Representative Government [106]
side or on both, requires such a combination of the love of liberty and the habit of self-restraint as very few nations have yet shown themselves capable of: and though this extremity were avoided, to expect that the two authorities would not paralyse each other's operations is to suppose that the political life of the country will always be pervaded by a spirit of mutual forbearance and compromise, imperturbable by the passions and excitements of the keenest party struggles. Such a spirit may exist, but even where it does there is imprudence in trying it too far. Other reasons make it desirable that some power in the state (which can only be the executive) should have the liberty of at any time, and at discretion, calling a new Parliament. When there is a real doubt which of two contending parties has the strongest following, it is important that there should exist a constitutional means of immediately testing the point, and setting it at rest. No other political topic has a chance of being properly attended to while this is undecided: and such an interval is mostly an interregnum for purposes of legislative or administrative improvement; neither party having sufficient confidence in its strength to attempt things likely to promote opposition in any quarter that has either direct or indirect influence in the pending struggle. I have not taken account of the case in which the vast power centralised in the chief magistrate, and the insufficient attachment of the mass of the people to free institutions, give him a chance of success in an attempt to subvert the Constitution, and usurp sovereign power. Where such peril exists, no first magistrate is admissible whom the Parliament cannot, by a single vote, reduce to a private station. In a state of things holding out any encouragement to that most audacious and profligate of all breaches of trust, even this entireness of constitutional dependence is but a weak protection. Of all officers of government, those in whose appointment any participation of popular suffrage is the most objectionable are judicial officers. While there are no functionaries whose special and professional qualifications the popular judgment is less fitted to estimate, there are none in whose case absolute impartiality, and freedom from connection with politicians or sections of politicians, are of anything like equal importance. Some thinkers, among others Mr. Bentham, have been of opinion that, although it is better that judges should not be appointed by popular election, the people of their district ought to have the power, after sufficient experience, of removing them from their trust. It cannot be denied that the irremovability of any public officer, to whom great interests are entrusted, is in itself an evil. It is far from desirable that there should be no means of getting rid of a bad or incompetent judge, unless for such misconduct as he can be made to answer for in a criminal court; and that a functionary on whom so much depends should have the feeling of being free from responsibility except to opinion and his own conscience. The question however is, whether in the peculiar position of a judge, and supposing that all practicable securities have been taken for an honest appointment, irresponsibility, except to his own and the public conscience, has not on the whole less tendency to pervert his conduct than responsibility to the government, or to a popular vote. Experience has long decided this point in the affirmative as regards responsibility to the executive; and the case is quite equally strong when the responsibility sought to be enforced is to the suffrages of electors. Among the good qualities of a popular constituency, those peculiarly incumbent upon a judge, calmness and impartiality, are not numbered. Happily, in that intervention of popular suffrage which is essential to freedom they are not the qualities required. Even the quality of justice, though necessary to all human beings, and therefore to all electors, is not the inducement which decides any popular election. Justice and