law and usage. The Greek agora could of course not have it. Mass meetings cannot debate; they can only ratify or refuse proposed measures. [But there was debate on the probouleumata of the senate at Athens, which might be added to or modified as well as rejected, and free discussion took place on other subjects. The laws of order also were not bad.] It is the same in the democratic Swiss cantons, where the people meet in primary assemblage. (See Political Ethics.) In the Roman senate there was no debating piopei. There was rather a succession of set speeches; and I may be permitted to state here that in debating oratory, in replying on the spot vigorously and clearly to an adversary, the best orators of the last and present centuries are greatly superior to the ancients.

Since the publication of the first edition, an American senator, Mr. Edward Everett, has added his testimony to the vital importance of Anglican parliamentary rules. On December 8, 1853, when resolutions with reference to the late Vice-President of the United States, (and, therefore, presiding officer of the senate,) W. Rufus King, were under discussion, Mr. Everett observed, in the course of his remarks:

“In fact, sir, he was highly endowed with what Cicero beautifully commends as the boni Senatoris prudentia the ‘wisdom of a good senator;’ and in his accurate study and ready application of the rules of parliamentary law he rendered a service to the country, not perhaps of the most brilliant kind, but assuredly of no secondary importance. There is nothing which so distinguishes the great national race to which we belong, as its aptitude for government by deliberative assemblies; its willingness, while it asserts the largest liberty of parliamentary right, to respect what the senator from Virginia, in another connection, has called the self-imposed restrictions of parliamentary order; and I do not think it an exaggeration to say that there is no trait in their character which has pioved more conducive to the dispatch of the public business, to the freedom of debate, to the honor of the country—I will say even which has done more to establish and perpetuate constitutional liberty.”

[1.]He was himself of unmixed French descent, as Lord Brougham observes, although his family had resided for generations in England.

[2.]Memoirs of the Life of Sir Samuel Romilly, etc., 2d edit., vol. i. p. 103.

[3.]A Treatise on the Formation of Laws, (Traitè de la Confection des Lois,) or an Inquiry into the Rules (Règlements) of the French Legislative Assemblies, compared with the Parliamentary Forms of England, the United States, Belgium, Spain, Switzeiland, etc. by Ph. Vallette, Advocate, etc. and Secretary of the Presidency of the Chamber of Deputies, and by Benat Saint-Martin, Advocate, etc., 2d edit., Paris, 1839; with the words of Mr. Dupin, who long presided over the chamber, as motto: “The excellence of laws depends especially upon the care taken in the elaboiation of the bills. The drawing up of laws constitutes a large share of their efficiency.”

[1.]As a striking instance may be mentioned the whole procedure of the people of Oregon, when congress omitted to organize the territory, and ultimately “Organic Laws” were adopted “until such time as the United States of America extend their jurisdiction over us.” They were printed by the senate, May 21, 1846, and, although consisting of a few pages only, form a document of great interest to the political philosopher in more than one respect. A French statesman of mark wrote to the author, years ago, from Algeria: “I wish your way of organizing distant territories, or of allowing them to organize themselves., could be transplanted to this colony.” Justice requiies to add now (1859) that our Kansas troubles had not then occuned.

[2.]An excellent book of its kind is the small work of Judge L. S. Cushing, Rules of Pioceeding and Debate in Deliberative Assemblies, Boston, Mass. It has gone through many editions. The same author published in 1855, Law and Practice of Legislative Assemblies in the United States.

[1.]Mr. Jeremy Bentham's Tactique des Assemblées Legislatives, edited by E. Dumont, Geneva, 1816, is no pure invention, and could have been written by an Englishman or American only.

See also Mr. Jefferson's Manual of Parliamentary Practice for the use of the senate of the United States.

There is a very curious book, Parliamentary Logic, etc., by Right Hon. W. Gerard Hamilton, (called in his time Single-Speech Hamilton,) with Considerations on the Corn Laws, by Dr. Samuel Johnson, London, 1808. The copy which I own belonged to Dr. Thomas Cooper. That distinguished man has written the following remark on the fly-leaf: “This book contains the theory of deception in parliamentary debate;how to get the better of your opponent, and how to make the worse appear the beter reason. It is the well-written work of a hackneyed politician…. The counterpart to it is the admirable tract of Mr. Jeremy Bentham on Parliamentary Logic, the book of Fallacies. No politician ought to be ignorant of the one book or the other. They are well worth (not perusing, but) studying. T. C.”

[1.]Life and Letters of Joseph Story, Boston, Mass., 1851, vol. i. p. 203.

[1.]No instance illustrating this fact is perhaps more striking than the meeting of settlers in Oregon territory, when congress had neglected to provide for them, as has been mentioned in a previous note. The people met for the purpose of establishing some legislature for themselves, and at once adopted the principle of two houses. It is to us as natural as the jury.

[2.]It was at the period when Dr. Frankin asked why people would put horses not only before, but also behind the wagon, pulling in opposite directions. The true answer would have been, that whenever a vehicle is pulled down an inclined plane we actually do employ an impeding force, to prevent its being dashed to pieces. [Georgia, also, and the Confederation itself, had but one chamber. Franklin wished (Curtis's Hist., i. 435) to introduce the same system into the Constitution in the Convention of 1787.]

[1.]I have quoted this long passage from the First Report of the Commissioners, appointed by the General Assembly of Maryland, to revise, simplify, and abridge the Rules of Practice, Pleadings, etc. in the courts of the State, Frederic City, Md., 1855,—a work important also with reference to the subject of codification. This first report is believed to have been written by Mr. Samuel Tyler, one of the commissioners, a gentleman alike distinguished as advocate and writer on philosophy. His last work, on the Progress of Philosophy in the Past and the Future, entitles him to a place among the profoundest writers on philosophy. His friend, the late Sir William Hamilton, acknowledged his great merits.

The reader is referred to De Tocqueville's Ancien Régime for numerous passages showing how general the error of Turgot was in France, and how sincerely the Anglican diversity, necessarily accompanying self-government, was disrelished by the French, profoundly worshipping, not only unity of power, but also uniformity of action.

[2.]The speech was delivered on the 27th September, 1848. Mr. de Lamartine speaks of a division of the sovereignty into two parts, by two houses! Poor sovereignty! What strange things have been imagined under that word! If the reader can find access to that speech, I advise him to peruse it, for it is curious from beginning to end, especially as coming from a person who for a lime was one of the rulers of France. His exact words are these. Speaking of domestic dangers, he says: “To such a danger you must not think of opposing two or three powers. That which ought to oppose it is a direct dictatorship, uniting within its hand all the powers of the state.” “He adds more of the kind, but this extract will suffice.

Mr. Lamartine committed another grave error. He said that two houses in the United States were natural, because we are a confederacy, and the senate was established to represent the states as such. But he seems not to have been aware that all our states, in their unitary character, have established the same system, and that it is as natural to the men on the shores of the Pacific as to those in Maine, or to the settlers on the Swan River.

I ought in justice to add, however, that in 1850 Mr. de Lamartine said, in his Counsellor of the People, that he was now for two houses, and that he had been for one house in 1848 because he wanted a dictatorial power; and, added he, La dictature ne se divise pas. But how can a dictatorship be called undivided, when it belongs to a house composed of eight hundred members? And must not, in the nature of things, a division of execution always take place? It 18 surprising that something temporarily desired for a dictatorship should have been insisted upon by Mr. Lamartine with so much vehemence as an integral part of the fundamental law; or was peradventure the constitution of 1848 intended not to last?

[1.][Compare the defence of representation and protection of interests by Mr. Calhoun, Works, i., beginning.]

[1.][The same is shown ethically by the consideration that the constituents, if collected, would be bound to regard the general welfare. The representative takes their duties on himself with their power.]

[1.][The suspensive veto in Norway, which three successive Storthings by a majority can make of no effect, deserves consideration, as avoiding some of the evils of our qualified veto.]

[2.]I shall append a paper on pardoning—a subject which has become all important in the United States.